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The Explainer: Testing, methods and jurisdiction

  • By Charles Pelkey
  • Published Nov. 18, 2010
  • Updated Nov. 18, 2010 at 3:31 PM EDT

Q.Dear Explainer,
I would like to know how the anti-doping tests in professional cycling compare to the testing that goes on in other professional sports. I seem to remember reading about a court ruling in the U.S. that forbade team owners from firing athletes that tested positive.

I also have the impression that in sports like baseball, the athletes’ union has very successfully fought to limit both testing and punishments. It seems that there is a huge discrepancy between all this testing and media coverage that goes on in cycling versus the rest of the sporting universe.
Beth Prescott

A.Dear Beth,
Cycling certainly gets more than its “fair” share of attention in doping circles. Of course, that may be due in part to the fact that cycling has more than its fair share of doping. Look at the sport. At the top levels, we see athletes spending four, five and six hours a day racing over the course of three weeks. The demands are incredible and the benefits of what were once graciously called “recovery methods” are obvious, especially since the development of oxygen transport drugs like EPO.

Do recall that the World Anti-Doping Agency was itself created as the direct result of a doping scandal at the 1998 Tour de France. The fight against doping in sport is rooted in cycling and our sport continues to warrant attention. We also tend to produce the highest number of anti-doping rule violations. According to its annual report, cycling alone generated 64 anti-doping rule violations (and 77 adverse analytical findings), the highest number of any international governing body that is part of WADA. Indeed, the UCI’s numbers were more than double those of the second federation on that list, the International Weightlifting Federation, which tallied up 30 rule violations. We’re No.1!

Now, with regard to major professional sports in the United States, the biggies — Major League Baseball, the National Football League, the National Hockey League and the National Basketball Association — have their own anti-doping programs, which are not subject to the rules outlined in World Anti-Doping Code. Those professional leagues are not directly related to the International Olympic Committee and are, therefore, not subject to the provisions of the Code. American professionals participating in Olympic events, however, are subject to the rules and regulations of their IOC-chartered governing bodies and must comply with those rules and procedures.

Testing and anti-doping enforcement in American professional sports are governed by labor contracts between the leagues and their respective players’ associations. There is some movement afoot to have those rules either mirror those in the Code or to simply turn over all testing and enforcement to WADA. It’s unlikely, though, that we will see that any time soon.

The case to which you refer involves Minnesota Vikings players Kevin Williams and Pat Williams.  The two Williams — not related — tested positive for the masking agent bumetanide, a strong diuretic, way back last year. While the two were suspended for four games, they have never served the suspension, since a court imposed a temporary restraining order until the issue is resolved.

The Williams contend that they weren’t afforded the opportunity to offer mitigating evidence — namely that the Bumetide was an undisclosed ingredient in a weight-loss supplement — before being found guilty of a violation.

Earlier this month, the U.S. Supreme Court declined to hear the NFL’s appeal of lower court rulings in the case. At this point, the matter remains up in the air. There were oral arguments before a Minnesota appeals court Wednesday as the two players seek to permanently bar the imposition of their four-game penalty.
Charles

Q.Dear Explainer,
Regarding the question as to how Contador had clenbuterol in his urine, would it show up in a different form in the urine depending on whether he ingested it versus having had it injected via vein?
Dave Eenigenburg

A.Dear Dave,
I have to assume that your question is based on the fact that some have suggested that Contador’s urine showed traces of the drug due to his reinjection of stored blood (which, according to this theory, would still have had traces of clenbuterol from earlier off-season use) as opposed to his ingestion of tainted meat.

The WADA certified lab in Cologne, Germany, used a gas chromatography/mass spectrometric (GC/MS) analysis to test for the presence of clenbuterol in Contador’s urine. The drug can be administered both orally and intravenously, but the test can’t distinguish between methods of administration.
Charles

Q.Dear Explainer,
I have a question regarding how the Floyd Landis situation unfolded and I hope you may be able to shed some insight into it for me. Initially Landis was found to have a positive sample for doping. He said that it was false and was innocent. He then proceeded to ask the public for money to defend himself against the doping charges he knew where to actually be true. Wouldn’t that constitute as fraud? Is his current situation providing him with immunity of sorts and if so how would this money for the defense be a part of it?
Patrick Angell

A.Dear Patrick,
It really hasn’t been confirmed as to whether or not Landis has been granted immunity in relation to the current grand jury investigation or not. One might suspect that to be the case, as attorneys for other riders testifying in the matter have indicated that their clients were offered immunity when testifying about past doping practices.

Assuming that to be the case in relation to Landis, it is doubtful that such immunity would extend to the fraud question you raise. It most certainly wouldn’t immunize him from any potential civil actions that might result from the fundraising efforts associated with the Floyd Fairness Fund. As to whether or not such a suit would be successful or not, I’m taking a wait-and-see approach to that question.
Charles

Q.Dear Explainer,
I keep reading about the guys investigating Armstrong branching out to foreign locations, with Novitzky visiting France and now they’re even search Popovych’s home in Italy.

What is up with that? This started as an American investigation and now we’re seeing it turn into an international case. Does Novitzky have any authority overseas?
Robert Tanner

A.Dear Robert,
The current investigation isn’t really headed up by Food and Drug Administration investigator Jeff Novitzky. It’s assistant U.S. attorney for the Central District of California, Doug Miller, who is in charge. Miller and Novitzky also teamed up in the BALCO case that eventually brought doping in baseball into the limelight and led to several convictions, including the perjury convictions of track star Marion Jones and cyclist Tammy Thomas.

As is the case with their current trip to France, it generally seems to be that Novitzky is the one that attracts the most attention. Despite his usually tight-lipped demeanor, the guy seems to be a magnet for reporters’ interest. I guess the fact that he’s six-foot-five and bald as a cue ball makes him stick out in a crowd. He sure did catch the eye of the AP reporters staking out the hotel in Lyon this week.

Anyway, in terms of legal authority, obviously an assistant U.S. attorney overseeing a grand jury investigation in the Central District of California doesn’t have jurisdiction in Lyon and can’t order a search of a rider’s home in Brescia, Italy, either. That said, the visit in France — and possibly local authorities’ search of Yaroslav Popovych’s home in Italy — may well be the result of a great deal of cooperation between law enforcement authorities in those and other countries. That is not unprecedented.

There is a framework out there, encouraging such cooperation. The U.S. is a signator to the World Anti-Doping Code and the U.S. Anti-Doping Agency is recognized under the Ted Stevens Olympic and Amateur Sports Act (36 U.S.C. § 220501). The law, however, does not classify USADA as a state actor (which would lead to a host of Constitutional questions). The International Convention against Doping in Sport, an international treaty ratified by 147 countries, including the United States, also establishes a framework and encourages international law-enforcement authorities to cooperate in efforts to stem the use and trafficking of performance-enhancing drugs . While neither offers law enforcement officials any authority outside of their own countries, it does help foster the sort of cooperation we’re seeing in the current investigation.

While there is no evidence to suggest that Miller or Novitzky were directly involved in the decision to search Popovych’s home, the execution of warrants followed closely on the heels of the Ukranian rider’s testimony in front of the grand jury earlier this month.

The cooperation of the French National Anti-Doping Agency is due in part to the invitation extended to U.S. investigators this past summer when now-retired agency head Pierre Bordry said he was willing to share any and all evidence in the agency’s possession. That would apparently include urine samples (including the now infamous samples from the 1999 Tour) and a host of blood samples, which may be tested for traces of the same plasticizers that are now the subject of much discussion in the Contador case.

Bottom line is that prosecutors in the U.S. are talking to their counterparts in other countries. The results could be interesting.
Charles


“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 CPelkey@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.


Editor’s note: Charles Pelkey joined VeloNews in 1994 after leaving a leadership staff position in the U.S. Senate. Pelkey has worked as a journalist since 1985 and has held a number of editorial positions at VeloNews and currently serves as Senior Editor of VeloNews.com. Pelkey has a Juris Doctorate from the University of Wyoming College of Law and lives in Laramie, Wyoming, with Diana, his wife of 24 years, and their two children, Philip and Annika.

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