Advertisement

Sign up for our newsletter

Advertisement

Into the detail: Looking deeper into the Froome salbutamol case

Lukas Knöfler
8 Jan 2018

A super in-depth analysis of why Chris Froome hasn't been suspended, the case he now has to make, and why he's in a Schrödinger paradox

Lukas Knöfler is a freelance cycling journalist with special interest in the rules and regulations of WADA and the UCI

Last week, news broke that Chris Froome had returned an Adverse Analytical Finding of salbutamol in a sample taken during the Vuelta a Espana on 7th September. Since then, many have commented on the issue, and often facts have been misstated or misinterpreted. 

In this article, I will try to lay out the facts. I will not go into detail on moral questions, nor will I examine medical & pharmacological questions around salbutamol as a performance-enhancing drug.

I'm not a legal or medical expert, and want this to be taken only as an interested individual's understanding of current rules and statements, at a time when people may be getting confused about the rules in these cases.

Why wasn’t Froome suspended?

First, I want to dissect the UCI's statement: http://www.uci.ch/pressreleases/uci-statement-christopher-froome/

A sample of Froome's urine was taken on 7th September after the Stage 18 of the Vuelta to Santo Toribio de Liébana. The A sample returned an Adverse Analytical Finding of salbutamol, and Froome was notified of this on 20th September, coincidentally the day of the ITT World Championships where he finished third in his final race of the 2017 season (apart from the Tour Saitama Criterium in October).

Froome apparently asked for analysis of the B sample; this confirmed the A sample's results.

Many asked why Froome wasn't immediately handed a provisional suspension at this point. Both samples were positive, right?

Does the UCI display 'double standards', protect one of the sport's star riders, or even attempt to sweep this case under the rug? Not necessarily. 

The UCI's statement states: 

“As a matter of principle, and whilst not required by the World Anti-Doping Code, the UCI systematically reports potential anti-doping rule violations via its website when a mandatory provisional suspension applies. Pursuant to Article 7.9.1. of the UCI Anti-Doping Rules, the presence of a Specified Substance such as salbutamol in a sample does not result in the imposition of such mandatory provisional suspension against the rider.” 

The quote explains how salbutamol is categorised as a Specified Substance, and that the UCI isn't obliged to a mandatory provisional suspension in cases like this.

We'll return to this later, but first I want to explain the technical term 'Specified Substance'.

Salbutamol is a very common asthma treatment, typically inhaled with a blue reliever inhaler

Salbutamol is a ‘Specified Substance’

Firstly, I point to the WADA Prohibited List.

Salbutamol is a beta-2 agonist (class S3), and S3 substances are here defined as Specified Substances in accordance with article 4.2.2 of the WADA Code. The FAQ on the WADA website further explains the matter:

“It should be clear that all substances on the Prohibited List are prohibited. The sub-classification of substances as 'Specified' or 'Non-Specified' are important only in the sanctioning process. A 'Specified Substance' is a substance which potentially allows, under defined conditions, for a greater reduction of a sanction when an athlete tests positive for that particular substance. The purpose of the sub-classifications of 'Specified' or 'Non-Specified' on the Prohibited List is to recognize that it is possible for a substance to enter an athlete’s body inadvertently, and therefore allow a tribunal more flexibility when making a sanctioning decision. 'Specified' substances are not necessarily less effective doping agents than 'Non-Specified' substances, nor do they relieve athletes of the strict liability rule that makes them responsible for all substances that enter their body.”

All substances on the WADA Prohibited List. There are no 'second-rate' doping substances, the difference lies only in how cases involving varying substances are heard.

I will admit that previous to my extensive and thorough read of the relevant rules, I myself was confused about what Specified Substances and Prohibited Substances were, believing them to be two separate categories when in fact Specified Substances are a sub-category of all Prohibited Substances, and therefore all Specified Substances are Prohibited Substances.

This footnote comment to article 4.2.2 of the WADA Code is crucial:

“The Specified Substances identified in Article 4.2.2 should not in any way be considered less important or less dangerous than other doping substances. Rather, they are simply substances which are more likely to have been consumed by an Athlete for a purpose other than the enhancement of sport performance.”

One such purpose is genuinely needed medical treatment, and salbutamol is used as such by many asthma patients.

Acknowledging the use of salbutamol by asthma patients and the fact that some pro athletes do exhibit symptoms of asthma, the WADA Prohibited List allows for a specific upper limit on inhaled salbutamol which is automatically presumed to be therapeutic and not considered an Anti-Doping Rules Violation: Up to 1600 micrograms per 24 hours, but not exceeding 800 micrograms per 12 hours. 

However, this upper limit is on 'input' of salbutamol. Since a urine sample can only measure the 'output' of a substance, WADA also stipulates that presence of more than 1000 nanograms per millilitre of urine “is presumed not to be an intended therapeutic use of the substance and will be considered as an Adverse Analytical Finding (AAF) unless the Athlete proves, through a controlled pharmacokinetic study, that the abnormal result was the consequence of the use of the therapeutic dose (by inhalation) up to the maximum dose indicated above.” 

If a urine sample contains a higher concentration of salbutamol, the burden of proof shifts to the athlete who now has to prove his innocence – he is presumed to be and will, lacking such proof of innocence, be found guilty.

These very specific provisions are unique to asthma medications like salbutamol (similar provisions exist for formoterol and salmeterol).

It should now be clear that where a salbutamol AAF is concerned, due process deviates from what we have (sadly) become well-acquainted to as the 'usual process'. 

A very specific path is set out for the athlete to prove his innocence – a controlled pharmacokinetic study. To my understanding the athlete (in our case, Froome) will, in a laboratory setting, inhale up to the maximum dose of salbutamol allowed.

He may then undertake various exercises to replicate the conditions that according to his defence case led to the unusually high 'output' and give urine samples that (he can only hope) will replicate the concentration present in the sample that was flagged as an AAF.

Provisional suspension still possible

His ability to undertake this test while still in active competition brings us back to the lack of provisional suspension. To explain this, I turn to the UCI Rules, Part 14, Anti-Doping: 

Article 7.9.1, “Mandatory Provisional Suspension based on certain Adverse Analytical Findings”, says that “When an Adverse Analytical Finding is reported for a Prohibited Substance other than a Specified Substance or for a Prohibited Method, the UCI shall promptly impose a Provisional Suspension upon the review and notification described in Article 7.2 or 7.3, as applicable.” [emphasis mine]

Salbutamol, however, is a Specified Substance, so this isn't applicable here. Instead, article 7.9.3 applies: 

“For any potential anti-doping rule violation under these Anti-Doping Rules asserted after a review under Article 7 and not covered by Article 7.9.1 or 7.9.2 [which deals with Biological Passport violations, ed.], the UCI may impose a Provisional Suspension prior to analysis of the Rider’s B Sample (where applicable) or prior to a final hearing as described in Article 8.”

One single word in this has fundamental importance: “May” – not “shall promptly”. Through this rule, the decision whether or not to impose a provisional suspension in the case of an AAF of a Specified Substance is left up to the UCI/CADF.

The UCI can, but doesn't have to impose a provisional suspension in such a case. If no provisional suspension is imposed, the rider may continue to compete until a final decision in his case has been made.

That said, the UCI may, without further explanation necessary, still provisionally suspend Froome at any point in time before the final hearing – although I think it extremely unlikely that it will do so. One reason is that article 7.9.2 of the WADA Code requires that in cases like that, an athlete has to be “given either: (a) an opportunity for a Provisional Hearing, either before imposition of the Provisional Suspension or on a timely basis after imposition of the Provisional Suspension; or (b) an opportunity for an expedited hearing in accordance with Article 8 on a timely basis after imposition of a Provisional Suspension.”

If given a retrospective suspension, Froome would likely lose his Vuelta title

Identification

Another point of criticism is that the UCI didn't publicly disclose the Froome case for almost three months. I looked at article 14.4.1 to shed a light on this: 

“The identity of any Rider or other Person who is asserted by an Anti-Doping Organization to have committed an anti-doping rule violation, may be Publicly Disclosed by the Anti-Doping Organization with results management responsibility only after notice has been provided to the Rider or other Person in accordance with Article 7.3, 7.4, 7.5, 7.6 or 7.7, and to the applicable Anti-Doping Organizations in accordance with Article 14.2.”

This deals with the rights of the athlete, specifying that the rider has to receive notice of his ADRV before any public disclosure can be made.

Only when a case has been finally heard and a rider has not been acquitted is public disclosure mandatory, as laid down in article 14.4.2: 

“No later than twenty days after it has been determined in a final appellate decision under Article 13.2.1 or 13.2.2, or such appeal has been waived, or a hearing in accordance with Article 8 has been waived, or the assertion of an anti-doping rule violation has not otherwise been timely challenged, the Anti-Doping Organization responsible for results management must Publicly Report the disposition of the anti-doping matter including the sport, the anti-doping rule violated, the name of the Rider or other Person committing the violation, the Prohibited Substance or Prohibited Method involved and the Consequences imposed. The same Anti-Doping Organization must also Publicly Report within twenty days the results of final appeal decisions concerning anti-doping rule violations, including the information described above.”

If, however, a rider is acquitted, his consent is necessary for any public disclosure of the case. Article 14.4.3:

“In any case where it is determined, after a hearing or appeal, that the Rider or other Person did not commit an anti-doping rule violation, the decision may be Publicly Disclosed only with the consent of the Rider or other Person who is the subject of the decision. The Anti-Doping Organisation with results management responsibility shall use reasonable efforts to obtain such consent, and if consent is obtained, shall Publicly Disclose the decision in its entirety or in such redacted form as the Rider or other Person may approve.”

The burden of proof – Froome’s case against the result

As mentioned before, Froome now has to prove, through a controlled pharmacokinetic study, that the abnormally high concentration of salbutamol in his urine sample was the result of the inhalation of an amount of salbutamol not over the maximum limit allowed.

Diego Ulissi tried to do so after his salbutamol AAF in the 2014 Giro, but the results weren't to the full satisfaction of the hearing panel, so Ulissi was banned (albeit 'only' for 9 months; something fully within the hearing panel's remit in the case of a Specified Substance).

In 2007, Leonardo Piepoli was acquitted of an ADRV after returning a urine sample with too high a concentration of salbutamol during the Giro d'Italia.

However, it is important to note that the WADA rules on salbutamol were different back then, requiring an abbreviated Therapeutic Use Exemption for every use of salbutamol (something Piepoli did have), not setting any maximum levels of salbutamol 'input', and in continuation thereof also not specifying a pharmacokinetic study as the mandatory way to prove that the maximum limits allowed weren't surpassed.

Conducting a pharmacokinetic study isn't something you do hastily or on short notice. The 'defendant' will want to maximise his chances of success and do ample research into where & when to conduct it. That is his right.

I won't go into detail on how the hearing is to be held, but simply point to Article 8, Hearing Process, in the UCI Rules, Part 14, Anti-Doping

An important point is that there are no hard time limits within which after an AAF the hearing must be scheduled, conducted, and finished.

I would however assume that, since the burden of proof is now on the athlete, if Froome's legal team tries to drag the case on for too long instead of providing evidence when asked to do so at the hearing dates scheduled, the hearing panel could reasonably conclude that they have little intention or ability to prove Froome's innocence and make its decision based on that.

Until the pharmacokinetic study has been conducted and its results appraised by the relevant hearing panel, Froome is neither 'guilty' nor 'not guilty'; both outcomes are still possible. Given this Schrödingerian nature of the case and looking to protect the image of its sport, it is understandable that the UCI would be reluctant to make a public disclosure if such a course of action weren't agreed to be by Froome and Team Sky

As for Froome, given the veritable onslaught of questions he is now facing and a public debate now to a large degree dominated by emotional responses rather than rational analysis, he must have been reluctant to eagerly agree to a public disclosure of his case until newspapers Le Monde and The Guardian got word of the case, followed the story, decided to break the news, and presumably contacted the UCI as well as Froome and Team Sky for comment shortly before publication.

In light of this development, a decision was made to pre-empt the breaking story through statements made by the UCI and Team Sky (something that didn't entirely succeed; while The Guardian published its article after these statements, the Le Monde piece was put online a few minutes prior to the UCI statement).

To sum up: The UCI had no obligation to provisionally suspend Froome for a Specified Substance AAF, nor any obligation to publicly announce such AAF.

At the moment, Froome is free to race, and was free to race during the Worlds. I am not saying that the course of action taken by Froome or the UCI was well-advised. In my opinion, this course of action very much wasn't the one he ought to have taken. However, it is entirely within his rights to make decisions he may later regret.

I fully grant that a long and drawn-out hearing process during which Froome, unlike other riders with on the surface similar cases, is free to race, can be frustrating for all involved, and possibly even more so for those looking on from the outside.

But as we have learned, due process for Specified Substances (especially salbutamol) differs from that for other Prohibited Substances.

The case of Contador’s clenbuterol

One seemingly obvious parallel is Alberto Contador's clenbuterol case in 2010 & 2011. Here, too, public disclosure of an AAF by one of the biggest stars of the sport was withheld for several months.

However, clenbuterol is an anabolic agent listed in category S1 of the WADA Prohibited List and thus not a Specified Substance. This means that a mandatory provisional suspension should have been promptly imposed after notifying Contador of his AAF and, in keeping with the UCI's principle, this mandatory provisional suspension ought to have been systematically reported.

Alberto Contador was suspended in 2010 for Clenbuterol in his urine, which cost him a Tour title

In Froome's case, the AAF is for a Specified Substance that doesn't automatically invoke a provisional suspension and therefore no immediate public disclosure either.

This is not immediately obvious, and it can be frustrating too, especially in the light of how the UCI did not follow its own rules in the case of Contador. It has to be stressed that in Froome's case no rules were demonstrably broken by the UCI.

Alleging that there a cover-up of Froome's case was attempted, possibly in collusion between the UCI, the rider, and his team, or that Froome had no right to participate in the ITT World Championships, is in my opinion uncalled for.

It is true that the UCI could have chosen to provisionally suspend Froome, but (for reasons unknown to me) it chose not to. In hindsight, this decision may have been unfortunate and not in the best long-term interest of a transparent sport – but it was a decision fully covered by the currently applicable rules.

Transparency

I have no fully-formed opinion on whether the rules ought to be amended given their current complicated and at first look ambiguous state. These rules have to take into account several sometimes conflicting aspects: Transparency is very important, but so is the athletes' right to privacy; especially in a time when data privacy is a fragile good under attack from many sides. An animated, fact-based, and objective discussion of which should be given more weight is in my opinion much needed.

I deliberately afford myself the luxury of not taking either side.

I do however have an opinion on how the people and organisations involved in Froome's case ought to have acted, for their own good and that of the sport: Be fully transparent from the very beginning of the case. When Froome was notified of the AAF, he and his team could have chosen to announce it immediately.

If the time of notification was before his start time at the ITT World Championships, he also could have voluntarily relinquished his right to compete and withdrawn from the race, effectively self-suspending if the UCI had kept to its decision of not imposing a provisional suspension.

On the one hand this would have been a commendable display of transparency, on the other hand it would have meant that a possible suspension would have started on 20 September.

I hope that everyone has learned or reinforced the following points from this article: The rules are complicated, often more so than one first thinks. Seeking out sufficient and accurate information before making sweeping statements is always well-advised.

How this case was handled so far is neither evidence of a cover-up by the UCI, Froome, and Team Sky, nor is it a case of 'judicial murder'. The UCI has followed the rules governing its anti-doping efforts; Le Monde and The Guardian, upon learning of the case, carried out their journalistic duties of reporting a matter of public interest after a thorough research of the case.

Almost certainly, this whole case could have been handled better. But in the many, many pages of rules that govern the sport of cycling and its anti-doping efforts, there is no rule that everyone must act wisely.

Lukas Knöfler is a freelance cycling journalist with special interest in the rules and regulations of WADA and the UCI