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The Explainer - When strict liability ain't that strict

Published: Jan. 28, 2009
Page had reason to smile when he won a silver at worlds in 2007.
Page had reason to smile when he won a silver at worlds in 2007.
Photo: VeloNews file photo

Dear Explainer,
I understand that you’ve dealt with the Jonathan Page question before and I was personally quite pleased to see that he was found to be not guilty of a doping violation last week.

My question, though, revolves around the rule that is applied. I’ve been under the impression that doping violations are generally treated like traffic violations – you either do ‘em or you don’t. Your state of mind and other things that normally affect a criminal case don’t apply.

Given that Page did miss his test, how did the arbitration panel conclude that he didn’t violate the rules?
William Bolling
Prairie Village, Kansas

Dear William,
Your analogy is correct. As the highway patrol treats traffic violations, the World Anti-Doping Agency treats most doping violations. In legal-speak it’s known as a “strict liability” offense. Simply put, it means that no matter why you did something, the simple fact that you did it makes you guilty. In the U.S. strict liability is rarely applied in criminal law, with the exception of minor offenses, like the above-mentioned traffic laws. In civil matters, too, one usually has to show a degree of negligence or recklessness in a lawsuit, with product liability being the most notable exception to that rule.

Anyway, as far as doping goes, the WADA Code has traditionally held doping violations to a strict liability standard. In other words, you either have someone else’s red blood cells in your body or you don’t. Period.

That said, ever since the adoption of the Code, the arbitrators hearing those cases have taken intent and state of mind into consideration when handing out penalties. Two good examples in American cycling are the cases of Amber Neben and Scott Moninger, both of whom contended that the presence of nandrolone metabolites in their systems were the result of contaminated food supplements. The arbitration panels in both cases apparently agreed and suspended them for six months and one year respectively. That’s less than the “mandatory” two-year suspension for a first-time doping offense and both decisions reflect the fact that the riders’ intent was taken into consideration.

The revised Code, which was adopted at the 2007 Madrid Conference and went into effect on January 1, actually takes such “mitigating” factors into consideration and penalties can actually be reduced to nothing, if a charged athlete can prove that such factors applied. Conversely, the new Code can also take “aggravating” factors into account and if enough of those apply, that two-year suspension can be turned into four.

But, as you point out, Page was completely exonerated of charges stemming from his missed doping test at the World Cup in Koksijde, Belgium, on November 29. How come?

Well, the rule that applies to doping tests isn’t quite as strict as the rest of the Code. The portion of the Code Page was charged with violating is Article 2, which defines doping as the occurrence of one of any of a number of events, such as having markers or metabolites in your system. Page was specifically charged with violating section 3, which says an athlete is guilty of doping if he has been found to be:

Refusing, or failing without compelling justification, to submit a Sample collection after notification as authorized in applicable anti-doping rules or otherwise evading sample collection.
You’ve probably already noticed that key phrase: compelling justification.

Page’s attorneys — including sometime VeloNews.com contributor Antonio Gallegos — successfully argued that Page’s crash at that same race contributed to that “compelling justification.”

The three-member arbitration panel agreed, noting that the concussion he suffered at the time was reason enough for him to miss the fact that his name had appeared on the list of riders to be tested that day. Frankly, with the evidence of injury that Page and his attorneys presented, we’d have been surprised if they had ruled otherwise.

On a side note, we still don’t know if the decision will result in Page’s inclusion in the U.S. team slated to take on the world cyclocross championships this weekend. Page and USA Cycling are waiting for the UCI to determine whether it will appeal the panel's.

USA Cycling has been granted an extension and now has until Friday of this week to either name Page to the team or leave that final open spot unfilled. Stay tuned, folks.

Email Charles Pelkey

"The Explainer" is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to WebLetters@CompetitorGroup.com and we'll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.