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: 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

Friday Group Ride #21

So this week the well-respected journal the Annals of Internal Medicine published a study that human growth hormone (HGH) does, in fact, improves athletic performance by helping to build fast-twitch muscle fiber. Specifically, the study found that in men HGH would improve performance by 3.9 percent—shaving .4 of a second from a 10-second sprint time in the 100-meter dash. And while sprinting performance was dramatically improved, HGH did nothing for endurance (unsurprising) or overall strength (somewhat surprising).

In cycling, an improvement of 3.9 percent isn’t the difference between steps on the podium, it is the difference between pack fodder and crushing the competition. Whether you look at the results from a Grand Tour or from one of the Monuments, a single percent range in performance can include the top-20 finishers.

Some of the men in the study also received injections of testosterone. For those men, the performance increase was a whopping 8 percent. Imagine for a second being an 8-percent-improved rider. That’s going from a 1-hour 40k time trial to a 55:12 40k time. Eight percent could turn you from a climber into a time trialist or a nobody into a god.

The study begs several questions. First, is anyone really surprised by this? There has been strong anecdotal evidence that HGH produced results for anyone looking for an illegal edge.

A bigger question is, what is the dosage size that athletes taking HGH normally use? Dr. Ken Ho, who ran the study, gave his subjects modest doses for only eight weeks, as compared to what guys like Mark McGwire were taking, which is alleged to be a much higher dosage for extended periods of time. Obviously, the gains could be more than 4 percent. Much more, perhaps.

The World Anti-Doping Agency (WADA) helped fund the study. One wonders why they wanted the results printed in a peer-reviewed journal. This would seem to be information that they wouldn’t want athletes willing to dope (or their doctors or coaches) to find out. One can safely assume that some aspect of this study will aid those who are trying to evade detection of their drug use.

The amateur athletes who participated in the study reported several side effects. The HGH caused fluid retention that resulted in some swelling as well as joint pain. One man reported that his breasts grew.

Maybe drug testing in the future should include looking for pros who are wearing jog bras.

More seriously, the media has reported the publication of this paper with a certain amount of surprise. As I read about it, I’ll admit my jaw went slack, but my expression was more “duh” that “holy cow.”

There have been whispers about who in the peloton has been using HGH, but so far, the most substantive accusation was that the entire T-Mobile team was using the stuff along with EPO. And of course, boatloads of the stuff was in Willy Voet’s Festina team car when he arrived at his fateful border stop in 1998.

I don’t want to accuse you readers of being a cynical bunch, but are any of you surprised by the results of this study, either in general or the more specific aspect of just how much performance can be improved by either HGH alone or in combination with testosterone?

And in other news … there’s this little cycling tour that’s going to take in some great sights in Italy. Disingenuousness aside, most of the cycling media outlets are saying this is the most wide-open Giro in years. That may be right. With no Menchov, no Killer, no Pellizotti and no Contador, Evans would seem to be the heir apparent; he seems to have developed a taste for actually winning instead of just showing.

Does anyone think Garzelli has something like a chance to win? Even Simoni seems to have conceded that he is over the hill and will hope for a stage win in this, his final Grand Tour.

So two questions to you all: Who will take the maglia rosa in the prologue? We’ve got stickers for the first correct answer on that. Also, who do you think will get to go home with the pink jersey once the last kilometer is ridden? Stickers to the first correct prognosticator.

I’ve got my money on Evans.