23.10.16

Doping in Cycling - Cases & Sponsorship Fallout

https://keyassets.timeincuk.net/inspirewp/live/wp-content/uploads/sites/2/2013/04/doping1_R-e1412932962962.jpg

Speculation about doping in cycling has been prominent for a number of years with more and more cyclists falling foul of anti-doping rules. The latest potential name on the hit-list is none other than Sir Bradley Wiggins, of Team GB, who just over a month ago was set to be the UK's most decorated Olympian at another successful games. However, a Russian-led hacking exercise into WADA's database has prompted questions about performance-enhancing drugs, that he may have been using, during his career.

The questions focus on TUEs that allow athletes to take prohibited substances, for valid reasons, usually supported through evidence from a doctor. The leaked information states that Wiggins obtained three TUEs for the treatment of asthma and allergies between 2011 and 2013 and which were taken prior to a significant race for that season. Further, there is also concern that Wiggins, in obtaining his TUEs, had enlisted the aid of disgraced doctor, Geert Leinders - who received a lifetime ban for doping offences committed in relation to the Rabobank cycling team (2001-2009). There is no suggestion, at this stage, that Wiggins has broken the rules but there is speculation as to whether the TUEs were obtained inappropriately and why the TUES or even his alleged conditions of asthma etc had not been revealed previously (in his latest autobiography, for example). Latest suggestions that he missed a whereabouts test, in May, only fuels the speculation.

What is whereabouts? 

The whereabouts system is ran by anti-doping organisations, such as UK Anti-Doping, and it requires athletes to submit details of their whereabouts so they can be located for testing, at any time and anywhere, without advanced notice.

Given the latest anti-doping speculations surround Team Sky and Sir Bradley Wiggins, I have taken a look back at some of the most recent doping cases arising from the UK and abroad and the general effect, that such scandals have, on sponsorship.


Glossary of governing bodies & organisations


Union Cycliste Internationale (UCI)

The UCI is the world governing body for cycling and is affiliated with the International Olympic Committee. Although founded in 1900, in Paris, they are based in Switzerland. The UCI has its own independent anti-doping panel.

British Cycling Federation aka British Cycling (BCF)

The BCF is the main national governing body for sport cycling in the UK. It was founded in 1959, based in Manchester, and is affiliated with the UCI. It is responsible for the selection of Team GB.

Cycling Time Trials (CTT)

CTT is the national governing body responsible for individual and team trials in England and Wales.

World Anti-Doping Agency (WADA)

The WADA is essentially a body that is responsible for the monitoring of drugs in sport. It implements and monitors the WADA Code, which is adopted by more than 600 sports organisations, and lists prohibited substances and the methods in which sportspersons are not allowed to take or use. Further, WADA also carries out scientific research, education and development of anti-doping initiatives and activities.

UK Anti-Doping (UKAD)

UKAD is the body responsible for the monitoring of anti-doping in the United Kingdom by rolling out anti-doping programmes and ensuring that all sports bodies, within the UK, comply with the WADA code.

United States Anti-Doping Agency (USADA)

USADA is the national anti-doping organisation in the US and controls anti-doping programmes for US Olympic, Paralympic, Pan-American and Parapan American sport.

The Cases 


Luca Paolini - Recreational use of drugs (out with competition)
http://keyassets.timeincuk.net/inspirewp/live/wp-content/uploads/sites/2/2015/03/WATSON_00004151-001.jpg

In 2015, during the Tour de France, the UCI collected a sample from Luca Paolini. The sample tested positive for the presence of a cocaine metabolite, Benzoyleconine. Cocaine is not a specified substance under the WADA code and it is only prohibited in-competition. Paolini was notified of the finding and provisionally suspended.

Paolini and the UCI failed to come to an agreement over the punishment arising from the violation. The case, therefore, proceeded to a tribunal, with a single judge, for determination on 04 March 2016 with a decision being published on 13 April 2016. Parties were able to agree that the anti-doping violation had occurred and that the prohibited substance was not used during any competition and had been recreational only. It was thus used in a "context unrelated to the competition." and not intentional.

Paolini pleaded that under Art. 10.4 of the UCI Anti-Doping Rules, the sanction he would receive should be reduced, from the usual two years ineligibility, as the violation was committed with no fault or negligence, on his part, or no significant fault or negligence, under Art. 10. 5 of the UCI Anti-Doping Rules. This was a position that was not supported by the UCI and parties could not come to an agreement. It was therefore a determination that had to be made by the judge

Paolini's position was that he could not reasonably have been aware of how long the cocaine would take to leave his system. He also suggested that it may have lingered unusually longer due to the fact that he had consumed alcohol both as a beverage and in medication form. Further, Paolini argued for the application by analogy of a comment to the definition of "No significant fault or negligence" that expressly applied to cannabinoids, since both substances are "recreational" drugs. 

The UCI argued against Paolini's position and stated that the sanction should not be reduced because Paolini had not exercised "utmost caution" which is also required for the application of that particular provision. The UCI cited cases from the Court of Arbitration for Sport, whereby the ingestion of cocaine had been held to carry no fault or negligence, but argued that those cases did not involve the intentional ingestion of the substance.

The judge rejected Paolini's arguments for the following reasons:-
  1. The exercise of "utmost caution" could not apply to an athlete who deliberately and intentionally ingests a substance.
  2. Whilst the judge accepted that the cocaine had been in Paolini's system unusually long and it was not a "normal" cocaine case, he did not go so far as to accept Paolini's explanation that alcohol had prolonged the duration.
  3. The judge did not give much weight to Paolini's explanation that the substance use had occurred  during a difficult time in his life. The Judge instead stated that Paolini had continually and deliberately ingested a substance that is prohibited in-competition.
As a result of the above, the Judge held that he could not find that the violation had been committed, despite utmost care and with no fault or negligence, as per Paolini's position.

However, the judge did accept that Paolini had committed the violation with no significant fault or negligence under Art. 10.5.2 of the UCI Anti-Doping Rules. An application of this provision hindered on whether a comment in relation to the definition of no significant fault or negligence, expressly relating to cannabinoids, could be applied by comparison to cases involving cocaine. A reduction of a sanction could be applied if the athlete could demonstrate that the context of the use was unrelated to sport performance. The judge used his discretion and held that the conduct of Paolini could clearly be "disassociated from the sporting sphere of the athlete." He also pointed out that his approach was precisely what WADA was trying to achieve with respect to violations involving cannabinoids in relation to the comment regarding no significant fault or negligence. Art.10.2.3 of the UCI Anti-Doping Rules, provides for discretion in determining whether a violation was unintentional in cases involving the recreational use of drugs that are banned in-competition only. Given that, the Judge held that Paolini was entitled to a reduction for reasons of no significant fault or negligence and the two year sanction was reduced to 18 months ineligibility.

Gabriel Evans - Pleading immaturity to reduce degree of fault

This case concerned an 18 year old amateur cyclist who tested positive, in August 2015, for erythropoietin (EPO) and fell under the jurisdiction of the BCF. During the investigation, Evans admitted to UKAD that he had both purchased and consumed EPO, which is a non-specified prohibited substance under s.2 of the WADA code which states that the use, attempted use and possession of a substance can constitute an anti-doping violation (Art. 2.2 and 2.6) . Evans did not hold a TUE, in respect of EPO and immediately consented to a voluntary provisional suspension in October 2015.

In determining the level of sanction, the panel gave consideration to a number of points including:-

1) Was this a first offence?
2) Was it a non-specified or specified substance?
3) Was the use intentional or unintentional?
4) Was the violation committed with no significant fault or negligence?

Given that the matter concerned a non-specified substance, the level of sanction would be 4 years unless Evans could show that the violation was not intentional. This, of course, would be unlikely given that Evans had admitted to not only consuming the substance but also purchasing it. The panel also considered that Evans could not state that the violation was committed with no significant fault or negligent, given the circumstances.

However, under Art. 10.6.3, Evans was eligible to receive a reduction in his sanction having made a prompt admission and any such reduction would be determined on (1) the seriousness of the violation and (2) the degree of fault.

It was accepted that Evans promptly admitted his guilt but with regards to the seriousness of the violation, UKAD took the view that possession and use of EPO charges are very serious violations and that Evans had intentionally sourced and used EPO with the specific intention to enhance his performance. However, in relation to the degree of fault, UKAD took into account Evan's experiences and gave special consideration to his immaturity, taking the view that his decision making skills were in part related to his age.

Given that, Evans sanction was reduced from 4 years to 3 years and 6 months.

Jason White - Refusing to provide a test sample

Jason White was a 42 year old cyclist, when in 2014, he refused to provide a sample to UKAD at the conclusion of a BCF competition that he had competed in. Around one month later, White took part in a recorded interview with UKAD and admitted that he refused to provide a sample, the previous month. White was issued with a Notice of Charge letter that confirmed a breach of Art. 2.3 - refusing or failing without compelling justification to submit to sample collection after notification of testing.

In determining the sanction for refusing to provide a sample, Art. 10.3 states:

"For an Anti-Doping Rule Violation under Article 2.3 (refusing or failing to submit to or otherwise evading sample collection [...] that is the Participant's first violation, a period of ineligibility of two years shall be imposed, unless the condition for eliminating or reducing the period of  ineligibility (as specified in Art. 10.5) or for increasing the period of ineligibility (as specified in Article 10.6) are met." 

Given that, White was sanctioned and banned from competitive cycling for a period of two years.

Robin Townsend - Pleading sabotage

Robin Townsend, a CTT licenced cyclist (and currently, the reigning 12-hour record holder) submitted a urine sample at the Burton & District Cycling Alliance 100 miles event, in 2015. Townsend had finished ninth with a time of 03:40:23. The sample tested positive for modafinil which is a non-specified stimulant under s.6a of the WADA code and is prohibited only in-competition.

Townsend accepted the results but denied ingesting the prohibited substance intentionally, stating that its presence was the result of fault or negligence on his part. He argued that his drink had been spiked intentionally by one of his competitors and claimed that he was in fear of this particular man. Townsend advised UKAD that he had been involved in a dispute with this man over a long period of time and that his partner was also involved. Certain actions, carried out by the man, including threatening behaviour, had previously been reported to the CTT.

Townsend claimed that on the day of the race, he had left his bike unattended for what he considers was no more than 20 minutes, to register for the race. He considered that it must have been during that period that the man switched his water bottle with a 'dirty' bottle, containing a drink similar to his own, in appearance, but spiked with the substance.

Townsend pleaded with the hearing that he had no reason to dope and 'everything to lose'. He was only participating in the race for the benefit of his team and had no requirement to record a fast time as he had been crowned national champion, in the weeks prior.

UKAD advised that whilst they accepted that Townsend had been involved in a dispute with this man, they did not accept that the 'spiking' explanation was sufficient to prove his case. In reaching that conclusion, they relied on evidence from Professor Cowan, who advised the hearing that modafinil was difficult, but not impossible, to dissolve in a drink. What was very convincing, in my opinion, was the evidence led by Professor Cowan, that modafinil is usually reported to have a bitter taste, which was not described at any point, by Townsend, whilst giving his evidence.

Townsend received a ban of four years for the offence.

UPDATE:

On 25 October 2016, UKAD confirmed that Robin Townsend had tested positive for blood booster EPO (following information handed to them by an unknown source), and had been handed a second ban after the finding. He will serve his two four-year bans concurrently from October 8 2015 to midnight on October 7 2019.

UKAD released the following statement:

"The receipt and use of information and intelligence is critical to delivering an effective anti-doping programme ... In the case of Robin Townsend, we received intelligence, which we assessed and acted upon by undertaking additional analysis of the original sample. This has resulted in further adverse analytical finding ... We encourage anyone with information about doping to come forward and speak to us. No matter how small the piece of information is, you can help shape what we do by talking to us in confidence"

Andrew Hastings - Indirect Contamination 

The findings in the Hastings case came as a result of an in-competition test at the 2015 Team Time Trial National Championships on 30 May 2015. Hastings competed for Richardsons-Trek RT who finished second, in the race. The event was governed by CTT.

Following a test, Hastings tested positive for two anabolic steroids - metenolone and a metabolite of stanozolol. Hastings argued that his use had not been intentional, he had been injecting himself with Vitamin-B12, at a gym that he was a member of and had a great relationship with the gym owner. On February 17, he had been feeling tired and run down following a training camp and decided to administer a Vitamin B-12 injection. Hastings bought the vitamin from an online pharmacy and syringes from eBay. He had run out of syringes on February 17 and reported this to the gym owner, along with other persons, present at the time. One such person volunteered a syringe that had been used. Hastings visually examined the syringe and although he could see it was used, he advised that he could see no trace of blood and concluded, therefore, that it had not been used intravenously. Despite the person being a stranger, Hastings concluded that he could trust the person based on their relationship with the gym owner. According to Hastings, it did not occur to him that the syringe could be contaminated with prohibited substances, even though steroids are often not adminstered intravenously.

Given that, Hastings sought a reduction in his sanction as although he accepted fault for using a contaminated syringe, there was no intent on his part to take performance enhancing substances, he had only intended to use Vitamin B-12.

UKAD instructed an expert witness to investigate any weight in Hasting's argument. Professor Cowan claimed that, in his opinion, Hastings would have had to administer the drugs more recently than February 17, the date in which Hastings claimed he used the contaminated syringe, in order to test positive. Whilst it was not impossible, it was extremely unlikely that the contaminated needle could be responsible for the positive test.

Hastings was banned from competitive cycling for a period of four years with UKAD releasing a statement citing the case as the perfect example of personal choices which not only cheat the athlete himself but also his team-mates and opposition.

And last but certainly not least .... Lance Armstrong

The Lance Armstrong scandal gave rise to one of the biggest anti-doping investigations in the history of modern sport and has earned cycling a murky reputation that it is struggling to get rid of.

In 1999, Armstrong tested positive for corticosteroid triaminolone but managed to escape punishment, having been able to produce a doctor's certificate that confirmed the substance was within a skin cream, he had been prescribed. Thereafter, in 2000 (the same year in which he won his second consecutive Tour de France), Armstrong published his autobiography where he had specifically denied the use of any performance enhancing drugs. For the next decade, Armstrong would be at the centre of doping speculation and investigations which failed to confirm any evidence against Armstrong. In 2012, USADA notified Armstrong that they were investigating his use of performance enhancing drugs (PEDs). Armstrong was, at first, to defend those charges but ultimately, decided not to contest the charges brought by USADA. This led to USADA finding Armstrong guilty of using PEDs throughout his career, stripped of his seven Tour de France titles and on the end of a lifetime ban. In a report that USADA released, following their investigation, the anti-doping agency stated that Armstrong had led "the most sophisticated, professionalised and successful doping programme the sport has ever seen." Armstrong finally admitted to the use of performance enhancing drugs in a subsequent interview, in 2013, with Oprah Winfrey and the misery was not to end there as he became subject to a lawsuit by the United States Government that claimed that he had defrauded the US Postal Service of sponsorship funds by breaching anti-doping rules.


Doping and the effect on sponsorship 

http://i.telegraph.co.uk/multimedia/archive/02208/skyget_2208797b.jpg

For any company, building and maintaining a strong positive brand is of utmost importance and requires constant work, but, it only takes one negative event to bring it all crashing down ... never to recover - especially in the world of social media where news goes viral in seconds. Cycling has struggled to recover from the Lance Armstrong scandal in terms of reputation and it is now often associated with doping, more so than any other sport. This naturally has had a knock-on effect in terms of sponsorship opportunities.

When Lance Armstrong was found guilty of doping, in 2012, his most loyal sponsors were quick to sever ties including Nike, Anheuser-Busch and eventually Oakley. Nike, in particular, played a crucial role in the building of Armstrong's Livestrong cancer charity which raised over $100m for charity and effectively turned the foundation into a global brand. That was a 9 year relationship with Armstrong that was left in tatters, following the scandal.

With some of the biggest cycling competitions being impacted by doping scandals, big brands are no longer renewing their cycling sponsorship deals over fears about further doping revelations with the likes of T-Mobile and RadioShack, stating that it played a major factor in their decision-making, when considering whether to renew contracts.

One of the biggest sponsors of cycling, Dutch multinational banking company, Rabobank pulled the plug, on the sport in 2012, following the Armstrong scandal. However, this was not the first time Rabobank had considered pulling out of the sport. In 2007, Michael Rasmussen (the leader of Team Rabobank) was sacked and removed from the Tour de France for lying about his whereabouts. He later admitted using performance enhancing substances including EPO, testosterone and blood doping, for much of his career. He served a two year ban from the sport.

It is now four years on from the Armstrong scandal and cycling is still very much feeling the aftermath. It was reported in June 2016, that Orica, an Australian mining company, was to end it's relationship with the Australian GreenEdge team with their sponsorship contract to terminate at the end of the 2017 season. This news followed the revelations that IAM Cycling and Tinkoff were to disband at the end of 2016 due to lack of financial support.

Athletes and indeed sponsors should always be mindful of morality clauses within their contracts. Morality clauses are provisions within a contract that restrains an individual from acting in a particular manner, such as doping. If the individual is found to have behaved in a prohibited manner, it allows a sponsor to terminate the contract due to the negative effect, that continuing the relationship may have, on the sponsor's reputation. Being able to terminate contracts, based on behaviour, also sends a clear message to the public that the sponsor is not supporting or tolerating the guilty actions.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

No comments:

Post a comment

Related Posts Plugin for WordPress, Blogger...
CUSTOM BLOG DESIGN BY PRETTYWILDTHINGS