Could Froome lose his Giro, or be blocked from the Tour? A sports lawyer Q&A
It was in December last year that the news broke of Chris Froome’s adverse analytical finding for raised salbutamol levels. Immediately, there were a bunch of questions that needed answering: Was Froome guilty? Did something go wrong with the test, as Froome and Sky claim? Will he serve a ban? Will he lose his 2017 Vuelta a España title, and his bronze medal from World Championships time trial?
An already complex situation was made even more so when Froome announced he would continue racing as his lawyers worked to mount a defence. Froome’s start at the Giro d’Italia was particularly controversial, but with the Briton off the pace in the first two weeks, it seemed we might be spared any further complications that would arise from him winning the race.
But now that Froome has won the Giro, the situation is messier than ever before. Could Froome lose his Giro title? Will the case be resolved before the Tour de France? If not, can ASO block Froome from taking part, as they seem willing to do?
To find answers to these questions we spoke with Jack Anderson, Professor of Sports Law at the University of Melbourne. In addition to his academic duties, Anderson is also a member of the Court of Arbitration for Sport (CAS). The following is a transcript of our conversation with Anderson, lightly edited for fluency.
CyclingTips: You’ve been keeping an eye on the Chris Froome case over the last few months. What’s been your perspective on the case generally?
Jack Anderson: It’s an unusual case I suppose, both in terms of length and in terms of substance. One of the things that people think about with doping cases is this principle of strict liability. In other words, once someone tests positive the presumption is that they’re at fault. But actually what the Froome case reminds us is that, at first instance, the sports body and their testing agency must prove that there’s been a positive test.
This is the interesting thing with Froome … we’ve gone right back to the fundamentals of the issue where he’s saying that the case against him is not proved. And the reason for the delay seems to be that these are pretty complex scientific arguments and a lot of documentation and validation is needed. Therefore there has been a lengthy process through the UCI’s independent arbitrary process.
Usually when these instances occur the rider in question is provisionally suspended but the nature of the substance here means that he’s not provisionally suspended. Therefore he is, in strictly legal terms, allowed to ride and allowed to pursue his career. And what we have then is the process occurring in parallel to that.
What’s going to be interesting now is that the Tour de France organisers, ASO … has a provision in its regulations which says that it can refuse to invite a person if they feel this will undermine the reputation of the race. They’ve said they may well invoke it against Froome, so that’s going to present a really interesting legal dilemma for all involved.
If ASO decide to try and stop him from riding at the Tour, is there any provision for Froome to appeal that to CAS?
Yeah, we have had this before. I think it was back in 2009, there was a cyclist called Tom Boonen — he tested positive for cocaine. It was out of competition and it was not a technical violation of cycling’s anti-doping code at the time. The race organisers feared that if they allowed him in, it would tarnish the Tour’s reputation so they made moves to stop that.
This then went through an internal French sports arbitration process and eventually ended up in the French courts, which allowed him to compete. So there is precedent there. ASO have lost in previous times and this will be the argument that Froome will make.
Froome will say he’s not been convicted of anything in terms of anti-doping. Yes there are allegations, which he is contesting vigorously. So he will say ‘What exactly is the basis for refusing me?’ I’m sure he would point out that there are people who have been convicted of doping offences who will ride in this year’s Tour de France on the grounds that they have served their sentence. So he will say ‘Well I haven’t been convicted of anything. And yet you you’re refusing me?’ And he would probably use the Tom Boonen precedent to make that point.
What do you think of the argument that, ethically, Froome should have stepped away from racing while the case is being resolved?
It’s always difficult when you’re talking to lawyers about ethics! We have other teams who have signed up to various anti-doping self-regulation within cycling who will say that when you are accused of this you should step aside and a provisional suspension should apply. But Froome’s argument is the legal argument — that he hasn’t been convicted of anything, he’s entitled to due process, and while that process is ongoing he’s entitled to ride. But the broader issue is whether or not the ASO decide to take that ethical standpoint.
And there is recent precedent for them which relates to the Winter Olympics and the Russian doping stuff. A number of the Russian athletes contested their doping charges. CAS said there was insufficient evidence against them, so the Russian athletes won. Then the Russian athletes said to the International Olympic Committee ‘You must allow us into the Winter Olympics’. The IOC said ‘No, there’s a difference between being eligible and whether or not we can invite you in.’
The Court of Arbitration for Sport was invoked again a second time and the Court of Arbitration for Sport said ‘Yes, there is a difference between being eligible’ — and Froome is eligible — ‘and the organisers right to invite’.
Now the key point is: what are the criteria about your invitation? Are you just going to invoke something that says ‘Oh, we’re protecting the reputation of the race’? What exactly is the basis for that? Will that basis be applied consistently and into the future?
Given what Froome has done in the Giro, he now holds all three tours consecutively, he’s going for a fifth Tour — this is historic proportions. Will the ASO say ‘no’? It’s going to end up with the lawyers in either event, I think.
What’s your feeling on how the actual Salbutamol case is going to play out? Is there any precedent that we can look to that will give us an idea of how it might unfold?
It seems to be a very technical argument now about the sensitivity of the test. The precedent on this, from what I can see, is not good for Froome in the sense that the test has been around for quite a long time. So this is going to be a very difficult argument for him to make, I would think.
Normally in these cases the athlete almost admits strict liability and tries to mitigate the sentence. But here we seem to be going back to the very first basics which is going to be very very difficult for Froome. But obviously he has the resources, and the legal team think they have the argument.
Speaking of Froome’s legal team, do you think there’s a possibility that they are dragging things out so it’s resolved after the Tour de France?
There’s always this argument about whether or not tactically it’s better to drag it out or sometimes have the case very quickly. I mean, you’ve got to understand though this process is being run by the UCI’s independent anti-doping arm. So they’re the ones in charge of procedure. In some ways they are the ones that you have to ask the questions about.
It’s been well flagged when the Tour is going to take place and when the Giro is going to take place. They’re the ones in charge. It’s like in court proceedings: ultimately it’s a judge that directs the [proceedings]. What the lawyers do tactically on either side is part of the game, but it’s ultimately for those in charge …
This will probably end up in for the Court of Arbitration for Sport anyway. So you could see a situation that, even if the UCI come up with some decision, there would be some appeal to CAS and that adds another layer of complexity. So my guess is this will not be resolved before the Tour and therefore the ASO are going to have their decision to make.
Is it your feeling that he’s likely to get a ban at this point?
Based on the precedent you would imagine yes, that that would be the case. It’s very difficult to make the argument they’re making. But I have to say: they’re absolutely entitled to make it and they will give significant resources to it.
What plays out then though, when you talk about a ban, is when does the ban start? Will it be backdated? How long will it be? So you have another separate set of arguments there. I think the big thing is this will not be settled before the Tour.
How will it be worked out whether the ban is backdated or not? Is that something that’s also decided by the UCI’s anti-doping arm?
Yeah, it is. And the way these things go is that say Froome’s representatives will make their case about the test and the sensitivity. Then they will argue, without prejudice to that, if Froome is found to have violated anti-doping codes, then they’ll argue mitigation of sentence. One of the things they’ll argue is that the ban should be backdated quite a bit and all these other factors which came into play. There’s a complexity there but ultimately that decision will be made by the UCI[‘s anti-doping arm].
And would that be based on the WADA code or does that just come from an interpretation of the precedents?
A lot of this is facts-specific to the case itself, and when the test was done, and in terms of his riding schedule and all that kind of material. It’s actually not that complex a process. And we’ve seen it with, for example, [Alberto] Contador — when he got a ban it was backdated quite a bit. So there’s plenty of precedent there but it’s very fact-specific and it’s almost an equation that can be worked out.
How will it be decided which results Froome will lose if he does get a ban? Does the independent arbitrator decide that?
The situation is unclear but it seems if Froome gets a ban, then he will definitely lose the Vuelta title from September 2017, as that was when the tests showed his [salbutamol levels were too high]. If, as he could have done under the UCI rules, he opted to “self provisionally suspend” after the Vuelta, and remained self-suspended while this legal process was ongoing, he could then have used his period of self-suspension to get any sanction backdated to the date of the adverse test (September 7). He didn’t do that as he wanted to ride and win in the World Champs, Giro etc.
UCI anti-doping rules state [ed. see 10.11 here] if the case against Froome is proven, he is banned from the date of the UCI anti-doping hearing. The independent arbitrator also however appears to have the power [ed. under 10.8], “unless fairness requires otherwise”, to render void all competitive results that the rider has obtained from the date of the positive sample to the date of ineligibility.
This possibly puts Froome’s World and Giro titles into play. Whether the UCI independent arbitrator would do this is a matter for him. Precedent on backdating bans in cycling exists and notably Contador’s case at CAS in 2012. One of the arbitrators on that case was Ulrich Haas, who is the UCI independent arbitrator in the Froome case.
Do you think that if he receives a ban, Sky will take it to CAS?
Yes I do. That would be typical. If they’re entitled to do that, which I think they are, that would be pretty standard practice.
The easiest way to put it is that everything is at stake. Since he tested positive everything is at stake. Normally he would be provisionally suspended so it wouldn’t matter, but the nature of it means he wasn’t and he continued to ride and now the stakes are high. And he knows that — that’s why he’s defending himself so vigorously.
In some ways it’s easy to criticise Froome and how he is defending himself and whether he should provisionally step aside. But there’s a huge amount at stake for him. Obviously there’s a huge amount at stake for cycling as a whole as well. And therefore, in some ways you can see why the UCI’s independent arbitrator is taking his time about these things because there are huge consequences for someone like Froome who’s now one of cycling’s elites.
I think its only Merckx and Hinault who have also held all three tours at one time. So you’re dealing with racing royalty. Whether that crown is tarnished or not is now in the hands of the UCI arbitrator.
Do you think we can learn anything from this case, in terms of what the WADA Code says about specified substances? Is there value in introducing provisional sentences in the case of specified substances too?
Absolutely. I think there is a lot of lessons learned about this. The UCI system is pretty new as well. The one thing is, if you put in provisional suspensions and you extend them to all types of substances, well then you must guarantee the athletes and cyclists in question will get a hearing quickly. Because otherwise they’re suspended but they’re waiting for a procedure which is unfair to them because they have a very short career and it’s a relatively short season.
So there’s two things to look at here: yes on the provisional suspension but also that we make the disciplinary process as efficient as we can because they’re entitled to that.
Anything you’d like to add? Anything we’ve missed?
Unfortunately for the Tour, it’s going to dominate proceedings now, the build-up. Will he or won’t he be in, and all the legal issues. That’s unfortunately where cycling is at, in some ways. Off the road is sometimes as important as what happens on the road.
Finally, one point that hasn’t been picked up fully is that everyone is concentrating on the ASO. What about the UCI? Under their anti-doping rules [ed. see 7.9.3 here] they may still have the power to provisionally suspend Froome. They have never done it in a salbutamol case, and they may not want to do this now that the independent hearing has started. But they may have the power to do it.