Rivista Italiana di Medicina Legale e del Diritto in campo sanitario

Rivista: Rivista Italiana di Medicina Legale (e del Diritto in campo sanitario)
Anno: 2018
Fascicolo: n. 1
Editore: Giuffrè Francis Lefebvre
ISSN: 1124-3376
Autori: Garraffa Paolo
Titolo: UN NUOVO STRUMENTO PER LA LOTTA CONTRO IL DOPING: IL PASSAPORTO BIOLOGICO DELL’ATLETA. LUCI E OMBRE
Pagine: pp. 74-72
Keywords: doping, detection methods, athlete biological passport (ABP), evidence, CAS jurisprudence.

Introdotto per la prima volta nel Ciclismo nel 2008, e successivamente adottato anche in altri sport (quali atletica leggera e calcio), il Passaporto Biologico dell’Atleta (“Athlete Biological Passport”, o ‘ABP’) rappresenta oggi l’ultima ‘frontiera’ nella lotta contro il doping nello sport.

Passando attraverso il fallimento dell’approccio ‘per test’ della WADA (l’Agenzia Mondiale Anti-doping) – quale metodo ‘diretto’ di rilevazione della violazione dei Regolamenti antidoping – il Passaporto Biologico è stato considerato quale metodo ‘indiretto’ di rilevazione di tali infrazioni, sebbene la sua originaria finalità fosse quella di monitorare alcuni parametri fisiologici (soprattutto nel sangue e nelle urine) degli atleti nel corso del tempo, sia in occasione che al di fuori dalle competizioni.

Un’altra questione (intimamente connessa con quella del Passaporto Biologico) è rappresentata dall’utilizzo, da parte degli atleti (per diversi anni), di una delle sostanze di maggiore diffusione ai fini del miglioramento delle prestazioni sportive: l’EPO (o Eritropoietina).

In un’epoca caratterizzata dalla presenza di tecniche scientifiche altamente sofisticate, è ragionevole domandarsi come mai la rilevazione dell’EPO (nel sangue) sia stata così problematica.

Nel presente scritto ci si prefigge l’obiettivo di affrontare le difficoltà ‘intrinseche’ connesse al test ‘anti-EPO’ (un test concepito per l’individuazione dell’EPO), le ragioni per cui, in fin dei conti, tale metodo si è rivelato fallimentare, e le ragioni per cui il Passaporto Biologico è considerato, al giorno d’oggi, lo strumento più efficace ed affidabile ai fini dell’individuazione della violazione di norme antidoping (‘ADRV’s).

Tale strumento è stato, inoltre, fonte di un ampio dibattito in seno alla comunità scientifica, passando altresì al vaglio delle maggiori Corti di Giustizia Sportiva, incluso il CAS di Losanna.

Scopo del presente lavoro è quello di tracciarne un primo bilancio, evidenziandone vantaggi e criticità.

UN NUOVO STRUMENTO PER LA LOTTA CONTRO IL DOPING: IL PASSAPORTO BIOLOGICO DELL’ATLETA. LUCI E OMBRE


1) EPO (Erythropoietin), also known as hematopoietin or hemopoietin, is a glycoprotein cytokine secreted by the kidney in response to cellular hypoxia; it stimulates red blood cell production (erythropoiesis) in the bone marrow [for further information, please refer to: http://www.my-personaltrainer.it/eritropoietina-epo.html].
2) WADA ABP Operating Guidelines (last version 6.0 of January 2017) are available on-line, at the WADA’s ‘institutional’ website, www.wada-ama.org, to the following URL: https://www.wada-ama.org/sites/default/files/resources/files/guidelines_abp_v6_2017_jan_en_final.pdf). Their purpose is “to provide a harmonized process for both the Hematological Module and the Steroidal Module of the ABP, following nearly identical administrative procedures in ADAMS (Anti-Doping Administration Management System)”.With regard to them, it is worth mentioning that, even if mandatory (for each member State which has ratified the 2005 UNESCO International Convention against Doping in Sport), their compliance is left to each National Anti-Doping Organization (NADO). Furthermore, it’s a new of these days (november 3, 2017) that WADA has suspended the accreditation of Paris laboratory (the new is available on-line to the following URL: https://www.wada-ama.org/en/media/news/2017-11/wada-suspends-accreditation-of-paris laboratory).
3) Like the recent cases of Jamaica (in 2012 only 106 anti-doping tests, no one of them blood test!) and Russia (In November 2015, the World Anti-Doping Agency [WADA] published a report and the International Association of Athletics Federations [IAAF] suspended Russia indefinitely from world track and field events. The United Kingdom Anti-Doping agency later assisted WADA with testing in Russia. In June 2016, they reported that they were unable to fully carry out their work and noted intimidation by armed Federal Security Service [FSB] agents. After a Russian former lab director made allegations about the 2014 Winter Olympics in Sochi, WADA commissioned an independent investigation led by Richard McLaren. McLaren’s investigation found corroborating evidence, concluding in a report published in July 2016 that the Ministry of Sport and the FSB had operated a “state-directed failsafe system” using a “disappearing positive [test] methodology” [DPM] from “at least late 2011 to August 2015”. Source: www.wikipedia.org).
4) According to H. Ram (CEO of the Anti-Doping Authority of the Netherlands): “presently, there are about 50 ‘true’ NADOs functioning worldwide, and they cover the majority of sport events” (on his ‘Stuck in the mud or going fast forward? The status of global anti-doping’, presentation made in Aarhus, NL, in October 26, 2015, page 15).
5) Amongst them: IBF, NHL, NBA.
6) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report.
7) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report (page 5).
8) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report (pages 8-10).
9) According to H. Ram (CEO of the Anti-Doping Authority of the Netherlands): “less of 1% of all doping tests performed lead to the successful prosecution of an ADRV” (on his ‘Stuck in the mud or going fast forward? The status of global anti-doping’, mentioned above, page 31).
10) Anti-Doping Administration and Management System (ADAMS) was introduced with the purpose to harmonize anti-doping policies in all sports and all countries. It coordinates anti-doping activities and provides a mechanism to assist all the stakeholders involved. In particular, it is a web-based database management tool for data entry, storage, sharing, and reporting designed to assist stakeholders and the World Anti-Doping Agency (“WADA”) in their anti-doping operations. Further information are available on-line, at the WADA’s ‘institutional’ website, www.wada-ama.org, to the following URL: https://www.wada-ama.org/en/adams.
11) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report.
12) The World Anti-Doping Code (last version, in force as from 2015) is “the fundamental and universal document upon which the World Anti-Doping Program in sport is based”, whose purpose is “to advance the anti-doping effort through universal harmonization of core anti-doping elements” (so page 11 of the Code, ‘Purpose’). It is available on-line at the WADA’s institutional website (www.wada-ama.org) to the following URL: https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf.
13) During the “interim period” abuse of the drug was reported by several rumors.
14) So was the case which involved the Italian cyclist (and former champion of the ‘Giro d’Italia’ and the ‘Tour de France’) Marco Pantani.During the ‘Giro d’Italia’ of 1999, on a control (test) made on June 5 (in the lap of Madonna di Campiglio), the Italian cyclist was found with an hematocrit level of 51,8%, and consequently disqualified by the race. Few years before, on the ‘Milano-Torino’ race (on October 18, 1995), after an accident occurred during the race, he was found with an hematocrit level of 60,1% (think that standard values do not go over 35-40% for a ‘normal’ person, and over 45% for an athlete).
15) Case Usada/Armstrong, judgment of 20/10/2012 (the reasoned decision is available on-line, at the USADA’s website http://cyclinginvestigation.usada.org/, to the following URL: http://d3epuodzu3wuis.cloudfront.net/ReasonedDecision.pdf).
16) The decision is available on-line, at the CAS website www.cas-tas.org, to the following URL: https://jurisprudence.tas-cas.org/Shared%20Documents/343.pdf.
17) In particular, identification criteria required 80% of the bands to be in the ‘basic region’. While the ‘A’ sample was found to be above this level, the ‘B’ sample had 78,6% of bands in the basic region (in one of the official maxims, reads as follows: “It is not acceptable for the B sample to be subjected to different standards from the A sample. The whole purpose of the B sample is to confirm the A sample. However, such confirmation only makes sense if the same test method has been applied to both samples and if the test results are evaluated pursuant to the same principles. If the test results of the B sample have not been measured using the same standards as in the A sample, the A sample is not confirmed, rather a new analysis has been carried out pursuant to a different method of evaluation”).
18) So E. Mason, The Athlete Biological Passport: a ‘magic bullet’ for EPO detection? (part. 1), on www.lawinsport.com, 6 February 2013.
19) See, amongst the many, G. Banfi et al., Clinica Chimica Acta, 2010, Vol. 411, n. 15-16, pp. 1003-1008; M. Beullens et al, Blood, 2006, Vol. 107, pp. 4711-4713; C. Lundby et al, J Applicated Physiology, 2008, Vol. 105, pp. 417-419.
20) EPO of 2nd generation, it is synthesized by the use of recombinant DNA and, unlike other analogues, with the use of human cells and not of animal cells (for further information, see Z. Sharkoh, L. Royle; R. Saldova; J. Bones; J. Abrahams; NV. Artemenko; S. Flatman; M. Davies; A. Baycroft; S. Sehgal; MW. Heartlane, Erythropoietin produced in a human cell line (Dynepo) has significant differences in glycosylation compared with erythropoietins produced in CHO cell lines. In Mol Pharm, Vol. 8, Issue 1, February 2011, pp. 286-296).
21) Acronym for “Continuous Erythropoietin Receptor Activator”, CERA have an extended half-life and a mechanism of action that promotes increased stimulation of erythropoietin receptors compared with other erythropoiesis-stimulating agents (ESAs) [Source: www.wikipedia.org].
22) So M. Ashenden, E. Varlet-Marie, F. Lasne, M. Audran, The effects of microdose recombinant human erythropoietin regimens in athletes. Haematologica, 2006, Vol. 91, Issue 8, pp.1143-1144.
23) Source: UCI (www.uci.ch), ‘The Athlete Biological Passport - ABP’ (definition available to the following URL: http://www.uci.ch/clean-sport/the-athlete-biological- passport-abp/).
24) Settled on each NADOs.
25) The Adaptive Model is a mathematical model that was designed to identify unusual longitudinal results from athletes: it calculates, in particular, the probability of a longitudinal profile of marker values assuming that the athlete has a normal physiological condition.
26) WADA ABP Operating Guidelines (last version 6.0 of January 2017) are available on-line at the WADA’s institutional website, www.wada-ama.org, to the following URL: https://www.wada-ama.org/sites/default/files/resources/files/guidelines_abp_v6_2017_jan_en_final.pdf (English).
27) Immature red blood cells, typically composing about 1% of the red blood cells in the human body. In the process of erythropoiesis (red blood cell formation), reticulocytes develop and mature in the bone marrow and then circulate for about a day in the blood stream before developing into mature red blood cells (source: www.wikipedia.org).
28) On CAS 2015/A/4005 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Sergey Kirdyapkin & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (which will be further discussed in paragraph 7), it is highlighted that “the ABP focuses on the effect of prohibited substances or methods on the body, rather than on their detection. For such purposes, the ABP was developed as an individual, electronic record for each athlete, in which the results of all doping tests over a period of time are collated. The ABP involves regular monitoring of biological markers on a longitudinal basis to facilitate the indirect detection of prohibited substances and methods. The list of relevant markers for a specific class of substance (e.g., substances enhancing oxygen transfer such as recombinant EPO) are identified and monitored on a regular basis for a given athlete, in order to establish an effective longitudinal monitoring program. The collection and monitoring of values corresponding to these identified markers constitutes an individual longitudinal profile. Each collected sample is analysed following the appropriate analytical protocol and the biological results are incorporated into the Anti-Doping Administration and Management System (ADAMS)” (so para. 8 of the award).
29) Such as trainings in altitude, hydration course.
30) See M. Zorzoli - F. Rossi, Implementation of the biological passport: the experience of the International Cycling Union 2010. Drug Testing and Analysis, Vol. 2, Issue 11-12 (November-December 2010), abstract.
31) See L. Freeburn, The Union Cycliste Internationale: a study in the failure of organisational governments of an International Federation. International Sports Law Journal (ISLJ), 2013, Issue 1-2, page 73.
32) For a comment, especially about the legal and scientific concerns of the cycling community after its first introduction, see N. Hailey, A false start in the race against doping in sport: concerns with cycling’s biological passport. Duke Law Journal, 2011, Vol. 61, pp. 393-432.
33) In any case, such a variables are to be taken into account for the purposes of investigation.
34) The ABP, to be effective, requires almost three exams/tests for each athlete over the sporting season (every single one it costs almost 1.200 Euro). In 2012, the ITF (International Tennis Federation) spent about 2,4 million euros for ABP’s program, and, in the same year, UCI spent about 5,5 million euros.
35) UK, Australia.
36) On June 2013, UKAD announced to have signed a Memorandum of Understanding (MoU) with NHS (National Health Service) Protect that allowed for the sharing of information in relation to “the detection, deterrence, enforcement or prevention of an anti-doping rule violation”, including information on “the prescribing, supplying, administering or disposing of NHS drugs within or for an NHS body”. Although the NHS Protect’s Information Governance Lead stated that the sharing of information were within strict legal boundaries, details of what those limits included, and what medical practitioners’ duties were under that MoU, were not clarified. Furthermore, several years ago, Australia’s anti-doping agency, ASADA, conducted a similar initiative to access confidentially held medical information by Australia’s publicly funded universal health care system, called ‘Medicare’. In that programme, athletes’ medical records were cross-checked for evidence that they were using WADA banned substances. The scheme was subsequently abandoned when the Office of the Privacy Commissioner and the Australian Government Solicitor deemed the programme illegal and that ASADA did not have legal authority to conduct the programme (source: B. Koh, Anti-doping and medical privacy, on www.lawinsport.com, 19 July 2013).
37) E.g. the Growth Hormone (a prohibited substance, due to its performance enhancing ability) is easier to ‘cheat’ in urine-test (source: P. Gibbs - B. Koh, Navigating the WADA prohibited list: catchalls and consistencies, on www.lawinsport.com, 4 May 2013, page 4).
38) So the WADA ABP Operating Guidelines, last version 6.0, of January 2017.
39) Despite what H. Ram, Stuck in the mud or going fast forward? The status of global anti-doping, above mentioned (footnotes 4 and 9), refers (“we don’t know to what extent the present programs [whereabouts, Athlete Biological Passport, storing of samples, new analytical tools, ed.] deter athletes from doping”: so page 47 of the presentation).
40) Thinking about some declaration of ‘top level’ athletes (e.g. the tennis player Roger Federer, who declared himself “totally favourable” in adoption of ABP in tennis).
41) Award available on-line to the following URL: https://www.doping.nl/media/kb/682/CAS%202004_O_645%20USADA%20vs%20Tim%20Montgomery%20-%20Decision%20on%20Evidentiary%20&%20Procedural%20Issues%20(S).pdf (English).
42) Tim Montgomery was a top-level American track and field athlete. As a sprinter, he won several track and field titles, including World Championship and Olympic Gold Medals, as well as a world record.
43) So para. 4 of the award (“Law”).
44) So the official maxim of the award (point 2). The case, in particular, began when, in 2004, USADA informed Montgomery that it had received sufficient evidence to indicate that he was a participant in a wide-ranging doping conspiracy implemented by the Californian-based Bay Area Laboratory Cooperative (“BALCO”). USADA sought to ban Montgomery for four years. The legal issue revolved around the fact that USADA had charged Montgomery with the violation of applicable IAAF anti-doping rules, notwithstanding that Montgomery had never tested positive in any in-competition or out-of-competition doping test. The matter proceeded directly to a single final hearing before the Court of Arbitration for Sport (“CAS”), which ruled in the above mentioned way (for further information about the ‘BALCO scandal’ (which involved, amongst the others, the five-time olympic medal (three of them gold), at the 2000 Summer Olympics in Sydney, Marion Jones, please refer to: https://en.wikipedia.org/wiki/BALCO_scandal).
45) D. Mavromati, (University of Lausanne, former Managing Counsel to the CAS) Legal Issues related to the application of the ABP Programme, presentation made in 2011.
46) So D. Mavromati, (University of Lausanne, former Managing Counsel to the CAS) on her Legal Issues related to the application of the ABP Programme, mentioned above, page 4.
47) The award is available on-line, at the CAS ‘institutional’ website (www.tas-cas.org), to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Sentence20217820_version20internet_pdf (French).
48) The award is available on-line, at the CAS ‘institutional’ website (www.tas-cas.org), to the following URL: https://jurisprudence.tas-cas.org/Shared%20Documents/2308,%202335.pdf (French).
49) The award is available on-line, at the CAS ‘institutional’ website (www.tas-cas.org), to the following URL: https://jurisprudence.tas-cas.org/Shared%20Documents/2235.pdf (English).
50) So para. 78 of the award.
51) Kumho Tire Co, Ltd. Vs. Patrick Cormichael, United States Reports, 1999, Vol. 526, pp. 137 and followings.
52) So para. 79 of the award.
53) So the official maxim of the award, point 2.
54) So the official maxim of the award, point 3.
55) So para. 81 of the award.
56) The award is available on-line, to the following URL: https://www.doping.nl/media/kb/3017/CAS%202013_A_3080%20Alemitu%20Bekele-Degfa%20vs%20TAF%20&%20IAAF%20(S).pdf (English). A brief resume of it is also available at the TAS-CAS Bulletin, n. 2-2014, on-line to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Bulletin_2014_2.pdf (English).
57) The last one (collected on July 29, 2010) was taken in the occasion of the European Championships in Barcelona, where Ms. Bekele competed in the 5000m, finishing in the gold medal position in a European Championship record time of 14:52:20 minutes.
58) The Expert Panel (composed by Prof. Yorck-Olaf Schumacher, Dr. Giuseppe D’Onofrio, and Prof. Michel Audran) considered, in particular, that “it was highly likely that her blood profile was the result of the use of a prohibited substance or method” (so para. 15 of the award).
59) So para. 18 of the award.
60) Pursuant to Article R48 of the Code of Sports-related Arbitration.
61) Pursuant to Articles R41.3 and R54 of the Code (above mentioned).
62) So para. 54 of the award (first part).
63) So para. 54 of the award (second part).
64) So para. 66 of the award (last part).
65) So para. 68 of the award (first part).
66) So para. 68 of the award (second part).
67) So para. 68 of the award (second part).
68) So para. 69 of the award.
69) According to anti-doping rules in force at the time (WADA Code 2009).
70) So para. 67 of the award.
71) In particular, CAS 2012/A/2773 IAAF vs. Hellenic Amateur Athletic Association and Irini Kokkinariou (especially on para. 75). For a brief resume of it, please refer to the TAS-CAS Bulletin, n. 1-2013, available on-line to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Bulletin201_2013.pdf (English).
72) So para. 80 of the award (first part).
73) So para 80 of the award (second part).
74) So para. 81 of the award.
75) So para 82 of the award (recalling, on the point, what affirmed by CAS 2012/A/2773 IAAF vs. Hellenic Amateur Athletic Association and Irini Kokkinariou, above mentioned).
76) So para. 83 of the award, where it is also stated that: “To do so would be to suggest that in all cases of blood doping a four-year period of ineligibility would under the rules as they stand be almost de rigueur, when the rules do not make specific provision for a more severe penalty in blood doping cases”.
77) All the awards are available on-line at the CAS institutional website (www.tas-cas.org).
78) S. Moston, T. Engelberg, Detecting Doping in Sport, Routledge ed., 2017.
79) So S. Moston, T. Engelberg, Detecting Doping in Sport, mentioned above (page vii of Preface).
80) From this point of view, it is essential the absolute respect for the Guidelines provided by WADA, by every single NADO.
81) Source: M. McGrath (Science Reporter of BBC), Top scientists quits anti-doping body over ‘muzzling’, http://www.bbc.com/news/science-environment-17586597, April 3, 2012.
82) In the above interview, he said that: “Anti-doping exists to protect clean athletes, not the reputation of the anti-doping movement. When push comes to shove, my actions will always be in the interests of clean athletes, even if that means I ruffle feathers by highlighting some inconvenient truths.. and just because I serve on their panel, it doesn’t give them the right to silence me”.
83) Available on-line to the following URL: http://www.sportsintegrityinitiative.com/open-letter-from-dr-ashenden-to-lord-coe/.
84) On such a letter, it is possible to read the following: “In its 2011 publication.. the IAAF estimated that 14% of your elite endurance athletes had blood doped during the 2001-09 era. That’s 700 blood dopers. Since 2011, just 63 Passport cases have been pursued by the IAAF. Publicly available documents list 72 positive cases for EPO (including CERA, admissions) in athletics between 2001 and now (2015, ed.).. It is clear from results in the database that serious problems emerged in Russia around 2005. Yet the IAAF chose not to join other sports, such as cycling, cross country skiing, biathlon and speed skating, who had adopted ‘no start’ rules in an attempt to stem the tide..”.Furthermore, in suggesting a way that IAAF could carry out (to improve its anti-doping programs), he added that “WADA’s ABP software automatically generates a so-called ‘sequence probability’ for individual athletes that seems ideally suited for ‘no start’ rules. Such an approach would require no additional sample collection or financial outlay, as the IAAF are already collecting blood samples from all competitors at the world championships, and evidently many major marathons”, and that “there is also much more that the IAAF could do”, by mentioning additional reforms like those carried out by the Major League Baseball (MLB) in 2009 (which created an independent Department of Investigations tasked with broad authority to take action to protect the integrity of its sport) and the outcome of USADA’s investigation into Lance Armstrong “to recognise the potential benefit”.
1) EPO (Erythropoietin), also known as hematopoietin or hemopoietin, is a glycoprotein cytokine secreted by the kidney in response to cellular hypoxia; it stimulates red blood cell production (erythropoiesis) in the bone marrow [for further information, please refer to: http://www.my-personaltrainer.it/eritropoietina-epo.html].
2) WADA ABP Operating Guidelines (last version 6.0 of January 2017) are available on-line, at the WADA’s ‘institutional’ website, www.wada-ama.org, to the following URL: https://www.wada-ama.org/sites/default/files/resources/files/guidelines_abp_v6_2017_jan_en_final.pdf). Their purpose is “to provide a harmonized process for both the Hematological Module and the Steroidal Module of the ABP, following nearly identical administrative procedures in ADAMS (Anti-Doping Administration Management System)”.With regard to them, it is worth mentioning that, even if mandatory (for each member State which has ratified the 2005 UNESCO International Convention against Doping in Sport), their compliance is left to each National Anti-Doping Organization (NADO). Furthermore, it’s a new of these days (november 3, 2017) that WADA has suspended the accreditation of Paris laboratory (the new is available on-line to the following URL: https://www.wada-ama.org/en/media/news/2017-11/wada-suspends-accreditation-of-paris laboratory).
3) Like the recent cases of Jamaica (in 2012 only 106 anti-doping tests, no one of them blood test!) and Russia (In November 2015, the World Anti-Doping Agency [WADA] published a report and the International Association of Athletics Federations [IAAF] suspended Russia indefinitely from world track and field events. The United Kingdom Anti-Doping agency later assisted WADA with testing in Russia. In June 2016, they reported that they were unable to fully carry out their work and noted intimidation by armed Federal Security Service [FSB] agents. After a Russian former lab director made allegations about the 2014 Winter Olympics in Sochi, WADA commissioned an independent investigation led by Richard McLaren. McLaren’s investigation found corroborating evidence, concluding in a report published in July 2016 that the Ministry of Sport and the FSB had operated a “state-directed failsafe system” using a “disappearing positive [test] methodology” [DPM] from “at least late 2011 to August 2015”. Source: www.wikipedia.org).
4) According to H. Ram (CEO of the Anti-Doping Authority of the Netherlands): “presently, there are about 50 ‘true’ NADOs functioning worldwide, and they cover the majority of sport events” (on his ‘Stuck in the mud or going fast forward? The status of global anti-doping’, presentation made in Aarhus, NL, in October 26, 2015, page 15).
5) Amongst them: IBF, NHL, NBA.
6) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report.
7) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report (page 5).
8) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report (pages 8-10).
9) According to H. Ram (CEO of the Anti-Doping Authority of the Netherlands): “less of 1% of all doping tests performed lead to the successful prosecution of an ADRV” (on his ‘Stuck in the mud or going fast forward? The status of global anti-doping’, mentioned above, page 31).
10) Anti-Doping Administration and Management System (ADAMS) was introduced with the purpose to harmonize anti-doping policies in all sports and all countries. It coordinates anti-doping activities and provides a mechanism to assist all the stakeholders involved. In particular, it is a web-based database management tool for data entry, storage, sharing, and reporting designed to assist stakeholders and the World Anti-Doping Agency (“WADA”) in their anti-doping operations. Further information are available on-line, at the WADA’s ‘institutional’ website, www.wada-ama.org, to the following URL: https://www.wada-ama.org/en/adams.
11) Source: WADA 2015 Anti-Doping Rule Violations (ADRVs) Report.
12) The World Anti-Doping Code (last version, in force as from 2015) is “the fundamental and universal document upon which the World Anti-Doping Program in sport is based”, whose purpose is “to advance the anti-doping effort through universal harmonization of core anti-doping elements” (so page 11 of the Code, ‘Purpose’). It is available on-line at the WADA’s institutional website (www.wada-ama.org) to the following URL: https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf.
13) During the “interim period” abuse of the drug was reported by several rumors.
14) So was the case which involved the Italian cyclist (and former champion of the ‘Giro d’Italia’ and the ‘Tour de France’) Marco Pantani.During the ‘Giro d’Italia’ of 1999, on a control (test) made on June 5 (in the lap of Madonna di Campiglio), the Italian cyclist was found with an hematocrit level of 51,8%, and consequently disqualified by the race. Few years before, on the ‘Milano-Torino’ race (on October 18, 1995), after an accident occurred during the race, he was found with an hematocrit level of 60,1% (think that standard values do not go over 35-40% for a ‘normal’ person, and over 45% for an athlete).
15) Case Usada/Armstrong, judgment of 20/10/2012 (the reasoned decision is available on-line, at the USADA’s website http://cyclinginvestigation.usada.org/, to the following URL: http://d3epuodzu3wuis.cloudfront.net/ReasonedDecision.pdf).
16) The decision is available on-line, at the CAS website www.cas-tas.org, to the following URL: https://jurisprudence.tas-cas.org/Shared%20Documents/343.pdf.
17) In particular, identification criteria required 80% of the bands to be in the ‘basic region’. While the ‘A’ sample was found to be above this level, the ‘B’ sample had 78,6% of bands in the basic region (in one of the official maxims, reads as follows: “It is not acceptable for the B sample to be subjected to different standards from the A sample. The whole purpose of the B sample is to confirm the A sample. However, such confirmation only makes sense if the same test method has been applied to both samples and if the test results are evaluated pursuant to the same principles. If the test results of the B sample have not been measured using the same standards as in the A sample, the A sample is not confirmed, rather a new analysis has been carried out pursuant to a different method of evaluation”).
18) So E. Mason, The Athlete Biological Passport: a ‘magic bullet’ for EPO detection? (part. 1), on www.lawinsport.com, 6 February 2013.
19) See, amongst the many, G. Banfi et al., Clinica Chimica Acta, 2010, Vol. 411, n. 15-16, pp. 1003-1008; M. Beullens et al, Blood, 2006, Vol. 107, pp. 4711-4713; C. Lundby et al, J Applicated Physiology, 2008, Vol. 105, pp. 417-419.
20) EPO of 2nd generation, it is synthesized by the use of recombinant DNA and, unlike other analogues, with the use of human cells and not of animal cells (for further information, see Z. Sharkoh, L. Royle; R. Saldova; J. Bones; J. Abrahams; NV. Artemenko; S. Flatman; M. Davies; A. Baycroft; S. Sehgal; MW. Heartlane, Erythropoietin produced in a human cell line (Dynepo) has significant differences in glycosylation compared with erythropoietins produced in CHO cell lines. In Mol Pharm, Vol. 8, Issue 1, February 2011, pp. 286-296).
21) Acronym for “Continuous Erythropoietin Receptor Activator”, CERA have an extended half-life and a mechanism of action that promotes increased stimulation of erythropoietin receptors compared with other erythropoiesis-stimulating agents (ESAs) [Source: www.wikipedia.org].
22) So M. Ashenden, E. Varlet-Marie, F. Lasne, M. Audran, The effects of microdose recombinant human erythropoietin regimens in athletes. Haematologica, 2006, Vol. 91, Issue 8, pp.1143-1144.
23) Source: UCI (www.uci.ch), ‘The Athlete Biological Passport - ABP’ (definition available to the following URL: http://www.uci.ch/clean-sport/the-athlete-biological- passport-abp/).
24) Settled on each NADOs.
25) The Adaptive Model is a mathematical model that was designed to identify unusual longitudinal results from athletes: it calculates, in particular, the probability of a longitudinal profile of marker values assuming that the athlete has a normal physiological condition.
26) WADA ABP Operating Guidelines (last version 6.0 of January 2017) are available on-line at the WADA’s institutional website, www.wada-ama.org, to the following URL: https://www.wada-ama.org/sites/default/files/resources/files/guidelines_abp_v6_2017_jan_en_final.pdf (English).
27) Immature red blood cells, typically composing about 1% of the red blood cells in the human body. In the process of erythropoiesis (red blood cell formation), reticulocytes develop and mature in the bone marrow and then circulate for about a day in the blood stream before developing into mature red blood cells (source: www.wikipedia.org).
28) On CAS 2015/A/4005 International Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF), Sergey Kirdyapkin & Russian Anti-Doping Agency (RUSADA), award of 25 April 2016 (which will be further discussed in paragraph 7), it is highlighted that “the ABP focuses on the effect of prohibited substances or methods on the body, rather than on their detection. For such purposes, the ABP was developed as an individual, electronic record for each athlete, in which the results of all doping tests over a period of time are collated. The ABP involves regular monitoring of biological markers on a longitudinal basis to facilitate the indirect detection of prohibited substances and methods. The list of relevant markers for a specific class of substance (e.g., substances enhancing oxygen transfer such as recombinant EPO) are identified and monitored on a regular basis for a given athlete, in order to establish an effective longitudinal monitoring program. The collection and monitoring of values corresponding to these identified markers constitutes an individual longitudinal profile. Each collected sample is analysed following the appropriate analytical protocol and the biological results are incorporated into the Anti-Doping Administration and Management System (ADAMS)” (so para. 8 of the award).
29) Such as trainings in altitude, hydration course.
30) See M. Zorzoli - F. Rossi, Implementation of the biological passport: the experience of the International Cycling Union 2010. Drug Testing and Analysis, Vol. 2, Issue 11-12 (November-December 2010), abstract.
31) See L. Freeburn, The Union Cycliste Internationale: a study in the failure of organisational governments of an International Federation. International Sports Law Journal (ISLJ), 2013, Issue 1-2, page 73.
32) For a comment, especially about the legal and scientific concerns of the cycling community after its first introduction, see N. Hailey, A false start in the race against doping in sport: concerns with cycling’s biological passport. Duke Law Journal, 2011, Vol. 61, pp. 393-432.
33) In any case, such a variables are to be taken into account for the purposes of investigation.
34) The ABP, to be effective, requires almost three exams/tests for each athlete over the sporting season (every single one it costs almost 1.200 Euro). In 2012, the ITF (International Tennis Federation) spent about 2,4 million euros for ABP’s program, and, in the same year, UCI spent about 5,5 million euros.
35) UK, Australia.
36) On June 2013, UKAD announced to have signed a Memorandum of Understanding (MoU) with NHS (National Health Service) Protect that allowed for the sharing of information in relation to “the detection, deterrence, enforcement or prevention of an anti-doping rule violation”, including information on “the prescribing, supplying, administering or disposing of NHS drugs within or for an NHS body”. Although the NHS Protect’s Information Governance Lead stated that the sharing of information were within strict legal boundaries, details of what those limits included, and what medical practitioners’ duties were under that MoU, were not clarified. Furthermore, several years ago, Australia’s anti-doping agency, ASADA, conducted a similar initiative to access confidentially held medical information by Australia’s publicly funded universal health care system, called ‘Medicare’. In that programme, athletes’ medical records were cross-checked for evidence that they were using WADA banned substances. The scheme was subsequently abandoned when the Office of the Privacy Commissioner and the Australian Government Solicitor deemed the programme illegal and that ASADA did not have legal authority to conduct the programme (source: B. Koh, Anti-doping and medical privacy, on www.lawinsport.com, 19 July 2013).
37) E.g. the Growth Hormone (a prohibited substance, due to its performance enhancing ability) is easier to ‘cheat’ in urine-test (source: P. Gibbs - B. Koh, Navigating the WADA prohibited list: catchalls and consistencies, on www.lawinsport.com, 4 May 2013, page 4).
38) So the WADA ABP Operating Guidelines, last version 6.0, of January 2017.
39) Despite what H. Ram, Stuck in the mud or going fast forward? The status of global anti-doping, above mentioned (footnotes 4 and 9), refers (“we don’t know to what extent the present programs [whereabouts, Athlete Biological Passport, storing of samples, new analytical tools, ed.] deter athletes from doping”: so page 47 of the presentation).
40) Thinking about some declaration of ‘top level’ athletes (e.g. the tennis player Roger Federer, who declared himself “totally favourable” in adoption of ABP in tennis).
41) Award available on-line to the following URL: https://www.doping.nl/media/kb/682/CAS%202004_O_645%20USADA%20vs%20Tim%20Montgomery%20-%20Decision%20on%20Evidentiary%20&%20Procedural%20Issues%20(S).pdf (English).
42) Tim Montgomery was a top-level American track and field athlete. As a sprinter, he won several track and field titles, including World Championship and Olympic Gold Medals, as well as a world record.
43) So para. 4 of the award (“Law”).
44) So the official maxim of the award (point 2). The case, in particular, began when, in 2004, USADA informed Montgomery that it had received sufficient evidence to indicate that he was a participant in a wide-ranging doping conspiracy implemented by the Californian-based Bay Area Laboratory Cooperative (“BALCO”). USADA sought to ban Montgomery for four years. The legal issue revolved around the fact that USADA had charged Montgomery with the violation of applicable IAAF anti-doping rules, notwithstanding that Montgomery had never tested positive in any in-competition or out-of-competition doping test. The matter proceeded directly to a single final hearing before the Court of Arbitration for Sport (“CAS”), which ruled in the above mentioned way (for further information about the ‘BALCO scandal’ (which involved, amongst the others, the five-time olympic medal (three of them gold), at the 2000 Summer Olympics in Sydney, Marion Jones, please refer to: https://en.wikipedia.org/wiki/BALCO_scandal).
45) D. Mavromati, (University of Lausanne, former Managing Counsel to the CAS) Legal Issues related to the application of the ABP Programme, presentation made in 2011.
46) So D. Mavromati, (University of Lausanne, former Managing Counsel to the CAS) on her Legal Issues related to the application of the ABP Programme, mentioned above, page 4.
47) The award is available on-line, at the CAS ‘institutional’ website (www.tas-cas.org), to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Sentence20217820_version20internet_pdf (French).
48) The award is available on-line, at the CAS ‘institutional’ website (www.tas-cas.org), to the following URL: https://jurisprudence.tas-cas.org/Shared%20Documents/2308,%202335.pdf (French).
49) The award is available on-line, at the CAS ‘institutional’ website (www.tas-cas.org), to the following URL: https://jurisprudence.tas-cas.org/Shared%20Documents/2235.pdf (English).
50) So para. 78 of the award.
51) Kumho Tire Co, Ltd. Vs. Patrick Cormichael, United States Reports, 1999, Vol. 526, pp. 137 and followings.
52) So para. 79 of the award.
53) So the official maxim of the award, point 2.
54) So the official maxim of the award, point 3.
55) So para. 81 of the award.
56) The award is available on-line, to the following URL: https://www.doping.nl/media/kb/3017/CAS%202013_A_3080%20Alemitu%20Bekele-Degfa%20vs%20TAF%20&%20IAAF%20(S).pdf (English). A brief resume of it is also available at the TAS-CAS Bulletin, n. 2-2014, on-line to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Bulletin_2014_2.pdf (English).
57) The last one (collected on July 29, 2010) was taken in the occasion of the European Championships in Barcelona, where Ms. Bekele competed in the 5000m, finishing in the gold medal position in a European Championship record time of 14:52:20 minutes.
58) The Expert Panel (composed by Prof. Yorck-Olaf Schumacher, Dr. Giuseppe D’Onofrio, and Prof. Michel Audran) considered, in particular, that “it was highly likely that her blood profile was the result of the use of a prohibited substance or method” (so para. 15 of the award).
59) So para. 18 of the award.
60) Pursuant to Article R48 of the Code of Sports-related Arbitration.
61) Pursuant to Articles R41.3 and R54 of the Code (above mentioned).
62) So para. 54 of the award (first part).
63) So para. 54 of the award (second part).
64) So para. 66 of the award (last part).
65) So para. 68 of the award (first part).
66) So para. 68 of the award (second part).
67) So para. 68 of the award (second part).
68) So para. 69 of the award.
69) According to anti-doping rules in force at the time (WADA Code 2009).
70) So para. 67 of the award.
71) In particular, CAS 2012/A/2773 IAAF vs. Hellenic Amateur Athletic Association and Irini Kokkinariou (especially on para. 75). For a brief resume of it, please refer to the TAS-CAS Bulletin, n. 1-2013, available on-line to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Bulletin201_2013.pdf (English).
72) So para. 80 of the award (first part).
73) So para 80 of the award (second part).
74) So para. 81 of the award.
75) So para 82 of the award (recalling, on the point, what affirmed by CAS 2012/A/2773 IAAF vs. Hellenic Amateur Athletic Association and Irini Kokkinariou, above mentioned).
76) So para. 83 of the award, where it is also stated that: “To do so would be to suggest that in all cases of blood doping a four-year period of ineligibility would under the rules as they stand be almost de rigueur, when the rules do not make specific provision for a more severe penalty in blood doping cases”.
77) All the awards are available on-line at the CAS institutional website (www.tas-cas.org).
78) S. Moston, T. Engelberg, Detecting Doping in Sport, Routledge ed., 2017.
79) So S. Moston, T. Engelberg, Detecting Doping in Sport, mentioned above (page vii of Preface).
80) From this point of view, it is essential the absolute respect for the Guidelines provided by WADA, by every single NADO.
81) Source: M. McGrath (Science Reporter of BBC), Top scientists quits anti-doping body over ‘muzzling’, http://www.bbc.com/news/science-environment-17586597, April 3, 2012.
82) In the above interview, he said that: “Anti-doping exists to protect clean athletes, not the reputation of the anti-doping movement. When push comes to shove, my actions will always be in the interests of clean athletes, even if that means I ruffle feathers by highlighting some inconvenient truths.. and just because I serve on their panel, it doesn’t give them the right to silence me”.
83) Available on-line to the following URL: http://www.sportsintegrityinitiative.com/open-letter-from-dr-ashenden-to-lord-coe/.
84) On such a letter, it is possible to read the following: “In its 2011 publication.. the IAAF estimated that 14% of your elite endurance athletes had blood doped during the 2001-09 era. That’s 700 blood dopers. Since 2011, just 63 Passport cases have been pursued by the IAAF. Publicly available documents list 72 positive cases for EPO (including CERA, admissions) in athletics between 2001 and now (2015, ed.).. It is clear from results in the database that serious problems emerged in Russia around 2005. Yet the IAAF chose not to join other sports, such as cycling, cross country skiing, biathlon and speed skating, who had adopted ‘no start’ rules in an attempt to stem the tide..”.Furthermore, in suggesting a way that IAAF could carry out (to improve its anti-doping programs), he added that “WADA’s ABP software automatically generates a so-called ‘sequence probability’ for individual athletes that seems ideally suited for ‘no start’ rules. Such an approach would require no additional sample collection or financial outlay, as the IAAF are already collecting blood samples from all competitors at the world championships, and evidently many major marathons”, and that “there is also much more that the IAAF could do”, by mentioning additional reforms like those carried out by the Major League Baseball (MLB) in 2009 (which created an independent Department of Investigations tasked with broad authority to take action to protect the integrity of its sport) and the outcome of USADA’s investigation into Lance Armstrong “to recognise the potential benefit”.
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