en en en en en en en es es es en en en en en en en en en en en en en es es es en en en en en en en en en en en en en en en en en en en en fr en en en de en de en en en en en en en en en en en en en en en fr en en fr en fr en en en en en fr en en en en en en en en en en en
This is another high profile saga in the long list of anti-doping matters of cycling and one that raises several questions as to the true state of events. In line with similar previous cases and because of the application of strict liability, the present matter creates an antithesis with the precepts of fairness and justice in that, the athlete in question, is presumed to be guilty, until he is able to prove otherwise.
Notwithstanding the enormous suspicion that an allegation of a positive test creates, the ability of governing bodies to deal with this effectively and purposefully, may trigger arguments that centre around natural justice, fairness, proportionality and due process. Advisers in the field of anti-doping litigation are not agnostic to such arguments and they tend to pay particular attention to the pre-trial behaviour of the relevant governing body.
This brings us to the pertinent question of whether the athlete is guilty or not. The application of strict liability suggests that once a positive result appears, the athlete may start to accept the view that there is a long ride ahead of him. The procedural anomalies and dichotomies of the anti-doping framework create a long gap between an 'adverse analytical finding' and an 'anti-doping rule violation'. To add to the potential of a catastrophic confusion, there is a difference between non-specified substances and specified substances. The latter exists because governing bodies are of the opinion that the substance in question may enter an athlete's body inadvertently. This, consequently, will make the athlete's defence more workable and it would allow adjudicating panels more latitude and flexibility in the consideration of the specific evidence presented to them and in the interpretation of the relevant regulations.
The above analysis generates logical questions. One would respectfully submit that if the athlete has not been charged with an anti-doping rule violation (as opposed to being notified of an adverse analytical finding), this matter should have been kept in private. Even so, a positive result is an indicator that something is wrong, which brings into question, not only the athlete's innocence, but the integrity of the sport as a whole. It is true that a provisional suspension may not be applied when the presence of a specified substance is in question and particularly, where the athlete has not been charged (yet) with an anti-doping rule violation. But people need to pay close attention to the word 'may', which can be interpreted as a power of discretion. Indeed, the WADA Code (and the UCI rules) use the word 'may' to the application of the provisional suspension, so to this effect, a provisional suspension is a discretionary matter in the decision making of the relevant body, in the circumstances presented to us in the Froome matter.
Whatever the final outcome of this matter, one can, once again, rest assured that self regulation has created a framework of suspicion and distrust, with the potential of further embarrassment for all stakeholders. Above all is the acceptance of the argument that cycling is facing, yet again, another uphill ride. It remains to be seen whether it needs performance enhancing for such ride...
* Dr Gregory Ioannidis is a sports lawyer and an anti-doping litigation expert, with a wealth of experience in this field. He has represented a number of high profile sport personalities on anti-doping matters before the Court of Arbitration for Sport in Lausanne and UKAD in London.
Popular posts from this blog
The Curious Case of Dwain Chambers
- July 21, 2012
The University of Buckingham hosted a very interesting public debate last Thursday [19 July 2012] on the issue of performance enhancing substances and methods in sport. I had the honour of chairing this debate and be part of the panel which comprised of my two esteemed colleagues, Professor Geoffrey Alderman and Professor bob Watt [who prefers to use a small 'b' for his first name!]. My two colleagues fully analysed the moral and ethical issues in favour and against the use of performance enhancing substances and answered questions from the public.
Preliminary (Provisional) & Conservatory Measures before the Court of Arbitration for Sport (CAS): Procedure & Practice.
- April 07, 2021
An important aspect of procedure and practice before the CAS, relates to the ability of applicants to seek urgent protective measures, in the form of an application for a Stay of execution of the appealed decision. The legal basis for such application can be identified in Article 183 of Swiss Private International Law and R37 of the CAS Code. The latter, provides that the CAS may, upon request of a party, order preliminary or protective measures. According to CAS practice and jurisprudence (See  CAS 2003/O/486; CAS 2013/A/3324; CAS 2013/A/3199; CAS 2010/A/2071. CAS 2001/A/329; CAS 2001/A/324 ), there is a three-stage test that needs to be satisfied for a successful application on such protective measures (provided that the issue of jurisdiction has been settled): The requested measures must be necessary to protect the Applicant from irreparable harm; There must be a likelihood of success on the merits of the claim; The interests of the Applicant in the reques
The Fiduciary Duty of Football Intermediaries and the Conflict it Creates
- March 02, 2018
It is more often than not that Media around the world feel obliged to publicise stories involving professionals (a term that may not be applicable to all of those concerned) who have been assigned to promote, safeguard and maximise the employment and commercial opportunities of their football clients.  Such stories tend to focus on the ability of such professionals to make a quick profit for little work involved. Indeed, I suggested in a previous post  https://www.linkedin.com/pulse/20141113135420-55498583-football-agents-tapping-up-business-as-usual/  that football and its commodification and enormous commercial value have created the basis upon which quick deals could be established and millions of pounds could be exchanged between parties. I also argued, in such post, that the purposeful and efficient application of the regulatory framework could ensure the elimination of  illegal and immoral activities such as 'tapping up.'
Theme images by Michael Elkan
The views and opinions expressed on this site are those of its author.
Sports lawyer with expertise in anti-doping litigation, football law and other regulatory and sport disciplinary matters. Course Leader of LLM International Sports Law in Practice at Sheffield Hallam University and Academic Associate at Kings Chambers in Manchester