An amicus brief* to CAS in the Floyd Landis case
or
“IF I were an aliquot, and you were my Labby...
Would you set me down anywhere,
Would you treat me shabby...?”
(NB: this post is the web-equivalent of
a 14p. document: you are warned!)
[this document has been revised in BLUE text]
*This writing imagines that one could present to the CAS arbitration Panel hearing the Floyd Landis appeal, an 'amicus' brief (a 'friend of the court' document), offering arguments or persuasive reasoning that could help the Panel to reach a just conclusion. These are sometimes pertinent, where the interests of a case, and the potential Decision expected, would have repercussions extending beyond the immediacies of the parties.
This writing does not rise to the level that it could, in terms of citations to law, or otherwise, were it to be properly submitted to the CAS arbitrators. WADAwatch reminds the casual reader that drafting to a Court, or Court of Arbitration for Sport, is laborious, hopefully thorough, hopefully persuasive and hopefully correct. In most cases, weeks or months would be taken to create such a document: WADAwatch spent some eighteen hours on this draft.
It does qualify - when submitted to the Court of Public Opinion...
[NB: Endnotes are unlinked, and marked as [FN1] et seq.]
+ + + + + + + + +
[Not...]
...to the Distinguished CAS Arbitration Panel hearing the Floyd Landis appeal in New York City, which began its five–day schedule on Wednesday, the 19 March, 2008, and ended on Monday, the 24 March.
Introduction
1. This amicus brief is presented to the CAS Arbitration Panel by WADAwatch, on behalf of those individuals whose lives are most affected by the Decision that will be produced in the appeal of Landis v USADA: future Athletes found guilty by WADA accredited laboratory evidence of a doping rule violation. This appeal, presently being heard and decided by CAS, follows the Decision against Mr Landis, a licensed professional cyclist, which was taken by the AAA Arbitration Panel, having been properly appointed under jurisdictions shared or attributed by the UCI, with or toward the agency USA Cycling and the USADA, who variously shared rules and responsibilities. The AAA Panel published its Majority Decision and Minority Dissent on 20 September 2007.
2. WADAwatch is a globally accessible, English language Internet 'weblog', or 'blog'. [FN1] Its distinct market is in rendering WADA operations more transparent to the non–legally focused world, providing pleas to its institutional conscience, and raising consciousness to the full legal import of language presented in the WADA Code. The Code is the World Anti–Doping Agency (WADA) “Level 1” document; WADA also has 'Level 2' documents which include its two International Standards (for Testing and laboratory analysis. IST and ISL, respectively) as well as other subsidiary documents that, in combination create the international sport anti-doping regulatory system. The ideals of WADAwatch match those included in WADA's Fundamental Rationale (infra, at para. 53). WADAwatch hopes that its commentaries serve to aid WADA and its constituent stakeholders, who seek together to attain higher levels of regulatory competence, facilitating thereby respectable levels of scientific and legal consistency by its Signatories, such that Decisions similar to this case are equitable and just.
3. WADAwatch (sometimes noted herein as “Ww”) refers to comments it had published, having been included in the officially–published “Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft World Anti–Doping Code with the Fundamental Rights of Athletes”.[FN2] Inclusion of that Ww comment, by the authors of that Legal Opinion, affords some small indication of the sincere assistance provided through this blog, which was established some six months ago, in September of 2007. Ww attended the Third WADA World Conference on Doping in Sport (Madrid, November 2007)[FN3], as well as its Third Press Symposium, held in February 2008, in Lausanne.[FN4]
4. In offering this amicus brief, Ww will address four problems that Floyd Landis has been facing, since his victory in the 2006 Tour de France was overturned by the Majority Decision of the AAA Panel, based on evidence produced by the French national laboratory for sport doping cases. Two of those four problems have origins in the case as developed against Landis by the legally responsible organizations who contributed the evidence, or to processing of the case; one problem originates in the institutional attitude of the WADA towards Athletes' litigations; the last topic only originated in the week prior to this Landis appellate hearing. Those topics are:
What level of confidence can be associated to the evidence that the Laboratoire Nationale du Dépistage du Dopage (LNDD) offered (being a French governmental laboratory, now renamed the 'département des analyses', and hierarchically placed within the Agence française de lutte contre le dopage (AFLD))?
Is Landis inculpated only due to an unequal application and enforcement of the WADA Code between classes of stakeholders?
Is WADA's reliance on 'Judicial Interpretation', as a means to amplify unexpressed, or hypothetical meanings of its Code, actually a “Quigley violation” to proper WADA rules promulgation?
Given the aspects of Argument III, supra, is participation by WADA in financing a majority of the USADA appellate costs in this case a legitimate use of its funding under the controlling 2003 WADA Code, or does it establish a very discriminatory precedent toward future Athletes, whose defense of their cases, solely due to WADA's inordinate reliance on 'judicial interpretation' as opposed to proper Code drafting, may be more contentious and thus more expensive than otherwise would be the case under a properly drafted WADA Code?
I Evidence from the LNDD
5. The 84–page Majority Decision of the AAA arbitration Panel who decided the Landis case, in September of 2007, included these two sentences, regarding the quality of certain evidence:
“The Panel does, however note that the forensic corrections of the Lab reflect sloppy practice on its part. If such practises continue it may well be that in the future an error like this could result in the dismissal of an AAF finding by the Lab.”[FN5] (emphasis added)
6. In the less verbose (26 pp.) Minority Dissent, Attorney Christopher Campbell wrote the following ascerbic opening to his Dissent:
“From the beginning, the Laboratoire National de Dépistage et du Dopage (“LNDD”) has not been trustworthy. In this case, at every stage of testing it failed to comply with the procedures and methods for testing required by the International Standards for Laboratories, Version 4.0, August 2004 (“ISL”) under the World Anti-Doping Code, 2003 (“WADA Code”). It also failed to abide by its legal and ethical obligations under the WADA Code.”[FN6]
7. It becomes difficult to fathom how the Majority of the Panel could accept 'sloppy' forensic corrections in the Landis case, as well as apparently dismissing the other evidence of substandard lab performances, and hand down a two–year suspension against the Athlete, at the same time it conditioned this action by stating that if “such practises continue it may well be that in the future an error like this could result in the dismissal of an AAF finding by the Lab.” This CAS Panel must satisfy this question: 'why did Landis lose, if a future litigant would likely prevail, if and when the same lab creates the same errors again?' There are very few exceptions to a rule for Athlete's ingestion of Prohibited Substances, or Procedures, yet the AAA Majority, in this specific case, has appeared to create a 'do–over' rule for lab failures that is not found in either the WADA Code or ISL.
8. How did LNDD earn such low marks from both sides of a three–member panel, and still have its evidence triumph in this case? Should future Arbitration Panels have an arbitrary discretion to 'hand–slap' an offending laboratory, and menace it with future sanctions if “such practices continue”, while effectively handing down a decision that destroys the involved Athlete's career as a bread–, and Tour–winning father and husband? Is there no vehicle provided through the Code through which a substandard submission of doping control evidence holds that laboratory liable?
9. The deliberation by CAS arbitrators, as to the above written AAA Majority's assertions, as well as the questions found in the immediately preceding paragraph, presented by WADAwatch, must be intimately related by logical reasoning, to the second legal contention offered herein: WADA has instituted a biased system of enforcement.
II Unequal application and enforcement of WADA Code amongst stakeholders
10. WADA appears to have deliberately produced an enforcement system, being the WADA Code, and its related subsidiary International Standards, that has been designed to protect its Signatories unduly, and inflict unnecessary legal costs on victimized Athletes.
11. Any urine Sample, taken from a licensed professional Athlete, or cyclist in this case, should be treated as forensic evidence in light of the enormous penalties under which these Athletes are now penalized if proven at fault.[FN7] WADA has sought to ensure that quality forensic work products are standard to the laboratories it has accredited. To ensure this, WADA wrote Code Article 6.4 “Standards for Sample Analysis and Reporting”:
Laboratories shall analyze Doping Control Samples and report results in conformity with the International Standard for laboratory analysis.
12. While making quality analyses mandatory according to its International Standards, it has de facto imposed an implied standard of strict liability on its family of accredited laboratories. There exists, however, no mention in the Code for any penalties to accrue to a laboratory that fails these forensic duties. This appears to be a deliberate omission by the drafting committee of the World Anti–Doping Agency, for which no explanation is available (to the public). Ww stresses that this 'appears' to be the case, because, in the Code, WADA provided a clause regarding appeals by laboratories that have lost their accreditation (infra, at para. 19, et seq.).
13. Prior to introducing that Appeal process available to suspended Laboratories, there is an additional Code Article to bring to this CAS Panel's notice. Article 7: Results Management, also has mandatory language prescribing the process for administrating 'potential anti–doping rule violations, in the 'pre–hearing' phase.
14. Briefly, Article 7.1 “Initial Review...” contains the following extract:
“Upon receipt of an A Sample Adverse Analytical Finding, the Anti–Doping Organization responsible for results management shall conduct a review to determine whether: (a) [Ww: on TUEs]..., or (b) there is any apparent departure from the International Standards for Testing or laboratory analysis that undermines the validity of the Adverse Analytical Finding.”
15. Article 7.2 “Notification After Initial Review” mandates the next logical step:
“If the initial review under Article 7.1 does not reveal an applicable therapeutic use exemption or departure that undermines the validity of the Adverse Analytical Finding, the Anti–Doping Organization shall promptly notify the Athlete, in the manner set out in its rules, of... .”
16. Thus any Athlete, whose status as such is of sufficient sporting ability to merit attention by WADA and its Signatories, receives an express assurance by WADA and its Signatories that his or her Samples must be analysed in conformity with the Code and International Standards, as found in Article 6.4. He or she, as Athlete facing a potential AAF, also has the express assurance of WADA and its Signatories that the ADO with results management responsibility will first ensure that the evidence it receives, in light of the indications of positivity provided by the accredited Laboratory, presents no evidentiary indications that the laboratory “departed” from these norms (Article 7.1 and 7.2).
17. WADAwatch would point the CAS Panel's attention, once again, to Code Article 7. ADOs 'shall' seek to confirm that the evidence is of forensic quality. They are instructed to do so, confirming that there are no 'departures'. However, reasonable reflection would bear witness that WADA deliberately chose not to include any potential “Article 7.3”, which might have laid down a mandatory procedure for ADOs to follow, if they did find a significant 'departure' from Code and/or International Standards, by the Laboratory that produced the inculpating evidence. And whether it could do that in one sub–Article or two, there is also no required provision within this Code Article that the ADO with results management authority shall inform the Athlete of its finding of a 'departure', shall confront the Laboratory on behalf of an Athlete, when 'departures' are noted in the submitted evidence package from a WADA accredited laboratory. Ww also would have the CAS Panel note, that there are neither a Definition of 'Departure', nor any list of examples, as to what level of 'departure' should cause a laboratory suspension or revocation. This should not be the case, that an Athlete may be inculpated exclusively through inclusion of such substandard evidence, as we have from the Landis Majority Decision.
18. A system as established by WADA must resonate fairness to all participants for it to retain the State support of its Signatory Governments. CAS must consider why equilibrium was not provided within the construction of the Code, with strict liability standards against Athletes' ingestion of doping product(s), and no commensurate provisions against labs. This CAS Panel must consider whether or not these legal mandates are distributed fairly upon its Signatories, their accredited laboratories and the ADOs. Put another way: has WADA constituted a 'balanced' quasi–legal system affording rights to all parties in equal measure? This brief contends that that ideal world has not been provided, to date, by the work of the many people or institutions whose combined efforts have produced the WADA Code. There are serious oversights, or omissions, whose responsibility lies on WADA, in apparently failing to create Articles that clearly designate what ADOs are to do with evidence suggesting substandard laboratory performance. The fact is, that the Landis case is the ideal vehicle to 'Audit' the entire legal regime that WADA has laboriously constructed.
19. As noted in paragraph 12, supra, the Code contains Article 13.5: “Appeals from Decisions Suspending or Revoking Laboratory Accreditation”. Therein, WADA catapults across the void it carefully established through apparent, designed inattention or neglect, being the failure to address actual suspensions or revocations of any Laboratory's WADA status, and declares:
“Decisions by WADA to suspend or revoke a laboratory's WADA accreditation may be appealed only by that laboratory with the appeal being exclusively to CAS.”
20. WADAwatch submits that this represents an aberrant, unjustifiable leap of legal norm–setting. WADA leapfrogs from its mandating of proper science work practices on Laboratories (Art. 6.4), and ensuring no laboratory departures from that standard occurred, by the ADO with results management responsibility (Art. 7.1 and 7.2), to ignoring the consequences on that Laboratory if proven to have produced substandard work product(s). Yet why then has WADA provided, in the Code, for 'Appeals' by Laboratories that were suspended, or revoked, presumably for substandard scientific and forensic competences? WADA has claimed that the IST and ISL allow for these types of Laboratory–related investigations and/or disciplinary actions.[FN8] The WADA ISL Article 6.4.8.2 lays out the 'Suspension of Accreditation' structure, with a list of examples: the only pertinent example is “failure to take appropriate corrective action after an unsatisfactory performance”. Read a second time, that phrase harbours great import to the position WADA has taken. This abnormal position is obvious: WADA does not suspend laboratories that perform unsatisfactorily: it is only expressing that it could suspend a laboratory subsequent to its failure to take any corrective action. CAS should be very aware of the lack of balance this causes. The equivalent level of punishment, if levelled against Athletes, would mean that Athletes would only be suspended IF they were told 'don't take dope' and failed to stop doing so. As we are unclear from WADA's failure to include any Definition, whether 'unsatisfactory' is worse than 'sloppy' but better than 'untrustworthy', CAS may have to 'interpret judicially' what WADA means by this inarticulate Article. There is no link from this example in an isolated ISL Article, to stating who decides, in which forum, that a laboratory had performed to an unsatisfactory level. Nor may any ADO initiate an “ISL 6.4.8.2” action, without an expressed regulatory basis in the WADA Code at Articles 6.4, of 7.1 and/or 7.2, or prior to Article 13.5. As far as is possible to discern, WADA can suspend any laboratory, whenever it 'feels' justified. WADAwatch would assert that, if WADA anticipates that its sport–doping regime is to survive as structured today, there should be express reference within the Code (Logic would dictate this be placed after Article 7.2) toward the precise Article(s) in the ISL and IST, if necessary, which control disciplinary proceedings between WADA, the ADOs and accredited laboratories. ADOs who may have to alert WADA to a need to investigate and, if necessary, procede into a disciplinary action against one of its labs, after receiving a laboratory's evidence documents, now have no expressed legal course of action in the Code.
21. CAS will render its Decision, de novo, on the facts of the Landis case, while aware that the WADA accredited Laboratory, according to all three Arbitrators on the AAA Arbitration Panel, did not maintain portions of its work product in conformity with the WADA Code, nor with its International Standards. There is no reference to any submissions forwarded by the USADA to WADA or to Mr Landis, notifying these interested parties of consequential departures, nor is any request made by the USADA to WADA, to sanction the LNDD for its “sloppy” or “untrustworthy” work product(s), which in combination create the equivalent of a violation of mandatory quality standards mandated in Article 6.4. Yet the transcripts from the AAA arbitration prove that Mr Landis incurred great expense to show that these forensic manquements apparently were a simple result of the LNDD's consistent and considerable failures to take its responsibilities seriously. This is a serious error of procedure by the USADA, and that organization's failure to act as described here also implicates WADA's failure to enforce compliance on Laboratories it deems 'accredited'.
22. Whether or not CAS is reassured that it may never have need to hear a WADA accredited Laboratory appeal its suspension (Article 13.5), due to the omission of criteria in the Code that would generate such a case (which WADAwatch has stridently suggested should happen, proposing herein the inclusion of a Code Article 7.3 and/or 7.4, if necessary, to 'complete the chain' from exposed departures), the ambiguities presented have imposed undue, severe financial burdens on the Athlete, Landis. He evidently had to litigate his case based on these insupportable findings of 'sloppy' work or 'departures', with USADA, rather than receiving USADA assistance against the evidence package provided by LNDD.
23. CAS should consider the enforcement of a finding that the ADO with results managing responsibility (here the USADA) failed its duty on behalf of Floyd Landis, to pass to WADA a report of 'laboratory departures' in which the grounds include this accredited Laboratory's failure to perform sufficiently (furthered through the evidentiary problems analysed in the Decision and Dissent), under the imposed Code and International Standards. A Decision that the USADA failed to so perform, was only a failure due to the lack of controlling language within the WADA Code, would have justifiably strong impact on WADA, and would reinforce, legally, that which WADA has not performed: adequate drafting of its quasi–legal enforcement system, to enact similar levels of strict liability on each, the Athletes and Laboratories whose evidence (Article 6.4, ISL) inculpates those Athletes. If the USADA failed a duty to protect this Athlete from an unnecessary litigation (Articles 7.1 and 7.2), that failure is only by implication, since WADA itself has failed to provide the necessary regulatory tools. CAS could also establish, with this Landis appeal Decision, its view on how the trend of these perceived imbalances, expressly resulting from a deliberate path of omission by WADA, as to the exorbitant legal costs attributed therein. Constraints against Athletic conduct must be balanced by equal liability and enforcement, and the mechanisms to do so, toward the accredited Laboratories on whom WADA relies. WADA and impugned Athletes could have swifter justice with fewer appeals, at lower cost, under a clear and balanced WADA Code. This is not yet the case, and a Decision by this Panel can ensure that this process is undertaken.
III 'Judicial Interpretation' as a “Quigley violation” of WADA rules promulgation
24. In life, many situations can be found, in which members of a group may decide to see '... how far they can go', or '... what they can get away with'. One example is in many families: children will rebel against their parents by using TV–watching as an excuse to stay awake longer: 'please? Just to the end of this show?': thus begging parents to accord one extra half–hour tonight, then forty–five minutes tomorrow.
25. Politicians can perform similar acts, often with consequences more grave. WADAwatch submits that, during its original drafting process and the recent redrafting exercises that have produced the WADA Codes (first the 2003 version, and as redrafted (through 2007), taking effect before 2009), WADA institutionalized an attitude that it had to act tough against tough actors, and that it could do so by creating tough rules. Whether the WADA Code represents 'Tough Love', it also has, in retrospect, revealed a disdain approaching arrogance for fairness and equality between its various Signatories and the Athletes whose lives are affected by accusations and convictions for doping.
26. The legal standard CAS instituted, on rules and their legal basis, has been in existence for some thirteen years now: it precedes the birth of WADA. In the CAS case of USA v. Quigley, CAS reasoned the following:
“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.’ [Ww: emphasis added]
(CAS: USA Shooting & Quigley v. UIT, 1995 (CAS 94/129))
27. WADAwatch submits that the above stated reasoning remains the 'gold standard' for the normative formation and implementation of a regulatory system for administering globally uniform sports–doping discipline and justice. If ever CAS varied from this level of objectivity, hopefully that would be to impose a higher and stronger basis for administrative rule–making. Landis may present the case that serves justice by demanding the updating of Quigley, which argued between the lines for creation of a fair regulatory system.
28. However, evidence is growing that WADA itself prefers the opposite: an anarchic, piecemeal system which is receding farther, through each redrafting of the Code, from the Quigley rule. WADA consistently has stated or supported the contention that CAS, or the European Court of Human Rights, if necessary, can provide the additional adjudicatory input that amplifies, clarifies or renders less ambiguous, the deliberate commission or omission of Code Articles by WADA, offering incomplete or improper legal criteria.
29. The sequence described in Section II, supra, of the burdens, departures and appeals attributed variously to relevant Laboratories, ADOs and Athletes through Articles 6.4, 7.1 or 7.2, is one such example: WADA does not allow, by clear rules, for the bringing of a complaint of substandard lab work, as may be found in the evidence package of a positive control for any Athlete, by the ADO with results management authority. While another example pertains only to the revised Code, and its wholly–new Article 10.6 on “Aggravating Circumstances”, the “Legal Opinion” mentioned (supra, at para. 3, and endnote 2) states a viewpoint by its authors, both of whom qualify (with all due respect) as members of 'the small group of insiders', that Quigley against whom the Quigley decision warned. It is the contention of WADAwatch that a presumption must be that WADA is in full agreement with these authors, or else WADA would not have offered it on their website in support of their redrafted Code. The view stated by these authors, both eminent legal, sport doping and arbitration experts, includes the following:
“78. Indeed, according to the European Court of Human Rights, it is not necessary that the requirement of foreseeability derive in toto from the rule itself. It can also be met through judicial interpretation,[FN92] which often relies on official comments made by the drafters of the rules (travaux préparatoires).
[FN 92: ECHR Müller and others v. Switzerland, No. 10737/84, Judgment of 24 May 1988, at 29, where the Court that found that the Swiss Federal Tribunal’s consistent case law could supplement the very broadly formulated provision of criminal law.]” [Ww: italics added]
30. In opening this Section of our amicus brief, WADAwatch alluded to a serious contention: of omissions or commissions that result in incomplete legal drafting, and present a presumed WADA 'viewpoint' of 'can we get away with this'? If WADA were seriously disposed to create a harmonized and standardized process for 'convicting' Athletes of their doping offenses, it should have reasonably anticipated the case might appear in which one of WADA's Laboratories, staffed with a combined total of hundreds or thousands of employees around the globe, may inadvertently, negligently or deliberately produce Doping Control results leading to the prosecution of an AAF, which may not rise to the level of forensic consistency and control mandated by Article 6.4.
31. If the failure to draft the Code properly was merely an oversight, and if CAS decides that what was presented by LNDD was not forensically reliable evidence, CAS should nullify the USADA–AAA arbitration Decision and reinstate Landis' Tour de France victory. It should not agree to offer 'judicial interpretation' on a case–by–case basis, where the Organization whose rules do not conform with Quigley, is anticipating such an outcome, and thereby avoiding its just duty of proper rules promulgation. If deliberately designed with the lacunae already cited herein, the WADA Code and its progeny have created a prejudicial system to which CAS, as a respected member of the International Olympic Movement for many years, should not be offering its support. A Decision that sustains USADA, as was given in the AAA Decision, would be a serious blow against Quigley.
32. CAS should not allow a precedent to be established, which creates an illegal 'legal–drafting TAX', on Athletes facing suspension hearings. If WADA and its Code drafting committees are not able to foresee and prepare for cases under a fair system, and if it hopes to 'win points' through litigations in front of panels presided over by a 'small group of insiders', in contravening the pure institutional essence of Quigley, then the burden of paying this tax falls on, or is shared, only by litigating Athletes whose cases involve acerbically–opposed interpretations to these over–dimensioned Code lacunae. Recent news articles have pointed out the cost of some two million dollars achieved, by Landis' efforts to clear his name and reputation. Certain of these media articles contain 'complaints' by WADA or USADA officials, lamenting their necessity of spending exorbitant sums to 'prosecute guilty athletes'.[FN9] WADAwatch submits that it is not within the portfolio of CAS' many competences, to act as a redrafting agent for the extensive problems that are associated with the WADA Code, through a single Decision as complex as will be produced for this Landis case. Further, States are paying, and the IOC is paying handsome sums to WADA, in anticipation that WADA performs its drafting duties to the highest possible capability, when the reality comes across differently: today, it is Floyd Landis, and his attorney's, as well as the citations provided by the previous AAA arbitration Decision and Dissent, that bear witness to the high costs of appealing arbitration decisions which may have been taken as a result of the poor drafting of the Code. Mr Landis' legal costs are directly attributable to the poor drafting of the Code, its progeny, and the combined lacunae which this amicus brief has highlighted.
33. WADAwatch contends that such complaints to the press by WADA and USADA exhibit disingenuous media manipulation by both organizations, where WADA's lack of precision drafting, under the guidance by members of WADA's drafting or redrafting committees, has by itself created the unfair, biased system under which only an Athlete with 'deep pockets' can actually hope to clear their name and reputation. WADA could have drafted a Code, and complementary International Standards, whose clarity, fairness and precision reduced the need for 'judicial interpretation' to a last, de minimus resort. It did not succeed in that exercise, and it remains questionable whether it in fact intended to do so. It should do this forthwith, rather than waiting for another World Conference some years ahead in the future.
34. USADA could have avoided these extraordinary costs, of which it has publicly complained in the press [FN10], by using the same evidence it received from LNDD in a sanctions hearing against LNDD (under hypothetical bases, since the procedures needed remain imaginary, not being components of the Code, specifically Article 7, nor from the ISL), instead of presenting it, as valid evidence against Landis to the AAA Panel of arbitrators. In that fashion it would have been LNDD who paid the piper, instead of Landis, in a potential disciplinary hearing against LNDD. If some such process had occurred, a Panel that described portions of that evidence as 'sloppy practice ... [which] could result in the dismissal of an AAF finding by the Lab”, or, simply “untrustworthy”, may have suffered the LNDD to bear being the first WADA accredited laboratory to be suspended or face revocation.
35. Ww suggests that this CAS Panel has the ability to render an extraordinary Decision, and should do so, requiring WADA to reflect upon its unstated yet implemented policy of forcing litigating Athletes to shoulder very heavy financial and legal burdens. Guilty Athletes, or innocent ones, nevertheless are sharing a simple goal: finding justice in a balanced, harmonized and standardized system of sport–doping adjudication for the AAF or rule violations of their case, with unassailable fairness to all Signatories and Athletes. They should not bear the financial burden of carrying water for WADA, via repeated 'judicial interpretations' of deliberate or arbitrary drafting failures in its Code. If WADA had to subsidize any side of a doping Arbitration, it should be forced to subsidize an Athlete's legal expenses the instant it argues for 'judicial interpretation' of any substantive lacunae omitted from the Code. CAS must remind WADA of the vast degree of difference between 'judicial interpretation' and 'failure to perform diligent Code drafting duties'.
IV WADA's participation in financing a majority of the USADA appellate costs
36. WADAwatch suggests that the Court of Arbitration for Sport is much better equipped, legally fully competent, and certainly more familiar with WADA, its Code and International Standards, than are the Athletes, and a good percentage of attorneys who work for Signatories of WADA. Costs of defending one's status as a internationally recognized Athlete, whether guilty or innocent of an AAF, when 'sloppy' or 'untrustworthy' laboratory evidence may be the cause, are going to be high for any Athlete, and any ADO, whether the world's best financed, such as USADA, or one from a less resource–rich country. Whether their prowess merits financial compensation through salary, winnings or product endorsements, or they enjoy a sport with little or no commercial value, Athletes facing an AAF or rules violation, innocent or guilty, alike, must pay their own legal fees, or submit to receiving the suspension for a violation that may not be able to be proven satisfactorily. The procedures to discipline and suspend Athletes are more often funded by the ADO with authority, or National Olympic Committee, or any sport–oriented Federation. Under the WADA Code 2003, there is no Article or sub–Article mandating that the funds that come to WADA through its budgetary process of contributions from the International Olympic Committee, Governments and other Signatories, may be used for 'boosting' the budget of those Signatories whose own financial structures may be inadequately funded for litigation of sport–doping cases.
37. Stories in the press, early in the week leading up to the opening of the CAS hearing for Mr Landis in New York, brought to light that WADA had contributed the lion's share of funding for the USADA appeal costs. CAS must rule that this financial intervention is untoward, unfounded in the WADA Code, and rises near to the level of unseemliness that broaches the territory of 'conflict of interest'.
38. It has been the consistent position of this amicus brief, that CAS should deliberate and decide that the evidence presented by LNDD does not rise in reliability to the standard to which WADA should reasonably be holding its Signatory accredited laboratories, that unequal enforcement has been, inadvertently or deliberately, introduced into the Code and International Standards, that WADA's admitted reliance on 'judicial interpretation' places undue burdens on Athletes, and constitutes a illicitly–imposed 'judicial tax' on the Athletes who must not only fight the AAF results, but the unfair legal process that WADA has imposed.
39. It is a wholly–separate issue of greater import and with grave, lasting repercussions, that WADA has provided funding to the ADO prosecuting the Landis case appeal. Article 20.7 of the 2003 Code lists the “Roles and Responsibilities of WADA”. Therein it is established that WADA shall act:
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.
40. It remains clear from Code Article 13.2.3, that WADA holds a right to appeal, broadly across the system it has instituted. In neither of these Articles, is WADA accorded the selective arbitrary function of financing other appeals in which it is not appearing as a party in good faith.
41. There is no mandated, nor justifiable policy that allows WADA to add its financial resources in such a blatantly unjust method, less than a week prior to the opening of a hearing process. WADA announced with some remorse, at its World Conference in Madrid, the operational problems it was facing from: a) unpaid Signatory annual contributions, b) increasing numbers of adjudication–related expenses through increased appeals in which WADA had appeared or initiated, and c) the falling US dollar, as contributions came from around the world in various currencies, were converted to Canadian dollars (the denominated operational currency) and that obligations of the Organization were often paid out in dollars, thus producing a major shortfall (given the dollar's recent collapsing trend).[FN11]
42. WADAwatch points out to the CAS Panel, that the sub–Article 20.7.8 cited supra, has been expanded into the redrafted Code. It now reads as:
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.
43. Ww wishes to remind the CAS Panel of our high level of discomfort, at what appears to be irresponsible WADA endorsement, or new criteria, being that of 'judicial interpretation by design'. Yet, once again, in the near future when this revised Code sub–Article comes into force, a future litigating Athlete will perhaps be forced to argue against the ADO having enforcement authority, that the 'not limited to' portion of this sub–Article should not be extended to financing ADO appeals.
44. There are three foreseeable problems with the current case being funded by WADA, as well as the revision shown above, to Article 20.7.8.
45. Firstly, WADA appears to be establishing a bad precedent of commencing operations as a 'Central Bank' for extraordinary cases. That it is doing so for the largest anti–doping organization, the USADA, appears to indicate a need to win this case 'at all costs', and detracts from having funds available to perform its duties across the board of its other educational, research and assistance activities. WADAwatch requests that the CAS Panel consider the image given to WADA's member States, and other Signatories, of whom some valid requests for such assistance and support to progress in their implementation tasks, were probably refused by WADA, for a lack of available funds. It may not be under the remit of this CAS Panel, to resolve a question of whether WADA, given its current financial state and its inability to fund some member States' or other Signatories' requests for funding assistance, is legally supported by acting as it has against one particular Cyclist, in one specific appeal. If allowed, the extraordinary precedent established in this case, via WADA's generous funding of it's richest Signatory ADO's most expensive case to date, opens a Pandora's Box of inestimable problems.
46. Secondly, the situation could potentially give rise to a conflict of interest, precisely across the sum of positions taken substantively in this WADAwatch amicus brief. It is no secret that the attorney who contributed greatly to the initial process to create the WADA Code, and chaired the committee that redrafted the Code in the years 2006–2007, which exercise culminated with acceptance in Madrid last November, is also the lead attorney that was hired by USADA to prosecute Floyd Landis. He stood before your Panel this week. CAS is in the position of watching this one attorney use the portions of the Code that exist, under his own expert designs, to prosecute an Athlete, who may have been without blame if an 'Article 7.3' was part of the Code as herein suggested. Mr Landis is paying mighty sums: to clear his name from accusations founded on 'sloppy' or 'untrustworthy' evidence, or complete that attorney's WADA Code work product, through 'judicial interpretation'.
47. If the Code is incomplete; if the Code as written, is legally biased against Athletes and imbalanced, in favor of not disciplining a Laboratory whose work shows substandard performances, or 'departures', if the precedent hearing was able to conclude that there existed a sufficiency of evidence to penalize Mr Landis simply because the Code contains loopholes that allow egregious Laboratory errors to be ignored, these may be attributable to the one individual who has worn two hats in this case. WADA may be funding this appeal illegitimately, to protect the entire body of work that it has deliberately produced, under this attorney's guidance.
48. Reverting back to the revision of 20.7.8 (supra), the wording of this redrafted sub–Article certainly could provide for inclusion of similar wording: “... not limited to, facilitating inquiries, investigations and disciplinary procedures.” (emphasis added) WADA did not do so: was this a deliberate omission? Will CAS request that WADA rectify this sub–Article? Is Floyd Landis being taxed, through participation in an appeal to clear his name, for CAS to provide proper drafting suggestions for WADA, that the attorney and his various drafting committee colleagues have failed to provide, in spite of their long, accumulated years of expertise, in the exercise of their mandate? Ambiguity in law, rarely favors the pocketbook of the client who pays for the Court to 'trancher'.
49. The sum total of evidence originated with one exceptional positive test against Landis, by the LNDD, and the procedures of litigation surrounding that evidence, has created the perfect lens, an eye into this case with which to examine "what is the WADA Code and system?" In attempting to create judicial balance between the Athletes, on the one hand, and the entire investigatory and disciplinary mechanisms on the other, WADA has glaringly misstepped and poorly fared: the financial burden on Landis remains enormous. As we see through the Landis case–lens, Articles appear to have been designed simply to dissuade present and future Athletes from succumbing to, or reverting to the world of insidious doping practices. In redrafting its sub–Article 20.7.8, the omission of these three words “... and disciplinary procedures” (supra, para. 48, in italics) will project, in all likelihood, yet another future 'judicial interpretation' defining WADA's Code. However, and more importantly, the sum evidence of poor Code redrafting by WADA, of Article 20.7.8, denies member Signatories, those States and International Federations, as well as the IOC, an open debate as to whether this was a proper role, for an Organization whose limited financial resources would become increasingly strained by such selective case–support.
50. Moreover, the third strike against this action is the worst: the fact that WADA finances an appeal running against Athlete 'A', and does not do so against Athletes 'B', 'C' or 'Z', is the most blatant exhibition of institutional discrimination that such an Organization could portray. WADAwatch cries, in a loud voice charged with reason, and rationality, that injustice is being forced into any Decision that favors WADA's position throughout this case.
51. WADA is funded by Governmental contributions, other contributions from IFs, and matching funds from the International Olympic Committee. The United States is, one presumes reasonably, one of the larger national sources of funding contributions (which are not broken out in WADA's Annual Reports). CAS could consider, without ruling (as this case is not about the USA's contributions), whether the effect of WADA's contributed sum to aid the USADA prosecution of the Landis appeal, has a de facto effect of offering the USA a rebate on its past contributions. How are other States going to regard this 'reversed contribution'?
52. CAS is implored not to allow WADA to subsidize the Landis appellate prosecution. Whether CAS agrees with WADA and USADA, or Landis, his attorneys and WADAwatch, as to the case–specific details regarding use of exogenous testosterone by Mr Landis, its Decision must include repayment by USADA for the funds it has received in transfer from WADA, and it must forbid that WADA discriminate against selected Athletes in a similar arbitrary fashion in the future.
Conclusion
53. WADAwatch has not addressed the actual scientific evidence itself. WADAwatch merely focuses, and presents for review by Court of Arbitration for Sport, that this Landis case actually presents many vital arguments that devolve simply into a profound assessment of what WADA is, what WADA does, and how WADA implements both, through documents and its Signatories. The Code begins, in part, with a Fundamental Rationale. Components of those high ideals include: “Ethics, fair play and honesty”, [....] “Character and education”, [....] “Respect for rules and laws.” It is the most sincere contention from WADAwatch, that there are better methods for implementing these ideals institutionally, than WADA has displayed, as viewed through the magnifying lens that is the Floyd Landis case.
54. Proper rules promulgation is the essence of that which CAS sought via its decision in the case “USA v. Quigley”, in the decade prior to the creation of WADA. Not in any rational world, should an exceedingly biased document be able to offer rules that are strictly imposed on only one component of the realm it regulates. If the reasoning in Quigley is to be endorsed, CAS must see the sum total of the imbalances imposed by WADA against Athletes as unjustifiable, unjust and in need of immediate redress. This is not to lighten the controls taken against Athletes, this is to bring other Signatories, such as laboratories, or ADOs, to the same, strict scientific perfection that is the basis for an imposed 'Zero Tolerance' anti–doping system. Violation of the ISL, 'in another case', could have the ADO telling WADA that it must refuse an indicated AAF due to laboratory rules violations: the Athlete would be shielded from a false accusation, the laboratory would defend its actions to WADA and the ADO, a decision would be taken, and only at that point, would the world know if an Athlete was under suspicion of doping, or if a laboratory was being suspended. No other system creates the 'better world' WADA appears to want publicly.
55. If evidentiary Standards (Art. 6.4 and ISL) on laboratories are to be strictly enforced against Laboratories, CAS cannot find in favor of USADA and WADA against Landis.
56. If the level of strict liability that is imposed on Athletes, and rightly so, is also to be imposed rigorously on laboratories whose work produces the only evidence on which AAF cases hinge, then CAS cannot find in favor of USADA and WADA.
57. If there is a case against Mr Landis, only due to the fact that an ADO like USADA cannot bring a case (a hypothetical “Article 7.3 case” as herein suggested, supra, at paras. 17 and 22) against the laboratory who provided a substandard evidence package, characterized in part as 'sloppy', or otherwise as 'untrustworthy' due to the laboratory's failure to work to International Standards, CAS must decide in favor of Landis, if only to the degree that the evidence does not rise to a 'convicting' quality.
58. If the implicit policy of WADA remains status quo, forcing Athletes to fund (a Code–drafting tax) its extensive necessary 'judicial interpretations', which become absolutely necessary to mend the lacunae, or gaps evident throughout the original Code, and its redrafted replacement, with no proper Quigley system to put Athletes (or other “Persons”) on notice as to the legal effects of operations under the Code, then CAS cannot endorse those deliberate actions with a Decision supporting USADA and WADA.
59. And whether this CAS Panel is persuaded by the arguments presented herein, WADAwatch is crying out in favour of justice: there appears to be a) absolutely no legal justification, b) overwhelming evidence of discrimination, and c) aspects that give rise to an appearance suggesting a potential conflict of interest, all of which are posited by WADA's funding of this appeal prosecution. CAS must force WADA to reverse the decision to fund USADA in this appeal.
60. WADAwatch thanks the Court of Arbitration for Sport for allowing its submission of this document to another forum: the Court of Public Opinion.
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WADAwatch has conceived and hopes to implement a rational organization that will agitate diplomatically for that which WADA appears to have not yet created: a level field for the litigation of sport–doping offenses. If WADA strides forward in confidence that its quasi–legal judicial system is sufficiently protecting all parties; WADAwatch will match its paces, reminding the world that justice is available, through conscientious deliberation to round out the lacunae.
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ENDNOTES:1 WADAwatch - a blog
2 "Legal Opinion on WADA Article 10.6" (Title abridged here) see page 29, footnote 89: The legal position established therein, by WADA regarding Code Article 10.6, has not altered.
3 WADA Madrid World Conference homepage
4 WADA Media Symposium page.
5 Majority Decision, para. 290, p. 77.
6 Minority Dissent, para. 1, p 1.
7 A positive A Sample test in the 1988 Tour de France, was negated by the fact that the substance found in Pedro Delgado's urine, while on the IOC List of Prohibited Substances, had not yet been added by the UCI to its own List. Had Delgado been found 'Positive', the sum total penalty would have been a TEN–minute 'time penalty' added to his Classification Genérale standing in the Tour. Today, a similar AAF under the WADA Code is a minimum two–year suspension.
8 Personal conversation with Rune Andersen, WADA Director of Laboratory Standardization, at lunch, Saturday the 17th of November, Madrid, 2007.
9 "WADA steps in, helps pay for USADA's expensive case against cyclist Floyd Landis" The Examiner (online), 18 March 2008.
10 Ibid.
11 Personal presence at WADA World Conference as Independent Observer, 15–17 November 2007.
This article was published online after the
Easter weekend, 2008; it contains little content that
WADAwatch has not already addressed in some
two dozen or more previous articles.
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.
© 2008 ZENmud productions
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