Doping and human rights

[Dumbellina]

With Patrik Sinkewitz telling all about his history of doping at various teams, such as T-Mobile and Quick.Step, and Floyd Landis getting CAS to give him the 2006 TdF title back, doping is back in the headlines.

Following last month's Summit, there is to be an anti-doping biological "passport" riders will have maintain to compete in UCI and Olypmic events.

I know this a question I harp on, but what should we do rid the sport of doping (or even bother in the first place). Second where do the rights of the riders as human beings (another contestable point) lies in relation to the need for anti-doping agencies and others to do their jobs (see quote below)?

Kashechkin's lawyer makes 'human rights' case (http://www.cyclingnews.com/news.php?id=news/2007/nov07/nov26news)
By Antonio J. Salmerón

The ex-Astana rider Andrey Kashechkin was 'hunted' for a blood transfusion in a surprise control that took place in August 1, when he was on holidays in Turkey accompanied by his family, the Kazakh's lawyer Luc Misson claimed in an interview with AS. "We have asked for a halt to the disciplinary procedure by two very clear points. One, because the [unannounced] controls by the national federations do not guarantee compliance with Article 6 of Human Rights: the right to legal defence.

"Also, the control took place during a family holiday, which is an interference in private life that can only be authorized by a public authority, not a private company," Misson named the case of an officer in the Court of Justice in Luxembourg who was subjected to an internal control, which came back HIV-positive. In 1994, the officer's case was ruled a violation of privacy.

Misson, who is defending the Kazakh rider who has complained that the current anti-doping system is illegal because it violated Human Rights, took the case in order to prove a point. He sees the doping controls as intrusive, and is undeterred by potential consequences should Kashechkin win his case. "The fight against doping has to be a mission of the Police and Justice system, rather than the Federations, or racing cyclists."

"I am calling for Human Rights, for the freedom of the individual to be respected. All doping must be fought by the State. There are 18 countries that have laws against doping. It is a business that moves about 8,000 million euros," Misson stated. "States should know these industries, see where the doping products are manufactured. It is the fight against crime and smugglers rather than condemning the weak," he added.

Misson acknowledged that he faces an uphill battle, expressing pessimism that they would win the upcoming case in Liege. "Perhaps the case is lost in Belgium, but then we go to the European Court of Human Rights in Strasbourg (France). There everything can change and create a precedent: the power to remove the federations to preserve the privacy of athletes. Everything has a defence. The athlete must be protected."

[at the drive in]

Cycling should be like other sports only having a token drug testing system, not investigating doping cliams whilst sweeping it all under the carpet and proclaiming they have the toughest drug testing system.

[DaGonz]

Following last month's Summit, there is to be an anti-doping biological "passport" riders will have maintain to compete in UCI and Olypmic events.

I know this a question I harp on, but what should we do rid the sport of doping (or even bother in the first place). Second where do the rights of the riders as human beings (another contestable point) lies in relation to the need for anti-doping agencies and others to do their jobs (see quote below)?

By signing your licence, you agree to race under the terms of that licence. If you don't like random drug tests at any time, don't sign your licence. No one is stopping you from being a cyclist, you can ride your bike all you like, but the rules of bike racing are very clear.

Cheers
Gonz

[Some Guy]

No one is stopping you from being a cyclist, you can ride your bike all you like, but the rules of bike racing are very clear.

I agree entirely. If you want to be a professional sportsperson, wave bye bye to your privacy and your rights. We should do our best to protect them where possible, but in the end athletes have to accept they will be subject to measures which would in other situations be considered immoral. I'd prefer that than having to use drugs to have any hope of getting to the top.

[BM Epic]

Good call guys!
I beleive the punishment handed out should be harsher,even 1st time around,maybe this would deter rider's in the 1st place!

[liamo]

By signing your licence, you agree to race under the terms of that licence. If you don't like random drug tests at any time, don't sign your licence. No one is stopping you from being a cyclist, you can ride your bike all you like, but the rules of bike racing are very clear.
But, if we take Misson's claim on face value and it is a violation of human rights, shouldn't we take pause at the actions of the UCI (I assume; the testing agancy wasn't mentioned)?

What if they decided to publish every athelete's private address, phone number, ect? Would that be OK? It would make the sport more open and transparent.

What if they decided to punish your family for your actions as a drug cheat? They could ban your brothers and sisters from competing because you're obviously all tarred by the same brush.

I don't think the point of this is that drug cheats shouldn't be punished, more along the lines of how far are 'we' prepared to go to catch them? If all it does is stop athletes who value personal freedoms from competing then what kind of people will we be looking up to? Remembering that there will still be cheaters who didn't get caught winning, no matter how effective the controls are.

Liam

[DaGonz]

What if they decided to publish every athelete's private address, phone number, ect? Would that be OK? It would make the sport more open and transparent.

What if they decided to punish your family for your actions as a drug cheat? They could ban your brothers and sisters from competing because you're obviously all tarred by the same brush.


But the UCI arn't (at least as far as I'm aware) doing any of the above. The question at hand is if random Drug tests at any time are a violation of human rights? I would argue that they're not because you signed a contract with the UCI which says yes I accept you may come and test me at any time. Otherewise you're just going to go on holidays all the time. (and partly why work choices is such a crappy legislation... but that's another argument)

Now misson or whoever is claiming:

"Also, the control took place during a family holiday, which is an interference in private life that can only be authorized by a public authority, not a private company,"....
"The fight against doping has to be a mission of the Police and Justice system, rather than the Federations, or racing cyclists."

right... so does that mean he's happy for a government authority to take a random control during his holiday?

These guys are talking one or two random out of racing controls a year. I don't know how long it takes, and I can imagine it'd be annoying to be ready to go someplace and have someone come and interrupt your life. But it's only a couple of times a year. There's many a person I know who are permenantly on call. They get paid bucket loads of money with the expectation that no matter where they are, they'll answer the phone. This not that dissimilar, and I'm willing to bet they get paid a whole bunch more.

While I accept what's happening now could be pushing the boundaries of acceptable, I would give anything to have the ounce of talent these guys have, and to share in some of the experiences. If the cost is a couple of random drug tests a year then so be it. They chose that path and knew ahead of time they could be tested. I have little or no sympathy...

or perhaps he would have more credibility if he was arguing the case before he and his team mate were busted for blood doping (and note, he's not arguing the actual test result)

Cheers
Gonz

[liamo]

But the UCI arn't (at least as far as I'm aware) doing any of the above. The question at hand is if random Drug tests at any time are a violation of human rights? I would argue that they're not because you signed a contract with the UCI which says yes I accept you may come and test me at any time. Otherewise you're just going to go on holidays all the time. (and partly why work choices is such a crappy legislation... but that's another argument)

Now misson or whoever is claiming:
No, you're not getting my point.

What I said was based on the assumption that it is deemed to be a breach of human rights.

If it's not, hang the dude out to dry with no sympathy or leniency just because he was on holiday.

But IF it is found to be pushing the boundaries, then I'm saying that we should take pause. Neither of us are lawyers and I'm happy for someone who has actually read the charter of human rights to decide that.

I don't see any difference when a cop breaks the law to get evidence to convict someone. Even if the evidence is true and the accused is guilty there are good reasons why the evidence should not be allowed in a court of law.

The examples I threw out there were just fictional scenarios that I don't think are completely unrealistic. If the UCI gets away with breaching peoples human rights now, then what happens in 5 years time when there are still people getting busted for cheating and there's a call for harsher testing controls?

Liam

[liamo]

right... so does that mean he's happier for a government authority to take a random control during his holiday?Or maybe he'd be happy if the evidence gathered against him was obtained legally?

[Pete W]

IF......
He signed his contract knowing the anti doping policies and procedures
and If he has tested positive to a banned substance or potential doping procedure even whilst on holidays he is done and dusted.

Like some one much smarter than me once said (quite recently) " The rules of bike racing are very clear "

We could be all very civil libertarian about it and bleat on about how its a violation of human rights....blah...blah...blah but if you don't want to be tested("Violated").... easy rip up your contract and get a job in sales for the pharmaceutical company;)

I got breath tested on the way home from work tonight... no violation.... just me complying with the rules of the governing body on which i agreed when I signed for my licence.

[FR Drew]

If you were to go on a talent quest where you sang (say a pub karaoke night) would you be willing to give that pub exclusive rights to any potential music gig you might get for years into the future? Probably not. If you went on Australian Idol, you can bet your balls that every single contestant has their potential future rights locked up by the ten network tighter than a fishes ring gear.

What's the difference? You say you want to compete in the TdF or any other elite level cycling comp then they set the rules under which you have to compete. You don't like it? Fine, then choose not to compete, but if it's the only game in town that'll give you the kudos you seek then don't come bleating when they impose certain conditions on you, irrespective of if they'd be appropriate for the general populous. It comes with the territory. Deal with it or get out. Your choice.

I'm sooooo sick of elite level athletes getting paid bucketloads who bleat about how "unfair" the conditions are that they have to compete under.

Hell, I think that getting paid half a million bucks to play 20 friggen games of footy is pretty freaking unfair when I work all year to earn 60k too. Deal with it.

You choose to enter the elite level then you check your rights at the door and you agree to the conditions set by the sports governing body. End of story.

[DaGonz]

I don't see any difference when a cop breaks the law to get evidence to convict someone. Even if the evidence is true and the accused is guilty there are good reasons why the evidence should not be allowed in a court of law.

The examples I threw out there were just fictional scenarios that I don't think are completely unrealistic. If the UCI gets away with breaching peoples human rights now, then what happens in 5 years time when there are still people getting busted for cheating and there's a call for harsher testing controls?
....

Or maybe he'd be happy if the evidence gathered against him was obtained legally?

Yeah ok... I can see your point. My feelings on it still stand though.

The other thing where this becomes really sticky is, to the best of my knowledge, the WADA and appropriate subsiduaries (ASADA etc... ) are not legally binding courts and are not subject to the same evidence legislation as a real court would be (as was clearly evident in the Floyd Landis arbitration and somewhat in the Mayo situation (http://www.cyclingnews.com/news.php?id=news/2007/nov07/nov21news)). The fines, penalties etc... handed down by the appropriate anti doping agencies are done so under the contract you signed when you signed your licence. Which is why there is CAS, an actual Court which is effectively there to determine whether each party has fulfilled their side of the contract appropriately

That is more my concern on civil liberty than having to be tested randomly on your holiday, that UCI/WADA/Whoever can go on a witch hunt, run tests on your sample till they get the results they want, fumble simple evidence handling etc... and still present it as evidence against you. Mayo's B sample was tested at two independant labs and was found clean. Process has been run, drop it! In a real court, Flandis's A sample would never have made it to the bench.

As an athlete, the odds are stacked against you regardless if you're innocent or not, and I think that is a greater problem than having some strange man knock on your door while you're on holiday to take a blood test.

Cheers
Gonz

[Dumbellina]

I agree that cyclists elected to sign a contract that commits them to several things (in fact there are several contracts that create many many commitments - cyclist & national federation (& UCI), cyclist & national olympic committee, cyclist & team, cyclist & individual sponsors, etc) but there are a couple of issues
* no contract can lawfully remove or deny someone's human rights, including the right to privacy (with certain limitations)
* these are essentially employment contracts, so the same obligations (including drug and alcohol test for safe workplaces) and rights (right to privacy, right to a safe workplace) apply as do regular employment contracts
* there is also an issue about freedom of contract, given that the UCI and pro-tours are the sole providers of meaningful employment for pro-cyclists (except, perhaps, the US domestic circuit) and they control an actual monopoly over the pro-cycling market - there may be grounds to argue that there is no freedom of contract, rather a compulsion to accept their terms or no terms at all.
* I think it relevant that all sports should be governed equally - scrap the national federations and Olympic committees, make the WADA Code entirely binding on all sports (even non-Olympic ones), and replace them with truly professional governing bodies.

[Pete W]

* no contract can lawfully remove or deny someone's human rights, including the right to privacy (with certain limitations)
* these are essentially employment contracts, so the same obligations (including drug and alcohol test for safe workplaces) and rights (right to privacy, right to a safe workplace) apply as do regular employment contracts
* there is also an issue about freedom of contract, given that the UCI and pro-tours are the sole providers of meaningful employment for pro-cyclists (except, perhaps, the US domestic circuit) and they control an actual monopoly over the pro-cycling market - there may be grounds to argue that there is no freedom of contract, rather a compulsion to accept their terms or no terms at all.
* I think it relevant that all sports should be governed equally - scrap the national federations and Olympic committees, make the WADA Code entirely binding on all sports (even non-Olympic ones), and replace them with truly professional governing bodies.

I agree totally with your last paragraph
But don't you think continually bleating on with the civil libertarian blah blah and not providing a suitable alternative to the current situation so to raise the sport out of the current mire it is in, sounds really like these guys are guilty and are just trying to save thier own skin on a percieved technicality?

The inevedible consequence of a hard line approach to cleaning up this sport for the betterment of it means that there will be some that tow the line and excel and others will cheat, get caught and blame every thing and everyone else for doing exactly that...... cheating.
I feel that its time to get tough with the rules or change them.

[DaGonz]

Hooray!

http://www.cyclingnews.com/news.php?id=news/2007/nov07/nov29news

"The court ruled that the case should be tried in a court in Switzerland, where the UCI is headquartered. It also ruled that a rider's application for a license was the equivalent of a contract, and in accepting the license, the rider also accepted the UCI's terms and conditions, including anti-doping controls."

I'm pretty sure someone recently has gone through the same thing in a spanish court. I couldn't find the reference though so am not sure and could easily be wrong.

you might see this as a win or a loss. Personally I see it as a win. While I agree that the current anti doping measures might be pressing the realms of "reasonable", it is important that international sporting bodies are able to enforce the rules under which their athletes have agreed to compete. the next step is getting UCI to actually do so in a consistent manner.

Kashechkin has chosen not to argue the results of his positive test, merely pushed a legal loophole. If he won, it would do nothing to the image of cycling, or Kashechkin other than the perceived "cheater" getting off on a loophole. The damage could be far reaching including further cases from already suspended riders, damage to UCI & Cyclings image as a whole, and serious implications to the anti doping movement. If he loses, he only further proves the system works. There can be nothing good for Kashechkin from this case.

...just my thoughts anyway

Cheers
Gonz

[liamo]

Hooray!Release the hounds then :)

you might see this as a win or a loss. Personally I see it as a win. While I agree that the current anti doping measures might be pressing the realms of "reasonable", it is important that international sporting bodies are able to enforce the rules under which their athletes have agreed to compete.I don't really see it as either. I just think it is important to hold some perspective on things. Signing away human rights and making professional sportspeople second class citizens is not something I would like to see associated with cycling.

I'm happy enough to accept the decision that it was not a breach of human rights, therefore Kashechkin should be held fully accountable, punished and life moves on.

Liam

[alchemist]

Did the court actually decide that it was not a breach of human rights? Or just that the signing of the licence was a contract and since that was between the rider and the UCI in Switzerland it had not juristiction to rule on whether or not the contract was a breach of human rights; please try next door?

[liamo]

Or just that the signing of the licence was a contract and since that was between the rider and the UCI in Switzerland it had not juristiction to rule on whether or not the contract was a breach of human rights; please try next door?Well spotted, it does not appear there was any consideration to the human rights issue at all. Then I guess my concerns on the matter are still unanswered...

[Dumbellina]

Did the court actually decide that it was not a breach of human rights? Or just that the signing of the licence was a contract and since that was between the rider and the UCI in Switzerland it had not juristiction to rule on whether or not the contract was a breach of human rights; please try next door?

Its a conflict of laws matter - "A Belgian court has refused to hear the case, ruling that it has no jurisdiction in the matter, and that Kashechkin had agreed to undergo such testing when he accepted his license."'

A licence is of course a contract and most contracts specify the "law of the contract", ie which nation's domestic law governs disputes and interpretation etc.

One would think this a simple matter but its not. As well as the law governing the contract, there are human rights law which can have universal jurisdiction (eg genocide) which means a legal action can be brought there regardless of where the incident happened (eg Switerland) or the parties' nationality. Belgian courts famously have universal jurisdiction for war crimes, genocide, etc, it its natural to assume that a human rights case should be brought there.

So Alchemist is right the Belgians "whoof shrugged" the case to Switzerland and the substantive points of law are yet to be argued and deliberated. But I would be interested to see their reasons for declining universal jurisdiction.

Gonz- human rights aren't loopholes to the law, they are the fundamental fibres that make it up. It could be no different to the athlete being "water boarded" by CIA contractors as part of the testing regime.

[DaGonz]

Gonz- human rights aren't loopholes to the law, they are the fundamental fibres that make it up. It could be no different to the athlete being "water boarded" by CIA contractors as part of the testing regime.

You're missing my point. This guy has been busted. Both his A and B samples have been tested in accordance with UCI and WADA rules and both have been found positive. He's not arguing the result, instead he's arguing an aspect of the law, regardless of what it is to say the test shouldn't have been done in the first place.

Now he's welcome to take whatever defence he likes, but at the end of the day, it's a seemingly guilty man (remembering he's not arguing the result) claiming the rules arn't fair after he was paid large amounts of money, and agreed to compete under the auspicies of those rules...

The rights of workers, has been argued for centuries, and this is no different except normally there is a collective arguing the point. This is a sole person, implicated negatively in a scandal. I strongly feel it would be a bad thing for cycling, and there would be far reaching implications if he wins.

Cheers
Gonz

[DaGonz]

But I would be interested to see their reasons for declining universal jurisdiction.

Well for starters, it's pretty non binding.... for instance Australia just happens to ignore parts of Intermantional Human Rights legislation w.r.t Asylum seekers. The United States is doing pretty well at ignoring parts of the Geneva convention (espeically w.r.t Iraq) to which there was some kufuffle about (they didn't want any of their soldiers implicated...)

Certainly to the best of my knowledge (1 subject at uni) the highest piece of legistlation you can argue in Australia is the Constitution. International and foreign laws may influence our legislation but you can't wander down to your local court and argue someone violated X international Law. There is no "over powering mandate..." Governments pick and choose when to enforce International law when it is politically convenient for them to do so. Countries under the EU might be a little more messy.... but I imagine there would be some over riding "rights and responsibilites" under a EU constitution of sorts which each country has signed to.

The more I read and the more I think about this, this is a smoke and mirror defence:

The right to legal defence? but he's not being charged with a crime, he's being asked to fill out a contractural obligation. There are no legal consequences if he refuses, there are contractural ones though. The implications if he wins here include needing to have a lawyer. UCI/WADA could easily rebutt "sure, but we won't let you race unless you do the tests... you might want to travel with your lawyer a bit more often"

The right to privacy, well maybe, but he agreed to be tested as part of his contract with the UCI. He even told them where he would be! He could have lied, Rasmussin did... he wouldn't have broken any laws in doing so... Didn't we just crucify Rasmussin a few months ago for defying this obligation? is the mob that fickle Cassius?

Anti doping agencies arn't legal entities, they can't force you to do anything you didn't already agree to. It might be a shitty condition for their job, but I know quite a few people on the end of a phone 24x7x365 who still get paid alot, but not the hundreds of thousands of euros these guys are on.

Again, perhaps if this guy hadn't already been done for blood doping he might have a little more credibility.

I cry for you Kaschechkin, really I do, your "human rights" have been violated... remind me to tell that to Amnesty international next time they come knocking, those poort blood doping cyclists have to do all those tests!. Maybe we could start the "Free Kaschechkin" movement?

Anyway, we'll see what comes out of the other end of the Euro Legal train. As mentioned before, I'm pretty sure someone tried this in spain against the national body recently, only to be told something similar (contractural obligation yadda yadda ) and havn't heard anything since. I would be disappointed if it got up though.

*shrug*

Cheers
Gonz

[liamo]

You're missing my point. This guy has been busted. Both his A and B samples have been tested in accordance with UCI and WADA rules and both have been found positive.I don't think that point has been missed, just that it is a separate issue to the human rights issue.

Nobody on this forum has defended Kashechkin's doping actions.

There are however concerns about how far the testing regime has gone to catch a guilty dude.

If the UCI thinks it's ok to violate human rights in order to catch a doper and a court confirms that it's ok to do that too, then I say balls to professional racing. Your examples of countries ignoring human rights is exactly why I'm frankly scared by the UCI actions. Just because the USA and Australia are dodgy as, doesn't mean it's acceptable!

While Kashechkin might be blurring the lines to get off, and I get the impression you are too, his guilt is not affected by a courts determination on his human rights. If the court rules in his favour that his rights were abused and he gets off on this 'technicality' then so be it.

Don't you see something fundamentally wrong with a governing body acting illegally in the quest to stamp out illegal activity?

[DaGonz]

If the UCI thinks it's ok to violate human rights in order to catch a doper and a court confirms that it's ok to do that too, then I say balls to professional racing.
...
Don't you see something fundamentally wrong with a governing body acting illegally in the quest to stamp out illegal activity?

I feel this process needs to happen. I wish it was happening adjunct to an existing doping allegation. I also don't disagree with the current requirements as they stand, though would be concerned if they went too much further, which is why I feel this process needs to happen in order to clearly draw the line as to what is acceptable and what isn't.

I completely resent Kaschechkin for using what I consider a loose interpretation of the law, or at least pushing the boundaries of the law, in order to escape penalties he knowingly agreed to under the rules he has known, and (clearly) fraudulantly earnt considerable amounts of money under for some time. If he did not agree to them, then why was he not campaigning for change *before* he was done for blood doping. I also feel that the phrase "violation of human rights!" has been sensationalised in this context, something I potentially resent the most. There are far greater attrocities in this world than whether an out of control blood test is a breach of privacy. I honestly find it tough to get past and overwhelming desire to tell Kaschechkin to "Suck it up Princess..."

I fully agree cyclists rights need to be protected and in order to do that, the boundaries need to be clearly drawn. I just hope that when all is said and done, Kaschechkin still gets a 2 year ban.

Cheers
Gonz