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Cobalt Appeal Upheldpage  1 2 

Carly Absalom
Australia
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17 Apr 2019 05:55


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EXTERNAL LINK
My understanding is that GRNSW did not contest the appeal.

Not sure what this means for past and future cobalt cases.





Kevin Wright
Australia
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Posts 4985
Dogs 1 / Races 1

17 Apr 2019 06:15


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Carly Absalom wrote:

EXTERNAL LINK
My understanding is that GRNSW did not contest the appeal.

Not sure what this means for past and future cobalt cases.


Interesting result ..

I think it's about to effect a lot more people ....




Russ Forno
Australia
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17 Apr 2019 07:35


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Reads like the animal ate some soil and " the boffins" are not sure if Cobalt is a prohibited substance !! Dills, covering their tracks.


Michael Barry
Australia
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Posts 7052
Dogs 26 / Races 9

17 Apr 2019 11:14


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so why isnt all their sh*t rules challenged in all states ,

looks to me like they the PTB never win a case when challenged ,



Kevin Wright
Australia
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Posts 4985
Dogs 1 / Races 1

17 Apr 2019 11:53


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Michael Barry wrote:

so why isnt all their sh*t rules challenged in all states ,

looks to me like they the PTB never win a case when challenged ,


Mick so it seems ...It is now looking like the PTB except there are flaws in the current way we test each animal as you know it's in our environment and in our food chain ..

There is no Court in this land that the PTB can win in and they know that...

Mick what do you think about
Peptides..

They are flooding into Australia and no one gives a sh1t ...
ITPP is undetectable
Altitude O2 is undetectable ..

And the PTB are worried about Cobalt and Arsenic this is bullsh1t

The Horse industry has and always will be corrupt....

The Horse Industry is flooded with hundreds of different peptides but the PTB continue to ignore this WHY ..




Charles W Mizzi
Australia
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Posts 633
Dogs 1 / Races 1

18 Apr 2019 00:45


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Russ Forno wrote:

Reads like the animal ate some soil and " the boffins" are not sure if Cobalt is a prohibited substance !! Dills, covering their tracks.


I cannot find the official write up or the October hearing?


Michael Barry
Australia
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Posts 7052
Dogs 26 / Races 9

18 Apr 2019 00:51


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Russ Forno wrote:

Reads like the animal ate some soil and " the boffins" are not sure if Cobalt is a prohibited substance !! Dills, covering their tracks.


we have four bitches here that roam around the place at will,

and i have often seen them scratch a patch and eat the soil , i dont know why they do that ,



Kevin Wright
Australia
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Posts 4985
Dogs 1 / Races 1

18 Apr 2019 01:29


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Michael Barry wrote:

Russ Forno wrote:

Reads like the animal ate some soil and " the boffins" are not sure if Cobalt is a prohibited substance !! Dills, covering their tracks.


we have four bitches here that roam around the place at will,

and i have often seen them scratch a patch and eat the soil , i dont know why they do that ,


Some dogs love eating dirt Mick

Just like people, dogs sometimes suffer from indigestion or upset tummies. Most dirt contains quantities of clay that can ease your dog’s discomfort. Clay has other health benefits, and depending on the type found in your soil, can be used to get rid of parasites or detoxify the body.

If your dog occasionally eats dirt, it could be that they’re taking advantage of the healing power of clay. If your dog eats dirt more often, there’s probably another underlying issue.

Soil is the most abundant ecosystem on Earth, but the vast majority of organisms in soil are microbes, a great many of which have not been described. There may be a population limit of around one billion cells per gram of soil, but estimates of the number of species vary widely from 50,000 per gram to over a million per gram of soil
The total number of organisms and species can vary widely according to soil type, location, and depth.

Cobalt is a natural earth element present in trace amounts in soil, plants and in our diets. It usually occurs in association with other metals such as copper, nickel, manganese and arsenic.





Kevin Wright
Australia
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Dogs 1 / Races 1

18 Apr 2019 01:44


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arsenic is one of the top three elements
identified as having adverse public health effects based on its toxicity. It has been recognized as
being poisonous to humans since ancient times. Elevated arsenic levels in soil/rock are one of the
major sources of arsenic contamination of surface, ground and drinking water throughout the World.

Arsenic levels as high as 1000 mg/kg have been recorded at various locations across Australia.....

Cobalt, a naturally occurring mineral that can also be an environmental pollutant, has been recorded in the blood of Queensland turtles at potentially harmful levels

Researcher C. Alex Villa from the Queensland Alliance for Environmental Health Services (QAEHS) – a partnership between The University of Queensland and Queensland Health – was lead author of a study on metals in coastal green sea turtles.

Turtles in the Howick Group of islands in far north Queensland’s Great Barrier Reef (GBR), removed from localised human-caused pollution, served as a baseline to which researchers compared populations from Cleveland Bay, Upstart Bay and Shoalwater Bay.

“The turtles tested at Cleveland Bay and Upstart Bay looked healthy on the outside but their blood cobalt levels were very high in comparison to the GBR metal baseline levels,” Mr Villa said.

“At Upstart Bay we found green turtles had cobalt blood levels four to 25 times higher than the baseline established by our research.

“Levels of other metals well above the baseline were also observed in turtles along the Queensland coast, with molybdenum, manganese, magnesium, sodium, arsenic, antimony and lead.

Queensland is one of the world’s largest cobalt exporters, given its close association with copper and nickel ores.

Environmental levels can be increased well beyond normal if released by industrial, agricultural or other human activities, however sources at the study sites were UNKNOWN........

.

Veterinarian and co-author Dr Mark Flint at UQ’s Vet-MARTI unit said 44 per cent of tested Upstart Bay turtles indicated signs of a systematic stressor and an active inflammatory response.

He said elevated levels of cobalt, antimony and manganese correlated significantly with clinical markers of inflammation, and markers indicating stress on turtle organs needed for expelling toxins.

A quarter of the 161 turtles examined at Upstart Bay this year had mild to severe eye lesions.


Carly Absalom
Australia
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Posts 180
Dogs 0 / Races 0

18 Apr 2019 03:24


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charles w mizzi wrote:

Russ Forno wrote:

Reads like the animal ate some soil and " the boffins" are not sure if Cobalt is a prohibited substance !! Dills, covering their tracks.


I cannot find the official write up or the October hearing?

I noticed that too, Charles.

I am really curious as to why GRNSW allegedly did not contest the appeal. I think this would have been the last cobalt case that they were doing with GWIC handling any future cases.

Was it a matter of they couldn’t be bothered or was it a matter of they were afraid they would lose and were worried about the impact that would have on past and future cases? Would be helpful if they could put up the actual ruling so we have more information.

The ‘no contest’ just seems out of character with the GRNSW of recent times that appeared to go to outrageous lengths to prosecute participants.



Russ Forno
Australia
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Posts 153
Dogs 0 / Races 0

18 Apr 2019 07:09


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I believe i " googled " Brunton stay and read the PDF.


Carly Absalom
Australia
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Posts 180
Dogs 0 / Races 0

18 Apr 2019 08:06


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Thanks Russ, I have found it now.

Charles, you can find the October decision on the dogs website. Go to Racing and then inquiries and appeals. Once there search for Brunton and it should come up.

Still waiting on them to put up reasons for the appeal being upheld.




Kevin Wright
Australia
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Posts 4985
Dogs 1 / Races 1

18 Apr 2019 22:58


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The Greyhound Welfare & Integrity Commission has announced a program where the Commission will notify greyhound racing industry trainers if racing swab samples taken from their greyhounds return legal but near-threshold levels of cobalt or arsenic.

Under the Rules of Racing, cobalt and arsenic are prohibited substances above specified thresholds. The Commission is keen to assist participants to avoid exceeding these thresholds.

Chief Executive Officer, Judy Lind, said notifying participants when their greyhound returned levels of cobalt and arsenic that approach the threshold in urine, will enable the participants to change their husbandry practices to avoid exceeding these prohibited substance thresholds.

“Trainers who approach the threshold will receive a phone call and/or letter advising them that they have had a urine swab approaching threshold within the last month,” Ms Lind said.

“They will be encouraged to review their husbandry practices, check the substance levels in their food and address their supplement and medication practices in order to avoid potential positive swabs.”

“The Commission recognises that this program is a proactive strategy that may assist participants in complying with the rules,” Ms Lind said.

“It is also important that if a greyhound is returning a urine level of cobalt or arsenic that is approaching the threshold, that we assist trainers by ensuring they are taking appropriate measures to address any potential inadvertent breach of the Racing Rules.

“Those trainers who breach the threshold will be subject to disciplinary procedures under the Rules of Racing regardless of whether any notification has or has not taken place.”

The Commission also took the opportunity to remind trainers of their obligations under the rules to present their greyhounds to race free of prohibited substances.

The notification threshold program will begin with swabs taken from April 2019 onward and trainers should be notified of any results over the threshold within three to four weeks of the sample being taken.

EXTERNAL LINK


Mark Donohue
Australia
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Posts 2575
Dogs 6 / Races 0

19 Apr 2019 03:23


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Carly Absalom wrote:

Thanks Russ, I have found it now.

Charles, you can find the October decision on the dogs website. Go to Racing and then inquiries and appeals. Once there search for Brunton and it should come up.

Still waiting on them to put up reasons for the appeal being upheld.

Apparently, the expert interstate witness (vet) either didn’t/couldn’t attend and/or didn’t provide an appropriate response to questions about the alleged conclusion(s) that he/she came to about cobalt. Congratulations to the appellant.


Simon Moore
Australia
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Posts 2188
Dogs 32 / Races 393

19 Apr 2019 04:03


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Kevin Wright wrote:

The Greyhound Welfare & Integrity Commission has announced a program where the Commission will notify greyhound racing industry trainers if racing swab samples taken from their greyhounds return legal but near-threshold levels of cobalt or arsenic.

Under the Rules of Racing, cobalt and arsenic are prohibited substances above specified thresholds. The Commission is keen to assist participants to avoid exceeding these thresholds.

Chief Executive Officer, Judy Lind, said notifying participants when their greyhound returned levels of cobalt and arsenic that approach the threshold in urine, will enable the participants to change their husbandry practices to avoid exceeding these prohibited substance thresholds.

“Trainers who approach the threshold will receive a phone call and/or letter advising them that they have had a urine swab approaching threshold within the last month,” Ms Lind said.

“They will be encouraged to review their husbandry practices, check the substance levels in their food and address their supplement and medication practices in order to avoid potential positive swabs.”

“The Commission recognises that this program is a proactive strategy that may assist participants in complying with the rules,” Ms Lind said.

“It is also important that if a greyhound is returning a urine level of cobalt or arsenic that is approaching the threshold, that we assist trainers by ensuring they are taking appropriate measures to address any potential inadvertent breach of the Racing Rules.

“Those trainers who breach the threshold will be subject to disciplinary procedures under the Rules of Racing regardless of whether any notification has or has not taken place.”

The Commission also took the opportunity to remind trainers of their obligations under the rules to present their greyhounds to race free of prohibited substances.

The notification threshold program will begin with swabs taken from April 2019 onward and trainers should be notified of any results over the threshold within three to four weeks of the sample being taken.

EXTERNAL LINK


they're bloody good aren't they?

turning it straight back on the participants and pretending they are doing a good thing by informing them that they are potentially getting close to a positive swab instead of getting rid of the rule or raising the threshold.


Carly Absalom
Australia
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Posts 180
Dogs 0 / Races 0

19 Apr 2019 06:17


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At least this appears to be an acceptance by GWIC that the people getting caught by cobalt and arsenic did not intend to cheat.

I know that is not really helpful to people who have been penalised so harshly but maybe it is a start towards the authorities realising they got it wrong with these thresholds.




Kenneth Markham
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Posts 196
Dogs 0 / Races 0

19 Apr 2019 12:06


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No this has taken 12 months almost to the day that the PTB were told in an interview they had a duty of care to trainers in these circumstances.This does not go far enough GRNSW were wrong and GWIC are still following flawed rules.These people are clueless and even as late as yesterday they showed that they don’t get it I went to lengths to explain they are in dangerous grounds.They produced a new form called a responsibility form where a swab is not done by the trainer.Was I the only one to get it?And u guessed it the form is not dated it is very amatuerish.


Charles W Mizzi
Australia
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Posts 633
Dogs 1 / Races 1

22 Apr 2019 12:03


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Mark Donohue wrote:

Carly Absalom wrote:

Thanks Russ, I have found it now.

Charles, you can find the October decision on the dogs website. Go to Racing and then inquiries and appeals. Once there search for Brunton and it should come up.

Still waiting on them to put up reasons for the appeal being upheld.

Apparently, the expert interstate witness (vet) either didn’t/couldn’t attend and/or didn’t provide an appropriate response to questions about the alleged conclusion(s) that he/she came to about cobalt. Congratulations to the appellant.

This would have been GA/GRV Chief vet Steve Karamatic. I have a paper published in March this year pulling WADA apart on scientific integrity. I would put it up but it is a PDF file. All the racing codes are guilty of scientific integrity fraud. The amount of people who have been treated like criminals is appalling. There should be an investigation into all of them.



Steven Martin
Australia
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Posts 7196
Dogs 173 / Races 66

22 Apr 2019 13:00


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charles w mizzi wrote:

I would put it up but it is a PDF file.


Open the file.
Double left click AND HOLD on the first word & then drag while holding the right button to the bottom of the file.
Then right click in the highlighted blue area.
Select copy then paste on G-Data.


Charles W Mizzi
Australia
(Verified User)
Posts 633
Dogs 1 / Races 1

23 Apr 2019 08:09


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 (0)


steven martin wrote:

charles w mizzi wrote:

I would put it up but it is a PDF file.


Open the file.
Double left click AND HOLD on the first word & then drag while holding the right button to the bottom of the file.
Then right click in the highlighted blue area.
Select copy then paste on G-Data.


International Journal of Sport Policy and Politics
ISSN: 1940-6940 (Print) 1940-6959 (Online) Journal homepage: EXTERNAL LINK Scientific integrity and anti-doping regulation
Roger Pielke Jr. & Erik Boye
To cite this article: Roger Pielke Jr. & Erik Boye (2019): Scientific integrity and anti-doping regulation, International Journal of Sport Policy and Politics, DOI: 10.1080/19406940.2019.1596968 To link to this article: EXTERNAL LINK Published online: 12 Apr 2019.
Submit your article to this journal
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ARTICLE Scientific integrity and anti-doping regulation Roger Pielke, Jr.a and Erik Boyeb
aSports Governance Center, University of Colorado Boulder, Boulder, USA; bDepartment of Radiation Biology, Institute for Cancer Research, Oslo, Norway
ABSTRACT Thepaperaddressesafundamentalchallengefacinganti-dopingregulation in sport: securing scientific integrity. The importance of evidence in antidoping is similar to that found across many fields where science and expertise meet policy, ethics and regulation. We argue that a growing body of evidence indicates that anti-doping regulation under the World Anti-Doping Agency is sometimes arbitrary and too often not grounded in a solid foundation of evidence. We document shortfalls in standards of scientific integrity in four contexts: (1) the prevalence of doping, (2) performancebenefitsandhealthrisks,(3)errorsandinconsistenciesinaccusation, and (4) the evaluation of anti-doping policies. We give several suggestions to enhance scientific integrity in anti-doping regulation and argue that greater transparency will help to reduce inconsistencies and errors.
ARTICLE HISTORY Received 27 August 2018 Accepted 15 March 2019
KEYWORDS Anti-doping; evaluation; sport; science policy; evidence-based policy
1. Introduction Participants in competitive sport are always looking for an edge to improve their performance. A small improvement in performance might be the difference between victory and defeat, between fame and obscurity, between fortune and poverty. For almost a century, sports organizations have sought to regulate certain substances and methods that might be used to aid athletic performance (Pielke, 2016a). In the 21st century such anti-doping regulation has become formalized through various institutions, most notably the World Anti-Doping Agency (WADA) headquartered in Montreal, Canada. WADA is legitimized by an international convention under the United Nations, ratified by almost 200 countries around the world, making it arguably one of the most successful examples of international cooperation in history.1 Since its formation in 1999, WADA has been a subject of considerable debate as a glass half empty versus a glass half full as anti-doping practices and institutions have evolved. A full recounting of that history and the performance of WADA goes well beyond the scope of this paper and has been addressed in depth by notable scholars (for just a sampling of this voluminous and diverse literature, see e.g. Houlihan 2001, 2004, Yesalis and Bahrke 2002, Loland 2009, Gleaves and Llewellyn 2014, Møller et al. 2015, Viret 2015, Johnson 2016, David 2017, Forgues et al. 2017, Dimeo and Møller 2018). In recent years WADA and anti-doping efforts have experienced a deep crisis following revelations of an alleged institutionalized, perhaps state-sponsored, doping program in Russia. Complaints about Russian doping were made to WADA as early as 2010, but WADA and the International Olympic Committee (IOC, which shares responsibility with national governments for overseeing WADA) took action only five years later, after the appearance of a German TV documentary (Harris 2016). The
CONTACT Roger Pielke, Jr. pielke@colorado.edu Sports Governance Center, University of Colorado Boulder, Boulder, USA
INTERNATIONAL JOURNAL OF SPORT POLICY AND POLITICS EXTERNAL LINK © 2019 Informa UK Limited, trading as Taylor & Francis Group
Russian doping crisis motivated multiple investigations and reports by WADA and the IOC, with sanctions applied to Russian organizations and certain athletes in advance of the 2016 Rio Summer Games and the 2018 Pyeongchang Winter Games, and to several Russian sports administrators. While a comprehensive evaluation of the policies of WADA and associated entities goes well beyond the scope and length of this paper, we focus on a key element of anti-doping policy implementation: the role of scientific evidence in anti-doping. More specifically, we employ the logical structure of a policy evaluation to assess scientific integrity in anti-doping under WADA in four contexts: 1) the prevalence of doping, (2) performance benefits and health risks, (3) errors and inconsistencies in accusation, and (4) the evaluation of anti-doping policies. We conclude, based on a wide array of cases, that WADA systematically falls short of basic standards of scientific integrity.
2. A policy evaluation of the use of evidence in anti-doping 2.1. The logic of policy evaluation Policy evaluation is among the deepest traditions of academic policy research (cf., Turnpenny et al. 2009). As Schneider (1986) explains, ‘Evaluation involves the analysis of a program or policy in terms of its level of performance. It seeks to answer the deceptively simple question, “Is it working?”’ A systematic policy evaluation includes four distinct intellectual tasks (Lasswell 1971, Nachmias 1979). These are: (a) identification of goals to be achieved in policy implementation, (b) metrics which can be used to assess progress (or lack thereof) with respect to goals, (c) data or evidence related to such metrics, and finally, (d) judgments of responsibility for policy outcomes which might be useful in efforts to improve future performance, to incorporate policy learning into new contexts, and so on. Our aim is to apply a well-established logical framework of policy evaluation to the intellectual task of assessing the use (and misuse) of science in anti-doping. We begin with what would seem an obvious observation: in order for anti-doping policies to succeed, they will, to varying degrees, be grounded in, if not based on, evidence (Viret 2015). By evidence, in the context of this paper, we refer narrowly to the results of applications of science leading to or informing judgments of compliance or non-compliance of individual athletes with the provisions of the WADA Code, and specifically whether or not an anti-doping rules violation has occurred. In this context, as a matter of procedure, the ultimate arbiter of evidence with respect to the burden of and standard of proof is the Court of Arbitration for Sport (CAS). As an arbitration court, CAS does not formally operate by binding precedent, but operates under a‘formofbindingprecedent’(Ioannidis2016).Consequently,someCASdecisionsareprecedentialasthe basis for how anti-doping rules and regulations are enforced, particularly with respect to how WADA employsscienceandevidence.Viret(2015)providesacomprehensivetreatmentofmanyoftheseissues.
2.2. Scientific integrity We evaluate the use of evidence by WADA in terms of ‘scientific integrity,’ which we define consistent with Douglas and Bour (2014) to consist ‘of proper reasoning processes and handling of evidence essential to doing science’ and ‘a respect for the underlying empirical basis of science.’ We believe that our assertion of the importance of scientific integrity in anti-doping is unlikely to be contested. But assessing scientific integrity in practice requires the exploration of actual instances of the use (and misuse) of science in the implementation of the WADA Code. While the Russian doping scandal highlights important broader challenges facing anti-doping regulation,2 a failure to uphold scientific integrity may also threaten a viable and trustworthy antidoping regime. The importance of scientific integrity in anti-doping regulation results from the unavoidable forensic nature of anti-doping rules.3 Anti-doping sanctions are levied based on the use of evidence in a range of settings including drug testing, investigations, hearings and appeals. The notion of ‘evidence-based’ decision-making has its origins in medicine where it has been
2 R. PIELKE JR. AND E. BOYE
defined as ‘the conscientious, explicit, and judicious use of current best evidence in making decisions’ (Sackett et al. 1996) and the same definition will be applied here. The importance of evidence in anti-doping is similar to that found across many issues where science and expertise meet decision-making (Parkhurst 2017). A significant literature has developed in recent decades on the use of science, and evidence more generally, in processes of decision and regulation (see, e.g. Pielke 2007, Gluckman 2016, Brownson et al. 2017, Parkhurst 2017). The use of evidence is not always straightforward and can be complicated by many issues, among them imbalanced power relationships, financial and other conflicts of interests, and disagreement on what constitutes legitimate and credible evidence and expertise. Even the notion of ‘evidence-based’ decision-making is contested as some envision a more linear approach from evidence to decision whereas others recognize a more complex relationship of co-production of both evidence and decision-making (cf., Cairney and Oliver 2017). A full treatment of the notion of ‘evidence–based policy’ goes well beyond the scope of this paper, nonetheless, we believe that the practice of anti-doping regulations provides a fertile context for exploration of issues associated with the use and misuse of evidence in policy.
2.3. Evidence-based versus arbitrary decision making In the broader context of debates over evidence-based policy the fundamental problem that this paper focuses on is comparatively straightforward: anti-doping regulation is often not evidencebased, rather, decision making is at times arbitrary. WADA is incorporated in Switzerland along with the Court of Arbitration for Sport (CAS), which is where final arbitration proceedings related to doping (and other sport) disputes are adjudicated. Both organizations operate under the authority of the Swiss Constitution and Swiss Code of Civil Procedure, which states that ‘an arbitral award will be set aside if it is arbitrary in its result because it is based on findings that are manifestly contrary to the facts’ (Voser et al. 2014).4 In general, arbitrary decision-making is not a hallmark of effective policy. In short, anti-doping regulation should be expected to be evidence-based, and not arbitrary. It should bebased onthe conscientious, explicit, and judicious use of currentbestevidence,and should not be based on findings that are manifestly contrary to the facts. Anti-doping regulation should be groundedinscientificintegrity.Theseexpectationsarealsowidelysharedinresearchonandpractices of decision-making. Thus, we believe that the importance of evidence in anti-doping regulation is unlikely to be controversial. To succeed, anti-doping regulation must be built upon a foundation of evidence. In a comprehensive assessment of anti-doping, Viret (2015) explains: ‘Science is so fundamental to the fightagainstdopingthatitcantrulybeconsideredapillarofmodernanti-dopingregulations,bothfor theirdesignandfortheirenforcement.’Issuesofscientificintegrityarenotmerelysubstantive,butthey also should underpin the legitimacy of anti-doping regulation, which operates not as instruments of public law but under agreed-upon trans-national rules governing national and international sport. Of course,scienceisalwaysprovisional, often uncertain, sometimeswrong and frequently contested(see Pielke 2007). Scientific evidence is not a simple matter of‘epistemic certainty’ but rather a means of dealing with inevitable uncertainties (Aronson and Cole 2009). Such scientific realpolitik underscores the importance of scientific integrity in regulatory and policy processes.
2.4. Scientific integrity in anti-doping and the court of arbitration for sport CAS has frequently invoked the importance of scientific integrity in its decisions. For instance, with respect to the use of drug testing results in arbitral proceedings CAS explains that such decisions are based on unambiguous, documented criteria:
“A sample cannot be declared positive or negative depending on the subjective opinion and/or experience of the laboratory staff according to the maxim “I know it when I see it”. Rather it is imperative that the laboratory
INTERNATIONAL JOURNAL OF SPORT POLICY AND POLITICS 3
applies reliable and verifiable criteria, making it possible for third parties to objectively understand the conclusions reached.”5
In another example, CAS invokes scientific integrity as a fundamental basis for how WADA accredited laboratories are expected to work and also emphasize that confidence in the system is rooted in the level of its scientific quality:
“The entire anti-doping system presupposes that, and can only work if, WADA-accredited laboratories actually operatein accordance with the International Standard for Laboratories and in accordance with their own Standard OperatingProcedures.Thecredibilityofthesystemalsorequiresthatlaboratoriesbeseentooperateinaccordance with these standards: any doubts about one laboratory could very quickly jeopardise the entire system.”
Hearings under CAS often involve expert testimony and CAS sets an expectation that such testimony will be evidence-based: ‘Roman Law put the matter pithily: “iudex peritus peritorum” (the judge is the expert on the experts). Bearing in mind the prescribed provisions as to burden and standard of proof, the CAS Panel conceives its function in applying the standard as an appellate body to determine whether the Expert Panel’s evaluation … is soundly based in primary facts, and whether the Expert Panel’s consequent appreciation of the conclusion be derived from those facts is equally sound.’6 Therefore, any departure fromevidence-baseddecision-makingwouldindicate a seriousproblem,not only for WADA and CAS, but also for athletes and other stakeholders in global sport.
3. Scientific integrity in anti-doping in practice In this section we argue that (a) anti-doping regulation under WADA shows significant shortfalls in evidence-based decision-making and discuss the consequences of the departures from scientific integrity, and (b) we recommend several alternatives to restore scientific integrity to anti-doping regulation. Departures from scientific integrity in anti-doping regulation are not difficult to identify and the range of examples that we discuss below suggest that they may in fact be pervasive. Here we document breaches of good scientific practice in four contexts: (1) the prevalence of doping, (2) performance benefits and health risks, (3) errors and inconsistencies in accusation, and (4) the evaluation of anti-doping policies. These four contexts were selected because of their central role in anti-doping practices:
● Doping prevalence is central to understanding the magnitude of the problem of doping as well as the effectiveness of anti-doping practices; ● Performance benefits and health risks are the two evidence-based criteria of the WADA Code; ● Errors and inconsistencies in accusation are central to the due process rights of athletes under the implementation of the WADA Code; ● The evaluation of anti-doping policies is a central element of determining if policies and regulations being implemented are actually working to address the problem of anti-doping.
There are certainly other areas where evidence-based decision-making might be explored in antidoping, such as consistency in the application of science in regulation (e.g. as raised in the 2017–2018 case of cyclist Chris Froome)7 and transparency and data-sharing in research conducted by sport organizations in support of regulations (e.g. as found in the case of testosterone regulations put forward in international athletics).8 There are other issues beyond these as well. Here we focus on a subset of important issues of scientific integrity in anti-doping.
3.1. Prevalence of doping The prevalence of doping refers to the proportion of athletes who violate the provisions of the World Anti-Doping Code (below called The Code), which sets forth the rules governing anti-doping regulation.9 The present discussion is focused on world-class, professional athletes, but is relevant
4 R. PIELKE JR. AND E. BOYE
also for athletes at the amateur and masters levels. Prevalence estimates are the basis for understanding the magnitude of the doping problem and how it varies with time and between countries. They are also essential to understanding what interventions work to address doping and which do not. Anti-doping regulation cannot claim to be evidence-based without reliable estimates of prevalence (Pielke 2017a). Yet, reliable estimates of doping prevalence are not produced by WADA and the broader scientific literature is characterized by a small number of studies. de Hon et al.(2015) reviewed the literature and concluded: ‘Remarkably, few scientific articles have addressed this subject so far, and the last review dates to 1997.’ Sottas et al.(2011) claimed that ‘No reliable estimate of the prevalence of doping in elite sports has been published.’ There are understandable reasons for the paucity of empirical work on doping, among them the niche nature of the subject (until recent years) and the methodological challenges of quantifying the prevalence of a condition that is intentionally hidden by competitors, coaches and even sport administrators. There are also obstacles among those tasked with enforcing anti-doping regulations. In 2012, a WADA Working Group concluded of sports organizations that, ‘There is no general appetite to undertake the effort and expense of a successful effort to deliver doping-free sport’ (Pound et al. 2012). Evidence of the problems met by researchers in this field, both from sources inside and outside of the anti-doping movement, is found in the tortuous publication process experienced by a group of researchers commissioned by WADA and the IAAF. Surprisingly, upon completion of their research on doping prevalence, neither organization would allow the results to be published, resulting in six-year delay (Pielke 2017a), until it was finally published in 2017 (Ulrich et al. 2017) following substantial negotiations and a British parliamentary inquiry. It is not clear why this paper was barred from publication, but it is not unreasonable to suggest that it was because of the results of the investigation.10 Ulrich et al.(2017) is arguably the most rigorous assessment of doping prevalence in the literature. They used a randomized response technique at the 2011 International Association of Athletics Federations (IAAF) World Championships and 12th Quadrennial Pan-Arab Games and arrived at an estimate of doping prevalence among athletes in these games of about 50%.11 For comparison, another recent, rigorous study estimated a prevalence of 14–39% (de Hon et al. 2015). The Ulrich et al.(2017) estimates exceed the proportion of athletes who are actually sanctioned for doping by about 50 to 1, indicating a potentially huge number of athletes who break the rules but are never caught. What would it take to implement a rigorous program to assess doping prevalence and how it changes over time? One of us (RP) posed this question to a panel of anti-doping researchers at the 2017 ‘Play the Game’ conference in Eindhoven, Netherlands, which included co-authors of the Ulrich et al.(2017) paper. The consensus answer among the panelists was that it should be relatively cheap. Onepanelistsuggestedthatitcouldbedonefor~US$100kperyear.12 Whateverthetotalneeded,itis miniscule in comparison to the (now dated) estimate of US$130 billion in revenues from elite sports and US$350 million devoted to drug testing (Simon 2013). In summary, the prevalence of doping in elite sport is a key parameter in order to scale and formulate evidence-based anti-doping regulations. However, reliable estimates are not available and have been avoided and obstructed by anti-doping authorities.
3.2. Performance benefits and health risks The contents of the WADA ‘Prohibited List’,13 which forms the basis of anti-doping regulation, is regulated by rules given in The Code:
● 4.3.1 A substance or method shall be considered for inclusion on the Prohibited List if WADA, in its sole discretion, determines that the substance or method meets any two of the following three criteria:
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○ 4.3.1.1 Medical or other scientific evidence, pharmacological effect or experience that the substance or method, alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance; ○ 4.3.1.2 Medical or other scientific evidence, pharmacological effect or experience that the Use of the substance or method represents an actual or potential health risk to the Athlete; ○ 4.3.1.3 WADA ’s determination that the Use of the substance or method violates the spirit of sport described in the introduction to the Code.
With respect to performance-enhancement or health risk, the language of The Code states explicitly that evidence is needed to meet the criteria. However, the third criterion, the ‘spirit of sport,’ cannot be considered to be evidence-based (see, e.g. de Hon 2017, Pielke 2016a, Ritchie 2013). In practice, there is considerable evidence that the composition of the Prohibited List, which now totals more than 300 substances and methods, is neither rigorously evidence-based nor transparent. David (2017) explains: ‘The reason for the inclusion of a substance or method on the List is not recorded on the List, nor is the reason made available publicly.’ In addition, WADA informed us that neither the operating procedures (‘Terms of Reference’) nor minutes of its expert Group that determines the List are made available.14 In 2012, before the WADA Executive Committee, Prof. Arne Ljungqvist, Chairman of the Health, Medical & Research Committee of WADA, explained that the three criteria were ‘not intellectually perfect with two out of the three criteria being sufficient for placing something on the List, one could put anything on the List because taking substances without medical indication was by definition against the spirit of sport and also medically it could be dangerous to health if one did not need the substance.’15 In the absence of a documented evidentiary base, the reasons for inclusion of a substance on the list are not clear and apparently not determined by a process that is consistent with WADA’s own statements on the importance of evidence. Olivier Niggli, WADA Chief Operating Office and General Counsel said much the same in 2016:
“the way that the Code’s wording has been put [is] so that we would not have to justify why a substance is on the list. We have experts who look at it, they have three criteria. It has to meet two of the three and we never disclose nor discuss the specifics of a substance because otherwise, every time you have a positive case, there would be a challenge.”16
In order to avoid challenges in arbitration to the listing of a substance or method from athletes accused of doping, WADA does not provide evidence as to why a substance was added to the list. Yet, a substance can be added to the list to regulate performance-enhancement or health risk without evidence in the first place. There appears to be a conflict between the wish to use solid, scientific evidence as a criterion for inclusion on the list and the wish to include substances and methods that are merely suspected to qualify for the list (Mazzoni et al. 2011). This leads Viret (2015) to ask: ‘Can a system that justifies itself through its scientific foundations (i.e. performance enhancement and protection of the Athlete’s health) disregard these same foundations on the ground that the system could not be upheld otherwise?’ The foundations of anti-doping do not quite reach the ground. Thereareofcourseunderstandablereasonswhyitisdifficult,time-consumingandcostlytoquantify the performance-enhancing effects or health risks of many chemicals and medicines. But it is also problematic for an athlete to be charged and sanctioned for the use of drugs where no performanceenhancement hasbeenshown.Ljungqvistexplainedsome ofthesechallengestoWADA: ‘Sciencewas notthateasy,andthosewhohadbeeninvolvedintheworkforalongtimeknewthattherewerevery few substances proven to be performance-enhancing, not because they were not, but because there wasnosciencesupportingit,becausetherewasno possibilitytoconductsuchscience.Onecouldnot deliberately put a potentially performance-enhancing substance into an athlete and conduct a scientific investigation to prove or disprove it.’17 The scientific challenges to creating an evidencebased anti-doping regulation suggest a fundamental question at the heart of listing decisions: Should
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substances be considered performance-enhancing until proven otherwise? Or should substances be viewed as benign in the absence of evidence? How this framing issue is determined has profound consequences for important aspects of anti-doping, most significantly the ultimate size of the Prohibited List and the ease or difficulty to adding new substances to it. The lack of a firm evidence-base for listing is not simply a theoretical concern. It manifests itself in many specific instances in which evidence is applied arbitrarily, if at all. Below we briefly summarize just a few examples. However, other substances which also lack an evidentiary base are included on the List.
3.2.1. Tramadol This drug is a painkiller used by cyclists and other athletes. The 2015 Cycling Independent Reform Commission established by the Union Cycliste Internationale identified Tramadol as a widely used drug by cyclists:‘riders will take a wide range of non-banned substances to create a performance-enhancing effect.’ Tramadol is not included on the WADA Prohibited List, but it has been monitored for several years. Anti-doping agencies of the United Kingdom and United States have called for the drug to be banned.18 The drug, an opioid, has clear health risks for athletes (and others). WADA has, however, repeatedly decided not to list the drug, with WADA COO Niggli telling the BBC that ‘just because the US anti-doping agency wants it doesn’t mean they are right.’19 Surely this would be a situation where science might help to clarify performance-enhancement and health risks to resolve a listing dispute between regulatory bodies. Even though there is considerable evidence on the use of Tramadol among cyclists and other athletes who appear to believe in its performance-enhancing qualities, Holgado et al. (2018) conclude that such evidence is not available: ‘there is a paucity of research on the use of opioids such as tramadol on sporting performance.’ One might conclude that the absence of evidence of performance-enhancement and/or health risks had led WADA to leave such substances off the list, but in other cases WADA has made different decisions in the absence of evidence.20
3.2.2. Meldonium This drug came to fame in 2016 when tennis superstar Maria Sharapova held a press conference to announce that she had been suspended for using the drug after it had been added to the Prohibited List on 1 January 2016. Sharapova was one of what ultimately were 514 athletes who tested positive for Meldonium that year. Yet only 11 athletes, including Sharapova, were ultimately sanctioned.21 The reason for this huge disparity is that – unknown to WADA when adding Meldonium to the list – the drug stays in the human system for many months, meaning that athletes could claim (truthfully or not) that the drug test resulted from ingestion prior to the drug’s addition to the Prohibited List (Brown 2016). Furthermore, the drug was added to the list not because of evidence of its performance-enhancing effects or health risks, but rather because of evidence that many athletes were taking it, particularly those from Russia and Eastern Europe (Brown 2016). Prof. Don Catlin, UCLA professor and scientific director of the Banned Substances Control Group, told USA Today that ‘There’s really no evidence that there’s any performanceenhancement from Meldonium. Zero.’22 In the absence of positive evidence, how do substances get added to the list? Prof. Arne Ljungqvist, Chairman of the Health, Medical & Research Committee of WADA, answered this before the WADA Foundation Board in 2012: ‘One would have to go by some gut feeling or biological understanding that this could be performance-enhancing.’23 Therefore, the departure from evidence-based to suspicion-based is obvious. More worrisome is the fact that athletes are being sanctioned based on this non-documented inclusion of drugs on the list. We will return to the issues raised by Meldonium below.
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3.2.3. Letrozole In2017,anothertoptennisplayer,Italy’sSaraErrani,wassuspendedfortwomonthsfortakingletrozole, which is an aromatase inhibitor that suppresses aspects of the human hormonal system, including the production of estrogen. In its judgment against Errani, the International Tennis Federation (ITF) explained:‘TherehasbeenconcernonthepartofWADAthatsomebodybuilderswereabusingletrozole and there was some anecdotal evidence online that female bodybuilders used it for that purpose. The substance has been banned for men since 2001 and for everyone since 2005…’24 However, contrary to this ‘anecdotal evidence’, scienti fic research conducted subsequent to its ban indicates that letrozole does not enhance athletic performance in women. Handelsman (2008) concludes: ‘there is no convincing evidence that oestrogen blockers cause any consistent, biologically significant increase in blood testosteroneconcentrationsinwomen…thereisnobasistobanoestrogenblockadeinfemaleathletes.’ The ITF accepts this science: ‘there is no evidence that letrozole would enhance the performance of an elite level tennis player.’ Here is a drug that is on the list but which scientists and anti-doping officials agree is not performance-enhancing and is not suspected of any meaningful use in doping or in the maskingofdoping,yetnonethelessitsdetectionformedthebasisforasuspensionofatopathlete,who then is characterized as a doper. In June, 2018 CAS increased the length of Errani’s suspension.25 There are numerous examples of instances where WADA appears to be in conflict with its own ideals (Pielke 2016a), but the examples above illustrate considerable inconsistency in the application of evidence to listing decisions:
● Not banned = Tramadol: wide use, unknown performance-enhancing benefits, clear health risks; ● Banned = Meldonium: wide use, unknown performance enhancing benefits, unknown health risks; ● Banned = letrozole: rare use, no performance enhancing benefits, little health risks.
At a minimum, these inconsistencies strongly suggest that decision-making with respect to including (or not) these drugs on the Prohibited List is arbitrary. Because WADA does not reveal the processes or evidence that it uses in making judgements about inclusion on the Prohibited List, it is impossible to know what, if any, evidence was used to support such decisions. This can lead to farcical situations, like the Errani case, where everyone apparently agrees that the drug in question is not performance-enhancing and yet a sanction is required because, for whatever reasons other than evidence, the drug is included on the list. As we will see next, such inconsistent and arbitrary decision-making can have profound consequences for individual athletes.
3.3. Errors and inconsistencies in accusation The inevitable result of a departure from evidence-based decision-making in anti-doping regulation will be errors in the application of anti-doping science in individual cases involving athletes, with potentially profound and lasting consequences. Above, we documented evidence that the false negative rate is extremely high in anti-doping regulation. Next, we shall examine another type of error, the false positive accusation in which an athlete is wrongly accused of doping and often sanctioned, with profound impacts on his/her athletic career.
3.3.1. Meldonium’s collateral damage The failure to appreciate meldonium’s long residence time in the human body led to a number of innocent athletes to miss the Rio 2016 Summer Olympics. There is evidence that not all athletes who tested positive for meldonium received similar treatment. For instance, Swedish runner Abeba Aregawi was initially suspended in July 2016 for a positive meldonium test, but soon thereafter reinstated based on the inability to show that she had in fact taken the drug in 2016, after it had been banned, due to the residence time issue (Brown 2016).
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Nonetheless, she was instructed by Swedish athletics officials to take an anti-doping course and she was not nominated for the Rio Olympics because she had not shown sufficient remorse.26 In a similar case, Norwegian weightlifter Ruth Kasirye was also initially suspended for a positive meldonium test in January 2016 and she was given a two-years suspension. At least one Russian athlete found himself caught up in a Kafkaesque situation involving the inclusion of Meldonium on the list and the ad hoc efforts to sanction Russian athletes in advance of Rio because of the Russian doping scandal (Brown 2016). Alexander Markin, a Russian volleyball athlete, had tested positive for Meldonium on 9 January 2016, just 9 days after the ban came into effect. His suspension was subsequently lifted based on an understanding that he had taken the drug before the ban.27 However, in advance of the Rio Olympics the IOC decided to exclude any Russian athlete who had previously faced an anti-doping rules violation, and Markin was included among those excluded from Rio. Therefore, he was excluded for doing something that for (certain) other athletes were deemed not in conflict with the regulations, but simply because he was Russian. Brown (2016) contrasts the treatments of Markin and Maxwell Holt, an American volleyball athlete. Holt tested positive for Meldonium on 6 June 2016. He argued that he had last taken the drug on 12 December 2015, before the ban came into effect. Like Markin, Holt was judged to have committed an anti-doping rules violation by having Meldonium in his system after it had been banned but served no sanction because he was judged to have ingested Meldonium before the ban came into effect. However, unlike Markin, Holt was allowed to compete in Rio, which would have been impossible if he had been Russian. Brown (2016) explains a further irony: ‘Markin and Holt play for the same [professional volleyball] team, Dynamo Moscow. One was allowed to compete at the Rio 2016 Olympics and one was not, despite both having been given Meldonium at the same time by their team doctor. The creation of this inequitable situation cannot have been the IOC and WADA’s intention when regulating meldonium and Russian participation at the Rio 2016 Olympics.’ Such decisionmaking appears arbitrary.
3.3.2. A forgotten man Saudi Arabian footballer Alaa Al-Kowaibki was suspended for 1 year in 2010 for doping.28 The WADA laboratory that had performed the analyses (Malaysia) was subsequently suspended by WADA for producing numerous false positive test results.29 The Malaysian lab then appealed to CAS to protest the suspension of the lab. In the subsequent arbitration proceedings, WADA entered into evidence in the cases of six athletes wrongly accused of doping based on flawed analyses conducted by the laboratory. One of the cases cited by WADA as a false positive was that of Al-Kowaibki.30 WADA won the CAS case based on the evidence that it provided. It is to WADA’s credit that they identified an athlete who had been wrongly accused as part of their case before CAS. However, apparently no one – neither WADA nor the Saudi Anti-Doping Organization – ever notified the athlete that his sample was considered a false positive and that he had wrongly served a doping suspension. Thus, Al-Kowaibki lived 6-plus years as a convicted doper with the stigma that follows. Remarkably, it was only in 2017 that Al-Kowaibki learned that he was in fact cleared years ago by CAS.31 How can it be that an athlete was cleared of doping but no one told him while he served a suspension? This case shows that the anti-doping system requires more than just solid evidence, it also requires that such evidence be used to secure the due process rights of athletes who are occasionally falsely accused. In this case, the anti-doping system failed Al-Kowaibki. There are a number of cases where doping convictions have been arguably based on questionable science related to the drug erythropoietin, better known as EPO and its analog CERA (e.g. Boye et al. 2017). How anti-doping authorities responded to questions raised about scientific judgments in these cases has been troubling. In 2011, several independent scientists engaged with WADA laboratory scientists in an exchange of letters in a Norwegian scientific journal over issues concerning the Norwegian race walker Erik Tysse (see Pielke 2016a for details). They argued that WADA’s failure to uphold
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standards of scientific integrity in the Tysse case was symptomatic of a broader problem: ‘In the hunt for doped athletes, little account is taken of the risk of condemning an innocent athlete. The doping hunters appear to be more concerned with catching all the guilty than with considering the risk that some test results may be false positives’ (Waaler et al. 2011). A team of WADA laboratory scientists responded by claiming that ‘more than 8,000 urine samples were tested at WADA laboratories in Rome, Paris and Oslo using the analytical method for detecting EPO’ and none had returned a false positive (Hammersbach et al. 2012).32 Another two independent scholars joined the conversation: ‘In their comments on the so-called Tysse affair, Hemmersbach and collaborators claim that doping analyses are on safe ground and free of error. This is a remarkable statement, in light of the fact that 94 independent experts, including 45 professors, have signed a declaration saying that data produced by the WADA laboratory in Rome failed to detect CERA in Tysse’s urine’ (Østerud and Skotland 2012). A situation of dueling experts would seem to be an ideal opportunity for the implementation of rigorous, evidence-based approaches to the resolution of scientific disputes. However, in antidoping there are notable obstacles to achieving such resolution. Scientists who work in WADAaccredited laboratories are expected to play two different roles, which can sometimes be in conflict. On the one hand, WADA labs are expected to be neutral arbiters of drug testing, rendering unbiased judgments on the presence of prohibited substances in an athlete’s body. On the other hand, upon a positive test result, WADA scientists are also expected to testify on behalf of WADA and against individual athletes in anti-doping arbitration cases. This can lead to conflicting messages from WADA on scientific matters. For instance, in 2010 the cyclist Alberto Contador was accused of doping following a positive drug test for Clenbuterol. The director of the WADA-accredited lab in Montreal, Christiane Ayotte, defended the WADA position by explaining that the small amount of Clenbuterol that had been detected was in fact consistent with doping by Contador:
“You‘ll never find a ton of it, because the doses are really small. Just because it‘s small doesn‘t mean it‘s not doping… This is just the dopers adjusting, or misadjusting, to the testing.”33
This view of the significance of trace amounts of Clenbuterol is diametrically opposed to Ayotte’s statements in 2017 when a German journalist revealed that positive Clenbuterol test from several Jamaican sprinters at the 2008 Beijing Olympics had been quietly swept under the rug by WADA without following their normal procedures for reporting an adverse finding.34 WADA’s position in that case was that the sprinters had fallen victim to contaminated meat, which was the same argument advanced by Contador. In the case of the Jamaican sprinters Ayotte took to Twitter to again defend WADA: ‘Real scandal being people poisoned by poorly regulated meat production. Athletes testing positive are collateral damage.’35 It is difficult to reconcile WADA’s mixed messages here or its defense of ignoring its own procedures. Such mixed messages are also difficult to square with WADA statements before CAS. At the 2008 Beijing Olympics the Polish canoeist Adam Seroczynski also tested positive for Clenbuterol and was sanctioned with a two-year ban.36 He took the case to CAS. Before the arbitral tribunal Seroczynski argued that the positive test was the result of food contamination and that the low concentration of the drug found in the test was offered as support of this claim.37 A WADAlaboratory scientist testified before CAS against Seroczynski where he explained: ‘adverse analytical findings (for Clenbuterol) caused by food contamination is a situation, which is very rare and unlikely to occur, even then, solely under very specific and extreme circumstances … I consider that this situation is so unlikely as not to be reasonable.’ In these various instances of WADA laboratory expert testimony on Clenbuterol the application of the rules and of scientific evidence is highly variable. The only commonality across these cases would seem to be that WADA scientists consistently defend decisions made by WADA. This is worrisome, given the strong credibility generally ascribed to evidence provided by the WADA scientists. Thus, once again, we find a situation characterized byinconsistent, evenarbitrarydecision-making:
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● Jamaican sprinters: tested positive for low levels of Clenbuterol at Beijing 2008, case quietly dismissed contrary to normal WADA procedures. Dismissal justified based on conclusion of food contamination, action defended by a WADA scientist; ● Contador: tested positive for low levels of Clenbuterol, sanctions applied and the very same WADA-scientist who defended the irregular dismissal of Jamaican sprinters dismissed Contador’s argument of food contamination;. ● Seroczynski: tested positive for low levels of Clenbuterol at Beijing 2008, case prosecuted under normal WADA procedures as an adverse finding, food contamination defense rejected by a WADA scientist.
These situations involving Clenbuterol are irreconcilable in terms of both substance and procedure. Elsewhere we have documented other instances of conflicts of interest and arbitrary decisionmaking in cases involving Irish sprinter Steven Colvert (Nissen-Meyer et al. 2016, Pielke 2016b), Norwegian race walker Erik Tysse (Nissen-Meyer et al. 2013, Pielke 2016a) and Czech triathlete Vladimir Sommer (Nissen-Meyer et al, in preparation). These cases are part of a broader body of evidence of sloppy science and questionable quality control in the WADA-accredited laboratories, suggesting institutional conflicts of interest (see, e.g. Berry 2008, Faber and Sjerps 2009, Pitsch 2009, Weston 2009, Fischer and Berry 2014, Møller 2014, Greene 2017). Another example of unfair differential treatment stems from the rules for storage of biological samples. The standards that WADA-accredited laboratories must follow are described in a document called “International Standards for Laboratories.”38 That document requires that drug tests administered under the provisions of The Code need only be stored for 3 months. That includes positive tests, called “adverse analytical findings” by WADA. If the analysis of a sample is challenged, then the laboratory “shall be stored until completion of any challenge or investigation.” This situation creates a profound bias against athletes and the use of science to resolve antidoping disputes, as exemplified below. For instance, in the case of Steven Colvert (Nissen-Meyer et al. 2016, Pielke 2016b) there have been three different interpretations of his drug test which initially was determined by WADA to show evidence of EPO, leading to his sanctioning.39
● Before the Irish Sport Anti-Doping Disciplinary Panel in June 2015 a WADA lab scientist was unable to explain the basis for Colvert’s positive test result, appealing instead to expertise: ‘in finding a sample which has such low doses of recombinant EPO, you need to be expert to clearly identify it.’40 This statement was contrary to a 2001 CAS judgment on EPO testing, which argued forcefully against such subjectivity in favor of replicable methods: ‘it is imperative that the laboratory applies reliable and verifiable criteria, making it possible for third parties to objectively understand the conclusions reached.’41 ● In contrast, Nissen-Meyer et al.(2016) argued that the scientific conclusions in the Colvert case were inconsistent and flawed: ‘It is obvious that something is wrong and the problem must be clarified before making any judgement on whether or not Steven Colvert did use rEPO. If not clarified, the only fair decision should have been to drop the case against Colvert, and give the WADA laboratories feedback that they must improve the rigour of their analyses.’ ● A third expert view was offered by Christiane Ayotte, the director of a WADA-accredited lab, who was not involved in the original case, in a response to Nissen-Meyer et al.(2016) where she took issue with the testimony of the two WADA-lab scientists who testified against Colvert, writing that they had ‘made a mistake.’42
With three different interpretations of the meaning and validity of the positive drug test of Steven Colvert, a seemingly obvious way to resolve these differing views would be evidence based: simply retest the original samples, using independent experts and contemporary drug testing techniques. However, this common-sense approach is impossible because labs are allowed to destroy positive samples upon the conclusion of a challenge, which in Colvert’s case was upon his sanctioning.43 It
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should be mentioned that this situation has occurred in spite of the insistence from Colvert that his samples should not be discarded but kept for later analyses. In sharp contrast, the samples of athletes who do not test positive in major events such as the Olympics are stored frozen for 10 years.44 There should be no practical or economic issues involved in such disparity of treatment of positive and negative samples, as only about 1% of samples return adverse findings. A decision to destroy positive findings and keep negative ones is untenable and contrary to the due process rights of athletes convicted of doping offenses. Another important institutional obstacle to scientific integrity in anti-doping regulation is the reversal of the presumption of innocence upon an adverse drug test. As in most democratic systems of jurisprudence, athletes are presumed to be innocent of doping until proven guilty. However, this presumption reverses to guilty until proven innocent when an athlete tests positive. The reversal results from guidance found in WADA’s “International Standards for Laboratories” (at 3.2.2). The standards presume that the labs “have conducted Sample analysis and custodial procedures” in accordance with the standards. The Standards further explain what this means: “The burden is on the Athlete or other person to establish, by a balance of probability, a departure from the International Standard for Laboratories that could have reasonably caused the Adverse Analytical Finding.” If anti-doping administration cannot afford to maintain the same presumption of innocence for athletes typically found in common law, then anti-doping regulation is to some extent sacrificing the rights of some falsely accused athletes in order to facilitate the sanctioning of those who test positive, whether innocent or not. This situation is the equivalent, in a hypothetical criminal setting, to asserting that an accused individual is innocent until proven guilty up to the point when that individual is charged by authorities with committing a crime – at that point, the individual is assumed to be guilty until proven innocent. The burden would then shift from the state having to prove that the individual is guilty to the individual having to prove innocence. Similarly, in anti-doping the practical implications of this reversal are profound as it also reverses the burden of proof from requiring the sport regulatory body to show the athlete is guilty to the athlete having to show that he/she is innocent. This raises two issues: one is that proof of innocence is as a matter of logic if nothing else far more difficult to achieve in practice than proof of guilt. Second, shifting the burden of proof to the athlete carries with it a heavy obligation to locate and pay for expertise needed to defend the athlete’s case. For many athletes, such resources will be beyond their means: ‘an athlete … is rarely equipped to hire competent counsel and scientific experts to defend against a doping charge’ (Weston 2009). It is a difficult task to demonstrate innocence in a case where the charge is abuse of a drug that is listed for unknown reasons. Since a drug can be added to the Prohibited List based on a speculative understanding of its performance-enhancing benefits or risks to health, an athlete cannot challenge the science of drug tests when the rationale for including the drug on the list is not scientific. Specifically, since WADA has little scientific evidence to argue for their case the frequency and possibility of false positives are not known. A CAS judgment makes this clear: ‘A mere hypothetical possibility of false positives, i.e. pure speculation about the unreliability of the testing procedure, is, on its own, not sufficient for calling into question the reliability of the testing procedure. Rather, evidence must be shown that the test procedure results are unreliable and that false positives occur. The threshold for this is high; for it must be taken into account that 1) the various WADA-accredited laboratories already have extensive experience with the testing procedure; 2) there is a long jurisprudential basis for the acceptance of the testing procedure within the CAS and other dispute resolution institutions in sport; 3) the validity of the testing procedure has been the subject of a number of studies that have been published in peer-reviewed journals and was also the subject of scrutiny at various scientific meetings.’45 Athletes charged with doping are apparently expected to meet strict evidentiary standards to which WADA does not hold itself.
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The reversal of the presumption of innocence serves to reduce the positive role that evidence might play in disputes over anti-doping. The reversal certainly streamlines prosecution for antidoping agencies, but at the price of due process for athletes. The moralistic language used by anti-doping agencies suggests that athletes who are guilty of doping, or even suspected of doping, should not enjoy the same rights as other athletes (Dimeo 2014, 2016). WADA often uses the phrase ‘protecting the rights of clean athletes’ to describe its mission.46 This would be akin to a government expressing its duty to protect the rights of innocent citizens. Under a just system of jurisprudence, it would seem obvious that all individuals have rights, whether innocent or guilty, accused or not, under suspicion or not. Anti-doping regulation is often discussed in moralistic terms, which Henne (2015) describes as ‘not simply about preventing the unfair use of performance-enhancing substances in sport, but also about protecting ideals around a presumed purity that athletes are to embody.’ Not only do the presumption of innocence and burden of proof change when an athlete is accused of doping, but when an athlete is judged to be ‘dirty’ rather than ‘clean’ then that athlete’s moral standing as an individual worthy of having rights worth protecting changes as well.
3.4. Evaluation of anti-doping policies Policy interventions preferred by anti-doping organizations to fight doping among athletes do not rest on a firm foundation of evidence. Despite the lack of evidence, education is often highlighted as a key approach to anti-doping: ‘WADA believes that a long-term solution to preventing doping is through effective values-based education programs that can foster anti-doping behaviors and create a strong anti-doping culture.’47 The notion that education can change behavior can be traced to the so-called ‘health belief model’ (Sheeran and Abraham 1996).48 The ‘health belief model’ is an antecedent to the more general ‘knowledge deficit model’ of science communication, which holds that educating or informing people is the basis for their behavioral change (Ziman 1991). Evidence that education can lead to desired behavioral changes is challenged in many contexts (Glanz et al. 2008), and anti-doping is no different. In 2007, WADA supported a review of evidence of the efficacy of educational strategies in response to doping in sport. That review does not support the contention that anti-doping education is an effective strategy of motivating antidoping behaviors (Backhouse et al. 2007): ‘Educating athletes about the effects of drugs, and specifically the adverse effects, may be a means of deterring drug use. However, this contention is not supported in the present review. Studies that employed interventions designed solely to provide subjects with information regarding drug use (anabolic steroids) in either a balanced format or with an emphasis on adverse consequences, were not effective to altering subjects’ attitudes or intentions.’ A follow-up assessment commissioned by WADA in 2015 concluded that little is actually known about what works in anti-doping: ‘definitive conclusions regarding the prevention of doping in sport remain elusive at this time.’ More generally, ‘Policy developments to prevent and detect doping in sport have moved rapidly and in advance of scientific research. This is important because policy informed by robust evidence is likely to be more effective and sustainable than that built on assumptions or “common sense”. The lack of evidence on the effects of anti-doping interventions remains a concern and highlights a significant need for investment’ (Backhouse et al. 2016). Of course, without reliable information on doping prevalence and how that metric changes over time it will be very difficult, if not impossible, to arrive at a robust understanding of what works in antidoping policy.
4. Analysis: options to better ground anti-doping regulation in evidence This paper has documented a series of systemic shortfalls in the use of evidence in anti-doping regulation. A consequence of a departure from grounding anti-doping in evidence is increased
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chances of inconsistent and arbitrary decision-making, thereby challenging the legitimacy of the international anti-doping regime. Reinforcing evidence-based policies and procedures in antidoping is not difficult, as there is a vast body of research and practice in other areas of regulation and policy from which to draw information (e.g. NRC 2012). Here we recommend specific actions to better ground anti-doping regulation in evidence and improve scientific integrity.
4.1. Prevalence monitoring The backbone and justification of an anti-doping regime expected to address anti-doping should be prevalence monitoring. To know the number and characteristics of athletes who are breaking anti-doping rules is essential for understanding the magnitude of the doping problem, for knowing where across sport (disciplines, countries) it may be concentrated, and will serve as a basis for mapping the efficacy of anti-doping regulations and policies. Ulrich et al.(2017) prototyped a random response technique commonly used in the social sciences to elicit accurate estimates of behaviors often hidden or otherwise difficult to quantify. Such a method (or similar) could be regularly employed across competitions as an expected component of anti-doping controls. The integrity and independence of a group of scientists monitoring prevalence should be formally recognized but kept independent of WADA in its work, with its results and methods routinely and rapidly published in the public domain. Until anti-doping organizations take prevalence monitoring seriously, it will be difficult to take anti-doping organizations seriously.
4.2. Reduce the size of the prohibited list The Prohibited List contains too many substances for effective regulation. Every substance on the list is accompanied by a cost – in money, time and societal resources. Anti-doping regulation can become far more efficient with a more rigorous dedication to scientific evidence in the construction of the list. There are various ways to make the Prohibited List more firmly grounded in evidence. An obvious first step would be for WADA to eliminate the listing criterion based on the ‘spirit of sport.’ A second step would be to make clear the evidentiary criteria for listing a substance or method. Pielke (2016a) argues that so long as a performance-enhancing substance like caffeine is allowed in competition, substances that are listed by WADA as prohibited should have at least the same performance-enhancing effects.49 WADA should publish its procedures for listing a substance or method on the Prohibited List and the evidence and criteria employed in specific listing instances, to make it available for challenge from athletes and scientists. The result would be a more effective and transparent anti-doping regime.
4.3. Strengthen athlete due process We suggest a broader commitment of WADA and other anti-doping organizations to the rights of all athletes, not just those deemed ‘clean.’ Such a commitment would manifest itself in actions such as equality of treatment of positive and negative samples, maintenance of the presumption of innocence throughout the arbitration and sanctioning process, a balancing of the weight of evidence presented by the WADA-accredited laboratories with independent expertise, and creation of mechanisms to correct flawed sanctions when evidence indicates that mistakes were made. There are structural and procedural biases against athlete rights found in WADA procedures for sample storage, presumption of innocence and burden of proof. There should also be more attention to the consequences when organizations violate the antidoping rules. We see such a bias in anti-doping regulation in the institutionalized doping conducted by Russia, in WADA’s unwillingness to correct obvious errors in sanctions (Pielke 2016b). Such a bias is reflected in the work of CAS. Viret (2015) observes a remarkable case in which documents used to convict an athlete of doping were actually falsified by the Beijing Laboratory during the Beijing
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Olympic Games (‘artificial documents’), yet the athlete’s conviction was nonetheless upheld: ‘Even in cases of blatant irregularities coupled with a lack of transparency and collaboration, CAS panels remain generally reluctant to openly express doubts about a laboratory’s probity. ’ WADA should adhere to the same standards that it expects from the stakeholders in sport that it regulates.
4.4. Conduct rigorous policy evaluation Anti-doping regulation has made important strides in since the 1990s. However, there are important actions needed to fulfill its promise. Among those is the ability to assess whether anti-doping policies and procedures are actually working to address the problem. As Viret (2015) observes, ‘an effective anti-doping program needs to include a system of detection that – apart from its deterrence component – is primarily directed towards one outcome: create evidence of antidoping rule violations that will pass the test of judicial scrutiny.’ If anti-doping is in fact to work then it should be able to not just quantify prevalence of doping, but to quantify the effects of various interventions designed to manage or even reduce doping in sport. The challenges of understanding what works in anti-doping regulation is not unique to this setting and is a challenge faced across many issues of policy. WADA could facilitate improved understandings by enabling a new approach to rigorous data collection on prevalence monitoring to be readily accessible to researchers, engaging in policy experiments designed to assess what might work in practice and committing itself to routine, external expert evaluation of its work.
5. Conclusion In conclusion, the various cases that we have discussed in this paper suggest that anti-doping regulation has departed significantly from a grounding in scientific evidence, and thus in many cases lacks scientific integrity. We do not believe these cases to be unique or rare instances, but rather reflective of systemic shortfalls in anti-doping regulation under WADA. To the extent that we are correct in this assertion, it would be highly problematic because the entire structure of a successful anti-doping regime is based on securing scientific integrity. In the absence of reliable evidence, decision-making often becomes arbitrary, inconsistent and irreproducible, which threatens the integrity of anti-doping decision-making, the due process rights of athletes and the sustainability of anti-doping efforts. To avoid arbitrary decisions the processes of the anti-doping regime should to a much larger extent be exposed and transparent to the public. Remedies to better ground anti-doping regulation in evidence are neither complicated nor expensive, but they do require a renewed commitment among sport governance organizations as well as athletes, their sponsors, and governments. The degree of that commitment will be shown by the future role of evidence in anti-doping.

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