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.
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.
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?
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.