Cycling News Addendum for December 1, 2004
Edited by John Stevenson
The following is the full text of the UCI's ruling in its decision
to exclude the Phonak cycling team from the Pro Tour.
INTERNATIONAL CYCLING UNION
D E C I S I O N
of 22 November 2004 of the
Licences Commission
of the International Cycling Union,
composed of
Pierre Zappelli, President,
André Hurter and Hans Höhener, members,
in view of:
the application of ARcycling AG for a UCI ProTour licence;
the dossier;
the hearing of 22 November 2004, in Lausanne;
noting that proceedings have been as follows:
A. On 28 May 2004, ARcycling AG, a company resident at 8634 Hombrechtikon,
Switzerland, applied for a four-year UCI ProTour licence to enable the
team Phonak Hearing Systems (hereinafter: Phonak) to take part in the
UCI ProTour.
B. On 30 June 2004, the Licences Commission of the UCI (hereinafter:
the Commission) gave a favourable preliminary opinion on the provisional
issue of a licence to the applicant.
C. After its meeting of 12 November 2004, the Commission notified
the applicant of the following initial evaluation:
"(...) In view of your dossier, the UCI Licence Commission noted that
it would have to withdraw the preliminary opinion delivered on 30 June
2004 and issue an negative initial evaluation in respect of your application,
based on the following aspects of your dossier:
o A case of doping has been proven in your team while two other cases
are under investigation.
o A auditing procedure for the internal organisation of your team in respect
of the fight against doping has been launched by the UCI medical service,
the results of which are not yet known.
o You have not respected article 2.15.116 of the UCI Regulations in relation
to image contracts (...)".
D. During the meeting of 22 November 2004 in Lausanne, at the
request duly submitted by the applicant, the Commission heard the applicant's
representatives, Andy Rhis, president, Urs Freuler, manager and Alessandro
Celli, lawyer. The UCI was represented at this hearing by Alain Rumpf,
professional cycling manager, Mario Zorzoli, UCI health manager/doctor,
and Philippe Verbiest, lawyer. The brief minutes of this hearing have
been added to the dossier.
Given that:
1. Article 2.15.011 of section XV of the UCI Regulations (hereinafter:
the Regulations) sets out the criteria which the Commission may take
into account in allocating a UCI ProTour Licence to a team. Among these
criteria are the respect for UCI regulations (article 2.15.011, number
4), the respect of sporting ethics, including ethics in relation to
doping and health (article 2.15.011, number 7) and the absence of other
aspects likely to be particularly damaging to the image of cycling as
a sport (article 2.15.011, number 8).
Under article 2.15.026 of the Regulations: "the Commission shall judge
the request on the basis of the dossier in its possession at the moment
when it formulates its initial evaluation. There may be no subsequent
additions to this dossier. (...)" It emerges from this last text that
the Commission may not take account of documents produced or of facts
arising after its initial evaluation, in this case 12 November 2004.
2. Two objections have been put forward with regard to the Phonak team.
Firstly there is the existence of several cases of doping or suspected
doping which have emerged at close intervals since August 2004, and
the reactions of the said team's members to these events. Then there
is the failure to respect the UCI's rules regarding riders' contracts.
2.1. In relation to the question of doping by members of the team,
the following facts may be considered as established:
o the rider Oscar Camenzind tested positive for EPO just before the
Athens Olympic Games, has admitted his misconduct and has been dismissed
by the Phonak team;
o the rider Tyler Hamilton was suspected of doping during the Olympic
Games in Athens following a test, but his guilt was not established
and the case has been closed, the blood sample taken from this rider
not having been kept under conditions allowing its use for the B sample
analysis;
o following a test during the Tour of Spain on 11 September 2004,
this same rider has been accused of doping by blood transfusion;
o the rider Santiago Perez, who finished second in this same Tour
of Spain, has also been accused of doping by blood transfusion following
a test carried out on 5 October 2004;
o these accusations are based on tests making it possible to detect
doping by blood transfusion, developed by the Lausanne laboratory
and reproduced in a similar fashion by that in Athens;
o these tests have been approved by the World Antidoping Agency (WADA)
and the International Olympic Committee (IOC);
o the riders Tyler Hamilton and Santiago Perez contested the charge
of doping;
o the Phonak team has not dismissed these riders;
o it has cast doubt on the reliability of tests developed by the laboratories
in Lausanne and Athens;
o it has set up an experts committee to evaluate these tests.
2.1.1. At the hearing of 22 November 2004, the management of the
Phonak team indicated that the rider Hamilton's contract would expire
on 31 December 2005, while Perez's contract would come to an end on
31 December 2004.
They explained that the work of the said experts had been delayed,
the experts not yet having been able to obtain the data enabling them
to validate the way in which blood tests were carried out. These delays
were not disputed by the UCI's representatives who stressed that they
were not responsible and, on the contrary, had done everything in
their power to prevent them. Alessandro Celli, Phonak's lawyer, indicated
that a provisional report from their experts did not enable them to
reach significant conclusions, two of these experts considering that
the Lausanne and Athens laboratory tests were invalid, a third having
detected certain errors which, however, did not cast doubt upon their
reliability, and two others having found nothing abnormal in these
tests.
Having stated that, if the expert investigation established by his
team was to confirm the suspicions of doping, the riders Perez and
Hamilton would be dismissed immediately, Andy Rhis informed the Commission,
during the same meeting, that he had decided to terminate Tyler Hamilton's
contract before its expiry. It should be noted that after the hearing,
but before the present decision was drafted, Alessandro Celli, on
behalf of Phonak, has confirmed to the Commission that on 25 November
2004, it terminated the contract linking this team to Tyler Hamilton.
It emerges from the dossier and the explanations given by Mario Zorzoli
during the hearing of 22 November 2004, that on several occasions
during 2004 doubts had arisen about the abnormal readings observed
in the blood of certain riders in the Phonak team. The team's managers
had been summoned to clarify this matter. Following the recent cases
mentioned above, the UCI decided to launch an enquiry to determine
and improve the Phonak team's modus operandi in relation to the fight
against doping and the protection of riders' health.
During the hearing of 22 November 2004, the applicants manager produced
a draft protocol, dated 27 October 2004, intended to establish the
terms of the Phonak team's antidoping policy.
2.1.2. Apart from the existence of the checks instituted by the UCI's
doctor, the facts related above (paragraph 2.1.1) by the applicant
do not appear in the dossier and were not known to the Commission
when it issued its initial evaluation. Under the Regulation quoted
above (article 2.15.026), the commission is not entitled to take these
into account.
Nonetheless, the consideration of these facts and even the last minute
announcement of the dismissal of the rider Tyler Hamilton, does not
make it possible to overturn the negative initial evaluation issued
on 12 November 2004.
More than the confirmation of the doping cases in which certain riders
in the team are or have been suspected during these last months, it
is the attitude of this team's management to these revelations which
arouses serious reservations. Though it is not in itself contentious
for a team to defend its riders when they are involved in a doping
affair, at least while their guilt has not been established, the attitude
of this team, which has tried to cast doubt on the validity of the
tests which revealed the suspected doping in order to provide its
defence, is quite another thing. The Commission can only observe that
the validity of these tests has been accepted by both WADA and the
IOC. Of course it cannot be excluded that this validity could be called
into in question, or undermined in the future, but under current circumstances
it should be admitted that the method of analysis is correct, that
it has made it possible to observe the absence of doping in other
sportsmen and women who have been tested, and that in consequence
the results of the tests carried out on the riders Tyler Hamilton
and Santiago Perez justify, despite their denials, the strong suspicion
of doping. The attitude of the applicant, consisting of basing his
defence on the challenging of proven methods, to which must be added
the fact that abnormal blood levels had already been revealed in certain
of the team's riders during 2004 by the UCI, certainly justify the
announcement of more thorough checks by the medical officials at the
UCI.
It has not been demonstrated that, since suspicions arose about the
doping of its riders, the Phonak team has followed the example of
other teams admitted to the UCI ProTour, and organised itself in such
a way as to combat doping effectively.
As a result this team does not provide guarantees in respect of sporting
ethics as they apply to doping, within the meaning of the Regulation
cited above. Its admission to the UCI ProTour would at present be
such as to harm the image of cycling as a sport.
There will be grounds for checking how far the Phonak team management
respect the undertakings they say they wish to give in relation to
the fight against doping. Such scrutiny may take place following the
checks carried out by the UCI during these next months. In this respect,
the draft protocol for internal controls submitted by the applicant
to the Commission for the UCI's attention represents a step in the
right direction.
2.2. Under article 2.15.116 of the Regulations, an image contract may
be concluded with riders in addition to the employment contract. Remuneration
under the image contract may not exceed 15% of the total remuneration
paid to the rider. The applicant does not dispute the fact that after
learning of this regulatory provision, five image contracts were extended
without respect for this 15% limit. The manager of the team, Urs Freuler,
explained that at the workshop of 1 September 2004, an Ernst & Young
consultant said that there was no need to worry about the 15% problem
for existing contracts.
This explanation is not convincing, as the regulations, known and applicable
at the time that these contracts were renewed, make no distinction between
renewed and completely new contracts.
There has therefore been a violation of article 2.115.116 of the Regulations.
It is also noted, furthermore, that Phonak declared itself ready to
bring all its contracts into line with the Regulation.
For these reasons,
the Licences Commission of the UCI
rules:
1. The application of ARcycling AG for the issue of a UCI ProTour licence
for the Phonak Hearing Systems team is rejected.
2. Under articles 2.15.226 and 2.15.229 of the UCI Regulations, an appeal
may be filled with the Court of Arbitration for Sport (CAS), within fifteen
days of the day following receipt by fax of the present decision.
Lausanne, 22 November 2004.
For the Licences Commission of the UCI
Pierre Zappelli, President
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(All rights reserved/Copyright Knapp Communications Pty Limited 2004)
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