Update | Sport: Doping and its consequences

On 24 August 2012 the US Anti-Doping Agency (USADA) announced that it had imposed a lifetime ban on Lance Armstrong as well as the disqualification of competitive results since 1 August 1998. Armstrong chose not to contest the charges and therefore, as required by the World Anti-Doping Agency (WADA) Code, USADA published its reasoned decision on 10 October 2012. On 22 October 2012, the International Cycling Union (UCI) announced that it would not challenge the USADA decision and that it would recognise the sanctions imposed.

The USADA investigation has its critics, and the UCI's decision not to appeal to the Court of Arbitration for Sport (CAS) means that some of the legal issues raised are likely to be left unresolved. While upholding the sanctions, the UCI reiterated its view that it was the UCI, and not USADA, that had jurisdiction in the matter and noted that the disciplinary proceedings should have been limited to violations within the eight years prior to commencement of the proceedings.

Jurisdiction

Under the WADA code, jurisdiction in cases not involving sample testing falls to the entity which 'discovered the violation'. Both the UCI and USADA claim to have sources which they consider put them at 'the head of peloton' in the race to uncover the violation. The outcome of the jurisdiction debate has been significant in this case because the USADA investigation has been tainted by criticisms regarding the objectivity and fairness of their process. In contrast, the UCI had wanted to send the evidence to an independent panel for a determination as to whether Armstrong had a case to answer, which arguably would have ensured a more objective investigation from the outset.

Armstrong claimed that the USADA investigation was a witch hunt and that he would not get a fair hearing. While this has been an effective media strategy for him, legally it would seem to be a weak argument. The USADA process provides for a hearing before independent arbitrators from the American Arbitration Association and North American Court of Arbitration for Sport. USADA has its own 'due process checklist' and independent arbitrators should act as guardians to ensure a fair hearing. However, tribunals can always be subject to claims of bias and unfair process; in this case, protection is afforded in the form of a right to appeal to the Court of Arbitration for Sport. A fair appeal process has been relied on to cure defects in an earlier hearing in a number of cases; therefore, in the absence of evidence that the USADA process is entirely in breach of due process and given the stature of the CAS, it is difficult to see how Armstrong would have succeeded ultimately in claims that he did not have a fair hearing.

Statute of limitation

The WADA Code contains a statute of limitations of eight years from the date on which the violation is asserted to have occurred. In stripping Armstrong of results going back to 1998, USADA relied on US law which provides that a statute of limitations can be suspended where an individual conceals facts preventing discovery of the wrong. USADA rely on the fact that Armstrong lied under oath in proceedings in the US and to a French judicial investigation, and on witness evidence that Armstrong relied on false affidavits and went to great lengths to enforce the omerta (code of silence) and conceal the wrongdoing, including by intimidating witnesses.

UCI points out in its decision that one of the main aims of the WADA Code is to ensure consistency in the application of anti-doping rules. If the statute of limitations can be applied differently depending upon the relevant national law, then this consistency is undermined. USADA relied upon a 2005 decision of the CAS for the proposition that the suspension of limitation periods should be 'dealt with in the context of the principles of private law of the country where the interested sports authority is domiciled'. However, even though English law for example also provides that a statute of limitations can be suspended where a fact relevant to the claimant's right of action has been deliberately concealed from him by the defendant, the application of different national laws is likely to lead to some degree of uncertainty. Unless WADA chooses to challenge the USADA decision, the effect of the eight year statute of limitations will be open to challenge by sports bodies.

Leaving aside questions as to how USADA reached the position it did, the consequences of the decision are likely to be felt across cycling by everyone from individual riders to international corporations, and the shock waves may well extend beyond cycling.

Sanctions on individuals

For Armstrong and the others who assisted with, or were named in, the USADA decision, there will be a range of sanctions including bans, disqualification of results and financial penalties. The UCI upheld the sanctions imposed by USADA, which in the case of Armstrong, included disqualification of results since 1 August 1998 and a lifetime ban. UCI stated that a decision as to the further consequences would be made at an extraordinary meeting of the UCI Management Committee on 26 October 2012. UCI will have to consider whether to reallocate the titles won by Armstrong or whether to leave it as a blank period in the sport's history. It will also be interesting to see whether any fines are imposed.

Tour de France director Christian Prudhomme has already expressed his preference that Armstrong's seven Tour de France titles not be awarded to runners up. As the USADA report shows, doping was prevalent in the sport during that period and many of the runners up have already been found guilty of, or connected with, doping. UCI could decide that it is better to write-off that chapter of the Tour rather than face the potentially embarrassing prospect for the sport of working down the rankings to determine who the first clean rider was.

Armstrong will face financial loss in the form of termination of sponsorship agreements and a range of legal claims. Nike, Anheuser-Busche, Trek Bicycle Corporation and Oakley are among the sponsors which have already ended their relationship with Armstrong. SCA Productions, a company which insured bonus awards to the US Postal Team, has already announced that it will seek repayment of the $7.5m that it was ordered to pay following a claim by Armstrong for payment of a bonus after his 2004 Tour win. SCA had refused to pay the bonus on the grounds that they did not believe that Armstrong was clean and was not, therefore, the official winner of the Tour. Further, SCA will look to recover other bonus awards paid out following wins in 2002 and 2003 which total approximately $4.5m. The Sunday Times is also considering seeking recovery of the ?£1m it paid in an out of court settlement ?to Armstrong.

Finally, it should not be forgotten that criminal charges could also be brought against Armstrong. In the SCA Productions case, Armstrong made statements under oath denying involvement in doping or knowledge of teammates doping; there is therefore a possibility that perjury charges will be brought

Sponsorship consequences

Beyond the sanctions imposed on the individuals involved, the consequences from the reputational damage to the sport are already starting to show.

Despite the sport's growing popularity ?in many countries, sponsors, and potentially broadcasters, may well decide to take ?their money elsewhere or at least be inclined to negotiate harder.

Rabobank has announced that it will end its sponsorship of its men's and women's professional cycling teams at the end of this year. Rabobank has been criticised in some quarters for leaving cycling when the sport has in fact made progress in the fight against doping in recent years and abandoning the new generation of clean riders. Whatever the moral arguments, sponsoring a top cycling team requires a huge investment and large corporations will understandably want to ensure that the product they are sponsoring promotes their image in a positive way. Team Sky has already announced that it will ask staff to sign up to a pledge confirming not only that they are clean, but also that they have never been involved in doping. Team contracts with riders already contain standard clauses stating that the contract will be terminated if the rider commits an anti-doping violation resulting in his suspension for the remaining duration of his contract (some contracts even go further and provide for termination where the team suspects that the rider is doping), but any further steps to reinforce a clean culture within cycling must be welcomed.

The importance of morals or good behaviour clauses looks set to increase. Clauses requiring an individual being sponsored to conduct themselves in a way which does not bring a product or brand into disrepute are becoming commonplace. However, there seems to be potential for the growth of a stronger, more positive obligation on sponsored individuals to conduct themselves in a manner which is consistent with good morals and behaviour which creates a positive association for the brand. The increased regulation of the conduct of individuals has already been seen in codes of conduct that are being published across a range of sports (for example The Football Association's new Code of Conduct covers behaviour ranging from interaction on social media to advice not to spend too much time playing video games in the team hotel). Where sponsors continue to support cycling, it seems likely that they will be much more careful about including stringent morals or good behaviour clauses, which will surely result in some heavy negotiation and the almost inevitable resulting litigation.