Why cycling's anti-doping system is broken: XZTT v Anti-Doping Rule Violation Tribunal
In XZTT v Anti-Doping Rule Violation Tribunal [2012] AATA 728 the AAT concluded that, in addition to the "egregious", "flagrant breaches" and delays by the UCI and Cycling Australia, the Australian Sports Anti-Doping Authority and the Anti-Doping Rule Violation Panel "each misconceived their respective legal obligations under the ASADA Act and the NAD Scheme."
On Tuesday this week the cycling world watched the International Cycling Union (the UCI) follow the United States Anti-Doping Association's (USADA) lead and strip Lance Armstrong of the seven Tour de France titles that he cheated, lied and doped to get.
Later that day, an Australian tribunal handed down a decision that showed that the UCI, Cycling Australia, the Australian Sports Anti-Doping Authority (ASADA) and the Australian tribunal responsible for the determination of charges against cyclists accused of using drugs while participating in that sport – the Anti-Doping Rule Violation Panel (the ADRVP) – struggled to handle a minor breach of the World Anti-Doping Code (WADC).
The decision by the Australian Administrative Appeals Tribunal (the AAT) in XZTT v Anti-Doping Rule Violation Tribunal [2012] AATA 728 was an appeal by XZTT (we'll call him "the Cyclist") against two decisions by the ADVRP to make entries into the Register of Findings under the National Anti-Doping Scheme (the NAD Scheme) in relation to possible "presence" and "use" violations under the NAD Scheme that would have seen the cyclist barred from professional cycling for two years and disqualified and stripped of any medals, points and prizes from October 2010.
As the AAT noted in it's Decision, the ADRVP had to navigate its way through a "complex interplay of overlapping regimes of international sporting governance." Notwithstanding the legal complexity facing ASADA and the Anti-Doping Rule Violation Panel, XZTT's case shows that ASADA failed to understand the legislation it is charged with administering, that ASADA's report to the Anti-Doping Rule Violation Panel was more like a prosecution brief than an objective analysis of the facts and law and that both ASADA and the the Anti-Doping Rule Violation Panel fundamentally misconstrued their responsibilities to athletes and to the proper administration of the rules governing the anti-doping regime.
While the law in this case may be complex and difficult, the facts were (relatively) straightforward.
In October 2010 the Cyclist, who was registered at the elite level with Cycling Australia, competed in a number of international races in China that were subject to the UCI's jurisdiction.
Like all cyclists at this level he had agreed to be bound by the UCI Anti-Doping Regulations, the World Anti-Doping Code and other relevant international standards. Following a race in late October in Wuxi, China the Cyclist was asked to supply two urine samples for testing. Those samples were sent to a Chinese laboratory for testing and the "A" sample was found to contain "a very small amount (42 ng/mL) of benzoylecgonine, the principal metabolite of cocaine."
Cocaine falls into the first of two classes of drugs prohibited for "use" "In-Competition", the other being drugs, particularly masking agents, that are prohited at all times by the World Anti-Doping Code and the UCI Cycling Regulations. Both sets of rules also allow for the separate and distinct offence relating to the "presence" of a prohibited drug or its metabolites.
The UCI was required by the World Anti-Doping Code to promptly notify – within 7 days – the Cyclist of the test results but failed to do so for 4 1/2 months. This was a delay that the AAT considered to be a "gross breach" of the UCI's own own Anti-Doping Rules and the World Anti-Doping Code.
While the UCI sat on its hands, as the AAT noted in it's Decision:
[16] In ignorance of the cloud hanging over his head, XZTT continued to participate as an athlete In-Competition and seek sponsors. In January 2011, he signed a contract. It included a provision to the effect that if he were to be found to have breached anti-doping rules his contract would be terminated. His advocate submitted that such a finding would result in XZTT becoming liable to compensate his sponsor's team for up to two years income: an amount he stated to be €145,000.
It was not until March 2011 that the UCI:
… finally wrote to XZTT, then competing in Belgium, to advise him that the UCI had received the notification from the National Anti-Doping Laboratory of an adverse analytical finding from his A Sample.
XZTT was told he had been provisionally suspended from the date of that notice (25 March 2011) and that the suspension would remain in force until "a hearing panel has determined whether you have committed an anti-doping rule violation." He was informed that he had the right to request the opening and analysis of his B Sample and that he or his representative had the right to attend its testing by the National Anti-Doping Laboratory in Beijing. Six days later XZTT, while still in Europe, advised the UCI that he wanted his B Sample to be analysed and waived his right to be present.
Following an analysis of his "B" sample, in early May 2011 the UCI wrote to the Cyclist advising that the "B" Sample had confirmed the "A" sample result and that the UCI would be writing to Cycling Australia, the relevant "National Federation" under the UCI Rules, requesting that it open disciplinary proceedings against him. A month later the Cyclist received a letter from ASADA notifying him of the negative results, the referral from the UCI and to advise that ASADA would refer the matter to the Anti-Doping Rule Violation Panel for consideration. The Cyclist was advised he could make submissions in response to the notice of possible adverse findings against him contained in the ASADA letter.
In his submissions to the Anti-Doping Rule Violation Panel the Cyclist denied using any prohibited substance and that the delays in dealing with his case had made it "impossible" for him to investigate alternative causes for the sample results.
After a further unexplained delay of two months the Anti-Doping Rule Violation Panel met to consider the Cyclist's case in early September 2011 and then notified him of its two adverse findings against him The Cyclist then appealed to the AAT, where the issue of delay was the subject of extensive submissions by his advocate, legal academic Martin Hardie.
The AAT noted that:
[120] From the athlete's point of view, the timeliness of the process was an important matter. XZTT was already subject to a provisional suspension that had taken away his right to compete as a professional cyclist pending the resolution of the disciplinary proceeding.
[123] The faults and delays that Mr Hardie identified were egregious. Why they occurred has never been explained. However, whilst XZTT has every reason to feel let down by those who administered his sport, the faults and delays were not errors made by the CEO or the ADRVP.
[171] The submissions made on behalf of XZTT to the Tribunal understandably gave great attention to the failure of the UCI to comply with its own rules.
[172] Mr Hardie submitted, and the Tribunal finds it to be the fact, that the UCI had flagrantly breached both of those rules.
Notwithstanding the Cyclist's arguments about the effects upon his interests of the UCI's flagrant breach of it's own rules, the AAT concluded that a delay of 4 1/2 months was not such a fundamental breach of the athlete's rights under the anti-doping rules sufficient to cause it to "disregard otherwise unassailable proof of the presence of a prohibited substance."
The AAT's finding that the UCI's delay was not a "fundamental breach" may be the subject of further appeal. It may be that the AAT did not appreciate the distinction between delay once the results management process has commenced and the ability for the UCI to commence a case against an athlete within eight years. While the UCI has a substantial period within which it can bring a case against an athlete but once the results management process commences the timelines set down by the rules are strict.
In regard to the Anti-Doping Rule Violation Panel's findings in relation to "presence" and "use" the AAT considered that:
[211] There is no disputing the presence of benzoylecgonine in the Applicant's A and B Samples. However, based on the negligible amount (42 ng/mL) detected, it would be difficult to support a proposition that the presence of such a minute quantity establishes that the Applicant "used" cocaine In-Competition. Bearing in mind that "use" In-Competition means use within eight hours of an event, it is relevant to note that the scientific literature reports concentrations more than 200 times higher than the concentration detected in the Applicant's sample, and these concentrations were measured in urine samples taken 4-8 hours after administration of single doses of cocaine. Based on the concentration of benzoylecgonine in the Applicant's urine samples and the time it takes for benzoylecgonine to clear from the body (generally 2-4 days), it is unlikely that the use of cocaine occurred In-Competition and implausible that the presence of the prohibited substance could have affected the athlete's performance In-Competition.
[219]Use of cocaine out of competition is not a violation of the WADC, nor is it an anti-doping rule violation under the NAD Scheme. However, the presence of cocaine, or its metabolites, In-Competition is a violation of the WADC and an anti-doping rule violation under the NAD Scheme.
The AAT concluded that, in addition to the "egregious" and "flagrant breaches" delays by the UCI and Cycling Australia, the Australian Sports Anti-Doping Authority and the Anti-Doping Rule Violation Panel "each misconceived their respective legal obligations under the ASADA Act and the NAD Scheme."
The AAT ordered that the two decisions by the Anti-Doping Rule Violation Panel be set aside and that a single entry into the "Register of Findings" be made in relation to the "presence of a prohibited substance".
The AAT returned the matter to the Anti-Doping Rule Violation Panel with several specific directions, including the following matters that "it may wish to take into account in mitigation":
[235] … (a) from 25 March 2011 until the date of the Tribunal's decision XZTT remained subject to a provisional suspension that has prevented him from participating in all professional cycling events; (b) that despite the requirements of the WADC and the UCI Anti-Doping Rules, XZTT experienced gross breaches of his entitlement to have the allegations against him dealt with in a timely way; (c) that XZTT did not contribute to the delays in any way; (d) that XZTT entered into a commercially disadvantageous contract, which included a provision to the effect that if he were to be found to have breached anti-doping rules his contract would be terminated and which he would not have entered into but for the delay in the UCI in notifying him of his testing results; (e) that the finding of a violation on his part for 'use' In-Competition of cocaine has been set aside by the Tribunal; and (f) that the amount of metabolite of cocaine detected in XZTT's samples was below the threshold normally accepted as establishing a positive finding for use of cocaine and could not have affected his performance.
(USADA)
Administrative Appeals Tribunal
ance Armstrong
Anti-Doping Rule Violation Panel
Australian Sports Anti-Doping Authority
Cycling Australia
National Anti-Doping Scheme
nternational Cycling Union
the ADRVP
the NAD Scheme
the UCI
the World Anti-Doping Code
UCI Anti-Doping Regulations
United States Anti-Doping Association's
XZTT v Anti-Doping Rule Violation Tribunal