Strict Liability in Doping

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martinvickers

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RobbieCanuck said:
martinvickers said:
Martin with respect the actus reus of performance enhancement is performance enhancement while cycling.

For example in Canada it is not illegal to drink alcohol and drive ( I will refrain from the usual Irish jokes at this point). If however you breach the threshold whereby the amount of alcohol you consume impairs your ability to have care or control of your vehicle you are guilty of an offence. The Supreme Court of Canada has said impairment to any degree is sufficient to prove the offence. In other words there is a strict liability standard if you are impaired to any degree. The prosecution still has to prove that impairment beyond a reasonable doubt.

The act of drinking with the intent of putting alcohol in your system is not the actus reus. It is the driving while impaired by alcohol i.e. above a threshold that is the actus reus

In cycling taking clen will not of and in itself enhance performance but above a threshold it will. So it is the act of cycling when the drug is in fact causing a performance enhancement that is the actus reus.

Cheers
With respect, that only shows the flaw in the thinking. Leaving aside the subjective quality of assessing impairment, you said yourself, it is not illegal in canada to drink alcohol and drive - so simply drinking and driving is never going to be the actus reus. It IS illegal, in sporting terms, to take clenbuterol and compete. The act alone IS the actus reus.

And given that taking a drink and then driving, while stupid can be done without ill intention, it doesn't match. You don't take performance enhancing drugs unless you intend to cheat. The ill intention is 'baked in', regardless of efficacy.


Moving then from what is, to what should be, Your argument seems to be that doping rules should come closer to Canadian drink driving law - with respect to you, a lot of people would suggest, quite forcibly, that Canadian drink driving law could do with coming a lot closer to doping rules. Because as it stands, it sounds suspiciously like a law that is literally waiting for an accident to happen.

Which translated to cycling feels rather like, you only dope if your caught winning and doping. I'm not minded to wait for race results to be corrupted, if they can be stopped in their tracks beforehand.
 
RobbieCanuck said:
BigChain said:
Yes under strict liability you are correct if the clen gets into your system from the blood bag. But if the amount of the clen does not enhance performance should a cyclist be guilty. I think not.
Just because the amount of PED isn't performance enhancing when the positive was found it doesn't mean it wasn't before the body started metabolizing the drug.
 
RobbieCanuck said:
neineinei said:
Should there be strict liability or should WADA (and) all the national anti-doping agencies) and the UCI be required to prove that the amount in fact had a performance enhancing effect in each case.

It seems to me it is an issue of fundamental fairness as to the ultimate issue i.e. performance enhancement and a fundamental issue of due process. Unless there was in fact an enhancement of performance, is it fair to impose strict liability or has cycling sunk to such a low depth that the only answer to the drug scourge is strict liability? :)
Note: not sure what's up with the quoting system, so hard to tell who wrote what and is being quoted.

An ergogenic effect of a substance or method is not a necessary condition for it to be prohibited under the WADA code. Doping need not be ergogenic for it to be prohibited.

Nor is an ergogenic effect a sufficient reason for a substance or method to be prohibited. Many things, such as eating carbohydrates, ingesting caffeine, sleeping and training all have positive impacts to performance, but are not prohibited.

Suggest reading the code.


If you think the principle of strict liability is to be changed, then suggest an alternative that does not encourage more doping while ensuring innocents are not falsely convicted.

The problem with a heavy reliance on substance testing (as opposed to investigative means) is that one cannot tell from a drug test how a low concentration of clen came to be in one's system. While we know it can only come via exogenous means, it might be from recent inadvertent or less recent illegitimate means.

One might presume there is a level of clen in the body that could not come from food contamination alone. I have no idea what that might be.

Increasing the clen test threshold from zero (test sensitivity in effect has set the threshold greater than zero, i.e. at the detection limit of labs, but has more recently dropped because of more sensitive tests) just means the doping window available is extended but might mean the probability of inadvertent ingestion cases can be all but eliminated.

Is this the right thing to do? Perhaps, perhaps not. There are other prohibited substances that have a defined non-zero threshold level (as opposed to a nominal zero level but in reality is set by current testing sensitivity), so it's not a new concept.

But really, to make a sensible call, we need more information than one study of German tourists to ascertain the potential for such things, and even if it is shown to be plausible, how does one universally apply such a code when the issue is more geographically localised, and how do we expect to apply the same standard of food control for athletes at various levels of the sport?


As for arguments on the (im)plausibility of doping based on an athlete's powers of logical reasoning (e.g. "why on earth would he use clen at that time, it make no sense?"), well one should never cease to be amazed at the dumb things bike riders and other athletes have and will continue to do in order to gain an edge, be it real or perceived.

It is more logical to assume that careful logical thought is not always applied by athletes. That does not mean they don't think carefully or soundly, but it's been shown time and again some are prepared to take the risk. Unfortunately it's also been shown that inadvertent contamination can happen and has happened.

Imagine a hypothetical Bassons being found with traces of clen after a tour in China or Mexico? How would clinic react then?

While strict liability makes plenty of sense, I also think that anti-doping process needs a bit of rocket fuel up its backside as well because it's quite clear that a heavy reliance on testing has been (and probably will continue to be) a failure, and it will be an even worse failure if it convicts an innocent.
 
RobbieCanuck said:
Great question and I am not sure of the answer, but I will give it a stab.

Performance enhancement occurs when WADA, the UCI or any national anti-doping authority can prove to a reasonable certainty (more than beyond a balance of probabilities and less than beyond a reasonable doubt) that the results of a test of a prohibited substance, its metabolites or markers in the body of a cyclist establishes that that cyclist either gained or would have gained an appreciable or marked advantage over another cyclist in competition.

If WADA, the UCI or a national doping authority proved this in any given case, then the cyclist would have the opportunity to prove on a balance of probabilities that he/she used due diligence to avoid ingesting the prohibited substance.

Obviously the other cyclist would have to be the proverbial clean cyclist and expert evidence from an accredited pharmacologist or kineseologist might have to be used. But is that too much for a cyclist to ask when his/her career is at stake?
Actual ergogenic effect of any prohibited substance or method is not relevant, IMO.
 
May 26, 2009
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sniper said:
those are two important points.
if after several high profile clen cases in recent years (including Dirty's case) you're stupid enough to unwillingly test positive for clen in China, you deserve a ban anyway.
First off, I'd say there's a limit on what we should ask from athletes. Having to check every bite's source goes way beyond any other profession. Someone posted the hilarious example he had to check every ladder at work.. when I pointed out he wouldn't do that at home it was met with indignant spluttering.

Secondly, we all do as if Clen is just of countries with Lax regulations, but it's a worldwide issue.

Thirdly, contamination can occiur in all fabrics where food is processed as long as they also have a line processing meat, so where do we draw the line?

There's a difference between wanting to combat doping and supporting a witch-hunt. makig athletes lifes unnecisarily dificult by monitoring even the most basic of their private life is just crazy.

To drive this one home with a SLEDGEHAMMER: Greg Lemond used to eat in European Mickey D. Restaurants (anecdotes from happy Euro riders who sneaked out with him are abound). In that day and age European meat was very likely contaminated by Clenbuterol. Now I'd say we would all agree that if that's okay for Greg it should be okay for a current day rider, now wouldn't we?
 
May 26, 2009
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martinvickers said:
You don't take performance enhancing drugs unless you intend to cheat. The ill intention is 'baked in', regardless of efficacy.
.
Unless it is a contamination. As far as I understand these come in two flavors with the current rulings (correct me if I'm wrong, this is what I understand from the AC case):

- Food: currently seen as innocent, but hard to proof.
- Supplements: Athletes responsibility, so seen as a positive.

With AC 1 could not be proven and 2 was deemed likely (am I misstaken that they actually didn't directly accuse AC of deliberately taking Clen?) thus CAS upheld the ban.
 
Oct 16, 2010
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Franklin said:
First off, I'd say there's a limit on what we should ask from athletes. Having to check every bite's source goes way beyond any other profession. Someone posted the hilarious example he had to check every ladder at work.. when I pointed out he wouldn't do that at home it was met with indignant spluttering.

Secondly, we all do as if Clen is just of countries with Lax regulations, but it's a worldwide issue.

Thirdly, contamination can occiur in all fabrics where food is processed as long as they also have a line processing meat, so where do we draw the line?

There's a difference between wanting to combat doping and supporting a witch-hunt. makig athletes lifes unnecisarily dificult by monitoring even the most basic of their private life is just crazy.

To drive this one home with a SLEDGEHAMMER: Greg Lemond used to eat in European Mickey D. Restaurants (anecdotes from happy Euro riders who sneaked out with him are abound). In that day and age European meat was very likely contaminated by Clenbuterol. Now I'd say we would all agree that if that's okay for Greg it should be okay for a current day rider, now wouldn't we?
fair points, but a slight difference between the Lemond era and present-day:
In recent years we've had several more or less high-profile clen cases: Ovtcharov, Dirty, that soccer team, and what was that Chinese cyclist's name? And perhaps others.
If my existence depended on procycling, knowing these highprofile cases I'd be doubly careful when traveling to China.

That said, I agree wholly with your first paragraph.
Still, as noted plenty of times not just by me, if this was unintentional contamination, let's see Rogers take some logical steps such as having his colleagues/dining mates tested for clen. I'm sure Rogers didn't go out to eat in China all by himself.
It got Ovtcharov off the hook.

edit: in fact I don't agree with the first paragraph. There's a difference in terms of existential importance. Rogers and other cyclist depend existentially on not testing positive. When that's the case, you can be expected to do everything in your power not to test positive.
The guy with the ladder doesn't depend existentially on checking the ladder at home.
 
May 26, 2009
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sniper said:
fair points, but a slight difference between the Lemond era and present-day:
In recent years we've had several more or less high-profile clen cases: Ovtcharov, Dirty, that soccer team, and what was that Chinese cyclist's name? And perhaps others.
If my existence depended on procycling, knowing these highprofile cases I'd be doubly careful when traveling to China.

That said, I agree wholly with your first paragraph.
Still, as noted plenty of times not just by me, if this was unintentional contamination, let's see Rogers take some logical steps such as having his colleagues/dining mates tested for clen. I'm sure Rogers didn't go out to eat in China all by himself.
It got Ovtcharov off the hook.
Now I don't like the guy and am ready to bet a serious amount of money he was dirty as hell at T-Mobile (and old foxes loose their hair, not their tricks), but I'd say he's doing the smart thing by keeping a lid on it.

Keep your powder dry until the courtcase comes. The more he says now (especially since he himself is no expert!) the more real(and self appointed) experts can snipe him.

On a side note: The reason I'm picking the athletes side here is because I'd say we need to be able to avoid ambiguous results. If we test them at all times, know where they are we should also have rules that allow them to have a somewhat normal life. I.o.w.: I'd love to invite a pro cyclist friend over for diner without having to check my food (I wouldn't know where to start!).

Anti-doping rules are there to check doping, not to change the cyclists in inmates with an ankle bracelets.
 
Oct 16, 2010
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Franklin said:
Now I don't like the guy and am ready to bet a serious amount of money he was dirty as hell at T-Mobile (and old foxes loose their hair, not their tricks), but I'd say he's doing the smart thing by keeping a lid on it.

Keep your powder dry until the courtcase comes. The more he says now (especially since he himself is no expert!) the more real(and self appointed) experts can snipe him.

On a side note: The reason I'm picking the athletes side here is because I'd say we need to be able to avoid ambiguous results. If we test them at all times, know where they are we should also have rules that allow them to have a somewhat normal life. I.o.w.: I'd love to invite a pro cyclist friend over for diner without having to check my food (I wouldn't know where to start!).

Anti-doping rules are there to check doping, not to change the cyclists in inmates with an ankle bracelets.
fair. but me thinks you're slightly exaggerating. This is not about living life like a recluse or monk or prisoner.
If you are a cyclist and you are careful about what you eat/ingest (not neurotically, but normally careful) and keep a diet diary and save samples of the supplements you take, then (a) it should be difficult to test positive through contamination in the first place and (b) if you do test positive through contamination it should be relatively easy to prove the contamination.

to be sure, i think Rogers and Breye are gonna walk, or at least i don't see them getting a two year suspension.
 
May 26, 2009
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sniper said:
fair. but me thinks you're slightly exaggerating. This is not about living life like a recluse or monk or prisoner.
If you are a cyclist and you are careful about what you eat/ingest (not neurotically, but normally careful) and keep a diet diary and save samples of the supplements you take, then (a) it should be difficult to test positive through contamination in the first place and (b) if you do test positive through contamination it should be relatively easy to prove the contamination.
Serious? If I serve my (imaginary) cyclist friend a steak from our well respected friends at Albert Heijn only god knows what's inside. And considering my imgainary friend is pro-tour, but only a domestique, he doesn't have the means to have a case with full recall of this argentinian beef.

to be sure, i think Rogers and Breye are gonna walk, or at least i don't see them getting a two year suspension.
I wonder about that as it would show the sham the AC case was. If I were AC I would look into every which way to overturn my earlier sanction.
 
Oct 16, 2010
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Franklin said:
Serious? If I serve my (imaginary) cyclist friend a steak from our well respected friends at Albert Heijn only god knows what's inside. And considering my imgainary friend is pro-tour, but only a domestique, he doesn't have the means to have a case with full recall of this argentinian beef.
i might be underestimating things.
But still, imo, either Rogers doped with clen or he has been guilty of great negligence.
This was WADA's clear-cut message in 2011:
World Anti-Doping Agency (WADA) has re-emphasized the need for athletes to exercise extreme caution with regards to eating meat when traveling to competitions in China and Mexico.

It has been shown that Mexico and China have a serious problem with meat contaminated with the prohibited substance clenbuterol, and WADA’s message to athletes competing in these countries remains the same: eat only in restaurants and cafeterias that have been approved by your federation and/or event organizer.
http://www.wada-ama.org/en/media-center/archives/articles/athletes-must-show-caution-due-to-contaminated-meat/
note the RE-emphasized. Iow, it had already been emphasized before.
If, as a proathlete, in 2013 you test positive for CLEN in China you've either doped yourself with the product or you've been ignoring those clearcut warnings. Stupid either way.
I might be underestimating the difficulties of getting untainted meat in China, but then I agree with Dirtyworks: go veggie for a coupla days.
 
Oct 16, 2010
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Franklin said:
I wonder about that as it would show the sham the AC case was. If I were AC I would look into every which way to overturn my earlier sanction.
yeah.
would be rather sour grapes for Contador if Rogers and Breyne walk.
Indeed, would be spectacular if Contador re-opens his case. Sleepless nights for Andy :D
 
May 26, 2009
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sniper said:
yeah.
would be rather sour grapes for Contador if Rogers and Breyne walk.
Indeed, would be spectacular if Contador re-opens his case. Sleepless nights for Andy :D
I actually wonder if Andy or AC disagree who won that one. If I were Andy I would perhaps for the media be happy I won it, but just as everyone of my colleagues I would know AC won it. (As I refuse to believe AC was particularly more dirty than the competition).

That's the problem with banning the winner and giving the win to the number two. History taught us that this is futile. The only thing that happened was that the winner was unlucky in testing and the number two lucky. And in this case it's even less clear what happened.
 
Franklin said:
Serious? If I serve my (imaginary) cyclist friend a steak from our well respected friends at Albert Heijn only god knows what's inside. And considering my imgainary friend is pro-tour, but only a domestique, he doesn't have the means to have a case with full recall of this argentinian beef.
This "meat scare" needs to stop. it's a problem in some developing nations where there is little regulatory integrity. Some nations, not necessarily first-world rich have good regulatory integrity, Argentina being a good example. Where do you think the World's low-cost beef comes from?

Franklin said:
I wonder about that as it would show the sham the AC case was. If I were AC I would look into every which way to overturn my earlier sanction.
It depends on what you define as the scandalous part of the Contador positive. Was it the UCI trying to suppress/not enforce the positive? Was it the ridiculous CAS decision? Contador's ephemeral twin excuse?
 
May 26, 2009
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DirtyWorks said:
This "meat scare" needs to stop. it's a problem in some developing nations where there is little regulatory integrity. Some nations, not necessarily first-world rich have good regulatory integrity, Argentina being a good example.
Sorry. NO. The "meat scare" does not need to stop.

1. It's much more important than a doping cyclist.
2. It's a big problem everywhere. I linked a few choice excerpts in the Rodgers thread where I showed that Clen in the European foodchain is a reality indeed.

I'll just give this snippet that shows that there's not such a thing as a zero-tolerance in the EU.

There are EU Maximum Residue Limits listed for clenbuterol in bovine tissues (muscle: 0.1μg/kg; 0.5μg/kg for both liver and kidney) under Commission Regulation (EU) 37/2010.
Being very concerned about our food is a very good thing. yes things have improved, but that people on a forum that hates the UCI and IOC think that somehow the EC can control the Foodmarket is bizarre. The stakes are higher and the record of scandals dwarves cyclings problems. Yet somehow the EC is the boyscout organisation that manages to control the farmers of their memberstates perfectly.

Oh and I do like a nice piece of meat. But I have cut down immensely and stopped using red eat and try to follow the more trustworthy labels (fwiw... I know they are sometimes just labels for bad meat, but you got to start somewhere).
 
May 26, 2009
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roundabout said:
I am pretty sure that during the thousands of posts relating to contadors positive it had been established that the meat had to be contaminated above the eu mrl for him to test even at his levels
Certainly true.

But if it's in the food chain it's simply not impossible for a cow getting too much of the good stuff.

We can go back and forth over this, but I'd say I have rather persuasive arguments that contamination is a real option and not farfetched at all. In fact anyone who thinks the EC has a tighter control on it's food supply than the UCI has on doping needs to get a reality check.

Every year there are ("several" and that's downplaying it by a horrible margin)foodscandals that show the opposite. Be it from EHEC on cucmbers to poisonous potted babyfood (yes, happened in the Netherlands) to salmonella in Salmon. And yes, an athlete could get involved. Under the current rules he would walk. And I am glad he/she would.
 
May 14, 2010
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Let's face it, if Contador hadn't taken "Armstrong's" comeback Tour, those three atoms of Clen would have never been sought, much less found. Finding them has ended his career as Patron in a doped sport. Instead, we get Froome.

Strict liability for riders in a totally corrupt sport is misplaced. It's too easy to sabotage the riders, and in any case it scapegoats a few individuals without addressing the problem. A few careers get ruined and nothing ever changes. A different approach is needed.
 
An interesting development on the HGH front today. Mark Cuban the American entrepreneur and owner of the Dallas Mavericks is prepared to fund academic research into the use of HGH to heal injuries in athletes with ligament issues, strains etc.

The thinking is that small amounts of HGH will reduce the time for athletes to be away from their sport, giving the fans an opportunity to see them, maintain the quality of competition etc. and of course improve Cuban's bottom line. What we don't know is the extent to which any HGH use is detrimental to the human body such as whether or not it can trigger cancer.

He recognizes that full blown use of HGH is a performance enhancer but argues there may be therapeutic uses. It is noted that there is fluidity about the list of banned drugs. Some drugs previously banned are now not banned and vice versa, usually due to some new research data.

Whether its therapeutic use would require a TUE or however it was dealt with it seems that at least doing scientific study on this issue would provide us more knowledge about whether or not there is a legitimate role for the use of HGH in sport. It once again brings into focus whether or not strict liability is the answer to combat doping.
 
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