Former Astana Cyclist suing in Belgian courts to argue drug testing is against human rights

"In essence, he believes that sports organizations, because they are run privately and are not public bodies, have no legal right to interfere in the lives of individuals."

Of course they have no legal right to interfere. The athletes are free to decide they will not compete in the Tour de France (or whatever event expects to conduct testing). No one is forcing them to enter the race and challenge for prize money.

I agree: he seems to have it exactly backwards. If they are private organizations, they are free to exclude him from participating if he doesn't play by their rules. If they were governmental bodies that were denying him basic rights, he would have a much stronger case.

Except your forgeting that being a cyclist is a profession. He gets paid to do it so the courts will view it no differently than any other job.

Your employer is prohibited from putting you throught the same hoops.

He should win.

This will be interesting to watch.

I do wonder myself about the reach of private organizations forcing drug tests on athletes for substances that may not be illegal in a technical sense. EPO is a legitimate medical drug for cancer patients but does the law actually ban its use for other purposes? Especially if prescribed by a doctor (like Dr. Ferarri or Fuentes)? That might be the loophole used here. Do the rules of sport trump the laws of nations? Does Europe have less stringent laws regarding uses of prescription drugs compared to the U.S.?

Probably a bad example but, if my supposition above is correct, how would that be different than an employer with strong personal views against alcohol (Southern Baptist, LDS, etc.) forcing his office workers to submit to random breathalyzer tests and then firing those that test positive? He may find booze morally repugnant but consuming alcohol is a completely legal activity. Does he have the right to can people who had a few beers the night before on their free time? I know that isn't the same as doping but he cannot place his personal morals above the protections of the law. He could indeed fire folks but they would soon sue him out of business as the courts would rule in the terminated employee's favor..

Like most here, I do want doping stopped. If this guy wins it might be a good thing for the anti-doping forces. It might force countries to make sports cheating and doping a crime punishable by huge fines and imprisonment. That's a far greater deterrent in my mind than the current system which allows cheaters to slink away in disgrace but still enjoy the money that they dishonestly earned.

Good post.

Add to this that many banned substances are totally legal - as in you can by them at GNC or CVS. For instance Justin Gatlin is accused of using an over-the counter product, Dehydroepiandrosterone or DHEA. It comes in a cream for menopusal woman and can be bought right now at your local CVS.

Can/should a private organziation force anyone to submit to a drug test for a completely legal products as a condition of employement?

Good post.

Add to this that many banned substances are totally legal - as in you can by them at GNC or CVS. For instance Justin Gatlin is accused of using an over-the counter product, Dehydroepiandrosterone or DHEA. It comes in a cream for menopusal woman and can be bought right now at your local CVS.

Can/should a private organziation force anyone to submit to a drug test for a completely legal products as a condition of employement?

Good post.

Add to this that many banned substances are totally legal - as in you can by them at GNC or CVS. For instance Justin Gatlin is accused of using an over-the counter product, Dehydroepiandrosterone or DHEA. It comes in a cream for menopusal woman and can be bought right now at your local CVS.

Can/should a private organziation force anyone to submit to a drug test for a completely legal products as a condition of employement?

I'm not so sure it's that easy to simply compare the issue to alcohol. Maybe there's another example out there but alcohol doesn't allow for you to excel at your job (unless you're an exotic dancer), which would then lead to promotions and more pay at the expense of the sober. So the TDF is merely trying to protect its participants against others who are trying to get a leg up by using drugs that may not be illegal but certainly are immoral.Of course there are already cases of college students using ADHD drugs to help them focus during test taking time. So no doubt that we are heading down a slippery slope. I agree that this will be interesting to watch.My guess for now is that this guy has no case. But we certainly haven’t seen the last of these attempts. I'd bet that within 20 years it will be incredibly hard to differentiate the augmented versus the non-augmented.

but.... wrote:

Can/should a private organziation force anyone to submit to a drug test for a completely legal products as a condition of employement?

I do not remember specifics but in certain jurisdictions their Laws are much more stringent than ours. Italy, and France have made certain practices illegal. I think it was Italy where the Police were going to arrest a cyclist for having an altitude tent in his hotel room. A legal product here in the US. Spain was known to be far more lax, hence one of the reasons Lance Armstrong & others moved there from Italy.

So using a steriod cream that is against the rules of sport in the US just might be Criminal behaviour in Europe. If it is, hard to argue an employer has no rights to protect itself against criminal activity.

oldhalfmileguy wrote:

[quote]but.... wrote:

A legal product here in the US. Spain was known to be far more lax, hence one of the reasons Lance Armstrong & others moved there from Italy.

This is incorrect. Armstrong lived in France outside Nice and moved to Girona Spain. He never lived in Italy. He moved as a protest against the French investigations into doping allegations. He detailed this in his first book.

The Spanish are leading the charge against doping with operation puerto so no one can say they are easier than any other European country.

---------

Let's be clear about this. If your employer subjected you to random tests for alcohol because, while legal, it can impair your performance, you're ok with this? And, if he sent testers anytime, such as 1AM sunday morning after you have been in the bars, you're also ok with this? If you test positive for alcohol at 1AM on Sunday, you would adovcate you SHOULD lose your job.

Here's the problem, an athlete is a profession. It is no different than being an accountant in the eyes of the law. And, athletes should be treated no different than accoutants. What works for one has to work for the other.

I don't know how many have looked up the background of this case but the jist of it is that the controllers turned up at his holiday resort in Turkey at 10.45pm.There are two concurrent processes

the blood doping violation

the conditions and timing of the control

it's not all doping tests that under review just out of hours

and out of competition period testing.

Anyway he'll get smacked back and get 4 years instead of 2.

That's OK but until thing pin down all the offenders in the Puerto case plus the 80% of the tour riders allegedly known (but with no proof of course) to have been blood doping even last July then the whole thing is a complete and utter farce.

no I got that wrong, according to some WADA lab director in

Switzerland it's 47 out of 189 on EPO or Blood Doping and about 80% on HGH, they know it but they don't have a watertight test to prove it apparently;

not so sure wrote:

no I got that wrong, according to some WADA lab director in

Switzerland it's 47 out of 189 on EPO or Blood Doping and about 80% on HGH, they know it but they don't have a watertight test to prove it apparently;

This quote is suspect.

All the riders submitted to a blood test before the tour and all passed. Rules prohibit the samples being re-tested. The rules also prohibit shipping the samples from the Paris lab to the Swiss lab (chain of custody rules). Recall this was a huge fight in the Landis case ... Landis wnated his samples re-tested at UCLA and WADA fought this saying it was against the rules. WADA won and Landis's samples were re-tested by the same Paris lab (and by the same technician) as did the original test.

So, either this Swiss WADA director "doesn't have his facts correct" or the WADA labs are knowingly violating their own rules.

Use the rules when it suits your purpose, violate the rules when it suits your purpose.

but.... wrote:

Except your forgeting that being a cyclist is a profession. He gets paid to do it so the courts will view it no differently than any other job.

Your employer is prohibited from putting you throught the same hoops.

He should win.

He's not an employee of anyone with respect to UCI. He's an independent contractor, and one of the contractual stipulation for his eligibility to receive compensation for his performances is the lack of positive drug tests. His case is complete bullshit.

no i don't think the quote is suspect, I don't read flemish too well but the English language translations of the article which appeared in the Belgian newspaper Het Laast Nieuws

definite point to Dr Martial Saugy having said that. The guy

is a a real expert on blood doping and forensic endocrinolgy

and if he said that he must have his reasons. I've seen a few of his dope detection papers and it all looks like legit stuff.

exactly - riders are employed by their team, not the event.

The event can set whatever rules it likes - which includes particpants being subjected to tests.

Several things:USADA and WADA are not totally private in that they have certain connections to the IOC and the Olympics have some particular legal standing. It is not an organization that was formed out of thin air and its presence could not be duplicated without similar clearance and agreement.Spain is NOT on the leading edge of anti doping, they are dragging there feet. The interest in OP was that the activities they focused on was illegal acts by the docs etc. The law that was then passed makes some activiites illegal but none of it applies to OP. They have been unwilling to provide the OP material, even though it would clarify a number of things. One of the things it would probably clarify is the involvement in doping of a number of Spaniards (Valverde for instance, who apparently has several blood bags widely believed to be his but they will not allow the blood to be tested for a DNA match).I think that Kash's effort is a 'Hail Mary' toss. If it were to succeed then there would be chaos in the sporting world and high-level cycling would be greatly diminished, as many sponsors will not want to be associated with the sport. The sport is 'voluntary' and I guess what would happen is that they would continue with the anti-doping procedures and the action would come through the teams/sponsors and the race organizers. The organizers would not allow anyone with positive tests (or 'reliable' suspicions to participate in their races and the teams would not employ the riders. Even if Kash wins will he succeed in overturing the conditions of a voluntary contract that he signed with the team that he can be dismissed for failing a test or failing to allow a test to be conducted? I suspect that the organizers would also push signing the statement/contract about not doping and returning salary if they did so. I am pretty sure that Kash is currently 'persona non grata' for most cycling teams.

There are some good replies here but some of you have not read the article and clearly have no knowledge of the law. Things are not the same in Europe as America. Read or reread the article.

http://velonews.com/news/fea/13624.0.html

Kashechkin challenge underway in Belgium

By Staff and wire reports

Filed: November 6, 2007

The case involving Andrey Kashechkin's challenge to the fundamental structure of doping controls by sports bodies got underway on Tuesday in Belgium.

Kashechkin, a former member of the Astana team, tested positive for homologous blood doping while on holiday in Turkey this past August. Kashechkin's teammate Alexander Vinokourov also tested positive for the same method during the Tour de France in July. The two are the first athletes to test positive for homologous blood doping since American Tyler Hamilton and Spaniard Santiago Perez tested positive for the technique during the 2004 Vuelta a España.

Kashechkin denies he used his own blood to enhance his performance, and has raised two claims, arguing that doping controls cannot be administered by private entities - like the UCI or WADA - and that procedures during his test were not followed correctly by UCI officials.

Kashechkin's attorney Luc Misson, who represented Belgian footballer Jean-Marc Bosman in a successful suit against his team at the European Court of Justice in 1995 over "restraint of trade," is confident of gaining a decision which could change the face of sport.

Misson expects to win a case on the belief that "privately-run" sports bodies such as the UCI and the World Anti Doping Agency (WADA) have no legitimate right to test athletes. The Belgian lawyer says such procedures contravene Europe's declaration of Human Rights, and that only public bodies, such as governments, have the right to carry out such procedures.

"We denounce the fact that these procedures (dope testing) and sanctions can be carried out by privately-run bodies," said Misson, who is using articles 6, 8 and 11 of the European Convention of Human Rights as a main tenet of his argument. "To proceed to harm the fundamental rights of any individual is a right held exclusively by public bodies, and within the strict framework of the law."

But Misson faces a major hurdle in making his case if the court considers an October, 2004, ruling in which the European Court of First Instance ruled against two swimmers who challenged anti-doping rules as an unfair restraint of trade, infringing their right to work. In the case of Spain's David Meca-Medina and Slovenia's Igor Majcen, two professional long-distance swimmers, the court not only dismissed their claim, but also ordered the pair should pay court costs for both sides in the case, ruling that the challenge was "frivilous" in nature.

Kashechkin was on holiday in Turkey with his family on August 1 when the European Belgian officials submitted him to a blood test. It turned out to be positive for homologous blood doping, meaning he injected his own blood to boost his performance, and he now risks a two-year suspension from the sport and another two-year ban from ProTour events.

If Misson succeeds in that strategy and a ruling is upheld on appeal, it would strike a blow to all those involved in the global fight against doping.

Both the AIGCP (riders' association) and the IPCT (teams association) are active in the fight against doping and have asked the Belgian court to be heard as witnesses.

Attorney Jean-Louis Dupont, representing the IPCT, said the case has the potential to ruin anti-doping efforts throughout sport.

"If Kashechkin wins on the principle that only States (as opposed to private bodies) are legally allowed to carry out doping controls and hand down sanctions, then we might as well all walk away from professional sport," he said.

Kashechkin is also arguing that the Belgian officials who collected blood samples from Kashechkin did so outside the permitted time limit of 6:00 a.m. to 10:00 p.m. The officials reportedly took the samples at 10:45 p.m. local time.

Misson also says that analysis of the rider's B sample, carried out 22 days later and which would validate any sanction, was not carried out within the UCI's own regulatory time limits.

After the morning session, the UCI was being given a chance to conduct its own defense in the afternoon.

A decision from the Belgian court is expected within two weeks.

VeloNews Editor Charles Pelkey contributed to this report

Dave B wrote:

exactly - riders are employed by their team, not the event.

The event can set whatever rules it likes - which includes particpants being subjected to tests.

So if I call an accounting firm to do my annual statement, I can give them stipulations like no auditors unless the submit to a random drug test for alcohol (legal product). My audit is the event and I can set whatever rules I want.

You're trying to treat an athletic event as something different. To the law, it's just another job and the same rules apply.