“Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding.” Dictionary.com

There are two key phrases in that definition of arbitration that bear noting.  ”Impartial adjudicator” and “decision the parties to the dispute have agreed”. In recent times, the arbitration hearings involving the Jamaica Independent Anti-Doping Disciplinary Panel (JIADDP) and some of Jamaica’s track and field athletes don’t seem to be anything close to being impartial nor have their decisions been agreed to by both parties. As such those decisions have been challenged at the Court of Arbitration for Sport (CAS) and the athletes have come away more satisfied than they were with the initial decisions.

The saga involving former world record holder Asafa Powell and Olympic medalist Sherone Simpson is the latest example of the perceived over-reaching of the JIADDP. Powell and Simpson tested positive for the stimulant Oxilofrine in June 2013. Ten months later they were each banned for 18 months. Personally, I believed the sanctions to be excessive. From my vantage point, the athletes were first time offenders. They cooperated with anti-doping authorities and they identified the source of the contamination. They also did the due diligence required under the WADA Code to check if a supplement contained any banned substance. No amount of legalese can change those realities.

However, the panel took a more punitive approach and imposed hefty 18-month bans. While this was going on, American sprinter Tyson Gay, who tested positive for testosterone and DHEA a more serious offence, did exactly the same thing. He helped the United States Anti-Doping Agency USADA identify the source of the banned substance which has led to the agency preparing to take action against others. For his help Gay was handed a one-year ban and allowed to return to competition even before the two Jamaicans. Incredible, isn’t it?

Here we have one body going after its own athletes with all its guns while the other took a softer approach.

It is never good when an athlete tests positive for a banned substance. That athlete’s reputation is tarnished for life and his sport takes another black eye. But there are certain realities that have to be faced. Not every positive test means an athlete is a cheat, as some in the United Kingdom media and otherwise would have us believe. Sometimes, being human is all the athlete really is. They make a mistake. It’s called life. You trust someone you shouldn’t, you drink something you shouldn’t or eat something and the next thing you know you’re being branded a cheat and required to spend money, lots of it trying to prove your innocence in an environment where there is no such thing.

Apparently, the evidence presented to the JIADDP was not enough to convince them that Powell and Simpson, did enough to prevent the positive test. CAS disagreed. Paul Greene, the attorney representing the athletes told me that the internet search that both athletes did on the product Epiphany D1, was the highest standard required under the WADA Code. Apparently, expensive toxicology reports are what our panelists here require. It makes little sense. Hence a ban of 18 months was reduced by two-thirds to just six months. This means that these two persons should have been free to compete by last December, not 13 months later. That’s seven months they can never get back.

Traves Smikle is the next athlete facing this nightmare. He is banned for two years for testing positive for a diuretic. This despite the fact that it was established that the doping control officer breached the required standards for collecting his urine samples. Smikle was unable to provide a complete urine sample at one go so he had to go back three times. He should have deposited each sample in a fresh container in accordance to International Testing Standards.

It was for this very reason and others why the case against Veronica Campbell Brown was thrown out by CAS. But did the panelists take that into consideration when reviewing Smikle’s case? Apparently not. Why do I say this? According to the WADA Code Smikle is responsible for whatever was found in his body so a sanction was mandatory. That it was a diuretic made it a serious enough offence for a tough sanction. But the fact that he got the maximum sentence suggests that the panelists never factored into the equation the very real possibility that the sample may have been contaminated as was the case with VCB because the proper procedure was not adhered to. Those standards are there for a reason but the panel never even considered that. That is the only way they could have come up with a two-year ban because had they considered the aforementioned breach, nine months to a year would have been easier to stomach.

When you add the 18-month reduction of a six-year ban imposed on Dominique Blake, there seems to be a clear pattern of excessive sanctions coming from the disciplinary panels that either suggest that their interpretations of the WADA Code are flawed or they seem themselves as lords over the athletes who they will punish as they see fit. Either way it is not a good look.

Because of those excessive penalties, the Jamaica Anti-Doping Commission JADCO, the other party in these affairs, will now be forced to pay heavily.

“Asafa and Sherone’s degree of fault when compared to the athletes sanctioned before them was at the low end of the 0-24 month range under Article 10.4 of the Code. The real shame of this is that we can’t go back in time to December 22, 2013 when they should have been back competing. Had the JADCO Panel followed the IAAF rules Asafa and Sherone would have had a hearing within 3 months and been able to compete all of 2014. The nearly historic cost that JADCO will be required to pay is a sign from the CAS that JADCO’s failures in handling their cases are unacceptable,” Greene said after the latest CAS ruling.

The same can be said of Smikle.

We understand to some degree that the recent embarrassments brought onto the country by the spate of positives in 2013 and by the exposure of JADCO’s weaknesses to the world could have caused the panel members to want to show the world that they are capable of being tough on the island’s athletes. They want to show that no Jamaican athlete is going to be spared if they transgress.

Their actions however, have backfired because it seems clear that they have been overcompensating. They prefer to err on the side of caution rather than seem to be soft. However, I would suggest that being fair requires a bit more thought. The rules are one thing but the decisions have to be fair. You cant use a hammer to kill an ant. That’s overkill and that is the message CAS has been sending to us here in Jamaica.

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levyl Posted by: levyl July 15, 2014 at 1:54 pm