Frank Schleck Gets A One Year Ban

Wednesday, 30 January 2013

Frank Schleck has got a one year ban after his positive test in the 2012 Tour de France when the rules say he should have got a two year ban. He’s got lucky after the Luxembourg Anti-Doping Agency appears to have dropped the strict WADA Code, preferring instead to speculate on the source of contamination as a reason to reduce the ban, something the Spanish tried to do with Contador after his 2010 Tour de France positive until the UCI and WADA teamed up to fix things.

So this is might not be the end of the story. WADA won’t enjoy seeing its Code applied selectively and there’s now every chance of an appeal and a longer ban.

The one year ban is imposed from July last year meaning he could return in July this year, too late for the Tour de France. But how did he get a shorter ban? Here’s the applicable part of the WADA Code:

10.4 Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances

Where an Athlete or other Person can establish how a Specified Substance entered his or her body or came into his or her Possession and that such Specified Substance was not intended to enhance the Athlete’s sport performance or mask the Use of a performance-enhancing substance, the period of Ineligibility… [shall be] …. at a minimum, a reprimand and no period of Ineligibility from future Events, and at a maximum, two (2) years of ineligibility.

…To justify any elimination or reduction, the Athlete or other Person must produce corroborating evidence in addition to his or her word which establishes to the comfortable satisfaction of the hearing panel the absence of an intent to enhance sport performance or mask the Use of a performance-enhancing substance.

Let’s run through that again. Schleck has to establish how the substance entered his body and then he could a reduction in the ban.

So how did he get a reduction? Well the Luxembourg Anti-Doping Agency (ALAD) has imposed a proportional ban. Here’s their reasoned decision:

195… le Conseil de discipline estime qu’une suspension d’une durée de 12 mois doit être prononcée comme étant proportionnelle à la gravité intrinsèque de la violation de la règle antidopage.

This says a 12 month ban is proportional to the anti-doping violation. Can a ban be proportional? Yes as we’ve just seen above it can be reduced so long as the athlete can establish how the substance got there. Only Schleck has failed to do this so he’s not eligible for a shorter ban.

Curiously ALAD isn’t just ignoring the WADA Code, it appears to be inventing new rules:

165: Sur base de ces considérations, le Conseil de discipline entend retenir qu’au regard des développements précédents et des circonstances factuelles établies par les expertises scientifiques corroborantes versées tant par l’ALAD que par Frank SCHLECK et au regard du fait qu’aucune autre thèse n’a été invoquée, la présence de Xipamide s’explique par l’ingestion de compléments alimentaires contaminés…

If you don’t speak French then the last line says “the presence of Xipamide is explained by the ingestion of contaminated diet supplements.” But this is only a hypothesis as there’s no proof of contamination, for example no bottle of vitamin pills was tested and found with the substance. ALAD think it is likely… but they don’t know. This guesswork is outside of the rules, an anti-doping agency is not supposed to speculate. Once again the rule says “Where an Athlete or other Person can establish how a Specified Substance entered his or her body” only here ALAD are offering what is at best a reasonable hypothesis. ALAD are breaking the WADA Code.

Note deduction can be possible. We’ve seen table tennis players excused after eating contaminated meat in China and footballers in Mexico too, but here the idea of widespread contamination of the food chain was documented but there’s not much evidence of contamination for Schleck, for example nobody else using the same products has tested positive.

The Xipamide molecule not found in any diet supplements

A two year ban might seem unfair for such a small quantity but neither you nor I are here to rewrite the WADA Code. You might be Frank Schleck’s number one fan or his worst enemy but fortunately the rules try to exclude this bias. The same is true for ALAD. There’s little room for personal interpretation. In fact in their judgement (para 185) ALAD even try to anticipate the new WADA Code by citing a proposed rule change due in 2015 to support a reduction in the ban. But again you can’t rely on proposed rule changes when judging a case from July 2012.

ALAD’s Robert Schuller

Contador Case – Compare and Contrast
Alberto Contador tested positive in the 2010 Tour de France. The rules are slightly different but in summary the Spanish Federation inititially cleared Contador after accepting his hypothesis of a contaminated meat. But this was another liberal interpretation of the rules and so WADA and the UCI took an appeal to the Court of Arbitration for Sport (CAS). Here’s an excerpt of the CAS verdict:

In the Panel’s opinion on the basis of the evidence adduced, the presence of clenbuterol was more likely caused by the ingestion of a contaminated food supplement.

Note it too ventures a likely cause of contamination. But since this was not proved it could do nothing else but award a two year ban on the Spaniard.

What next?
This is where it gets interesting. If ALAD’s invented a reason to be kind to Frank Schleck then WADA will want to put a stop to it in case every national agency decides to offer clement terms to their home athletes, undermining the international code. But normally WADA would team up with the UCI to launch an appeal only the two are at war right now. There’s a chance Schleck will get lucky because WADA is too busy.

But Schleck can’t celebrate. WADA’s Code is its canon, it’s scripture and faith in the international agency is built on its rules so interpretations like the one made today will probably tempt WADA to call the CAS.

Conclusion
The day the B-sample came back last July I wrote “Schleck has a positive A and B test against him and no proof of poisoning. In the absence of the proof he’s doomed and will be eligible to return to the sport in July 2014″ only I also said “We could see the Luxembourg authorities be clement and offer a reduced ban to their “big fish” but they have little scope for that and if they tried this, the UCI and WADA would likely appeal.”

It feels awkwardly to quote myself but the words ring true. Six months of delay later and we’re back to where we started: Frank Schleck still can’t explain where the Xipamide came from so the rules say he is out for two years. Remember this is not a verdict on doping, simply on the presence of a banned substance and yes strict liability really is very strict. Call it harsh but I don’t remember Frank Schleck calling for the principle of strict liability to be reviewed when Alberto Contador got stripped of the 2010 Tour de France.

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{ 80 comments }

Adam January 30, 2013 at 8:52 pm

I’ve only skimmed the decision, but I think you might be missing an important step in ALAD’s reasoning: their focus on the burden of proof necessary to establish how the substance entered the body: balance of probabilities).
They categorise the possible answers (doping, inadvertent ingestion e.g. without checking ingredients, contamination) and then build an argument that on the balance of probabilities, it was the latter. So, as you say, there’s no substantial proof for Schleck to point to. But there’s no proof of doping either. So, on the balance of probabilities, the panel are happy to to conclude that he’s established that contamination is how it got in his body. Or something like that!

The Inner Ring January 30, 2013 at 9:07 pm

Yes but it’s still up to the athlete to establish where it came from under the rules. They’re harsh but that’s the way it goes. Only once the athlete has established the contamination can the ineligibility can be reduced.

The Contador case even saw people speculating on the weight of the cow involved as they tried to explore the contaminated meat idea but no matter, it could not be established, so it was dropped. The CAS also thought contaminated supplements where likely too but again this could not be established.

Adam January 30, 2013 at 9:29 pm

Sure – but what I’m saying is that ALAD conclude that he *had* established that it came via contamination because they take “established” to mean “established on the balance of probabilities” and then accept that he’s cleared that hurdle. If this bit goes to CAS there would have to be a fight about the burden of proof that applies to the first part of WADA 10.4 and ALAD don’t look particularly vulnerable on that question. A more demanding burden of proof strikes me as unlikely (how demanding were the CAS in the Contador case?).

The sneaky bit is the very broad grained analysis of the possibilities, where they are broken down to only 3. This move (which, shall we say, simplifies the world somewhat) looks a little sneaky to me. But a dispute in CAS about how to characterise the possibilities will be very messy indeed. (On this issue the CAS were more demanding than this in the Contador case – hence the discussion about cows etc..) It is this move which opens up Rooie’s worry below – if the question becomes “which of these three is most likely to have happened?” – then what counts as persuasive becomes very fluid.

The Inner Ring January 30, 2013 at 9:36 pm

All good points. Above I tried to explain an appeal to CAS is likely… but not certain. Even if your argument is valid it could be that WADA will want to test it.

Buck January 30, 2013 at 10:22 pm

I’d be surprised if WADA don’t challenge it, even without the support of the UCI. With CAS already setting a precedent with regards to WADA’s ‘strict liability’ rule in the Contador case, the ALAD ruling based on ‘not-so-strict liability’ is not going to sit well with them.

Nick Evans January 31, 2013 at 2:22 pm

I think this is about right; the athlete only needs to prove how the substance entere d their body “to the comfortable satisfaction” of the anti-doping agency. It’s now for the CAS to decide whether “comfortable satisfaction” in this context means beyond reasonable doubt, on the balance of probabilities, or something else.

The Inner Ring January 31, 2013 at 6:50 pm

I’d disagree. The rule says “Where an Athlete or other Person can establish how a Specified Substance entered his or her body”, in other words they have to establish, eg prove and not suggest. The “comfortable satisfaction” only applies when they come to demonstrate they got no performance gain.

Nick Evans February 1, 2013 at 2:10 pm

Rather than just disagreeing with you, I looked up the Code. Article 3.1 defines the standard of proof required:

“3.1 Burdens and Standards of Proof
The Anti-Doping Organization shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the Anti-Doping Organization has established an antidoping rule violation to the comfortable satisfaction of
the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. [b]Where the Code places the burden of proof upon the Athlete[/b] or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, [b]the standard of proof shall be by a balance of probability[/b], except as provided in Articles 10.4 and 10.6 where the Athlete must satisfy a higher burden of proof.”

So “comfortable satisfaction” is lower than “beyond reasonable doubt”. Note also that, as you say, only the absence of performance enhancing intent must be shown to comfortable satisfaction. This means, absent any decision of CAS otherwise, that the athlete must show how the substance entered his body [b]by a balance of probability[/b].

In other words, “more likely than not” is good enough for this part of the test.

The Inner Ring February 1, 2013 at 2:25 pm

Nick, note the reference to 10.4 “except as provided in Articles 10.4 and 10.6 where the Athlete must satisfy a higher burden of proof.”

It’s this higher burden that’s in play here because 10.4 applies given Xipamide is a Specified Substance. Comfortable satisfaction applies to the no performance again but a higher level to establish where it came from.

But there’s no black and white here and it’ll be interesting to see what WADA does and whether it wants to test this.

Nick Evans February 1, 2013 at 3:26 pm

No. Comfortable satisfaction *is* the higher standard provided for in 10.4.

The Inner Ring February 1, 2013 at 5:24 pm

Some crossed wires Nick. I was saying that the higher standard of proof applies to the performance enhancing effect, that “comfortable satisfaction” is used here.

For establishing where the Xipamide cam from in the first place we’ve not seen much evidence to establish where the contamination could come from. A contaminated supplement? Yes but it’s a hypothesis with little to support it, no other test has ever found traces of Xipamide since testing began in 2003.

Rooie January 30, 2013 at 9:08 pm

I’am not very fluent in french, but I don’t follow Adam on this. If I read the verdict and compare it to what INRNG mentioned in his earlier post on the Schleck case, it is up to his defense team and not ALAD’s hearing panel to come up with corroborating evidence in addition to his word. All we have seen and has been judged upon is his word and his suggestions. That is not evidence but speculation, let alone evidence that could establish comfortable satisfaction with the hearing panel.

Larry T. January 30, 2013 at 9:37 pm

Just another example of why the sanctioning MUST be taken away from national federations who might (always?) have an interest more about protecting their own rather than enforcing the rules as written. Of course this is small beer compared to the corruption in the entire pro cycling world, but if/when they get around to trying to fix the mess, this is one issue that must be dealt with. When you consider this is the same fellow who escaped with no sanctions after admitting wiring 7000 euros to the infamous transfuser Fuentes via some BS excuse about “training plans”, it’s really obvious the current system is broken beyond repair.

Rooie January 30, 2013 at 9:50 pm

Hear, hear. Especially now that Fuentes testified in court that he didn’t write “training plans” for his clients. If he lied about Fuentes’ training plans, then that would be a huge blow to his credibility…

Doubter January 31, 2013 at 5:55 pm

IF he lied about training plans?
Does anybody sincerely believe that FS was working with a blood doping doctor to develop training plans, when every other rider of his caliber in those years has been found to have been doping?

Buck January 30, 2013 at 10:10 pm

Yes, the merry-go-round of litigation in these trials is a bit ridiculous. But I do find the stark contrast between the softly-softly apparoach of ALAD and RFEC and the years of persistence by USADA rather hilarious.

The Inner Ring January 30, 2013 at 10:43 pm

As well as the potential for appeals, the timing is excessive. A+B positive and no information on the contamination should not take six months to review.

Ken January 30, 2013 at 9:50 pm

In reading Tyler Hamilton’s book, he pointed out that no cyclist that has failed a drug test admits it at that point. Priority number 1 has always been to point towards a faulty test or an outside contaminant. This is no different. Maybe Frank was taking over-the-counter diet supplements but you would think that he would be able to provide a list and have those supplements analyzed. It is not likely that the supplements in question change much from batch to batch. If they were using Xipamide in their mix, there would be a purchase trail and it seems that it would be pretty easy to deduce.

Also, the argument that the amounts in the system were too small as to be meaningful, I have to call bullshit on that for both Frank and Alberto. The presence of performance enhancing drugs in the body is pretty binary. You either have them in your system or you don’t. On a final note, if I am not mistaken, while Xipamide does not have really any significant performance enhancing effects, it is a diuretic used to flush/mask more serious stuff from your body.

The Inner Ring January 30, 2013 at 10:49 pm

This might appear rude and I don’t mean it this way… but you are speculating. This is what ALAD has done too. Whilst we might all do this too, with views ranging from he was framed by someone to accidental contamination or a range of other stories, the WADA Code remains more than skeptical: either you prove where it came from or you get a 2 year ban although there is room for some grey areas. For example tennis player Richard Gasquet claimed his cocaine positive occured after he kissed someone who’d been using cocaine. This might make us laugh but it was at least an explanation put forward and bought. ALAD by contrast is saying contaminated food supplements are likely but there’s not much supporting evidence.

Given the lack of a ban it seems an appeal is likely although as Adam points out, we could see a debate over probability and likelihood occur.

ave January 30, 2013 at 10:48 pm

If he gets half the ban of Contador then there’s no justice. Something that should not be allowed to happen.

Theo Schmid January 30, 2013 at 10:56 pm

Just two minor typos Shleck instead of Schleck in section “what next?”, paragraph 2 and section “conclusion”, first line. [please remove my comment after correcting, thanks!]

The Inner Ring January 30, 2013 at 11:04 pm

Fixed and the comment stays, a way to say all comments and corrections are welcome. I can’t do this blog full-time and so reader input is valued. Obviously debate is preferred above spelling but if we want to discuss the precise wording of rules then it’s all useful.

Theo Schmid January 30, 2013 at 11:09 pm

:-) understood! Had I known that my picky typo comment remains, I wouldn’t have written it… But as I have no value added input on the subject it’s better than nothin’ ;-)

Scott January 30, 2013 at 11:22 pm

Curious phrasing – ‘award a 2 year ban’.
Congratulations! Here’s your award!

david January 31, 2013 at 1:26 pm

Can I have one two

Guy January 30, 2013 at 11:33 pm

Surely this is ripe for appeal to CAS? Wasn’t there a report recently about Slipstream always testing all its supplements to avoid contamination? Surely this is a no-brainer for riders under the WADA code. And if contamination is so rife, why aren’t most positives popping up? It’s surely too coincidental for Schleck and he should be relieved – at least at this point – that his sanction was so light.

The Inner Ring January 30, 2013 at 11:38 pm

I know some take one supplement from the pack for personal use and then put another in a container for safekeeping in case it needs to be tested one day. It’s not easy living like this but some do go this far to help them in case this strikes.

Anon January 30, 2013 at 11:48 pm

Ah – the life of a pro cyclist. Imagine having to be paranoid of everything you eat because you may lose your job…

Here’s an interesting thought experiment. How many regular people would fail these types drug tests or generate false positives? I’m not undermining the lab work done, but how bulletproof are the testing protocols?

Jan January 31, 2013 at 12:05 am

That’s a really interesting question Anon 11:48 posted above. I wonder if the stuff I eat (beef, chicken, I guess would be my main concern) would test positive for growth hormone or something? (Not that anyone’s going to bother testing me struggling up a hill as the club pack swoops by me on their slow day.)

toe strap January 31, 2013 at 11:20 am

There’s a tragic case currently in the UK, with the inquestinto the death of a charity runner who collapsed and died towards end of last years London Marathon. Transpires that the enegy supplement she took towards the end of her race had an anphetamine type substance in it (not contamination, but part of the “mix”) which was shown to be contributing to cause of death. It would, of course, had led to a positive test.
Brings home the point that many amateur “joe public” sports people would fail tests. We only hear about this one because of the tragic circumstances

Bundle January 31, 2013 at 12:08 am

It goes to show that you really need a direct international jurisdiction, and a quick, effective one (albeit fallible if that’s the case). But it also shows that the “deterring” philosophy behind strict liability, no regard of amounts and thresholds, and tough inflexible sanctioning, does not enjoy enough credibility even among those in charge of applying it. The Code needs a revision.

Buck January 31, 2013 at 1:19 am

I think Wada and the UCI want to take a hard line on doping for the reputation of the sport, rather than ‘fairness’ so to speak. Unfortunately the reputation of cycling is so dirty that they want to make examples of people to be seen to be doing something to reverse that and at least give the illusion that cheats don’t prosper. Take the Contador case, given CAS’s verdict that the substances found were in all probability down to a contaminated food or supplement, they would have been well within their right to let Contador off with a warning and let his results stand. But ‘strict liability’ doesn’t leave much room for interpretation and if one man has to take a fall, it’s a small price to pay to keep the sponsors happy.

Andrew February 1, 2013 at 7:33 am

As I remember it, CAS’s decision on Contador said quite clearly that they thought it very unlikely that the cow did it, that there wasn’t sufficient evidence to prove that CA was doping so, instead, they settled on accidental contamination as the most likely cause of the positive. To put it another way, the evidence suggested that the cow was innocent, that doping was a credible explanation but completely unproven, so the mostly likely justifiable explanation was contamination.

This case seems identical, sans the ludicrous cow defence (my opinion), the absence of overt political interference and the ALAD cleverly trying to broker a shorter ban for FS by hoping WADA/UCI won’t appeal.

Germán Ospina January 31, 2013 at 12:08 am

I always wondered about the false positives. There has to be studies out there that test random people outside of sports for base lines. Ill volunteer. No PEDs, plenty of junk food

Dan Wilkins January 31, 2013 at 1:42 am

Stupid rule, but it needs to be equally/stupidly applied to all. Contador’s case was not different enough to warrant half the ban.

mot January 31, 2013 at 1:43 am

That heart of darkness, King Leopold’s dopelganger has the answer to Frank’s problem.

Patrick January 31, 2013 at 2:16 am

it seems to me a fair and appropriate decision – he did have a drug present so gets a ban, however it was a minute amount of a not particularly useful substance and most likely accidental so its a short ban.

as per inrng’s post the rules don’t clearly allow for this so i think alad are right in proposing a change to the rules to clarify the scope for leniency in this regard.

having a single global agency (eg wada) handling all these cases would both provide consistency and remove the perception of bias. instead we have 3 results over 2 similar cases – contador cleared, contador banned for 2 years, schleck banned for 1 year. middle ground is maybe the best place to be!

here’s an idea for an article – what does wada actually do (and by extension who has responsibility for all the other parts of the anti-doping fight)? to be cynical, it seems wada just write a bunch of rules and then criticise the one sport that is making a go at actually catching the cheats, while allowing many other sports to completely ignore the issue. wada should be doing the testing and administration consistently across all sports around the world.

The Inner Ring January 31, 2013 at 11:02 am

“it seems to me a fair and appropriate decision – he did have a drug present so gets a ban, however it was a minute amount of a not particularly useful substance and most likely accidental so its a short ban.”

I see what you’re saying here but the rules don’t allow for the most likely story, the athlete has to establish what happened. So we might well see WADA test the decision at the CAS.

Nick Evans January 31, 2013 at 6:37 pm

As above establishing what happened “to the comfortable satisfaction” of the anti-doping agency might well require the athlete to establish that something was the most likely story. They might have to establish it beyond reasonable doubt, or to another standard, but “establish” and “most likely” are not necessarily contradictory, unless the CAS says that they are.

BilgeRat January 31, 2013 at 3:22 am

You obviously don’t fully understand the WADA code. Sure you might have a point regarding the reasoning behind a 1yr ban although there is actually insufficient information available on the case to draw a conclusion. So since you are not privy to everything then you seem to do a lot of assuming.

If you understood the WADA code you would not compare Schleck case with the Contador case. Different substances, different uses, different classification under WADA, different guidelines for positive cases. Quite simple really. I don’t why people get this wrong all the time.

Adam January 31, 2013 at 6:35 am

Really? Why not explain it then? What information is unavailable? Have you read the 42 page decision?

What elements of the WADA code are missing from the original post? Or what parts of it have been misconstrued and how?

This is seriously the daftest comment on here. I know inrng is well capable of defending his/herself but still.

The Inner Ring January 31, 2013 at 8:30 am

The rules are deliberately there to stop us all speculating and assuming. If you can’t prove where it comes from then sadly the rules say you get the ban. Therefore I don’t have to assume that much, as long as Schleck can’t give evidence to show where the Xipamide came from then he’s stuck, no?

As I said above “the rules are slightly different” and to expand Contador’s case involved a “prohibited substance” whilst this is about a “specified substance” which is why we use 10.4 for Schleck (and 10.5 for Contador). But there are similarities because the athlete can get a reduced ban should they establish accidental ingestion and also the principle of strict liability is applied.

But none of this is black and white, that’s why it’s not certain to go to appeal and if it did proceed, the outcome is far from certain either.

Johnny January 31, 2013 at 8:54 pm

You invoked point 195 and 165 of the decision. If you really want to write an impartial article please invoke as well point 175. Read 175 and then read 10.4 again.

175. Le Conseil de discipline conclut que la seconde condition de l’article 295 RAD est établie, la Xipamide n’ayant été utilisée en l’espèce ni comme substance dopante susceptible d’améliorer les performances ni comme agent masquant une autre substance ou méthode interdites.

The Inner Ring January 31, 2013 at 9:09 pm

Fair point but surely since the first part of 10.4 doesn’t happen – there’s no proof where the Xipamide came from – then we don’t get to the second condition?

Johnny January 31, 2013 at 9:20 pm

-> 176, 177 … decision (RAD) = UCI anti doping regulations

Johnny February 1, 2013 at 7:29 am

As you did not follow on my entry of the articles 176, 177 and so on I will try it again. You state 1 article 10.4 of WADA code isolated. In this way does not work law. I don’t know what your background is, but you have to consider all the regulations, UCI Regulations and WADA Code as whole. In the reasoned decision they referred to all the articles they applied. For example point 177 refers to the commentary of articles of Wada Code 10.5.1 and 10.5.2, only to demonstrate you pulling out 1 article returns a distort view.

I really love inrng and your Blog but perhaps you tried to react to fast on the Schleck verdict with this entry. The presumption of innocence should exist also in sport when the guilt is not proven. Schleck could prove with hair analysis that from January 2012 he did not take steroids, they testify in point 175 he did not dope and he did not cover any other substance nor illegal method. Please read the decision twice considering all the regulations mentioned.

If you love cycling, and I know you do, please don’t jump on the train of hysteria.

The Inner Ring February 1, 2013 at 8:38 am

Johnny: one point of strict liability is that the presumption of innocence is abandoned. As I say above in the main piece this is very harsh… but everyone signs up to it.

I think we agree more than we disagree, I’m just saying WADA is likely but not certain to appeal this because the verdict is a challenge to the Code.

Joe K. January 31, 2013 at 8:32 am

This blog is looking more and more like an Administrative Law/Litigation blog rather than one for cycling. You all sound like attorneys (or wannabes)! Such is the sad (and fascinating) state of our beloved sport these days. And by the way, shouldn’t the ban start from Schleck’s last pro outing–which was the Tour of Beijing, I believe?

The Inner Ring January 31, 2013 at 8:37 am

Playing attorney again Schleck didn’t suspend himself from competition and sign paperwork to this effect until October so this could have been the start of the suspension date but ALAD put it back to when he voluntarily left the Tour. He could have kept riding in the Tour but left.

As for the other point, too right. The rules are all around us but we normally quote them when things go wrong. I’d much rather talk about the racing but we need the sport to be well run so we can forget the admin and focus on the sport.

Zosim January 31, 2013 at 4:52 pm

Wrong Schleck. Andy rode in the Tour of Beijing (briefly), Frank hasn’t ridden in a race since the TdF as he was suspended pending the outcome of the ALAD investigation.

The Inner Ring January 31, 2013 at 5:42 pm

Frank Schleck didn’t sign the paperwork until October. So even if he wasn’t racing he wasn’t suspended until 4 October. See paragraph 92 http://www.alad.lu/upload/SDE3GBNAWSDE/downloads/GJMMDWDODGPK/TMWYHXVIAYCT.pdf

Ankush January 31, 2013 at 9:27 am

Frank should be out for 2 years, period. Dopers should be punished equally.

Guy January 31, 2013 at 9:42 am

I think you meant to say ‘dopers and those who cannot prove their innocence should be punished equally’.

The Inner Ring January 31, 2013 at 11:03 am

Yes, he’s not convicted of doping, just for having a banned substance. We don’t know if he was doping just as we don’t know he had a contaminated diet supplement.

Guy January 31, 2013 at 9:41 am

I think you meant to say ‘dopers and those who cannot prove their innocence should be punished equally’.

Guy January 31, 2013 at 1:07 pm

(sorry for the repeat post above!)

Bruno Sousa January 31, 2013 at 1:33 pm

In spite of the politically correct approach of saying “he couldn’t prove his innocence” (and Inner Ring is correct, from a legal standpoint, in adopting such approach), let us be honest here: he doped, just as he doped with Fuentes. It’s Occam’s razor, and considering the state of things in Pro-Cycling, I just can’t handle a defense hypothesis built on thin air. He might as well have said aliens came in the middle of the night, abducted him and injected Xipamide to test his reactions. That way he would´ve been able to produce at least a couple of witnesses.
Out with these guys, zero tolerance is the way to go. You could maybe burn one innocent guy in the middle of a 1000 felons, but this isn’t the death penalty, and the sport would be saved.

hoh January 31, 2013 at 2:55 pm

Wondering if Frankie’s trying to do the same as Contador: ie. expecting WADA to appeal and CAS to give him a full two year ban. But with ALAD verdict and all the legal procedures, he can come back into competition past this summer.

Even if UCI eventually strips all his results past summer, he will still loss less competition time and hence keep a better form than serving a full two year ban.

Fan of Frank January 31, 2013 at 4:36 pm

Frank’s case is very different from Contador’s whose biological passport showed irregularities that suggested blood doping. Frank’s biological passport from what I have read was Ok and his hair analysis showed no indicatioins of other doping substances. Read this rather lengthly summation of the evidence against Contador and the joke that is the CSA ruling. http://nyvelocity.com/content/interviews/2012/behind-scenes-contador-cas-hearing-michael-ashenden

Zac January 31, 2013 at 5:17 pm

INRNG… I understand the rules and the WADA code and all that, but what I’m really interested in is what you think about this… Not what you think as far as the rules are concerned but what you think the ban should be for someone in Frank Schleck’s position or Alberto Contador’s where the evidence points to the odds that the person did not knowingly ingest a banned substance. Do you think the code should be changed or should we still go with a 2 year ban?

The Inner Ring January 31, 2013 at 6:10 pm

I don’t know. We don’t know if it was accidentally ingested or something else. The rule exists for a good reason but it is very strict, having to live by these means is bad. Imagine being scared about taking a drink or a vitamin pill in case you wake up to “Doper” headlines a week later.

I think we’ll see the WADA code revised and minimum limits introduced, so trace quantities of clenbuterol might be acceptable although I suspect the threshold will be set very low.

Anon January 31, 2013 at 8:35 pm

Those fears exist because someone, somewhere crossed a line that should have never been crossed – and now everyone is under suspicion.

Personally, I feel some sponsors are being peddled a line that more wins brings more exposure which transitively brings more revenue. This creates the pressure for riders to do “X” or win “Y” – and when faced with those objectives, what are they going to do? Minimize the chance of losing their job or maximize the probability of winning a race.

*[I]* know what teams start at the beginning of a race, and I’m sure most fans do as well. The marketing is done. I am not more inclined to patronize a sponsoring company if their cycling team wins “XYZ” race. Is anyone here?

People buy the team jerseys and bikes to support the team and riders they admire. That is a clear and defined revenue stream you can measure. I honestly can’t understand the economics of how someone can link a compressed gas company acheiving X-fold corporate return based on Y-wins in a niche sport. I think it’ll be difficult comparing alternate realities on a spreadsheet [the Y or in spite of Y factor].

We as a collective have lost Rabobank as a sponsor – a house in cycling. I doubt Quick Step, Lampre, Confidis, or FdJ are pumping money into their respective teams hoping that a Grand Tour win will bring a windfall of cash. They support these teams because [1] they clearly have an attachment to cycling in some manner and [2] sports teams make excellent tax shelters. That’s good enough for them. Rarely do I see a doping case from a French team – maybe it’s partisan testing or maybe these economic pressures don’t exist in team meetings.

Someone has to clearly state to potential sponsors that wins are faintly related to revenue. The strongest driver for revenue is just cutting the cheque, signing good riders, and letting the drama unfold on the field. People watch cycling for entertainment, they want to walk away saying they saw a great story unfold on 200 kilometers. Watching a person doped to the gills ride everyone off their wheel and win is NOT entertaining at all. I think removing corporate economic pressures is a good first step to scrubbing the sport.

Gus January 31, 2013 at 6:59 pm

If I get a bad energy gel and test positive…. if I get tested that is… I want INRNG on my legal team.

andrewp January 31, 2013 at 8:33 pm

To be fair to ALAD, they prosecuted the case they didn’t make the decision, that was down to the panel of arbiters.

ALAD, as well as the UCI, were asking for a two year ban – which they didnt get.

Fan of Frank February 1, 2013 at 9:18 pm

How do you know that ALAD was asking for a 2 year ban?

The Inner Ring February 1, 2013 at 10:05 pm

To reply on behalf of Andrew, because it’s stated in the ruling. The arbiters reviewed things and came down with the one year suspension.

Patrick January 31, 2013 at 10:48 pm

a very telling quote from Michael Ashendon:
“When the first hearing took place in Spain, that RFEC panel was only presented with Contador’s evidence that the clenbuterol had come from a steak, and no other alternatives were put before it. The RFEC concluded that on the evidence placed before it, the clenbuterol came from steak.”

any judge and jury is only as good as the evidence brought before it, if the lawyers are incompetent or corrupt then it is easy to weight the evidence to ensure a given outcome. the appeal to CAS was on the basis that the decision that contamination was not the only likely cause, other theories were put forward and it was clear that there was doubt so strict liability applied.

so although it is up to the athlete to show how a substance got into their system, that is easy to do if only one explanation is provided. the presence of a banned substance means guilty until proven innocent but it must still be shown that deliberate doping is a plausible explanation so that there is a counter-theory to whatever the defence says and the burden of proof is pushed higher.

coming back on topic and continuing the comparison, i’ve heard little in the way of explanations as to how franks result would have come about from doping so it will be interesting to see what info comes out on that front.

both cases feature a specific substance in low concentrations with no real benefit in the context of midway through a tour. contador had the plasticisers and blood values which supported a theory of the clen being used as a masking agent but i haven’t seen any evidence that frank was masking anything (maybe he did a better job of the masking).

the decision says “the presence of Xipamide is explained by the ingestion of contaminated diet supplements.” so without any other explanation to cast doubt that would seem like sufficient proof.

all very interesting from an abstract point of view, shame its destroying the sport we love

James L February 1, 2013 at 8:05 pm

This may have been covered in another post, but rather than have the process whereby WADA needs to challenge the decision with CAS, why not have WADA involved in an advisory capacity alongside the national authority to clear up the process / outcome in a more transparent and timely manner?

The Inner Ring February 1, 2013 at 10:04 pm

There are more rulings than you can imagine, dispatching someone from WADA would be a big expense. The Code is there to be followed by itself.

Fan of Frank February 1, 2013 at 9:16 pm

A representative from the UCI was present at the ALAD hearings. Wondering if that will reduce the probability that the UCI appeals the decision.

The Inner Ring February 1, 2013 at 10:10 pm

They UCI wanted a two year ban and also to levy a fine on him of €1.26 million (70% of his salary) because there is no proof where the Xipamide came from.

DJ February 1, 2013 at 10:50 pm

other uci – doping related news: Dutch media report a drastic cut in blood passport controls from 2010 onwards. Controls were reduced because of lack of funding. Pretty horrific…link in dutch
http://nos.nl/artikel/469383-aantal-tests-uci-sterk-gedaald.html

Chrisman February 2, 2013 at 12:05 am

This is bull. It’s all a joke. You can keep your subsections and your ‘suggestion of satisfaction’ or whatever garbage is keeping the legal teams busy. I’m totally done with innocent till proven guilty. You took a test. It had a banned substance. You’re guilty of taking a banned substance. You’re banned. End of. Why is that so flippin difficult?

Professional cyclists have lost the right to have the benefit of doubt. They’ve lost it. And this ‘quasi-legal’ pretext is that everyone is innocent till proven guilty is killing Pro Cycling (if it hasn’t done so already). Of all they cyclists over the last decade, who have tested positive and enjoyed the benefit of doubt, how many have actually been found to be innocent? How long are we going to continue this ridiculously naive charade? We all know deep down that 99% of cyclist who test positive for a banned substance are doping. And we know that many who don’t test positive are also doping. So let’s stop being so bloody stupid and lets use some common sense.

I’m all to aware of the dangers of judging people without knowing the facts. But the breaking point has come. Cycling needs to get totally Medieval and throw the old rulebook totally out of the window and do something revolutionary. If you’re found to have something on the banned list in your sample, you’re banned 2 years instantly, no arguing, and to be honest you’re friggin lucky its only 2 years.

Frank February 2, 2013 at 8:41 am

<>

Yes, admit that this sport is so hard that you have to assist with medicine, which makes it either less harmful. This sport has in 100 year of history taken drugs you just have to admit it. With drugs it still stays a very hard sport, you just shift the threshold of suffering, the limits a little bit to the right.
You make it a little more human !

Barbara February 2, 2013 at 1:36 am

With Medieval you mean going back to death penalty? Burning those devish cyclists/witches at the staple? Why, just because you’ll feel better about your own ethics?
No no no.
For me, I still hope to live in a society where I can get a just process although all the odds are against me. A society where people can get judged without a proper and honest judicial system is more at lost than some dopers running around.

SB February 2, 2013 at 10:07 am

FWIW

Surely, a dietary supplement should never bring up a positive. Simply put the team to ensure that everything that they ‘feed’ their riders is above board. I would have more sympathy for this argument outside of races when riders are at home, but at events like the tour this should be considered as important as checking the equipment is legally set up, especially in light of AC and the tainted steak in 2010.

Higgins February 2, 2013 at 7:00 pm

Its worth remembering that we are not talking about the kind of legal code that we experience every day as citizens of a country; which we have little practical control or influence over.

We are discussing a code that national federations and cycling organisations have signed up to in order to regulate a SPORT. The people riding in this sport are doing so voluntarily and in the hopes of fame and fortune. They choose to join the professional ranks of the sport and should do so knowing the regulations that surround it.

To suggest that it is too draconian to require strict liability on the part of highly paid athletes is to allow skilled cheats and manipulators like Mr Armstrong another few decades of undeserved sporting achievements, at the expense of the audience and genuine competitors.

Chrisman February 2, 2013 at 7:58 pm

Barbra – Society, yes. But we’re not talking about society in general. We’re talking about a very specific group of people who have a track record of being very naughty. It’s got sod all to do with ethics and every thing to do with a sport being rendered pointless. I couldn’t care less about ethics in general, but in sport it’s essential you at least follow the rules otherwise it’s not really a sport is it, it’s just a load of blokes on bikes doing stupid things to sell French newspapers.

fjorthur March 18, 2013 at 7:36 am

“Remember this is not a verdict on doping, simply on the presence of a banned substance and yes strict liability really is very strict. Call it harsh but I don’t remember Frank Schleck calling for the principle of strict liability to be reviewed when Alberto Contador got stripped of the 2010 Tour de France.”–Inrng

This was not about Frank and Alberto but Andy and Alberto, Andy said:

“”First of all I feel sad for Alberto. I always believed in his innocence. This is just a very sad day for cycling. The only positive news is that there is a verdict after 566 days of uncertainty. Now, we can move on.” — Andy Schleck on Contador’s ban.

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