Madison Brengle v. WTA, et al. — Presumption of Guilt Undermines the Doping Control Program
By Matthew D. Kaiser, of Global Sports Advocates
The World Anti-Doping Agency (“WADA”) was formed in 1999 after the scandalous 1998 Tour de France where the prevalence of doping in sport was exposed to the world.[1] Over the next 4 years, WADA and many other constituents worked on the details of the revolutionary World Anti-Doping Code (“the Code”), which was first implemented in 2003. Currently in its third version, the Code is not a self-executing document and instead must be implemented by the various Signatories to the Code, namely Anti-Doping Organizations such as International Federations and National Anti-Doping Organizations. Consequently, each Anti-Doping Organization is responsible for testing the athletes under its purview.
Under the current Code, there are 10 potential anti-doping rule violations, including presence of a prohibited substance in the athlete’s sample and evading, refusing or failing to submit to sample collection. Unfortunately, while Code, similar to many countries’ justice systems, presumes an athletes’ innocence and the initial burden to prove an anti-doping rule violation is on the Anti-Doping Organizations, in actuality, as seen in the lawsuit filed by Ms. Madison Brengle, the anti-doping system is being enforced such that the opposite is true—athletes are considered cheaters and are always looking to beat the system.
Madison Brengle is an American tennis player currently ranked 99 for singles. Having played tennis since she was a young girl, Brengle came onto the scene in 2004, reaching a career high ranking of 35 for singles in 2015, and has earned nearly $2.2 million in prize money over the last 15 years. Unfortunately, since 2015, Brengle has not been able to compete at her highest level due to, what she alleges in her lawsuit, “outrageous conduct” in handling her medical condition by various sports organizations and testing administrators. Thus, on 9 April 2018, Brengle filed a lawsuit in the state of Florida seeking damages in excess of $10 million because of the emotional and physical damage caused by the Women’s Tennis Association (“WTA”), International Tennis Federation (“ITF”), and the ITF’s testing authority, a company by the name of International Doping Tests & Management (“ITDM”), among other specified individuals, when performing doping control tests on Brengle.
Growing up, Brengle was unaware that she suffered from Complex Regional Pain Syndrome (“CRPS”), which is a chronic pain condition caused by damage to or malfunction of the peripheral and central nervous systems.[2] While she knew her family had intense reactions to venipuncture—the process of obtaining intravenous access to blood through a person’s vein—she did not experience this issue until she was 17 when she had an intravenous sedation in order to extract her wisdom teeth.[3] However, she never fully understood the extent of her condition and why her body was reacting that way.
It was not until 2009 that she first realized how her medical issue could affect her profession. At the Wimbledon Championships Grand Slam tournament, Brengle was required to undergo both blood and urine testing after she had completed competition, as part of the ITF’s Anti-Doping Program. The ITF informed Brengle, as it did with every athlete before subjecting the athlete to blood tests, that the blood test “will have no physical effect on [the athlete’s] performance” and she could compete immediately afterwards. However, this was not the case with Brengle because at Wimbledon in 2009, the phlebotomist in charge of her venipuncture blood draw missed her vein twice and on the third time, her vein collapsed, causing Brengle to lose consciousness. After the procedure, she was unable to straighten or bend her arm and experienced both bruising and pain insider her elbow. She claims she could not play tennis without severe pain for five days afterwards.
Brengle had to endure three more blood doping tests in 2016 under the ITF Anti-Doping Program, one at the Australian Open, one at Wimbledon, and the other at the US Open. Having had such a problematic experience in 2009, Brengle wrote to the ITF Anti-Doping Administrators, detailing her medical issue and requested to have her blood drawn after she finished the Australian Open rather than before the competition as mandated by the ITF. The ITF decided it would not grant any accommodation because she lacked any “compelling justification”. As a result, Brengle had to submit to a doping control test or be charged with an anti-doping rule violation. Again, her blood doping test had complications and as a result, she lacked full strength in her arm at the time of the match and was unable to fully straighten her arm.
She experienced similar issues at both Wimbledon and the US Open, again leading to prolonged impairment to and pain in her body. Unfortunately, during the Wimbledon blood test, the Doping Control Officer on the scene accused Brengle of lying about her condition and told the doctor to “just stick a needle in her”, according to Brengle’s complaint. This caused further emotional damage to Brengle.
Realizing her career was in jeopardy if she could not be excused from submitting to blood doping tests, Brengle went to see a doctor on 17 November 2016, who diagnosed her with CRPS and explained in a report the long-term effects this condition could have on Brengle if she had to endure more venipunctures. Brengle submitted this report to the ITF and asked the ITF to provide appropriate accommodations to Brengle. The ITF requested that Brengle first see an independent medical examiner of the ITF’s choice to confirm her doctor’s diagnosis.
The independent medical assessment corroborated Brengle’s doctor’s report and confirmed Brengle suffered from CRPS. The independent doctor recommended that Brengle not be subject to venipuncture. Consequently, the ITF, WADA, and the US Anti-Doping Agency, agreed to suspend venipuncture blood testing on Brengle for 12 months starting 11 August 2017.
As a result of these events, Brengle has sued the various parties involved for various causes of action, such as battery, intentional infliction of emotional distress, negligence, and breach of contract. She is also seeking a permanent injunction to restrain the Anti-Doping Organizations from subjecting her to venipuncture blood testing.
While it is still too early to determine the likelihood of success of Brengle’s lawsuit, her case brings to light the unequal power Anti-Doping Organizations have over athletes. Athletes are at the mercy of these organizations in all circumstances, be it the anti-doping system or eligibility regulations, such as seen recently with the IAAF’s new rule limiting the amount of natural testosterone females can have in order to compete against other women.[4] Without strong unions and advocates to push back and ensure their rights under the various anti-doping codes or international law are upheld, athletes would be forced to compete under disadvantageous circumstances.
In terms of Brengle’s case, while she could have sought medical assistance earlier in order to determine why her body could not endure venipuncture testing, the ITF and WTA are also at fault for not providing a clear process for Brengle to apply for and attain an accommodation. Although the ITF has yet to respond, a quick cursory overview of the ITF Anti-Doping Program does not show that such accommodation procedure is even available for athletes in Brengle’s situation. As pointed out in Brengle’s complaint, the ITF has only recently included such accommodation or modification of testing procedure language in the letters it sends out to athletes who will be subjected to blood testing. If such a procedure was in place with directives of what the athlete needed to do in order to get the accommodation, the “outrageous conduct” likely would have never happened.
Understandably, Anti-Doping Organizations do not want athletes to game the system in order to avoid being detected when they dope. However, these organizations need to take a step back and reassess their one-size-fits-all model in order to better protect athletes. New blood testing mechanisms are being prototyped, such as dried blood spot testing (which is in the process of being rolled out to UFC athletes this year and is unique because it draws a small amount of blood from the top of the skin[5]), and there are various other mechanisms to test athletes other than blood doping as Brengle’s doctor suggested in his report like saliva or hair testing.
Athletes are aligned with Anti-Doping Organizations to prevent cheaters from participating in sport; however, in order to stop doping and still protect athletes’ interests and rights, Anti-Doping Organizations must cooperate with athletes so that a more robust and accommodating system can be created.
Matthew D. Kaiser
Matthew D. Kaiser is an associate with Global Sports Advocates.
[1] https://www.nytimes.com/1998/07/18/sports/top-team-expelled-by-tour-de-france-over-drug-charges.html
[2] https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Complex-Regional-Pain-Syndrome-Fact-Sheet
[3] https://www.nytimes.com/2018/04/10/sports/tennis/madison-brengle-lawsuit-blood-testing.html
[4] https://edition.cnn.com/2018/04/26/sport/caster-semenya-iaaf-new-eligibility-regulations-testosterone/index.html
[5] http://www.sportsintegrityinitiative.com/ufc-introduce-dried-blood-spot-testing/
