CYCLING'S LEGAL MINEFIELD
When law, ethics and politics collide in sport, the outcome is never simple
Chris Froome’s Adverse Analytical Finding for salbutamol is the latest in a long list of high profile anti-doping matters in cycling. Yet again it severely challenges the notion of whether the governing body is up to the task of self-regulation – at least to a level where it is able to protect the rights of the rider and reputation of the sport. The case demonstrates that the anti-doping process is not fit for purpose, and serves as a powerful reminder that under the current process there will always be collateral damage.
The procedural maze of the anti-doping framework creates a gap between an ‘adverse analytical finding’ and an ‘anti-doping rule violation’. To add to the potential for confusion, there is a difference between non-specified substances and specified substances. The latter exists because governing bodies believe some drugs may enter an athlete’s body inadvertently. This leaves more room for an athlete’s defence to work. It also allows adjudicating panels more flexibility to consider specific evidence and its interpretation in light of relevant regulations.
This generates logical questions. Most pertinently in this case, if the rider has not been charged with an anti-doping rule violation, which demands a sanction, and has simply been notified of an AAF, should this matter have been kept in private while the explanation was offered? However, a positive result is also an indicator that something is wrong and it calls into question both the rider’s innocence and their eligibility to continue competing.
This brings us to provisional suspension. It is true that a provisional suspension may not be applied when the presence of a specified substance is in question – and particularly so when the rider has not yet been charged with an anti-doping rule violation. But 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.
Consequently, we should question why this discretionary power has not been used to enforce a provisional suspension in the Froome case. Declaring that, ‘The rules don’t allow us not to impose the provisional suspension’ is not as good as saying, ‘We did not impose it because...’
This regulatory malfunction creates a minefield. First there is a lack of clarity in the application of the rules. Second, the wording of the provisional suspension potentially creates an unequal penological environment. In some sports, athletes could be provisionally suspended for the presence of a specified substance whereas in others they may not. This also creates dilemmas as to the relationship between ethics and the law. In their attempt to find a balanced and nuanced response to the use and potential abuse of a wide range of substances, governing bodies classified them as specified and unspecified, yet have left the issue of provisional suspension in a twilight zone. Time and again, these dichotomies and inconsistencies allow athletes to deploy a plethora of persuasive arguments against the regulators. This, inevitably leads to the conclusion that sports regulators fail both the riders and the sport. The lack of clarity in the decisionmaking process and the inconsistency of the application of sanctions demonstrate the unequal treatment of the participants. Whatever the outcome here, one can 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 that cycling is facing, yet again, another uphill ride.