Or "WADA and LNDD/AFLD v Landis: evolution of the species"
In 2006, two different doping cases, with origins in French cycling events, the first in the Critérium du Dauphiné Libéré, the second at the Tour de France, have brought a bright spotlight into the inconceivable incompetence, now on legal record, concerning the French laboratoire LNDD (and perhaps its 'master', the AFLD):
both concerning cyclists;
both were accused of testosterone 'abuse', based on evidence packages developed in the finest LNDD tradition;
both cyclists deplored the status of the 'evidence package' that concerned their prosecutions;
yet each case came to the Court of Arbitration for Sport (CAS) through opposing attitudes of national ADOs ('Anti-doping Organizations').
The 2006 Floyd Landis testosterone case, with its origines at the finish line doping control testing zone in Morzine, France, succeeded in generating massive terabyte amounts of web pages, and thousands of written pages, as it enters its 22nd month (642 days since Morzine). The case concerning Iñigo Landaluce (Intxaurraga) took perhaps 1/100th of the publicity:
NB: Google 'CAS Landaluce' and 'CAS Landis' (Hits: 25,300 // 240,000)
Then Google 'testosterone Landaluce' and 'testosterone Landis (219 // 163,000)
Then Google 'dopage Landaluce' and 'dopage Landis' (73 // 53,200)
The vast majority of Landis stories have, to an overwhelming degree, refused to acknowledge or have ignored what has become glaringly obvious to increasing numbers of astute observers. As case after case that turn on LNDD's evidence, its laboratory documentation packages, journalists rarely discuss the historic trend this lab has presented, in the 'spotlight cases'. Evidence is mounting, that only political concerns have allowed LNDD to retain its WADA accreditation (on the theory that, if LNDD's science or forensic competence remains discreditable, and if WADA doesn't act according to its alleged laboratory disciplinary protocols, then a political (contribution–based?) consideration has taken silent precedence) in spite of numerous reasons to call its hierarchy into question.
As long as that stance remains at WADA, whose assertions to the press appear unwaveringly uniform, the repercussions throughout the real world offer little credibility to any claims of 'laboratory efficacy' due to WADA 'accreditation'.
The WADA system wins when the cases on Adverse Analytical Findings (AAF) are won through science, and science alone. The one legal trend that WADA appears to have created, is a greater envelope of legal leniency towards laboratory failures of duty.
Here in Geneva, at the French border of western Switzerland, WADAwatch has not yet come across any single article (or series) that has deeply investigated and revealed any portion of the totality of shortcomings for which LNDD is gaining increasing global notoriety. If there ever was any 'laboratory efficiency' as a WADA–system selling point, Marion Jones' confessions (some 180 different tests were negative in spite of her recent admissions and prison term for perjury) have certainly helped destroy it. Nevertheless, it remains to examine the incessant trail of evidence concerning zees laboratoire en France: the Agence française du lutte contre le dopage (AFLD: literally the “French Agency for the Fight against Dopage”), is the master of the formerly–named Laboratoire nationale du dépistage du dopage (LNDD)), now known, due to a change in the law, as the AFLD département des analyses.
This WADA accredited laboratory has, on multiple occasions, been warned, chastised, or offered legal 'second chances' and, has always enjoyed 'l'échapée belle' (FR: 'the beautiful escape') from sanctions, no investigations by WADA that have been publicized (more on that later) or, more importantly for Athletes who have unfortunately fallen within its sphere of influential connections, has it faced an official suspension or revocation of its WADA status.
WADAwatch asked John Fahey, and David Howman provided the answer, at the WADA Media Symposium in February, if or when WADA was going to implement an investigation into the actions taken against Floyd Landis, under French governmental authority and Justice, which in combination appeared to create a violation of WADA CODE Article 15.4 in its plain meaning.
The WADA response indicated that the Agency in France impugned none of WADA's regulations, citing the case being rendered 'under the previous law'. However, whether by offering scandalously bad evidence, promoting the leaking of information prior to proper results management procedures implementation, or by a secondary prosecution without legal basis (read this WADAwatch article 'Paths of Glori (-ous French Failure)' to see how France failed in its 'second Landis' prosecution).
This last point, as asserted by WADAwatch in the February press conference, is the point of view which D–G. Howman contends is not valid: 'a changed French law' abrogates France's responsibilities to provide 'Mutual Recognition' to the USADA process against Floyd Landis. Where the right to appeal any decision, such as exists in WADA's CODE, is broadly distributed to nearly any Signatory with any supportable link to the case at hand, France did not avail herself of the opportunity to pile on its own bed of thorns against Landis.
One could even argue that, the fact that France prosecuted Landis as a non licensed participant of a French race is so ludicrously illegitimate that one begs the AFLD (whose online, unsigned, censored (no names of its 'experts', nor of the judges: nor the fact that the 'Decision' was apparently issued on the same day in which Landis' attorneys submitted their final documents) to admit to having drawn up its six–page Decision in a bad sequence of cut–and–pasting texts into a wrongly–chosen model!
At WADAwatch, the above sequence alone appears to be proof of a perfectly French direct violation of the plain language found in CODE Article 15.4. Under the French tricolor flag, its various sport–doping agencies are not doing something that they are privileged to do, by attainment of a WADA accreditation. So we are told. The two cycling cases from 2006, one of which ending nearly a year ago, a second to be determined before the June bugs fly. In some fashion, most rational beings resist being satisfied that the outcome will offer true punishment where previously, under new young strong WADA, punishment has been taboo.
It is not within our earthly powers, to understand why the AFLD département des analyses (or LNDD), has never faced the public wrath of WADA. Even the WADA Independent Observers' Report from the LNDD (if you need to LAUGH, this French-language report, with ascerbic and sarcastic commentary from the UCI, will roll you off your desk), covering the Tour de France 2003, was inclined to chastise the laboratory for several lax comportments. One wonders how often a year WADA calls up LNDD Directeur Jacques de Ceaurriz, to demand 'what did y'all do this time?', especially after LNDD single–handedly went 'on strike' after the 2007 Tour, and forgot to finish their contracted assignments in the Iban Mayo case last year.
As the Floyd Landis case forces an in–depth examination as to the continuing efforts by the respected international staff members of WADA to create a just system, so too does LNDD's symptoms in the face of their interactions with global sporting justice, afford us a longitudinal examination, or introspective, into WADA's relationships with its family of laboratories.
The very nature of the LNDD l'échapée belle indicates that one of three (minimum) scenarios is an actuality of our times:
1 The French government is aware and supports certain actions of the LNDD;
2 The French government is unaware of, and won't investigate certain actions of the LNDD;
3 WADA is (or was?) itself a vehicle, or provides the means, through which an unknown actor (or actors) could mask certain actions taken by LNDD for unknown motivations.
Whichever scenario exists (our Rubik-like situation might offer “cubic” scenarios, beyond Choices 1, 2 or 3 themselves: by combining 1–with–3, 2–with–3), other theories become of interest to Sherlocks and their Watsons: evidence remains on the table, for the intellectual researcher into intrigues and 'conspiracy analyses'.
As we approach the Tenth Anniversary of Le Tour Noir, the 1998 Tour de France, we can apply recently–acquired historical information to flesh out the body of knowledge then known.
Long–winded recriminations against 'All Cyclists' have been trumpeted repetitiously to and through a cynical sporting world, perhaps it is as widespread as they claim. One voice, of former three–time Tour champion Greg Lemond, projects himself as one of the 'last clean champions': accepting his theory – that his 'downfall' was expressly due to the rise of EPO in the professional peleton – is plausible. Without naming his 'successor' on the Parisien TdF podiums, we now have reasonable information that indicates that, at least by 1996 and 1997, the chain of Spanish victories was broken due to an intense and organized doping effort by the Deutsch Telekom team, whose victories in 1996 and 1997 (by confession for Bjarne Riis, by suspicions pointed at former East German Jan Ulrich) were seeding more doubts.
Yet we only have Lemond's word as to his own propriety: what possibly separates his 'version' of reality as a clean cyclist, from any other confessed Marion Jones story, or suspected Lance Armstrong?
At the same time, as a former resident of Colorado during 1973–1994, at +/–1600m altitude (Denver–Boulder) or +/– 2500m (Vail), it was the era when massive numbers of endurance–event athletes (runners and cyclists, notably) migrated into high altitudes for the pre–EPO 'blood–packing' effect provided by long–term altitude training.
NB: living at altitudes, where the air thins sufficiently to affect performance, causes the increased compensatory production of red blood cells; living at altitudes above 2000m. Lemond resided in Nevada, another western US 'high-altitude' state.
Thus we have the 1990s as the transition from 'legal' high-altitude blood–altering, to medical (EPO) blood–altering, which became illegal once exposed at le Tour Noir. And, if accorded an option to parody Greg Lemond (and.. DuPont?): 'Victory without chemicals became impossible'.
In the three–year transition between Indurain and Armstrong (Pantani's presumed chemically–induced sensations of 1998, taking out Ulrich in a torrential Alpine rainstorm), what effect within France, did the embarrassment caused by the Festina team scandal create? After all, here was its trainer, Willy Vogt, busted at the French–Belgian border town of Lille, with many hundreds of doses of EPO, perhaps enough to 'drive' more than one 'Dream Team' in the TdF peloton to their 'best efforts'?
Is it a menial question to wonder why France, through the LNDD, was not acting years in advance of the embarrassment caused by Festina? Europeans nearly everywhere use the phrase 'la bella figura', in Italian the expression for required stoicism in the face of adverse public disclosures.
Not one of the 'dirty' riders that have since 'come clean' was ever busted by LNDD. Especially, none of the French stars of the epoch, notably Richard Virenque, were ever trapped in the LNDD nets. Admittedly, an ability to test for EPO was not yet a reality. Was science so far behind, or was EPO 'accepted' in the peleton until Festina forced the sport's collective powers to 'react' to restore la bella figura?
Remember, EPO was an integral component in sports doping for nearly ten years or more, before the UCI established the “Rule of Fifty Per cent” concerning hematocrit levels, however it was only two years AFTER the Festina Affair, that NATURE published the new LNDD test.
To be sure, we have not access to knowing who staffed (more importantly: who directed) the LNDD throughout the Nineties. We remember how the 1998 TdF mea culpa helped instigate the International Olympic Committee to 'give birth' to WADA: the World Anti–Doping Agency.
And we cannot avoid noting that, in purely statistical aspects, the LNDD–département des analyses must have competent people doing competent work, in an overall sense. So where's the problem?
Consistency.
In the June 2000 issue of NATURE magazine, a short article jointly authored by LNDD staff (Françoise Lasne and Jacques de Ceaurriz (Director of the Laboratoire from ? to present)), offered its detailed highlights of a new urine test for detecting the presence of exogenous r–EPO, and offered an analysis for research purposes, of leftover 1998 Tour de France samples. Nothing improper there, as LNDD suggested that the results of its developed tests 'proved' that, some 28 samples of the 102 frozen samples exhibited EPO levels above the established norms, when examined with this new doping control methodology. The new revelations incited a medium level of intrigue, but LNDD played by the universal lab rules: this time.
Nothing in 2000, was untoward or devious.
LNDD offered no names in its appearance in Nature (one imagines that the editors of Nature are essentially wise enough to realize that someone as an author may be breaking the Helsinki Accords, if names were included in a research piece), working under the international testing and research methods that pre–dated WADA (See eg: WADA CODE, and ISL, or its Annex B, which mention “the Helsinki Accords and any applicable national standards as they relate to the involvement of the human subjects in research.” (Laboratory Code of Ethics, Art. 2.2, “Human subjects”, p. 54). The World Medical Association (WMA), which drafted the World Medical Association Declaration of Helsinki Ethical Principles for Medical Research Involving Human Subjects (Helsinki, June 1964; Part A, Introduction: para. 1, p. 1) , mandates very clearly the need to guard anonymity inviolate. As provided on the releases signed by Athletes, remaining Samples can be used for research purposes under strict conditions that enforce total anonymity. The magazine article in NATURE, remains perfect evidence of what minimum standards should be established for publishing, when sports–doping science develops new testing methodologies.
Yet between its submission to NATURE in the winter or spring (pre–publication time reference) preceding the summer 2000 publication, and when L'Equipe published the article denouncing Lance Armstrong in August of 2005, within weeks of his seventh straight victory and retirement, something new entered the equation.
Someone decided, somewhere between WADA, AFLD (priorly working as the CPLD, le Conseil de prévention et de lutte contre le dopage), and ASO, organizers of the Tour, owners of the unfortunate and unethical L'Equipe French newspaper, that their combined commitment to their zealous needs, which WADAwatch would assert equaled 'bringing down Lance' usurped their mutual mandatory necessities of rigorous adherence to their own, self–adopted WADA rules. They could do so, actively and conspiratorially, only by breaking all the known rules of scientific ethics.
"Warp speed ahead”
Lance Armstrong had accumulated enormous, and nearly equivalent amounts of praise or rebuke, in his seven–year unbroken streak of Tour de France victories, yet his mastery at providing enough 'turbulence' to create both Spectacle and a well–fed rumour–industry was also unsurpassed.
What happened, from the time in 2001 when the French magazine Vélo wrote a strong and impressive survey of the nearly–scientific 'Armstrong technique' in 2001, and the sordid exposé with which the French sporting daily L'Equipe ignobly honored Lance's retirement? One undeniable fact certainty happened: professional cycling lived a penultimately strong commercial era, with Armstrong kicking his competitors' collective butts, which pushed media saturation for the Tour de France to its greatest levels ever.
The Amaury Sport Organisation (ASO), which owns the French sporting daily L'Equipe, profited like no other organisation; in owning the Tour de France, amongst other more peripheral entities, and the seven–year run Armstrong achieved, paralleled with merchandising sales or TV rights, and a coincidently strong period for L'Equipe ... which perhaps only could have been stronger if Armstrong... were French? Remember, since Lemond's first victory, in 1986, foreigners have won nearly every Tour de France, and an American has stood on top of the podium 11 times (Lemond (3), Armstong (7), Landis (1)).
So when Damien Ressiot published his exposé Le Mensonge d'Armstrong, as a “Merci–beaucoup, et à Dieu” as a 'homage' in the negative to the man that had brought them (ASO, and its subsidiary L'Equipe) the BIG money, what was different between 2000, when LNDD published its NATURE article, and 2005, when L'Equipe published its scathing, career–tainting article?
What was different, between 2000 and 2005?
We know from reading the NATURE article, that LNDD once displayed no unethical thoughts of exposing the names of the sources of its samples, under the parameters (mentioned above) that guard 'research anonymity' when B Samples are retained for scientific research purposes. We know it, LNDD knew it, ASO and WADA (on the scene, at that point (2005) for six years (from conception), or two years (the first WADA CODE was published in 2003)) knew of these rules guarding inviolable anonymity for research samples. They integrated the Helsinki Accords specifically.
So an 'obsession' is proven to exist, but not by whom. The obsession is over Armstrong and no one else: if Lemond and 'the others' are all correct, then why focus on one rider out of an entire rotten bunch?
All we know, is that L'Equipe had, if not the names for the other six positive–testing riders, access to their (French?... hmmmm...) identities, but specifically chose not to pursue or expose anyone but the one retired, Tour de France meal ticket – Armstrong. We know this thanks to the dedicated efforts of Emile Vrijman, former head of the Dutch Anti–Doping Organization, who investigated the leaked information published in the Ressiot article in L'Equipe. Under a mandate by the UCI, Vrijman enumerated the evidence, the links, the stonewalling by the French Government, and the facts that, in their totality, showed how WADA apparently coordinated efforts to promote a very prejudicial, public, press–based prosecution of Armstrong's six year–old B sample, based on 'a new test' which was not peer–reviewed prior to these leaked, confidential (if...) results.
We cannot break through WADA's efficient omerta
The OMERTA. A term from the Mafia, a term for the silence imposed on an enclosed world, any 'brotherhood', that must protect itself from exterior eyes. We can only point our analytical sonar at the iron–clad relationships that forms the WADA realm. We 'ping' its hulls, mapping its course through its announced activities, its policy choices and publishings.
Readers are familiar with the history of WADA's malevolent eye on cycling, while other massive sporting machines are only lately coming on line. In the USA, thanks to the Mitchell Report, its domestic major league sports (baseball, US football, basketball and perhaps hockey) have, at last, expressed acquiescence towards more intensive activities to fight their insidious doping practices. In Europe, soccer's FIFA appears to charting its own course, after years of resistance and grandstanding, into a rational application of doping control tests.
Returning to the discussions around the Vrijman report and its severe relationship–busting recriminations between Dick Pound of WADA and the UCI, as well as the Vrijman team, and Armstrong, that Lance was able to convince the IOC Executive Board to offer Pound a letter requesting a certain retenue in future situations requiring adherence to the very CODE he railroaded into existence. We do not know why Pound chose to abandon 'the high road', and drag his organization through the gutter of bad press. We do know that L'Equipe supported every statement that Pound offered. And the world was not ignorant to the perceptions of bias they exuberantly exuded.
LNDD – on its last legs?
For whatever possible reason, we bear witness to the extensive trail of official LNDD lapses, the kind that only survive review if they were, analogically speaking, the stupidities or the maliciousnesses of one's hideously bad–mannered nephew. Never punished, often wrong.
And thus we view Landis through the eyes of the CAS decision concerning Landaluce, whose samples from the Critérium Dauphiné also, as were Landis' samples, tested positive for testosterone. When Iñigo Landaluce' case first surfaced, it shared documentation aspects with the file that was forwarded in the Landis case to the USADA.
In the WADAwatch Amicus Brief, we presented an argument that claimed the WADA CODE was without a cure, in the situation wherein a national ADO with results management authority finds evidence that a laboratory has, in its analytical processing, produced a result (evidently an AAF – an Adverse Analytical Finding) via methods that equate as a 'departure' from the only allowed path that produces the technically–driven, forensic–quality science that allows a strict liability standard to be held against Athletes.
This is a burden on the ADO, which is precedent to, and superior to, the burden on any Athlete to prove in a hearing that 'departures' are of a quality that 'undermines the validity' of the AAF evidence.
The single difference between Landaluce and Landis, was in how the Spanish Agency interpreted their duties. As WADAwatch has argued (see Brief, eg: paras. 16-17 & 22), the failure by WADA, and its multiple (2002–3, and 2006–7) Drafting Committees to provide a potential WADA CODE Article 7.3, which should address implementation of a sanctions/investigation proceeding against a Laboratory with documented failures of its collective duties to perform at a high level of scientific precision and accountability (let's call it “Aggravated (or Aggregated) Departures”, in honor of CODE Article 10.6?), is a failure that offers systemic imbalance.
The Spanish agency chose to presume that it could 'dismiss' the prosecution of this Landaluce case, under the 'void' described by WADAwatch in our Amicus Brief. The UCI, if under pressure by WADA, or upon its own initiative, undertook the CAS appeal to overturn the Spanish ADO's Decision. That choice failed. CAS was clear in its ruling, as clear as it could be.
The CAS decision included words of great import, as to the unfortunate nature of yet another LNDD failure to perform. Given the straight and strict strictures on Laboratory divisions of tasks:
[ISL 5.2.4.3.2.2]
“The “B” Sample confirmation must be performed in the same Laboratory as the “A” Sample confirmation. A different analyst must perform the “B” analytical procedure. The same individual(s) that performed the “A” analysis may perform instrumental set up and performance checks and verify results.”
The CAS Panel sliced the issue strictly, against the Rule–makers:
112. This reasoning, although rational and plausible, fails before the CAS for a very simple reason: the arbitrators do not create the rules, the (sic) apply them. This is all the more true because the authors of the antidoping regulation kept the rule which requires another analyst for the analysis of the B sample, even though they had heard the comments of the laboratory directors. The rules can certainly be modified or refined, but such is not the role the CAS.
As we find out, the UCI appeal against the Spanish Decision comes up short, in the face of the UCI rules, which on their face control the legal and scientific safety of brandishing sub-standard evidence in the international anti–doping system.
LNDD, its habits long known, had cut corners, perfectly identified in the dossier, and their failure to follow the rules, were the legitimate and sole reason that Landaluce walked away from a potential two–year suspension. It may well be that we have the CAS decision in Landaluce to thank, for the redrafted WADA CODE that eliminates certain needs for a 'B Sample' confirmation, in the new CODE draft.
Yet the facts of Landaluce transpired only two months or so before the LNDD apparatus turned toward Landis' Samples, collected in Morzine. The results of Landaluce were not yet known, when the LNDD lab began its second litany of errors, as highlighted in both the Landis Majority Decision and Minority Dissent.
One of the great miscarriages of sports–doping 'justice', in our modern era, therefore, is in the USADA Majority's phrases, which treated Landis as an LNDD first offence. The Majority's words, as denuded of force, as agonizingly weak as one could possibly expect, from a body that must stand up for the Decisions it provides, ignored Landaluce. The Landis Panel, it must be admitted, failed to integrate the 19 December 2006 Landaluce Decision, with simple facts of LNDD failures PRIOR to Landis, when it wrote:
“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.”
[Majority Decision, para. 290, p. 77.]
We can wonder whether the Spanish hearing process reached its conclusion in favour of Landaluce out of honest assessments against LNDD's work, or via motivations revealing a more 'protectionist' attitude for one of its 'accused nationals'. WADAwatch certainly prefers to think that the first scenario is the trustworthy scenario. The Landaluce decision, according to CAS, was properly taken (meaning 'within its discretion' as the CAS has held in the Karapetyn case) by the Spanish Agency.
We can ponder why the UCI determined it needed to 'defend', through an appeal it lost at CAS, some concept that implementation of prosecutions based on faulty 'procedural evidence' should nevertheless result in a sport–doping legal conviction.
We have pondered and published several times, about the gaps inherent to the WADA CODE, and their insipid reliance on 'Judicial interpretation' to fill those chasms; WADAwatch insists that these lacunae create a real 'legal tax' on the individual Athletes, whose cases will determine through CAS intervention, whether the lacunae is resolved in favour of WADA, its Signatories, or the Athletes.
Answers to our musings, remain in the hands of CAS.
Its Decision regarding Landis, is now probably less than a month away.
The next Tour de France, however, is surely going to be providing horrorshow aspects, for the one simple reason: its Doping Control Tests, will be performed at a never–investigated, never–sanctioned, never–revoked French Lab, whose operations have never once been publicly investigated by L'Equipe, or the world's sporting press.
The International Tennis Federation (ITF), removed its 2007 testing from LNDD to Montreal, at the Roland Garros 'French Open' tennis tournament, only 18 short kilometers (or about 11 miles) distant from the French lab.
The French lab 'went on vacation' during on–going analyses from the Tour de France, notably the Iban Mayo EPO case.
All leaks from the LNDD lab, have never been investigated in France, nor by WADA.
And, in the late fall of 2007, the AFLD 'prosecuted' Floyd Landis, while ignoring WADA CODE Article 15.4, through a pretext that the license–holding American rider, whose test result from Morzine gave one metabolite reading as positive, was in fact 'a non licensed rider'.
There could not possibly be any more evidence needed, yet more should come from the Court of Arbitration for Sport, before June, that proves once and for all time, that the current structure and direction of the French Laboratoire nationale du dépistage du dopage should have its WADA accreditation revoked for a two–year period.
There is much more evidence on the Record, of guilt at LNDD, than ever Floyd Landis has had thrown at him, by the acquiescent sporting press, which cannot investigate the stories that stare it right between their own bloodshot (IWwHO) Eyes...
For those stories alone, the world needs to watch WADA,
...............@..............WADAwatch
Disclaimer
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.
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