Thursday, 18 October 2007

WADA v AFLD v Lamour and the Landis Case

Article 13.2 et seq. of the WADA CODE 2007 v3, covers appeals in sport arbitrations. Briefly, if an Athlete loses in a doping determination, he or she may appeal, either for a final national or Federational decision, or to CAS (The Court of Arbitration for Sport) in Lausanne, Switzerland.

If, on the other hand, the Athlete succeeds in proving his or her case, and is vindicated, watch out!
WADA has continued its support of its list of potential parties that may force that Athlete back 'into court' (as noted above), include (quoting CODE 2007 v3: Article 13.2.3):

(b) the other party to the case in which the decision was rendered; (c) the relevant International Federation and any other; (d) the National Anti-Doping Organization under whose rules a sanction could have been imposed; (d)of the Person’s country of residence; the International Olympic Committee or International Paralympic Committee, as applicable, where the decision may have an effect in relation to the Olympic Games or Paralympic Games, including decisions affecting eligibility for the Olympic Games or Paralympic Games; and (e) WADA.

Whatever the issue had been, that was arbitrated, how can it be fair, reasonable and effective, to force an Athlete who had demonstrated and received a supporting Decision against the charges of doping facing him or herself, to face potentially a multiple of appeals?

There is no mention in the CODE 2003, of any judicial streamlining, or 'piggybacking' of these appeals. For a case such as that of Floyd Landis, who is currently appealing the American Arbitration Association decision against him, for
testosterone charges brought against him via the Laboratoire National du dépistage du dopage (LNDD) stemming from his participation in the 2006 Tour de France, he is the sole party that can appeal.

However, if the AAA had ruled that Floyd did not use testosterone, the USADA, the USA Cycling Federation, or AFLD (French Doping Agency), the UCI (cycling Federation), and WADA, all are potential appellants.

How can the CODE be 'revised', while leaving this injustice for the next four years or so?

At a minimum, some sub-Article could be drafted, that called for the multiple parties who have the right to appeal, to be brought to CAS as one appellate action.

Certainly it appears in the analysis, that WADA hoped to create a machine that would destroy the incentives for Athletes to wage an appeal, in the case where it could be demonstrated that evidence was tainted, or ignored, or hidden from the Athlete, or that the rendered Decision did not appear to account for the base of evidence presented.

While arbitration in concept offers expediency and thus (usually) lower costs, it carries a price to the weaker parties, when 'politics' in any nature can be brought into play.

An example of this, outside the world of Sport, can be found at the World Intellectual Property Organization, which offers an Arbitration service for Internet Trademark/Domain Name disputes. These often fall under the known rubric of 'cybersquatting', where an entity may register a domain name in the hopes that its real-world TM owner may then pay that entity for relinquishing the domain. An overwhelming majority of those cases are determined in favor of the TM owner.

And whether or not those decisions are based on the merits of the case, the system itself exists because Attorneys are accepted on to the list of potential Arbitrators, and they may feel innately pressured to provide opinions that would not jeopardize their remaining in service via that list.

In conclusion, WADA approaches its Conference against Doping in Sport, in four weeks, at Madrid, with a variety of legal issues that it apparently prefers not to resolve:

The Right of Appeal is one of the biggest, in this series of lacunae.

Watch! WADA

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