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The Explainer: Can Landis ride? What is Valverde’s crime?

  • By Charles Pelkey
  • Published Jun. 3, 2010
  • Updated Sep. 13, 2010 at 11:02 AM EDT

Dear Explainer,
In light of his recent admission to having doped, what happens if Floyd Landis shows up at a bike race? Is he now under suspension again? Can Floyd Landis continue to race? Would his confessions make him eligible for a lifetime suspension, since they involve violations other than the testosterone positive at the 2006 Tour de France?
Curious

Dear Curious,
At this point, Landis is free to ride. You could conceivably see him line up at road race near you and here’s why:

Since the admissions Landis made involve WADA violations that took place prior to his 2006 violation, he cannot be subjected to additional charges. The World Anti-Doping Code does spell out rules for potential multiple violations in Article 10.6.

Specifically, Article 10.6.1 notes that once an athlete has been penalized for a violation, he can only be charged with a second violation only if the charging party (in this case, USADA) can establish that the violation took place after the person received notice of the first violation. In Landis’ case, once he received notice of the 2006 violation, he could only be charged with doping violations that took place after that date. The notice, in essence, applies to his entire doping history prior to that date.

Landis was notified in August of 2006 that he had tested positive for testosterone after stage 17 at the Tour de France. If he had tested positive for EPO or blood-doping on stages 18, 19, 20 and 21, it would still fall under the rules outlined in Section 10.6.1 and he could not be subjected to additional penalties. He could only be charged with a single anti-doping rule violation. Evidence of those hypothetical violations could, however, be introduced to solidify the case against him.

Now that Landis has admitted doping, but limited that admission to violations that occurred prior to receiving that 2006 notice of a violation, he can’t be charged with those. At this point, he could only receive further sanction – and a probable life-time ban – if USADA could offer evidence of doping after that point.
Charles

Dear Explainer,
Both Ivan Basso and Alejandro Valverde have received two-year bans for having stored blood in Doctor Fuentes’ refrigerator in Spain. Neither has ever tested positive for EPO, nor is there any direct evidence that either rider had actually engaged in autologous or homologous blood-doping.

Under what rule are these bans possible? It seems to me the equivalent of convicting a guy for assault on the basis of finding brass knuckles in his basement.
Tim in Kentucky

Dear Tim,
The World Anti-Doping Code makes a number of allowances for so-called “non-analytical positives” and the blood bags of blood labeled “Birillo” and “VALV.(PITI)” are most certainly admissible.

First off, there is strong evidence that Dr. Fuentes was involved in doping athletes. He is, by specialty, a gynecologist and stored athletes’ blood – both male and female – in various locations in and around Madrid. The case there is fairly strong and would – had there actually been a law on the books at the time – have stood up in a criminal prosecution. The presence of Basso’s and Valverde’s (and Jan Ullrich’s, by the way) blood is an indication that they were engaged in doping practices. The assumption that penalties can only be handed out as the result of an analytical positive is wrong. That is no longer the case, nor should it be.

Here in the U.S., former Rock Racing rider Kayle Leogrande was suspended after USADA presented a fairly strong case, based largely on witness testimony (and a photograph of his distinctively tattooed forearm holding vials of EPO). He was suspended for two years despite never having tested positive.

WADA rules have always allowed the introduction of “non-analytical evidence,” a provision that was further expanded in the CODE revisions adopted at the 2007 World Conference on Doping in Sport in Madrid. The introduction of such non-analytical evidence allows an anti-doping agency to build a case even though the targeted athlete might – in the words of Valverde’s Caisse d’Epargne team – be “probably the most controlled sportsman in the world.” A similar self-characterization has been offered by others, notably among them Marion Jones.

None of this is to suggest that the rules of evidence in these cases are looser than they are in criminal matters. Indeed, Jones – who served six months in Federal prison on a doping-related perjury conviction in 2008 – didn’t really begin to face serious problems until her encounter with criminal investigators working on the now-infamous BALCO case.

There is a somewhat lower burden of proof in doping cases than the “beyond a reasonable doubt” standard in American criminal cases. In doping cases that fall under the Code, the charging party has to present evidence that meets a standard known as “to the comfortable satisfaction of the panel,” which is lower than “beyond a reasonable doubt” but higher than the “preponderance of the evidence” standard in civil cases.

Indeed, I’ve seen criminal convictions in U.S. courts made on considerably less evidence than that presented in the Valverde case. The delays in the application of his penalty were largely due to jurisdictional and procedural issues.

But your question also goes to the question of the riders’ intent. As far as doping cases go, you can be convicted for the equivalent of “assault on the basis of finding brass knuckles in his basement.”

Specifically, the Code bans the “use of prohibited substances and methods.” Article 2.2.1 goes directly to the question, noting that, “the success or failure of the Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping rule violation to be committed.”

Given their respective DNA matches to blood stored in Fuentes’ Fridge, Basso, Valverde and Ullrich are each quite arguably guilty of violating that provision at a minimum. Basso’s limited confession – a variant of the I-did-not-inhale defense – appears to be one crafted with the language of Article 2.2.1 in mind.
Charles


Email Charles Pelkey

“The Explainer” is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to WebLetters@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.

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