Tuesday, 11 December 2007

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:


"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.

Watching WADA for you,


1 comment:

Jon said...

My complaint is expressed in Article 10.6 under Plea Bargain Page 39 112(122). "Of course, one cannot entirely rule out the risk that an anti-doping organization may abuse the process and threaten to charge an athlete with an aggravating circumstance in order to obtain a confession. However, should an athlete consider that he or she has been put under pressure to plead guilty, he or she would have the right to complain in front of the CAS!" LOL!

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