Appeal Tribunal Ruling

 

The independent Appeal Tribunal has today, Tuesday, 2 September 2003, issued its ruling on Frankie Sheahan's appeal.

On 11 July 2003, an independent Judicial Tribunal found that Frankie Sheahan had committed a doping offence under ERC's Anti-Doping Programme, in that 1644ng/ml of Salbutamol had been found in a urine sample given by Mr Sheahan after the Toulouse/Munster Heineken Cup semi-final on 26 April 2003. This was the highest level the Tribunal had ever seen, and more than 20 times higher than the level recorded in a sample given by Mr Sheahan at the Leicester/Munster quarter-final two weeks before. Mr Sheahan said he had only taken his normal therapeutic dose of Salbutamol - 8 puffs - to treat his exercise-induced asthma. The Tribunal accepted that Mr Sheahan had inhaled Salbutamol, rather than taking it orally. The Programme gives the Tribunal discretion, in appropriate circumstances, to reduce the mandatory two-year sentence.

However, the Tribunal found that it would not be appropriate to exercise such discretion because it 'cannot with conscience conclude [given the level of 1644ng/ml] that the player has satisfied us, on the balance of probabilities, that he administered himself with only eight puffs of ventolin containing Salbutamol for the purpose of properly treating and/or preventing his asthma and/or exercise-induced asthma.' It therefore imposed the two-year suspension on Mr Sheahan mandated under applicable IOC rules.

Mr Sheahan's appeal against that decision was heard by an independent Appeal Tribunal convened in accordance with ERC's Anti-Doping Programme, consisting of Jeff Blackett (RFU, Chairman), Dr Roger Evans (WRU) and Jeff Probyn (RFU). On appeal, Mr Sheahan did not contest the finding that he had committed a doping offence. The only issue before the Appeal Tribunal was whether or not the independent Judicial Tribunal had been right to conclude that the level of 1644 ng/ml of Salbutamol could be reached from only eight puffs of Ventolin (the basis upon which it had declined to reduce the two-year sanction).

On appeal, Mr Sheahan produced reports from a number of medical and scientific experts on that issue. Those experts conceded that the level of 1644 ng/ml was extraordinary, but contended that it could be explained by the extreme conditions of the semi-final match, and in particular the extreme dehydration suffered by Mr Sheahan at and after the match.

At the seven-hour appeal hearing, which took place at ERC's offices in Dublin on 1 September 2003, the independent Appeal Tribunal heard testimony from Mr Sheahan and Mr Shinkwin, the Munster team doctor, each of whom insisted that Mr Sheahan had only taken eight puffs of Salbutamol, a normal therapeutic dose, at the semi-final. They also heard testimony from one of Mr Sheahan's experts, Dr Buckley of the Irish Sports Council, and confirmed that they had read his and the other expert reports carefully.

Having heard that evidence, tested by ERC on cross-examination, the independent Appeal Tribunal concluded that, while the Judicial Tribunal's decision had been appropriate on the basis of the evidence put before it, the new evidence put forward by Mr Sheahan on appeal satisfied the Appeal Tribunal that Mr Sheahan had limited himself to an appropriate therapeutic dose of Salbutamol on 26 April and that the extraordinary level of Salbutamol found in his urine sample was explained by the extreme conditions at that match, including in particular his very dehydrated state.

On that basis, while the Appeal Tribunal upheld the finding of a doping offence under the ERC Anti-Doping Programme (because Mr Sheahan had not complied with the procedures for declaring his need to make therapeutic use of Salbutamol), it concluded that it would be appropriate to exercise its discretion to reduce the two-year sanction imposed by the Judicial Tribunal. The Appeal Tribunal found that Mr Sheahan's failure 'is not just an administrative oversight. It is a serious matter: the rules relating to completion of forms about drugs and other medication requires strict compliance to support the campaign to keep drug abuse out of sport. Both the player and the management of Munster were grossly negligent in the way in which the Player Consent Form was completed and the penalty must be severe to deter such a cavalier approach in the future.'

The Appeal Tribunal therefore revised the suspension from two years to three months, but added a fine of 5,000 'against the player as a member of Munster for his and their failure.' Mr Sheahan sought payment of his costs by ERC on the grounds that he had persuaded the independent Appeal Tribunal of his case on appeal. However, the Appeal Tribunal found that ERC had been absolutely right to bring the case, in light of the very high levels of Salbutamol involved, that ERC had also properly defended the Judicial Tribunal's decision on appeal, and that the costs had been increased by the fact that the expert evidence submitted on appeal had not been put before the Judicial Tribunal.

The Appeal Tribunal therefore declined to order ERC to pay any of Mr Sheahan's costs.

ERC notes that this case has uncovered various fundamental uncertainties about the approach taken to Salbutamol in the current IOC List of Prohibited Substances. Scientists at the IOC Medical Commission and at the World Anti-Doping Association have taken a keen interest in this case, and have specifically asked for details of these proceedings so that they can take them into account when finalising the List of Prohibited Substances for 2004.

For this reason, and to promote understanding of the scientific issues, thereby strengthening the fight against doping in sport, ERC will be writing formally to the IOC and WADA with copies of the decisions, and has also posted copies of the decisions on its website, www.ercrugby.com, where they may be accessed by interested parties.