Introduction
29-year-old boxer Liam Cameron (Cameron) appealed the UK Anti-Doping Tribunal’s (Tribunal) decision to the Court of Arbitration for Sport (CAS). The Tribunal delivered a four-year suspension and stripped Cameron of his title after he gave a urine sample that tested positive for benzoylecgonine (BZE), a metabolite of cocaine.
Cameron’s appeal aimed to reduce his suspension by proving his cocaine ingestion was unintentional. CAS ultimately dismissed his appeal and upheld the four-year period of ineligibility.
Facts
On April 27, 2018, after the bout for the Commonwealth Middleweight title, an in-competition urine sample was taken from Cameron. The drug test returned an adverse analytical finding (AAF) for BZE. Cameron was charged by UKAD with an anti-doping rule violation under Article 2.1 of the UK Anti-Doping Rules (UKADR), and was provisionally suspended from all competitions affiliated to the British Boxing Board of Control (BBBoC). In December 2018, UKAD suspended Cameron for four years until May 24, 2022.
On appeal, Cameron argued that he had inadvertently ingested cocaine by handling banknotes collected while selling tickets for the fight. CAS postulated that Cameron had handled anywhere from 122 to 1,226 banknotes. Cameron testified that he counted the bills “many, many times”. Cameron asked CAS to take judicial notice of (i) the socio-demographic nature of Sheffield, England, where he is from and sold the tickets; (ii) the greater likelihood of his coming into contact with cocaine at the establishments he visited for the purpose of selling tickets; and (iii) that it is widely documented that cocaine is present on banknotes. Cameron, notably, failed to provide any expert evidence.
UKAD’s expert, David Cowan (Professor Cowan), concluded that, given the concentration of BZE in Cameron’s urine sample, Cameron’s explanation was unlikely. To reach the estimated dose of two milligrams 12 hours before sample collection, all of the cocaine on approximately 200 banknotes would need to be ingested in a short period. For the estimated dose of five to six milligrams, 24 hours before collection, this increased to 500-600 banknotes. Professor Cowan considered both scenarios improbable. He further stated that accidental ingestion of cocaine would normally have a local anaesthetic effect and cause numbness to the tongue and/or lips. Cameron’s testimony did not mention such an effect.
Analysis
Athletes bear the burden of proof to show, on a balance of probabilities, that ingestion of a prohibited substance was not intentional. On appeal, Cameron’s counsel cited numerous judicial precedents but CAS did not find any to be helpful to Cameron’s case. The cases indicated that athletes must adduce some objective evidence to substantiate their position, which CAS determined Cameron did not do. CAS summarized the principles from each case as follows:
- UKAD v Buttifant – even in wholly exceptional cases, where “the precise cause of the violation is not established”, there is still a need for objective evidence.
- Errani v ITF – “the party which contests the explanation offered must substantiate alternative routes through which the substance could have entered the body.”
- Ulf Leinhard, Award of the FISA Executive Committee – “the mere possibility of skin contamination through banknotes is not sufficient.” An athlete “must provide additional elements.”
- Ball v First Buses Limited – in the employment law context, scientific evidence was produced to support an individual’s account of events, following a positive drug test.
CAS found that Cameron did not present any evidence, scientific or otherwise, to corroborate his story. Cameron raised the costs of obtaining evidence as a reason, but CAS did not agree that Cameron’s impecuniosity precluded him from obtaining further evidence. Cameron received legal aid for the proceedings and did not seek financial support from UKAD to produce further expert evidence.
Furthermore, Cameron could have obtained publicly available material to support his position. Although Cameron stated he often saw evidence of drug use at the public houses in question, he produced no photographs or other evidence to support his testimony. The Tribunal had expressed concerns over Cameron’s lack of evidence. CAS held that no new evidence was provided on appeal.
In the absence of evidence from Cameron, CAS relied heavily on the opinions of Professor Cowan. On this basis, CAS found that it was unlikely that banknotes were the source of the cocaine. Since Cameron reported no symptoms of anaesthetic effects or numbness from larger amounts potentially found on surfaces, CAS ruled out that possibility as well.
CAS raised the decision of Ademi v UEFA,which considered there could be extremely rare cases in which an athlete’s simple assertion of innocence would be enough to persuade the arbitrator. However, CAS concluded that Cameron’s demeanour and character were neutral, and therefore did not displace Professor Cowan’s persuasive scientific evidence.
CAS further noted that in 2018, Cameron received a warning letter from BBBoC in relation to a sample taken in 2017 that tested positive for BZE (2017 Sample). Because the quantity of BZE did not amount to a UKADR violation, CAS did not admit the 2017 Sample into evidence. However CAS considered the 2018 warning letter, and ultimately concluded that Cameron had not acted prudently to avoid another adverse finding.
While CAS conceded that a mandatory four-year ban was harsh, the arbitrator noted that the UKADR must be applied uniformly: “It will be for UKAD and WADA to reflect on the necessity or utility of the rules, which allows an adjudicator no flexibility in approach.”
Takeaways
This decision further delineates the minimum evidentiary burden an athlete must meet in order to make their case. In the absence of evidence from Cameron, CAS was forced to rely on the evidence given by Professor Cowan. While the narrative Cameron offered up was theoretically plausible, the evidence suggested it was quite improbable. Although Cameron’s narrative was that he came from a community where drug use was rampant, he failed to adduce any supporting evidence.
At paragraphs 91-92, CAS considered Cameron’s failure to ask the respondent to pay for, or contribute towards, the cost of Cameron’s evidence. CAS’s reasoning may lead to an increased number of appellants requesting financial support from respondent parties in obtaining evidence for their case. Further, should an appellant fail to present adequate evidence, will impecuniosity paired with a respondent’s unwillingness to offer financial assistance lower the evidentiary burden?
The arbitrator’s comment on the harshness of the penalty and inability to exercise discretion to alter the length of the suspension was a mildly surprising element of the decision. It will be interesting to see if this decision, and others like it, influence the policies of UKAD, WADA and other similar entities.
For more information, please contact Stevan Manojlovic, Alexandra Terrell, or another member of Dentons’ Litigation and Dispute Resolution group.
