On page 173 of its report, the CIRC draws conclusions that are simply incorrect.
The first conclusion is that the UCI acted in breach of its own anti-doping rules in asking the riders’ entourages to provide a medical certificate after they tested positive, if they had not declared the use of a substance on their doping control form.
The UCI did not ask either Laurent Brochard or Lance Armstrong to provide a medical certificate, as has been explained above. I have no knowledge whether this request was issued in other cases. In any event, the UCI rules did not forbid it from asking whether the rider had a certificate. The certificate may have provided useful information concerning a case.
The CIRC writes that the UCI had “a very flexible approach” to the application of Article 43 of its anti-doping rules, whereby “exceptions to the rules were granted without any justification”. I have explained above why Article 43 was not applied in the cases of both Brochard and Armstrong.
The position was that there should be no sanction for doping if it was shown that there had been no doping. This is the way in which the Article was interpreted and applied to all riders, without any exception or discrimination.
The CIRC calls this “a very flexible approach”. Even though Brian Cookson himself was quoted by VeloNews on 22 May 2015 as saying that “every sport has to have a little bit of flexibility in applying the rules”, I would nevertheless not call this a ‘flexible’ approach, but rather a ‘fair’ approach. The aim of the rules is to sanction doping, not to sanction an omission in filling in a form as if it were doping, if in fact there is no doping.
It has to be borne in mind that, in fact, Article 43 was a very strict rule that was much hasher than the corresponding rule in the IOC Medical Code or under French law. Later on, the WADA code also dropped the requirement to provide a justification (in the form of a notification) for the topical use of corticosteroids.
The CIRC’s remark is another example of how it criticises UCI for not being perfect, despite the fact that cycling’s governing body was actually going further than was required. Needless to say, the UCI receives no credit for the fact that it did much more than it was actually required to do, while not falling short of what it was required to do.
Taking the CIRC’s view, it would have been better for the UCI to do absolutely nothing more than was actually required – as indeed most other sports did – in which case there would have been no criticism. Had there been no Article 43, as in all other sports, there would have been no Brochard case and no Armstrong case.
Apparently, the CIRC has a little understanding about this, where it writes that “if after the Brochard case Article 43 of the UCI ADR was considered to be unfair or inappropriate, it should have been amended or abolished by the UCI”.
In any case, Article 43 was indeed not applied when its application would have been unfair or inappropriate. On the other hand, it was believed at the time that this particular Article acted as a powerful incentive for riders to document the authorized used of medicines properly.
In 2000, Article 43 was indeed abolished, a fact that is ignored by the CIRC despite its comment in its report.
During the second half of 1999, the UCI developed a new procedure for riders to document the use of the substances on the prohibited list (such as beta-2-agonists and corticosteroids) that athletes were allowed to use under particular circumstances.
On the one hand, the introduction of tests for corticosteroids in 1999 increased the number of occasions when riders were required to provide medical prescriptions (as well as the number of potential disputes in this respect). On the other hand, where the IOC rules, as well as those of other authorities (such as the French Ministry of Youth and Sports), did not require medical prescriptions or any other kind of justification, the UCI did not want to abandon the requirement for riders to provide medical prescriptions. The UCI’s aim was to restrict the use of these substances, not only for anti-doping but also for health purposes.
As a result, the UCI introduced the ‘health booklet’. In this booklet, riders were required to note all uses of substances that were subject to any form of anti-doping restriction – and the booklet had to be shown when passing doping control. The booklet also mentioned the quarterly health checks that every rider had to undergo under the UCI’s health regulations.
When the health booklet was published, the relevant paragraph relating to Article 43 was replaced (from 1 March 2000) with a clause stating that only entries made into the health booklet would be taken into consideration for assessing compliance with the rules on authorized use of medicines.
The obligation to mention these substances on the doping control form was maintained as it provided useful information for the laboratory when analysing the sample and for the results management process. However omitting to mention these substances on the doping control form was no longer sanctioned as such.
Naturally, all these circumstances and considerations are ignored in the CIRC’s report.
The only elements reported in the CIRC are those aimed at drawing the conclusion that there was “a serious breach of the obligation to govern the sport correctly”, as though the proper governance of cycling depended on a mechanical application of Article 43, an article that even the CIRC seems to accept is unfair or inappropriate if applied blindly – and an article that had been abandoned 15 years ago.
This conclusion is totally out of proportion and demonstrates that, for the CIRC, any mud that might possibly stick should be thrown at me and at the UCI.
Article 43 was intended to provide a solution for a difficult problem and it turned out to be a difficult Article to apply fairly. As a result, after learning from the experience, it was abandoned when an alternative and better solution was developed and introduced. This is surely a normal process in any organisation. And just to reiterate: the problem was solved 15 years ago.