The Grey Area

Tuesday, 16 February 2016

The UCI’s recent ruling on the Katusha team was an illustration of how any rules a sport makes have to fit in the wider world and comply with national and international law. Because Luca Paolini’s provisional suspension relates to a claimed “recreational” use in the UCI’s view it would have been disproportionate to suspend the whole team. It suggests there are two rulebooks, the WADA one with its black and white text and another with additional rules and a sort of grey zone where an athlete like Paolini is suspended on a doping related matter but his team are not. Similarly to explore another topical subject, any sanction on Femke van den Driessche will have to reflect the fact that, as reported, she didn’t actually use a motor in the cyclo-cross worlds.

The bulk of the UCI’s anti-doping rules come from WADA, effectively a copy and paste of the WADA Code. This is normal and a good thing as the whole point of WADA is to have global rules for sports that sign up, primarily all the Olympic disciplines and their governing bodies. Because of its importance a lot of work has gone into drafting these rules, first to try and remove ambiguity and second to ensure they survive legal challenge.

There are also additional rules created by the UCI. Examples include:

  • the collective suspension that Katusha escaped and Androni suffered
  • the UCI’s different attempts to review team licences in the light of anti-doping with Katusha, again, and Astana
  • the “technological fraud” rule on motors
  • or see how the UCI rests or suspends riders with bio-passport cases it’s thinking of prosecuting, see Roman Kreuziger’s saga

Sport doesn’t take place in a bubble, no more so than a bike race which passes through villages and towns. So if sports agree rules  as part of their game they’re not exempt from the law of the land. To use a topical example, take the case of Femke van den Driessche. Now the UCI rules say mere bringing a motorised bike to a race (and not using it) is enough to trigger the rule and a ban. From what we know van den Driessche didn’t use the motor in the CX Worlds so the tariff applicable has to be “proportionate”, an important word under the law. You might remember the UCI’s statement on Katusha last week where banning the whole team would have been “disproportionate”. It’s normal, think of robbery, attempted robbery and conspiracy to rob where we go from the act, to trying and then plotting and the punishment applicable decreases. Using a motor in a race should come with a long ban but apply the principle of proportionality and having a motor but not using it could well reduce the length of the ban.

Away from cycling is the saga of Claudia Pechstein, a speed skater who has been convicted of doping. She’s launched more appeals than Bono and is now fighting overturn the CAS verdict in the Munich courts. Without going too far into the details the principle at stake is whether sports bodies can uphold their rules or whether local laws can over rule them. Pechstein’s case is extreme – see the exasperated governing body’s statement – but illustrates the point of testing sports rules in the courts. Another example has been the legal challenge brought by Kristof De Saedeleer, a Belgian lawyer, to the anti-doping “Whereabouts” rules which require athletes to give details of a location where they can be tested every day, with De Saedeleer saying this breaches their right to privacy; an obvious counter-argument is that it’s been necessary for sport and if athletes don’t like it then they can work in a factory or office where if they don’t account for their whereabouts every day then their boss might be having words too. De Saedeleer’s case seems to have dried up but again it shows how sporting rules can be tested against basic human rights.

Alejandro Valverde

“El Imbatido” lost every court case and appeal he tried

It’s happened in cycling too. When Alejandro Valverde got done for a DNA match with blood bags found in Operación Puerto he lost in an Italian tribunal and then he lost at the Court of Arbitration for Sport (CAS) too. So he tried to take it to the Swiss courts but lost there in 2010 too.

We can welcome the outside influence of the law but with this comes lawyers and with them legal bills. A wealthy athlete can deploy legal resources that poorer ones cannot. Femke van den Driessche does not seem rich by any measure so any verdict given to her may not be appealed and she certainly won’t be laying siege to the CAS with a phalanx of pricey lawyers. By contrast top sportspeople do try this whether Pechstein or in cycling see Alberto Contador’s appeal attempts over his doping ban or his team mate Roman Kreuziger who took the UCI to task over his protracted provisional suspension. So in the specific van den Driessche could get a long ban and therefore begin a precedent but if they’d caught a wealthy rider would they set such a long ban? We’d like to think not but the UCI itself has limited resources and legal risk, ie being sued for a poor ruling, is an issue. Often the UCI has counted on WADA for back-up, for example WADA joined the UCI in the Contador case in order to bolster the resources available and pool the legal risk. But this isn’t available when it comes to those UCI-specific rules suggested above where, everything else being equal it’s easier to prosecute a small rider than a big one. This isn’t fanciful, see the introduction of the athlete passport where a range of small fry riders were first nailed in order test the procedures and establish the jurisprudence. Here’s cyclingnews.com venturing the hypothesis:

The initial five cases launched by the UCI in 2008 involved ‘small fish’ or riders already close to retiring. It was assumed that the UCI didn’t have the guts to take on the larger challenges

In the same article this idea is immediately countered by the UCI’s ex-head of anti-doping Anne Gripper who says “That was never the case. Those five were clearly the five we had to start with” before suggesting the UCI could well have picked the most prosecutable cases, “from our point of view it was important to go ahead with those cases that were close to certainly“.

Where does it all go?
Sport isn’t above the law. It can be a game played by a set of rules but these can be trumped by the law. The PDF looks black and white but the reality is that some areas only work by consensus, that everyone agrees to abide by the rules as part of the game… until they don’t like them and seek legal redress. In turn this access to justice can be dependent on wealth. None of this is outrageous for now, just a subtle issue to note when assessing the rules and their enforcement.

The core WADA rules incorporated by the UCI have been tested across several sports and hold although the Pechstein case worth following in case it cracks this. Beyond this tested core of WADA’s rules are others that are on less sure ground, for example the rule on motors, on principle the use of a motor merits a long ban but what is proportionate for bringing one to a race but not using it? It suggests a shorter ban than many might want could be imposed, just as Katusha were saved from an embarrassing suspension.

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Peter February 16, 2016 at 3:32 pm

Articles like this are why I keep Inner Ring on my list of sites to view every morning. Thank you!

You have done a great job of raising a key issue: No law or rule is of any value if it cannot be enforced. Whether we agree with a case or not, the ‘prosecutor’ of a new law has to find a way to ensure that the law is going to survive the first test runs. To take a difficult case and lose it is to say “this rule is not enforceable, and it need not be followed.” To take a clear case and win it is to set precedent that supports future difficult cases.

The motor in the CX bike case seems very clear. If the UCI succeeds in this case, then it is going to be much easier to suspend a pro tour team that claims a sloppy rider left a training bike, with motor, lined up with the race machines. Success in the trial case of the Belgian woman will be a much better deterrent than a high profile failure in the CAS.

Certainly, there are some rules where we expect to see flex, you have written about the sticky bidon before. However, the motorized bike regulation is a rule that we might all want to be clear and firm. For any case where you want that clear enforcement, you need to start with a trial victory in the ‘legal’ process. Not in the court of public opinion, in the regulatory process.

In other words, the crowd noise on the issue of motors is much less important than what goes on in the quiet places, in hearings, and out of view. If we want a rule that will be enforceable, we start must always start with a successful prosecution. As luck would have it, one CX racer has made that possible. But the principle will apply in much wider cases as well.

So, I have restated some of what you said earlier today, but I feel better for having beaten my chest for the value of a reasoned process. 🙂 Thank you for a great column.

The Inner Ring February 16, 2016 at 7:15 pm

Thanks, I thought this piece would bore most people but glad it’s interested some.

hiddenwheel February 16, 2016 at 7:46 pm

The rule must allow for judgment in application. Are we to expect the UCI to punish a team for using one of the (growing market segment of) electric assist commuter bikes for support staff to zip around at race venues? Or even a rider heading to sign in? I could see Giant and other industry folks rightly wanting those products visible in exactly this way. And there use as such surely doesn’t indicate cheating of any kind.

RonDe February 17, 2016 at 2:16 pm

No, no, its a very interesting piece and the breadth of your subjects on this blog is, I’m sure, what endears it to many.

Most interesting here is the issue you raise re: the wealth of those accused/sanctioned. The UCI is not a bottomless money pit and so rich athletes/teams can use legal threats in their favour it seems to me. This leads to a 2 tier system where the poor athlete can be clobbered without any come back but the rich can hit back where it hurts: in the wallet.

Anonymous February 18, 2016 at 9:40 am

It’ s a great piece! Takes me back to the good old days of Groklaw.com

Sam February 16, 2016 at 3:34 pm

Okay, so let’s mirror this with pharmaceutical doping: if a rider was simply caught with doping products, but swears they were never used in competition, would that merit our “proportional” clause?

The Inner Ring February 16, 2016 at 3:40 pm

That goes back to the WADA rules and being caught with banned substances can fall under the “Attempted Use” rule in WADA’s Code and there’s quite a lot of case law/jurisprudence on this. Plus it can be illegal to possess them without a correct prescription etc.

Peter February 16, 2016 at 3:38 pm

Sam,

Different rules. From the beginning the rule on motors has been that possession is a clear violation. That is reflective of Inner Ring’s comment that following the WADA is safer (the pharma doping) but branching out on its own puts the UCI into a world of gray where they need to be more careful.

And that opinion from me is worth every penny that you paid for it.

With a smile and thanks,

P

Augie March February 16, 2016 at 3:49 pm

Question: are purely “recreational” drugs such as cocaine covered by the WADA code/UCI anti-doping rules? If so then Katusha should have been suspended, if not then there isn’t that much of an issue (aside from the potential illegality) from what Paolini does in his down time.

The Inner Ring February 16, 2016 at 3:59 pm

It’s complicated given cocaine is not allowed in-competition. Then comes a whole issue over whether Paolini was using it to enhance performance. But regardless of the Paolini case by itself the UCI rule on stopping all the riders because of this is the grey one because it’s not certain it stands up in court if appealed.

Alex February 17, 2016 at 4:47 am

It’s tricky because not all prohibited substances/methods enhance performance, the can be prohibited for other reasons (there’s a clear set of rationale in WADA code for why things are prohibited). Performance enhancement per se is an insufficient condition for prohibition. Else sleep, training and food would be banned.

Even for the performance enhancement criteria, it doesn’t have to be a substance/method with proven performance enhancement, but simply considered by WADA to have *potential* to enhance performance. Consider the ethical dilemma of having to prove beyond scientific doubt everything was actually ergogenic before it was prohibited.

As for those substances that are prohibited in-competition only, the rules are a little ambiguous as to the time periods that applies (it’s sport and event specific), but on the whole if the test was on race day and you go +ve, you’re screwed irrespective of when the substance was ingested/injected.

These sorts of things are managed via the sanctions part of the code which defines the specific sanction that applies as well as under what circumstances reductions in sanctions may apply (e.g. proven inadvertent use).

The articles are great – it provides a location for rational discussion rather than conspiracy mongering.

peloton.pl February 17, 2016 at 1:37 pm

I think doping authorities trapped themselves on cocaine subject. Boonen cocaine test was no-suspension because it was out-of-competition, Paulini was suspension because it was performed during competition.

noel February 16, 2016 at 3:57 pm

I’m pretty sure my contract of employment (financial services) gets torn up if I test positive for recreational drugs like cocaine…. maybe the uci can insist on World Tour teams having ‘grey area’ clauses in their contracts with riders (although that does conflict the teams if they come into some info on their star rider I guess…)

Peter February 16, 2016 at 4:11 pm

Wouldn’t enforcing that clause would put Tom Boonen off the road?

THAT would be an interesting case to enforce!! The legal fees alone, on both sides, might be enough to fund a new WT team.

If I were the UCI management, I think that I might look for a different case to prosecute.

Sam February 16, 2016 at 4:18 pm

If applied, it would only be applicable going forward ie if offence committed after riders made aware by their employers of the consequences.

Tommeke would be safe:-)

noel February 16, 2016 at 4:47 pm

actually I can see another problem with this – let’s say if perhaps a particular flamboyant owner was getting fed up with a star sprinter/climber not delivering to his liking… spiking a drink could be a good way out of that expensive multi-year contract….

J Evans February 16, 2016 at 4:48 pm

But who could you mean?

DMC February 16, 2016 at 5:09 pm

A grey area clause wouldn’t stand up to employment laws (which is the whole point of Inrng’s article). You can’t fire an employee for suspicion they used a drug, or suspicion they sold your private information to a competitor. Same would apply to this clause.

ebbe February 17, 2016 at 2:37 pm

Depends on where you live/work Noel, but generally the answer is: No. If any part of your employment contract is “illegal” (eg: firing somebody for off-work use of cocaine is not allowed under the laws of the country you work in) a judge will always overthrow that part of your contract should you choose to appeal and be able to prove that your recreational use did not influence your work performance negatively. No matter if your signature is underneath it in blood 😉

In other words: The party drafting the contract is responsible for drafting a contract that abides by the law. If they do not, that part will be nullified. Nobody has the right to agree on something illegal (according to the law of the country), even if both parties sign.

Again, it might depend on where you live/work, but generally this is the case

Sam February 16, 2016 at 4:19 pm

Thanks for this post, INRNG. Sanest thing I’ve read on the subject.

J Evans February 16, 2016 at 4:44 pm

I haven’t the faintest clue about law, etc., but can’t the riders be made to sign a contract with the UCI that says ‘I agree to ride by UCI rules, etc., etc.’?
Then, the UCI can make what rules it wants and if riders break them they’re out.
And if riders won’t sign, riders don’t ride.
No doubt some riders would be unfairly banned by this, but probably not very many and you’d get rid of a host of cheats, and wouldn’t have to go through the endless legal processes.
I think it’s fair to circumnavigate the legal system(s) in the case of a sport – because competing in a bike race isn’t a human right.
No idea if this would be legal though – probably not: few simple things are.
I’ll freely admit here and now that this is just a vague idea and I haven’t thought it through – so feel free to point out a myriad of flaws.

DMC February 16, 2016 at 5:11 pm

There isn’t a simple, easy fix clause to solve this problem. As Inrng stated – every clause has to stand up to legal precedence. Rider contracts are employment contracts, and employment law usually gives the employee a lot of leeway.

The Inner Ring February 16, 2016 at 5:42 pm

Taking out a UCI licence is signing an agreement to follow the rules. But to exaggerate to make a point if the agreement said you had to hand over your first born child / pet dog / grandmother in the event of a positive doping test then this agreement is debatable under the law. So whatever the terms you sign up to, the question is whether it stands up in a court of law, not a sports committee.

Tintinbike February 16, 2016 at 5:56 pm

Did the UCI not have some rule a few years ago that if you tested positive you had to give up a significant part of your salary? Seem to remember a very young Mark Cavendish being photographed signing with Pat McQuaid.

Not sure if anyone caught has ever paid up?

The Inner Ring February 16, 2016 at 6:07 pm

Yes, it wasn’t worth the paper it was written on; perhaps it was only conceived as a PR stunt before the race. See the reply to J Evans below for more.

Eskorrik Asko February 17, 2016 at 5:51 pm

I believe that for such a rule to be effective it would have to be a clause in the agreement between the rider and the team – but if we don’t choose to take the naive view, it would be quite absurd: first a team pushes or nudges a rider towards using a prohibited substance and then not only washes its hands off a positive test result but threatens to send the bailiffs after a rider who is unable to pay back what he now owes the team.
Besides, I think that it would be more effective if there was such a clause in the (more or less lucrative) sponsorship contracts riders have. In some sports there already are such contracts that have sttood the test of being contested in a court of law.

J Evans February 16, 2016 at 5:52 pm

Oh ugh, we’re stuck with all this then.
Better to keep your head in the sand and ignore the whole thing.
Just watch the racing and accept that a few/some/many/most are cheating.
Been doing it since the ’80s.

The Inner Ring February 16, 2016 at 5:57 pm

A non sequitur? Vinokourov signed an anti-doping charter before the 2007 Tour de France: worthless. He was thrown off the race days later for doping.

The CAS ruling on the charter, the “Rider Commitment” was scathing:
http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/1458-PA.pdf

KGB February 16, 2016 at 9:57 pm

For a contract to be enforceable there has to be some sort of exchange of value. With your suggestion the UCI would need to provide something to the riders and the riders provide something to the UCI in return. It is possible that the UCI could exchange ‘being allowed to race’ with the riders providing ‘racing’, but I suspect courts would want something more than this. The UCI might have to pay riders to race.

DMC February 16, 2016 at 10:19 pm

Consideration (eg. the exchange of value) is already provided – UCI receives a license fee in exchange for the right to race at UCI sanctioned races. Both parties are receiving something.

DMC February 16, 2016 at 10:21 pm

Sorry, to further explain, in order for a legal contract to be valid, monetary consideration only has to travel ONE-WAY. As all racers pay for their license – even if they’re professional – the contract is valid.

RonDe February 17, 2016 at 2:42 pm

“I think it’s fair to circumnavigate the legal system(s) in the case of a sport”

Hilarious.

Jonhard February 16, 2016 at 6:15 pm

Indeed, it’s not just about agreeing to be bound by all UCI rules because it’s not always possible to “contract out” of legal rights – some are so basic that contracts to waive them are not enforceable on policy grounds, which I think is quite sensible in the real world. A court might be quite happy to uphold a ban for something an employee has done, but to prevent someone from working because of the actions of a colleague is a different sort of thing.

Should a junior team member be forced to sign up to collective punishment when they join pro ranks? Maybe, maybe not… the point is that it is a much more difficult area legally than the idea of banning someone for what they have done.

Another interesting article from INRNG.

Othersteve February 16, 2016 at 6:28 pm

Thanks for an informative and interesting subject.

I understand that the EU has employment laws which are different then say the US or Australia.
Do these differences play into the difficulty of which we debate. USADA vs WADA/UCI.

Just goes to show when every $$ is involved it makes cycling less interesting.

channel_zero February 16, 2016 at 6:48 pm

The IOC sports work very hard to ensure sports administration is handled outside criminal justice systems.

This subject is really “Tale of Two Cities” in scale as some athletes are given every possible exemption (Alberto Contador’s suspension amounted to an off-season penalty) and others vanish from the World Tour. (Francisco Mancebo, FuYu Li)

J Evans February 16, 2016 at 7:01 pm

Contador was stripped of a Tour and a Giro. (And there have to be a lot of doubts as to the riders those titles were handed to.)

DMC February 16, 2016 at 7:09 pm

In the long run WADA/UCI’s been pretty decent at punishing those who were caught – the list of riders who lost titles, stature and were banned includes LA, Contador, Valverde, Riis, etc. Hardly evidence that the most famous riders were given exemptions.

channel_zero February 16, 2016 at 8:15 pm

In the long run, we are all dead.

Armstrong still has officially never tested positive by the UCI. What about all those riders who left Wiesel’s USPS squad then tested positive?

Contador would have never tested positive if it weren’t for Seppelt. Even then, he raced while his case wore on. Most others have been excluded from racing once sanctioned.

The curious case of Gregory Bauge is unique in that the FFC seemed to align his sanction with the off-season, then the UCI took exception to his sanction.

Tom Danielson. Is he sanctioned yet?

You can go on and on with the mysterious workings of anti-doping sanctions.

channel_zero February 16, 2016 at 8:18 pm

Let’s not forget nice guy Chris Horner’s totally suspicious profile from the Vuelta never testing positive.

DMC February 16, 2016 at 8:36 pm

Ultimately Lance was found guilty – enough said. All of the previous garbage doesn’t matter if he was ultimately found to be guilty of doping and then sanctioned. Regarding all of your other items – agreed issues do exist with the system, no one said it was perfect, but it’s still 1,000 times better than any other athletic anti-doping system.

I only said that it ultimately caught many high profile athletes. Your first comment claimed the system sucks and that it only sanctions no-name riders.

J Evans February 16, 2016 at 11:00 pm

True, the UCI’s record is atrocious: most of the major doping cases in cycling have been brought because of others – apart, as you say, from the ones who were Armstrong’s rivals.
(It was only your description of Contador’s punishment that I disagreed with – the punishment was fine; not the UCI’s behaviour.)

Vedrafjord February 17, 2016 at 2:43 pm

Let’s see:
LA: the UCI overlooked the 1999 cortisone positive, the 2001 EPO positive, released a whitewashed report after the 2005 retests and tried to claim USADA didn’t have the authority to ban him
Contador: UCI sat on his positive until someone in the lab leaked the details to German media
Valverde: Only banned due to the persistence of CONI who matched a blood sample with the Puerto bag
Riis: Retired due to injury, never sanctioned by the UCI

CM February 16, 2016 at 6:49 pm

It seems to me the UCI regulations are its laws to which its members subscribe and agree in being members and to which licensed riders subscribe and agree under private agreement.

The UCI is an international body and, like all bodies and states, it is to be considered subservient to international law. But otherwise the UCI regulations may not conflict with statute law of the various jurisdictions in which the UCI carries out its activities. The biggest problem of contradiction might be in the matter of employment law. The UCI’s strongest sanction is to ban participation in its activities, but while on the one hand it may be proper to withdraw its invitation, access and support in defined circumstances, on the other hand its licensed riders are professionals whose livelihoods depend upon their access to UCI supported activity.

In the Katusha case the UCI managed to engineer a situation whereby a doping violation was to be considered of insufficient moment to trigger the UCI’s own rules at all [for the 28 man team] when the same breach is sufficient to trigger a 4 year individual ban from employment under obligatory, international WADA enforced UCI rules [and in circumstances of a 4year ban for each of two individuals of the team].

The UCI prayed in aid the implied spirit and intention of the rules to argue their manifest provisions did not apply in the particular circumstances. Having established a rule to protect the sport the UCI decided not to apply it to protect a team.

Seen in this way the present UCI management has acted in a way consistent with the corrupt history of its predecessors though maybe without the same motives at all. It may be the UCI is strong enough to accept accusation of incompetence in order to remain fair. But can it be said to be protecting the ethics of the sport if it lays itself so open to accusation of special pleading, particularly when the wise and rational thing to have done was to apply its rules but to impose a minimal, consequential sanction to meet the circumstances of the case?

In the van den Driessche case the applicable UCI rules appear very poor in regard to the rider’s culpability if a rogue bike is simply given ‘presence’ by the team. Such slackness would need to be compensated for by rigorous UCI testing-procedural protocols- such as taking bike fit measurements before dismantling the rogue machine and matching such measurements with other bikes used by the rider; thus to be able to adduce evidence that the bike was indeed intended for the use of and by the particular rider etc. The UCI rule as it applies to the team, on the face of it, is much stronger. But in this case the UCI is also in a particularly embarrassing position because the team in question is nominally the Belgian national team, not the rider’s ‘usual’ trade team. Thus the whole national team and all the riders capable of being chosen for it, should be banned for a minimum of 6 months if the rule is triggered in this case.

AndyRaff February 16, 2016 at 7:07 pm

‘Launched more appeals than Bono’

Had me chucking anyway.

peloton.pl February 17, 2016 at 1:40 pm

+1

AndyRaff February 16, 2016 at 7:10 pm

*chuckling

Francisco February 16, 2016 at 9:48 pm

‘Unbeaten’ but quite burned – in the courts and in that picture.

GF February 16, 2016 at 10:32 pm

Inrng, on the basis of your article do you feel that the UCI has been aware that mechanical “doping” has been going on for some time but they have been too afraid to do anything about it given the person(s) doing it would have had the wealth to challenge and so they selectively chose a lower profile cyclist to prosecute to establish the principle first?

If so, and given your reasonableness and impartiality in these sorts of posts, it does put the names of previous culprits being banded about much more plausible!!!

Yet another great article, measured, rational and thought-provoking.

The Inner Ring February 16, 2016 at 10:38 pm

Put aside conspiratorial thoughts of the UCI deliberately not catching someone for a moment and if they caught any rider, even the the most wealthy and powerful, they’d be able to prosecute them and surely obtain a conviction. It’s only the length of the ban that could be tested by their lawyers.

ebbe February 17, 2016 at 3:02 pm

It is theoretically certainly possible the UCI knows a lot more is going on, and went for the “easy case, with least resistance” to set an example, but I’d say: If this were true, then the UCI sort of screwed this one up: They would have had a much better (easier) case catching a high level rider actually using a motorised bike than catching a low level rider not using it 😉

An alternative (conspiracy) theory is that they did not want to damage the sport too much, so they went for a low level and young rider. In this theory, catching (to name a few CX’ers, but same would go for high profile road racers) van Aert or van der Poel would ruin the sport, while catching Van Den Driessche would serve as a warning against those guys to stop it.

Both are (conspiracy) theories that can not be (dis)proven one way or another . Fun to speculate over in a bar over a few beers with your mates, but not to be taken too seriously as long as there is no evidence.

DMC February 17, 2016 at 4:13 pm

Exactly, these are purely theories based on very weak evidence.

I think if high profile riders were really using engines, it would be like the past generation of EPO users. Meaning, that there were so many whispers of what is actually going on that it was common knowledge. By the end of the Lance years, most fans knew he was using EPO – similarly to the late 90’s/early 00’s, most fans knew that the other top GC riders were using EPO because it was impossible to hide 100%.

If Fabian used motors, it would be nearly impossible to hide. Other than that youtube video, is there any other evidence of motor usage?

The Inner Ring February 17, 2016 at 4:22 pm

If you want to play conspiracy theories then the UCI would be unlikely to catch someone at “their” World Championships. They own the TV rights and derive a lot of income from this, so any negative publicity is bad for business. There’s even some special rules in the rulebook about riders under investigation not allowed to ride the Worlds even if they can do any other race in order to protect the Worlds/UCI (this rule flushed out Tiernan-Locke who was dropped from the British team because he was under investigation but the story was not public).

DMC February 17, 2016 at 5:03 pm

Yeah, that would be the ultimate conspiracy theory on this, but there’s no evidence it happened – or even whispers that it happened. The thing about cycling is that everyone knows the secrets, as the sport is under a microscope at all times.

Was a good move for the UCI to jump at their suspicions of Femke’s bike before she used it in the race. For once a race with a doping influence was not raced with that doping presence. Dopers are usually caught after the race, which means that the race itself was influenced by that rider and no mater what you do to strike the rider from the records, they still had a huge influence on the race.

It would’ve been way worse if Femke was allowed to create the winning break or something on her moped. As it was, she was riding at her normal abilities, albeit under a blanket of fear as she must have known her secret was about to be blown wide open!

HWSB February 17, 2016 at 12:30 am

Some lovely bits of lingo and turns of phrase in this post. And very rational and interesting too. Nicely done, thank you.

Cedrik February 17, 2016 at 4:04 am

He “thought this piece would bore most people” but forgot his readers are not most people. Did Femke’s bike have her race number on it?

SamA February 17, 2016 at 10:21 am

CX bikes don’t have race numbers

Bene February 17, 2016 at 9:52 am

Great perspective. It reminds me of the diminimus principle where the tiniest infraction, with no benefit, or risk of harm to someone else can go unpunished (eg. Speeding by 1kph on the a deserted motorway in perfect conditions).

I’m not so sure we should think about the modern (Cookson) uci like it has a conscious mind and might seek to protect itself in the cases it does and doesn’t take. Unlike the old days, it now has an independent disciplinary commission. We don’t have a single dictator at the top with human insecuritities worrying about their image or self preservation overseeing doping, suspensions or prosecutions. Cookson delegates the decision making to independent people qualified to make the decisions.

When new laws first go through the courts it is normal to look at the intentions of the lawmakers when considering how to interrpret the provisions if they either seem disproportionate or are unclearly written. For EU law you go back to the Eu directive that said what the local law should say. For, say, UK law we go back to what was said in Parliament when it was being debated. (The Uk Parliament publishes everything said in the law writing debates through ‘Hansard’.)

For the disciplinary commission to go back to the UCI commission that drafted the rules for collective team suspensions to check what was intended during the drafting of the provision is entirely normal and is what should be happening. Flaws in the drafting of the rules can, and will, be improved with time to better fit with the intentions of the rule makers when drafting the provisions. That’s exactly what’s occurred with Katusha. It will now be interesting to see how the Disciplinary Commission deals with motors, whether the rules needs clarifying (although the way the rules include any bikes on the race periphery are very well written to dismiss the predictable “I didn’t use it” “it’s not my bike it was in my pit / on my team car by some random thing for which I bear no blame” excuses).

ebbe February 17, 2016 at 3:07 pm

Absolutely true!

dave February 17, 2016 at 11:46 am

in UK law a Criminal Attempt carries the same sentencing power as the full offence (under the Criminal Attempts Act), as does a Conspiracy offence (Criminal Law Act). Legal pedantry which doesn’t detract from the wider point of your article (and sentencing guidelines which the judges refer to will include the role the offender played as severity/mitigation, so the ringleader of a drug supply conspiracy would receive a higher sentence than a bit player and is effectively the proportionality element you refer to).

I’ve been keeping an eye on the Pechstein case, as I expect have many governing bodies, as it could have huge implications if the courts find in her favour.

JT February 17, 2016 at 1:25 pm

Speaking of grey areas… can anyone confirm how to correctly capitalise Dutch / Flemish names? I was always led to believe that ‘Femke van den Driessche’ and ‘Van den Driessche’ (if writing surname only) is correct? So by the same rule… ‘Kristof de Saedeleer’ and ‘De Saedeleer’ would be right, capitalising the first letter of the surname if using surname only? Not meaning to be picky INRNG, genuine confused by it 🙂

Larry T. February 17, 2016 at 3:12 pm

I wondered how long before you made a reference to the Pechstein case. If she prevails CAS becomes pretty much a waste of time. Sadly, if the rest of the competitors REALLY cared about cheating, these people who sign documents agreeing to play-by-the-rules and then lawyer up when caught doing the opposite would (and should) be ostracized from the sport. After a few instances of an unrepentant cheater rolling up to the line to find the rest just refuse to compete, the problem would be solved. The cheater would quickly be forced to accept that SPORT can only be fairly played when competitors agree on what is a totally arbitrary (which is why the courts and legal systems should STFU) set of rules. Want to ride around France by yourself wearing a yellow shirt? If nobody else is racing with you it’s a pretty hollow victory.

SArover February 17, 2016 at 3:56 pm

The Contador case was a shambles legally and factually.

No rider past or present have ever had their blood tested to the degree that Contador’s was.. 0.00000001 pico grams positive..

Only a handful of labs in the world could detect that small a degree of a positive, yet Contador was found guilty on the basis that an Athlete bears responsibility for what enters his system.

So if as CAS said, it was a contaminated food supplement, then only if Contador had access to these handful of Labs that could detect the contamination would he have been able to actually detect it.

That he clearly had no access to these labs prior to ingesting a contaminated food supplement helped him not… but he still has the responsibility for it??

Science was ahead of the law on this one and one of the greatest Grand Tour riders in the history of the sport has his reputation in shatters and is stripped of 2 Grand Tour victories including one when he tested clean despite being tested day and night – Giro 11.

Shambles

Larry T. February 17, 2016 at 6:37 pm

Fair enough, but don’t you think his cockamamie “It was the Spanish steak” excuse made things worse? Didn’t he also have the option of taking the penalty when announced, instead of dragging the whole thing out, meaning his sanction would have been completed sooner? That sort of makes the “tested clean despite being tested day and night – Giro 11” debacle not just science. When he was allowed to race there I suggested they’d better take double awards photos everyday, one with Pistolero in the Maglia Rosa and another with whoever’s in 2nd on GC. As bad as that was for Contador, I can’t imagine Michele Scarponi was thrilled with the situation either.

Anonymous February 17, 2016 at 10:36 pm

Clenbuterol has been widely used in meat production all over the world. I don’t recall the exact facts any more, but I know that it had been abused in Spanish beef production and was an issue.

He may be/have been a doper, but maybe he was actually innocent and was just defending himself? I’ll bet there are more than a few pedestrians who would light up with bigger numbers than Contador. You have a habit of conviction by opinion.

As to Scarponi, he was suspended in ’12 for working with Ferrari, so I’m not so sure he’s lily white.

DMC February 18, 2016 at 1:41 am

Alberto may have been innocent of clenbuterol, but I strongly suspect that he doped at some point in his life. Keep in mind I’m saying this without any proof!

DMC February 17, 2016 at 6:52 pm

Agreed, messy situation, and the end result didn’t really do anything to satisfy any of the parties.

With regards Contador’s reputation – wasn’t he initially named in Operation Puerto? And, didn’t he ride for ONCE/Liberty Seguros? I’d think this was a bigger hit to his reputation than this latest issue.

Larry T. February 18, 2016 at 10:05 am

http://velonews.competitor.com/2007/07/news/on-the-list-off-the-list-alberto-contador-and-operacion-puerto_12964
Il Pistolero’s been unfortunate in many ways, but on the other hand one wonders what he’s been able to get away with over the years? Despite his allmost continually being involved with nefarious characters in the sport, but he’s been pretty much teflon when it comes to big-time allegations of cheating.

DMC February 18, 2016 at 3:39 pm

Agreed – he has been very prone to major and official allegations. It’s just one of those situations where WADA can’t prosecute every rider from the past.

My assumption is that he’s gotten away with a lot. Look at the team he was a stagiare and grew up with (ONCE/Liberty Seguros), and then jumping to Johan Bruyneel’s organisation.

Anonymous February 18, 2016 at 5:57 pm

It seems that you didn’t even read the article that you linked.

It states that he was on the Puerto list by mistake and that he’s never worked with anyone but team doctors.

DMC February 18, 2016 at 6:09 pm

The article isn’t proof Contador didn’t dope at Fuentes’ clinic or elsewhere.

Nothing Contador says in this article is proof he didn’t use PEDs. Besides, Contador refused to compare his DNA to the blood bags.

I’m very skeptical that Contador was clean.

Larry T. February 18, 2016 at 7:23 pm

Despite my habit of ignoring posts from those who hide behind “Anonymous” rather than put their name on their comments I’ll reply:
YES, I did read the article. I included the link so others could read it and make their own conclusions/understand how Il Pistolero’s been linked (fairly and also unfairly/mistakenly) to cheating for themselves. As to your final point, we all know that “team doctors” are never, ever involved in nefarious doping practices. Does the name Eric Rijckaert ring a bell?

DMC February 18, 2016 at 7:32 pm

Larry – haha, funny about team doctors. In fact Contador claiming only to have ever worked with team doctors might be the statement that confirms his doping!

Name the team doctors of ONCE, Liberty Seguros and Johan Bruyneel’s organisations and you’ll see that Contador’s statement is one step away from a confession.

Anonymous February 17, 2016 at 10:26 pm

Actually, I believe, at the time there was only one lab that had such sensitive equipment.

Andrew February 18, 2016 at 5:57 pm

It was indeed a shambles, but not quite in the way that you state. There are a number of articles out there in cyberspace about the CAS hearing and some experts’ interpretation of the evidence and conclusions. They’re well worth a read.

The CAS panel decided on an explanation for the positive result that neither the prosecution nor the defence had put forward. I’m not entirely sure how that happened, or why.

Here’s a theory. Bertie transfused blood and took the precaution of getting it tested to make sure it wasn’t contaminated. What he didn’t realise was that his lab wasn’t state-of-the-art, so he thought he was in the clear. Then a sample went to Germany and the rest is history…

Incidentally it is rumoured that the authorities (either WADA or the UCI, I’m not sure which) were all lined up to ping Bertie for blood transfusions, but the clenbuterol positive came up first so they couldn’t pursue it.

My own view: the process was flawed but the result was not so bad. There’s no way Contador was riding clean earlier in his career and it’s right that his reputation should have be blemished.

DMC February 18, 2016 at 6:19 pm

Exactly – your theory sounds about right, or so I suspect.

I also agree with your conclusion, the result isn’t ideal, but it works.

As well, continuing on with your theory – to what level are today’s riders being prepared? And what precautions do they continue to take to avoid detection?

Joel February 18, 2016 at 11:55 pm

Given the plasticiser found in his blood on that test, not allowed in court…

It isn’t rocket science really.

CM February 19, 2016 at 10:44 am

As an addendum to the discussion, one conclusion to which seems to be that if any organization is framing governing rules, it should contemplate how well those rules would stand the most rigorous test of a common court of law, even if much wider common principles are well beyond the parochial intent of the rule:

There is, it seems to me, an interesting light shed by yesterday’s ruling by the Supreme Court in the UK.

On 18th Feb 2016 the Supreme Court in the UK concluded that the concept of Joint Enterprise, which has been a principle in British law for some 150 years, had been wrongly interpreted by the judiciary for the past 30 years or so since an erroneous court decision in 1984.

The principle has been used in cases of gang murder where the identity of the person who struck the fatal blow is unclear. It enables a court to hold all those present in a murder as culpable.

Lord Neuberger said that it would no longer be sufficient to show a person present merely had ‘foresight’ that another would kill; prosecutors would need to show the person’s ‘intent’ to encourage or assist the killing.

At the same time, the Supreme Court judges upheld an appeal by a convict jailed for life for his part in a murder committed by his friend, who carried out the killing inside a house while the appellant remained outside the premises.

If one bears in the mind the present case of Technological Fraud. Of course one accepts that UK jurisdiction does not run; that UK common law precepts do not apply in much of European law; that Swiss law may be complicated and un-persuaded by UK law, and that the Femke Van den Driessche case is in not murder. But it seems to me, the point of principle is still interesting in the light it sheds on UCI Rule 12.1.013 that implicates the rider in mechanical fraud. In short, if the concept of Joint Enterprise applies in that Rule (as the UCI seems to intend) then on the interpretation enunciated by the UK Supreme Court, Ms Van den Driessche would have, in the known circumstances, a defence not allowed for in the Rule and clear legal challenge to that rule as it stands.

PT February 21, 2016 at 9:47 pm

Thanks for taking time to offer a considered opinion.

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