The Jemima Sumgong case: loss of Olympic Gold Medal & a lifetime ban from Athletics is unlikely but she may face 8 years suspension

Following the amount of speculation and misinformation surrounding this case a number of pertinent issues have come to the fore:

1. Timelines of the breaking News
The earliest the news of Sumgong’s positive test was publicised (on twitter) on Friday 7th April at 1:25 am East African Time (EAT). The first Kenyan journalist to pick up the story and disseminate it on the local channels (Sean Cardovillis of NTV) did so between 6 and 7 am EAT. Kenyan audiences on twitter started reacting to the news between 7 and 8 am. Athletics Kenya only issued a statement confirming official receipt of the IAAF’S notice much later in the afternoon, hours after the news broke.

According to the World Anti-Doping Code (WADC) all parties to an anti-doping matter should maintain confidentiality from the moment an Adverse Analytical Finding is detected up until the results of the consequences are publicised.

One wonders; who leaked this information to the media, and possibly before the official notice reached AK and the Athlete? What is the purpose of this leak to the media? Why was the news disseminated at a time when (i) it was the dead of night in Kenya, and (ii) the weekend was looming? And why (since the test was reportedly carried out in February) did the results come out just a few weeks prior to the London Marathon where the athlete was scheduled to compete?

2. Sample B “Confirmation”
A lot of the news reports regarding this case are claiming that a Sample B confirmation has already been called for by the IAAF and is being awaited in order for the athlete to be charged with an anti-doping rule violation (ADRV). This is misleading. The right to request for Sample B analysis lies with the athlete and not with the Testing Authority (in this case the Testing Authority is the IAAF). Upon notification of an Adverse Analytical Finding (positive test) the athlete is provided with a set of instructions and options which include: (i) provide an explanation of how the prohibited substance entered his/her body, (ii) request for a Sample B analysis if the Athlete disputes the results of the A Sample analysis, (iii) accept the A sample analysis, admit to the ADRV and go for consequences, or (iv) request for a hearing if the Sample B analysis confirms the Sample A analysis, or (v) waive a hearing and go straight for determination of consequences.

At this juncture I would like to clarify that Sample B analysis does NOT mean that the athlete must produce yet another sample for testing. During the sample collection procedure, the Athlete’s sample is divided into 2 containers marked “A” and “B”. Only A is tested but B is stored for future analysis if an athlete disputes the Sample A results. The Athlete is responsible for paying all the costs related to Sample B testing.

3.- The Rio Gold Medal & adjustment of results
The loss of Sumgong’s gold medal and adjustment of Olympic Marathon results is unlikely for the following reasons: (i) Kenyans had to undergo rigorous testing prior to the Rio Games on account of the country being on WADA’s watch list – use of a Performance Enhancing Drug (PED) by the athlete following robust testing could have been detected then, (ii) Podium finishers are tested In-Competition immediately following their event – this is a mandatory doping control procedure and if the IOC did not detect anything in her sample at that time then it can be reasonably concluded that she did not have any PED in her system while she was competing in the Rio Olympics marathon (iii) the IOC was the Testing Authority of the Rio Games, so they are the authority that can order a retesting of the Athlete’s sample from the Olympic Games. Unless the IAAF carried out separate doping controls for collection of Blood sample from the athlete at that time, it would be difficult to assert that she was using PEDs in the period leading up to or during the Olympics.

4. EPO is not Mursik
There were a number of trolls who made the cheeky suggestion that Mursik (a traditional Kalenjin sour milk drink) is the local name for EPO. Sadly, this is not the case. EPO (Erythropoeitin) is a naturally occurring hormone in the human body which increases the oxygen carrying capacity of blood. People who live in high altitude areas naturally have higher levels of EPO compared to those who live in low altitude areas. An Athlete’s residence or place of training is taken into account when examining levels of EPO within their samples.

However, EPO or rEPO is synthetically produced for medical purposes and is usually given to patients suffering from extremely severe anaemia. EPO is only administered by way of INJECTION. One cannot ingest EPO orally as you would Mursik. Despite all the nutritious qualities Mursik offers, it cannot cause an increase in EPO. If the level of EPO surpasses what would be considered an athlete’s natural threshold then an anti-doping rule violation has occurred. An athlete would then have to show that the presence of EPO was for medical purposes and back such information with medical records including *if possible any records of a Therapeutic Use Exemption (TUE) issued either in advance of or in retrospect to the treatment. TUE is essentially a document from the Athlete’s sports Federation permitting them to use a prohibited drug for treatment.

-5. Premature use of the term “Drug Cheat”
It is the usual norm to see the term “drug cheat” being used by the Media in reference to an athlete facing an ADRV charge. More so, even before details of the circumstances concerning the Athlete’s positive test have come to light. In this particular case of Sumgong we do not know whether she was in possession of a TUE, or whether she was undergoing medical treatment for severe anaemia, or whether she used the substance intentionally. We also do not have details of whether or not she has provided an explanation to the IAAF, or whether she has requested for a B sample. There is simply a lot of speculation before an explanation surrounding her ADRV has been advanced.

As much as anti-doping violations are strict liability offences (ie a violation has occurred as long as the presence of a prohibited substance is detected in a sample) there is the significant issue of “intention to enhance performance”. Unless and until it is proven either through admission or a hearing that there was intention to enhance an athlete’s performance this term is prematurely misused.

6. Consequences/Sanctions
Many reports are claiming that Sumgong is facing a 2 year ban while a variety of sports enthusiasts are calling for a lifetime ban. According to the current WADC none of these apply, the determination of a sanction in this particular case may be more complex.

On a basic premise, the standard sanction for a first time ADRV according to the 2015 WADC is four (4) years. However, this period may be reduced if an athlete provides “substantial assistance” to the Anti-Doping authorities. In other words, if an athlete cooperates with the Anti-Doping authorities and discloses information that leads to the uncovering and subsequent sanction of another anti-doping rule violation then they may be entitled to a reduced sanction. However, if the Athlete does not have a “story to tell” then the standard sanction applies.

This is where it may possibly get complicated for Sumgong depending on how IAAF frames its case. This is technically her 2nd ADRV. She was reportedly sanctioned with a 2 year suspension by AK for use of a prohibited substance (prednisolone) back in 2012 but the same was reversed by the IAAF on grounds of medical treatment. If the IAAF treats this positive test as a 2nd violation the period of ineligibility Sumgong will be facing according to WADC is eight (8) years.

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Farewell Letter to my Pioneer Students of #SnoClass – Spoiler Alert – it’s an emotional one

Some of the SnoClass students after their Live Interview at Monday Football - Citizen TV -Photo by Peter Ndung'u (Pierre Size 10)

Some of the SnoClass students after their Live Interview at Monday Football – Citizen TV -Photo by Peter Ndung’u (Pierre Size 10)

Dear Pioneer students of #SnoClass,

You fun bunch of crazies, you! I was very nervous about meeting you for the first time… I was down right scared to be honest. When Lillian brought me to your class room that hot Monday afternoon, I whimpered “Aki, please, don’t leave me here…Alone…With them”.  I expected the worst; resistance, rebellion and attitude. But now as I reflect on our 13 Mondays together all I have are warm and fuzzy feelings. I did not anticipate to have all these feels. It is all your fault, m-by n-the way, for giving me such an awesome first-time teaching experience.

In more ways than one, you have increased my social capital by supplying me with fodder for conversation. For example, whenever I need to break the ice with someone I ask them if they have ever heard of “Flapenditis“. Allow me to put this into context for the sake of anyone else who might be reading this.

The curious case of Flapenditis was first documented by one of my students who was “on trial” before our very own Disciplinary Panel. This student was charged with “signing the attendance register for another student” – a very grave offence under section 3 of the SnoClass Disciplinary Code… Yes, we have a SnoClass Disciplinary Code, but that’s besides the point.

Firstly, this young man’s Legal Counsel pleaded guilty on his behalf. However, contrary to his Counsel’s counsel – he sought to set the record straight and argued that he could not possibly be found guilty of the offence because he was a long-suffering, well, sufferer of Flapenditis. According to him, this disorder does not allow him to negotiate the complex curves of the various signatures he was accused of having forged…But according to his star witness – who is apparently an expert in the field of curious disorders – one of the symptoms of Flapenditis is rapid hand movement. Whenever such a patient gets in contact with a pen, it’s over! They’ll scribble all manner of signatures. Suffice it to say, this particular argument did not impress the Disciplinary Panel at all.

I must commend you for embracing my teaching methodology like the absolute legends that you are. It made the entire experience, as strange as it might have sounded at first, very enjoyable. I know it was odd for a lecturer to teach you using Twitter, Instagram and YouTube instead of the good old power point and projector but to be honest I was quite excited with the amount of interaction we had after the lessons. I was especially impressed when some of you used social media to send in your assignments and tag me on interesting conversations about Sports and Entertainment Law. Trust me, I have learned just as much from you as you have from me.

And a special shout out to the “Late Comers” for teaching me that you fight cray cray with cray cray in equal measure. Kama wahenga walivyonena …Dawa ya moto ni mo… Allow me to put this into context once again. First day of class, I’m getting to know everyone, working my way around the room, just about to settle into an introductory lecture when kido’ 30 minutes later this group of 7 guys saunters in. My initial instinct was to nip this behaviour in the bud, lest it becomes a habit. So I did what any other sane lecturer in my position would do – I ordered them to get out, form a boy-band and return in 5 minutes telling us their name, genre of music and type of audience they wanted to appeal to.

Sure enough, the lads were back in exactly 5 minutes. They had appointed a lead singer/ spokesperson who introduced the group as… wait for it… “The Late Comers”. Their music genre of choice – African Music…for the deaf. But they did not stop there, oh no. They treated us to a mimed rendition of their hit single complete with a choreographed routine and they did it with such feeling and gusto that the entire class was in stitches. Sawa guys, way to commit to a punishment! At least we have not suffered from mass lateness ever since. It’s just a pity that the group broke up, I was really looking forward to their future performances – they had such star potential.

Speaking of performances, I was pleasantly surprised to discover just how multi-talented the class is. From Spike singing along passionately to the “Circle of Life” clip during “Out of the Woods” week – yes, I noticed; to Frashia and Shiro belting out tunes at Karaoke – these ladies have a set of pipes that will put other singers to shame – they can SANG! Yaaasss Hunty!; to the entire crew breaking into dance during our trip to Monday Football studios. My only regret is that I did not have more time with you to discover even more gems.

Thank you for embracing my quirks. It is not often that I suddenly break into strange accents mid-sentence and people laugh…I dare you to try that in future to a room full of lawyers. It’s also great that you understood my pop-culture references – this means I am not doing badly with keeping up with trending topics which are absolutely necessary if you want to survive in the Entertainment Industry.

Thank you for appreciating my sense of style especially that week I decided to chop off my hair…I know it took you by surprise but I think you made the necessary mental adjustments and embraced my move to #TeamNaturalista. For the gentlemen, the following advice may not be for you, so you can skip over to the next paragraph. For the ladies, wear heels as high as your hopes and remember; heels are not about comfort, they are about commitment. You can thank Jeannie Mai for that school of thought. Guys, if you are still reading this paragraph feel free to Google Jeannie Mai.

Thank you for being gracious enough to listen to and to interact with the guests who attended some of our lessons. Every single of one of them thought you were amazing. Every single one. That speaks volumes to your character. Click here to read @Superjohna’s blog about his time with SnoClass.

Overall, thank you for making me a better teacher, and a better  lawyer. I always imagined that I would start teaching when I was 60 and had more to offer the world. But by teaching you, I have learned to listen better, to express myself better and to research deeper. Thank you for clapping for me at the end of each class. You might have been doing it sub-consciously but I found it so encouraging that you appreciated my time and effort.

Most of all, thank you for making me a better person. You trusted me enough to share some of your concerns with me so that I could assist you to find way forward, and you shared honest – at times brutal criticism about my style of teaching. Feedback that I take very seriously and will help me improve for the next SnoClass.

I wish nothing but the best for you. As I kept telling you; I am not merely teaching students – I am teaching my future colleagues. I look forward to you joining the work force with the same spirit of inquisitiveness that you have shown in class, and I hope that my lessons will help you shape the future of Sports and Entertainment Law in Africa. If you ever need to get in touch with me, I am always only a tweet away.

Yours truly,

Your “Nutty Professor” – SnoLegal

FIBA’s got some serious corporate swag! Visit to the House of Basketball

I have to admit that when I got to the front entrance I wasn’t sure if I was at the right entrance, and I also wasn’t sure how to get in. I wasn’t sure if the glass doors would open automatically – because if they weren’t automatic I’d slam right into the door and that would not have been a cool first impression. I panicked for a few seconds wondering if I needed to locate a bell, or press my head against the glass to get the attention of someone on the inside, or whisper open sesame and hope for the best. Thank goodness for delivery guys! A delivery man came by and somehow managed to gain access into “the House”. This is the part where I pretended to have been furiously typing away on my phone, until he said “Bonjour, après vous”- “Hello, after you”. I responded with the most heartfelt “merci” of my life and made a bee-line to the reception desk.

 

 

There are few places that I have visited in Switzerland which made me feel all giddy on the inside. One of them is the House of Basketball- the official FIBA HQ. The House of Basketball in all its magnificence or should I say “swagnificence” is a manifestation of what the game is all about; popular lifestyle, youthfulness, fun and energy. It’s no wonder that the coolness of FIBA as an organisation trickles down to its staff.
Just in case you are wondering – FIBA is the French acronym for the International Basketball Federation (French: Fédération Internationale de Basketball). It was founded in Geneva in 1932, with eight founding members: Argentina, Czechoslovakia, Greece, Italy, Latvia, Portugal, Romania, and Switzerland.

 

FIBA Founding Document

FIBA Founding Document

My journey to the House of Basketball started with a “Hello”. Once again, the little fairies of Linked-In (okay, it wasn’t really little fairies but complex algorithms) suggested a profile that I should check out – Ben Cohen. Ben’s got quite an impressive back ground – by the “ripe old age” of 30 he is the head of Legal Affairs and Governance at FIBA having already worked at UEFA and interned at the UN Office of Sports Development for Peace in New York. More on these stories later. Meanwhile, I reached out to Ben for a chat at his office – luckily he said yes otherwise I would literally have nothing to write home about.
FIBA’s House of Basketball is located in a town called Mies, which is about 40 minutes away from Lausanne and about 10 minutes away from Geneva. If you view the building on google earth (go on, give it a try) you’ll notice that it has a peculiar shape. It’s shaped like a hand reaching out to a basketball net. In real life the building is massive- which explains my confusion at the entrance.
Anyway, a smiling receptionist informed Ben of my arrival. He appeared from behind the stands a few minutes later. You read that right – the stands. On the right side, just beyond the reception lies what looks like a section of a spectator’s seating area in a basketball arena. This was incorporated into the architectural design of the building. So here comes Ben who welcomed me to the House with a customary Swiss three-peck greeting and offered to show me around the museum before lunch.

 

 
“Right now we’re in the index finger and on the other side of the glass you have the thumb”, he explains as we make our way around the basketball museum on the ground floor. It is designed to look like a clipboard that a coach would use to draw match tactics.

 

 

 

The museum has interactive pieces with touch screens explaining the history of basketball, old basketball memorabilia dating back decades, trophies, a small hoop to test your skills at free-throws, and my favourite section where you can measure the size of your feet against those of professional basketball players.

 
  

 
We continue our tour up a flight of stairs situated adjacent to the spectator stands which leads to some office space and a cafeteria. We ended up in the board room where Ben explains that he has hosted and taught students from University. He usually lectures about the functioning of the Basketball Arbitration Tribunal.  From the board room you can view the surrounding property; a petrol station towards the front of the building, and a small farm to the right side. “We have donkeys out there”, Ben informs me. He quickly corrected himself after seeing the shocked look on my face. “They are our neighbours’ donkeys, they don’t belong to us.” Such a relief- I started questioning whether FIBA was developing a new form of basketball that included farm animals.

 
After the donkey business and viewing a few other offices we headed to the cafeteria for lunch. I quite liked the gentleman who served us – he was very engaging especially since we got the last 2 pieces of steak (Justice!) and these took some time to cook. That steak was well done-just like it was intended. I still do not understand how folks enjoy steak that is rare to the point that you can still run after the cow. But that’s a rant for another day.

 

 
As we tucked into our meal, Ben told me that the House of Basketball is full of surprises. Its builders discovered an underground spring during construction – a discovery which Ben describes as “kind of random”. Yet there’s no better way to take advantage of an underground spring than to pipe fresh drinking water for the “House-hold”. So whenever anyone gets thirsty all they have to do is walk to the back end of the cafeteria and pull the lever of something that looks like those beer taps (fawcetts for all ye Non-Queen’s English speakers) the kind that you would normally find at bars.

 
As it turns out, Ben is a musician – he plays the guitar and would have probably pursued a career in music if his best friend hadn’t signed him up for Law at the University of Fribourg, Switzerland.
Apart from being musically inclined he has several academic achievements under his belt including: Masters in European Law & International Contract Law, a specialization in Sports Law from the International Center for Sports Studies, and Masters of Advanced studies in Sports Management & Technologies from EPFL where he co-worked on a Paper on autonomy of sport for the Council of Europe and was appointed an expert at the 11th Conference of European Ministers of Sports by the Council of Europe.

 

As far as his work experience goes- he worked at UN Office of Sports for Development for Peace right after his law studies then came back to Switzerland to do the Sports Management Master followed by work  as an intern and assistant at UEFA, where he researched international football governance in the Department of Governance & Legal affairs.
He later applied for a job at FIBA which at the time was a lean organization of 28 employees. The office where his interview took place was located in an old, cramped space in Geneva. According to Ben, “it was the exact opposite of UEFA – which looks like you’re walking into a scene from a James Bond movie”. He joined FIBA in 2009 to manage the legal affairs without much previous experience but was sold into the position by the CEO. He says he left the interview feeling like he really wanted that job! And although it took him 3 years before being absolutely confident to answer his phone whenever a legal issue popped up, he has no regrets.

 

Our meeting ended with  him having to attend to a conference call, but I stayed on a little longer to explore more of the museum.

 

 
We often forget what is said, but we rarely forget how we feel. The staff at FIBA made me feel at home; from the receptionists, to the caterer, to the Librarian who strolled past me as I was taking pictures at the museum. I walked into a warm & friendly atmosphere, and left with the sense that FIBA is an organization that has a different style of governance which is why they have grown in leaps and bounds over the past 7 or so years.

 

Not only were they willing to give time to a young lawyer from Kenya, but they have also tried to build capacity within their own associations. I have a good friend (shout out to Cynthia Mumbo- Head of Marketing Kenya Basketball Federation and Founder Sports Connect Africa) who had applied for the online FIBA Academy Manager’s Programme in 2013 – a programme run by FIBA  in conjunction with the World Academy of Sport which allows one to become accredited as a FIBA Manager. This program cost 200 EUR per person at that time but FIBA waived the fee because they had never had a lady from Africa subscribe for the course. Way to promote and encourage women administrators in basketball!

 

It is my hope that the culture of openness and improvement will trickle down to FIBA’s national basketball associations worldwide.
For more information about FIBA visit www.fiba.com 

 

View a video of the launch of the House of Basketball

 

Post by Sarah Ochwada- International Sports & Entertainment Lawyer

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Anti-doping & top Kenyan Athletes – Lessons from Rita Jeptoo’s Case

Rita Jeptoo. Image from Bloomberg.com

Rita Jeptoo.
Image from Bloomberg.com

There is a great deal of information as well as misinformation about Rita Jeptoo’s case. Hopefully this article will shed a light on the issue and encourage positive debate.

Rita Jeptoo is a renowned Kenyan marathon runner whose sample tested positive for EPO – full name- erythropoietin  (pronounced eh-ri-thro-poy-tin) a prohibited substance on the IAAF prohibited list . The Adverse Analytical Finding (AAF) of her doping test is as a result of out-of-competition testing carried out on 25th September 2014  during her training for the Chicago marathon which was held on 12th October 2014(which she won).

Before we move on, you need to familiarise yourself with terms used in anti-doping. Here are a few, basic definitions of some key words:

  • Anti-doping violation– circumstances or conduct which constitute a violation of  anti-doping rules. These include:  presence of a prohibited substance in an athlete’s sample; use or attempted use of a prohibited substance or method;  possession of a prohibited substance or method; administration or attempted administration to an athlete of a prohibited substance or method; refusing, evading  or failing to submit to sample collection; failure to file athlete whereabouts & missing doping tests; assisting, tampering or attempting to tamper with any part of the doping control process; and encouraging or covering up an anti-doping violation.
  • Prohibited List– a list that identifies all the substances and methods that athletes are forbidden from using when participating in sport.
  • Prohibited Substance-  a substance which is banned  from use in sports. This includes performance enhancing substances, masking agents (agents that hide the use of a banned substance), and substances which when used in training may have long-term performance enhancing effects. It is important to note that some substances are banned at all times (both out-of competition & in-competition) while others are only banned in-competition e.g.  use of anabolics such as steroids are banned at all times  whereas stimulants are banned in competition only. There are also some substances which are banned only in particular sports- for example alcohol is banned in motor-sports, aviation sports, sailing, & precision sports such as shooting and archery; and the use of beta-blockers is banned in precision sports.
  • In-competition testing– testing done during an event commencing 12 hours before an athlete is scheduled to participate up until the end of the competition.
  • Out-of-competition testing– any testing done at any time and at any place outside of an event.
  • Adverse Analytical Finding– a report from a laboratory approved by the World Anti-Doping Agency (WADA)- identifying presence of a prohibited substance or its traces in an athlete’s sample.

What is EPO?

EPO is classified as a prohibited substance under S2. of the WADA Prohibited List-  Peptide hormones, Growth Factors and Related Substances.

It is a hormone produced by the kidney that promotes the formation of red blood cells by the bone marrow and initiates the synthesis of haemoglobin (the molecule within red blood cells that transports oxygen). Pharmaceutical EPO stimulates the bone marrow to produce more red blood cells. Stimulating agents can be given in two ways; they can either be injected into a vein with an intravenous (IV) needle or injected under the skin (subcutaneous).

The resulting rise in red cells increases the oxygen-carrying capacity of  blood. Medically, it can be used as a treatment of some forms of anaemia but it has been misused as a performance-enhancing drug by some athletes in the past, so it would be difficult for doctors to prescribe such treatment for active athletes.

Read more about EPO on these links: medicine.net, WebMD, and rice.edu.

The nature of a banned substance at the center of an anti-doping violation is important because it points towards certain key considerations. Its uses, effects, and manner by which it enters the body are all important factors when determining degree of fault of the athlete and  sanctions to be applied. We shall re-visit this later.

Why was Jeptoo tested out-of-competition and why is this significant?

As an international elite athlete participating in some of the world’s greatest races, Jeptoo is subject to doping tests to ensure sporting integrity and is therefore included in the Registered Testing Pool (RTP). An athlete receives written notification when he/she is listed in the Registered Testing Pool and must submit his/her whereabouts.

  • Registered Testing Pool (RTP)– list of top-level athletes subject to both in-competition and out-of-competition testing.
  • Whereabouts Information– information  required from an athlete identified in an RTP. Usually includes an athlete’s location over a period of every 3 months and  details such as the athlete’s home address, training venues & schedules, competition schedules, and regular activities such as work & school. Athletes must make themselves available at a given time and place, seven days a week- failure to do so would amount to an anti-doping violation. Whereabouts are filed through ADAMS (Anti-Doping Administration & Management Systmem)- an online data-base for entering, storing, reporting and sharing anti-doping data.

Submission of an athlete’s whereabouts is necessary so that doping control officers can find athletes when carrying out no notice controls (doping tests with no advance warning to the athlete). Controls are made at times when athletes might benefit from taking prohibited substances. These are usually out-of-competition periods when prohibited substances can still be traced (the detection window).

Samples are collected and divided into 2 bottles, A & B, which are then sealed and packaged for shipping to a WADA accredited laboratory. The athlete also fills out a Doping Control Form which includes a declaration of any prescription, non-prescription medication or supplements that the athlete may have taken recently.

A & B sample containers

Jeptoo is at the top of the leaderboards of the World Marathon Majors (WMM)  series  with 100 points after winning the Boston and Chicago Marathons in both 2013 and 2014. This means that she was going to be the recipient of the WMM Series title together with a huge award of $ 500,000 US dollars. There was clearly a lot at stake for her.

As a side note- the marathons on the WMM circuit are- Tokyo, London, Boston, Berlin, Chicago, New-York,  the Olympic Marathon and IAAF World Championships Marathon. Winners of each leg are awarded with a maximum of 25 points. To read more about how the WMM works and its ranking system click here.

What happens after an Adverse Analytical Finding (AAF)  is made?

WADA, IAAF, and the athlete’s national federation will be informed of the results simultaneously.

If there is an AAF on the athlete’s A sample the anti-doping organization responsible for results management conducts an initial review to verify if the athlete had a Therapeutic Use Exemption (TUE) for the prohibited substance found in the sample. They also verify that sample collection and analysis was carried out according to International Standards set out by WADA.

  • Therapeutic Use Exemption– permission granted  by an anti-doping organisation to an athlete with a documented medical condition to use a prohibited substance or method over a specific period of time. Applications for TUE should be made as soon as possible i.e. when the athlete is first notified of his/her inclusion in the RTP but no later than 30 days before the athlete’s participation in an event (except for emergency situations).

If there was no TUE and no procedural anomalies during sample collection and analysis then the athlete is notified in writing of the results as well as his/her rights regarding analysis of their B sample.

A positive test  automatically leads to suspension from further competition and disqualification of any competition results from events entered any time after the positive sample was taken. Results and medals from before the time the positive sample was provided will not be disqualified/ removed.

Jeptoo now has the opportunity to have her B sample tested. If her B sample  analysis is negative/ does not confirm the A sample analysis then the test result will be invalidated, no further action will be taken, and the provisional suspension will be lifted.

What happens if results of the B sample confirms those of the A sample?

Jeptoo will have the right to a fair hearing to determine whether an anti-doping violation has occurred and what sanctions will be imposed. I must point out the Strict Liability Principle in anti-doping matters.

  • Strict Liability Principle–  An athlete is responsible at all times for whatever enters his/her body. An anti-doping violation occurs whether or not the athlete intentionally or unintentionally used a prohibited substance. Athletes are supposed to diligently inspect and check everything that enters their body. Even over-the-counter drugs might contain prohibited substances so it is the duty of the athlete to read the label and counter-check if the pharmaceutical product might contain substances on the prohibited list.

According to the strict liability principle it is not necessary that intent, fault, negligence, or knowing use be demonstrated in order to establish an anti-doping violation. There is absolutely no presumption of innocence in the fight against doping.

The athlete must show how the prohibited substance entered his/her body. He/she therefore has a possibility to avoid or reduce sanctions if it is demonstrated that he/she bears no fault or bears no significant fault or negligence in how the substance entered the body. This is a difficult standard to prove. Usually, only athletes who had absolutely no clue that they were being doped can achieve this.

Remember I mentioned about the importance of the nature of the prohibited substance in question… If the substance is one that is to be ingested in order to enter the body, then perhaps an issue of sabotage or secret doping by a member of the athlete’s support team is a possibility. However, if the prohibited substance is one that needs to be injected into the body it is more difficult  to prove no significant fault or negligence.

Sanctions may also be eliminated or reduced in cases where the athlete proves that the substance in question is a Specified Substance and was not intended to enhance his/her performance. This can be done if the following circumstances are proven to the Comfortable Satisfaction of the hearing panel: the nature of the substance or the timing of its ingestion would not have been beneficial to the athlete, the athlete openly used or declared the use of the substance on the Doping Control Form, and the athlete provided corroborating evidence in form of medical records supporting the non-sport-related prescription of the Specified Substance.

  • Specified Substance- a substance that appears on the Prohibited List that has a great likelihood of a credible, non-doping explanation. This is especially useful when establishing the degree of fault of the person found to be in violation of an anti-doping rule
  • Comfortable Satisfaction of a hearing panel- Since doping is a quasi-criminal offence the standard of proof required to prove no significant fault or negligence is higher than that of a balance of probability but lower than beyond a reasonable doubt.

Unfortunately, EPO is not categorised as a Specified Substance which means that Jeptoo might face a minimum sanction of 2 year ineligibility period for the presence of a Prohibited Substance. She also faces disqualification of results of any events following the date of the anti-doping rule violation – this includes the recalling of the 1st place medal at the Chicago Marathon, deduction of ranking points, and forfeiture of the WMM title and prizes.

Is there a right to Appeal a sanction?

Yes, an athlete has the right to appeal the decision in a doping case and to have the case heard by an independent body such as the Court of Arbitration for Sport (CAS).

It will be interesting to see how this case unfolds- the arguments brought forward by Jeptoo, the reaction of her management and Athletic Kenya’s response to the situation. In the meantime, you may want to look at some of the IAAF anti-doping regulations and the WADA Code for a deeper analysis of the anti-doping rules and regulations.

Click here to view my previous article on anti-doping in athletics.

Post by Sarah Ochwada- International Sports & Entertainment Lawyer

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Lunch with Legal Counsel at UEFA – Burger with a side of advice for young Sports Lawyers

Meet Andrew Mercer-  A really cool gentleman who has been Legal Counsel at UEFA since 2010.

Andrew Mercer- UEFA Legal Council

He started off as a lawyer in UEFA’s Marketing Legal Services Division where he dealt with a wide range of commercial and Intellectual Property (IP) related contracts such as sponsorship, licensing and services agreements  for UEFA Champions League and UEFA Europa League which included deals with Adidas, McDonald’s, Coca-Cola, Ford, Hyundai, Sony, MasterCard, Gazprom, Heineken and Carlsberg.
Currently, Andrew is involved in Club Licensing and Financial Fair Play providing legal advice in connection with investigations and disciplinary cases brought against clubs participating in UEFA’s competitions. He also represents UEFA at Court of Arbitration for Sport (CAS) hearings.

He made time to talk to me over lunch at the UEFA HQ in Nyon, Switzerland. As a side note- UEFA offices have a jaw-droppingly awesome view overlooking Lake Léman! And the foodie in me appreciated the yummy lunch served at their Cafeteria… I ate a burger and chips (french-fries for all ye non-Queen’s English speakers). But that’s not why I’m writing this article so back to Andrew…

He has an interesting story of how he got involved in sports law. He first studied English Literature for his undergrad, and before starting on his law degree he spent one year working as a radio presenter and journalist at Radio Beijing, in China.

Once he completed his legal training and qualified as a Solicitor in March 2008 he was hired as an Associate at Slaughter and May, a  leading international law firm in London, where he worked in the IP and Commercial departments.

While at the law firm he did some sports-related legal work for clubs such as Arsenal where he was primarily involved with commercial and IT agreements, and Spurs where he worked on image rights agreements with players. He admits that sports law matters, at that time, were not the bread and butter of any law practice but his legal background and love for football steered him towards a career in sports law. He continued taking on sports law projects and when the opportunity to join UEFA came along he grabbed it.

Through our conversation I got a lot of tips on how to become a sports lawyer and how to get ahead with a career in sports law. I am more than happy to share these tips with you. Here are some of the key take-aways I got from my lunch meeting with Andrew:

1. If you want to become a sports lawyer you must first be a good lawyer-

Sports law includes a variety of different legal fields: contracts, IP,  litigation, employment law, tax law etc. Some students get into law school with the sole purpose of becoming sports lawyers but they don’t appreciate that having a background knowledge of the basic principles of law is important.

It is equally difficult to know what areas of sports law you will be most interested in specializing or what areas you are good at without having practical knowledge or experience. Sports law entails a great deal of governance issues, contracts, IP, or even dispute resolution which are all niche practice areas. Practical experience through working at a law firm or a sports organisation will teach you which area of law to specialize in if you want to have a fulfilling career.

2. Build your career by focusing on what you can learn and not just on what you can earn –

A good way to learn as much as you can while growing your sports network is by volunteering at sports events. As a volunteer you will get access to how things are ran, you will get knowledge directly from the people in the sports business, plus there is the added advantage of actually being present at the event for free. If you are starting out in sports law, the value you receive from volunteering will be worth a lot more than the amount of money you will earn and you never know the kind of opportunities that may open up through volunteering.

3. Grow your network by reaching out to others who are already in the field you want to practice in

I first came across Andrew on Linked-In. His name popped up under the suggestions of people I may know. I checked out his profile and thought he had an impressive work back-ground that I wanted to know more about. I reached out to connect and was pleasantly surprised that he was willing to answer some of my questions. I was even more pleasantly surprised that he invited me to UEFA for a meeting.

During our meeting he didn’t just speak and dish out advice, he also listened and asked me about my plans and projects. He offered assistance in some areas that I was unsure about. I asked Andrew if he had ever considered mentoring or teaching in sports law- judging from his reaction, I don’t think it’s something he was ever asked before but he looked delighted at the prospect.

If you genuinely want to know more about your career you’ll be surprised at the willingness of people in your field who are open to giving guidance and advice yet they are rarely asked.

4. Build your presence and visibility through attending events and conferences

Once you have already begun your journey into sports law it’s a good idea to build your visibility or presence by going to sports law events, attending conferences and engaging in round-table discussions. It is, however, important to know which ones are worth going to. Andrew recommends attending the annual CAS Seminar.

In terms of networking, it’s a wonderful conference to attend- a majority of the sports lawyers who taught me the International Sports Law masters at ISDE were either speakers or attendees at the event. I personally enjoyed re-connecting with them and getting introduced to other lawyers and arbitrators.

5. Be pro-active in your search for opportunities

Get involved in sports law projects that you find interesting. They may include doing things that no other lawyer has interest or experience in, but that is where the fun and opportunity lies. Engage your mind in tasks that will require some creativity and effort, do them as passion projects in your spare time and use them to catapult you to your dream job.

Andrew worked on side projects during his free time while he was still working at his firm but he knew that he wanted to end up working in football. He reached out to his networks and showed them what he can do. (This is key- show them, don’t tell them.) When a position opened up at UEFA, he was told about it, he applied and the rest is history.

6. Develop an additional skill set aside from your legal work

Andrew has been involved in a range of other activities aside from his legal duties which he first got involved in because he thought they would be fun projects to do. If you analyze some of the stuff he’s been up to you realize that he took a chance to acquire or develop a unique skill set which added tremendous value to his organization.

For example, he assisted in the development of the UEFA Best Player in Europe Award and the UEFA Best Women’s Player in Europe Award including designing the voting processes and adjudicating at the presentation ceremony. These awards were created as result of a partnership between UEFA and the European Sports Media. (To read more about the history and procedure of the Europen Player of the year award click  here.)

He is also a Venue Director currently posted at PAOK FC in Greece for UEFA Champions League/UEFA Europa League matches. He is in charge of the team that prepares the venue for match days.

Andrew made use of his creativity and leadership skills above and beyond his role as legal counsel. If you have any other skills or qualities you think might be valuable outside your everyday work life, by all means go ahead and use them you might end up doing some very cool projects!

 

UEFA-Collage

 

I hope this article proves useful to you.

Wishing you success in your career,
SnoLegal
Sarah Ochwada- International Sports & Entertainment Lawyer
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Fund-raise like a Pro- Tips & Strategies to raise lots of money in a fun and creative way

Raising money for a cause that is not considered to be an emergency is hard work but it doesn’t have to be boring. Think of it as an adventure. You have everything you need at your disposal to raise the money. You just have to connect the things that are available and accessible to you in a way that will help you to reach your goal.

Following the success of my Sindikiza SnoLegal Campaign (read more about how I crowd-funded for my master’s degree here, here, and here) I have received several requests from individuals and institutions to give them tips on how to raise money in a fun and creative way. 

The information I am sharing with you is a result of months of thinking, consulting, planning, testing, readjusting and implementing. I made a lot of mistakes along the way and some of the things that I had initially set out to do failed…miserably.   However, I learnt from my mistakes and got some amazing advice through reading other blogs and talking to some of my acquaintances who have had successful fundraising events.

Given that I have tasted both success and failure in fundraising, I have some practical insights guaranteed to produce phenomenal results if applied. The only catch is – you must be willing to put in the personal effort.

I am certain that you are either reading this out of curiosity (yeah, what would a lawyer know about fundraising?) or because you are genuinely looking for guidance. Either way, this is free information that could change your entire outlook on fundraising and you have 2 choices:

  1. Read, be inspired, comment on how helpful & inspirational this post is, share it to your social networks, email a link to your mum, then go eat a chapati and hope for the best; or
  2. Take the advice, pick out whichever you think is most relevant to you, customize it to suit your own situation and then execute like a boss!

Alright, lets get into it.

1. First things first- What are you fund-raising for, and why?

This is a critical step because it sets the tone for your entire fundraising campaign. It is also the first thing that your potential contributors will ask you. Your task is to get to the core reasons of why you are fundraising; do not stick to the plainly obvious ones.

As uncomfortable as it will be, getting to the core reasons will expose some of your vulnerability but it will help to create a genuine impression of why you are seeking financial assistance.  Potential contributors are most comfortable when giving to a good cause that they think is genuine, worthwhile and that they can relate to. They may not necessarily have a personal connection to you, but your story or your core reasons for fundraising should be compelling enough to trigger either a memory of a similar experience that they went through or a powerful emotion that will motivate them to want to give to you. 

Here is an example of what my thinking process was:

Plainly obvious; I am raising money for my masters degree in International Sports Law abroad because-

  1. I need the expertise for my career path.
  2. It is very expensive and I cannot possibly afford it on my own right now.

Core reasons; I am raising money for my masters degree in International Sports Law abroad because-

  1. I need the expertise & so does my country– Sport in Kenya is an emerging industry lacking local legal experts, yet no local university offers this course. As much as we don’t want to admit it, a masters degree has now become a basic requirement for the Kenyan job market and a masters degree is a necessity if I want to be taken seriously as an expert in my field. 
  2. It is expensive– the cost of my studies abroad includes not just tuition fee, but lots of travel within Europe as part of the curriculum and not to mention accommodation and living expenses. Also the cost of living abroad is much higher than in Africa.
  3. I cannot afford it on my own right now– I am not a high rolling advocate who earns hundreds of thousands. With the amount of money I make and even after pooling my savings I would not possibly be able to afford paying for the masters degree on my own. There are also no scholarships available for my demographic- I have struggled to find them. The other alternative would be to postpone my studies to a future date, but…
  4. I do not want to postpone my studies- it’s important for me to learn while I am still young and unhampered by the responsibilities of family life. Plus, it’s better to learn at a time when the most important changes are taking place in the Kenyan sports scene so that I can make positive contributions to the developments.
  5. Getting a loan would be detrimental- I fear that loan repayment would become a priority after my studies and this will take my focus away from developing sports law in Kenya. There is the risk that I would have to settle for a job in a more traditional law field for several years in order to pay off the loan, which beats the purpose of my studies in the first place. Settling is not an option. Starting my career debt-free is crucial for success as a pioneer in sports law in my country. 

Last year, I had the pleasure of meeting Waithera Kabiru– a digital diva, proud soccer mum, breast cancer survivor and all-round cool Kenyan. A simple conversation with her made me realise the importance of getting to the core reasons for fundraising. She organised a fun treasure hunt around Nairobi in order to raise money for her chemotherapy because her health insurance would not cover her cancer treatment. Read more about her remarkable story on her website 2nd Chances.

You might also like to take a look at Wish4Mama  initiated by 4 beautiful Kenyan sisters who are living in different countries but have organised some really cool fundraising events  so that they can raise money for their mum’s colon cancer treatment. You go girls!

2. Play around with the numbers- How much do you need to raise and by when? 

This is yet another crucial step that is often over-looked. The amount of money you need to raise and the period of time you have to raise it is directly related to the fundraising activity you will choose to employ. 

Here’s a practical example; if you need to raise 10,000 Kenya shillings/10,000 bob (a little less than 100 USD) in only 1 week then you have to think along these lines:

  1. Who do I know who would be ready & willing to contribute the entire amount of 10,000 bob?
  2. Which 10 people can I reach out to who can comfortably give me just 1,000 bob each?
  3. How can I convince 100 people to happily give just 100 bob each?
  4. Of the above options, which one is most likely to succeed and is worth my effort  to pursue given I have  only 1 week to raise the money?

Sounds simple doesn’t it. We use this pattern of thinking all the time.

I mean, if you’re a guy in uni and you want to impress a hot girl by taking her out for a fancy first date but you’re short on cash you will most likely approach your dad, uncle, older bro, close friends or all the above for a “soft loan” (you know…the kind of loan that you are at liberty not to pay back). And if you’re a girl and you spot “the handbag of your dreams” or “that pair of shoes” which were speaking to you while you stood outside the shop window utterly mesmerized, eyes transfixed and saliva practically drooling from the corner of your mouth- oh, you KNOW who to go to for the cash, and you know the exact phrase to use that will get you the money too. Desire is a powerful motivator.

My point is- if you can be savvy enough to raise money (and do so quickly) for trivial items in your life, why not harness your desire and refine your strategy for the things that count?

So here’s the main insight based on the practical example above; for small amounts of money to be raised in a short period of time, a personal and direct approach to potential contributors is best. Focus on the fewer people who are guaranteed to contribute to your entire amount. But for larger amounts of money with longer periods of time (for instance 1,000,000 bob in 1 year), you have the luxury of creativity and choice- and you can employ a variety of activities and methods to raise money.

3. Who are your target contributors?

You are part of a community. Actually, you  are part of several communities: your family, circle of friends, neighbours, classmates, colleagues, members of your church choir, the folks at your gym, the people you meet and gossip with when you go the barber shop or hair salon…you get the point.

Your first few potential contributors should be those you know within your communities. If you can convince those you know to support your cause, then it will get easier for you to get people in your communities to reach out and convince people in their networks and so forth. It’s a ripple effect.

Within your own communities you will come across the following categories of potential contributors:

  1. The heroes– individuals who are capable, ready and willing to freely give to you. Bless them!
  2. The angels– individuals who are willing to give freely but unfortunately are not in a position to offer any money. Not to worry, you can ask this category of people to offer you their skill sets instead of money e.g. if they’re good in graphic design they can design posters or cards for your campaign, if they can DJ they can provide music for your event etc.
  3. The skeptics– those who are capable but have serious doubts about giving to YOU. (You strange and unusual person, you!) To turn a skeptic into a contributor, you need to engage them and find out the reason behind their doubts. What are their concerns and fears about giving to you and how can you assure them that you are not a con?
  4. The tough crowd– these individuals will listen to you, sympathize with your story but are not willing to part with their hard-earned cash just like that. You can turn them into contributors by giving them value for their money. This can be done by either organizing a fun event they’d be interested in and charging an entrance fee, or by offering to do a service or task for them which they will find valuable (For instance, I’m not a trained translator but I once spent an afternoon translating a document to French for someone who needed it to be done fast. The guy was happy with the outcome because it saved him time and effort looking for someone else and I earned a decent amount of money).
  5. The traders – those who only want to give to you because they want to get something else from you in return. Their contributions will come with strings attached. Proceed with caution when dealing with them. Assess whether their contribution is worth the item of trade involved. (For instance, I had one contributor who wanted an introduction to some people in my networks in exchange for his contribution. Done deal. I had another potential contributor who wanted to give a size-able contribution in exchange for me going to work for his company after my masters… Sounds good, but his job offer was not in line with my career path so I turned him down. And I had another potential contributor who wanted to make a size-able contribution, and give me an introduction to a corporate that may or may not be interested in contributing to my campaign in exchange for my “company”[Read between the lines]. No trade here – no amount of currency is equal to the worth of my dignity.)
  6. The corporate world– as a general rule, corporates rarely contribute money towards a cause for an individual  – they only support organizations or institutions which align with their corporate strategy. They will probably quote a line from their company policy stating this. However, it doesn’t mean that you shouldn’t try approaching them. They may not give you money but you can convince them to contribute either goods or services towards your cause. And if  that’s not the case, ask for a meeting with their marketing department. At this meeting you can learn a lot about the criteria they use when selecting the causes they support for their corporate social responsibility projects and more importantly at what time of the year they make this decision.  This knowledge might prove valuable to you in future.

4. Connecting with your contributors

This is where it gets interesting because you must now shift your focus to the interests of your potential contributors instead of your own.  What do they admire, or what do they desire? And what can you offer them that is too tempting to ignore?

Use your creativity to come up with fun activities that will make money. But you must match your fund-raising activities to the respective demographic.  Think of it this way:

  1. What are the characteristics of the people you are targeting- age, gender, socio-economic back-ground?
  2. Would they be interested and willing to participate in this activity?
  3. Do they have the ability to pay for this activity?

For instance, one of my fundraising ideas was to host a Zumbathon [activity] for working women aged 24-50 who love to work out and dance [characteristics] from middle and upper-class backgrounds [ability to pay]. 

The Zumbathon was a good idea and a good match. However, I thought of another activity- Crazy Olympics which in my opinion would be fun for adults to let loose and get in touch with their inner child because it was no different from activities that are done during office team-building events. That was a bad match. One of my neighbours explained why perfectly…

“Listen, I’m not going to pay money to make a fool out of myself. But I have 4 kids and I am willing to pay money for them to have something to do for an afternoon. If you change this into a kids’ activity  it’s a win-win because the kids are kept busy and entertained, the adults get to relax, and you will be smiling all the way to the bank.”  Boom!

Adaptability is key. Listen to the concerns of your potential contributors and be willing to adjust your plans or ideas to suit their needs or desires. In the case of the crazy olympics a parent would want their kids to engage in fun and healthy activities but at the same time they want a quiet afternoon to themselves. So essentially, they would be paying for peace of mind. To ensure that their peace of mind is fully covered you would have to set up your activity in a safe venue with enough vigilant helpers to ensure safety and security of the children.  And to cover yourself against liability you would need to have a consent form with an indemnity clause for the parents to sign .

5. Timing is everything

If you are approaching potential contributors for direct contributions- catch them at a time when they are most relaxed. Call them up, and ask for a face-to-face meeting at the time of day that is most suitable to them, and at a location that is most convenient to them. Tell them that you are flexible with time and can work around their schedule. They will appreciate your effort. If they insist that they are too busy, the best way to handle it is by saying “I know you’re super busy, but all I need is just 10 minutes of your time and if what I say does not interest you, you will never have to hear about it again.”  This phrase got me not just meeting after meeting, but also more than 10 minutes of time with the people I met.

In terms of timing for fund-raising events and activities these are the insights that I have:

  1. Cocktails-best done on Thursday evenings. Any other day of the week is too hectic because it’s a work day; Friday and Saturday nights people are more inclined towards partying than fund-raising and Sunday is usually reserved for nursing hangovers or spending time with family.
  2. Family events- best done on Saturday afternoon or Sunday afternoon. Do not plan it on a long weekend or a weekend with a public holiday as this is the period in which most people travel out of town.
  3. Best months for fundraising- this will vary depending on where you live, but generally months with major holidays such as Christmas, New Year’s and Easter are a little tricky as people tend to focus more on family. Although you might be lucky with Christmas- tis’ the season for good cheer and all. Also months when kids have to go back to school can be difficult.
  4. If your event is outdoors, be aware of the weather/ seasons. An outdoor event during a rainy season is uncomfortable and off-putting. However, if your event is during hot season use that to your advantage and sell things like refreshments, ice-cream, face towels, wet-wipes etc.

6. Location, location, location! 

For your fundraising activities location is important for several things if you are trying to save money while you raise money:

  1. Get a location which is easily accessible by public transport.
  2. You might also want a location which will allow you to have enough space for your main activity and also related activities such as selling snacks or other small items.
  3. Get a location which already has its licenses and permits in place (like music license-MCSK, noise license from NEMA, city council license), you can then piggy-back on these licenses without having to pay extra for your event.
  4. A location with its own amenities such as ladies & gents rooms, security and parking also cuts back a great deal.

7. Surround yourself with influential people

Involve people in your community who are influential in order to create more awareness for your cause. This does not necessarily have to be a celebrity but think along the lines of people who are either well respected or can mobilize others to give towards your cause.

I found that bloggers and folks on twitter with large groups of followers were very helpful in my campaign.  Surprisingly, I also found that some of your own family members can be very influential at weddings or other family gatherings. I have 1 uncle who managed to convince tens of guests at a pre-wedding ceremony, most of whom I did not know, to make contributions to my campaign. At first I was apprehensive about his approach, but he did it at a time when everyone was already well fed and had a few drinks in them, so they were in a jolly mood to give!

8. Be memorable/ be at the fore of people’s minds  

Learn how to become a story-teller. Treat every encounter you have with a potential contributor as a chance to pitch your fundraiser in the most exciting and thought-provoking way possible. Be enthusiastic about your cause and let your enthusiasm be contagious.

Make good use of your e-mail list to keep in touch with the people you know. Update them on your developments as you move along. Also, be gracious and grateful to all your contributors and send them thank- you messages. Personalize them if you can. Gratitude goes a long way.

Na kwa hayo maneno machache (And in those few words) I hope my nuggets of wisdom will help you in your own fund-raising campaign wherever you are. I wish you the confidence to pull it off and the resilience to see it through.

 

Best wishes, and may the force be with you!

SnoLegal.

Sarah Ochwada,

International Sports & Entertainment Lawyer.

 

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