Today’s mail brought me the latest (February 2010) print edition of VeloNews, which contains lots of pretty pictures and a bunch of interesting articles — but for those who follow the trials and travails of doping, perhaps none is more germane that John Wilcockson’s editorial about criminalizing doping. (Wilcockson’s piece carries the headline “The Criminalization of Doping Brings Results.” And no it’s not available — yet — on their web site. If/when it is, I’ll link to it.)
Wilcockson leads off with:
Eliminating doping for sports is probably an impossible task, but as the anti-doping agencies step up their testing programs, governments make stricter laws and police departments conduct more intensive investigations, the chances of dissuading athletes from cheating will continue to grow.
I agree that it’s a Sisyphean task, trying to completely eradicate doping. That’s just not going to happen, given human nature and the siren song that some athletes can’t resist. “Take this pill, sonny, it’ll make you faster, strong and just plain better than your competition.” Some people will succumb to the short-cut (or perceived short-cut) to athletic victory. Just look at our society. In how many other areas are people willing to take short-cuts to accomplish their goals? Trying to find the easy way to accomplishment seems to have almost become “the American way.”
Wilcockson goes on to note, “Sporting bans are becoming an increasing deterrent to would-be cheaters, but the risk of a prison sentence carries much greater weight.” Why, yes, yes it does. And at one time, you might have found me advocating this very solution — make doping a criminal offense, and then put the accused and the accuser into the standard justice system, rather than the rather warped system of justice that the anti-doping system metes out. While I believe that the current system of doping adjudication needs to be changed, I’m not sure that criminalization of doping offenses is the right way to go.
Here’s why: In the US, we have this little thing called the Constitution. And in the Constitution, there’s this thing called the Fourteenth Amendment which contains what is known as the [[Equal Protection Clause]], which goes like this:
No state shall … deny to any person within its jurisdiction the equal protection of the laws.
OK, you ask, so what has that got to do with anti-doping enforcement? Consider that some substances banned by the World Anti-Doping Agency are perfectly legal, over-the-counter medications. Your average Joe or Josephine on the street could go into their local pharmacy and purchase, say, a Vicks inhaler and not get into a spec of trouble. On the other hand, a Scottish skier competing at the Salt Lake City Olympics might walk into a local pharmacy, purchase a local version of the Vicks inhaler which, unlike in his home country, contains an isomer of a banned stimulant. And while the isomer doesn’t necessarily have a stimulant effect, because it mimics its chemical cousin in the anti-doping tests, said skier could get popped with an anti-doping violation.
OK, when this is a matter of sports rules, our hapless victim can slug it out with the authorities and perhaps end up merely losing his medal and serving out a minimal suspension. But what if doping had been criminalized in Utah in 2002? Would Alain Baxter, to whom this actually happened, be serving a prison sentence for doping? As ridiculous as it might sound, the answer could be yes. For doing something that wouldn’t cause a single bit of legal problems for Joe/Josephine Sixpack. That hardly sounds like equal protection under the law.
Doping is a matter of sports rules. If the rules say, “don’t dope, or you’ll be punished” that’s one thing. Everyone who signs on to participate should understand the rules going in, and they should be willing to abide by them. Some of the banned substances are questionable as to whether they confer any advantage or not, but if the rule says don’t use them, then that’s the rule.
Then there’s the matter of therapeutic use exemptions (TUEs). Some athletes may need a particular medication to treat a medical condition, such as asthma. Under WADA rules, such an athlete can get a TUE and compete while using the normally banned substance. Consider the case of an athlete whose paperwork is bungled, or who fails to file the correct paperwork for a TUE. Should that person be treated as a criminal, when another athlete who has a TUE gets a pass? That hardly seems like equal protection, either.
Now, there are some banned substances that are illegal to distribute under various circumstances. Steroids would be one class of drugs that comes to mind. Laws already exist to deal with those who distribute such drugs illegally. Enforcing the existing laws seems like the way to go. Not only athletes, but trainers, coaches, and anyone else involved in the distribution cycle should fear the long arm of the law. And, it seems like inroads are being made in such cases. In fact, it seems as though many of the biggest anti-doping cases these days are a result of police work, rather than efforts by the anti-doping agencies.
One place where I definitely think the adversarial justice system offers some improvements over the current anti-doping system has to do with the science of the tests. In the current arbitration system, the game is severely rigged in favor of the anti-doping agencies, to the extent that the science behind the testing cannot be challenged. In the justice system, the testing could be challenged. And while that might be expensive and might slow down cases (at least in the beginning), it would also provide an incentive to the anti-doping labs not only to do things right, but to also prove that their tests do what they claim.
In the end, though, the thought of making criminals out of athletes who are accused of doping gives me pause. While I would hope that the justice system would better serve those who are wrongly accused, if the World Anti-Doping Agency’s banned substances list and rules became the law of the land, we could see the prospect of athletes being convicted for the crime of “doping” when regular citizens would suffer no such punishment for doing the same thing. If using the wrong inhaler is the only thing that stands between an athlete and prison, I can’t get behind the idea of criminalizing doping. On the other hand, if “criminalizing doping” means enforcing existing laws and tracking down those who would use drugs illegally, then I could be on board with the idea. But I’m afraid that most people who think of criminalizing doping are of the mindset that the World Anti-Doping Agency’s rules should be actual laws. And that is not something I can support.
Rant,
I do think that you have chosen bad exemples. Baxter’s case could be a mistake but it would never be punished like blood transfusion or EPO abuse, that is similar to wound someone by mistake, it’s not the same that to beat him with a wand.
What we have in France seems to be enough balanced putting the harsh punishment on falicitators.
With the money, the lives and employement of lot of people involved in sport, cheating by doping is more like stolen the benefit of another companies. So criminalization make perfect sense.
In first I wanted to put it Lemond-Trek thread but it’s better here as a possible application of criminalization of doping.
French police have linked the transfusion equipement to Astana. To identify the riders, they need access to UCI blood information.
What will do Mc Quaid?
Jean,
Hard to say what Pat McQuaid will do. The stories I’ve seen have been pretty vague, saying only that the police linked equipment to the Astana team, but not much else. If they found evidence of actual blood transfusions, then Astana may be in real trouble.
I think there’s much more to this story than meets the eye. And it will be very interesting to see how it plays out.
Regarding the example I chose, actually I think it’s pretty good. There are already laws that make the more serious things — like steroid distribution — a crime. Those laws can already be enforced without the need for making doping a criminal offense. But doping, itself, covers a wide range of things from minor offenses to major offenses. The point is that for a number of things considered to be doping in sports, those same behaviors outside of sports are perfectly legal. To make a criminal — even if it’s only a misdemeanor — out of someone who unintentionally breaks the rules would be wrong. To make a criminal out of someone who engages in otherwise legal behavior is doubly wrong. What we’re dealing here is with the rules of sport, and they should stay in the sports domain.
The point is, we’ve already got laws that can deal with the more serious offenses, which are illegal, and law enforcement seems to be making headway in that regard. We don’t need additional laws, at least in this country. We just need to see the laws enforced.
I agree with you here, Rant. Some, perhaps many, forms of PED usage are already covered by a variety of laws, from laws outright banning certain substances, to those laws covering proper use of prescription drugs and medical procedures. No point in making usage of cocaine as a PED in competitive sports, for example, illegal since cocaine is already illegal.
Now, I’ll admit I’m a bit vague about the status of say, EPO. It certainly is legal for proper medical usage. But if I decide to use EPO just so I can ride faster on my own personal rides, no competition involved, is that illegal in some way? My guess is that in some way it is, perhaps not for me but for the doctor or whoever supplies and administers the substance. So many forms of doping could be dealt with via the criminal justice system without the need for a separate law specific to sports.
Consider the NCAA. There is a large range of behaviors and activities that a school cannot do with respect to either the athletes that play for them or for prospective recruits. Some of these can also be illegal. For example, a number of years ago, the basketball coach at my alma mater was involved in a scheme for fake JC and correspondence course grades to allow athletes to play who otherwise would have been academically ineligible. Since part of this scheme involved the mail, he was guilty of a federal crime. But coaches are also restricted in the number of phone calls, emails, text messages, etc., they can send a potential recruit. It is not illegal to email or text someone, once or a hundred times. While it is perfectly valid for the NCAA to control and sanction such, I don’t think it should be something that the criminal justice system needs to get involved with.
The answer is a resounding “No!”.
The suggestion that doping in sports should be criminalized takes the importance of any sport far too seriously. It’s ridiculous on its face and those who support criminalizing athletes who use doping products or methods need to seriously consider getting back on their own medication. It’s time to get a life.
I doubt any nation would be better off expending police and judicial resources refereeing glorified games. I’m betting precious resources could be put to better use addressing serious crimes like robbery, assault, rape, and murder.
An overhaul of the current system is certainly in order. It would be an improvement to implement procedures to ensure due process, accountability on the testing side, and a neutral/fair system of adjudication – rather than the kangaroo court /stacked deck system now in place.
As for Alain Baxter, the system penalized him by addressing a non-existent problem. Baxter competed in alpine slalom. WADA, in its infinite wisdom, seems to assume that if a skier consumes substances WADA classifies as a stimulant, it would be an unfair advantage. Poll current or past World Cup slalom skiers. See if they would like their chances racing against a competitor that has taken stimulants. Hell, I’d buy them for my competitors in masters racing if they’d take them. They wouldn’t unless the medication was needed just to function, as it was for Baxter. Generally speaking, World Cup and over the hill masters racers seem to have a better understanding of the effect of stimulants on slalom skiers than WADA does, and that’s just one of many problems with the current code. Time for a clean up – you know, but only if WADA cares about the health of the athletes or fair sport.
Jean C,
Criminalizing the “facilitators”, maybe? It’s still sport and not so important, in the big picture. Those items that are important in the big picture are likely already covered under existing laws, with few exceptions.
WRT Astana, more details are needed. Are we talking transfusing equipment, syringes, or both? Transfusing equipment would warrant a close look from the UCI. Syringes alone would not necessarily warrant a closer look. Intravenous injections via syringe would be outside the rules under most circumstances, however, intramuscular injections via syringe would be perfectly legal, assuming the substance being injected was within the rules. The current reports don’t adequately speak to those issues. Given the AFLD/UCI feud, I’d rate the reports as suspect until the relevant details are addressed.
Jeff,
Reports, old and current, are speaking of equipement for intraveinous injections.
If sport and its money are not important, I don’t understand why people are making a fuss of doper caught and receiving a punishment. There is no need to have a long process to condemn them. A red cart from referee should be enough to ban them for 2 years of sport.
But if you consider that making a living of pro athlete is affected by that decision, maybe criminalizing the people who steal their income is correct.
That is the dilemma.
Jean C,
Reports, old and current, are speaking of equipment for intravenous injections because they are being purposely vague, purposely obtuse, or inadvertently ignorant. They have not provided details regarding their theory of use regarding the syringes and have been extraordinarily vague about transfusing equipment. In practical laymen’s terms, transfusing implies relatively large quantities of fluid, typically blood or blood products. This kind of transfusing is against the code in almost all cases. It would warrant a close look from the UCI if the equipment in question was used for transfusing. That’s a big question mark the old and current reports fail to address. Reports also fail to distinguish between intravenous and intramuscular injections via syringe. Intravenous injections are almost always against the code. Intramuscular injections are approved within the code, provided the substance injected is also approved by the code. I’ve seen some written reoprts accompanied by pictures of syringes. To be clear, syringe does not equal transfusion. These important distinctions are not contained within any of the reports I’ve been able to access so far. I’m sure you can appreciate the importance of the distinctions. If you find any reports that indicate the reporter understands the importance of the distinctions, please forward me a link.
In the larger picture, sports are relatively unimportant. When some posters/bloggers go on virtual crusades because they can’t engage themselves, or worse yet, their children, in hero worship because of the possibility their chosen sports hero might be doping, then all proportion has been lost. There is no human alive that can measure up to hero worship. Efforts might be better focused on a given athlete’s positive qualities? It’s long past time to give up on hero worship. If it is not doping, then your “hero” is going to succumb to some other variety of human frailty, that’s guaranteed.
Given that some athletes make a living from competing in various sports, that becomes their work. It seems to make sense they should be afforded the same sort of due process and other protections provided to other sectors of the workforce. Why should athletes be denied the rights, responsibilities, and protections other workers enjoy simply because they make a temporary living at sport? Why the effort to make them second class citizens? Why the effort to treat them as chattel?
Your attempt at a red card analogy fails. While red cards can sometimes result in extended bans/suspensions, most are for a game or two. That’s somewhat less draconian than a 2 or 4 year suspension.
Jeff,
I don’t considere a reporter of Le Monde, especially Stephane Mandard, as an idiot.
You should undertand that I have a limited language and sometimes limited time, so I often can only express main ideas which should be understandable, so even for the less robust brain, my simple words, put in the current context, can be extrapolate in something bigger.
You missed the report made during TDF about the material found, it was mentionned that it was for IV.
Sometimes with a good memory it’s easier to connect the dots, without the web is a solution. I let you do some homework, a bit of training is always good.
Even in Le Monde article “syringes, needles of different sizes” and “perfusions are mentionned. Perfusions is automatically referring to injection through veins.
If the perfusions kit were found in garbage collector, the needles were found in Astana rooms and apparently the antihypertenseur medicine too (according the wording, probably another hotel/stage)
Merry Christmas.
I don’t think I’ve called anyone an idiot? I do question the lack of direct reporting on the subject and the less than precise references, which can easily lead to mistaken impressions. Is it possible the fault lies with inexact translations to English? I can’t locate an English language site that offers clarity. (I’ve put myself at a disadvantage as my command of the French language is lacking compared to your ability to communicate in English) Feel free to steer me in the correct direction if you know of an English language site containing the information you mention.
I understand English is not your first language and give you all credit. Seriously, I respect the ability of people who can speak/write in multiple languages.
Merry Christmas to you Jean C
Rant, just a quick note. I don’t think that the criminalization of doping would violate the equal protection clause. I don’t want to go through all of the nuances of this clause, which isn’t the easiest of clauses to understand. But the clause comes into play when the law sets up a classification allowing one group the right to do something, while denying the same right to another group. If the law has a rational basis and addresses a legitimate interest of the government, then as a general rule the law is allowed to stand and “equal protection” does not apply.
We may argue whether the government has a legitimate interest in dope-free sport, but it’s obvious by now that the government IS interested in this area. So far, this interest appears to be viewed as “legitimate” by the courts and legislators.
The government has a legitimate interest in the illegal use of controlled substances in sports, just as it has a legitimate interest in such illegal use in other areas. What I would object too is laws outlawing what might otherwise be legal, simply because the use was within the confines of organized sports.
Zirbel*
http://www.cyclingnews.com/news/zirbel-announces-positive-for-dhea
“…I refuse to speculate about how this happened until we have solid scientific evidence….” Forget it Tom. It isn’t gonna be coming.
Larry,
I’ll defer to your expertise in matters of law. Though, from a layperson’s perspective if I can go into a Walgreens and not get into legal trouble for buying a Vicks inhaler, but an athlete would possibly get charged with a criminal offense for buying and using the same inhaler at a ski race, that seems somehow not right. I’m not sure government should get involved in matters of sports rules, but at this point, the momentum seems to be headed in that direction.
Now, for those who are using illegal drugs, they’re taking their chances with the law as it is. We don’t need new laws in that case, at least not from my perspective. We merely need to enforce existing laws. Legal consequences vs. sports consequences can be two different matters.
Eightzero,
I suspect you’re right. Zirbel might want to inventory everything he was using back in August. But I think he’s scrod at this point, given how other cases have played out. It may well be better to save his money and retire from cycling — at least for a couple of years.
The law frequently assigns different rights to different classes of people. I can’t park in those nice blue parking spaces where only the handicapped can park. But I can buy a permit to park an extra long time on the street where I live, while non-residents cannot. In a moving car in my state, the passenger can talk on his cell phone while the driver can not. At the pharmacy, I can buy items that a 17 year old cannot.
The law allows for certain distinctions and prohibits others. For example, a landlord cannot refuse to lease an apartment to a tenant because of the tenant’s race, but the landlord can refuse to rent because the tenant is an attorney.
The law does allow for certain distinctions, while prohibiting others. In the USA there are protected classes, special circumstances, prerequisites, and age requirements…… And you are correct, a landlord doesn’t have to rent to an attorney, unless the attorney also possesses attributes that qualify him/her as a protected class.
That notwithstanding and taking the example of Alain Baxter into account: Baxter was in every way legally qualified to purchase and use the very product that caused him to be penalized under the WADA code. Given the circumstances, penalizing him under the code seems overkill enough for what seems to be an honest and easily made error. What trumps overkill? I’m not sure what to call it if we are seriously contemplating making the result of a similar scenario a criminal offense?
For those who think 2-4 year bans are but a slap on the wrist and don’t have a plan to make an athlete whole should he/she somehow prevail in this rigged system, then more drastic measures will surely bring them (athletes) in line. If criminalizing doping doesn’t make it to prime time, then perhaps mandatory castration, lobotomies, or the Eddie Izzard game of “Cake or Death” is in order? (of course they run out of cake)
Is strict liability compatible with criminalization? My guess would be no and that the loss of strict liability is bad or at least very complicated for anti-doping efforts. Having to prove both the presence of the illicit substance and a deliberate attempt to cheat would be a headache, especially if “beyond a reasonable doubt” is the standard.
Interesting point. Criminalizing doping in sport (meaning criminalizing the use of products or methods on the WADA banned list, that would otherwise be legal for use by people not subject to testing/scrutiny under the WADA system – the other elements would already be covered under existing law) would seem to be an effective end to strict liability in multiple countries. Proponents might be careful what you wish for?
In the USA, the standard for criminal activity is “beyond reasonable doubt”, where as civil matters would be decided by a “preponderence of the evidence” (which side has a penny’s worth more credibility), but we are discussing criminalization, so we’re also talking beyond a reasonable doubt……..
There will be meaningful discovery. Chain of custody will be scrutinized, the labs will be scrutinized, their work will be scrutinized, the tests will be scrutinized, the data recording procedures will be scrutinized, and the fates of the athletes will not rest upon the judgment of those appointed via a rigged system controlled by elements of the alphabet soup. I’m guessing that represents a whole lot of checks and balances WADA World would like to avoid? I think I’ve change my mind? Perhaps I should join a crusade to enact the criminalization of dopers in sport? It’s sounding more and more like the right thing to do.
Some of our legal experts may have more to say, but I think that perhaps some form of strict liability could potentially be legislated into a law outlawing sports doping. You know the old saying “ignorance is no excuse of the law”.
I have always suspected that strict liability was incorporated into the WADA code to avoid the situation where a team official gives something to an athlete and either doesn’t tell him what it is or tells him it is something other than what it really is. You know, the old
“take this vitamin injection (wink)”. An athlete is required to take what we might call due diligence and not just blindly take things. But just what degree can we reasonably expect? Should Alan Baxter be expected to know the minor variation in composition of inhalers sold in the US compared to the same brand sold in the UK? Would he even be able to find this out by comparing lists of ingredients on the labels?
Ignorance of the law being no excuse for breaking the law is often an interesting catch-22. The tax code in the USA is one example. Propose a moderately complicated tax question to multiple tax experts, and you will potentially get wildly different opinions from the experts. In the end, whoever gets it last at the IRS, wins the argument.
It’s probably not a stretch to assume strict liability could be legislated. IMHO, WADA actually had good reason to push for something close to strict liability in order to quickly dispense with the “the dog ate my homework” sort of excuses and scenarios similar to the example provided by William Schart. However, WADA left little to no flexibility wrt being able to distinguish exceptional circumstances or correct obvious errors on their part (Alain Baxter / Zach Lund) and provide a mechanism to treat the exceptional cases appropriately. I’ll leave the thorny issue of contaminated suppliments alone for now, except to say it shouldn’t be fully on the athletes (truth in labeling).
In the end, the point is probably moot. Criminalizing doping in sport will give courts of various nations jurisdiction, and that would result in actual due process in multiple nations. In this case, WADA will not be able to have its cake and eat it too. They are not going to get criminalization and still control the adjudication process. WADA will have to be happy with the rigged system currently in place that affords almost no protection to innocent athletes that might be falsely accused or somehow innocently run afoul of the technical regulations, but not the spirit of the rules.
I’d like to see cheaters caught. I’d also like to see the athletes treated with respect. That means cleaning up the system so that it offers actual due process, not a show of due process in a system that is actually rigged. YMMV.
In other news: Jacques de Ceaurriz died today (yesterday?). I couldn’t find a cause, but my ability to read French leaves something to be desired.
http://www.lemonde.fr/sport/article/2010/0…87840_3242.html
I was not a fan of the quality of work his lab produced, but didn’t wish him personal ill. RIP.
Here is an English language link to the story of the passing of Jacques de Ceaurriz:
http://www.cyclingnews.com/news/jacques-de-ceaurriz-lndd-director-dies-at-60
One question about criminalizing doping: where does a violation take place and hence who has jurisdiction? Suppose a rider takes something in one country a day or two before a race in a second country and his doping is detected. Does A get to try him or B or possibly both? You could argue that if he took it in A, that is the violation, but if he didn’t compete while “under the influence”, so to speak, is it really a violation. Or are there 2 separate violations: the taking in and of itself, and in addition, competing with a “boost”?
Happy New Year to everyone
Criminalizing doping give to authority power of investigation, for exemple they can have a look at the accounts of investigated athlete to verify paiements to some doctors. The amounts can be checked, its validity too, why to pay $1000.000 for “personnal” training programs if those training program are similar of those provided by a team?
Police can search houses, buses, hôtels,… Police can questions other people too, stupid lies or excuses would become offenses under such conditions.
Sorry to use Landis’ case to illustrate my points, but under criminal investigation, all piece of information would have been used : blood values, other stages results, old doping results, retrotesting of old samples to search for doping.
William, if someone drives a car drunk near the border, police will gives him a fine even if he had abused alcohol before crossing the border.
William Schart asked who might have jurisdiction. If only incorporating criminalization into the equation, then the national federation issuing the athlete’s license, or the federation’s appointee, would have jurisdiction. That is how it is supposed to work in order to help prevent the sabotage of athlete’s from competing nations via hypothetical disciplinary procedures taken by a competing nation in order to exclude their competitors’ athletes. However, we’ve seen the CoNI action against Valverde break the mold and set a dangerous precedent. The CoNI action against Valverde hasn’t come to conclusion, so we don’t know if sanity will prevail or if a disastrous precedent will be set, but we do know it has already excluded the athlete from the 2009 TdF absent the benefit of a ruling. Then again, there seems to be little preventing capricious changing of the rules, so my answer would be “who knows?”
Jean C brings up some interesting points and examples regarding the hypothetical criminalization. He illustrates how discovery might be enhanced for the prosecuting side, but seems to ignore how it would definitely be enhanced for the defending side. He also does not speak to the adjudication process and how those who might sit in judgment would, or would not, be selected. In summary, WADA would loose ultimate control over the process and my read is that circumstance is never going to be acceptable to WADA, so it will not happen as long as WADA exists.
As for the Landis stuff, the evidence brought against him (based upon the available records) at the Pepperdine hearing and CAS appeal would not have been sufficient to bring a hypothetical criminal trail (assuming what he was accused of had been criminalized and he was facing charges in the USA) against him to conclusion. At some early point in the proceedings, one of the multiple and easily identifiable fatal flaws would have appeared and the case would have been dismissed. The only meaningful question that would have remained is whether or not Floyd would have been awarded costs or compensation for punitive damages, depending upon what came out in discovery and beyond. Other scenarios include: it wouldn’t have gotten to trial or a settlement favorable to Floyd would have been made without trial. Criminalization would have been a great thing for Floyd compared to the reaming he took from WADA and the soup.
Jeff,
Crime are judged by laws so by country where the crime was made. Sometimes agreement between countries can be made but it’s not the general case. So until, there is just one uniq government on Earth, it would stay like today, even if suprajuridiction like LaHaye court exists. Larry might give us a more specific and accurate description.
WADA exists because of the will of nations, so nations rule WADA. Every country is free to break the precedent agreement, and a worldwide doping criminalization would require new agreement similar to Interpol.
If Landis case would have been a criminal case, that would never have been handled in the same way.
First Landis would have been arrested, and more datas collection (urines, blood,…) would have been done to be used later to secure the primary findings.
Bayes theorme show us that doing just one test on one sample is a difficult task, but to use multiple tests on multiple samples is more efficient and less expensive.
Jean C,
If you are correct and the system you are describing would be in effect with the advent of the criminalization of doping in sports, then France may find itself hosting very few international elite sporting events.
Athletes are not the brightest, as a group, but they will quickly learn to avoid competing in countries in which they have virtually no legal protections from false accusations/charges. Be careful what you wish for….
I’m not sure about this, but I don’t think a positive test for an illegal drug (cannabis, cocaine, heroin) constitutes proof of criminal wrong doing. Failing a work mandated drug test might get you fired or not hired, but it wouldn’t get you arrested, I think. a blood alcohol test after an accident might, but then you have probable cause. At least in the US, might you start running into 4th and 5th amendment issues with drug tests where a positive results in a criminal offense? If jail time were possible, I think a US citizen could refuse to submit a sample without admitting guilt. Not that I’m a lawyer.
Patrice Brunet may disagree with Jean C’s scenario wrt to what might have happened to Floyd if doping in sport had been criminalized in France, 7/06. (to be clear, it remains my contention he did not dope) I applaud Patrice Brunet’s stance regarding athletes, below:
Patrice Brunet: “The key element in recent legislation is that it targets athletes’ entourages. It is not directed solely at the athletes, who are easily replaceable. In fact, France specifically protects athletes from legal sanctions precisely to encourage them to confess.”
http://www.pedalmag.com/index.php?module=Section&action=viewdetail&item_id=12003
brian ledford makes a good point. Workplaces where drug tests are mandated, seem to be quite similar. What would differenciate between a water taxi driver (holding a USCG License that requires him/her to be drug tested periodically) and a professional bike racer (random or targeted drug testing), with both hypothetically testing positive. The water taxi driver seldom faces a criminal offense for only popping a positive, whereas some are proposing a professional cyclist should. I have a fair knowledge base regarding positive drug tests and USCG Licenses. Care to discuss?
Since cannabis and cocaine are illegal to possess, it is could be argued that if you test positive for one of them in a workplace test, you had to have violated the law by possessing one of them at some time. You might argue that you were given some Alice B. Toklas brownies and didn’t know what was in them, but whether that defense would work, I don’t know. But the authorities, at least here in the US, are not all that interested in busting the mere user. Of course, if you smoke a joint where a cop can see you, he probably will get you, but that’s a different story. I doubt that the police are interested in monitoring the results of workplace drug tests.
Then there is the whole question of standards. In the workplace, you probably would be fired if you engaged in illegal activity on the job, or that was in some way job-related. I can imagine that there could be times when someone so charged might be able to be acquitted in court yet still be fired for the alleged violation. And I could see where an employer could consider drug-test results good enough to fire you, whereas they wouldn’t hold up in court.
But then many forms of sports-related doping are in fact illegal already, by virtue of the drugs employed are controlled substances. Why do we need a law specifically outlawing doping in sports?
Jeff,
You should be more cautious with your interpretation of the thought of others.
Doping criminalization don’t say who would be sentenced but justice involvement would gives more possibilities to fight doping by police investigation,… even if athletes should be arrested until enough informations have been collected.
Don’t forget that athlete who refuses to name his suppliers is encouraging an illegal activity.
So a failed doping test, even for testosterone, is an opportunity to check all other doping parameters of an athlete to be sure that he reveals all of his suppliers when clearly the guy was on a elaborated doping program.
If that were done for Landis’ case, you would have no doubt about his blood doping program.
William,
Of course, all countries have different set of laws, but I am not sure that all PED or doping methods are outlaw.
Transfusing his own blood according health legislation is illegal? To use androgel prescribed (or not) is it illegal ?
William Schart:
I think I agree with your reasoning. Though I have family and friends who have made/are making careers in law enforcement, I’ll note, particularly in current/recent economic times, police seem more focused upon enforcement that is revenue producing (speeding tickets, traffic light cameras, parking tickets, other misc. traffic citations) and career building cases or high profile crimes making local or national headlines. Monitoring athletes for non-negative dope test results doesn’t generate revenue and doesn’t seem sexy enough to enhance the career ambitions of your average cop or make it a priority. Certain nations in the EU don’t seem to want much to do with cocaine use, even out of competition. Tom Boonen is a case on point.
In the workplace, firing/not firing depends a lot on the perceived value of the employee. An otherwise exceptional performer can usually be expected to be given more latitude. There are issues such as “work at will”, contract employees, and union employees in play. As a side note and broad generalization, USCG license holders usually get moderate suspensions and minor to heavy fines for popping a positive, absent any connection to a maritime accident involving injury, death, or damage. (Maritime injury/death/damage up the ante) Increased testing frequency, rehab, and/or counseling may be ordered, or not. It’s generally comparatively difficult to obtain a USCG license than it is to have one absolutely revoked.
You are correct. “Many forms of sports-related doping are in fact illegal already, by virtue of the drugs employed are controlled substances.” I’ll echo your question. Why the call for redundant laws?
Jean C:
Please pardon me for reflecting the current realities regarding the call for criminalization of doping in sport in my previous post. The overwhelming majority of editorials and opinions in favor support the norm of going after the athletes. While I don’t generally agree with the overall aim of the Patrice Brunet editorial that I cited, I do find it appropriate/refreshing that his writing indicates he is less inclined to demonize the athletes and concentrate on bigger fish. Is it possible you, Patrice Brunet, and I have found an element we can agree upon?
The phrase “failed doping test”, conjures up a multitude of images, depending upon one’s perspective. In the case of Floyd Landis and the 2006 Tdf, the process that resulted in his “failed doping test” seems reasonably analogous to the Salem Witch Trails to me (YMMV). LNDD(ADLD)/WADA/UCI/USADA kept dunking him under the water, but he didn’t drown, so he must have been guilty?.?
I cannot realistically believe drug tests are 100% correct, even those conducted by labs consistently using “best practices”. In the Pepperdine hearing, those defending LNDD didn’t claim they utilized “best practices” wrt Floyd’s samples. They claimed LNDD’s lab practices were “good enough”, and that doesn’t sound like a ringing endorsement to me. Given the tests are not completely accurate coming from the best labs and accuracy would tend to decline when “best practices” are not employed, then I’m sure a “failed doping test” should not trigger a multi-day grilling by law enforcement seeking the supplier of products/methods who is non-existent because the accused is being falsely accused, in the hypothetical. (didn’t happen/no suppliers to name)
For argument’s sake, the multiple fluid specimens collected from Floyd during the 2006 TdF were tested no less under WADA auspices than they would/could have by French law enforcement had it been a criminal issue. Your contention that they would have is simply wrong. WADA code makes it possible, but not required, to shop athlete samples to labs in multiple countries, at the soup’s discretion, but not at the athlete’s option. Further, they can retest samples going back ~8years, regardless of WADA lab did the original testing, so they are not limited to samples tested @ LNDD, as French law enforcement would presumably be, had a criminal infraction been contemplated. So it would seem criminalization might be limiting to law enforcement. For instance, it’s doubtful French law enforcement would have access to Floyd’s samples from the 2006 ToC, whereas the alphabet soup did. And yes, I have a lot of doubt about the “good enough” lab results and much doubt about your supposition he was on a blood doping program. Even the published results are contradictory of that thesis.
In the USA, most (not all) PED/doping methods are illegal. (The misuse or unauthorized use of controlled substances is also illegal.) Even with the overwhelming majority that are, few that are caught are criminally prosecuted. The few who are can be described as unusually unlucky, pissed off the wrong people, were subjected to a personal/professional vendetta, or the prosecution was politically advantageous.
Criminalization opens some doors and closes others. It does not necessarily allow for increased access to an athletes specimen samples. The call for criminalization seems redundant in most scenarios. Law enforcement probably has better things to do. Investigating/enforcing criminal charges related to doping in sport is revenue negative and not usually a political plus. The intentions of many in favor of criminalization seems out of touch with what is the current norm regarding non-athletes and unauthorized/criminal use of controlled substances. YMMV.
Apart from the legal issues, there is also the matter of the strategic ones. Is the current adversarial approach working at all? Does anyone have much confidence that a given race result will hold up? Is it productive to have an “us vs. them” attitude between the labs and athletes? Re: landis, with the one nonnegative sample, it would have been nice to have system where more samples could be checked with the real possibility of acquittal. I would be very happy to see an announcement from a lab along the lines of “we had a positive for [substance] and while the A and B samples agreed, the samples from the day before and day after were clean, as were 3 others, so we think the positive one was an anomaly.” Anyone who has worked in a lab has had goofy results that repeated on a particular vial or lot or sample that didn’t repeat on a new sample. Why? gremlins, phase of the moon? I would like to believe that WADA and the UCI are honest brokers and I mean that nonsnarkily. I don’t think the current system allows for cooperation without someone feeling like a sucker. The other thing I would love to see is a more positive (in terms of listing what you can do) UCI. To avoid the tedious tainted supplement dance, have the UCI declare some brand or brands acceptable – if you take this supplement (which will give you everything you need) you will be as competitive as you can be and legal. They could draft and audit official coaches, soigneurs, etc. So draft whoever the top representatives are with the promise of an endorsement such that athlete X working with coach Y using supplement Z on whatever program is presumed clean. Get enough good representatives and then using some un endorsed/unapproved whatever is either officially stupid (i.e., the UCI stuff is as good as it gets – do you think your vet’s brother is better than Allen Lim) or officially cheating or both. And then hopefully, you’re running QC on a couple lots of nutritional supplement and auditing 20 or 30 coaches and doctors instead of keeping tabs on 300+ athletes and worrying about people maybe autoinserting catheters. And you could have again some appropriate number of official UCI physicians, so no one needs to wonder if Pettachi or Beloki really have asthma or not.