The Explainer: Get the UCI out of the doping-control business

The TygartBadger don't give a shit

Get rid of self-policing. It’s time to give doping enforcement some real teeth.

Dear Explainer,
I’ve been following you for years, through your time at VeloNews, through your illness last year and now at Red Kite Prayer and LiveUpdateGuy.com.

Usually, I get what your saying, but I was a little confused by a Tweet you recently made urging the sporting world follow “the U.S. model” in doping control and enforcement. One of the responses seemed to imply that you want all sport to follow the example of the NFL, NHL and Major League Baseball.

I know the 140 characters of the “Twittersphere” isn’t exactly your cup of tea. Just look at that 2000-word-+ monster you wrote last week. (You must be a lawyer, Mr. Pelkey. It’s the only profession where someone writes a 100-page treatise and still has the nerve to call it a “brief.”) So, I’ll ask it here: Is that true? Are you a fan of American professional sports’ doping “controls?” If so why?
– Amanda

Dear Amanda,
Man, are you ever right about my being wordy last week, Amanda. One of my friends compared the column to an old guy sitting on a porch ranting about anything and everything.

“And another thing dammit ….”

Of course, in my own defense, I was actually writing about a 200-page “reasoned decision” and more than 1000 pages of supporting documents. It just begged for wordy.

Anyway, the short answer to your main question is “no.” The longer answer to your main question is “Hell no!”

Now for the really long answer: Anti-Doping programs in big American professional sports – the NFL, the NHL, MLB and NBA – are a joke. Even after “reform efforts,” like the 2007 release of the “Mitchell Report” on baseball, the core problem for all of those sports is that they have left control and regulation of anti-doping efforts to the sports themselves.

It’s a classic example of “self-policing.” The banking industry should serve as an example of how that doesn’t work.

I know, I know, one should never use Wikipedia as a primary source, but I can’t help but quote one small passage I ran across recently. Under the sub-head of “Self-Policing” on the Conflicts of Interest entry someone wrote an elegant and concise description of the problem:

Self-policing of any group is also a conflict of interest. If any organization, such as a corporation or government bureaucracy, is asked to eliminate unethical behavior within their own group, it may be in their interest in the short run to eliminate the appearance of unethical behavior, rather than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and correcting them. An exception occurs when the ethical breach is already known by the public. In that case, it could be in the group’s interest to end the ethical problem to which the public has knowledge, but keep remaining breaches hidden.”

Since this wasn’t footnoted, I am left to applaud just you, anonymous Wiki contributor, for a terrific summary of the UCI’s treatment of drugs in general and Lance Armstrong in particular.

While the LieStrong scandal isn’t really a new story, it would never have been put under the glaring light of an official inquiry had it not been for the “American model” of which I spoke – errrr, tweeted. The structure now followed by the U.S. Olympic Committee, its affiliate national governing bodies and the U.S. Anti-Doping Agency is really one the entire sports world should consider. Namely, handing off the responsibility for enforcement of doping rules to someone who really doesn’t give a shit about what nailing a guilty party will do to the vested interests in the sport.

Try, for a moment, to imagine what would have become of the Lance Armstrong case had American cycling been operating under the anti-doping rules that had been in effect prior to 2000.

At that time, the responsibility for doping controls and enforcement fell to the USOC and to individual governing bodies, whose own interests may have naturally run counter to strict enforcement, particularly when it came to high-profile riders.

It was in October of 2000 when the U.S. Anti-Doping Agency began operations. As part of its mission, USADA established a set of multi-year contracts with the USOC and individual national governing bodies to assume full responsibility for the management of anti-doping programs, including testing, results management and enforcement.

In essence, the current U.S. model is what most hoped would be the structure adopted at the 1999 World Conference on Doping in Sport, namely taking the IOC and its affiliate governing bodies out of direct participation in anti-doping efforts.

After two days of speechifying and debate, the conference attendees – mostly IOC members, headed up by its aging president Juan Antonio Samaranch – voted to lay the foundations of what would become the World Anti-Doping Agency. The mission of what was then referred to as the International Anti-Doping Agency was “to coordinate the various programmes necessary to realize the objectives that shall be defined jointly by all the parties concerned.”

The so-called “Lausanne Declaration on Doping in Sport” went on to outline duties and responsibilities for the IOC, its national affiliates and the governing bodies of affiliate sports.

The IOC, the (International Federations) and the (National Olympic Committees) will maintain their respective competence and responsibility to apply doping rules in accordance with their own procedures, and in cooperation with the International Anti-Doping Agency. Consequently, decisions handed down in the first instance will be under the exclusive responsibility of the IFs, the NOCs or, during the Olympic Games, the IOC. With regard to last instance appeals, the IOC, the IFs and the NOCs recognize the authority of the Court of Arbitration for Sport (CAS), after their own procedures have been exhausted.

Okay, ignoring the irony of “respective competence,” when this conference had been organized solely due to the 1998 Festina scandal, the problem there was that the IOC, IF’s and NOCs have any role to play at all.

It’s an improvement, but is it enough of an improvement?

As I said, the 1999 Lausanne conference was a direct response to the 1998 Festina scandal. The IOC and the UCI finally had to admit that their half-assed doping control, enforcement and penalties were just that, half-assed.

The creation of the World Anti-Doping Agency improved things, namely in adding a degree of consistency and uniformity to doping penalties. Recall, for example, that the second-placed rider in the 1999 Tour de France was none other than Alex Zülle, who just a year earlier had confessed to using EPO as a member of the infamous Festina team. Absent mitigating factors, he would have received a two-year suspension under the current WADA Code.

But again, harmonization of penalties is essentially meaningless if the enforcement side of things is weak. Under the Code WADA does have enforcement authority, but the international governing bodies themselves have primary authority and responsibility when it comes to enforcement. Therein lies the problem.

Once you get past the whole “Lance-was-a-doper” thing in the USADA report, start looking at some of the supporting documentation. What I found most interesting were comments by athletes who had raised the issue directly with UCI anti-doping authorities and were ignored.

Caught in the whole, ugly trap of the 2006 Operación Puerto scandal, Liberty-Seguros’ Jörg Jaksche, publicly admitted to having used EPO and growth hormone.

In a follow-up to his interview with the German magazine Der Spiegel, Jaksche went to the UCI to bare his soul and offer information about what he knew about doping in the peloton. According to Jaksche’s sworn affidavit released along with the 200-page Armstrong decision:

“… I spent hours talking with the UCI in 2007. I spoke to UCI lawyers, to Anne Gripper, who was then head of anti-doping for the UCI, and to UCI President Pat McQuaid. I wanted to be fully transparent regarding my doping and the anti-doping rule violations of others to fully explain the level of doping of which I was aware and that was taking place on Team Telekom, ONCE, CSC and Liberty Seguros during my time in professional cycling. However, the UCI showed zero interest in hearing the full story about doping on these teams and did not seek to follow up with me.

Moreover, despite my efforts to assist in cleaning up cycling, the UCI attempted to push for two years of ineligibility in my case, and Pat McQuaid told me he’d have liked me to have handled things differently from which I can only conclude he wished I had not been as forthcoming regarding the degree of doping that was taking place in the peloton.

To the best of my knowledge, information and belief, the UCI did not move forward on any evidence of doping that I provided to them.”

Yeah, and if Jaksche had been an isolated case, maybe there would have been some justification in ignoring the lone crazy guy standing outside of UCI headquarters screaming about doping. But Jaksche was not.

Kelme’s Jesús Manzano spoke out in 2004. Filippo Simeoni did so in 2003 and you saw where that got him. More famously, the recently converted Floyd Landis and Tyler Hamilton also spoke publicly about doping. They tried to work with the UCI … but were ignored.

Indeed, in Landis’ case, they turned around and sued the guy. WTF?

No, indeed, it took USADA to use the above confessionals to serve as a launching point and gather a total of 26 sworn affidavits, 11 of which came from former Armstrong teammates. Why couldn’t the UCI have done the same five years ago?

Self-policing doesn’t work

Unless there is a fundamental change, the only time an organization that polices itself will have reason not to ignore such information is when the public relations costs prove to be too high … as is the case right now. As was the case following the Festina scandal, this may be another of those fleeting opportunities to advance the cause of reform a little further in the right direction.

I applauded – and still applaud – the decision to create WADA on the heels of Festina. Now, let’s take advantage of the LieStrong scandal and give the anti-doping some teeth.

Whether or not you buy some of the more outrageous – albeit not incomprehensible – charges of bribes and intentionally suppressed test results doesn’t really matter. What matters is that there is an inherent conflict of interest when the sport is responsible for making tough decisions involving even its most high-profile stars.

No longer affiliated with the governing body, Gripper recently told Australia’s The Age that the UCI would often make exceptions for a rider of Armstrong’s caliber, citing the example of his being allowed to ride in the 2009 Tour Down Under, despite being short of a required post-retirement window in which he was supposed to be subject to doping controls prior to a return to competition.

“I have always said that Armstrong’s influence was a danger in the sport,” she said. “He was allowed to ride in the 2009 Tour Down Under. He shouldn’t have been. Once again, for Lance, special consideration was provided.”

Referring to the problem of doping and to McQuaid, Gripper said “I heard Pat say the other night, ‘We test and test and test as much as we can and send all the samples to the labs and that’s all we can do’.

“Well, it’s not, Pat, there’s lots more that can be done.

“It’s not just about testing because we know in many ways testing is the most ineffective way of eliminating doping … There are so many more things the UCI can do.”

I would suggest that the best thing the UCI can do is to get the heck out of the doping-control business and hand it off to an organization that doesn’t have a direct and vested interest in the outcome.

Who do you trust will put more effort into the pursuit of a doping athlete, particularly when he or she is high-profile and high-profit? Hein Verbruggen and Pat McQuaid or Travis Tygart and Dick Pound?

I’m voting for Tygart and Co.

You?
– Charles


The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

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28 comments

  1. Wsquared

    Well, for starters, lets get rid of due process! It’s a real pan in the ass. I’m sure both Dick and Travis would support that.


    1. Author
      Charles Pelkey

      I am advocating an elimination of a clear conflict of interest. There is a set of procedural rules in the WADA Code. I am not for denying the procedural protections due a charged athlete WSquared. I am for eliminating the inherent conflict of interest that the current structure has.

      Why not, WSquared, actually respond to the argument that was made in the column, instead of raising a peripheral issue? If you have a problem with the procedural protections under the status quo, that’s fine. Leaving the conflict in place or removing it has no impact on that part.

  2. Peter Dedes

    What professional cycling requires is a sea change in the way it does business. One, the UCI, becomes the overarching governing body dealing with sporting rules, the racing calendar and race organizers. Two, there is an independent racers’ union which at its sole interest is in acting to protect riders’ financial, health and sporting interests using the mechanisms of collective bargaining. Teams need to organize in a league format (premier, 1st div, 2nd div) and must bargain with the racers’ union which all riders must be a part of.

    Right now, the arcane aspect of cycling holds it back.

  3. Wsquared

    Charles, I agree with what you say about there being an inherent conflict of interest when a sports governing body enforces their own doping controls. But, that inherent interest is why virtually all major professional sports refuse to give it up. (The Olympics are an entirely different animal.)

    The part in you article that brought me up short was the part about wouldn’t we be better off if we just handed it over to the likes of Travis and Dick. If we are going to overhaul everything, I’d like to see USDAs review process made more fair and equitable along the lines of civil process and put in the hands of a competent technocrat who quietly goes about their business and then brings the hammer down when all the evidence is in and the process runs its course. (That’s not in any way an attempt to absolve Armstrong.) During a crisis, there’s a popular tendency just to let Robespierre take care of it.

    In your article I agree in principle with your contention that the UCI can do more, but if we can’t pry their cold dead hands off doping controls (any more than we can the NFLs or MLBs) what specifically do you propose they do.8 What would you do tomorrow? Obviously, negligence, corruption and outright favoritism should be eliminated, but what would change in the process of future enforcement? I kept waiting for that in your article. I don’t think the answer is to let martinets like Travis and Dick just hang anybody they think are guilty like Judge Roy Bean.

    The real breakthroughs have come in doping awareness and enforcement when governmental authorities have become actively involved eg, Festina, Operation Puerto, and the threat of Federal prosecution (before the case was dropped) in the USA that caused many of the witnesses to roll over on Armstrong. Private organizations don’t have those far reaching powers. Thats why I support civil “sports fraud” laws like they have in some countries in Europe, but that would never happen in a million years in the USA because of sports industry lobbyists who woul never allow it to pass, and a lot of taxpayers would want to pay for it.

    Warts, the UCI, and all, pro cycling has been light years ahead of the major US professional sports in frequency of testing, enforcement, number of big players caught snd punihed and severity of sanctions since Tom Simpson’s death. There are no easy answers here.

  4. bigwagon

    Isn’t there ANYTHING else to write about? How about the latest developments in the Strave lawsuit. That would be more interesting than beating the doping issue to death again, and again, and again…

  5. Wsquared

    Should read “tax payers wouldn’t want to pay for it.” Damn the UCI for making it so hard for me to proof & edit text on my IPhone!

  6. LD

    The doping issue is ALL there is to talk about right now. Because of the climate the governing body has cultivated over the years the great sport of cycling has less credibility than Pro Wrestling. Unless drastic measures are taken on every level with regards to this subject we won’t have the sport to talk about. The fallout has just barely begun.

  7. Evan Shaw

    Staying within the issue of the article. An independent well financed, staffed, and run WADA with legal power, would most certainly be one large step for cyclekind. It would be less costly that running everything through the legal system. It most certainly can have legally sound and balanced lawful procedures subject to judicial appeal for the cyclist.

    However, it will not happen! It is totally controversial with most of the public whether to make doping criminal and subject cyclists to criminal prosecution. It is also expensive. It requires beyond a reasonable doubt level evidence and it is also subject to the certainty that the richest most powerful cyclist, ie., the leaders of the TDF could most always avoid it by virtue of their money and lawyers. WHO do we know that would have evaded even this had it been in place right now? Well didn’t they drop the fed case on LA?

    The UCI loves have this power. It has let them look like cleaning the sport while letting it be dirty and using it to promote the sport.

    Will that be the game again in a different garb? Sure looks like it, witness all the things UCI has said. Just like the days of Festina. Stephan Roche calling temporary mischief the boys were into, all better now, Team Sky, yea! Not.

    So Charles, my thought on this is NO sport world wide is a model for what we want? Tell me if I am wrong and how. I would love to be wrong.

    The problem is that so many things all devolve into doping as a solution for going faster, less down time to injury, not feeling pain, management has an exciting sport and creates myths that athletes are courageous immune to pain and suffering and fans eat this up all the while everyone gets exploited.

    Armstrong and the slew of sponsors 125 million for him, UCI has 28.5 million euros stashed, official report. Bike industry very behind this. That is allot of vortex all spinning onward to continue this.

    Will sports flourish without the doping?

    Joerg Jaksche interview says allot about this. I view it as terribly insightful and helpful.
    at bottom of page

    http://www.abc.net.au/news/2012-10-15/the-world-according-to-lance-key-players/4313246

  8. John in Miami

    @ bigwagon…. The Explainer covered the Strava case in a previous column. Maybe a follow-up is what would be nice (similar to the news story of the former ER doctor convicted of purposely injuring cyclists who were riding on the street where the doctor lived). There was a follow-up there after the trial ended. The Explainer also followed up on the District Attorney or State Attorney who refused to prosecute the well-connected financial planner/broker (the follow-up was news that he had lost his re-election the following year).

  9. bigwagon

    Since the initial lawsuit and article Strava filed a countersuit or counterclaim. That would be interesting to see analyzed by Mr. Pelkey. And then we can wait for the resolution, but there is a good chance it will be settled out of court and we may never get much out of that.

  10. Jimmy

    I have been doing the Strava and am in love with it.
    I am also excited for the climate change in cycling, the climate was cold and I prefer a climate that makes me want to rip off my shirt.

    -Jmac

  11. lfx

    Charles, it seems that there are 2 options – either take the money out of the sport, which is not going to happen (and we see the PED use in amateurs anyway), or make the financial consequences of doping so onerous that the sport polices itself.

    Strangely, for me this involves making the teams the first line of defence against doping. I realize, given the organised doping under team directions that has occurred in the past, that this seems like putting the foxes in charge of the henhouse, however if the teams were motivated to prevent doping before the riders even reached the races (and not letting them race if they thought they were doped)the sport will be in a far better position.

    The teams need to have a share in the TV revenues and advertising of the sport. Most major sports are set up this way in one form or another. The teams need to be financially viable, even prosperous, for the sport to grow. I’m not saying they should run the sport, but they need a share.

    Hand in hand with this redistribution of wealth is to set aside a goodly chunk of the TV revenues to fund anti doping. While this is not done in other sports given cycling’s past it must happen as a cross the sport must bear. The doping poice must be strong and credible, as must the R&D to stay ahead of the dopers.
    Then tie the revenue share to doping. Positives would result in a stripping of the millions in TV and advertising revenues to the team, whether in a multi tiered process or in a one positive and you’re out scheme. The consequences of having a rider testing positive would then be so high that it is no longer a financially viable option to race a rider who is augmented.
    The big hole in this is if a disgruntled employee tries to blackmail or destroy the team with a positive. But is this risk worse than what we have today?
    Ideally, the teams would therefore have to implement their own preventative testing and checking on riders – the days of going off to a remote location and training on your own would be over.
    Cycling funnily enough is in the best position of any sport to implement change. The respective players unions are the biggest obstacle to anti doping controls in many sports. Cycling does not have that problem.

  12. Skippy

    Not getting the weekly update of this series ( the Explainer ) , i went looking for the website . I came up with about 6 or 7 really well written & researched articles . RKP is now more than Charles for me to follow !

    During the past months , i , as a small time blogger have been writing letters to people of the calibre of John Fahey of WADA & Jacques Rogge of IOC seeking to convince them that ONLY an ” AMNESTY for ALL Athletes , past & present ” will move Sport forward . In imposing an Amnesty these Organisations will shake up their structures so as to ensure there is no going back to the complacency that currently exists !

    Reports backed by evidence given under Oath , of Hein receiving US$1/2M , for undisclosed purposes , cause grave concern to All ? Further evidence of Sanctions not imposed in 1997 & 1999 add fuel to the fire ! When reports of Hein stating that he , ” Decides when Sanctions are to be imposed ” , ring more alarm bells ! What is the purpose of UCI , if we are led to believe they are acting against the purposes for which they were created ?

    John Fahey is reported in Velonews , item #261954 , to be considering an ” AMNESTY ” ? This needs ALL , such as yourself , Charles , to motivate by pressure of Public Opinion a positive result , and the setting up immediately of that Body /Org. to control receipt of :
    1/ Disclosures by the Athletes , both Past & Present , of their straying from ” Clean Competition “.
    2/ disclosure of sources of supply & distribution of Prohibited Substances
    3/ Recommendations of procedures to avoid repetition of the pitfalls that the athletes suffered / endured .
    4/ National Governments being asked , to set aside their penal provisions for Doping Usage by Athletes revealing their history , during the AMNESTY PERIOD . Suppliers & Distributors will still continue to feel the full force of legislation .

    EVEN those in the top tier of UCI will need to declare their past misdeeds so as to avoid possible LIFE TIME BANS that should be enforced cagainst those choosing not to cooperate during the AMNESTY ! Phat Mc Q. would declare the circumstances that led to his exclusion from the Olympic Games and Heinous V. would make available ALL matters relating to the questionable circumstances of the ” Nike/Armstrong Donations “!

    With the Amnesty clearing the air , WADA and this Control Body/Org , would be able to separate from National Sport & Int. Sport Bodies , the responsibility for Sanctioning Doping and Sporting FRaud !

    RKP’s article on ” Endemic ” and the comments that resulted , makes clear that too many people have in the past , been fearful of rocking the boat and thus incurring the wrath of others who had beneficially interests in the Status Quo !

  13. WV Cycling

    Anne Grieper sounds like she is a major problem. This is not the first time she has shrugged off dopers/cheats that are willing to come clean:

    VV: Whatever happened to the UCi ‘preventative education’ which you were meant to be involved in?

    JP:”It was strange.

    JP: “I talked with Anne Gripper for almost year before agreeing to participate in the development of the UCI’s “True Champion or Cheat” education program, but then I never heard from her again!”

    SOURCE: http://www.veloveritas.co.uk/2012/10/19/joe-papp/

  14. Ken

    Thanks for the article, it is a little confusing how UCI works and its location. Also accountability. To me, the major problem in cycling is the UCI and US Cycling. They have always encourage the doping. These days, (much like beach volleyball) I really enjoy watching women’s cycling. Seems to be more of a sport. I guess I am from the old school much like Bobby Jones of gulf. There is a sporting way of performing your sport. It is not entertainment. Once people make it entertainment, it’s not a sport. I know a director of photography who shoot two movies for bike companies. One was the Giro. Every stage, he was told to turn off his camera about three quarters into the race because the riders were injecting themselves to pass the doping test. Seems like everyone knew…. Since Dr Strocker and a couple of is team mates had great potential but lost their chance from US Cycling doping. The riders won their suit against US Cycling and out of court with Chris Charmichael. But the physical pain they have from doping is unbelievable. They started having problems before the age of 25. I hope the athletes like Strocker is why The USADA is after the sick people like LA. So much for the folks that say, if everyone is doping, it must be fair…..

  15. peter lin

    How about keep it simple. If a cyclist is caught doping, they are banned for life. If a UCI/WADA/USADA employee is caught taking a bribe, they are banned for life.

    I have a hard time taking any of these governing bodies serious, when there’s so much politics, money and hypocrisy.

  16. High Plains Drifter

    I have no idea how anyone can say the USADA review process isn’t fair. Their findings are being reviewed by everyone under the sun.

    Armstrong was asked to cooperate. Was give the option for arbitration, for a public or private hearing. He could have cross-examined every one of the witnesses. But he opted out at every step. And that’s Tygart’s fault?

    Now our left vs right, dem vs GOP gridlock makes sense. So many Lanceophiles and Lanceophobes have made up their minds and locked themselves into a position. Perfect metaphor for our political situation. Come up with an ideology first, then force the real world to fit into the model.

  17. Pat O'Brien

    Hey Charles! Sure miss your “blow by blow” live coverage of the Tour. Ah, the good old days, maybe?
    Anyway, I think the riders need to decide if they are amateurs or professionals. We also need a new professional sanctioning body. The current system for pros will no longer work. Then they need to organize in some fashion, and be part of the decision is what doping controls and procedures are used. Until they get a say in the process, they will always claim it is unfair. But they are employees after all, and have rights to a fair and impartial process. Once they have contractually agreed to a control process and who performs it, it would be hard to complain.
    I also think that the general move to arbitration in employment agreements and contracts is really a bad idea. You essentially are giving away many labor rights and legal remedies many people before you struggled for.

  18. John Kopp

    Pat O’Brien, I agree with you on the professional organization system and general agreement about terms and conditions of doping. I was required to undergo drig testing as part of my employment. I felt it was demeaning and an insult to my integrity. Glad I am now retired. I ride a bike for pleasure, and so I don’t have to take PEDs.

  19. Skippy

    Charles , Bobby J. just came out with an admit of the ” Doping ” in his Career . But there are so many more that are in a difficult ” Double Jeopardy ” situation !

    Help them by promoting

    http://t.co/oFWgsHA7 ” !

    Athletes past & present are involved in training and inspiring those seeking a career in SPORTS , so they need to know the background career of their MENTORS !

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