Doing the Math

by Rant on October 15, 2010 · 59 comments

in Alberto Contador

I ate some contaminated meat. That’s my story and I’m sticking to it. So says Alberto Contador, the (current, anyway) 2010 Tour de France champion who appears to have tested positive for clenbuterol on the second rest day of this year’s Tour.

Could it be that he ate some beef or veal that contained clenbuterol. Well, even though the European Union regulates beef and what goes into it, there’s always a chance that a rogue cattle rancher doped up his cows and steers with clenbuterol to make them leaner and meaner. But one version of the story is that Contador had a friend bring some veal over. Hmm. Veal. Isn’t that meat from a calf? As in, a very young animal, with maybe not much time to really fatten up? Why give the poor beast clenbuterol to trim it down if it hasn’t had much time to bulk up? That doesn’t make much sense to me.

OK, so how about a larger animal. Maybe that rogue rancher wanted his cattle to be more lean, and doped them with clenbuterol to do so. But how much would have to have been in the meat in order for our hapless Tour champ to have a sample come up with a concentration of 50 picograms/milliliter? Well, as luck would have it, the math is pretty straightforward, assuming that the concentration reported is a blood concentration, and assuming that all of the clenbuterol winds up evenly dispersed in the blood.

The average person has something like 5600 milliliters of blood volume. If the concentration of something is 50 pg/ml, and the volume is 5600 ml, we wind up with 280,000 pg (or 280 nanograms) of clenbuterol in whatever Contador consumed. Let’s say he ate a quarter kilogram of the stuff (about half a pound). If the animal that the meat came from weighed about 1000 pounds (to make the math easy), then there must have been about 560,000 nanograms (or 560 micrograms) of the stuff in the animal. One microgram is one-one millionth of a gram, just so you know. Still not a heck of a lot compared to the animal’s weight, but how much would typically be administered to a cow or steer, anyway?

Let’s try a different tack. An anonymous member of the Astana team (staff member? another rider?) recently suggested that Contador had received a small blood transfusion (150 ml of blood) on the day before the Tour’s second rest day, with blood stored sometime around the time of the Dauphine Libere race. The small amount used is part of a new technique to avoid triggering any suspicious values on the UCI’s biological passport.

The blood, this source said, was contaminated with clenbuterol, as Contador was trying to shed a couple of pounds before the Tour without losing any muscle strength. What concentration of clenbuterol would that 150 ml blood bag need to contain in order for Contador’s test results to come out the way they did? Doing a bit of math, it turns out that the concentration would need to be about 1917 pg/ml, or about 1.917 ng/ml — if the test was taken shortly after the transfusion occurred. (Due to the body’s ability to process chemicals, there will be progressively less over time. So depending on when such a transfusion was given, the original concentration could have been higher.)

This is an interesting result, given that WADA’s performance requirements for clenbuterol testing is that the lab must be able to detect a level as low as 2.0 ng/ml. Notice anything about the result above? It’s just a bit under the so-called minimum performance level that WADA requires when testing for clenbuterol. Coincidence? Perhaps. But smart dopers know enough to figure out how much of a banned substance could be used while still slipping under the radar of the anti-doping agencies. And that concentration is just below the minimum that WADA expects labs to detect. And only four WADA-approved labs are supposedly able to detect the kinds of low concentrations that the anti-doping lab in Cologne found in Contador’s sample.

Slipping just under the radar is the whole idea behind transfusing a smaller amount of blood, by the way. That way, the various markers tracked in a rider’s biological passport won’t go out of whack enough to trigger any suspicions. And while the transfusion won’t pack as big a punch as in the old days, it could still be the difference between being first on the general classification and further down. So it wouldn’t be too far-fetched to think that a smart doper could figure out the amount of clenbuterol he or she could use without the narcs finding out.

But all of this discussion is predicated on the idea that the concentration reported by both Contador’s own team and by the UCI was a concentration found in a blood sample. If the result came from a urine sample, then you have the added twist of how much appears in the urine and at what time. It’s not so easy to work backwards from the reported value to figure out what the original dosage was, but there is probably a way to do so. (Extra credit to whoever figures out the rate of metabolism and the possible concentration or amount of clenbuterol in the meat or blood bag, whichever theory you prefer.)

Contador has at least one public supporter in the pro peloton who has some direct experience with clenbuterol and contaminated meat.  Italian rider Alessandro Colò — who just received a one-year ban after allegedly consuming contaminated meat during the Tour of Mexico in April of this year — believes Contador’s story.

“After studying my own case, I know the possibility of eating meat contaminated with Clenbuterol is very small but it is possible because farmers always want to boost animal growth.”

“I don’t think Contador would risk taking Clenbuterol. Before I tested positive [I] didn’t know that Clenbuterol even existed. Now I know it stays in your body for two or three days and can show up in some riders and not in others. That means Contador would have been crazy to take it in June. He would have known he could have been tested at any moment in the weeks before the Tour and so I don’t think he’d be that stupid. However like me he is facing a one-year ban.”

On the other hand, at least one WADA official isn’t so sure Contador’s claims. According to an article on MSNBC.com, David Howman said:

“It’s been raised before, it’s been heard in a couple of cases and rejected,” WADA director general David Howman told reporters during a meeting at the anti-doping agency’s headquarters. “It’s not unusual.

“The issue is, can you prove it? It’s a pretty hard thing to prove that is where it (the banned substance) comes from.

“The tribunal will make a decision and I’m comfortable with that.”

Olivier Rabin, the chief science officer at WADA is hedging his bets on the issue of plasticizers and whether the leaked test results indicate a blood transfusion. According to the same article:

“There are residues. We’re sure about this at that level, that is a scientific fact,” explained Rabin. “How you connect that to doping is the question.

“Today, we cannot make a 100 percent connection between high plastic residues to ‘You are doped.’

“That is something we are working on.”

Rabin went on to say:

“When there are high plastic residues, we get some indications that this is very likely related to transfusions,” said Rabin. “But we need to do a little more work to see whether this link is 100 percent.

“Because it’s not fully validated, we can use this as an indication but don’t use it as a standard of proof.

“We cannot be 100 percent sure it was a transfusion, other explanations are possible.”

Which is not to say that the UCI might not try to pin a blood doping charge on Contador. Whether that would succeed is another question.

On yet another hand, Bonnie Ford posted a story yesterday quoting Christiane Ayotte of the Montreal anti-doping lab. Here’s some of what Ayotte had to say:

“You’ll never find a ton of [clenbuterol], because the doses are really small,” she said. “Most of the samples are below one nanogram [a billionth of a gram].” That’s many times the 50 picograms [trillionths of a gram] reported to be present in Contador’s sample, but Ayotte said her lab has frequently found levels that low.

“[Clenbuterol is] used in sports where they need to cut weight,” she said. “Just because it’s small doesn’t mean it’s not doping. … This is just the dopers adjusting, or misadjusting, to the testing.”

WADA regulations set no minimum threshold for the drug. Ayotte doesn’t favor setting one as she considers any trace finding to be suspect.

“We can’t link content in urine to performance, because we don’t know the time, the mode of administration or the dose,” she said. “If this case is lost because they’re concluding the amount is too small, that would be a major problem. It’s not the end of the world, but if competent arbitrators decide that, my heart would break. More dopers would go through the net.”

Well, there goes all that math from earlier. Sounds like the test in question is a urine test. Still, it was interesting to work out. And if the concentration found in the urine can be correlated to a concentration in a person’s blood (and that may be a big if), it would be pretty straight-forward to work out what the possible dosages were for different methods of administration.

Contador may be innocent, or he may be guilty. Hard to say for certain. But unfortunately he finds himself in the claws of the current system with the current rules in place. Given Colo’s suspension for a similar offense, my own guess is that Contador will have a hard time escaping a sanction. If a lesser-know rider like Alessandro Colò gets a one-year suspension for testing positive after possibly eating contaminated meat, I don’t see how Contador could get a lesser suspension, short of Colò and everyone else in the same boat being granted the same lesser punishment retroactively.

Alberto Contador may wish to consider some advice given to a previous Tour winner four years ago. Save your money. Serve the suspension and come back to racing when it’s over. I’d say it’s a fair bet that Contador won’t listen to that advice, however.

Rumor has it that an announcement about how the Contador case will proceed is due early in the coming week. I wouldn’t be surprised to see the UCI open a disciplinary case against the Spanish rider. We’ll see.

Post to Twitter

{ 59 comments }

William Schart October 16, 2010 at 8:29 pm

Seems to me I saw somewhere that it was a urine test, but I can’t give a cite on that.

If the UCI has reported the same concentration as the AC camp, that does give it some sort of official stamp. But it seems to me that WADA could always claim the test was non-quantitative and hence any attempt to draw conclusions based on a presumed concentration is meaningless.

Rant October 17, 2010 at 8:18 pm

William,

Seems to me some of the initial articles hinted at that, and one or two may have said so outright. Since it’s a qualitative test (there vs. not there) that WADA cares about, the quantity may not ultimately matter.

I suspect that the drug companies have the kind of data which might provide such information as:

  • Relationship between concentration in urine vs. concentration in blood
  • Rate that the drug clears the system, not just in half-life, but perhaps broken down in more discreet measures

If not, I think it would make for a good experiment to run. This could put more credence to Contador’s claims, or provide proof why such claims are invalid.

My hypothesis would be that the concentration found in urine is higher than in the blood. (Because the kidneys are filtering the metabolites into a smaller volume of liquid, thus creating a higher concentration.) Also, that there would be a general range for the rate at which the vast majority of people metabolize the drug, even though there might be some folks who are either more or less efficient at metabolizing the drug.

I would be interested in the general rate that people clear the drug, as well as seeing a breakdown of how much clears at regular intervals (hourly, if possible, until the drug is no longer detectable).

If it’s possible to establish this kind of information, and if the amount of time between exposure and testing is known, then it should be possible to come up with an estimate of the amount of drug a person took in (a range of values to at least 95 percent probability, but better yet, to 99+ percent probability).

Knowing all this could help determine if the athlete was truly a victim of accidental exposure, or if the athlete was more likely doping. Once that’s been established, then the authorities can determine whether to sanction an athlete for an anti-doping offense. Or, if they continue with strict liability (which is very likely), whether to reduce the sanction or not.

tbv October 18, 2010 at 1:48 pm

WSCHART writes: “WADA could always claim the test was non-quantitative and hence any attempt to draw conclusions based on a presumed concentration is meaningless.”

Bingo. That is why Contador is heading for some gardening leave.

TBV

Nico F October 18, 2010 at 2:37 pm

Rant, I don’t think the tests that you’re suggesting are going to be terribly useful. I’m guessing (with some degree of ‘informed’) that the 95% confidence interval on dosing for any individual (even one previously studied) will run between 0 and well above what’s required for effective doping. Elimination rates are dependent on hydration level, exercise levels, levels of stress hormones, what you’ve been eating and drinking (ie. caffeine and other diuretics) etc etc..

There’s a similar issue with breathalyzers and DUI, since an individual’s partition ratio (blood alcohol:breath alcohol) varies dramatically over time (see eg: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1689868/pdf/brmedj00548-0019.pdf ), while the law (even in the US!) assumes that everyone has a ratio of 2100:1 at all times.

Having a threshold might be a solution, but what threshold? As Dr. Ayotte points out, the amounts taken to dope are small, and dopers with access to various diuretics, masking agents etc etc will probably find a way to get under threshold while taking effective doses. Unfortunately, think for clenbuterol, the only solution is keep zero tolerance strict liability, and (if this was incidental) hope the teams keep a closer eye on their food supply in the future.. or maybe the teams could take samples of all the food, which could be later tested if necessary and used to reduce the sanction after a positive test.

eightzero October 19, 2010 at 3:15 pm

WADA has painted themselves into an interesting corner. They have the Jessica Hardy case to deal with: Jessica got a reduced sentence, but the reduction was meaningless, as she still was tossed from the US Olympic team. The principle of strict liability applied. It even applied in the Petacchi case. The CAS said he wasn’t a cheat, but still suspended him.

We will now see if justice is indeed blind. Even though Jessica’s theory of the source of the PED was accepted by the anti-doping prosecutors, her DQ still stood. Will it for AC? If it was just for Jessica, is it just for AC?

My guess is not. AC is not a little girl with an Olympic dream – he’s an established, very wealthy pro athlete people all over the world care about. Not that Jessica deserves less, but she just doesn’t command the money and prestige the ASO and Powerful do.

Its about the money, and only about the money. Sport is long dead.

eightzero October 19, 2010 at 5:26 pm
William Schart October 19, 2010 at 7:35 pm

Well now, that is interesting. I’ve been a bit skeptical of the idea that UCI/WADA might want to cut AC loose based on the idea that they don’t want another DQ in the TdF and/or AC is the most exciting racer at present, but 8-0 article linked above puts a different light on things.

Of course, I note it’s the Germans that are cutting this table tennis player loose, and I didn’t see anything in the article indicating that WADA was cool with this. But this is rather a different corner for WADA here. Seems to me there are enough differences between the Hardy case and AC’s to rationalize say a DQ with a reduced suspension. But now we have a case where there is no DQ with an apparent accepting on the contaminated meat story.

Of course, the lab guy could always claim the test results were different and who knows? They could be. One wonders why the lab was apparently quite willing to back the one story and not the other. Not to suggest anything sinister here: there very well may be differences which make one story plausible and the other not. It would be nice to get some explanation, but I won’t hold my breath.

m October 19, 2010 at 11:36 pm

Rant,

I don’t know why you keep talking about strict liability. If the athlete can show with a 51% likelihood no negligence he avoids any suspension. That’s not strict liability. See Jeff Adams, Gasguet or the table tennis player.

If he can show he ate contaminated meat he gets off completely. You can’t expect an athlete to test all his food. The athlete in Mexico who got the one year suspension would get off if he was willing to appeal to CAS, assuming it was correct that a 18% chance of eating contaminated meat in Mexico met the 51% threshold. I think that was really just a compromise decision.

The problem for Contador is that he can’t show even a 5% chance that he ate contaminated meat, unless he can come up with the meat. The European meat standards are just too strict.

So a strict interpretation gets him a two year suspension. A compromise gets him a one year suspension, but CAS would impose a 2 year suspension if WADA appealed.

m October 19, 2010 at 11:41 pm

Schart,

You should read the Daily Peloton forum.

The table tennis player showed 2 things. His team mates who ate the same diet as he, also tested positive for clen when they were retested. They tested his hair which showed no long term clen usage. So he was able to prove that his clen was the result of food contamination in China.

Rant October 20, 2010 at 10:34 am

Nico,

Good points. There may well be too much variability to do anything but make clenbuterol a yes/no kind of test.

M,

I guess I don’t see as much flexibility in the anti-doping rules as you do. I see where an athlete can get a reduced suspension if the exposure was through no fault of his/her own. Complete exoneration, and no suspension, seems like a rare possibility, which could be overturned on appeal to the CAS. Call me a cynic, I guess.

Regarding Contador, I’m not sure he’ll be able to convince a panel of his theory. If he does, it will be interesting to see what ban he gets. Rest of 2010 season, ala Alain Baxter, one year, ala Colo and Hardy, or … .?

m October 20, 2010 at 11:41 am

Rant,

“no fault of his/her own” equals complete exoneration as with Jeff Adams, Gasquet, and the table tennis player.

Jessica Hardy couldn’t show “no fault”, only “no substantial” fault, because she was taking a supplement. If it had been food she would have met the no fault standard.

Larry@IIATMS October 20, 2010 at 11:43 am

Um, guys? The suspension is important to Contador. It’s important to a lot of people. But it’s not as important to the French and the rest of us as the $64 question, which is: who won the Tour de France?

I’ve given you my reading of the rules, which is that TdF DQ is mandatory under the rules. It’s the strictest of strict liability. No excuses, no defenses, no 51% probabilities.

The UCI and the Tour organizers may choose to ignore the rules, on the ground that AC’s violation of the rules is too trivial to warrant a DQ. WADA may choose not to intervene. Otherwise, DQ is governed by strict liability. Anyone disagree?

eightzero October 20, 2010 at 3:22 pm

Agree w/ Larry but with one small change. Winner of the TdF is up to ASO. UCI may squawk and have a conniption, but TdF is ASO’s property. AFLD might have some things to say, and WADA might get in a snit, but declaring the winner is ASO’s sole call.

“Shocked, shocked to find out there’s gambling in here.”

William Schart October 20, 2010 at 3:58 pm

8-0:
I think I disagree that it’s up to ASO. As I recall from the Landis case, they waits until at least the Malibu hearing was over, and maybe even the CAS appeal before they DQed Landis and declared OP the winner. Of course, a few years back ASO told UCI to take a hike in the Paris-Nice flap, and UCI backed down.

If ASO decided to declare a winner for the 2010 TdF that was contrary to the way UCI or WADA decided, there is always the question od how things get enforced. I guess that the TdF is big enough it just might be able to go it alone without a UCI sanction, to which UCI could threaten to suspend any rider who participated, but that was essentially what happened in the PN thing, and when push came to shove UCI backed down. I am not sure what, if any, weapons WADA has to threaten ASO. As I recall, WADA’s tie-in is via the Olympics, so I guess they could threaten to ban cycling at the Olympics (which isn’t a bad idea to my way of thinking anyway).

Mostly this seems to assume that ASO might want to cut AC loose, which I don’t know about. They might just want to sit back, see how it all plays out, and go with the flow.

M:
I wasn’t trying to suggest there was anything hinky about the table tennis player’s case, just the fact that there was a higher authority that might or might not agree with the dismissal.

M October 21, 2010 at 12:07 am

Larry,

Your strict construction legal argument seems to go against your policy argument that the UCI should be able to excuse a possible doping violation if it appears there was no fault and and didn’t affect the out come of the race.

Legally I think the interpretation could go either way given a factual finding of no fault. Strict and punitive then disqualification of results. Liberal and give the rider the benefit of the doubt when it doesn’t appear that the violation was serious enough to affect the results then he wins the race.

Let’s look at the language of section 291 again.

“If the Event is a stage race, an anti-doping violation committed in connection with any stage,
entails Disqualification from the Event, except when (i) the anti-doping violation involves the
presence, Use or Attempted Use of a Prohibited Substance or a Prohibited Method, (ii) the Rider
establishes that he bears No Fault or Negligence and (iii) his results in no other stage were likely
to have been influenced by the Rider’s anti-doping violation.
Comment: in the latter case the Rider shall be disqualified from the stage in relation with which
the sample was taken only. This disqualification will entail that the Rider shall be
removed from the final general ranking but any other result that is not incompatible
with the Rider being disqualified in a single stage, shall not be disqualified.

It says “disqualification from the event EXCEPT when” he shows no fault and that the results would not have been affected. The implication is that if he makes that showing he will not be disqualified from the event. So he wins the race. This interpretation is in keeping with the idea that if the rider gained no advantage and he was not at fault he should not be penalized. This is an idea that I believe you are in agreement with.

This interpretation requires that we interpret a “stage” to also include a rest day. I have no problem with that since it effectuates a “fair” result. A strict punitive reading might not go for that interpretation.

Now let’s look at the language of the comment. It says that he should be disqualified from the stage in which he tested positive and the overall race, but his other stage results should stand. The idea here is he gained an advantage in a stage so he shouldn’t be allowed to win the overall race. Fair enough. But in Contador’s case the violation was during a rest day not a stage. So no advantage was gained on any actual race stage. So I would argue that one can ignore the comment because it doesn’t apply to Contador’s case and the prior text of 291 applies. Contador wins the race.

One caveat besides the difficult factual challenge for Contador to show no fault.

There are some comments from Ayotte and the Austrian guy who helped Bernard Kohl blood dope that lots of athletes take micro doses of clen. So maybe it does confer an advantage even at the minuscule amount shown on the stage following that rest day.

Larry@IIATMS October 21, 2010 at 1:40 am

M, the way these rules are written is a mess. I went through this in more detail in comments to Rant’s prior post, but I’ll summarize here.

You have the problem that the TdF fits the definition of both a “Competition” and an “Event” under the UCI rules, even though the UCI has set up different anti-doping rules for Competitions and Events.

You have Article 288, providing for disqualification rules applicable to Competitions. Article 288 provides that “A violation of these Anti-Doping Rules in connection with an In-Competition test automatically leads to Disqualification of the individual result obtained in that Competition.” It doesn’t help AC under this Article that a test result is based on a sample taken on a rest day. “In-Competition” is defined as the period three days before the beginning of the Tour and finishing at midnight of the day the Tour ends. There are no exceptions to the rule set forth in Article 288. Arguably, the UCI and WADA could simply apply Article 288 to Contador’s case and DQ him from the TdF, without ever reaching your arguments concerning Article 291.

You then have the main anti-doping rule governing Events, which is set forth in Article 289. Article 289 is essentially the same as Article 288, only for some reason Article 289 has exceptions. My reading of the rules is that the sole exception to Article 289 that might be applicable to AC’s case is set forth in Article 291.1. But unless Article 291.1 applies to Contador, then Article 289 would provide the same result as Article 288, and Contador would be disqualified from the 2010 Tour.

We’re not told how to read Article 288 consistently with Article 289. If Article 288 requires disqualification and Article 289 does not provide for disqualification, which rule do you follow? I’d argue that you follow the rule that does not require disqualification, but there are arguments going the other way.

So … finally we turn to Article 291.1, which provides the exception to Article 289 but not to Article 288. Article 291.1 states that it only applies where the anti-doping violation was committed “in connection with any stage.” This is a problem for AC, as you’ve pointed out, since the offending sample was taken during a rest day and not after a stage. It would appear from this that AC is not entitled to the benefit of the exception set forth in Article 291.1.

Unfortunately, your argument about the inapplicability of the COMMENT to Article 291.1 also applies to the inapplicability of the EXCEPTION provided by Article 291.1. But also, I don’t think you’re reading the comment correctly. The comment reads: “in the latter case the Rider shall be disqualified from the stage in relation with which the sample was taken only. This disqualification will entail that the Rider shall be
removed from the final general ranking.” The comment does not state that the Rider is removed from the final general ranking only if the Rider’s anti-doping violation took place during a stage. The comment assumes that the rider will be removed from the final general ranking under all circumstances. Yes, I admit that the wording of the exception (like the wording of these rules) is poor, but I don’t see any intent in the Comment to make an exception for rest-day testing.

But in any event, like I said, the entire exception appears to be inapplicable to rest day testing.

Let’s try to make sense of these rules. My best interpretation of these rules is as follows: if a rider tests positive, he’s DQ’d from any overall Tour result without exception. The only question is whether the rider is also disqualified from all results the rider achieved during an individual stage (such as a stage win). Article 291.1 holds out the hope that the doping rider might not be disqualified from every result he achieved in every stage of the race. To avoid a blanket DQ for a particular stage result, the rider has to show no fault, and he has to show that his doping did not affect his result in that particular stage. I’ll admit, my interpretation does not fit the UCI rules to the letter, but it’s the closest I can come to making any sense out of what I’m reading.

To understand Article 291.1, you have to read it in conjunction with Article 291.2. Article 291.1 provides the anti-doping exception for “Prohibited Substances” like Cb. “Prohibited Substances” include the most serious forms of doping, such as use of anabolic steroids, EPO and blood doping. Article 291.2 provides the exception to Article 289 when the anti-doping violation involves use of a “Specified Substance”. “Specified Substances” are less serious forms of doping, including use of recreational drugs like cocaine. So we’d expect that an athlete eligible for an Article 291.2 exception would receive easier treatment than would be available under Article 291.1. And for the most part, that’s what we see. Article 291.2 expressly provides that a rider eligible for a 291.2 exception is not disqualified from the Event, but must receive a time penalty.

It would be strange to interpret Article 291.1 to provide for no disqualification AND no time penalty, when we’d assume that Article 291.1 should provide for a harsher penalty than Article 291.2.

Yeah. These rules are a mess. But I think that the best interpretation of these rules provides for strict liability and AC’s DQ from the 2010 Tour.

Matt October 21, 2010 at 10:48 am

Hey Rant…just browsing over at Velo News at a bit from “The Explainer” on why the AC issue is taking so long. Near the bottom he included this quote from Pat McQuaid:

“We don’t treat him differently than the others, but let’s be honest, the fact that it was Alberto Contador means that we have to be certain we take the right decision,” McQuaid said.

Oh great…so if you are any lesser cyclist than AC and you are accused, then YOUR decision might just be rubber-stamped?

Maybe I’m reading too much into this…but that’s how I read that quote. He infers that the UCI need not take the time to make the ‘proper’ decision for lesser riders. Nice to hear that the UCI makes it’s decision based on WHO you are, rather than the individual merits of the case no matter your stature. Becasue surely Joe Cat-3 has nothing to lose. What a system.

eightzero October 21, 2010 at 11:55 am

Speaking of “lesser cyclists:”

http://velonews.competitor.com/2010/10/news/italian-panel-clears-franco-pellizotti-of-doping-charges_147208?news

IOW: UCI Passport*
OTOH, the passport thingy does look like an effective training tool for cyclists. And who pays for that, anyway?

Jeff October 21, 2010 at 2:55 pm

Regarding Pellizotti, the alphabet soup gets many bites of the apple.
1. UCI cites Pellizoti. (Bio-passport)
2. CONI concurs and sanctions the rider.
3. Rider missed Giro & other races. Salary, endorsements, and marketability in the crapper.
4. TNA (Italian National Anti-Doping) gets around to clearing Pellizoti to race again.
5. UCI requests full file from TNA. Has 30 days from receiving the file to appeal to CAS, or not.
6. I’m not sure if CONI has the right of appeal too (I’m willing to bet they do), but UCI sure does, and it looks like they will.
7. WADA also has the right to appeal, in conjunction with UCI or individually.

That’s more than enough bites at the apple to influence a rider to stay in his place. And….it’s at least seven steps. Perhaps they’d be interested in making it a twelve step program???

Rant October 22, 2010 at 10:01 am

Matt,

Kind of sounds that way, doesn’t it? Sure is a different tune than McQuaid sang in 2006. Maybe it depends not only on your status, but whether the powers that be like you. That would never, would it?

8-0/Jeff,

Gotta wonder when Pellizotti will really get clear of this mess, no matter how it ultimately goes.

M,

OK, there could be a circumstance when a rider or athlete mint actually manage to be exonerated (no fault or negligence). I think that’s the line Contador is trying to take. I have my doubts that he’ll manage to succeed. But time will tell.

MikeG October 22, 2010 at 12:50 pm

Spain’s Guardia Civil arrested 34 people connected to an alleged trafficking ring involving clenbuterol in the Canary Islands that could bolster the argument by Alberto Contador that his positive test during this year’s Tour de France came from eating contaminated meat.

http://velonews.competitor.com/2010/10/news/spanish-police-uncover-clenbuterol-ring-used-in-horses-livestock_147239

Some really interesting comments to the story, basically that this “news” story does not show up anywhere outside of VN, Cyclingnews, and VeloNation. Some posters speculate that the story is a plant to bolster ACs case…

eightzero October 22, 2010 at 4:34 pm

Is this whole thing going to come down to AC had no “signifcant fault” because what he consumed was “food” but Jessica gets reamed because she didn’t send her suppliements out to a lab for testing, and thus has “significant fault?” Really?

That’s it – I’m taking to meals of EPO burritos and testosterone soup.

M October 22, 2010 at 8:15 pm

eightzero,

“Is this whole thing going to come down to AC had no “signifcant fault” because what he consumed was “food” but Jessica gets reamed because she didn’t send her suppliements out to a lab for testing, and thus has “significant fault?” Really? ”

The simple answer is YES!

You have to eat.

You don’t have to take supplements.

One caveat. I could imagine that if you are on notice that a particular food supply likely contains prohibited substances like clenbuterol, perhaps Mexico with 18% contamination, then you might be put in the same boat as Jessica Hardy.

Larry@IIATMS October 22, 2010 at 9:48 pm

M, the WADA Code says that it’s each athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. No exception is provided for food. Moreover, while no one has to eat supplements, no one has to eat beef either. Are you telling the children of the world that they should not take their vitamins?

8-0, M is probably right. The comments to the WADA code indicate that an athlete has to receive a sanction for ingesting contaminated supplements.

William Schart October 24, 2010 at 9:39 am

There seems to be a hint of the idea that perhaps the powers that be, or at least some of them, might want to cut AC some slack here, due to his status as the TdF winner and/or as the biggest name currently. But is there anything to support this, other than mere speculation or wishful thinking?

If the idea is to avoid another doping scandal, it seems to me that horse has already left the barn, and unless there is some pretty good evidence to back AC’s story, allowing him to keep the winner could be a PR mistake.

On the other hand, giving him a reduced suspension while DQing him could be a way to go. I could see that perhaps a different standard of “proof” might apply (at least unofficially).

But the powers that be just might not be inclined towards lenience. The McQ quote could be interpreted the other way too, as in “Let’s not rubber stamp a no-name while giving a big name the benefit of the doubt.” or it may simply be the realization that this case will be closely scrutinized, and the want to be sure to dot all their i’s and cross all there t’s, whichever way they go.

Larry@IIATMS October 24, 2010 at 1:09 pm

William, DQ’ing AC is really the big question.

The “slap on the wrist” punishment would be to let AC keep his 2010 Tour de France championship and suspend him for nine months, effectively disqualifying him from Spring racing (where he wasn’t like to do anything anyway) while making him eligible for the three (four?) 2011 grand Tours. But I don’t see how to bend the rules to allow this to happen.

This is the point most people seem to be missing: from the standpoint of the sport, what matters most is results management, not the duration of suspensions. The Tour de France will do about just as well with or without AC in 2011. Remember 2007, when none of the then-big names were racing? It didn’t seem to matter much (except probably for U.S. interest in the race).

But it matters A GREAT DEAL when the outcome of the race is potentially determined year after year by the outcome of anti-doping testing. We’ve become so accustomed to this (and most of us were so personally involved in the Floyd Landis case) that we’ve probably lost sight of this fundamental fact: we attend or watch a sporting event in large part to experience its outcome. We are now approaching November, and once again (this has happened two years out of the last five) we don’t know the outcome of a sporting event (the biggest event in its sport) that concluded three months ago.

I will guarantee you, this kind of situation drives the race organizers crazy. Again, we’re used to it, but try to imagine that the World Series outcome was not known by the time the Super Bowl was played, or that the NBA championship was not decided by the time the World Series was played.

(This may sound absurd to you, but remember that WADA is lobbying to take over drug testing in baseball. If two guys on the same baseball team tested positive during the World Series, then you’d be looking at the possibility of the team being disqualified. The World Series winner might be decided in an arbitration hearing in Switzerland, more than a year after the World Series was concluded.)

This kind of thing erodes the sport, whatever the sport might be. When the Tour de France holds its podium ceremony in Paris in July, they’d like us to believe that the guy on the top of the podium is the race winner. But truth is, the guy on the top step is a provisional winner. When I followed the sport of cycling and cared about its outcomes, I would monitor the cycling press during the month of August, looking for possible rumors of doping problems, and also looking for a sign that the labs had finished their testing and the race results were truly final. Of course, the labs never make a big announcement that they are done with their testing, precisely because the race organizers don’t want us to consider the race results to be provisional.

But these results ARE provisional; in a sense they are permanently provisional. The maillot jaune is subject to months of lab testing and political wrangling among the powers that be in the sport (including WADA), and potentially years of argument in arbitration hearings and courts.

It’s not just AC’s maillot jaune that’s provisional. EVERY cycling result from the last umpteen years is open to challenge. I think the French would love to take Lance Armstrong’s results away from him if they could. We hear more and more about samples being frozen for later testing.

At some point this madness has to end. These are sporting events. There has to be a winner. Whatever the point might be of the anti-doping effort (and honestly, the point of that effort seems hopelessly lost in cases like Contador’s), the effort is supposed to be aimed at improving sports, and not transcending or superseding sports. If we don’t know the winner of the Tour de France by Halloween, then something’s gone horribly wrong. Something has gotten completely out of control.

It’s better to let a cheater win than to endure this process, year after year. Otherwise, why not just ignore the damn race, and televise the lab procedures where the race is really decided?

m October 25, 2010 at 11:16 am

Larry, Jeff, Rant,

You all complain about the length of the process.

Maybe we should just eliminate any right to challenge the doping finding. That should simplify and speed things up.

Or conversely, if the athlete disputes the doping finding or claims that it wasn’t really performance enhancing. we should just take his word for it and reinstate all his results asap.

But seriously…..

William Schart October 25, 2010 at 12:45 pm

Interesting point, Larry. I’ll add a possible corollary: how do we know for sure that the official winer in 2006 was in fact clean and therefore a legitimate winner? Or indeed , any winner. We don’t, really, especially with all the allegations that riders have strategies to be able to dope while avoiding detection. Considering that FL was not caught for the type of doping he has admitted, to there may be something to this.

One sure way out of this is simple to allow doping. No need to test then, no waiting for results to be finalized, no hassles about whether or not such and such rider doped. But is the public ready to accept this?

Another idea I have toted with is to make doping similar to a foul: you get DQed from the race, no appeal, no career harming suspensions. Kind of like when the ref takes away a last minute game winning TD on a non-reviewable call.

I,m trying to recall if, for example, the NCAA has ever taken away a championship post priori for some recruiting or eligibility violation, but can’t think of any, at least recently in a major sport. The closest thing I can think of is from before BCS days, when one had to wait for the final rankings to come out to know who was the DI football champ, with the added possibility that different polls could and did choose different #1s.

M October 25, 2010 at 1:57 pm

USC Football ‘Vacates’ Nat’l Championship Win

http://www.tmz.com/2010/06/10/usc-football-national-championship-reggie-bush-ncaa-investigation-postseason-ban/

Wins are retroactively forfeited all the time in the NCAA for violations. Many, many instances of this.

See also Marion Jones who never tested positive but forfeited all of her gold medals long after the fact.

William Schart October 25, 2010 at 2:53 pm

Good catch, M. I note that the NCAA “vacated” the championship, meaning that no other team was awarded the championship. It would be impossible to devine what would have happened if you took either USC or Bush out of the equation that season.

Should UCI, etc., adopt this approach? In Landis’ case they didn’t, elevating the second place to winner (and presumably bumping everyone else up one place). But a case could be made that if Landis wasn’t involved in 2006, who knows who might have won. Still doesn’t solve the problem of “provisional results”.

Here’s another idea: after any event, give the anti-doping labs a certain time frame to complete tests, say 30 days. Allow athletes a certain time to appeal, say the current 5 days, and give the authorities a reasonable, but reasonably short time frame to convene the arbitration, and then, whatever the outcome, that’s it. No holding frozen samples for years,hoping that someone will devise a test that we finally can use to bust Lance, no appealing to multiple authorities trying to get the desired result.

Jeff October 26, 2010 at 7:00 am

Yes, I am concerned about the multiple bites of the apple that the alphabet soup is afforded vs an athlete to get a desired result, sometimes predetermined. M, if I had any confidence the motivations were pure and they actually know what they are doing, vs making it up as they go along, then I could stomach restricted appeals. Compared to the multiple layers of prosecution, appeals already seem restricted. Eight years is a long time for a result to be changeable. YMMV.

Respectfully, 30 days post competition for a final result won’t do it either, unless fans learn to routinely record events and then view them only after the 30 day waiting period with no news of the original result. After all, television and radio often have 30 second time delays in case someone tries to slip in one or more of George Carlin’s words you can’t use. Cycling can just extend that to 30 days??? Admittedly a vast improvement over the current situation but still not a solution to the root problem.

A bunch of Billy Bobs have long ago figured out what their more worldly counterparts still can’t seem to wrap their heads around. When the race is finished and the winner is celebrated, that person is the winner. If you are smart, you punish the offender(s) in other ways, but you don’t take away the win. If you do it’s at your peril and your sport’s peril. The Billy Bobs are Nascar movers and shakers. As an example, they’ve made damned sure Richard Petty is better known for his 200 wins than for the oversized engine that got him at least one of his 200 wins.

Nico F October 26, 2010 at 7:52 am

Mr. Schart,

There is no NCAA championship in college football. There is a Bowl-Championship series (BCS) which USC won in the 2004/05 season, and which they remain champion of pending a bowl oversight committee hearing (and given the process, the two m’s, two t’s and two e’s are probably warranted). Nothing that happened at that time with the BCS controls the decisions of either the AP poll, or the Coaches poll which previously have acclaimed champions (the coaches are now required to vote the BCS champion #1, in response to Auburn’s season).

I opine that looking to college football for any kind sensibility is not a good idea.

Jeff October 26, 2010 at 9:38 am

That’s the sort of accuracy one should expect when citing TMZ as an authoritative source…….
Just saying.

William Schart October 26, 2010 at 11:40 am

Oh the joys of the college football championship! I have my own opinion about that, but it isn’t pertinent here. The fact remains that for any event where a competitor or team can be disqualified for something not readily and immediately apparent during the actual event we run the risk of an apparent winner being DQed after the fact. In terms of our current discussion, it matters little in my opinion whether that is due to a question of eligibly or of doping.

As far as I know, there is no quick doping test, one that could be administered immediately after a stage or race and give a result then and there. So we either have to accept the fact that results are provisional, or allow doping. Or let the results stand and assess some alternate sanction like a heavy fine or suspension.

Jeff October 26, 2010 at 12:42 pm

Just for grins and giggles, what do you think of employing a model similar to sailboat racing. At the conclusion of a race (or stage) competitors have a half hour to lodge a protest against another contestant(s). If there are no protests, then the results stand. End of story. This model has the advantage of putting the results back in the hands of the competitors.

If there is a protest, we’re left with an unwanted delay for PED testing/adjudication. I’d guess competitor to competitor protests would be relatively rare however. (No DS protests. Protests limited to competitors)

How do we solve the problem of declared winners having the win taken away post competition? Follow the Nascar model. Start with pre-competition inspections (PED testing) This reduces, but does not eliminate the possibility of cheating. Clint Boyer won a race in the Chase. After the race his car did not measure in. He kept the win, but was docked substantial points toward the Championship, was fined, and his Crew Chief was suspended for 6 races. In bike racing, the analogy might be something like the following, using Contador as an example: 1) Contador keeps the 2010 TdF win, 2) His fine equals his winnings from the race (winnings donated to the certified charity of his choice), 3) his DS is suspended for 6 months, 4) to simulate a Chase ending penalty, Contador is not allowed to defend in 2011. Same should have held true for Floyd. Such penalties would be substantial enough to discourage PED use by penalizing the rider, rider’s team (can’t share in the winnings), and the DS. Encourages self policing. Tough penalties, but not draconian. Fans don’t end up confused as to who won. Could work? Nah! As incomplete and un-thoughtout as this is, it makes too much sense, comparatively.

It goes to the motivation of the alphabet soup, which has nothing to do with athlete health or fair competition. Follow the money…..

eightzero October 26, 2010 at 1:05 pm

Follow the money…

This applies (particularly) to NCAA activities as well.

And let’s leave off fairness. Fairness is not something that is important to the owners of sport. Are you not entertained?

Jeff October 26, 2010 at 3:15 pm

The NCAA gives IoC and their evil spawn, WADA, a run for their money in the corrupt bureaucracy sweepstakes. (UCI is barely worth a mention as they are so obvious regarding the fleecing of competitive riders) Scholarships that cost in the thousands for football and basketball players, make the NCAA and schools from big time programs millions. Players don’t share in the profits. Most of those guys are exploited. The NFL and NBA are complicit in the exploitation too. They get free feeder leagues. MLB must be pissed they have to maintain their own farm system for emerging talent.

William Schart October 28, 2010 at 1:07 pm

It seems to me we are asking a lot of the anti-drug system and in fact may be looking for things which may be mutually exclusive. We want tests that have few false positives (penalizing innocent athletes) yet at the same time have few false negatives (letting guilty one off the hook). And by the way, we want this to occur immediately after the event/race, so the results are finalized. But we want a realist system for appeal, in case an innocent athlete is charged. Regardless of whether the alphabets are corrupt, incompetent and/or acting out of bad faith; or are honest, competent, and acting in good faith, there is no way all of this is going to happen. We have to set priorities, and WADA and its minions have decided in favor of ignoring the chance of false negatives, and leaving the possibility that results could be changed up on the air for years. The idea seems to be not to give any possibility of a break in order to discourage doping. Not that this seems to be working all that well.

Jeff, your ideas about reducing testing a la sailing and/or NASCAR are interesting. However, I am not sure how well it would work in practice. Now I am not sure what all a sailor can do to warrant a protest, but I’d guess mostly it’s stuff related to either equipment or tactics and hence something relatively visible. Either the other boat cut you off or it didn’t. This means that it is both something that other competitors have some reasonable chance of being aware of and something easy to check out. But a PED challenge is sort of the old “If he’s faster than me he must be doping”, unless of course you actually saw someone popping a pill or the like. I’d think that either 1. no one will file protests because if I file one today, you might file one against me tomorrow, or everyone will file, rolling the dice that maybe the guy ahead of you took something that can be detected.

eightzero October 28, 2010 at 4:12 pm

“Do the athletes cheat? Yes. The government cheats to win, too.” -Victor Conte

http://www.cyclingnews.com/features/lance-armstrongs-new-nemesis-federal-agent-jeff-novitzky

Jeff October 28, 2010 at 7:32 pm

William,

I did not intend to suggest reduced testing, but rather refocused testing. Currently teams have a drop dead date for declaring possible team members for big races like the TdF, Giro,…. I’d rather see concentrated testing before an event to weed out PED users. That doesn’t solve the problem of those falsely accused and prevented from performing in an event for which they trained. However, it goes a long way toward getting the desired results, without altering the actual results “on the road”.

In sailboat racing there is not much reluctance shown by competitors protesting fellow competitors for things like violating right of way rules, violating required equipment rules, rules related to crew weight, or boat measurement issues. The overwhelming majority of protests are made by competitors. Officials (Race Committee) have the ability to protest in limited circumstances. I don’t have a cite, but could find one if necessary, related to and America’s Cup competitor (series immediately preceding the most recent multi-hull “Deed of Gift” series) who was sanctioned via WADA for a PED violation. IIRC, it was cocaine and his fellow competitors didn’t give a rat’s rear end. (WADA inflicting itself where un-wanted and un-needed) Protests are generally decided in a short period of time. Decisions are well documented and discontent with the decisions related to protests is rare. In contrast, the America’s Cup sailor / WADA issue was a mess and there was a fair amount of discontent and disagreement surrounding the issue.

Nascar may be run by Billy Bobs, but they are not stupid. One can complain about yellow flags for phantom debris on the track when things look less than competitive. It results in livening up the show. One can’t complain about ambiguity related to the winner of the race. Early in Nascar’s history there was a famous falsification giving a win to a white driver (Buck Baker), when a black driver (Wendell Scott) actually won the race. Baker was celebrated as the winner and a correction, without fanfare, was made later. That didn’t sit well with fans and Nascar knew it. I don’t recall it happening again in Nascar’s top class, but I could be wrong? The point I’m attempting to make is that Nascar values the announced/celebrated winner as being the winner. They take steps (pre-qualifying inspections, pre-race inspections, and the threat of post-race tear downs) to reduce the chances of cheating. They also impose some severe penalties, that don’t include taking away a win, on those found cheating.

Nascar drivers and teams have gone on record alluding to cheating by other competitors/teams. It has generally resulted in increase scrutiny by Nascar for the accused or the accused and accuser. Basso was famously accused of being “extraterrestrial” by a competitor at the Giro, pre-suspension. Increased scrutiny might have contributed to his eventual sanction. That’s probably fair, so long as it is made on the record, not anonymously, as was the case related to Basso.

The UCI and WADA would do well to study and employ aspects of other models that actually work. The current system is broken in a big way and won’t stand the test of time. How long we’ll be saddled with the current UCI/WADA system, I don’t know. WADA has done a marginally good job selling a bad system.

William Schart October 29, 2010 at 12:31 pm

I’ll admit I know little about sailing, and don’t follow NASCAR. But it does seem to me I have heard a time or two where some car failed a post race inspection and someone was penalized. Now I can’t sy for sure whether or not the penalty was a DQ, or maybe a loss of points or fine or the like.

Maybe i’m just too cynical, but I am not all that convinced that riders will do all that great of job of self policing. Whether there is an omertà in the fullest sense of the word, I find the natural tendency of any group of professionals in to not say much about the perceived faults of their follows. Partly I think this is a form of professional courtesy and partly a form of self defense. If you accuse today’s winner of doping, what will happen next week if you win? On the other hand, it is possible that protests might be lodged purely out of spite, or on the chance that the winner just might have had a little extra help even if the protestor has no knowledge of such.

I have read about a few cases where a HS coach apparently had some knowledge that an opponent had an ineligible player, but did not report this to the state federation until after loosing to that team. Looks like to me this knowledge was being used like an ace up the sleeve: we’ll pull it out if we need to (we lost), but we’ll keep mum if we win and take whatever glory results. Kind of cynical. What’s special about cycling that this type of thing won’t go on.

I have no problem with a rider filing a complaint about, for example, getting cut off in a sprint or the like. OK, let’s play back the tape and in a minute or two we’ll have an answer, just like a coach’s challenge in the NFL.

Jeff October 29, 2010 at 4:50 pm

William,

I’m going to be offline for a few days, but want to provide at least a short response.

Maybe you are right that the culture in cycling won’t lend itself to an aspect of self policing? It might be worth a try though. Most anything would be better than the status quo. It does work well in sailboat racing. It’s not unusual for a leading boat to be protested and penalized. Paybacks are sometimes attempted, but it’s usually in the form of more focused racing against the accuser. You can get banned from the sport for any dangerous retribution. There are some similarities between bicycle racing and sailboat racing. In both sports, the competitors rely on each other for a certain measure of safe competition. For instance, in sailboat racing, a boat/crew rendering assistance to a sinking (or otherwise life threatening situation) competitor’s vessel is given redress regarding the results. Essentially, the time it took to effect a rescue is credited to the rescuing vessel and the overall race results are adjusted accordingly. In bicycle racing, there are many examples of riders assisting others in trouble. There are unwritten rules that frown on attacking in a feed zone or during a natural break. Same goes for traditional unwritten rules about attacking when the leader is having mechanical troubles or has fallen. Again, cycling’s culture may not be ready for elements of self policing, but I think it would be worth a try and has the potential of fostering real improvements.

In Nascar, you are going to be hard pressed to find an example of a win in the top class (currently Sprint Cup) being overturned once the winner is celebrated in Winner’s Circle. (The 1950’s Buck Baker – Wendell Scott racially motivated incident notwithstanding)

If UCI and/or WADA actually cared about athlete health or the concept of fair competition, they’d study and adopt aspects of models that work. Sadly maintaining the bureaucracy is job #1.

SHOW ME THE MONEY,LANDIS! October 30, 2010 at 11:38 am

Seriously, does it surprise ANYone that the Spanish cycling federation is “backing” Contador? Seriously. However, I thought they’d at LEAST slap him on the wrist with a 3 month suspension, just to show the UCI they’re NOT really a doping cesspool down there (wink,wink). I also thought they’d try to retro the suspension back to the end of the Tour, so he’d be able to ride next year immediately.

But NOW it looks like they probably won’t suspend him at all & the UCI/WADA will have to appeal immediately to keep him off the bike.

And NOT that I’m feeling any sympathy for Landis these days, but can SOMEONE please tell me why Testosterone is sooooo much worse to see in one’s dope test than Clenbuterol? I mean hell, when have you ever heard of a TESTOSTERONE RING? Outside the WWF or those MMA things, that is. ;)

William Schart October 31, 2010 at 6:45 am

They are now going to implement night time testing in The Tour:

http://www.france24.com/en/20101029-cycling-doping-tour-de-france-cyclists-drug-testing-night

eightzero November 2, 2010 at 11:21 pm

http://liten.be//AZCPx

I hear Inspector Cleuseau is getting trial prep from Novitzky.

Jeff November 3, 2010 at 8:04 am

Along with William’s cite regarding night time testing (sample collecting), here is an article where Cavendish is supportive: http://www.cyclingnews.com/news/cavendish-says-night-time-doping-controls-are-no-problem

FWIW, I’d be much more impressed if the strategy to eliminate doping/ped use was more inclined to find ways to get the job done while respecting the concept of simple human dignity and acknowledging an athlete’s need for a good night sleep during a challenging stage race to facilitate recovery.

The current status is an excessively blunt instrument. It’s analogous to using an open chest Maze Procedure to treat atrial fibrillation instead of minimally invasive Radio Frequency Catheter Ablation. Adding night time (~between 11pm-6am) collections is an escalation of being stupid and sloppy with the approach. By purposely not protecting a minimal time for sleep and recovery, the alphabet soup has blundered into providing an added incentive for riders to use artificial methods of necessary recovery in a stage race. Way to go!

Jeff November 3, 2010 at 11:18 am

VeloNews regurgitating Agence France Presse:
http://velonews.competitor.com/2010/11/news/landis-and-baker-to-stand-trial-in-france-for-computer-hacking_148655?news

The computer hacking thing. They are still quoting the BS about an “International Arrest Warrant”, which does not exist for the crime(s) which Landis and Baker are accused. Lazy BS stuff.

Matt November 3, 2010 at 1:19 pm

Popovych is subpoenaed to testify before a federal grand jury today in Los Angeles…the witch-hunt intensifies!

http://velonews.competitor.com/2010/11/news/yaroslav-popovych-subpoenaed-in-grand-jury-probe_148666?news

m November 3, 2010 at 3:45 pm

“Popovych is subpoenaed to testify before a federal grand jury today in Los Angeles…the witch-hunt intensifies!”

Free Barry Bonds!!!!

eightzero November 3, 2010 at 10:46 pm

When they came for the dopers, I didn’t do anything because I wasn’t a doper….

Jeff November 4, 2010 at 10:45 am

http://velonews.competitor.com/2010/11/news/the-explainer-youve-been-served_148744?news

Charley Pelkey explains why Popovych voluntarily testified before a Grand Jury in the Los Angeles, California USA, while he is a Ukrainian citizen and resident of Italy. I don’t find any significant errors contained in his explanation.

The reciprocal (as it relates to the subpoena and appearance process) generally holds true for Landis/Baker with regard to the French court’s hacker case. Again, reports of there being an “International Arrest Warrant” are not accurate. It’s just lazy and crappy reporting. International Arrest Warrants are not issued for relatively minor computer hacking cases. They are reserved for serious issues related to offenses like genocide and war crimes.

M November 4, 2010 at 1:02 pm

Jeff,

“International Arrest Warrants are not issued for relatively minor computer hacking cases. They are reserved for serious issues related to offenses like genocide and war crimes. ”

What’s your basis for saying that? Do you practice in this area of the law?

Just googling, I find cases of international arrest warrants being issued for computer fraud and hacking, e.g. stealing credit card info and account info. So, without doing any research myself, I don’t see how you can categorically rule it out. Do you have any authority to point to?

The AP story quotes an anonymous court official. The AFP story quotes a lawyer who has been involved in the case. In both cases it is claimed that an international arrest warrant was issued by the French court. So it certainly seems very possible that an international arrest warrant was issued.

Whether it would be recognized in the U.S. is another question.

Jeff November 4, 2010 at 5:46 pm

M,

“The AP story quotes an anonymous court official. The AFP story quotes a lawyer who has been involved in the case. In both cases it is claimed that an international arrest warrant was issued by the French court. So it certainly seems very possible that an international arrest warrant was issued.”

I’m flabbergasted that intelligent people believe a Judge presiding over a court in Nanterre France could be empowered to unilaterally issue an “International Arrest Warrant” against citizens of the United States? I guess if something is said often enough, it starts to sound true??? Regardless of how ridiculous it is….

I can’t fathom why the issue of “International Arrest Warrants” is so widely mis-reported? Perhaps reporters watch too many crime/thriller movies and have come to accept their content as reality? I don’t know, but hope the lawyers involved have been mis-quoted. Otherwise, they’re hacks.

It has been reported that the French prosecutors don’t particularly want to pursue this case, but the Judge in Nanterre (Thomas Cassuto) does. (Doesn’t actually make it true BTW)
http://www.cyclingweekly.co.uk/news/latest/505411/landis-unlikely-to-stand-trial-for-hacking-says-manager.html

How do you think an “International Arrest Warrant” might work in this case? From a compilation of internet news reports, it goes something like this:
* French Judge Thomas (The Dog Whisperer – whole other story) Cassuto rules Floyd & Arnie should stand trial in Nanterre France for crimes related to hacking LNDD’s computer(s).
* News outlets pick up the ruling and erroneously publish news that an “International Arrest Warrant” has been issued for the pair.
* Casual readers believe an “International Arrest Warrant” has actually been issued and think Floyd and Arnie should rush right off to Nanterre, especially if they are innocent.

What is missing (some of the basics, not fully inclusive) from the news reports?:
* Official service of a subpoena. (France pays to service the subpoena)
* This would need to be coordinated with the proper authorities in the United States, per applicable treaty, or other country where Floyd and/or Arnie are located. Assumes Floyd and/or Arnie don’t travel to places that are French Territory.
* Subpoena would need to detail the charges against the pair. They would not be expected to rely on news reports to ascertain the charges.
* Would compensate them for certain elements of their cost to travel to France to face the judge/court, should they decide to, per applicable treaty. (France pays travel expenses)
* Floyd and/or Arnie are free to ignore an officially served subpoena if they desire. (See treaty)
* Their penalty would be facing arrest if they travel to or through French controlled territory.
* Should the French government become extremely motivated to have the pair face the music in Nanterre, Extradition is a possibility, but is unlikely. (Quid Pro Quo: the French didn’t give Roman Polanski up to the United States, for instance)
* An International Arrest Warrant does not equal Extradition either. To equate the two would be sloppy and inaccurate.

It’s more than semantics. “International Arrest Warrant” does not remotely apply to Floyd and/or Arnie. It’s use in this manner is inaccurate, sloppy, lazy, inflammatory, and simply wrong. “International Arrest Warrant” correctly applies only to individuals charged with genocide, crimes against humanity, and war crimes. Computer hacking just doesn’t make the grade.

Further, I question whether Judge Thomas Cassuto is operating in good faith. If you think he is, please cite where or how:
* he has arranged to formally and properly subpoena Floyd and/or Arnie. (including payment for service)
* he has enlisted the aid of the proper officials in the Federal Government of United States to notify and encourage Floyd and/or Arnie to appear in his court in France.
* he has met the minimum requirements of the Extradition Treaty between the United States and France, if Judge Cassuto intends to attempt to have Floyd and/or Arnie extradited.

Also, please show me authoritative cites from the United Nations, the International Criminal Court, Interpol, the United States government, the French government, or otherwise quality authoritative cites that support the erroneous notion (IMHO) that “International Arrest Warrant” somehow applies to Floyd and/or Arnie’s alleged hacking of LNDD’s computer(s).

(“Request for Provisional Arrest” might be an appropriate description if the Judge (Cassuto) initiates and follows through on the proper procedures to do so. I see no evidence that he has.)

Considering the international nature of the subject, I’d sincerely like to know if Judge Cassuto has done anything substantial, from a legal (not PR) standpoint, to have Floyd and/or Arnie stand in judgement before his court. I have not found a news report that indicates he has.

Jeff November 4, 2010 at 5:51 pm

Rant’s blog software identifies my many cites as spam and prompted me to try again. I’m breaking them up and trying again:
Here are a number of cites, in no particular order, that support the thrust of my argument:
http://www.interpol.int/public/icpo/legalmaterials/factsheets/fs13.asp (Red Notice might be the closest?, but does not sound as sexy as International Arrest Warrant, nor is it the same. I don’t think Red Notice applies here either. It fails to pass the urgency test. Perhaps Request for Provisional Request, via diplomatic channels?)
http://en.wikipedia.org/wiki/International_Criminal_Court
“The International Criminal Court (French: Cour Pénale Internationale; commonly referred to as the ICC or ICCt)[1] is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).[2][3]”
http://www.icc-cpi.int/Menus/ICC/About+the+Court/Frequently+asked+Questions/
“”The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.
http://www.icc-cpi.int/Menus/ICC/Search?qt=international+arrest+warrant&x=16&y=4&la=en

Jeff November 4, 2010 at 5:53 pm
Jeff November 4, 2010 at 5:54 pm
Rant November 4, 2010 at 7:53 pm

Jeff,

Sorry about that. I’ll see if I can track down what caused that problem and if I can find the glitch, correct it. Thanks for posting all those links. I hope that next time you won’t need to break them up over several comments.

M November 5, 2010 at 2:00 pm

Jeff,

I don’t find those citations particularly persuasive or on point as to showing that a French or any other court would not, could not, or cannot issue an “international” arrest warrant for computer hacking, in this case theft of private governmental/commercial information. As I said, I’ve found cases of international arrest warrants for suspects wanted for stealing credit card info by computer hacking.

From my own reading, national arrest warrants are issued for such activities, and if the defendant is abroad and the prosecuting authorities think it is worth the additional cost and trouble there is no apparent legal impediment to them communicating the warrant internationally for arrest and extradition to foreign countries with which they have an extradition treaty. One of the reasons they may not do so, is that many countries are reluctant to extradite their own citizens to the foreign requesting judical authority, especially for activities that are not crimes in their own country. As to the latter, the U.S. certainly treats computer hacking as a serious criminal matter now.

Jeff November 5, 2010 at 3:48 pm

Let me try to explain again. I’ll try to do it more slowly for you this time:
* Judge Thomas Cassuto, a judge from a court located in Nanterre France, cannot possibly be empowered to unilaterally issue an “International Arrest Warrant” against United States citizens.
* If you think he is, then please provide one or more credible cites that support such an erroneous assumption.
* The term, “International Arrest Warrant” only properly applies when the International Criminal Court (ICC) is seeking an individual or individuals in order to prosecute them for genocide, crimes against humanity, war crimes.
* Otherwise, applicable treaties between nations apply.
* Interpol may (or may not) assist in that process, for nations recognizing Interpol.

* Interpol has a number of tools at its disposal to assist.
* A “Red Notice” issued by Interpol is a request to detain an individual(s) for serious crime(s). There needs to be “urgency” attached to the request.
* A “Red Notice” would not be appropriate because the “hacking” case goes back several years and therefore no urgency can be attached.
* Stepping down a bit is a request for “Provisional Arrest”.
* This is intended to alert local authorities (local to the accused) that he/she is wanted to stand trial in a foreign country.
This could apply to Floyd and/or Arnie if such a request is made.
* I’ve seen no evidence this has actually occurred.
* Please correct me with a cite if you think I’m wrong.

* Next, if a request for “Provisional Arrest” is made, it must be made in concert with applicable treaties.
* There is an applicable treaty in force between the United States and France. I’ve previously cited the treaty.
* I’m not quite sure how you find the cite to the treaty to be unpersuasive? It details what should happen and how it should happen.
* It includes prerequisites such as a formal subpoena, proper service of the subpoena, travel, and details who bears which expenses. Maybe you should read it?

* You’ve written that you’ve done a bit of googling on the subject but no real research. That’s fairly obvious.
* I’ve provided you with on point cites from the United Nations, the International Criminal Court, Interpol, Vanderbilt Law School, and Wikipedia. That you attempt to dismiss those authoritative cites in favor of ambiguous google sources is preposterous. It demonstrates you are not open to being persuaded, no matter what the evidence shows.
* I’ve illustrated how contentious the subject of Extradition can be when applied to the United States and France. The infamous and ongoing case of Roman Polanski was used as an example.

* If you are going to dismiss my supported points, please make a counter-argument supported by authoritative cites of your own. Otherwise, you are just making $h!t up.
* Please demonstrate to me, and the other interested readers on Rant’s blog, how a relatively insignificant Judge in Nanterre France is empowered to unilaterally issue an “International Arrest Warrant” against Floyd and Arnie.
* I’ll give you a hint. He can’t and he hasn’t.
* The PR campaign he has waged (likely publicity seeking and an attempt at self promotion) against the two has been mis-reported as an “International Arrest Warrant” by lazy media types, and has regurgitated by their fellow lazy colleagues.
* Prove me wrong.

Previous post:

Next post: