Tag Archives: UCI

Who is Policing Gender Discrimination for International Sport?

December 15, 2015

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By Cassandra Milne – Thompson Rivers University JD Student

In Alberta v Hutterian Brethren of Wilson Colony, the Supreme Court of Canada noted that obtaining a drivers licence is a privilege and not a right. Yet, what happens when a licence takes away a right? Two years ago, Kristen Worley, a transgendered Canadian cyclist, found herself in this exact predicament. When applying for her UCI Licence she came across the following section in her athlete licence agreement:

I shall submit to disciplinary measures taken against me and shall take any appeals and litigation before the authorities provided for in the regulations. I accept the Court of Arbitration for Sport (CAS) as the sole competent body for appeals in such cases and under the conditions set out in the regulations.

Refusing to accept these terms of the agreement, Kristen Worley declined to sign the agreement. Her refusal to sign the agreement stemmed from her desire to seek refuge in the Canadian legal system to express her adamant aversion to the polices on gender verification and anti-doping. If Ms. Worley had signed the UCI agreement, the only avenue by which she could express her concerns would be in the Court of Arbitration for Sport.

Thanks to her refusal to sign the agreement, Ms. Worley brought forward an application to the Ontario Human Rights Tribunal this summer. In her application, Ms. Worley alleges that she is being discriminated against by the policies of the Ontario Cycling Association (OCA) and Cycling Canada Cyclisme (CCC). These policies are based on the UCI’s policies which are, in turn, based on the IOC’s policies.

According to Ms. Worley, the UCI’s gender polices require her to maintain androgen levels within a defined range in order to compete. As a transgendered athlete, these defined levels pushed her body into an extreme post-menopausal state negatively impacting her ability to participate in high performance sport.

The IOC attempted to deny Ms. Worley’ s application by stating that her application was not validly served in accordance with the procedures set out in The Hague Convention. Moreover, the IOC advised the Human Rights Tribunal that they intended to bring an application to the Superior Court of Justice for an order prohibiting the Tribunal from asserting jurisdiction over the IOC and for a declaration that the IOC has not been validly served.

Jo-Anne Pickel, adjudicator of the Ontario Human Rights Tribunal, accepted Ms. Worley’s application and acknowledged that both the UCI and IOC had effective legal notice of the proceedings. Citing Wambach, Ms. Pickel noted that the Human Rights Tribunal is not legally obligated to follow The Hague Convention. Moreover, Ms. Pickel denied the UCI’s request for Ms. Worley’s medical history stating, “I do not consider it necessary to order such early disclosure in this case. In my view, there is sufficient detail in the Application for the respondents to discern the nature of the alleged infringements of the Code and the legal issues that need to be answered.”

Seeking legal answers to alleged gender discrimination in professional sports is not always straightforward and simple. As Canadians we assume that our Charter Rights and access to Human Rights Tribunals is automatic and fluid. Yet, this is not always the case in an international sporting context.

In Sagen v Vancover Organizing Committee for the 2010 Olympic and Paralympic Games, the court held that the Charter did not apply because the IOC was not a Canadian government body. Moreover, in Martin v IOC, the IOC was also accused of gender discrimination for excluding 5,000 and 10,000 meter track events for women in the 1984 Los Angeles Olympics. The United States Ninth Circuit Court majority ultimately denied the claim stating, “We find persuasive the argument that a court should be wary of applying a state statute to alter the content of the Olympic Games. The Olympic Games are organized and conducted under the terms of an international agreement — the Olympic Charter. We are extremely hesitant to undertake the application of one state’s statute to alter an event that is staged with competitors from the entire world under the terms of that agreement.”

The Olympic Charter states, “The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”

Yet, in Sagen and Martin, women were denied the right to safely practice sport. If the Olympic Charter will not protect female professional athletes’ right to compete, what is their legal recourse to uphold their legal rights?

Hopefully Ms. Worley’s case before the Ontario Human Rights Tribunal will shed some light into this hitherto shadowed area of sports law.

 

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The Case for Equal Prize Money in Women’s Cycling

October 21, 2014

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By Jeanine Ball – Thompson Rivers University 2L JD Student

The ongoing debate regarding inequality in prize money between men’s and women’s cycling was re-ignited last month. A member of the winning women’s time trial team in the Road World Championships and a top U.S. road cyclist, Evelyn Stevens, reacted to the discrepancy when the winning women’s team received a total of 10,666 € , whereas the winning men’s team received 33,333 €.

Only this past year, the UCI (Union Cycliste International), the International Federation which governs cycling, amended its regulations to require that the men’s and women’s World Champions in each cycling discipline (except the team time trial) receive the same prize money. This is only a requirement for World Championships. Equal prize money is not mandatory at most other international, national or local races.

Why does it matter?

Cycling, like many sports, has been traditionally male-dominated. However, women have competed at the highest level for decades. Women competing today at an elite international level put in equal amounts of training time and effort into racing as men. Inequality of prize money for women racing at the international level amounts to gender discrimination. Insufficient income from winnings prevents women who choose cycling as their profession from accessing the same opportunities as men.

Prize money is an essential source income for many female cyclists. This is especially true for women because there is no UCI minimum requirement for salary on professional women’s teams. By contrast in men’s cycling there have been recent discussions around salary caps, and the UCI sets a mandatory minimum wage for international level road teams.

The legal argument for equal prize money is based on a fundamental human right, which is that equal work merits equal pay. In Canadian law, this right is supported both under section 15 of the Charter of Rights and Freedoms as well as statutes in six provinces such as the Pay Equity Act in Ontario. While the UCI is an international federation and is not bound by Canadian law, Cycling Canada, which oversees the sport in Canada, is federally funded, and required to abide by all aspects of Canadian domestic law as well as Canada’s international commitments. In several instances, such as the National Cyclocross Championships in 2012, race organizers under Cycling Canada have justified lower women’s prizes claiming that the UCI does not require them to pay equal prize amounts.

Arguments against equal prize money

Opponents of equality in prize money have made a number of arguments against providing equal prize money to women. First, there are often not as many competitors in a women’s category, and therefore the organizer of a race would not have as much income from the entry fees for women, so the prize should reflect this. Second, a women’s race is generally a shorter distance, so the women aren’t actually doing the same amount of work. Finally there is an argument that women’s racing does not generate the same level of interest from spectators, and subsequently sponsors.

A response to the arguments against

This could be described as a “chicken and egg” scenario. For example, if the prizes were higher, perhaps more women would enter a race. Greater numbers of women racing would also make events more competitive, exciting and appealing to spectators. Women’s races generally are also held before the men’s race, which is typically the featured event, in the timeslot when there would be greatest interest from spectators.

In terms of the argument that women are not doing the same amount of work because their races are shorter, it is worth noting that the UCI sets the limits for race distances. Additionally, a comparison may be made to other sports such as professional tennis where physiological differences between men and women are recognized through varied rules of competition yet prizing is awarded equally. Further, equality is supported by statutes such as Ontario’s Pay Equity Act which strives to ensure that women and men receive equal pay for performing jobs that may be very different but are of equal value. Women are certainly engaging in competition which is of equal value to men’s in terms of both the level of competition and athletic ability.

While equal prize money at World Championship events is an important step, there are still significant opportunities to move towards gender equity in cycling. Canadian Race Organizers should lead the way not only because it is ethical, but because Canadian law also obligates them to do so.

 

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Lance Armstrong, the USADA & Quantum Mechanics (Round 3 of the CAS Eligibility rules?)

September 2, 2012

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Some people have suggested that with the now infamous statement that “enough is enough” by Lance Armstrong on 23rd August 2012, that that statement represents a final conclusion to a long-running saga. In reality though, it may be more accurate to view this as a change of ends, or the start of the fourth quarter. As the implications of the various statements and cases are analysed, it is likely that any future legal entanglement will focus on the role of USADA and the legality of their sanctioning process. In a sense, this challenge has the very real potential to become Round 3 of the CAS eligibility rules debate, an exciting prospect given the previous knock-out victories in the earlier cases:

  • Round 1 was between USOC v. IOC (the Osaka Rule)
  • Round 2 was between BOA v. WADA (the Bye-Law))
  • Will Round 3 be between UCI / WADA v. USADA?

Tygart’s Cat?

So what do Lance Armstrong, the US Anti-Doping Agency (USADA) and Quantum Mechanics have in common? The answer comes in the form of a thought experiment by Erwin Schrodinger. Schrodinger postulated that the fate of a cat (sealed in a lead box with a flask of poison and a radioactive object) would be unknown until its contents could be observed. Until somebody could actually open the box and confirm its state, the cat would theroretically be both alive and dead. Ironically, the respective statements by Lance Armstrong and Travis Tygart (CEO of USADA) have now set-up a modern day version of this thought-experiment. It would seem from the public documents and court cases that the USADA case is based not on a positive sample (Armstrong has never tested positive for a performance enhancing drug), but rather on secondary evidence produced from statements, testimonies and samples that may be ‘consistent with doping’ that together form a non-analytical violation (see an excellent overview of this area by Richard McLaren in Marquette Sports Law Review). By refuting these charges but not continuing to engage in any future defence, Lance Armstrong has created a state where he is simultaneously innocent (the lack of any killer evidence of a positive sample violation) and guilty (the USADA non-analytical violation) depending on the observation point.

So what are the implications of this position for the USADA and WADA? To understand that, we need to examine the charges against him,

The USADA Letter

On 12th June 2012, USADA notified six people:

  • Lance Armstrong [charges 1-6]
  • Johan Bruyneel (Team Manager: USPS / Discovery/ Astana / Radio Shack teams) [charges 2-6]
  • Dr Pedro Celaya (Team Doctor: USPS / Discovery / Radio Shack teams) [charges 2-6]
  • Dr Luis Garcia del Moral (Team Doctor: USPS team) [charges 2-6]
  • Dr Michele Ferrari (Consultant Doctor to USPS and Discovery Channel Teams) [charges 2-6]
  • Pepe Marti (Team Trainer USPS / Discovery / Astana / Radio Shack teams) [charges 2-6]

that it was opening formal action against them for their alleged roles in a wide-ranging doping conspiracy involving the United States Postal Service (USPS) (1996-2004), Discovery Channel (2005-2007), Astana (2009) and Radio Shack (2010) teams, specifically relating to six charges:

  1. Use and/or attempted use of prohibited substances and/or methods including EPO, blood transfusions, testosterone, corticosteroids and/or saline, plasma or glycerol infusions
  2. Possession of prohibited substances and/or methods including EPO, blood transfusions and related equipment (such as needles, blood bags, storage containers and other transfusion equipment and blood parameters measuring devices), testosterone, corticosteroids and/or saline, plasma or glycerol infusions
  3. Trafficking and/or attempted trafficking of EPO, testosterone, and/or corticosteroids.
  4. Administration and/or attempted administration to others of EPO, testosterone, and/or cortisone.
  5. Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.
  6. Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.

USADA alleged conspirators gave false testimony and statements under oath and in legal proceedings [Page 12, USADA Letter), which may be the reason why media groups may be reconsidering earlier Court defeats: see for example Armstrong v. Times Newspapers Ltd [2006] EWHC 1614 (QB). As of yet though, USADA has not elaborated on what and when the false statements were.

Armstrong challenged the USADA accusations with his own letter and subsequently through the US District Court system (see below). The Court document describes the USADA evidence against Armstrong [page 8]:

  • Testimonies from numerous riders, team personnel and others (based on personal knowledge or apparent admissions from Armstrong to them) that he had used EPO, blood transfusions, and cortisone from 1998 to 2005; and EPO, testosterone and HGH until 1996.
  • Numerous riders will also testify that Lance Armstrong gave to them / encouraged to use and/or assisted them in using doping products and/or methods (including EPO, blood transfusions, testosterone and cortisone) between 1999-2005.
  • Evidence from the Director of the Lausanne Anti-Doping Laboratory (Dr Martial Saugy) that Armstrong’s urine sample from the 2001 Tour of Switzerland was indicative of EPO use which confirmed other witness testimony that a positive test result in 2001 was covered up. (As Lance Armstrong’s counsel later identifies though, this sample no longer exists and in 2011, Dr Saugy was reported as saying that the sample did not constitute a positive test).
  • Data from UCI blood collections in 2009 and 2010 which is fully consistent with blood manipulation including EPO use and/or blood transfusions.

The letter from Robert Luskin (Lance Armstrong’s legal team) also put forward a number of interesting questions:

  • Why has only one rider (Armstrong) from the four teams been charged?
  • How can Armstrong (and effectively the public) overcome concerns over the reliability of the witness evidence? Armstrong perhaps says it best 2/3 down his own statement: “……perverts the system and creates a process where any begrudged ex-teammate can open a USADA case out of spite or for personal gain or a cheating cyclist can cut a sweetheart deal for themselves. It’s an unfair approach, applied selectively, in opposition to all the rules. It’s just not right.”

The WADA Code, Comment to Article 10.5.3 notes that:

“If a portion of the period of Ineligibility is suspended, the decision shall explain the basis for concluding the information provided was credible and was important to discovering or proving the anti-doping rule violation or other offense.”

It will therefore be interesting to see if any ‘reduction in sentences have been applied to previous drug cheats, and if so who.

US Texas District Court (20th August 2012)

Armstrong’s team most recently brought an ultimately unsuccessful challenge to the USADA letter before the District Court. Essentially, the challenges can be summarised into three main themes:

  • USADA lack of authority
  • Violation of his due process rights
  • The USADA process itself

The first theme that USADA lacked authority to bring such charges against him was because of a statute of limitations (8yr), jurisdictional conflict with the UCI (international cycling union), and a failure of any valid arbitration agreement with USADA.

The statute of limitations can be suspended if there is evidence of a cover-up, but USADA has failed to make public any specific documentation or evidence to support this. By contrast, the latter two challenges are comparatively easier to resolve. Essentially USADA Anti-Doping rules (USADA Protocol for Olympic Movement Testing) effectively govern the implementation of anti-doping policies in USOC national governing bodies (of which USA Cycling implements the UCI rules). As a member of both USA Cycling, and an athlete included within the USADA registered testing pool, Lance Armstrong agreed to be bound by this protocol [Page 26].

Armstrong also alleged that USADA’s charging and arbitration procedures violated his due process rights, specifically:

  • Failure to provide an adequate charging document (see below)
  • No right to cross-examine or confront witnesses against him
  • No right to disclosure of exculpatory evidence
  • No right to disclosure of cooperation agreements or inducements provided by USADA
  • No right to obtain investigative witness statements
  • No right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy

Many of these points relate to the inherent distinction between discovery rules in (civil) arbitration proceedings as opposed to criminal proceedings and the Court rightly commented [Page 17] that the reliability of these results and testimony can and should be challenged by any arbitration panel. While that coupled with a valid arbitration agreement should have been enough to dismiss the case, the Court noted that the high-stakes nature of the arbitration (Armstrong’s career and reputation vs the credibility of the USADA’s anti-doping framework) and the risk of further substantial costs, meant that it was important to fully evaluate Armstrong’s case. Further to McLaren’s comments in his article (see earlier), these findings on the gravity of the case could be used to suggest that the arbitration evidential standard of comfortable satisfaction “could move to a very high standard that can become indistinguishable from beyond a reasonable doubt.” (page 211)

The District Court was also scathing about the USADA in places, suggesting their “woefully inadequate charging letter” [Page 17] was:

“so vague and unhelpful that it would not pass muster in any court in the United States. The Court is assured, however, that Armstrong will be given adequate notice of the specific allegations against him in a timely fashion prior to arbitration, and proceeds under the assumption this will actually occur.” [page 9] and it was “of serious constitutional concern”[Page 17].

At [Page 14] that:

“USADA’s conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives.”

And later in footnote 36, [Page 27] that:

“Among the Court’s concerns is the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including incredibly–several over whom USA Cycling and USOC apparently have no authority whatsoever. Further, if Armstrong’s allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC.”

Indeed, the Court noted it was only the practical realities of the time and money having to rehear the same case once the USADA had sent Armstrong a more detailed charging letter that ensured that this suit was not struck out.

Armstrong finally challenged the process itself, complaining of a potential lack of impartiality, no guarantee of an arbitration hearing, and no right to pursue a judicial review by a US court [IV]. These challenges in particular seem to display either an ignorance of sporting regulation, attempts to muddy the waters or a shotgun approach to law. Indeed, the speculation that a potential CAS Panel would be biased seems quite insulting.

Ultimately, the Court agreed with the USADA (and I must say that I do too) that the best mechanism for resolving these allegations is to test them in arbitration and exhaust these internal remedies first [Page 23].

Round 3?

The ineligibility rule in this case came from the sanctions imposed by USADA, but have they the authority to do so? As Rounds 1 (USOC) and 2 (BOA) have shown, the WADA Code is absolute and any incompatibility and inconsistency with the Code renders that respective rule void. Indeed, for the purposes of anti-doping, it is irrelevant whether USADA is sovereign in the USA as it effectively surrendered this sovereignty to WADA.

So what does the Code say?

[Comment to 2.2] – “Use or Attempted use may also be established by other reliable means such as admissions by the athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “presence” of a prohibited sample under Article 2.1”

The fact that USADA did not feel able to charge Armstrong with article 2.1 (Presence) only echoes the ‘non-analytical’ nature of the violation. The problem however with this approach is what constitutes reliable? As Robert Luskin’s letter notes, there is an obvious discrepancy between USADA holding that the UCI blood data in the 2009-10 seasons supports doping and the UCI’s own experts that took a contrary view? This area will need much more explanation from USADA.

Perhaps the most telling quote comes from the Texas judgment at [Page 29]:

“As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies [USADA, USA Cycling & UCI] are apparently unable to work together to accomplish their shared goal the regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.”

While strictly speaking, Lance Armstrong can be declared guilty of a doping violation in absentia:

Under Article 8.3: “the right to a hearing may be waived…expressly…by the Athlete’s or other Person’s failure to challenge an Anti-Doping Organization’s assertion that an anti-doping rule violation has occurred within the specific time period provided in the Anti-Doping Organization’s rules.”

The decision does leave a somewhat bad taste in the mouth, particularly since the USADA has not gone through a full hearing process. In particular, it is difficult to reconcile the feeling that the Texas Court had that the USADA charges were inadequate and an hour after the statement, suddenly they are sufficient for a lifetime ban!

Indeed, it is perhaps worth reiterating the most ominous part of the Texas Court’s judgment contained in footnote 27 on [Page 18]:

“….If it should come to pass that Armstrong does not actually receive adequate notice sufficiently in advance of the arbitration hearing, and it is brought to this Court’s attention in an appropriate manner, USADA is unlikely to appreciate the result.”

USADA have subsequently suggested that they will reveal evidence against him, but do not wish to do so for fear of prejudicing on-going cases against Bruyneel, Celaya and Marti. The problem I have is that this also works both ways. What if the cases against all 3 defendants were thrown out, does that mean that just as Lance Armstrong was declared guilty in absentia, so he can also be declared innocent?

Perhaps the most important question for any legal challenge though, is that assuming the statute of limitations is not activated, what should Armstrong and the others actually be charged and sanctioned with?

10.2: Ineligibility for Presence, Use or Possession (1st offence) – 2yrs

10.3.2: Ineligibility for Trafficking or Administration (1st offence) – 4yrs to lifetime

10.6: For Aggravating circumstances, other than Trafficking or Administration violations, the maximum period of ineligibility to be applied for a standard sanction is 4yrs.

10.7.4: Second anti-violations: “For purposes of imposing sanctions under Article 10.7, an anti-doping rule violation will only be considered a second violation if the Anti-Doping Organization can establish that the Athlete or other Person committed the second antidoping rule violation after the Athlete or other Person received notice pursuant to Article 7 (Results Management), or after the Anti-Doping Organization made reasonable efforts to give notice, of the first anti-doping rule violation; if the Anti-Doping Organization cannot establish this, the violations shall be considered together as one single first violation, and the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Article 10.6).”

It is therefore critical that USADA prove not just the substance (excuse the pun) of some of the doping violations, but that Armstrong was guilty of Administration or Trafficking charges. At present there is only one vague accusation that he distributed EPO to other riders (p.3 USADA Letter), and administration of olive oil and testosterone mix to other riders (p.4 USADA Letter). If these offences cannot be proved, then under 10.7.4, all the other violations should be taken together and his maximum ban should be capped at 4yrs rather than life.

Let’s hope that the UCI and/or WADA challenge the USADA decision, not because I believe that Lance Armstrong is innocent, but because the deficiencies in the USADA process and their lack of any public, credible underpinning evidence for their charges means that at the moment Armstrong is both innocent and guilty. Schrodinger would be turning in his lead box….

 

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Biological Athlete Passports

March 12, 2009

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Source: http://news.bbc.co.uk/sport1/hi/front_page/7908777.stm ; http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=754; http://www.newscientist.com/article/mg20126983.800-cheat-test-turns-athletes-blood-into-a-passport.html .

 

The World Anti-Doping Agency (WADA) has announced that it is very close to being able to implement the long awaited “Athlete Passport” system. It is hoped that the passport will provide testers with a lifelong “biological fingerprint” of competitors to compare drug-samples against and will be a key component in the central ADAMS (Anti-Doping Administration & Management System) Database. More details of ADAMS can be found here: http://www.uksport.gov.uk/pages/adams/

 

Any anomalies in blood chemistry, such as raised haemoglobin levels (associated with EPO abuse) or other biological disturbances would then allow further tests to be conducted and potential cheats identified at a much earlier stage than at present.

 

The idea has been pioneered by the International Cycling Union (UCI), the Federation Internationale de Skiing (FIS) and the International Amateur Athletics Federation (IAAF), and further trials of the scheme will take place at the World Athletics Championships in Berlin this summer.

 

Although the UCI has been at the forefront of piloting the passport scheme, and last year took 8,300 blood samples from 804 cyclists, its efforts are not currently being supported by WADA, after the UCI President sued WADA following a row over Floyd Landis’s appeal against his doping ban. http://www.uci.ch/Modules/ENews/ENewsDetails.asp?id=NjE5MQ&MenuId=MjI0NQ&BackLink=%2Ftemplates%2FUCI%2FUCI5%2Flayout.asp%3FMenuId%3DMjI0NQ

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