Starting Tuesday, a case that may have a major impact on how doping cases are adjudicated (at least in Europe, and perhaps beyond) will begin in Liege, Belgium. It is, perhaps, the first time that an athlete has sued in a civil court over the right of the World Anti-Doping Agency and a sport’s governing body over how anti-doping testing can be conducted.
The athlete involved is Andrei Kaschechkin, a team-mate of Alexander Vinokourov. Vinokourov tested positive for homologous blood doping during the 2007 Tour de France, which led to their team being forced to withdraw from the race. Kashechkin also tested positive for homologous blood doping, but in his case it was while on holiday in Turkey at the beginning of August. After a B sample test confirmed the original results, Kashechkin was fired by the Astana cycling team, in accordance with the UCI’s ProTour “ethics” policy.
As the Associated Press (thanks to reader Luc for pointing this story out) reports:
Kashechkin and his lawyers contend the tests are illegally stacked against athletes and that federations have no right to impose heavy sanctions that damage a competitor’s career.
“This is not a battle for or against doping because we all are against doping,” Kashechkin’s lawyer, Christian Botteman, said Friday. “It a battle against the system which does not respect the fundamental rights of individuals.”
The case opens Tuesday in Liege and comes a week before a WADA conference in Spain that will approve new rules on drug-testing and sanctions.
The outcome of the case may not be known for quite some time, but the AP reports that the court in Liege could issue a preliminary injunction that would allow Kashechkin to resume racing pending the outcome of his case.
As has become apparent over the last year, the way anti-doping cases are adjudicated is heavily weighted against the athlete and in favor of the anti-doping agencies. Athletes are unable to question the validity of the science behind the tests (and some of what passes for science is actually questionable), and they are denied access to the full documentation about their test results. An athlete’s defense is limited to only what information the anti-doping lab or the anti-doping agencies are willing to give the athlete.
In the Floyd Landis case, among the items denied to the defense was any documentation (assuming there is any) of exactly what the standard operating procedures at France’s anti-doping lab were in connection with testosterone testing, as well as any documentation on what criteria are used to declare a sample positive for the use of synthetic testosterone. By denying access to such information, the defense was limited in their ability to determine whether or not the lab followed their own procedures during the testing, and whether or not the data reported actually met the lab’s own criteria for a positive result.
Kashechkin, too, will be similarly limited in the information he has (or will) receive about his test results and similarly limited in his ability to challenge those results. The tests for homologous blood doping are not as clear-cut as WADA would like us to believe, and the possibility of a wrong result being reported is quite real. Whether or not that’s the case with Kashechkin is hard to know. He hasn’t followed in Floyd Landis’ footsteps as far as putting his test results out for the public to see, so we’re not able to look at the data and determine for ourselves what it means.
He is, however, following in Landis’ footsteps by pointing out a flaw in the system. While it is necessary to test athletes, and even test them out of competition, there are enough aspects of the anti-doping system that are flawed so as to give one pause. What’s occurring now, with Kashechkin challenging the legality of the UCI and WADA’s out-of-competition testing program is a natural outgrowth of an anti-doping system that is so heavily stacked against an accused athlete that it is the rare exception when he or she is actually exonerated.
Kashechkin’s lawyer is expected to point out the many difficulties an accused athlete faces, as the AP also notes:
Botteman will also raise the point of the difficulties riders face when they seek to carry out private tests to compare them with those conducted by their sports federation.
Another recent example of an athlete facing such a problem would be Martina Hingis, who had an alternative form of drug testing performed when she was notified she’d tested positive for cocaine use at Wimbledon. Even though her private test shows the opposite result as the official tests, she decided to abandon any effort to fight city hall. Instead she chose to quite tennis entirely.
The cycling powers that be recognize that Kashechkin’s challenge could change the landscape of the anti-doping fight should he actually prevail.
“If Kashechkin wins on the principle that only public authorities can take care of doping, then we can close shop,” IPCT [association of professional cycling teams] lawyer Jean-Louis Dupont said.
Given how little information is available about Andrei Kashechkin’s test results, it’s hard to know whether he’s an innocent athlete fighting a corrupt system or whether he’s a doper trying to beat a doping rap. If he wins on Tuesday, it will definitely be a setback for the current anti-doping regime. Regardless of Kashechkin’s guilt or innocence, that could actually be a good thing for the long term — if the results are changes that will establish some real checks and balances. The current anti-doping system is in need of reform, perhaps Kashechkin’s case will help spur things along.
Sometimes Politicians Can Do The Right Thing
It’s a long way from introducing a bill in Congress to actually seeing that bill signed in to law. Senator Russ Feingold (D-WI) and several co-sponsors are introducing legislation that would make clauses in contracts requiring arbitration to solve disputes unenforceable. While it’s too late for Floyd Landis, it’s not too late for those who may have the misfortune to get caught up in the anti-doping system in the future.
Over at Trust But Verify, Bill Hue published an article about Feingold’s proposed legislation. Take the time to read the full article. And when you’re done, take the time to write your representative or senator in support of the bill. While the impetus for Feingold’s measure has to do with how heavily stacked the arbitration system is for consumers involved in disputes with credit card companies, the net result (should the bill pass) would be to nullify the requirement in general. And that means anyone taking out a racing license will not be forced into using the arbitration process should he or she become entangled in a doping case.
If enough people speak out in support of Senator Feingold’s bill, it may influence enough of our elected officials that it will one day become law. And that will be a benefit to everyone.
Kashechkin’s case leaves me in 2 minds. No doubt the current anti-doping system needs reform, but denying the right to conduct tests would, as pointed out, means for all practical intents, there would be no anti- doping system. In my mind, what needs to change is not the idea of collecting samples and testing, but stricter standards for how samples are handled, how tests are conducted, how results are determined, how all this is documented, complete access for any accused athlete to all records related to his case, and the right for any athlete to mount any defense, including attacking the science behind a test, and the ability to call anyone as a witness for the defense.
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I sent the letter to both mt senator and representative.
Rant in your byline you quote – “Kashechkin and his lawyers contend the tests are illegally stacked against athletes and that federations have no right to impose heavy sanctions that damage a competitor’s career.” In this statement there are two issues.
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One is the issue of unfair practices that WADA has turned into their version of the rules. I believe we can fight against this.
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But number two – “that federations have no right to impose heavy sanctions that damage a competitor’s career.” I believe there has been other cases here in Europe concerning the “right” of a governing body – it is “accepted” that the governing bodies have the right. Otherwise there would be no point in them being there.
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Perhaps this is a bit “techy” – but I am concerned that we do not “take on” and mix other cases with FL’s – After over a year – I feel like we actually are discussing substance when we discuss – the Floyd Landis Case – I am concerned that we “give support” to anyone who is now accused.
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I am not implying the Kashechkin and Hingis are “anything.” Guilty or not – I just don’t feel like I know their cases like I do Floyd’s – Sadly – we won’t know anything about the Kashechkin case until it starts unfolding – As to Ms. Hingis – unless she decides to “fight” we shall never know.
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So it is not that I am against pointing out that there may be other “cases” that are happening now – but I think I would rather be cautious with alighning myself with any other – since – the general public is just looking for us to “stub” our toes and point out that we are “wrong” – I know we are not wrong aout Floyd – that is it.
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Rant – do you see where I’m getting at?
William,
I agree that denying the right to conduct tests would pretty much kill off the anti-doping system. I don’t think that would be a good idea. But as you point out, it’s not the collecting of the samples that needs the biggest fix, it’s what happens afterwards in the testing, how results are documented and determined, and so forth that needs to be changed.
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I also wrote to my senators and representative. I think the senators will listen (Feingold and Kohl).
Morgan,
I do see what you’re getting at.
On the Kashechkin lawsuit: to be honest, I don’t take it seriously, at least not yet. Putting aside the difficult legal issues, which I have not examined, Kashechkin is bringing the suit in a Belgian court; the court’s jurisdiction does not extend outside of Belgium. At most, the case could have a direct impact on races in Belgium, and on riders who can claim they’re entitled to the protection of Belgian law. I don’t pretend to understand the law of the EU, but if Kashechkin really wanted to make a splash, couldn’t he have gone to a EU court? OK, maybe if Kashechkin wins in Belgium, then someone else will win in Holland, and we’ll see some kind of trend. Maybe THEN I’ll take this seriously.
The Feingold-Kohl bill is a lot more interesting, especially since I live in the U.S. and not in Belgium. But I will bet a dinner complete with a $50 bottle of wine that this bill will have no effect on cycling. I’ll get to my reasons for offering up this bet later on.
For the moment, I’m NOT signing this letter – I have not made up my mind that this is a good bill. This bill goes way, way beyond the FL case: it would make it impossible to arbitrate employment, consumer, franchise, or civil rights disputes. That’s a huge number of disputes, and this would be a radical change to our system of justice. The change may be a good change or a bad change (in all likelihood, it would be a mixed bag), but the sweeping nature of the proposed change should be enough to make any cautious person hesitate before signing on (count me in the camp of the cautious people).
It’s also not clear whether this law would have any impact on ADA drug testing. Judge Hue seems to think that ADA arbitration is an “employment” dispute; I’m not so sure. Take the FL case as an example: the case was not a dispute between FL and his employer (the Phonak team). It was a dispute over the terms of FL’s license to ride as a professional cyclist, which I think is actually a combination of two licenses, one from USA Cycling and one from UCI. FL’s relation to these organizations is not an employee-employer relationship.
Also want to acknowledge the good point made by Ranthead wschart over on TBV. If the Feingold-Kohl bill passes, and it DOES affect the ability of USADA to arbitrate doping disputes, this could result in U.S. riders being unable to participate in international cycling races. It might make U.S. athletes ineligible to compete in international competitions, even the Olympics …
… and you can see where this is going to go, can’t you? If the bill has any prospects of passing, then USADA will go to Congress and get itself exempted from the bill. THAT exemption would be supported by just about everyone in Washington D.C. — could you imagine what would happen to Feingold’s political career (not to mention the political careers of anyone else who voted for the bill) if the result of the bill was to bar U.S. participation in the Olympic Games? Whatever pressure may exist in Washington to do something about binding arbitration, that pressure has nothing to do with ADA drug testing.
“…it’s hard to know whether he’s an innocent athlete fighting a corrupt system or whether he’s a doper trying to beat a doping rap”
Several years ago I read a book explaining how the U.S. courts have adjudicated cases with regard to the Bill of Rights. The authors commented that the persons on trial were usually “unsavory” (my word, not theirs) and the question at hand was not about their guilt or innocence, but on how the courts determined the rights of all citizens as defined by the law.
I will state up front that I believe we are all in agreement with regards to stopping doping in sports. However, I submit that with respect to our collective apprehensions regarding the current anti-doping situation, that it is actually less important whether any one individual is innocent or guilty and more important that the system be as fair as possible to all parties.
I believe the is an adage that goes something along the lines of “better a dozen guilty go free than one innocent by jailed.”
Larry:
Will this law eliminate totally the abiility to go to arbitration, or simply eliminate the concept of forced arbitration? In other words, if I have a dispute with my employer, or credit card or whatever, would I still be able to go to arbitration if I wanted to, or choose to go to court instead, if I wanted to go that route? Big difference between “You can’t go to arbitration in any circumstance” and “You can either choose arbitration or go to court, as you see best for your particular circumstance”.
William, I haven’t read the bill. But it’s hard for me to imagine that the bill would give you the choice of going to court or going to arbitration, and that your employer (or credit card company) would have to agree in advance to live with whatever choice you made at the time. I think, instead, that the covered contracts would not be permitted to contain mandatory arbitration provisions (and that existing mandatory arbitration provisions would be unenforceable). So my guess is, you and your employer (or credit card company) would need to resolve the dispute in court, UNLESS you both agreed after the dispute arose that you both wanted to resolve the case in arbitration.
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Good question, by the way!
William and Larry,
I think the intention is that people should not be required to agree one way or the other to arbitration before a dispute arises, but that when such a dispute occurs it will be an option available, just as going into a regular court would be an option that would then be available, too.
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I’ve been following the stories about credit card arbitration being heavily stacked in favor of the credit card companies. While I see Larry’s point about the unintended consequences of making these types of forced arbitration clauses unenforceable, I also see a benefit to consumers and others to have the right to choose arbitration or court, depending on which system might better address their grievances.
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The credit card companies win up to 99 percent of their arbitration cases (depending on which state the arbitration occurs in), much like USADA’s current 100 percent record. That tells me the system is too heavily biased to one side right now, and if I were a consumer with a grievance against my credit card company, I would want at least even odds on winning my case. Somehow, I think going into court might be a fairer fight in that regard.
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I can also see Larry’s point about what might happen to American athletes should such a law go into effect. My understanding is that arbitration would still be an open route, even for USADA cases, but that the courts would, too. Interestingly, WADA actually wants doping offenses criminalized and some countries have already done so. I’m not sure I’d want athletes to face jail time for doping (trafficking, perhaps, but not doping), but in those countries accused athletes will (theoretically) have the same types of legal rights and protections as those facing other criminal prosecutions.
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Were it the same here, I wonder if the Landis case and others would have come out differently.
Hi Rant, Thanks for writing about this. I’ve really been surprised at how little coverage this story has had. Could it be that the press are judging this as a really frivolous case with no chance of succeeding? This case, as i see it, has major implications for future athletes. This is not just one athlete trying to get off but one athlete trying to change the system that is unfair for all athletes. You also pointed out 2 scenarios regarding his guilt or innocence. I see a third. Maybe he is guilty but does not feel that the crime merits the punishment ie livelihood.
William, I agree with you, even K and his lawyer are not against the drug testing but it has to be done in such a way that the tests can be trusted and the system and labs can be trusted.
Morgan, I can see what you are trying to say but i think that cases such Marion Jones, Hingis, Kasheckin, Jello, all serve to illustrate the point that we have been making ever since Rant started posting – that the system does need some reworking otherwise the innocents like FL get caught in the quagmire. And sometimes the guilty don’t get caught.
Whether we like it or not — we are going to have to accept that the “problems” we are trying to bring to light are not going to be “solved” overnight or with winning a particular case or cases, it will not happen this way. It will take time and patience.
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Let us not forget that part of the present situation came about because to put it bluntly — some of these antics that are going on is simply due to our own apathy and lack of response when the governing bodies were formed. As I see it — an awful lot of it falls under the saying — “the fox is left guarding the hen house.”
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I do not wish to make this same mistake now — by allowing my own impatience to sabotage it on this second round. I cannot say this often enough — THANKS TO FLOYD, we finally have a chance to see the “workings” of WADA, the UCI and to some extant we can see some of the power players in the background.
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The “governing bodies” in cycling must be made to change the rules or laws to comply with a “fair system”. Fairness in law and rules is not just an American concept, The rules and bylaws of actions and governance can be made “fair” — we just have to the pressure up to change it.
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The word “doping” in sports brings about pretty much the same reaction on the European continent as it does in America. No body wants it to be a “part of sport.” I believe that most of the German governmental bodies responses to this past summers fiasco at the Tour is due to their belief that the “system” is broke and they want to at least do something that works in their borders.
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Okay — this may be a bit simplified. But the important thing is to realize that “they are seeing it as broke” — with this we can work with. I am not for every team having their own “testing” done — I support it only as a temporary measure. Call me calloused but I can imagine when such testing will be turned away from keeping everybody “clean” to something that up to now has been done out of the light.
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Team testing will degenerate into another mess — because when such testing is going to be pulled into question — then it will easily turn into a “nationalistic” catfight. Unless we establish rock solid testing and unquestionable procedures — we have not a chance.
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One thing I have not heard mentioned yet — CONFLICT OF INTEREST — I put forth the term in the legal sense. For instance — how much sense does it make that the UCI is the one who is the controlling body as far as any testing goes? It is pretty apparent that they are “promoters” and behave like it.
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What about conflict of interest as to individuals who are serving on ruling bodies? This will be a tough one since in cycling there is an incestuous relationship going on all the time — old racers become old general managers or what not. Does no one else find it questionable that a person who has been involved in a “broken system” for a large part of his/her life will have certain biases? Let us not forget — you get a second or third rate athlete, who is frustrated because his talent does not bring him to the top of the heap — such a person will become an avid believer that the reason they never were number one is because “everybody” else was doping. This is much easier to accept then — well, I was not good enough.
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Luc — I do not disagree with you. I do think though that K will run into problems with “questioning” the legality issue of the governing bodies — to now — every time something like this has come up — the courts upheld for the bodies right to govern — of course — since the “ethics” of the rules issue was missing — but as presented in Velonews — I think that they had better restate their case intentions. That is all.
“If Kashechkin wins on the principle that only public authorities can take care of doping, then we can close shop,” IPCT [association of professional cycling teams] lawyer Jean-Louis Dupont said.
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That statement is spin. Note how the statement is cloaked in lawyer speak – the first part of the statement assumes an argument that Kashechkin is not making. It basically admits as much by starting the sentence with “If.” So please, let’s not give Mr. DuPont anymore credibility than he deserves.
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I do not believe that Kashechkin is arguing that the UCI cannot test athletes. He is claiming that their methods are unfair and are in violation of the EU statues regarding basic human rights. It is an argument that is not without merit (although I am loathe to allow a government to control the private sector in the way that he is seeking)
Michael – where can we find these EU Statutes?
Michael, this from Velo News:
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“Misson will argue in a Belgian court on Tuesday that sports bodies such as the UCI and the World Anti-Doping Agency (WADA) have no legal right to submit athletes to doping tests.”
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It SOUNDS like Kashechkin IS arguing that UCI cannot test athletes.
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Also from the VeloNews article, it sounds like Kashechkin is hoping to lose in Belgian court and appeal the case all the way to the European Court for Human Rights. And THAT would be a significant case.
Based upon a news article in cyclingnews (http://www.cyclingnews.com/news.php?id=news/2007/oct07/oct26news3) his lawyers are arguing that the out-of-competition testing requirements violate Article 8 of the Universal Declaration on Human Rights (http://www.un.org/Overview/rights.html). This was adopted by the EU.
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Article 8 states: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
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His argument may have some traction, but I don’t really see it. My guess is that there is more to his argument than is found in the sound bites. I think that it is clear that the out of competition tests are invasive and have a real stink of Big Brother, but I don’t know if that makes them illegal in the EU.
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I think it is important to remember that this is a valid concern that he raises. Even if it sounds like he is disparately trying to avoid a AAF. When does the testing become invasive (perhaps when they start testing for things that are not strictly proven to be performance enhancing? Like low doses of testosterone, or baldness medication, or allergy medication).
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Of course there is a good chance that I have interpreted the whole thing incorrectly.
Is the current drug testing program invasive? I guess it would depend on what one considers invasive. My understanding of the terms tends to be along the line of how samples are collected. A test, like Hingis apparently had done, involving clipping a small sample of hair is minorly invasive. Having someone pee in a cup while being watched ups the ante a bit, and drawing a blood sample via veinapuncture (sp?) is even more invasive. But you raise an interesting question, Michael: is the nature of what is being tested for a factor in determining invasiveness? This sounds like a legal question to me, and since this is a European case, we need an expert in European law.
William, I’m not an expert in Eurolaw. But from what I’ve read, it sounds like the lawyers are distinguishing between in-competition and out-of-competition tests. And that makes some sense. It’s one thing to have someone looking over your shoulder while you pee into a cup after a race. It’s another thing to have someone doing that in your home, at 10:30 at night, without advance warning, when you haven’t raced for months. Obviously, the latter scenario is much more invasive.
Larry,
My posts seem to be stalling before posting. . . So some of my responses may be a little untimely.
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You are correct. I seem to have misunderstood. I thought the contention was that the out of competition testing was invasive and illegal (correct word?). I think that argument could be made (although I don’t think that’s where the system breaks down). I would think that an in competition test would be a harder thing to argue against. It will be interesting to hear how this has become a human rights issue.
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(http://www.usatoday.com/sports/cycling/2007-11-02-1542709575_x.htm) If you read the AP release it has a slightly different spin on the story.
Well, if this ends up that OoC testing is banned (at least in Europe), that would have less impact than if all testing were banned. OoC testing is presumably intended to eliminate athletes who use substances during training, stopping long enough before actual competition for the substance to clear. Steroids would be a common one here, although I doubt that would be of much use to a road cyclist (sprinters maybe). But I suppose one could use EPO or blood dope during training, be able to train harder/longer, and thus get in better shape and have this carry over after discontinuing the doping. Of course, UCI/WADA could wait until riders went out of Europe and then nail them with OoC testing.