Jack Burke is still innocent, but…

When Jack Burke swore he was innocent in 2013 after being accused by the UCI of failing a drug test, he wasn’t lying. Let’s get that clear. Burke’s only transgression was being late to the team bus and filling up his bottles in a small Quebec town with tainted drinking water. He didn’t cheat. The Sport Dispute Resolution Centre of Canada said so.

Even the international Court of Arbitration for Sport said so. So why, five years down the road, after the biggest win of his career, is Burke still getting Facebook messages from random people saying things like, “must be more special water.” “That’s the reality of high-level sport,” says former Cycling Canada president John Tolkamp. “You’re going to be under scrutiny. It’s natural once something like this has come to light that there’s a level of suspicion. We’ve been burned too much in professional sports hearing athletes say they didn’t do anything.”

An adverse analytical finding. AAF. It’s every cyclist’s nightmare. It typically leads to court hearings, sanctions, disqualified results and a tarnished reputation that can never be rehabilitated. As of last year, AAF is a term cycling fans know well because of Chris Froome and the high levels of salbutamol found in his urine taken during at test at the 2017 Vuelta a España. Froome won that race, and then the Giro d’Italia in May. The UCI finally cleared him of any wrongdoing just before the Tour de France in July. Burke’s AAF from five years ago, in contrast to Froome’s, has likely had a bigger effect on the rider’s career.

Perspective is everything in cases such as Burke’s. Even though he was cleared by the sport’s highest courts, his story is still being debated on Saturday club rides and on the starting lines of bike races. “I just don’t like him,” a cyclist who raced against Burke in his early years, and wishes to remain anonymous, said recently. “I don’t believe him. He got a good lawyer who was able to get him out of it.”

“Getting hate mail from people I don’t know – that hurts a lot,” says Burke. “But the only people who have ever criticized or questioned me are either looking for a reason why they’re not as good as me or they’re ignorant and don’t want to read the whole story.”

The 2013 Tour de l’Abitibi started off slowly for Burke. He was a member of Team Canada racing in the stage race for juniors that had its 50th edition this year. Riders such as Steve Bauer, Alex Stieda, Laurent Jalabert and Andy Hampsten have won the event in northern Quebec. The 18-year-old Burke finished midpack in the first and second stages, but grabbed the overall lead on Stage 3 when he won a morning time trial on July 18 in Rouyn-Noranda. From there, the Tour headed about 80 km east to the tiny town of Malartic. Home to 3,000 residents and the largest open-pit gold mine in Canada, the town hosted a circuit race for the fourth stage, later that same day.

While most of the riders filled up their water bottles in Rouyn-Noranda, Burke was running late and had to fill his in Malartic before the race started. When he couldn’t find a suitable option, he asked someone at a nearby sports complex to fill them for him. The worker did so, asking him not to tell any other riders so that she wouldn’t have to do the same for them. Burke dashed back to the starting line.

In Malartic, drinking water comes from wells deep in the ground. Also located deep underground is one of the largest gold deposits in North America, which is why, in 2010, nearly 200 buildings were uprooted and moved a couple of kilometres north to allow Osisko Mining Corp. to harvest that gold. Malartic is also home to a golf course and a water treatment sludge processing facility. While mining processes and golf courses can affect the local water table negatively, so can human waste. In Malartic, the town’s basic water treatment couldn’t manage pharmaceutical compounds, pharmaceuticals such as hydrochlorothiazide.

Of course, Burke didn’t know that when he filled those bottles. He didn’t know that when he peed into a cup for a drug test after the circuit race. He still didn’t know any of that when he received an email from the UCI on Aug. 16, 2013 notifying him of an adverse analytical finding in his A sample from that drug test. “I got tested because of the time trial that morning,” he says. “Had I been tested in Rouyn-Noranda right after the time trial, we never would have had all this.”

That email from the UCI, which was followed later by the confirmation that his B sample had also tested positive for hydrochlorothiazide (HCTZ), sent Burke’s life into chaos.

Under UCI rules, a first anti-doping violation comes with a two-year suspension. For Burke, that easily could have meant missing two critical years of his development in the sport – not to mention the damage to his reputation that a doping violation would bring with it.

In cycling, you’re guilty until proven innocent. The burden of proof falls squarely on the shoulders of the cyclist. Unless Burke could prove the HCTZ entered his body without him knowing it and that it wasn’t intended for performance enhancing purposes, his career was all but done.

“It was the absolute worst day of my life,” he says. “I called my dad, shaking. There were times going through this whole process that I thought my life was over. My whole life was in cycling, and it was all coming apart.”

When Rick Lee, head coach for the National Cycling Centre Hamilton (NCCH), the team Burke had ridden for in 2013 found out, he was flabbergasted. “We were totally shocked,” Lee says. “After a meeting with Jack and his father, we were sure there was a mistake. We knew he was such a hard worker, and it made no sense to us at all.”

Burke’s father, Dion, had no doubt in his mind that his son was telling the truth. He went to work immediately researching HCTZ, the town of Malartic and every supplement and nutritional item Jack had been using at the time of the test.

It was Dion who discovered the connection between HCTZ and contaminated drinking water. He started formulating an appeal to have the two-year suspension reduced to a reprimand: the bestcase scenario when fighting the UCI in 2013.

“When my dad first came up with the idea, it seemed like the craziest thing,” Burke says. “But when we started looking at it, we realized I had the perfect storm.”

The World Anti-Doping Agency oversees the drug testing for the UCI. The rules are then enforced by cycling governing bodies around the world. So even though Burke was on Team Canada at the Tour de l’Abitibi, Cycling Canada would be his opponent when the Sport Dispute Resolution Centre of Canada heard the case on Sept. 17, 2013.

For the hearing, the Burke family needed a lawyer, and needed one fast. Dion desperately called numerous sport lawyers, but only one called him back: James Bunting from the Toronto firm Davies, Ward, Phillips & Vineberg. He listened to the Burkes explain what happened and decided to take the case pro bono.

Bunting’s first-ever sport-related case was helping a friend get back onto the national alpine ski team after he was let go following an injury. Bunting was still in law school at the time. Although his career now deals mostly with class-action lawsuits and commercial litigation, Bunting tries to take on a few sport-related cases each year. Usually at least one of those is at no cost to the athlete.

“I understand and I’m empathetic to athletes who find themselves in a position like Jack did,” Bunting says. “The conversation with Dion resonated with me and my first conversation with Jack resonated with me. I thought taking the case was the right thing to do.”

Less than a week after that initial conversation between Dion and Bunting, hearing SDRCC 13-0206 between claimant Jack Burke and respondent Cycling Canada was before arbitrator Richard McLaren. Bunting and associate Chantelle Spagnola represented Burke; Brett Stewart represented Cycling Canada; and observing the hearing was Dominique Leroux, head of legal anti-doping services for the UCI. This case had similarities with Alberto Contador’s case, in which the Tour de France-winner’s defence argued that clenbuterol found in urine came from a tainted steak. His case, and twoyear ban, had only been settled the year previous. (About a month after Burke’s hearing, Australian rider Michael Rogers would have an adverse analytical finding for clenbuterol and receive a provisional sanction. The UCI would clear him to race in April, with no further sanctions.) With Burke’s case, however, there was the possibility for new precedents as the banned substance wasn’t in food or a supplement, but in the environment.

McLaren is a Western University law professor who has investigated some of the biggest international doping scandals in history. He played a role in the examination of U.S. track and field doping at the Sydney Olympics and drug use in Major League Baseball. He was an arbitrator on the Floyd Landis doping case. Most recently, he authored the two-part McLaren Report, which investigated systematic, state-sponsored doping in Russia.

Both sides of the Burke case agreed to let McLaren make a brief ruling within 24 hours of the hearing. The unusually tight timeline was to accommodate another complication in the situation: Burke had been selected to represent Canada at the 2013 UCI road world championships being held in Italy. He was to board a plane for Europe on Sept. 18, the day after the hearing.

During a gruelling six and a half hours, Burke, his father, the head of the WADA-accredited lab in Montreal, a watercontamination expert and others gave testimony. Burke’s team argued that he inadvertently ingested HCTZ through contaminated water, so he should therefore receive the lightest possible punishment under the UCI’s anti-doping rules (ADR) – a reprimand. Cycling Canada argued that “the more likely explanation is that one of the supplements [Burke] was taking was contaminated with HCTZ.”

The UCI agreed with the contaminated-supplement theory, calling the contaminated-water cause “unlikely,” and pointing out that WADA has been “warning athletes for years about the possibility of contaminated supplements.”

Proving whether or not contaminated water in Malartic was the cause of the positive test might seem as simple as testing the water, but in his ruling, McLaren pointed out that there wasn’t time to test it before the hearing. Even if there was time, the water would have needed to be drawn on the same day as Burke provided a urine sample to be truly accurate. “Analysis of water collected today would not reflect the same concentration of substances as the water the athlete ingested in July,” McLaren wrote.

Burke was at Pearson International Airport ready to fly to Italy for worlds on Sept. 18 when Bunting informed him of McLaren’s ruling. “You’re good to race,” Bunting said. It was a whirlwind few days that ended exactly how Burke had hoped it would.

In McLaren’s decision, he said that while Burke did violate the doping regulations by having trace amounts of HCTZ in his system, he didn’t do so intentionally. “I conclude that on the evidence it is more likely the contaminated source was drinking water obtained in Malartic and not any nutritional supplement,” McLaren said. “The athlete did not purposely ingest HCTZ and the level of HCTZ detected in his urine could not have achieved any masking effect.” Both sides agreed that the level of HCTZ was so low that many WADA labs without the most up-to-date testing equipment wouldn’t have been able to detect it.

As for a punishment, McLaren said a two-year ban would be “vastly disproportionate to the athlete’s degree of culpability,” adding that it would have a “devastating impact on his future in the sport.” McLaren said the appropriate sanction was a reprimand and no suspension. While a victory, it still meant Burke would have a first doping infraction on his record, and that his results in Quebec wouldn’t count. But he was free to race at worlds and move on with his career.

The UCI, however, wasn’t done with Jack Burke.

For the UCI, Burke’s case wasn’t minor. A reprimand as a result of unintentional ingestion could have precedent-setting repercussions. “When we got the results after the hearing, I knew there was the risk the UCI would want to appeal it because they didn’t want the precedential value the case set,” Bunting says.

In October 2013, the UCI appealed the SDRCC decision and sent the case to the international Court of Arbitration for Sport. After months of procedural back-and-forth between the UCI and Burke’s lawyers, a hearing date was set for April 17, 2014 in New York City with Ottawa-based judge Hugh Fraser serving as the sole arbitrator.

After the SDRCC ruling, Cycling Canada was able to work alongside Burke. The national governing body first argued that the appeal shouldn’t have been heard at all, and then took a supportive role in Burke’s case.

Former president John Tolkamp says it’s just part of the delicate balance for his organization. “The process around any of these doping cases is when a rider is found to have a substance in their systems, we have to treat them as guilty and enforce it. With Jack, we started to realize what was going on and it was a challenge to believe that this was someone who was really trying to proactively cheat,” he says.

“In a lot of cases, we’re enforcing it and we’re the ones processing them, but we’re also coaching the athletes on what the process is and how they can defend themselves,” Tolkamp adds with regards to the two roles the governing body can have in relation to Canadian riders.

At the CAS, the principal issue being debated was what punishment should be appropriate considering Burke’s confirmed anti-doping violation for having trace amounts of HCTZ in his system. The UCI wanted a two-year ban while Burke said he deserved “at most, a reprimand.” The UCI cast doubt on the contaminated-water theory and questioned Burke’s testimony that he was the only one to fill bottles near the start line in Malartic.

“The athlete likely was not the only rider who had to obtain water in Malartic, especially since the riders arrived in Malartic at about 16:30, but the race did not start until 18:15,” the UCI wrote in its submission. “Instead, the UCI submits that the likelihood that other [numerous] riders drank water from Malartic is quite high.”

But Fraser disagreed. He ruled that the Malartic water “was contaminated with HCTZ and therefore, the athlete bears no fault or negligence.” That ruling was significant because the UCI had been arguing that should the sole arbitrator find the athlete bore no fault, which Fraser did, then the punishment should fall under a different section of the UCI’s anti-doping rules than McLaren had used previously.

“While Arbitrator McLaren correctly found no fault on the part of the athlete, he mistakenly applied the sanction regime under Article 295 of the UCI ADR when he determined that a first doping offense occurred,” Fraser ruled. “For the record, it must be emphasized though that since the athlete bears no fault or negligence, the anti-doping rule violation shall not be considered as a violation for the purpose of determining the period of ineligibility in case of a future violation.”

In other words: Burke had unintentionally competed in the Tour de l’Abitibi with HCTZ in his system, so results from that race would have to be disqualified, but since Burke bears no fault for the infraction, there would be no official reprimand and no first offence on his record.

It was pretty close to a home run.

“I’m the only athlete in the history of any sport, who has been found to bear no fault and not even been given a reprimand,” Burke says. “I don’t know of any athlete who didn’t even get a first strike. That’s a really important piece of information for people to understand.”

“We did better the second time around than the first because we had time to get expert evidence on waste-water contamination,” Bunting says. “The first win provided a greater sense of euphoria because Jack was waiting at the airport waiting for me to call. The second time around, the stakes were still very, very significant, but it didn’t have the same sense of urgency.”

Burke credits the work of Bunting, whom he calls a superman. “He went above and beyond and did so much for me,” Burke says. “I was too young to understand most of it at the time, but the fact he believed in me and was willing to help is incredible. I owe a lot of the fact my career is alive to him.”

Bunting’s work and Burke’s case have since helped another athlete’s career. On June 7, 2016, U.S. gymnast Kristen Shaldybin tested positive for HCTZ. “We were able to prove that she drank a lot of water the night before she was tested,” says Paul Greene, a lawyer with Global Sports Advocates in Portland, Maine. “The water source was Lake Michigan, which showed very high levels of HCTZ.” Greene also says that Burke came up in Shaldybin’s defence. “The Burke case was the only case that I knew of at a Court of Sport Arbitration level that involved contaminated water and resulted in a no-fault ruling, so I believe it did set a precedent,” he says. Burke’s experience played a part in the no-fault ruling that the U.S. Anti-Doping Agency gave the gymnast a little more than a month after her positive test.

After racing for NCCH and Team Canada in 2013, 2014 and 2015, Burke finally got a big career opportunity when H&R Block Pro Cycling director Mark Ernsting signed him for 2016. It was a relief after a lot of cold shoulders from the cycling community in the two years that followed the adverse analytical finding. “Amateur teams wouldn’t take me because they didn’t know if I was a doper or not,” Burke says. “I try not to think about what I missed out on because it drives me crazy and there’s nothing I can do about it.”

What he could do was what he had always done: work extremely hard on the bike. “Jack is one of the toughest riders NCCH has worked with,” says Lee. “He has the strongest work ethic that you could imagine. He would train after midnight if required, and he has.”

After fighting for the best young rider title at the 2016 Joe Martin Stage Race, Tour of the Gila, Tour de Beauce and Tour of Alberta, Burke was signed for 2017 to the new under-23-focused Aevolo Cycling squad. Proving team director Mike Creed made a good choice in signing Burke, the rider delivered the team’s first-ever top-10 result when he finished eighth in the opening individual time trial of the 2017 Joe Martin Stage Race. He went on to win the best young rider title at both the Grand Prix Cycliste de Saguenay in June and at the Tour of Alberta in September – major accomplishments that proved Burke’s career was back on track.

For 2018, Burke took another step forward, signing with Jelly Belly Cycling Team, a continental outfit that raced its 19th season this year. Burke says he feels like he’s finally pushing through his past. “Having guys like Kevin Field from the national team and Mike Creed who are well-respected and understand my case, I feel like I’m slowly gaining more people who can vouch for me and tell my side of the story,” he says. “A lot of directors don’t bother to read the whole story. It’s a very difficult case to understand.”

Burke, who turned 23 in June and now lives in Squamish, B.C., knows getting to the WorldTour will be more difficult for him than other riders of equal talent, but he has come to accept what happened. “I don’t regret what I went through,” he says. “It sucks, but everyone has to deal with something insanely adverse.”

He believes the UCI needs to learn from his case. “With hydrochlorothiazide, there’s no threshold. That makes sense for EPO or testosterone, because you’re not going to have that in your drinking water,” he says. “But when you’re talking about a drug that’s readily available to senior citizens and isn’t being filtered out of drinking water, that’s a flaw in the system.”

Tolkamp says he believes the CAS made the right decision in clearing Burke. “For us, Jack was found not guilty so we just move on and treat him as someone who never tested positive,” he says, but adds that there are lessons to be learned for other riders. “When you’re competing at a high level, you have to be responsible for what goes into your system. But if mistakes do happen, and inadvertent products get into your system, this shows that there’s room to explain it and move beyond it.”

But is it time to update how the UCI handles adverse analytical finding cases, especially ones involving substances known to be in drinking water? Bunting thinks so. “I’ve seen too many cases where it’s inadvertent contact, like Jack’s, where we have to go to a full hearing,” he says. “We almost always win the cases, but it imposes a huge tax on the athlete personally. It’s a very stressful process and it always falls right before the Olympic Games or a very important competitive time for the athlete, so it has a really profound psychological effect on them, even when you’re successful.”

However, Bunting also realizes the tight rules are there for a reason. “I think the cards are definitely stacked against the athletes, but that is a necessary requirement in my view in order to protect clean sport,” he says. “I recognize we need to have these strict rules and there can be no exceptions, otherwise we might allow cheaters to get away with cheating.”

Although Bunting doesn’t speak with Burke often, in his office is a reminder of the role he played in the young rider’s life. Hanging prominently on his wall is a framed best young rider jersey from the Tour of Alberta, which Burke sent to Bunting as a thank you after winning it in 2017. “It was very cool to get that jersey and to see that Jack is still pursuing his passion and doing really well at it,” Bunting says. “I was honoured to receive it and that he thought of me. But it’s not fair for Jack to say he is where he is because of me. He’s there because of his own hard work. I was happy to help him out along his journey, but he gets full credit for all the success he’s had in cycling.”

NCCH coaching director Lloyd Fairbairn believes its time to move on. “It’s quite unfair. Jack was the victim of a situation not of his making and every time someone repeats that accusation they unjustly re-victimize him,” he says. “The best thing to do when wrongly accused is to keep working hard, move forward, and just accept that others may never believe the true story. If the comments become slanderous or harassing, then that is another question for the authorities to deal with.”

Unfortunately for Burke, he was reminded on a rainy day in June that complete strangers sometimes have no interest in moving on. He won the queen stage of the Tour de Beauce with a remarkable attack on the climb up to Mont-Mégantic. It was the biggest stage win of his career – and then he checked his Facebook messages.