Jeff Adams

Here are some of the latest developments in my appeal to the Court of Arbitration for Sport (CAS). We have nominated an arbitrator, Ed Ratushny, and are waiting for the CCES to nominate an arbitrator.

They can pick an arbitrator from the CAS pool of arbitrators, which include arbitrators from around the world. We chose Mr. Ratushny because of his resume - www.adrsportred.ca/tribunal/bios/edratushny-eng.pdf - but also because he is Canadian. This case is going to decide whether the Canadian Center for Ethics in Sport, which is entirely funded by the taxpayers of Canada, and has been designated to be the custodians of the Canadian Anti-Doping Program by the Government of Canada should be obligated to the Canadian Charter of Rights and Freedoms.

I think it’s of vital importance that the anti-doping regime lets Canadians decide this issue - in any case, win or lose at the CAS, Canadians ultimately will decide.

The CCES apparently feels less strongly about it - they initially nominated an arbitrator named Richard Young who has declined.

Mr. Young is the outside counsel to US Anti-Doping Agency, authored the World Anti-Doping Agency Code, is a member of the foundation board of WADA, and an American. He is currently prosecuting at least one case for the USADA. For the CCES to try to nominate an American arbitrator to sit in deliberation on a case that will deal with the Canadian Charter of Rights and Freedoms is asinine, and speaks volumes about the way that they’ve been behaving throughout.

They also tried to hire a new outside counsel to add to their roster, Peter Lawless. Mr. Lawless is a lawyer and a coach with Athletics Canada. He was my event coach at the European Championships in Finland a couple of years ago. Peter wrote a couple of letters to Tim asking us to release him from any percieved bias so that he could help the CCES prosecute me. I asked Tim to write him the shortest letter ever - just two words in fact. Tim wouldn’t, but I think he was tempted.

I really think they’re doing stuff like this just to make Tim work, and have my legal bills pile up - the “bleed ‘em dry” defense. They know that both of them will be or at the least should be disqualified, but it means that Tim has had to write three letters with reasons and so on for their disqualifications. (Lawless didn’t take no for an answer at first, and so Tim had to write another letter)

My legal bills are well into six figures now (I’m hoping that the first number is still a 1, but not holding out much hope). My point is that right or wrong, no athlete can afford to fight these guys, particularly when they fight the way they do. They’re doing exactly what they’re supposed to be preventing - breaking their own rules and trying to win at all costs, and this whole thing is an incredible example of how the ADR system has spun into the thing that it was trying to prevent - an inaccessible quasi-legal system that no athlete can afford to participate in. It would be better to use the real legal system for a bunch of reasons (including the correct application of real law), but mostly because at least it gives athletes access to legal support.

I’ve been saying this for years, but we really need an ombud with the power to make these sport organizations take reasonable positions.

The CCES has requested the opinions of the sport community on the issue of drug testing athletes with disabilities - if you want to write them a quick note, I would appreciate it, and if you copy me on it, I’ll make sure that it gets submitted in the appeal.

You can send it to Joseph De Pencier at jdepencier@cces.ca

I’ve had a lot of offers from people to write character references for me, and as much as I appreciate your support and kind words (it means more to me than I can tell you), in terms of the legal questions, it’s really irrelevant.

The entirety of the anti-doping regime is based on strict liability and the irrefutability of the anti-doping authorities’ evidence. Whether someone is nice or not doesn’t mean anything to them, nor does how much I have at stake, or any work that I’ve done - they truly don’t care.

What they need to hear is that the positions they’ve taken are offensive to people who have given great consideration to human rights issues and the issues surrounding disability. They need to hear that they should conduct themselves without violating the Canadian Charter of Rights and Freedoms or the principles of the Charter, and that giving an athlete with a disability any additional burden that an able-bodied athlete doesn’t have is a violation of human rights legislation. They need to hear from people that if they are going to break their own rules or take untenable positions in order to circumnavigate them, that this unacceptable, and also offensive, and that if they are going to be the custodians of the Canadian Anti-Doping Program on behalf of the Government of Canada, and accept millions of dollars in government money, that they can’t operate in this way.

• An open letter from Jeff Adams to the Canadian Sport Community in reply to the request for comments by the CCES on drug testing athletes with disabilities.
• Quick facts from open letter to Canadian Sport Community
• IPC POSITION STATEMENT

This is the full text of the decision of arbitrator Richard H. McLaren.

I understand the reaction that people are having to the story that is spinning out of control in the media, and I’d like to give a bit of a different perspective, and hope that you all at least consider it.

The accounting of the situation that I provided to the doping authorities was never given to them in the spirit of trying to avoid any responsibility. It was entirely offered to explain the presence of the substance in my body, and please believe me that if I had invented the story it would have been entirely more plausible. We knew going in that the story was unbelievable, but it’s what happened, and changing it or altering it to make it more digestible was never something that we considered.

Telling them the truth about what happened was the worst strategic mistake that I could have made, but to be anything less than upfront and honest with them was not an option for me. Had I denied ever ingesting the substance, and just claimed departures from the rules, I would have had a better chance of getting off on a technicality. Alternatively I could have claimed that someone who used cocaine left a catheter in my room and I used it instead of my own - there are about a million other stories that I could have invented that would have served me better in this case.

The most frustrating thing is that the system sets athletes up for this - the messaging has been diligent and unrelenting that athletes are always guilty, and always lie.

This has been turned into a “bizarre story”, but it’s not.

The story boils down to this: I was in a bar, sitting next to a woman who was on cocaine - I had been talking to her, and at some point, I stopped being interested in doing that. I told her that I was really tired, and didn’t want to talk to her any more. She got pretty upset about that, and in her head, I think she thought that she would be helping me by giving me cocaine (I would no longer be tired). In the drug culture, people share cocaine all the time, and taking cocaine orally is quite common in public (I’ve learned), because all that needs to happen is for the substance to get to a mucous membrane, and taking it orally is a much less obvious way to do it. She turned to me, and put her hands up near my face - I had no idea what she was going to do, and she had been quite “touchy feely” up to that point, so I really didn’t see it coming. She put her fingers in my mouth, and that’s how it happened.

There were two witnesses - a woman who works for the Crown Attorney of Ontario, and the photo editor for a major Canadian magazine - they are credible witnesses, and their testimony was unimpeached.

The tests actually prove that the substance was not in my system at the time of the test, and indicate contamination as the likely cause. They found less than 3 ng of the metabolite bze - 3 billionths of a gram. If I had been using the substance at the time of the competition, I would have tested positive for thousands of nanograms, and for the substance itself.

The Arbitrator found as fact that:

• My testimony was “unshaken” through cross-examination.
• The scientific evidence was unequivocal that the substance was not in my system at the time of the test.
• This is not a case of cheating.
• This is not a case of attempted performance enhancing.
• Unless I had ingested the substance sometime after the incident in the bar, the substance WAS NOT in my system at the time of the test. (According to the WADA code, and the Canadian Code, the substance is ONLY prohibited in competition - they don’t even test for it out of competition)

From the decision:

• Para. 118: “The scientific evidence is unequivocal that cocaine ingested more than six days before the sample was taken could not have remained in the Athlete’s system to be present in the urine sample. Therefore the AAF must either be as a result of the use of the Vatikan Catheter or an ingestion of cocaine later than 21 May 2006”.
• Para. 116: “I must conclude that the credibility as to what is being said by the Athlete remains unshaken through cross-examination”. (This includes testimony that I had not ingested cocaine at any other time in my life)
• Para. 119: “The Athlete’s evidence if accepted would mean that the Prohibited Substance was not present in his bodily fluids during the Competition…”
  The Arbitrator contradicts himself in these paragraphs, in order to find that the Charter does not apply:
• Para. 145: “Therefore, where fair and equitable, the Doping Tribunal may consider the Charter or any other relevant legislation, including human rights legislation in rendering its decision. It is not relevant whether the Doping Tribunal has the authority of the provincial or federal government to apply the law, as this power is being recognized in the context of a private arbitration proceeding by the rules governing its procedures.”
• Para. 164: “…arbitrators appointed under the SDRCC are not “courts of competent jurisdiction” and as such, I have no jurisdiction to grant the s. 24 remedy being sought by the Athlete.”
  How does the Tribunal have the ability to consider the Charter, but no jurisdiction to grant a s. 24 remedy?
  This is where the Human Rights Code issue comes into play:
• Para. 166: “Annex 6B of the CADP Rules is intended to ensure that disabled athletes have no greater burden for securing the integrity of doping control test results than other athletes and is consistent with the human rights legislation of Ontario. Athletes who use a catheter have a choice to use their own or request one from the DCO. In choosing to use their own catheter they take on responsibilities that those who choose to rely upon the DCO do not.”
  This is absolutely and patently untrue, and the Arbitrator knows it. The CCES was crystal clear that it does not provide catheters to athletes, nor does it intend to do so in the future. The DCO does not carry catheters, and when they are asked to provide them, the message is that they DO NOT DO SO. The athletes are not given a choice, because if they ask for a catheter, they are told that the CCES does not provide them.

Athletes who catheterize HAVE NO CHOICE but to provide their own. The CCES knows this - the evidence presented at the hearing was uncontroverted in this regard.

The CCES knows that they must offer to provide catheters to be in compliance with the Ontario Human Rights Code, and they know that they do not offer to provide catheter.

Everyone is clamoring for honesty in all of this, and I agree wholeheartedly. I would put that request to the CCES.

The CCES should also come clean if they know they are violating human rights legislation. They know that the don’t offer catheters, and they know that the Arbitrator made an error. It takes a big organization to admit that they made a mistake, but they are the Can. Center for ETHICS in Sport after all.

This is an enormous issue that everyone seems to be missing.

The CCES has an entire annex (6B) to the CADP that they are ignoring. They have a duty to provide a contamination free testing protocol to ALL athletes, and they are shirking their responsibilities to atheltes with a disability. Had I been provided with a sterile catheter, we would not be here today. The substance was not in my body during the competition. It was in my catheter.

To convict me, the CCES had to violate the principles of the Charter, and they had to break their own rules. The people who uphold the rules should not be allowed to break their own rules in order to secure convictions, nor should they be allowed to not guarantee a contamination free testing protocol for athletes with disabilities.

If this was a substance that was prohibited at all times, I would be in an entirely different moral boat, but the substance is not prohibited out of competition. At the time of ingestion, regardless of whether it was intentional or not, I did not violate any of the WADA rules.

The WADA code says:
“An athlete’s out-of-competition use of a prohibited substance that is not prohibited out-of-competition would not constitute an anti-doping rule violation” (see paragraph 111 of Decision, WADA code 2.2, comment).

Again, the most important point is that the substance was not in my system during the competition - it was in my catheter.

If I was guilty, I would cop to it. I’m not guilty of anything except using a contaminated piece of equipment.

If people think that based on this, that the punishment fits the crime, please tell me. If you don’t, please help me clear this up.

Write to the journalists. Write to your MPPs and MPs. It’s your tax dollars that paid for this prosecution.

These findings were taken directly from the decision made by Richard McLaren, posted at the web site of the Sport Resolution Center of Canada - www.adrsportred.ca Case #SDRCC DT-06-0039

The Arbitrator found that:

1. This case has nothing to do with performance enhancement and cheating.
2. The prohibited substance was involuntarily ingested. Even Athletics Canada, which did not support me in these proceedings, accepted my evidence concerning the involuntary consumption of the substance which then contaminated my catheter. Athletics Canada agrees that this contamination caused the adverse analytical finding. In other words, it is a fact that the substance was not in my body, but rather in my catheter, which was washed into my urine sample when I provided a sample of my urine through a catheter which I had no idea was contaminated.
   (see paragraph 92 of decision).
3. Notwithstanding serious factual errors, the Arbitrator found that “the cross examination of the athlete does not reveal any obvious reasons to conclude that the Athletes version of the facts lacks credibility …..I must conclude that the credibility as to what is said by the athlete remains unshaken through cross examination” (see paragraph 116 of Decision).
4. The Arbitrator accepted that “the scientific evidence is unequivocal that cocaine ingested more than 6 days before the sample was taken could not have remained in the athletes system to be present in the urine sample” (see paragraph 118 of Decision).
5. The WADA Code states “An athlete’s out-of-competition use of a prohibited substance that is not prohibited out-of-competition [as with the substance in this case] would not constitute an anti-doping rule violation” (see paragraph 111 of Decision).
6. Two of Canada’s top experts in the field of pharmacology and toxicology testified that it was highly probable that the adverse analytical finding was as a result of a contaminated catheter, and therefore the prohibited substance was not in my body at the time of the competition. [The Director of the lab conceded that only two drops of residual urine in the catheter would have produced the positive result found].
7. The Arbitrator concluded “on the whole, the scientific evidence presented at the hearing is inconclusive about whether the contaminated catheter caused the adverse analytical finding”. Under Canadian and International law, this findings, in and of itself, must result in a finding that no doping offence has occurred. By the Arbitrator’s own findings of fact, the CCES wholly failed in demonstrating that the adverse analytical finding was not caused by the contaminated catheter. The fact that the Arbitrator found me guilty of a doping infraction in light of his own finding that he has absolutely no proof that the adverse analytical finding was not caused by a contaminated catheter, constitutes a serious error of law.
8. The Canadian Anti-Doping Program, administered by the CCES, is almost entirely funded by the taxpayers of Canada on the basis that the CCES is carrying out the government’s anti-doping policy. The notion that such government action is immune from the Charter is an issue that I intend to take all the way to the Supreme Court of Canada if necessary. The failure to provide disabled athletes with the same rights as able-bodied athletes takes us back to a time long past.

Re: Jeff Adams, Canadian Centre for Ethics In Sport (CCES), World Anti-Doping Agency (WADA), Athletics Canada, and International Association of Athletics Federations

Today, the Sport Dispute Resolution Centre of Canada released the decision of Richard H McLaren, Arbitrator, who found 12 time Canadian Paralympian Jeff Adams guilty of a doping infraction notwithstanding the positive test was the result of a contaminated catheter, the substance was not in his system at the time of competition, the substance is specifically not prohibited out-of-competition and has no performance enhancing properties. This is the first case in sport history where a doping infraction was found in such circumstances.

To make matters worse, in spite of the finding that this case had nothing to do with performance enhancing or cheating, and despite the fact that even Athletics Canada agreed that the ingested substance was consumed involuntarily, Jeff Adams was still given the maximum sanction of two years ineligibility – the same sanction that someone who was consciously and deliberately cheating would receive. This is grossly unjust and a result that would be impossible in a court of law.

At the news conference Mr Adams will announce what legal steps he intends to take to over-turn the decision of Mr McLaren and to answer any questions.