UCI Phonak ProTour Decision
INTERNATIONAL CYCLING UNION
D E C I S I O N
of 22 November 2004 of the Licences Commission of the International Cycling Union, composed of Pierre Zappelli, President, André Hurter and Hans Höhener, members, in view of:
of ARcycling AG for a UCI ProTour licence;
the hearing of 22 November 2004, in Lausanne;
noting that proceedings have been as follows:
A. On 28 May 2004, ARcycling AG, a company resident at 8634 Hombrechtikon, Switzerland, applied for a four-year UCI ProTour licence to enable the team Phonak Hearing Systems (hereinafter: Phonak) to take part in the UCI ProTour.
B. On 30 June 2004, the Licences Commission of the UCI (hereinafter: the Commission) gave a favourable preliminary opinion on the provisional issue of a licence to the applicant.
C. After its meeting of 12 November 2004, the Commission notified the applicant of the following initial evaluation:
"(...) In view of your dossier, the UCI Licence Commission noted that it would have to withdraw the preliminary opinion delivered on 30 June 2004 and issue an negative initial evaluation in respect of your application, based on the following aspects of your dossier:
A case of doping has been proven in your team while two other cases are under investigation.
A auditing procedure for the internal organisation of your team in respect of the fight against doping has been launched by the UCI medical service, the results of which are not yet known.
You have not respected article 2.15.116 of the UCI Regulations in relation to image contracts (...)".
D. During the meeting of 22 November 2004 in Lausanne, at the request duly submitted by the applicant, the Commission heard the applicant's representatives, Andy Rhis, president, Urs Freuler, manager and Alessandro Celli, lawyer. The UCI was represented at this hearing by Alain Rumpf, professional cycling manager, Mario Zorzoli, UCI health manager/doctor, and Philippe Verbiest, lawyer. The brief minutes of this hearing have been added to the dossier.
1. Article 2.15.011 of section XV of the UCI Regulations (hereinafter: the Regulations) sets out the criteria which the Commission may take into account in allocating a UCI ProTour Licence to a team. Among these criteria are the respect for UCI regulations (article 2.15.011, number 4), the respect of sporting ethics, including ethics in relation to doping and health (article 2.15.011, number 7) and the absence of other aspects likely to be particularly damaging to the image of cycling as a sport (article 2.15.011, number 8).
Under article 2.15.026 of the Regulations: "the Commission shall judge the request on the basis of the dossier in its possession at the moment when it formulates its initial evaluation. There may be no subsequent additions to this dossier. (...)" It emerges from this last text that the Commission may not take account of documents produced or of facts arising after its initial evaluation, in this case 12 November 2004.
2. Two objections have been put forward with regard to the Phonak team. Firstly there is the existence of several cases of doping or suspected doping which have emerged at close intervals since August 2004, and the reactions of the said team’s members to these events. Then there is the failure to respect the UCI's rules regarding riders' contracts.
2.1. In relation to the question of doping by members of the team, the following facts may be considered as established:
2.1.1. At the hearing of 22 November 2004, the management of the Phonak team indicated that the rider Hamilton's contract would expire on 31 December 2005, while Perez's contract would come to an end on 31 December 2004.
They explained that the work of the said experts had been delayed, the experts not yet having been able to obtain the data enabling them to validate the way in which blood tests were carried out. These delays were not disputed by the UCI's representatives who stressed that they were not responsible and, on the contrary, had done everything in their power to prevent them. Alessandro Celli, Phonak's lawyer, indicated that a provisional report from their experts did not enable them to reach significant conclusions, two of these experts considering that the Lausanne and Athens laboratory tests were invalid, a third having detected certain errors which, however, did not cast doubt upon their reliability, and two others having found nothing abnormal in these tests.Having stated that, if the expert investigation established by his team was to confirm the suspicions of doping, the riders Perez and Hamilton would be dismissed immediately, Andy Rhis informed the Commission, during the same meeting, that he had decided to terminate Tyler Hamilton's contract before its expiry. It should be noted that after the hearing, but before the present decision was drafted, Alessandro Celli, on behalf of Phonak, has confirmed to the Commission that on 25 November 2004, it terminated the contract linking this team to Tyler Hamilton.
It emerges from the dossier and the explanations given by Mario Zorzoli during the hearing of 22 November 2004, that on several occasions during 2004 doubts had arisen about the abnormal readings observed in the blood of certain riders in the Phonak team. The team's managers had been summoned to clarify this matter. Following the recent cases mentioned above, the UCI decided to launch an enquiry to determine and improve the Phonak team's modus operandi in relation to the fight against doping and the protection of riders' health.
During the hearing of 22 November 2004, the applicants manager produced a draft protocol, dated 27 October 2004, intended to establish the terms of the Phonak team's antidoping policy.
2.1.2. Apart from the existence of the checks instituted by the UCI's doctor, the facts related above (paragraph 2.1.1) by the applicant do not appear in the dossier and were not known to the Commission when it issued its initial evaluation. Under the Regulation quoted above (article 2.15.026), the commission is not entitled to take these into account.
Nonetheless, the consideration of these facts and even the last minute announcement of the dismissal of the rider Tyler Hamilton, does not make it possible to overturn the negative initial evaluation issued on 12 November 2004.
More than the confirmation of the doping cases in which certain riders in the team are or have been suspected during these last months, it is the attitude of this team's management to these revelations which arouses serious reservations. Though it is not in itself contentious for a team to defend its riders when they are involved in a doping affair, at least while their guilt has not been established, the attitude of this team, which has tried to cast doubt on the validity of the tests which revealed the suspected doping in order to provide its defence, is quite another thing. The Commission can only observe that the validity of these tests has been accepted by both WADA and the IOC. Of course it cannot be excluded that this validity could be called into in question, or undermined in the future, but under current circumstances it should be admitted that the method of analysis is correct, that it has made it possible to observe the absence of doping in other sportsmen and women who have been tested, and that in consequence the results of the tests carried out on the riders Tyler Hamilton and Santiago Perez justify, despite their denials, the strong suspicion of doping. The attitude of the applicant, consisting of basing his defence on the challenging of proven methods, to which must be added the fact that abnormal blood levels had already been revealed in certain of the team's riders during 2004 by the UCI, certainly justify the announcement of more thorough checks by the medical officials at the UCI.
It has not been demonstrated that, since suspicions arose about the doping of its riders, the Phonak team has followed the example of other teams admitted to the UCI ProTour, and organised itself in such a way as to combat doping effectively.
As a result this team does not provide guarantees in respect of sporting ethics as they apply to doping, within the meaning of the Regulation cited above. Its admission to the UCI ProTour would at present be such as to harm the image of cycling as a sport.
There will be grounds for checking how far the Phonak team management respect the undertakings they say they wish to give in relation to the fight against doping. Such scrutiny may take place following the checks carried out by the UCI during these next months. In this respect, the draft protocol for internal controls submitted by the applicant to the Commission for the UCI's attention represents a step in the right direction.
2.2. Under article 2.15.116 of the Regulations, an image contract may be concluded with riders in addition to the employment contract. Remuneration under the image contract may not exceed 15% of the total remuneration paid to the rider. The applicant does not dispute the fact that after learning of this regulatory provision, five image contracts were extended without respect for this 15% limit. The manager of the team, Urs Freuler, explained that at the workshop of 1 September 2004, an Ernst & Young consultant said that there was no need to worry about the 15% problem for existing contracts.
This explanation is not convincing, as the regulations, known and applicable at the time that these contracts were renewed, make no distinction between renewed and completely new contracts.
There has therefore been a violation of article 2.115.116 of the Regulations. It is also noted, furthermore, that Phonak declared itself ready to bring all its contracts into line with the Regulation.
For these reasons, the Licences Commission of the UCI rules:
1. The application of ARcycling AG for the issue of a UCI ProTour licence for the Phonak Hearing Systems team is rejected.
2. Under articles 2.15.226 and 2.15.229 of the UCI Regulations, an appeal may be filled with the Court of Arbitration for Sport (CAS), within fifteen days of the day following receipt by fax of the present decision.
Lausanne, 22 November 2004.
For the Licences Commission of the UCI
Pierre Zappelli, President