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.
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.
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:
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,