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by Shane Stokes
October 22, 2014
Orica GreenEdge rider Daryl Impey can continue his career uninterrupted after the UCI and WADA have declined to appeal his probenecid case verdict to the Court of Arbitration for Sport.
The CEO of the South African Institute for Drug Free Sport (SAIDS), Khalid Galant, confirmed to CyclingTips Tuesday that no appeal had been lodged against its earlier decision to allow the rider to return to racing. The permitted timeframe for appeals has now lapsed.
According to Galant, three bodies could have appealed, namely SAIDS itself, the UCI and WADA.
“It is very rare that parties lodge appeals after the period has lapsed,” he told CyclingTips. “However, they can do, but have to apply for a condonation as to why appeal should still be heard. Very few applications for condonation are successful.”
The UCI has subsequently confirmed that it won’t proceed further.
“After carefully reviewing the case files from the South African Institute for Drug-Free Sport (SAIDS), and in consultation with the World Anti-Doping Agency (WADA) and relevant experts, the Union Cycliste Internationale (UCI) has decided not to appeal the decision rendered by the SAIDS with respect to Daryl Impey,” it told CyclingTips in a statement.
“The UCI will not make any further comment on this case.”
The South African rider was told by his country’s national federation on June 23 that he had tested positive for the banned diuretic probenicid at the country’s national time trial championships on February 6.
Impey, who races with the Orica GreenEdge WorldTour team, won the race. He maintained his innocence after being told of the A sample finding and insisted that he had no knowledge about how Probenicid was in his urine. He said that he had never taken the substance knowingly in any manner.
Impey’s defence was based on his insistence that he had gone to a pharmacy prior to the championships to try to buy empty capsules to fill with bicarbonate of soda. He intended taking the legal substance as a lactic acid buffer, but said that the capsules were inadvertently contaminated by a pharmacist who had previously dispensed probenecid.
In August he was found guilty of violating article 2.1 of the anti-doping rules, namely of having a prohibited substance in his system, by a disciplinary panel linked to SAIDS. However it determined that he bore no fault or negligence due to exceptional circumstances, and therefore the period of ineligibility he could have faced was eliminated.
He was stripped of the gold medal he won in the time trial, but no subsequent results were annulled. He was also allowed to return to competition, and subsequently won a stage plus the overall standings in the Tour of Alberta.
At the time of the verdict, Galant said that SAIDS had looked into the argument for his defence and ultimately accepted it.
“Under the Anti-Doping Rules, SAIDS is required to vigorously pursue all anti-doping rule violations within our jurisdiction. We did so and checked the veracity of Impey’s account to the fullest extent possible. We sought opinions from our own experts, which confirmed that cross-contamination was indeed possible in the manner proposed by Impey’s experts.”
On Tuesday he also commented on previous media reports that Impey or his representatives would consider taking a legal case against SAIDS due to delays in the case.
“Mr Impey has not indicated through his lawyers or filed papers to SAIDS, to date, that he is suing the agency,” he told CycingTips.
In confirming the news that no appeal had been lodged, Galant provided CyclingTips with a copy of the reasoned decision relating to the case. This was completed on September 16, several weeks after the verdict was announced, and then sent to the UCI.
The governing body had 30 days to appeal from that point but did not do so.
That reasoned decision lays out the full details of the case and gives a greater insight into the circumstances behind the positive test. It states that Impey underwent a polygraph test and satisfied the experts conducting it that he had not intentionally used probencide.
It also reveals at least one inaccuracy in how the story was reported by South African media, namely that the gelatin capsules used by the rider had been handled by a pharmacist.
A summary of the case details as presented in the reasoned decision is as follows:
– Impey has been a professional rider since 2003 and, according to the reasoned decision, he has never missed a doping control test nor been issued with a warning. He stated that he has undergone at least 35 out of competition blood and urine tests and has been tested at races at least five times per year. His positive test for probenecid was his first adverse analytical finding.
– He previously communicated with SAIDS in December 2011 about the possibility that he may have to apply for a Therapeutic Use Exemption (TUE) for salbutamol. The reasoned decision does not make clear if he went ahead with a TUE request.
– Impey contested the South African national time trial championships in Durban on February 6. In his case defence he said that one day prior to the race he went to a pharmacy in Durban to purchase empty gelatin capsules. He said that he planned to fill them with sodium bicarbonate, presumably as a lactic acid buffer.
– The pharmacy did not have capsules in stock but told him that it would contact him when it acquired them. It did so later that day and between 16.45 and 18.00 he went to the pharmacy and saw the pharmacist dispense 20 capsules using a pill counter in the dispensary.
– Impey filled the capsules with sodium bicarbonate that evening and consumed them prior to the time trial on February 6, as per team instructions. He duly won the time trial, but was told on June 23 by Mr William Newman (CSA) that he had an adverse analytical finding. He returned from Spain to South Africa and requested an analysis of his B samples.
The reasoned decision also includes details of a witness statement from the owner of the pharmacy in Durban. The key points are listed as:
– On February 5 at 14.59 the relief pharmacist dispensed 60 Proben tablets (500 mg) to a customer who had a repeat prescription for a chronic condition. Probenecid is the active ingredient. The pharmacy owner provided a copy of the tax invoice confirming the purchase, and said that the medication was not dispensed to Impey.
– The bottle of Proben was emptied into the pill counter and 60 tablets were dispensed by the device. Photos of the pill counter were presented to the hearing. The arbitrators were told it was possible the standard operating procedures of the pharmacy were not followed, namely the cleaning of the pill counter with cotton wool and a brush prior to every act of dispensing.
– Impey attended the pharmacy approximately two hours after the first customer and the same pill counter was used to dispense his gelatin capsules. The relief pharmacist carried out the action and subsequently confirmed that it was possible the gelatin capsules were contaminated from the left-over residue.
– The hearing was given a witness statement from a pharmacist Ms Franciska Jordaan, who carried out a mock dispensing of Proben in a pill counter. She wrote that white residue was visible in the device after the dispensing.
– At the hearing a pharmacokinetic evaluation report was presented looking at probenecid levels in the urine of a cyclist. Prepared by Dr Jolanta Piszczek, a Clinical Pharmacy Specialist in Infectious Diseases and Antimicrobial Stewardship for the Vancouver Island Health Authority, the report was prepared on request of the legal representative of the Athlete.
– She said that while many probenecid tablets are coated, that Proben are not and that cross-contamination was possible. She also said that the level’s seen in Impey’s sample corresponded with a likely dosage of 2.54mg of probenecid. Piszczek concluded that it was possible that 5-10mg of residue could be left on a standard pill counter after the dispensing of 30 Proben tablets, and that this could explain the adverse analytical finding.
– The hearing also received a report from Dr Michael Schachter, Senior Lecturer in Clinical Pharmacology at the Faculty of Medicine, Imperial College, London, who concluded that the low concentration of probenecid detected in Impey’s sample could have occurred after the consumption of 1 to 5mg of residue.
– Paul Scott, president and chief science officer of Scott Analytics, conducted a review of Impey’s biological passport and said that there was no evidence of blood manipulation.
– A polygraph test carried out by CSI Africa, a private forensic investigation, indicated Impey was truthful in saying he had not knowingly ingested probenecid.
SAIDS stated in the reasoned decision that it had carried out its own investigations, including an investigation by an independent expert, and that it was concluded that Impey’s evidence was plausible.
The arbitration panel comprised the chairman Andrew Breetzke, medical representative Dr Sello Motaung, legal representative Mandala Tshabalala and sports administrator Leon Fleiser. It agreed that Impey had contravened article 2.1.1 of the anti-doping rules, which states that it is each athlete’s personal duty to ensure no prohibited substance enters his or her body, but also accepted that he had no fault or negligence in the matter.
In doing so it agreed that gelatin capsules are not supplements in themselves, thus differing his case from other cases where athletes have used supplements which were shown to be contaminated. The latter group have been given periods of suspension in the past.
“Evidence was presented as to the Athletes knowledge of doping, extensive commitment to anti-doping, tests undertaken and his written undertakings to comply with anti-doping codes. He has acted with due care in anti-doping matters,” the arbitration panel said in the reasoned decision.
“It is the opinion of the Panel that to have expected the Athlete to have considered the possibility that the gelatin capsules were contaminated with a prohibited substance would constitute an unrealistic and impractical expectation on the Athlete. The circumstances that led to the contamination of the gelatin capsules, which gave rise to the adverse analytical finding, do constitute exceptional circumstances.
“The Athlete did not know or suspect, and could not reasonably have known or suspected that the gelatin capsules were contaminated.
“The Panel therefore comes to the conclusion that the Athlete acted without fault or negligence as defined in the rules.”
As a result it found him guilty of violating article 2.1 of the anti-doping rules, stripping him of his results from the South African national road championships, but said that he had proven he bore no fault or negligence. As a result the period of ineligibility was eliminated, as was the provisional suspension he had been under. It also said that all subsequent results after the championships would be allowed stand.
For Impey, the notice that no appeal has been filed brings this chapter to a close. The results he has clocked up since returning to racing will remain, including his Tour of Alberta victory, and he can continue his career without any further repercussions.
– Daryl Impey cleared of doping, Durban pharmacist takes responsibility
– SAIDS confirms that deadline for appeal in Impey probenecid case has not yet passed
Full reasoned decision: Impey Reasoned Decision CyclingTips