January 30, 2015 – Jack Burke (NCCH), a 19-year-old road cyclist from Ontario, has now twice been cleared of a doping charge according to court documents received by the cyclist’s father. The first acquittal was before the Sport Dispute Resolution Centre of Canada (SDRCC) in September 2013; the UCI appealed this judgment to the Court of Arbitration for Sport (CAS) which also acquitted the rider in a July 18, 2014 judgment.

Exactly one year earlier, on July 18, 2013, Burke (then riding for the Canadian team) had just won Stage 3 (a 9.65km time trial) and was wearing the leader’s jersey at stage 4 of the 2013 Tour de l’Abitibi. The next day’s 52km Stage 4 road race started and finished in the town of Malartic. After finishing the race, Burke gave a urine sample for doping controls. Some weeks later, the result came back positive for a trace amount of hydrochlorotiazide (HCTZ), a banned substance, and thus began a nightmare for Burke.

Although Burke is only a junior rider, albeit a very promising one, his court cases have involved many of the top names in doping-related sports disputes in terms of arbitrators (judges), lawyers, and expert witnesses. The two cases have also conjured up references to some of the top names in international road cycling over the past decade.

Until the nightmare began, Burke had never even heard of HCTZ. The chemical does not directly affect performance, but it is nonetheless on the World Anti-Doping Agency (WADA) banned list. The thiazide diuretic can reduce fluid retention, which is significant in other sports, such as boxing, where athletes might try slimming down into another weight category, but this is of no significance in cycling. HCTZ can also be used as a masking agent to hide other banned substances, but there is no indication that this was the case with Burke.

“I thought would see letter from the UCI saying ‘whoops we made mistake,'” Burke told Pedal by telephone. “I was so confused. Now I am very happy to have this verdict from the highest court in sport. The experts cleared me of everything”

“My son went to hell and back, but did nothing wrong except drinking water. This was one month after his 18th birthday,” said Dion Burke, Jack’s father. He originally suspected that someone had spiked his son’s water bottles, but the quantity of HCTZ was so minutely small that this was ruled out as a hypothesis.

Burke tested positive for less than one billionth of a gram. Few labs can even detect quantities this small, but Burke’s sample was sent to the WADA-approved INRS lab near Montreal that has this capability. After exhaustive research and some expert advice, indications pointed instead to the hypothesis of unintentional ingestion of contaminated water from the Abitibi town of Malartic.

While in Malartic, Burke filled five water bottles, something apparently no other competitors did there. The town’s water is simply chlorinated, unlike other nearby towns, which use more sophisticated systems capable of filtering out pharmaceutical products that can contaminate drinking water.

Burke had been selected to compete as part of the junior Canadian team at the 2013 UCI Road World Championships in Firenze, Italy, that September. To resolve whether Burke could compete, a SDRCC hearing was hastily scheduled before Richard McLaren, a Western University law professor. McLaren was previously part of the three-man panel that convicted Floyd Landis of doping after the cyclist finished first at the 2006 TdF. Burke’s hearing was held at law offices in Toronto on Sept. 17, 2013. The defence was represented by James Bunting and Chantelle Spagnolla, while Cycling Canada was represented by Brett Stewart. The UCI was represented by Dominique Leroux as an observer.

Burke and his family faced financial strain, so Cycling Canada CEO Greg Mathieu suggested the Burkes investigate a website listing pro bono lawyers. The only lawyer who returned their call was Bunting, who accompanied them to the hearing although he had not yet been retained by the family.

After the hearing concluded, Burke went home to pack for Italy, hoping he’d be able to go. He was standing in the airport check-in line when he received an email from Bunting: “We won,” Bunting said. “You’re good to race.”

Burke’s victory allowed him to escape a sanction (normally two years), but he nonetheless received a reprimand from Cycling Canada that counted technically as a first doping offence. Once he arrived in Italy, there was further suspense as the UCI also mulled over whether Burke could compete (the UCI had not yet received the full judgment from McLaren), and Cycling Canada only allowed Burke compete in the individual time trial, to avoid his case potentially nullifying results from the rest of the team. So Burke’s initial “victory” meant he flew to Italy to ride in a 20-minute ITT where he made the top 20 finishing 19th.

But the story was not over there. The year 2013 was, of course, dominated by Lance Armstrong’s doping confession on the Oprah Winfrey Show. Questions were raised about why the UCI didn’t catch the seven-time TdF winner and whether it was too lax on dopers. Many other big names in cycling made confessions – or were busted – around that time period, including Canadian Ryder Hesjedal (Garmin Cannondale), former Giro winner, who admitted to doping early in his career.

The same “unintentional ingestion” reasoning had been used unsuccessfully by Alberto Contador (Esp) Astana, who finished first at the 2010 TdF, to explain the presence of minute quantities of clenbuterol in his blood.

In reaction to the climate and pressure of the time, the UCI consequently appealed Burke’s innocent verdict and sent the case to the Court of Arbitration for Sport (CAS). Perhaps ironically, Antonio Rigozzi, the same Swiss lawyer who pleaded Contador’s defence, eventually prosecuted for the UCI against Burke.

The CAS hearing was held in New York City in April 2014 before Hugh Fraser, an Ontario court judge and former member of the Dubin Enquiry into the drug scandal following the 1988 Olympics. That scandal resulted in Canadian sprinter Ben Johnson being stripped of his gold medal in the 100m sprint.

The UCI’s star witness was Dr. Christiane Ayotte, director of the anti-doping lab of the INRS and whose expertise helped convict Landis a few years earlier. Other expert witnesses included Dr. Timothy Robert, chief science officer of Aegis Science Corporation and Deborah Ross, VP of Water and Wastewater with CIMA Canada.

Fraser concluded, as McLaren had before him, that Burke’s positive test resulted from drinking HCTZ-contaminated water in Malartic. Fraser also ruled that Burke “is not a liar or cheater,” bore “no fault,” and didn’t deserve the reprimand (previously handed down by the SDRCC) as written in the 37 page ruling.

“The athlete was a very credible witness and a very honest young man,” he noted, before ordering the UCI pay the bulk of the court costs and $5,000 towards Burke’s expenses. Cycling Canada was also ordered to pay a portion of court costs.

“Costs were awarded, but I haven’t yet seen a dime. And I will probably owe more than the awarded costs,” said Dion Burke, estimating the case has cost his family up to $10,000, even with pro bono lawyers.

“Walking into the NYC court, we risked everything if we lost,” said Dion Burke. “We would have had to pay travel costs for all the expert witnesses.” Because the system is so hard to fight, he muses that there might be other similar cases where innocent athletes simply give up and take the penalty.

Even after his second acquittal, Burke still faces consequences. “The doping allegations are the first thing anyone sees when they Google my name. I’m still on the same UCI list as Lance Armstrong. They wiped out my Abitibi results — my best ever. It really sucks to lose all that….”

[Note: At sports tribunals, there is no presumption of innocence and the burden of proof instead falls upon the accused. For Burke to have won twice against such odds speaks to the strength of his case. Pedal has contacted Cycling Canada regarding the re-instatement of his results but has not heard back.]

Pedal readers will see Burke’s name among the 2014 National Track Championships that recently took place at the new Mattamy Velodrome in Milton, ON where he was part of the NCCH team that finished third in the team pursuit. Check out coverage of the event here.

Read Pedal’s previous article on Jack Burke here.