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If a prohibited substance is found in an FEI horse’s system, it is typically a violation of the FEI Equine Anti-Doping and Controlled Medication Rules – regardless of how it got there and whether there was any intention to cheat. This is known as the “strict liability” principle and is common across all sports (or at least those whose rules are based on the World Anti-Doping Code). Think about it like getting a speeding ticket: even if you had no idea that you were speeding, you will automatically be penalised. The justification is that doping is so serious that watertight rules are required to discourage it.

This ultimately means that, even if you were in no way to blame for the presence of the substance in your horse, you will still be guilty of a rule violation simply because the substance was there. However, the punishment (or sanction) that you receive will depend on your level of “fault”.

“Fault” is defined by the equine anti-doping rules as “any breach of duty or any lack of care appropriate to a particular situation.”

When a prohibited substance is found in a horse’s sample there is a presumption that the athlete is at “fault”.  If the athlete is unable to disprove the assumption of fault, they face the maximum level of punishment. This includes a suspension from competing for up to two years and fines of up to CHF 15,000.

The absolute starting point, in order to get any reduction in the degree of fault (and, accordingly, any reduction in the sanctions) is that the athlete must first establish how the substance entered the horse’s system. If you are unable to find the source, there is no possibility of a successful defence. The athlete must prove the source on the “balance of probabilities”. This means they must satisfy the FEI Tribunal that the scenario presented is more likely than not to have occurred. This typically involves gathering evidence about who and what the horse came into contact with in the days leading up to the positive test. Good record keeping can help with this, but it is still a high hurdle for athletes to clear. For example, horses are rarely supervised 24/7, significant time may have passed since the sample that tested positive was taken and, if the sample was taken at a competition, the athlete may not have been in control of the bedding, feed, water sources and people coming in and out of the stables (and thus may struggle to gather information in those regards after the event). On top of this, it is often useful to submit scientific evidence showing that the explanation is scientifically plausible, which involves finding and hiring an expert.

If an athlete is found to have “no fault or negligence”, it means that the athlete “did not know or suspect, and could not have reasonably known or suspected even with the exercise of utmost caution”, that the horse would come into contact with a prohibited substance.

Findings of “no fault” are pretty rare – in 2022, “no fault” was the outcome in only 15% of equine anti-doping cases.  Cases where the athlete has been found to bear “no fault” include:

(a)            where horses eat plants or hay that naturally contain a prohibited substance. For example, in 2019, over 20 horses tested positive for synephrine due to eating hay that naturally contained synephrine (see, for example, the decision about eight cases here);

(b)            where grooms (or other support personnel), who are consuming human drugs containing prohibited substance(s), urinate in a horse’s stall and the horse then eats the contaminated hay; and

(c)             where feed is contaminated at the manufacturing site. For example, in Chabello, the athlete discovered that his horse feed manufacturer used a prohibited substance at their factory when producing pig feed – and contamination had occurred in the supply line.

If the athlete is able to establish “no fault”, and it is their first rule violation, they will receive no suspension and normally no fine is imposed.

Note that even when “no fault” is established, the results from the competition at which the horse tested positive will always be disqualified. The reasoning behind this is that if a prohibited substance was present in the horse at the time of the competition, the horse’s performance may have been enhanced and therefore it would be unfair for the results to stand.

“No significant fault or negligence” means that the athlete bore some fault, but with mitigating factors. Cases where the athlete has been found to bear “no significant fault” include:

(a)            where a Controlled Medication (a substance that is only banned ‘in-competition’) is administered before a competition and insufficient “withdrawal time” for the drug is afforded, so the horse still has some of the controlled medication in its system during the competition (e.g. Lobita); and

(b)            where a vet, groom or other member of support personnel gives the horse a prohibited substance without the athlete consenting to this or even being aware of it (e.g. Vitot Kervec).

Let’s compare two cases to see how the rules work in practice.

In Full Option du Borget, the horse tested positive for a banned substance, O-Desmethylvenlafaxine (a metabolite of Venlafaxine). The athlete faced the possibility of a two-year suspension and CHF 15,000 fine but ended up receiving no sanction at all because it was found that he bore “no fault or negligence”. 

As described above, there is a two-step test for “no fault”. The athlete must:

1. prove the source; and 
2. prove that they could not reasonably have known that the horse would come into contact with the prohibited substance.

In terms of the first step (source), the athlete had been prescribed Venlafaxine for a health condition and he urinated in the horse’s box several times, contaminating the hay with his urine. He was able to prove that this was more likely than not the source of the positive finding. In terms of the second step (fault), the FEI said that the “average person” would not foresee that the circumstances of urinating in a horse’s environment could lead to a positive finding.

"It was a rare case where a possibility of cross-contamination was difficult to foresee by an average person not dealing with anti-doping cases on a daily basis"

Let’s contrast this with Saura de Fondcombe, in which the horse tested positive for O-Desmethyltramadol (a metabolite of Tramadol). The athlete was adamant that she had not intentionally or knowingly given the horse this substance. She investigated thoroughly and presented two possible sources: (1) the person who held the horse at the prize giving had taken Tramadol and that person’s sweat had contaminated the horse; and (2) the water at the event was contaminated with Tramadol. The FEI agreed that these sources were scientifically plausible. However, despite her best efforts, the athlete was not able to gather any evidence from the event organisers or staff to prove that either the person holding the horse had taken Tramadol or that the water had contained Tramadol.

As set out above, in order to get any reduction in fault, the athlete must prove the source. Because the athlete in this case was unable to gather sufficient evidence to support her theories on source, she was unable to meet the threshold. As such, she could not reduce her fault, and so she received the maximum two-year suspension. 

However, the athlete then appealed her case to the Court of Arbitration for Sport. She ultimately discovered that a member of her support personnel, who was taking Tramadol, had urinated in the horse’s stall, causing the positive finding (i.e. the same circumstances as the Full Option du Borget case). The FEI therefore agreed at that point that she bore no fault or negligence such that her suspension was set aside.

The two cases side-by-side may raise eyebrows. On the one hand, an athlete who admitted causing his horse’s positive finding by urinating in the hay received no sanction at all, while an athlete who was completely baffled as to source and denied being in any way to blame for the positive finding received a maximum sanction (at least prior to their appeal).

However, from the FEI’s standpoint the reasoning is simple: if you cannot prove the source of the prohibited substance, it must be assumed that you were at fault – meaning you will receive the maximum applicable punishment. 

At first glance, it may seem unfair that an athlete who urinated in his horse’s stall received no sanction whatsoever, despite being the root cause of his horse’s positive finding. Based on the FEI’s definition of “no fault”, when deciding on fault, the FEI Tribunal must ask “would it be reasonable for an average athlete to foresee that urinating in his horse’s box, after taking a prohibited substance, could lead to his horse testing positive?”

If this was the first time a horse had tested positive because of someone urinating in their stall, the answer would likely be no. However, since January 2020, there have been at least six equine anti-doping rule violations for which the source was found to be a human urinating in the horse’s hay. Moreover, in August 2020, the FEI Tribunal aired its concern about the number of urination cases and strongly encouraged the FEI and athletes to educate and inform those working with FEI horses about the risks of urinating in the horse’s environment. Shortly after this, the FEI published a warning about urination, advising athletes to train their support personnel on the risks.

Given the number of cases involving urination and the warning issued by the FEI, it is perhaps surprising that the FEI is still taking the position that the reasonable athlete would not foresee that urination in a horse’s environment could cause a positive finding. However, the FEI justified its decision in the Full Option du Borget case, stating it: “did not expect athletes to be acquainted with every single anti-doping decision”. This is reasonable – the FEI Tribunal handled over 60 cases last year alone and athletes cannot be expected to sit down and read the lengthy decisions for each case.  

However, those in contact with FEI horses should note that the FEI is currently preparing an educational campaign on the risks of cross contamination through urination. Once that educational campaign has been launched, it may be that the FEI will argue that athletes can no longer escape a sanction when they or their support personnel have urinated in the horse’s stall – because, given the educational campaign, they will be expected to have foreseen this as a possible source of cross contamination. If the FEI does choose to run such an argument, it will then be a question of whether the FEI Tribunal accepts it, and that will likely depend on the facts of each particular case.

When a horse tests positive for a prohibited substance, the FEI takes it extremely seriously and the athlete will automatically be charged with a rule violation even if they were not squarely to blame for the positive finding. This “strict liability” system may seem unfair (particularly because not all prohibited substances are performance-enhancing) but there is a zero tolerance attitude to doping in sport and strict rules are required to discourage it.  

As for whether or not an athlete can get a reduced punishment, the question is to what extent they should have foreseen (if at all) that the horse would test positive. The current position is that an athlete cannot be expected to know that urinating in horse’s hay could cause a positive test. However, once the FEI has launched its campaign on the risks of urinating in horse’s hay, and subject to the approach taken by the FEI Tribunal, this may become harder to argue.    

17.1.2023 No reproduction of any of the content in this article will be accepted without a written permission, all rights reserved © Morgan Sports Law.