U.S. swimmer Kensey McMahon just got four years for an anti-doping rule violation, and it’s not right.
To be clear, under the rules, the four-year ban she got is – correct.
But there can be a difference between correct, and right, and this is one of those times, and perhaps the case of Kensey McMahon can, maybe sooner than later, effect a course correction in the anti-doping rules because this matter underscores the disconnect between the rules as they’re supposed to be and the way they work, when applied, as written, with no wiggle room, in real life.
“I thought I was doing everything right,” McMahon said.
“Somehow my sample tested positive. This has left me with so many questions. I don’t know how this happened to me.”
At graduation day (one of them) with her parents // photo courtesy of Kensey McMahon
It is easy, very easy, after 20-plus years of writing about doping matters to be skeptical or worse about these sorts of comments because this kind of quote is almost what one expects.
In this case, however, the experienced arbitrator who heard McMahon’s case, Gary L. Johansen, made an explicit point of asserting, in winding up a long and detailed explanation of the case, “The Arbitrator did not find that Respondent was a cheat.”
This is – unusual.
Indeed, it’s a signal: people, this case deserves your considered attention.
The arbitrator found that McMahon was unable to prove the source of the banned substance she tested positive for. This left no choice, none, but to do what the rules provide: four years.
Which begs the obvious question: why are we – why is Kensey McMahon – in this position?
“The innocent athletes of the world are just stuck,” her lawyer, Paul Greene said.
That Is the essence of a very – very – complicated case.
So, let’s work our way back.
Kensey McMahon, 24, is from Jacksonville, Florida.
Her mom, Laurel, 55, is an elementary school teacher. Dad David, 59, is a quality assurance executive for Anheuser Busch. Brother Ryan, 22, graduated from the University of North Florida and is a manager at an REI in Jacksonville.
Kensey McMahon has not just one but two master’s degrees from the University of Alabama, the first in PR and advertising, the second in sport hospitality management.
Kensey, Laurel, Ryan and David McMahon on recent trip to Zion National Park // photo courtesy Kensey McMahon
At Olympic Trials in 2021 // photo courtesy Kensey McMahon
In an alternate universe, one in which she had not gotten a you-tested-positive letter from the U.S. Anti-Doping Agency, McMahon – who specializes in longer swims – unquestionably would have been a serious candidate at the USA Swimming Trials, which begin Saturday in Indianapolis, to make the 2024 U.S. Olympic Team.
At the 2021 U.S. Trials, McMahon was a finalist in the women’s 1500 freestyle – eighth, behind Katie Ledecky and Erica Sullivan.
At the 2023 U.S. championships, McMahon finished third in the 1500 free, behind Ledecky and Katie Grimes.
At those 2023 championships, on July 1, 2023, McMahon tested positive for a substance called vadadustat.
Six days later, she got the dreaded you-tested-positive letter.
“People never think it’s going to be them,” Greene said. “Until it is.”
Kensey McMahon is this sort of young woman, per the ruling: “Respondent doesn’t believe in cheating, doing so would let down her support group, would label her as a fraud and would be a complete betrayal to her faith, which is a significant part of who she is.”
As one of her witnesses, she called her mother, who testified that “religious faith, honesty, truthfulness and work ethic” are central to their family and, as a mother, her “heart breaks” for her daughter because “she has worked so hard and has overcome so many obstacles to have her career end this way.”
Laurel McMahon added, “The whole situation is gut wrenching. [Kensey’s] character and moral compass are beyond reproach. [She] would never intentionally take vadadustat or any performance-enhancing substance. [She] would never take shortcuts or the easy way out.”
The case says, referring to Kensey McMahon’s testimony: “When Respondent was notified by USADA that her July 1 sample tested positive for vadadustat she was completely dumbfounded and felt like her life had been destroyed. She had never heard of vadadustat.”
Vadadustat, as the USADA science expert would testify, is a kidney drug now approved in 37 countries. It stimulates the production of EPO.
EPO is exceedingly well known in doping circles. It leads to more red blood cells. More red blood cells mean more oxygen to the muscles. That means more – everything, basically.
Here is the thing, the USADA expert said: 1/ vadadustat is approved for use in 37 countries but was 2/ not approved in the United States until March 2024.
Review: Kensey McMahon tested positive in July 2023.
The ruling notes vadadustat is available by prescription only. Thus, McMahon “would have had to find a doctor who would have illegally prescribed it to her in order to have access to the medication.”
Given the kind of young woman she is, she asked, does that make any kind of sense?
She testified she only used supplements purportedly certified by an independent third party to be safe.
The USADA expert testified there had never been a “dietary supplement, food product, cosmetic product or other pharmaceutical product containing vadadustat due to contamination or adulteration.”
Thus, the bind. And why, at its core, this case is so compelling.
The anti-doping rules are, in theory, elegantly simple.
Vadadustat was in Kensey McMahon’s system. Everyone agrees about this. The slam-dunk sanction for an offense of this sort is four years.
Unless.
The “unless” is where things get complicated.
And where her case can — and probably should — be a catalyst for a hard review by many stakeholders in the anti-doping field.
First, though: some hardliners say anyone ‘caught’ doping ought to be banned for life.
This case illustrates the rank absurdity of that position.
Kensey McMahon had no ‘intent’ (as the word is commonly understood, not as lawyers parse it, see below) to cheat and was ‘caught’ with a substance in her system – and by the way, at a low level – that wasn’t even available in the country she lives in, and in which she tested positive.
Beyond that, there would be zero deterrent effect in disproportionately punishing a 24-year-old who otherwise had done everything right.
Let’s be equitable: it makes no difference that Kensey McMahon is American. It just happens that she is.
Now, for an explanation of the “unless”:
The current version of the World Anti-Doping Code, as noted, starts with the notion of four years.
It says an athlete can, in this context, reduce that to two years if – if – she can prove what happened was not “intentional.”
In this case, that means: where did the vadadustat come from?
Kensey McMahon said she tested all her supplements and medications. Nothing came up. Maybe the vadadustat was from “some form of unknown environmental contamination”?
She admitted she didn’t have any “concrete evidence, albeit not without trying.” All the same, she argued, she did not “intentionally” ingest vadadustat.
USADA’s position: Kensey McMahon had to prove the source of the vadadustat – concrete evidence – to show “unintentional” use. She couldn’t do it, USADA argued.
That, to Kensey McMahon’s detriment, is the case.
“USADA understands,” the agency wrote in a legal brief the arbitrator would cite in his ruling, “that the strict liability standard can, at times, prove harsh, and USADA is sympathetic to those concerns.”
All the same, the entire anti-doping system rests on “strict liability” – if it’s in your system, it’s on you – because scores of athletes not named Kensey McMahon have offered every conceivable excuse, and then some, to try to wiggle out of being accountable, and it’s USADA’s job, as the agency wrote, to “faithfully enforce” the rules.
The point here is not to bang on USADA’s lawyering.
It’s to explore the space, the crack in the system if not wider, between correct and right.
Correct is not enough.
The anti-doping system depends on credibility, trust and – fairness.
This is how we – all of us – get at something approaching “right.”
To that end, wouldn’t it make more sense, especially in a matter like this, if the base was – as it used to be – two years and, in cases that deserve it, “aggravating circumstances” drive a sanction up to four? Instead of starting at four and, with the burden on the athlete, working one’s way down to two?
Moreover, this case illustrates a glaring inconsistency with the Code:
If Kensey McMahon had evidence of wrongdoing by someone else, that have would been a cool way for her to seek a reduced sanction.
She didn’t.
So, she’s stuck.
Greene offered this: “Let’s say she cheated. She took something intentionally. EPO. Whatever. This is a theoretical scenario. She goes to USADA and says, ‘I want to tell you the name of a doctor, a supplier. I want to do a cooperation agreement with you.’ She gets a year.”
Again, hypothetically.
“How,” he went on, “does it make any sense [for her to get four]? It doesn’t make any sense. That is the thing athletes who are clean struggle with.”
Further, and of course, the Kensey McMahon case arises even as many assess what happened in China with the matter of 23 swimmers.
The rhetoric and political posturing attending the Chinese matter have been considerable. In this context, it’s worth noting the observation of the Australian law professor Jack Anderson, who in a lengthy three-part review of the episode in the journal Law in Sport concludes WADA’s approach, framing the episode as one of “administrative law,” was “not unreasonable and some of the criticism has been either misplaced or, at best, precipitous.”
Paul Greene’s take is all about Kensey McMahon: “The China case makes it worse for Kensey. There’s no harmonization,” meaning consistency in the application of the rules. “The Chinese athletes didn’t prove source. They got nothing. Kensey – what did she do wrong?”
This, when all is said and done, is what tears at Kensey McMahon.
She should be at the Trials.
Instead, she’s looking at four years. And – for what?
“It breaks my heart,” she said. “I know I did not take vadadustat. Yet here I am.”