ARTICLE SUMMARY
FULL ARTICLE
The text below is quite long but, unlike the CIRC report, it brings to light and discusses a great many relevant facts and issues, in the hope that ultimately a full and properly independent investigation of the whole affair can take place.
In particular, there needs to be a definitive answer to the question: was this a set-up orchestrated by WADA and/or Dick Pound?
1.
On 23 August 2005, after Lance Armstrong had won his seventh Tour de France and bade his first farewell to cycling, the French newspaper L’Equipe reported that traces of EPO had been found in samples taken from Armstrong six years earlier in the 1999 Tour. The discovery was made during a research project into refining the EPO detection method, carried out by the anti-doping laboratory of Châtenay-Malabry, near Paris (Laboratoire national de dépistage du dopage or LNDD).
The UCI asked Emile Vrijman, a Dutch lawyer and former director of the Netherlands Centre for Doping Affairs, to conduct an investigation to determine whether, based upon the findings of LNDD, disciplinary proceedings could be opened against Lance Armstrong.
The report following this investigation was made public on 1 June 2006 and is commonly called the ‘Vrijman report’. However the report was co-authored by another Dutch sports lawyer, Paul Scholten, the head of the law firm Vrijman started to work for on 1 January 2006. It was, in fact, Scholten who supervised Vrijman and who to my knowledge was the ‘editor-in-chief’ of the final report, although Vrijman did most of the work. Scholten had worked for some time in a New York law firm and had a fluent command of the English language, which Vrijman didn’t.
Scholten’s role is ignored by the CIRC. Nevertheless, for convenience, I will also refer to the ‘Vrijman report’.
2.
Many things have been written about the Vrijman report and the CIRC provides its contribution on pages 182-192 of its own report.
It should be made clear, however, that pages 189-192 contain an additional opinion which was provided by the CIRC President Dick Marty alone.
This is the most remarkable aspect of the CIRC’s report.
As the CIRC notes on page 189, Marty’s separate opinion “could allow a different assessment of the facts”, and that is correct. It creates also some difficulty for me, making it quite complicated to assess to what extent the other pages of the CIRC report, when writing about Vrijman, also reflect Marty’s opinion. So the comments that follow may be not be justified where Marty is concerned, in particular because he has had the courage to be critical about WADA in these two and a half pages. When I say ‘critical’, I do not mean anti-WADA. I refer only to Marty’s willingness (and, in the world of sport where WADA is so dominant and unaccountable, also the courage) to examine facts that may not paint WADA in an altogether flattering light, and to come to a judgement based on those facts and not upon personal considerations, or on fear.
Mr Marty correctly points out that Armstrong had been targeted by the leak of the information in L’Equipe of 23 August – and therefore, I should add, by all of the people who were involved in that leak.
In this respect, I quote here from the following statement by Marty on page 191 of the CIRC report, which I see as a fundamental reproach to WADA (one that the two other members unfortunately didn’t share, I presume for fear of WADA): “such indiscretions [the leak in L’Equipe] certainly do not contribute to the credibility and standing of the anti-doping structures. This is certainly not to defend riders who have doped, but an effective fight against doping cannot be conducted by endorsing targeted leaks in the press, in this way indirectly legitimising the existence of the underlying infringements, rather than strongly condemning such leaks from the outset.” [my emphasis added]
Marty also rightfully condemns the violation of riders’ rights by WADA and LNDD, in that their sample code numbers were not removed and were even integrated in the report on the research: “Scientific research carried out on human material must be carried out while respecting the strictest conditions of anonymity” (page 190).
Since the rest of this article was written and published, I have added the following five paragraphs (and a further additional paragraph in section 15 below):
In September 2015, I was provided with an article published in L’Equipe on 16 November 2007. In this article, Dick Pound is quoted as follows: “We never violated the WADA Code. We have conducted further tests for the sake of science, for the detection of EPO. We have found [EPO] in six samples but we had only the numbers. Who else than Jean-François Lamour, in his capacity of Minister of Youth and Sports of France, has requested from the laboratory of Châtenay-Malabry to deliver up the name of Lance Armstrong to the public?” (translation from French).
In this article, Dick Pound is clearly suggesting that Jean-François Lamour organized the leak. But is that the whole story? It is a fact, admitted by WADA, that it was WADA that asked that the LNDD to include the original sample numbers in its “research” report. We know that LNDD refused this request, but that eventually LNDD, as a public service under the Minister of Youth and Sports, had to comply. So I can’t rule out that Lamour, who was then the sole candidate to succeed Pound, made a request to LNDD to leak the name of Armstrong at the request of Pound.
Pound adds that Lamour did so in “his capacity of Minister of Youth and Sports of France”. Lamour was at the same time Vice-President of WADA, and, I repeat, the sole candidate to succeed Pound. So Lamour received orders from Pound while wearing his WADA hat and then gave orders to LNDD with his ministerial hat? We also have to link this with the statements by the LNDD representatives to Vrijman that they had “the strong impression that the additional information [i.e. the original sample codes] had been requested with the intention to determine accordingly the identity of one or more riders” (Vrijman report, n 4.19).
The statement by Pound that Lamour asked LNDD to deliver up the name of Lance Armstrong confirms that WADA and LNDD had all the information necessary to identify Armstrong and that Pound’s allegation (echoed without any critical note, let alone investigation by the CIRC) that Armstrong could only have been identified because of Mario Zorzoli handing over copies of forms to Damien Ressiot, is just a smokescreen.
In view of Marty’s pertinent criticism of WADA endorsing the targeted leak of Armstrong’s name, it is of course a pity that the CIRC has not further investigated the issue of the leak. But it is no surprise: WADA had to be protected.
3.
I am not surprised that the CIRC puts such emphasis on the Vrijman report, as it needed to find something with which to reproach the UCI and/or me, in particular given that no evidence of corruption or complicity in doping could be found.
I was however a little bit surprised that the Vrijman report is treated by the CIRC as an example of alleged preferential treatment of Armstrong. As CIRC President Marty points out on pages 189-191, Armstrong had been targeted by those who organised the leak of information that should have been kept confidential.
If the leak in L’Equipe had been about another rider, whose identity was revealed, then the Vrijman report would have been about that other rider. Or otherwise there would have been no report at all, as I am quite sure that WADA would not have insisted on an investigation for an issue that was not about Lance Armstrong.
In an interview on 1 June 2006 with Outside magazine, the reporter Brian Alexander asked Pound: “Dutch lawyer Emile Vrijman has been asked by the UCI to investigate the L’Equipe affair. You’ve demanded a “full investigation. What would that entail?” This was Pound’s answer: “Determining whether the urine samples were positive and whether any of the positives were Armstrong’s” [my emphasis added].
A clearer proof of the targeting of Armstrong could hardly be: Pound’s concern is only about Armstrong; he is not interested in the laboratory findings of any of the other riders.
This form of “preferential treatment” by WADA of Armstrong is not mentioned by the CIRC, although Marty clearly hints at it.
What is more, if this had not been about Armstrong, there would have been no leak to L’Equipe.
Of course, WADA knew very well all along that no sanctions could possibly arise out of this incident. However, because the “star rider” of cycling was involved, WADA pushed UCI to hold an investigation into the matter, in order that the case remained in the public eye for longer and to ensure that cycling was damaged.
Marty actually noted this on page 191: “This affair attracted a huge amount of publicity – yet it was known, or should have been known, from the very start, that no sanctions could arise (as it lay outside any anti-doping procedure). The affair gave rise to genuine feelings of unease, especially when taking into account the serious conflicts that at that time existed between the UCI on the one hand and WADA (at least at executive level), the French Anti-Doping Agency and ASO (belonging to the same group as L’Equipe) on the other. Such indiscretions (not forgetting what happened in the Contador case) certainly do not contribute to the credibility and standing of the antidoping structures”. (I fail to see however why the French Anti-doping Agency and ASO are quoted, as there have been no tensions with UCI in relation with this affair).”
I have always suspected and wanted an investigation into the whole affair – not only the EPO findings, but also the research into the Tour samples and the leak to L’Equipe and into my concern that this had been set up by WADA to discredit UCI and myself, especially as WADA knew that Armstrong could not be sanctioned anyway.
Marty also writes (on page 191) that “if the information had been dealt with while respecting the necessary discretion, it would also have been easier to put in place a more effective surveillance of Lance Armstrong”.
It would have been difficult to put Armstrong under surveillance after the leak in L’Equipe as he had already left cycling, but Marty’s statement made me think the following:
WADA knew, from the end of 2004, that the Tour de France samples were being reanalysed, because it was WADA itself that had asked LNDD to reanalyse these samples under the cover of scientific research (see below the statement of Professor De Ceaurriz). WADA ordered the laboratory, against all of the rules, to provide it with the data that would enable the identification of the riders concerned. I am absolutely convinced that WADA was aware that this information was going to be leaked, in particular about Lance Armstrong. WADA and Dick Pound had a good relationship with Damien Ressiot.
WADA was aware of what was going on and what was coming up. The UCI was not. Although WADA had told Emile Vrijman implicitly that it had asked for the code numbers of the samples to be included in the research report because the UCI might be interested in this (see attachement 47 to the Vrijman report, under Q8) and LNDD very explicitly confirmed that it was WADA that made the request (see par 4.17 -18 of the Vrijman report), neither WADA nor LNDD informed the UCI that cyclists’ samples were being reanalysed for research purposes. I was taken unawares by the article in L’Equipe on 23 August 2005.
WADA knew that Armstrong would be leaving cycling after the 2005 Tour de France.
WADA had the possibility of testing Lance Armstrong out-of-competition under an agreement with the UCI.
WADA tested Armstrong just once between February 2002 and July 2005, on 3 June 2005. That test was negative.
WADA did not ask UCI to put in place “a more effective surveillance of Lance Armstrong” in 2005.
And to my knowledge WADA did not ask USADA to put in place “a more effective surveillance of Lance Armstrong”, although I cannot rule out that there was some cooperation with USADA. It must also be said that USADA tested Lance Armstrong four times between 7 December 2004 and 5 April 2005. All of these tests were negative. And L’Equipe quoted Travis Tygart, who was then legal manager of USADA, in the 23 August edition in which the information was leaked, as saying that “as from now on all means are good for proving someone’s guilt”.
Was it because all tests on Lance Armstrong were negative and that Armstrong was going to retire from cycling without a single positive test, that “something else had to be done”, and “that all means were good” for that?
It is telling that no one was interested in knowing the names of the other riders involved in the LNDD research project and in whose samples the LNDD reportedly found EPO. L’Equipe tried to obtain doping control forms from the UCI only for Lance Armstrong, as Dick Marty also notes in his additional report on page 191 of the CIRC report.
It is my view that Armstrong received no preferential treatment regarding the Vrijman report. The UCI would have acted in the same way and, the facts being the same, the report would have contained exactly the same conclusions if it had been about a different rider whose name had been leaked to L’Equipe.
And of course the findings and conclusions of the Vrijman report are identical for all of the riders involved who were in exactly the same position as Lance Armstrong: the LNDD reported that the analysis of their samples for research purposes yielded findings of EPO, as did Armstrong’s.
There was no preferential treatment for Lance Armstrong, just as there was no preferential treatment for Gonzalo de Galdeano or for Caille Williams, two riders who were falsely accused of doping and who were defended by the UCI because the UCI correctly concluded that they had not doped. De Galdeano was defended in public by the UCI and was not prosecuted. Caille Williams, bronze medallist at the Athens Olympic Games, was acquitted by CAS following the intervention of the UCI in the CAS proceedings between Williams and the IOC. The UCI intervened after it discovered that the view of the IOC and WADA on the alleged “related substance” that was found in her urine sample, was wrong. But these cases, which must have created resentment with WADA, were ignored by the CIRC.
4.
I will take you now through the story of the Vrijman report by commenting about what the CIRC has said.
The CIRC writes on page 182:
Available information shows that following the publication of the L’Équipe article, WADA urged UCI to conduct an enquiry into the allegations and offered its assistance. However, UCI focused instead on investigating issues regarding potential breaches of the relevant rules and procedures and how confidential information became public.
The CIRC omits quoting from the letter in which WADA, according to the CIRC, “urged UCI to conduct an enquiry”. In WADA’s letter of 25 August 2005 to the UCI, I quote from the third paragraph:
“Within the initial article published by L’Equipe, there are copies of doping control forms. Are you in a position to enquire as to how those forms became available to the journalist?”
This question concerning the issue of how the leak to L’Equipe was possible, is the very first question that WADA asked the UCI in relation to the whole affair. This is not reported by the CIRC. It is, however, extremely pertinent given WADA’s subsequent accusation that the UCI was only interested in how the story was leaked. It is also an indication that WADA already knew from Damien Ressiot that UCI’s Mario Zorzoli had given copies of 15 doping control forms to the journalist of L’Equipe and was waiting for this to become known publicly. (As indicated below I only learnt this in February 2006).
WADA’s letter continues:
“In the circumstances it would be beneficial if you were in a position, at UCI, to conduct an enquiry to determine what action can be taken. As these matters preceded WADA, and of course the WADA Code, jurisdiction rests with you as the responsible anti-doping organization”.
I would call this wording more of a ‘suggestion’, but the CIRC describes this as WADA “urging” the UCI. This may be correct to the extent that WADA had manoeuvred UCI into a position where it had no option but to conduct an investigation, even if, as acknowledged by Dick Marty (on page 191) it was known from the very beginning that no sanctions could arise. Imagine the reproaches about how the UCI had protected Armstrong, if the UCI had refused to carry out an investigation, despite knowing in advance that no sanctions could arise.
I replied to WADA in a first email on 30 August that UCI would take no action based only on a media article – and then in a second email on the same day:
You ask us to investigate the matter on the basis of a newspaper article. As far as I understand, the analyses that are referred to were made at the request of WADA for research purposes. The laboratory confirmed in a press statement that the research results were given to you anonymously and could not be used for disciplinary purposes.
David, in a WADA-initiated research program conducted in a WADA-accredited laboratory, the most essential standards of confidentiality have been disregarded. Confidential information of this study became available to the press. And now you ask me to investigate…???”
In his answer to me the same day, David Howman for WADA, wrote back:
As stated earlier, we are very prepared to assist you with an investigation or inquiry. However, if such an inquiry is to be seen as transparent and impartial, we must express concern that you have already published regrets that there has been a breach of confidentiality. We are not certain that this can be said without a full inquiry, nor are we certain on the basis of the information we currently hold whether such a breach has occurred. There needs to be much preliminary inquiry to indicate, for example, who held any confidential information, how it was held, who was responsible for maintaining it, and in what way. Only then can there be inquiries made of those responsible?
I highlight words in this passage to point out three things:
Finally, why does the CIRC think that WADA “urged” the UCI to conduct an inquiry, when the results of this inquiry were well known in advance – in particular as the CIRC (on page 188) agrees with the concensus that the research results of the LNDD could not have been used for disciplinary purposes and that it was known from the very start that no sanctions could arise (page 191)?
What prevented the CIRC from stating that there was no need for an investigation into this?
5.
The CIRC skips to WADA’s letter of 5 October 2005, but ignores the much more important correspondence between UCI and WADA prior to that date.
In a four-page letter to WADA, sent on 5 September, the UCI lists a number of questions that should be answered before being in a position to assess whether there was a case against Armstrong or not: “There has to be an answer to these questions and that answer has to make us confident that we have a valid basis for a case”.
This letter clearly shows that the UCI would open disciplinary proceedings against Armstrong provided that the information leaked to L’Equipe provided a solid basis to do so.
In a letter to WADA, on 8 September, I asked a number of additional questions:
I concluded: “I repeat that I am very grateful to you for your assistance. It is only with that assistance that we will be able to clarify the many issues and doubts which we have relating to the article in L’Equipe”.
At the same time, I addressed a letter with a list of similar questions to the LNDD and to the French Minister of Sports, who is the authority above the LNDD.
David Howman sent me an extensive answer on 9 September. In this letter, Howman specifies what the UCI should do:
“UCI should determine whether under its rules, then and now, there is information which would allow it to proceed with an anti-doping violation”.
Where Marty writes on page 191 that it was known, or should have been known, from the very start that no sanctions could arise (as it lay outside any anti-doping procedure) he confirms that WADA was burdening the UCI with a pointless mission. It was certainly pointless from the perspective of anti-doping. But it was extremely useful for WADA to keep a scandal alive for many months, one which was incurring a great deal of cost and causing damage to the UCI, as well as to cycling and to me at the same time.
I was only too aware that this was the motive behind the whole affair and so it should be no surprise that I wanted any ensuing investigation cover all aspects. In other words, the investigation should cover not just whether there was information which would allow the UCI to prodeed with an anti-doping violation, but also an examination of whether there were violations committed by WADA as well as an examination into how the leak occurred.
I am still convinced that a proper examination would expose the fact that the whole thing was a set-up! This explains why WADA has always prevented any such investigation taking place and why the CIRC, notwithstanding the critical opinion of Dick Marty, has not investigated this aspect either, despite me specifically asking the CIRC to do this.
On 10 September, I had a telephone conversation with David Howman. In a later email, I suggested to Howman that the inquiry be referred to an independent observer’s commission. On 12 September, David Howman, while on the one hand adamantly saying that “there has been nobody from WADA requesting the information in the way that you suggested, from the laboratory” (i.e. the original anti-doping code numbers on the samples) – which was confirmed later to be false, as WADA admitted to Vrijman – also responded that “the other ideas you are reflecting on would best be served by an independent commission, not to be confused with an independent observer mission that we have at major events, similar to the inquiry that I was part of with CJ Hunter after Sydney. This is very expensive and could take a long time. However let’s talk about it.”
Then came a letter from Dick Pound, dated 14 September, in which he admonished the UCI for only asking questions about one issue, namely how the various elements of the L’Equipe story had been obtained by the reporter. Of course, this was a completely false allegation (which I will deal with later on), as you will see from these letters.
Pound also admits in his letter that it may not be possible to impose any sanctions, but that this was a secondary consideration to the discovery and exposure of the doping (in the 1998 and 1999 Tour de France).
So it appears that, for Pound, the EPO problem that existed between 1998-1999 was apparently not sufficiently clear. And this despite the Festina scandal, in 1998, which in the words of the CIRC “made it clear to everyone that ‘doping was being systematically used within the sport of cycling’ ” (page 38). WADA had been created after (and because of) the Festina scandal and Pound was appointed President of WADA. And yet, Pound claimed to need the 1998 and 1999 samples to be reanalysed in 2004 in order to have the doping in 1998 and 1999 discovered and exposed.
This is absurd and shows that there must have been other reasons for these samples to be reanalysed, a reanalysis that according to Prof. De Ceaurriz in his interview with the German online newspaper Süddeutsche Zeitung of 26 August 2005 (see below under section 15) had been requested by WADA to be included in the research project.
And if sanctions were not possible for lack of evidence, how then could one expose doping? Of course the findings of LNDD, even if only for research purposes, could make anyone conclude that there was use of EPO in 1998 (when Lance Armstrong did not participate in the Tour de France) and in 1999. But Pound certainly did not wait for these findings of the LNDD to draw these conclusions.
Pound’s letter also contains the accusation that he always levels at the UCI in order to divert attention away from WADA’s own role in the matter, namely that the UCI (specifically Mario Zorzoli, though Pound would publicly declare that it was me) was responsible for providing Damien Ressiot, the L’Equipe journalist, with the copy of Armstrong’s doping control forms bearing the sample code numbers – and that UCI bore sole responsibility for the fact that Lance Armstrong could be identified.
Not surprisingly, the CIRC trumpets Pound’s view about this on page 189: “However, it should be emphasised that without the voluntary disclosure of the sample collection forms from UCI to L’Equipe, no link could ever been made between Lance Armstrong and the analysis of the samples. Thus the CIRC is of the view that the speculation by UCI leadership that the incident was staged by third parties to attack UCI or UCI leadership is highly unlikely.”
Some comments on this statement:
It is also important to note that it is only via the letter from Pound dated 14 September that the LNDD research results, which had already been leaked to L’Equipe, were communicated to the UCI. On 3 April 2006, WADA declared to Vrijman that it had asked the LNDD for the specifics of the Tour de France samples in the interest of the UCI. Yet the information was not sent with the letter of 25 August in which Howman informed the UCI that he had received the information from LNDD.
In answer to its letter, dated 9 September, the UCI received a letter from LNDD on 15 September, saying that [translated from French]: “The laboratory has accepted to provide WADA all the information in its possession so as to enable this Authority to verify, a posteriori, and if it so wished, the connection of all results obtained. It has in addition submitted this acceptation to the undertaking by WADA to exclude any disciplinary proceedings considering the conditions in which the research was conducted and in particular the opening of the B-samples.”
On the same day, the LNDD published the following press release [translated from French]:
“Following the article published in L’Equipe on Tuesday 23 August under the heading “THE ARMSTRONG LIE” the LNDD specifies that it did conduct the research involving an retrospective EPO analysis of the 1998 and 1999 Tour de France samples in collaboration with WADA, that it did accept to provide WADA with all anonymized information in its possession under the condition that the use thereof in disciplinary proceedings be excluded. The laboratory does not have the means to link its results with an athlete and is not in a position to confirm the link that has been made between its research results and the nominative doping control forms published by L’Equipe.”
The UCI also received a confidential answer from the French Ministry of Sports, which was published as exhibit 34 to the Vrijman report.
On 16 September, I sent another letter to David Howman regarding issues that still needed to be clarified in order to assess whether there was a sound basis to proceed with disciplinary proceedings.
On 20 September, Professor Denis Oswald, President of ASOIF (Association of Summer Olympic International Federations) and Sergey Bubka, President of the IOC Athletes Commission wrote to Dick Pound “to protest in the strongest possible terms the irregularities committed in the so-called doping revelations against the cyclist Lance Armstrong”…”We were therefore shocked to note in this case that those admonishing Armstrong for a violation of the anti-doping rules have not themselves respected, in their procedures, the fundamental rules that govern them. So, if anyone wishes to give lessons on fair and clean practices, he himself must first be beyond reproach! In this case, it appears that numerous violations of the World Anti-Doping Code have been committed and that the most basic guarantees, for which every athlete has a right, have been held up to ridicule.”
(Pound responded on 23 September (exhibit 25 of the Vrijman report). His answer was extensively rebutted by Oswald and Bubka on 6 October (exhibit 26 of the Vrijman report). Pound made no further response.)
On 21 September, I wrote to David Howman that I looked “forward to receiving the information as requested in my previous correspondence”. I added: “As you are aware from my letters of 5, 8 and 16 September, the investigation we are conducting is both thorough and complete. Can you please now confirm that you will provide all the information requested.”
I thought that this was very clear but, on 22 September, Howman asked me to confirm that “the UCI investigation of the matter will deal with the truth or the falsity of the facts alleged in the story, as well as the means by which L’Equipe happened to come into possession of the facts.”
I answered, on 29 September, that the UCI would investigate all aspects of the case and that UCI thanked WADA for its full support. I added: “We were somewhat surprised that the reports (of the LNDD research) are not called ‘Study on the improvement of the EPO detection method’ or something of the kind. They are called ‘Recherche EPO Tour de France 1998/1999’. Each report contains nothing else but the analysis result of each sample and the survey that was published in L’Equipe. There is nothing on the purpose, principles, implementation, or conclusions of any scientific research.”
I also asked to confirm “that it was not WADA or someone within WADA who asked for one or more of these data (i.e. the data specific to each sample and enabling to trace back the sample to the athlete, including the sample code number) to be included in the reports”.
I never received an answer to that question.
It must have been an embarrassing question indeed, as out of the blue (and in a completely different tone from the calm and constructive correspondence between Howman and myself up to that point), I received a letter from Howman, clearly dictated by his boss, Pound, that WADA had decided to conduct its own investigation. Two reasons were given: “there have been requests from WADA stakeholders and others for an investigation” and, notwithstanding that UCI had repeatedly assured the opposite, “it appears to date that the only concern of UCI is how the information emerged that enabled L’Equipe to match (apparently) the name of one rider with the sample numbers of the samples analysed by the laboratory in France”.
6.
It is noteworthy (but not surprising in view of the way the CIRC shields WADA from any criticism) that the CIRC did not mention any of the information given above, starting with my answer to WADA of 30 August.
The only thing that is relevant for CIRC, apparently, is that “On 5 October, WADA informed UCI that it would be conducting its own investigation” (first line on page 183) and that as a reaction, the UCI announced its decision to conduct an independent investigation.
The CIRC also ignores the reaction of the UCI in its letter of 6 October to WADA, signed by Pat McQuaid who had been elected UCI President in the meantime : “I reject completely your assertion that the UCI is only concerned with how the information emerged in L’Equipe. The UCI is concerned as I told you in my letter of 29th September in investigating all aspects of this case… In relation to a possible WADA investigation, I must say that I cannot accept this. We feel that WADA has played a doubtful role in this whole affair to date and, as such, I would question any possibility of independence in such an investigation.”
It is correct that the UCI announced the appointment of Emile Vrijman on 6 October, but as the CIRC knows only too well this was not because WADA had informed UCI that it would start its own investigation, as the UCI had contacted Emile Vrijman the previous month, in September.
The fact that WADA had suggested an investigation and all of a sudden announced that it would conduct its own investigation did not prevent WADA, or Pound, from making public statements about elements that should form part of the investigation.
On 5 September, Pound is quoted by the German internet paper Netzeitung as follows [translated from German]: “I have no reason to believe that the the samples have not been analysed according to the rules” – and this while Pound knew very well indeed that it was only supposed to be research analysis, that the athletes had not given their consent to their samples being used for scientific research purposes and that the samples had not been made anonymous. Naturally, Pound could not refrain from lashing out at the UCI: “A sanction is according to what we know now of course legally very problematic, as the UCI rules of the year 1999 apply”. In saying this, Pound was suggesting that if no sanctions were possible, it was only because of the UCI’s rules and not because no sanctions could arise from the findings of scientific research.
Naturally, the CIRC has no issue with Pound making these incorrect and highly provocative statements. For the CIRC, it is only the UCI that has to shut up; if the UCI reacts then it has no “culture of dialogue and is not able to accept a different opinion” (page 109).
Apparently, the reaction by WADA’s vice-president and Danish Minister of Culture Brian Mikkelsen was also not suitable to be reported by the CIRC. On 6 September, Cyclingnews writes that “Many in the world of sport have been shocked by the hasty response of WADA boss Dick Pound to L’Equipe’s accusations that Lance Armstrong administered EPO in the 1999 Tour de France. The World Anti-Doping Agency’s own athlete-protecting protocols were breached by the French doping lab yet Pound went immediately on the offensive against Armstrong.” Cyclingnews reports that on the Danish government’s website, Mikkelsen was of the opinion that “rushing to accuse Lance Armstrong over disputed drug tests on five-year old urine was a bad move… Such a statement should only be made if there is a legal basis for it. That’s why I think Dick Pound’s statement was unwise.”
Similarly, the CIRC ignores another of Pound’s false and public accusations. On 16 September 2005, Cyclingnews reports that Pound had declared at a press conference: “It’s quite clear. Mr Verbruggen told us that he showed all six of Armstrong’s doping control forms to the journalist of L’Equipe and that he gave them a copy of at least one of the forms”.
In reaction, I wrote to Pound on 16 September: “It is only after reading the statements you made, that I fully understand the extremely negative consequences for myself and the UCI.
I was not fully aware of that when I called you yesterday.
I want to inform you that I feel obliged to come out with an official reaction; this is no longer acceptable.”
Needless to say that the public statements made by Pound blew away what had been up to then a relatively good cooperation established with David Howman. As always, Pound makes his false accusations in public, rather than contacting me directly in order to find out what really had happened. As indicated above, I didn’t know then that Mario Zorzoli had given a copy of 15 forms to Ressiot, a fact that Zorzoli only admitted in February 2006, after my meeting with Pound in Torino on 14 February. Of course, had I known that from the beginning, things might have run more smoothly.
Yet the CIRC seems to find these public accusations by Pound completely acceptable, as it does not mention this critical factor in its report. But when the UCI responds, it apparently demonstrates “the absence of a culture of dialogue as well as an inability to accept a different opinion” (page 109).
And of course Pound’s public statements and threats to start an investigation of his own were part of his campaign to keep the public scandal alive while Vrijman and Scholten were working on their report.
7.
As indicated, the CIRC’s report (on page 183) gives the impression that UCI decided to conduct an independent investigation and to appoint Emile Vrijman following WADA’s announcement of 5 October 2005 that it would be conducting its own investigation.
Yet the CIRC had all of the information available that showed the UCI had already contacted Emile Vrijman in September 2005. As indicated above, it was me who proposed to WADA on 10 September that the investigation be conducted by an independent person rather than by the UCI. Following this, I had contacted Emile Vrijman.
Why Emile Vrijman? I didn’t know him personally, but was aware of his reputation as an anti-doping expert, as the former director of the Netherlands Centre for Doping Affaires and also as a speaker at anti-doping conferences, some of which I had attended.
An agreement was reached with Emile Vrijman on 28 September and the UCI sent him a number of documents on the case on 29 September.
The appointment of Vrijman was publicly announced by the UCI on 6 October 2005.
Vrijman’s mission was to conduct a comprehensive investigation. No limits were imposed.
On 6 October, Vrijman wrote to WADA, the French Ministry of Sports and LNDD as follows (exhibit 29 of the Vrijman report):
As you may know already, my law firm has been requested by the Union Cycliste Internationale (UCI) to undertake an independent investigation regarding all relevant facts and circumstances concerning the testing conducted by the French Doping Control Laboratory (LNDD) of urine samples from the 1998 and 1999 Tours de France. This investigation is intended to be comprehensive and to cover all aspects of the matter at hand. In order to be able to commence with the investigation, the UCI has handed over to us her entire file for review and study.
Following this letter, WADA asked Vrijman on 13 October to be provided with “an official mandate indicating both jurisdiction and terms of reference in relation to any such ‘inquiry’ that you may have been asked to conduct.”
The UCI issued a “letter of authority” on 9 November. It included the following paragraphs:
“In order to clarify all of the facts and circumstances surrounding the analyses conducted by the LNDD of urine samples of the 1998 and 1999 Tour de France in general and the subsequent alleged adverse analytical findings in particular, the UCI has decided to request Mr Emile Vrijman, attorney-at-law at Rotterdam, to undertake an independent and comprehensive inquiry regarding this matter, and, in particular to:
…
…
Mr Vrijman is fully authorized by the UCI to make any inquiry he deems necessary and appropriate to fulfill his mission.
The mission of Mr Vrijman does not include an examination of the LNDD’s accredited status or the reliability of the EPO test as such.
On 24 November the UCI sent Vrijman’s letter of authority to WADA and LNDD with a letter containing the following:
“(The UCI) decided that a comprehensive, as well as an independent inquiry was needed, in order to clarify all of the facts and circumstances surrounding the analyses conducted by the LNDD of urine samples obtained during the 1998 and 1999 Tour de France in general and the subsequent alleged advers analytical findings in particular. …
In order to inform you in more detail about the investigation Mr Vrijman has been requested to conduct, as well as the mandate he received from the UCI, please find enclosed – for your information – a copy of the so-called “Letter of authority”, issued by the UCI on November 9, 2005. As you can tell them from the description in the aforementioned letter of the nature, as well as the extent of the investigation and the mandate provided, it is clear that the investigations will be both comprehensive and independent.
…
The UCI mandates that all persons associated with the UCI and its doping control program – including LNDD, the World Anti-Doping Agency (WADA), the various WADA accredited doping control laboratories and all officers, directors and staff of those laboratories, national cycling federations, as well as all coaches, administrators, officials, cyclists and other individuals associated with international cycling and/or international cycling events, shall coorperate fully and completely with Mr Vrijman and his investigation.
8.
On page 183 of its report, the CIRC refers to the fax message of 9 November 2005 with which the UCI had sent the letter of authority to Emile Vrijman and in particular to the following paragraph thereof:
“We would like to underline that the field of this investigation must clearly be restricted to the formal irregularities which have led to the revelations of this newspaper”.
It is understandable that the CIRC makes reference to this paragraph. What is less understandable is that the CIRC ignores a great many additional elements that should not have been omitted.
After reading this in the CIRC report, I was surprised to find it in that fax of 9 November, as it makes no sense, provided one can understand what it was intended to mean: how can formal irregularities lead to revelations in a newspaper?
As the CIRC notes, this paragraph “appears to contradict” [emphasis added by me] the letter of authority and the commitments given to WADA and announced publicly in UCI’s press releases that there would be a full and comprehensive investigation.
I can only note that there is indeed a contradiction.
But one can also note that the Vrijman report deals with all of the the aspects announced in UCI’s communications and in the letter of authority.
There has been no comment from Vrijman concerning that paragraph and Vrijman proceeded to conduct his investigation without taking notice of it.
This results clearly from the Vrijman report itself, in particular pages 51-120, where it examines whether there was proof of doping or not.
The CIRC adds that “it (the paragraph) was equally in contradiction with Emile Vrijman’s proposition to the UCI that, among other matters, the reliability of the EPO test used by the LNDD should be examined.”
This is confusing, to say the least.
Emile Vrijman had certainly proposed to examine the valitidy of the EPO test. In a letter to the UCI of 10 October, he proposed to examine, inter alia:
“1. All documentation pertaining to the analyses by the LNDD of both the A – and B- samples of the 1998 and 1999 …
In the letter of authority, the UCI indicated that “The mission of Mr Vrijman does not include an examination of the LNDD’s accreditation status or the reliability of the EPO test as such”. [My emphasis added].
In doing so, the UCI recognized the LNDD’s accreditation status and the reliability of the EPO test (this is the EPO test for anti-doping developped by LNDD that the UCI had validated in 2001 and that WADA had validated in 2003). The UCI saw no reason to question LNDD’s accreditation status, nor a need to question the validity of the EPO anti-doping test: the UCI accepted and recognized both of them, so there was no need to examine them.
This is the reason why these two particular issues were not included in the remit of Vrijman’s investigation, which was already time consuming and costly enough.
It is obvious that, in contrast with what CIRC is hinting at, the paragraph from the 9 November mail is not removing the remit to examine the validity of the EPO test as no such remit had been agreed before.
On the other hand, it is correct that this paragraph contradicts all the other relevant documents and facts, in the first place the Vrijman report itself.
The paragraph is ill considered, meaningless and has had no bearing at all. This could easily been gathered from the many documents available.
More important, however, is this paragraph: on page 183 of its report, the CIRC writes about this paragraph that “it could potentially be read from the message that UCI’s primary concern was not to examine the veracity iof the allegations…” and “Pat McQuaid’s direction to Emile Vrijman appears to contradict the undertaking that he gave to WADA … to the effect that ‘the UCI is concerned with…investigating all aspects of this case’.
The wording used (that I put in bold) indicates an uncertainty. The CIRC sees contradictions. One would expect then that the CIRC would have asked me, or Pat McQuaid who had sent the letter, what that odd paragraph meant.
But this did not happen. Here is an investigation commission that did not seek to clarify with the people concerned a contradiction that it has identified. (Although as indicated above, it was obvious from the Vrijman report that Vrijman did examine whether the samples showed evidence of doping).
And where, on page 183, the CIRC is uncertain and sees contradictions, where the CIRC does not seek to ask the people concerned for an explanation, on page 188 the CIRC goes on to formulate an accusation:
“The UCI purposely limited the scope of the independent investigator’s mandate to procedural issues contrary to what they told stakeholders and the public, and in contradiction to Vrijman’s own suggestion”.
It is surely unprecedented in any legal system that someone is condemned for an ‘intentional’ act based on uncertainty and contradictory arguments – and condemned by the very people who had already deemed the arguments to be uncertain and contradictory.
The CIRC then repeats this accusation (that it knows it is not true) on page 8, in its executive summary. This is particularly despicable, because many people only read the executive summary.
And the CIRC goes on: “However, UCI specifically excluded from Emile Vrijman’s mandate an examination of the EPO test, meaning that the allegation that Lance Armstrong used EPO during the 1999 Tour could not be directly considered”.
This is a really unbelievable statement that never would have come out of a serious and objective investigation.
The only thing that the UCI has excluded from Vrijman’s mandate is an examination of the “reliability of the EPO test as such”, this is the EPO test that laboratories use when doing the anti-doping analysis according to the WADA technical documents. The Vrijman report runs to 130 pages. Pages 46 to 120, in other words almost 60% of the report, is the examination of the issue whether the findings of LNDD resulting from the analysis of Armstrong’s samples as part of the EPO research project of LNDD constitute evidence of doping. In other words: are the findings of LNDD reliable evidence of the presence of EPO in Armstrong’s samples? This is exactly what had to be examined, and not the reliability of the EPO test.
Should I conclude that the CIRC has not even read the Vrijman report? After all that would be – if possible – less lamentable than the CIRC making conclusions that contradict the Vrijman report’s contents.
If the CIRC has not read the Vrijman report, it must surely have read (I hope) a document that the CIRC refers to on page 184, which is “preliminary findings and a draft table of contents for both reports”, drafted by Vrijman in January 2006.
The preliminary findings contain a report on the visit by Emile Vrijman and Adriaan Van der Veen, a specialist in laboratory accreditation and techniques, to LNDD on 9 December 2005. There, they met Professor De Ceaurriz and Dr Françoise Lasne. This report has a section on the reasons for conducting scientific research in general and the use of urine samples of the 1999 Tour de France in particular, as well as about the LNDD findings. Vrijman reports here that, in the opinion of both Prof. De Ceaurriz and Dr Françoise Lasne, the findings of the LNDD do not qualify as an adverse analytical finding for seven reasons that are given, including: the absence of a complete or intact chain of custody; the absence of controls for false positives and false negatives; the absence of a confirmation procedure; the absence of a B-sample; and the absence of adherence to the newest criteria for identifiying EPO.
The draft table of contents of these preliminary findings shows inter alea the following sections:
Survey analysis procedure for EPO
Qualification Analysis results LNDD urine samples 1999 Tour de France
From these documents, that the CIRC itself makes reference to, it should be crystal clear that:
As mentioned above, in the interview on 1 June 2006 with Outside, in answer to the question “You’ve demanded a full investigation. What would that entail?” Pound said that a full investigation would involve: “Determining whether the urine samples were positive and whether any of the positives were Armstrong’s”.
This Vrijman has done and it is impossible to deny that. But for the rest there is of course a disagreement as to the scope of a “full investigation”. For Pound, it is one where the role and activities of WADA are left out of consideration, a view that is deplorably shared by the CIRC.
The accusation by the CIRC is therefore completely unfounded, as should be completely obvious and evident to anyone who has bothered to look at the file.
Once again, the fact that the CIRC does not refer to documents, let alone attach the relevant documents to the report, prevents the reader of the CIRC’s report from seeing this calumny, one that is repeated prominently and without any nuance (the “apparent contradiction” is not mentioned any longer) in the executive summary of its report.
9.
The UCI was not pleased with the delay of Vrijman in delivering the report and has insisted many times with Vrijman to hurry up.
Part of the delay can be attributed to the fact that on 1st January 2006 Vrijman changed law firm and went to work with and for Paul Scholten. There was a fight between Vrijman’s former and new law firms on who was to continue the investigation and the report. Although there exists an extensive correspondence on this, you will not find this in the CIRC report.
In the meantime Mr Pound made public statements suggesting that nothing happened: “The UCI says it is conducting an investigation, although we can’t seem to get information about it and we’re doing our own” (Reuters, 22 December 2005).
This put pressure on the UCI to have the investigation going forward.
This is also at the basis of my suggestion that Vrijman would finalize in a first time a “preliminary report” as it is called on page 184 of the CIRC report. In fact my intention was that Vrijman would make first a report on the LNDD findings and the question whether a case could be opened against Lance Armstrong. So exactly a report on the issue that the CIRC accuses (page 188) the UCI of having purposely excluded from the investigation.
On 2 February 2006 I wrote an e-mail to Vrijman containing inter alea the following:
We have agreed upon that we will go in 2 steps:
By tomorrow, Friday February 3rd, we will get your definite report on the issue of the so-called “AAF” together with your opinion if this can lead to disciplinary actions against the riders involved;
The second part of the report, mainly about the procedures, the roles of LNDD, the Ministry and WADA and the journalist, should be in our hands as soon as possible, but not later than Friday February 10th. It will be useful for me to have this some days before as I will meet Mr Pound on February 14th. The UCI is not willing to allow any other delays for something that we are not likely to get [referring to additional information that Vrijman had requested from LNDD and the Ministry of Sports].
(By the way, this email also clearly disproves the CIRC’s accusation, on page 188, that the UCI purposely limited the scope of Vrijman’s mandate to procedural issues. Where the CIRC on page 183 expresses uncertainty and contradictions, this mail, as indeed do many other documents in the file, takes away all of the uncertainty and contradictions. The CIRC does not mention this mail and it ignores its contents. Of course, had it been mentioned in the CIRC’s report, it would have been impossible for the CIRC to make its accusation).
This proposal to proceed with two reports had the advantage of receiving first report from Vrijman in a relatively short period of time, so demonstrating that the investigation was underway and that the investigation was dealing with the issue of the evidence of doping in the first place. It would also stop, I hoped, the public sneering from Dick Pound that nothing was happening.
However, Emile Vrijman refused to do this.
Later, on 2 March 2006, the UCI asked Vrijman to proceed as follows:
“In view of the time that has elapsed since your investigation has started, we ask you to wind up your proceedings. We suggest that you send now a preliminary report, together with the exhibits, to the parties concerned (UCI, WADA, LNDD, Ministry of Sports, Lance Armstrong…) and invite them to send you their comments within a reasonable period of time. Then you shall finish off your report.
We would appreciate if you could send your final report by 31st of March 2006”
Vrijman did not do this either.
(Note: on 28 April, Paul Scholten announced that the report would be sent “to the Ministry, LNDD and WADA to react on its contents, after receipt of which we will either adjust the contents or draft an appendix containing the various reactions”. But this didn’t happen either).
10.
As mentioned by the CIRC on page 184, on 3 February Vrijman sent a confidential preliminary report “in the matter of the analysis of the urine samples from the 1999 Tour de France”.
And the CIRC also says:
The preliminary report comprised 16 pages and only dealt with matters associated with the LNDD’s research. Emile Vrijman concluded that “even under the presumption that the measurement results are regarded as reliable and trustworthy, they can absolutely not be regarded as proof in the context of doping control. Therefore, the positives do not qualify as adverse analytical findings”. This first version of the report contains no references to WADA’s role in relation to the research or to communication that may have taken place between WADA and the LNDD.
I have to make some comments here.
11.
This brings me to the comments, suggestions and input that were sent to Scholten and Vrijman by Mark Levinstein on behalf of Lance Armstrong – who, after all was the ‘defendant’ in the whole story – and by Philippe Verbiest on behalf of UCI.
It was Emile Vrijman who sent drafts of his reports and asked for comments.
It was also Vrijman – as well as Paul Scholten who I understood to be in charge of the final editing – who decided to what extent, if at all, he would take such suggestions, comments and input into account.
The CIRC underlines the fact that suggestions and comments were made and that input was given, but it fails to examine to what extent Vrijman and Scholten incorporated these in their final report.
Such an examination would show also that most (therefore obviously not all) of the comments were linguistic and technical explanations and corrections and that Vrijman and Scholten decided themselves which of these to incorporate into their report. Many of the suggestions, comments and input were simply ignored, while others were accepted with or without amendments in order to express the opinion of Vrijman and Scholten.
This was also the case with the draft executive summary that I had prepared (see CIRC report, page 186). I prepared this because Scholten and Vrijman were desperately late and also because I feared that many people, if not most, would not read the full report, but only a summary.
Scholten and Vrijman did not use that draft summary.
As the CIRC also notes on page 186, I expressed my disappointment “that the only party you really dare to tackle with hard hitting is the UCI. You are running with such an incredible bow around WADA that I am asking myself if they are the client...” … “ since there is no one definite conclusion in the whole report about the very doubtful role that WADA has played” … “there is full evidence that Dick Pound has been targeting [Lance Armstrong] and they just dodge any conclusion in that direction”.
For me it was clear that Vrijman and Scholten, like so many others, were afraid of WADA. The UCI then provided Vrijman with suggestions as to the issues that still needed to be examined. Vrijman and Scholten used these suggestions, with additions, omissions and modifications of their own, in paragraphs 5.1 to 5.22 of their report, under the heading “Unanswered questions”. It is indeed an identification of facts and questions that should be the subject of further investigation, without any definitive conclusions being drawn.
As Scholten and Vrijman have repeatedly confirmed, the “Vrijman report” is theirs and theirs alone. They decided independently what was included in the report and what not. They put their signature under their own findings and conclusions, not those of anyone else.
And, up to this moment, no one has identified any mistakes in the report.
12.
The CIRC’s views and conclusions on page 188 are therefore not correct.
13.
At the end of its conclusions, the first paragraph of page 189, the CIRC indicates the frame in which its conclusions had to fit: “the UCI leadership’s approach of prioritising the fight against WADA and the protection of its star athlete”.
The UCI did not protect Armstrong: the conclusion that UCI could not open disciplinary proceedings against Armstrong was based upon LNDD’s findings and the conclusion of LNDD itself and of the independent investigator, even before a first draft report was sent to the UCI.
No one, including WADA and the CIRC, has contested this conclusions.
And the conclusion was valid for all riders concerned, not only for Armstrong.
WADA had announced that it would conduct its own investigations, in particular if the Vrijman investigation did not satisfy WADA. But WADA did not conduct further investigations. On the contrary, WADA dodged out of any further investigation, as I will explain below.
And what did USADA do after the Vrijman report was released? As far as I know, USADA did nothing. A “Reasoned Silence”, I presume.
That WADA and USADA did nothing, is significant in view of the “suggestion” by the CIRC that “investigations could have been launched” into the suspicion that Armstrong doped (page 188, first paragraph). WADA and USADA didn’t investigate anything, yet the CIRC does not accuse them of having protected Armstrong. The CIRC’s accusations are exclusively directed at the UCI and at me.
In the same place, the CIRC also suggests that other samples could have been retested. This possibility was excluded by Vrijman and Scholten for the reasons that are explained in their report. The CIRC does not state that these reasons are not valid. Neither WADA nor USADA have taken any initiative, or made any request to have other samples analysed, which clearly confirms that they saw no possibility of doing that (or perhaps it confirms that WADA thought that enough damage had been done and that it was better to let doubt hang in the air, rather than risk that further analyses would fail to establish that Armstrong doped). Already in 2004, WADA took no initiative to have the samples retested for anti-doping purposes but asked instead to include them in a research program in the knowledge that such research could not lead to findings that could be used for anti-doping purposes.
In the same place, the CIRC also suggests that Armstrong had to be targeted for further testing. The fact that Armstrong had ended his cycling career even before the article in L’Equipe had been published in August 2005, is apparently just a minor detail that the CIRC felt could be easily ignored. And the CIRC of course does not suggest that WADA and USADA could also have tested Armstrong: the fact that Armstrong had ended his career is apparently only a valid excuse for WADA and USADA not targeting him, but not for the UCI. Or otherwise, the CIRC was concerned that WADA and USADA should not be seen not to have targeted Armstrong.
If the Vrijman report is critical about WADA, this criticism is not an example of UCI prioritising the fight against WADA, as the CIRC alleges, but because it is based upon the exact facts and circumstances that are explained in detail in the Vrijman report. Above all, with regard to the role of WADA, the Vrijman report concludes that it cannot answer all relevant questions regarding WADA and that further investigation is needed (see paragraphs 5.1 to 5.22).
The Vrijman report in my view wrongly accepts that it was LNDD and not WADA that decided to include the 1998 and 1999 Tour de France samples in the research project.
What the CIRC describes as a fight against WADA is only a reasonable request by UCI to have the role of WADA examined and to hold WADA accountable. By calling this a “fight”, the CIRC deems the UCI to be the aggressor and shields WADA from being held accountable.
For example, the CIRC admits that the leak in L’Equipe was an unacceptable breach of Armstrong’s right to privacy (page 189). But it offers no word at all (Dick Marty excepted) on the far more important breaches that had been committed by WADA: the fact that WADA accepted that doping samples be analysed for research purposes without the consent of the athletes concerned and the fact that the original code sample numbers were included in the research results.
The CIRC makes no mention of the fact that it was WADA that requested the LNDD to include the original sample code numbers in its report on the scientific research as Prof. De Ceaurriz and Dr. Lasne confirmed to Vrijman. The report also contains the information by Prof. De Ceaurriz that it was the French Ministry of Youth and Sports that, after months of discussions with WADA, directed the lab to include the sample codes in the lab’s report on the scientific analysis results (par. 4.18 of the Vrijman report).
No word either in the CIRC’s report concerning WADA’s aborted attempts to have a follow-up investigation after the Vrijman report.
As a conclusion I refer again to the statement by Dick Marty on page 191 that “such indiscretions”, ie the leak to L’Equipe, “certainly do not contribute to the credibility and standing of the anti-doping structures. This is certainly not to defend riders who have doped, but an effective fight against doping cannot be conducted by endorsing targeted leaks in the press, in this way indirectly legitimising the existence of the underlying infringements, rather than strongly condemning such leaks from the outset.”
Of course I can only agree with this, but I am afraid that I must respectfully submit to Dick Marty that there were also many other occasions when the CIRC could and should have adopted a more balanced and more critical view vis-à-vis WADA.
14.
On 20 June 2006 Armstrong’s lawyer, Mark Levinstein, sent a letter to the members of the executive committee and the board of WADA. In this 19-page letter, accompanied by a great number of exhibits, Levinstein submits in detail how WADA and LNDD violated WADA rules, how the WADA management was preventing the truth from becoming known, in particular to board members, and denouncing the impunity of the WADA management and the lack of recourse for athletes and others whose rights are violated. The letter asks for a response, but apparently none came.
On 9 June 2006, Lance Armstrong wrote a letter to IOC President Jacques Rogge, complaining about how WADA and LNDD had violated his rights.
At the end of his letter, Armstrong asks for decisive action and suggests that Dick Pound should be suspended or expelled from the Olympic Movement.
On 12 June, President Rogge replied to Armstrong that he would discuss the content of Armstrong’s letter at the IOC Executive Board.
On 20 June, Mark Levinstein wrote to President Rogge saying that the IOC was responsible for WADA’s conduct and asking for a reform of WADA and the disciplining of Dick Pound. He asks for immediate and decisive action.
In its answer, dated 23 June and signed by Urs Lacotte (director general) and Howard Stupp (director of legal affairs), the IOC underlined that WADA is an independent organization and the the ultimate responsibility for WADA’s activities lies with WADA itself, and not with the IOC.
That same day, Rogge sent an answer to Lance Armstrong informing him that the IOC Executive Board had decided to propose a mediation, or other form of alternative dispute resolution, under the authority of the Court of Arbitration for Sport. A copy of this letter was sent to UCI, WADA and LNDD.
By letter, on 21 July 2006, the IOC informed the four parties (Armstrong, UCI, WADA and LNDD) that all of them had accepted the proposal.
On 2 August, WADA asked the IOC to confirm that not only LNDD but also the French Ministry participate in the proceedings “who both have knowledge of what truly happened”.
On 3 August, CAS counselor Ousmane Kane replied that the LNDD stated in its letter of 4 July to the IOC that due to its legal status it cannot join a mediation procedure and adds: “In my opinion, neither could the French Ministry”.
On 14 August, WADA wrote that it did not think that any reasonable outcome could be achieved without the participation of all parties, including LNDD and the French Ministry. Without the participation of these two, “we feel that we cannot agree to the proposed mediation”.
On 28 August, the IOC responded that it regretted that its proposal of mediation had not been accepted by all parties and was of the opinion that the questions raised by the UCI concerning WADA, its President and the French laboratory, should be directed to WADA’s competent organs.
On 31 August, LNDD wrote to CAS that if all parties would agree, LNDD would provide them with all information and documents it held on the matter and also that, if the parties would ask for an analysis of the samples still available at the lab and an identification with an ADN test, the lab would provide the samples to the lab designated by the parties.
Further to this letter, CAS suggested, on 5 September, that WADA reconsider its refusal.
On 12 September, WADA replied that it would participate in the mediation provided that LNDD and the French Ministry participate as well and not simply provide documentation.
At this point, Armstrong also decided to discontinue the procedure. This was reported in a CAS letter of 24 October in which CAS also said: “On the other hand, we have never truly succeeded in commencing the mediation due to the demands made by WADA in relation with the participation of the French Laboratory and the French Ministry and that we could not meet. Consequently I have the regret to inform you that the mediation proposed by the IOC President has failed. CAS has therefore terminated the case, which will be deleted from its register.”
On 3 July 2006, Levinstein, on behalf of Armstrong, had filed a complaint against Dick Pound with the IOC Ethics Commission.
The Commission had suspended its investigation up to that point due to the attempts to set up CAS mediation, then had considered Armstrong’s complaint withdrawn, but then Armstrong re-filed his complaint on October 24.
In a letter dated 10 January 2007, the United States Olympic Committee (USOC), asked the IOC Ethics Commission to check the apparent failure to protect Armstrong’s rights.
The IOC Ethics Commission rendered its decision on 2 February 2007. It concluded that, from all the press articles published after the Vrijman report, it appeared that Pound had made statements to the media which were likely to enable journalists to draw negative conclusions concerning the integrity of Armstrong and that Pound had made personal statements which could have been regarded as likely to impugn the probity of an athlete, given the high profile of the sports personalities in question. The Commission recommended that the IOC Executive Committee remind Pound of his obligation to exercise greater prudence consistent with the Olympic spirit when making public pronouncements that may affect the reputation of others.
It is noteworthy that the CIRC does not mention the IOC Ethics Commission’s decision against Dick Pound, although it is directly linked to the Vrijman report and the case examined therein.
It seems the CIRC did not dare to make reference to this stinging reproof of Dick Pound.
This omission is particularly telling in view of the fact that the CIRC condemns firmly “public naming and shaming” at different spots in its report: pages 14, 144, 169 and 214. Apparently the CIRC is of the opinion that Pound has the right to carry out “public naming and shaming”, but no-one else has. (Of course, Pound will say now that he was right to be suspicious of Armstrong. The fact remains, however, that there was no evidence back in 2006 when Pound made his public statements, that were justifiably condemned by the IOC Ethics Commission.)
All the above actions, which aimed to put WADA’s activities under proper scrutiny, have failed.
WADA, it appears, is above all scrutiny. The CIRC report has, once again, confirmed this.
15.
When preparing this text I came across a reference to an interview with Prof. De Ceaurriz in the German on line newspaper Süddeutsche Zeitung of 26 August 2005, so straight after the article in L’Equipe had appeared. Translating from German:
De Ceaurriz: Now we have – in collaboration with WADA – reanalyzed the samples from 1998 and 1999.
SZ: Why?
De Ceaurriz: While WADA wanted to know whether the athletes have changed their doping methods during the past years.
…
SZ: Many ask themselves: why do these results become known only now?
De Ceaurriz: WADA came with its request to us in 2004 only.
From this interview it is clear that it was WADA that had asked LNDD to reanalyse the Tour de France samples. It is a pity that I didn’t come across this earlier. Nor indeed did Vrijman or the CIRC pick this up.
The statements by Prof. De Ceaurriz in this interview, if quoted correctly are different from the statements he made to Vrijman three months later, i.e. that it was the LNDD that decided to include the Tour de France samples into the research project (Vrijman report, par. 4.3 – 4.4). Also WADA stated that it had only heard that the research project was going on and that it was informed later on of the samples that were analyzed (Vrijman report, par. 4.6- 4.11 with reference to the written answers sent by WADA to Vrijman).
In its “official statement from WADA on the Vrijman report”, WADA wrote that “In 2004 the French laboratory decided, on its own initiative, to start a project on stored samples from the 1999 Tour de France in order to evaluate a number of scientific facts, including the use of EPO prior to the test being in place and the stability of EPO in urine samples”.
One could ask what LNDD’s interest would be in investigating the use of EPO in 1999, as if perhaps only that LNDD did not know that EPO had been used in 1999.
It has always been my view, confirmed by oral information from other sources that it was indeed WADA that asked, or even ordered, LNDD to reanalyze the Tour de France samples.
One can only note that all efforts to have WADA, LNDD and the Ministry of Sports produce all of the correspondence and other evidence about this issue have been in vain, due to the refusal of all parties concerned to be cooperative and transparent.
One should also note that, while the purpose of LNDD’s research project was the refinement of the EPO detection method, the (official) purpose of WADA was to learn more about doping patterns back in 1998 and 1999. And this purpose had nothing to do with the purpose of the research project of refining the EPO detection method.
The issue whether it was WADA that asked LNDD to reanalyze the Tour de France samples was also one of the questions I asked the CIRC to examine. The CIRC did not do that. The CIRC apparently did not have the courage to request documents from WADA, or LNDD.
It seems that with the CIRC the last chance to shed any light on this issue, which does not just concern the UCI and Armstrong, but above all the respect of the rights of athletes, has gone. This is a serious failing of the CIRC, which failed dismally in its responsibility to establish the truth of this series of events.
As in section 2 above, since the rest of this article was written and published, I have decided to add the following paragraph below:
In September 2015, I was provided with an article published in L’Equipe of 16 November 2007. In this article Dick Pound is quoted as follows: “We have conducted further tests for the sake of science, for the detection of EPO. We have found [EPO] in six samples but we had only the numbers.” (I translate from French and I emphasize) This also confirms that it was WADA that requested LNDD to reanalyse the 1998 and 1999 Tour de France samples. In addition Lamour confirms this explicitly in the same article: “It was WADA that explicitly requested the laboratory of Châtenay-Malabry the results of the analysis of the 1999 Tour de France sample bottles together with the original codes of the same bottles” (translation from French). It strikes me, too, that Pound refers only to the six samples belonging to Armstrong, while LNDD found EPO in the samples of other riders as well.
I do not contest the fact that the UCI and Armstrong were allies in their efforts to try to find out the facts and details of WADA’s role in this affair. But that is not because UCI wanted to protect Armstrong, or to have a privileged relationship with him. It is firstly because WADA committed serious breaches and tried to hide them; and secondly because Armstrong was the rider who was targeted by WADA. Through Armstrong, the “star rider”, cycling and UCI were targeted in the ever continuing campaign of Pound against UCI and me. Had it been another rider, the UCI would have done exactly the same. If the CIRC is serious with its (false) allegation that “UCI prioritized the fight against WADA”, it should then also readily accept that UCI would have initiated that fight regardless of the identity of the rider whose research results had been leaked, even if it had been a rider other than Armstrong.
It is the attitude adopted by the CIRC, shielding WADA from any independent investigation, that leaves WADA stakeholders with no option but to “fight” WADA. After all, it appears that no justice is available. If there were to be a forum where complaints about WADA could be investigated and judged objectively, then the matter would be solved instead of being left lingering for years and poisoning relationships. By this, I am not saying that WADA is always wrong, but only that there should be a body that can judge with all necessary independence and authority, as well as the confidence of the world of sports, whether WADA or a complainant is wrong.
Shielding WADA from all criticism or challenges is what continues to feed conflicts, creates frustration and prevents normal relationships between WADA and its stakeholders.
Where Travis Tygart was quoted by L’Equipe as saying that “as from now on all means are good for proving someone’s guilt” he clearly meant “an athlete’s guilt”. There is no way in the world of anti-doping – whether for an athlete, an IF, a NADO, or a laboratory – to have a case investigated about whether WADA has violated any rights or rules. A CIRC-type commission is not the solution to examine, let alone resolve, this sort of issue.
In my imagination, I can hear a roar of laughter coming from the other side of the ocean and a deafening silence elsewhere.
Who is going to do something about this? This is also a key aspect in defending the rights of clean athletes.
The Olympic Charter (Article 43) stipulates that the World Anti-Doping Code is obligatory for the whole Olympic Movement. The members of the Olympic Movement are sanctioned under the Olympic Charter (Article 59) if they don’t comply with the Code, with the Olympic Charter or with the IOC Code of ethics.
WADA however is not a member of the Olympic Movement (a decision of the IOC Ethics Commission in case 03/2006 re Armstrong vs/ Pound and WADA) and therefore cannot be sanctioned under the Olympic Charter, either for a violation of the Code, or for a violation of the Olympic Charter, the IOC Code of Ethics or the fundament ethical principles.
Under the Code, although WADA is a signatory to the Code (Art. 23.1.1), it is WADA that monitors compliance with the Code (Art. 23.5). So under the Code, WADA is its own judge and jury.
All are accountable for complying with the rules and with ethics, except for WADA. This has given (and still gives) certain people the feeling of imunity – and it has led to abuses and lapses.
All athletes, all Code signatories and all members of the Olympic Movement should be protected against that.
In my view, it is only the IOC that, in the last resort, could take some sort of initiative here.
16.
For ten years now, Pound and WADA, by continuously criticising the formal aspects but not the contents of the Vrijman report, have succeeded in diverting attention away from their exact role and activities in the reanalysis of the 1998 and 1999 Tour de France samples, the violation of athletes’ rights, the leak to the media and, as pointed out by Marty, the legitimation of the underlying infringements.
The CIRC has chosen to follow the same path, however with a significant step aside by Marty.
It goes without saying that here too that the CIRC missed a unique opportunity to do justice to the truth and also to WADA, in the sense that WADA as the depositary of the anti-doping system and the corresponding rights of athletes and other stakeholders should be protected against any wrongdoings carried out by its administrators. This transcends largely the mere fact that the CIRC, once again, totally ignored my report as well as my questions regarding the “Vrijman report”.