Monday, 28 January 2008

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:

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:


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


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