Having stepped tentatively into the arena, as a legally–trained jurist whose primary focus emerged from the realms of intellectual property treaty formation and risk–assessment for pharmaceutical product naming projects, the pedagogic backgrounds mesh very well with the topics at hand.
This column is a continuation of the subject of WADA's inclusion, in its CODE, of a new sub–Article 10.6 “Aggravating Circumstances”, which was first addressed by WADAwatch in this post from October, and readdressed with a post from the 10th December, as well as another follow-up post (don't miss the 'WADA as TORQUEMADA' cartoon!).
(Follow this link to a 'Legal Opinion' that WADA legitimatised through publication on its site)
A new year, a new President for WADA, and still the newly–revised WADA CODE (permanent link in upper right column of WADAwatch) is en route to publication with several gravely–defective Articles. The opportunities for changing these Articles, such as Article 10.6 “Aggravating Circumstances”, are a priori diminishing, as WADA presumes to have a solid basis for advancing its agenda. This column focusses only on this sub-Article 10.6.
Theories aside, the practical takes over.
There exists one simple and reliable resolution to the dilemma posited by Article 10.6, and one confusing, imperfect and exhausting solution; they could not be farther apart. Since WADA has shown de facto that it is disinclined to remove this Article, that solution will not be discussed here.
The situation is this: either WADA intends to rectify its drafting errors, or it will deliberately wait for “... judicial interpretation, which often relies on official comments made by the drafters of the rules...”.
Accepting the former resolution would bring WADA to re–opening its drafting process, to seek the approval of its Signatories for a swift, surgical modification. Allowing the latter 'non–choice' to prevail, deflects the opportunities and responsibilities on other institutions, as well as unfairly and unnecessarily adding to litigants' (read Athletes!) costs.
Mr Fahey would be well–advised to encourage the simple solution:
Put a definition of 'Aggravating Circumstances' into the APPENDIX of the WADA CODE.
A simply–drafted variant could be all or part of the following, which builds off of a standard legal definition of 'Aggravation Circumstances', simply adapted for use in a sports–doping regulatory context:
Are circumstances that, if proven, increase the seriousness or outrageousness of a given sport–doping violation by Athletes or other Persons, and that will increase the severity or duration of the wrongdoer's penalty or punishment. Circumstances that qualify as 'aggravating' may include concepts of repetition and/or plurality (multiple violations, or multiple Prohibited Substances or Prohibited Methods), or the concept of frustration (such as when Prohibited Substances or Prohibited Methods offer physiological benefits extending beyond the duration of a normal suspension or other penalty).
The above Definition, promoted by WADAwatch, is modular.
It could be inserted within the CODE Appendix as presented, or by inserting only the first sentence.
The second sentence adapts the legal synthesis offered by Legal Opinion authors Kaufmann–Kohler and Rigozzi, as they classified the longer list of examples presented by WADA in its Comment to sub–Article 10.6. The Comment(s) may stay as presented.
It causes dismay amongst avid followers of WADA's attempts to purify sport, and sport–sponsoring, who are trying to comprehend its display of institutional reluctance, as it continues to choose reliance on its own incomplete regulatory structure.
By doing so, it appears to prefer deference of this resolution to future unforeseen litigations, and resulting Judicial opinions or decisions. The problem with 'judicial interpretation' arises from its having, as a basis, to have evolved out of an individual's case or fact–pattern, and thus may not arise, or resolve the panoply of dangling issues, within a reasonable time period.
As mentioned in this previous WADAwatch column “WADA: way to recognize WADAwatch”, WADA decided to include in the CODE 2007, a new definition of its ADAMS computer system within the Appendix:
ADAMS: The Anti-Doping Administration and Management System is a web-based database management tool for data entry, storage, sharing, and reporting designed to assist stakeholders and WADA in their anti-doping operations in conjunction with data protection legislation.
WADAwatch refines and reiterates the simple question: of the two definitions appearing above in this column, which one would be more helpful to the Athletes and other Persons on whom a costly legal fight may fall? Why take valuable resources to define the computer system in the CODE, and ignore that 'vital new tool' which, when utilised will 'double the sentence' of a suspended Athlete or other Person?
Inclusion of a Definition of Aggravating Circumstances in the Appendix is more important to Athletes.
Inclusion of a Definition of ADAMS in the Appendix is (perhaps) more important to Signatories.
Which could possibly be of more importance to WADA?
It is NOT adding to the Fundamental Rationale found in the opening page of the WADA CODE.
Concepts of 'fairness', of 'universal harmonization' disappear, as WADA contents itself with finding solace that a failure to draft with adequate precision will be 'backed up' by a series of arbitrations, in different jurisdictions, that may either crystallize or muddy the legal waters in which WADA asserts its control over Athletes through grafting 'Aggravating Circumstances' into an already–overstressed system.
Seeking 'judicial interpretation' through extraneous or superfluous additional appeals, unnecessarily forces WADA to assert that 'what it meant to include' in the CODE, isn't. That could be construed as:
Aggravated Arrogance in the First Degree.
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.