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.
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.