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Legally Speaking - with Bob Mionske: How do you defend yourself in a doping case?

Published: Aug. 17, 2006

Dear Readers,
Last week we looked at the process in an anti-doping violation case [See Thestraight dope on the Landis case]. I received more e-mail about this column than any other I have submitted for publication. Much (nearly all) of the correspondence was appreciative of the legal analysis (As always, I am grateful for the excellent research and brain power of my assistant Rick Bernardi ). Because there was so much interest in this subject I decided that I cannot possibly answer all these inquiries before leaving for the Vuelta. Instead, I’ll throw a bit more gas on the fire, by taking a look at some specific issues in the defense of a doping case.

It is a bit complex, but if you take it one step at a time, it should make sense. Those who support Floyd may find some hope in this analysis. Others, those who claim that I am “missing the forest for the trees” hopefully come to see that they may be “throwing out the baby with the bath water” when they reactively dismiss all of this analysis as “lawyer talk.”

Further, if it was their good name and livelihood in peril, I’ll wager that they would see the matter differently. So it is for public figures: Worshiped beyond reason, reviled without measure.

As we saw last week, when an A Sample rings the bell at the doping lab, the rider, the National Federation, and the UCI’s Anti-Doping Commission each has the option of asking that the B Sample be tested. This is where the process gets interesting. If there is no request for a B Sample evaluation, the UCI considers the rider to be in violation of the Anti-Doping Rules, based on the A Sample results, and will refer the case to the rider’s National Federation for a disciplinary hearing. If the request to test the B Sample is made, the laboratory will then test the B Sample. If the sample tests negative, then the entire test result is negative, and no disciplinary action will result. On the other hand, if the B Sample tests positive…Well, let’s see what a defense to that would be.

Let’s go back to that A Sample test again, and let’s assume that it tests positive for a high T/E ratio. What does that mean, according to WADA protocols? A “positive” sample is actually determined as being “not consistent with endogenous testosterone,” reflecting some degree of scientific uncertainty in the result. However, that scientific uncertainty is not presented to the disciplinary panel as scientific uncertainty. Instead, a sample determined to be “not consistent with endogenous testosterone” — one in which “the athlete’s sample so deviates from the range of values normally found in humans that it is unlikely to be consistent with normal endogenous production” — is “deemed” to contain a prohibited substance. That’s an interesting term, “deemed.” It means that a legal fiction is created by imbuing something with qualities it does not have — in this instance, it means that a sample which probably contains exogenous testosterone is considered, for legal purposes, to contain exogenous testosterone.

From a legal standpoint, that raises obvious questions about the burden and standard of proof — even when a prohibited substance “is likely” to be exogenous, that’s a different thing from saying that the prohibited substance is exogenous. Remember, the anti-doping agency has the burden to prove that there is a prohibited substance in the athlete’s sample, and in the case of endogenously produced substances, the anti-doping agency has the burden of proving that the substance is exogenous in origin. And that’s what the legal fiction of “deeming” does — the burden of proving that the substance is exogenous, and therefore prohibited, is met by “deeming” the substance to be prohibited. Now let me stress that the anti-doping agency isn’t doing anything wrong by deeming the sample to contain a prohibited substance — that’s part of the legal procedure it is required to follow in the WADA Prohibited List. Nevertheless, it’s interesting to note the science and law behind a determination of an Adverse Analytical Finding.

Suppose, however, that the athlete can prove that the presence of the prohibited substance is “attributable to a physiological or pathological condition” — then the sample will not be deemed to contain a prohibited substance. Now remember, the anti-doping agency must prove that the athlete’s sample contains the prohibited substance “to the comfortable satisfaction of” the hearing panel. In contrast, the athlete must only use the easier “balance of probability” standard to prove that the prohibited substance is due to a physiological or pathological condition.

However, it’s not necessarily over yet — it can get tougher for the athlete. Under WADA Rules, “in all cases, and at any concentration the athlete’s sample will be deemed to contain a prohibited substance and the laboratory will report an Adverse Analytical Finding if, based on any reliable method (e.g., IRMS) the laboratory can show that the prohibited substance is of exogenous origin. In such case, no further investigation is necessary.” What this means is that once a lab has used a method such as IRMS to determine whether a Sample is exogenous, the athlete may no longer be afforded the opportunity to prove that the prohibited substance is due to a physiological or pathological condition.

After this determination is made, the Adverse Analytical Finding of a prohibited substance is presented to the hearing panel, and the athlete must then defend against the rebuttable presumptions in the Adverse Analytical Finding — that the lab is presumed to have conducted the sample analysis and custodial procedures in accordance with WADA’s International Standard for Testing. The presumption is rebuttable because the athlete may introduce evidence to rebut the presumption that the sample analysis and custodial procedures were conducted in accordance with WADA’s International Standards.

If the athlete is successful in rebutting this presumption, the lab then has the burden of proving that even though it departed from the International Standard, that departure did not result in the Adverse Analytical Finding. Again, while the athlete must only rebut presumptions under the “balance of probability” standard, the case against the athlete must be proven by the tougher “comfortable satisfaction” standard.

However, the athlete is at a distinct disadvantage in one aspect of the case — the lab is only required to submit into evidence a Laboratory Documentation Package, which describes the test methods performed and the results of those tests. The lab is specifically not required to submit any documentation that it is in compliance with the WADA International Standard for Laboratories.

In a criminal or civil case, the laboratory’s standard operating procedures and general quality management would be legitimate subjects of inquiry to help establish whether a laboratory is capable of accurately performing complicated testing procedures. Not so in an Anti-Doping hearing — the lab is not required to provide proof of its general competence to accurately perform complicated test procedures.

This doesn’t mean that the athlete can’t introduce evidence questioning the lab’s competence, but it does make it far more difficult for the athlete when the lab is not required to provide any evidence of its general compliance with International Standards. Now, to be fair, a lab must be accredited by WADA, which means that WADA has determined that the lab has met WADA’s International Standard for Laboratories.

However, the athlete is not able to require the lab to produce evidence that it is actually in compliance with those standards. Thus, unless the athlete is able to acquire evidence of poor quality management through some other means, the athlete is hampered in that aspect of defense, and must concentrate on whether the testing and sample custody were properly performed.

In an anti-doping case, if the athlete is able to prove that the laboratory failed to follow testing or custodial procedures, the anti-doping agency must prove that the departure did not result in the Adverse Analytical Finding, or the anti-doping agency will fail to prove its case, and the athlete will not be found in violation of the Anti-Doping Rules. If, however, the athlete fails to establish a departure from testing or custodial procedures, or if it is proven that the departure from those procedures did not result in the Adverse Analytical Finding, then the athlete will be found in violation of the Anti-Doping Rules. Regardless of the outcome, it is likely that the decision in an anti-doping case will be appealed to the Court of Arbitration for Sport. And that, my friends, is a story for another day.
Bob(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.