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The Explainer: Equal treatment for winners and the ‘wiggle room’ in the rules

  • By Charles Pelkey
  • Published Feb. 24, 2011
  • Updated Feb. 25, 2011 at 8:32 PM EST

A common image, but is it fair?

Where are the podium dudes?

Q. Dear Explainer,
I was just looking at a picture of Stephen Cummings flanked by two podium girls, planting kisses on his cheeks.

I can’t recall seeing a similar picture for a female racer. Are there podium dudes too?

Looking forward to your live ticker coverage of this year’s races.

Very Kindest Regards,
Robert

A. Dear Robert,
There are “podium dudes” out there, for sure, but one would have to concede they are something of a rarity.

I have covered quite a number of women’s races over the past 20 years, but I think it was 1998 before I saw the aforementioned “podium dudes” at any of those. I covered the Giro d’Italia Femminile that year and the two male models in the photo below, were there for the entirety of the race.

They was certainly treated as more of a novelty than are the ubiquitous beauties that appear on the podium in most major races around the world.

I’m of mixed mind regarding the whole idea of using podium prettys of either gender, but I have to admit that it’s one element of covering things like the Tour, Giro or Vuelta I’ve always enjoyed.

That said, it does seem like an out-dated and somewhat sexist approach, something akin to awarding the hand of a pretty young maiden to the victor of a duel or jousting match … but I still really like it. I guess there is something to be said for tradition … especially when tradition involves a gorgeous French girl in a yellow or polka-dotted dress at the Tour. What’s not to like? Well, except for that whole objectification thing, but ….

They're not daily and they ain't much of a distraction in my book, but what's good for the gander ...


As for Live Coverage this year, we’re still hammering out the schedule. I love doing those as well, even after I actually started using my own name, instead of the old moniker “Live Update Guy.” At some point, we’ll have a list of those events we are covering with Live text updates. Let us know if there is an event you’d like to get updates on.
Charles

Strictly speaking about fault, intent and accidental ingestion

Q. Hi Charles,
In your most recent “Explainer” column you say:

“Whether you agree with the current state of the WADA Code or not, the rules are pretty clear: Clenbuterol is a banned substance. It should not be in your body. If it is, you’re guilty of a doping violation, even if you did not intend to put it there. Whether that’s fair or not, is a topic for debate, but that’s the way the rules read now.”

Well, I think this would be a good time to bring up the subject of what happens when it is determined that a rider did indeed accidentally ingest a banned substance. From what I’ve read, the rider is still penalized, typically with a one year ban. My fuzzy recollection reminds me that there have been cases where it has been definitively proven to everyone’s satisfaction that the cyclist never intended to use any banned substance (unlike the situation with Contador), yet still the cyclist had to serve a penalty.

I’ve always thought this was a most ridiculous and blatantly unfair resolution to these cases. My sense of fairness tells me that if it can be proved that the banned substance was consumed accidently, then the rider is innocent of doping, and should not be penalized in any way. So I ask: what is the logic behind penalizing a rider who never intended to dope and is anything being done to change the rules at the WADA, UCI or USAC level?

Thanks,
John

A. Dear John,
I agree that the policy appears to be rather harsh at times and its impacts can be downright draconian at times. First, my summary in relation to that provision was brief and incomplete. Let’s touch on the question in a bit more detail. As I mentioned last week, there is some “wiggle room” in the World Anti-Doping Code.

Back at the first World Conference on Doping in Sport (an event “inspired” by cycling’s own L’affaire Festina at the `98 Tour), the question of intent came up briefly, but was quickly dismissed by the Conference’s “zero tolerance” policy when it came to doping. The intent question did make it into the rule book, though, and that’s what we’ll touch on here today.

You might have also noticed last week that I think we ought to come clean and treat doping cases like criminal cases. We should admit that we have prosecutors and defense attorneys, dispense with the noble language now embraced by Anti-Doping Agencies (“we are merely seeking the truth”) and even offer accused athletes something akin to a public defender if they can’t afford to mount an effective defense.

For purposes of this discussion, let’s put a typical doping case into the context of American criminal law. That’s not really a huge stretch. In most prosecutions, crimes have certain “elements” that have to be proven before you can see a conviction. We have different elements, different standards of evidence and the burdens of proof are often different, but when it comes to sports, doping is pretty much the most common form of “criminal act,” so bear with me on this one.

Now normally, in most criminal cases, the prosecution has to prove an “intent” element before you can be convicted of a serious violation. Lawyers, always prone to arbitrarily dredge up a bit of unnecessary Latin to confuse folks, call that Mens Rea. The full phrase is actually actus non facit reum nisi mens sit rea (the act does not make a person guilty unless the mind is also guilty). In American criminal law, there are different levels of intent and those can vary from state to state. Although not all states have adopted it, the American Law Institute has, since 1962, tried to bring a bit of standardization to criminal codes by drafting the “Model Penal Code.” It’s been updated a few times since. For our purposes, the MPC says intent falls into one of five different categories: Purposefully, knowingly, recklessly, negligently and (drum roll) strict liability.

As you know, the last one – strict liability – includes those crimes in which the prosecution need not prove intent. Who cares if you intended to speed through a school zone? The simple fact of the matter is that you did. Case closed.

That is the approach delegates to the 1999 Convention took in Lausanne: “It’s banned, it’s in your body, we don’t care how it got there and you’re in trouble.” Trip the Dope-O-Meter® and you get a two-year vacation.

Indeed, when the rules were fully codified in 2003, Article 2.1.1 made that clear:

“It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping violation under Article 2.1.”

If there was any doubt as to the Conference’s position, the accompanying commentary – which is not binding, but can be used as a guide for the arbitration panel – includes an interesting passage from an earlier accidental ingestion case – Quigley v. UIT – in which the court ruled that:

It is true that a strict liability test is likely in some sense to be unfair in an individual case, such as that of Quigley, where the Athlete may have taken medication as the result of mislabeling or faulty advice for which he or she is not responsible particularly in the circumstances of sudden illness in a foreign country. But it is also in some sense “unfair” for an Athlete to get food poisoning on the eve of an important competition. Yet in neither case will the rules of the competition be altered to undo the unfairness. Just as the competition will not be postponed to await the Athlete’s recovery, so the prohibition of banned substances will not be lifted in recognition of its accidental absorption. The vicissitudes of competition, like those of life generally, may create many types of unfairness, whether by accident or the negligence of unaccountable Persons, which the law cannot repair.”

Now despite the whole merde qui se passé attitude in Quigley, even then the Code made allowances for accidents and the absence of fault. Article 10.5 specifically provides for the ” Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances:”

If the Athlete establishes in an individual case involving an anti doping rule violation under Article 2.1 (presence of Prohibited Substance or its Metabolites or Markers) or Use of a Prohibited Substance or Prohibited Method under Article 2.2 that he or she bears No Fault or Negligence for the violation, the otherwise applicable period of Ineligibility shall be eliminated.

In essence, the Code acknowledges that the “prosecution” needn’t show intent, but the Code allows for the absence of intent to be raised as an affirmative defense. In other words, the burden of showing the absence of intent rests on the “defendant,” a point underscored at the end of Article 10.5.2:

When a Prohibited Substance or its Markers or Metabolites is detected in an Athlete’s Specimen in violation of Article 2.1 (presence of Prohibited Substance), the Athlete must also establish how the Prohibited Substance entered his or her system in order to have the period of Ineligibility reduced.

That’s the basis for the recent Contador decision. Contador’s attorneys were able to show “to the comfortable satisfaction” of the hearing panel that he had accidentally ingested a small amount of clenbuterol by consuming tainted beef.

That’s the “wiggle room” referred to in last week’s column. How that section of the Code is interpreted varies from case to case. Take, for example, the case of USADA v. Oliveira, in which the Brazilian-born, U.S.-based cyclist, Flavia Oliveira was suspended for two years – that’s four months more than Riccardo Ricco’s original suspension for CERA – for testing positive for a stimulant that was not listed among the ingredients of an energy supplement she consumed while competing in Italy. Even on appeal to the Court of Arbitration for Sport, the penalty was reduced by just six months, despite specifically finding that she had accidentally ingested the stimulant oxilofrine.

“The panel concludes that Oliveira’s testimony and the other corroborating evidence establishes to its comfortable satisfaction that she did not intend to enhance her sport performance by unknowingly ingesting oxilofrine,” the decision noted.

In a sense, that’s where the system falls short. When WADA was formed, it was created with the goal of eliminating the conflicts of interest that often led to bad results from famous people being quashed. It also had the expressed goal of “harmonization” meaning that laboratory standards, testing procedures and penalties would be more consistent. And while the current system is an improvement over the pre-WADA days, we do still have weird outcomes. Look at Oliveira.

We have an athlete accused of taking a supplement, who is ultimately found to have done so unintentionally. She ends up with an 18-month suspension, an improvement, but still just two months shy of what Riccardo Ricco got for admittedly boosting his performance with CERA. (Fortunately, his recent little Nosferatu act may keep that snake – sorry, I mean “Cobra” – out of the peloton permanently.)

Contrast Oliveira with the Contador case, which thus far has resulted in his being totally absolved and we see some level of inconsistency. Yes, Article 10.5 should apply, but it needs to be applied in the same manner across the board. I don’t think we’re seeing that yet.

Oliveira, meanwhile, is heading to Europe soon, has a team and is hoping to get her career back on track. As we’ve mentioned before, she’s also pursuing legal action against the manufacturer of the supplement that failed to include oxilofrine on its label, despite having included it inside the bottle. We wish her luck on the road … and in the courts, for that matter.
Charles


“The Explainer” is a regular feature on VeloNews.com. If you have a question feel free to send your query toCPelkey@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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