By David van Niekerk
While the average South African may not be aware of the intricacies of all laws in South Africa, when queried about the intricate sporting tactics of rucks, mauls and offsides, his knowledge is often astute and detailed.
The sports industry in South Africa continues to expand exponentially, with sporting fans’ enthusiasm for sport-related information constantly being unquenched. However, there are times when the ever-expanding sports industry meets the relatively small sports law industry in moments when, after the cheering has died down, a shocked public is informed of a positive drug test by a celebrated athlete.
At these times there are often public proclamations of innocence by the athlete who has tested positive, but just what do these athletes have to prove in order to be legally exonerated and have their reputations cleared of any wrongdoing?
A recent example is that of 2012 Comrades Marathon winner Ludwick Mamabolo, who tested positive for the banned substance methylhexaneamine (MHA). Mr Mamabolo will, however, have an opportunity to defend himself at a hearing scheduled to take place this month.
The recent positive drug tests and judicial hearings that followed in the instances of Springbok rugby players Chilliboy Ralepelle and Bjorn Basson, as well as in the case of two-time Tour de France cycling champion Alberto Contador, should illustrate the enormous legal onus and burden of proof that rests on all athletes who test positive for a banned substance.
Following a rugby test match against Ireland in November 2010, both Mr Ralepelle and Mr Basson were provisionally suspended after also testing positive for the banned stimulant MHA.
At a judicial hearing held in Cape Town, the legal representatives for the suspended Springbok sportsmen successfully argued that the MHA stimulant was contained in supplements provided to the Springbok team in the warm-up before the rugby game in Dublin, Ireland and that Mr Ralepelle and Mr Basson were simply the unfortunate players tested after the test match.
In this specific instance, as in all instances of positive drug tests in sport, it needs to be highlighted that the strict liability principle applies from the moment that a drug test is returned with a positive result and that, from the moment of such finding, the onus and burden of proof falls on the respective ‘positive-testing’ athlete, who must prove on a balance of probabilities both –
This burden of proof and its stringent application by judicial bodies is perhaps no better illustrated than in the recent Court of Arbitration for Sport’s decision to ban two-time Tour de France champion Alberto Contador, despite the Court of Arbitration finding that there was no evidence of intentional ‘doping’ and that the most likely source of Mr Contador’s positive test for the banned substance clenbutoral was food supplements that he ingested while cycling in the Tour de France in 2010.
Mr Contador and his legal representatives unsuccessfully submitted to the Court of Arbitration that the sole source of the positive test for clenbutoral was due to a contaminated steak that he had eaten, with clenbutoral being a substance sometimes found in certain meat products. The Court of Arbitration in this case found that, despite Mr Contador’s cycling team having a medical practitioner who tested for contamination in food supplements given to the cyclists, on a balance of probabilities, the most likely source of his positive test was contamination of the food supplements that he had ingested rather than a contaminated steak.
The Court of Arbitration for Sport banned Mr Contador from the sport of professional cycling for a period of two years, stripped him of several titles, including a third Tour de France championship win in 2010 and all titles obtained after 25 January 2011. The outcome also ensured that his reputation will forever be tarnished due to the fact that he failed to satisfy the burden of proving that he bore no fault or negligence, or no significant fault or negligence, in respect of the positive test and, crucially, because he had only submitted one possible source – the contaminated meat theory – as being the reason for his positive drug test. This submission of a possible source was dismissed by the Court of Arbitration, which held that, on a balance of probabilities, a more credible source for the positive test existed.
These rulings, both in the instance of the Springbok rugby players who tested positive and were later exonerated, as well as the instance of cycling champion Alberto Contador, indicate the approach of judicial bodies when attending to appeals from athletes relating to positive tests.
It is to these recent cases that both the general public and legal practitioners who ordinarily do not attend to sports law matters look in ascertaining the burden of proof that an athlete who has tested positive for a banned substance must satisfy to be exonerated and in order to maintain his reputation.
David van Niekerk LLB (UWC) is an attorney at Turner & Associates in Cape Town and legal adviser to Ikapa Sporting Football Club.
This article was first published in De Rebus in 2012 (Sept) DR 24.
