Cycling News Extra for November 18, 2004
Edited by Jeff Jones & John Stevenson
WADA code opens door to Hamilton appeal
Analysis by John Stevenson
Tyler Hamilton's is believed to be the first doping case to hinge on detection of a prohibited method of enhancing performance rather than a prohibited substance. As such, the Hamilton case and the appeal currently awaiting a hearing at the Court of Arbitration for Sport (CAS) are likely to set some important precedents.
The outcome of the Russian and Australian Olympic Committees' appeal to CAS to have Hamilton stripped of Olympic gold may hinge on the interpretation of the master document in the sporting world's fight against doping - the World Anti-Doping Agency Code. But it's therefore also possible that Hamilton's lawyers could use interpretative arguments to defend his medal.
The WADA Code sets out the philosophical and practical basis for the anti-doping regime in all sports that are WADA signatories. That includes cycling and every other major sport - in particular, if you want your sport to be in the Olympics, you must be a WADA signatory.
In Article 2 of the code, WADA sets out the situations that constitute doping, starting out with the most common one: a positive finding for a prohibited substance. Doping, it says, is established by, "The presence of a Prohibited Substance or its Metabolites or Markers in an Athlete's bodily Specimen."
That sentence has been the basis for almost all doping cases to date. While athletes have also been sanctioned for possession and trafficking of prohibited substances, the most straightforward evidence of doping is the presence of a banned drug in a urine sample. And the code specifically makes athletes responsible for drugs found in their systems - it doesn't matter how it gets there.
Method not substance
However, what Hamilton is accused of is not the use of a prohibited substance but of a prohibited method: blood doping, or the transfusion of another person's blood to increase the recipient's oxygen-carrying capacity. At Athens, Hamilton's A sample was found to be positive for homologous blood transfusion - blood doping. However, the B sample was frozen instead of being refrigerated, rendering it useless for the recently-introduced transfusion test which requires examines whole red blood cells for evidence of transfusion. Unless performed using special techniques, freezing destroys blood cells.
Because the A sample finding could not be confirmed by a B sample test, Hamilton was allowed to keep his gold medal.
However, it may be that the standard requirement of a pair of tests is not necessarily needed to establish a doping case. Other provisions of the WADA code might apply. Sean Winnette of the Australian Sports Drug Agency pointed out that athletes are now being sanctioned for doping as a result of types of evidence other than straightforward tests. "Athletes being found guilty of doping can arise from a broader range of events than just a positive sample," explained Winnette, pointing out that the BALCO hearings have resulted in sanctions against athletes who have not tested positive for THG, but who have been implicated as a result of other evidence.
Article 2.2 of the WADA code adds that doping is also, "Use or Attempted Use of a Prohibited Substance or a Prohibited Method." A footnote to this Article adds, ""Use" can be proved, for example, through admissions, third party testimony or other evidence."
A matter of evidence
Could it be, then, that the Russian and Australian Olympic Committees' lawyers intend to argue the case that Hamilton's initial positive sample from Athens constitutes sufficient 'other evidence', especially supported by scientific opinions such as Dr Michael Ashenden's?
"It's certainly possible that this is another avenue of attack," said Winnette.
Sports lawyer Richard Christie of McMahons National Lawyers was more skeptical. "If you look at the prohibited methods on the banned list, two of them refer to blood doping, so you have to prove the athlete has used some sort of blood product," said Christie. "I'm not sure whether that argument would succeed. Why would there logically be a difference?"
Conceding that the WADA code clearly allowed for evidence beyond the standard pair of tests, Christie pointed out that such evidence nevertheless has to be closely examined. "Look at [Australian teenage sprinter] Mark French's allegations," said Christie. "He made accusations that other people were [injecting substances in his room] but his evidence was found to be unreliable. It comes down to what evidence would be acceptable to prove a prohibited method."
The quality of the evidence, and of the test itself, is crucial to this case, and to Tyler Hamilton's attempt to clear his name after he returned positive A and B samples for blood doping at the Vuelta a Espaņa. Hamilton's Phonak team-mate Santiago Perez also tested positive for blood doping in early October. Hamilton, Perez and Phonak team have said they will attempt to prove that the test is flawed and that their cases are false positives.
"I tend to think that proving use of prohibited methods relies on being able to prove that you have a reliable test," said Christie. "I would have thought that testing would therefore rely on the same two-sample protocol. However, it doesn't actually say that in the WADA code. The authorities may realize that they can't get up on an argument that parallels the substance case so will try and argue this way."
The decision of the CAS in the Olympic medal appeal, and the decision and sanctions, if any, handed down by the US Anti-Doping Agency in Hamilton's Vuelta case, may guide anti-blood doping measures for years to come. As Christie says, when it comes to the actual CAS hearing, "It remains to be seen what is argued and it is new territory. It may be that it falls in this case to interpret the code in a new way."
More legal points
Further to Richard Christie's comments above, he and Alan Friedlander, also of McMahons National Lawyers, offered the following analysis by email:
Whilst it is not appropriate for me to comment directly on any case that is before the CAS, I can make the following hypothetical remarks:
1. I don't think that the explanatory footnote to Article 2.2 should be interpreted to mean that the standard of proof for a Prohibited Substance violation is different to that for a Prohibited Method violation. The standard of proof in all cases is greater than a mere balance of probability which typically applies in civil litigation but less than proof beyond reasonable doubt which typically applies in criminal litigation-see Article 3.1
2. The footnote refers to the word "use" and says that "use" can be proved in a variety of ways, for example, through admissions, third party testimony or other evidence.
3. Each of these ways of proving use can be applied equally to the use of a prohibited substance or the use of a prohibited method.
4. Where samples are sought to be relied upon to prove a violation there is a strict regime that must be followed. If the first or A sample is positive, the athlete has the right to call for a confirmatory B sample, alternatively he or she can waive this right and admit the violation.
5. Where there is no admission and the B sample is collected, but for some reason is incapable of being analyzed, the A sample on its own will likely be insufficient proof of a violation of use of a Prohibited Substance of a Prohibited Method, as clearly the draftsperson/s of the World-Anti Doping Code felt that a single sample test was unreliable without a second confirmatory test sample.
6. Although I am not aware of any previous case in which it occurred, it seems that a violation could be established without a B sample if the A sample evidence was supported by other evidence established by reliable means or, to put it another way, the A sample was merely used to support the other evidence.
Anderson report clears all but French
The Second Stage Report of the inquiry by the Hon. Robert Anderson QC into allegations regarding doping violations by members of the Australian cycling squad was tabled in Australian parliament today by Federal Minister for the Arts and Sport, Senator Rod Kemp. In the report, Anderson reiterated his findings from the First Stage Report (July 29) that all of the riders implicated by Mark French in his testimony during the "equine growth hormone affair" have been cleared, save for French himself.
"One cyclist [French] has been found guilty of a drug offence and is being dealt with in accordance with relevant anti-doping policies, another cyclist [Jobie Dajka] was found to misrepresent his involvement, and all other cyclists named have been cleared of any wrong-doing," Senator Kemp said.
Stage 2 of Anderson's investigation focused on the adequacy of management and supervision of athletes at the Australian Institute of Sport (AIS) Del Monte facility during 2003 with respect to detection and prevention of doping offences; and the appropriateness and effectiveness of steps taken by the Australian Sports Commission (ASC), Cycling Australia (CA) or any other relevant body following the discovery of prohibited substances in Del Monte on 2 December 2003.
"It is clear from the findings of the report there was no cover up by the ASC or CA," Senator Kemp continued. "The report also found there was no evidence of a 'shooting gallery' at Del Monte facility, habitual widespread drug use or group injecting sessions. In fact, Mr Anderson said that these allegations had caused serious personal prejudice to the innocent cyclists embroiled in this matter. These allegations should no longer tarnish the reputation of our elite cyclists."
The report also recommended the establishment of an investigatory body to deal with doping cases that is "independent from the AIS, the ASC and National Sporting Organisations." Senator Kemp said, "I have today released a discussion paper for public comment on a potential new independent body for investigating doping allegations."
The full report is available at: www.dcita.gov.au/?a=16787.
Cyclingnews' coverage of the Australian doping allegations
13, 2004: Dajka loses final bid
Perkins loses one gold medal
Australian junior Shane Perkins will be suspended for six months and probably stripped of one of the gold medals that he won at the World Junior Track Championships in Los Angeles, USA, this July. Perkins tested positive for methamphetamine on the night that he beat compatriot Daniel Thorsen, Francesco Kanda (Italy) and Ryan Nelman (USA) to win the Keirin. If he is stripped of the gold, then Thorsen, Kanda and Nelman will be awarded the three medals respectively.
Perkins' case was heard in front of the Court of Arbitration for Sport last Thursday, and the Court took into account extenuating circumstances in that Perkins had inadvertently used a stimulant. "In America Perkins purchased a nasal inhaler of the same brand he regularly uses in Australia without realising it contained a different active ingredient, namely methamphetamine, which is on the banned list," said Cycling Australia in a statement.
Although Perkins tested positive in the Keirin, a subsequent test two days later after he won the Sprint was negative. He will therefore not be sanctioned in that event.
Perkins' suspension will run for six months, starting from November 16, 2004.
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