Tuesday, 5 February 2008

BAFFLED by AFLD: an afterword

–––Notes on the AFLD-Landis Decision–––

One ponders where the most egregious errors lie, in between the mis-drafted WADA CODE Article, and the French Agency's 'Second' sanctions Decision (second to the USADA Decision of September 2007) published by the French Agency AFLD, that were the bases for the previous WADAwatch post:

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

... and the AFLD Decision itself, ultimately some issues remain burning in the brain–vault. Some issues are legal, some are dietrological ones; they have simmered long enough to ripen.

The first set below, specifically relates to the AFLD, the following set relates to WADA itself.

ONE – The 'Wrong Form/ Right Decision'?

Could the AFLD actually have posted
a decision, regarding the most massively publicised doping case in cycling's history, via a secretary or other assistant's cut-n-pasting of case–specific paragraphs into some standard form–Decision that was designed to handle cases with non–licensed cyclists?

WADAwatch has been mulling over why this Decision was pinned, in French law, on a law which has no regard for licensed Athletes (or cyclists like Floyd Landis?)

Without letting them off easy, or offering excuses, one ponders how a legitimate Agency, such as is AFLD, could authorize the publication of a so very error–filled Decision? If this Agency is so lax in checking, and verifying, and controlling, and confirming its important documents – those on which appeals would be based – it saddens those readers who hope for an objective fight against doping to be fairly waged, and honestly won.

If the above isn't true, then either the legal Counsel for AFLD mistook which law applied, OR they demonstrated a wanton disregard for French law, defendants' rights... OR:

––– they did what they were told... –––

TWO – The 'Airbrushed' Decision

WADAwatch has perused other Decisions that AFLD has decided, then posted on its website: the majority of which do appear to deal with 'non licensed' athletes.

WADAwatch also acknowledges that, in Europe there are different, more stringent laws on privacy in the digital era.

However, a case such as Landis may have, or could or should have, a different basis in removing even more ambiguity, by naming this Athlete, and his attorneys, as well as offering names for those 'neutrals' or 'Administrative judges' who have 'reasoned' through their laws and regulations, conferred and decided this case: one must presume, that if Floyd chose to appeal, that he and his attorneys would know more than diligent internet research can devine.

THREE - Raiders of the Lost HACK ATTACK

WHY!? ... does this Decision not bring in as evidence to note and consider, the 'infamous' and 'diabolical' attempt(s?) to hack into the LNDD computer? Both LNND and AFLD were roundly quoted in the fall of 2006, by l'Equipe and other media sources throughout Europe and the world; did the French never 'solve that case'? OR:

––– is there a dietrological reason that didn't come out via AFLD? –––

FOUR - you take the High Road; we'll take any road

WHY!? ... did AFLD decide NOT to pursue its valid right to appeal, after first agreeing to retard its homegrown case in the fall of 2006? With Jean-Pierre Lamour as VP of WADA, and given his previous employment within the CPLD, one could only hope that, as this massively (and illegally–premature) publicized case wound its way towards a proper, USADA Decision, that WADA would want its showcase labs and Agencies all towing the 'Organization line'.

WADA may never have a better case through which it could have
proved that its system WORKED: FAIRLY.

In the opinion of WADAwatch, WADA failed.

One has to entertain a certain perception that there persisted some sub–current of paranoid hysteria that reigns over this Agency or département... OR?:

––– maybe they didn't even care? –––

FIVE - My reputation proves your facts are wrong

Why does the AFLD Decision choose to create a perception that 'years of Certification' is sufficient to treat a legal question as to whether specific tests, by specific employees, were specifically performed according to the specific body of laboratory standards that regulated work by the LNDD?

If there are cases, in no matter which 'law' is applied, that revolve around the competency of a test: pregnancy, DNA, radar–speeding, there is hardly a Judge worth their salt who would say 'Well Dr Laboro always knows a pregnant woman when she sees one' ... In the Decision.

SIX - Do as I SAY I do, not as I do

Given that AFLD 'acknowledged' the existence of CODE Article 15.4, for what purpose and to protect whom, would a legal Officer of AFLD describe the protections and respect of foreign procedures that are ascribed to this Article?

These represent the outstanding issues, for which WADAwatch would entertain receiving public responses from those responsible at AFLD. Now one must ask the following questions to WADA itself.

SEVEN - Shoe the other foot

As asked already, in the previous post, as well as Point SIX above: for whom is CODE Article 15.4 offering protection against multiple prosecutions?

--- It didn't protect Floyd Landis ---

EIGHT - time is money, lost?

Why did WADA elaborate this Article 15.4 so fastidiously in the CODE, without enforcing its mechanics with some form of intervention procedures, to cut off 'rogue Signatory' procedures?

NINE - let the Arbitrators work twice for one salary

Will WADA hastily revise its CODE Appendix of Definitions, in light of confusion revealed by WADAwatch, or: will Athletes' possible litigations bear these burdens that are a lapse by WADA in its formation of the CODE, as well as its recent revisions?

If or when asked why “WADAwatch wasn't on–hand with its precise, pertinent and hard–driving comments regarding the CODE?” before the WADA revision process was closed, the clearest response would have to be 'But no one ever thought that so many carefully–chosen Delegates, and the organs they created, would make a total muck–up of their work, in its formation, and implementation'.

The two related Definitions Testing and Doping Control – are conflictual and contrary to what one might hope the sentence in Article 15.4 was constructed to achieve. Are other CODE Definitions as thoroughly confusing as were these two? WADAwatch cannot yet respond: one hopes that WADA has already questioned its CODE authors for their legal opinion.

US attorney Richard Young was acknowledged as a member of the CODE Revision drafting committee. He, acting as the prosecuting attorney for USADA, seemed to not find these errors in the work sessions that preceded acceptance of 'Son of Code' (the 2007 version accepted in Madrid).

TEN - momma I wann-appeal!

Appeals, delineated in Article 13, have been revised by WADA for the 2007 CODE.

However, the Article still allows for an overlapping regime of litigation that appears to continue the original design. That design offered more preferential bias or power to WADA and its Signatories than would, perhaps, be necessary or healthy. Given its inherent, overwhelmingly deeper resource base for handling cases, WADA or any Signatory appear to offer an accused Athlete with the simple choice of capitulation or a nearly–endless series of parallel cases or repetitious appeals.

Given that the AFLD Decision, in WADAwatch's opinion, is unreliably distanced from the parameters that would form a proper litigation document, one wonders if CONI, the Italian Olympic Committee which has announced its pursuit of cases against named Athletes from the Spanish Operacion Puerto – has perked up to the range of problems it faces, if it takes up issues concerning cyclists whose cases have already been addressed in Spain, or wherever properly adjudicated based on national licenses.

If Iban Mayo faces a re–opening of his case, it would serve his attorney to be aware of these questions, and the related issues...

Ever more questions for ONE particular Signatory/ Agency and an Organization that have, together sometimes, done much to create a semblance of quasi–judicial responsibility, yet who seem hesitant, or unwilling: to play the Fair Game, with Fair Rules.

Time remains, but is shortening, to achieve a balance in arriving at just and reliable Decisions.

Et tu, WADA?

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, still questioning AFLD


© 2008 ZENmud productions

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