Marquette Sports Law Review Volume 18 Article 2 Issue 1 Fall WADA Drug Testing Standards Richard H. McLaren Follow this and additional works at: http://scholarship.law.marquette.edu/sportslaw Part of the Entertainment and Sports Law Commons Repository Citation Richard H. McLaren, WADA Drug Testing Standards, 18 Marq. Sports L. Rev. 1 (2007) Available at: http://scholarship.law.marquette.edu/sportslaw/vol18/iss1/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For more information, please contact [email protected]. ARTICLES WADA DRUG TESTING STANDARDS* RICHARD H. MCLAREN** I. INTRODUCTION The recently completed Floyd Landis' decision represents the most extensive and intensive examination to date of the laboratory procedures in use in World Anti-Doping Agency (WADA) accredited laboratories. Earlier cases have challenged the testing procedures 2 as, for example, in erythropoietin (EPO), 3 nandrolone, and homologous blood transfusions, 4 but none match the challenge in the Landis case, which went far beyond the testing methodology for the detection of testosterone. Originally delivered on September 28, 2007, at the National Sports Law Institute's annual conference at Marquette University, which was titled "The Increasing Globalization of Sports: Olympic, International and Comparative Law & Business Issues." LL.M., London, 1972; LL.B., University of Western Ontario, 1971; H.B.A., University of Western Ontario, 1968; Member of International Court of Arbitration for Sport; Chairman of the Independent International Commission of Inquiry on Doping Control; Past Co-Chief Arbitrator for ADRsportRED, a body dealing with Canadian sports at the national level; Past Chairman of the Association of Tennis Professionals Anti-Doping Tribunal; Co-founder of Sport Solution, an athlete advocacy association. The author would like to acknowledge the assistance of his researchers to the development of this paper. My thanks to Geoff Cowper-Smith, Sharon Kour, Alana Shepherd, and all of the Western Law Class of 2009. Without their assistance, this paper could not have been wntten. 1. USADA v. Landis, AAA No. 30 190 0084 06 (Sept. 2007) (majority opinion). 2. For a discussion of those challenges, see Richard H. McLaren, Revised or New Test Procedures: What CAS Requires, 3-4 INT'L SPORTS L.J. 36 (2006). 3. Lazutina v. IOC, CAS 2002/A/370; Danilova v. IOC, CAS 2002/A/371; Lazutina v. FIS, CAS 2002/A/397; Danilova v. FIS, CAS 2002/A/398; Lazutina & Danilova v. IOC, Swiss Federal Tribunal, 4P. 267/2002 (2003); Muehlegg v. IOC, CAS 2002/A/374. Danilova and Lazutina appealed the CAS decision in the FT, Switzerland's supreme court, although they had been advised to suspend their appeal until the conclusion of Lazutina's appeal of her FIS suspension. The appeal of the CAS decision hinged on the fact that darbepoetin was not on the list of prohibited substances and that the test used was not IOC certified. The appeal was dismissed. Lazutina was stripped of her Olympic silver medal, although Danilova was permitted to retain the gold. Canadian Beckie Scott was awarded the Olympic silver medal as a result of Lazutina's suspension. 4. USADA v. Hamilton, AAA No. 30 190 00130 05 (2005); Hamilton v. USADA & UCI, CAS 2005/A/884. MARQUETTE SPORTS LA W REVIEW [Vol. 18:1 The history of drug testing dates back nearly a century to 1928 when the International Amateur Athletics Federation, now known as the International Association of Athletics Federation (IAAF), banned the use of performance- enhancing drugs, which at that time were all exogenous. The IAAF was the first international federation to do so. This paper traces the recent history of doping tests in sport and the issues arising from drug-testing standards associated with the use of the "B" sample. The exploration of this history culminates in a discussion of twenty-first century cases that have focused on drug-testing standards and the methodology of testing for performance- enhancing drugs. These cases highlight an interesting and ever more sophisticated course of challenges to the increasingly technologically- sophisticated anti-doping analytical arsenal. II. DRUG TESTING STANDARDS FROM THE 1960S TO THE 1980S The early 1960s to late 1980s book-ended a period where the apex in testing for performance-enhancing drugs came with the announcement that Ben Johnson, the Canadian 100-metre sprinter who smashed the world record at the Summer Olympics in Seoul, had tested positive for the anabolic steroid stanozolol. Never before had a marquee athlete been caught at a competition and disgraced for engaging in the use of performance-enhancing drugs. It was the marker event that set off the drug-testing trend still evident today. The fallout in Canada was nothing less than overwhelming anguish and anger, resulting in the most extensive inquiry into drugs in sport by the former Chief Justice of Ontario, Charles Dubin.5 On the horizon, the forthcoming Major League Baseball Inquiry under Senator George Mitchell will mark the next chapter of self-examination by sport into the chemical warfare waged inside the bodies of athletes. In the wake of a series of doping related scandals and deaths in the 1960s, sports authorities and nations alike finally stepped up to the challenge in the form of a more thorough intervention to prevent the use of performance enhancing substances. In 1965, France and Belgium each passed anti-doping laws in sport.6 A few months later in 1966, the IAAF made a decision to subject athletes to random doping tests at all future track-and-field competitions taking place at the Olympic Games or European 5. DUBLIN COMM'N, CANADA, REPORT OF THE COMMISSION OF INQUIRY INTO THE USE OF DRUGS AND BANNED PRACTICES INTENDED TO INCREASE ATHLETIC PERFORMANCES (1990). 6. Jan Todd & Terry Todd, Significant Events in the History of Drug Testing and the Olympic Movement: 1960-1999, in DOPING IN ELITE SPORT: THE POLITICS OF DRUGS IN THE OLYMPIC MOVEMENT 67 (Wayne Wilson & Edward Derse eds., 2001). 2007] WADA DRUG TESTING STANDARDS Championships. 7 That same year, the International Olympic Committee (IOC) formed the IOC Medical Commission. 8 The Medical Commission promulgated the first formal rules for Olympic competition in the form of IOC Medical Commission Anti-Doping Rules that were applied for the first time at the Winter Olympic Games in Grenoble, France, in 1968. Even in light of these new measures, the scandals continued. It seemed that each time testing authorities amplified their efforts, a new doping agent appeared or the accused athlete's positive sample was simply ignored. Unsatisfactory chain-of-custody procedures 9 and unreliable testing methodology' 0 resulted in both false positives and false negatives. This made it extremely difficult to put forth watertight cases. The result was that some competitors were gaining an unfair advantage by altering their physiology by means of chemical manipulation. In essence, athletes were playing the doping game far more adeptly than the testers and not getting caught. One athlete was quoted boasting that "when they get a test for that [new doping substance] ' we'll find something else. It's like cops and robbers."] I Sample collection and laboratory testing procedures had to be standardized and regimented to counter this seemingly irreverent attitude that doping athletes displayed toward the testing process. Sports authorities with anti-doping programs required that the laboratories adhere to documented procedural standards for collection and testing. One of the landmarks of this push towards stricter procedure was the IOC's recognition in 1977 of a need for the accreditation of designated testing laboratories. 12 The IOC requirements for accredited laboratories eventually became the de facto standard for even non-Olympic sports testing laboratories.13 Of the numerous procedural requirements that would be formalized through anti-doping programs, one in particular has become a noticeable source of controversy- the "B" sample test. The purpose of this confirmatory test was originally to 14 verify the initial adverse finding before an athlete's appointed delegates. This purpose, however, may have changed over the past three decades. The motivation behind the requirement of this test may have now metamorphosized over the years from scientific necessity to psychological 7. Id. at 68. 8. DRUG CONTROVERSY IN SPORT 26 (R.S. Laura & S.W. Wute, eds., 2005). 9. ROBERT VOY & KIRK DEETER, DRUGS, SPORT, AND POLITICS 78 (1991). 10. Id. at 77. 11. Todd & Todd, supra note 6, at 69. 12. Id. at 76. 13. BARRIE HOULIHAN, DYING TO WIN 155 (2nd ed., 2002). 14. DRUG CONTROVERSY IN SPORT, supra note 8, at 28. MARQUETTE SPORTS LA W REVIEW [Vol. 18:1 crutch and has now become an athlete's right. It also appears that the "B" sample test may be used for little more than grounds for procedural tactics in 16 the ensuing arbitration-for both the accused 15 and accuser. Where exactly the "B" sample requirement of the testing process had its origins is difficult to pinpoint. Unreliable doping tests were perhaps the initial motivation for the "B" sample confirmation test, and so the origin may have been at the beginning of the 1960s. In the early days of testing in the 1960s and 1970s, laboratory technology was relatively unsophisticated and tests were based solely on the analysis of the athlete's urine sample. This single line of analysis often provided unreliable results. 17 At the time, it appeared that the testers were wary of announcing a positive test due to the potentially destructive impact the allegation would have on the athlete's career. Scientists were reluctant to provide potentially inaccurate results as evidence used to fuel a fire. 18 They were also concerned that the legal system might overturn laboratory results and were only willing to expose the laboratory to the legal system if there was certainty of a favourable outcome, preferably the confirmation of a positive test.