LESSON FROM SMIKLE CASE

Traves Smikle will most likely be heading to the Court of Arbitration for Sport (CAS) to have his two-year ban reduced to a lesser sanction following the recent upholding of the ban by an Anti-Doping Appeals Tribunal. Smikle was represented by Dr. Emir Crowne, a Canadian attorney with experience in representing athletes who have found themselves facing drug bans.

The Appeals Tribunal that was comprised of respected retired Justices Howard Cooke and Algermon Smith, Dr. Charlesworth Roberts and Edith Allen ruled that Smikle’s attorneys didn’t do enough to prove how Hydrochlorothiazide got into his system. At Smikle’s appeal, his lawyer relied heavily on the Court of Arbitration for Court’s ruling on the Veronica Campbell Brown case. In that case, her lawyers argued successfully that the procedure employed by the Jamaica Anti-Doping Commission breached International Testing Standards.

Mrs. Campbell-Brown required two attempts to meet the 90ml urine sample required for testing. According to IST, each of those samples should have been produced in separate containers but the two-time Olympic gold medalist did not. Her sample kit was also not covered clearing the way for possible contamination. Her lawyers also managed to establish that she was separated from her sample for about an hour during the collection process.

Smikle had a similar experience but his lawyers were not as successful. At the initial hearing his lawyers tried to establish that his partial sample kit was also uncovered but witnesses for the JADCO disputed that submission and hence the athlete’s claim was thrown out. There were also other similarities plus additional evidence that was presented but was either rejected or debunked.

The members of the Appeals Tribunal were sympathetic to the athlete but had to apply the law and under the law Smikle’s attorneys depended too much on the Campbell Brown case and not enough on their own. The fact that Smikle had to open and close his sample container six times, each time washing his hands was an issue that was not pursued enough. Also, they did not do enough to establish that the testing site may have been contaminated or that the water could have been contaminated (as research has shown). In the VCB case it was also established that of all the drug tests conducted globally, 0.05 per cent come back positive for HCTZ; in Jamaica is it is at three per cent, 6o times the worldwide average. Also, the only cases of HCTZ in Jamaica have come only when partial tests are conducted, a 100 per cent ratio. Now isn’t that odd? But Smikle’s team did not bring evidence to corroborate those findings neither at the initial hearing or during the appeal.

So off they go to CAS as the athlete continues on the the quest to clear his name.

They say everything is clearer in hindsight and this is where I blame the athlete and others, who for some reason, may not be taking drugs and drug testing too lightly. At the end of every drug test there is a form that the athletes sign to say they had no issues with the sample collection process. Had Smikle been sufficiently been aware of his rights and the proper testing procedures, he would have refused to sign that form. Had he done that the lab in Canada would have noted that he didn’t and would have perhaps thrown out the sample and declared the test null and void. End of story.

It is why I believe that more focus needs to be placed on educating young athletes. The information they need needs to be in the school curriculum. They have to know. Knowledge is power and our kids need to be empowered because mistakes can happen and they need to be protected.

There are those in this world who like to paint all athletes who fail drug tests as dopers but on closer inspection that is not always the case because in cases like Traves Smikle’s there is a case to be made that the system failed him.