Frank Schleck’s Expert Problems

Thursday, 17 January 2013

Frank Schleck case

This week a leaked expert report suggest that Frank Schleck’s positive test in the Tour de France probably didn’t result from doping. Luxembourg newspaper Tageblatt got a copy of the work done by Dr. Hans Geyer, deputy director of the WADA-approved laboratory in Cologne.

The report seems fine – although I’ll add one point to it below – but the rules don’t care for hypotheses. no matter how expert. If the molecule is there a two year ban awaits unless the athlete can demonstrate it was an accident, for example proof he was poisoned. Without this, Frank Schleck will be banned until July 2014.

This is the principle of strict liability, a cornerstone of the anti-doping rules. It’s all reminiscent the Contador case when the Spaniard too tested positive during the 2010 Tour de France. Similarly, it might take time, there might be speculation, it could go to appeal but all the signs point to a two year ban.

Schleck’s urine test showed a concentration of about 100 pg/ml which is “an extremely low concentration,” Geyer noted. He said that he is not aware of any studies done on the possible effects of such a low dosage.

I hope Schleck’s defence does not rest on debating the level of concentration and whether it would have any effect or not. Alberto Contador tried this and his 0.0000000005 grams defence was good for public performance but featherweight in front of the Court of Arbitration for Sport’s panel and the Spaniard got a two year ban after traces of Clenbuterol were detected in his urine from the 2010 Tour de France.

Contador

Alberto Contador launches a futile attack

It’s all similar to the Contador case although unlike the Spaniard’s Clenbuterol, the Xipamide diuretic found in Schleck’s sample is called a “specified substance” and brings slightly lighter treatment. We’re going to get technical here so if you want the answer, jump to the end but it’s worth setting out the rules if you’re wondering if Schleck will escape a ban.

Here’s the WADA Code:

2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample
2.1.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an antidoping violation under Article 2.1.

Comment to Article 2.1.1:…If the positive Sample came from an In-Competition test, then the results of that Competition are automatically invalidated (Article 9 (Automatic Disqualification of Individual Results)). However, the Athlete then has the possibility to avoid or reduce sanctions if the Athlete can demonstrate that he or she was not at fault or significant fault (Article 10.5 (Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances)) or in certain circumstances did not intend to enhance his or her sport performance (Article 10.4 (Elimination or Reduction of the Period of Ineligibility for Specified Substances under Specific Circumstances)).

In summary Article 2.1 says a positive test is positive test, no matter how the molecules get there. It doesn’t matter if the Xipamide got there.

Schleck cannot escape this. But the comment attached to the article, designed to help interpret the rules, says “the Athlete then has the possibility to avoid or reduce sanctions if the Athlete can demonstrate that he or she was not at fault or significant fault”. Put another way, Schleck must prove the tiny dose wasn’t caused by knowingly taking anything. But that’s not easy and further rules on the matter only make his case harder. Here’s the relevant rule on “No Significant Fault or Negligence”:

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 found in Article 10.2 shall be [reduced]…

…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.

10.5.2 No Significant Fault or Negligence
If an Athlete or other Person establishes in an individual case that he or she bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced, but the reduced period of Ineligibility may not be less than one-half of the period of Ineligibility otherwise applicable. If the otherwise applicable period of Ineligibility is a lifetime, the reduced period under this Article may be no less than eight (8) years. When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Sample in violation of Article 2.1 (Presence of a Prohibited Substance or its Metabolites or Markers), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility reduced.

First 10.4 says if Schleck can prove the source of the contamination then because there might not have been much of a performance gain then he could be cleared. Next 10.5 says if Schleck can show he wasn’t at fault then the ban can be reduced. But note that’s a reduction in the ban, it does not exempt him from the positive test. A one year ban is possible. But, and this is a big but, notice the last sentence, “the Athlete must also establish how the Prohibited Substance entered his or her system”. Right from the start Schleck has said he didn’t know how the Xipamide got there so proving it was all an accident looks very difficult for him.

So what happens?
There are two primary scenarios.

  • The first is that Schleck can prove it was all an accident, that he is not to blame. If a satisfactory proof is provided, he will still get a reprimand as the banned substance was there. But he’s likely to get a reduction in the ban. Imagine a six month ban imposed from the date of his departure from the Tour de France and he’d be clear to race.
  • The second is the full two year ban but this scenario can be seen via several angles. The Luxembourg panel could ban Schleck straight away. But it could also clear him in the way the Spanish federation cleared Contador, which then forced the UCI and WADA to take the verdict to the CAS. The lengthy saga that cost a fortune yet mere resulted in WADA Code 2.1 and 10.5.2 being read back at Contador and a two year ban.

Strict liability
A reminder of the principle of strict liability. The athlete is responsible for what they ingest and if a banned substance is detected they are responsible. An expert can provide various hypotheses about the reasons for the Xipamide showing up but that’s just speculation. The rules are blind to the likely causes. A contaminated diet supplement? A spiked drink? Tough, the athlete must prove they were not at fault.

The idea behind the principle did not exist then cheats could take a variety of banned substances and when caught just blame someone else, for example “there was a suspicious man in the hotel” or “it must be those cheap food supplements”. No, the athlete has to supply proof and these days some even go as far as storing vitamin pills, when they swallow one, they put another into a pot for safe-keeping in case a doping test goes wrong.

Did Johan Bruyneel spike Frank Schleck?
Yes, some have been asking this. The only thing this tells us is just how cynical some people can be – who knew, eh? – and sadly Bruyneel’s reputation is low enough with some for this to appear possible.

With these mystery crimes the old adage is cui bono, who gains? Bruyneel might have been annoyed with the Schlecks as the brothers were in talks to set up a rival team sponsored by German shampoo brand Alpecin. But surely another doping scandal under his watch is the last thing Bruyneel needed?

The use of diuretics
A diuretic is a product that elevates the rate of urination. A typical medical use is to help manage fluid levels in the body, for example to tackle excessive water retention. Soon after leaving the Tour Frank Schleck gave words to the effect of “why would I use a diuretic?”. After all he was racing in the South of France and dehydration is a big concern for a racing cyclist. Hopefully his shock was genuine. But cheats can exploit these products.

A diuretic can help flush any banned substances out of the body. Sometimes diuretics are labelled “masking agents” but this is false, think “elimination agent” instead as some banned substances in the body can be excreted faster with the use of a diuretic.

Another use would be for a blood doping regime. A rider infuses red blood cells before an important part of the race but suddenly they face a haematocrit test and so they need to manipulate their blood levels back to fool the testers. They quickly infuse a saline solution when the testers come knocking, thus increasing the amount of liquid in their blood and apparently reducing the proportion of red blood cells. Some, like Tyler Hamilton, call these saline IVs “speed bags”. Only once infused and the test is done our rider is full of water and this needs to be eliminated: pop a diuretic. Please be careful here – this is not finger-pointing at Schleck. Instead it just shows they can be used and helps to explain why they’re banned.

Court of Public Opinion
The expert report ordered by the Luxembourg agency might not save Frank Schleck from strict liability. But it can help convince people that nothing nefarious was going on. If this can be demonstrated then it helps the athlete even if it’s unlikely to alter the outcome of the case. Indeed some might wonder if it was leaked to Tageblatt for this purpose?

Doktor Hans Geyer

Dr. Hans Geyer is scientist. Can you spot the visual clues?

Summary
There are doping uses for diuretics, even during bike races in the South of France on a hot day. That’s why these substances are banned.

Was Frank Schleck doping? I don’t know. Believe the expert and he probably wasn’t but this might not save him. WADA’s black and white rules plus the Contador case history mean Frank Schleck faces a two year ban unless he can prove he was not to blame. An expert report is fine and could help public opinion but expert speculation is one thing, expertly proving the contamination was accidental is another.

A verdict from Luxembourg’s Anti-doping Agency is expected before the end of January.

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{ 35 comments }

Mac January 17, 2013 at 4:03 pm

If the rules are so clear, why does it take so long?

The Inner Ring January 17, 2013 at 4:37 pm

Where to start? Let’s go to Luxembourg, a small place and they don’t have a giant agency with lots of staff to handle this. This is taking longer than the UCI rules state is allowed but the Lux agency ALAD is not the cycling federation so not bound by the UCI timeline.

Sam99 January 17, 2013 at 7:50 pm

The eternal question regarding these sorts of things: “Why does the national federation deal with it rather than an international organisation?”

Situation should be something like:
- rider tests positive
- rider banned from all cycling races (UCI)
- rider can appeal and have second sample tested
- international organisation lab (UCI/WADA/…) tests second sample
- if rider fails, still banned / if rider passes then cleared to race (UCI)
- if rider still banned, can appeal to have ban reduced, but is still banned in the meantime

The Inner Ring January 17, 2013 at 8:51 pm

Yes, international coordination has some way to go, the outcome and timing can vary according to your nationality. The WADA Code can apply but there’s no rule on the timing of a case.

One day an independent cycling anti-doping agency will arrive to handle of these things.

Ankush January 17, 2013 at 4:07 pm

Just like Contador, Frank should be banned. Any justification given is futile until it’s backed by material evidence.

The Inner Ring January 17, 2013 at 4:41 pm

I take it you’re not a fan ;-) ?

Certainly he’s got his work cut out. Proving no doping advantage is one thing although the proof seems far from certain. But being sure about how it got there is quite another.

no one really January 17, 2013 at 5:07 pm

a couple thoughts:
i’m no fan of conspiracy theories but the comment regarding bruyneel not wanting another doping case on his hands rings hollow. 1. he’d blame it on frank, anyway and 2. does he even think in damage control mode and try to avoid a scandal? we might as well win..

i read somewhere that the low concentration found might be indicative of unintended ingestion via some supplement. not sure about other countries but in the US these things are not regulated by any government agency and could contain anything. i am always puzzled why athletes continue to use these when they could wind up on the wrong end of a drug test given lack of regulation. i’m not aware of any good studies (RCT, peer reviewed journals, etc.) that show supplements do any good. i’d be willing read any you can find (that are in english).

thanks for all your work.

Rolling Blunder January 17, 2013 at 11:42 pm

Yes, what would JB be capable of? At the time of FS’s positive Bruyneel was already a ‘dead man walking’ so why not throw a hand-grenade Frank’s way? Possible, but unlikely?

“i am always puzzled why athletes continue to use these . . . ” Are they using these unregulated supplements or is it the most obvious excuse when cornered?

Pro January 17, 2013 at 6:07 pm

Hopefully Bruynell would explain what they done!

FG January 17, 2013 at 6:11 pm

Mr Ring: What chance do you put on him being banned / cleared?

The Inner Ring January 17, 2013 at 7:11 pm

Forecasting the weather is hard for experts so picking the outcome here is even harder.

He has to do two things, first prove that there was no doping benefit. The expert report helps here but as I showed above, diuretics are in use. But the harder part is establishing where the product came from. It’s no good presenting a hypothesis – like Contador did with contaminated meat – because you must prove it. If he can do this he’s clear but as I don’t know what proof he has here it’s hard to put a % on it.

Ken January 17, 2013 at 7:07 pm

I once was skeptical of punishing athletes at such low levels of detection. The Armstrong case, however, showed cheaters were using highly sophisticated means to thwart the tests. I now support the strict liability rule.

Simon E January 19, 2013 at 1:58 pm

+1 to this.

It has been widely stated that for a long time the riders/doctors have been 1 or 2 steps ahead of the testers.

Supplements undergo stringent tests to demonstrate they are not contaminated with banned substances so the presence of Xipamide or Clenbuterol in an athlete’s blood or urine must be viewed as highly suspicious. A defence of accidental ingestion or dodgy steak, especially without evidence, won’t hold up.

BC January 17, 2013 at 9:14 pm

The courts may/will take their time. Probably best to consider the background, 2012 performance against previous years and history. Bit hard, but I have learned that such observations tend to be somewhat quicker and just as accurate as the courts. At least it stops one feeling ‘let down’.

Until such times as the sport resolves the doping problem in an open and honest manner, its the best fans can do.

Vanilla_Thrilla January 17, 2013 at 9:33 pm

What does Bruyneel have to gain? More like what does he have to lose?

He’s staring down the barrel of a life ban. He has a history of vindictive, conspiratorial behaviour. It’s not exactly beyond the realms of possibility. But if he wasn’t actually at the tour in question, could he have managed a ‘poisoning’ from afar is more my question.

And if Schleck wasn’t poisoned, then he’s failed the ‘IQ test ‘ as Tyler Hamilton put it, regardless of whether he was deliberately doping or not.

Patrick January 17, 2013 at 9:34 pm

i wonder what real motivation frank would have had to dope given that he was already clearly not in contention for the GC. he may have picked up a stage win but it seems a small reward for the risks. i’m not sure, maybe this was a remaining trace from some time earlier – dope before the race to get the training benefit, then diuretic to clear it out before the likelihood of testing? it was such a disastrous season for the schlecks and team that things might have been that desperate

other than the race situation, certainly plenty of parallels with the contador case. both make you wonder about the line between eliminating drug use and preventing innocent athletes from getting into these situations. i guess we’ve only had the 2 high profile cases recently so that seems reasonable (given that both are questionable either way) but have there been numerous similar cases amongst lower profile athletes and in other sports that we haven’t heard about? i recall there was discussion about some clenbuterol cases in other sports…

Ben B January 17, 2013 at 10:33 pm

If I understand 10.4 correctly, because xipamide is a specified, not a prohibited, substance, Schleck could admit to taking it deliberately and still escape a ban if he can prove he had no intent to enhance his performance by taking it. If this is right, he really shot himself in the foot by starting immediately as the news broke that he had no idea where it could have come from. He could have just said “yes, I took the supplement yesterday, because I thought it would help my sunburn, I had no idea it could benefit my cycling”, and his ban could have been prevented. In future, expect athletes testing positive to say they don’t even know if they know where it came from or not!

andrewp January 18, 2013 at 1:26 am

This theoritical legal conundrum was given an airing before Beloff at CAS in the Gibbs case – and whilst the practical answer is almost always no to it being a good strategy, the answer is not definitive.
http://www.tas-cas.org/d2wfiles/document/4596/5048/0/Award20223020internet.pdf

The Inner Ring January 18, 2013 at 11:33 am

Thanks for this useful case history

guille January 17, 2013 at 11:14 pm

After all what we’ve seen I support not only the idea of a direct ban but I think lifebans should be considered. That’s the only way the other ones are going to think twice before cheating.

Rolling Blunder January 17, 2013 at 11:52 pm

Life bans AND criminal conviction. Nicole Cook’s farewell statement is a reality check. Doping is stealing other rider’s career, prize money, fame etc. Proceeds from disgraced rider’s books should be viewed as proceeds of crime. In Australia the law prohibits anybody making money from authoring a book based on a convicted criminal act even if they are innocent *cough* David Hicks *cough*

As we’re seeing right now, when the law steps in heads will roll.

Barking Owl January 18, 2013 at 12:46 am

The problem is in the court of public opinion Frank Schleck is guilty due to the previous instance of wiring €7000 for ”training plans” to a gynecologist named Eufemiano Fuentes. It’s a funny coincidence how in 2010 unexplained substances entered the system of another cyclist linked to Fuentes. Smoke….fire….etc

Cevenol January 18, 2013 at 1:12 am

Yep

The Inner Ring January 18, 2013 at 11:34 am

Yes, I didn’t mention this because I wanted to stick to the case but he’s got baggage from the past.

Bill Ward January 18, 2013 at 1:30 am

I still find it remarkable that Contador (and his vulturous legal hord) persisted so far with their ‘hypothesis’ defence against such unambiguous rules. Frank (and his lawyers) must rue the day he hastily denied all knowledge in the spur of the moment too..

Doping stories (present company, of course, excluded) are beginning to get the better of me.. Roll on the racing season proper.

Bill Ward January 18, 2013 at 1:31 am

I still find it remarkable that Contador (and his vulturous legal hord) persisted so far with their ‘hypothesis’ defence against such unambiguous rules. Frank (and his lawyers) must rue the day he hastily denied all knowledge in the spur of the moment too..
Doping stories (present company, of course, excluded) are beginning to get the better of me.. Roll on the racing season proper.

Funkinstein January 18, 2013 at 6:25 am

Given the history of the sport all riders are guilty until proven innocent. Why should anyone believe any of these guys? I enjoy watching and following cycling but when they get popped they need to shut up. There will always be doping and we all know it so just do whatever you do the train and if you get caught oh well.

The Inner Ring January 18, 2013 at 11:36 am

I’ve heard the “presumption of guilt” idea before and sometimes think about writing about it. The trouble is that the innocent riders end up carrying the weight for the bad ones.

Dr. Ko January 18, 2013 at 8:00 am

I must admit I’m in the evil JB camp ( http://innercitymobility.blogspot.de/2012/07/editorial-break-stimorol-anyone.html ). Even if he did not do it, if someone puts down the money (on his bank account) he might admit it, as I do not see any cycling related job for him – this side of the Ural. (This side of the Ural means in Europe, as the Ural kind of divides Russia in the European and the Asian part.)
Would be a kind of last payday, but who would be willing to put down say 5 million € to save Frank? Based on performance I can not see any seven figure number in my glass ball, and neither can I see JB burn his fingers for small change.

Hold it, something shows up in the glass ball, it is JB in a team car with J&B stickers. I can see Contador, F.Schleck, DiLuca, the zombies of Christina watches…I see Pat McQ dancing with Lance, oh hell, I should not have had a glass or two of whisky while watching the Oprah interview tonight ….

Johnny January 18, 2013 at 2:06 pm

The German Werner Franke thinks not that Schleck could be so naive, the French Jean-Pierre de Modenard thinks he could not be so stupid or be suicidal in regard of the risk of dehydration. De Modenard also thinks that the cause is a dietary supplement.

The commentator of german Eurosport writes in his blog that CAS suggested Contador in his judgment that a significantly lighter sentence would have been possible when he instead of holding on on his contaminated beef theory he had pleaded on contaminated supplements.

The link is in german :
http://de.eurosport.yahoo.com/blogs/andreas-schulz/schleck-vergiftet-verbl%C3%B6det-231310954.html

- Quantities which bring no medical benefit / strict liabilty – Contador sentence : not knowingly searched to dope (don’t remember wording)
- Rules which preview penalty between blame and 2 years ban are really elastic

This stuff finally is obscure and does not provide a service to the sport in general. If the rule does not search to find out the intention to dope but finally puts a ban even if this is not given, this could not be understood by the majority outside. If finally only the lawyers understands what happens in don’t think that the rules are apropriated.

Stephen_M January 18, 2013 at 5:23 pm

Maybe I’m cynical, but I thought the report may well have been written by someone who is an expert, but it was a long, long way short of being comrehensive (from what was leaked, anyway).

It missed out most the obvious – why would an athlete during competition be taking a duiretic? To flush their system. Of what? Most likely steroids. cf with Pedro Delgado and a certain Dr Fuentes back in 1998 (when only 1 of the 2 was really famous). Fuentes was a renound steroid man and Delgado was a man looking to increase his wattage after only loosing the previous tour by 40 secs (loosing lots of times in the time trial). Unfortunately for Pedro’s reputation, he got his masking dose slightly wrong and took a little too much probenecid and it showed up in his sample.

Rider, Fuentes, crap time trialist, more watts for Le Tour – can anyone helps me join up these 1 stories??

fjorthur January 19, 2013 at 10:39 am

The odds are greater that Linda the dog slipped him a drug in one of Jensie’s cookies than Schleck having taken a banned substance. Why would he take a drug, it was not as if he was going to win or be on the podium. That was not his strategy.

fjorthur January 19, 2013 at 10:40 am

I am kidding about Linda.

Puddle Jumper January 23, 2013 at 5:45 pm

Did everyone forget that this isn’t entirely unexpected of Frank, given his past?
http://www.bikeradar.com/news/article/frank-schleck-admits-fuentes-payment-18842/

Johnny January 24, 2013 at 7:31 am

Legally on the former trial he was acquitted, so there is no reprieve to enforce now on this case. Sorry but right has nothing to do with feelings. Actually prevails some over sensibility. Don’t think digging permanently in the past brings cycling further.

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