On page 171-173 of its report, the CIRC writes that the UCI failed to apply Article 43 of its 1999 anti-doping rules, in that it did not sanction Lance Armstrong for the presence of traces of triamcinolone in a urine sample taken during the 1999 Tour de France. CIRC also states that it must have been obvious to the UCI that the medical certificate provided by Lance Armstrong had been backdated.
Although this is a case that has been known about publicly for 25 years, the CIRC has omitted a number of key facts about the case, which are important to provide context and help understand the decision that the UCI took in 1999. The CIRC also does not report why the UCI took that decision.
It is important to bear in mind that this case was dealt with in July 1999, with the knowledge that was available at that time. It was only in January 2013 that Lance Armstrong finally admitted that the medical certificate that he had handed over in July 1999 had been backdated.
The applicable rules
The issue concerns Article 43 of the UCI’s anti-doping rules in force in 1999 (this Article was later amended on 1 March 2000 following the introduction of the health booklet).
Article 43 contained the following clause:
“The rider must indicate on the form any drugs listed on the list of classes of doping substances and methods which he has taken but which may not be taken into consideration under the medical conditions specified in the same list. If he hasn’t and any such substance is found by the laboratory, the test result shall be considered as positive and the rider shall be sanctioned even when he produces a medical certificate after the test.”
The triamcinolone acetonide that was found in Armstrong’s samples is one of the substances that this clause is referring to. It is a corticosteroid. Corticosteroids were on the prohibited list but could be used under certain conditions (that will be specified below).
In 1999, there was no WADA prohibited list. In the same way as other international federations, the UCI had adopted its own list that was based upon the IOC’s list.
The IOC’s prohibited list that was in force in 1995-1999 can be found in chapter II of the then IOC Medical Code. The clause on corticosteroids is in article III D of the list:
The use of corticosteroids is banned except:
The IOC Medical Commission has introduced mandatory reporting of athletes requiring corticosteroids by inhalation during competitions. Any team doctor wishing to administer corticosteroids by local or intra-articular injection, or by inhalation, to a competitor must give written notification prior to the competition to the relevant medical authority.
This rule clearly states that the dermatological use of corticosteroids is allowed without any formality and that such use would not constitute an anti-doping rule violation. Similarly, intra-articular and local injections of corticosteroids are also permitted under the rule, provided written notification is given prior to the competition. This condition of providing a written notification prior to the competition was abandoned in the Olympic Movement Anti-Doping Code adopted in 1999, which entered into force on 1 January 2000.
In the UCI’s 1999 ‘List of categories of doping substances and methods’, the section on corticosteroids (section III-C, par. 2) reads as follows:
The use of corticosteroids is prohibited, except when used for topical application (auricular, ophtalmological or dermatological), inhalations (asthma and allergic rhinitis) and local or intra-articular injections. Such forms of utilisation are to be proved by the rider with a medical prescription.
Whereas the IOC list did not require a medical prescription for topical use, the UCI list required a medical prescription as proof of a topical application of corticosteroids, for example a skin cream.
However, the UCI list did not require the rider to present the medical prescription prior to the competition, or prior to the doping test, or during the doping test itself.
Doping control at the Tour de France was not only governed by the UCI anti-doping rules but also – and in fact primarily – by French anti-doping law. Until 2006, all doping controls on French territory were carried out by the French Ministry of Youth and Sports. Under French law, only the Ministery of Sports was allowed to conduct anti-doping tests in France. (By way of illustration, an out-of-competition test conducted by the UCI on Laurent Roux in France on 27 April 2002 was first declared illegal under French law, but on appeal by the UCI it was later accepted as valid by CAS).
If an athlete was found positive, he or she had to undergo disciplinary proceedings both under French law and under the anti-doping rules of his or her international federation. The UCI had agreed with the French authorities a protocol in order to avoid double sanctioning. This example of good cooperation with the French authorities is not mentioned by the CIRC, which only focuses on conflicts.
Doping tests at the Tour de France (as at any other sports competition in France) were conducted offically by a medical doctor appointed by the French Ministry of Sports. However an anti-doping inspector (as the UCI’s anti-doping control officers were called at that time) attended the doping control session and assisted the French medical doctor (yet another example of how UCI cooperated well with the French anti-doping authorities).
The then prohibited list under French law (‘the French list’) was enacted by the Ministerial Decree of 12 November 1998 (Journal officiel de la République française, 15 December 1998, p. 18826). It is quite similar to the IOC list.
The status of corticosteroids is set out under section I.D of the French list, which reads (free translation from French):
The use of corticosteroids is prohibited except :
A – For topical application (anal, auricular, dermatological, nasal or ophtalmological) but not rectal;
B – By inhalation;
C – By intra-articular or local injection
An obligatory notification by athletes applying for the use in-competition of corticosteroids by inhalation for the treatment of asthma has been introduced. A team doctor who wants to administer corticosteroids to a participatant by local or intra-articular injection, or by inhalation, has to notify the medical authority in writing prior to the competition.
This French list thus stipulates that topical application of corticosteroids is not prohibited – and that no prior notification, or medical prescription, is required. This applies in particular to dermatological applications, such as the use of a skin cream.
Note also that, under the WADA prohibited list, the topical use of corticosteroids is not prohibited and does not constitute an anti-doping rule violation. And starting from 1 January 2005, WADA ordered that WADA accredited laboratories should no longer report corticosteroids results below 30 ng/mL. Although not relevant for the procedural issues of 1999, the traces of corticosteroids found in Armstrong’s samples must have been well below this reporting threshold. WADA’s instructions confirm the difficulties in the matter of corticosteroids and also that weak concentrations, whatever their origin, should not be reported as doping.
A new test
Corticiosteroids had been on the prohibited list of the IOC, the UCI and the French State for some years, but there was no test for detecting these substances in bodily samples.
It was only on 29 June 1999, in other words no more than four days before the start of the 1999 Tour de France, that the anti-doping laboratory of Châtenay-Malabry informed the IOC and the UCI that a detection method for corticosteroids had become available.
The UCI decided to introduce this test immediately at the 1999 Tour de France. In doing so the UCI was the first organisation to conduct tests for corticosteroids. Other sports only introduced that test later, some only after several years.
Test results for Lance Armstrong in the 1999 Tour de France
The 1999 Tour de France started on 3 July and finished on 25 July.
During this 23-day period, Lance Armstrong was tested 15 times.
In the four samples indicated below, small traces of triamcinolone, a corticosteroid, were found by the anti-doping laboratory of Châtenay-Malabry .
3 July negative test result
4 July presence of traces of triamcinolone acetonide
11 July negative test result
13 July negative test result
14 July presence of traces of triamcinolone acetonide
15 July presence of traces of triamcinolone acetonide
16 July negative test result
17 July negative test result
18 July negative test result
20 July negative test result
21 July presence of triamcinolone acetonide
22 July negative test result
23 July negative test result
24 July negative test result
25 July negative test result
The analysis reports were sent to the UCI, to the French Ministry of Youth and Sports and to Dr. Grosset-Janin, who had taken the samples as the doping control officer appointed by the French Ministry. The reports for the samples taken on 4 and 14 July mention that a copy was also sent to the French Cycling Federation.
The analysis reports of the laboratory of Châtenay-Malabry mention “traces”, this is extremely small residues. In those cases where actual concentrations had been found, as was the case with other riders at the 1999 Tour, the laboratory sent a detailed report to the UCI. No such report was received for Lance Armstrong. This information was also available to the CIRC, but has not been mentioned in its report.
The assessment of the test results by the French Ministry
As indicated above, testing at the Tour de France was governed by French law in the first place and so the test results were also sent to the French Ministry of Sports.
The French Ministry judged that there had been no anti-doping rule violation.
This conclusion took into account that on 3 July Lance Armstrong tested negative and that the day after, on 4 July, only traces of triamcinolone acetonide had been detected.
The explanation given was that if there had been oral use (which is forbidden), or use by injection (which is also forbidden except if the injection is local or intra-articular), both results would have been clearly positive. Alternatively, if the forbidden use had taken place after the test of 3 July, the results of 4 July and on the following days would also have been clearly positive. There would have been a high concentration of the substance and not, as was the case, alternating negative results and the presence of small traces.
At the time, there was also a commission of the French Ministry (‘commission d’interprétation’) which was in charge of examining therapeutic justifications for findings of prohibited substances. To my knowledge, Armstrong was not summoned by this commission to provide a medical justification for the findings that the Paris lab had reported. And if he was, it would mean that in both cases the French authorities were completely satisfied that the corticosteroids had been used in a way that was not forbidden – and that no further justification therefore needed to be provided. However the statement quoted below indicates that the French Ministry had seen the medical prescription provided by Lance Armstrong.
Indeed, Dr. Alain Garnier, who was at that time the medical doctor of the French Ministry of Sports in charge of the fight against doping (and later on the medical director of WADA), was quoted by the French journal L’Equipe on 22 July 1999 as saying: “Armstrong had declared that he used a skin cream which has been proven to be entirely justified. A cutaneous injury justifying this prescription of a skin cream can explain the absorbtion in the blood of the active substance that was found in his urine. The prescription has been made neither fraudulently nor as a cover-up.” (In French: “Armstrong a déclaré avoir utilisé une pommade qui s’est avérée complètement justifiée. Une lésion cutanée justifiant cette prescription de pommade peut expliquer le passage dans le sang du principe actif retrouvé dans ses urines. L’ordonnance n’a été rédigée ni par complaisance ni par camouflage”.)
In the same article, by L’Equipe the Ministry of sports was quoted as follows: “All the tests on corticosteroids were negative”. (In French: “Tous les contrôles relatifs aux corticoïdes se sont avérés négatifs”.)
Once again, this information has been ignored by the CIRC in its report.
No disciplinary proceedings were initiated against Armstrong by the French authorities, or at its request.
The assesment of the test results by the UCI
The UCI had quite naturally also noted that the sample of 3 July was negative and that the sample of 4 July contained only traces of triamcinolone acetonide.
These elements were compatible with an authorized use. If there had been a forbidden oral use, or a use by injection (which may be authorized or not depending on whether the injection is local or intra-articular or not) between the negative sample of 3 July and the test of 4 July the sample of 4 July would have shown a high concentration and not just traces – and the samples of 11 and 13 July would have been positive as well, because corticosteroids remain detectable over this timeframe. In fact, the samples of 11 and 13 July were negative.
For his complete information, the UCI doctor, Leon Schattenberg, contacted the doctor or the manager of Armstrong’s team and asked whether there was a medical prescription. The answer was that there was a prescription for a skin cream called Cemalyt and that this prescription would be delivered. This prescription was delivered the same day, or the day after.
The document contains the following statement by US Postal team doctor Luis Garcia del Moral dated 3 July 1999 and reads:
The rider has been using during the 2 and 3 of July:
Cemalyt : Calendula (extr)
for the reason of present a allergical inflamatory dermatitis (sic).
Dr Schattenberg discussed the document with Werner Göhner, who was then President of the Anti-doping Commission and Vice-president of the UCI, as well as being a lawyer.
Following this consultation, the document was accepted as the medical prescription required by the UCI’s list. As noted above, the list does not require that the medical prescription be presented prior to the competition, or prior to or at the sample collection. A medical prescription presented after the test fulfilled the requirements stipulated by the UCI.
UCI’s Dr. Schattenberg also consulted with Dr. Garnier of the French Ministry, who confirmed that the presence of traces of corticosteroids found in the sample taken from Armstrong was compatible with the use of a skin cream; that the use of a skin cream was accepted as proven by the French Ministry; and that there was therefore no anti-doping rule violation.
It is a fact that despite the requirement of Article 43 of the UCI’s Anti-doping examination regulations, Armstrong did not mention the use of corticosteroids, or the use of a medicine containing corticosteroids, on his doping control form of 4 July. The Article rules that this omission should be sanctioned as though the rider were found to be positive, even when he or she produces a medical certificate after the test. Armstrong’s doping control form read: “medicines used: none”. This statement by Armstrong was apparently written down by the French Ministry of Youth and Sports anti-doping control officer, Dr. Michel Grosset-Janin.
It is not known what questions Dr. Grosset-Janin asked Armstrong about the medicines he was using, or whether any of these questions would have made Armstrong think about his use of a skin cream, rather than concentrating only on forbidden forms of administration: eg. medicines, pills or injections. Given that the use of a skin cream was not forbidden under French law and that no prescription was required, it is possible that no questions were asked about skin creams, eye drops or another authorized forms of medication.
In any event, in 1999 the UCI Anti-doping Commission concluded that there had been no anti-doping rule violation and that Armstrong should not be sanctioned on account of Article 43 for having omitted to mention the skin cream during the doping test. The reason for this was that the authorized use of the triamcinolone acetonide was established by the fact that only traces of the substance had been found the day after a negative test.
The purpose of Article 43 was to impose the most certain proof possible that a substance had been used in a non-prohibited way, taking into account that a medical justification that is handed over afterwards is difficult to verify. This Article 43 was not a rule of substance, but a rule of evidence.
Article 43 did not prevent a judgement that corticosteroids were used in a non-prohibited way, in particular if there was other supporting evidence apart from the medical prescription. If this other evidence showed that the corticosteroids were used in a non-prohibited way, the purpose of Article 43 was fulfilled – and there were no grounds or justification for applying the sanction provided in the Article as if he had used the corticosteroids in a prohibited way.
In Armstrong’s case, because there had been a negative test and, the following day, the presence only of traces of triamcinolone acetonide, this constituted evidence of an authorized use and therefore of the absence of doping. It must also be said that this sort of sequence of tests is only rarely found, as it is only during a stage race that any athlete will be tested on two consecutive days.
The sanction of Article 43 was not meant to apply if a rider had not declared a medicine when being tested, if other evidence – other than the medical certificate – could demonstrate that the use of the medicine was not forbidden.
In other words: if there was proof that there had been no doping, then the athlete should not be sanctioned as if he had doped – in essence for omitting to carry out a formality that was no longer relevant given that there was proof that no doping had taken place.
If the UCI had taken steps to remove Armstrong from the Tour, Armstrong would have certainly won his case in court, in particular because there had been no anti-doping violation under French law either.
The result of Armstrong’s doping test of 4 July 1999 was widely commented on in the press, including by Le Monde on 20, 21 and 23 July, and Libération on 22 July. (The article in Le Monde shows that this newspaper was in possession of doping control forms from a number of different riders. Given that these copies of the forms contained the name and medication (if any) of the riders, it means that these copies must have come from the French Ministry of Sports, the only body apart from the UCI that had received such copies. As indicated under the section about the Vrijman report, this shows that when, in 2005, L’Equipe published copies of Armstrong’s doping control forms from the 1999 Tour, it might already have been in possession of these forms before Damien Ressiot obtained another copy from the UCI in 2005. And Ressiot might have asked for this later copy in order to camouflage the fact that L’Equipe was already in possession of these forms. Although the question was raised in the Vrijman report, it was never investigated; nor did the CIRC do so.)
Following the publication of these press articles, the UCI published a press release on 21 July containing the following:
Without prejudice to the medical secrecy which the UCI fully wishes to maintain, but at the express request of Lance Armstrong and his team, taking into account the exceptional situation brought about by certain publications, the UCI is making an exception to this principle by confirming that:
The rider used the ointment Cymalyt (which contains triamcinolone) to treat a skin allergy.
The medical prescription has been shown to the UCI. The rider was tested on 3rd July 1999 after the prologue, and the result was negative, with no traces of corticosteroids. The rider was tested again on 4th July, and on this occasion minute traces were detected. The result of the tests on these two dates unquestionably demonstrate(s) that there was no systemic use. (emphasis added)
In view of all these elements, the UCI, after discussing the case with the competent French authorities, affirms in the strongest terms that such use is permitted by the rules, and therefore does not constitute any form of doping.
Neither the media articles, nor the UCI press release, prompted either the French Ministry or the IOC to question or to review the decision, so confirming that, for these two authorities, it had been proved that there had been no anti-doping violation.
More importantly, from the press release and in particular from the statement that “…the result of the tests on these two dates unquestionably demonstrates that there was no systemic use”, it is clear that the determinant factor for not initiating proceedings against Lance Armstrong was the evidence resulting from the successive test results of 3 and 4 July, and not the medical certificate provided by Dr. Del Moral. This element is completely ignored by the CIRC.
The criticism by the CIRC
The CIRC reports on page 172 that “…according to witness statements, soon after being informed by the French Laboratory about the positive tests, direct contact was initiated between high-level UCI officials and the Armstrong entourage, during which the latter was advised to produce a medical certificate”.
I don’t know who these witnesses were or exactly what they have told the CIRC. I was not given the opportunity to see their statements. According to my information, however, it was Dr. Lon Schattenberg who contacted the Armstrong team and asked whether there was a certificate. So it is not correct that, as CIRC writes, that the Armstrong entourage was advised or asked (page 173) to produce a certificate.
The CIRC also writes that “…The medical certificate was clearly created after Lance Armstrong tested positive as confirmed by several interviewees and Lance Armstrong himself during his interview with Oprah Winfrey which was broadcast on 17 January 2013.”
The CIRC does not indicate when and how these interviewees knew that the certificate was backdated. Did they know about it before Armstrong own admission on 17 January 2013? The CIRC does not explain either how the UCI, in 1999, could have identified the certificate as being backdated. This was not visible from the document and did not result, in particular, from the fact that the document was written in the past tense: if a doctor writes on a document that a rider has used a skin cream on 2 and 3 July and also that he wrote this document on 3 July, there is nothing that shows that the document was written after 3 July.
The CIRC writes, on page 173, that “…Lance Armstrong admitted that he took the drug without therapeutic motivation and only to enhance his performance. His doctor issued a certificate where not only was the date wrong, but also what it attested.” The CIRC does not specify when, and in front of whom, Lance Armstrong admitted that the certificate was also incorrect in what it attested. He certainly did not do this during his interview with Oprah Winfrey. During that interview, he gave no details on what he had taken, when and why. Nor does the CIRC. In fact, the CIRC does not specify that it was something other than a skin cream (which is the most compatible use, given the pattern of negative tests and tests with traces of triamcinolone during the 1999 Tour de France) and the CIRC does not specify which medicine was used if it was not a skin cream. (Upon review of a transcript of the interview with Oprah Winfrey it is possible however that Armstrong intended to confirm the whole story of Emma O’Reilly and not just the backdating, although Winfrey’s question specified only the backdating. In any event it is not clear whether the CIRC relies on that or had received other information, in particular from Armstrong himself).
Similarly, the CIRC does not explain how the UCI could have known that the certificate was false in what it attested.
On page 173, the CIRC also writes that it considers that it was a case of providing a false medical certificate and therefore the case should have been reported to the criminal authorities and the relevant medical boards.
Once again, the CIRC fails to explain why, in 1999, the UCI should have considered the certificate as being a fake document. (I also debate whether the UCI could have done that before the certificate had been declared a false document in a court of law).
Given that Armstrong only admitted in 2013 that the prescription had been backdated and then or at a later date unknown to me, apparently admitted that its contents were also false, I cannot understand why the UCI should have known this to be the case a decade and a half previously, in 1999. There was simply no evidence to support this back at that time.
The CIRC also ignores the fact that the certificate was also reviewed and accepted by Dr. Alain Garnier of the French Ministry of Sports, reinforced by the statement he made to L’Equipe in its article of 22 July 1999: “Armstrong had declared that he used a skin cream which has been proven to be entirely justified. A cutaneous injury justifying this prescription of a skin cream can explain the absorbtion in the blood of the active substance that was found in his urine. The prescription has been made neither fraudulently nor as a cover-up.” (my translation of the French text quoted above, emphasis added)
If this was the analysis of the French Ministry of Sports, confirming that the prescription had not been faked and that there was no cover-up, why then should the UCI have considered the certificate to be a fake?
And why does the CIRC only point its finger at the UCI and not also at the French Ministry of Sports? I might suggest that it is because the CIRC wants to accuse the UCI of complicity in falsehood, but of course does not dare to do the same to the French Ministry of Sports? In addition, the CIRC does not dare to say that it was the French government’s responsibility to report the case to the criminal authorities and the relevant medical boards. The CIRC does not write either that the French Ministry of Sports obviously had no reason to do so, otherwise it would indeed have reported the case.
But of course these considerations by the CIRC concerning the medical prescription also disguise the fact that the UCI’s decison not to proceed in sanctioning Armstrong was not based on the certificate, but instead based on the evidence coming from the sequence of tests: the negative test of 3 July preceding the test of 4 July (that showed traces of triamcinolone only).
The CIRC completely ignores the reasons why the UCI has accepted that no doping had occurred and why, on that basis, there was no ground for applying Article 43. Essential elements of this case have deliberately not been included in the CIRC’s report, so making it impossible for a reader to understand exactly why the UCI took its decision in 1999 – and so make up his or her own opinion.
It’s true that at the bottom of page 172 the CIRC quotes some parts of sentences from a letter that UCI’s counsel had sent to the French newspaper Libération:
In a letter to the newspaper Libération about an article published on 22 July 1999 about Lance Armstrong’s positive test, the UCI lawyer advised that “use of a medication is not an act of doping when it is done with a therapeutic purpose but, on the other hand, constitutes an act of doping where there is no therapeutic justification”. The letter continued that “the sole fact of having forgotten to declare the use of a medication should not lead to a doping sanction if the forgetting is excusable” and further added: “Article 43 of the Rules should not be a blind automatism allowing an abstraction of reality to arrive at a result that one knows is unjust”.
But this quote is quite alarming as to the methods used by the CIRC.
I will publish the complete letter – dated 27 August 1999 – here on my website, but I will translate the two following paragraphs (paragraphs 8 and 9 of page 2):
One could not end up in a situation where the rider is sanctioned for doping for the sole reason that he has omitted a formality when other elements allow to conclude that there is no doping. The whole of circumstances of a given case may warrant the conviction that the medicine has been used for therapeutic purposes and that there was no doping. In this case such conviction could be justified for example by the circumstance that several successive tests had been conducted, that the results were almost all negative and that only very small traces have been found.
Neither the sole fact of having forgotten to declare the use of a medication should lead to a doping sanction if the forgetting is excusable.
(Then follow some examples of circumstances where omitting to declare using a medicine might be considered as excusable)
You will see for yourself that the CIRC has not quoted the most important paragraph of that letter.
You will see for yourself, too, that the CIRC has omitted from its quotation of the second paragraph the word “neither” (‘non plus’ in the French original). This is the reason why I have highlighted this word in bold. The word shows that the argument of the second paragraph is a secondary argument (applying to various circumstances that are quoted afterwards) – and that it was preceded by another, more important argument concerning specifically the case of Lance Armstrong.
By not translating “non plus”, this was concealed by the CIRC. This seems to me to be deceitful. I wonder whether the three CIRC members examined and approved this personally, or whether they simply endorsed something that had been prepared by one of their junior assistants.