Dear Readers
This week, because of all the legal questions raised by the racing news, we’ll be taking a look at a legal issue I haven’t covered before—the anti-doping code in professional cycling.

The Anti-Doping Code has its origins in the Olympic movement; as a result of the International Olympic Committee’s concern about doping in sports, the World Anti-Doping Agency (“WADA”) was created, followed by the World Anti-Doping Code. The International Cycling Union (“UCI”) adopted the World Anti-Doping Code in July of 2004. Let’s take a look at how the system works.

The UCI Anti-Doping Rules
he UCI Cycling Regulations apply to all cycling races. In order to race, a cyclist must hold a license issued by the National Federation of the country of his main residence; cyclists are brought into the anti-doping regime through the Anti-Doping Rules, which specify that they apply to all license-holders. The rules define doping, incorporate WADA’s prohibited list, prohibit doping, and provide for a system of testing for prohibited substances and methods, hearings for violations, and sanctions for violations.

Now let’s see how the system works, using the Tour de France as an example. At each stage, the winner of the stage, along with certain other riders, is tested. The UCI Anti-Doping Rules specify protocols for taking samples, transport of samples, and testing of the samples. The goal is to establish a chain of custody so that the samples are always accounted for, thus preventing sample tampering.

After the samples are collected, they are identified as the “A” Sample and the “B” Sample. The A Samples are then tested for evidence of prohibited substances or methods. If an A Sample tests negative, the process is over. However, if the A Sample tests positive, the UCI’s Anti-Doping Commission notifies the rider’s National Federation, the rider’s National Anti-Doping Organization, and WADA. In addition, the Anti-Doping Commission may send a copy of the notification to the rider and or the rider’s team. The rider, the rider’s National Federation, and the Anti-Doping Commission are all entitled to demand analysis of the B Sample. If the B Sample is negative, the entire test shall be considered negative. If, on the other hand, the B Sample tests positive, or if no request to test the B Sample is made, the findings shall be reported to the rider, his National Federation, his National Anti-Doping Organization, and to WADA. The rider’s team may also be notified.

At this stage in the proceedings, when a B Sample has tested positive, the rider has not yet been proven to have violated the anti-doping rules; rather, the Anti-Doping Commission is alleging that the anti-doping rules have been violated. A violation of the Anti-Doping Rules is governed by the Strict Liability Rule, which does not require fault on the part of the rider to be proven; the presence of a prohibited substance is enough to establish a violation of the Anti-Doping Rules. On the basis of that allegation of a Rules violation, the Anti-Doping Commission must then notify the rider’s National Federation and request it to begin a disciplinary hearing. In Floyd Landis’ case, USA Cycling has referred the case to the U.S. Anti-Doping Agency for adjudication, because the U.S. Anti-Doping Agency is the organization responsible for Anti-Doping disciplinary hearings in the United States.

The rider has a right to be heard, and the hearing body must be fair and impartial. The UCI is entitled to give its opinion, and to demand that a sanction be imposed. The UCI Anti-Doping Rules provide that

The UCI and its National Federations shall have the burden of proving that an anti-doping rule violation has occurred. The standard of proof shall be whether the UCI or its National Federation has established an anti-doping rule violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Anti-Doping Rules place the burden of proof upon the Rider or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability.

If the case is proved against the rider, the hearing body must make a written summary of the hearing which indicates the sanction imposed, as determined by the Anti-Doping Rules, and which is based on the Rule violated and the number of prior offenses.

There is a right of appeal, to the Court of Arbitration for Sport (“CAS”), which is based in Lausanne, Switzerland. The parties which have a right of appeal are the rider, the other party in the case, the UCI, and WADA. The UCI Rules specify that the dispute shall be decided according to the Anti-Doping Rules and the rules of law chosen by the parties, or, in the absence of such a choice, according to Swiss law. Finally, the Anti-Doping Rules specify that “the decision of the CAS shall be final and binding on all parties to the case, and to all license-holders and National Federations. It shall not be subject to appeal.”

So those are the basics of how the process works; now let’s take a closer look at due process in an Anti-Doping Rules case.

Due Process
One interesting aspect of the process is the burden and standards of proof that are characteristic of an anti-doping hearing. In the United States, and in many other countries around the world, the accused in criminal trials are presumed innocent until proven guilty in a court of law. This presumption means that the prosecution bears the full burden for proving the guilt of the accused. In fact, the accused is not even required to present a defense, because it is up to the prosecution to prove its case. That said, it’s probably usually a good idea to mount a defense. Nevertheless, under the presumption of innocence, the State is the only party that is required to prove its case. Although the presumption of innocence is not explicitly written into the United States Constitution, it can be inferred from the 5th, 6th, and 14th Amendments, which establish the legal rights of the accused.

In addition to the presumption of innocence, in criminal cases the standard of proof is usually “beyond a reasonable doubt,” which means that there is no alternative proposition to guilt which could reasonably be entertained by those hearing the case.

In contrast, in civil cases, the plaintiff must still prove its case against the defendant, as in criminal cases. The standard of proof is lower, however—a “preponderance of the evidence, which means “more likely than not”—a 51 percent or greater probability. This is an easier standard of proof than “beyond a reasonable doubt.” However, in some civil cases, the standard for burden of proof occupies an intermediate position between “beyond a reasonable doubt and “A preponderance of the evidence.” This intermediate standard is one of “clear and convincing evidence.”

Now let’s contrast that with the burden of proof in a UCI Anti-Doping violation hearing. In a hearing, although it’s not explicitly stated in the Anti-Doping Rules, it can be inferred that the accused is innocent until proven in violation. This inference can be drawn because the National Federation has the burden of proving a violation of the Rules. When a B Sample tests positive, the UCI asks the National Federation to convene a hearing, at which the UCI asserts that the rider is in violation of the Rules. Based on this process, it is implied that the rider is innocent of any violation until the case against the rider is proved. However, this is where the process departs from what we’re usually familiar with.

In an anti-doping hearing, the burden of proof is on the UCI and the National Federation to establish that an anti-doping violation has occurred. Typically, this would be done through the introduction of the laboratory analysis of the A and B Samples. The standard of proof that is necessary to convince the hearing body is “to the comfortable satisfaction,” and is described as “greater than a mere balance of probability”—the preponderance of evidence standard we use in civil cases—but less than “beyond a reasonable doubt.” WADA notes that this standard is comparable to the standard used in professional misconduct cases in most countries, which indicates that the “to the comfortable satisfaction of” standard is probably equivalent to the “clear and convincing evidence” standard we use in professional misconduct cases in this country.

In contrast, where the athlete has the burden of rebutting a presumption or establishing facts—for instance, rebutting the presumption that the presence of endogenous substances “so deviates from the range of values normally found in humans that it is unlikely to be consistent with normal endogenous production”—the standard of proof required is the easier “balance of probability” standard.

And this is where defense against an allegation of an Anti-Doping Rules violation begins to get complex. For example, let’s go back to that presence of endogenous substances. At a high enough ratio, an endogenous substance like testosterone is presumed to be exogenous. In order to rebut this presumption, the rider must prove that the prohibited substance is attributable to a physiological or pathological condition. However, if “based on any reliable analytical method (e.g. IRMS), the laboratory can show that the prohibited substance is of exogenous origin” the Sample will be deemed to contain a prohibited substance. The rider must then rebut the presumption that the sample analysis and custodial procedures were conducted in accordance with WADA’s International Standard for Laboratory Analysis. If the rider rebuts this presumption, the UCI or the National Federation then have the burden to establish that the proven departure from the International Standard did not cause the adverse analytical finding. And so on. Eventually, after the evidence has been heard, the U.S Anti-Doping Agency makes a decision, which brings us to…

Appeals
If the decision of the U.S. Anti-Doping Agency is appealed—and it is extremely likely that it will be appealed, regardless of the decision—the appeal will be heard by the Court of Arbitration for Sport, as required by the UCI Rules, and will be decided according to the Anti-Doping Rules and the rules of law chosen by the parties, or, in the absence of such a choice, according to Swiss law. Interestingly, the UCI Rules stipulate that there will be no further appeal, while the CAS Rules also allege to allow no further appeal. However, the CAS Rules do allow parties that have a “domicile, habitual residence, or business establishment in Switzerland” to appeal decisions of the CAS to the Swiss courts if they have not expressly excluded further appeal. That clause probably reflects Swiss jurisprudence requirements, and sets up an interesting tension between the rights of Swiss appellants and the rights of foreign appellants. Under Swiss law, arbitral awards may not be set aside except for certain reasons, including:The arbitral tribunal was not properly constituted.There was a breach of one of the mandatory procedural rules.The award is arbitrary in that it was based on findings which were manifestly contrary to the facts appearing on the file, or in that it constitutes a clear violation of law or equity.Does the clause allowing further appeal for Swiss appellants mean that Swiss appellants have more rights than other appellants? Or will other courts hear appeals of CAS decisions, regardless of the clause barring further appeal? European Union courts have shown a willingness to hear appeals of CAS decisions. U.S. Courts have not shown a similar willingness to intervene. In Barnes v. IAAF, a District Court in West Virginia declined to hear the case because shot-putter Eric Barnes had not exhausted all of his administrative remedies—meaning he had gone to court without first exhausting his options under the U.S. Olympic Committee. In the second decision, Slaney v. IAAF, the Seventh Circuit Court of Appeals upheld a lower court ruling against runner Mary Decker Slaney in which the court declined to intervene in a foreign arbitral award. Nevertheless, the availability of further appeal to Swiss appellants may open the door to equal treatment for other appellants in their court systems.

Uh, have I mentioned that the UCI is based in Switzerland? No? Well, now you know. Of course, a UCI appeal of a CAS decision would be a violation of UCI Anti-Doping Rules. And that brings us to…

Problems with the UCI Anti-Doping Process
In the furor over the revelation of the presence of testosterone in Floyd Landis’ A and B Samples, problems with the current system of Anti-Doping have largely escaped notice—well, Landis and his attorney have noticed, but everybody else seems to have their eyes glued on that B Sample, so let’s take a look at some violations of the Anti-Doping Rules that haven’t been talked about so much.

One problem is the procedure followed by the UCI in disclosing the results of Landis’ A Sample test. Actually, it would probably be more accurate to refer to the UCI actions as “lack of procedure,” a fact that Landis’ attorney, Howard Jacobs, has noticed. Under the UCI Anti-Doping Rules, the UCI is supposed to follow certain procedures when the A Sample reveals a possible Anti-Doping Rules violation.

For review, here’s how it’s supposed to work: Once the A Sample tests positive, the UCI’s Anti-Doping Commission notifies the rider’s National Federation, the rider’s National Anti-Doping Organization, and WADA. In addition, the Anti-Doping Commission may send a copy of the notification to the rider and or the rider’s team. The rider, the rider’s National Federation, and the Anti-Doping Commission are all entitled to demand analysis of the B Sample. If the B Sample is negative, the entire test shall be considered negative. If, on the other hand, the B Sample tests positive, or if no request to test the B Sample is made, the findings shall be reported to the rider, his National Federation, his National Anti-Doping Organization, and to WADA. The rider’s team may also be notified.

Under UCI Rules, “public disclosure shall be made by the Anti-Doping Commission or the National Federation” after the B Sample tests positive. Furthermore, UCI Rules require that

License-Holders who are asserted to have committed a violation of these Anti-Doping Rules shall in principle not be publicly identified until it has been determined [at a hearing] that an anti-doping violation has occurred. However, the Anti-Doping Commission and the National Federation of the License-Holder who is asserted to have committed a violation of these Anti-Doping rules may make public statements and identifications they deem appropriate under the circumstances, but not earlier than sending the notification [requesting a disciplinary hearing].

Okay, that’s what’s supposed to happen. Now here’s what actually happened: The UCI announced that an unidentified rider tested positive in the A Sample, before the B Sample had been tested. It’s unclear from the news reports if the announcement came through proper channels—the Anti-Doping Commission—or if it came through improper channels, from “higher up.” However, it is clear that regardless of who made the announcement, it was made in clear violation of the requirement to announce after the B Sample had been tested. Additionally, the UCI announced that Landis’ A Sample tested positive for an exogenous source, again before the required B Sample test. Although the UCI Rules permit public statements and identifications statements deemed “appropriate under the circumstances,” the anonymous nature of the statements raises questions about why the statements were deemed “appropriate under the circumstances.”

Here’s another interesting thing: In commenting on the violation of the Public Disclosure Rules, UCI President Pat McQuaid observed that “We decided to make an announcement right away because we have been criticized in the past for not doing so—particularly in the case of an important rider.” Well, besides implying that he was involved in the decision to violate the UCI Rules (remember, under the Rules it’s the Anti-Doping Commission that is supposed to make the disclosure), that’s interesting for another reason: “Past criticism” of the UCI for following its own Rules led to an official decision to violate the Rules, which in turn violated Landis’ right to due process. It remains to be seen whether the UCI will sanction its own officials—as the Rules allow—for violating the UCI Anti-Doping Rules.

Furthermore, McQuaid offered a secondary rationale for violating the Rules: “Also, we know that the French laboratory has a close connection with L’Equipe, and we did not want this news to come through the press, because we are sure they would have leaked it.” That comment raises another set of violations of the UCI Anti-Doping Rules. Under UCI Rules, samples are supposed to be anonymous—the laboratory is not supposed to know which sample belongs to which rider. If the lab in question had any information that would allow it to identify the samples, that would be a clear violation of UCI Rules, and would present Landis with a golden defense opportunity. Additionally, as McQuaid observed, the French lab has a history of leaking sample results to L’Equipe; these leaks are in violation of the UCI Anti-Doping Rules and the WADA Laboratory Code of Ethics. From the standpoint of due process, one would ask why the UCI violated its own rules, given the history of this lab, rather than requesting that WADA sanction the lab for past violations of the Anti-Doping Rules, as required under the WADA International Standard for Laboratories.

Finally, these leaks reveal some problems inherent in the UCI Rules. First, the Laboratory Code of Ethics prohibits laboratories from discussing or commenting “to the media on individual results prior to the completion of any adjudication without consent of the organization that supplied the sample to the laboratory and the organization that is asserting the adverse analytical finding in adjudication.” While it would clearly be a violation of the Code of Ethics for the lab to comment on individual results, it would apparently not be a violation for the lab to leak news that “one of the riders” tested positive. Furthermore, the lab would not be in violation of the Code of Ethics if it commented on individual results before adjudication, if it had the consent of the race organizer—in this case, the parent company of L’Equipe—and the UCI.

Second, after the UCI announced that one of the riders had tested positive, but before the UCI announced that it was Landis, the media checked with each National Federation in a process of elimination to attempt to discover which rider had tested positive. Although UCI Rules prohibit the disclosure of testing results by UCI officials, there is nothing in the Rules that prohibit a National Federation from announcing that its own riders have not tested positive. Although USA Cycling also announced that it hadn’t been notified, the Rules as presently written are not strong enough to shield a rider from the media’s process of elimination if word of a violation does leak out. In the interests of a fair and impartial adjudication, the UCI should tighten up its Rules regarding disclosure.

Right after it starts following the Rules that are already in place.

Bob(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

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Now read the fine print:
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.