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All eyes will be on the disgraced American sprinter Tyson Gay tomorrow as he returns to elite athletics at the Lausanne Diamond League meeting, only one year after testing positive for deliberate anabolic steroid use.
His early return is controversial, and comes amid accusations that the US Anti-Doping Agency was unduly lenient when deciding to halve the suspension which would otherwise have been imposed. We consider in this briefing the USADA's reasons for its approach.
Tyson Gay is the second fastest 100m runner in history, and a former 100m and 200m world champion. He tested positive for anabolic steroid use on three occasions in 2013, and has since admitted that he first used a prohibited substance on 15 July 2012 – just days before competing in the London 2012 Olympic Games.
Given the nature of the substance found in Gay's system – an anabolic steroid – there is no suggestion that he used it without knowing that it could unfairly enhance his performance. The standard sanction for an intentional doping offence such as this is a 2-year suspension.
However, USADA has exercised its discretion to halve the usual sanction. This has been met with unease from many in the athletics community, who feel that the sanction does not reflect the seriousness of Gay's offence and that the permissive approach damages the image of the sport.
There is also concern that the penalty is inconsistent with the decision of the Jamaica Anti-Doping Commission to impose a longer (18-month) ban on fellow sprinter Asafa Powell, when the case against Powell was that he negligently - as opposed to intentionally - ingested a supplement which contained the stimulant oxilofrine. According to the World Anti-Doping Authority, there is a greater likelihood that there is a credible non-doping explanation for the ingestion of such a stimulant, and should be greater scope to reduce the sanction imposed. Asafa Powell has now filed an appeal against his ban with the Court of Arbitration for Sport.
The explanation given
USADA said this on 2 May 2014:
"Upon receiving notification of his positive tests from USADA, Gay voluntarily removed himself from all competition prior to the 2013 World Championships and has not competed since that time. On the same day that Gay was notified of his positive test result, he agreed to assist USADA in its investigation of the circumstances of his positive tests. Gay provided substantial assistance as outlined in the WADA Code including being interviewed on several occasions by USADA and providing all of the products he was using at the time of his positive tests.
Gay accepted a one-year period of ineligibility which began on June 23, 2013, the day his sample was collected at the USA Outdoor Track & Field Championships. For providing substantial assistance to USADA; Gay was eligible for up to a three-quarter reduction of the otherwise applicable two-year sanction under the Code (or a six-month suspension). Gay’s sanction is subject to appeal by the IAAF and by the World Anti-Doping Agency.
Gay has also been disqualified from all competitive results obtained on and subsequent to July 15, 2012, the date he first used a product that contained a prohibited substance, including the forfeiture of all medals, points, and prizes. Gay has already returned his Silver Medal in the men’s 4x100m relay from the 2012 London Olympic Games, which is now in the possession of the United States Olympic Committee."
A lawyer's perspective
(i) The phrase "substantial assistance" has a very specific legal meaning. It is a reference to Article 10.5.3 of the WADA code, which allows anti-doping organisations such as USADA to reduce a sanction by up to three-quarters where an athlete's cooperation "results in the anti-doping organisation discovering or establishing an anti-doping rule violation by another person".
We can infer from the USADA's announcement that Tyson Gay is in the process of whistle-blowing, and that the reduction in his sanction is effectively a reward for the provision of intelligence about the anti-doping rule violations of others.
This would be consistent with Gay's own tight-lipped approach to the case; despite relying on the explanation that "I basically put my trust in someone and I was let down", he has refused to identify the person concerned. This secrecy could help to protect the integrity of an investigation into another potential offender.
(ii) The burden on the athlete is not insignificant, requiring him to "(1) fully disclose, in a signed written statement all information he or she possesses in relation to anti-doping rule violations, and (2) fully cooperate with the investigation and adjudication of any case related to that information, including, for example, presenting testimony at a hearing if requested to do so…"
(iii) Another provision which may have come into play is Article 10.5.4 of the WADA code. This grants a discretion to reduce a suspension by up to one half where an athlete voluntarily admits the commission of a rule violation if, otherwise, the anti-doping organisation would have been unaware of the offence and unable to prove it.
USADA do not specifically say in their statement that there has been an exercise of discretion under this heading. However, given that Gay has accepted that he must return his London 2012 silver medal despite the incriminating test data emerging only in July 2013, this suggests that he has made a voluntary admission which could trigger eligibility for a reduction in sanctions.
It is unfortunate that the rationale behind the USADA's approach remains opaque, even if that is a necessary precaution. The public is not yet in a position to judge whether the "deal" struck with Gay justifies the apparent leniency of the USADA's treatment of him. Indeed, there is a real risk that many will not appreciate that Gay's "substantial cooperation" may take the form of whistle-blowing, as opposed to cooperation with the investigation into his own case. In the meantime, in the absence of greater transparency, they are left free to speculate about the level of institutional tolerance in the US for a confirmed drug cheat.
There is, however, little doubt that encouraging whistle-blowing serves a valuable purpose. This is evident not least from the case of Lance Armstrong, whose long-standing drug taking would not have come to light were it not for evidence from various witnesses who came forward to testify against him.
This appears to be a priority for WADA, which will introduce an amended code on 1 January 2015 which gives WADA the discretion, in exceptional circumstances, to go beyond the powers of the national anti-doping organisations and grant a full amnesty to athletes who provide "substantial cooperation". It gives whistle-blowers further comfort by preventing other organisations from appealing against a reduction in sanctions where the athlete has entered into a substantial cooperation agreement with WADA. Additionally, in "unique circumstances" WADA has the power to protect the athlete further by entering into confidentiality agreements.
It appears that the IAAF and WADA have decided not to appeal against the USADA's decision.
If you require further information on anything covered in this briefing please contact Kate Allass (email@example.com; 020 3375 7220) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports Group page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2014
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