WADA in the Mitchell Report...

Certain sports reporters would have you believe that WADA isn't mentioned in the Mitchell Report concerning major league baseball; they apparently couldn't find p. 259 (NB: document page number, NOT pdf file page number).

Not only did Alison KORN get this wrong at SLAM sports of Canada (there are even extensive citations to an author whose last name is Fainaru-Wada, so her find command may not be functioning...), but there are several pages of the history of WADA's inception, should she wish to become informed on the relationship of WADA to this report.

Upon finishing a reading of that history (see pp 261 to 263), Mitchell (or his writing staff) gleaned an important list of components "... recognized as essential to an effective program to prevent the use of performance enhancing substances in training and competition":

1. independence of the program administrator;
2. transparency and accountability;
3. effective, year-round, unannounced testing;
4. adherence to best practices as they develop;
5. due process for athletes;
6. adequate funding; and
7. a robust education program.

WADAwatch, never having been a hasty agent for analysis, will look at this document, although certainly more feedback, such as from WADA itself, would be produce a more robust, better balanced flavour to the situation.

As to the ramifications of this list, Ww is certainly curious to find out if there are any substantive differences to the concepts of 'independence of the program administrator' (Mitchell list point 1), 'transparency and accountability' (Mitchell list point 2), or 'due process for athletes' (Mitchell list point 5).

Simply stated, Ww remains sceptical, as to the independence, transparency and due process to athletes offered via WADA, which has known various conflictual situations in its brief history, many of which were tied to a phrase similar to: "Dick Pound, president of WADA, said......."...



FLASH: French agency AFLD has matched the USADA suspension in the Floyd Landis case of suspected testosterone doping at the 2006 Tour de France. Few credible details have been published already, as to the decision taken by AFLD.

Watching WADA,

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WADA appeals, loses ASADA – Karapetyn case

CAS 2007/A/1283, WADA v. ASADA, AWF & Karapetyn

Whether an Athlete's properly–imposed sanction should be overturned, in light of that sanction not having disqualified an athlete from a Gold Medal won subsequent to the original testing, and prior to the decision taken, was an appeal lost by WADA in the case of Australian weightlifter Aleksan Karapetyn.

WADA based its appeal on seeking support at CAS for its ambiguous drafting language of WADA CODE 2003 Article 10.7 (“Disqualification of Results in Competitions Subsequent to Sample Collection”), which calls on ADOs to strip athletes, who were determined to have violated an anti–doping rule, of their interim victories, results, prizes or medals. However, the CAS decision agreed with the Respondents' arguments, which invoked among other items, the language of the Article itself, which includes the phrase “...unless fairness dictates otherwise, ...”.

The atypical factual aspects of this case reinforce the WADAwatch stance regarding apparent overreach by WADA in seeking judicial interpretation that reinforces the misaddressed elements within its CODE.

The relevant FACTS:

Karapetyn was, and may again be (in the future) an Australian weightlifter (in the 94 kg class), who had represented Australia at the 2000 Olympics, as well as the 2002 and 2006 Commonwealth Games. At these last Commonwealth Games he won a Gold Medal as a competitor on 21 March 2006.

However, some nine months earlier, Mr Karapetyn competed in the Mermet Cup, in the United States. Samples he had submitted on 26 June were tested at the UCLA laboratory, in theory one of the best in the panoply of WADA–accredited labs. His testing results were announced as negative.

Note that labs are not required to report on drugs that may be found, but which are not on the Prohibited List: one presumptively obvious reason would be the additional expenses incured by “non-List testing”. Thus the substance Benzylpiperazine (BZP) was not tested by UCLA at the time: this substance was not included on the WADA Prohibited List as an S6 Stimulant until the 2007 List was published.

BZP could only be considered to be 'on the List' through the 'catch–all language' regarding Section S6–Stimulants: “...and other substances with a similar chemical structure or similar biological effect.”

Meanwhile, back in October of 2006, four other Aussie weightlifters had tested positive for BZP, and at some subsequent point in their procedures (Investigator's report of December 2006), two things were revealed: one, that their 'avenue to damnation' was through use of a nutritional supplement by a manufacturer who had both introduced the BZP into the supplement improperly, and then failed to account for that inclusion on the package labelling, and two, that the weightlifters named Mr Karapetyn as another teammate who had ingested this substance.

Finally Karapetyn had tested cleanly one month prior to the Commonwealth Games, as well as during, and one month after: all these tests included BZP screens.

Due to the facts found by the investigation into the other four weightlifters, the Australian Sport Anti–Doping Authority (ASADA), the Australian Weightlifting Federation (AWF) and the Australian Sports Commission undertook a new investigation, begun 17 March 2006, concerning only those four athletes. Karapetyn was interviewed as a witness, on 13 April 2006.

In June 2006, as this investigation proceeded, the UCLA lab was requested to re–run Karapetyn's electronic data files produced from the Mermet Cup testing procedures in 2005; UCLA's lab announced a positive result for BZP, nearly a year after it first reported him as clean.

Two letters came to Mr Karapetyn: the first in November 2006, ASADA advised him that the sample from the Mermet Cup in 2005 was positive, and the second (actually the third, the second having been misaddressed) informing him of the ASADA decision that he'd committed an anti–doping rule violation, for this BZP.

See the CAS Opinion for more substantive discussions of the relevant ASADA decision, at paragraphs 11 – 14. Suffice to add that ASADA, from language found in its Policy Article 13.8 (Identical to WADA CODE Article 10.7), informed the athlete that his ineligibility for two years was imposed from 22 March 2006, until 22 March 2008, and that his Mermet Cup results from 2005 were disqualified, as to results, winnings and prizes.

Thus Karapetyn's results in the Commonwealth Games, which he'd won on 21 March 2006, were allowed to stand. ASADA reasoned that it had discretion NOT to hold that Karapetyn should be disqualified from his Commonwealth Games gold medal, as could be deduced through the discretion allowed under Policy Article 13.8, and addressed its reasons for doing so in its Decision.


Searching to reinforce the WADA CODE, WADA appealed.

ASADA, AWF and Karapetyn were, respectively, Respondents One, Two and Three in the case WADA brought to CAS. WADA offered its legal arguments and interpretations to the CAS Panel in what could be called an appeal of the ASADA decision as constituting 'Abuse of Discretion' from AWF Policy Article 13.8 (identical to WADA CODE 2003 Art. 10.7).

CAS dismissed WADA's appeal.

In doing so, CAS refuted the World Anti–Doping Agency's apparent contention: that an ADO with the authority, via the WADA CODE, to 'disqualify results in competitions subsequent to sample collection' MUST do so, in spite of the clear wording “...unless fairness dictates otherwise, ...”.

CAS reasoned that ASADA had acted within the discretion provided specifically through the AWF's adoption of the WADA CODE into its Policy, when that discretion was “...applied in good faith, without bias, error, or undue influence.”

Specifically: “ASADA considered the athlete's inadvertent taking of the banned substance nine months before the Commonwealth Games, the fact that the stimulant in question has no lasting effect on the athlete's performance and that his doping control results one month before, during and after the Commonwealth Games were negative for any prohibited substances.”

Formulating a decision that confirmed the ASADA's proper use of discretion within the 'fairness' doctrine of Policy Article 13.8 (CODE 10.7), the CAS Panel opined that it could have, in a case where it found an ADO may have acted in bad faith, intervened against the taken Decision “to assert its own views of fairness”.

In WADA's submitted arguments, it argued that it is a rule, “...to disqualify results unless the athlete has shown exceptional circumstances”. CAS disagreed in forceful terms, stating that there was no basis in the language of the AWF Policy: WADA (nor AWF by integration of CODE Art. 10.7 as written) had not expressly qualified or quantified express measures of fairness within the CODE.

Prior CAS decisions that WADA introduced in support of its appeal, were evidently all distinguishable by either the Respondents' arguments or through CAS' reasoning itself.

A further question that was raised by ASADA (see para. 43 of the CAS decision), is the highly important issue of standing, in the multiple parties that could effect an appeal to CAS. In this case, ASADA posited that there could be cases in which an appeal was brought to CAS, in order to ameliorate the standing of a lower–finishing Athlete; if a Silver Medalist could bring appeal when the Gold Medalist is not facing loss of medals and results.

In the CAS decision, this point was left without analysis, as the described situation could only be hypothetically answered.

This case offers another example of WADA's quest to utilize, through CAS appeals (time is costly as well), a post–drafting means of expanding and refining the juridical reach of the WADA CODE.

This is the same 'remedy' suggested by the authors of the recently published Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti–Doping Code with the Fundamental Rights of Athletes: that CAS case–law could or would provide necessary or beneficial 'judicial interpretation' to bear upon cases involving 'Aggravating Circumstances' (CODE 2007 Article 10.6). The authors chose not to support the concept that WADA should express a definition of the term 'aggravating circumstances', either in the APPENDIX of Definitions or within Article 10.6 itself (see this earlier WADAwatch post).

WADAwatch points out that the legal point WADA argued, in its appeal of the Karapetyn case decision by ASADA, reflects on persisting ambiguities in the WADA CODE as drafted between 2001 and 2003. With subsequent adhesion of Signatories to WADA (eg: AWF, ASADA), and adoption and implementation by these Signatories of the CODE's substantive language, they strive to be in compliance and conformity with its Articles, vis–à–vis the Athletes under their regulatory situation.

However, four years after the CODE was accepted, this CAS decision demonstrates yet again, that substantive ambiguities still exist. A ruling on interim results and the 10.7 'fairness doctrine' in WADA CODE 2003 Article 10.7, was not determined until the Decision was published 16 November 2007: nearly one month ago as this column is written.

WADAwatch stridently believe that a global system should not allow itself to abuse either Athletes or its member Signatories, most of whom are striving to 'toe the line', which have been repetitively forced into the role of 'judicial guinea pig', due to an apparent series of WADA drafting imprecisions.

If WADA persists on a reliance of CAS to define what WADA could have, but did not define itself, we may see the year 2010 or 2011 before a first CAS determination is revealed to the world of what WADA means by 'Aggravated Circumstances', in a decision potentially of benefit or detriment to that named Athlete.

NB: For those not inclined to read the final Decision by CAS in the Karapetyn case, WADA was forced to pay some six thousand Swiss francs towards the defense costs incurred by ASADA in the Appeal.

Adding in costs of in–house staff case preparation, and outside counsel legal fees, WADAwatch has to wonder if proper drafting exercises would help defray the long–term increases in WADA legal expenditures? The budgetary constraints confronting WADA today are known to be tied to its receipt of donation funding in US dollars, with the constraint of spending those, through its operational budget in Canadian dollars (see this prior post from the WADA World Conference on Doping in Sport, held in Madrid in November 2007).

Weightlifter Karapetyn keeps his Gold Medal from the 2006 Commonwealth Games, won nine months after testing 'negative' by UCLA, and three months prior to the retested sample being re–examined for BZP.

AWD and ASADA, representing Signatories (as an ADO and a National Federation) are allowed by CAS the discretion plainly expressed in the 'fairness' doctrine of Policy Article 13.8, as ordained by the AWF implementation of WADA CODE 2003 Article 10.7.

Finally, WADA is allowed to muse on the short– and long–term economic benefits of proper drafting of its international, quasi–treaty status documents, versus losing cases that neither expand its reach into the Signatories' decisions, nor reduce ambiguous aspects found in the CODE.

The opinions expressed by WADAwatch are strictly formed with the purpose of inciting WADA to adhere to its Fundamental Rationale, achieve its goals and fulfil the aspirations of its Signatories, in achieving the highest possible level of objective, neutral science in sport-doping control.

Watching WADA,

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WADA meeting with Victor Conte

From the cbc.ca website, comes the article of the week:

Victor Conte meets with WADA's Dick Pound

"I did provide specific information regarding how athletes involved in doping around the world are so easily able to circumvent the anti-doping procedures in place."

[.....]

“As someone who was able to evade their system for so long, it was easy for me to point out the many loopholes that exist and recommend specific steps to improve the overall effectiveness of their program.”

And an interesting Poundian remark followed:

"We will try to build up a relationship where he will have confidence in me using the information he has in the right way. We will try to get a better handle on what he knows directly, and what he knows as having been part of an overall operation."

There is ample evidence already in the world's eye, which suggests that the Conte's or the BALCO's of the world have the upper hand, regarding the eternal struggle between the science of doping, and the science of ANTI-doping.

It will be interesting to monitor, during the winter months to come, how Dick Pound will pass this assignment to his successor John Fahey, and to the WADA Committee on Laboratory Standardization.

Until such time as WADA can convince Laboratory Directors, from all the continents, to align their material assets and scientific methodology to the highest standards possible, it is the fear at WADAwatch that confession, more than testing, confirmation and arbitration, that will propel WADA forward on its quest to eliminate (to the greatest extent possible) doping from human sports achievement.


News FLASH: Geneva, Switzerland, announced its candidature for the 2018 Winter Olympics, today :-)

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WADA meets BALCO on Wednesday...

From writer Philip Hersh, an article discussing the meeting tomorrow, Wednesday 12 December, between former BALCO owner Victor Conte and outgoing (as in 'buh-bye') WADA president Dick Pound:

Conte:
Drugs in elite sport 'rampant'

If BALCO founder Victor Conte means what he says, the International Olympic Committee is wise to wait for the other shoe to drop rather than risk putting a foot in its mouth with a hasty decision to redistribute the five 2000 Olympic medals forfeited by former U.S. track and field star Marion Jones for use of banned drugs.

Conte is quoted as saying:

"Other athletes are in line to receive Olympic medals or medal upgrades [.....] Several of Jones' competitors may have also used performance-enhancing drugs, and it's important that what I have to share be considered before the IOC awards any medal upgrades."

WADAwatch is hoping that the IOC, faced with the immense task of now developing fair rules about medal-revocation in light of the Marion Jones scandal, is able to accomplish this major and overdue task in a calm and illustrative manner.

Ww has often contemplated, in light of the discussions that invariably trail after the Jones case saw her with her being stripped of the five Olympic medals from the games in Sydney, how the case regarding Greek athlete Katerina Thanou would evolve.

Based on her 2004 Olympic suspension (false information re: whereabouts and missing tests), the world may well wonder if she was 'doped' already, in 2000, or whether she was CLEAN, and resorted to doping after Jones had vanquished her own dreams?

IF Thanou can convincingly argue that she never doped until beaten in Sydney, she should be granted the Gold Medal from the Sydney 100meter race.

This may cause a 'moral dilemma' for the IOC, but it would, if true, be legally and ethically justifiable.

So we continue, to

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WADA: case of obstruction...

After writing yesterday's post, "WADA: way to recognise WADAwatch", it seems that there may be yet another major issue regarding Article 10.6.

Today, WADAwatch is concentrating on the last substantive statement from the COMMENT to Article 10.6:

“... deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation”

... which is a COMMENT (ie: not part of the regulation, but a subsidiary text that *should* aid in interpretation, since WADA abstains from offering a DEFINITION) presuming to offer definitive guidance as to one facet of what will be considered "Aggravating Circumstances". Likely, it would be used towards the enhancement of Athletes', or other Persons' future sport-doping litigation suspensions, by raising the suspension period from maximum two years, to four.

Yesterday's post focused on acknowledging the two eminent sport-doping scholar-authors who had drafted their 'Legal Opinion' on the relationship between WADA CODE draft Article 10.6 and fundamentals of Human Rights law, especially in Europe. WADAwatch also rebutted their contentions, in an effort emphasizing this blog's focus and dedication to helping WADA become more a staunch, neutral and trusted agency.

The inclusion of this new COMMENT by WADA has not yet received, in most legal quarters, the rising-level-of-hysteria treatment that it potentially merits.

Regarding the inclusion of 'obstruction ... in adjudication' as a grounds for increasing an Athlete's suspension under grounds of 'Aggravating Circumstances', WADAwatch is on record as stating (in yesterday's post):

Is WADA attenuated to the idea that several Athletes must suffer the consequences of its own unclear law-drafting being rendered 'CAS-worthy' (why does WADAwatch shudder at the thought of Dick Pound at the helm of the Court of Arbitration for Sport?), as a better alternative than that of drafting this properly?

In other words: why should WADA not prove its legalistic capacities by stating what it wants from the first inception and acceptance of the revised WADA CODE, rather than allowing a separate legal body to redefine or improve the CODE, through a judicial case-law process of potentially several years' duration?

Yet WADAwatch is very concerned by the lack of holistic beneficence that could be added, to find a BETTER way to increase the frequency and valour of confession ... without digressing from the mission for which WADA has been conceived and invested.

As it now stands, WADA and its CODE Article 10.6 (especially through the COMMENTS) are seeking to compel confession via the threat of increased suspensions. This may work... sigh...

It may also create another legal distortion, of which the WADA-accredited laboratories may be the unstated beneficiary.

Among several earlier posts (at WADAwatch and sister publication crystelZENmud), the concept of 'CONFESSION' has been highlighted, such as in this post "Madrid NINE: WADA CODE in the nose" from October, 2007:

WADAwatch proposed that the Marion Jones / Bjarne Riis models of confession (voluntary as was Riis, more-or-less compelled as was Jones), are one of WADA's strongest weapons. [.....]

And excerpted from this post, 8 October 2007 - Confessions of Marion:

After all is said and done, a confession will have proven two things: that the testing was not able to procure the truth in this case, and that confession did.
[.....]

To dismiss them out-of-hand, to deny the cathartic relevance of healing through confession, and to dismiss them as the 'greatest sports frauds in history' [...] reveals a short-sightedness that is typical in the Sporting world, and especially with those who now control the anti-doping world.

Confession proves more than testing: support it. Chastise firmly, do what must be done, but USE THEM! Bring them to see teenagers, make them wallow a bit in their suffering, as they habituate themselves to their new non-status, tis they who could be the beacons of reinforcement, to the minds of the young and the wavering, and their Parents, and Coaches.

If a legally-trained individual does not appreciate the difference between any induced confessions stemming from the 'obstruction... in the adjudication' Comment to Article 10.6, and the pure power to influence true confessions via any number of possible means within the power of WADA, perhaps an ages-old analogy is best:


WADA as TORQUEMADA


"Our tests confirm you are a WITCH, confess!"

"BUT, my noble Inquisitor, I am no witch: your tests were filled with corruption and malice..."

"AH-ohh! You dare dispute my tests? You obstruct my process? Fie on thee, scurvy knave...you'll get the rack for this... unless... EUREKA! We will impose Article 10.6 and the Comment, you dog: you'll not see the light of day for FOUR YEARS..."

Please, Masters of WADA, please! Re-think your priorities, and give proper drafting a chance to show how fair and excellent you are...

REDRAFT OR DELETE 'obstruction ... in adjudication', before it's used improperly to hide faulty laboratory work!

The opinions expressed in this WADAwatch blog, are strictly formed with the purpose of inciting WADA, its goals and aspirations, toward achievement of the highest possible level of objective neutral control for sport-doping.

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WADA: way to recognize WADAwatch...

/This post was revised 11 Dec 2007/

WADAwatch is ON the radar screen.

nullum crinem, nulla poena sine lege
"no crime, no penalty without law"

WADAwatch is gaining legitimacy, for espousing one clear and universally-supportable point, in the world of sport doping control.

Which point?

That WADA as constituted can only succeed, if it takes the accreditation of laboratory performance as its most important, most neglected criteria in the quest to improve its fight against doping in sport.


WADAwatch followers may not have read:

"LEGAL OPINION ON THE CONFORMITY OF ARTICLE 10.6 OF THE 2007 DRAFT WORLD ANTI-DOPING CODE WITH THE FUNDAMENTAL RIGHTS OF ATHLETES"

Which cites (pdf: page 29, footnote 89) from this WADAwatch post from 17 October 2007:

WADA: Aggravating Circumstances

“WADAwatch simply wants it on the record, that WADA has published this same clause three times this year, without determining the need to add 'Aggravating Circumstances' to its list of definitions. […] If it does not do so, endless arbitrations will indubitably ensue from the ambiguity that arises.”
(text attributed by the article's authors to WADAwatch)

The eminent scholars who collaborated and drafted that report, Professeur Gabrielle Kaufmann-Kohler, and Dr. Antonio Rigozzi, have done honour to their task at hand, which was to offer a legal opinion as to the foundation for introducing this newly-crafted WADA CODE 2007: Article 10.6:

Aggravating Circumstances Which May Increase the Period of Ineligibility

However, in spite of the well-founded and articulate reasoning of Prof. Kauffmann-Kohler and Dr. Rigozzi (to follow), which certainly supports WADA in its viewpoint, its drafting and its quest, WADAwatch cannot but remain adamant in asserting that this reasoning is likely to create incredibly bad law, if implemented as such.

Quoting more from that WADAwatch post from October:

"WADAwatch believes strongly that this new sub-Article should be reinforced by an impartial and objective definition of the term itself, that Signatories can be on notice of, and for which Governments can incorporate this change into applicable legislation, where such may be ordained."

The authors have done immaculate work, in proffering their synthesis of the legal parameters promoted by the existing examples offered in the Comment to Article 10.6.

Their paragraph 93 is very well crafted, enunciating the essence of bounds and constraints provided by this Article:

When looking at the list of examples provided in the Comment of Article 10.6 of the 2007 Draft Code, it appears that the essence of this additional element is twofold:

(i) the idea of repetition and/or plurality. This is evident from the wording of the first two examples, i.e. “the Athlete or other Person committed the anti-doping rule violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit anti-doping rule violations” and “the Athlete or other Person used or possessed multiple Prohibited Substances or Prohibited Methods or used or possessed a Prohibited Substance or Prohibited Method on multiple occasions”, (fn 106) or

(ii) the idea of frustration. This idea is evident from the third and fourth examples, i.e. “enjoy the performance-enhancing effects of the anti-doping rule violation(s) beyond the otherwise applicable period of Ineligibility” and “deceptive or obstructing conduct to avoid the detection or adjudication of an anti-doping rule violation”.

WADAwatch notes that the synthesis of these terms, the concepts of repetition, plurality and frustration, are worthy and attainable goals to implement in the new CODE.

But!

If implemented as such, how will Athletes know that THEIR case is attributed to the 'Aggravating Circumstances', without a simple definition such has already been provided by WADAwatch? What 'notice' does this Article provide, especially once translated into other languages?

Drafters of international standards must understand and express, to the fullest degree possible, their clear meaning in such a case, so that future litigations (those which MUDDY the CRYSTALLINE drafted laws) do not have to squander precious judicial time and resources.

There exists ample space within the WADA CODE Appendix 1, to include the following three lines of definition:

AGGRAVATING CIRCUMSTANCES:
are circumstances that increase the seriousness or outrageousness of a given crime, and that in turn increase the wrongdoer's penalty or punishment.

NB: If WADA wants to stay on record, by demonstrating its preference that ADAMS: "the Anti-Doping Administration and Management database, is defined in its legal documents, while ignoring the more important definitions such as 'Aggravating Circumstances', there is a miscarriage of justice, or at least of priorities, in the administration of its mandate from Sport and Governments.

Adding the above definition, to the APPENDIX for definitions, costs nothing, and renders WADA more transparent: why resist?

An answer may be found, in the discussion brought forward by our esteemed colleagues, regarding the concept of 'frustration' as denoted in the Comments to Article 10.6:

“deceptive or obstructing conduct to avoid the ... adjudication of an anti-doping rule violation”.

How would it possibly be considered aggravating circumstances, for the concept that any Athlete, who may legitimately have doubts about the conduct of prosecuting ADO staff, or deficiencies found in the Laboratory Documentation Package (LDP), and who may thus raise legitimate defence issues, could be found to be in violation of THE COMMENT TO Article 10.6, because his or her defence questions or requests additional discovery documents, has thereby demonstrated "obstructing conduct to avoid the ... adjudication of an anti-doping rule violation"?


And upon whom would that determination fall?


Clearly WADA wants to induce Athletes towards confession after testing positive.
That is not wrong...

Clearly WADA wants to reduce exposure to increased legal expenses, and appeals that stem from Decisions that result from present CODE ambiguity.
That is not wrong...

Clearly WADA desires to create a better system, after the great expense and efforts taken conjointly between itself, its Committees and its Stakeholders.
That is not wrong...

YET, what has never been clear from WADA, and remains a strong facet of the myth of WADA...

SIDEBAR: Read any press article about Floyd Landis, in which his sustainable complaints regarding 'sloppy lab procedures' were virtually ignored throughout the nine-month period prior to their unveiling in his California hearings, and which were offered absolution by the Majority Decision, while forming the heart of the Dissent by Christopher Campbell.

... is its bizarre commitment (demonstrated more this year than ever) to absolving laboratories of any further nuance of control, dependency and consistency.
That is very very wrong...

When WADA-accredited laboratories are 'allowed' to produce shoddy work, in violation of the WADA CODE, ISL and IST, etc, and still convict an Athlete, it adds insult to injury when the Athlete is told that, due to his or her pursuit of justice, that this may be determined, ARBITRARILY AND CAPRICIOUSLY, to be 'Aggravating Circumstances' (as undefined by WADA, as supported by the above-cited Legal Opinion), could not be closer to a violation of Human Rights, and a clear example of nullum crinem, nulla poena sine lege.


Clean Athletes have rights also.

Improperly tested Athletes, especially those for whom certain 'reputable' journalists (one certain French sports-journal comes instantly to mind... l'EQUIPE??) publish illegal and premature A Sample Test results (without fear of any WADA disciplinary action), are fully justified in seeking the full amount of evidence available, beyond the LDP, without WADA seeking to impose a disproportionately long suspension, by claiming that the Athlete was guilty of '... obstructing conduct to avoid the ... adjudication of an anti-doping rule violation'.


Clean Athletes want to win and receive the glory from a balanced competition from an equalized 'playing field'.


WADA could advance this cause by light-years, simply by agreeing with WADAwatch that these two lacunae should not be allowed to fester and impose on the CAS innumerable cases of statutory interpretation.

DEFINE: "AGGRAVATING CIRCUMSTANCES"
(from a model of WADA's choice);

CLARIFY, DEFINE OR REMOVE: "...obstructing conduct to avoid the ... adjudication of an anti-doping rule violation".


This last component adds an overly vague degree of folly to the objective and sincere goals of WADA, and will not be able to withstand the real-world problems that are commingled in the newly-revised WADA CODE 2007.

In their article, Kaufmann-Kohler and Rigozzi state the following (p. 30), regarding the principle of judicial review:

Indeed, according to the European Court of Human Rights, it is not necessary that the requirement of foreseeability derive in toto from the rule itself. It can also be met through judicial interpretation,(FN 92) which often relies on official comments made by the drafters of the rules (travaux préparatoires).

Is WADA attenuated to the idea that several Athletes must suffer the consequences of its own unclear law-drafting being rendered 'CAS-worthy' (why does WADAwatch shudder at the thought of Dick Pound at the helm of the Court of Arbitration for Sport?), as a better alternative than that of drafting this properly?

The opinions expressed in this WADAwatch blog, are strictly formed with the purpose of inciting WADA, its goals and aspirations, toward achievement of the highest possible level of objective neutral control for sport-doping.

Watching WADA for you,

..........@..........WADAwatch

Wall Street Journal 'DOPING 101'

Many thanks to VeloGuy for pointing to a WSJ article on doping in sports; it's thorough, and neutral, with some interesting quotes.

The Inside Dope on Sports Testing

Skip Rozin, author of this article, had some interesting quotations, including this one by Don Catlin, former director of the renowned UCLA laboratory, one of WADA's 33 currently accredited labs:

If the door is open to cheating, can an honest athlete also be prosecuted? There are precautions. If the "A" sample tests positive, the athlete can opt to have the "B" sample tested. If both tests are positive, there is an appeal process. Ms. Hingis originally announced her retirement on Nov. 1 after both samples tested positive. Then a week later her agent told the BBC she would fight the test.

The two samples and method of appeal are an effort to avoid athletes being falsely punished.

"I'd like to think the odds of that happening are low -- it's a disaster when it does," says Don Catlin. "How often it does happen I can't tell you, but nobody's going to raise the flag and say I had a problem with a test in my lab. I have my ear to the ground and I hear of such things, but it's hard to document."

One wonders if it is ethical to implement 'aggravating circumstances' rules against Athletes in the new WADA CODE 2009, while allowing 'rumours' of negligent or fraudulent laboratory work to circulate amongst the chosen, in the higher reaches of the World Antidoping Universe?

Similarly, the idea is hard to hold back, that if Mr Catlin is in a position where his testimony is 'fatal' to certain Athletes, such as Floyd Landis, and yet, he has 'an ear to the ground' and is hearing 'such things' exist that fall in the rubric of laboratory error, is he not proving to those of us, who support the ends that WADA seeks, but do not support its MEANS of so achieving, that the system as envisaged is still fatally flawed?

Words to ponder....while

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Part TWO: WADA laboratory to standardize...

In the body of the CODE...

(Part ONE of this two part essay dealt with the situation of legal imbalance, as established in the documents that created the World Anti-Doping Agency, its CODE and International Standard for Laboratories.

Focus on these imbalances led to this blog: WADAwatch, and an eight-page Questionnaire for Labs. The starting basis of analysis, consisted simply of agreeing with WADA that standardization and harmonization must begin with the laboratories that have been 'honoured' with the title of "WADA accredited".)

In the body of the CODE...

Since its inception, WADA has not laid out a proper legal path that would hold the accredited Laboratories to simple performance of their legal duties.

Simply put, WADA laboratories must perform nothing less than 100 per cent supportable scientific tests, that display penultimate reliability, reproducibility and consistency, so as to avoid ambiguities that result in loss of scientific credibility.

The mistaken path began with Article 3.2.1; WADA granted its laboratories a 'presumption' that their work as to Sample analysis and Custodial procedures would comply with the ISL, while the Athlete could rebut that by establishing that a departure from the ISL occurred.

The failure-factors here are associated with the inequity of a shield being offered, through which a laboratory could hide any malicious agenda, incompetence, or worse failures, while affecting an Athlete's livelihood. WADA appears not to grasp how this failure also carries augmented legal costs that any accused Athlete must bear, to overcome the presumption and the subsequent burden-shifting(s).

Although WADAwatch is convinced that the best purposes of WADA would be upheld only through parallel application of the 'strict liability' rule to both Athletes and laboratories, a CAS arbitrator in Madrid supported the presumption unconditionally, commenting that “you couldn't operate without that presumption”.

WADAwatch remains unconvinced that this is so, especially if removal of the presumption forced more intense efforts to do cleaner science in these labs.

But Article 3.2.1 is only the tip of the iceberg.

In Article 6.4, the CODE mandates (“shall”) its labs to follow the ISL. Remember that 3.2.1 already stipulated the presumption that this had occurred in particular cases (Article 3 being concerned with 'proof of doping'; sub-Article 3.2 concerns establishment of facts and presumptions).

Thus there exists the paradox that a presumption is granted to a laboratory in 3.2.1 that it did perform analysis and custodial duties according to the ISL, prior to its receiving the duty (shall analyze in conformity), as expressly granted (in 6.4).

In most legal works, such as treaties or this WADA CODE, it is desirable to establish a duty (shall analyze in conformity), prior to offering a presumption that work performed subsequent to this grant (and accreditation!) has been presumably performed in conformity.

The reasoning, which underlies the paradoxal 3.2.1. presumption, fails emphatically as we pass from Article 6.4 to Article 7.1 and 7.2.

Newly-modified, this Article on Results Management prescribes regulations for the proper management of confidential testing results. In its relevance to this discussion, it is timely to ponder why WADA moved away from its reasonable wording “...any apparent departure... that undermined the validity” toward “...any apparent departure... that caused” the AAF. There are no notes that indicate the substantive reason for changing this.

Legally speaking, it is quite a farther leap in the legal arts, to prove that an apparent departure 'caused' an AAF, than to prove that the apparent departure 'undermined the validity'. In choosing this variation, WADA and its Signatories appear to be distancing themselves from conceding a possibility of laboratory incompetence.

As one example, a severely flawed Chain of Custody document could seriously impact the validity of an AAF result, but unless the Athlete can PROVE that the flawed document concealed a laboratory's replacement of his or her sample with that of another competitor (negligently or through... sabotage?) there is little chance to prove that it 'caused' the AAF.


Thus might one surmise that WADA is redrafting its rules simply to win more cases? IF on bad scientific methodology (to a level that would have severe consequences for a lab's accreditation) and poor rules, an empire is made, so be it...

However therein lies a greater debacle, if one reads Article 7.1 & 7.2 carefully.

Simply described: WADA, via Article 6.4, holds labs to high standards of performance. Upon receiving results (worthy of leaking?) at an Anti-doping Organization (ADO), Article 7.1 tells that ADO to analyze the positive A sample results of the lab, to ensure that (among other things) no “... apparent departure... caused” the AAF.

And, having ensured that (if such be the case) no apparent departure had caused the AAF, the ADO rightly should inform the Athlete as to the situation, and his or her rights for B Sample confirmation testing. This creates such an obvious void that one is hard-pressed to understand how WADA's Signatories avoided this for four years.

PROBLEM ONE:
There is no statement in CODE Article 7, as to the procedures to follow when an ADO does find an apparent departure that caused the AAF. As well, or at least, there exists no reference to ISL Article 5.3.8, which expresses procedures for 'complaints of nonconforming testing work' pursuant to the ISO/IEC 17025:2005 Section 4.8 (without naming potential parties, as one could imagine the ADOs who may have observed an apparent departure).

[here, from ISO:IEC 17025/2005:
4.8 The laboratory shall have a policy and procedure for the resolution of complaints received from customers or other parties. Records shall be maintained of all complaints and of the investigations and corrective actions taken by the laboratory (see also 4.11).

4.11.5 Where the identification of nonconformities or departures casts doubts on the laboratory's compliance with its own policies and procedures, or on its compliance with this International Standard, the laboratory shall ensure that the appropriate areas of activity are audited in accordance with 4.14 as soon as possible.]

PROBLEM TWO:
There is no statement in CODE Article 7, which allows an ADO or other Signatory to convene any WADA disciplinary procedures for a laboratory's apparent departure that caused the AAF.

PROBLEM THREE:
There is no statement in CODE Article 7, which forces the ADO to reveal an apparent departure that caused the AAF to the Athlete whose test result has apparently been improperly determined.

In Article 8, fair hearings are defined, yet the CODE could simply emphasize that the use of the term 'Person' implicates all Signatories, ADOs, WADA and others who may have violated WADA CODE Articles, by simply redrafting these to be more definitive in the range of 'Person(s)'. This would aid, when matters involving confidentiality or laboratory suspensions are to be properly adjudicated. Further reasons for doing this will appear soon enough, with analyses of Article 13 (below).

WADAwatch has promoted a discussion, that the conflict of presumptions (Art. 3.2.1) that precede duties, (Art. 6.4) and departures (Art. 7.1 and 7.2) that, once found, are relegated to a judicial no-man's land (No substantive redress; see Problems 1-4), regarding potential laboratory failures are inadequately addressed in the CODE.

Thus it is no surprise that the CODE includes, in a long leap of unsupportable logic, beyond the pale of normative legal writings, the means in Article 13.5, whereby such laboratories may appeal from their mystery suspensions (apparently only found in the ISL).

PROBLEM FOUR:
The CODE drops the ball by expressing how a laboratory shall appeal a decision taken by WADA to suspend it, after failing to delineate either a) mandatory CODE Articles addressing how ADOs proceed on their justifiable findings of apparent departures, b) in the alternative, clear, precise CODE reference(s) to any relevant ISL Articles on suspensions or revocations.

That leads any legal reader to only one justifiable conclusion: that the sole prerogative to pursue a laboratory resides within the ARBITRARY AND CAPRICIOUS decision of undefined WADA staff.

• The ADOs have no authority: they cannot address in Article 7 how to proceed on any 'apparent departure'.
  
• The IFs don't have the authority also, for much the same grounds.

In-depth study of the WADA ISL shows a presumption on WADA's behalf that solely through failure to perform a WADA Proficiency Test series could a laboratory find itself suspended or dis-accredited by WADA. In ISL Article 4.4.11.2 the listed criteria for suspension omit any input stemming from ADOs or Signatories.

In most large companies, a policy towards employees can have as a model the formula 'three written warnings in 12 months is sufficient grounds for termination'.

Why WADA hasn't seen any substantive reason to render transparent its means for imposing laboratory discipline, is still a meritorious question.

In this writing, WADAwatch skips over the serious problem of multiple party appeals allowed against a finding in favour of an Athlete, found in Article 13.2.3; a double-jeopardy situation that should be heinous in the concept, is outside the balance of this paper.

Terminating this CODE review, it is imperative to address Article 20, which defines to a degree, the roles and responsibilities of each category of WADA Signatories. Common to every class of Signatory, is the vigorous pursuit sub-Article (eg: Article 20.5.6):

20.5.6 To vigorously pursue all potential anti-doping rule violations within its jurisdiction including investigation into whether Athlete Support Personnel or other Persons may have been involved in each case of doping.

As WADAwatch continues to stress the importance of these newly-accepted clauses, since their inclusion within each class of Signatory...
(listed: IOC (20.1.7), IPC (20.2.7), IFs (20.3.9), NOC/NPCs (20.4.8), Major Event Sponsors (20.6.5))

... WADA should, by the wording in previous Articles, be establishing a solid legal basis for any Signatory to address the situation of an apparent departure emanating from faulty or negligent laboratory work, since a laboratory qualifies under the WADA Definition of a Person.

But maybe Mr Andersen, Director of the WADA Standardization and Harmonization Committee, is right?

He claimed, over lunch in Madrid, that all the observed lacunae in the CODE addressed by WADAwatch, are found in the CODE's progeny:

do the ISL and IST cure all?

One aspect is readily clear: the words 'apparent departure' do not appear anywhere in the ISL. This casts grave doubts on the ability of the ISL or IST to regulate a problem, when the basic terminology to be regulated is non-existent.

Reading ISL Article 5.3.8 (Complaints), one sees that an imprecise wording allows for complaint handling to be “in accordance with ISO/IEC 17025:2005 Section 4.8”, however no ISL text regarding who may complain has been expressed. Here, again, are the relevant Articles from ISO/IEC 17025:2005:

[ISO:IEC 17025/2005:
4.8 The laboratory shall have a policy and procedure for the resolution of complaints received from customers or other parties. Records shall be maintained of all complaints and of the investigations and corrective actions taken by the laboratory (see also 4.11).

4.11.5 Where the identification of nonconformities or departures casts doubts on the laboratory's compliance with its own policies and procedures, or on its compliance with this International Standard, the laboratory shall ensure that the appropriate areas of activity are audited in accordance with 4.14 as soon as possible.]

PROBLEM FIVE:
One could improve the ISL by expressly including all classes of Signatories that have the power to complain to WADA about shoddy lab work processes or procedures, including leaks of confidential testing results to the press. One could also hope that reference to ISL Article 5.3.8 be expressed in the CODE, to enforce the regularization of the procedures, rights and responsibilities that are shared by WADA's Signatories.

PROBLEM SIX:
One could improve the ISL by expressly delineating the clear steps for WADA to respond to investigation requests of laboratories by its Signatories, to implement those investigations, to render transparent the results of those investigations, and expressing its range of punitive suspensions.

Regarding the lack of usage of 'apparent departure' in the ISL, what does appear in Article 5.3.9, is the phrase 'any non-compliance or procedure'. However, the only application in this context, is regarding a laboratory's internal requirements to document such non-compliance or departures as part of the permanent record for that Sample.

It must be stressed, however, that any improvement to the ISL, without reference from the CODE to such ISL Articles, would be less forceful, than its inclusion within the CODE.

A further reminder, also, that a laboratory that departs from proper procedures, must keep record of that in its permanent record for that Sample. Should that departure cause an AAF, we revert to the problems discussed earlier.

An ADO should be able to do more than 'complain', and the WADA CODE does not express how Signatories can enforce WADA's obligation to investigate these situations. An ADO that proves a 'departure' had caused the AAF, and that the departure came from the laboratory personnel, ought to be able to justify its decision to halt disciplinary action against an incorrectly-accused Athlete, without fearing the ogre of an appeal action by any other potential parties (altered for the 2007 CODE: WADA, IF, IOC, NADO of country of Athlete's residence).

In ANNEX A, Article 3.4.5, WADA finally puts into writing the concepts of 'Overall Laboratory evaluation'. It lists “factors for consideration”, which “include, but are not limited to (eg: false positives, false negatives,... responsiveness to WADA, etc.)”. With this phrasing, the list could be persuasively expanded to include 'apparent departures' or 'non-compliance or departures', and/or complaints pursuant to the ISO/IEC 17025:2005 Section 4.8 procedures, adopted in ISL Article 5.3.8.

SUMMARY

WADA cannot claim to have achieved 'Standardization and Harmonization' concerning laboratory work procedures and results, until it acts to rectify the omissions of laboratory performance control and oversight, through inclusion of the family of Signatories in the manner suggested herein.

Signatory Federations and ADOs, whose reputations are as dependent on these labs as are the Athletes, should request urgent attention to redress these omissions. WADA cannot afford to allow four more years to pass, before bringing laboratories into strict compliance with the current body of WADA regulations that, with these proposed modifications, should offer sufficient controls.

SOLUTION(S)

Notably, WADA could spend more resources in ensuring testing harmonization, through endorsement of machinery performance, test standardization and harmonization, and techniques far beyond its present range of oversight. WADA could endorse even stricter laboratory regulation, which might be seen to have dual motivations: ensuring worldwide testing standardization and harmonization, and ensuring increased support by Athletes for tighter doping regulation.


Let's hope that WADA, is watching (since they could save a pile of money: free legal analysis!),

..........@..........WADAwatch

(link to Part ONE)