In an exclusive interview with Who’s Who Legal, Dominique Leroux discusses her role at the UCI, the challenges faced by sports lawyers in the fight for cleaner sport and different approaches to anti-doping.
There are two distinct legal services at UCI: one dedicated to anti-doping, called Legal Anti-Doping Services (LADS); the other, called Legal Services, is in charge of all matters except for anti-doping. This framework was put in place at the end of 2013 with a view of affording greater independence in the anti-doping process. To achieve this, LADS works closely with an external and independent legal counsel – namely the law firm Lévy Kaufmann-Kohler, in Geneva, Switzerland. In a nutshell, LADS is responsible for the prosecution of anti-doping rule violations; the negotiation of collaboration and data-sharing contracts; and regulations drafting and advising on legal issues pertaining to anti-doping. As head of the department, I oversee the overall activities and case management.
The global approach to the in-house position was pivotal: I was driven by the opportunity to contribute towards an institution’s goals. With a comprehensive understanding of the UCI’s mission and interests, I can anticipate issues and take a proactive approach, instead of always being in a reactive position.
Due especially to the sensitivity of the subject matter and the context in which the UCI evolves, the key qualities sought for and found in the law firm Lévy Kaufmann-Kohler are: in-depth knowledge of the field; arbitration skills; responsiveness; and, while it may sound contradictory, understanding the issues beyond the law.
The approach taken by Mr Antonio Rigozzi, one of the founding partners, and Ms Brianna Quinn, a senior associate, is the perfect balance between a “leave no stone unturned” method and efficiency. What makes the difference in this high-pressure environment is to be able to call them up at any time, and within a few minutes of the discussion, solutions are mapped out. Moreover, Mr Rigozzi has the ability to defuse explosive situations by sending one e-mail to the other party, which is priceless.
I guess it’s because sports law is a mosaic of fields of the law. I had the chance to understand this during my studies at McGill University, in Montreal Canada. Benoit Girardin, who taught the sports law class, would present a different subject week in, week out: liability for event organisers, professional league lock-out, etc. This reassured and motivated me: I could specialise in sports law, but still work in different fields. And I do think this still applies in my current practice: litigation, evidence law and data protection are among the few areas that cut across anti-doping. Moreover, sports law is fast-paced and ever-evolving: it keeps you on your toes.
The evidence-gathering process is the linchpin of the lawyer’s work in anti-doping and constitutes an ever-changing challenge. Roughly speaking, as per the rules in force, the mere presence of a prohibited substance constitutes an anti-doping rule violation, so that element is usually straightforward. Nonetheless, the sanction (ie, the length of the ban) is determined based on the circumstances surrounding the presence of the banned substance in the athlete’s organism. As a laboratory director once told me, the sample analysis is akin to a snapshot of what is in the athlete’s body at a precise time: it does not explain how, when and why the prohibited substance got in there. Answering those questions is the lawyer’s task and the scientific experts’ input is necessary to adduce evidence. This means that lawyers need to decipher scientific analysis and transform it into persuasive arguments for hearing panels. For some illegal substances commonly associated with performance-enhancement (e.g. erythropoietin (EPO), the evidentiary threshold is generally more easily satisfied. But for other banned substances also used for “everyday life”, finding underpinning evidence can be difficult.
Whistle-blowing is another source of proof and recent cases (such as the investigations into the 2014 Sochi Winter Games) show how effective this can be. However, while tips are always sought after and useful, the bulk of what is confidentially reported is often hearsay. In other words, hard evidence is seldom handed on a platter. Bearing in mind that international federations do not have police powers, we have limited means to collect evidence and provide incentives for individuals to come forward. In-house investigators and collaboration with law enforcement authorities are hence paramount to substantiate the wrongdoings being reported to UCI.
The key principles of UCI’s anti-doping programme can be summarised as follows: robust framework and processes; effective strategy; and good collaboration with stakeholders. Over the past years, the UCI has invested a lot of resources into anti-doping to implement these targets.
In terms of good governance and independence, the UCI is a pioneer. Since 2008, the bulk of the anti-doping programme is delegated to an independent entity: the Cycling Anti-Doping Foundation (CADF). The CADF oversees the testing strategy, the athlete’s biological passport, etc. Or, to put it differently, the CADF handles everything but LADS’s above-mentioned specification. As explained above, the LADS’ framework is stringent and is safeguarded by Lévy Kaufmann-Kohler’s involvement.
Since 2015, a single hearing panel, composed of independent judges, has been created to take over UCI’s disciplinary proceedings which previously were handed down to the national federations.
A shift to an intelligence-led testing strategy has also been fostered. For example, over the past two years, the CADF bulked up its intelligence-gathering and investigations resources by hiring intelligence analysts and forensic specialists. The increased number of investigations and successful targeted doping control missions are a direct result of these efforts.
We have also turned previously antagonistic relationships with key stakeholders, such as the World Anti-Doping Agency and the United States Anti-Doping Agency, into fruitful relationships. We have done this by opening up to the anti-doping community and working with them, on a political level, but also in case management. Cooperation and information-sharing are key to successful relationships and effective prosecution.
I might be shooting myself in the foot by saying this, but I believe that excessive judicialisation is a potential risk for sports law. Over the past years, we’ve noticed that athletes are more and more represented, which is of course a good thing. Due process is to be assured to athletes and litigation should take place on equal terms. However, we’ve also noted some downsides, such as: legal fees and request for contribution for costs are escalating; rounds of submissions before hearings are multiplying; lengths of the proceedings are increasing; and tribunals are flooded. Bearing in mind that time is often of the essence in sports law matters, adjustments will surely be needed to ensure that the conflict resolution processes continue to offer fair and expedite mechanisms.