Strict Liability in Doping

[RobbieCanuck]

As far as I am aware there is no thread on the issue of strict liability in doping. The issue is relevant because of the recent Rogers and Breyne cases plus that of Contador. The CAS essentially applied the strict liability standard to Contador in spite of the fact that his analysis showed 50 picograms of clen or 50 one trillionths of a gram.

All the reliable evidence from accredited pharmacologists indicates this simply could not have given AC an enhancement in performance. I recognize there is the suggestion that by the time his sample was taken the clen found had metabolized from a larger amount and that there were plasticizers in his sample that suggested a transfusion, but because the test done was not specific for plasticizers a case could not be made against AC on that basis.

In the Rogers and Breyne cases we do not know the level of the clen. Regardless the strict liability standard makes mute the question of whether the amounts in fact gave Rogers and Breyne a performance enhancement.

Is this fair? The argument is that strict liablity is needed to deter illegal drug use irregardless of whether there is no performance enhancement.

In most legal systems there are four kinds of liability.
1. Absolute - where regardless of the facts if the offence is made out there is guilt. For example a speeding ticket. It doesn't matter why you sped if you were over the limit.

2. Stict liability - where if the facts prove the offence you may be guilty BUT you have the opportunity to show you took reasonable precautions to avoid committing the offence in which case if you prove this you are not guilty

3. Proof on a balance of probabilities - the 50% plus 1 standard

4. Proof beyond a reasonable doubt - the criminal standard.

I look forward to the usual range of views in this Forum

 

[blackcat]

half life(s).

most appreciate that much of the doping, is done in preparation for the competition.

see: Rasmussen in Meh-heeco, check that, Dolomiti

 

[DirtyWorks]

As far as I am aware there is no thread on the issue of strict liability in doping.

Relax liability and dopers have another opportunity to dope bigger than all others combined. It would get ridiculous fast. Remember Tyler's ephemeral twin? yeah, like that.

The issue is relevant because of the recent Rogers and Breyne cases plus that of Contador. The CAS essentially applied the strict liability standard to Contador in spite of the fact that his analysis showed 50 picograms of clen or 50 one trillionths of a gram.

Clenbuterol does not occur naturally in the body, not naturally in food, nowhere. If it's detected, then the athlete has sought out and used it. End of story.

If it were *actually* in chicken or beef, then a whole team would test postive.

Clenbuterol is great for endurance athletics. A Test/clen routine is powerful and safe.

 

[neineinei]

As far as I am aware there is no thread on the issue of strict liability in doping. The issue is relevant because of the recent Rogers and Breyne cases plus that of Contador. The CAS essentially applied the strict liability standard to Contador in spite of the fact that his analysis showed 50 picograms of clen or 50 one trillionths of a gram.

All the reliable evidence from accredited pharmacologists indicates this simply could not have given AC an enhancement in performance. I recognize there is the suggestion that by the time his sample was taken the clen found had metabolized from a larger amount and that there were plasticizers in his sample that suggested a transfusion, but because the test done was not specific for plasticizers a case could not be made against AC on that basis.

In the Rogers and Breyne cases we do not know the level of the clen. Regardless the strict liability standard makes mute the question of whether the amounts in fact gave Rogers and Breyne a performance enhancement.

Is this fair? The argument is that strict liablity is needed to deter illegal drug use irregardless of whether there is no performance enhancement.

In most legal systems there are four kinds of liability.
1. Absolute - where regardless of the facts if the offence is made out there is guilt. For example a speeding ticket. It doesn't matter why you sped if you were over the limit.

2. Stict liability - where if the facts prove the offence you may be guilty BUT you have the opportunity to show you took reasonable precautions to avoid committing the offence in which case if you prove this you are not guilty

3. Proof on a balance of probabilities - the 50% plus 1 standard

4. Proof beyond a reasonable doubt - the criminal standard.

I look forward to the usual range of views in this Forum

Breyne: "The amount [of clenbuterol] found in [Alberto] Contador’s urine, the UCI told me, were tiny compared to mine.”

http://road.cc/content/news/103851-...pts-suicide-after-positive-result-clenbuterol

http://www.sudinfo.be/886506/articl...breyne-a-tente-de-se-suicider-apres-l-annonce

 

[will10]

All the reliable evidence from accredited pharmacologists indicates this simply could not have given AC an enhancement in performance.

That's irrelevant. Any amount of clenbuterol in the sample = positive test, as there is no threshold limit.

 

[thehog]

That's irrelevant. Any amount of clenbuterol in the sample = positive test, as there is no threshold limit.

The Contador case is interesting. Because he was at a GT he had tests from either side of his positive.

I think from memory he was tested in the 3 days leading up to the positive.

So the argument for him was that he couldn't have possiblely gained an advantage because 50pg is a trace amount. Additionally the substance didn't exist in the days prior demonstrating he didn't take a larger hit leading up to the positive.

But right you are. It mattered little. If it's in your system you face a ban, no matter how it got there.

 

[ChrisE]

Clenbuterol does not occur naturally in the body, not naturally in food, nowhere. If it's detected, then the athlete has sought out and used it. End of story.

If it were *actually* in chicken or beef, then a whole team would test postive.

Clenbuterol is great for endurance athletics. A Test/clen routine is powerful and safe.

And how would the whole team be tested? I have seen the same argument on the Roger's thread about other clen positives not being so prevalent. The main reason is all athletes are not testing in mass, and furthermore they don't eat the same things at the same time prior to whatever testing takes place. You know this basic logic.

As we all discussed many times during the AC debacle, my opinion is there must be a minimum threshold for items possibly found in food to ensure the 1 out of X athletes that is innocent gets off. It is impossible for athletes to monitor what is in their food at all times. Yes, that means that some dopers will get over. That is the price you pay for doing what is right for the innocent.

No, this does not mean that I think Rogers is innocent, or AC was innocent.

 

[ChrisE]

The Contador case is interesting. Because he was at a GT he had tests from either side of his positive.

I think from memory he was tested in the 3 days leading up to the positive.

So the argument for him was that he couldn't have possiblely gained an advantage because 50pg is a trace amount. Additionally the substance didn't exist in the days prior demonstrating he didn't take a larger hit leading up to the positive.

But right you are. It mattered little. If it's in your system you face a ban, no matter how it got there.

Because it was a minute amount in a blood bag.

 

[thehog]

Because it was a minute amount in a blood bag.

That I don't disagree with. Although it was never proven.

 

[TheBean]

The plasticizers found in his blood suggest the introduction of a new bad, unfortunately for him the bag was likely tainted.

You'd think the guys would be more careful to cover their tracks.

 

[ChrisE]

That I don't disagree with. Although it was never proven.

It was never formally proven because the plasticizer test was not in use yet. It was proven by logic in our brains, though that is not acceptable either.

The AC issue is a case in point of somebody that would have gotten off if my wish for a threshold was instituted. C'est la vie.

 

[MagniflexOlmo]

My 16 year old lad just got signed up to the general testing pool, which rather ramps up awareness. These sort of positive doping tests leave us feeling very unsure about the chances of an accidental positive due to food contamination. Indeed, we were on a family holiday in China early in the year, and only later in the summer learned of the problem with Clenbuterol contamination.
Certainly the amount of information available to athletes has improved out of all recognition in the last 20 years, but we don't have a backup team keeping up with such problems, warning us. How much can you afford to invest into a sport where you could face a false positive or a ****-happens (food contamination) positive, with no possibility of clearing your name? Certainly one wants the sport as clean as possible, but I think WADA needs to take very seriously the risk of punishing innocents, especially when they are holding children to the same standards as the pros. I know some of the folks here think that Mick Rogers "earned it", but if the amounts of Clen are miniscule, then a two year penalty seems crazy. There's no way that two wrongs make a right.

 

[Master50]

The Contador case is interesting. Because he was at a GT he had tests from either side of his positive.

I think from memory he was tested in the 3 days leading up to the positive.

So the argument for him was that he couldn't have possiblely gained an advantage because 50pg is a trace amount. Additionally the substance didn't exist in the days prior demonstrating he didn't take a larger hit leading up to the positive.

But right you are. It mattered little. If it's in your system you face a ban, no matter how it got there.

I believe Contador was targeted and I think the testers used the Clen positive to make their point. Obviously the theory was based on the idea he took a blood bag and the source had traces of Clen in it from some previous training period. The lab they chose had the most sensitive equipment too. In my opinion the trace amounts did not in itself represent any performance enhancement and I am sure the experts know this. While Contador would not have been a random test because he was leading the race a lot of the so called random tests these days are actually targeted. It has been the practice to focus testing to ensure the limited anti doping dollars are getting the greatest effect. The next tool is criminal charges. The police are by far the best investigators of any organized or group doping as they have powers the anti doping groups could only hope for. Once doping is a criminal offence the resources to investigate are greatly expanded. Add Jail time for certain offences and the double jeopardy will have a positive effect. Trouble will come when they jail the first Football or baseball player. Actually it looks like baseball fans are slowly coming to want the drugs out of their game too.

 

[MarkvW]

One of the reasons that professional cycling is so small (and such a 'good ole boy's network') is that the promoters have managed to do a fantastic job of neutering the professional cyclists. I can't imagine a more powerless pawn than a professional cyclist.

A professional cyclist at work has almost no control over his working conditions. These working conditions are dictated to him by his "Union." This is ironic because the UCI is anything but a union. It is a club where cycling promoters pick the dictator who is going to boss the riders around.

I'm not going to join in the chorus of ultra-strict anti-doping advocates until the riders are empowered enough to have a meaningful say in their working conditions.

 

[DirtyWorks]

My 16 year old lad just got signed up to the general testing pool, which rather ramps up awareness. These sort of positive doping tests leave us feeling very unsure about the chances of an accidental positive due to food contamination.

If you live in the highly developed economies, then this will never be a problem. In China, then eat fish or go veggie for a while.

How much can you afford to invest into a sport where you could face a false positive or a ****-happens (food contamination) positive, with no possibility of clearing your name? Certainly one wants the sport as clean as possible, but I think WADA needs to take very seriously the risk of punishing innocents,

They already do. The system is heavily biased to control for false positives.
Don't let your kid take those expensive nutritional supplements that stand the greatest possibility of containing prohibited substances. Stick to healthy food.

especially when they are holding children to the same standards as the pros.

Except that kids are known to dope. Chris Carmichael doped children under a national team, Marion Jones admitted to doping as a teenager. I can go on from there.

but if the amounts of Clen are miniscule, then a two year penalty seems crazy. There's no way that two wrongs make a right.

That's not two wrongs. Clen does not occur naturally in the body. The chances it was picked-up in China is very slim.

 

[Libertine Seguros]

My 16 year old lad just got signed up to the general testing pool, which rather ramps up awareness. These sort of positive doping tests leave us feeling very unsure about the chances of an accidental positive due to food contamination. Indeed, we were on a family holiday in China early in the year, and only later in the summer learned of the problem with Clenbuterol contamination.
Certainly the amount of information available to athletes has improved out of all recognition in the last 20 years, but we don't have a backup team keeping up with such problems, warning us. How much can you afford to invest into a sport where you could face a false positive or a ****-happens (food contamination) positive, with no possibility of clearing your name? Certainly one wants the sport as clean as possible, but I think WADA needs to take very seriously the risk of punishing innocents, especially when they are holding children to the same standards as the pros. I know some of the folks here think that Mick Rogers "earned it", but if the amounts of Clen are miniscule, then a two year penalty seems crazy. There's no way that two wrongs make a right.

If you use any food supplements then be sure not to empty the whole thing, and keep hold of it for a few months afterward.

 

[MagniflexOlmo]

Thanks for the reply DirtyWorks

Living in Germany, so sure, the China thing is not really a problem for us since we probably aren't going back there for a while, it's more the point of finding out too late about something, and we're talking about zero tolerance with Clenbuterol. Europe had a nice horse meat scandal only recently, so again, it is easy for us amateurs to be unsure when you have an absolute rule in place.

Sure, kids have been doped. Only need look in the DDR for that. Maybe I'm naive, but I'd be surprised though if there was stuff going on here at youth level. I assume that a rider worth a pro-career should be able to show their talent without doping, so youth doping is somewhat counterproductive in the long run. (OK I know that rumors didn't stop the hiring of JTL)

The only "supplement" we use is PowerBars.... and the occasional homeopathic dose of Nutella

 

[gooner]

JV in Walsh's article:

"I advise my riders not to eat beef and pork when in China," says Jonathan Vaughters, head of the US-backed Team Garmin-Sharp. "You can't use clenbuterol on chicken or fish, so that's what they've got to eat there."

Plus it was mentioned that a team of GB track cyclists recently returned from there where they weren't allowed to eat red meat.

 

[BroDeal]

That's not two wrongs. Clen does not occur naturally in the body. The chances it was picked-up in China is very slim.

Where does this BS come from? A German study found more than 75% of people returning to Germany from China tested positive for Clenbuterol.

http://sports.espn.go.com/oly/news/story?id=6124878

 

[DirtyWorks]

Where does this BS come from? A German study found more than 75% of people returning to Germany from China tested positive for Clenbuterol.

http://sports.espn.go.com/oly/news/story?id=6124878

Missing my point. Like the tourists, MANY other riders would test positive if it was an athlete's food supply issue. First and foremost, other riders from his team would be positive.

 

[DirtyWorks]

it's more the point of finding out too late about something, and we're talking about zero tolerance with Clenbuterol.

If we're talking about an athlete whose sticking to powerbars and nutella, then there are no problems. Be very, very wary of those more exotic supplements! The ones that work do so because they contain banned substances.

Europe had a nice horse meat scandal only recently, so again, it is easy for us amateurs to be unsure when you have an absolute rule in place.

You are in the EU, the meat supply is very safe, even horse meat.

Maybe I'm naive, but I'd be surprised though if there was stuff going on here at youth level.

I'm not in Germany, but once an athlete reaches a certain level in the U.S., it's a real thing that's available to kids. It's your job to protect your athlete from the predators pushing the dope. Some of them are in positions of authority in sports. Best of luck to you and your athlete. Gnutella is the best PED!

 

[skidmark]

Missing my point. Like the tourists, MANY other riders would test positive if it was an athlete's food supply issue. First and foremost, other riders from his team would be positive.

Wasn't the issue with Contador (and seemingly with Rogers and Breyne) that they won, and therefore were tested, and their teammates were not tested at the same time? I thought with Contador at least, he couldn't provide support in that way for his 'tainted beef' hypothesis simply because none of his other teammates were tested in that window of time. The 'many other athletes would test positive' idea is quite contingent on widespread testing, which I don't think is happening.

It seems like more of an issue of a) establishing a threshold, b) teams doing more internal testing to have some results to provide to corroborate theories when stuff like this comes up, or c) the UCI/ADAs doing more testing. Option b) seems farfetched, as it's costly and possibly not admissible as evidence (I don't know how team-testing works, do they use labs with the same accreditation? Does that matter, legally?) Option a) seems real easy, and option c) seems ideal but has not really been happening.

So in response to the OP, I'd say the current liability is appropriate, IF there is a threshold or at least a continuum of punishments fitting to the context. And it would be more in line with a rigorous testing regime showing UCI/ADAs are doing due diligence on their side of things. I'm all for upping bans, but not without a corresponding level of attention paid to the rigor of the process. Not that I think Contador or Rogers got punished when they shouldn't have, but it's quite easy to imagine a context in which a truly clean rider accidentally ingests whatever picograms of clen.

 

[MarkvW]

Wasn't the issue with Contador (and seemingly with Rogers and Breyne) that they won, and therefore were tested, and their teammates were not tested at the same time? I thought with Contador at least, he couldn't provide support in that way for his 'tainted beef' hypothesis simply because none of his other teammates were tested in that window of time. The 'many other athletes would test positive' idea is quite contingent on widespread testing, which I don't think is happening.

It seems like more of an issue of a) establishing a threshold, b) teams doing more internal testing to have some results to provide to corroborate theories when stuff like this comes up, or c) the UCI/ADAs doing more testing. Option b) seems farfetched, as it's costly and possibly not admissible as evidence (I don't know how team-testing works, do they use labs with the same accreditation? Does that matter, legally?) Option a) seems real easy, and option c) seems ideal but has not really been happening.

So in response to the OP, I'd say the current liability is appropriate, IF there is a threshold or at least a continuum of punishments fitting to the context. And it would be more in line with a rigorous testing regime showing UCI/ADAs are doing due diligence on their side of things. I'm all for upping bans, but not without a corresponding level of attention paid to the rigor of the process. Not that I think Contador or Rogers got punished when they shouldn't have, but it's quite easy to imagine a context in which a truly clean rider accidentally ingests whatever picograms of clen.

DirtyWorks is assuming that Rogers teammates (a) were with him in China; (b) ate the same food that he did in China; (c) competed with Rogers in Japan; and (d) were tested within the same time window as Rogers in Japan. If all those conditions are met, then I agree with DirtyWorks.

 

[ChrisE]

DirtyWorks is assuming that Rogers teammates (a) were with him in China; (b) ate the same food that he did in China; (c) competed with Rogers in Japan; and (d) were tested within the same time window as Rogers in Japan. If all those conditions are met, then I agree with DirtyWorks.

No, you don't agree with DW. I pointed this out upthread and he failed to address it. Scorched earth attitudes don't like inconveniences.

 

[sniper]

In China, then eat fish or go veggie for a while.

If you use any food supplements then be sure not to empty the whole thing, and keep hold of it for a few months afterward.

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.