As a three-week appeal window drew to a close, two of the most powerful anti-doping bodies in the world lodged appeals against the two-year doping ban handed down to Australian swimmer Shayna Jack.
In the early hours of Tuesday morning the World Anti-Doping Agency (WADA) confirmed to The Ticket that it had registered its appeal with the Court of Arbitration for Sport, 12 hours after Sport Integrity Australia (SIA) announced its own appeal.
WADA did not release any details, but it is understood to feel that Jack’s two-year suspension is too lenient.
SIA CEO David Sharpe said only that: “Sport Integrity Australia will always act to ensure a level playing field for athletes. In order to protect athletes and sporting competitions, we must have clarity and consistency in the application of the World Anti-Doping Code”.
In the strict-liability world of anti-doping, a positive test means a four-year ban.
The only option is to convince the anti-doping tribunal or the Court of Arbitration for Sport (CAS) that ingestion of the substance was accidental and that every possible precaution was taken to guard against such an occurrence, and potentially have the four years reduced.
As Jack did.
Those who are not elite athletes, but casual observers, might describe such “unintentional cheating” —usually by consuming something that is contaminated, such as a supplement, or meat, or water — as proof of innocence of doping.
In the world of elite sport there is no such thing. Whether the rules as they exist are as fair as the “level playing field” they were designed to protect is a debate that has been gaining intensity.
Jack’s case was originally heard by a single arbitrator, the experienced Sydney QC Alan Sullivan.
The appeal will be heard by a panel of three — one arbitrator to be selected by the swimmer, one selected by the appealing party, and a third to act as president of the bench, selected by the CAS itself.
Appeals are heard “de novo”, or “afresh”, meaning the whole process starts again. Those who are experienced in the operation of the court say the appeal will take between six and nine months.
Jack’s plan to resume her career in June next year has disappeared. If the appeal is dismissed, by the time the hearing is over she will have already served two years out of the sport. If it is upheld it is unlikely she will return to elite swimming at all.
A short career cut shorter.
The global fight against doping in sport costs hundreds of millions of dollars each year. Staunch advocates of the system believe any weakness in prosecution must be avoided to guarantee the most severe deterrent possible to prevent athletes from succumbing to intentional cheating.
Others believe innocent athletes are being rubbed out of sport because of anti-doping’s draconian regime, and are being left to carry the burden of being called a “drug cheat” for the rest of their lives.
WADA’s founding president, IOC member Dick Pound, on first hearing the news that Jack’s ban was for two years, commented: “Your athlete was not innocent — it was a doped athlete, it was a doping offence.
“The only argument was what was the length of the sanction? She got that reduced because the CAS panel determined there was no significant fault.
“I don’t know what evidence they heard to overturn the four-year part, as opposed to two years, but that’s what courts are for … the sentence of the guilty person is reduced, but the person is still guilty.
The arbitrator who heard Jack’s case initially wrote that the World Anti-Doping Code “makes it plain that the term ‘intentional’ is meant to identify those athletes who deliberately set out to cheat”. Anti-doping zealots disagree.
“As stated [in another case] ‘the currency of such [denials] is devalued by the fact that it is the common coin of the guilty as well as of the innocent,” Sullivan said.
“While that is true, it would be an over-cynical and wrong approach to the evidence of [Jack] to start with the presumption that what they say is not to be believed if corroborated by other objective evidence.”
Jack’s case is not unusual. There has been a spate of athletes returning positive tests to very small amounts of banned substances that were previously unable to be detected.
Recently, a sample re-test of London 2012 relay swimmer Brenton Rickard came back positive to an amount of a banned substance deemed to be ‘pharmaceutically irrelevant’.
It will cost the Australian relay team its Olympic bronze medal because, as Dick Pound says, if you return a positive you are guilty, the only question is “by how much?”
A recent spate of 26 ‘small-amount’ positives were returned in the USA. The head of its anti-doping body, USADA, is Travis Tygart, the man who relentlessly pursued cyclist Lance Armstrong.
Tygart recently told The Ticket the anti-doping system needs to change.
There is only one person who truly knows if Shayna Jack is a drug cheat, and that is herself.
Yet the system she finds herself in is one where she is guilty, even if she happens to be innocent.
In sporting terms that is known as “protecting the level playing field”.
