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Interview with Richard McLaren, Arbitrator at the Court of Arbitration for Sport

Richard McLaren is an Arbitrator at the Court of Arbitration for Sport, and will be speaking at Tackling Doping in Sport, which takes place March 14 & 15 at Twickenham Stadium near London. The annual conference brings together anti-doping experts from around the world and is organised by World Sports Law Report in association with UK Anti-Doping and Squire Sanders. For more information, visit www.cecileparkconferences.com/tackling-doping-sport-2012.

McLaren will give a presentation on the case of Spanish cyclist Alejandro Valverde, who in January 2011 lost a Swiss Federal Tribunal appeal against a Court of Arbitration for Sport ruling supporting a two-year doping ban administered by the Union Cycliste Internationale and the World Anti-Doping Agency (WADA). In this short interview, he gives his views on what the hot topics will be at the conference. He also explains why he thinks that the 'no fault' category within the World Anti-Doping Code needs rethinking, and why less freedom is needed for arbitrators when dealing with 'specified substances' under the Code. He also explains how he is looking forward to hearing the World Anti-Doping Agency's (WADA) plans for out-of-competition testing leading up to the London 2012 Olympics and explains why he thinks London's Games will be a doping-free event.


WSLR: What do you think the main topics of interest will be at Tackling Doping in Sport 2012?

McLaren: "I would think that one of the key topics will be human growth hormone (HGH) testing. The problem with the test is that the one currently being used is only effective for two or three hours. There is another one which WADA has developed which has a much longer window in which to catch people. That is part of the reason why they wanted to have 24-hour, round the clock testing. Let's assume that you administer HGH during the night time, they would like to catch you at 6am, because the half-life is so short with the current test. So it's not the HGH testing per se, but the development of a new test for HGH, which gives them a better chance to detect the use of the substance."
"Clenbuterol certainly is the topic of the day in the cycling world. It's controversial of its own accord, quite apart from whether you can get it from eating contaminated meat and that topic ought to be addressed. The topic of prior doping offences blocking you from being at the Olympic Games I can't say anything about - for obvious reasons - although at the conference I had originally been asked if I would talk about the United States Olympic Committee vs. International Olympic Committee case1, which is somewhere along the same lines!"

WSLR: Is it right to sanction an athlete when the substance enters their body through no fault of their own?

McLaren: "If there's truly no fault, then the answer is no, they shouldn't be sanctioned. The Code allows for that. The problem has been the definitions, which are very rigid. For example, you can't be in a 'no fault' position unless you've taken the 'utmost caution'. That's pretty powerful language, as it's very difficult for anyone to say that they've taken the utmost caution. The result is that the category of 'no fault' has been a very small category and there have only been a handful of cases finding 'no fault' since the Code came into existence - not just the current Code, but the 2004 version as well. I think that the 'no fault' category needs some rethinking to take account of athletes who have possibly not used 'utmost caution', but have used a substantial or reasonable amount of caution. This should also be in the category of 'no fault', therefore no sanction."

WSLR: Who are you looking forward to seeing speak?

McLaren: "I was in touch with Jeff Benz [Arbitrator at the Court of Arbitration for Sport] and he is doing something about specified substances and I certainly look forward to hearing that. It's an interesting topic area because the whole idea of introducing specified substances to be a much more expansive group than it was in the prior Code was to give arbitrators greater discretion. A number of international federations such as FIFA have pushed for greater discretion and I think that the experiment has worked reasonably well, but I would argue that arbitrators maybe shouldn't have as much discretion as they now have."
"I would certainly like to hear what Richard Budgett [Chief Medical Officer for London 2012] has to say about the settling up of the laboratories for the Olympics. John Ruger [Athlete Ombudsman for the US Olympic Committee] is always controversial and interesting! I am not sure what he will talk about, but it will be political."
"I would also be interested to hear WADA's perspective on what they see to be the upcoming issues for London 2012 - particularly for the period for which they're in charge, which is the out-of-competition testing leading up to the Games. They certainly corralled a number of athletes before the Beijing Olympics and I would be interested to hear what their programme is."
"I would also be interested to hear Antonio [Antonio Rigozzi - Partner, Lévy Kaufmann-Kohler] speak about the Contador case, if he is allowed to talk about it. We'll know if there is going to be an appeal within 30 days, so it will be interesting to see if Antonio and Mike [Mike Morgan, Squire Sanders] are able to talk about their experience."

WSLR: What will be the biggest doping issue at London 2012?

McLaren: "I think that the biggest news will be that there isn't a doping issue at the London 2012 Games! The net that has been developed by WADA to catch people before the start of the Games - such as out-of-competition testing and the targeting that they do - together with the fact that most Olympic Committees now do not want to take an athlete that they suspect is doping. They also undergo a rigorous examination before they ever get them there so that they don't suffer any embarrassments and with all of that happening, I think that it'll be extremely unlikely that any doping happens. It'll be like the Vancouver Games!"

WSLR: Should the Code be adapted to allow national bodies to ban athletes from the Olympics?

McLaren: "No, not necessarily. I don't think that the two things are even necessarily connected to each other. Doping bans are imposed not by the IOC, but by the different sporting federations. National bodies should meet the criteria that the sporting federations want."

WSLR: Do you think that doping bans should match Olympic cycles?

McLaren: "I can't touch that one, I'm afraid! Except to say that the USOC vs. IOC decision very clearly recognised that if the parties involved want to have different rules, then there is a mechanism within the WADA Code for doing that."

WSLR: Thanks for your time and see you at Tackling Doping in Sport 2012!

1. See WSLR November 2011: Doping: USOC v. IOC: Olympic bans for 'convicted' dopers




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