Schleck: a primer on the cycling anti-doping code

As there has been a lot of misinformation in today’s press following the revelations that Frank Schleck had tested positive for a diuretic during this year’s Tour de France, I thought I would put together this little primer on the anti-doping regulations that apply to Le Tour.

Firstly, what is a diuretic? Basically, it is a drug that is used to increase the excretion of water from the human body by increasing the rate of urination.  While it is not in itself performance-enhancing, their presence on the list of prohibited substances published by the World Anti-Doping Agency (WADA) is because of their use as a so-called masking agent. In essence, because a diuretic increases the amount of urine produced, it effectively dilutes the quantity of other banned performance-enhancing substances, making them more difficult to detect.  Its other main use is in sports where rapid weight loss is important, such as sports divided into weight categories such as boxing and wrestling).

The diuretic in question is xipamide, a diuretic so old and uncommon that it is not even listed on the WADA list of prohibited substances.  However, it is certainly included in the catch-all “other substances with a similar chemical structure or similar biological effect” to those that are specifically listed.

The anti-doping regime in cycling is governed by the Cycling Regulations of the Union Cycliste Internationale (UCI) (International Cycling Union), which is in effect the UCI’s implementation of the World Anti-Doping Code.  It expressly adopts and incorporates the WADA Prohibited List.  The primary anti-doping rule violation is contained in Article 21.1, which lists as the first anti-doping rule violation: “the presence of a prohibited substance … in a rider’s bodily specimen.”  It continues on to provide that riders are responsible for the presence of any prohibited substance found to be present in their bodily specimens, and accordingly it is not necessary that any intent, fault, negligence or knowing use be demonstrated.  Mere presence is in and of itself a violation.

So, assuming that Schleck’s B-Sample tests positive for xipamide then prima facie an anti-doping rule violation will have been made out. Mere presence, of any quantity of a diuretic, is “sufficient proof” of the violation (diuretics are a class of substance for which a therapeutic use exemption can be obtained in advance, but that is not a relevant consideration in Schleck’s case).

Article 293 provides that the period of ineligibility for a first anti-doping rule violation under Article 21.1 shall be 2 years.  This is subject to a number of provisions that allow for the elimination or reduction of that penalty provided certain conditions are met.

The first of these is Article 295 which provides for the elimination or reduction of the period of ineligibility for “specified substances” under specific circumstances.  Diuretics are, for the purposes of the Prohibited List, a “specified substance” (“specified substances” are generally substances that are commonly used for medical purposes and have only minor performance-enhancing attributes at therapeutic levels, such as asthma medications, or are commonly encountered as recreational drugs). If a rider can establish how a specified substance entered his body, and establish that it was not intended to enhance the rider’s performance or mask the use of a performance-enhancing substance, then the 2 years may be replaced with anything from a minimum of a reprimand with no period of ineligibility, up to a maximum of the usual 2 year period of ineligibility.  In addition, the rider must produce corroborating evidence in addition to his word which establishes to the comfortable satisfaction of the hearing panel that there was an absence of intent to enhance performance or mask other substances.

The difficulty Schleck will face in satisfying these conditions is obvious.  Absent a confession from the perpetrator, it will be difficult to establish what seems to Schleck’s explanation for the adverse analytical result, ie that he was poisoned or sabotaged.  This is not a case of a rider being able to prove he consumed a foodstuff (most ingeniously, the attempts to blame contaminated meat) or other product such as a supplement that, unknown to him at the time, happened to contain a prohibited substance, which is the usual category of case in which this provision is invoked.  The issue of corroboration will also be difficult.  Corroboration is usually established by proving there was a legitimate, non-performance-enhancing purpose of taking the substance, such as for medical reasons.

Other provisions that allow for a reduction or elimination of the period of ineligibility include Article 296, which allows for elimination where the rider establishes he bears “no fault or negligence”.  Similarly, Article 297 allows for a reduction in the period of ineligibility down to a minimum of 1 year (for a first offence) where he bears “no significant fault or negligence”.  In each case the rider must still establish how the prohibited substance entered his body. 

None of what has been set out above is in any way intended to pre-empt the outcome of the Schleck case itself.  The process of testing of the B-sample is yet to occur, in order to establish the anti-doping rule violation itself.  Schleck still has the opportunity to prove his claims that he was poisoned.  However, the suggestion that has appeared in today’s media that Schleck “has a good chance of proving his innocence” would seem overly optimistic.