Noel Meade (Trainer) “Champoleon (FR)” Referral Prohibited Substance - Punchestown, 16th May 2015

The Referrals Committee, Justice Tony Hunt (in the Chair), Sean Barry and Robert Dore met at the Turf Club, The Curragh, Co. Kildare on Wednesday, 28th September 2016, to consider a report from BHP Laboratories in Limerick stating that the biological fluid sample taken from Champoleon (FR), following its win at Punchestown in the Punchestown Events Maiden Hurdle on 16th May 2015, was found to contain Caffeine which, under Rule 20(v) and Regulation R14, is a prohibited substance. The trainer requested that the “B” sample be tested and the sample which was tested by Laboratoire des Courses Hippiques (LCH) in Paris confirmed the finding of Caffeine.

Evidence was heard from Bill Fleming, Turf Club Veterinary Assistant, Joan Taylor MRCVS, Turf Club Veterinary Officer, Dr Yves Bonnaire, Director LCH Paris, Colette Hannan, Laboratory Manager BHP Laboratories, Dr Neville Dunnett, Racing Lab Consultancy, Cambridgeshire, Dr Thomas Barragry, Pharmacologist, Noel Meade, Trainer Champoleon, Prof Tom Tobin, Toxicologist/Pharmacologist/Veterinarian and Steven Barker, Professor Emeritus, Louisiana State University (Expert witnesses on behalf of Noel Meade).

THE TURF CLUB REFERRALS COMMITTEE
REFERRAL OF CHAMPOLEON, TRAINED BY NOEL MEADE

Decision

1. On 16th May, 2015, Champoleon won the “Punchestown for Events Maiden Hurdle”, trained by Mr. Meade. In accordance with normal procedures, a post-race urine sample was taken from the winning animal.

2. The Turf Club’s case is that subsequent analysis of the A sample disclosed the presence of caffeine, a prohibited substance, thereby constituting a breach of Rule 96(a), rendering both horse and trainer liable to sanction under this Rule.

3. The matter was heard by the Referrals Committee on 28th September 2016. After the hearing, further information was exchanged between the parties in relation to the analysis of the samples, and final written submissions were received from each party on 22nd December 2016. The Committee then considered the matter. This decision was circulated to the parties on 25th January 2017.

4. After the result of analysis of the A sample became available, the B sample was analysed at the request of Mr. Meade, which confirmed the presence of caffeine in that sample. The Committee is satisfied that both procedures independently confirmed the presence of caffeine in the respective samples.

5. Neither Rule 96(a) nor the relevant Schedule of Prohibited Substances (the Schedule) stipulates a threshold level in respect of caffeine. It was suggested by some of the expert witnesses called on behalf of Mr. Meade that the Turf Club rules ought to incorporate such a threshold. With all due respect to those witnesses, the drafting or substance of such rules is not within the jurisdiction of the Committee, which is primarily concerned with investigating matters referred to it in accordance with the Rules as currently constituted. A screening or residue limit is applied by a laboratory as a matter of protocol or procedure. It is a distinct concept from that of a threshold limit applied to a specific prohibited substance by an anti-doping rule or regulation.

6. The evidence of the laboratories that analysed both samples in this case is that each applied a similar analytical or laboratory threshold during the respective analysis processes. This results in a situation whereby these laboratories will not certify the presence of caffeine unless their analysis yields a result in excess of the International Residue Limit of 50ng/ml of urine. This figure represents an internationally recognised detection limit used by competent laboratories when screening for certain contaminants or environmental substances, and is not equivalent to a threshold level specified by rule or regulation for the substance in question. The Committee is satisfied that once the residue limit has been demonstrated to be exceeded in the case of caffeine, the absence of a threshold in the rule in question renders the quantity of the substance in the sample irrelevant, and a need for quantitative analysis does not arise.

7. Accordingly, the Committee does not accept the submission that the application of a screening limit in the laboratory has any relevance to the application of Rule 96(a) when a threshold limit is not applicable to the provisions in question. The Committee is satisfied that two reputable laboratories acting independently and operating appropriate procedures and protocols (including internationally recognised residue limits) demonstrated conclusively that caffeine was present in the post-race sample. The actual level of caffeine in either sample is irrelevant under Rule 96(a) once the evidence establishes as a matter of probability that caffeine was present. “Confirmation” amounts to a level of proof well beyond probability. That is the position in this case, where it also appears from the further analysis that the quantity of caffeine comfortably exceeded the residue limit, as there was additional evidence suggesting a rough estimate of 80ng caffeine/ml urine in the B sample.

8. As the Committee is satisfied that the analysis of both samples yielded positive results for caffeine well in excess of the laboratory residue limit, the real issue for determination in this referral is as to whether the caffeine in both A and B samples had been present in the system of Champoleon during competition, or alternatively due to external or environmental contamination of the post-race urine sample.

9. Much of the evidence and discussion at the hearing related to the presence or absence of metabolites of caffeine in the samples analysed. The presence or absence of such metabolites does not affect the conclusion that caffeine was found in a certifiable quantity, but may be of assistance in determining whether the caffeine was present due to external or environmental factors, or because it had passed through the system of the animal, and was present in the post-race sample for that reason. As with any other issue, the outcome is indicated by the conclusion which is more probable than not on the available evidence.

10. In this case, the first (A) sample was analysed by BHP Racing Laboratory (BHP), after the samples from Punchestown were received in good condition, without evidence of tampering or leaking. The screening analysis of the sample was conducted between 20th May, 2015 and 28th May, 2015, and the analytical data met the criteria for a suspicious finding for methylxanthines. Confirmatory analysis of the sample was conducted between 28th May, 2015 and 29th May, 2015, with the result that the minimum criteria applied by BHP for the establishment of the presence of caffeine were met, but the minimum criteria for establishing the presence of Theobromine and Theophylline were not reached. Review of the analytical data on the presence of Theobromine and Theophylline nonetheless concluded that there was a “high probability” of the presence of both metabolites in this sample.

11. At the request of Mr. Meade, the B sample was transmitted for analysis at Laboratoire des Courses Hippiques in France (LCH). Their analysis was conducted from 9th June to 11th June, 2015. The presence of caffeine was confirmed. In the light of the contamination claim, further analysis of the retained B sample took place in February 2016, and confirmed that Theophylline was detected at around 200ng/ml, Theobromine was detected at around 100ng/ml, and Paraxanthine was found as a trace. It appears that these metabolite levels were no more than a rough estimate.

12. BHP carried out a review of the analysis of the A sample in February 2016. This focused on the fact that the initial analysis did not confirm the presence of Theobromine or Theophylline to the satisfaction of the criteria specified in the BHP Accredited Standard Operation Procedure for confirmation status. The further review confirmed that this failure was caused by the presence of distorted data, and the relatively low levels of the two substances in the sample, coupled with high spurious signals emanating from the background simultaneously with the normal signals of these two substances. This effect was stated to be “not uncommon” in the analysis of equine urine. BHP remained of the opinion that whilst the findings did not fully meet the criteria required for confirmation, there was sufficient evidence to indicate the presence of Theobromine and Theophylline.

13. On the one hand, the clear absence of metabolites in sampled urine would bring into focus the issue as to whether it is more probable that the caffeine was present in the sample by means other than passing through and out of the equine system.

14. On the other hand, if the evidence is such that it supports a finding that it was more likely than not that metabolites were present along with the parent substance, then that could support the view that the caffeine was present because it was imparted to the urine by the equine system, as opposed to another external or environmental source.

15. In this case, the Committee accepts in particular the evidence relating to the testing and review carried out by BHP, as supported by LCH, and does not find that their conclusions are affected in any way by any interpretation of, or commentary on the data relating to the two analytic procedures actually carried out.

16. The Committee accepts the opinion evidence of the analysts who carried out the actual analysis of the samples in question that the urine contained traces of the metabolites of caffeine. Although the two metabolites were detected by BHP at a “small trace” level, based on 4 out 8 of the relevant criteria being met, the Committee is nonetheless satisfied that the substances were probably present in the urine, having regard to conclusion of BHP that that there was a “high probability” of the presence of both metabolites in this sample. The fact that such substances could not be positively “confirmed” by the laboratory on the basis that all 8 criteria for confirmation were not met does not exclude or invalidate a conclusion that they were probably present, and detection of the presence the metabolites, even in trace quantities, is inconsistent with a conclusion that it is more probable than not that the urine was clear of metabolites of caffeine.

17. It is necessary to look at the entirety of the evidence, and the specific facts relating to a possibility that that the caffeine found in the urine resulted from “environmental transfer” in order to come to a conclusion on the issue of external contamination. The Committee is satisfied that such a transfer could not have taken place at any time after the samples were properly sealed by the testing officials at Punchestown. The evidence excludes any possibility that two separate instances of contamination could have occurred thereafter during two independent and separate laboratory analysis processes. Consequently, if the caffeine was not in the urine due to being metabolised by the equine system, as suggested by the traces of metabolites, the subsequent window of opportunity for contamination from the environment or the sampling process was extremely narrow, being confined to the short period of time between the passing of the urine and the sealing of the samples by the relevant officials.

18. The Committee accepts the evidence of the officials who took the samples on the day that the normal and proper procedures were followed in respect of the taking of the samples in question. The integrity of the process is supported by the fact that no other sample taken by the same officials in the same location on the same day resulted in similar contamination. Although it is accepted that caffeine is a common substance in the environment, the evidence relating to the experience of the Turf Club does not suggest that environmental transfer of caffeine to a urine sample is a common or facile phenomenon. The Committee heard evidence that that between 2008 and 2015, 24,259 samples were taken by the Turf Club, and only eight samples tested positive for caffeine. This implies that 99.967% of animals tested between 2008 and 2015 managed to avoid contamination from any source, let alone by “environmental transfer”. The Committee is satisfied that this figure supports the conclusion that there is, in fact, a very limited practical possibility for external contamination where proper testing, sealing and laboratory processes are followed. That would be the case even if no trace of metabolites had been found in the urine.

19. In this case, the limited practical opportunity for contamination, together with the evidence and opinion of BHP in relation to the “highly likely” presence of two metabolites in the A sample, satisfy the Committee on the balance of probabilities that the caffeine confirmed in the urine sample was more likely to have been present in the urine by reason of absorption during passage through the equine system, and less likely to have been the result of “environmental transfer” or other external contamination. The conclusion that would be appropriate in the absence of any evidence indicating the likely presence of metabolites of caffeine is a matter for discussion in a case where that is a feature of the evidence. In this case, the trace evidence supports the conclusion that external contamination was not a likely possibility on the facts.

20. In these circumstances, the Committee is satisfied that there was a breach of the provisions of Rule 96(a), in that testing of the post-race sample showed the presence of a prohibited substance, which the evidence showed to be capable at any time of causing an action or effect, or both an action and effect on various tissues, body systems and organs of the horse, including in particular the nervous system of the horse.

21. The Committee does not accept the submission that the phrase “at any time” in the relevant Rule or Schedule should be interpreted as reading “at any given time”. To supply the term “given” by implication would be to change the focus of an inquiry under this Rule from the simple presence of a prohibited substance capable of having specified effects at any time to the cause or effect of the presence of a particular quantity of a substance at a particular time and place.

22. The Committee is of the opinion that such an interpretation would be manifestly inconsistent with the plain meaning of the words of the Rule, and with the policy underlying anti-doping codes in sport. In practice, it can be very difficult to reach a conclusion, even as a matter of probability, as to the mechanism by which a prohibited substance came to be present in a sample. Once contamination from an environmental or external source does not exist as a probability, no further inquiry into the specific quantity, cause or effect of the presence a prohibited substance is required, unless stipulated by the express terms of the rule under consideration.

23. Strict liability, in terms of the disqualification of a horse in these circumstances, reflects the clear distinction between the presence of a prohibited substance on the one hand, and its effect on performance on the other. The complex task of assessing the effect on performance in each individual case would render an anti-doping system almost impossible to enforce. The protection of the other competitors in the field requires this strict approach. Presumably that is the reason why the Schedule in the Rules refers to a substance capable of affecting the body systems “at any time”, rather than in any given set of individual circumstances. Questions of culpability and/or causation other than contamination during testing, transport or analysis procedures are dealt with separately, because Rule 96 also provides for the application of a defence which allows the trainer to escape sanction if the Committee is satisfied that the substance was administered unknowingly and reasonable precautions to avoid a breach of Rule had been taken by the trainer in the individual case.

24. In this respect, the Committee has considered the very fair evidence of Mr. Meade, who carried out an extensive review of procedures at his stables, and had the two feedstuffs in use tested. In addition, he also had the hay in use tested, together with the other horses in his stables. All of these tests were negative for caffeine. Furthermore, Turf Club officials visited his stables some days afterwards and found that all matters were in order. It may be observed that this evidence is a practical illustration of the proposition that environmental contamination is not a common phenomenon. In any event, the Committee is satisfied that no sanction should be applied to Mr. Meade, on the basis that it is satisfied that the prohibited substance in question was administered unknowingly, and that Mr. Meade had taken all reasonable precautions to avoid a breach of Rule 96(a).

25. In the light of the fact that the Committee is satisfied that there was a breach of Rule 96(a), it orders that Champoleon be disqualified from the race in question, that the stake be forfeited, and that the Judge’s placings be amended accordingly. The result now reads:
First:      Caledon Craic
Second:  Nautical Nitwit
Third:     Topper Thornton
Fourth:   Troll D’Oudairies (FR)

No sanction will be applied to Mr. Meade in the circumstances outlined above.

26. The Committee will receive written submissions (after exchange between the parties) in relation to costs in the light of this decision, should such an issue arise.

The case was presented by Louis Weston, Barrister instructed by Aidan Healy, DAC Beachcroft Solicitors, Dublin. Noel Meade was represented by Seamus Clarke SC instructed by Patrick Ward, Frank Ward & Co Solicitors, Dublin.