The legal battle - how law undermines the openness of science
All of which brings me to my main opinion/insight on these matters. The fact of the matter is, as anti-doping becomes more sophisticated, it becomes more and fraught with the burden of scientific “proof”. The reality is that science is open, it asks questions and only answers some of them! It is rarely black or white, and the problem with this is that legal teams, armed with scientific experts of their own, can always, without fail, cast doubt on scientific findings.
To me, the findings of abnormal reticulocytes and hemoglobin concentration points very strongly to a likelihood of transfusion. It doesn’t prove it - the biological passport cannot prove anything in that way, and it has been designed like this to protect cyclists against false positive tests. However, it points there, and so when a tribunal, dealing with the same evidence I’m seeing, concludes that a transfusion is “very unlikely to have occurred”, I’m left mystified at their thought-processes. At worst, they can conclude that a “transfusion is possible, but cannot be upheld given the physiological complexity of blood parameters”.
A declaration like that (“very unlikely to have occurred”) is definitive, it is black and white. Science is grey, and so the two, science and law, seem to be very uneasy bedfellows
the flip side is the hubris of science. before spencer smith was nabbed for 19-norandrosterone, it was categorically stated by the anti-doping experts (science) that the talk of threshold amounts was silly. the ITU, in its dogged pursuit of smith, was of that view. from the article i wrote contemporaneous with the case:
*According to the IOC medical commission, there is ample evidence humans do not synthesize nandrolone or its metabolites at all, notwithstanding some views to the contrary. It was the possibility that the body can generate or naturally ingest nandrolone, up to 5 ng/ml, that was significant in the Court of Arbitration for Sport’s (CAS) decision to deem World Duathlon Champion Olivier Bernhard’s 2.5 ng/ml result of two years ago a potential “false positive.” But Sisson questions that premise. “I know of many medical and scientific experts who will say nandrolone cannot be generated naturally by the human body. I’m aware of only one who says it can, and that one seems to have been part of the basis for the CAS’ overturning of Bernhard’s case.” *
we know how the posture toward nandrolone has changed since then, and the caveats, thresholds, and whatnot that attend an adverse finding of nandrolone.
this is one of several examples i can think of where the straightforwardness of science got properly adjusted only through the intervention of advocates that questioned the science.
i rather like the hubris of science and the hubris of law counterbalancing each other. i’d never want one to exist without the pestering influence of the other.
Has the posture of nandrolone, by science, changed? Has it been demonstrated that humans can synthesize it? Or did the defense lawyers just win the argument legally?
serious question, I do not know the history of this.
i don’t get the sense that WADA is cowed by lawyers. i know with certainty that USADA is not, because it’s run by a lawyer who sees no liability at all attaching to any decision USADA makes, according to my most recent interview with him.
SLOWTWITCH: In such case as an age-group athlete, or his organization, company, employer, sues USA Triathlon for damage to income and/or reputation as a result of what he feels is an errant results management process, what is USADA’s posture toward any such civil suit? Does USADA hold USAT harmless? Does it defend, or pay the cost of defense, in such litigation?
TRAVIS TYGART: All it takes is 125 dollars and a signature and you can file a lawsuit. But any lawsuit like that would be totally frivolous and without cause. There is no basis for a lawsuit if we followed our process. has never happened in 11 years.
accordingly, i see no reason why WADA would impose threshold limits to nandrolone absent sound scientific reasons for doing so. but it’s not just that. it’s the occasional presence of metabolites in the samples themselves, depending on how they’re handled during transport to testing.
sometimes you just find things out down the road that are not contemplated earlier in the process. like unexpected T:E ratios. it’s not a lot different than bike engineers making products, but, then you send 40 or so out to see if they function right, or if they fail in the field. that’s reality checking science. it’s no slam on science. it’s just that you can’t decide every question in the universe with a slide rule. but, we’d be up spit creek if we had no slide rules. we need science + an appreciation of the power of chaos and uncertainty. that’s why god invented the product recall.
I can certainly appreciate that physiology is complicated and weird stuff happens, we are all unique mutant flowers.
I was just curious about Nandrolone specifically, and whether it really has been shown that any human ever produced that naturally. Those limits could still be rational “just in case” even if it has not been shown.
sometimes you just find things out down the road that are not contemplated earlier in the process. like unexpected T:E ratios. it’s not a lot different than bike engineers making products, but, then you send 40 or so out to see if they function right, or if they fail in the field. that’s reality checking science. it’s no slam on science. it’s just that you can’t decide every question in the universe with a slide rule. but, we’d be up spit creek if we had no slide rules. we need science + an appreciation of the power of chaos and uncertainty. that’s why god invented the product recall.
i don’t have time to do a pubmed search and sift through the studies, and i don’t remember what i used to know about the state of the science on nandrolone. i just find it unlikely that WADA would change its view on nandrolone thresholds because it felt it’s losing a battle in the court of public opinion.
Recent scientific research suggests that, in very rare cases, and under certain special conditions, a chemical reaction may occur in a vial containing urine. This phenomenon is described as “unstable urine.”
This phenomenon is brand new. In the last months, a few WADA-accredited laboratories noticed never-before-seen abnormal steroid profiles in rare urine samples containing nandrolone. They investigated further and alerted WADA about this new phenomenon.
Subsequently, WADA has instructed all accredited labs to perform “stability tests” on urine samples with nandrolone concentration from 2 to 10 ng/ml that show abnormal steroid profiles (see criteria in the attached scientific memo). Should the “stability test” reveal “unstable urine”, the laboratories won’t have to report an adverse analytical finding.
At the same time, WADA is supporting a research project to better understand the chemical process creating this new “unstable urine” phenomenon.
What bothers me is that WADA seems to becoming a anti athlete organization vs an anti drug organization. WADA should be neutral. If an athlete doped, and they can prove it that athlete should be sanctioned. But if their is cause to be believe the athlete may not have doped, I think the athlete should be given benefit of that doubt.
As an example when Contador tested positive I thought WADA released statements to the effect that ingesting tainted meat wouldn’t cause a positive. This was rather quickly followed up by all sorts of athletes eating tainted meat and testing positive. I find that very disturbing.
What bothers me is that WADA seems to becoming a anti athlete organization vs an anti drug organization. WADA should be neutral. If an athlete doped, and they can prove it that athlete should be sanctioned. But if their is cause to be believe the athlete may not have doped, I think the athlete should be given benefit of that doubt.
As an example when Contador tested positive I thought WADA released statements to the effect that ingesting tainted meat wouldn’t cause a positive. This was rather quickly followed up by all sorts of athletes eating tainted meat and testing positive. I find that very disturbing.
Agreed. I also find it quite unfortunate that the deck seems very, very heavily stacked against any athlete who tests positive. Especially as some of the science underpinning certain parts of the WADA code come to light. The Zach Lund story is the most disturbing that I know of - propecia was added to the banned list as a masking agent because of a single study involving seven participants. Now, it’s obviously Lund’s fault for not checking to see that it was added to the list, but the fact that it was added to the list is a bit ridiculous. I’ve read some fairly compelling articles online that make it clear that many of the tests that WADA seems to present as black and white are not quite as accurate as they seem. The history regarding nandrolone is, I think, representative of the posture WADA regarding tests and athletes. I know of several athletes that feel that Dick Pound seems to exude an attitude that ALL athletes are dopers, and he’s out to get every single one of them. I can appreciate that, in general, most of the time when an athlete tests positive, he/she actually have turned out to have taken drugs, but I think the system is set up to definitely NOT give athletes the benefit of the doubt. I am not saying there needs to be a presumption of innocence, but I do think a presumption of neutrality would be better than what seems to be a presumption of guilt.
As with most things, there seems to be a lot more politics than anyone wants to admit to…
"Fifa has revealed that an astonishing 109 positive tests were recorded for the banned drug out of 208 urine samples taken during the tournament.
The statistics are so extraordinary that both Fifa and the World Anti-Doping Agency (Wada) have confirmed they will not be prosecuting any cases, blaming the failed tests on contaminated meat.
Mexican authorities admit the country has a major problem with farmers feeding clenbuterol to livestock to produce leaner, more valuable meat.
Based on what it describes as Fifa’s “compelling evidence”, Wada has also dropped its appeal against the decision of the Mexican football federation not to sanction five senior Mexican players who tested positive for clenbuterol at the Concacaf Gold Cup in June. "
"Five Mexican soccer players tested positive earlier this year for clenbuterol.
WADA said Wednesday it had dropped its appeal at the Court of Arbitration for Sport in Switzerland, where it had planned to challenge the Mexican Football Federation’s decision clearing the players of doping."
If you are found to have a banned substance in your system then you are guilty regardless of your intent. It’s the legal priciple called strict liability. From WADA:
“The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.
It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.”
There is also flexibility in sanctioning based on the circumstances, such as inadvertantly ingesting a banned substance. Sometimes this argument can avoid a ban or lesson the sanction, and sometimes it doesn’t work even if the defense is very credible. And it sounds like in Mexico they just decided not to prosecute based on the flexibility in the system.
I also find it quite unfortunate that the deck seems very, very heavily stacked against any athlete who tests positive.
On the flip side, though, the deck is very, very heavily stacked in favor of dopers who don’t test positive. My point being that there has been compelling testimony by lab insiders that there are tons of tests where they know the athlete doped, but since the athlete (and his doctors) are smart, they manage slip just underneath the published levels. This has, maybe, been mitigated through the “passport” protocol, but certainly not eliminated.
I can sympathize with Dick Pound if he sees that 33 guys were almost certainly doping at the Tour, and then the one guy who actually tests positive gets off because someone proves it’s theoretically possible to metabolize the substance in rare conditions.
One possible solution would be to have WADA make the results completely transparent. Publish all raw test results. I imagine there’d be some self-policing within the athlete community once suspicious patterns became public, and not just the domain of insiders. The risk is someone, with, say, naturally high hematocrit being unfairly attacked in places like this forum.
Adding glycerol to the banned list caught me by surprise, and I’ve never read any justification for it.
When thresholds are in place, they are sometimes set extremely low - something on the order of 100mcg has been show to be performance enhancing, but WADA set the threshold at 5mcg.