Doping in Sport: The Shayna Jack case

What happens when an athlete is punished for doping, but the athlete has no idea how the drugs entered their system?

In 2019 the Australian swimming world was rocked by news that champion swimmer Shayna Jack had returned a positive test for a banned performance enhancing drug.

The ensuing legal battle, including the penalties awarded against Jack, has exposed the challenges athletes face under current global anti-doping rules.

Guests:

Paul Horvath, Principal at SportsLawyer. Lawyer for Shayna Jack.

Associate Professor Catherine Ordway, Sport Integrity Research Lead, University of Canberra.

Case: 

Court of Arbitration for Sport (CAS), World Anti-Doping Agency (WADA) v. Shayna Jack & Swimming Australia, CAS 2021/A/7579 & 7580, 16 September 2021.

Further Reading:

Tennis is facing an existential crisis over doping. How will it respond? by Catherine Ordway (The Conversation, 12 January 2025)

The US has exposed the World Anti-Doping Agency’s precarious funding model by Catherine Ordway (The Conversation, 20 January 2025)

Paul Horvath speaks on ABC Sport Podcast about the Jannik Sinner doping case (Best of ABC Sport, 17 February 2025)

Doping to Win: The Risks for Feeder Clubs and Their Athletes by Alexandria Anthony (SportsLawyer blog, 6 February 2025)

Australia Anti-Doping Processes: Balancing a Level Playing Field Against Unintentional Offences by Paul Horvath (SportsLawyer blog, 19 December 2024)

Ethics in Sports: Mitigating Risk for Sports Organisations by Paul Horvath (SportsLawyer blog, 17 October 2024)

* * * * * *

🎙️ Thinking of making a podcast?

You need Miniature Creative, the producer of Case In Point.

Podcasts aren’t just entertaining for listeners. For your brand they build authority, trust and help you create deeper connections with your audience. 

Get in touch 👉 www.miniaturecreative.com.au ✉️ hello@miniaturecreative.com.au

Transcript

James Pattison: Now, Melissa, as a big sports fan, you will know that one of the most contentious issues in sport is doping. 

Melissa Castan: I'm going to take your word for it because you know I have zero knowledge of sport, any sport. I'm a sport. 

James Pattison: Well, I'm a legal, so we're going to have a really good discussion. In fact, we're going to play off each other's strengths and weaknesses in this conversation.

Melissa Castan: As always. 

James Pattison: So, doping scandals dominate news headlines and I think it's safe to say that for. A lot of us, we take a pretty war on drugs, black and white view of things. You know, if you get caught with drugs in your system or in your possession, you're done. You should pay the price. And when it comes to sport, if you get caught doping, the thinking is that you should get a pretty hefty ban from competing.

Melissa Castan: Yeah, but things aren't so straightforward because beneath that surface reaction and that feeling that you should have that people shouldn't do that, there's some complex legal questions about proof and about responsibility and liability. So we want to have a level playing field, but how do you uphold that without unfairly burdening people who are innocent of doping or inadvertently get caught up in a scandal?

James Pattison: So inadvertently taking a drug, what happens when an athlete has taken a banned substance by mistake or just without their knowledge? Is our zero tolerance approach to drugs fair in this case? Well, today's case highlights what's at stake for athletes, for governing bodies, and really just the very integrity of professional sports in general.

James Pattison: I'm James Pattison. 

Melissa Castan: And I'm Melissa Castan, and this is Case in Point. 

[News Montage]

Archival - press conference: Australian swimmer Shayna Jack has been notified by ASADA of adverse test result. This was following a routine out of competition drug test conducted by ASADA testers on June 26, 2019. Shayna is entitled to a natural justice and a fair process. And that process is continuing.

News Reader: Shayna Jack has been delivered the worst possible news. She's copped the maximum four year ban from competitive swimming, and will have to prove why she should be allowed back in the pool any earlier. Australia's top coaches say they're just as baffled as Shayna as to how the banned drug made it into her body.

News Reporter: A four year ban blows Shayna's Tokyo 2020 dreams out of the water. Vowing a challenge, Shayna is aware that this is worst case, but in her eyes, any ban is worst case, as it is a sentence. She is fighting to clear her name.

Melissa Castan: Paul Holwarth is a sports lawyer with over 30 years experience in legal practice. He was heavily involved in today's case. 

Paul Horvath: Paul, welcome. Thanks very much, Melissa. 

Melissa Castan: Associate Professor Catherine Ordway is a sports lawyer and sports integrity research lead at the University of Canberra and senior fellow at the University of Melbourne Law School.

Melissa Castan: Catherine, welcome. Thank you so much. 

James Pattison: Now, first off, I want to start somewhere a little bit unexpected because we are going to get to the case. But before we get to the case, Paul. What is a sports lawyer? 

Paul Horvath: So, it's a lawyer that works in the area of sports. So, you can work with athletes, you can work with sports organisations, you can work with the leagues who run the competitions.

Paul Horvath: So, it's anyone who works in any of those spaces. But, in this day and age, there's an increasing number of lawyers who as Catherine will tell you from her courses, they could work for the AFL. There's a few private firms such as mine that specialize in sports cases. And so it's just normal skills, whether your administrative law, which is procedural fairness and challenging disciplinary decisions and so forth.

Paul Horvath: Commercial skills such as drafting contracts, whether that's athlete contracts or stadium contracts and so forth and as I said well, other types of disciplinary cases such as doping cases equal opportunity discrimination cases are not uncommon these days and everything in between.

Paul Horvath: So every area of law applied in a sporting context. Is your definition of sports law and I think it's fair to say there's an increasing number, obviously, with the growth of certainly professional sport in this country. 

James Pattison: Now, Catherine, you're a sports lawyer as well. It seems like you've experienced everything under the sun in terms of your professional career.

James Pattison: You've played competitive sport at some very high levels. Tell me about that. 

Catherine Ordway: But yeah, I've loved sports since I was a child. I grew up in a country town in South Australia, where sport is kind of the thing to be doing. And I continued that when I went to university in Adelaide and I had the chance to pick up some unusual sports.

Catherine Ordway: So apart from the traditional ones that I grew up with like tennis and netball and so on, basketball, I played handball, European handball, which is the sport that I ended up being in the national squad for and tried out for selection for the Olympic team for Sydney 2000. Didn't make the final cut, but the upside to that is like every sliding doors opportunity is that I became a sports lawyer and worked for the Australian Olympic Committee in preparation for the Sydney Olympics, which was a life changing adventure.

Melissa Castan: And look, we don't hear much about fencing, but can you tell me a bit about how you got into fencing? Ah, 

Catherine Ordway: yes. Well, in my final year of law school my friend and I had a bet that we should play a new sport and each one could choose the sport. And she chose handball actually, and I chose fencing because it was something completely different because I'm a very ball sport person.

Catherine Ordway: She was my tennis doubles partner. And so we thought we'd do something to push us. out of our comfort zone. So we competed for the uni team and then I went and fenced at varsity and got a bronze medal. Touche. It's a bit fabulous. 

Melissa Castan: I've got to tell you, it's a bit of a fabulous niche. So fun. 

James Pattison: Let's introduce the case now and we need to get to know really the main character in this case, Shayna Jack.

James Pattison: So some of our audience will be familiar with who she is. She's a high profile swimmer. But who was Shayna Jack Paul in 2019? 

Paul Horvath: So Shayna was a 19 year old young successful athlete. At that stage, she had won a gold medal at the 2018 Commonwealth Games in Brisbane. She'd broken the world record alongside the two Kate and Bronte Campbell and a fourth member of that team.

Paul Horvath: So she was accomplished in that sense at that stage. She had a number of promotional opportunities on the go. She worked hard. She worked smart. And she had a decent public profile in terms of an Instagram following. And she was probably, it's fair to say, a pretty outgoing person. 

James Pattison: So in 2019, Shayna Jack.

James Pattison: returns a positive test result for a banned substance. 

Paul Horvath: Yes. 

James Pattison: You end up becoming her lawyer. 

Paul Horvath: Yes. 

James Pattison: Take me to that moment. How did this come about? 

Paul Horvath: So I think it was a Friday night. I was at home and I got a call saying, there's an Australian athlete who's over at the world championships who needs some urgent advice.

Paul Horvath: Are you prepared to speak to them? I said, yes. And then I took a call shortly after that from, I think it was family members or otherwise. And and then had to make some pretty urgent calls to Sport Integrity Australia. 

Melissa Castan: Catherine, before we go further, can you just explain the initial step? How does the drug testing come in and how does that process unfold?

Catherine Ordway: Yes, well, elite level athletes are tested all year round in competition and out of competition. They'll be tested by their national testing body, which in Australia's context is Sport Integrity Australia. And overseas, they can also be tested by other national testing bodies or their international federation.

Catherine Ordway: So in the Shayna Jack case, that's FINA. So that's the International Federation for Swimming. So if you're in a context where you're in preparation for a world championships or you're actually at a world championships, then you can expect to be tested anytime, anywhere. And this is what's happened in the Shayna Jack case, where she's returned a positive test, which means that the test result has gone from the laboratory to her responsible drug testing agency, which is Sport Integrity Australia.

Catherine Ordway: And then the national body is informed, the athlete is informed, the International Federation and the World Anti Doping Agency, WADA. 

James Pattison: I mean, needless to say. There are a lot of people watching professional athletes 24 7. 

Catherine Ordway: Every day they are required to provide their whereabouts. For at least one hour a day, every day, three months in advance in order for drug testers to be able to come and test them at home, at their training center, or in a three months in advance?

Catherine Ordway: Yes, I don't know if you know very much about what you're going to be doing at a particular hour, three months in advance. But that's what athletes are having to do and constantly update their information, which is very onerous. 

James Pattison: Could that be something as simple as, okay, I go to the same cafe every single day.

James Pattison: I don't think 

Catherine Ordway: you want to be drug tested at your cafe. Well, exactly. That's 

Melissa Castan: the thing. I was like, what are you, what, because what is it a matter of saying, I'll be available at four o'clock at my home every day? Correct. Okay. 

James Pattison: Because what does the drug testing actually entail? 

Catherine Ordway: Well, you'll be required to urinate in front of a drug testing officer, which means you need to remove your clothing up to your chest and down to your knees and they need to see the urine leave your body.

Catherine Ordway: Wow. So that's a very intense process for most people. And I don't think the general public really appreciates what kinds of privacy people are giving up in order to compete at the elite level. 

James Pattison: Add that to the long list of jobs that I don't want to do. 

Melissa Castan: So, shall I ask Paul that? You do get to meet elite athletes.

Melissa Castan: It's always about James. All of these podcasts involve us talking about James and his feelings, but let me just move away from that and ask the actual question. So, back to you, Paul. What's your initial strategy in defending Shayna in this? In this sort of urgent situation and what kind of specific items of evidence or knowledge do you have to have that are going to shape the case that you're going to make?

Paul Horvath: So, the first response is that she has tested positive to a designer steroid by the name of Ligandrol or LGD4033, which you can take as a liquid in drops or as a tablet rather than traditionally steroids you have to inject in some form or another. The immediate aim is to get her back to the world championships.

Paul Horvath: So I get on the phone to the SIA contacts, lawyers in the team I know there. And I say, how can we expedite the second test that they must perform? So you have the A sample and the B sample. We want the B sample tested. In the hope that clears her because she says, I've done nothing wrong. This must be a mistake, et cetera.

Paul Horvath: And so I think we get the result back within five or six days, which is a very quick process, but the second sample test positive as well. 

Melissa Castan: Catherine, can I ask you about the legal concept? How does the concept of strict liability in doping impact on cases like Shaina's situation? 

Catherine Ordway: Yes, well, it's in the doping case.

Catherine Ordway: Recognizing that we are in a situation involving contractual law. So this is not a criminal law environment and under the contractual arrangements between athletes and their sporting organizations, athletes have consented, in inverted commas, they've agreed to comply with anti doping rules. The anti doping rules take a strict liability position so the onus is on the athlete to demonstrate how a prohibited substance has ended up in their urine.

Catherine Ordway: or in some cases their blood sample. So it's much like when we are driving on the roads and the police stop us and ask us to do a breathalyzer. If we have alcohol in our system above the legal limit, we need to demonstrate that there's an innocent reason for that or that there was something faulty with their equipment or there's some other problem.

Catherine Ordway: So the liability is a strict liability provision in that sense. in the same way as it is for athletes in the doping environment, where the onus becomes on the athlete to say, I didn't take a prohibited substance, and it has come into my system in a way that I can explain, and then there's an opportunity to reduce your sanction.

Catherine Ordway: So in that way, Legally, some people argue that it's actually an absolute liability because you're still having a breach of the anti doping rules, but you're reducing your sanction to say that you are no significant fault. Or no, no fault or no significant fault, which is a really difficult burden for the athlete to overcome.

Catherine Ordway: So it's sort of like you're guilty until proven innocent. 100 percent exactly what it's just like. 

James Pattison: Then where does that leave you as Shayna's legal representative with this positive, two positive test results? Where do you go from there? So, 

Paul Horvath: the start is that you assess the period of time leading up to the test and we pinpointed that she had been on a training camp in Queensland with the Australian team.

Paul Horvath: She'd been going into a gym up there and the first thing you do is give us your food diary for those two weeks. We look at the supplements, if any, that the athlete has had at their home. or other people in their home have been using, for example, sharing a blender and someone has put other substances into that blender and so forth.

Paul Horvath: We quarantined a blender that was in the house, we quarantined a breadboard where powders may have been spilled on and so on and so forth and we had all of the supplements tested. at considerable expense. As we went down the track there was one or two theories we looked at as to how's it going to get, how could that substance get into the system.

Paul Horvath: And we got her hair samples taken you need generally a six centimetre length of hair and we had to send that to the world experts in France at a cost of Something like 3, 500 per test. Sometimes you have a partner tested just in case the, there was contamination from your partner. I don't think we did that in this case.

Paul Horvath: And those are the sorts of starting points to seek an explanation as to how did the positive test come about? Wow. 

James Pattison: It's just so incredibly labor intensive. It's also 

Melissa Castan: Really specific because you, it's like a detective. There's some kind of like detective process here to try and. Identify the source of the contaminant, but you're dealing with something that might have happened weeks ago.

Melissa Castan: So, time's passed, the breadboard's been through the dishwasher, right? Maybe. And sometimes years ago. 

Catherine Ordway: Sometimes years ago, because they can freeze the sample, you can be asked to explain what's happened to you, your positive test, something that was eight years ago. And so how could you possibly be in a situation to do that if it's not something immediately obvious?

Catherine Ordway: If you don't still happen to have the packet of medicine that you used or a supplement container or something that you can test to see if there's an inadvertent contamination happening, then it's enormously difficult for the athlete to be able to go through this process. And remember, too, that the Laboratories that the World Anti Doping Agency uses are able to detect really minute amounts of substance in your sample.

Catherine Ordway: I remember back in the 2000 Olympic Games, the head of the Sydney Laboratory told me that they were able to detect one drop of prohibited substance in the equivalent of the Sydney Harbour. 

James Pattison: Oh my God, 

Catherine Ordway: that was in 2000. Now they can detect one drop in the Pacific ocean. You know, it's incredible how much they can detect down to.

Catherine Ordway: And so you've got these microscopic amounts that would make no difference to anybody's ability to compete at the highest level. The argument about. pursuing these matters, even though the levels are tiny, is that they, the anti doping agencies are not able to tell whether or not this is kind of the tapering off of the use of the substance over time, so that you're actually just at the end of your cycle of using prohibited substances for a cheating purpose.

Catherine Ordway: So because the laboratory can just say, This is like a message in the bottle. This is what we can see today. They can't tell what you might have done two weeks ago, two months ago, which is why something like a hair sample analysis is really useful, because that can tell you three, if your hair grows, yes, for one centimetre a month, the last three months, you can determine that you haven't taken anything during that period.

Catherine Ordway: And that's really useful.

James Pattison: You're listening to Case in Point. Today we're talking about doping in sport and the case involving Australian swimmer, Shayna Jack.

James Pattison: So Paul this case blows up publicly. Take us inside the team, that inner sanctum when this particular story hits the news. 

Paul Horvath: So I'm driving off to play golf with my mates in the country of Victoria on a Saturday afternoon. And I take a call from a colleague. I'm told that the story is imminently to be published in a Sydney newspaper.

Paul Horvath: And do we want to contribute to the story? So I'm then speaking with the family. I'm then speaking with the CEO of Swimming Australia and others. And we get to a point where we make a comment that goes into the story, knowing that it will be published. And and that's when the story comes out on the Saturday night, I think it was, so the early edition of the news.

Paul Horvath: And there was a lot of Obviously social media comment and I was quite keen to make sure that I spoke to Shaina a bit that day and particularly the next morning to make sure that she had someone to speak to and be in a position to understand and respond to obviously media interests that was reaching out to her.

James Pattison: That would be a very traumatic thing to go through, I imagine. And she has spoken about this in recent times. What do you know now? What has she said now about the impact that had on her? 

Paul Horvath: I think we've seen the newspaper articles where she says she went to a very dark place. You could imagine a young person, 19 years old she might be mature and hardworking and all of that sort of thing, but she's still 19 with all of those emotions and so forth.

Paul Horvath: So you get cut off from all of your friends. Your swimming community is your community. You cannot associate with them around the pool. She's not allowed to go to, events and championships and so forth and so your training regime and routine is also cut away from you. So you lose huge parts of your life that have been there for the last 10 years.

Paul Horvath: And then you're also being called a cheat and things like this in social media and indeed much worse things were said to her. In social media, particularly as a backlash to a story that was running at around the same time that started when Shane and Jack was first charged where Australia, an Australian athlete had criticized a Chinese athlete, Sun Yang for his positive tests.

Paul Horvath: And so there was this backlash towards Australia about being hypocrites. 

Melissa Castan: So the case in point, what was the actual legal point that was being debated here? And how do we get to a point where Shaina's legal conundrum is resolved? 

Paul Horvath: So, first of all, there was two levels of case. There was a first hearing in Australia and a second hearing or appeal hearing that took place in Switzerland.

Paul Horvath: Both were the positive result for Shaina, but there are differences. As Catherine was saying before, you need to show how the substance got in your system ordinarily, but there was a narrow corridor that you could get through under a case called Villanerva, where you couldn't show the substance got, how that got into your system, but there's enough pointers.

Paul Horvath: to show that you weren't cheating. For example, Shayna had participated in about 10 anti doping tests in the 17 months leading up to that case, all negative. She was able to show that her swimming times did not improve over a period of time leading up to then, which are the typical things that flow if you're taking those substances.

Paul Horvath: She called good character evidence. The first arbitrator in Australian King's Council said she was the most impressive witness he'd seen in 40 years. So. She gave a good account of herself and an explanation. She said she didn't need to cheat. And I think that overall, both cases found that the evidence pointed to the fact that it didn't make sense to infer that she had any intention or need to cheat.

Melissa Castan: Can I ask you that in reverse? If we were looking at someone that Was taking substances, but they'd successfully hidden it you would expect to see all of those things You've just mentioned to us but flipped right a quick increase in times or success or you know Sporting outcomes, right? Some little markers or worries in various tests along the way Some hesitancy in testimony, you know or some sort of not Exactly compelling testimony.

Melissa Castan: If you flipped all of those things around, that might be what you'd see if someone was using illicit substances, right? 

Paul Horvath: Absolutely. And obviously these things aren't exact sometimes there's grey cases in between but you look at a case like, say, Lance Armstrong, where he was able to evade the system for many years he was pumping out blood and then sort of taking it up to high altitude and pumping it back into his system.

Paul Horvath: I think in, there's an era in the early 2000s where the dopers were in front of the testers, and I think that's completely flipped on its head in the, probably 2010s onwards and certainly where we are now the WADA and the testing authorities are very well advanced, but they'd say through other things that Catherine's aware of they've got financial challenges that, that would help them.

Paul Horvath: But from my point of view, they've got extremely advanced and sophisticated testing to find positives. So 

James Pattison: Paul, did you find out how this substance got into Shayna's body? 

Paul Horvath: No, we never did. We had some rough theories as to contamination in the gym that she'd attended, which was a public gym some of the supplements, which all of which tested negative.

Paul Horvath: So pretty much that. didn't explain it. There was some testing around this time in Germany, which showed that if you brush past another athlete and they did an experiment you could test positive for ligandrol after that brushing. So it is that sensitive. And to Catherine's point, the sensitivity is in nanograms, which is 13 zeros or a trillionth of a gram.

Paul Horvath: Is it that 

James Pattison: the testing's getting too good? 

Paul Horvath: Yeah. Yes. 

Melissa Castan: That's the issue, definitely. Yeah. Or the standard of what's triggering a positive is too nuanced. It's too discreet. It's too, doesn't need to be like 10 times that rather than one. ADA has 

Catherine Ordway: done that where they've increased the concentration levels before a, well, they call an a f an adverse analytical finding is triggered.

Catherine Ordway: So they have had to do that for the types of substances you see in contaminated meat. But in this case, Shayna's case of Ligandrol, that was not on the list where the concentration levels were altered to allow for this kind of scenario. 

James Pattison: We all know how slow the entire legal process can be and with, you know, appeals and whatnot.

James Pattison: In this particular case, how did that appeals process play out and we've mentioned sort of the. How how it kind of ended, but that appeals process, what the original sanction that was handed down and what appeals happened and how it finally resolved. Can you just walk us through that? 

Paul Horvath: Well, if I could start by saying that.

Paul Horvath: I have read that the Australian anti doping system is the slowest in the world. Great. I suspect Number one. I suspect that SIA would say that's because we have to be very careful. We've got to gather our evidence. We've got to check every bit of information we've got and so forth. But if you speak to any athlete who's been subject to the system, they will complain every single time about what a sort of Democles it is hanging over their head for such a long period of time.

Paul Horvath: So that's the first point. The second point is the cost of the process, particularly where you've got an appeal as well. And it's on record I think Shaina Jack saying that it cost her somewhere in the region of 100, 000 and probably closer to 200, 000 for the case. She had to set up a GoFundMe page at one stage to finish the whole matter.

Paul Horvath: And so it's a very intensive, as Catherine said process as far as resources are concerned and most people just don't have those resources. And as you might argue in the Yannick Sinner case, do we want a system where only the elite athletes such as Yannick Sinner and these tennis players can get all the best experts and put them in front of the courts to defend themselves and athletes who are the 97 percent of elite athletes without the resources who are, sorry, student athletes.

Paul Horvath: don't have the resources to run these cases and just walk away from sports. So that's an imbalance in the system I highlight. So in terms of your question as to how long the case took, it was a good two year process from the start of the case until the end of the appeal decision. Possibly a bit more than that two years and four or five months, I think in the, in that sort of region.

Melissa Castan: And. With those two cases, what was unique about the way they looked at the evidence? How did they treat the question of the evidence that was brought forward to them? 

Paul Horvath: I think that one of the things in the first arbitrator in Australia saying that Shayna Jack's evidence was the most impressive he'd had in 40 years was that gave WADA and Sport Integrity Australia on appeal the opportunity to say too much weight was given to that particular proposition.

Paul Horvath: And I think, I don't necessarily disagree but the appeal court said, Well, you only come to a person's credibility a few steps down the track if you analyze the decision. What's interesting and important about the appeal decision, as much as she won, is that it was a 2 1 decision and it was actually pretty finely balanced.

Paul Horvath: So it wasn't a overwhelming win. It was a win with some of those arbitrators saying it was a close call thing. So, I think it's important to note that and that in, in one sense, the case could have gone another way, but fortunately for Shayna, it went in her favor because of the way that the European courts in CAS.

Paul Horvath: Decide these cases and the other example, of course, is the Essendon Supplements case where the first tribunal in Melbourne decided 3 of the players and then the case goes over to Switzerland and it's 3 0 against the players. 

James Pattison: You're triggering me because I'm an Essendon supporter. And that case will be discussed in depth, the entire Essendon Supplements scandal in our next episode of Case Supplements.

James Pattison: We'll discuss that one. Definitely not biting off more than we can chew. So the final outcome was that she was originally banned for four years, appealed, and then copped a two year ban. 

Paul Horvath: Yeah. So. If she didn't ask for a tribunal hearing which she had to pay for the privilege of, so there was no automatic right to attend a tribunal.

Paul Horvath: She had to pay substantial arbitration costs just to have a first hearing in order to get the four years reduced. And she got that down to two years in the first hearing. 

James Pattison: Yes. Two years. In the life of a 19 year old who is really hitting her strides on the world stage is an eternity. That's an entire career, basically, let alone the four.

James Pattison: Is this a fair outcome for someone who didn't put these drugs in her body intentionally? 

Paul Horvath: I don't think so. The question is, it asks so many other questions as to the general anti doping system. For example Catherine and I have discussed before, number one, you need threshold levels, minimum levels of a certain drug in your system before it's deemed that you've used.

Paul Horvath: That, that's always difficult to get up because of the countervailing argument, which is your microdosing just to sneak under the radar. The other one is to have an investigatory process set up by the anti doping agencies in Australia and elsewhere, whereby they pay for you, all your supplements being tested and come and investigate.

Paul Horvath: All of the avenues that you've got so that they can establish before you get charged that it wasn't one of these innocent explanations that led to the positive test. And I think that takes in my view a lot of the potential more straightforward defences out of the equation in a way that doesn't cost athletes who can't afford it anything.

Paul Horvath: And creates a degree of fairness. I think there's some other ideas there that you might have as well, Catherine. 

Catherine Ordway: The other thing that we've discussed at length is about having a kind of legal aid system on a means tested basis for having sports lawyers come in and assist athletes. Because as we talked about, some athletes are well and truly able to afford the best legal minds in the world whilst.

Catherine Ordway: The vast majority are absolutely not. So to have an opportunity for athletes to get the best defense they can through a legal aid type system would be enormously beneficial. 

James Pattison: So there's some of the solutions that you're proposing are in terms of dependence on funding, obviously, and setting up bodies that can assist.

James Pattison: How about the actual approach? That we've been discussing today around strict liability. What would you like to see, if anything, changed there? 

Paul Horvath: Well, I'm glad you asked that question. I just think it's a real flaw in the system by comparison. So, Catherine was talking about the drink driver. I think you gave the example.

Paul Horvath: Even in our criminal system, the drink driver is presumed innocent. That is not the case with doping cases. You are presumed guilty. In other words, you test positive, you've got four years, prove to us how you can reduce that. My problem with that is, as we're talking about in terms of having access to defence and proving your case, Where do you start?

Paul Horvath: Have a look at Shayna Jack. Where does she start? She gave quite frank evidence to the courts to say, I can't say for sure where it came from. I think it might have been in that gym. It might have been something innocent that happened, but I can't say for sure. And fortunately the other evidence that was there and the other signs that, that helped her to establish that There wasn't any other traces on any other occasions in her system.

Paul Horvath: Plus the expert called by the World Anti Doping Authority, Professor Mario Thevis from Germany was his report said that the amount of The substance in her system was pharmacologically irrelevant, if you remember that phrase. That wouldn't give you any benefit. But again, subject to argument.

Paul Horvath: But again, we say is consistent with an innocent contamination. 

Catherine Ordway: The difficulty is though, what system would you have developed instead of a strict liability one? Because every doping athlete is going to say, I didn't do it and they're going to deny. And that's their first port of call. So the reason why this system was set up at the beginning was with cheaters in mind and imagining that it's very difficult for a laboratory or anyone else to establish Why and how substances got into your system.

Catherine Ordway: So all we've got is a urine sample, which a laboratory has been able to say, there's a prohibited substance in here, now what? What does the anti doping agency do with that information? It's very difficult if you don't have a strict liability system for an anti doping agency to take that any further. 

Melissa Castan: So Catherine, what's the problem with the standardisation issue?

Melissa Castan: How's that going to be resolved? 

Catherine Ordway: Well, under the anti doping policies, which are designed to create what they call standardization and harmonization around the world for anti doping cases, as Paul has just mentioned in Shaina Jack's case, she still received a two year ban, which is an enormous. on an athlete's life.

Catherine Ordway: The flip side to some other inadvertent cases that we've seen recently involving the number one tennis players in the world, Ivor Svaytik and Yannick Sinner, is that Ivor received a one month ban because she was able to identify where the contamination happened in the medicine that she took. Yannick's synasimile was able to identify the product that was used by his physio in giving him massages and although his matter is under appeal, so we don't know what the final outcome is, to date he hasn't received any sanction.

Catherine Ordway: So a number of athletes have said, well how is this fair? Just because they have been able to identify. Where the contamination or where the inadvertent anti doping rule violation has occurred from, what the source is, as compared with cases like Shayna Jack and others around the world that are not able to identify it.

Catherine Ordway: How is it possible to, and how is it fair to have such big differences in sanction? And I think that's the issue that the World Anti Doping Agency is really grappling with at the moment. It is to try to give Trust back to the system so the athletes feel confident that when they are going about their ordinary business of training and playing around the world, that they're not going to get an inadvertent anti doping rule violation for something they had no control over.

James Pattison: So Shayna Jack says her two year ban. She comes back. Where is she now? 

Paul Horvath: Well, pleasingly, James, she's just been awarded the Order of Australia medal on Australia Day this year which is a, in my view, thoroughly deserved and welcome footnote if you like, or perhaps even higher than that. A great end to where she came from.

Paul Horvath: She got two gold medals at the Olympics in Paris. She was a medalist at the 2023 World Swimming Championships. So she's really come back from what was a difficult period and and picked up where she left off. 

James Pattison: And a lot of a lot of listeners may have seen her on our TV screens on I'm a Celebrity Get Me Out of Here as well and in which, during which she's spoken about quite publicly about the impact that this had.

James Pattison: on her personally for a long period of time. Paul Horvath and Catherine Alderweight, thank you so much for speaking to Case in Point today. 

Paul Horvath: Absolute pleasure. Thank you so much. Paul 

James Pattison: Horvath is a sports lawyer and the principal at the very aptly named law firm. sports lawyer and he represented Shayna Jack in today's case.

Melissa Castan: Associate Professor Catherine Aldway is a sports lawyer and sports integrity research lead at the University of Canberra and also a senior fellow at the University of Melbourne. 

James Pattison: And Melissa Caston is Professor of Law at Monash University and world record holder for the 100 meters backstroke. 

Melissa Castan: In porridge.