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An analysis of the DCMS Select Committee Report: ‘Combatting doping in sport’ Part 2 – “British Cycling and Team Sky”

In part two of our three part series on the DCMS Select Committee Report in “Combatting doping in Sport” we consider its controversial findings in respect of British Cycling and Team Sky.

It is the second section of the DCMS Select Committee Report that is likely to have the most serious repercussions for two of the biggest names in UK Sport, namely Sir David Brailsford, formerly performance director of British Cycling during its most successful years and currently general manager of Team Sky, and Great Britain’s most successful ever Olympian and Tour de France winner Sir Bradley Wiggins.

This section of the DCMS Committee’s report arises from the publication of documents by the Russian ‘Fancy Bear’ hacking group which showed that Sir Bradley benefitted from the use of three separate Therapeutic Use Exemptions (“TUEs”) for a “powerful corticosteroid, triamcinolone” to treat his asthma, prior to both the 2011 and 2012 Tour de France and the 2013 Giro d’Italia.

The Report sets out the background to TUEs, which Sports Shorts has covered previously here, and goes on to consider their use in competitive cycling in particular. It is notable that in this section of the Report the DCMS Committee has relied upon “several doctors, who wish not to be named” and evidence given to the Cycling Independent Reform Commission anonymously. It is a consistent aspect of the Report that the DCMS Committee appears to have accepted such anonymous evidence without seeking to question its veracity or the weight that should be attached to it.

In respect of TUEs generally the DCMS Committee accepts that their use is permitted within the WADA rules but states that it has concern that the “TUE system is open to abuse”.

The Report then focusses on events surrounding the 2011 Criterium du Dauphinéroad race which ended on 12 June 2011 and was won by Sir Bradley. This was a key preparatory event for Sir Bradley who was seeking to win the Tour de France which started on 2 July that year.

In particular, the DCMS Committee wished to examine what happened immediately after the race had finished. Of particular focus was the contents of a now notorious “jiffy bag” sent to Team Sky at the end of the race.

The evidence included in the Report states:

  1. Prior to the end of the Dauphiné Team Sky’s doctor, Dr Richard Freeman, asked Team Sky coach Shane Sutton to arrange for a medical package to be brought to La Toussuire for the end of the race[1];
  2. Dr Freeman spoke with Phil Burt, a physio at British Cycling, and gave him instructions about what to include in the package from the drug store shared by Team Sky and British Cycling at the Manchester Velodrome[2];
  3. The package was collected from Manchester by Simon Cope who delivered it to Dr Freeman in La Toussuire on 12 June[3].

The DCMS Committee has not held back in respect of criticisms of Team Sky, British Cycling or Sir David Brailsford in respect of its failure to properly record information about what was in the package, the medicines given to riders, including Sir Bradley, or to keep proper medical records. Indeed it would appear these criticisms are accepted by Team Sky which has since amended its procedures.

The Report goes on to state that:

“When Shane Sutton gave evidence to the Committee, he stated that Dr Freeman had told him after the end of the race in La Toussuire that he had treated Bradley Wiggins with the medication that was in package. He said that Freeman had told him “Brad’s been sorted”.”[4]

This section references oral evidence given by Shane Sutton to the DCMS Committee[5]. However, if one looks at the evidence it is not clear that Sutton does say Sir Bradley was given the medication in the package. What Sutton said was:

“I never even thought to ask. As I said, it is down to the doctor to sort any issues. I don’t know what was in the package. I know Brad was suffering a little bit towards the end of the Dauphiné. Whether he administered something I don’t know. He said, “Brad’s been sorted” and that was it. He obviously had a medical issue and he had sorted that problem. For me to go into detail into medical stuff, I am a not doctor so I don’t really get..

As to phrase “Brad’s been sorted” this later exchange between Committee Chairman Damian Collins and Sutton is informative:

“Chair: You used the expression in your answer to one of the previous questions that Dr Freeman had said to you, “Brad’s been sorted.” I want to check, is that exactly what he said?

Shane Sutton: That is what he meant. He had been ill for the last few days. He was obviously going to give him an examination straight after the press conference or whatever and that is it.”[6]

The written evidence of Dr Freeman clearly states that the package contained Fluimucil[7]. This was confirmed by Sir David. In respect of what was given to Sir Bradley, he confirmed that he was only given Fluimucil by way of a nebuliser after the race, and then only after having travelled to their high altitude training camp that evening in Sestrière.

In contradiction to the direct evidence from the individuals who ordered the medicine and who received the medicine the DCMS Committee also received:

“Further information shown to the Committee [that] claimed that the product that was requested to be sent out to the event was triamcinolone”[8]

The central allegation being, as a result of this “further information”, that the jiffy bag ordered by Dr Freeman contained triamcinolone which was then given to Sir Bradley and which he would not have been allowed to use as, at that stage, he held no TUE. Despite detailed references to various evidence included within the Report there is no reference to the “Further information” shown to the DCMS Committee.

Whilst the DCMS Committee is prepared to criticise Dr Freeman for not keeping detailed records confirming the content it appears not to appreciate that it could potentially deal with the issue of the ‘jiffy bag’ itself by publishing the information upon which it appears to rely. However, even then, the fact it can be shown triamcinolone was sent to Team Sky on 12 June 2011 is not conclusive evidence in support of an allegation that Sir Bradley took it.

The written evidence, not included in the Report but published on the DCMS website includes:

  1. Evidence from Dr Freeman that the package contained Fluimucil[9];
  2. Evidence from Mr Burt that to the best of his recollection it did not contain Triamcinolone[10];
  3. Evidence from Sir Bradley that he received no treatment following the conclusion of the Dauphine over than the usual recovery packs and Flumucil through a nebuliser[11] (a section of this evidence can be found at 78 of the Report).

In respect of Team Sky’s medicine policy in general, a large part of the Report’s findings are based on both the evidence of an anonymous whistleblower, whose identity is known the DCMS Committee but not otherwise shared, and “confidential material from a well-placed and respected source” – whether this was from the same individual is not clear.

Sir Bradley, who has not previously spoken publically about the DCMS Committee’s investigation, has since given an interview to the BBC (which can be watched here and read here) in which he categorically denies taking triamcinolone, stating that if it had been administered on 12 June 2011 it would have still be in his system when he was tested after winning the UK National Road Race on 26 June. It was not.

Other members of the team at the time have also confirmed that they were unaware that Sir Bradley had taken triamcinolone or seen anything untoward whilst at Team Sky.

As the Report itself states, the DCMS Committee clearly felt the TUE system “is open to abuse”. Despite acknowledging that Sir Bradley applied for a TUE for triamcinolone in the proper way, and that this was approved by WADA, the DCMS Committee concluded that he had used it “not to treat medical need, but to improve his power to weight ratio ahead of the race”. In doing so Sir Bradley, and others at Team Sky, are accused of crossing the “ethical line”.

This is a powerful conclusion to draw and one that could be very damaging to the reputations of those involved. The DCMS Committee has the benefit of publishing its report with absolute privilege pursuant to s.1 of the Parliamentary Papers Act 1840 meaning Sir Bradley nor anyone else could sue for defamation even if they wanted to.

In the circumstances, it would appear unjust for the DCMS Committee not to have put the allegations, including details of who they came from, squarely to those who are criticised in the report in order to allow them the opportunity to rebut the same.

One potential avenue for Sir Bradley to explore would be to see whether it was possible to seek a Judicial Review of the Report on the basis that the DCMS Committee is a public body and should have properly disclosed all of the evidence it received, including details of where it came from, in order that those concerned could properly respond to it.

Whatever your view of the Report’s findings it is clear that the use of TUEs will remain controversial and open to abuse. However, what is the alternative? Should sport only be open to the super-human? Those without injury or ailment?

In this author’s view, even if TUEs were banned, testing would still be required and athletes would still seek to find marginal gains. No system is perfect and as long as an athlete is competing within the rules at that time, which even the DCMS Committee appears to accept Sir Bradley and Team Sky were doing, this should be enough and no moral judgment should be made. 

Tomorrow we report on the DCMS’s Committee’s investigation of UK Athletics and its consideration of the criminalisation of doping in sports. To read Part 1 of our 3 part series please see here.


[1] §75 of the Report

[2] §76 of the Report

[3] §77 of the Report

[4] §78 of the Report

[5] Q1074 of the oral Evidence of Shane Sutton

[6] Q1091 of the oral Evidence of Shane Sutton

[7] Written Evidence of Dr Freeman

[8] §85 of the Report

[9]http://data.parliament.uk/WrittenEvidence/CommitteeEvidence.svc/EvidenceDocument/Culture,%20Media%20and%20Sport/Combatting%20Doping%20in%20Sport/written/49391.html

[10]http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/digital-culture-media-and-sport-committee/combatting-doping-in-sport/written/79041.pdf

[11]http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/digital-culture-media-and-sport-committee/combatting-doping-in-sport/written/78626.pdf

© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

Tim Lowles, Squire Patton Boggs Law Firm, Sport Litigation Attorney
Senior Associate

Tim Lowles is a Senior Associate in our Litigation Practice Group. Tim advises upon all aspects of commercial litigation with a particular emphasis on sport, contentious media and reputation management issues for companies, institutions and high profile individuals. He has been involved in a number of reported cases and was a member of the team which represented the Core Participant Victims in the Leveson Inquiry.

Tim has advised a number of household names from the sporting world on various issues ranging from contractual disputes to...

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