WADA and AFLD: Paths of GLORI... (-ous French failure)

Paths of Glori... (-ous French Failure)

“Gentlemen of the Court, there are times when I'm ashamed to be a member of the Human race, and this is one such occasion.

"It's impossible for me to summarize the case for the defense, when the Court never allowed me a reasonable opportunity
to present my case.”

“Are you protesting the authenticity of this court?”

Fifty years ago the war film, Paths of Glory, a masterpiece directed by Stanley Kubrick, was banned to two generations of film lovers in France for its stinging presentation of the vainglorious aspects of Western warfare.

Kubrick's film indicted Humanity's absurdities: misuses of force, vindictive application of martial justice and excruciatingly pain–filled portrayals of true weakness and courageous tragedy in the face of strife, and strafing bullets. Kubrick's characterizations came to life through universal metaphors in scenes laced tightly between World War I French Army Châteaus, their trenches and 'the German wire...'. His film was only released in France in the year 1975, some 18 years later...

Perhaps not since Kubrick brought to the screen the fictitious cinematic courts–martial of French General Mireau, had French law become so prominently highlighted, until the high–profile Floyd Landis cycling 'doping' case was illegally repeated in France...

The French agency AFLD (l'Agence Française de Lutte contre le Dopage) only put online its published Decision last week (between 18 – 20 January), regarding its case (the 'second') against Floyd Landis, for his alleged illicit use of Testosterone in the 2006 Tour de France. Whether one considers this publishing to be abnormally late – by several weeks, since the decision had been announced in December – WADAwatch cannot but offer an opinion that may sting WADA, as well as la France.

WADA aspires to, and should be, the world's 'force for good' in the fight (or transition) to a doping–free world of Sport. No matter that, via a somewhat compliant press, Dick Pound had established himself as one of the World's Greatest Quotation Sources. It appeared to many that he and WADA placed more of a priority on headlines than certain important internal accomplishments. After all, increasing perception of a crisis is a perfect way to increase government spending to 'combat the scurge': it worked for terrorism, and does for sports–doping control.

Nevertheless, this French case against Landis demonstrates how much WADA must continue re–prioritizing its focus to achieve a higher level of objectivity in the application of its CODE.

If these are stinging words, they are based only on published legal documents from WADA and the AFLD. The French case Decision, in the opinion of this Author, with its per se reliance on portions of the WADA CODE, compounds legal errors and banalizes misapplications of French law, American arbitration proceedings, and CODE Definitions. In toto, all were interactively necessary to all facets of these problems; all failed.

WADAwatch acknowledges that expressed opinions
are based on what is known through the records
presented; if 'unknown, undocumented'
facts exist, parts of this Analysis may
not remain relevant.

Whether either WADA or the USADA were obligated to protest the AFLD sanctions process remains unclear...

Whether AFLD's mistakes in its Decision would be bases for appeal that would reverse this decision, also remain unknown.

“The attack yesterday morning was no stain on the honour of France, and certainly no disgrace to the fighting men of this nation, but this Court–martial is such a stain and such a disgrace! The case made against these men is a mockery of all human justice... Gentlemen of the Court, to find these men guilty, would be a crime, to haunt Each of you, until the day you die...

“I can't believe, that the noblest impulse of man, his compassion for another, can be completely dead here... therefore I humbly beg you... show mercy to these men.”
Colonel Dax

Examining the errors within the French AFLD Decision, one ponders their origin in the WADA CODE. Better then, to begin specifically with the 2003 CODE in force, and its Article 15.4. Readers should note it provides for Signatories to respect the work undertaken within the jurisdiction and competences of other WADA Signatory ADOs, IFs, etc. Signatories in Madrid last November agreed to morph sub–Article 15.4 (2003) into two separate sub–Articles for the 2007 CODE (which will become 15.4.1 and 15.4.2):

15.4 Subject to the right to appeal provided in Article 13, the Testing, therapeutic use exemptions and hearing results or other final adjudications of any Signatory which are consistent with the Code and are within that Signatory's authority, shall be recognized and respected by all other Signatories. [.....]

“... Testing ... hearing results ... final adjudications ... shall be recognized and respected by all other Signatories.”

The intent appears to limit exposure of an Athlete to one proper sanctions hearing, within the proper jurisdiction: for Floyd, USA Cycling held Floyd's license, and USADA was the authorized Signatory, which prosecuted the doping charges. What AFLD retained, in 15.4, was restricted to a potential 'right to appeal', as expressed in the first line of the sentence.

Now remember that, in 'Diplomat–speak', any Capitalised Italics in the CODE constitutes a legal 'term of art', used as defined in its Appendix. So, let us look at how WADA defines 'Testing':

TESTING: The parts of the Doping Control process involving test distribution planning, Sample collection, Sample handling, and Sample transport to the laboratory.

Why, hang on a minute...? 'Testing' is part of Doping Control, however it stops at the laboratory entrance... What then is Doping Control?

DOPING CONTROL: The process including test distribution planning, Sample collection and handling, laboratory analysis, results management, hearings and appeals.

(Taking a moment for reflection...)

As defined, yet for reasons that escape rational discussion here at WADAwatch, 'Testing' appears to be nothing more, or less, than a clearly defined subset of 'Doping Control' that stops before laboratory analysis. Where it stops, however, is amazing: at the front door of the laboratory.

Care to read all three again...?

Maybe a valid reason exists for this. However, it appears one hundred per cent certain in comparing these two CODE Definitions, that the need to define Testing seems nonexistent, without the words 'Sample transport'. Every element exists in 'Doping Control', that one might logically include in a perfect definition of 'Testing'... except 'transport of Samples' (albeit that Doping Control also has 'results management' and 'hearings and appeals').

Who could think that 'Testing' seems uniquely nothing more than 'Sample transport'?

Not those who had drafted Article 15.4 of the CODE.

WADAwatch is (more than!) one hundred per cent convinced that the drafting of Article 15.4 was achieved to conclude arrangements so that no other Signatory would contest the 'tests' (in the common sense usage of the term 'testing'), legal processes and decisions undertaken in due form by a co–Signatory. Testing should, where common sense prevails, be simply that – such as in:
“I had my eyes (cholesterol, blood sugar, etc.) 'tested' today...”

As it stands now, Article 15.4 literally
eliminates mutual recognition of ANY PART
of a co–Signatory's 'laboratory analysis'...

Trying to understand Article 15.4 therefore evolves, akin to understanding those very best Donald Rumsfeld iterations, as the former US Secretary of Defense responsible for USA involvement in Iraq... “unknowns that we don't know...”.

Article 15.4 either means what it is literally defined as meaning, excluding 'laboratory analysis', or it must mean something beyond that which is expressed in writing.

If 15.4 stated “... the Doping Control, therapeutic use exemptions and hearing results...”, then Signatories would be on notice that all aspects of the sanctioning process by 'an ADO with authority' were subject to the desired recognition this Article affords. WADA could not have wanted Signatories to respect only the other's method of refrigerated transport of Samples ('Testing' as it stands: distribution, collecting, handling, and transport)... or was the omission deliberate? Only WADA, and it's drafting committees know the answer.

As one stumbles, confused by such... amateur?... drafting problems, one needs a reminder that WADA does not appear to disapprove the concept of 'seeking support in European Courts,' for judicial interpretation of its ambiguities. If remaining undetected by WADA until found in litigation, ambiguity appears too often to be an expensive burden placed on Athletes.

Drafting problems – amnesia? – of yesterday and today, remain for other Athletes of tomorrow until proper redrafts are accepted by Signatories... between today and 2011: the next World Conference on Doping?

Setting aside the problem of redrafting Article 15.4 (the relevant part now being 15.4.1), is there not need to examine how the existence of this Article has helped either Floyd Landis, or USADA, or even WADA to maintain a unified system of quasi–legal adjudication?

For whom, was the protection expressed in
CODE Article 15.4 designed to protect?

Did Floyd Landis merit facing this unjustifiable sanctioning process after a Decision was reached in the USADA case? If not, then evidently 15.4 was not drafted to protect Athletes... at least not Floyd.

In spite of the existence of Article 15.4, both WADA and USADA failed to stop the AFLD action. Neither prior to his hearings in May 2007, nor after.

Yet 15.4 would have allowed AFLD to join in an appeal to the USADA Decision, if only to argue to the CAS that an extension of the two–year sanction issued in September (IF and only if CAS agreed with USADA, and not Floyd) beyond UCI events, to those of nationally–sponsored or authorized events (such as the FFC), was requested. In the Author's opinion, AFLD has violated CODE Article 15.4, through administrating a second sanction against Floyd Landis while having no jurisdiction (against a licensed rider that already was sanctioned for that 'doping event'). AFLD never was, in this case, the ' ADO with responsibility for results management'.

Before attacking the French Decision straight on, another pertinent CODE Article is worth examining, pertaining to any WADA Signatory's sanctions–adjudication process: Article 8 (another 2003 Article that was redrafted into two new sub–Articles). Close examination adds to the perceived failures of the AFLD procedure.

Article 8 defines the rights as to Hearings (in relevant excerpt), a concept crucially important to remember: the rights afforded an Athlete (who is here a 'Person'), as to his or her Hearing on anti–doping rules violations, including AAFs:

ARTICLE 8 RIGHT TO A FAIR HEARING
Each Anti-Doping Organization with responsibility for results management shall provide a hearing process for any Person who is asserted to have committed an anti-doping rule violation. Such hearing process shall address whether an anti-doping violation was committed and, if so, the appropriate Consequences. The hearing process shall respect the following principles:

• a timely hearing;

• fair and impartial hearing body;

• the right to be represented by counsel at the Person's own expense;

[.....]

• a timely, written, reasoned decision;
  
  

So the most important 'elements' concerning a legitimate French AFLD process (without conceding the impossibility of that (the 15.4 argument would prevail)) against Landis, begin with having:

– “... an ADO with responsibility for results management...”
– “... provide a hearing process... [that] shall respect the following...”
– “timely hearing...”
– “fair and impartial...”
– “right to be represented...”
– “a timely, written, reasoned decision;...”

However, one must reaffirm AFLD could never be the 'ADO with responsibility...'. That role was always and properly assumed by USADA, via Floyd's license issued by USA CYCLING. USADA ran the sanctions hearing that fulfilled all Article 8 requirements, including the 'timely, written, reasoned decision' currently being appealed to CAS.

Leaving safer shores, we dive into the world of French adjudication against Floyd Landis. As revealed in an earlier post WADA do about SLOPPY CODEwork?, the French Decision covers a scant six pages, in comparison to the 84 pg Decision taken against Landis in September by two of the three arbitrators that heard his case; the Dissent by Christopher Campbell ran 23 pages.

Suffice to say that
six pages doth not a great
legal decision make.

The first two pages of this French-style Decision 'take note' (FR: 'vu') of a long list of laws, rules, evidence and correspondence; pages three through five then 'consider' (FR: 'Considerant') a series of 'evidence points', in a fashion that would produce derision by any US law professor, whose tribal membership detests en bloc when students are 'conclusory' (stating what the student 'presumes', without laying a factual trail that would allow offering such a reasoned conclusion).

This French Decision appears to be nothing but
conclusory; if not illusory?

At page three, the unnamed Judges, arbitrators or bureaucrats (?), demonstrate (to WADAwatch, at least) their having completely lost track of the plain meaning of the applicable law on which they base their Decision against Floyd; if not a simple mistake, than its deliberate inclusion is false.

SIDEBAR: AFLD established jurisdiction over Landis using l'article L.3634–2 du code de la santé publique, which claims competency: “... pour sanctionner les personnes non licenciées participant à des compétitions ou manifestations sportives organizées ou autorisées par des fédérations sportives ou aux entraînements y préparant.”

[Translation by Ww (EN): “... to sanction non–license (holders) participating in competitions or sporting events organized or authorised by (recognized) sporting federations or in training sessions to prepare for those.”]

NB: 'Non–licensed' should be universally regarded as 'amateur' or 'citizens'. France hosts many 'cyclosportifs' (huge 'citizens' races' attracting thousands of adept amateur riders). To this author, it clearly appears that the intent though the wording of this article is simple: the French agency is competent to sanction 'non–licensed athletes'.

Landis, as a USA–licensed rider, can not be, and never was a non–licensed professional cyclist.

If the anonymous French Decision makes anything obvious, it would be, perhaps, their third worst legal mistake: trying to invent an imagined phrase, such as 'not licensed in France', to ascribe jurisdiction over Landis. Even if the French law does contain such wording, it would remain a failure of the French Decision to omit reference to it: the obligation to issue a 'reasoned decision' remains.

This author is a non–licensed cyclist; Landis cannot be so classified, anywhere in the world. The law cited by AFLD is not (WADAwatch opinion) applicable. The Decision should have failed on this basis alone.

It cannot be deemed 'reasonable' when a Government Agency takes a Decision that, in all indications, was based on a Rule, which was mis–applied with NO notice to a Defendant. This suggests that AFLD was not preparing to treat Landis fairly or reasonably as a 'Defendant'.

Returning to the AFLD 'considerations', it references its consideration of CODE Article 15.4 without consequence: simply stating that this Decision was 'considering' the USADA procedure, and the AAA Decision and Dissent, while proceeding in a duplicative sanctions process, is a violation of its role as a Signatory to offer 'Mutual Recognition'. AFLD should NOT have pursued this 'wildcat' case against an already–sanctioned, licensed rider.

AFLD posited its theory for this jurisdiction, publicly, on the 'possibility' that a Landis suspension was only valid for UCI–authorized events; its Decision would ensure that Landis could not race in a Tour de France, 2008, if that race was merely authorized by the Fédération française de cyclisme (FFC). This separate aspect of the l'Affaire Landis protects relationships far away from the American cyclist, involving long–standing animosities between ASO and other owners of the Grand Tours of the cycling world (Italian and Spanish events are the other two GTs). Aspects of this case then appear to be government–sponsored aid to a French company –ASO– and a national sporting Federation: FFC.

While appearing to be falsely based on a mis–reading of French law, and ignoring the meanings ascribed to WADA CODE Articles 15.4, as cited above, the AFLD Decision fails profoundly in other aspects, including Article 8, recalling the miscarriage of justice decried by Kirk Douglas' portrayal of Colonel Dax.

“Yes sir, I protest against being prevented to introduce evidence that I consider vital to the defense, the prosecution presented no witnesses, there has never been a written indictment of charges made against the defendants, and lastly – I protest against the fact that no stenographic record of this trial has been kept...”
Colonel Dax

The very first page of AFLD's Decision shows the date: 29 November, 2007. That date was identical to the second of two relevant dates for receipt of Landis' defense team's documents, the prior date was only three days earlier: 26 November; what contents were delivered when?

WADAwatch admires a legal decision by the
AFLD agency, that could be 'decided' and 'published'
on the same date that substantial portions of the
defense's documentation were received...

Is one forced beyond coincidence theory, to accept (or reject) the premise that 'premeditation' played no part of the outcome of this case, that nothing was determined prior to receipt of defendant's defense?

It takes time to line up and draft even a scant six–page 'recitation of considerations' Decision. Every indication is that this Decision was not reasoned, and that 'timely' worked in the reverse of its normal usage:

This AFLD “drive–through McDecision”
appears to be the NEW “... mockery of ... justice”
decried by Colonel Dax...

Whose reputation is besmirched by it?

Floyd should never have been sanctioned by AFLD.

If only to 'close a loophole' that existed due to failures of ASO and UCI to find a mutual win–win solution to the 'ProTour mudslinging' war, the AFLD chose a way to close it by ignoring the meaning of WADA CODE Article 15.4 (in spite of those drafting problems), undertaking a sanctions process that failed upon genesis.

Compounded by its Article 8 failures, this AFLD Decision should not only be reversed in any fair, reasoned appellate court; it should provide sufficient basis to question France, and her Minister for Health, youth and sport, as to the country's commitment, in the wake of the Jean-Pierre Lamour fiasco, to WADA and its mission.

More than these errors are evidenced in those six pages, enough to 'bury' such an Agency in bad press. In other organizations, work as shoddy as this Decision appears might merit a letter of admonition, similar to that which Dick Pound received from the IOC Ethics Committee upon an 'investigation' stemming from Lance Armstrong's complaint. No wonder the anonymity of its authors?

Mentioning one more of these most relevant judicial errors, is the treatment of 'consideration' offered to both Floyd's complaints against the LNDD lab, and the 'French experts' who were mandated to 'verify the procedures undertaken' (in analysis of the samples from Landis). AFLD wanted Floyd and all other readers of its Decision to be fully aware that it 'considered' the evidence contained in Floyd's US hearings, while its Decision 'accepted' its French experts report, dated the 7 May:

One week prior to the opening
of Landis' hearing in California...

This points, once again, to an absence of 'Reason' in the Decision, a violation of WADA CODE Article 8. How may a Decision claim to have considered evidence that wasn't published until September, if the Decision notes it accepted French experts' reports from May, and any defendant's arguments aren't received until the day of publication for that Decision?

A reminder that the French experts' opinion concluded in diametric opposition to evidence accepted unquestioningly in the USADA procedure. Worse: it delivered self–serving assurances of LNDD proficiency 'throughout the years', rather than probing whether or not THESE TESTS may have suffered below–normal Doping Control performance in comparison to international standards. In stating its profound support on the LNDD lab, AFLD displays the opposite of what any reasoning court would do.

US law students often take 'administration law': the assemblage of rules and procedures regarding 'agencies' that hold rule–making and decision–making power. The easiest way to overturn a wrong agency rule–making or decision, was usually to prove that the Agency's action was:

ARBITRARY and CAPRICIOUS

WADAworld remembers no greater example of
'arbitrary and capricious' in legal studies,
than this 'auto–goal' Decision by AFLD

+ + + + + + +

WADA and USADA (or USA CYCLING) failed to protect Landis (through a 15.4 action against AFLD) from a 'rogue state' procedure in France;

WADA, through continued support of its poorly–drafted CODE, allows conflicting Definitions to stand together, and fails to use the correct Definition in its Article 15.4 – 'Mutual Recognition';

+ + + + + + +

AFLD appears to have failed its duty as a WADA Signatory, by withdrawing 'Mutual Recognition' from an USADA Decision;

AFLD appears to have failed, as an ADO, to guarantee a 'Fair Hearing' for Landis;

AFLD appears to have gravely misinterpreted the most directly applicable French laws, to attack Floyd;

AFLD appears (Oh! How important that word: -appears-) to have acted not in good faith, by initiating its 'rogue state' sanctioning process, unless it can prove its sole motivation was not to support the 'desires' of a private French enterprise (TdF/ASO), in attacking Floyd Landis, as a Signatory without authority to sanction, contrary to a valid exercise of its only means of legal recourse (15.4, again):

The right by AFLD to appeal the USADA Decision, seeking
extension (or clarification) of Landis' USADA suspension
to preclude his participation in FFC authorized events.

AFLD thus failed to exercise its only properly–mandated power, in the context of seeking to sanction Floyd Landis.

Any last words, Colonel Dax?

Why didn't USADA help Floyd defend himself against this ill–founded AFLD Decision, issued by a Signatory who had no basis in law to attack Floyd?

Why has WADA not initiated an investigation of AFLD for violation of the CODE?

Where's the Firing Squad?

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, questioning AFLD

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

© 2008 ZENmud productions

WADA do about SLOPPY CODEwork?

"It's a CODE in the nose kind of day..."

WADAwatch already expressed its personal gratitude to the Secretariat of the Agence Française de Lutte contre le Dopage (AFLD), for their having signalled WADAwatch that the short, six-page French decision against Floyd Landis is now online.
(Décision n° 2007-52 du 29 novembre 2007 )

Contrasting this French Decision with that of the Majority's Decision (some 84 pages) and Attorney Christopher Campbell's Dissent (some 23 pages) adjudicated by the AAA last September, which together totalled some 107 pages...

(time to 'mull this over' provided here)

... WADAwatch harkens the reader back to more innocent days, when we learned of Little Red Riding Hood, who found porridge, beds and more 'too big', or 'too small' and then, lastly, always finding that which was 'just right': is the Landis case similar?

... was the USADA Majority 'too much'?
... was the French AFLD Decision 'too small'?

... was only Attorney Campbell 'JUST RIGHT'? (or 'just' AND 'right'?)


The French decision against Landis, has allowed even more cognitive response to the dilemma under which WADA works.

WADAwatch may be publishing ANOTHER cutting-edge post tomorrow... yet it behooves ZENmud productions to remember we live in a world of much free content of little worth, and little content really, truly, of compensable value (hint, wink, nudge).


If and when published, and "IF" correct in this developing theory, that post on WADAwatch could shake WADA somewhat.

At WADAwatch, we are looking forward to the seminar in four weeks, in Lausanne, with the Honourable John Fahey, president of WADA since the New Year.

... "Mr Fahey, could we talk?"

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,
............@............WADAwatch

© 2008 ZENmud productions

ATHLETE'S BILL OF RIGHTS: V2 (NOT authorized by WADA )

This is v2 of the original WADAwatch post

ATHLETE'S BILL OF RIGHTS

[With newly incorporated comments, or redraftings,
shown in this color: with acknowledgements after the original content]

In the profitable world of sponsored professional and amateur sport, it is, ultimately, the Athletes who have invested thousands of hours of training to achieve internationally–recognized levels of competence. At any high level of national or international competition, these highly–trained individuals or team members are and should be subject to testing for evidence of doping.

However, the scientific procedures undertaken to discern these doping substance or procedures by Athletes are performed, or directed by individuals, under 'standards' that imply, perhaps, more than they should. The laboratory technicians, the Lab directors, and the institutions that employ them, may not have achieved a similar level of certifiable performance proficiency.

There exists, within WADA's anti–doping control system, insufficient evidence (budgetary or anecdotal evidence of 'test shifting') of its undertaken efforts to achieve, maintain and publish, in transparent fashion, the necessary levels of scientific competence and testing reliability. In legal terms, one may add “...to the degree reasonably necessary according to accepted principles of substance–testing laboratory performance.”

WADAwatch hopes that WADA itself is as concerned about these aspects as one could reasonably anticipate from the Fundamental Rationale found in the WADA CODE, which contains aspiring values such as: “Ethics, fair play and honesty”, “Excellence in performance” and, “Respect for rules and laws”.

Long before the inauguration adherence and acceptance of WADA, its CODE, and any derivative documents, the Court of Arbitration in Sport (CAS) discussed the importance of objective, global rules:

‘The fight against doping is arduous and it may require strict rules. But the rule-makers and rule-appliers must begin by being strict themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years by a small group of insiders.’
(CAS: in the decision USA Shooting & Quigley v. UIT, 1995 (CAS 94/129))

WADA, and the International Federations that adhere to its CODE, as well as the Governments who have acceded to the UNESCO International Convention against Doping in Sport, should acknowledge the necessity of balancing the well–founded goal of reducing or eliminating doping in sport, with the possibility that overly–zealous, negligent or unscrupulous individuals or institutions could produce results that are not scientifically achieved, nor legally attributable to an Athlete (If the strict liability standard was not in existence).

If and when that occurs, they impose massive, negative and irreversible repercussions to Athletes, their teams, their sponsors or their sport. World–class Athletes, whose entourage often includes their own staff and coaches, are in constant proximity to those of their competitors, as well.

Strict liability is the standard against which Athletes are responsible for knowing what they ingest; obviously they can never let down their guard, for even a moment.

Could a sponsor, being outraged at contractual money 'paid' and seeing their contracted Athlete(s) fail to perform, 'spike' that Athlete's sports–performance drink? If unlikely, we must still admit that it's a possibility, a multi–million Euro one at that.

Perhaps even more possible, could be the same scenario, happening from the entourage of a competitor: Athletes may NEVER let down their guard, against 'systems corruption'.

In light of these legitimate concerns, WADAwatch offers this working draft-in-progress of an ATHLETE'S BILL OF RIGHTS, which forces the regulating Signatories to distinguish reality from optimism, and facts from presumptions.

WADAwatch hopes that this pro-bono document becomes part of a record, an acknowledgement by the 'powers that be', that fairness must be equalized, in light of the burdens imposed by the unilateral standard of 'strict liability' against the Athletes.

An 'ATHLETE'S BILL OF RIGHTS' offers to balance the quasi–judicial system in which the WADA CODE operates, by asserting the minimum necessary legal protections to Athletes.

This ATHLETE'S BILL OF RIGHTS
is not authorized, endorsed or supported by WADA,
its Signatories, or the Court of Arbitration for Sport (CAS) in any way ...
(Yet)

ATHLETE'S BILL OF RIGHTS

Introduction

The word 'Athlete(s)' is used herein as defined by WADA, in the currently enforced version of the WADA CODE, and/or its subsidiary WADA regulatory documents. If necessary, it may include any Person, or other entity, who could be considered as a 'defendant' to any charge of violation of WADA regulations, that have as their source the published results of testing by a WADA–accredited laboratory.

Athletes under the jurisdiction of the WADA CODE agree to abide by results of legitimate anti–doping testing in WADA–accredited laboratories, in the interests of reducing and eliminating the scourge of sports–doping from the world of sport, subject to the demonstrable adherence of the testing facility to abide by the WADA CODE and lab accreditation process, and this ATHLETE'S BILL OF RIGHTS.

Athletes agree to adhere to all applicable regulations within the WADA CODE and its derivative documents, such as the International Standard for Laboratories (ISL), and the International Standard for Testing (IST), as published and in force, subject to the demonstrable adherence of the testing facility to abide by the WADA CODE, ISL and IST, the lab accreditation process, and this ATHLETE'S BILL OF RIGHTS.

Article ONE:

Athletes are presumed innocent of a WADA CODE violation involving doping substances or procedures discerned through WADA–accredited laboratory test results, until such time as the Athlete's right to a B Sample confirmation test is performed as requested by the Athlete, or waived.

Article TWO:

Athletes retain the right of confidentiality granted through the WADA CODE, as specified in Articles 7.1 and 7.2, and as confirmed by the ISL Laboratory Code of Ethics (ISL Annex B).

Article THREE:

Athletes have the right to legal counsel and due process, to defend themselves against all charges, and to have access to any and all evidence that holds bearing on their case. In agreeing to adjudication through arbitration as mandated by the WADA CODE and its derivative documents, Athletes shall retain the legal protections afforded to them by their sovereign government, or when under the protection of applicable international Agreements such as the European Convention on Human Rights.*

Article FOUR:

Athletes have the right to enforce provisions of the WADA CODE and its other regulatory documents that apply to any Laboratories, Anti–Doping Organizations and other Signatories whose violations of those provisions have a substantial or procedural effect on the outcome of the Athlete's case.

Article FIVE:

Athletes have the right to contest the receivability of an Appeal initiated by any WADA Signatory that had not been a party to the Athlete's initial adjudication process, as could be undertaken by Signatories under authority granted in WADA CODE Article 13.2.3, prior to the acceptance of said appeal by the Appellate Panel.

Article SIX:

Athletes have the right to call as witness, any employee or Director, or any former employee or ex–Director of any WADA laboratory, whose testimony may have a material bearing on the Athlete's case(s).

Article SEVEN:

Athletes, in the event where any presumed and prosecuted violations against that Athlete are clearly a result of malfeasance or fraudulent acts by any Signatory agent of WADA, have rights which include, but are not limited to the following list:

1. Right of restitution to any forfeited a) contract for employment; b) titles; c) prize winnings; d) sponsorship contracts;
   
   

2. Right to enforce disciplinary action against the Signatory or Signatories that, whether acting independently or in concert, have effectively tarnished the reputation of the Athlete;
   
   

3. Right to pursue, independently of the rights granted in Seven (1) or (2), monetary damages against any Signatory or Signatories for the loss to reputation and earnings which were engendered by the Signatory or Signatories' actions, which were shown to have malfeasance or fraud at their base.

Article EIGHT:

Athletes have the right to force the initiation, by WADA or any of its Signatories, of an adjudicatory process against any WADA Signatory or Signatories whose actions are proven to have violated the rights of the Athlete as detailed in Article SEVEN, or within all of the WADA CODE, or other WADA regulatory documents.

Article NINE:

Athletes have the right to request a declaratory Decision from CAS in any case whereby a Signatory or Signatories initiate any 'adjudicatory process' that creates a conflicting or extraordinary duplication of process based on effective violation(s) of Article 15.4 of the WADA CODE.

Article TEN:

Athletes have the right to incorporate within an appropriate appellate process to CAS, any extraordinary decisions reached by a Signatory or Signatories subsequent to an 'adjudicatory process' as described in Article EIGHT.

***********

–NOTES and OBSERVATIONS to this ATHLETE'S BILL OF RIGHTS–

(“ABoR”)

[NB: Use of the term 'Athlete' includes any plural, or gender–specific usage of the word, it may also include, when necessary, 'or Person' as defined by WADA in its CODE or derivative International Standards, etc.; WADAwatch also presumes the reader is well–versed in the abbreviations and definitions which WADA uses throughout its documents and regulations]

Introduction:

It establishes coherence for the use of the term 'Athlete(s)' with the WADA CODE, and encourages the presumption that a greater majority of Athletes are acknowledging the desire to retain respect and responsibility, for themselves, their sponsors (for event, and individual/team sponsorships) and their sport, through adherence to the WADA system of sports–doping control.

Article ONE:

This enunciates the basic principle of law that is fundamental to a vast range of national legal systems. WADAwatch notes that, in the past, many instances of breach of confidence, between laboratories holding A Sample results, their hierarchic governmental agencies, WADA and the press have caused greater (and harmful) prejudice to the implicated Athletes.

Article TWO:

By reinforcing each Athlete's right to a confidential procedure, this places a greater acknowledgement that, in our media–driven world, special efforts must apply that reduce or remove the prejudice that adheres to any premature, illegal declaration of 'A Sample' results.

Article THREE:

While not explicit in the Article, the Athlete's rights under the 2007 WADA CODE are apparently being restricted by the introduction of various changes and amendments to the CODE.

This ABoR Article THREE enunciates a preference for 'due process of law', where:

• The B Sample may not be necessary (CODE Article 2.2);

• WADA changed, in the 2007 CODE, its standard for 'apparent departures' in Article 7.1 and 7.2 from '... which undermines the validity...' (of an A Sample finding) to '... caused...', as must be determined by an ADO prior to the Athlete's need to invoke the 'presumption' found in Article 3.2.1;

• Evidence of malfeasance or fraudulent acts by a laboratory would not be available within the authorized 'Laboratory documentation package' as provided in WADA CODE Article 7.2;

• Aspects of the new Article 10.6 “Aggravating Circumstances” require an Athlete to prove the absence of such circumstances.

Article FOUR:

It must be clear to WADA, that if and when malfeasance or fraudulent activity by a laboratory or Signatory has effectively tarnished an Athlete's reputation, that the Athlete have a legal recourse to address such defects PRIOR to defending him or herself against the charges brought against them. Accordingly, this Article provides assurances that the Athlete whose defense includes such charges, will have the opportunity to bring an action against such a laboratory or Signatory.

Article FIVE:

In the WADA CODE, multiple parties are allowed to initiate appeals, even when not initially involved in 'prosecution' of an AAF. Although the modifications accepted for the 'new' 2007 WADA CODE restrict more precisely the potential appellants, the wording in the CODE does not harmonize or mandate procedures and rights of Athletes to face consolidated appeals, including those initiated by non–participating Signatories.

Athletes may certainly appeal against adverse (negative) decisions; likewise for the Signatory under whose authority the first instance was arbitrated. However, the CODE still grants rights to appeal by non–participating Signatories, including WADA, to 'take up the case' against an 'acquitted Athlete.

[NB: Rights attributed, in Article 13 of the WADA CODE, to the IOC and the Paralympic Committees are not a subject of this ABoR: WADAwatch has great respect for those bodies and their history of fairness.]

The inherent disproportionate resources available to an IF or other Signatory, in comparison to any Athlete, warrant consideration of the injustice of having an arbitration decision in support of an Athlete (thus overturning a lab's AAF finding) being appealed by any non–participating Signatory (WADA CODE Article 13).

Is WADA conceding that it has little faith in the abilities of Signatories or Athletes to partake in a neutral arbitration that offers objective decisions based on facts? Or is it necessary for WADA to regulate in the negative, providing itself an inoculated avenue through which it can impose upon Athletes a sizeable financial burden: a de facto 'intimidation' or 'harassment' upon the Athlete to accept the arbitrated results when found against them?

The wording of CODE Article 13.2.3 does not sufficiently protect Athletes; this ABoR Article FIVE may help to balance WADA's drafting biases.

Article SIX:

In order for any accused Athlete to attain the justice from AAFs that may have components of malfeasance or fraudulent actions by opposing parties (laboratories, ADOs or IFs, breach of confidentiality, etc.), the Athlete must have an opportunity to bring witnesses that could absolve their case through objective testimony.

The facts reveal that 'standardization and harmonization' of WADA–accredited laboratory performance has been ineffective, incomplete and/or slow to realize (Eg: In the Carbon Isotope Ratio Test (GC/C/IRMS) for testosterone there is no concrete standard for the number of metabolites, >3 per mil, that establish an AAF.** The UCLA laboratory standard requires three out of four as a minimum; the French 'Département des analyses' (Formerly the LNDD) only required one in the Floyd Landis, 2006 Tour de France cycling case).

As a natural progression from the previous ABoR Articles TWO through FIVE, this Article must offer access to the experts within the WADA 'family' of accredited laboratories. In the alternative, it must be considered an added onus on any lab's performance to know that its results must withstand 'peer review', one of the fundamental standards of properly performed laboratory science.

Article SEVEN:

Crucial to this Article is the preposition that litigated cases may be “... clearly a result of malfeasance or fraudulent acts by any Signatory agent of WADA...”. Incidents of an Athlete being accused of doping, if not proven, will already have effected lasting damage on his or her reputation, not to mention those reputations of the Team or Sport being besmirched. WADA cannot allow such cases to bring profit to media, distortions of perceptions of Athletes and Sport(s), and thus must consider 'case–specific' remedies of benefit to tarnished Athletes. Evidently these would clearly be a lesser form of justice, to an Athlete who may be facing public 'destruction' of a career.

Article EIGHT:

As Article Seven implies a form of compensation for 'case–specific' injuries, Article EIGHT offers a means for Athletes to influence their sport or country's controlling bodies (ADOs, IFs, or others) to initiate proceedings against the laboratory or other Signatory that should be investigated for malfeasance and/or fraudulent activity.

Article NINE:

It is undeniable that, in the world of financed Sport sponsoring and events production, there will be cases in which a Signatory may choose (to satisfy 'justifiable domestic reasons'), to initiate a 'renegade' proceeding outside of the WADA 'track' of arbitration – decision – appeal – final result. (Cf: the French AFLD proceeding against Floyd Landis, ostensibly initiated to 'close a loophole' as to potential participation in the 2008 Tour de France, if and when the TdF is to be run outside the auspices of the International Cycling Union (UCI))

Signatories, however, cannot 'avoir le beurre, et l'argent du beurre'* at the same time. Either a Signatory is within the WADA CODE, and abiding by the privileges and perils therein, or it isn't. In the above cited Landis case, the French AFLD decision does not appear to support the WADA process, and may in fact be erroneously determined. Perhaps WADA should refine or remove any supposed support to Signatories that cannot resolve litigation in a streamlined way for Athletes. The French case could have been established and litigated along with the USADA case brought against Landis, if such an ATHLETE'S BILL OF RIGHTS were already part of the WADA CODE.

* This French proverb: ('one cannot have butter, and the money from selling it'), roughly says 'you can't have it both ways'.

Article TEN:

Complementing ABoR Article NINE, yet differently from Article FIVE, Athletes must have the unabridged right to appeal properly–adjudicated ADO decisions AND any 'renegade' Signatory's decisions through one appellate process.

CONCLUSION:

A legal eye would see, in reading this proposed ATHLETE'S BILL OF RIGHTS, that proper drafting (at this point, redrafting) of the WADA CODE, and the International Standard for Laboratories (as well as the IST for Testing), would moot as unnecessary much of the contentions herein resolved.

WADAwatch stands available to assist IFs, ADOs, the IOC and WADA itself, to attain the means to properly and fairly control the fight against doping in Sport.

* Many thanks to the anonymous donor of this important Article THREE legal contribution.

** Major gratitude is extended to a fellow Blogspot author, Vélo Vortmax , whose ability to put science into words has always helped balance the WADAwatch legal focus. Thank you, Jon.
:-)

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.

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