Shelby Houlihan, American middle-distance standout and, now, per the Swiss-based Court of Arbitration for Sport, violator of the anti-doping rules for having impermissible levels of the anabolic steroid nandrolone in her system, meet World Anti-Doping Code Section 10.14.
Specifically 10.14.3.
Houlihan announced Monday that the Athletics Integrity Unit had charged her with a nandrolone offense, and a unanimous CAS panel adjudged her liable. A CAS news release Tuesday confirmed the account. All the same, on Thursday, when the start lists for the U.S. track and field Trials were made public, there was Houlihan’s name — in both the women’s 1500 (heat 3) and the women’s 5000 (heat 1).
Intrigue! Drama! How could this be possible?
That’s not the question that matters. This is:
Will she run?
Shelby Houlihan winning the women’s 5k at the U.S. national championships in 2019 // Getty Images
Because if she does, the multiplicity of legal battles may take new and even more virulent turns.
Section 10.14.3 says, in plain language, that if an athlete under suspension violates that sanction the ban can be increased, potentially doubled. Houlihan is currently suspended for four years. Four times two would make eight. She is now 28. An eight-year tag would take her to 36.
Moreover, per 10.14.3, any credit the athlete would have already served while provisionally suspended is wiped away. Houlihan’s suspension formally dates back to January 14 of this year. If she runs, the new start date presumably would be June 18, 2021.
Further, any result she might achieve at the Trials would be disqualified, according to section 10.14.3.
So what would be the point?
What legal advice would you give Shelby Houlihan?
It’s abundantly clear why USA Track & Field has her name in the start lists. That organization is not involved in the litigation; under chief executive Max Siegel, USATF has for nearly 10 years had a position of seeking to advance athlete rights; and all USATF is trying to do is make sure Houlihan is being given the chance to exercise whatever rights she might have.
Stressing that he was speaking generally and not about any matter specifically, Siegel said Thursday in a phone call, “We always advocate for a fair process regardless of who it is. We advocate for a reasonable sanction regardless of the outcome of a particular case.”
Late Swiss time Thursday, the AIU released a statement that said USATF “must … respect and implement” CAS decisions. It added, “Ms. Houlihan’s status during the period of ineligibility means that participation in any Competition or activity authorized or organized by a World Athletics Member Federation, such as USATF (i.e., US Olympic Team Trials - Track & Field) is strictly prohibited.”
The USOPC should say the same. A USOPC bylaw says it respects anti-doping decisions.
Houlihan is likely not to be the only athlete whose name appears on USATF start lists amid ongoing legal controversies. The hurdler Brianna McNeal is also appealing her right to compete; she has been suspended for five years for purportedly tampering with the doping control process; that appeal to CAS will be heard before the start of the Tokyo Games, the AIU has said.
In Houlihan’s case, her options would appear to be three:
One, she somehow has secured a stay of her sanction. But how?
Two, via an appeal from CAS to the Swiss Federal Tribunal. The Swiss tribunal allows such appeals solely on grounds of procedure, not substance, That would seem to depend first, however, on a decision from CAS, which has not been published. At any rate, the odds of such appeals historically proving successful have been between slim and, more realistically, almost zero.
Three, she could seek an injunction from a U.S. federal court. Again, her odds would seem negligible. That’s why the sports tribunals exist, to remove these matters from court systems worldwide. The U.S. federal courts in particular have traditionally proven resistant to sports-related matters; federal judges, who are appointed for life, do not like emergency cases clogging their dockets, and they especially do not like them in the summer. That’s just fact.
Houlihan’s claim is that she ingested “pig offal” from a burrito purchased at an “authentic” Mexican burrito stand near her Beaverton, Oregon, home. That’s what led to an elevated nandrolone reading, she asserts. Nandrolone is a banned anabolic steroid.
Problem: she ordered a carne asada burrito, according to her lawyer. So any pork product would have to somehow gotten into the steak burrito.
CAS said she had “failed, on the balance of probability, to establish the source of the prohibited substance,” and thus was found to have “committed an intentional [doping violation].” The standard ban for a first-time offense is four years.
Her Bowerman Track Club coach, Jerry Schumacher, a veteran in the sport, on Monday issued a lengthy statement that said he had never heard of nandrolone. Houlihan also said she had never heard of it.
Those comments border on the absurd.
Here’s just one reason why. To win internationally, the Americans have to compete against who in particular? The Kenyans. To not know what the competition is doing would seem to border on negligence if not more, right?
A recent World Anti-Doping Agency report, “Doping in Kenya,” found that from 2004 to August 1, 2018, across all sports, 138 Kenyan athletes had been caught for doping violations. What was the No. 1 no-no substance a Kenyan was likely to get popped for? Nandrolone —35 percent of all positive tests. That’s 49 of the 138 positives.
From the WADA report on doping in Kenya
And, interestingly, at an in-competition test — as opposed to random, out-of-competition tests favored by authorities worldwide for the element of surprise.
To quote from the WADA report: “Nandrolone is an anabolic-androgenic steroid that is prohibited at all times. It is a drug that promotes power and muscle strength.”
To proclaim, as Houlihan’s lawyer, Paul Greene did, “It’s not a substance any runner would take,” would seem to be wildly off-base, judging from the Kenyan running stats documented by WADA.
Because drilling down into the details from WADA’s Kenya report:
Distance running was the most tested sport in Kenya. It accounted for nearly 91 percent — 8945 out of 9885 —of all tests conducted and 74 percent — 1602 out of 2167 — of all athletes tested.
Distance running produced more positives than all other Kenyan sports combined — indeed, 95 percent, 131 of 138, of all positives. Yet somehow Schumacher purports not to know about the competition’s use of nandrolone? And Houlihan is similarly so naive?
Given the “prevalence of nandrolone within distance running and the performance benefits of EPO,” the blood booster, the WADA project focused on those two substances.
The EPO numbers, though interesting, are not relevant here. The nandrolone figures:
In-competition testing accounted for 90 percent — 44 of 49 — Kenyan positives for nandrolone.
To switch gears:
Schumacher went on in his statement to make other assertions that bear particular scrutiny.
He said, “The AIU refused to charge [Houlihan] for months, despite no additional evidence being presented, opting to leave her in a provisionally suspended state until they were forced by Shelby’s legal team to charge her and agree to a hearing before the CAS so that Shelby could compete at the Olympic Trials.”
No additional evidence presented by whom? The AIU? Or Houlihan’s team? Because a reasonable line of inquiry would be how long it took Houlihan and her lawyer to gather whatever evidence they deemed material and then offer rationale or potential exculpation — and if that process took several tries.
Schumacher further wrote, and this is at the core of the political current underpinning this case, “I believe that if this had been USADA,” meaning the U.S. Anti-Doping Agency, “handling her case it would have been handled differently. At the very least, I’m confident she would have been treated fairly.”
Fairly as in leniently?
Or, fairly as in seeking — or better, feeling like she deserved — a home-court advantage?
In 2017, USADA let the women’s 800-meter runner Ajee Wilson off without a ban after a positive test for the banned substance zeranol, an anabolic agent. USADA said it believed it came from contaminated meat. Zeranol can be found in U.S. beef cattle.
In 2018, USADA cleared the triple Olympic medalist Will Claye of wrongdoing after he tested positive for a trace amount of clenbuterol, which is a muscle-builder. The agency said it believed he likely ate contaminated meat in Mexico.
In 2017, in a case brought by USADA, an arbitrator cleared the sprinter and Olympic gold medalist Gil Roberts, who had tested positive for a substance called probenecid. The arbitrator ruled Roberts ingested the substance by kissing his girlfriend.
It doesn’t take a genius to figure out why a coach advocating for an athlete in the dock might want USADA, rather than the AIU, to press a case purportedly involving a burrito defense. Particularly when, as the Associated Press’ Eddie Pells reported Thursday in what was alleged to be a straight news story, offering no evidence for this declaration, “The cruelest part of it for Houlihan is that USADA, which conducts most of her testing but was not involved in this case would almost certainly not have pursued this.”
Three paragraphs later, the story goes on to quote USADA chief executive Travis Tygart: “Yes, you’re responsible for what you take, but no reasonable person would ever think you can’t eat meat or use an otherwise allowable medication. A system that punishes those people is not a fair or sustainable system.”
This is rhetoric. It’s fluff for people who don’t understand the way things work. It’s not serious in any meaningful fashion, and Tygart knows this. He is merely seeking political leverage if not advantage, and he should be called on it — which no one else in the American press is willing to do.
No problem here.
As Tygart well knows, even if USADA had not taken this case or, more likely, had pursued it to a warning, WADA had the option — which it almost surely would have exercised — of appealing to CAS.
So all parties would be back at Square One. That is, before CAS.
With the Olympic Trials coming up.
And the clock ticking.
So ask again: how is it that Schumacher — who allegedly doesn’t know about nandrolone — is now purportedly knowledgable enough about legal strategies and procedures to want to go in the first instance to USADA? Does he understand trial and appeal tactics? Or was that statement written for him by a PR team or lawyers?
The better, on-point precedent for the Houlihan matter is this one:
In 2020, the long jumper and sprinter Jarrion Lawson was cleared by CAS in a case in which he had been notified he had tested positive for the banned anabolic steroid trenbolone. Frequently used in the United States to promote the growth of beef cattle, it also was part of the steroid mix used by Russian athletes in 2014 at the Sochi Games.
The AIU brought the Lawson case; indeed, the lawyer Greene represented Lawson; in the Lawson matter, the AIU lost; now, in Houlihan, the AIU has won.
This is what lawyers and sports officials do. They want clarity about rules. In the United States, different people are being treated differently when it comes to the sorts of cases for which Jarrion Lawson and Shelby Houlihan asserted defenses.
The AIU clearly — for emphasis, clearly — believes USADA is barking up the wrong tree when it comes to these contamination cases. In this Houlihan matter, it had the opportunity not only to set a precedent but send a signal, not just to Tygart and USADA but around the world, to everyone who believes the Americans are playing by one set of rules and everyone else by another.
The AIU is tired of this. So is WADA. So, for that matter, is the IOC.
This is obvious.
Maybe the sports, doping and political authorities in the United States, at every level, ought to snap to and ask how to work in concert with colleagues in other jurisdictions. The Trump years are over.
This is equally obvious.
When CAS releases its decision in the Houlihan matter, we will all have much more clarity.
In the meantime, there’s section 10.14.3.
And also this:
For all the women due to line up in the 1500, and especially heat 3, and the 5000, and particularly heat 1, maybe find a good lawyer to consider these tricky exigencies:
The Olympic Trials may well be the culmination of a dream. But no one is forcing anyone to compete. It’s entirely voluntary. See the Aussie swimmer who withdrew from last week’s swim Trials, citing misogynistic team officials.
What are the legal ramifications, if any, of competing in a race with an athlete who is — without question — under suspension pending appeal? Is that an active or passive element on the part of other racers? A deliberate choice, or not?
Can the AIU — would it be inclined to — sanction an athlete who “associates” with a suspended racer? Is that a risk worth — literally — running?
Those who are too young to remember might ask their elders what happened to the eight Germans who ran in the same race in 2001 with the former champion Dieter Baumann — who tested positive for, what do you know, nandrolone.
Baumann claimed his toothpaste had been spiked.
Is Jerry Schumacher a student of the sport? Has he heard of Dieter Baumann? Has Shelby Houlihan? Curious. Baumann was the Barcelona 1992 5k gold medalist and the Seoul 1988 5k silver medalist.
Back to more questions:
Let’s say a suspended athlete meets with success in either or both races. Is there now an action — a civil lawsuit in the state or federal American courts, with triple damages, perhaps — by the fourth-place finisher to claim that she was unfairly denied a career opportunity? And was intentionally inflicted grievous emotional distress?
Being on a start list is one thing. All things considered: is it the smart choice to run?
Be there in Eugene on Friday. Intrigue! Drama!
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Update:
On Thursday afternoon, after this column was posted, it was made clear that Houlihan would — absent another turn — be banned from the Trials.
“The U.S. Olympic & Paralympic Committee, together with USATF, can confirm that we will adhere to the WADA Code and any CAS decisions that govern athlete participation in sanctioned events,” USOPC chief executive Sarah Hirshland said in a statement.