“This is a harsh, harsh punishment”: A sports lawyer answers our burning questions about Penny Oleksiak’s suspension

A massive cannonball dropped into the pool of Canadian swimming this week with the news that Penny Oleksiak has been suspended from competition for two years. Our most decorated female Olympian of all time, Oleksiak has been a household name ever since she brought home four medals—including gold in the 100-metre freestyle—at the Rio Olympics in 2016. Her success laid the groundwork for revamping Canada’s swimming program, which has seen win after win in the past few years.

Then, this past July, Oleksiak withdrew from the World Championships in Singapore after explaining that she was involved in a whereabouts case with World Aquatics, the organization that oversees anti-doping. “I am and always have been a clean athlete and will make no further comment at this time,” she said in an Instagram statement.

On Tuesday, the agency announced Oleksiak’s two-year suspension due to three whereabouts violations between October 2024 and June 2025. The ban will end just six months before the Los Angeles Olympics. “It is a harsh, harsh punishment,” says Carlos Sayao, a litigator at Tyr, a Toronto firm specializing in sports law. Sayao is also a former competitive swimmer who suited up for Canada’s national team for seven years. He isn’t involved in Oleksiak’s case, but he has plenty of experience with anti-doping rules. Here, he answers our burning questions about the ban.

Before you were representing Canadian athletes in the courtroom, you were one. Can you talk about your own aquatic journey? I started swimming competitively at six or seven. I was in a summer program in Mississauga. I guess there was a scout who noticed my technique and asked my parents if they were interested in putting me in a more competitive stream. I rose through the ranks and was on the Canadian national team for about seven years. I competed in the Commonwealth Games in 2002, the World Championships in 2003. I swam varsity in the US for the University of Michigan, and I was a Big Ten Conference champion in the 400-metre individual medley, which was my specialty. I tried out for the Olympic team for the first time in 2000 and then again in 2004. Both times, I was the person behind the person who ended up going.

Related: Penny Oleksiak became an Olympic superstar at 16. Now for her next trick

Ouch. And then you licked your wounds at law school? I retired in 2007 and spent a few years working in environmental policy before deciding on law school. My swimming career was definitely something I emphasized during the recruitment practice. I started at Davies before moving to Tyr. I was often brought in on anti-doping cases because I had been subjected to the whole anti-doping regime for several years.

You’re talking about the same anti-doping regime that has resulted in Penny Oleksiak’s two-year suspension, right? Yes. The World Anti-Doping Agency is an international agency that is tasked with regulating doping in international sport. If you look back to the Ben Johnson case and the Dubin inquiry in the late 1980s, that was a major catalyst, along with the doping scandals at the Tour de France in the 1990s. WADA has a code that is focused on ensuring fairness in sport and protecting the health of athletes, and testing is a big part of that. You have in-competition testing, which is the tests that an athlete takes after a big competition. But then you also have out-of-competition testing, which is random and involves the whereabouts program.

That’s a program that most of Canada had not heard of 48 hours ago, and now it’s trending. Right. A whereabouts violation is essentially a record-keeping failure. This is based on a system where an athlete is required to give their physical location for one hour every single day, 365 days a year. They must submit this information to WADA, and the idea is that a testing agent can show up and test at any time.

Like, anywhere? What if the athlete is in the middle of the rainforest or on a cruise to Antarctica? As far as I’m aware, there are no exceptions. That doesn’t mean that an agent is going to show up in Antarctica, but the organizations that oversee testing exist all over the world.

So, basically, if you want to be a competitive athlete, you have to agree to constant surveillance? Isn’t that some kind of civil rights violation? The regime has been challenged for exactly that reason, all the way up to the European Court of Human Rights, where it was upheld. The court said, if you are agreeing to be an athlete, in exchange for the benefit of fair competition and integrity of sport, it is proportional and reasonable to have this one hour every day. It can be onerous. But it is the best system available to ensure fair sport. The problem with in-competition testing is that there are ways to get around it. Certain performance-enhancing drugs stay in your body for only weeks or months. You could theoretically bulk up on metabolic steroids and then stop taking them six months before a competition. You would probably test negative but still benefit from the effects of the drug.

How prevalent is doping in swimming? There is a lot of intentional doping going on. If you look at the registries that are public, you’ll see all sorts of steroids. But there is also unintentional doping: medications, contaminated substances, contaminated meat. The anti-doping labs are so sophisticated today that they’re able to detect the tiniest amounts. There was a famous case a few years ago where an athlete ate a contaminated burrito. We successfully defended a Canadian triathlete, Dominika Jamnicky, who had eaten contaminated food. The challenge there was to prove the source. That’s different from a whereabouts violation, though.

Did you ever get tested in your swimming days? Oh, sure. Probably between six and 12 times a year for the years I was on the national team. For the most part, I was spending my mornings training at the University of Toronto pool, so that’s where I would put my location every Monday to Friday. Most athletes keep pretty rigid training schedules. That said, there can be travelling for training or competition, all of which increases the likelihood of a mistake.

How so? The requirements are so specific. If you’re staying in a hotel, you have to give the room number. And then maybe the room assignments get changed or there is a flight delay or you’re dealing with jet lag. I defended a client who had been in the basement and didn’t hear the doorbell ring. Another time there was an athlete who was not in the right hotel room because the room assignments had been changed at the last minute.

Did you ever miss a test? No. If I had missed one, I would have been scared shitless.

To clarify, do we know if Oleksiak’s infraction was based on her failure to input the correct location information? Or did a tester actually show up at her location and she wasn’t there? We don’t know. And there is a third option, which is that a tester showed up and knocked or rang the doorbell and she didn’t hear it. The WADA officer is not required to call the person. They just have to go to the location and wait for the hour.

Okay, but if your entire career hangs in the balance, and you’re already at two strikes—aren’t you going to make sure the doorbell is working? I take the point, but keep in mind that these athletes don’t know it’s a testing day. Generally speaking, you submit your location info every quarter and then you forget about it unless you have to make an adjustment. As an athlete, there is so much else you are focused on. Certainly that would be the case with someone competing at Penny’s level.

For someone of Oleksiak’s status, who has so much riding on her success, aren’t you hiring a full-time employee whose only job is to make sure that the whereabouts requirements are properly managed? For sure. With the highest-level athletes, we often see them delegating their anti-doping responsibilities to administrative staff. The most famous case is Maria Sharapova, the Russian tennis player. The prohibited list had just changed, and the person who was responsible didn’t check the updated list. Sharapova was still hit with a 16-month ban because she was held responsible for the improper oversight. At the end of the day, the athlete is responsible. I should say that I have no idea if Penny delegated her whereabouts responsibilities or managed them herself.

I want to ask about the elephant in the room here. Wouldn’t one good reason to miss a test be because you know you aren’t going to pass it? That is the concern with these types of cases: that you would intentionally evade a test because you know that, if you were tested that day, you would be positive. As far as I am aware, the only thing we have heard from Penny is that she is and always has been a clean athlete.

So why not appeal? The whereabouts requirements are extremely stringent. Even if you could prove you were clean, the infraction you are being punished for is failing to meet the requirements of the system as it is laid out. The anti-doping rules are what’s known as a strict liability regime. If you’ve committed the violation, it’s very hard to have the violation erased. Where you do have some leniency is in the length of the suspension. Two years is the default, but you can have it reduced on the basis that your degree of diligence was high, if you were not significantly at fault or there is a reasonable explanation for what happened. I am surprised that, as far as we know, she appears to have accepted the suspension.

Is there a scenario in which Oleksiak would have voluntarily tested immediately after a whereabouts violation? Not to overturn the violation but to prove that she is not guilty of doping? Sometimes athletes do that. If they miss a test, they will go and get their own independent testing right after, just so they have something to point to. Or they will be able to point to other recent testing. Presumably, an athlete at Penny’s level is still submitting to regular testing, even in the case where she did miss up to three. You can imagine a scenario where an athlete gets their lawyers and their PR firm lined up to put out a detailed statement explaining the circumstances and that they have ten negatives over this period to try to achieve some damage control.

If you were representing Oleksiak, is that what you would advise? It would depend on the facts, but reputations are everything, particularly in today’s day and age with sports being such an economic endeavour. There is so much value in prizes and sponsorships. Making sure you preserve your reputation to the best extent possible would be something I would advise a client to consider very seriously.

I feel like Ryan Reynolds is probably trying to persuade her to do an ad for an alarm clock company as we speak. Ha!

Internet sleuths have theorized that perhaps Oleksiak’s attendance at this year’s Coachella is evidence that she may have been partying like any other 25-year-old. Could recreational drugs be part of this story? I don’t think so. There are some drugs that are prohibited at all times: steroids, growth hormones. But a lot of drugs are prohibited only in competition, including stimulants like MDMA or cocaine. Obviously, you have to be very careful in terms of which drugs fall into which category. But if you’re not in competition, the labs wouldn’t be testing for most party drugs.

Oleksiak’s career has been a roller coaster: she was a national golden girl at 16 and then became Canada’s most decorated female athlete. More recently, she failed to bring home a medal at the Paris Olympics. Meanwhile, there’s a new phenom, Summer McIntosh, breaking all these records and topping podiums. There must be so much pressure on Oleksiak. For someone in that position, could doping feel like the only way to get ahead? Most of the clients we deal with are examples of inadvertent doping based on the sophistication of the testing. In principle, though, I don’t disagree. As the prize money, sponsorship and influencer opportunities get more and more valuable, there is probably more incentive to intentionally dope than there has been in the past. Still, in terms of Penny Oleksiak and the success she has achieved and all the potential she has in the world outside of swimming: you’re probably going to hang up your bathing suit rather than put all of that at risk. At the end of the day, I don’t know what the truth of this situation is. I can only say that Penny says she is a clean athlete and that the error here was some kind of administrative failing. That strikes me as extremely believable. If that’s the case, this is a harsh, harsh punishment.

Going back to your own career, you came so close to making the Olympic team. Did you ever think that maybe doping would have given you the edge you needed? I was definitely put in touch with a lot of sketchy nutritionists in my day. Thankfully, I had the wherewithal not to go there, but there is a lot of pressure. A lot of professional athletes are exposed to these opportunities—hopefully not at an institutional level, but there are a lot of shady characters out there.

This interview has been edited for length and clarity.