Nesta Carter’s only shot at a successful appeal

By Zaheer E. Clarke

Published on February 13, 2017

PJ Patterson believes that Nesta Carter has strong grounds to see his disqualification by IOC from the 2008 Olympics overturned. Carter sole shot at a successful appeal may rest in arguments that rebut WADA’s laboratory standards regarding his samples.

The Nesta-Carter-failed-drug-test and disqualification from the 2008 Beijing Olympics remain the most significant story being discussed on the local news and sports scene. Last week, I weighed in on whether the IOC was correct to ban Nesta Carter. As a scientist, after reading the IOC’s decision, I was in full agreement with their conclusion. Scientifically, it was black and white. Three of Carter’s samples, his A, B1 and B2 samples, were all confirmed to contain the banned stimulant methylhexaneamine upon re-analysis last year.

For unlearned friends and legal novices like myself, it was an open and shut case. However, legally, “not so” was the admonition from various distinguished luminaries in the field of law. For them, Carter’s case had strong grounds for appeal and was marred with what I will describe as ‘various shades of legal grey’.

PJ Patterson
(Possible photo credit: Jamaica Gleaner, Source: JaBlogz.com)

The honourable former Prime Minister PJ Patterson, who is considered an eminence in the practice of law, made the rounds on various radio stations last week declaring his disappointment with the IOC’s decision. Patterson called the decision unfair and attributed it as one that raised more questions than definitive answers. Questions were directed to the chain of custody of the sample since 2008. Whether strict adherence to the WADA’s testing processes was observed? Why the Beijing lab got a negative result in 2008 while the Lausanne lab got a positive result eight years later? Why documents requested by Carter’s attorneys were deemed irrelevant and not furnished by the IOC? Why testing at one lab can lead to a positive result, while testing at another lab can lead to a negative result, despite all labs being licensed and accredited by WADA?

In my opinion and that of the average Joe, these are reasonable questions that need to be answered for not only Carter’s but also the sake of all athletes. If they cannot be answered, then we are compelled to ask if this anti-doping framework is fair to all athletes concerned.

WADA is coming under increased pressure to investigate and expose doping.
(Source: AP)

Interestingly, within the IOC’s decision in relation to Carter, they answered some of these questions. With regard to the question of the chain of custody of the samples, the IOC remarked that they provided Carter’s legal team with documentation on 15 July 2016 with regard to the “handling of the sample in Beijing and its transfer to the Lausanne Laboratory.”

In relation to why a positive sample, which could be detected in one laboratory, might be found negative in another laboratory, the IOC admitted to “differences in the availability of testing methods and/or level of sensitivity in their application in different laboratories.” For the layman, this is a cause for serious concern. As a scientist, I know why this can happen and find it very understandable. It is the nature of science. No two machines, methods or equipment are the same. Just like how no two humans are the same, even if they are identical twins.

A case involving Josephine Onyia of Spain, who returned four positive tests since 2008, was referenced in the IOC’s decision on Nesta Carter.
(Photo credit: Unknown) (Source: http://www.trackarena.com)

Nevertheless, it was while reading a case, which was brought before the Court of Arbitration for Sport in 2009 and which was referenced in the IOC’s decision regarding Carter, that I realised that Carter’s Appeal case to CAS is an uphill task and leaves him and his legal team with few options for success.

CAS in it is ruling from 2009 stated some important info that which will answer the questions of several Jamaicans and journalists still hung up on or confused with WADA’s policies.

Popular supplements reported by Spanish and Dutch authorities to contain methylhexaneamine including Jack3d, Lipo6 Black Hemo-Rage, Spriodex, Napalm, Tested Burner, Mass Pump3D, Presurge Unleashed, Beta-Cret Extreme, Noxpum, Black Bombs Thermogenic Detonator, Dexaprine, Maximise, Endoburn, HydroxyStim, Neurocore, Mesomorph and OxyElite.
(Photo source: Shane Sterling/http://www.nutraingredients.com)

The Court stated, “A substance does not need to be expressly listed in the WADA Prohibited List to be considered a prohibited substance in sport. Substances specifically listed are prohibited, but so are all related substances with a similar chemical structure or similar biological effect(s).

“The List is an open list. It would be impractical to cite all stimulants because of the large numbers of compounds available on the market. Further, an open list allows the inclusion of those designer drugs created only for doping purposes.

“Methylhexaneamine not only has a very similar chemical structure to tuaminoheptane, one of the stimulants listed under Section 6 of the WADA Prohibited List, but it has also has similar biological effects to it.” 

Methylhexanamine is reported to have similar biological effects to the banned stimulant amphetamine and its analogues.
(Photo source: Wikipedia)

Of interest to me was another statement found in the 2009 decision in relation to the fact that the Lausanne lab was only first able to identify and confirm the presence of methylhexaneamine in an athlete’s sample, a month after the 2008 Beijing Olympics.

The court stated, “It is immaterial that the laboratory had not found this particular substance on any previous occasion.”

It makes you wonder if it is also immaterial that the Beijing lab could not find the same substance in Carter’s sample in 2008 but the Lausanne lab was able to find it in 2016.

Urine samples from Chinese athletes are recorded upon arriving at China Anti-Doping Agency in Beijing.
(AP Photo/Robert F. Bukaty, File)

To quote another part of the 2009 ruling, “By IAAF Rule 33.4 WADA-accredited Laboratories are presumed to have conducted sample analyses and custodial procedures in accordance with the International Standards for Laboratories. The athlete may rebut this presumption by establishing that a departure from the International Standard for Laboratories has occurred.”

In cases like this, strict liability lies on the shoulders of the athlete for all substances found in their bodies. According to the learned Mr Patterson, similarly, from the time their sample is taken to the time the sample is finally tested, a similar burden lies on the testing authorities to ensure that strict adherence to the stipulated process is followed.

Nesta Carter may have a single shot to overturn the IOC’s decision to ban his performances at the 2008 Olympics.
(Photo credit: Boris Streubel/Bongarts/Getty Images)

For me, that is the get-out-of-jail-card if Carter is going to win the appeal process. He must rebut and establish that there was a significant departure from the International Standard for Laboratories with regard to either the handling or analysis of his sample and/or in the discipline meted to him by the IOC. If he cannot, a successful appeal seems bleak.

We must remember that in the court of law, at times, the burden of proof perches not on whether you committed a crime. However, whether in the attempt to bring you to justice, the prosecution has followed all the processes to the T.

Until next time…

© Zaheer Clarke

Zaheer E. Clarke is a multi-award-winning freelance sportswriter and a former research chemist. At this point, he’d tell you a chemistry joke, but all the good one’s argon … What is the most important chemistry rule he learned in the lab? Whatever you do, never lick the spoon!

He can be reached at zaheer.clarke@gmail.com. Follow him on Facebook at Zaheer Facts, Lies & Statistics, or on Twitter at @zaheerclarke.

This blog article was published in the Western Mirror on February 13, 2017.

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