Strict liability rules in doping violations for clenbuterol: the Ovtcharov, Contador and Hardy cases


The recent news reported by Associated Press on September 22 that German Olympic Table Tennis medalist Dimitrij Ovtcharov was suspended over a positive doping test was likely missed by many in the United States, but it was certainly not missed in Germany.  What should be notable to all is that this is yet another violation due to clenbuterol, the same drug that Tour De France Champion Alberto Contador tested positive for a few months ago.  Also at the core of this case is the long-held rule of strict liability that has been a core tenet of the anti-doping system and is undergoing a series of tests currently due to the influx of recent clenbuterol positive drug-test reports.

This core tenet, described on page 19 in section 2.1.1 of the World Anti-Doping Code – 2009 says that athletes are responsible for any substance found in their body.  The comment provides a good history of the rule and describes that “in the exceptional circumstance where a Prohibited Substance entered an Athlete’s system through No Fault or Negligence or No Significant Fault or Negligence on the Athlete’s part” modified sanctions may be considered.  The consideration of fault or negligence has been adopted over the course of time based on experiences similar to that of American swimmer Jessica Hardy, who also tested positive for clenbuterol back in 2008 and lost her opportunity to compete in the Olympics because of it.

In her case, our laboratory found that the supplements she was taking were contaminated with clenbuterol.  After a long legal fight, she did receive a reduced sanction of one year based on this consideration, though she has to continue to fight to be allowed to compete in the next Olympic Games as drug test violations in today’s system are supposed to keep you out of the next Olympics.

Apparently as of October 15, 2010 news indicates that Ovtcharov’s doping suspension has been lifted after the report by Cologne doping expert Wilhelm Schaenzer noted that “the intake of clenbuterol through contaminated food was the likeliest explanation for the finding.  A doping related use of clenbuterol is highly unlikely.”

We are not surprised by the notes of our friend and colleague Dr. Schaenzer, as we have had similar musings ourselves in regards to the Contador case.  We do note that nothing in the comments quoted from his report in the article above seem to definitively state where the source of clenbuterol originated.  It is also noteworthy that the Ovtcharov suspension seems to have been lifted after only three weeks based on the statements that he was ‘likely’ not at fault.  Comparing this situation to Jessica Hardy’s one-year sanction and two-year-plus legal battle is perhaps most striking.

Now, we have no inside knowledge or information regarding this matter and we suspect that Dr. Schaenzer would not make such statements without data to demonstrate that the likelihood of doping does not exist in this case.  We would like to find out more information.  We are also curious about the hair test noted in the article, how it was done and what it demonstrated.

Meanwhile we have to wonder about the Contador case as he too has blamed contaminated meat for the clenbuterol finding, according to an article in The New York Times on September 30, 2010.  According to the article, Contador’s hired expert, Dutch scientist Douwe de Boer, “has already generated a paper concluding that ‘it is extremely likely and would be only fair’ to say that the existence of clenbuterol in Contador’s system was from an accidental ingestion of contaminated meat.”  The article goes on to note, “An expert in clenbuterol contamination in meat, however, characterized Contador’s explanation as almost impossible.”  Certainly, the swirling rumors surrounding placticizer tests and blood transfusion possibilities do not help his cause.  Perhaps a hair test will exonerate him as well, we will see.  Meanwhile, Contador must move on to month two of his fight; time will tell if it is as long as Jessica Hardy’s.

Once all is said and done, it will be interesting to examine how the strict liability rules are applied in these cases and the others that are out there.