Thursday, 6 March 2008

WADA - virgin territory

WADA's Legal Reference pages

In responding to a request for research through the legal pages at WADA, and its appellate record, WADAwatch ran a quick tour of the WADA website today, in the strident hope to come up with glimmerings of an answer, or two.

A swift survey started, simply enough, with a glance through the WADA website page 'Sitemap' (in EN).

NB: That sitemap page has just been installed in the right-hand column of WADAwatch links >>>> over there >>>>>.

WADAwatch remains curious at the results found there. WADA furnishes the following headings, and WADAwatch has added the information in parantheses, as a visual aid. Under this heading (no link from it):

- Legal: articles, case law and national laws

Are these linked topical choices:

- Overview (id=379 )
- Advisory and Legal Opinions on the Code
(id=377 )
- Legal Articles on the Code (id=539 )
- Case Law (id=378 )
- National Laws (id=659 )

Now WADAwatch will tell its readers, that astonishment may not be the word that properly conveys the sentiment, when finding out that ALL THOSE links go NOWHERE. Notice, that there are five different URL string endings?

Which simply means, as Gertrude Stein famously said, 'There is no THERE, there.' Each of those links, goes to a separate 'empty' page (means: no content of a any nature that fulfils the purpose of the link. Eg: 'Case Law')

Translated, it means that WADA simply has not yet provided online access to its 'law library', its overviews, 'Legal Opinions', articles, case law and national laws' archives, in a system that is attainable through diligent use of their 'site map' page.

Now, readers may scoff, and remind Ww that the homepage of the WADA site has the text that follows:

Independent Legal Opinion Finds Code Revision Compatible with Fundamental Rights of Athletes

Yet that link goes to this URL:

Which is an intermediate page, offering yet another link (Why not?) to a choice of legal items.

However, its URL as thus:

Which is close to, but not identical to, this:

(did you see a difference? OR Category_id :
the difference between _ and . )

+ + + + + + + + +

So, either WADA is needing to call back to work an AWOL website management person, or its self-trumpeted call for 'transparency' in the world of doping in sport, could arguably start 'at home', through a great amount of work to build up WADA's own in-house library.

FOR THE RECORD: Even having a page that does catalogue the topics for which most of the links above are
available, still it is worth a final mention that the CASE LAW, and National CASE LAW, are not available on the cited page, above.

Also worth mention, is that the bottom of the 'site map' page has a list featuring THIRTY-SEVEN country names; it also displays six Federations (or one IGO: UNESCO) on the 'site map' page.

WADAwatch confirms that NOT ONE of those pages has any substantive content other than 'standard WADA links':

  • Not even France: whose AFLD should soon be displaying the antidoping rules it intends to utilize for the plethora of ASO race events that will not be run under UCI rules; and it certainly could display online its 'case history', especially that of Floyd Landis, who (WADAwatch maintains) was illegally prosecuted under an inapplicable French Code Civile law;

  • Not even the United States: where are its USADA decisions, the 37 'victories' (Noting that USADA has never denied being different from WADA, which maintains a stance for 'justice' over 'winning'), including the Landis/USA Cycling affair;

  • Not China... not yet... Beijing Summer Games: 154 Days and counting;

  • Not even UNESCO: WADA would, wouldn't it, want to have a link to the UNESCO Treaty (Dear WADA: the link is over >>>there>>>> in the 'Related Anti-doping Linx' box, as well), as it clearly wants more State members to its organization?

In terms of TRANSPARENCY, WADAwatch is mulling over still, whether it would be useful, and legally justifiable, to encourage WADA to go as far as to post its Legal Briefs online, in advance of the arbitration appeals it pursues.

Director General David Howman claimed that WADA's true interest, legally, is 'that justice prevail', not winning for the sake of winning. His comment came when answering a question from WADAwatch directly related to the CODE Article 10.6: Aggravating Circumstances.

The truth is that WADA will allow these 'judicial interpretations', which have an implied effect of shifting judicial expenses from WADA - who could have offered a legal definition of 'Aggravating Circumstances' - to the Athletes facing the first litigations under its ambit (WADA's often expressed attitude is that 'judicial interpretation' is proper, when amended texts offer less-than-clear guidance to the Athletes themselves).

WADAwatch continues to trumpet that, in doing so, WADA perpetuates an ongoing perception of unfairness; not only will the first Athlete(s) who are tried under 10.6 going to have to argue their defense, they will be burdened with the legal costs of passing an argument to the Arbitration Panel that may define (for better or for worse, vis-à-vis WADA) any and all legal ramifications of this additional severe penalty regime.

And, WADA seems not to worry, were CAS to find judicially that this Article 10.6 has been poorly drafted, to the point where Athletes whose cases may be determined under its elements find themselves relieved of its intended effect.

Article 10.6 of the CODE, if you've not read it, effectively doubles any two-year suspension, for EVERY athlete who cannot prove that they ingested 'something' ONE TIME, ACTING ALONE, without INFLUENCE BY A THIRD PARTY. If that doesn't seem harsh, maybe read it reversed: any Athlete, who's proven to have 'repetitively ingested' (sequence of doping events), or proven to have 'multiply ingested' (more than one ingested substance), OR proven to have either followed advice (or 'orders') or to have 'obstructed' an investigation or litigation on any AAF or rules violation, is going to be off the field for the doubled term.

didn't WADA simply convince its Signatories that, in its four years of applying the CODE, it appeared clear that the onus of a two-year suspension had not proved itself as adequate to stem the doping 'tsunami', and thus a four-year standard suspension should be debated, and if agreed, implemented?

Instead, it went through this perhaps-unfairly conceived amendment, a royal gift to the prosecuting Richard Youngs of the world.

In summary, if WADA purports to seek 'justice', rather than 'victory' in its appellate arbitration cases, it could rightfully publish any document it used for the appeal of any arbitral decision, coincident with that document being filed with the CAS or a national Appellate review.

For judicial interpretation to have meaning and import, those cases must be maintained in an openly accessible archive, preferably at no cost to any researcher, or attorney. At the CAS website, their preferences seem to be in offering a selection of cases only, and certainly only the most recent.

Hopefully, the more serious side of new President John Fahey will awaken to this lacunae in his fervent desire to bring WADA forward, in a crucial year of radical changes that are going to explode across the media screens of this summer, firstly in accents from France, and secondly those of a Chinese flavour.

John Fahey's effective speech in Lausanne included its emphasis that the CODE had 'proven to be fair, and effective'. Time to prove it, John, by augmenting as swiftly as possible the missing Case Law content, to the sporting world watching WADA.

Watching WADA, for you,


© 2008 ZENmud productions

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