CMS Doping in sport revelations/discussion

[samhocking]

The media and Twitter are very silent since Thursday? Even Dan Roan hasn't tweeted yet another link to his Dr Freeman BBC interview for over 72 hours now?

[Robert5091]

The media and Twitter are very silent since Thursday? Even Dan Roan hasn't tweeted yet another link to his Dr Freeman BBC interview for over 72 hours now?

If it's all behind closed doors we won't hear anything until it's all over. Put the popcorn back in the cupboard!

[samhocking]

Yes, although it sounds like the tribunal hasn't begun yet. Dan Roan reported this evening that MPTS will continue hearing private legal argument for the remainder of the week and there will have been at least 8 days of legal argument before the case actually begins.

Looking at the MPTS guidance documents, it appears both sides are within a step called 'Preliminary legal arguments' that can happen if either GMC's or Freeman's representative have any arguments about whether the MPTS should receive certain documents, or that the hearing should be held in private.

[Robert5091]

https://www.dailymail.co.uk/sport/sportsnews/article-6692919/Richard-Freemans-medical-tribunal-delayed-amid-concerns-delays-UK-Anti-Doping.html

The medical hearing for former Team Sky and British Cycling doctor Richard Freeman is in danger of descending into farce amid concerns that delays could prevent UK Anti-Doping from acting on any new evidence.

The Medical Practitioners Tribunal Service hearing was due to start last week, having been allocated 20 days in Manchester from February 6.

But an initial application for a 48-hour adjournment by Freeman's legal team has been followed by further preliminary legal application that the MPTS now expect to continue for the remainder of this week.

That means it could be day nine before the tribunal that centres on an allegation that Freeman ordered the banned drug Testosterone for an athlete in May 2011 formally begins, making it most unlikely that a conclusion will be reached by March 5.

If the tribunal is only part-heard, it would then be a case of reconvening and that becomes difficult logistically with lawyers, as well as witnesses, potentially booked up later in the year. Indeed there are concerns that the hearing may not be concluded this side of Christmas.

Any date beyond May this year would be a potential problem, not least for UKAD when the statute of limitations for an alleged doping offence in May 2011 was eight years.

You all laughed and mocked when I wrote Freeman would not be seen until Martinmas (November 11), well seems I might be right!

[MartinGT]

https://twitter.com/jeremycwhittle/status/1095237800021184512

[Robert5091]

MP Damian Collins (he of the committee that investigated the infamous jiffy bag)
https://twitter.com/DamianCollins/status/1095091476785188866

It is disgraceful that delaying tactics are holding up the work of this important medical tribunal into Dr Richard Freeman’s work for British Cycling and Team Sky https://www.telegraph.co.uk/cycling/2019/02/11/medical-tribunal-dr-richard-freeman-case-danger-not-completed/?WT.mc_id=tmg_share_tw … via @TelegraphSport

I might revise my guess to Martinmas 2020 ... if at all.

BC & Sky's lawyers are questioning every punctuation and probably claiming all the requested documents were on the docs missing laptop.

[samhocking]

All the preliminary evidence will already have been submitted to the tribunal parties by both GMC & O'Rourke. They now appear, from that, to be held up within a pre-hearing hearing stage called 'Preliminary legal argument'.

This is where they are stuck at in MPTS Trbunal Process:

Preliminary legal arguments
If you or the GMC identifies a legal issue which needs to be addressed at the hearing
(for example, arguments about whether the medical practitioners tribunal should
receive certain documents, or that the hearing should be held in private), this will
need to be considered by the medical practitioners tribunal at the start of the
hearing as a preliminary legal argument. You should inform your GMC contact and
the MPTS as soon as you identify a preliminary legal argument you intend to raise.

The party raising the issue (known as the applying party) must produce a skeleton
argument. A skeleton argument is a document that sets out the main points you
want to make to the medical practitioners tribunal in support of the application you
are making. The applying party must send their skeleton argument to the
responding party by the deadline specified in the case management directions you
will have received.

The responding party must then produce a skeleton argument in response, and send
it to the applying party by the deadline specified in the case management directions.

[TourOfSardinia]

Will we have to wait until Team Sky is a DNF?
http://www.cyclingnews.com/news/freeman-tribunal-risks-being-delayed-until-next-year/

[fmk_RoI]

Yes, although it sounds like the tribunal hasn't begun yet. Dan Roan reported this evening that MPTS will continue hearing private legal argument for the remainder of the week and there will have been at least 8 days of legal argument before the case actually begins.

Looking at the MPTS guidance documents, it appears both sides are within a step called 'Preliminary legal arguments' that can happen if either GMC's or Freeman's representative have any arguments about whether the MPTS should receive certain documents, or that the hearing should be held in private.

So is that you quietly walking back the "NEW EVIDENCE!!!" scaremongering you indulged in last week?

[Robert5091]

"arguments about whether the MPTS should receive certain documents, or that the hearing should be held in private."

There you go!

[samhocking]

Yes, although it sounds like the tribunal hasn't begun yet. Dan Roan reported this evening that MPTS will continue hearing private legal argument for the remainder of the week and there will have been at least 8 days of legal argument before the case actually begins.

Looking at the MPTS guidance documents, it appears both sides are within a step called 'Preliminary legal arguments' that can happen if either GMC's or Freeman's representative have any arguments about whether the MPTS should receive certain documents, or that the hearing should be held in private.

So is that you quietly walking back the "NEW EVIDENCE!!!" scaremongering you indulged in last week?

Walking back and scaremongering? What are you on about? I said "It sounds like new evidence has come to light." ie in addition to what was already submitted by each side already to supposedly begin the hearing for real. From what we now know several days later both sides submitted their Skeleton Legal arguments last week, the Chair confirmed they requested more documents also and this will cause delay. Is it wrong to assume those documents are containing new evidence? Otherwise what is causing a delay - no more evidence, nothing has changed?

[yaco]

Oh the irony of a politician criticising Freeman and his legal team, for allegedly using time-wasting tactics at the MTPS.

[fmk_RoI]

The very nature of the Clinic means that whenever something happens, we conclude that it has happened for all the wrong, most negative reasons. So, we conclude that the delays in the MPTS hearings are an attempt to run down the clock on the Statute of Limitations. And we conclude this even though most of are well aware that, in reality, there is no clock and so therefore little point in running down time.

So what other reasons might there be for what is happening? Try this from a 2013 BMJ article:

The deaths of almost 100 doctors while under GMC investigation over the past decade has raised questions about the stress and fear associated with the process. Clare Dyer reports on the regulator’s moves to soften its harsh image. But is it going far enough?

Mary O’Rourke QC recalls the time a doctor threatened to jump out of a seventh floor window at the General Medical Council’s building while she was defending him on misconduct charges. The consultant paediatrician, who was in his mid-60s, displayed Asperger’s traits and had had recurrent depressive episodes, anxiety, obsessional tendencies, and thoughts of suicide. All three psychiatrists who prepared reports for his case agreed that he was unfit to take part in the proceedings and unfit to practise medicine then or at any time in the future. But the GMC refused to let him take himself off the medical register voluntarily. That took a trip to the High Court, which branded the refusal “irrational.”

[Robert5091]

One has to wonder though how many of those almost 100 doctors had a book published whilst under investigation.

[fmk_RoI]

Someone seems to be spreading a degree of fear, uncertainty and doubt among some of the media reporting the Freeman MPTS hearings with regard to the Statute of Limitations and the possible effect of delays in the hearings.

Matt Lawton in the Mail:

If the tribunal is only part-heard, it would then be a case of reconvening and that becomes difficult logistically with lawyers, as well as witnesses, potentially booked up later in the year. Indeed there are concerns that the hearing may not be concluded this side of Christmas.

Any date beyond May this year would be a potential problem, not least for UKAD when the statute of limitations for an alleged doping offence in May 2011 was eight years.

Dan Roan for the BBC:

Freeman's renowned barrister Mary O'Rourke is understood to have various other cases arranged for several months following this one, possibly preventing any resumption until next year.

That delay could affect whether UK Anti-Doping (Ukad) is able launch a new investigation should fresh evidence emerge. Ukad concluded its investigation into British Cycling and Team Sky 15 months ago.

Freeman allegedly ordered the testosterone, which is banned for use by athletes at all times, to Manchester's National Cycling Centre from Oldham-based medical supplier Fit4Sport Ltd in May 2011.

The statute of limitations for prosecuting anti-doping cases was eight years in 2011. The World Anti-Doping Agency (Wada) extended that until 10 years in 2015 but it is likely the shorter statute of limitations will apply in this case.

Tom Cary in the Telegraph:

The situation is complicated by confusion over the statute of limitations. In 2015, the World Anti-Doping Agency revised its code, extending the statute of limitations from eight years to 10. However, it is unclear whether the new or the old code would apply in this case.

A Ukad spokesperson told Telegraph Sport last week that the new 10-year statute of limitations would apply. But other sources believe that has not yet been tested.

If the old code applies, Ukad may have only until May – eight years after the batch of Testogel was ordered from Oldham-based supplier Fit4Sport – to push for any sanctions.

First up, the Statute of Limitations: today, it's ten years, introduced in the 2015 World Anti-Doping Code. Before that, the 2009 Code applied, and there the Statute of Limitations was eight years.

The possession of the Testosterone occurred in 2011, for a period of time between (at the earliest) May (when Peters said he first became aware of the situation) and (at the latest) October (when the Fit4Sport email suggests the Testogel was only recently returned - we don't currently know when it was actually returned).

So, under the 2009 Code, the Statute of Limitations expires sometime between May and October of this year.

If the UKAD person who spoke to the Telegraph is correct and the 2015 Code should apply, then the Statute of Limitations is still live through to 2021.

The UKAD person who spoke to the Telegraph is not correct.

WADA's 2015 Model Rules - issued in association with the 2015 Code revisions - make clear that cases initiated after the 2015 revisions came into effect and relating to offences before those revisions happened "shall be governed by the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred". In other words: the eight year limit applies to Freeman.

Even if WADA had not said that, the familiar legal principle of lex mitior would apply: wherever two different sets of rules can be applied, you apply the more lenient. Meaning, again, that the eight year limit applies to Freeman.

So, to be clear, the Statute of Limitations relating to Freeman's possession of testosterone is eight years.

Except ... Lance Armstrong.

USADA showed in the Armstrong case that, as with the rules of piracy, "the Code is more what you'd call 'guidelines' than actual rules." There are situations in which the Statute of Limitations is not strictly enforced. This is from the USADA Reasoned Decision:

VII. THE EIGHT-YEAR STATUTE OF LIMITATIONS FOUND IN ARTICLE 17 OF THE CODE WAS SUSPENDED BY MR. ARMSTRONG’S FRAUDULENT CONCEALMENT OF HIS DOPING AND OTHER WRONGFUL ACTS

In its initial notice letter to Mr. Armstrong, which was incorporated into its charging letter USADA specifically informed Mr. Armstrong that USADA was seeking the disqualification of Mr. Armstrong’s competitive results from August 1, 1998, onward. Mr. Armstrong could have, but did not, challenge USADA’s assertion that the eight year statute of limitations found in the World Anti-Doping Code was suspended by Mr. Armstrong’s conduct. The eight-year statute of limitation found in Article 17 of the Code was suspended by Mr. Armstrong’s fraudulent concealment of his doping. In asserting anti-doping rule violations and disqualifying results older than the eight year limitation period found in Article 17 of the Code, USADA is relying on the well-established principle that the running of a statute of limitation is suspended when the person seeking to assert the statute of limitation defense has subverted the judicial process, such as by fraudulently concealing his wrongful conduct.

So, for UKAD, if they feel Freeman has a case to answer, there is little to stop them from initiating that case even after the eight year Statute of Limitations expires.

So why is someone trying to convince the media reporting the MPTS hearings that there is a degree of urgency here?

[fmk_RoI]

One has to wonder though how many of those almost 100 doctors had a book published whilst under investigation.

As I have said before, when it comes to ghost written books - and Freeman's was ghosted, by Andrew Holmes - the person whose name is on the cover has very little to do with the writing of the book. Most ghosted memoirs are based on a couple or three interviews with the subject, the ghost then going off and padding those interviews out to 300-something pages.

Freeman did little or no publicity for the book: the Dan Roan interview is pretty much the sum total of his PR efforts.

[samhocking]

SoL only applies to investigations surrounding analytical violations on samples really (Peurto Blood, testing samples etc), not investigations of doping (Armstrong). WADA said at the time of Armstrong's case there's no valid excuse to not investigate evidence of doping that dates back longer than eight years (now ten years).
For UKAD, they might need to re-analyse samples of any named athletes who received Testogel I assume, so might be concerned in that regard SoL removes some freedom. As we are seeing with 2012 samples now being re-analysed, many are failing for anabolic steroids inc Testosterone using a new test and latest equipment available to ITA that labs didn't have in 2012.

[fmk_RoI]

For UKAD, they might need to re-analyse samples of any named athletes who received Testogel I assume, so might be concerned in that regard SoL removes some freedom.

Once again The Boy Who Cried 'I Ain't Afraid Of No Wolf, Cause There Ain't One' tries to switch discussion of Freeman's potential ADRV to something no one is yet contemplating seriously, a rider being sanctioned.

[samhocking]

Not really, the 'for an athlete' allegation to GMC & UKAD is real and part of Freeman's tribunal too. I'm sure GMC didn't make it up off of what UKAD handed to them. Given London 2012 samples are now being retested by ITA and coming back positive for Testosterone in alarming quantities, I'm sure re-testing of any athletes samples via their name that might come back to them is a real possibility. Or, rather, it might not be possible, given SoL applies to sample re-testing and so they must re-test the samples on newer equipment and analysis before they're out of time if MPTS delay too much longer.

[Robert5091]

"So why is someone trying to convince the media reporting the MPTS hearings that there is a degree of urgency here?"

Someone has not done their homework, or the newspaper's editors want some action/an interesting angle/justification to have a reporter in Manchester?