A challenge to the two-month provisional suspensions imposed by the FEI on horses found to have failed a drugs test has been lost in the world’s highest sporting court.
The Switzerland-based Court of Arbitration for Sport (CAS) upheld the principle of equine provisional suspensions on horses that test positive for banned substances under the FEI’s Equine Anti-Doping Regulations.
The ruling came as part of an appeal filed by US Dressage riders Adrienne Lyle and Kaitlin Blythe after two-month provisional suspensions were imposed on their respective mounts, Horizon and Don Principe, on April 5 last year. Samples taken from the horses at an international dressage event in Florida in February 2017 were positive for ractopamine.
Inquiries by the riders revealed that both horses were receiving a horse supplement called Soothing Pink for gastric support. Soothing Pink’s label listed its ingredients, but there was no reference to ractopamine.
Its manufacturer, Cargill, conducted an inquiry, including lab tests, which concluded in a report issued on April 26 that Soothing Pink was the source of the ractopamine.
The following day, blood and urine samples were taken from the horses to see if their systems still contained ractopamine. The tests showed the horses to be clear of the substance.
The discovery of the source and the circumstances of the case led to the FEI Tribunal lifting the provisional suspensions on the riders, but it would not budge on the the two-month provisional suspensions on the horses.
However, in May 2017, Lyle and Blythe obtained an interim decision from the CAS which cleared the horses to compete again, pending the full hearing of their appeal.
The full hearing of the appeal was heard last November and the final decision issued this week, confirming the validity of the FEI’s policy of two-month equine provisional suspensions in banned substance cases.
The appeal was decided by three arbitrators led by Michael Beloff.
The riders were joined in the action by the owners of the horses, Elizabeth Juliano (Horizon) and Maryanna Haymon (Don Principe).
The appellants argued that a range of factors in the case amounted to “exceptional circumstances” within the meaning of the FEI’s anti-doping rules, which justified the lifting of the provisional suspensions on the horses.
The level of ractopamine detected had been low and by the time of the appealed decision there was no trace of it in the horses’ systems.
The riders had been co-operative and had worked to identify the ractopamine source.
Further, there was no scientific literature to support the thesis that the welfare of the horses would have been compromised, or would have enjoyed a competitive advantage, had they been competed before the two months was up.
They argued that the two-month policy relied on by the FEI was not properly authorized and was not contained in, nor consistent with, the anti-doping rules.
They asked the court to reverse the FEI Tribunal decision to maintain the provisional horse suspensions, permanently remove the horse’s suspensions, declare the FEI’s uncodified policy invalid, and award the appellants costs.
The FEI argued that it had the right under the rules to impose such provisional suspensions, and there was scope to challenge them.
The appellants, according to the FEI, had not met the relevant requirements at the preliminary hearings phase to warrant lifting them on the horses.
The FEI argued that imposing provisional suspensions on horses in banned substance cases was legal, justified and proportional. It was, it said, fundamental to protect the welfare of the horse and to ensure a level playing field.
The court, in its decision, said the FEI had pushed four avenues in its defence of the provisional horse suspensions: Protection of the horses’ welfare, ensuring a level-playing field, deterrence, and damage to the image of the sport if previously doped horses could compete.
“The panel accepts that the first of those reasons would be sufficient in itself; and the second likewise.
“As to the third, it does not understand why the risk of provisional suspension should add to the deterrent effect of other long-term sanctions for an adverse analytical finding.
“As to the fourth, unless previously doped horses were banned from competition for life, they would compete at some time in the future.”
The arbitrators continued: “The panel is ultimately satisfied on the basis of the available documentation, enhanced by the presumption of regularity, that the policy had and was created by the respondent in pursuit of a legitimate aim.
“All anti-doping regulations seek to ensure a level playing field, that is to say (materially) one on which a participant (human or horse) gains no unfair advantage from prohibited substances, as well as to protect their health.”
Preserving the welfare of the horse was enshrined in the FEI Statutes, the court noted.
“Horses, unlike humans, cannot themselves take care to avoid the ingestion of prohibited substances. The welfare and health argument has a proper and particular resonance in their case.”
The panel said it accepted the FEI’s argument that an off the peg (one size fits all) rather than a bespoke solution is required because of the range of equine sports, the variety of substances prohibited in them, the permutations of their administration, and the differences in their potential impact.
“The means to promote the legitimate aims described – a minimum blanket two-month suspension – are in its view proportionate, even if in consequence there are cases where it can or could be shown that in the particular circumstances any residual effect of the substances . . . has disappeared at some time before the end of that period . . .”
The court noted that the appeal was the first time that the decision of the FEI Tribunal to maintain a provisional suspension on a horse had reached the CAS.
The appellants’ action was essentially a challenge to the policy itself, it said.
The court ruled that the circumstances relied upon by the appellants could not properly be regarded as “exceptional”.
The panel said it recognized that applying the policy across the board would inevitably give rise to cases where horses are suspended from competition where the effect of the prohibited substance will have spent itself before the expiry of that period.
If that was the test, it had the potential to render the policy all but inoperable, with the FEI potentially swamped by applications to lift provision suspensions on the basis that the horse was clear of the drug, its welfare was not compromised, and it had no competitive advantage.
“As the respondent (FEI) pithily put it, ‘The policy is not perfect; but it is fair’.
“The panel notes that the respondent has sensibly acknowledged that, it would serve no useful purpose to have the horses complete their period of provisional suspension of 17 days when the effect of the ractopamine is by now, on any view, spent.
“The panel itself endorses their stance. Accordingly, the panel partially upholds the appeal even if the full frontal challenge to the two-month policy fails.”
FEI Secretary General Sabrina Ibáñez said after the release of the decision: “We are delighted to have received such a clear endorsement of the FEI’s policy on equine provisional suspensions from the Court of Arbitration for Sport.
“Horse welfare is always top of the agenda for the FEI and the mandatory two-month provisional suspension of horses in banned substance cases is an important measure to ensure that the welfare of our equine athletes is not compromised.”
Proceedings on the merits of Ms Lyle’s and Ms Blythe’s cases are ongoing before the FEI Tribunal and, in order to maintain the integrity of these proceedings, the FEI will not comment further on the ongoing cases.
The full court decision can be read here.