This is the third draft (v3) of the
original WADAwatch post:
ATHLETE'S BILL OF RIGHTS
[With accumulated comments, or redraftings,
incorporated and shown in this color:
acknowledgements follow the Notes]
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
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.
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 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 witnesses or expert witnesses, any current 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***:
Where any presumed and prosecuted AAF, or other rules violation having been undertaken against an Athlete is determined to have been a result of malfeasance or fraudulent acts by any Signatory (or under authority of a Signatory) of WADA, that Athlete shall have rights which include, but are not limited to the following list:
Right of restitution to any forfeited: a) contract for employment; b) titles; c) prize winnings; d) sponsorship contracts;
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;
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 (or under the authority of a Signatory) whose actions are proven determined to have violated the rights of the Athlete(s) 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 any appropriate appellate process, including appeals to CAS, any extraordinary decisions reached by any Signatory or Signatories subsequent to an 'adjudicatory process' as described in Article NINE.
***********
... 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.
New text incorporates acknowledged legal rights which are not waived for Athletes–as–citizens.
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. If WADA created a unique “scientific universe” in its family of accredited laboratories, it has minimal grounds for sustaining the 'ban' against Athletes who seek expert opinions within that system; they must have access to expert opinions from scientists working within that closed system.
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. New text hopefully clarifies the range of violations and actions available.
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. New text hopefully clarifies the range of violations and actions available, and harmonizes with Article SEVEN.
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. New text corrects the error in reference to prior Article NINE, incorporates the concept of 'intermediate appeals prior to CAS', and clarifies the text in harmonizing with that prior Article.
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.
*** WADAwatch redaction, undertaken 6-8 February, 2008. An error (cut/pasted 'single strike-through' text did not keep the line through each letter or word) was corrected 19 February, 2008.
:-) (-:
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.
............@............WADAwatch
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