Strict Liability in Doping

[frenchfry]

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

The latest scandal is about shady meat traders buying horses used for experiments from a pharmacutical company then selling the meat for human consumption. The meat would be full of drugs, don't know if it would trigger any doping alarms if an athlete ate it.

I suppose the good news is that the authorities uncovered the trafficing and put a stop to it.

In the initial scandal, the horse meat was fit for human consumption, the problem was that it was being sold as beef.

 

[roundabout]

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?

breyne's teest was on the 5th and he won on the 9th

 

[Netserk]

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.

Please tell who of his team mates have been tested for clen at the same time as him, or drop this BS.

 

[roundabout]

How many riders have tested positive for clen in or around the time of racing/being in China?

Rogers, Breyne, Li (can't recall if he raced in Europe prior to his positive that year) are about 3 people I can remember in the last 4 years. That's out of hundreds who have raced in Taihu, Hainan, Beijing, Qinghai Lake, Tour of China.

 

[Samson777]

How many riders have tested positive for clen in or around the time of racing/being in China?

Rogers, Breyne, Li (can't recall if he raced in Europe prior to his positive that year) are about 3 people I can remember in the last 4 years. That's out of hundreds who have raced in Taihu, Hainan, Beijing, Qinghai Lake, Tour of China.

What is relevant is, how many off these hundreds was tested?

 

[roundabout]

What is relevant is, how many off these hundreds was tested?

Given the 75% positive figure quoted in this thread just the 3 of them and some other guy.

 

[darwin553]

Strict liability could only be applied to doping if the controls in place for testing were considered 'fail proof'. And when I say 'fail proof' I mean that the sanctioning authority could have 100% confidence in the reliability of the results in that they were free from contamination or some other improper handling of the testing process.

 

[JMBeaushrimp]

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)

Shhh! Jens grew up in that system, and saw nothing before, during, or after.

He should change his name to Sgt Schultz...

 

[RobbieCanuck]

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

I realize this is what Breyne was told. But Contador's sample was so tiny, so miniscule i.e. 50 picograms or 50 trillionths of a gram any amount of clen say 1millionth of a gram would make Breyne's seem unduly large. At this stage we simply do not know the amount. The issue I am hoping people will address is this.

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?

 

[RobbieCanuck]

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

I understand your point but should the issue of actual performance enhancement be relevant?

 

[sniper]

I understand your point but should the issue of actual performance enhancement be relevant?

how do you measure enhancement?

 

[RobbieCanuck]

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.



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.

I understand your point and this is the basic argument in favour of strict liability for clen. But should it be?

If a cyclist ingests clen because he is asthmatic or he simply wants to lose fat and add muscle mass by stimulating beta receptors and there is no proven performance enhancing effect why should this be an offence that can ruin a cyclist's career for 2 years or longer?

 

[RobbieCanuck]

...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.

You should be congratulated for your increased awareness. The "system" is set up clearly putting the responsibility on the athlete. WADA and USADA do a good job of posting warnings about countries with dodgy food practices and being careful about supplements.

 

[Benotti69]

I understand your point but should the issue of actual performance enhancement be relevant?

Then Rogers has been failing for a long time.

 

[RobbieCanuck]

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.

Great observations. I agree Contador was targeted by WADA and the UCI, not so much because of the actual amount of clen but their suspicions about transfusions etc. My question is, how fair is that?

It seems to me it is totally illogical and a lot disingenuous to apply strict liability to a doping case where the evidence is clearly there was no performance enhancing effect IF the purpose of applying that standard was to indirectly go after him for suspicion of transfusions and plasticisers.

As others have pointed out his sample was not tested for plasticisers per se because the test either did not exist or it existed but had not as yet been approved ( I am not sure what was the case regarding AC)

 

[sniper]

Great observations. I agree Contador was targeted by WADA and the UCI, not so much because of the actual amount of clen but their suspicions about transfusions etc. My question is, how fair is that?

It seems to me it is totally illogical and a lot disingenuous to apply strict liability to a doping case where the evidence is clearly there was no performance enhancing effect IF the purpose of applying that standard was to indirectly go after him for suspicion of transfusions and plasticisers.

As others have pointed out his sample was not tested for plasticisers per se because the test either did not exist or it existed but had not as yet been approved ( I am not sure what was the case regarding AC)

i seem to vaguely recall WADA asked for the plasticizers to be admitted as evidence, but CAS refused.
I could be wrong though.

 

[RobbieCanuck]

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.

Mark you have really hit the nail on the head. The "union" set up by the UCI is toothless. There is not an international sport with the money there is in cycling that does not have its own union. For example NFL's players association, major league baseball and hockey.

I am at a loss to understand why riders are not smart enough to not race until such a Cyclists Association is in place.

 

[Samson777]

Given the 75% positive figure quoted in this thread just the 3 of them and some other guy.

Okay, haha..

 

[RobbieCanuck]

how do you measure enhancement?

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?

 

[DirtyWorks]

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.

No. Clen is a PED. Fail the test in a conclusive way and a case should be opened. Period. As it is, we don't know how many cases aren't opened.

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?

NADOs have enough problems with athletes like Horner and Froome mocking their efforts. The only consequence of your views is opening a new bus-sized doping opportunity and lowering the hurdle that a few dopers trip over.

Your proposal of arguing the merits of quantities found means jokers like Meeker walk away. https://pvcycling.wordpress.com/2013/11/23/doped/

 

[martinvickers]

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

I realize this is what Breyne was told. But Contador's sample was so tiny, so miniscule i.e. 50 picograms or 50 trillionths of a gram any amount of clen say 1millionth of a gram would make Breyne's seem unduly large. At this stage we simply do not know the amount. The issue I am hoping people will address is this.

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?

No, absolutely not. The issue is not whether something was taken and enhanced performance, but whether something was taken to enhance performance - if, in the event, it did not, the athlete is not thereby exhonerated.

Those with a legal bent would recognise a mens rea and an actus reus - the taking is the actus, the intention is the mens - the successful outcome is neither here nor there.

If you shoot a politician to instigate a revolution, you don't get off if the revolution doesn't happen, or frankly if the politician survives. The success of the motive is not the point, the point is the intention and attempt.

 

[Morbius]

Strict liability makes sense for all the reasons DirtyWorks mentions. Where it gets difficult is when strict liability is combined with ultra-sensitive tests. There will come a point eventually when the tests are so sophisticated that many or even most people have some microscopic contamination some of the time. A low reading might indicate background noise, but it might also mean doping several days or even weeks previously.

This is a tricky problem to solve. Ultra-senstive tests will increase glow time considerably so one idea could be mandated frequent testing (e.g. every week) for some substances. For instance if the glow time for a performance-enhancing level was 3 weeks, a weekly test with a very low threshold would eliminate the possibility that the athlete ever took the performance-enhancing amount. Clearly there would still need to be other surprise tests for other substances.

 

[RobbieCanuck]

No. Clen is a PED. Fail the test in a conclusive way and a case should be opened. Period.

Your proposal of arguing the merits of quantities found means jokers like Meeker walk away.

Clen is only a PED i.e. a performance enhancing drug IF and only if it has a performance enhancing effect.

Clen of and in itself is not a performance enhancing drug unless and until there is a threshold present that causes the performance enhancing effect. In AC's case there was no performance enhancing effect or even the ability of the miniscule quantity found to have a performance enhancing effect.

By coincidence I read the Meeker decision last night. In his case the prohibited substance was 19-norandrosterone which had a threshold of 2ng/ml. Meeker was way above the threshold at 30ng/ml. If he had been below the threshold no liability would have applied because by implication the drug could not have had a performance enhancing effect.

Meeker testified that he must have ingested the drug when he took supplements 1 hour before he raced and during the race from a container that had the supplements and a white powder that had the 19-norandrosterone However the evidence he presented was found to lack sufficient proof to lower the automatic two year suspension he received. In other words his explanation was rejected by the panel.

In Contador's case there was no threshold and there should have been because it is impossible for 50 picograms to have given him a performance advantage. That would have been the fair thing in that case.

I empathize with your concern about doping but the whole purpose of starting this thread was to examine the fairness of absolute/strict liability. You clearly are on the strict liability side, whereas I am suggesting more fairness in the process. I respect your point of view, because it is a good argument in the face of the last 30 years of doping scandals. I just disagree with it.

 

[BigChain]

No. Clen is a PED. Fail the test in a conclusive way and a case should be opened. Period.

Your proposal of arguing the merits of quantities found means jokers like Meeker walk away.

Clen is only a PED i.e. a performance enhancing drug IF and only if it has a performance enhancing effect.

Clen of and in itself is not a performance enhancing drug unless and until there is a threshold present that causes the performance enhancing effect. In AC's case there was no performance enhancing effect or even the ability of the miniscule quantity found to have a performance enhancing effect.

By coincidence I read the Meeker decision last night. In his case the prohibited substance was 19-norandrosterone which had a threshold of 2ng/ml. Meeker was way above the threshold at 30ng/ml. If he had been below the threshold no liability would have applied because by implication the drug could not have had a performance enhancing effect.

Meeker testified that he must have ingested the drug when he took supplements 1 hour before he raced and during the race from a container that had the supplements and a white powder that had the 19-norandrosterone However the evidence he presented was found to lack sufficient proof to lower the automatic two year suspension he received. In other words his explanation was rejected by the panel.

In Contador's case there was no threshold and there should have been because it is impossible for 50 picograms to have given him a performance advantage. That would have been the fair thing in that case.

I empathize with your concern about doping but the whole purpose of starting this thread was to examine the fairness of absolute/strict liability. You clearly are on the strict liability side, whereas I am suggesting more fairness in the process. I respect your point of view, because it is a good argument in the face of the last 30 years of doping scandals. I just disagree with it.

Blood Bags with trace levels of Clenbuterol are performance enhancing

 

[RobbieCanuck]

No, absolutely not. The issue is not whether something was taken and enhanced performance, but whether something was taken to enhance performance - if, in the event, it did not, the athlete is not thereby exhonerated.

Those with a legal bent would recognise a mens rea and an actus reus - the taking is the actus, the intention is the mens - the successful outcome is neither here nor there.

If you shoot a politician to instigate a revolution, you don't get off if the revolution doesn't happen, or frankly if the politician survives. The success of the motive is not the point, the point is the intention and attempt.

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