CIRC or Circus? Truth without reconciliation and learning from past mistakes

What links Alberto Contador, extraordinary rendition  and the Branjevo Farm?

The answer, perhaps surprisingly, is the composition of the UCI’s Cycling Independent Reform Commission (CIRC) – or UCI IC v2.0 – announced on 8th January.

Set up to “investigate the problems cycling has faced in recent years, especially the allegations that the UCI has been involved in wrongdoing in the past” the CRIC is expected to take up to a year to report back its conclusions. Though its stated aim is “understanding what went so wrong in our sport and they will make recommendations for change so that, as far as possible, those mistakes are not repeated” the Terms of Reference (ToR) for the CIRC have not yet been made public but are expected to “explicitly state that the Commission will act autonomously and that its members will not receive any instruction from the UCI.”

So far so good – and apologies if you’re reeling from acronym overload.

Some of you may remember the UCI’s Independent Commission (UCI IC) – or v1.0 as it shall be known in order to avoid said acronym overload – announced on the 30th November, 2012 and dead in the water by January the following year amid accusations of ‘deceit’ by WADA – there’s an excellent overview of the life and death of the UCI IC here. McQuaid said he’d dropped it in favour of a Truth and Reconciliation (TRC) process to be jointly funded with WADA. The head of WADA, John Fahey, accused the UCI of a ‘unilateral and arrogant’ attitude and the TRC was dead in the water, too.

TRC has faced a barrage of criticism since the idea was first mooted at the Change Cycling Now meeting in 2012. It is worth revisiting their initial proposals as outlined by Michael Ashenden and those of Outerline, who have focused on the cost to cycling of it not fully addressing the issues of doping in the sport’s past. But McQuaid was on a hiding to nothing – regardless of whether you take the charitable view (he dissolved the UCI IC in response to criticism that the terms of reference were too narrow and instead proposed a much wider ranging process) or the uncharitable one (he knew TRC would fail and used it as a handy excuse to dissolve the troublesome, inquisitive UCI IC) – come last September he was unceremoniously out of the top job at the UCI and Brian Cookson was in, ordering hard drives seized and data secured within seconds of securing the Presidency.

Which brings us to v2.0 which won’t be a TRC process either, Cookson having already hedged his bets in his manifesto where he wrote “while there are a number of practical legal issues that require consideration, if these can be overcome, I would welcome such a process” (my emphasis). Clearly those issues were insurmountable and so we have what is effectively UCI IC v2.0 with its remit to:

Investigate the problems cycling has faced in recent years, especially the allegations that the UCI has been involved in wrongdoing in the past – allegations which have done so much to hurt the credibility of the UCI and our sport. Their work will also be focused on understanding what went so wrong in our sport and they will make recommendations for change so that as far as possible those mistakes are not repeated.

  We have agreed a budget for the Commission, which the UCI will cover in full, and we have also expressed our wish that its work be concluded this year. Other than that, the   Independent Commission based in Lausanne will operate completely independently of the UCI and will organise its work as it chooses. The Commission’s terms of reference will explicitly state that the Commission will act autonomously and that its members will not receive any instruction from the UCI

You may be forgiven for struggling to find the substantive differences  from v1.0 which sought to be:

 A  fully independent commission to look into the various allegations made about UCI [in the Reasoned Decision] relating to the Armstrong affair… the Commission’s report and recommendations are critical to restoring confidence in the sport of cycling and in the UCI as its governing body.  We will co-operate fully with the Commission and provide them with whatever they need to conduct their enquiry and we urge all other interested stakeholders to do the same.  We will listen to and act on the Commission’s recommendations

 The Commission, which will act as an external body and will be fully independent of the UCI, ICAS and CAS… The purpose and wide-ranging remit of the Commission is set out in the attached Terms of Reference, which was drawn up by the Commission members themselves

The aims and time scale (1990s – present) appear identical. Curious that Cookson, the new broom, should essentially replicate a commission he voted to close down. However, until the CIRC chooses to publish its own terms of reference, we must assume that, in some fundamental way, its ambitions will be very different to the UCI IC.

But the make up of the 3 person panel is quite fascinating. John Coates (head of ICAS – so much for full independence) recommended Sir Phillip Otten (international arbitrator, mediator and former Court of Appeal and Privy Council judge with particular experience in sports arbitration), Dame Tanni Grey-Thompson (11 times Gold medallist, degree in Politics and Social Administration and active member of the House of Lords) and Malcolm Holmes (a Sydney based lawyer and experienced CAS arbitrator). In their place – though it’s unclear who recommended the appointments within the UCI – we have Dick Marty, Peter Nicholson and Ullrich Haas.

If you remember the Council of Europe report into organ theft in Kosovo or the investigation into alleged illegal secret CIA prisons in Europe, then you’ll have heard of Dick Marty. No stranger to controversy – he’s been criticised by variously the the World Federation of Catholic Medical Associations, supporters of Kosovan independence and Tony Blair. He is unafraid to ruffle feathers and pursue big names in support of uncovering the truth, however unpopular or unpalatable that may be. It’s arguable that without his courageously indefatigable investigation into extraordinary rendition we’d have remained in the dark about the way European government’s were complicit in CIA torture.

In a Q&A with the Centre for Investigative Reporting the following exchange occurred:

 Q: You’ve conducted some very difficult and disturbing investigations in your career, both as a criminal prosecutor but also as a human rights special rapporteur. How does this investigation compare?

 A: The greatest difficulty that I have encountered is finding witnesses and, even more,   developing trust. Trust had to be built slowly, in order to make it understood that I was fully committed to protecting the witnesses’ anonymity and their lives, and that I would never give out any indications regarding witnesses without their consent. It was very difficult, to  develop this trust. Perhaps the fact that I represent an institution such as the Council of Europe, that I work alone with a very small team, and that I am known for my earlier reports, contributed to establishing this trust.

Establishing trust and protecting anonymity may be two of the greatest weapons at CIRC’s disposal – like the UCI IC before them, they – as yet – have no statutory powers to compel witnesses or to incentivise them to appear. Cookson claims an accord with WADA over incentives in line with the WADA code is close but it seems the best that will be on offer is an amnesty for riders coming forward who have not previously been convicted of a doping offence. The ability to establish trust and ensure confidentiality could be crucial in persuading others to step forward.

From a fearless crusader for the truth to a team leader at the International Criminal Tribunal for the former Yugoslavia (ICTY). Peter Nicholson seems to have been involved both in the field, though never a member of the investigative team (according to testimony given to ICTY) – he took video of various execution sites – and in an operational capacity, writing the standards for the function of military analysis noting that “breadth of sources is vital for quality analysis.” With the electronic data seized and secured by Cookson in his first act as President (and kept under lock and key since) entirely at their disposal, CIRC should have precisely the breadth of sources they need to get to the heart of the allegations of corruption at the UCI. This is a key difference between both commissions – during the January hearing of the UCI IC, a major complaint was the lack of evidence from the governing body. It seems this will not be an issue for the CIRC.

So far so good – though one can’t help feeling that issues of doping and corruption in cycling are small potatoes compared to the horrors of the conflict in the former Yugoslavia and that sledgehammers are being used to crack walnuts. But the heavyweight credentials of both Marty and Nicholson cannot be doubted and may well put the fear of god into some of the principal actors in the mess that is the professional sport.

And then we come to Ullrich Haas – A leading light in the German anti doping movement, Haas has been hard at work drafting the 2015 WADA code and representing Alberto Contador at his CAS hearing. It was Haas’s involvement with WADA that led Valverde to challenge his inclusion on the Spaniards CAS panel, citing a conflict of interest. This may have implications for the CRIC when it comes to other riders with skeletons in their closets giving evidence, unless Cookson and Reedie can agree changes to the WADA code and Marty can establish trust and guarantee anonymity.

At which point a brief recap on the tortured relations between WADA and the UCI IC v1.0 is in order. The needle between the 2 organisations has been palpable over the years, exacerbated by the row over the whitewash that was the Vrijmann Report into allegations of Lance Armstrong’s doping – a report WADA fiercely condemned. McQuaid once said of WADA chief Dick Pound “As far as we’re concerned he lacks credibility and he’s got a knife in our sport” but relations didn’t improve when John Fahey took control and there is some sense that WADA were quite happy to see the UCI IC fail. After all, a success for McQuaid would have been an enormous PR coup in an election year.

But things are different now – Brian Cookson has taken control at the UCI and Fahey has been replaced by Sir Craig Reedie, ex-chairman of the British Olympic Association and IOC member and the man responsible for drafting the BOA’s controversial Olympic ban legislation. Matching Cookson’s ‘collegiate’ approach, Reedie says “My instincts throughout all of my sports career has been rather more consensual than combative,” signalling a softening of WADA’s traditional attack dog approach. The Cold War between the two has thawed and WADA, once happy to sink the UCI IC in favour of TRC are now happy to accept a commission that has shied away from any mention of truth or reconciliation because “we do need to have a review, something like the Mitchell report into baseball…I am just not entirely comfortable with the words Truth and Reconciliation.”

The reference to the Mitchell Report is an interesting one, particularly as it shared some of the issues the UCI IC ran up against in securing confidentiality and collecting evidence from baseball players – Outerline offer an interesting review of Mitchell as a roadmap for an independent commission process. Yet Mitchell’s wider remit was to investigate doping and testing in the sport whereas the CRIC is currently more tightly focused on the role the UCI played in helping to destroy the credibility of the sport. Exactly as the UCI IC was.

So why are WADA happy to accommodate the CRIC process in a way they would not support the UCI IC? The obvious answer seems to be a desire to get on with the sport – to end the navel gazing and to move the sport forward because “people want to stop talking about doping now” as Chris Froome stated recently. The question is whether there’s a real appetite to get at the truth, the whole truth, however ugly, or whether CRIC, in its narrow focus on the 90s-00s will conclude that doping really did end in 2006, the year Hincapie went ‘clean’ and Spain passed its first anti-doping laws. Anecdotal evidence suggests the new generation is indeed cleaner and the new WADA code with its 4 year bans and promises of new testing will help to restore credibility in the public’s eyes. Sceptics will be less easily mollified – whether the CRIC is accused of sweeping a dirty issue under the carpet will depend hugely on the transparency of the process and the integrity and breadth of the evidence base.

So will it be CIRC or Circus? Though it doesn’t differ substantially from v1.0 the devil will be in the details, particularly of the terms of reference if and when they’re made public. Meanwhile, Marty, Nicholson and Haas will be sequestered in Lausanne, operating independently of the UCI and poring over the contents of those emails and hard drives – contents that the UCI have already briefed as being ‘dynamite’. The CRIC is due to report back by the end of the year. Between now and then there’ll be some sleepless nights for the men who ran cycling in the 90s and 00s.

GLOSSARY

UCI         Union Cycliste Internationale

UCI IC    UCI Independent Commission

CRIC       Cycling Independent Reform Commission

TRC        Truth and Reconciliation

WADA   World Anti Doping Agency

IOC         International Olympic Committee

CAS        Court of Arbitration in Sport

BOA       British Olympic Association

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2 thoughts on “CIRC or Circus? Truth without reconciliation and learning from past mistakes

  1. I believe it will start to move things forward. One thing for sure is that cycling can’t continue to go through endless navel gazing periods, something is needed to disrupt the inertia. The difference for me between 1.0 and 2.0 is the emergence of different key senior players, and that will be fundamental to making real change. I applaud Cookson’s much more explicit, and in my view genuine, directive to investigate the UCI’s role in the issues.

    Personally, I believe this is for the good. Cycling has a peculiar and insular self-flagellating bunch of commentators who roundly criticise and pick apart every such initiative. But as in all walks of life there are talkers and do-ers and I’m supporting Cookson as the do-er on this one.

    Nicely written piece, well done.

  2. Truth and reconciliation. Hmm. The reconciliation doesn’t happen with the truth, and I doubt that would happen. If it did, some seriously rich people would have to go to jail, so fuggadaboutit.

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