Sixth-Fastest Marathon Runner Faces Potential 10-Year Ban: A Dilemma of Speed and Consequences

Background

It has been thrilling to see track and field develop consistently over the years. World records have been broken and obstacles that seemed impossible have been surmounted, demonstrating the sport's ongoing quest to redefine boundaries. On the one hand, this development is normal and expected. Athletes actively pursue new heights and commit themselves to shattering records. Additionally, this development is facilitated by improvements in training expertise, increasing participation in the sport, superior competition surfaces, improved shoe technology, improved nutrition, and evolving pacing tactics. Together, these elements advance the sport.

While it is imperative for Athletes to chase higher pursuits beyond the mind-bending logistics of the body and mind, they oftentimes find themselves turning to external substances to mold themselves to meet their desired goals. Doping's covert and pervasive presence throws a shadow across the playing field. The sport is made even more difficult by the ambiguity surrounding the exact scope and impact of doping.

Recently there has been a teething trouble surrounding the Kenyan athletes. The year 2023 have come around hard on these athletes as according to the sources more than 66 Kenyan athletes have been a part of Athletics Integrity Unit’s (“AIU”) global ineligible athlete list for breaching anti-doping rules.

Indeed, even big names such as Lawrence Cherono (2019 Boston and Chicago Marathon Champion), Diana Kipyokei (2021 Boston Marathon Champion) have faced sanctions for doping last year. In fact, Diana had her title stripped after failing an in-competition drug test at that race.

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Athletics Integrity Unit (“AIU”)

The Athletic Integrity Unit (AIU) is an independent body created by World Athletics to regulate all integrity matters within the athletic world, including both doping and non-doping issues. The AIU is in charge of a wide range of tasks, including anti-doping initiatives, probing those involved in age or competition manipulation, checking out illegal transfers of allegiance, and spotting misconduct like bribery and betting law infractions. The AIU's main goal is to eradicate doping from athletics while also unwaveringly supporting honest athletes around the world who dedicate themselves to fulfilling their sporting ambitions through hard work and devotion.

Facts of the Case

Titus Ekiru, the athlete who presently holds the sixth-fastest man of all-time emerged victorious at the Milan Marathon in May 2021 clocking a time of 2 hours, 2 minutes, 57 seconds. However, the jubilation was short-lived as Ekiru’s post-race drug test returned a positive result for corticosteroid triamcinolone acetonide, a substance prohibited for use in-competition according to WADA Code except in the scenario when an athlete is granted a Therapeutic Use Exemption[1] (TUE) as a defence against doping allegations.

To provide a concise overview of TUE, it can be referred to as the permission granted to an athlete to use substances or methods that are specifically included in the WADA Prohibited List to treat a legitimate medical condition while still being able to participate in competitions. The Guidelines for the International Standard for Therapeutic Use Exemptions (ISTUE) present a comprehensive and equitable process for athletes, Anti-Doping Organizations, physicians and Athlete Support Personnel to follow in cases where an athlete needs to use substances or methods prohibited by the WADA due to illness or medical condition.

Ekiru was not immediately charged with the doping allegations giving him an opportunity to present evidence supporting his claim, which revolved around an exception for legitimate medical treatment.

AIU’s initial investigation on Ekiru, following his positive test for consuming prohibited substance (corticosteroid triamcinolone acetonide) was closed at Milan, the event ranking Ekiru the sixth-fastest man of all time which though later was reconsidered when Ekiru secured another victory at the ADNOC event held at Abu Dhabi in November, 2021 wherein he once again tested positive, this time for a synthetic opioid named pethidine. This substance, too, is on the WADA’s List of Prohibited Substances and Methods. Despite the second positive result, Ekiru maintained his defense, arguing for the therapeutic use of the substance in question.

?The Track and Field investigation body noticed an emergence of a pattern of triamcinolone acetonide[2] use among the Kenyan Athletes.

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Titus Ekiru’s Defence/Claims

Ekiru’s main defence hinges on the exemption provided by WADA, known as the Therapeutic Use Exemption. The verbatim provision of this exemption as provided under the WADA Code is as below:??

“Article 4.4: Therapeutic Use Exemptions (“TUEs”):

Article 4.4.1:?The presence of a Prohibited Substance or its Metabolites or Markers, and/or the Use or Attempted Use, Possession or Administration or Attempted Administration of a Prohibited Substance or Prohibited Method shall not be considered an anti-doping rule violation if it is consistent with the provisions of a TUE granted in accordance with the International Standard for Therapeutic Use Exemptions.”

The process of obtaining a TUE involves submitting detailed medical documentation and evidence to a designated Anti-Doping Organisation (ADO) TUE Manager/Administrator, who further submits the complete application to the ADO TUE Committee. The committee evaluates the athlete's medical condition, the necessity of the prohibited substance or method, and the potential impact on their performance and renders a decision within 21 days from the date of application. Thereafter, the ADO Manager/Administrator informs the athlete of the decision so rendered and records it in ADAMS.?

TUEs aim to strike a balance between maintaining the integrity of sport while also ensuring that athletes with genuine medical needs can receive appropriate treatment without being penalized for anti-doping violations. The process is designed to prevent abuse and strictly restrict the use of prohibited substances or methods solely to legitimate therapeutic purposes.

It is important to note that TUEs are not automatic or universally applicable. Each TUE request is assessed on a case-by-case basis, and athletes must adhere to the specific conditions outlined in their approved TUE. Regular monitoring and re-evaluation may also be required to ensure ongoing medical necessity.

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Brief description of the substances concerned in the present study

Of the two substances concerned in the present scenario, the first is Triamcinolone Acetonide which is categorized as a Prohibited Substance under the WADA Prohibited List, specifically under the classification S9: Glucocorticoids. While administration of the substance through local injection was not previously prohibited, its use is now banned during the in-competition periods as a result of substantive evidence indicating potential performance-enhancing effects and health risks when administered through prohibited routes. Athletes who require the use of glucocorticoids during the in-competition period must obtain a Therapeutic Use Exemption (TUE) or demonstrate (for cases prior to 2022) that the administration does not involve a prohibited route. If an athlete tests positive for a glucocorticoid without having a valid TUE or proof of non-prohibited administration, they will be deemed to have committed an Anti-Doping Rule Violation (ADRV).

According to the WADA Prohibited List, pethidine, the second substance for which Ekiru was tested positive, is categorised as a Prohibited Substance, specifically falling under the category S7: Narcotics. Although these drugs are used to treat severe pain in therapeutic settings, misuse of them can lead to physical dependence and addiction. They are categorised as regulated substances in most nations because of these concerns, and in the world of sports, they are not allowed when athletes are in-competition.

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Outcomes leading to a 10-year potential ban

After the violation resulting from Ekiru’s positive test for the substance named pethidine and his claim of the TUE exception, the AIU received notification of the positive test for pethidine in February 2022. This development allowed for a breakthrough, leading to a combined re-investigation into the allegations against the athlete. After discovering a trend of Triamcinolone Acetonide use among Kenyan athletes, the AIU later reopened the inquiry into his initial doping offence.

The Athlete was provisionally suspended in June 2022 for a duration of one year, pending the wide range of investigation behind the allegations. After a thorough investigation by the AIU, conducted in cooperation with Kenyan authorities and the Anti-Doping Agency of Kenya (ADAK), Ekiru's case came to light. As a result, the AIU rejected the athlete's plea and explanations, accusing him of using Pethidine ADRV in March 2023 and Triamcinolone Acetonide ADRV in April 2023.

AIU as well charged the Athlete with tampering with the result management process by submitting a false and malicious medical explanation and documentation for both his cases for positive tests.

Ekiru finds himself confronted with all four charges grouped together, but he retains the right to defend himself before the Disciplinary Tribunal. If found guilty, he could potentially face a ban of up to 10 years.

[1] Article 4.4, World Anti-Doping Code

[2] Substance best known for being used with a medical exemption by British cyclist Bradley Wiggins before competing in the 2012 Tour de France, a race which he won.