The Mexican Five: WADA Backs Down

• by Paul Gardner , Oct 13, 2011

By Paul Gardner

Definitely not a good week for WADA. That is the group -- the World Anti-Doping Agency -- that works tirelessly to keep sports, all sports, free from the scourge of performance-enhancing drugs.

Last week the Court of Arbitration for Sport (CAS) threw out an International Olympic Committee regulation that held that any athlete who has been found guilty of a doping offense -- and has paid the penalty for it, usually with a lengthy suspension from sporting activity -- could never again participate in Olympic competition. The ban, said CAS, was “invalid and unenforceable.”

OK -- that was an IOC regulation that was overturned, but it is wholly in line with the stern zero-tolerance WADA approach. That approach was further damaged earlier this week by events in another case, this one involving the five Mexican soccer players who tested positive for a banned drug right before this year’s Gold Cup tournament.

As soon as the results were announced -- oh yes, they were made public immediately, the accused were named -- the players were suspended. Assumed, in other words, to be guilty. No Gold Cup for Guillermo Ochoa, Edgar Duenas, Francisco Rodriguez, Antonio Naelson and Christian Bermudez. For Mexico, things ended happily -- it won the Gold Cup anyway.

But what about the players, who claimed total innocence? The drug, they said, must have entered their systems unknowingly, must have been present in something they ate. Such reasoning cuts no ice at all with WADA, which has heard it all before, and has found that it is invariably a last-ditch excuse from the guilty.

But in this particular case there was reason to take the excuse more seriously. The drug involved was clenbuterol, a performance-enhancing steroid that is also used by farmers, who feed it to livestock, poultry and cattle, to increase the muscle-bulk (i.e. the edible portions) of the animals. That practice is illegal in most countries. But it is widely known that it is nonetheless common in certain countries. Including Mexico.

So, there was at least a prima facie case to be made that the five Mexican players, in the team’s training camp, had eaten contaminated meat. Something that, if true, ought to establish their innocence.

Legally, maybe. But not under the procedures of WADA’s Inquisitional approach. WADA insists that any athlete who tests positive for any substance on its banned list (a formidably long list that gets regularly longer) is automatically guilty of doping, and is immediately liable to severe punishment, which could include a lengthy ban from sport.

It is up to the athlete to prove his or her innocence. Which may be virtually impossible, because under the WADA code -- quite incredibly -- the athlete is guilty even if the drug found was being taken for genuine medical purposes (the athlete should have informed the appropriate authorities, even though he may not have known he was taking a banned substance), or even if the drug had been secretly administered to him by his worst enemy. The mere presence of the drug, for WADA, is conclusive evidence of guilt.

Which must give WADA the assurance that it is not going to be challenged. So the Mexicans were immediately suspended. But in this case, WADA was challenged. The Mexican Federation, citing the suspicion of contaminated meat, refused to punish the players.

Of course, that greatly upset WADA, which promptly announced that the Mexican decision would be appealed before CAS. WADA was now turning this into a witchhunt. Credible -- or at least, convincing -- evidence of the players’ innocence was being presented and WADA simply refused to listen to it. For a very good reason: if the Mexican players were absolved, it would mean that the entire basis of the WADA’s world -- that drugs found in an athlete’s body must be evidence of doping -- would be suspect. It would mean that the excuses always summarily dismissed by WADA (“Oh, it must have been the steak”) would gain credibility, would have to be checked out -- heck, WADA might actually have to do what any prosecuting body should have to do in court -- prove its case.

WADA had been backed into a corner -- it had to challenge the Mexican decision to exonerate the players. I’m betting that the decision was made reluctantly, because the chances of WADA getting a favorable decision from CAS were not high.

At which point FIFA came WADA’s rescue. After conducting its own investigations, FIFA declared that, in Sepp Blatter’s words, this was “definitely a case of food contamination.” So WADA gushingly thanked FIFA for its investigations (work that WADA itself should have done), and used that evidence as the reason for withdrawing its appeal to CAS.

In addition, WADA -- which originally scoffed at the mere idea of food contamination -- is now warning athletes to be careful what they eat during the Pan American games which begin in Mexico later this week.

But a precedent has been set, one that WADA cannot be happy with. Logically, WADA should now withdraw another appeal that it has lodged with CAS -- this one against the decision of the International Cycling Union to absolve Tour de France winner Alberto Contador after he tested positive for clenbuterol.

I suppose that no one -- certainly not I -- is going to oppose what WADA is trying to do. And no one is going to belittle the difficulties that WADA faces in trying to ensure -- though enforce would be a better word -- clean, drug-free sports.

But there are those -- and I would strongly consider myself one of them -- who have grave doubts about the way that WADA sets about its daunting task. In brief: WADA has assumed powers that go beyond anything that is warranted -- they are powers that trample on individual and human rights, and ignore -- indeed, challenge -- the safeguards against injustice that have been carefully and methodically built into legal systems, notably those of the Anglos-Saxon countries, over centuries.

In particular, the vital assumption of innocence until guilt is proved. WADA has managed -- somehow without arousing a mighty storm of protest -- to turn that around. Under the WADA way of looking at things, athletes they accuse of doping are guilty -- often on the flimsiest of evidence -- until they can establish their innocence.

Thus the five Mexican players -- hitherto with unblemished records -- were tarred with the accusation of being cheats, were not allowed to play in a major tournament, faced a suspension of up to two years ... and were then found to be totally innocent. To anyone with a sense of justice, that must be unacceptable.

WADA has arrived at this situation because it has allowed (or is it encouraged?) its drug detection duty -- which is a scientific and legal role -- to be dominated by a moralizing attitude. A huge problem. Once a group like WADA starts assuming moral superiority, it won’t be too long before it begins to feel itself above and beyond mere laws. The Spanish Inquisition, indeed. And no punishment is too severe for whomever it identifies as transgressors.

What seems to have happened is that WADA, which was founded in 1999, rather quickly realized that the legal approach simply would not work. Trying to prove, in court, that drug-takers are guilty is both arduous and expensive (and ditto for those trying to prove innocence). Hence the simplistic WADA method -- they have a list of banned drugs, and if you test positive for any of them, you’re guilty, regardless of how the drug turned up in your body.

Straightforward it certainly is. Legally, it is highly questionable. But, quite definitely, in terms of justice and human rights, it’s a disgrace. If the case of the Mexican Five causes some soul-searching within WADA, it will have served a vital purpose.