A Fair Hearing?

The impartiality of the hearing process is governed by Article 8 of the World Anti Doping Code. Article 8 of the World Anti Doping code has potential for conflict with principles of natural justice. The goal of the article is to outline the standards expected and procedural entitlements of athletes accused of doping. The most controversial inclusion within Article 8 is provision number two; ‘fair and impartial hearing body’.

Most democratic nations presently employ a separation of powers. The separation of the executive, judiciary and legislator ensures that too much power is not vested in one organ. It operates as a system of checks and balances, each organ exercising a supervisory role over the other. The World Anti-Doping code fails to adhere to this separation of powers.

Failure to implement a separation of powers does not in itself symbolise corruption, however, if coupled with weak, ineffectual policies it can lead to a perception of corruption. The Irish interpretation of WADA guidelines (Irish Anti Doping Rules) has borne out a situation where an athlete may be tested by Irish Cycling to ascertain whether they have ingested a prohibited substance, the case will be prosecuted in the name of ‘Irish Cycling’ and Irish Cycling will make the determination on the athletes guilt. This situation is not compatible with the principles of natural justice.

Nemo iudex in causa sua has been long recognised as a fundamental principle of natural justice; it translates as ‘no man shall be a judge in his own cause’. This Latin phrase has direct implications for the Irish Sports Council. One of the cornerstones of our justice system is that justice must not just be done but it must also appear to be done. Applying this rationale to doping laws, regardless of whether justice is in fact done, the lack of separation of powers gives an objective perception of bias.

The UCI and WADA should lead the way and set an admirable example for athletes to follow. Currently the opposite is true. Successful anti doping legislation should be based on respect; respect by athletes’ for the rules but also a respect by authorities for the principles of natural justice. Without a system of mutual respect there exists little chance of winning the war against drugs.

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World Anti-Doping Code. Provisional Suspensions

One of the foundations of natural or constitutional justice is that once an allegation affects an individual’s good name he/she is entitled to a complex, if undefined, set of procedural safe guards. An allegation of doping is an accusation which could profoundly affect the good name of the athlete involved. It characterises the individual in question as a dishonest person and compromises their integrity. This instalment will examine the merits of Article 7 of the World Anti Doping Code (Provisional Suspensions).

Article 7.2

‘A signatory may adopt rules, applicable to any event for which the signatory is the ruling body or for any team selection process for which the signatory is responsible, permitting provisional suspensions to be imposed after the review and notification but prior to a final hearing.’

The application of provisional suspensions is one of the primary areas where reform of the Code is needed. The Code empowers governing bodies to suspend athletes’ prior to any formal hearing. This action from governing bodies must be viewed against the backdrop of the severity of being accused of a doping offence. Imposing a period of suspension pending analysis of a ‘B’ sample is inherently wrong. At this stage only tentative evidence of any wrong doing exists. It is my respectful submission that the paramount issue in question relates to judging between two rights; balancing the rights of athletes’ to fair procedure against the right of WADA to advance its core objectives.

WADA, on the one hand, is endeavouring to eradicate drugs from sport, but in this instance, athletes’ rights are being compromised in the pursuit of utopia. WADA has decided that the consequences of allowing a suspected doper to continue competing, pending a formal hearing are too great. They have favoured a pre emptive suspension. In making this decision they have failed to fully appreciate the severity of the consequences that ensue for an athlete accused of doping.

The eradication of drugs from sport, especially cycling, is an uphill battle. The task is one which requires carefully formulated legislation; athletes’ rights are paramount in the battle against dopers. For authorities to compromise athletes’ rights in the pursuit of a clean sport (which is essentially vindicating athletes’ rights) is for them to lose sight of the rationale behind the anti-doping movement.

The introductory memorandum to the Code places heavy emphasis on the ‘spirit of sport’ and seeks to protect it. Surely, at the heart of the spirit of sport are the athletes’ and athletes’ rights, by implication. How can a Code which seeks to advance and preserve the spirit of sport also advance policies which fundamentally undermine the natural justice rights of athletes’? Although WADA is entitled to considerable credit for its work in the fight against doping, in this instance, they have failed to correctly access the merits of Article 7.

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Doping in Sport

The issue of doping has attracted widespread media coverage in the last decade. Athletes convicted or accused of doping often invoke boundless disdain. It is difficult to articulate why the public feel so passionate about the subject. Often, in the post World War Two period, athletic achievement has become synonymous with national prosperity. Sport can provide a form of escape for the sometimes harsh realities of life. In times of economic recession or hardship the social utility sport provides should not be underestimated. Examples are plentiful: Football in Brazil provides identity to the people, offers hope for a better life and instils national pride in a country where the distribution of wealth is wholly inequitable. Similarly, the success of African middle and long distance runners has been inspirational for certain African regions. The athlete who cheats by using performance enhancing substances has defrauded the sport in which they participate, duped their fellow athletes and also betrayed the support of the wider public. Public policy considerations compel authorities to attempt to alleviate the problem.

In my forthcoming posts I will analyse the document which represents sports solution to the threat posed by doping; the World Anti Doping Code.

The World Anti Doping agency was established with the express aim of preserving the spirit of sport. The publication of the World Anti-Doping Code received almost world wide approval but the policies contained within the document have since been much maligned. Over the coming posts I will consider the merits of Article 2 (Strict Liability), Article 7 (Provisional Suspensions) and Article 8 (Right to a fair hearing).

Albert Einstein once famously proclaimed, ‘Try not to become a man of success but rather to become a man of value’. Unfortunately, some athletes have abandoned the sentiments expressed by Einstein and seek success at all costs.

Strict Liability. A flawed System?

This installment will look at the strict liability nature of anti doping within sport.

Article 2 is entitled Anti-Doping rule Violations. The key provisions within Article 2 include Article 2.1.1.

Article 2.1.1 reads: It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes’ are responsible for any prohibited substance or its metabolites or markers found to be present in their bodily specimen. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athletes’ part be demonstrated.

The pragmatic implications of Article 2 mean that the mere presence of a prohibited substance in the athletes’ specimen is proof of doping, unless the contrary can be proven. This has the effect of reversing the burden of proof from a traditional starting point of innocent until proven guilty, to a draconian, guilty until innocence can be established.

The consequences for an athlete convicted of doping are severe and can extend to incarceration. The scale of the problem is often cited as a rationale for the implementation of this strict liability rule. I would suggest that just because the problem is widespread it is not sufficient justification to reverse the burden of proof. Clarity is the main attraction of a system where the mere presence of a banned substance in an athletes’ system leads to a positive finding.

Imagine a situation where crime levels had increased to such a level that the legislature enacted laws where citizens could be convicted of murder despite having no moral culpability (moral culpability being one of two essential elements for murder, the other being a guilty act). Athletes’ are not given a chance to show a lack of intent or lack knowledge and receive bans for the mere presence of the prohibited substance.

WADA say that to prove intentional ingestion as well as presence of prohibited substance would undermine the fight against drugs. I would suggest that administrative inconvenience and disciplinary convenience cannot be advanced as legitimate reasons for the removal of the mens rea.. Athletes’ must be given an opportunity to show a lack of fault or intent. The raison d’etre for the World Anti- Doping Code is punishment for those administering substances with the express aim to improve performance. The current system punishes athletes’ regardless of their intention to improve performance.

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Back on Track

The National Track Championships are a little over two weeks away and the focus of my training has shifted slightly. My season is effectively split into two this year. The first half of my season is dominated with road action. The training emphasis always had an underlying endurance element with the majority of my training time spent in Zone 1 and Zone 2.

The second half of my season involves more track specific work on the fixed gear bike. The training duration will drop but intensity will increase. Sessions will typically involve multiple repeats for 3km pursuits just below race pace.

My body composition will never allow me to be a national champ in the sprint events - I simply do not have enough fast twitch muscle fibers. The focus of my training is on events 1km or longer. Events over 1km engage the aerobic system and tend to favor those from a road background.

This past weekend heralded my return to the track racing with the Sneem International Track meet in Sundrive. The race attracted a top class field with some of Ireland`s best on show. My emphasis was on the 10km Scratch race, which for those not familiar with track cycling is basically a road race around the track with the first one to the line declared winner. There are no intermediate sprints in this event. I rode a 48 front chain ring with a 14 sprocket on the back. I placed 4th behind John Lynch, Dave Peelo and Martin Irvine.

When I woke the next morning the lactic in my muscles was overwhelming. I have not experienced a stiffness and soreness in my muscles of this kind in a long time. Although a cursory glance at the physiological requirements for road cycling and track cycling would suggest they are similar that is far from the truth. The intensity of the track is rarely replicated on the road. The 10km Scratch race is raced at powers averaging in excess of 400 watts (I weigh 74kg) with frequent spikes in power.

Hopefully as I transition more towards the track as the end of the road season approaches the pain I now associate with track sessions will dissipate.

The Simple Life (Part Three)

Picture of sprint for 28th on stage 7

Stage 4 & 5 were undoubtedly the most painful in my first Ras. The pace was high coming into the last 15km of stage 4; the bunch was strung out as a result. I had good position about thirty riders from the front. All of a sudden the sounds and smells one associates with a pending inevitable crash began to dominate my senses; the smell of cork burning, rubber sliding and carbon touching. Before my brain processed exactly what was going on I was down. When one hits the ground there is a mental checklist which I assume all riders carry out. It involves checking to see if the body is working - legs, ok, arms, ok. As soon as the checklist is complete, thoughts turn immediately to re-gaining contact with the bunch. More time spent getting started translates into more wattage needed to make the juncture. By the time I cleared the bodies away from my bike, it became clear we were doomed to roll in and lose some time on GC. My first Ras crash but body and bike would ride another day.

I began stage 5 with a sense of childish excitement, the stage was due to finish at the top of the fabled Seskin Hill. When the Ras route was announced, this was a stage which particularly caught my attention. The steep finishing gradient would remove all the sprinters from contention for the county rider prize and, instead, favoured those with a high power to weight ratio. I harbored no romanticised notions of winning the stage but a top five placing in the county rider standings was a realistic goal.

No sooner had the stage begun, it had effectively ended for me. The race wound its way through the uniquely Irish roads ways, the bunch was compact and the pace was conservative. In hindsight, I was positioned further back in the bunch than I probably should have been - however, the front of the bunch didn't seem so safe yesterday. Pro riders have a strange habit of never sitting still on the bike. They change clothes many times during each stage: shoe covers, hats, leg warmers, they change it all. On this occasion, a Swiss KTM rider wasn't happy with how his sunglasses were positioned and apparently needed both hands to re-position them. The hands came off the bars, wheels touched and boom! Down I go - again. This time as I go through the checklist I know all is not right, not sure where the pain is coming from but I am hurting. I get to my feet and check to see if the bike is running- its not, it's a right-off. A not so quick bike change and I am on my way with a team mate who has waited for me. The Ras thought me many things, one of the biggest mistakes I made during the Ras was not having the team car pace me back up to the main group. In the aftermath of the crash, I naively instructed the team car to go ahead and leave me. A day spent with the broom wagon taught me a lesson I am unlikely to forget for a long time.

Stage 6 was the shortest of this years Ras, 127km finishing in Gorey, Co. Wexford.

I was nursing some wounds from the crashes on the previous two days and sporting a new bike courtesy of our team manager. Unlike the professionals, I was not in a position to have an identical spare bike; some late night positional changes on the borrowed bike attempted to mimic the feel of my now defunct Cervelo R3. I was quite happy with the result of the stage considering I had contemplated not starting that morning. I finished in 63rd position in a small group, about 9 minutes down on the winner with, among others, David O'Loughlin and Neil Delahaye.

Stage 7, 154km finishing in Kilcullen.

The Ras was turning towards home and starting to travel the roads I know so well. The route for the day was never going to lend itself to a bunch finish and the race came to life over the top of the 'Shay Elliot' climb. I had bad position going into the climb but good legs on the climb. I found myself in a group which was maybe the third group on the road. We chased hard over the Wicklow gap and regained contact with a group before Kilcullen. My thoughts immediately turned to the county rider prize; a few informal inquiries revealed I was out of luck. Three county riders were ahead of my group: Mark Dowling, Thomas Martin and Ryan Sherlock. I re-focused my mind and attempted to stay alert. I am still learning tactically and have a tendency to switch off coming into the finish of a race. My legs are surprisingly fresh considering what they have been through. We turn a sharp right corner and sprint toward the final rise in the road, all vying for 28th place. I am edged out by Sean Lacey as the line approaches but it's one of my better sprints. I placed 34th on the stage, 5th County rider home and my best placing in the Ras.

Stage 8, 140km finishing in Skerries

I had a feeling that it wouldn't be a ceremonial stage into Skerries where riders sipped champagne and posed for pictures. It wasn't one of the hardest days in the Ras but it sure wasn't easy. The cumulative fatigue was taking effect but my body was holding up better than expected. I knew the roads virtually all day. The finishing circuit on the 'Black Hill' in Skerries was a road I had trained on countless times. One of my team mates, Fergus Ryan, was born and reared in Skerries so this would be a special day for him. The streets were lined with people on the main street of Skerries. The 'Black Hill' had the names of the UCD riders inscribed on the pavement and walls. I could hear familiar voices cheering me on, encouraging me to dig a little bit deeper as the gradient increased. I finished in the second group on the road, 38 seconds back from the winner, in 56th place.

The Ras had certainly been a journey; I experienced some high's and some low's and sacrificed plenty to even make the start line. Was it worth the sacrifice? I will tell you when I get my exam results!

The Simple Life (Part Two)

Stage 3 of the Ras was 171km into Oughteard.

At the time I wasn't sure whether I was having a bad day or the pace was just relentless. Having talked with friends since I now have come to believe that the pace was high. The day seemed like a never ending line-out which eventually broke me over the top of the last climb of the day. There is only so many times you can dig into your reserve, on the last occasion I went looking for something extra to take me over the summit of the hill but the well had run dry. Although I found the day hard I was beginning to enjoy this stage race thing. Stage racing has a different allure; a days performance is, to a certain extent, determined before the day even begins. Ones actions the day before play a significant role in performance on the day. The British Track squad famously based their success on the 'accumulation of marginal differences' and I believe that phrase is particularly applicable to stage racing. Recovery is the key. Ones recovery begins as soon as the stage ends. Recovery is comprised of a number of different elements, rest, nutrition and therapy (massage, ice-baths etc). All the riders were required to do was cycle the bike, all other needs were meet by the exceptional backroom team which UCD employed for the event. It was the simple life: eat, cycle, eat, massage, bed, repeat.