Nick Peacock (leading) is a lawyer
and he’s no slouch in a sprint too…
As the WADA/UCI/L’Equipe spat lingers on and on, RCUK gets a professional opinion from someone who understands the heady mix of the law and the eclectic world of professional bike racing. Nick Peacock is a Barrister and it just so happens he can ride a bike a bit too. So here’s his take on the whole sorry, messy, story…
Remember the “charge” made in the infamous L’Equipe article? Six of Lance Armstrong’s urine samples from the 1999 Tour de France had tested positive for EPO. As Dick Pound, the President of the World Anti-Doping Agency (WADA) put it: “If he had one, you could say it was an aberration. When you get up to six, there’s got to be some explanation”.
Well, now we have the blockbuster 130 page report produced by Emile Vrijman, the attorney from The Hague appointed by the UCI to carry out an independent investigation into the analyses of urine samples conducted by the French WADA-accredited laboratory, the Laboratoire Nationale De Depistage Du Dopage in Chatene-Malabry, France? (Don’t worry, I’ll call it “the lab”.) And what does it show? Lance finally cleared? Or is it just not proven? Or is this a lawyer’s weasel-worded let off?
Well, let’s get three things established early on. First, I’m a lawyer, so I’m interested in these sorts of carefully detailed reports and in sniffing out weasel words. Second, I’ve never really been a fan of Lance – impressed by him, sure, but never a fan. (He needed to race on the cobbles in the rain more often to get me as a fan). Thirdly, and perhaps controversially, I find myself somewhat ambivalent about doping in cycling (in fact in all sport). Sure, I’d prefer to know that everyone competes clean but they don’t and they never will; but I’m still unfailingly impressed when a guy rides off the front of a hard-charging peloton – how the hell do they do that?
So, does the report prove anything about Lance and doping? Well, I’ve read it (yep, all of it) and it is for sure a careful and, I think, a balanced analysis that seems to be the product of an impressive amount of work. It is also soundly-reasoned and forensically impressive. But it is just one opinion, based on looking at the documents and asking some questions – if we’d done the job we might have reached a different opinion. The report is also, admittedly by its authors, not the final word, if only because Mr Vrijman received only limited co-operation from the lab, the relevant French Ministry that controls the lab, and from WADA. Which means that some conclusions can only be preliminary.
Come on, I can hear you saying, stop hedging it about like a lawyer and tell us what it says and what you think about it. OK, I will. It is a comprehensive demolition of any case that Lance can be proved (to the required standards under the rules and law) to have used EPO in 1999. The authors and publishers of LA Confidential and the articles in The Times and L’Equipe ought to be warming up their pens to make out a rather large cheque to Lance for libel damages…
Before looking at what the report shows us, it is vital to have in mind that what the lab was doing. It was carrying out research with a view to developing a new and better test (based on a mathematical modelling process) for EPO. So, the lab tested samples from all sorts of sources, including the public, members of staff and, eventually, 1998 and 1999 Tour de France samples in order to develop its model based on the analysis of samples known to be EPO positive and negative. It was not testing urine samples with a view to providing evidence in support of a doping case. For that reason, a whole host of steps and protections that are required in order to make out a doping case were simply not followed. In short, proving a doping offence by Lance (or anyone) was never going to be possible, nor was it ever any part of the lab’s intention.
These are the highlights of what the report clearly establishes about the testing process undertaken by the lab:
First, the lab could not show a “chain of custody” for any of the 1999 Tour samples that were tested. Although this can in some cases be lawyer’s technical get out, in this case it seems to have substance behind it because many of the 1999 Tour de France samples were known to have already been opened and used for other research testing and some of the samples in the research done by the lab were deliberately “spiked” with EPO. Unless you know what the other research was and what it involved, and unless you can show that none of the 1999 Tour de France samples were spiked, then you can’t even start.
Secondly, the lab did not carry out the required “urine integrity testing” (except by looking at the samples) which is intended to establish whether samples were in an unusual condition after their 5 or 6 years of storage. This is important because it has been established that certain agents in urine can, over time, cause a change in the body’s natural EPO to falsely appear as artificial EPO.
Thirdly, there was no urine confirmation test. In other words, as the lab had only looked at one sample per rider, there was no second (or “B”) sample that could be tested to confirm the result. Without a positive “B” sample, of course, no doping offence could ever be established.
Fourthly, the lab had not undertaken a stability test on the urine, which was a compulsory test introduced by WADA after several urine samples done at other WADA approved labs had produced what were acknowledged to be false positives. This was, therefore, a vital test to have undertaken for any doping offence to be even suggested.
Fifthly, and most fundamentally, the lab did not use the WADA approved method for screening the urine samples for EPO, which requires control samples. Rather, the lab had used a different, accelerated testing method (the exact details of which it was not willing to share with the investigator) which might (or might not, according to the investigator) be sufficient for producing a mathematical model, but was a long way short of what was required for a proper WADA-approved dope test.
To sum up, the testing undertaken by the lab failed in almost all material respects to comply with the requirements of WADA’s own rules for the analysis of doping control samples. The lab maintained to the investigator that it had a strong belief that the measurements of EPO obtained during its research were valid and trustworthy. But the investigator concluded, seemingly quite correctly in view of the failure to meet so many vital requirements of the WADA testing regime, that the lab’s belief was just that – a belief, and not proof. And, in any event, that belief couldn’t be in any way reliably linked to a Lance sample: “…the failure of the underlying research to comply with any applicable standard and the deficiencies in the report render it completely irresponsible for anyone involved in doping testing control to even suggest that the analyses results that were reported constitute evidence of anything. To suggest in any way that any of the analyses results could properly be associated with a particular rider or riders, is misleading and constitutes at least gross negligence….”
OK, so that’s a pretty firm conclusion don’t you think? Then what, you might ask, was Jean-Marie Leblanc doing saying to L’Equipe at the time of the original article that it was a “proven scientific fact” that Lance had EPO in his body during the 1999 Tour? Why the rush to judgment by him and so many others?
And that, really, is the most interesting, shocking and depressing part of the story that the report tells. It is a story that cannot completely be told because of the refusal of the lab, the French Ministry and WADA properly to co-operate with the investigation (now, I wonder, why would they do that?) but the report makes out a compelling case to the effect that the lab’s academic scientific research was in effect high-jacked by WADA (which brought pressure to bear on the lab via the French Ministry) in order produce test results (that were, remember, never intended to support doping charges) that could then be made public and used to try to force the UCI to investigate and bring doping charges. One of Dick Pound’s early quotes was this: “It [the lab] is one of the World’s leading laboratories concerning research of EPO. Consequently, I have no reason to believe that the analysis of the urine samples has not been conducted in accordance with the rules”. Maybe he didn’t have any reason to believe that, but that can only be because he never asked.
Then, add in that WADA was funding part of the lab’s research project, WADA leant on the lab to include details in its reports that would enable the individual riders to be identified (which was, of course, irrelevant in a report on how the mathematical model was being developed), and WADA has “spun” the story endlessly to the detriment of the UCI (for example, in the early stages Dick Pound accused Hein Verbruggen (the then UCI President) of personally leaking documents to L’Equipe) and what do you get? Conspiracy anyone?
Well, no. I don’t think so. Not proven, yet. And, since WADA’s only response to the report to date has been a press release talking about libel and legal advice, I’m not going anywhere near making that suggestion. But, that WADA response (a rejection of the report in intemperate terms without any attempt to address the detail or reasoning of the report) exemplifies what I find most shocking and depressing about this story, which is the childish bickering, spinning, whingeing and bitchiness that has gone on and still goes on between the UCI and WADA. Just read some of the quotes in the report from the letters passing between the UCI and WADA – it’s like a class of 8 year old girls.
Aren’t these people supposed to be working together to stop doping, to bring to an end whatever it is that causes too many young professional cyclists to drop dead of heart attacks, to help make us believe that the guys on the podium on the Grand Tours raced and won clean? Well, they seem to have forgotten that and allowed themselves to descend into playground spats. In the meantime, whilst the UCI and WADA take their eyes off the real challenges, in Spain doctors have been doling out fresh blood to more cyclists than you can count. Isn’t that more important?