After the conviction of Alberto Salazar, the head of the Nike Oregon Project, there is hardly a report in media that doesn’t explicitly make a connection to famous athletes of a country. In Germany Konstanze Klosterhalfen, who has only been training in Oregon since the beginning of this year, is said to be “in the worst light”, in the Netherlands allegedly a shadow falls on Sifan Hassan, who won the 10,000 m race in Doha on Saturday, in Great Britain of course on Mo Farah.
The 140-page ruling of the American Arbitration Association does not mention any of these currently active athletes. The events investigated date back up to eight years.
What the concrete accusation against the athletes should be, media is silent about it. Hardly anyone knows the name of Alberto Salazar. But it becomes a headline as a “long ban on Klosterhalfens boss”. The bracketing of the report about Salazar with the names of current athletes increases the value as a scandal. The subtext reads the intention. Whoever works with a trainer who is associated with doping is himself suspected of doping. Is that fair? No – only the sound that works.
One might accuse the athletes of having been naive not to have foreseen the media reaction in case of Salazar’s conviction. But does that alone have to stop an athlete from training in the project, even if he can claim to be clean? Of course not.
The athletes are more entitled to naivety than others whose judgement must be more demanding – but who have not yet been criticised. An analysis of the verdict reveals astonishing things about the involvement of Mark Parker, President and Chief Executive Officer of Nike, who obviously was not only informed in detail about the attempts of Alberto Salazar and Dr. Brown, at least by several e-mails, but also replied and made suggestions.
Nike can claim that the tests with testosterone only served the purpose of excluding the possibility that its own athletes could be sabotaged by testosterone-containing creams after a race, because this is also the assumption of AAA in the award. A comparable innocent explanation for the experiments with L carnitine could be that Alberto Salazar always told that the intended to be compliant with WADA code
This raises however the question as to whether a supplier and sponsor in top-class sport may promote attempts at the limits of doping or even in doping without being threatened with a sanction. It is unlikely that anyone will investigate this issue.
Nike has been a supplier of the IOC since 2012 and is also a sponsor and supplier of the DLV. IAAF honours the manufacturer on its 50th anniversary by running the 2021 World Championships in Eugen, Orgeon, where the company was founded. How should one sanction this sponsor without harming oneself? At the very least you must think about it, if a company should show itself willing, in order to achieve success and branding, to cross boundaries that must remain binding in sport.
But this shows the dilemma of the fight against doping, which only serves to protect athletes superficially. In the end, they are always the ones who suffer – even here, because it is their name that makes the scandal out of the news. But the real scandal lies somewhere else. We can be curious to see whether the DLV, the IOC and especially the IAAF will demand “complete clarification” or whether they will keep their heads down as usual.
The award has great weaknesses and I’m not sure whether it will stand up to scrutiny by the CAS. But no active athlete can be expected to have foreseen the highly complex legal assessment better than the CEO of a global corporation. This is unfair to the athletes.
Below some excerpts from the judgement
AMERICAN ARBITRATION ASSOCIATION (“AAA”)
COMMERCIAL ARBITRATION TRIBUNAL
AAA Case No. 01-17-0004-0880
UNITED STATES ANTI-DOPING
On December 12, 2011, Respondent sent an email to Lance Armstrong, Mark Parker, President and Chief Executive Officer of Nike, and Tom Clarke, President of Advanced Innovation of Nike, regarding Mr. Magness’ L-carnitine infusion. In his email, Respondent said, in part: “On my assistant Steve the doctor used a one liter saline bag with the Lcarnitine and dextrose solution which caused his insulin levels to go up thus drawing the Lcarnitine into the muscles.”
The plan to conduct a testosterone experiment arose from a conversation between Respondent and Dr. Brown. Dr. Brown then designed the protocol for the experiment to include administering testosterone on subjects who would run 5,000 meters or 10,000 meters. As reported by Dr. Brown to Mark Parker by email of July 7, 2009, the protocol tested only an amount that was likely to “go undetected by an athlete,” starting with one and two pumps, after a “run on a tread mill
for 20 min. at an ambient temp. of 85 degrees” “[a]ll to simulate conditions post running” and “determine the minimal amount of gel that would cause a problem.” The urine was tested one hour after application of testosterone gel, but at no other time after the application.
When the testing came back from Aegis Labs on July 7, 2009, Dr. Brown wrote an email to Nike CEO Mark Parker, “We have preliminary data back on our experiments with a topical male hormone called Androgel . . . We found that even though there was a slight rise in T/E ratios, it was below the level of 4 which would trigger great concern . . . We are next going to repeat it using 3 pumps . . . We need to determine the minimal amount of gel that would cause a problem.”Mr. Parker responded, advising Respondent that “[i]t will be interesting to determine the minimal amount of topical male hormone required to create a positive test.” Dr. Brown concurred and forwarded the email chain to Respondent who replied that he would permit Aegis to speak with Dr. Brown directly about the analysis being done in support of the experiment.
On August 5, 2009, Dr. Brown emailed Nike CEO Parker, and copied Respondent, explaining that four pumps of AndroGel resulted in a T/E ratio of 2.8, which he indicated would only be of concern if it was 3 or higher. In this same email, Dr. Brown states: We know from the medical literature that 8 squirts would definitely trigger a problem. I suspect that 6 and 7 would also be a problem. However, this is NOT likely to be a major concern since the amount of gel of even 4 squirts would be quite apparent to any person it would put on. Women however are going however to pose to us quite a problem, since probably as little as 1 or 2 squirts may well trigger a problem. In order to test this we would need to do a full fledged research protocol, secure volunteers and get an institutional review board to sign off on it. I think we need to keep our female athletes from having any physical contact with anybody until after drug testing is done after a sporting event.
Paul Scott, Respondent’s expert, an analytic chemist with over 10 years of experience working in drug testing laboratories, testified that the testosterone experiment was designed to “determin[e] whether a runner could be sabotaged in a post-race scenario” with “the surreptitious application of testosterone gel” and was fit for that purpose. Mr. Scott’s opinion was based on Respondent and Dr. Brown not increasing the amount of testosterone gel tested when “the amount becomes too large,” meaning that “they haven’t tested it to the point of failure on the T/E test;” rather, “[t]hey’ve tested it to the point of failure as to where it would no longer be reasonable to surreptitiously apply the gel.”
Mr. Scott also testified that the testosterone experiment was inconsistent with establishing any kind of doping program because “they are ignoring everything you would need to pay attention to if you were looking at a scenario where you wanted to dope someone with testosterone.” For example, he testified that the protocol for the testosterone experiment—as identified by Dr. Brown in an email of July 7, 2009 to Mark Parker is:
“The subjects that were tested Alberto’s sons were run on a tread mill for 20 min. at an ambient temp. of 85 degrees. The Androgel was rubbed on the skin and urine tested 1 hour later! All to simulate conditions post running.”—would yield no data valuable to developing a doping program, such as whether the amount of testosterone applied enhanced performance, since the gel was applied “post-race.”
Thus, the issue for the Panel is whether the Possession at the time of the testosterone experiment was “in connection with an Athlete, Competition or training.” It is clear from the testimony that only non-“Athletes”, Respondent’s two sons, were involved in the testosterone experiment.
The Panel accepts most of the facts and contentions as presented by Respondent, i.e. that Respondent did not enjoy a commercial benefit from the experiment (as he is salaried), that the contemporaneous emails evidence that the incident leading to the experiment was a potential act of sabotage, and that the purpose of the experiment was to prevent sabotage, that the experiment only centered around Respondent’s concern about the potential for sabotage, that the protocol for the experiment was consistent with sabotage prevention and inconsistent with a doping scheme, that no efforts were made to keep the testosterone experiment a secret or to hide it in any way, and that Respondent has a long history of extensive good-faith attempts to comply with the Code. Nevertheless, the Panel finds that Respondent did “give” his sons testosterone, a Prohibited Substance, as provided in Article 2.7 of the Code. There are no further requirements set forth in the Code other than this act of “giving” by an Athlete Support Person to a third party.