Over the last twenty years,
professional cycling has developed the reputation of one of the “most drug
soaked sports in the world”.[1]
This should not come as a surprise. The sport’s integrity has plummeted down
due to an unprecedented succession of doping scandals. La crème de la crème of
professional cyclists has been involved in doping incidents including Tyler Hamilton, Floyd Landis, Alejandro
Valverde
and Lance Armstrong. The once prestigious
Tour de France has been stigmatized as a race of “pharmacological feat, not a
physical one”.[2]
In view of these overwhelming shadows, in
2008, the
International Cycling Union (UCI), in cooperation with the World Anti-Doping
Agency (WADA) took a leap in the fight against doping. It became the
first International Sports Federation to implement a radical new anti-doping
program known as the Athlete
Biological Passport (ABP).[3]
The ABP signalled a paradigm shift in drug testing with its reliance upon
tracking biological variables in a cyclist’s blood and urine which are
considered to indirectly reveal the effects of doping and particularly of the
so called blood doping rather than
directly detecting a prohibited substance or method in a cyclist’s system.[4]
It constitutes an indirect method for the detection of an anti-doping rule
violation[5]
which triggers the imposition of doping sanctions under Article 2.2
World Anti-doping Code (WADC) based solely on the longitudinal
profiling of the athlete’s sample.
Albeit a “monumental step for cycling”[6],
the seven years of application of ABP have sparked a vigorous debate in the
cycling community from a legal and scientific standpoint. The Kreuziger case is the most
recent incarnation of the legal uncertainty surrounding the legitimacy of
finding cyclists guilty of doping based on the ABP alone. In August 2014, Roman
Kreuziger, a professional Czech cyclist and member of the Tinkoff Saxo
professional cycling team, was provisionally suspended after anomalies detected
in his ABP dating back to 2011 and 2012. The UCI’s decision was confirmed by the
CAS who dismissed the
athlete’s appeal against his provisional suspension. In September 2014, he was cleared
of doping
by the Czech Olympic Committee’s arbitral panel which decided on the merits of
the case pursuant to Chapter IX UCI ADR. With the appeal of the UCI and WADA pending before
the CAS
and Kreuziger, if found guilty, being under the
sword of Damocles of a four-year ban, we grasp the opportunity to offer a
thorough reading of the Czech Olympic Committee’s arbitral award which seems to
distil the most pertinent legal issues dealing with the ABP: (1) the ABP’s
reliability as indirect means of evidence in proving a doping violation and (2)
the latent tension between the national federations, which on one side, clear
the cyclists from doping violations and
the UCI and WADA, on other side, appealing these awards before the CAS, based
on its readiness to accept indirect biological-passport evidence in finding
cyclists guilty of doping, adding thereby to the legal uncertainty.
The
starting point: Kreuziger’s ABP abnormalities in a nutshell
While this blogpost does not intend to
delve into the obvious complexities of the blood profiling methods, the assessment
of the factual background of the Kreuziger
case requires an elementary examination of how the ABP functions.
The ABP is an individual electronic
record for professional athletes, where biological markers of doping have been
profiled and results collated over a period of time.[7]
Its novelty lies in the development of an individualized baseline for each
athlete, whose individual longitudinal profile becomes the point of reference
itself.[8]
In fact, the individual blood sample is compared to the athlete’s historical
parameters with the application of a statistical model that uses Bayesian inference techniques. The current
operational component of the ABP is the haematological profile, which monitors
blood markers and aims to detect blood
manipulation by either transfusion or erythropoiesis stimulating agents like
recombinant erythropoietin (rhEPO). Among the blood markers used in the
haematological profile are haemoglobin and reticulocytes. Haemoglobin is a protein located on red blood cells
that is responsible for binding oxygen so it can be transported through the
bloodstream.[9]
During a stage race, athletes are expected to show a consistent decrease in the
haemoglobin concentration due to plasma volume expansion.[10]
Reticulocytes are immature red blood cells. When blood is withdrawn from the
body or in case of rhEPO injections, the bone marrow is stimulated to produce
these immature blood cells. As a result, rhEPO injections can be a possible
explanation for high reticulocyte levels.[11]
On the other hand, when the blood is re-infused into the body, the body
recognizes the subsequent increase in red blood cells and decreases the
production of reticulocytes. In this sense, decreased reticulocyte levels can
be indicators of a recent blood transfusion or previous treatment of
erythropoiesis stimulating agents.[12]
In the case at hand, the Kreuziger ABP abnormalities consisted of
the detection of raised haemoglobin level during the 2012 Giro d’Italia and
raised reticulocyte level in the period from March to August 2011 and from
April 2012 to the end of the 2012 Giro d’Italia, according to the UCI Expert
Panel report dated 14 June 2012. It is noticeable that the mentioned indicators
did not go beyond the baseline values. However, as the UCI Expert panel
remarked, it was not the haemoglobin values themselves but the actual trend of
increasing haemoglobin levels during a race that was problematic.[13]
As a result, the UCI concluded that it is very likely that these abnormalities
were a result of blood doping and consequently initiated disciplinary
proceedings against Kreuziger on the grounds of violating Article 21.2 of the UCI ADR for using a
prohibited substance or a prohibited method.
The
Czech Olympic Committee’s arbitral panel decision on the Kreuziger case
- Questioning the fair trial guarantees
under the UCI ADR
The first issue raised by Kreuziger is
the breach of his right to fair trial due to the short deadlines in the
proceedings provided under the UCI ADR. In fact, the athlete claims that he did
not have sufficient time to properly prepare and respond to the statements
submitted by the UCI and requests that this evidence is not taken into
consideration. On the other hand, the UCI claims it did not have enough time to
reply to the additional statements submitted by the Athlete and asks the panel
not to take into account the new evidence. [14]
In view of these objections, the panel
decides to accept all evidence adduced by the parties in order to assess the
case in the fairest manner possible. The panel also seized the opportunity to voice
a strong criticism with regard to the short duration of the proceedings provided
under the UCI ADR. The panel does not only express its concerns that the UCI
procedural terms cannot guarantee a fair trial due to the “excessively short
deadlines for rendering the decision, entirely absent basic procedures and
unilateral preference for UCI’s procedural position” but it goes a step further
by characterizing the process of the UCI ADR as “a caricature of fair trial”.[15]
In the same vein, the panel notes that UCI’s concern to conduct disciplinary
proceedings according to the principles of fair trial “appeared rather
hypocritical”.
-Reconciling conflicting evidence
Before evaluating the evidence, the
panel acknowledges that it is faced with a conflict of expert evidence and that,
due to its lack of expertise in the area under examination, it has to be
cautious. Indeed, the reports of the UCI expert panel suggest that it is highly
likely that the Athlete had used a prohibited substance or method, while the
three expert reports presented by the Athlete question the UCI’s expert panel
conclusions and provide various explanations of the detected ABP abnormalities.[16]
By reference to the Roman law principle iudex
peritus peritorun (‘the judge is the expert of the experts’), the panel
assumes its role to determine whether the experts’ reports are plausible based
on the factual elements available.[17]
However, coming back to its severe criticism towards the short deadlines of the
UCI ADR proceedings, the panel remarks that it would normally appoint an
impartial, and unprejudiced by the course of the dispute, expert to provide a “review
expert report” evaluating the conflicting conclusions drawn from the evidence available.
In cases related to the application of
the ABP the federation which aims to establish an ADR violation committed by
the athlete should bring the violation to the comfortable satisfaction of the
arbitral panel.[18]
As a first step, the panel notes that Kreuziger’s ABP haemoglobin and
reticulocytes indicators did not go beyond the baseline values and, as a
result, the assumption that the likelihood of violation of an anti-doping rule
by Kreuziger is 99,9% cannot be considered as proven to the panel’s
“comfortable satisfaction”. Therefore, the panel concludes that it cannot find
an anti-doping rule violation based solely on Kreuziger’s ABP, but that it
rather needs to further examine the expert reports and statements.[19]
With regard to the raised haemoglobin
levels, the panel finds guidance in Dr Hampton’s expert statement. Although he
acknowledges the general trend of decreased haemoglobin levels for riders
during long stage races supported by the UCI expert panel he provides evidence,
i.e. the Corsetti paper, that individual deviations are possible and
particularly that the haemoglobin levels rose in some riders during the second
half of the race. Furthermore, he remarks that increased haemoglobin levels
during races were detected in the athlete’s ABP not only during the alleged
period (i.e., 2012 Giro d’ Italia) but also during the 2011 Tour de France.
This reinforces his argument that Kreuziger’s ABP should be considered as
falling within the possible deviations from the general trend in haemoglobin
levels. In view of this evidence, the panel considers that it was not proven to
its “comfortable satisfaction” that the increased haemoglobin levels had been a
consequence of the use of a prohibited substance or method.[20]
As far as the raised reticulocyte
levels are concerned, the panel once again notes that it has to evaluate
conflicting expert reports, whose assessment should “preferably the subject of
a review expert report”. On one hand, the expert report presented by
the athlete suggests that there is clear evidence –i.e. the report of Kim et
al.- that the athlete’s overt hypothyroidism and the treatment by thyroxin
justifies the substantial increase in the value of reticulocytes, while the UCI
expert panel states that this evidence should not be taken into consideration,
since the said study did not examine athletes. Furthermore, in evaluating the
witness examination, the panel remarks that the UCI expert panel was not aware
of Kreuziger’s
proven severe overt hypothyroidism and, as a result, it did not take into
consideration this factor when evaluating his raised reticulocyte levels. In
view of this evidence, the panel concludes that it was not proven to its
“comfortable satisfaction” that the elevated reticulocyte levels are the result
of the use of a prohibited substance or method, since the athlete’s overt
hypothyroidism was a crucial element in explaining this increase. In view of
these findings, the panel cleared Kreuziger to race.
The
ABP’s controversial aspects through the lens of the Kreuziger case
The Czech Olympic Committee’s arbitral
award on the Kreuziger case, although
not questioning the ABP as a method capable of proving doping as such, adds to
the concerns raised with regard to the validity of using biological-passport
evidence as the sole basis for doping violations. It suggests that the
evaluation of the ABP results requires that many factors pertaining both to the
given sport and to the specific functioning of the athlete’s body should be
taken into consideration. Two interesting remarks can be derived from this
award:
1) The role of the panel in evaluating expert evidence in ABP cases
The use of the ABP as a reliable means
of evidence to establish a doping violation requires that the analysis and
results management of the ABP be thoroughly understood and evaluated.[21]
The procedure is more technical and complicated than in other doping-detection techniques
since the ABP results have to be analysed by a panel of experts.[22]
This is further complicated by the fact that it is very likely that
contradictory expert reports and testimonies are brought before the arbitral
panel. The role of panels, therefore, in evaluating expert evidence is crucial.
The Kreuziger
case is illustrative of the arbitral panel’s daunting task of understanding,
evaluating and legally enforcing complex scientific issues. In this respect,
following the well-established CAS jurisprudence[23],
the Kreuziger panel assumed its duty
to weigh differing expert opinions on Kreuziger’s ABP abnormalities and assess
the plausibility of their conclusions, while keeping in mind the limits of its
own scientific knowledge and the “comfortable satisfaction” standard of proof. More
importantly, the Kreuziger panel
pointed out the need for an unprejudiced review expert report which would evaluate
the validity of the different conclusions reached. In ABP cases, therefore, where
experts and arbitral panels go hand in hand, it is crucial that ABP results be
made more comprehensible, and that scientists get more involved in evaluating ABP
evidence rather than obtaining it.[24]
2) The
inherent tension between national federations and the UCI
It is remarkable that the Kreuziger award reflects the furious
debate between national federations and the UCI with regard to the legitimacy
of finding cyclists guilty of doping based on the ABP evidence. As noted above,
the panel strongly criticized the UCI ADR proceedings, which due to their short
deadlines are far from guaranteeing a fair trial to the parties. Considering
the critically important rights at stake for cyclists, the panel’s remark on
the short and expedited proceedings of UCI ADR in assessing ABP evidence sets an
important threshold: the crucial need for sufficient safeguards of due process
for cyclists accused of doping on the basis of indirect evidence alone. This criticism
on the excessively short UCI ADR proceedings becomes even more controversial in
view of recent developments. The UCI, obviously worried about the delays in ABP
cases, recently
announced
that it will treat incidents of ABP abnormalities as if a rider had failed an
A-sample drug test. This rather aggressive approach of the UCI, however, seems
to further undermine the cyclists’ right to due process, raising the inevitable
question whether the quest to eliminate doping from cycling outweighs the
fundamental rights of cyclists.[25]
Furthermore, considering that the
appeal before the CAS is pending, it is noteworthy that the tension between
national federations and the UCI has resulted in creating two competing lines
of jurisprudence. The Kreuziger award
comes in line with a series of national governing bodies’ arbitral panels which
have cleared the suspected athletes in view of insufficient proof to establish
an anti-doping violation on the basis of the ABP evidence alone. The Slovenia
National Anti-Doping Commission panel in the Valjavec case as well as the Italian National
Olympic Committee (CONI) Anti-Doping Tribunal in the Pellizotti case did not hesitate to exonerate
the cyclists of a doping infraction. However, the CAS has been consistent in
overturning such decisions[26],
showing its broad willingness to accept the indirect ABP evidence in finding
cyclists guilty of ADR violations[27]
and it seems highly unlikely that the CAS will deviate from this approach in
the Kreuziger case. Remarkably, the
wake of Kreuziger’s case and the
outlined jurisprudential inconsistency led the UCI to announce the creation of
an international anti-doping tribunal. The new tribunal, which will be made up
of judges specialized in anti-doping and independent of the UCI, will disempower
the national anti-doping organisations and aims to guarantee uniform,
consistent and timely decisions. In view of this development, it is expected
that a jurisprudential middle way in ABP cases will be followed. However, the
question remains whether the criticisms expressed by the national federations
undermining ABP’s legitimacy will be fully addressed.
Although promising, the ABP still
raises vexing legal and scientific concerns. The Kreuziger case has added to the concerns that anti-doping
authorities still need to address. In light of this, the CAS decision is
eagerly awaited. It remains to be seen whether the arbitrators will follow the
strikingly consistent path of supporting the use of ABP evidence, or whether
the Kreuziger case will be a turning
point for the CAS to acknowledge the limits of this detection method.
[1] R Rosen,
‘Breaking the Cycle: Balancing the eradication of doping from international
sport while holding the rights of the accused athlete’ (2007) 25(3)
Entertainment & Sports Law 3
[2] J
Macur, ‘As scandals arose, Armstrong just rode on’ (2 January 2010) New York
Times
[3] N Hailey,
‘A false start in the race against doping in sport: Concerns with cycling’s
biological passport’ (2011) 61 Duke Law Journal, 393.
[4] P-E Sottas,
‘On the evaluation of doping evidence’ (2010) Paper delivered at the Seminar
for CAS Jurisprudence and New Developments in International Sports Law,
September 17 and 18 2010
[5]
http://www.uci.ch/clean-sport/the-athlete-biological-passport-abp/
[6] J
Macur, ‘Cycling Union takes leap in fight against doping’ (October 24, 2007)
New York Times
[7] TAS
2010/A/2178, Pietro Caucchioli c. CONI & UCI, para 5
and CAS
2010/A/2235, UCI v/ Tadej Valjaveo & Olympic Committee of Slovenia
[8] The
World Anti-Doping Agency, ‘The World Anti-doping Code Athlete Biological
Passport Operating Guidelines and Compilation of Required Elements’ Article 6.1
Introduction
[9] R McLaren, ‘
Athlete Biological Passport: The juridical viewpoint’ (2012) 4 International
Sports Law Review, 81
[10] G Banfi,
‘Limits and pitfalls of Athlete’s Biological Passport’ (2011)
49 (9) Clin Chem Lab med, 1418
[11] R McLaren (n
9), 81
[12] H Findlay,
‘ Athletes’ Biological Passport: Some legal issues’ (May 17, 2012) Lecture
delivered at the Conference on Law, Policy and the Olympic Movement at Ithaca
College London Centre cited in N Hailey, ‘ A false start in the race against
doping in sport: concerns with cycling’s biological passport’ (2011) 61 Duke
Law Journal
[13] Arbitration Committee of the Czech
Olympic Committee Ref No. 3/2014, Roman Kreuziger v the Czech Cycling
Federation (22.09.2014),
para 5.2
[14] Roman Kreuziger v the Czech
Cycling Federation (n 13), para 4.10
[15] Ibid, para
4.11
[16] Report of Dr Boer of 25 Auguat 2013, report of Dr Locatelli of 24 June
2014 and report of Dr Hampton
[17]Roman Kreuziger v the Czech Cycling
Federation (n 13), para 6.2
[18] Article 3.1
of the World
Anti-Doping Code (WADC) 2009
[19] Roman Kreuziger v the Czech
Cycling Federation (n 13), para 6.5
[20]Ibid, para 6.7
[21] R McLaren (n
9), 77.
[22] D Mavromati,
‘Indirect detection methods for doping from a legal perspective: the case of
the Athlete Biological Passport’ (2014) 6 International Journal of Sport Policy
and Politics 2, 255.
[23] CAS
2010/A/2235, UCI v/ Tadej Valjaveo & Olympic Committee of Slovenia
[24] P-E Sottas,
‘On the evaluation of doping evidence’ in A Rigozzi and M Bernasconi (eds) CAS jurisprudence and new developments in
international sports law (2010 3rd CAS & SAV/FSA conference
Lausanne)
[25] N Hailey, ‘
A false start in the race against doping in sport: concerns with cycling’s
biological passport’ (2011) 61 Duke Law Journal, 427
[26] CAS
2010/A/2235, UCI v/ Tadej Valjaveo & Olympic Committee of Slovenia and Press Release, Court of Arbitration for Sport, The
Court of Arbitration for Sport (CAS) Imposes a Two Year Ban on the Italian
Cyclists Pietro Caucchioli and Franco Pellizotti 1–2 (Mar. 8, 2011)
[27] N Hailey (n
25), 419