Thursday, 20 March 2008

WADA: CASE, SET and MATCH

[this is a link-free post... many links are found on the right column]


WADAwatch is of the opinion that, whatever basis under which WADA is funneling appellate case funding to the USADA, that basis is not included in the 2003 WADA CODE. It doesn't appear to have any connection to the Fundamental Rationale that begins the WADA CODE.


We offer one logical, reasonable voice in an amazingly Byzantine pseudo–legal labyrinth, a short–circuited 'injustice' system, designed by lawyers expressly to expedite convictions of Athletes (guilty or not?) through intimidation by imposition: torqued regulatory structures that inhibit, if not suppress, any semblance of fairness.


Proof of that injustice surfaced this week, as news reports broke the story that WADA was funding a majority share of the USADA legal budget to run their side of the Floyd Landis appeal. This report superseded prior reports that linked Landis' defense with US taxpayer funding, evidently establishing a buzz that ripped around the world (never mind that US taxpayers are amazingly blind to the monthly burden passed to their children, via Iraq and Afghanistan, to the rate of 10 billion dollars per month: these twisted news stories, erroneous and inflamatory, are perfectly designed to rile hibernating US citizens).


Common to the complaints and quotations that emerge through these stories, about the 'enormous burden' WADA and USADA bear due to the costs associated with Landis' case, is that very spin described above. One example is this quote, found on the Landis case blogWorld headquarters, TrustbutVerify, from the keyboard of Eddie Pells, of the AP news service:


"Generally, we would always prefer to spend our time and resources in supporting clean athletes and not having to prosecute guilty ones," USADA CEO Travis Tygart said Friday.


TbV astutely applied reasonable logic to the above quote:


The job of USADA is to prosecute cases, not to "support clean athletes" by anything other than "management" of cases.


Repeating the point: clean Athletes need little support, except by elimination of the 'cheaters'. And cheaters are only eliminated through Doping Controls, confessions, denunciations or Divine Intervention (which up until December 31st was the domain of former president Dick Pound...). So Tygart's comments serve to focus the reader's scorn, and the 'economic burden on taxpayers' becomes the pre-eminent thought carried through the next couple news–cycles.


WADA issued this statement to the AP, which also carries insinuations about these Agencies' legal expense burdens:

"It became apparent, from the way in which the matter was being defended, that further efforts had to be made to ensure that all relevant information was put before the tribunal, and that the witnesses required could be present," said WADA in a statement e-mailed to AP on Tuesday. "This required some assistance from WADA."


In the humble opinion of WADAwatch (IWwHO), these quotes reinforce the shameless, self–serving spin session from the World Anti–doping Agency.


Worse: WADA not actually may have legitimacy as to what they are doing, if we consider the WADA CODE as source of its actions.


Article 20.7 “Roles and Responsibilities of WADA”
(the 2003 document controls):

20.7.1 To adopt and implement policies and procedures which conform to the Code.
20.7.2 To monitor the processing of Adverse Analytical Findings.
20.7.3 To approve International Standards applicable to the implementation of the Code.
20.7.4 To accredit laboratories to conduct Sample
analysis or to approve others to conduct Sample analysis.
20.7.5 To develop and approve Models of Best Practice.
20.7.6 To promote, conduct, commission, fund and coordinate anti–doping research.
20.7.7 To conduct an effective Independent Observer Program
.
20.7.8 To conduct Doping Controls as authorized by other Anti–Doping Organizations.


That's the list.


Note well, there is no sub–Article that adds 'Funding legal expenses for National Anti–Doping Organizations'.


WAIT! What about the new and improved 2007 CODE, which was approved by consensus in Madrid last November?


The wording of sub–Article 20.7.8 has changed (as did five of the eight sub–Articles).
New text is
[bracketed in blue], small red text signals a deleted text item (sorry, we can't use any strike–through text at Blogger.com)


Draft copy (showing edits):
20.7.8 To
conduct Doping Controls as authorized by cooperate with relevant national and international organizations and agencies and other Anti–Doping Organizations, including but not limited to, facilitating inquiries and investigations.


A clean version:
20.7.8 To cooperate with relevant national and international organizations and agencies and other Anti–Doping Organizations, including but not limited to, facilitating inquiries and investigations.


The evolution of this sub–Article is HIGHLY relevant to the contention promoted in this WADAwatch analysis.


Why?


Simply because, by modifying the new 'improved' CODE, WADA has offered itself the ability to do after USADA, AFLD, USA Cycling
and other Signatories implement the new CODE, exactly what it is now doing (prematurely? legally?) in the Landis appeal to CAS.

“To cooperate (new verb) with... Anti–Doping Organizations, including BUT NOT LIMITED TO, facilitating inquiries and investigations.”


It would not stretch the judicial interpretation of this CODE Article, to argue that its non–limiting clause includes funding other Signatories' legal battles. Yet still this Article should express 'inquiries, investigations AND DISCIPLINARY PROCEDURES' if that is the intent of this change.


Why?


Because by redrafting it as displayed, WADA was able to, subconsciously or otherwise, avoid discussion of this modification in Madrid: it could 'hide the ball' from interested parties (thus limiting cautious debate from conscientious Signatories) who may not have been present in the drafting exercises.


YO, WADA!
Hey... John?!


How do the small country Signatories feel (a number of African, South American, Eurasian or Asian states qualify), which supportsWADA but barely have the funding to run the testing, or process the endless TUE (Therapeutic Use Exemption) paperwork, when hundreds of thousands of dollars, which could have been available to aid it to fund its obligations, are going to the world's biggest, and best funded ADO?


Pretty disingenuous of Mr Tygart, he of the organization with a budget that dwarfs most countries anti-doping budgets, to prefer his time was spent in support of 'clean athletes', while swallowing the funds from WADA that could have helped his counterparts on other, less fortunate continents?


It must be embarrassing for USADA to admit it cannot afford to run an appeal against an Athlete, to whom it may not have sufficiently performed its duties (although this may pertain more to the USA Cycling executives), as outlined in Article 7.1 and 7.2, regarding 'departures'.

[Maurice Suh was contacted by WADAwatch twice via emails, in the last five months or so, and has not yet sent anything, but standard 'thank you for your interest', auto-replies... free legal case development services at least could be acknowledged??]


SIDEBAR one: Floyd's case forces upon him the legal burden to prove that 'departure from the International Standard occurred which could reasonably have caused the Adverse Analytical Finding' (Art. 3.2.1), if evidence exists of laboratory failure to follow ISL requirements. This is another major clause that has been 'screwed tight' by the WADA redrafting exercise.

Yet there exists the prior burden, ignored in most analyses of the Landis case, which places on an ADO or Signatory 'with results management responsibilities', the preliminary burden to ensure that there was no departure (See Art. 7.1 and 7.2, as mentioned above).

The importance of this cannot be minimized, because it puts ADOs forward, whose neutrality should (HA!) be as unassailable as that of WADA, as the first line of protection of an Athlete's rights.

The opposite legal effect is in practice; in the Landis case, USADA should have signalled 'ISL' departures to the LNDD lab in France, and to WADA: in reality, USADA hid those, and fought to suppress such evidence from being admitted.


At this point, some swift sifting of WADA's formative history is necessary.


Much of the early WADA CODE drafting process (that became the 2003) was shepherded forward under the aegis of Richard Young, an American attorney with the Denver law firm of Holmes Roberts Owen. WADAwatch was once told "Richard Young 'WROTE' the WADA CODE", but this is not from any official WADA source.


Richard Young was very influential in the 2006–2007 CODE redrafting exercise, and was the attorney on stage who led the line – item review for Signatories and Observers attending the World Conference. (photo by WADAwatch)


The body of changes brought to the new WADA CODE, by Richard Young, et al, has slackened standard lab analysis criteria for establishing evidence, as mandatory B Confirmations were reduced in scope, and 'Aggravating Circumstances' was introduced to double the duration of imposed suspensions, without a definition of the term per se.


We are now examining another of these subtle 'broadenings of power'... in the changes to Article 20.7.8. Very little modification to make fairness or equality, between the agents of accusation, and les accusés
, was effected.

SIDEBAR two: Remember that WADA continues to misinterpret the legal differences between providing a “list of examples” and “definition” (although they have an Appendix chock full of relatively unnecessary defined items, such as ADAMS, their secured computer network), and has published this Legal Opinion in support of this modification. WADAwatch is cited, as a critic, on page 29 of that PDF document.


Richard Young was the lead attorney for USADA, who hired he and his firm to prosecute Landis.


Richard Young (starting to read like an indictment?) was the attorney whose opening statement claimed the Landis case would be 'won by hard science', yet whose only surge in momentum came from a bizarre distraction involving Greg Lemond and Landis' then manager, whose outlandish (couldn't refuse) telephone call created a horrible press event, and cast unnecessary aspersions on many of this opera's actors.


Richard Young won that first hearing, in a two–to–one split decision.


See the big picture?

(not the photo!...
of Richard Young
in Madrid last fall)




BIG PICTURE one


Yesterday, Richard Young went on trial.


Richard Young's WADA CODE. Richard Young's LANDIS CASE.


And perhaps, WADA, who may not be legitimately permitted by its CODE, to fund the USADA case. (Evidently the WADA Legal Office, and its lawyer Director General, are of an opposite opinion)


This analysis may not fly, if WADA presumes it can serve itself from the new CODE; if it believes that CODE 2007 is what controls today. Yet Floyd's case should be taken under the precedent CODE, since the relevant Signatories have not yet (to Ww's knowledge) integrated the new CODE into their national or Signatory internal regulations.


BIG PICTURE two


WADA is simply (and evidently) lethargic enough (or nefarious enough?) not to 'force' any legal sense of equality into their CODE.


It projects into the press, and a less than inquisitive public, the sentiment that it has the 'high moral ground', then proceeds to implement devious legal imprecisions throughout its CODE, and enforces a morally lax, regulatory attitude that places major financial burdens on Athletes (can we say 'dissuasive effect'?) to procure the missing CODE 'judicial interpretation'.


These actions create an unstated 'legal tax' paid by any Athletes who dare to pursue their legal rights of defense.
[And, should an Athlete select a full–court press defense, that action may, in and of itself, trigger violations of (we have to presume the WADA interpretation...sigh) it's under–defined Article on Aggravating Circumstances]


More clearly stated: there is only one reason for the high legal costs faced both by Landis, the accused, and USADA, the Inquisitor. WADA's controls of Laboratory documented work product(s), and their conversion into legal evidence, are so lax, so bent like a young willow tree over a river, in a direction least favorable to equality, scientific legitimacy, and forensic quality.


So, if WADA publicly offers contentment, that the burden to define the CODE is a burden for Athletes who dare litigate their cases, they imply obliviousness to the...


Law of Unintended Consequences


Floyd's case shows all evidence of having pushed WADA back all the way to the fence.


WADA's two major International Standards (for Testing, and Laboratories) are on trial. Its star legal drafting agent (Young) is facing the battle of a career.


WADA is scared. And still, Floyd probably has chewed off his fingernails.


This latest development, is simply a shame, and displays shameful, perhaps illegitimate behaviour from a supposedly neutral, international standard–setting Organization.


Are these phrases still relevant, when WADA has turbocharged the prosecuting agency with hundreds of thousands of dollars in legal funding? The Fundamental Rationale of the CODE seeks in Athletes and Sport:

“Ethics, fair play and honesty.”

[....]
“Character and education.”

[....]
“Respect for rules and laws.”


?????????


A finite, bright line that should exist, between 'truth' and 'lies', or 'truth' and 'negligence', does not.


In New York 'justice' may prevail, and it would serve WADA as a vicious slap to the psyche, if a portion of the new Landis decision by CAS serves to update today's leading CAS case ruling, one of the most quoted phrases in sport doping law:

"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))


CASE?

Landis at the CAS, in New York, this weekend.


SET?

WADA, its CODE, its DRAFTING, its MODIFICATIONS, its FINANCING of this USADA appellate prosecution.


MATCH?

Provided, perhaps, by CAS.


They can match, or 'balance', the scales of justice, and reorient the impact of Richard Young and his WADA redrafting committee's distortions of rational law, and Fundamental Rationales.


The Court of Arbitration for Sport has an ordained power, at this moment, to slap down the callous presumptions and presumptuousness of WADA, and provide the Athletic world, through this single, system-rocking Landis case, the maximum amount of 'judicial interpretation' WADA 'thought' it wanted.


Article 3.2.1 (burden on Athlete; departure);
Article 6.4 (lab conformity with ISL, etc.);
Article 7.1 and 7.2 (burden on ADO; 'ensurance of zero departures');
AND: the International Standard for Laboratories...


CAS could be the lighthouse, illuminating the need
for WADA to redraft its CODE before the majority of
its Signatories finalize their implementation processes.


If WADA can't return to the legal path, which WADAwatch and others had hoped for it: objectivity, calm scientific competence, neutrality in voice on cases under its umbrella, this vision of its Fundamental Rationale is forever shattered with the calmly published news of WADA's incredibly biased action against Floyd Landis.


WADAwatch, as a concept is daily becoming (IWwHO) more valuable than a blog. The rights of Athletes, which could be enhanced and ensured by WADA, are not being regarded; they're being devastated.


The time is ripe, to transform WADAwatch, to align with kindred philosophies that
SHARE WADA's latent objectives, for rendering sport cleaner.

An institution, perhaps, that offers protections and legal aid to Athletes whose lives WADA is mandated to control.

As long as WADA continues to press forward, with substandard Standards, CODEs and priorities, WADAwatch will implore reason, and demand consistency to WADA's Fundamental Rationale.


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.


Historical trivia SIDEBAR:
This author grew up in New Jersey, and Anne Debevoise was also a student of our school, one or two years ahead. It's not a common name, but the law firm where Landis' case is to be heard, Debevoise and Plimpton, is probably older than our combined ages... Anne could well be the grandchild or great-grandchild of the founders; it could be merely a coincidence. She carried the first 'French' name to which we were exposed...

The mysterious child-woman, a precocious hippie girl, a beautiful flower child of flaming red hair, with whom we could have joined the Woodstock Nation, and 'passed through a ZENdoor', had we been five years older...
(Not that she would have known of, enjoyed, or amplified any regard in which I may have held her, as a younger student...).

Memories... it may be a good omen, Floyd; WADAwatch is happily somewhere in a Debevoise state–of–mind.



Watching WADA manoeuvre

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

© 2008 ZENmud productions


4 comments:

Jon said...

Drew,
I knew that USADA had no independence from WADA, in spite of what Will had to say. Follow the money. Tygart and Young were flunkeys of Dick Pound all along. Now Tygart and Young polish the boots of John Fahey.

Query: Did WADA pay the AFLD Landis case legal expenses and has WADA modified the code so that WADA will co-operate with accreditation contractors such as COFRAC to suspend athletes from competing in national races carte blanche? Oui or non?

Great article.

Jon

Anonymous said...

Wada stinks of extreme and shameless EUROCENTRISM

The ego driven entity known as WADA COULD NOT BEAR TO lose to the american Landis

Wada wants to grandstand as Usada's fairy godmother. Reason: buy and dazzle American politicans who will HELP lasso baseball football and golf sports with its imperialistic code book of rules

Wada will always deny financial aid to African south American Eurasian or Asian signatory states and fund American and always European groups

INSIDE AND OUT wada's BUSINESS MODEL IS BASED ON EARLY HISTORICAL EUROPEAN COLONIALIST AND IMPERIALIST MODELS OF European superiority. ITS RULES, FUNDING, ORGANIZATION AND INTERNAL POWER STRUCTURE ALL POINT TO THIS FACT. Wada is outdated and needs a new direction. they should call themself european and american and not a world agency.

There offices are up in Canada but so what? They don't fool anyone and might as well pick up and move back to europe.

You don't care about sport WADA?! You are obsessed with more power and more control and tooting your european horn. Leave Landis alone and stop re drafting rules to support your twisted goal of controlling the $ in sports. You don't care anything about justice. If you do, go help south america and africa instead of giving money to the richest country in the entire world to fight one rich man on a bicycle.

Wada you are making a fool of yourself on a very big stage.

ZENmud productions said...

I hope, Anonymous (like your comments by the way...) that you realize there is a vast space between WADA and WADAwatch!

In fact, if you're lucky, WADAwatch will become the balancing NGO that helps WADA function on a level playing field...

ZENmud
ps. Jon, thanks I'm cut off of the net for another day... more to come tomorrow.

ZENmud productions said...

hi Jon,

by now I hope you've managed to take one big bite of my new post, on the 'Amicus brief' for Floyd.

I WISH I could find some scuttlebut on the case, from inside the system.

But I'm wondering still (such as implied in both 'CASE SET MATCH' and 'AMICUS BRIEF'), why WADA is protecting Young... and excuse me, I need a re-read of your 'query'...

i can't understand what you are thinking, about what COFRAC would have to do with AFLD suspending Landis "outLANDIShly' without international legal basis (IWwHO)...

"help me I'm lost Cathy, I said, as we swept into Pittsburgh...."

smile
zenD

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