In this decision, university football player Malcolm Lee (Athlete) sought a reduction of the mandated four-year period of ineligibility imposed by the Canadian Anti-Doping Program (CADP) Rules as a result of an anti-doping rule violation (ADRV). The arbitrator held that the Athlete failed to establish that his consumption of the prohibited substance SARM LGD-4033 metabolite was not "intentional" as per the CADP Rules. Therefore, the Athlete's four-year suspension was not reduced.
In March 2019, the Athlete provided a urine sample indicating the presence of a World Anti-Doping Agency (WADA) prohibited substance, SARM LGD-4033 metabolite (prohibited substance). The Athlete asserted that the ADRV resulted from his consumption of a supplement called NuEdge Extra Fire (NuEdge).
According to the Athlete, he had purchased the product from a teammate who had obtained it over-the-counter. The Athlete explained that he searched for more information about the product on the Global DRO website and CCES banned substances list. He found nothing to indicate that NuEdge contained a prohibited substance. Both the Global DRO and CCES websites warn athletes of the risks associated with consuming dietary supplements. In spite of this, according to the Athlete's testimony, he relied on his teammate and the label on the package, and was therefore unaware that NuEdge contained the prohibited substance.
Two different samples of the pills were tested and the subject of two expert reports filed by CCES. These two reports concluded that because only 1.1 micrograms were present in the first sample versus 24-27 milligrams present in the second sample:
- The products sent for testing to each lab were not the same; and
- While results in the first sample might have been contaminants, results in the second sample were too high to be contaminants.
The reports further concluded that the results were inconsistent with the Athlete's statement that he had last consumed the substance 76 days before collection, as it was unlikely that the prohibited substance would have remained detectable after 76 days.
The arbitrator applied the CADP Rules, which provide:
- An ADRV can be established without demonstrating intent, fault, negligence or knowing use on the Athlete's part (Rule 2.1.1);
- The burden of proof lies on the Athlete to rebut a presumption or establish facts on the balance of probabilities (Rule 3.1); and
- Where the ADRV does not involve a Specified Substance, the period of ineligibility shall be four (4) years unless the Athlete can prove that the ADRV was not intentional (Rule 10.2.1).
The CADP Rules define "intentional" to mean, "the Athlete ... engaged in conduct which he or she knew constituted an [ADRV] or knew that there was significant risk that the conduct might constitute or result in an [ADRV] and manifestly disregarded that risk (Rule 10.2.3)."
Further, in order to receive a reduced ineligibility period, the Athlete's conduct must fall within Rule 10.5. Because the prohibited substance was not a "Specified Substance" pursuant to Rule 10.5.1.1, the only provision that would apply to the circumstances with a reduced two-year ineligibility period was Rule 10.5.1.2 "Contaminated Products". This Rule applies only where the "detected Prohibited Substance came from a Contaminated Product." Further, according to Rule 10.5.2, to fall within the Contaminated Product exception, an athlete must establish that he or she "bears No Significant Fault or Negligence". The arbitrator reasoned that the Athlete would have to establish, on a balance of probabilities, that (1) the ADRV was caused by his consumption of a contaminated product; and (2) if so, the consumption of the prohibited substance was not intentional.
Based on Professor Ayotte's opinion that it was highly unlikely that the substance would remain detectable after 76 days, regardless of the potential range of potency of the prohibited substance, the arbitrator did not accept the Athlete's assertions that the prohibited substance came from NuEdge. In the alternative, he reasoned that even if it did come from NuEdge, the Athlete was reckless in ignoring the posted warnings, and choosing to rely on his friend and the label on the packaging instead. As such, it could not be said that the Athlete's consumption of the prohibited substance was "not intentional", since the definition of "intentional" includes a manifest disregard of a "significant risk" that certain conduct might result in an ADRV.
The arbitrator ruled that the Athlete failed to establish that he was entitled to a reduction in the mandated four-year ineligibility period.
This decision clarifies the high threshold required for an athlete to prove that their consumption of a prohibited substance was not "intentional" as per the CADP Rules. Consuming a supplement with the knowledge of the risk that it may contain a prohibited substance seems to be enough to constitute intention in this context. An athlete cannot simply rely on the label or knowledge of their peers, although the decision seems to suggest that consultation with a coach could be persuasive. Athletes must take active steps to ensure that any supplements they consume do not contain a prohibited substance. Where an athlete cannot conclude that the supplement does notcontain a prohibited substance, they should heed the warnings on the CCES and Global DRO websites, or consume it at their own risk.
A special thank you to Alexandra Terrell (student-at-law) for her assistance with this article.
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