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Details of the Merlene Ottey
Decision
 7 July 2000 - Monte Carlo -
The
reinstatement of the Jamaican athlete Merlene Ottey by the IAAF
Arbitration Panel following an adverse finding for Nandrolone, has
occasioned a number of speculative reports in the media and many
requests for further information from all parts of the World
Athletics Family. In the interests of information and
transparency, the IAAF has decided to release the full text of the
decision of the IAAF Arbitration Panel, which under the terms of
the IAAF Constitution is final and binding on all parties.
"In the matter of an arbitration
initiated by the International Amateur Athletic Federation (IAAF),
Applicant, under IAAF Rule 21 para 3 (ii) in a case where a member
of the IAAF, the Jamaican Amateur Athletic Association (JAAA),
Respondent, has held a hearing under IAAF Rule 59
"Disciplinary Procedures for Doping Offences" and the
IAAF believes that in the conduct or conclusions of such hearing
JAAA has misdirected itself or otherwise reached an erroneous
conclusion.
Whereas:
- A dispute between a Member and the
Council of the IAAF may be submitted to the Arbitration Panel
in a matter where a Member has held a hearing under Rule 59 in
a doping offence and the IAAF believes that in the conduct or
conclusions of such hearing the Member has misdirected itself
or otherwise reached an erroneous conclusion (Rule 21 para. 3
(ii));
- The JAAA is a Member of the IAAF and
has held a hearing in Ms. Merlene Ottey’s case and the IAAF
Rules are the valid rules to be applied in this case, when a
doping test has been undertaken;
- By Statement in support of its
Reference dated 29 April, 2000 under cover letter of 4 May,
2000 the IAAF Council referred to the Arbitration Panel the
matter of the decision of the JAAA of 7 December, 1999 to
exonerate Merlene Ottey of a doping offence, based on the
conclusion inter alia that on the material adduced before it,
the scientific evidence does not support an exogenous source
of the metabolites detected in the urine samples; accordingly,
the JAAA’s tribunal was not sure that the substance reported
was ingested by her and not produced endogenously.
Now we Christoph Vedder, chairman, Monty
Hacker and Judge James Murphy,
being the Arbitrators appointed from the Panel elected pursuant to
the IAAF Rules,
 Having taken note of the said Referral to
Arbitration, the Statement of IAAF in Support of its Referral, the
Response of both JAAA (dated 8 June, 2000) and of Ms. Merlene
Ottey (dated 29 May, 2000) and the documents and references in the
bundles collected by both IAAF and JAAA and on behalf of Ms.
Merlene Ottey,
Having held a hearing on 16 and 17 June,
2000 and heard the various submissions made by Counsel on behalf
of IAAF and JAAA and Merlene Ottey:
 The Hon. Michael Beloff Q.C. assisted by
Mark Gay Esq. and Ms. Karen Langlois appeared for IAAF.
The Hon. Charles Flint Q.C. appeared for JAAA
Dr. Lloyd Barnett appeared for JAAA
Dr. Stephan Netzle appeared for Ms. Merlene Ottey
And having heard the following experts:
- On behalf of the IAAF:
Dr. Martial Saugy
- On behalf of Ms.
Merlene Ottey:
Dr. Simon Davis
Dr. John Honour
Do hereby make this
decision:
- On 5 July 1999, Ms. Merlene Ottey, an
athlete under the jurisdiction of IAAF, was subject to a
post-competition test in a meeting organised by the European
Athletic Association, an Area Group, in Lucerne, Switzerland.
The "A" sample was analysed at the IOC Accredited
Laboratory in Lausanne, Switzerland on 9 July, 1999 and showed
the presence of 19-norandosterone (NA) in a concentration of
15ng/ml and of 19-noretiocholanolone (NE) in a concentration
of 10ng/ml. These two substances are metabolites of nandrolone.
- On 2 September, 1999 at the Lausanne
laboratory analysis was conducted on the "B" sample
obtained from Ms. Ottey. This analysis was attended amongst
others by Mr. Daniel Zimmerman representing the athlete, The
results of the "B" sample analysis also showed the
presence of ± 14ng/ml of 19-NA and ± 11ng/ml of 19-NE.
- The results of the "B"
analysis confirmed those of the "A" analysis and
therefore Ms. Merlene Ottey was suspended pending a hearing
before JAAA’s relevant tribunal. This tribunal heard the
case on 30 November, 1999. A written judgement was produced on
2 December, 1999 which was formally ratified by a decision of
JAAA’s Executive Board on December 7. It was determined that
Ms. Merlene Ottey had not committed a doping offence and
therefore her suspension was lifted. The JAAA based its
decision primarily on the arguments that the JAAA had failed
to prove that the sample tested positive had derived from Ms.
Ottey and that the chain of custody had been established and
that as IAAF Rules did not create an absolute offence, the
burden lay upon the JAAA to establish an exogenous source for
the finding of the prohibited substance. On the basis of the
evidence it received, the tribunal decided that it could not
be sure that the substance detected was ingested by Ms. Ottey
rather than being produced endogenously.
- By decision of 12 February, 2000 the
IAAF Council suspended Ms. Merlene Ottey by virtue of Rule
59.2 as amended.
- During the hearing, several
applications were made. Following presentation of the opening
statements by Counsel, the Arbitration Panel having considered
the suggestions put before it issued the following decision
concerning the admissibility of the reference and other
preliminary matters.
- The referral to Arbitration made by
IAAF received by the Chairman of the Arbitration Panel on 4
May, 2000 is admissible.
- Applying the rule of lenity in
favour of the respondent and the athlete the latest
application of the Rule change from 3 to 6 months would be 1
January, 2000, the date of the publication of the new
Handbook. However, the JAAA was aware of the rule change
from three to six months prior to the hearing in December as
shown by their representation at Congress on August 17 –
19, 1999, when the change was adopted as shown by the
Minutes. The rule change was outlined in the IAAF Newsletter
of September 1999, sent to all Member Federations. Under
these circumstances, the Arbitration Panel invokes Rule 21.1
sub para. 2 which allows it to accept the referral
considering it to be fair and reasonable.
- The alleged improper contact between
IAAF and the athlete has no relevance to the issue of the
admissibility and under Rule 55.11 it casts no doubt as to
the reliability of the finding that a prohibited substance
may be present in a sample.
- The point of waiver attributed to
the non-attendance by IAAF at JAAA’s hearing is rejected
as having no substance.
- The Arbitration Panel states that this
is a hearing de novo.
- During evidence, the only persons who
may be present are the parties and their representatives and
in the case of expert evidence, the opposing party’s
experts.
- The Arbitration Panel invites the
parties to address them further if they consider it necessary
on the issue of burden of proof.
- Upon resumption of the hearing, IAAF
applied for an adjournment to secure the attendance of their
expert witnesses. Having considered the arguments put forward
by both parties the Arbitration Panel issued the following
decision:
- The application is denied as far as
the matter of endogenous production is concerned. The issue of
possible endogenous production of nandrolone or its
metabolites was raised in JAAA’s decision of 7 December,
1999 and was addressed in IAAF’s statement in support of the
referral to arbitration dated 29 April, 2000.
- It appears that the issues of
"innocent substances" and the interaction of several
causes, have not been previously addressed and therefore, if
the Respondent wishes to adduce evidence on the subject, the
IAAF will be afforded a postponement to allow to respond.
The Respondent and the representative
of Ms Ottey declared that they do not continue to rely on the
subject matter of "innocent substances" understood by
common agreement as substances taken through exogenous
administration.
- At the continued hearing, IAAF made an
application to allow Prof. Hemmersbach to give testimony by
the production of a paper he had written himself and by means
of a telephone conference. The Arbitration Panel dismissed the
application.
- The respondent and Merlene Ottey’s
Counsel went on record and stipulated to acknowledge the chain
of custody, the propriety of the collection procedure, the
testing of the sample and the findings of the laboratory in
respect thereof as well as the identification of the source of
the sample as derived from Ms. Ottey. The parties agreed that
the specific gravity readings and the nanogramme readings and
the laboratory reports for the "A" and "B"
samples were not disputed. What was challenged was the method
of interpretation of these readings, regard being had to the
degree of degradation of the samples between the times of
voiding and the "A" and "B" sample
laboratory analyses respectively.
- In terms of Rule 55.2
(i) as read with
Rule 60.1 (i) a doping offence occurs when a prohibited
substance is found to be present in an athlete’s body
tissues or fluids.
- Nandrolone and its chemically or
pharmacologically related compounds is a prohibited substance
as provided for in Rule 55.3 as read with Schedule 1, Part
I(a)(i) of the Procedural Guidelines for Doping Control.
According to Rule 55.6, "prohibited substances"
shall include metabolites of their substance. However, Rule
55.2 (i) does not distinguish between exogenous administration
and endogenous production of a prohibited substance.
- According to and applying Rule 59.5,
the IAAF has the burden of proving beyond reasonable doubt
that a doping offence has been committed.
- Hence, the Rules do not require that
IAAF (or in the case under consideration the JAAA before its
relevant tribunal) has to prove that the prohibited substance
was exogenously administered. The decision of JAAA’s
Tribunal is based on a wrongful construction of the pertinent
rules.
- Merlene Ottey disputed that she had
committed a doping offence and contended that the level of
19-NA found in her samples was produced endogenously. A
growing body of evidence suggests that 19-NA is naturally
present in low but clearly detectable concentration in the
urine of men and women. This concentration appears to be
greater in women generally and particularly if pregnant or in
their menstrual cycle. It is undisputed that Ms. Ottey was
mid-cycle at the time of the Lucerne Meeting. This time is the
most fertile in terms of hormone production.
- Neither the Rules nor the Procedural
Guidelines for Doping Control consider the existence of
naturally produced nandrolone or its metabolites.
- If the Arbitration Panel were to apply
the Rules as they presently stand, the IAAF would have proved,
beyond reasonable doubt that a doping offence has been
committed. However, the panel considered the impact of
naturally produced nandrolone and its metabolites and found
that a lacuna exists in Schedule 1 Part I (a) of the
Procedural Guidelines for Doping Control as read with Rule
55.2 (i). It is because the rules as read with the Procedural
Guidelines for Doping Control provide, in the case of the
endogenous production of testosterone beyond normally
acceptable limits, a procedure designed to avoid prejudicing
the athlete. By analogy and in fairness to the athlete the
Arbitration Panel invokes and applies the underlying principle
applicable to testosterone to the issue of nandrolone.
- As stated, the IAAF bears the burden
of proving all the elements of the offence beyond reasonable
doubt. To do so, it must prove that that the quantity of 19-NA
found in Merlene Ottey’s samples so exceeds the range of
values normally found in humans as not to be consistent with
normal endogenous production. Had it done so, Merlene
Ottey’s samples would be deemed to be positive and it would
then become the burden of the athlete to prove by clear and
convincing evidence that the quantity of 19-NA found is
attributable to a pathological or physiological condition.
Therefore, the construction of the Rules and Guidelines as
relied upon by the tribunal of the JAAA and on behalf of Ms.
Ottey cannot be sustained.
- It was the IAAF’s contention that
the "A" sample showing 15ng/ml of 19-NA exceeds
normal endogenous production. Also noted was the Nagano study
carried out at the Nagano Olympic Games on 251 women athletes
following competition, none of whom produced a 19-NA sample in
excess of 5ng/ml. This and other evidence suggest an upper
limit for endogenous production of 19-NA by non-pregnant women
of 5ng/ml.
- The IOC produced a document for the
guidance of accredited laboratories, entitled "Analytical
Criteria for Reporting Low Concentrations of Anabolic
Steroids" (August 1998), which was introduced into
evidence by the parties at this hearing. The document
recommends that a report should not be issued for non-pregnant
females if the concentration in the test sample is less than
5ng/ml. It also recommends that adjustment of the reporting
concentration must be made if the specific gravity of the
urine sample is greater than 1.020. If so, the IOC recommends
increasing this minimum with regard to the amount by which the
specific gravity of the urine sample exceeds 1.020. This is
recommended as the IOC recognises that among other factors,
during intense physical activity a degree of dehydration may
occur, causing urine to become concentrated. This may increase
the measured concentration of excreted substances, possibly up
to fourfold. The James Report, a report to the UK Sports
Council from the Expert Committee, dated 18 January, 2000
referred to by all parties at this hearing, approves of this
IOC recommended procedure as the most appropriate method of
correction when necessary.
- On 5 July, 1999 Ms. Ottey competed in
both the 100m and 200m events in less than 90 minutes on a day
that produced a temperature ranging from 25.5 – 28 C between
the hours of 13h00 and 19h00. She had travelled to the meeting
by air carrier. All factors tend to support a finding of urine
concentration due to some dehydration justifying a specific
gravity reading of 1.025 when her sample was collected at the
time of the voiding.
- Applying the correction recommended by
the IOC and as approved by the James Commission, the urinary
19-NA concentrations detected equalled an average of 4.53 ng/ml
of urine which does not exceed the IOC suggested reporting
threshold of 5ng/ml for non-pregnant females. Thus Ms.
Ottey’s urine failed to display the characteristics of a
sample from an athlete who has exogenously administered
nandrolone or its metabolites.
- In applying the principles enunciated
above, IAAF has failed to prove beyond reasonable doubt that
the quantity of 19-NA found in the Merlene Ottey’s samples
exceeds normal endogenous production. According to the
evidence and the literature placed before the Arbitration
Panel, it is generally accepted that a finding of higher than
5ng/ml is not attributable to normal endogenous production.
Nevertheless, the same scientific literature, including the
IOC recommendation accepted by the parties, provides the
correction formula mentioned in paragraphs 18 and 20. The
parties also accepted that the specific gravity dipstick
reading (as converted) would fall below 5ng/ml, if it were to
be corrected.
- Under these circumstances, the issue
the Arbitration Panel had to determine was which specific
gravity reading to rely upon, either the reading taken at the
time of the voiding of the sample (1.025), or the later
readings at the time of laboratory testing (1.019) for the
purpose of triggering the correcting formula. The Arbitration
Panel found that the correct specific gravity reading to
accept would be that taken at the time of voiding, which would
thus trigger the application of the correction formula. As a
consequence, the Arbitration Panel accepts that the adjusted
19-NA reading falls below 5ng/ml and therefore would not
require the reporting of the finding of a prohibited
substance. In any event, the IAAF failed to discharge its
burden of proving, beyond reasonable doubt, that for the 19-NA
reading to be at 15ng/ml, the time for the determination of
the specific gravity had to be the time of the laboratory
testing and not at the time of voiding. Therefore the IAAF has
failed to discharge its burden of proof that a doping offence
has occurred beyond reasonable doubt.
- The JAAA and Merlene Ottey have each
made application to the Arbitration Panel for an award of
costs and disbursements occasioned by the IAAF referral to
arbitration. We find that because the parties each prevailed
in part and failed in part, it is equitable that each party
bears its own costs.
- We therefore decide:
- That the referral to arbitration
is dismissed;
- That in terms of Rule 59.2 as
amended, the suspension of Ms. Merlene Ottey expires upon
the delivery of this decision;
- That as each of the parties have
prevailed in part and failed in part, it is equitable that
each party bears its own costs. "
Christoph Vedder - Monty Hacker
- James Murphy
July 3, 2000
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