Teams & Riders Froome Talk Only

[fmk_RoI]

Re: Re:

Regardless, the Boonen example is a poor one, it was over ten years ago.

Here's a question for you people: if June 2009 to April 2018 is less than nine years, why would anyone believe anything uttered by someone who claims with such confidence and conviction that it's actually more than ten years? Is it the case that you simply believe what you want to believe around here? Is it simply a case that you really, really, really want there to be some way of stopping Froome from riding the Tour and so you're willing to tell reality it can go and hang while you live in a fantasy world of magic math and imagined rule infringements? Cause that's what it looks like.

 

[Alpe73]

Re:

so let me get this straight

You dont understand the difference between Froome's case - where he has tested positive and has an open case of doping waiting to be heard ... and Contador's case where he had been through his case, won and cleared his name and was free to ride but for which one side had appealed the decision.

And you dont see how having an open, unheard doping offense against the highest ranked rider might damage the reputation of a race?

but your not trolling. right.

I'm out.

Salient bit of data you're rushing through the station, A.G.

 

[Summoned]

Re: Re:

Been though this? You were the one asking FMK with your "how many precedents are there of riders challenging organisers at CAS over the right to ride?" but now saying you hate that barrack-room lawyers favourite legal term?

I really don't have a clue what you are asking or wanting to discuss or in what way, especially if you have already had the question answered before and have 'been through all this'! I'm out, it's like talking to my toddler i'm afraid.

You're really going to have to stop this samhocking, it's passed tiresome: rather than relying on your memory try reading back and reminding yourself on exactly where the precedent question came from.

OK, so your link here is to a post saying there has been two months of discussion of what the process to refuse a rider starting a race looks like. Which is fine, it has come up here and there, but I don't remember much, if any discussion, of Valverde in that. Presumably you are referring to Valverde starting the 2007 Worlds RR championship?

If I am misunderstanding your reference, I apologize. But if I am correct in what you are referring to, three thoughts come to mind immediately. First, that was not the ASO trying to prevent Valverde starting a race. Second, Valverde had the support of the Spanish federation during that process. Third, and to some extent this flows from the second point, the process as a whole was much different at that time, especially so given what was to come with Contador and Armstrong as examples of bringing the sport into disrepute.

Again, it is quite possible that I am misunderstanding what you are referring to, and if so, I am very sorry. But if that is the case, it is also quite possible that you have not been quite as clear as you might have been about the Valverde case's relevance to what is going on with Froome now.

Try focusing on the points of law made clear in the judgement...

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

 

[thehog]

Re: Re:

What’s even more absurd is there is simply no precedent in sports arbitration, there’s not even an official record of decisions that could be referred to for precedent. Sports lawyers will refer to previous decisions but for the most part there is no public record to why a specific decision was made and a judge has requirement to follow previous decisions.

It's funny, it's you and WP seem determined to bring the issue of precedent into this. Why do you think that might be? As for there being no official record of decision? Say the **** what? Seriously, say the **** what? CAS publishes, IIRC the stat, something like 30% of its judgements. And one of those published judgements is the Valverde case.

So, once again, here we have TheHog stating something that is blatantly, patently untrue. Why does that keep happening? And why the hell don't we have some sort of rule against the blatant telling of such porkies?

I honestly think you have a trouble reading. You’re so caught up in trying to be right you don’t actually read anyone’s post.

There is no doctrine of precedent in sports law, none. Unless it reaches the actual court system precedent does not exist. A case can be referred but no judge is required to follow the decisions before it. It’s really simple and has been discussed in great detail in many law publication due to the lack of consistency in publication.

The need for predictability requires not only awards to be published, but also to be promptly published after they are rendered. The potential disputing parties might have an interest in having previous awards available quickly. In this regard the above-mentioned role of precedents in CAS jurisprudence plays again a significant role. It has been noticed how some decisions are based on solutions adopted in previous awards that have not yet been published.[17] Having the award readily at disposal is necessary for the parties’ legal argumentation. This way the party’s counsel can, respectively, either use the award as a valid leg to bolster her arguments or criticise the position recently adopted by a panel on the same issue.[18] Additionally, a more systematic publication of recent awards online would significantly contribute to increase the level of transparency at the CAS, as the web represents a great opportunity for the public in terms of speed and accessibility. On the CAS website it is possible to find a section specifically dedicated to ‘recent decisions’. This section, though, does not seem to be organised as systematically as it could be. The CAS’ policy regarding the recent decision section of its website is extremely confusing. It includes some awards from 2016 and 2015, but not all the awards from these years available in the CAS database, as well as older awards from 2012 and 2011, which can hardly count as ‘recent decisions’. Apart from the consideration that “these awards disappear from the website after a few weeks and it is not possible to find them anymore”[19], a more systematic publication of the recent awards would be desirable. A valid model to follow has been identified in the websites of the Italian Camera di conciliazione e di arbitrato per lo sport (CCAS) and the Canadian Centre for Ethics in Sports (CCES), where the decisions taken are systematically published without excessive delay.

 

[thehog]

Re: Re:

Regardless, the Boonen example is a poor one, it was over ten years ago.

Here's a question for you people: if June 2009 to April 2018 is less than nine years, why would anyone believe anything uttered by someone who claims with such confidence and conviction that it's actually more than ten years? Is it the case that you simply believe what you want to believe around here? Is it simply a case that you really, really, really want there to be some way of stopping Froome from riding the Tour and so you're willing to tell reality it can go and hang while you live in a fantasy world of magic math and imagined rule infringements? Cause that's what it looks like.

Dude, no lawyer is going to refer to a ‘cocaine abuse’ case as their method to get their client off from Salbutamol. Think about it. You think Morgan is going to use the Boonen inclusion case as his road to victory?

 

[veganrob]

Re: Re:

so let me get this straight

You dont understand the difference between Froome's case - where he has tested positive and has an open case of doping waiting to be heard ... and Contador's case where he had been through his case, won and cleared his name and was free to ride but for which one side had appealed the decision.

And you dont see how having an open, unheard doping offense against the highest ranked rider might damage the reputation of a race?

but your not trolling. right.

I'm out.

I am unsure whether you a lawyer or not - Though if you are a lawyer, then I'm surprised at your attitude - The only reason Froome is bringing the sport into disrepute ( at the moment ) is because the Froome case was leaked to the media - It should have remained confidential until Froome is sanctioned - I believe the UCI is causing any disrepute.

Your point is irrelevant. The leak happened. Why do doyu bring that up? It has no bearing on the case at all

 

[fmk_RoI]

Re: Re:

I honestly think you have a trouble reading. You’re so caught up in trying to be right you don’t actually read anyone’s post.

That'd be totes hilarious ... if your chum Wiggo's Package hadn't introduced the issue of precedent and I hadn't then wasted five minutes explaining to him why that was a dumb idea:

many people IMHO, have not got a clue what they mean when they use the word precedent. Which means that those who may use it correctly are still being misunderstood by those who do not understand it. And the fact is, there's good reason for confusion.

Let's start with something basic: I have only ever referred to case law when discussing the disrepute clause but a few weeks back one poster here got the hump and harrumphed that there is no such thing as precedent at CAS. Because I am fully aware of how often people get it **** over tit, I had no interest in debating the matter and getting into the finer points of yes but no on it. But, as we're now playing that game, here is CAS's position on precedent:

Arbitral awards are normally binding only in the cases and on the parties to which they are addressed. Unlike judicial decisions in common-law systems, arbitral awards therefore have no currency as stare decisis. At the most, they may sometimes constitute a lex specialis.

In practice, however, the awards and opinions of the CAS provide guidance in later cases, strongly influence later awards, and often function as precedent. Also, by reinforcing and helping elaborate established rules and principles of international sports law, the accretion of CAS awards and opinions is gradually forming a source of that body of law. This source has been called the lex sportiva.

So, as far as CAS is concerned, I think it would be helpful if we left words like precedent in the barracks and were clear about what we want to know and what we are actually saying. That way we won't have to keep going back to first principles and boring everyone to tears explaining that while precedent doesn't work at CAS actually it does.

Maybe you don't remember reading that. Maybe you didn't understand that. Or maybe you read it and understood but are happy to pretend it didn't happen in order to derail the topic with a tedious non-issue.

Dude, no lawyer is going to refer to a ‘cocaine abuse’ case as their method to get their client off from Salbutamol. Think about it. You think Morgan is going to use the Boonen inclusion case as his road to victory?

Again, I don't know if you didn't read what I wrote, didn't understand what I wrote or are just ignoring it, but for the record, here's why I think the Boonen and Astana cases are important:

The Astana and Boonen decisions are important for showing that you can't just scream disrepute, which is what several posters early on in this debate believed was all that was required. Both cases are important in confirming there is an agreed appeals procedure, which for the Tour is the Chambre, not CAS. The Boonen case is particularly important in showing that the civil courts will tend to stay out of this area of law, so the threat of a civil action is nonsense. The Boonen case is also important in showing that that team can make the appeal and we don't have to waste time debating whether - as one eminent legal expert recently suggested - Froome has a contractual relationship with ASO. There could be more in both cases but since the Chambre does not publish its decisions, we don't know for sure exactly how the decisions were made.

You will note that nowhere in that do I suggest an equivalence between an OOC AAF for coke that can never turn into an ADRV and an IC AAF for Salbutamol that might. But if you want to pretend to others that that is what I said, go for it. Lies and misrepresentation are just about the only things you can do.

 

[fmk_RoI]

Re: Re:

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

Start with the basic, universal principles: no punishment without a crime (nulla poena sine culpa) and the right to be heard.

I have no doubt that there will be some here will insist they don't hold in the Froome case because Valverde's favourite colour is purple and Froome's favourite colour is pink and so the two don't compare...

 

[Merckx index]

Re: Re:

so let me get this straight

You dont understand the difference between Froome's case - where he has tested positive and has an open case of doping waiting to be heard ... and Contador's case where he had been through his case, won and cleared his name and was free to ride but for which one side had appealed the decision.

well, that's a lie

the data shows a noteworthy increase in the number of AAFs – more commonly known as positive tests

https://www.wada-ama.org/sites/default/files/resources/files/2016_anti-doping_testing_figures.pdf

an AAF only indicates a positive doping test

.

While an anti-doping rule violation (ADRV) most often occurs as the result of a WADA laboratory reporting to USADA an adverse analytical finding (AAF), i.e., a positive test

an Adverse Analytical Finding ( AAF), also called positive test

 

[Alpe73]

Re: Re:

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

I've seen that one before, there is no English-language version or translation of that ruling, so here we go:

TAS 2007/O/1381 Real Federación Española de Ciclismo (RFEC) & Alejandro Valverde c. Union Cycliste Internationale ( UCI) , sentence du 26 septembre 2007 Formation: Mr Quentin Byrne - Sutton (Suisse), arbitre unique - Cyclisme - Dopage (suspicion) - Décision de la FI d'interdire à un coureur de participer à une compétition - Nature d'une mesure d'exclusion d'une compétition imposée à l'avance sur la base de soupçons de dopage - Principes généraux s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse - Disposition réglementaire violant le principe «nulla poena sine culpa», le principe de l'égalité de traitement ainsi que le droit d'être entendu.

Cycling - Suspicion of doping - Federation decision to prohibit a rider from competing - Nature of a motion to exclude an athlete from competition, imposed in advance, on the basis of suspicion of doping - General principles applying to disciplinary sanctions taken by a sports federation under Swiss law - Regulatory provision violating the principle "nulla poena sine culpa", the principle of equal treatment, and of the right to be heard

1. Dans la typologie des mesures adoptées par les fédérations sportives, la mesure consistant à exclure par avance un athlète d'une compétition en raison d'un soupçon de violation des règles antidopage constitue une véritable sanction disciplinaire infligée à l'athlète.

Among measures of the type adopted by sports federations, the measure of excluding an athlete from a competition in advance, because of suspicion of a violation of antidoping rules, constitutes a real disciplinary sanction imposed on the athlete.

2. Les droits de protection s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse comprennent les droits et les principes suivants: le principe de la légalité, le respect de l'ordre public et des bonnes mœurs, l'interdiction de l'arbitraire, les droits de la personnalité, le principe de l'égalité de traitement, le principe de la proportionnalité des mesures, le droit d'être entendu et le principe “ nulla poena sine culpa ”

Protective rights applying to disciplinary sanctions taken by a sports federation, under Swiss law, include the following rights and principles: the principle of legality, respect for public order and good morals, to forbid arbitrary decisions, to uphold personal rights, the principle of equal treatment, the principle of proportionality of measures, the right to be heard, and the principle "nulla poena sine culpa".

3. Une disposition réglementaire qui permet d'exclure d'avance et définitivement un athlète d'une compétit ion sur la base d'une simple suspicion, à l'unique condition qu'une instruction ait été ouverte contre cet athlète et sans que ce dernier n'ait été entendu, viole le principe “nulla poena sine culpa” et le principe de l'égalité de traitement ainsi que le d roit d'être entendu. En outre, la mesure d'exclusion prise en application de cette disposition viole le principe de proportionnalité.

A regulatory provision which permits definite exclusion of an athlete from competition, in advance, on the basis of mere suspicion, on the sole condition that a procedure has been opened against that athlete, and without the former having been heard, violates the principle of "nulla poena sine culpa" and the principle of equal treatment, as well as the right to be heard. Additionally, the exclusionary measure taken through the application of such a provision violates the principle of proportionality.

So Valverde got around the exclusion from a race, because it was found that under his circumstances, such a decision was contrary to Swiss law.

Some of the current judges for the UCI Anti-Doping Tribunal (the procedure Froome is being judged in now) cited the Valverde case in the references for their legal journal articles or law textbooks. So that precedent is well-known and perhaps part of ASO reluctance to make a statement on Froome starting this years TdF

Thanks for that, CL.

 

[thehog]

Re: Re:

What’s even more absurd is there is simply no precedent in sports arbitration, there’s not even an official record of decisions that could be referred to for precedent. Sports lawyers will refer to previous decisions but for the most part there is no public record to why a specific decision was made and a judge has requirement to follow previous decisions.

It's funny, it's you and WP seem determined to bring the issue of precedent into this. Why do you think that might be? As for there being no official record of decision? Say the **** what? Seriously, say the **** what? CAS publishes, IIRC the stat, something like 30% of its judgements. And one of those published judgements is the Valverde case.

So, once again, here we have TheHog stating something that is blatantly, patently untrue. Why does that keep happening? And why the hell don't we have some sort of rule against the blatant telling of such porkies?

Lol, you’re reaching, Morgan might refer to the Lizzie A judgment if he could find it

It’s without doubt Morgan is not going to use a Cocaine abuse case in out of competition test as his precedent for Froome, pure and simple.

But hey let’s wait and see how right you are? :lol:

 

[fmk_RoI]

Re: Re:

It’s without doubt Morgan is not going to use a Cocaine abuse case in out of competition test as his precedent for Froome, pure and simple.

O. My. God. You know, you might get a hall pass on not remembering or misremembering things I say, but when you're contradicting yourself? WTAF? How could Morgan use a cocaine abuse case in out of competition test as his precedent for Froome if - as you insist so often and so loudly - there is no such thing as precedent? Seriously, how? Are we living in alternate realities now?

 

[fmk_RoI]

Re: Re:

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

I've seen that one before, there is no English-language version or translation of that ruling, so here we go:

TAS 2007/O/1381 Real Federación Española de Ciclismo (RFEC) & Alejandro Valverde c. Union Cycliste Internationale ( UCI) , sentence du 26 septembre 2007 Formation: Mr Quentin Byrne - Sutton (Suisse), arbitre unique - Cyclisme - Dopage (suspicion) - Décision de la FI d'interdire à un coureur de participer à une compétition - Nature d'une mesure d'exclusion d'une compétition imposée à l'avance sur la base de soupçons de dopage - Principes généraux s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse - Disposition réglementaire violant le principe «nulla poena sine culpa», le principe de l'égalité de traitement ainsi que le droit d'être entendu.

Cycling - Suspicion of doping - Federation decision to prohibit a rider from competing - Nature of a motion to exclude an athlete from competition, imposed in advance, on the basis of suspicion of doping - General principles applying to disciplinary sanctions taken by a sports federation under Swiss law - Regulatory provision violating the principle "nulla poena sine culpa", the principle of equal treatment, and of the right to be heard

1. Dans la typologie des mesures adoptées par les fédérations sportives, la mesure consistant à exclure par avance un athlète d'une compétition en raison d'un soupçon de violation des règles antidopage constitue une véritable sanction disciplinaire infligée à l'athlète.

Among measures of the type adopted by sports federations, the measure of excluding an athlete from a competition in advance, because of suspicion of a violation of antidoping rules, constitutes a real disciplinary sanction imposed on the athlete.

2. Les droits de protection s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse comprennent les droits et les principes suivants: le principe de la légalité, le respect de l'ordre public et des bonnes mœurs, l'interdiction de l'arbitraire, les droits de la personnalité, le principe de l'égalité de traitement, le principe de la proportionnalité des mesures, le droit d'être entendu et le principe “ nulla poena sine culpa ”

Protective rights applying to disciplinary sanctions taken by a sports federation, under Swiss law, include the following rights and principles: the principle of legality, respect for public order and good morals, to forbid arbitrary decisions, to uphold personal rights, the principle of equal treatment, the principle of proportionality of measures, the right to be heard, and the principle "nulla poena sine culpa".

3. Une disposition réglementaire qui permet d'exclure d'avance et définitivement un athlète d'une compétit ion sur la base d'une simple suspicion, à l'unique condition qu'une instruction ait été ouverte contre cet athlète et sans que ce dernier n'ait été entendu, viole le principe “nulla poena sine culpa” et le principe de l'égalité de traitement ainsi que le d roit d'être entendu. En outre, la mesure d'exclusion prise en application de cette disposition viole le principe de proportionnalité.

A regulatory provision which permits definite exclusion of an athlete from competition, in advance, on the basis of mere suspicion, on the sole condition that a procedure has been opened against that athlete, and without the former having been heard, violates the principle of "nulla poena sine culpa" and the principle of equal treatment, as well as the right to be heard. Additionally, the exclusionary measure taken through the application of such a provision violates the principle of proportionality.

So Valverde got around the exclusion from a race, because it was found that under his circumstances, such a decision was contrary to Swiss law.

Some of the current judges for the UCI Anti-Doping Tribunal (the procedure Froome is being judged in now) cited the Valverde case in the references for their legal journal articles or law textbooks. So that precedent is well-known and perhaps part of ASO reluctance to make a statement on Froome starting this years TdF

Thank you for summarising it like that.

 

[Summoned]

Re: Re:

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

I've seen that one before, there is no English-language version or translation of that ruling, so here we go:

TAS 2007/O/1381 Real Federación Española de Ciclismo (RFEC) & Alejandro Valverde c. Union Cycliste Internationale ( UCI) , sentence du 26 septembre 2007 Formation: Mr Quentin Byrne - Sutton (Suisse), arbitre unique - Cyclisme - Dopage (suspicion) - Décision de la FI d'interdire à un coureur de participer à une compétition - Nature d'une mesure d'exclusion d'une compétition imposée à l'avance sur la base de soupçons de dopage - Principes généraux s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse - Disposition réglementaire violant le principe «nulla poena sine culpa», le principe de l'égalité de traitement ainsi que le droit d'être entendu.

Cycling - Suspicion of doping - Federation decision to prohibit a rider from competing - Nature of a motion to exclude an athlete from competition, imposed in advance, on the basis of suspicion of doping - General principles applying to disciplinary sanctions taken by a sports federation under Swiss law - Regulatory provision violating the principle "nulla poena sine culpa", the principle of equal treatment, and of the right to be heard

1. Dans la typologie des mesures adoptées par les fédérations sportives, la mesure consistant à exclure par avance un athlète d'une compétition en raison d'un soupçon de violation des règles antidopage constitue une véritable sanction disciplinaire infligée à l'athlète.

Among measures of the type adopted by sports federations, the measure of excluding an athlete from a competition in advance, because of suspicion of a violation of antidoping rules, constitutes a real disciplinary sanction imposed on the athlete.

2. Les droits de protection s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse comprennent les droits et les principes suivants: le principe de la légalité, le respect de l'ordre public et des bonnes mœurs, l'interdiction de l'arbitraire, les droits de la personnalité, le principe de l'égalité de traitement, le principe de la proportionnalité des mesures, le droit d'être entendu et le principe “ nulla poena sine culpa ”

Protective rights applying to disciplinary sanctions taken by a sports federation, under Swiss law, include the following rights and principles: the principle of legality, respect for public order and good morals, to forbid arbitrary decisions, to uphold personal rights, the principle of equal treatment, the principle of proportionality of measures, the right to be heard, and the principle "nulla poena sine culpa".

3. Une disposition réglementaire qui permet d'exclure d'avance et définitivement un athlète d'une compétit ion sur la base d'une simple suspicion, à l'unique condition qu'une instruction ait été ouverte contre cet athlète et sans que ce dernier n'ait été entendu, viole le principe “nulla poena sine culpa” et le principe de l'égalité de traitement ainsi que le d roit d'être entendu. En outre, la mesure d'exclusion prise en application de cette disposition viole le principe de proportionnalité.

A regulatory provision which permits definite exclusion of an athlete from competition, in advance, on the basis of mere suspicion, on the sole condition that a procedure has been opened against that athlete, and without the former having been heard, violates the principle of "nulla poena sine culpa" and the principle of equal treatment, as well as the right to be heard. Additionally, the exclusionary measure taken through the application of such a provision violates the principle of proportionality.

So Valverde got around the exclusion from a race, because it was found that under his circumstances, such a decision was contrary to Swiss law.

Some of the current judges for the UCI Anti-Doping Tribunal (the procedure Froome is being judged in now) cited the Valverde case in the references for their legal journal articles or law textbooks. So that precedent is well-known and perhaps part of ASO reluctance to make a statement on Froome starting this years TdF

Thank you very much!

 

[Wiggo's Package]

Re: Re:

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

I've seen that one before, there is no English-language version or translation of that ruling, so here we go:

TAS 2007/O/1381 Real Federación Española de Ciclismo (RFEC) & Alejandro Valverde c. Union Cycliste Internationale ( UCI) , sentence du 26 septembre 2007 Formation: Mr Quentin Byrne - Sutton (Suisse), arbitre unique - Cyclisme - Dopage (suspicion) - Décision de la FI d'interdire à un coureur de participer à une compétition - Nature d'une mesure d'exclusion d'une compétition imposée à l'avance sur la base de soupçons de dopage - Principes généraux s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse - Disposition réglementaire violant le principe «nulla poena sine culpa», le principe de l'égalité de traitement ainsi que le droit d'être entendu.

Cycling - Suspicion of doping - Federation decision to prohibit a rider from competing - Nature of a motion to exclude an athlete from competition, imposed in advance, on the basis of suspicion of doping - General principles applying to disciplinary sanctions taken by a sports federation under Swiss law - Regulatory provision violating the principle "nulla poena sine culpa", the principle of equal treatment, and of the right to be heard

1. Dans la typologie des mesures adoptées par les fédérations sportives, la mesure consistant à exclure par avance un athlète d'une compétition en raison d'un soupçon de violation des règles antidopage constitue une véritable sanction disciplinaire infligée à l'athlète.

Among measures of the type adopted by sports federations, the measure of excluding an athlete from a competition in advance, because of suspicion of a violation of antidoping rules, constitutes a real disciplinary sanction imposed on the athlete.

2. Les droits de protection s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse comprennent les droits et les principes suivants: le principe de la légalité, le respect de l'ordre public et des bonnes mœurs, l'interdiction de l'arbitraire, les droits de la personnalité, le principe de l'égalité de traitement, le principe de la proportionnalité des mesures, le droit d'être entendu et le principe “ nulla poena sine culpa ”

Protective rights applying to disciplinary sanctions taken by a sports federation, under Swiss law, include the following rights and principles: the principle of legality, respect for public order and good morals, to forbid arbitrary decisions, to uphold personal rights, the principle of equal treatment, the principle of proportionality of measures, the right to be heard, and the principle "nulla poena sine culpa".

3. Une disposition réglementaire qui permet d'exclure d'avance et définitivement un athlète d'une compétit ion sur la base d'une simple suspicion, à l'unique condition qu'une instruction ait été ouverte contre cet athlète et sans que ce dernier n'ait été entendu, viole le principe “nulla poena sine culpa” et le principe de l'égalité de traitement ainsi que le d roit d'être entendu. En outre, la mesure d'exclusion prise en application de cette disposition viole le principe de proportionnalité.

A regulatory provision which permits definite exclusion of an athlete from competition, in advance, on the basis of mere suspicion, on the sole condition that a procedure has been opened against that athlete, and without the former having been heard, violates the principle of "nulla poena sine culpa" and the principle of equal treatment, as well as the right to be heard. Additionally, the exclusionary measure taken through the application of such a provision violates the principle of proportionality.

So Valverde got around the exclusion from a race, because it was found that under his circumstances, such a decision was contrary to Swiss law.

Some of the current judges for the UCI Anti-Doping Tribunal (the procedure Froome is being judged in now) cited the Valverde case in the references for their legal journal articles or law textbooks. So that precedent is well-known and perhaps part of ASO reluctance to make a statement on Froome starting this years TdF

Thanks, good of you to take the time to do that

 

[yaco]

Re: Re:

so let me get this straight

You dont understand the difference between Froome's case - where he has tested positive and has an open case of doping waiting to be heard ... and Contador's case where he had been through his case, won and cleared his name and was free to ride but for which one side had appealed the decision.

And you dont see how having an open, unheard doping offense against the highest ranked rider might damage the reputation of a race?

but your not trolling. right.

I'm out.

I am unsure whether you a lawyer or not - Though if you are a lawyer, then I'm surprised at your attitude - The only reason Froome is bringing the sport into disrepute ( at the moment ) is because the Froome case was leaked to the media - It should have remained confidential until Froome is sanctioned - I believe the UCI is causing any disrepute.

Your point is irrelevant. The leak happened. Why do doyu bring that up? It has no bearing on the case at all

Wow - You are a part of society (and a growing one ) which have no respect for the provisions of confidentiality within the Anti-Doping Code - It's truly sad.

 

[veganrob]

Re: Re:

so let me get this straight

You dont understand the difference between Froome's case - where he has tested positive and has an open case of doping waiting to be heard ... and Contador's case where he had been through his case, won and cleared his name and was free to ride but for which one side had appealed the decision.

And you dont see how having an open, unheard doping offense against the highest ranked rider might damage the reputation of a race?

but your not trolling. right.

I'm out.

I am unsure whether you a lawyer or not - Though if you are a lawyer, then I'm surprised at your attitude - The only reason Froome is bringing the sport into disrepute ( at the moment ) is because the Froome case was leaked to the media - It should have remained confidential until Froome is sanctioned - I believe the UCI is causing any disrepute.

Your point is irrelevant. The leak happened. Why do doyu bring that up? It has no bearing on the case at all

Wow - You are a part of society (and a growing one ) which have no respect for the provisions of confidentiality within the Anti-Doping Code - It's truly sad.

As it relates to this case it has no bearing. Whatever you or I or anybody think about privacy means nothing to the outcome

 

[Merckx index]

Re: Re:

Wow - You are a part of society (and a growing one ) which have no respect for the provisions of confidentiality within the Anti-Doping Code - It's truly sad.

You're half-way there. Now ask why so many people have lost this respect for confidentiality following any positive test.

Maybe if WADA would at least publish data on how many AAFs for salbutamol do not become ADRVs, we might see that there is a point to confidentiality.

 

[Alpe73]

Re: Re:

Wow - You are a part of society (and a growing one ) which have no respect for the provisions of confidentiality within the Anti-Doping Code - It's truly sad.

You're half-way there. Now ask why so many people have lost this respect for confidentiality following any positive test.

Maybe if WADA would at least publish data on how many AAFs for salbutamol do not become ADRVs, we might see that there is a point to confidentiality.

UCI’s main mandate is to partner with mass media in developing, promoting and sustaining professional cycling as a spectator sport ... for the entertainment value of said (non-paying) spectators. There is a lot of money involved and the venture generates even more money in a myriad of ways from employment income to tourism dollars, etc., etc.

WADA’s main mandate is to monitor and regulate the partipation of athletes and teams within this entertainment, business venture in relation to prohibited methods of performance enhancement. This is a mass undertaking. Many variables to coordinate and balance.

One of the key issues to be considered in all this ... is the protection of the negotiated rights of the worker(s) (aka the rider or the team ... vis a vis their interactions with UCI/WADA. One of those rights is a particular privacy 'package.' It’s nothing more than a reasonable expectation of contracted employment.

The rights that a non-paying spectator should have in terms of being able to breach such privacy elements .... has been considered by various branches of the UCI/WADA, including legal and marketing branches, I’m sure. It appears ... that the general consensus of these branches is that the essential privacy of riders and teams can be maintained without significant, deleterious effect upon spectatorship.

 

[Koronin]

Re: Re:

OK, looking through the CAS database, the relevant case appears to be this one - http://jurisprudence.tas-cas.org/Shared%20Documents/1381.pdf. I am only able to view this in French, so I may not be looking at the correct case, and as I am not able to read French, am not able to understand the points of law made in the judgment if this is the correct case. Would you be able to confirm this is the correct judgment, and, perhaps, able to comment on points of law are germane to the Froome issue?

I've seen that one before, there is no English-language version or translation of that ruling, so here we go:

TAS 2007/O/1381 Real Federación Española de Ciclismo (RFEC) & Alejandro Valverde c. Union Cycliste Internationale ( UCI) , sentence du 26 septembre 2007 Formation: Mr Quentin Byrne - Sutton (Suisse), arbitre unique - Cyclisme - Dopage (suspicion) - Décision de la FI d'interdire à un coureur de participer à une compétition - Nature d'une mesure d'exclusion d'une compétition imposée à l'avance sur la base de soupçons de dopage - Principes généraux s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse - Disposition réglementaire violant le principe «nulla poena sine culpa», le principe de l'égalité de traitement ainsi que le droit d'être entendu.

Cycling - Suspicion of doping - Federation decision to prohibit a rider from competing - Nature of a motion to exclude an athlete from competition, imposed in advance, on the basis of suspicion of doping - General principles applying to disciplinary sanctions taken by a sports federation under Swiss law - Regulatory provision violating the principle "nulla poena sine culpa", the principle of equal treatment, and of the right to be heard

1. Dans la typologie des mesures adoptées par les fédérations sportives, la mesure consistant à exclure par avance un athlète d'une compétition en raison d'un soupçon de violation des règles antidopage constitue une véritable sanction disciplinaire infligée à l'athlète.

Among measures of the type adopted by sports federations, the measure of excluding an athlete from a competition in advance, because of suspicion of a violation of antidoping rules, constitutes a real disciplinary sanction imposed on the athlete.

2. Les droits de protection s'appliquant aux sanctions disciplinaires prises par une fédération sportive de droit suisse comprennent les droits et les principes suivants: le principe de la légalité, le respect de l'ordre public et des bonnes mœurs, l'interdiction de l'arbitraire, les droits de la personnalité, le principe de l'égalité de traitement, le principe de la proportionnalité des mesures, le droit d'être entendu et le principe “ nulla poena sine culpa ”

Protective rights applying to disciplinary sanctions taken by a sports federation, under Swiss law, include the following rights and principles: the principle of legality, respect for public order and good morals, to forbid arbitrary decisions, to uphold personal rights, the principle of equal treatment, the principle of proportionality of measures, the right to be heard, and the principle "nulla poena sine culpa".

3. Une disposition réglementaire qui permet d'exclure d'avance et définitivement un athlète d'une compétit ion sur la base d'une simple suspicion, à l'unique condition qu'une instruction ait été ouverte contre cet athlète et sans que ce dernier n'ait été entendu, viole le principe “nulla poena sine culpa” et le principe de l'égalité de traitement ainsi que le d roit d'être entendu. En outre, la mesure d'exclusion prise en application de cette disposition viole le principe de proportionnalité.

A regulatory provision which permits definite exclusion of an athlete from competition, in advance, on the basis of mere suspicion, on the sole condition that a procedure has been opened against that athlete, and without the former having been heard, violates the principle of "nulla poena sine culpa" and the principle of equal treatment, as well as the right to be heard. Additionally, the exclusionary measure taken through the application of such a provision violates the principle of proportionality.

So Valverde got around the exclusion from a race, because it was found that under his circumstances, such a decision was contrary to Swiss law.

Some of the current judges for the UCI Anti-Doping Tribunal (the procedure Froome is being judged in now) cited the Valverde case in the references for their legal journal articles or law textbooks. So that precedent is well-known and perhaps part of ASO reluctance to make a statement on Froome starting this years TdF

Thank you for taking the time to give us a translation in an easy to read/understand summary.

 

[Merckx index]

Re: Re:

One of the key issues to be considered in all this ... is the protection of the negotiated rights of the worker(s) (aka the rider or the team ... vis a vis their interactions with UCI/WADA. One of those rights is a particular privacy 'package.' It’s nothing more than a reasonable expectation of contracted employment.

The rights that a non-paying spectator should have in terms of being able to breach such privacy elements .... has been considered by various branches of the UCI, including legal and marketing branches, I’m sure. It appears ... that the general consensus of these branches is that the essential privacy of riders and teams can be maintained without significant, deleterious effect upon spectatorship.

Do you think that riders who test positive for a non-specified substance, such as EPO, should also have privacy rights? Are their rights being infringed upon by the policy of making such positives public?

If so, you're welcome to explain why you feel this way, but the rules say:

As a matter of principle, and whilst not required by the World Anti-Doping Code, the UCI systematically reports potential anti-doping rule violations via its website when a mandatory provisional suspension applies. Pursuant to Article 7.9.1. of the UCI Anti-Doping Rules, the presence of a Specified Substance such as salbutamol in a sample does not result in the imposition of such mandatory provisional suspension against the rider.”

http://www.uci.ch/pressreleases/uci-statement-christopher-froome/

if you accept this, the question becomes, why should specified substances like salbutamol be treated differently? UCI's rule that says a rider testing positive for a specified substance does not have to be suspended is based on WADA's distinction between specified and non-specified substances:

The purpose of the sub-classifications of “Specified” or “Non-Specified” on the Prohibited List is to recognize that it is possible for a substance to enter an athlete’s body inadvertently

https://www.wada-ama.org/en/questions-answers/prohibited-list-qa#item-387

In other words, there is a greater probability that an AAF for a specified substance will not result in an ADRV than is the case for an AAF for a non-specified substance. But WADA publishes no data to support this. When someone makes a claim that can be evaluated based on data that they have, publication of which would not infringe on anyone's rights, yet refuse to share those data, then, yes, i begin to lose respect.

Legal matters usually boil down to weighing competing interests. A rider who tests positive has an interest in this fact not being made public until he's officially ruled to have an ADRV. An organizer has an interest in not being blind-sided by a rider's ADRV being announced with no warning during or after the rider participated in that organizer's race. Who we side with is to a significant extent a subjective judgment, but information that is definitely relevant to that judgement is the probability that an AAF will become ADRV.

To take an extreme case, if 99% of salbutamol positives were exonerated, most reasonable people would side with the rider, and say he has a right to confidentiality. If 99% of the positives ended in a sanction, most reasonable people would side with the organizers, and say they have a right to know about the positive (and in fact, this is basically why AAFs for non-specified substances are made public). Obviously, the actual situation lies somewhere in the middle, but where? We don't know, but WADA knows, or could know.

And btw...Clenbuterol is a non-specified substance, Contador had to be suspended by the rules, yet based on the data that are public, probably a far higher % of CB AAFs are exonerated than salbutamol AAFs.

And since some are comparing Contador's treatment with Froome's, keep in mind that Froome would have to be exonerated by the Tribunal just to be in same position Contador was in when he rode the Giro and Tour. Froome has not even reached that point yet, and the odds are he won't.

 

[Alpe73]

Re: Re:

One of the key issues to be considered in all this ... is the protection of the negotiated rights of the worker(s) (aka the rider or the team ... vis a vis their interactions with UCI/WADA. One of those rights is a particular privacy 'package.' It’s nothing more than a reasonable expectation of contracted employment.

The rights that a non-paying spectator should have in terms of being able to breach such privacy elements .... has been considered by various branches of the UCI, including legal and marketing branches, I’m sure. It appears ... that the general consensus of these branches is that the essential privacy of riders and teams can be maintained without significant, deleterious effect upon spectatorship.

Do you think that riders who test positive for a non-specified substance, such as EPO, should also have privacy rights? Are their rights being infringed upon by the policy of making such positives public?

If so, you're welcome to explain why you feel this way, but the rules say:

As a matter of principle, and whilst not required by the World Anti-Doping Code, the UCI systematically reports potential anti-doping rule violations via its website when a mandatory provisional suspension applies. Pursuant to Article 7.9.1. of the UCI Anti-Doping Rules, the presence of a Specified Substance such as salbutamol in a sample does not result in the imposition of such mandatory provisional suspension against the rider.”

http://www.uci.ch/pressreleases/uci-statement-christopher-froome/

if you accept this, the question becomes, why should specified substances like salbutamol be treated differently? UCI's rule that says a rider testing positive for a specified substance does not have to be suspended is based on WADA's distinction between specified and non-specified substances:

The purpose of the sub-classifications of “Specified” or “Non-Specified” on the Prohibited List is to recognize that it is possible for a substance to enter an athlete’s body inadvertently

https://www.wada-ama.org/en/questions-answers/prohibited-list-qa#item-387

In other words, there is a greater probability that an AAF for a specified substance will not result in an ADRV than is the case for an AAF for a non-specified substance. But WADA publishes no data to support this. When someone makes a claim that can be evaluated based on data that they have, publication of which would not infringe on anyone's rights, yet refuse to share those data, then, yes, i begin to lose respect.

Legal matters usually boil down to weighing competing interests. A rider who tests positive has an interest in this fact not being made public until he's officially ruled to have an ADRV. An organizer has an interest in not being blind-sided by a rider's ADRV being announced with no warning during or after the rider participated in that organizer's race. Who we side with is to a significant extent a subjective judgment, but information that is definitely relevant to that judgement is the probability that an AAF will become ADRV.

To take an extreme case, if 99% of salbutamol positives were exonerated, most reasonable people would side with the rider, and say he has a right to confidentiality. If 99% of the positives ended in a sanction, most reasonable people would side with the organizers, and say they have a right to know about the positive (and in fact, this is basically why AAFs for non-specified substances are made public). Obviously, the actual situation lies somewhere in the middle, but where? We don't know, but WADA knows, or could know.

And btw...Clenbuterol is a non-specified substance, Contador had to be suspended by the rules, yet based on the data that are public, probably a far higher % of CB AAFs are exonerated than salbutamol AAFs.

And since some are comparing Contador's treatment with Froome's, keep in mind that Froome would have to be exonerated by the Tribunal just to be in same position Contador was in when he rode the Giro and Tour. Froome has not even reached that point yet, and the odds are he won't.

A difference of opinion, MI, nothing more.

I can enjoy this sport, as a non-paying spectator, not needing to know much. I am not a pro rider, not a team owner, sponsor, event organizer, etc. Bottom of the food chain. As I've said before, I am extremely grateful to all riders, even those that have doped, who have provided me with epic sports entertainment. I ask nothing more of them.

If you lose respect with WADA/UCI ... because you feel you don't get enough salient info on rider's cases, that's fine. There are differences amongst fans. No more or no less. You have the right to appeal to WADA/UCI to change their rules.

But riders are workers. They do have certain rights, as well ... and would be wise to protect them, vigorously.

 

[fmk_RoI]

Re: Re:

As it relates to this case it has no bearing. Whatever you or I or anybody think about privacy means nothing to the outcome

It does have a bearing but it can be hard to see. Froome's AAF, in and of itself, may not actually be causing disrepute: as Julie Harrington said, the leaking of it, the reporting of it, is causing disrepute. In the Valverde case, the panel noted that the UCI's attempts to ban the Spaniard, and others (Bettini), were causing more damage to the Stuttgart Worlds than the presence of Valverde and the other riders. How you separate the man from the media storm I don't know (to quote Yeats, "How can we know the dancer from the dance?") but it appears to be an important issue in disrepute cases. I think there would be a good chance - better than evens - that the Chambre, should the matter get there, would say that Froome is not responsible for the damaging media storm, the person who leaked, or authorised the leaking, of the story is.

 

[fmk_RoI]

Re: Re:

But riders are workers. They do have certain rights, as well ... and would be wise to protect them, vigorously.

This is what I think is important in the Valverde judgement, the way the panel fell back on basic, universal rights and held that they were more important than the the need to be seen to be doing something in the fight against doping.

 

[Merckx index]

Re: Re:

Froome's AAF, in and of itself, may not actually be causing disrepute: as Julie Harrington said, the leaking of it, the reporting of it, is causing disrepute.

By much the same logic, Contador’s entry into the TDF was not causing disrepute; it was the appeal of the decision by WADA/UCI that caused the disrepute.

But in any case, Harrington is apparently missing the fact that Froome could be sanctioned during the Giro, or after it in a way that his results are reversed. That has nothing to do with the media. On the contrary, the media are the only force that prevented this possibility from occurring without any advance warning.

But riders are workers. They do have certain rights, as well ... and would be wise to protect them, vigorously.

But organizers have rights, too. Like being able to offer someone money for entering a race knowing that if the rider might not be able to hold up his end of the bargain, he will notify them. I would have thought that was pretty basic.