05-10-07

New Equine Doping Regulations Equestrian sport has been much maligned for its failure to control the doping of its equestrian athletes. Recurrently, scandals have followed where governing bodies have imposed or failed to impose regulatory sanctions, such as disqualifying individuals from events and so relegating teams in which they have been members. At The Athens Olympics, Cian O'Connor was stripped of his individual show jumping gold medal and served a three month ban from international competition. The horse he was riding at the Olympics tested positive for a substance used to treat psychotic behaviour in human beings. O'Connor was not however banned from national competitions, even on that horse. In Athens, German team member Ludger Beerbaum was also sanctioned for a positive test. He was disqualified from the event and in consequence Germany lost the team gold medal in show jumping. Bettina Hoy the gold medal winner in dressage also tested positive. Although the offence is one of strict liability, she succeeded in defending the disciplinary proceedings as the administration of the Athens veterinary clinic had failed on the basis that she had been misinformed by an official veterinary representative who told her that a product which she used did not contain a prohibited substance. Medication of horses appears to be endemic in equine disciplines, yet every rider, as opposed to their horse, who underwent anti-doping control in Athens tested negative. Immediately before the Games, as part of the pre Athens Olympic program, a British Team rider was the first ever rider to be sanctioned for human doping. In June 2004 the rider tested positive for a stimulant, phentermine, taken on prescription to correct his weight problem. The World Anti Doping Code (WADC), did not yet apply. Nonetheless as part of the zero tolerance stance against doping envisaged, this rider was sanctioned with a four month suspension by The British Equestrian Federation; a month more than the most severely reprimanded Olympic medal winner Cian O'Conner. Any sport which participated in The Athens Olympics had to adhere to the WADC, and this regulatory structure remains a corner stone of the Olympic ethos. The WADC applies to all Olympic riders just like all other human Olympic athletes. The WADC mandates a two year suspension from national and international competition for a positive test. Despite this clear regulation we find the International Equestrian Federation still unresolved about sanctioning Thomas Fruhmann who tested positive for a banned substance at London Olympia in December 2005. (It is an anecdotal coincidence that the only two riders ever to have tested positive for human doping have been winners of the World Cup Qualifier at London Olympia). Prior to The WADC one of those riders was immediately suspended for four months (reduced to 2 months after a costly appeal hearing). Post the WADC the other rider, Mr Fruhmann, has yet to have any suspension imposed whilst The International Equestrian Federation (FEI) is lobbying the World Anti Doping Association to allow it and other sporting regulators a greater discretion as to the level of sanctions. In anticipation of these changes the FEI has adjourned imposing any suspension upon Mr Fruhmann for almost two years and his suspension will eventually be considered, it appears, under rules which did not even exist at the time of his regulatory offence. This is a novel legal approach to say the least. The suggestion, however, that the FEI, and its affiliated governing bodies, should retain discretion in regulating their sport is by no means novel and following Athens, it introduced the Equine Anti-Doping and Medication Control Regulations (the Regulations) in June 2006. The preface to the Regulations states; "Equine medication control rules seek to prevent medication violations that may affect performance or mask an underlying health problem whilst in some instances providing appropriate treatment to safeguard the health and welfare of the competition horse" . This is not a task for the faint hearted regulator. It is a minefield for the riders who will be sanctioned if the horses return a positive test and for their vets. The Regulations provide for a three-tiered system. The Equine Prohibited List classes prohibited substances as "doping", "medication class A" and medication class B", according to whether they are likely to be used medicinally and therefore susceptible to unintentional violations, or more likely, to be intentionally used in an attempt to enhance performance. A contravention with a doping substance is known as "an anti-doping rule violation" and a class A or B substance contravention is called a "medication control rule violation". The list changes from time to time and publication on the FEI website is deemed adequate publication. The substances are listed by chemical quality or effect rather than as products. At the end of each list there is a substance catch all as follows: "and any other substances with a similar chemical structure or similar biological effect(s)". In addition a number of the prohibited substances are to be tolerated at specific threshold levels. The list of substances is very difficult for a lay person to follow and ultimately requires the riders to clear with expert guidance every substance which routinely their horses ingest (including food stuffs) or have administered. If non-routine substances are used, to ensure peace of mind, the rider has no option but to consult and pay for expert advice. This is a very onerous burden to place upon riders constantly travelling and often with inadequate veterinary and other support. It is further complicated by the difficulties faced by vets. As the testing procedures become more advanced and both smaller levels and different types, of substances which fall within the broad categorisations set out in the prohibited substance list can be detected, the vets and in turn the riders may find horses testing positive for a substance they genuinely believed never to have been or no longer was to be present in the system. Therapeutic use exemption, emergency treatment exemption and elective testing procedures do exist but these do not provide an adequate or practical solution for the riders and their horses in the fair versus foul balancing act. They deal with specific situations. Some type of elective testing may be an option, but presently it does not seem to be a recognised option amongst riders. The offences are strict liability. In its Competitors' Guide, the FEI states that, for example, stable security, or the lack of it, cannot be used as a valid excuse for a positive test. In law whilst the burden of proof would be onerous, establishing that there had been a breach of stable security would be just the type of limited exception which could shift the liability. All violations will result in disqualification of the horse and rider from the event at which the test was undertaken. Fines may also be imposed. The discretion however is most far reaching in respect of the period of ineligibility sanction which may be imposed. For doping a period of ineligibility of up to two years suspension for the first violation, and where within five years there is a second violation (anti doping or medication A or B) a period of ineligibility of up to four years, may be imposed. For medication class A the first violation may attract a suspension of up to a one year and where there is a second violation a ban of up to four years. A Medication class B contravention will not attract any suspension and if there is a subsequent doping violation the suspension may be for only one year, unless the FEI can prove the offender sought to enhance performance. It is a remarkable feat of drafting which creates a lesser sanction for the most onerous offence if it is committed as a second rather than a first offence! The sanction may be eliminated if the rider bears "no fault" and "no negligence" and that person can establish how the substance entered the horses system. It may be reduced if the rider bears "no significant fault" and "no significant negligence" and can establish how the substance entered the horse's system. Since the introduction of the Regulations a number of riders have had imposed upon them periods of ineligibility ranging from two months to twelve months. Those sanctioned have included amateurs, veterans and the parents of child competitors. The longest suspension so far is twelve months which was imposed upon a Russian rider. Riders of high ranking status are noticeably absent so far, from those sanctioned with suspensions for offences committed since the introduction of the new rules. Daniel Duesser finished second in the World Cup final in April 2007. The sample from his horse tested positive for the doping substance reserpine. Duesser was not prosecuted and the FEI website explains "Based on a number of factors related to the testing procedure and integrity of the samples in this case, the Investigating Body has determined that it cannot assert that a rule was violated in this case, and the rider has been informed accordingly." Most recently Irish team member and currently fifth ranked in the world, Jessica Kurten returned a positive test with her ride Castle Forbes Maike. This is public knowledge despite the confidentiality which ought to have prevailed whilst the B sample was tested. Perhaps as an illustration of how the system could work, World ranked number one Meredith Michaels Beerbaum's European Championship ride also tested positive for a substance given to treat the horse's knee prior to the Championships. Official Veterinary clearance at the Championships however was sought and obtained and no offence committed. There are unavoidable doubts about the whether the Regulations will achieve their desired aim. The inevitable concern must be that given the uncertainly of their ambit and inherent discretions only the riders with sufficient resources; veterinary, legal and financial, are going to manage to perfect critical the balance.
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