COMMENT: HUMAN RIGHTS? DON’T MAKE ME LAUGH
Former Astana rider Andrey Kashechkin's legal team appears in court in Liège, Belgium, today [Tuesday] to state a case that the out-of-competition dope test he was subjected to in Turkey after the team left the Tour de France infringed his human rights.
Details of the legal argument are sketchy but Kashechkin's team believe they have a case under Article 8 of the Human Rights Act regarding an individual's right to privacy. If successful the entire anti-doping effort could be dismantled just as the Jean-Marc Bosman case in the 1990s changed the way footballers' contracts are enforced.
The UCI has declined to comment on the case until the court has made its decision.
Kashechkin tested positive for a banned blood transfusion after blood collectors authorised by the UCI visited his hotel in southern Turkey late in the evening on August 1. Kashechkin had updated his 'whereabouts' information so the UCI knew where to find him. A condition of holding a UCI racing licence is that he makes himself available for out-of-competition testing.
The argument that this out-of-competition testing in some way infringes a person's rights is a serious threat to the entire anti-doping programme. Once the case has been heard a verdict may be announced in just two weeks' time, although there is the possibility it could drag on for months, or even years. Kashechkin's team has already said it will take the case to appeal if they lose.
Below is a comment article posted on this website ten days ago when news of Kashechkin's case first came to light.
COMMENT - October 26
Andrey Kashechkin’s lawyer believes that it is against the international charter for human rights that professional athletes are required to provide blood samples for anti-doping tests. It’s an intolerable invasion of privacy, apparently.
That’s a new one.
If the lawyer, Luc Misson, can demonstrate that Kashechkin’s human rights were infringed when the UCI’s blood collectors turned up at his holiday hotel in Turkey in August, the implications could be huge.
A victory for Kashechkin in this case could spell the end for any cohesive out-of-competition anti-doping programme.
Of course Kashechkin protests that he did not inject someone else’s blood to improve his performance but even Tyler Hamilton couldn’t dispute the science of the test, which was introduced in 2004. Instead the Kazakh is taking things a step further in questioning the right of sporting bodies to show up, unannounced, and demand a blood sample.
The Universal Declaration on Human Rights states that only public authorities, such as the police or governments, can interfere in private lives. And Misson points out that sports authorities are not public bodies.
But where was the former Astana rider’s protest before he tested positive? When he applied for and was granted a UCI racing licence he knew the rules. He even sent the UCI details of his whereabouts when he was not racing – that’s how the blood collectors tracked him down to southern Turkey.
So, what did he write? “Dear UCI, here’s where I will be for the next three months – by the way, I disagree strongly with the testing procedure and believe it to be an intolerable invasion.”
The lawyer says he will take the case right to the very top and, naturally, he believes they have a case. But there’s one slight snag – by conforming to the UCI’s rules and telling them where he would be, wasn’t Kashechkin accepting the terms and conditions of that agreement?
Funny how the squeals of protest only come after a test has been failed, isn’t it?
In an ideal world the sport of cycling wouldn’t need such invasive measures to combat the cheats. But if Mr Kashechkin wants to blame anyone, he should direct his fire at the riders before him who forced the governing bodies to take such extreme steps to try to clean up the sport.
Earlier this year, the UCI’s president Pat McQuaid, told our sister magazine Cycle Sport: “I’ll be honest, Spain is still a worry but the UCI is dealing with this in an active way.”
Six months on Spain is still a worry and, it seems, if it’s not the minister for sport, Jaime Lissavetzky, it’s the Spanish Cycling Federation.
This week Iban Mayo’s B sample for EPO was negative – failing to confirm the A sample that was positive at the Tour de France.
Or it wasn’t. Or the test was flawed. Or something. At first the details were sketchy but that didn’t stop the Spanish Cycling Federation from clearing the Saunier Duval rider. It didn’t stop his manager Mauro Gianetti from commenting. It didn’t stop Mayo’s many fans from cheering his reprieve. It didn’t stop the opponents of the anti-doping effort from attacking ‘flawed’ tests and ‘corrupt’ labs again.
Except Mayo’s B sample wasn’t negative. The Ghent laboratory, asked to test the B sample, produced a result that was inconclusive.
Anne Gripper, head of the UCI’s anti-doping services, told Cycling Weekly: “The UCI does not consider this case closed at all.
“Because the Paris lab was closing for the holidays we agreed for the B sample to be analysed at Ghent. However, the Ghent lab produced a result that was inconclusive. This is not a negative B sample.”
Now the UCI is waiting for final confirmation from the Paris lab, as well as confirmation from Mayo that he wants to be a witness at the opening and analysis of the sample, as is his right.
But that does not mean he’s cleared.
Sadly, a propaganda war is being waged in Spain. Resolutely sticking by its athletes is one thing. Fanning the flames of false information is another.