The Explainer: Is it doping if there is no performance enhancement?

Dear Explainer,
I am a 48-year-old masters’ racer. I have a degenerative lower back problem that causes me a lot of pain. I have tried everything to control or reduce that pain, from yoga (which has helped) to prescription pain killers, including Vicodin (which has some ugly side-effects and is addictive). My son finally convinced me to try medical marijuana. It worked and, because I live in Colorado, it’s even legal.

I’ve been using it for 14 months now and I have not really noticed any major effect on my riding, since I don’t use that much, use it orally, rather than smoking it and continue to exercise.

My big question is whether I can get popped for a “doping” positive, if I get tested at a bike race. I’ve heard that marijuana is not banned when it comes to cycling, but I’ve Googled up contradictory information.

I have a Colorado prescription. Should I try to get a TUE (Therapeutic Use Exemption)?

On a side note, I am planning on coming back to your part of the world and racing in the Dead Dog Classic this summer. Should I assume that my Colorado ‘script won’t do me any good in Wyoming?
– Roger

Dear Roger,
Let’s start with your TUE question. The short answer is a simple “NO.”

Colorado’s medical marijuana provisions do allow for prescriptions, but those “prescriptions” have a rather unique legal status (more on that later) and are not recognized by the World Anti-Doping Agency, the U.S. Anti-Doping Agency, the UCI or USA Cycling. There is no provision to have a request for a TUE approved. (That said, if you want to give it a shot some time, give me a call. It would be an interesting test.)

Competitive advantage?

Marijuana’s status when it comes to sports doping has been interesting to follow. Clearly, when it comes to cycling, it’s going to be hard to argue that marijuana’s active ingredient, tetrahydrocannabinol (THC) is, in any way, performance-enhancing.

Since the early days of the World Anti-Doping Agency, cannabinoids – like marijuana and hashish – were included in the list of substances banned under the agency’s “in-competition” provisions. That meant that as long as you weren’t under the influence of marijuana while competing, you were okay.

WADA pretty much left enforcement up to the individual governing bodies. In cycling, where no one gets much of a competitive advantage from marijuana, testing for the substance is pretty minimal. In snow-boarding, where being completely ripped might actually be an advantage, the governing body has taken a stronger position.

In cycling, there are only a few examples of riders being popped for detectable THC levels. In 2007, there were two riders who tested positive for cannabis, the Ukraine’s Svitlana Semchouk and Poland’s Rafal Kumorowski both tripped the Dopo-Meter™ for pot. Frankly, I’ve had trouble finding any others. In both of those cases, by the way, the riders’ results of the races in which they tested positive were negated and each received a warning. There was no suspension in either case. And no, I have no idea how well they performed in those races, although I have to imagine it wasn’t that great and that these two were each random test subjects.

It’s important to keep in mind that the marijuana you consume today may show up on test for quite some time. THC is retained in body fat. Unlike alcohol, which is quickly metabolized, marijuana may show up in a urine sample for up to two weeks after it is consumed – either by eating it or smoking it.

Off hand, I would say that your occasional use of medical marijuana will probably not cause you major problems in cycling. If you did test positive, your most reasonable defense would be that your levels were such that it doesn’t constitute “in-competition” use. I wouldn’t guarantee that your defense would be successful, but it’s worth making the argument.

If it helps you control the pain, I’d say it’s worth the risk. Out-of-competition use is not barred under existing rules and history seems to show that marijuana is not considered to be much of a factor in cycling. Of course, those could be famous last words. I would exercise some caution and discretion when making the decision to use medical marijuana.

Now, to your last question. I am quite pleased to hear that you are thinking about coming to Laramie to race the Dead Dog, which our local shop owner, my racing buddies and I started … let’s see here … twenty-nine years ago?!?!?!?

Well, my answer is much clearer on this one. Don’t do it.

Just say no … to crossing the border

That Colorado “prescription” is useful only in Colorado and the only reason that it is useful in Colorado is that the Federal government has pretty much stayed on the sidelines. In response to last fall’s decisions by Washington and Colorado voters to legalize the recreational use of marijuana, President Obama quipped that the Federal government has “more important issues” to deal with than to go after states in which voters approved the recreational use of marijuana. I’m sure the President also realized that while he carried Colorado in the last election, that state’s marijuana initiative, Amendment 64, had a bigger margin of victory than he did.

That’s a tentative status, though. A change of attitude or a change of administrations could put both medical and recreational marijuana laws at the state level at risk.

No matter what, though, you will not be welcomed with open arms (unless those arms are holding handcuffs) when you cross into Wyoming or other states without such laws. I’ll address Wyoming’s approach, since you’re planning on coming here and I have a bit more experience with the issue in this state (as a lawyer, folks).

Back in the day, Wyoming Statute 35-7-1031 (c) was at least a little unclear as to how the state would handle prescribed marijuana.

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act.

But to underscore Wyoming’s position on its neighbor’s adoption of medical marijuana rules, the Wyoming State Legislature revised Wyoming Statute 35-7-1031 (c) to include “no prescription or practitioner’s order for marihuana, tetrahydrocannabinol, or synthetic equivalents of marihuana or tetrahydrocannabinol shall be valid.”

If you are caught with less than three ounces in Wyoming – and it’s a first offense – it’s a misdemeanor and you can face up to a year in jail and be fined up to $1000.

If you have more than three ounces, it’s a felony and the penalties go up to five years in prison and $10,000.

Keep in mind that if you were to bring, for example, brownies, to Wyoming the statute may cause you problems, because it notes that in determining weight, officials are to include “the weight of the controlled substance and the weight of any carrier element, cutting agent, diluting agent or any other substance excluding packaging material.”

Theoretically, a pound of brownies, even they include less than half-an-ounce of pot, could be classified as a felony, since flour, chocolate and sugar would fall into the category of “any carrier element, cutting agent, diluting agent or any other substance….”

So don’t do it. Colorado’s rather casual approach to medical and recreational marijuana use stops at the border. The laws in this state are, in comparison, draconian. Law enforcement is pretty amped, too, given that the Wyoming State Patrol, county sheriffs and local cops are all keeping an eye peeled for cars traveling up from Colorado.

If you are pulled over, don’t ever, ever, ever consent to a search of your vehicle. Politely decline and simply offer the following: “I understand you are just doing your job, Officer, but I never consent to searches.”

Don’t interfere with the officer if he or she does conduct a search. That will cause you even more problems.

Enjoy your trip to Wyoming, Roger. Just do yourself a favor and leave your herbal pain remedies at home when you do.
– 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.

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

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.

The Explainer: Why SLAPPing Paul Kimmage won’t work

Dear Explainer,
The UCI’s dynamic duo – Hein Verbruggen and Pat McQuaid – are at it again. Last year, they sued Floyd Landis. This year, they are going after Paul Kimmage, probably for having the nerve to actually interview Floyd and put their “honesty” and “integrity” into question.

So what’s the deal here? They are going after Kimmage in Swiss courts, but they are not going after the people who actually published the same allegations.

Why Switzerland? Kimmage is Irish and Landis, an American. I don’t think anything they said or published took place in Switzerland. Heck, since McQuaid is Irish, too, why doesn’t he go after Kimmage in an Irish court?

What is the deal with these guys? Do they run to the courts whenever they feel insulted? Why is it that in all of those cases, they seem only to go after about 8000 Swiss francs? If what Landis and Kimmage said about them was so bad, shouldn’t their tarnished reputations be worth more than that?

Finally, why are they going after individuals rather than the newspapers and websites that published those statements in the first place?
– Richard

Dear Richard,
Pat McQuaid and the notoriously thin-skinned Hein Verbruggen are no strangers to the Swiss Courts. In addition to the now-petered-out lawsuit against Floyd Landis, Verbruggen and the UCI itself once brought a similar suit against former World Anti-Doping Agency president, Dick Pound.

In reviewing all three cases, some common themes emerge. The suits have generally asked for relatively small amounts in damages – probably enough to cover legal fees – along with a demand that the defendants issue some form of retraction … generally the simple publication of the court’s finding in the event that the plaintiffs prevail. Even so, that won’t be cheap, since the plaintiffs are asking that those retractions be published in the form of full-page advertisements in several of the world’s largest newspapers.

In Kimmage’s case, it appears that the two are going after much more than just the interview with Landis on NYVeloCity.com. Kimmage has been a tireless anti-doping campaigner since he retired from the sport and published “Rough Ride,” a ground-breaking book detailing his years as a domestique in the professional ranks from 1986 to 1989.

Kimmage carried that banner into his career as a journalist, writing for the Sunday Independent and later for the Sunday Times of London, where he teamed up with fellow Irishman, David Walsh, before leaving the paper early this year. Because of our mutual friendship with Walsh, I’ve had the opportunity to speak with Kimmage on a number of occasions and have found him to be, above all, honest, committed and passionate about the sport he loves … and about the people he’s accused of destroying it. He’s among a small cadre of journalists covering the sport that had the guts to say out loud the things others were thinking … and just whispering in off-the-record coversations.

McQuaid and Verbruggen, it appears, would disagree with my assessment.

In looking at the three cases – Pound, Landis and Kimmage – I frankly have to conclude that the current and former presidents of the UCI are engaged in a practice often referred to as a “SLAPP.” The Strategic Lawsuit Against Public Participation is essentially a suit filed with the intention of keeping critics silent, by targeting a select few of them in a public battle.

The idea is to burden those critics with the costs – in both time and money – of defending against a suit, and sending a message to anyone else that a making a critical public statement may cost someone more than it’s worth … or at least more than they can afford.

Now what got these guys sued? Pound, for example, once said that Verbruggen and the UCI were doing nothing to combat doping. Landis’ allegations that the UCI actively covered up Lance Armstrong’s allegedly positive EPO test from the 2001 Tour de Suisse were repeated by Kimmage, along with other statements about the UCI’s corrupt structure. Kimmage accused McQuaid and Verbruggen of “having knowingly tolerated tests, of being dishonest people, of not having a sense of responsibility, of not applying the same rules to everyone.”

Let’s assume (just for the sake of argument, of course) that what Pound, Landis and Kimmage have said about the UCI, Verbruggen and McQuaid is, in fact, true. Even if they had no case, the filing of a SLAPP suit would take up time and money and send a clear message to others that criticizing the plaintiffs could have dire consequences.

Has it worked? No, not really.

For his part, Pound reached a settlement and issued a “retraction,” that still makes me smile whenever I read it:

“Richard Pound acknowledges the fact that some of his comments reported in the media might have seemed excessive if they were interpreted to mean that the UCI and Hein Verbruggen were doing nothing to combat doping.” (My emphasis added – CP)

As for Landis, Verbruggen acknowledged the other day that the case has gone nowhere since “the problem is we can’t find Landis.” Even if they could find him, what are they going to do to force him into Swiss Courts to face allegations of slander and defamation?

Enforcing a foreign civil judgment against Landis might be problematic as well.

So why Switzerland?

I, too, often wonder about the choice of venue in McQuaid and Verbruggen’s thinking.

It’s doubtful that the two presidents in this case are filing in Swiss courts merely because the laws are in their favor there. There are better places to bring a suit if looking for the most sympathetic courts. Much of Kimmage’s work has appeared in the aforementioned Sunday Times and English law is probably one of the western world’s most plaintiff-friendly in libel and slander cases. If these two were “forum shopping,” Great Britain would have to top the list.

But the choice of Swiss Courts is a sign in my mind that the suit is little more than an elaborate press release and an attempt to send a signal to Kimmage and anyone else with a mind to criticize the way this sport has been run for the last 20 years. The District Court in Vevey, near Aigle, Switzerland, is a pretty logical place to file the case, and it really takes minimal effort and expense for the plaintiffs to pursue it. The UCI is, of course, based in Aigle, both have attorneys already in place through the UCI. While McQuaid is an Irish citizen and Verbruggen is Dutch, both live and work in Switzerland.

The big drawback – at least from a plaintiffs’ perspective – is that Swiss law doesn’t allow for punitive damages. A plaintiff has to show how an alleged defamatory statement affected his reputation and earning power and show proof of actual economic damages, hence the relatively low demands for compensation in all three suits.

Given the low cost and relative convenience of filing in Swiss courts, it could also be a sign that neither Verbruggen nor McQuaid have a whole heck of a lot of confidence that they will prevail. Truth is an affirmative defense in libel and slander cases in most court systems. (Even English courts allow the truth defense, but add a caveat, allowing a plaintiff to claim that the defamatory statement amounts to a “breach of the peace,” even if it’s true.)

Again, it looks like the suit against Kimmage is another salvo in a public relations war, albeit one that could cost the defendant time, money and inconvenience.

Jurisdiction?

But how do the comments of an American cyclist, told to an Irish journalist and published in a British newspaper and American web site become the subject of interest of a Swiss court?

That’s actually an interesting tangent. Under Swiss law a defamatory statement can be cause for both civil and criminal action. It would be harder to press that case in criminal courts since the alleged defamatory statements in this case took place outside of Switzerland. Even if they could bring it in to criminal court, the case would be difficult to prove.

Under Article 10 of the European Convention on Human Rights – to which Switzerland is a signator – citizens are guaranteed “the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The 1999 case of Dalban v. Romania affirmed that the prosecution of journalists would be more difficult than even an ordinary citizen. The case was nicely summed up in the 2007 European Council publication “Freedom of Expression in Europe:”

“The Court ruled that a journalist’s criminal conviction of defamation following the publication of several articles accusing prominent public figures of involvement in fraud constituted a violation of Article 10 of the Convention. It was the duty of the press, while respecting the reputation of others, to impart information and ideas on all matters of public interest, and it was unacceptable that “a journalist should be debarred from expressing critical value judgments unless he or she [could] prove their truth.”

The impugned articles had to do not with the private lives of the prominent figures but with their behaviour and attitudes in discharging their duties. There was no proof that the description of events given in the articles was totally untrue or calculated to fuel a defamation campaign. In relation to the legitimate aim pursued, therefore, convicting the applicant of a criminal offence amounted to disproportionate interference with exercise of the journalist’s freedom of expression.”

Even strictly interpreted, though, Article 10 would not preclude civil action. And the standard for exercising jurisdiction in Swiss civil courts is lower than it would be in criminal court. Even if the defendant lives outside of Switzerland and his statements were made outside of Switzerland, Swiss courts can assert jurisdiction if the statements are shown to have an effect inside Switzerland. Obviously, since Pound, Landis and Kimmage were referring to inaction – or outright corruption – at UCI headquarters in Aigle, that standard is met and the case can go forward.

Choosing the right defendant … or picking on the little guy

It’s worthy of note that the McQuaid/Verbruggen suit didn’t involve a deep-pocket defendant.

Again, much of what Kimmage has written over the years has appeared on the pages of the Sunday Times and much of what he has said about doping and corruption in the sport has been quoted in L’Equipe.

So why weren’t those publications included in the suit? A libel and slander suit can be pursued against anyone who repeats the alleged defamatory statement. Certainly, Rupert Murdoch’s Sunday Times and L’Equipe, owned by Éditions Philippe Amaury (yup, that’s the same family that owns the Amaury Sport Organization, which runs the Tour de France) were guilty of repeating Kimmage’s “libel,” no?

As I mentioned, this suit isn’t aiming high on the damages scale, so bringing in a deep-pocketed defendant probably isn’t strategically wise in this case. If those papers were brought into this thing, they sure-as-hell would show up and they would do so with a gaggle of high-priced lawyers and shoot this thing down like it deserves to be.

No, instead, they zeroed in on an individual. What’s more, an individual defendant who was the victim of a reduction in force at the London paper late last year. We have an outspoken, but now-underemployed, crusader. In this case, he’s the ideal defendant. It was strategically wise (but morally repugnant) to zero in on Kimmage.

It’s also another indication that this suit is being used to harass someone willing to speak out. If the suit had merit, the Sunday Times and L’Equipe would have been named, too.

D-E-F-E-N-S-E!

We are not likely to see this case end up like the other two. Kimmage can’t just vanish like, according Verbruggen at least, Landis managed to do.

We will probably not see a retraction of any kind – even one worded as elegantly as the Pound statement – emerge from the pen of Paul Kimmage.

“Hell will freeze over before I issue either of those gentlemen an apology for anything,” Kimmage told VeloNation’s Shane Stokes.

So Kimmage will be in the position of either ignoring the thing and losing by default – an approach we’ve seen in another high profile case recently – or appearing in that Swiss district court and showing why his statements are, in fact, not defamatory, but true.

If Kimmage takes the latter approach, it isn’t going to be easy. It isn’t going to be cheap. The plaintiffs know that and there are many of us who believe that’s precisely why they did it. My bet is that they have that strategy in mind … but they picked the wrong guy. Kimmage is a fighter. He is not going to go quietly into the night and buckle to that kind of pressure … but he will need help.

You can lend a hand. The folks over at NYVeloCity have created a ChipIn Page for the Paul Kimmage Defense Fund.

Give it some thought.

Do you really want these guys to get away with this crap? Let’s not send Kimmage off on another rough ride, okay?
– 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.

Forgoing Judgement

Could it ever have been any other way, with the fall of Armstrong? It seems cycling has been on a collision course with this moment for the better part of its history. From riders dosing up with brandy in the early days, to the scourge of amphetamines, to modern day blood doping, top level racers have always pushed beyond the rules in search of an advantage.

And now we have, arguably the greatest grand tour rider of all-time stripped of his titles and banned from the sport. Looking back at the great champions of the past, each of them with their own sordid side story, can we say this outcome was inevitable?

Perhaps we can forgive the modern day rider for believing that dope is simply a part of the sport. Almost everyone is willing to acknowledge that Lance Armstrong, if guilty as charged, was only doing what everyone else was doing, was only following in a long line of champions before him who had employed the dark arts to stunning effect.

How is it that, after decades of sabre rattling and bluster, an authority finally stepped to the fore to apply the rules, for better and for worse? It should be lost on no one that the UCI was not the authority in question. Perhaps this also was inevitable.

We can ask if where we are now is better or worse than where we have been. We can take issue with Lance, Johan and their cohort of co-defendants. We can impugn the motives and methods of Travis Tygart and USADA, but all of this seems to me to be beside the point.

What has happened has happened. Cycling is a sport that has been rife with dope and cheating. It has been poorly governed. We have tried to find the middle way, managing outcomes, either by the authorities turning a blind eye or by prosecuting infractions. We have tried small penalties, medium penalties and lifetime bans. We have tried selective enforcement.

Cheaters evolve. Tests develop. The rules struggle to contain them both.

Fans are upset when the rules aren’t enforced, and we are upset when the rules are enforced in ways we don’t like or don’t think will be helpful, because we hate to see the sport we love self-immolate.

But if we believe in our rules, if we really think they will produce better cycling, then don’t we have to accept their enforcement, no matter the short or even medium term consequences? It seems, when you subscribe to a plan for the sport, you have to hold firm, even if the result isn’t exactly as you would have wished it.

To be sure, the calculus will be difficult for everyone involved. Some will be able to both accept the penalties levied against Lance and his co-defendants, and still remember his (their) victories fondly. We can know what happened, at least partially, without retroactively revising our enjoyment of that era.

Emerson said, “A foolish consistency is the hobgoblin of little minds.” The world does not arrange itself in neat packages. Human behavior and emotion are not digital, black/white or right/wrong. We are gray creatures. We are, of necessity, ambivalent, and we should allow ourselves the latitude of inconsistency. Neither, should we fear foolishness. This is only sport, after all.

You can say that, once a rider decides to break the rules, he knows what the consequences of his actions might be. There are sanctions printed in ink in by-laws and on contracts. But this is a short-sighted reading of the decision for there are myriad consequences beyond our knowing.

I would venture that when you first decide willfully to take the wrong path, you very quickly lose control of the narrative. In your mind, there is winning. There is glory. If you are unlucky, you sit out a suspension.

In reality, you are unable to begin to parse the threads of consequence that spin themselves in every direction. Did Lance and his team imagine Travis Tygart and the role he would play? Did they imagine the myriad judgements they were letting themselves in for? Did they imagine court cases and Pat McQuaids and Hein Verbruggens? Did they think of Greg LeMond or Le Monde or l’Equipe? Do you ever race the Tour de France wondering if a plea deal will torpedo your legacy?

All the PR and litigation money can buy will shift a narrative, but clearly, in this case, couldn’t alter the eventual outcome, and that’s true for Lance and for the UCI and for USADA. The chips always fall where they may. They’re funny like that.

Now, we are in the hand-wringing phase of this particular (cycling) life event. And just as the prime players could not have known that they would arrive here, we also can’t know how what has happened over the last week, or over the last decade, will play out in years to come. Is this a death-knell for our sport? Or a birth announcement?

The answer is quite possibly: YES.

Understanding the Doping Mind

Most of the cycling world has been abuzz since yesterday when the first links appeared to Jonathan Vaughters’ op-ed piece for the New York Times. It’s rare that we direct readers to another site, but if you haven’t already read the piece by Garmin-Sharp’s director and you follow pro cycling, then this piece is required reading. You can read it here.

What’s notable about Vaughters’ piece isn’t that he openly admits that he doped. It’s simply an item on his resume, a resume that includes lifelong cyclist, former pro and lieutenant for the U.S. Postal Service Team. What is significant is that Vaughters uses those details to establish his bona fides as an authority on how to create an environment where an athlete isn’t forced to confront the choice he faced.

There’s a tendency to immediately sum up any rider found to have doped as a cheater. It’s an easy equivalent to draw. And because doping provokes such a passionate response in cycling fans—me included—it’s easy to reduce the offending rider to a black-hat-wearing villain. As it happens, it’s easier to condemn than it is to understand. Been there, done that, sent the postcard.

Vaughters weaves a deft journey through the many factors that contribute to an athlete’s choice and while there is ample opportunity to dodge responsibility, he acknowledges that it was a choice that he alone made. What his essay best illustrates is a point I’ve written about on multiple occasions, that most doping comes as the result of coercion, either explicit, such as from a coach (it’s worth noting that his callout to “the boss” was a shot across Armstrong’s bow), or implicit, as a result of the sense that one is being left behind by the competition.

Since its inception Slipstream Sports has run what is arguably the cleanest program in cycling. If for no other reason, Vaughters deserves our attention, has earned the right to make the case for how we can clean up cycling. Will the UCI listen? That’s the question.

 

Image courtesy Slipstream Sports

The Explainer: Legalize it?

Hello Charles,
I hope all is well with you and yours.

I know that you are immersed in the Live Updates and your practice at this time of the year but the latest charges against “The one who will not be named” started me thinking about one of the most quoted arguments I hear against continuing this investigation. On any story about this I hear people say, “Well everyone was doing it so it just leveled the playing field.”

On the surface, this sounds like a logical assumption, but like many logical assumptions, it may not stand up to daily reality. I have been trying to come up with a name of any athlete that was busted for PEDs, who returned, without PEDs, and was back at the top of their sport? In cycling, only David Millar and Ivan Basso continue to contribute to their team, but I don’t think anyone can argue that they are anywhere near the same competitive level in the peloton as before the ban.

So if that is the case, does that mean that the peloton is still doped, or was the peloton not as fully doped in the 1990-2007 era as some are stating? Looking at average speeds and some passport info that has been available, I would tend to believe the peloton is cleaner now, but reformed dopers are not back on top. So would it be reasonable to assume if the peloton were cleaner then, the podiums would have looked different, and the only reason for the people winning was the PEDs? In other words if no one was on PEDs then Riis, Ullrich and Armstrong would not have been winning tours.

Without the “Everyone’s doing it” argument, the “Sporting fraud” argument really stands out, hence the need for this trial.

Does any of this make sense?

Trying to stay classy,

– John in Milwaukee

Dear John,
You do raise one of the most common arguments used to justify doping. Los Angeles Times columnist, Joel Stein embraced the argument in a July 2006 column – “Level the playing field with cheating, doping, lying” – which, it should be noted, came out before news of Floyd Landis’ positive.

I don’t think it’s the cheating, or the medical danger, that makes people hate doping so much. They only hate it because it seems deeply unfair.

That’s why, to level the playing field, we need to legalize doping.

Gee, makes sense, right?

Well, it’s worth looking at just how level that playing field would be.

While the debate focuses on legalizing all performance-enhancing drugs, let’s just focus on what we must assume to have been the most commonly used pharmaceutical booster used during that “Golden Age of Doping,” synthetic erythropoietin – what we all have come to know and love as “EPO.”

Cycling’s Mo’ Better Blues
Now back in the cruder days of doping, before the UCI even bothered to manage hematocrit levels, the bravest riders in the peloton simply took a “more-is-better” approach to the question. In other words, if a little EPO would boost your performance, then a lot of EPO would really ramp things up for you. There was a reason Bjarne Riis’ nickname in the peloton was “Mr. Sixty Percent” and it had little to do with his score on that biology test he obviously flunked in high school.

In that environment, the playing field would be leveled only if riders would be willing to ignore the obvious risk factors of blood clots, thrombosis and cardiac arrest. With 60+ percent of your blood volume made up of red blood cells, your oxygen-carrying capacity would be phenomenal, but the viscosity of your blood would be akin to that of Jell-O™. Obviously, there would be something of a transient advantage for those riders willing to assume more risk … at least until they got to the point at which they died.

In his 2007 book, “The Death of Marco Pantani,” Matt Rendell quotes an unnamed cyclist who recounted the practice of riders sleeping with heart monitors set to trigger an alarm if that rider’s pulse rate were to drop below a given rate. Riders would then wake up – or be woken up – and ride rollers for a few minutes to get their pulse rates back to a point where the heart could comfortably pump that sludge through their circulatory systems.

“During the day we live to ride, and at night, we ride to stay alive,” the rider is quoted as saying.

Sometimes, it didn’t work. As you might recall, there was a spate of deaths of young, seemingly healthy, cyclists back in the late 1980s and early 1990s. More than a dozen cyclists died in their sleep, a horrible statistic that then UCI president Hein Verbruggen told me was an unfortunate coincidence of deaths that could be attributed to pre-existing heart conditions and not on illicit drug use. Of course, those deaths were also coincident with the commercial availability of EPO.

All of that changed for the better in 1996 when the UCI took the first significant step in addressing the problem of EPO use (and both autologous and homologous blood doping) by setting an upper limit on riders’ hematocrit levels. Based on data from a fairly large population sample, the UCI concluded that the mean hematocrit level was 45% in a healthy adult male. By taking the mean, plus two times the standard statistical deviation – or 50% – that standard should cover 95 percent of the population. Two-and-a-half percent would deviate below that range, so they would not present an enforcement problem. The other two-and-a-half percent would naturally exceed 50%, so those riders would have to provide medical records to justify their claim that they fell within that group.

Indeed, at the 1999 Tour de France, there was a ripple of excitement in the newsroom on the day of the prologue, after reporters learned that three riders had exceeded the 50% limit on their pre-Tour medical exams. The UCI soon followed-up saying that the three were able to prove that they had naturally higher rates than that and that three riders out of a population of 189 riders fit within a predicted statistical profile.

So, did that level the playing field?
While the 50% limit did address the immediate safety concerns, critics were justified in saying that it also just established a “license to cheat,” but with an upper limit attached.

If you look at hematocrit data over the years after the imposition of the 50% limit, you will notice that there was a discernible increase in mean hematocrit levels among cyclists. In other words, the data used to establish that limit showed the mean to be 45%. Among cyclists after the limit was imposed, it inched upwards to around 47.3.

There were some notable examples of that. In the 2004 case involving Tyler Hamilton, USADA submitted blood profiles dating back months before he was cited for homologous blood doping at the Vuelta a España. Back at the Tour of Romandie, he purportedly had a hematocrit of 49.2%. That would vary over the months, but USADA also pointed out that medical records showed that Hamilton’s natural hematocrit level was closer to 41 or 42%. He was not the only one whose levels fluctuated.

Now in his “Level the playing field” article, Stein seems to suggest that it would be fair to let everyone ride at – or just below – 50%. It would, theoretically, be a quite level playing field, no?

No, it would not and here’s why.

First, there are qualitative as well as quantitative changes that occur in the blood profiles of riders using EPO.

In a 2001 study conducted by the Australian Institute of Sport – “Detection of recombinant human erythropoietin abuse in athletes utilizing markers of altered erythropoiesis” – researchers found that different test subjects react differently to identical levels of erythropoietin and even to identical hematocrit levels. My 50% hematocrit might provide more or less oxygen transporting capacity than your 50% hematocrit level.

We are, after all, men and not machines. Taking the approach that might work in establishing standards for bikes or Formula 1 racing cars and trying to apply that same standard to human beings doesn’t always work.

And those individual variations may best answer your question about returning dopers.

What doping appears to have accomplished is to select a new population of highly trained, talented and strategically savvy athletes who may have been genetically pre-disposed to derive the maximum benefits from the added boost of performance-enhancing drugs. That doesn’t necessarily mean that those same athletes would necessarily rise to the top in a world of clean riders.

Now let assume for the sake of argument only – I am, after all, doing my best to remain “classy” – that the top 20 finishers of the Tours de France, between Riis’ win in 1996 and Landis’ win ten years later, were all juiced to the gills. Stein’s playing field would be level, right? Wrong.

Were that hypothetical scenario true, it would merely show that the athletes who derived the greatest benefits from doping emerged at the top of the heap in those years. Were the reverse true – that no one had doped – we might see an entirely different set of riders at the top of the results list. We will never know.

So when a rider suspended for doping returns to the peloton, assumedly now clean, and begins to ride not as top GC rider, but as a strong lieutenant, that doesn’t necessarily mean that the riders currently at the top of the results are continuing to dope.

We see slower Tours these days. Times up climbs like l’Alpe d’Huez have actually declined since the record-setting days of the late 1990s and early 2000s. When taken in their entirety, the numbers seem to suggest that cycling is cleaner these days.

Risks both known and unknown
Finally, the level-the-playing field crew fails to take into account the unknown risks of pharmaceutical use, even if it’s seemingly benign at the time.

We all remember Dr. Michele Ferrari’s now-infamous statement that “EPO is not dangerous, it’s the abuse that is. It’s also dangerous to drink 10 liters of orange juice.”

As offended as people were at the time, Ferrari’s assessment was actually pretty reasonable. Anything used in excess presents a danger. He was merely suggesting that medically monitored use of certain drugs, like EPO, might not pose a danger to riders.

Well, on the surface, that actually makes sense. Careful medical monitoring would probably help riders avoid those late-night cardiac deaths. However, that monitoring is conducted with the best medical information available at the time. The long-term consequences of that use may not be part of the picture.

There were, for example, concerns raised about the effect recombinant erythropoietin might have on the body’s ability to produce its own after long-term use.

And we may learn of other consequences only when sufficient data has been collected. For example, in past years, one common recommendation for cancer patients suffering from chemo-induced anemia was to inject something known as “ProCrit,” an EPO variant that would help boost declining red counts. Indeed, I even asked my doctor about that when my own hematocrit levels dropped below 30 last year while I was on chemo.

Nope. The doc said that the Food and Drug Administration had issued a “black label” warning against that use, because the rate of cancer recurrence was actually higher among those patients than those who did not get the injections. Carefully medically monitored does not mean that the law of unintended consequences doesn’t apply.

So, this “level playing field” argument would simply mean that anyone hoping to compete at the top tier of the sport would have to assume – or ignore – the potential risks of taking drugs, simply to participate in the sport we love.

Call me crazy, but I’d much rather see the halting – and hopefully improving – efforts of WADA, USADA and the rest of the pee-in-the-cup crew than I would a laissez-faire approach that would relegate clean riders to fighting it out for lanterne rouge “honors” at the world’s greatest bicycle races.
– 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.

The Explainer: That extra penalty for top riders

Dear Explainer,
Here is a question for you. Alberto Contador has now said that he would like to return to Saxo Bank and Bjarne Riis certainly seems eager to have him back. How can he return to a WorldTour team since he will be returning from a “two year” suspension? I thought the rules required a rider to be banned from a WorldTour team for four years. Or did I miss a rule change somewhere along the way?

Thanks for the explanation.
— Dave

Dear Dave,
You are correct in recalling that when the UCI’s experiment with the old “ProTour” began in the 2005 season, the rules did include an additional two-year exclusion for riders suspended for doping violations.

The additional ban has never been part of the “UCI Anti-Doping Rules,” but rather it was incorporated in the “ProTour Teams’ Code of Ethics.”

Unfortunately, like the ProTour itself, the code began to unravel almost as soon as it was started. Early on, there were problems enforcing that sort of secondary ban. To start, several riders whose suspensions had begun prior to the establishment of the ProTour and the adoption of the Code, were able to return to the top tier of the sport without too much trouble. Case in point, you might recall the case of David Millar, who was suspended for two years after police discovered three empty vials of EPO in his apartment in France.

Riding for the Cofidis team, Millar’s suspension began in June of 2004. His suspension ended just a week before the 2006 Tour de France. Upon his return, he inked a deal with the Saunier Duval-Prodir squad. How did he manage to slide straight into a spot on a ProTour team? Well, early on in the process, those developing the new rules realized they would have a huge hurdle to overcome if the ProTour tried to impose its new rules retroactively. Such ex post facto enforcement would most certainly have been struck down, if not by the International Court of Arbitration for Sport, then by a further challenge to the European Court of Human Rights. Indeed, it was such a clear issue, it was never tested in either court.

Now you might also recall that beyond its Ethics Code, the ProTour itself was the subject of some controversy. For one thing, the idea hatched in the mind of former UCI president Hein Verbruggen and then handed off to his successor, Pat McQuaid, didn’t have the support of the sport’s biggest promoters. The Amaury Sport Organisation, which organizes the Tour de France, Paris-Roubaix, Liège-Bastogne-Liège, the Dauphiné to name just a few, opposed the concept from the start. Joined by the organizers of the Giro d’Italia and the Vuelta a España, the opposition came from the people who were putting on the bulk of what the UCI called the ProTour.

The organizers, however, declined to recognize the effort and began inviting teams based on their own criteria. The problem was highlighted when Liquigas inked its own deal with Ivan Basso at the end of 2008. Basso had been suspended for admitting that he had “intended” to dope in advance of the 2006 Tour, using the talents of Dr. Eufemiano Fuentes, who was busted in the Operación Puerto case.

The ex post facto enforcement problem wasn’t at issue. Basso’s suspension began well after the establishment of the ProTour and the adoption of the Ethics Code. This time, the problem was that the teams and promoters didn’t give a damn about the Code. Liquigas saw in Basso not only a talented rider, but one with broad appeal, especially in its home base of Italy. Liquigas signed him October of 2008 and he rode to a fourth-place finish in the 2009 Giro. That pretty much spelled the end of the secondary penalty.

The final nail in the coffin, of course, came as the whole idea of the ProTour began to unravel in 2009 and 2010.

Other additional penalties?
So now we have a new creature, the UCI World Tour. The top 18 teams in the world are now labeled as “ProTeams” by the UCI and the whole concept has at least the tacit approval of the big promoters, including Amaury and the other grand tour organizers.

The Ethics Code, and particularly the secondary suspension provision, have quietly slipped into the background.

But that doesn’t mean the end of UCI efforts to hold riders at the very top of the sport to a higher standard.

Last fall, the UCI management committee adopted a new rule ratified by the Pro Cycling Council which bars the points earned by riders within two years of a suspension from having their UCI points counted toward a team’s standings in the world rankings.

Now, as mentioned, the World Tour is open to those teams that have earned the ProTeam designation. Purportedly, that’s the world’s top 18 professional cycling teams. For example, Saxo Bank would not have qualified as a ProTeam in 2012 had it not been for the points earned by one Alberto Contador in 2011. That his results and points were later negated by the CAS ruling in his 2010 doping case didn’t change that for 2012. Saxo Bank was already part of the 2012 ProTeam roster and the UCI didn’t see fit to yank that for this year.

UCI ProTeams for 2012

• Ag2r La Mondiale
• Astana
• BMC
• Euskaltel-Euskadi
• FdJ-Big Mat
• Garmin-Barracuda
• Greenedge
• Katusha
• Lampre-ISD
• Liquigas-Cannondale
• Lotto Belisol
• Movistar
• Omega Pharma-Quickstep
• Rabobank
• Radioshack-Nissan
• Sky
• Saxo Bank
• Vacansoleil-DCM

But what happens in 2013? If the rule survives expected legal challenges to CAS and, perhaps, the European Court of Human Rights, then it means that even if Contador is rehired by Saxo Bank at the end of his suspension and, as expected, rides the Vuelta in September, the points he earns won’t count toward Saxo’s end-of-season rankings.

That will certainly hurt the team’s chances of staying in the top tier for 2013. The UCI criteria also consider the standings of individual riders for the past two seasons. Again if Contador is rehired, his now-negated 2011 rankings wouldn’t count, nor would anything he earns in 2012, even if he goes on to win the 2012 Vuelta. It’s the same problem now faced by the Movistar team of returning doper Alejandro Valverde, who’s been riding quite well this season, but won’t have any of the points he’s earning this year applied to the team’s standings.

There are other standards the UCI considers, including the financial viability and accounting practices of the team. Saxo has had its problems over the years, but appears to be relatively stable financially, for now.

That said, even if Saxo Bank doesn’t earn a spot among the ProTeams in 2013, it could still get a wild-card invite from one or more of the grand tours, whose organizers to maintain a degree of autonomy when it comes to the two, three or four additional teams to offered a spot. And really, which of them would be disinclined to invite a team with a rider who is arguably the best grand tour rider of his generation?

So, there you have it. There is a secondary, post-suspension penalty, but it’s not nearly as onerous as the one originally envisioned by those who crafted the ProTour Team Code of Ethics.
— 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.

Follow me on Twitter: @Charles_Pelkey

The Explainer: Are we better off now than we were before?

Dear Explainer,
I am probably as sick of it as you are when it comes to doping, but given that you’ve been writing about nothing but for the last few weeks, I thought I might ask one more question on the subject.

A look back at the most recent big-time doping cases, especially what you’ve written about, pretty much involves old-time stuff: Ullrich, Armstrong and even Contador’s case was from two years ago.

What has me wondering, though, is after all of this noise, do you think the sport is any cleaner? I mean it was pretty open back in 1998 when the Festina scandal hit, but is it just hidden now? I’m betting there was a lot of money spent on the effort. Was it worth it?
— Steve

Dear Steve,
I really am sick of the subject, Steve. Indeed, I was reluctant to even answer this one, but I’ve been doing a bit of thinking about the same questions, both tied to the costs and benefits of an international effort, so I thought I’d throw this out as a last comment after writing about the Armstrong, Ullrich and Contador cases. Hopefully, this will be it for a while.

Is the sport of cycling any cleaner now than it was in 1998? You or others might accuse me of suffering from a chronic case of Pollyannaism, but I have to believe it is.

Of course, I have to admit that I was one of those who also said that the 1998 Festina scandal would do a lot to clean up the sport from that point forward. It was a question that the four passengers in our press car at the 1999 Tour — John Wilcockson, Rupert Guinness, David Walsh and I — debated for three solid weeks that year. If history is the judge, then my guess is that Mr. Walsh won that round.

At best, the changes have at least taken a lot more time than I would have every thought. What has changed is that the creation of the World Anti-Doping Agency has accomplished much of what it originally set out to do: namely, to provide a coordinated testing effort, equalization of penalties and an investment of resources into research, testing and enforcement. I think they’ve pulled that off, but the price tag has been pretty high.

Cleaner or just a narrowed opportunity to cheat?
When it comes to the question of whether cycling is cleaner now than it was 14 years ago, I have to maintain that it is significantly better. No, I do not believe that there has been some sort of moral epiphany in the sporting world in general or in cycling in particular. There have always been and will continue to be those whose egos, bank accounts or both push them toward trying to find an edge over the competition.

To see how far we’ve come, let’s look back to 1998 and before. First, though, let’s make a couple of observations about doping and cycling. One, because of its physical demands, cycling is the sporting world’s prime candidate for doping. Two, doping in sport really “came of age” with the development of drugs and methods designed to enhance the body’s ability to transport vital oxygen to muscle tissue. In other words, EPO and blood doping. Before that, amphetamines, steroids and other drugs were fairly crude and marginally effective ways to enhance performance. With an amped hematocrit level, though, you could make a real impact on performance, especially in a sport like cycling, where endurance and recovery over the course of a three-week grand tour count for a lot.

Now, it wasn’t until late 1996 that the UCI took even the most moderate steps to address the wide-spread use of EPO and blood manipulation methods, when it imposed a 50-percent limit on hematocrit levels. Before that, riders were said to be raising their levels to 60 and beyond. The 1996 limit basically provided everyone with a license to cheat within “reasonable” levels. It was another four years before the urine test for isoforms of recombinant erythropoietin was approved for use. Again, sophisticated users came up with a host of ways to beat the test.

To its credit, it was the UCI which really set a higher standard when it led the way to the development of the Biological Passport (see “The Explainer: The biological passport revisited”) The bottom line for me is that this sequence of developments has continued to shrink the benefits a cheater could derive. Back in the mid-1990s, a doped-to-the-gills rider could see a 10- to 15-percent performance benefit from taking EPO. These days, with even the most subtle manipulation triggering alarm bells, the benefits are considerably less. Weigh that against the potentially career-ending costs of being caught and the incentive to cheat is diminishing.

Keep in mind that the Court of Arbitration for Sport didn’t find an element of intent—or even negligence—on Contador’s part in the recent clenbuterol case. The guy was nabbed for 50-trillionths of a gram of clenbuterol per milliliter of urine. That is hardly the stuff of major performance-enhancement. The Court even dismissed some of the theories that many of us had at least considered, namely that his contamination was the result of a transfusion of blood stored from a time when he was using larger amounts of the drug. Without debating the merits of WADA’s strict liability approach to even the smallest levels of PEDs in an athlete’s system, no one can argue that Contador’s offense is the moral equivalent of his team director’s Tour win in 1996, when Bjarne Riis purportedly earned the nickname “Mr. 60 percent” for purely hematological reasons.

Another indicator of the sport’s gradual move away from enhanced performances is the gradual decline in those very performances. Case in point, the times of riders covering those famous 21 hairpin turns on Alpe d’Huez. The record – Marco Pantani’s 37:35 in 1997 – may stand for some time to come. Last year, the winner of stage 19 at the Tour, Pierre Rolland, took 41:47 to cover the same distance. Indeed, when he won the stage in 2006, Fränk Schleck became the first Alpe d’Huez winner since 1994 to cover the climb in more than 40 minutes.

Proof that doping is gone? No. But the trend is such that we may be seeing an improvement. Indeed, we may have crossed a critical psychological tipping point in recent years in that riders no longer feel like they have to dope just to compete. Yeah, yeah, I know, I do sound Pollyannaish, but I am—despite my often grumpy and cynical demeanor—actually something of an optimist.

At what cost?
This improvement—if there is one—has come with a significant price tag attached to it. The 2011 budget for the World Anti-Doping Agency alone was (drum roll, please) a whopping $28,396,856. Twenty-eight million bucks. That doesn’t include the respective budgets of the anti-doping agencies in individual countries, nor does it include the anti-doping budgets of individual governing bodies, like the UCI.

WADA’s budget has grown from around $18 million in 2002, when the bulk of its funding came from the Olympic movement and the governing bodies that make up the International Olympic Committee. These days, the load is shared about equally between IOC members and the governments that have signed on to the 2005 UNESCO International Convention against Doping in Sport.

Before the 2002 creation of WADA (the concept was approved at the 1999 World Conference on Doping in Sport in Lausanne, Switzerland), testing and anti-doping enforcement was made up of a patchwork of rules, testing and enforcement methods that differed from sport-to-sport and from country-to-country.

The biggest benefit of the coordinated effort and increased funding is that it’s probably getting to be just as profitable for a smart biochemist to devote his efforts to developing tests in an open and legal laboratory setting than it is to do the opposite in secret.

Again, call me optimistic, but I honestly think we’re making progress … and, yeah, despite the enormous cost involved, I think it’s money well spent.

Now, can we please get back to bike racing? Or maybe a discussion of a lawsuit or two?

Don’t hesitate to drop me a line if you have a comment, an observation, a complaint or—better yet—a question to be answered in next week’s column. You can write me directly at Charles@Pelkey.com.

Have a good week,
– Charles

The Explainer is now 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.

Follow me on Twitter: @Charles_Pelkey

Image: John Pierce, Photosport International

CAS rules on UCI appeal, suspends Ullrich for two years

The International Court of Arbitration for Sport has ruled largely in favor of a UCI appeal, finding former Tour de France winner Jan Ullrich guilty of doping offenses related to the 2006 Operación Puerto investigation and annulling all of his results back to May of 2005.

The three-member CAS panel issued a two-year suspension of the now-retired rider, banning him from the sport until August 22, 2013. The decision represents a minor victory for Ullrich in that the panel rejected a UCI request that the 38-year-old rider be banned from the sport for life.

The panel found, however, that there was sufficient evidence that Ullrich had enlisted the medical services of Dr. Eufemiano Fuentes, the Madrid-area gynecologist whose offices were raided as part of the Puerto investigation in May of 2006. It was in those raids that investigators from the Spanish Guardia Civil seized performance-enhancing drugs and more than 100 blood bags, many of which were subsequently linked to high profile riders.

Ullrich was among several riders named in the investigation and was suspended, along with teammate Óscar Sevilla, by the T-Mobile team on the eve of the 2006 Tour de France. Ivan Basso (CSC), Francisco Mancebo (AG2R) and five members of the Astana-Würth (formerly Liberty Seguros-Würth) team, including Alberto Contador, were also excluded from that year’s Tour. Contador was among several riders subsequently cleared of charges in the case, Basso later served a suspension and returned to the sport, but Ullrich’s career was effectively derailed by the allegations.

Jurisdictional and procedural questions
Based on a report from the Guardia Civil, the UCI had requested that the Swiss Cycling Federation initiate disciplinary action against Ullrich in 2006. It wasn’t until 2009 that the Swiss Olympic Committee ruled that Antidoping Schweiz lacked authority to discipline the German rider, whose Swiss license had expired in October of 2006.

That triggered a 2010 appeal from the UCI, which sought to annul all of Ullrich’s results back to 2002 and to impose a life-time ban. Ullrich’s legal team challenged the UCI’s authority to discipline the rider since he had already retired and was no longer subject to the Swiss governing body’s authority.

Furthermore, Ullrich claimed that he couldn’t be subject to the actions of the disciplinary panel since Antidoping Schweiz wasn’t even in existence when his license lapsed, meaning that he had never formally agreed to be subject to its jurisdiction.

Ullrich’s attorneys raised a number of other procedural claims in the rider’s defense, but also argued that if those were rejected that any disciplinary actions be referred back to the Swiss federation, rather than being imposed by CAS.

The CAS panel rejected the bulk of Ullrich’s arguments, noted that the UCI retained authority over Ullrich and concluded that any resulting sanction could be imposed by the appeals panel itself.

Probative value of evidence and no factual defense
The panel then found that DNA evidence showed that Fuentes was in possession of Ullrich’s blood and that there was no medical justification for the storage of the rider’s blood other than for purposes of performance-enhancement.

“The report, prepared by Dr. Dirk Porstendörfer, concluded that the samples provided by Ullrich matched the genetic materials provided by the Spanish Civil Guard with an extremely high degree of probability (one in six billion),” the panel noted.

The panel noted that Ullrich’s own financial records showed that Ullrich had paid Fuentes in excess of 80,000 euros for medical services.

“Ullrich’s bank statements … show a payment to Dr. Fuentes in 2004 in the amount of €25,003.20,” the panel reported, “and a second payment in 2006 to a numbered Swiss HSBC bank account in the amount of €55,000 which HSBC has confirmed was also associated with Dr. Fuentes during that time period.”

Spanish investigators had also provided the UCI with evidence that Ullrich had made frequent trips to Fuentes’ offices in the years before the 2006 Puerto raids.

“The UCI has offered into evidence documents obtained from the Spanish Civil Guard, which the Spanish Civil Guard seized or otherwise obtained as part of its Operation Puerto investigation or from other sources,” the CAS panel wrote. “These documents include: (1) Documents evidencing travel by Ullrich to Madrid for reasons that are not known to be related to cycling events. (2) Calendars seized from Dr. Fuentes that use a code to record the withdrawal of blood from athletes on specified dates, and inventories of fridges and freezers containing blood bearing the date of extraction – since the blood samples can be associated to particular individuals, read together the inventory and the calendar are a guide to the dates when Ullrich is alleged to have provided blood to Dr. Fuentes for storage.”

In concluding its evidentiary analysis, the CAS panel expressed “surprise” that Ullrich’s entire legal strategy was based on procedural and jurisdictional challenges and included no direct challenge of any the evidence presented.

“Ullrich’s silence in this respect is both notable and surprising, given the vigour with which he has otherwise contested the UCI’s allegations,” the decision noted. “Despite the Panel’s surprise in this respect, it is of no consequence to its ultimate decision; the UCI rules do not contain a provision that would permit a negative inference to be drawn from efforts to avoid addressing the substance of an allegation of an antidoping rule violation.”

While no negative inference could be directly drawn by the absence of a defense on Ullrich’s part, the panel did note that there was compelling evidence to conclude that there was a doping violation and nothing had been presented to impeach that evidence.

“Given the volume, consistency and probative value of the evidence presented by the UCI, and the failure of Jan Ullrich to raise any doubt about the veracity or reliability of such evidence, this Panel came to the conclusion that Jan Ullrich engaged at least in blood doping in violation of Article 15.2 of the UCI Anti-doping Rules.”

No life-time ban
The CAS panel, however, rejected a UCI call to impose a life-time ban and to annul Ullrich’s results all the way back to 2002. The UCI based its request on the fact that the Puerto case constituted Ullrich’s second doping violation and that UCI and WADA rules called for the imposition of a life-time suspension. Ullrich was found to have used amphetamines (reportedly the drug ecstasy) while partying with friends in 2002.

The CAS panel noted that amphetamines had since been reclassified as being banned only if found in an in-competition test.

The panel concluded that the 2002 violation would no longer qualify has a doping offense and, therefore, did not warrant the imposition of a life-time ban.

“In short, were Ullrich to be found to have ingested amphetamines out of competition today,” the panel reasoned, “he would not have committed an anti-doping violation.”

Ullrich’s suspension expires in 2013, when the man who became Germany’s first-ever Tour de France winner in 1997 will be 40 years old. It’s doubtful that Ullrich ever had plans to return to competition, since he formally announced his retirement in February of 2007. A suspension, however, also includes a ban on his participation in the sport in any other capacity, including coach, manager or sponsor.

Wednesday’s ruling also strips Ullrich of results dating back to May of 2005 after the panel concluded that the evidence presented “established that Jan Ullrich was fully engaged with Dr. Fuentes’ doping programe at least from that date.” Most significantly, that would negate Ullrich’s third-place finish in the 2005 Tour de France and his overall win at the 2006 Tour de Suisse.

The court also ordered Ullrich to pay 10,000 Swiss francs (8300 euros) to defray a portion of the legal costs of the case.

The Explainer: Thoughts on the Contador decision

Dear Readers,
It’s been a little more than a day since the International Court of Arbitration for Sport released its decision in the Contador case.

The big news is already out, mainly that Alberto Contador was found to be guilty of having violated Articles 21.1 and 21.2 of the UCI’s Anti-Doping Rules. That resulted in a two-year suspension, officially beginning on January 25, 2011 and, with credit applied for the time he served on provisional suspension, ending on August 5 of this year.

By finding that a violation occurred during the event, Contador was automatically stripped of his victory at the 2010 Tour de France. Furthermore, those results he acquired during the period now deemed to be part of his suspension would also be negated. Most notably, that means he is no longer the official winner of the 2011 Giro d’Italia.

Okay, all of that stuff we know, but a number of you raised questions about the decision, the defenses raised, the allegations made and the term of the suspension itself. Fortunately, the three-member CAS panel spelled out its reasoning quite carefully in a well-drafted opinion. I know that many of us don’t consider a 98-page legal document to be the height of recreational reading and it took me a while to sort through the thing myself. I was actually pretty impressed, though, by the work of the three attorneys on the panel, who may have taken a little more time than any of us would have liked, but did a thorough job in explaining their reasoning.

So, using the decision letter, the UCI’s Anti-Doping Rules and the WADA Code as guides, let’s tackle a few of the more common questions I’ve received over the last day or so. The questions that appear below may represent edited or merged questions I’ve received. Some have come from emails sent directly, via Twitter and Facebook and in the comments section below the original news story.

New math?
Is this some sort of “new math” CAS is using? It’s a two-year suspension and he spent all of last year racing. Still, he’s coming back in time for this year’s Vuelta. To me that looks like a six-month suspension.
— John

Dear John,
It might be good to start by asking why Contador got to ride in 2011. Look at the cases involving Floyd Landis and Tyler Hamilton for purposes of contrast. Contador managed to put in a full season last year. Conversely, Hamilton and Landis did not compete during the entire process, including the wait for the appeal.

The biggest difference, of course, is that both Landis and Hamilton lost their cases in the first round, when the case was originally heard by the American Arbitration Association. Contador, whose case was originally heard by a doping panel, assembled by the Real Federación Española de Ciclismo (RFEC), actually won his case … at least in that first round.

Once the RFEC issued a decision in his favor, Contador was free to ride. He had been cleared of the charges and in the event of an appeal, the original ruling stands until its reversed by CAS. That’s the same reason why Landis and Hamilton were not able to ride. They had been found in violation of the rules and those decisions would stand, unless reversed on appeal.

Contador did accept a provisional suspension and did not compete once he was notified of the positive result from the 2010 Tour on August 26. The RFEC issued a ruling in Contador’s favor on February 14, 2011, at which point he was again free to ride. He had, therefore, already served a suspension of five months and 19 days. The UCI Anti-Doping Rules specifically state that time served under a provisional suspension is to be credited against any future penalty relating to the violation at issue.

Interestingly, the CAS panel noted that on January 25 of 2011 (keep that date at the back of your mind) the RFEC actually floated a “plea agreement” past Contador, which would have resulted in the negation of his 2010 Tour results and a one-year suspension. On February 7, 2011, he turned down that offer and the RFEC panel ruled in his favor a week later.

It wasn’t until March 24 that the UCI announced its intention to appeal the RFEC ruling to CAS. WADA filed notice of its plan to appeal five days later.

In imposing its penalty, the CAS panel ruled that Contador’s suspension officially began on January 25, 2011, the day the RFEC floated its initial plea deal to Contador. A two-year suspension would carry through to January 25, 2013, but then the rules call for him to be credited with time served, so he is once again eligible to ride on August 5 of this year.

Contador’s attorneys did argue that it would be “unfair” to negate any results he achieved between the time of the RFEC ruling and the CAS decision, but the panel disagreed. Among the cases the attorneys cited was that of Alejandro Valverde, some of whose results earned prior to the full adjudication of his case were left intact.

It’s worth noting here that CAS issued its ruling in the Valverde case in May of 2010. It imposed a two-year suspension, back-dating it to January of 2010. By doing so, Valverde’s results earned between January and May were in fact erased from the record books. By that standard, the CAS panel said that it would be inappropriate to impose a sanction that begins in January of 2011 and then leave intact the results Contador earned after that date.

So, confusing as it might seem, the CAS panel did carefully work its way through the whole process and imposed what it found to be a fair penalty.

Why did this all take so long?
I’ve read in your column and others that there is no acceptable level of clenbuterol and that it’s a simple strict liability offense. It was there. Contador didn’t dispute the test result, but tried to explain it away. What was so complicated that made this thing take almost two years?
— Elaine

Dear Elaine,
True. It’s been 19 months since Alberto Contador tested positive for minute traces of Clenbuterol and it was only yesterday that CAS issued a final decision in the case. In Hamilton and Landis, the process took even longer.

The author of the adage that “the wheels of justice grind slowly,” could have had the whole WADA system in mind when he penned that one. Look at some of the most high-profile doping cases in cycling to get a feel for it if you have your doubts. Hamilton, Landis, Valverde, Ullrich … they all took years to resolve. Even if they had been successful in their appeals, their careers had effectively been on hold for a period almost as long as their original suspensions.

While the rules may appear to be simple, that isn’t always the case. I guess the best way to describe the problem is that in doping cases, sometimes strict liability isn’t actually so strict.

Generally speaking, a strict liability offense is one in which the prosecution need not prove the element of intent.

Since I just handled a case involving a defendant charged with possession of a controlled substance, let’s look at the law my client was alleged to have violated:

It is unlawful for any person within the city limits knowingly or intentionally to possess a controlled substance unless the substance was ….

Do you see that those two key words in there? “Knowingly” or “intentionally?” In order to convict my client, the prosecution would have to prove beyond a reasonable doubt that my client actually knew he had the controlled substance in his possession. (Admittedly, in most cases, that’s not a huge burden for the prosecution.)

Conversely, there is no intent element when it comes to speeding. If you get pulled over for going 40 in a school zone, the cop, the prosecutor and the courts don’t give a rat’s rear if you knew you were speeding or if you knew it was a school zone. You were operating the vehicle and the vehicle was going faster than the posted speed limit. Period. No ifs, ands, or buts. That is strict liability in its purest form.

Now, CAS has in the past offered a little wiggle room in these strict liability cases. In a sense, that wiggle room gives the athlete the opportunity to put forward an explanation that would show him to be a completely innocent victim of circumstance. It means that the athlete has the chance to raise an “affirmative defense.” That does, however, shift the burden of proof over to the defendant.

Take for example the case of table tennis player Dimitrij Ovtcharov. He played an event in China and, soon after, tested positive for clenbuterol. In his defense, he offered evidence that, although illegal, clenbuterol is still widely used in China and that he was very likely exposed through food he consumed on that trip. The German Table Tennis Federation ruled in his favor, the international governing body did not appeal and he was free to go.

While those really-good-explanation defenses might be considered, the CAS takes a really narrow view of them. There have been several cases in which riders have accidentally ingested banned substances by consuming contaminated food supplements.

For example, in USADA v. Moninger, USADA v. Neben and USADA v. Oliveira, athletes were able to show that they consumed contaminated supplements, but hearing and appeals panels still cited Article 21.1-(1)(1) of the UCI Anti-Doping Rules, which states:

It is each Rider’s personal duty to ensure that no Prohibited Substance enters his body. Riders are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an antidoping violation under article 21.1.

In those cases, the explanation served only as a mitigating factor – information that prompted the court to reduce the penalty due to the absence of intent.

But Contador was going for full exoneration and was offering his own version of the Ovtcharov defense. To do that he had to present evidence to support the claim. In a heavily regulated market like that in Europe, providing that evidence might be harder than it would be were one to raise that same claim when referring to the unfettered market in that bastion of unregulated free-enterprise, known as “China.”

While the sample in question was provided on July 20, 2010, it wasn’t until November 8, that the UCI formally asked the RFEC to begin disciplinary proceedings. That actually moved pretty quickly and, as I mentioned before, the decision was released in February.

It then took another six weeks or so before the UCI and WADA decided whether to appeal the RFEC ruling. When they did appeal, they raised a number of peripheral issues, including the blood transfusion theory and the whole “plasticizer” question.

That added a whole new complexity to the case and there were a number of extensions and continuances granted as both sides sought to sort through some fairly complicated evidence. Then, as frustrated cycling fans know, the CAS panel took its own sweet time in issuing a decision. Again, the panel said, it was due to the complexity of the issues presented … even though they then disregarded the most complex charges and defense and came up with their own theory (see below).

It took time, but because of the complexity of some of the issues, it actually moved along reasonably well … at least in terms of how lawyers might view it. When you’re looking at it from an athlete’s perspective – and a finite window of opportunity to have a career—this process is painfully slow.

Was it the plastic?
What’s your take on the whole plasticizer question? I thought it was interesting and am wondering if that might have tipped the balance for CAS.
— Eric

I do not think the transfusion/plasticizer issue did anything but complicate and delay the process. A careful reading of the decision letter shows that the CAS panel actually spent a great deal of time considering the UCI/WADA allegation that the trace amounts of clenbuterol were the result of a transfusion.

They ruled that the evidence did not support the allegation that Contador had transfused the day before his July 21st blood sample was taken.

In the absence of a specific WADA rule or substantial peer-reviewed studies regarding what levels of plasticizers one might expect to see in a normal blood sample, the CAS panel wisely reviewed Contador’s biological passport data instead and found no evidence that he had transfused.

Interestingly, too, was the introduction of polygraph evidence that purportedly showed that Contador was not lying when he denied that claim.

In order to corroborate his assertion that he did not undergo a blood transfusion of any kind at the relevant time, the Athlete voluntarily underwent a polygraph examination on 3 May 2011. In doing so, Mr. Contador was asked and answered two series of question(s) ….

The results of the polygraph test were clear according to Dr. Louis Rovner, the specialist who administered the exam. His results were shared with an outside expert, who agreed with the conclusions and reported to the CAS panel that “After a complete review of all of the materials supplied, and both a semi-objective and objective assessment of the recorded physiological data, I concur with with Dr. Rovner’s findings that Alberto Contador was truthful when he responded to the relevant questions asked in each of his … examinations.”

The CAS panel reviewed the UCI/WADA allegations and pretty much lumped them in with Contador’s tainted beef defense, concluding that both claims lacked sufficient evidence to warrant consideration.

Oddly enough, the panel then went on to bring up the question of contaminated food supplements, despite the fact that neither Contador, the UCI nor WADA raise the issue.

In what has to be the weakest line of reasoning in the entire letter, the CAS panel posits its own contamination theory, even though a strict interpretation of the rules doesn’t require one. Then going even further out on a limb, the panel concludes that it was the most likely means by which Contador was exposed.

AC is stripped of titles. Does he have to give back the money? Since typically the money is distributed amongst the team, I like to picture AC going up to a masseur, to whom the TdF money represented a pretty significant bonus, and begging for the cash back.
— DStan58

Dear DStan58,
While tradition dictates that prize money is distributed among a grand tour winner’s teammates and support staff, the money is awarded to the rider himself.

The CAS ruling makes Contador responsible for returning those monies. It doesn’t matter if he spent that money in accordance with tradition or bought a Ferrari. He’s the one who has to pay it back. Perhaps his staff and teammates might feel a moral obligation to help him out, but they certainly have no legal obligation.
– Charles

The Explainer is now 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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