Witch hunting in the 21st century, part 2

Jobie Dajka, expelled from the Olympic team Photo: © Mark Gunter

Jobie Dajka, expelled from the Olympic team Photo: © Mark Gunter

Special feature, August 4, 2004

Sports lawyer Michelle Gallen continues her examination of the human rights issues raised by recent doping cases with a look at the recent furore surrounding the Australian track team. (See part 1)

Mark French and the Australian Institute of Sport

The image painted throughout the investigations in France (and Italy, which I will not go into here) of all cyclists as drug cheats, has not been helped here in Australia by the allegations concerning the AIS cycling squad following hot on their heels.

This story starts back in December 2003 when cleaners at the AIS residence in Adelaide found a makeshift 'sharps' buckets in one of the rooms, that occupied by Mark French. Some of the vials in the bucket had contained the substance 'Testicomp', a German brand name of a supplement product which contains glucocorticosteroid, a prohibited substance. It should be noted that evidence was later provided by French, and accepted by the Court of Arbitration for Sport (CAS), that the amount of glucocorticosteroid in Testicomp is so minute that it was undetectable. Upon testing, other vials were found to contain equine growth hormone, another prohibited substances. The Australian Sports Commission (ASC) and Cycling Australia (CA), just prior to Christmas 2003, appointed a lawyer from the firm Mallesons to conduct an investigation of the case. This led, on 9 February 2004, to both the ASC and CA serving French with infraction notices, and applying to the CAS to hear the case. The hearing was held on 3 June 2004, the delay between filing and hearing due to French's absence from the country while he raced in Japan.

The CAS heard evidence of both alleged doping by French and also trafficking, involving both prohibited substances found in his room. Malcolm Holmes QC, sitting as the CAS panel, found various breaches of doping policies made out concerning both use and trafficking of prohibited substances and sanctioned French to a two-year suspension and $1000 fine. The decision, handed down on 8 June, indicated that during the hearing French had named five other cyclists who had used his room to inject substances. Both the ASC and CA released details of French's sanctions to the media on 9 June.

The next time the issue arose was, amazingly, in the Australian Senate on 18 June. On that date, Senator Faulkner (Leader of the Opposition in the Senate) presented as facts, allegations made by French before CAS relating to the use of prohibited substances by five other AIS cyclists. Faulkner stopped short of naming the five cyclists. An interesting feature of this revelation is that, according to the Procedural Rules of CAS, awards of that body are confidential. They can only be made public if all parties to the awards agree. Yet lawyers for French only agreed to release the CAS award on 21 June, three days after Senator Faulkner quoted from it in the Senate. When questioned about the availability of the document by the Minister for Sport, Senator Kemp, Faulkner simply stated "[it] has certainly been made available to me". Leave was not granted by the Senate to Faulkner to table the document until 23 June, once it was ascertained that it was legally in the public domain. How Faulkner obtained the document remains a mystery, although he admitted on 18 June to having discussed it with others: "I have discussed my deep concerns with this case with the President of the Australian Olympic Committee, Mr John Coates, over the past 24 hours."

On 21 June, Kemp responded to Faulkner by announcing a further independent investigation into French's allegations, to be conducted by the Hon. Robert Anderson QC, a retired judge of the WA Supreme Court. On the same day, the AOC banned French for life due to CAS' finding that he was guilty of trafficking. Despite this dramatic increase in the penalty to be borne by French, this was done without giving him a further opportunity to be heard. The AOC anti-doping by-law, that this penalty was imposed under, recognises determinations of other bodies that an anti-doping rule violation has occurred, but not of the sanctions imposed. For trafficking, the AOC instead automatically imposes a life ban, the maximum penalty set out in the World Anti-Doping Code. The AOC suggested to French that his penalty could be reduced if he cooperated and named the five athletes he had previously made allegations about to the CAS.

Anderson released the initial findings of the investigation to the ASC and CA on 3 July, concluding that there was no evidence to support the allegations that French had made against the other five cyclists. By this time, those five cyclists had been named by every media outlet in the country. They were cleared for inclusion on the Olympic team, but controversy continued to surround two of them. Eventually Jobie Dajka was expelled from the team after he was found to have misled Justice Anderson about his use of French's room to inject himself, though Anderson's report concluded there was insufficient evidence to determine what product Dajka did inject. For the athletes shown to have no case to answer, competing at the Olympics might only go some of the way to compensating them for the slur cast on their reputations. Indeed, even after the cyclists had been exonerated by Anderson, some media outlets continued to publish negative comments (with no surrounding context) about them from Anderson's report. Again, the report appeared to have been mysteriously leaked.

The issues: confidentiality and innocence till proven guilty

All of the above examples demonstrate that, in their eagerness to 'expose a drug cheat', media, authorities and even federal parliamentarians will completely ignore the application of two fundamental human rights to athletes: those of privacy and innocence till proven guilty.

Further US-based examples of these entitlements being ignored are available, particularly in the case of athletes' grand jury testimony currently being used to indict them of doping offences, but as these cases do not involve cyclists, I will omit them here for the sake of (some!) brevity.

While authors and media continue to publish claims about doping made by third parties, usually with something to gain, and authorities continue to act as though such claims are concrete facts, the image of cycling as a sport 'full of cheats' will not change. Leaks of confidential documents to politicians and the press may further some hidden agenda; the proof of the last few weeks is that it does not further the cause of innocent athletes. And is that not what anti-doping should be about? The protection of clean athletes by the reasoned application of tough rules to the cheats. Instead, it seems that anyone found guilty of doping in the current climate is given more credence than otherwise when they tell tales of how 'everyone is doing it'.

People accused of murder are only called 'suspects' or 'alleged criminals' until a jury finds them otherwise. Yet athletes are not being given the same justice. Allegations are being presented as fact in forums as prominent as parliament, and cyclists have to go to the extraordinary lengths of publishing their own (clean) anti-doping records in an effort to clear their names. Which brings us back to the initial comparison to witch hunts. How many athletes will be burned at the stake of public opinion before the practice is recognised as barbaric, and they are given back their rights?

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