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The Explainer: Who’s in charge?

  • By Charles Pelkey
  • Published Jun. 30, 2011
  • Updated Jul. 1, 2011 at 9:44 AM EDT

Heras, leading the Vuelta in 2005.

Q. Dear Explainer,
So a Spanish civil court recently invalidated the doping control from the 2005 Vuelta that snared Roberto Heras.

Regardless of the eventual outcome in this case, I’m curious why a civil court has jurisdiction over doping controls in a race under multiple international auspices (UCI, WADA).

Does the strategy of Heras’ legal team portend anything for future anti-doping efforts? Or is this just more of “Spain being Spain” with regard to sieve-like anti-doping enforcement?
– Tim

A. Dear Tim,
The Heras decision does raise some interesting questions, but it’s important to remember that last week’s ruling by the Contencioso Administrativo del Tribunal Superior de Justicia de Castilla y León is a finding by a provincial administrative court and will be subject to appeal … perhaps several. Until that appeals process is exhausted, the ruling will not affect the results of the 2005 Vuelta a España, which was officially won by Denis Menchov.

So here we are nearly six years out and we see the results of a bike race being fought out in civil court, years after the International Court of Arbitration for Sport (CAS) rejected his appeal.

Do civil courts even have jurisdiction in these matters? Yes, they do. Do they often exercise that jurisdiction? Generally not, but there are times when the “final” word of CAS warrants challenge.

Now, in the past, civil courts were heavily involved in doping cases. You might recall that in the old days, a governing body would issue a sanction and those cases would often end up in local courts. The result was often a series of inconsistent rulings with some athletes being entirely absolved and others receiving harsh penalties.

Indeed, that issue was one of many cited as reason for the formation of the World Anti-Doping Agency (WADA) in 1999. Part of the goal was to foster the “harmonization” of rules, testing procedures and adjudication of cases under the umbrella of WADA and CAS.

For the most part, that’s worked. We do see cases, like Heras’, work their way into the civil court system, but again they are increasingly rare. Belgian triathlete Rutger Beke, for example, successfully overturned a positive EPO test by challenging it at the disciplinary council of the Flemish Community. WADA or his governing body could have appealed, but did not.

Unlike the system that was in place before WADA, the anti-doping agency has a lot of international legal muscle behind it. There are a host of national laws and multi-national agreements that essentially cede jurisdiction to the system established under the World Anti-Doping Code. Here in the U.S. federal law recognizes the U.S. Anti-Doping Agency (USADA) and its authority to test and adjudicate doping cases.

Internationally, the UNESCO International Convention against Doping in Sport — now ratified by more than 150 countries, including the United States — adds additional authority, formalizing governments’ efforts to control doping through the work of sports governing bodies and anti-doping agencies.

In that structure, CAS is the ultimate arbiter of disputes. However, there is recourse even after CAS has issued a decision and that’s the road Heras is taking in his case. In Europe, the courts have had to deal with sporting issues and the European Court of Human Rights is really the ultimate decision-maker. Here in the U.S., the federal court system could offer an athlete a means by which to appeal a CAS decision.

Floyd Landis, for example, repeatedly raised the possibility of challenging his suspension in U.S. courts after losing his CAS appeal.

As mentioned, though, such cases are quite rare. We have seen a few doping cases find their way into U.S. courts when they involve non-WADA sports like American football or Major League Baseball.

Courts still tend to defer to anti-doping agencies — and non-WADA anti-doping programs — because they often view doping regulation as a part of the contract that athletes have with their respective sports. In 2004, for example, two professional long-distance swimmers asked the European Court of Human Rights to overturn WADA’s testing policy on the grounds that it represented interference in their right to earn a living. The court not only dismissed the claim on jurisdictional grounds, but also ordered the two plaintiffs to pay court costs for both sides, ruling that the challenge was “frivolous” in nature.

So the courts tend to recognize the authority to test, adjudicate and punish. Appeals are generally only going to succeed — or even be heard — when there are major procedural issues, due-process claims or human-rights questions.

Heras, it appears, thinks he has a case. I, for one, doubt he will get much further, but we’ll wait and see.

Conflict of interest … and the appearance of same

Finally, regarding your “Spain being Spain” observation, I do want to make a couple of points.

First, the case is working its way through the Spanish court system and I haven’t read the ruling in the Heras case, so I am not sure if it is a sound decision or not. But in light of the Spanish cycling federation’s ruling in the Contador matter, the same federation’s reluctance to pursue the Valverde case with vigor and several other decisions that seem to favor accused riders, Spain is getting something of a reputation as being soft on doping. I honestly believe that it’s not necessarily an accurate description of Spain’s anti-doping efforts, but there is a really easy way to solve even the appearance of a problem.

It goes back to WADA’s original goal of “harmonization.” We’ve seen some rather odd rulings come out of national governing bodies in the past and some of those have been anything but “harmonized” with the treatment handed out by their international counterparts.

It was, for example, the Kazakh cycling federation that suspended Alexander Vinokourov for just a year after he was found guilty of homologous blood doping at the Tour de France. It took a UCI/WADA appeal to extend that to two years. As mentioned, Spain has its own issues.

I am generally loath to be the type to say that other countries need to look to the United States as a model for a particular policy. That said, we actually do it right here.

While the World Anti-Doping Code does grant individual governing bodies primary jurisdiction in doping cases, here in the U.S., sports governing bodies — like USA Cycling — quickly handed that authority to where it really belongs, namely the U.S. Anti-Doping Agency. There is no appearance of conflict, because there isn’t one. Sure, the management of USA Cycling might know and like a particular rider, but they aren’t the ones handling the case. It’s that feisty attorney Travis Tygart and his crew, who don’t have any incentive to treat anyone with kid gloves.

Internationally, too, the U.S. approach could — and should — serve as a model. Take, for example, the recent allegation that Lance Armstrong “donated” a substantial sum of money to the UCI at a time when there was an allegedly positive doping test from the Tour de Suisse hanging out there. I’m not saying that the allegations are true or not. What I am saying is that a donation made directly to the agency in charge of monitoring a doping case has the appearance of impropriety.

It’s a problem that could easily be solved by getting the UCI out of the anti-doping business entirely and handing full authority to WADA. The alleged Armstrong incident occurred under Hein Verbruggen’s watch. I doubt the same allegations would have been leveled against Dick Pound, who was heading up WADA at the time.

One added note, though. For that to work, however, WADA (and USADA for that matter) should dispense with the pretense that they are anything but the prosecutors in these cases. Anti-doping agencies tend not to admit that, saying instead that they are on a mission to “find out the truth.” Well, yeah, but part of that truth-seeking is to have two clearly delineated opposing parties make a presentation to the real finders of fact — in this case arbitration panels and CAS — and make a strong and ethical presentation of their arguments.

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