The Froome Matter: A Crossroad for Law and Medicine
This is another high profile saga in the long list of anti-doping matters of cycling and one that raises several questions as to the true state of events. In line with similar previous cases and because of the application of strict liability, the present matter creates an antithesis with the precepts of fairness and justice in that, the athlete in question, is presumed to be guilty, until he is able to prove otherwise.
Notwithstanding the enormous suspicion that an allegation of a positive test creates, the ability of governing bodies to deal with this effectively and purposefully, may trigger arguments that centre around natural justice, fairness, proportionality and due process. Advisers in the field of anti-doping litigation are not agnostic to such arguments and they tend to pay particular attention to the pre-trial behaviour of the relevant governing body.
The current case categorically demonstrates the abyss of procedural malfunction and serves as a reminder that even if the athlete is innocent, collateral damage always prevails. This is without a doubt, an oxymoron of the highest order, yet, the analysis suggests how incomplete research on the specific substance under question is. There is confusing and contradicting data as to whether Salbutamol does produce a performance enhancing effect or not. One would have to accept, in good faith, WADA's decision to put such substance on a prohibitive level, where you cannot take more than eight puffs in 12 hours, or 16 puffs in 24 hours. The genesis of such threshold can only serve to indicate, or to create a suspicion, that anything above that may have enhancing effects on the user. In the premises, it is also true that if such substance is taken in the form of a tablet and/or injection in the long term, it may produce anabolic effects. A lay person can begin to understand now that the truth very much depends on the evidence and the facts and how these could be presented to the rulers.
This brings us to the pertinent question of whether the athlete is guilty or not. The application of strict liability suggests that once a positive result appears, the athlete may start to accept the view that there is a long ride ahead of him. The procedural anomalies and dichotomies of the anti-doping framework create a long gap between an 'adverse analytical finding' and an 'anti-doping rule violation'. To add to the potential of a catastrophic confusion, there is a difference between non-specified substances and specified substances. The latter exists because governing bodies are of the opinion that the substance in question may enter an athlete's body inadvertently. This, consequently, will make the athlete's defence more workable and it would allow adjudicating panels more latitude and flexibility in the consideration of the specific evidence presented to them and in the interpretation of the relevant regulations.
The above analysis generates logical questions. One would respectfully submit that if the athlete has not been charged with an anti-doping rule violation (as opposed to being notified of an adverse analytical finding), this matter should have been kept in private. Even so, a positive result is an indicator that something is wrong, which brings into question, not only the athlete's innocence, but the integrity of the sport as a whole. It is true that a provisional suspension may not be applied when the presence of a specified substance is in question and particularly, where the athlete has not been charged (yet) with an anti-doping rule violation. But people need to pay close attention to the word 'may', which can be interpreted as a power of discretion. Indeed, the WADA Code (and the UCI rules) use the word 'may' to the application of the provisional suspension, so to this effect, a provisional suspension is a discretionary matter in the decision making of the relevant body, in the circumstances presented to us in the Froome matter.
Whatever the final outcome of this matter, one can, once again, rest assured that self regulation has created a framework of suspicion and distrust, with the potential of further embarrassment for all stakeholders. Above all is the acceptance of the argument that cycling is facing, yet again, another uphill ride. It remains to be seen whether it needs performance enhancing for such ride...
Dr Gregory Ioannidis*
18 December 2017
* Dr Gregory Ioannidis is a sports lawyer and an anti-doping litigation expert, with a wealth of experience in this field. He has represented a number of high profile sport personalities on anti-doping matters before the Court of Arbitration for Sport in Lausanne and UKAD in London.