Cyclists, Health, Anti Doping and Medical Monitoring A better approach?
Editorial Originally published by the The International Network of Humanistic Doping Research http://doping.au.dk/
Martin Hardie, Lecturer in Law, School of Law, Deakin University, Australia.
It is July and the Tour is upon us, and already the first week of racing, as is the norm, has been marred by a number of crashes that have seen big names withdraw from the race from one or another injury. Accidents and mass crashes have been, and always will be, a part of road cycling, and they probably are unavoidable with a large peloton of over 150 riders daily battling the elements.
Nevertheless at the beginning of this year’s cycling season the question of rider safety was well and truly on the agenda. A certain amount of debate and hysteria was generated, particular by one US Director Sportif, concerning rider safety and the effect on it by the banning, by the UCI, of the use of radios in some professional races. One wondered at times whether the debate was more about the control of the race by team directors and their particular jobs and power, than the issue of the safety of the riders. Shortly afterwards, the issue of safety was brought home to us sharply in this year’s Giro d’Italia, a race where race radios were permitted by the UCI. The cycling world was shocked and saddened early in the race by the death, in an on the road accident, of the Belgian rider Woulter Weylandt. He of course was not the first rider to die or suffer serious injury as a result of an accident. The following month, the Colombian rider, Mauricio Soler, crashed in the Tour of Switzerland, and has only recently woken from a coma, and the extent of his injuries is still uncertain. Nevertheless, his death added fuel to the debate concerning the safety and conditions of professional cycling.
But the issue of riders’ health and safety extends beyond accidents arising within the racing context and beyond cycling. Over the past Australian Football season some players have come forward and spoken of the long-term health effects of their playing career. Some have reached out of court settlements with their teams because of the damage caused to them by concussion sustained on the football field. A similar issue has been on the agenda in recent years in the case of American Football.
Although professional cyclists do injure themselves in crashes, and some, such as the Spanish rider Pedro Horrillo, carry the scars with them for the rest of their lives, it is the endurance nature of the sport, and the need for cyclists to properly recover between stages in a race and between races, that gives rise to what I think we can call cycling’s equivalent of Australian and American football’s concussion – that is, health problems related to chronic fatigue.
Fatigue and the need to recovery are of course issues that some cyclists, as well as other athletes, attempt to manage by way of doping. It is in this context that anti-doping policy has a real and substantive, rather than a mere rhetorical connection, with the protection of an athlete’s health. Anti-doping and health protection are prima facie connected on two levels. Firstly, doping substances and methods may in themselves be harmful to athletes’ health. Much is made by anti-doping policy of the claim that doping is bad for an athlete’s health. On the other hand, some doctors justify their doping and supplementation regimes themselves as being beneficial for a rider’s health. However, action which offers athletes safe alternatives to doping is not a matter that is given much attention.
Secondly, which is not as widely understood or recognised, is the connection between over-racing, over-training, and/or poor training techniques, which consequently lead to fatigue and chronic fatigue conditions. One way to try to overcome or at least mask the effects of fatigue and to artificially recover is by way of resort to doping. The use of EPO and blood doping techniques is in effect a mechanism intended to shortcut the natural recovery process.
It is in this context that the connection between the duties of teams to protect their riders’ health and doping coincide. An employer is under a legal duty to protect, or at least to ensure that their employee’s health is not put at risk. This is reflected in the UCI standard form contracts between professional cyclists and their teams, where teams undertake to respect the UCI riders’ protection program. The riders’ protection program that these contracts refer to is a program contained in a body of rules proclaimed by the UCI dedicated to the protection of cyclists’ health. These are found in Part 13 of the UCI Regulations concerning Sporting Safety and Conditions.
The UCI established the medical monitoring program constituted by these rules as a tool to be utilised by the professional cycling teams to ensure the fitness and the health of their riders. The program provides information that equips the teams and the riders to make informed decisions as to whether riders are, in fact, fit enough to compete in some of the most difficult and stressful sporting events in the world. However, it appears that in practice, these rules are rarely observed to their letter by the management of professional cycling teams. The fact is that in the case of some professional cycling teams, Part 13 of the UCI Regulations is more honoured in its breach than in its observance, and this, in itself, does not engender confidence in any sporting rules, including anti-doping rules, which purport to be in the interest of athletes’ health.
If some professional teams do not appear to place much importance in compliance with these rules, what then is the solution, if there needs to be one, to the problem? The existing rules, which to date, do not seem to have been enforced by the UCI (we can hope that this situation might itself soon change) carry with them harsh sanctions against teams, team doctors and managers who are responsible for the medical and administrative compliance with them. The relevant regulations state:
13.1.036 The following penalties shall be imposed in the event of infringements of the regulations set out in the present section:
1. to the Team: suspension from eight days to six months and/or a fine of CHF 1,000.00 to CHF 100,000.00 in the event of a contravention of article 13.1.025 the Team shall be penalised by a fine of CHF 500.00 per rider per week’s delay;
2. to the rider: suspension from eight days to three months and/or a fine of CHF 100.00 to CHF 10,000.00;
3. to the Team doctor: in accordance with article 13.2.008;
4. to the Team Manager: a suspension of between eight days and ten years and/or a fine of between CHF 500.00 and CHF 20,000.00. In the event of an infringement committed in the two years following the first infringement, six month suspension minimum or final exclusion and a fine of CHF 1,000.00 to CHF 30,000.00.
13.2.008 Any breach of the obligations imposed by these regulations shall be penalised by a suspension of between eight days and one year and/or a fine of between CHF 500.00 and CHF 5,000.00. In the case of a second offence within two years of the first, the doctor will be suspended for a duration of at least six months or excluded permanently and subjected to a fine of between CHF 1,000.00 and CHF 10,000.00. Furthermore the matter may be passed over to the medical disciplinary authorities.
These are not insignificant penalties, a first offence by a Team Manager for an administrative non-compliance carries a maximum penalty of ten years suspension – that is a penalty five times higher than that which a cyclist might be given for a doping offence. The penalties suggest that those that originally drew up the Regulations felt that the protection of the health of professional cyclists was a matter of importance, possibly because they recognized the risks to an athlete’s health during and after their careers, and the connection mentioned above, that the need to beat fatigue might itself be a pathway to doping. Enforcement of the existing rules is obviously one way in which a message could be sent to teams concerning the importance of their legal duty under the general law and the rules of cycling to care for the health of those that they employ.
The existing medical monitoring system might also be improved if, for example, the blood testing mechanisms adopted under the Biological Passport system were utilised for the collection and analysis of health related data. Vast sums are already being invested into the Biological Passport system by the professional cycling teams, and under the existing rules they are also already responsible for the expenses related to the medical monitoring program. Prima facie, a sensible use of resources for the teams, rather than funding two parallel testing and examination systems, might be to fund one merged testing program which collects complementary data, which is both directed at anti-doping (through blood and urine tests and examination by the Biological Passport Committee) and at medical monitoring (through the same blood tests as well as other forms of mandatory medical examinations which could be examined by for example team doctors and monitored by the UCI).
The current medical monitoring program set out in Part 13 of the UCI Rules might in fact operate in a more efficient and effective manner if it was adapted and merged with the Biological Passport program used to detect doping in cycling. By doing so it might be that a substantive, rather than mere rhetorical, connection could be made between the health of athletes and anti-doping policy. By building a stronger link between substantive health monitoring and anti-doping, ‘athlete concordance’, rather than mere compliance, with anti-doping may itself be improved and better fostered. As we emphasised in the “I Wish I was Twenty One Now” Report, there is a need for a stronger link to be developed, between the cyclists’ career sustainability, their health and labour conditions and an effective and substantive rationale for anti-doping policy. The merging of health and medical monitoring and the Biological Passport may be a step that would assist that process.
Deakin will hold a public seminar on this topic on Monday 25 July at its Melbourne City Centre in Bourke Street, for more information: http://www.deakin.edu.au/research/stories/2011/06/29/athletes-health-and-anti-doping
References:
UCI Cycling Regulations Part 13 Sporting Safety And Conditions, Chapter 1 Medical Monitoring.
Hardie, M., Shilbury, D., Ware, I., Bozzi, C., “I Wish I was Twenty One Now” – Beyond Doping in the Australian Peloton, A Report, Deakin University Faculty of Business and Law, Waurn Ponds, Victoria, Australia. New Cycling Pathways: http://www.newcyclingpathway.com Draft Version 1.0. 27 September 2010.
On Monday, after an appeal by the World Anti-Doping Agency (WADA) and the International Cycling Union (UCI), to the Court of Arbitration for Sport (CAS,) Contador was stripped of the 2010 Tour de France title and banned from competing until August.
ThE defence was one concocted at a meeting in Spain a month or so before the news of the positive test became public during the 2010 World Road Cycling championships in Geelong.
At the meeting were Dr Mario Zorzoli, the UCI’s chief medical officer, Dr Pedro Celaya, Contador’s team doctor, and Contador.
By coming up with that defence, they might just have helped Contador cut his own throat.
If you read the judgment, the three panellists from the Court of Arbitration basically said they would have accepted an argument for mitigation that the clenbuterol was contained in a contaminated supplement. This is despite the fact that there was no evidence before the tribunal that the source of the clenbuterol was from a supplement.
But Contador never offered that as a reason, rather he stuck by this story that he and the other people at this meeting had come up with that it was from contaminated meat. Because of this CAS couldn’t take the supplement story into account as a mitigating factor.”
In the end CAS seem to be saying that he didn’t intentionally dope, but that isn’t the issue.
From a legal perspective the decision of CAS is another bizarre instalment in their decision making.
How could CAS find the source of the clenbuterol was more likely to be from a food supplement when there was no evidence of this before them other than the precedent in the case of the swimmer Jessica Hardy?
The case also brings into focus the severity of the strict liability provisions of the WADA code – this case was never about Contador’s innocence, but whether or not he could provide an explanation which might mitigate his penalty. With all the money and prestige at stake in these cases I would not be surprised if we see some governments pressure WADA to change the strict liability principle.
For the UCI, they have got the result they dreaded from the start, the best and highest profile cyclist of the moment under a cloud and banned.
Certainly the sport remains tainted, even though in this case the amount of the banned substance was so small.
That was probably one of the reason’s the UCI initially took it so lightly, and while Contador was cleared by his national body in Spain.
In Spain, since the end of Fascism, there is a real focus on justice. After years of people disappearing without trial and without trace the Spanish support the notion of citizens having substantive legal rights. That is why the Spanish judge who is their equivalent of the Chief Justice of the High Court here in Australia came out at the time of the original Spanish decision clearing Contador saying that to find him guilty would be contrary to the normal sense of justice.
In contrast to this is the absolute nature of cycling’s rules in relation to positive drug tests, no matter how small the amount.
This and the Valverde case show where the real tension is in anti-doping – between the laws and rights granted to citizens by their country and their constitutions and the global system of sporting law which floats above it.
Interestingly, the decision to appeal against the Spanish national body’s decision was taken by the World Anti-Doping Agency, with the UCI a reluctant seconder only.
Initially the UCI wanted it to go away. Because of WADA’s involvement, it went to the Court of Arbitration, where Contador continued his argument based upon contaminated meat.
The positive test meant he was guilty, there’s no getting around that under the anti-doping rules in sport.
It then came down to what Contador could have offered in mitigation to get a reduced penalty.
“The CAS seems to be saying in its ruling, that if he had offered the mitigation that the clenbuterol was contained in a contaminated supplement, they would have accepted that.
Contador, though, stuck by this story of the contaminated meat. However, the bizarre nature of the CAS finding might give Contador a real leg to stand on as the victim in this case.
The length of time taken to deal with the matter wasn’t necessarily a major issue. They say that justice delayed is justice denied, but by normal standards involved in court cases, this wasn’t a long time at all. The real dangers to justice here are the constant calls for speed which mean that too often judgments are rushed to in the media and before all the evidence has been obtained and sporting politics is dressed up as law.
Overall though the whole episode has thrown another cloud over the manner in which cycling is administered. And for Contador, he can feel assured that CAS found that he didn’t intentionally dope, whilst he sits out his ban and sees his victories annuled from the record.