The Dope S Process

The Dope’s Process:

Athlete’s Rights and the Rise of the Non-Analytical Positive

by Chat Ortved

11/1/2006

To dope the racer is as criminal, as sacrilegious as trying to imitate God; it is stealing from God the privilege of the spark.

-Roland Barthes

Abstract

The 1998 Festina affair at the Tour de France, followed by the BALCO scandal in the United States and now Operacion Puerto in Spain, testify to the rise of a new front in the fight against doping. This front, on which anti-doping and often state authorities bust suppliers of performance enhancing drugs and thereby implicate any athlete who happens to appear in a related Rolodex, has changed the nature of doping accusations. Alleged “non-analytical positives” and disciplinary action by teams and sponsors in the wake of suspicions and implications are becoming the norm. Questions have thus arisen regarding an athlete’s rights in the absence of a drug test, including questions of confidentiality, the standard of proof in hearings involving non-analytical positives, and what procedural rights an athlete implicated in a scandal but awaiting potential charges possesses.

An implicated athlete fired by his team with no hearing and no chance of appeal suffers a de facto ban that could never be imposed by a governing body or upheld by the Court of Arbitration for Sport without significant procedural protections. While the sporting community and all who admire and watch it should applaud the development of new and effective tactics in the fight against doping, these tactics must work in conjunction with, and with respect for, the rights of athletes, whose livelihoods and reputations depend on the consistent application of fair procedures. This paper argues that in light of the rise of “supplier busts” and the resulting increase in alleged non-analytical positives, confidentiality rules need amendment, and that while other procedural protections within the official hearing system are at least in theory sufficient, these protections should extend into the contractual relationships between athletes and their teams.

Table of Contents

Table of Contents 3

Introduction: The Land of the Lotus Eaters 4

Trois Contes: Analyticals, Non-Analyticals and De Facto Bans 11

I) The Analytical Positive 12

Audi Alteram Partem and Appeals 13

Presumption of Innocence 16

Confidentiality and Public Disclosure 18

II) The Non-Analytical Positive 20

Procedural Rights in a Non-Analytical Positive Hearing 22

The Standard of Proof 24

Conclusion on Rights Within the Hearing System 28

III) The Hamilton Affair: A Tale of Two Citings (Official and De Facto Bans) 29

Adapting the Regime to Increased Non-Analytical Doping Implications 35

I) The Inadequacy of Article 14.2 35

II) Bound to the Anti-Doping Rules by Contract 38

III) Wallace and Increased Damages 45

Conclusions 50

Introduction: The Land of the Lotus Eaters

The Tour de France As Epic, the essay by Roland Barthes from which comes the quotation on the cover page of this essay, examines the epic elements of that great and grueling race: the ritual, the suffering, the disappointment, the honour. It never mentions, however, or perhaps forgets to mention, the voyagers left in the land of the Lotus-eaters. The number of athletes, in every sport, who take or have taken performance-enhancing drugs remains impossible to guess. In light of major doping scandals starting with the Festina affair at the 1998 Tour de France and continuing through the Bay Area Laboratory Cooperative (BALCO) scandal in the United States in 2003 and Operacion Puerto in Spain in the summer of 2006, the prevalence of drugs in sport may extend far beyond what the pittance of positive tests in the last forty years implies. And worse still, these scandals suggest that doping may not only be widespread, but deeply ingrained in an intricate system of suppliers, doctors, coaches and athletes.

Sports authorities conducted the first drug tests at the 1968 Winter Olympics in Grenoble.[1] Between then and 1996, from a population of about 54,000 athletes, only 52 positives turned up in Olympic sport.[2] It seemed, apparently, that there were but a few bad apples on an otherwise healthy tree. Then, on July 8, 1998, three days before the start of the Tour de France, customs officials in northern France pulled over and searched the vehicle of a masseur for the Festina professional cycling team. What they found sent the cycling world into shock, anti-doping authorities into action, and the media into a frenzy: four hundred bottles of various doping products, sparking an investigation of not only the athletes, but their trainers, coaches and doctors.[3] Seven of the nine team members admitted to using drugs, and team leader Richard Virenque, then one of the biggest stars in French cycling, admitted to doing so two years later at trial.[4] The masseur, Willy Voet, later published a book, entitled “Breaking the Chain,” which contained serious allegations of the endemic and systematic use of drugs in the professional peloton.[5]

According to sports critic John Hoberman, “it was the 1998 Tour de France scandal that catalyzed the formation of the World Anti-Doping Agency (WADA),” which began operating in January of 2000.[6] Born of an international treaty known as the Copenhagen Declaration, WADA’s mission was to develop and promote the World Anti-Doping Code (the Code) and thereby “ensure a harmonized approach to anti-doping in all sports and all countries.”[7] The Code would create harmonization by requiring its signatories, including international federations such as the International Cycling Union (UCI) and International Association of Athletics Federations (IAAF), to “adopt and implement anti-doping policies and rules which conform to the Code.”[8]

WADA was needed, for while the Festina affair was the first major doping scandal to implicate athletes outside the traditional realm of testing, it was not to be the last. In the summer of 2003, “two dozen armed agents burst into the Bay Area Laboratory Co-Operative,” now infamously known as BALCO, following a tip sent to the US Anti-Doping Agency (USADA), as if in a Raymond Chandler novel, in the form of a syringe filled with traces of a previously unknown steroid.[9] The wake of BALCO and the reams of evidence that poured from it have rippled through many sports, implicating some of the biggest stars in track and field, baseball and American football, several of whom have either admitted to doping or been found guilty on the evidence presented to tribunals, including Kelli White, Chrystie Gaines and Tim Montgomery. The story of Montgomery, told below, explains the contribution BALCO has made to doping authorities’ powerful weapon beyond testing, the “non-analytical positive,” or proof of doping in the absence of a positive test.

BALCO showed that few sports are free of drugs, but nowhere has doping been more public, and the repercussions of non-analytical positives felt more profoundly, than in the professional peloton, the world of professional cycling. In May of 2006, Spanish daily El Pais reported a raid by Spain’s Guardia Civil on offices and labs connected to Dr. Eufemiano Fuentes, former team doctor for the Kelme and Once teams, and Dr. José Luis Merino, head of hematology at a hospital in Madrid.[10] The raid turned up a shocking array of products, including a refrigerator “filled with 90 bags of blood or concentrates of red blood cells, frozen and identified with a number and date,” as well as the blood booster erythropoietin (EPO), human growth hormone (HGH) and anabolic steroids.[11] Manolo Saiz, the manager of the Liberty Seguros Wurth team, was also found with sixty thousand Euros in cash and a cooler stuffed with doping products, allegedly after meeting with Dr. Fuentes.[12] The fallout from the raid, dubbed Operacion Puerto, was predictable, widespread, and remains ongoing. Authorities found an accounts receivable book with a list of names and numbers that corresponded to the bags of blood in Fuentes’s fridge, including “Hijo de Rudicio,” or “Son of Rudy,” allegedly referring to Rudy Pevenage, the mentor of former Tour winner and current hopeful Jan Ullrich, and “Birillo,” allegedly a nickname of the nascent superstar Ivan Basso.[13] Based on this and other circumstantial evidence published in the Spanish media and sent to team managers, fifty eight riders were implicated in the scandal, two teams were barred access to the Tour de France by the race’s organizers, and nine cyclists already signed up for the Tour were either suspended or fired by their teams after evidence was released to the UCI, including Ullrich and Basso.[14] As of the beginning of January, 2007, no implicated rider has yet tested positive or admitted to doping.

These three supplier busts suggest that for anti-doping authorities, razing the ganja field has proved more effective than busting the occasional pothead. Catching suppliers at Festina, BALCO and through Puerto has been a fruitful exercise for anti-doping authorities, implicating more cheaters and seizing more supplies than would ever have been possible through testing alone. And while it is beyond the scope of this paper to comment on the value of drug-free sport, it must begin from the premise that blocking supply chains and expelling dopers from competition is fundamentally good and right, so long as that expulsion comes about by the proper means. Competitive sport in general stands for so much more than bread and circuses, and doped athletes, while perhaps adding to the spectacle, detract from that very essence that makes sport superior.

However, if we, as a society or a civilization, want to pursue drug-free sport, we must do so in a way that respects the rights of all parties involved. The emergence of WADA and the movement towards harmonization of anti-doping policy throughout the sports world, as well as the increased prominence of the Court of Arbitration for Sport (CAS) as the highest authority in doping cases, have done much to protect the procedural rights of athletes charged with a doping violation or implicated in a doping scandal. Nonetheless, with the rise of the supplier bust and the resulting increase in alleged non-analytical positives, many athletes now face unofficial sanction beyond the scope of the hearing system that adheres to the Code’s procedural guarantees. Further, the rules of confidentiality that protect athletes from public disclosure of an initial suspicion do not yet extend far enough for athletes implicated in a doping scandal. The stories of athletes such as Tim Montgomery, Tyler Hamilton and Jan Ullrich told in the following pages reveal a worrisome potential for de facto bans for athletes who gain their livelihood from competition and whose reputations rely on due process and respect for confidentiality that does not always occur.

In summary, therefore, just as doctors who dope their athletes should be disciplined by their medical commissions, as well as by the criminal authorities depending on the criminal law in their jurisdiction, so should athletes face consequences for breaching the rules of their chosen profession. But teams should not be able to do by the back door what governing bodies, international federations and doping agencies cannot do by the front by virtue of procedural guarantees. And confidentiality rules should apply equally to alleged non-analytical positives as they do to alleged positive tests. If athletes are to be tainted by suspicion, lose their livelihood or have holes cut in already short careers, be it by official sanction or dismissal from their teams, they ought to be afforded the full panoply of protections due to any other professional person. This essay, in telling the stories of athletes implicated in various ways in doping scandals, examines why these procedural protections should apply equally, regardless of whether a sanction comes by analytical or non-analytical positive, within or without the official sanctioning process, and makes suggestions of how those protections might be applied.

Trois Contes: Analyticals, Non-Analyticals and De Facto Bans

In examining the context in which procedural rights, including rights to confidentiality, should be granted to athletes who face being barred from competition, this section examines three different scenarios. First, it explains in Part I the framework of procedures surrounding a positive drug test, the traditional means by which doping authorities and sports federations and governing bodies sanction athletes. This testing framework, set out explicitly in the Code, provides a starting point for a comparison with the framework surrounding the relatively new concept of the non-analytical positive. The story of runner Tim Montgomery in Part II displays the procedural protections afforded athletes who have not tested positive, but who have been brought within the official sanctioning process by external or circumstantial evidence.[15] Finally, by comparing the procedural rights of athletes within the official sanctioning process with those of athletes awaiting charges and languishing in unemployment, the stories of Tyler Hamilton and Jan Ullrich in Part III reveal the reality of de facto sanctions that come without due process. These sanctions, referring to dismissals for breach of contract when an athlete is suspected of doping, do by the back door what international federations and anti-doping authorities cannot do by the front. The final section, entitled “Adapting the Regime”, makes suggestions for how athletes’ rights might be made more appropriately robust in light of an increase in alleged non-analytical positives, and suggests why the same procedural protections that apply within the official sanctioning process should also apply without.