7 July 2000Monte CarloThe reinstatement of the Jamaican athlete Merlene Ottey by the IAAF Arbitration Panel following an adverse finding for Nandrolone, has occasioned a number of speculative reports in the media and many requests for further information from all parts of the World Athletics Family. In the interests of information and transparency, the IAAF has decided to release the full text of the decision of the IAAF Arbitration Panel, which under the terms of the IAAF Constitution is final and binding on all parties.
"In the matter of an arbitration initiated by the International Amateur Athletic Federation (IAAF), Applicant, under IAAF Rule 21 para 3 (ii) in a case where a member of the IAAF, the Jamaican Amateur Athletic Association (JAAA), Respondent, has held a hearing under IAAF Rule 59 "Disciplinary Procedures for Doping Offences" and the IAAF believes that in the conduct or conclusions of such hearing JAAA has misdirected itself or otherwise reached an erroneous conclusion.
Whereas: A dispute between a Member and the Council of the IAAF may be submitted to the Arbitration Panel in a matter where a Member has held a hearing under Rule 59 in a doping offence and the IAAF believes that in the conduct or conclusions of such hearing the Member has misdirected itself or otherwise reached an erroneous conclusion (Rule 21 para. 3 (ii)); The JAAA is a Member of the IAAF and has held a hearing in Ms. Merlene Otteys case and the IAAF Rules are the valid rules to be applied in this case, when a doping test has been undertaken; By Statement in support of its Reference dated 29 April, 2000 under cover letter of 4 May, 2000 the IAAF Council referred to the Arbitration Panel the matter of the decision of the JAAA of 7 December, 1999 to exonerate Merlene Ottey of a doping offence, based on the conclusion inter alia that on the material adduced before it, the scientific evidence does not support an exogenous source of the metabolites detected in the urine samples; accordingly, the JAAAs tribunal was not sure that the substance reported was ingested by her and not produced endogenously.
Now we Christoph Vedder, chairman, Monty Hacker and Judge James Murphy, being the Arbitrators appointed from the Panel elected pursuant to the IAAF Rules,
Having taken note of the said Referral to Arbitration, the Statement of IAAF in Support of its Referral, the Response of both JAAA (dated 8 June, 2000) and of Ms. Merlene Ottey (dated 29 May, 2000) and the documents and references in the bundles collected by both IAAF and JAAA and on behalf of Ms. Merlene Ottey,
Having held a hearing on 16 and 17 June, 2000 and heard the various submissions made by Counsel on behalf of IAAF and JAAA and Merlene Ottey:
The Hon. Michael Beloff Q.C. assisted by Mark Gay Esq. and
Ms. Karen Langlois appeared for IAAF.
The Hon. Charles Flint Q.C. appeared for JAAA
Dr. Lloyd Barnett appeared for JAAA
Dr. Stephan Netzle appeared for Ms. Merlene Ottey
And having heard the following experts:
- On behalf of the IAAF:
Dr. Martial Saugy
- On behalf of Ms. Merlene Ottey:
Dr. Simon Davis
Dr. John Honour
Do hereby make this decision: On 5 July 1999, Ms. Merlene Ottey, an athlete under the jurisdiction of IAAF, was subject to a post-competition test in a meeting organised by the European Athletic Association, an Area Group, in Lucerne, Switzerland. The "A" sample was analysed at the IOC Accredited Laboratory in Lausanne, Switzerland on 9 July, 1999 and showed the presence of 19-norandosterone (NA) in a concentration of 15ng/ml and of 19-noretiocholanolone (NE) in a concentration of 10ng/ml. These two substances are metabolites of nandrolone. On 2 September, 1999 at the Lausanne laboratory analysis was conducted on the "B" sample obtained from Ms. Ottey. This analysis was attended amongst others by Mr. Daniel Zimmerman representing the athlete, The results of the "B" sample analysis also showed the presence of ± 14ng/ml of 19-NA and ± 11ng/ml of 19-NE. The results of the "B" analysis confirmed those of the "A" analysis and therefore Ms. Merlene Ottey was suspended pending a hearing before JAAAs relevant tribunal. This tribunal heard the case on 30 November, 1999. A written judgement was produced on 2 December, 1999 which was formally ratified by a decision of JAAAs Executive Board on December 7. It was determined that Ms. Merlene Ottey had not committed a doping offence and therefore her suspension was lifted. The JAAA based its decision primarily on the arguments that the JAAA had failed to prove that the sample tested positive had derived from Ms. Ottey and that the chain of custody had been established and that as IAAF Rules did not create an absolute offence, the burden lay upon the JAAA to establish an exogenous source for the finding of the prohibited substance. On the basis of the evidence it received, the tribunal decided that it could not be sure that the substance detected was ingested by Ms. Ottey rather than being produced endogenously. By decision of 12 February, 2000 the IAAF Council suspended Ms. Merlene Ottey by virtue of Rule 59.2 as amended. During the hearing, several applications were made. Following presentation of the opening statements by Counsel, the Arbitration Panel having considered the suggestions put before it issued the following decision concerning the admissibility of the reference and other preliminary matters. The referral to Arbitration made by IAAF received by the Chairman of the Arbitration Panel on 4 May, 2000 is admissible. Applying the rule of lenity in favour of the respondent and the athlete the latest application of the Rule change from 3 to 6 months would be 1 January, 2000, the date of the publication of the new Handbook. However, the JAAA was aware of the rule change from three to six months prior to the hearing in December as shown by their representation at Congress on August 17 19, 1999, when the change was adopted as shown by the Minutes. The rule change was outlined in the IAAF Newsletter of September 1999, sent to all Member Federations. Under these circumstances, the Arbitration Panel invokes Rule 21.1 sub para. 2 which allows it to accept the referral considering it to be fair and reasonable. The alleged improper contact between IAAF and the athlete has no relevance to the issue of the admissibility and under Rule 55.11 it casts no doubt as to the reliability of the finding that a prohibited substance may be present in a sample. The point of waiver attributed to the non-attendance by IAAF at JAAAs hearing is rejected as having no substance. The Arbitration Panel states that this is a hearing de novo. During evidence, the only persons who may be present are the parties and their representatives and in the case of expert evidence, the opposing partys experts. The Arbitration Panel invites the parties to address them further if they consider it necessary on the issue of burden of proof. Upon resumption of the hearing, IAAF applied for an adjournment to secure the attendance of their expert witnesses. Having considered the arguments put forward by both parties the Arbitration Panel issued the following decision: The application is denied as far as the matter of endogenous production is concerned. The issue of possible endogenous production of nandrolone or its metabolites was raised in JAAAs decision of 7 December, 1999 and was addressed in IAAFs statement in support of the referral to arbitration dated 29 April, 2000. It appears that the issues of "innocent substances" and the interaction of several causes, have not been previously addressed and therefore, if the Respondent wishes to adduce evidence on the subject, the IAAF will be afforded a postponement to allow to respond.
The Respondent and the representative of Ms Ottey declared that they do not continue to rely on the subject matter of "innocent substances" understood by common agreement as substances taken through exogenous administration. At the continued hearing, IAAF made an application to allow Prof. Hemmersbach to give testimony by the production of a paper he had written himself and by means of a telephone conference. The Arbitration Panel dismissed the application. The respondent and Merlene Otteys Counsel went on record and stipulated to acknowledge the chain of custody, the propriety of the collection procedure, the testing of the sample and the findings of the laboratory in respect thereof as well as the identification of the source of the sample as derived from Ms. Ottey. The parties agreed that the specific gravity readings and the nanogramme readings and the laboratory reports for the "A" and "B" samples were not disputed. What was challenged was the method of interpretation of these readings, regard being had to the degree of degradation of the samples between the times of voiding and the "A" and "B" sample laboratory analyses respectively. In terms of Rule 55.2 (i) as read with Rule 60.1 (i) a doping offence occurs when a prohibited substance is found to be present in an athletes body tissues or fluids. Nandrolone and its chemically or pharmacologically related compounds is a prohibited substance as provided for in Rule 55.3 as read with Schedule 1, Part I(a)(i) of the Procedural Guidelines for Doping Control. According to Rule 55.6, "prohibited substances" shall include metabolites of their substance. However, Rule 55.2 (i) does not distinguish between exogenous administration and endogenous production of a prohibited substance. According to and applying Rule 59.5, the IAAF has the burden of proving beyond reasonable doubt that a doping offence has been committed. Hence, the Rules do not require that IAAF (or in the case under consideration the JAAA before its relevant tribunal) has to prove that the prohibited substance was exogenously administered. The decision of JAAAs Tribunal is based on a wrongful construction of the pertinent rules. Merlene Ottey disputed that she had committed a doping offence and contended that the level of 19-NA found in her samples was produced endogenously. A growing body of evidence suggests that 19-NA is naturally present in low but clearly detectable concentration in the urine of men and women. This concentration appears to be greater in women generally and particularly if pregnant or in their menstrual cycle. It is undisputed that Ms. Ottey was mid-cycle at the time of the Lucerne Meeting. This time is the most fertile in terms of hormone production. Neither the Rules nor the Procedural Guidelines for Doping Control consider the existence of naturally produced nandrolone or its metabolites. If the Arbitration Panel were to apply the Rules as they presently stand, the IAAF would have proved, beyond reasonable doubt that a doping offence has been committed. However, the panel considered the impact of naturally produced nandrolone and its metabolites and found that a lacuna exists in Schedule 1 Part I (a) of the Procedural Guidelines for Doping Control as read with Rule 55.2 (i). It is because the rules as read with the Procedural Guidelines for Doping Control provide, in the case of the endogenous production of testosterone beyond normally acceptable limits, a procedure designed to avoid prejudicing the athlete. By analogy and in fairness to the athlete the Arbitration Panel invokes and applies the underlying principle applicable to testosterone to the issue of nandrolone. As stated, the IAAF bears the burden of proving all the elements of the offence beyond reasonable doubt. To do so, it must prove that that the quantity of 19-NA found in Merlene Otteys samples so exceeds the range of values normally found in humans as not to be consistent with normal endogenous production. Had it done so, Merlene Otteys samples would be deemed to be positive and it would then become the burden of the athlete to prove by clear and convincing evidence that the quantity of 19-NA found is attributable to a pathological or physiological condition. Therefore, the construction of the Rules and Guidelines as relied upon by the tribunal of the JAAA and on behalf of Ms. Ottey cannot be sustained. It was the IAAFs contention that the "A" sample showing 15ng/ml of 19-NA exceeds normal endogenous production. Also noted was the Nagano study carried out at the Nagano Olympic Games on 251 women athletes following competition, none of whom produced a 19-NA sample in excess of 5ng/ml. This and other evidence suggest an upper limit for endogenous production of 19-NA by non-pregnant women of 5ng/ml. The IOC produced a document for the guidance of accredited laboratories, entitled "Analytical Criteria for Reporting Low Concentrations of Anabolic Steroids" (August 1998), which was introduced into evidence by the parties at this hearing. The document recommends that a report should not be issued for non-pregnant females if the concentration in the test sample is less than 5ng/ml. It also recommends that adjustment of the reporting concentration must be made if the specific gravity of the urine sample is greater than 1.020. If so, the IOC recommends increasing this minimum with regard to the amount by which the specific gravity of the urine sample exceeds 1.020. This is recommended as the IOC recognises that among other factors, during intense physical activity a degree of dehydration may occur, causing urine to become concentrated. This may increase the measured concentration of excreted substances, possibly up to fourfold. The James Report, a report to the UK Sports Council from the Expert Committee, dated 18 January, 2000 referred to by all parties at this hearing, approves of this IOC recommended procedure as the most appropriate method of correction when necessary. On 5 July, 1999 Ms. Ottey competed in both the 100m and 200m events in less than 90 minutes on a day that produced a temperature ranging from 25.5 28 C between the hours of 13h00 and 19h00. She had travelled to the meeting by air carrier. All factors tend to support a finding of urine concentration due to some dehydration justifying a specific gravity reading of 1.025 when her sample was collected at the time of the voiding. Applying the correction recommended by the IOC and as approved by the James Commission, the urinary 19-NA concentrations detected equalled an average of 4.53 ng/ml of urine which does not exceed the IOC suggested reporting threshold of 5ng/ml for non-pregnant females. Thus Ms. Otteys urine failed to display the characteristics of a sample from an athlete who has exogenously administered nandrolone or its metabolites. In applying the principles enunciated above, IAAF has failed to prove beyond reasonable doubt that the quantity of 19-NA found in the Merlene Otteys samples exceeds normal endogenous production. According to the evidence and the literature placed before the Arbitration Panel, it is generally accepted that a finding of higher than 5ng/ml is not attributable to normal endogenous production. Nevertheless, the same scientific literature, including the IOC recommendation accepted by the parties, provides the correction formula mentioned in paragraphs 18 and 20. The parties also accepted that the specific gravity dipstick reading (as converted) would fall below 5ng/ml, if it were to be corrected. Under these circumstances, the issue the Arbitration Panel had to determine was which specific gravity reading to rely upon, either the reading taken at the time of the voiding of the sample (1.025), or the later readings at the time of laboratory testing (1.019) for the purpose of triggering the correcting formula. The Arbitration Panel found that the correct specific gravity reading to accept would be that taken at the time of voiding, which would thus trigger the application of the correction formula. As a consequence, the Arbitration Panel accepts that the adjusted 19-NA reading falls below 5ng/ml and therefore would not require the reporting of the finding of a prohibited substance. In any event, the IAAF failed to discharge its burden of proving, beyond reasonable doubt, that for the 19-NA reading to be at 15ng/ml, the time for the determination of the specific gravity had to be the time of the laboratory testing and not at the time of voiding. Therefore the IAAF has failed to discharge its burden of proof that a doping offence has occurred beyond reasonable doubt. The JAAA and Merlene Ottey have each made application to the Arbitration Panel for an award of costs and disbursements occasioned by the IAAF referral to arbitration. We find that because the parties each prevailed in part and failed in part, it is equitable that each party bears its own costs. We therefore decide: That the referral to arbitration is dismissed; That in terms of Rule 59.2 as amended, the suspension of Ms. Merlene Ottey expires upon the delivery of this decision; That as each of the parties have prevailed in part and failed in part, it is equitable that each party bears its own costs. "
Christoph Vedder - Monty Hacker - James Murphy
July 3, 2000