WADA announced to the world's press that, in pursuit of its much-needed conviction of American cyclist Floyd Landis, it wished that it could seek remuneration by the dethroned 2006 Tour de France winner, for its expenses (of some +/- $1.3 million) contributed towards the CAS appeal costs of USAD.
The CAS decision, stemming from Floyd's March hearing in New York, apparently involves the review of (behind well-closed doors) some 400 pages of depositions (FR term 'témoignages'), and some 6,000 pieces of evidence, throughout the five-day hearing process.
But make no mistake about the hidden message therein:
WADA is bankrupting (In our opinion, at least morally, if not financially) itself, NOT to prove Landis doped.
It is draining its litigation account (the legality of which remains to be determined, as WADAwatch argued in its Revised Amicus Brief from early April) for one simple reason:
WADA is fighting to prove itself NOT GUILTY - in our neutral opinion:
... of permitting tortious laboratory malfeasance, of committing gross ethics violations by itself (through former president Dick Pound) and its French laboratory, and of submitting and enforcing: incredibly, poorly, Machiavellianly, its biased drafting (not once but twice) of the WADA CODE.
WADA is failing softly, falling swiftly, through its continual support of the worst accredited lab in its family.
WADA is rolling the dice, on a $1.3 million crapshoot, desperately attempting to salvage some form of credibility, of which it had lost its grip through the mis-administration of Dick Pound.
Floyd Landis, whose case has been described by WADAwatch as: "a profound assessment of what WADA is, what WADA does, and how WADA implements both, through documents and its Signatories.", is paying this unannounced 'tax', as the price for probing the limits of WADA's legal capacities to govern a process that has proven, time and again, to be solely contingent on an accredited laboratory's (link in FR) ability to
Perhaps the saddest thing that is happening in the sports world, regarding the "which-end-in-sight?" battle against 'le dopage' (which WADAwatch supports 100 per cent, so long as the origins of evidence are immaculately derived...), and the international, intergovernmental, inter-agency systems providing this, were announced from a Press Conference surrounding the WADA Foundation Board meeting that occurred this last weekend.
If it wasn't clear before, it is getting clearer and clearer: WADA appears to be entranced with the idea of capturing a global market, monopolizing that market, and wreaking the havoc that is a familiarity of most monopolistic systems:
A sports-doping control monopoly?...
In lieu of creating a fair, efficient, LOW COST and strictly balanced system, that satisfies every sentence of the CAS decision that gave us the Quigley-rule (See WADAwatch's 'Revised Amicus Brief', Argument III), WADA invented a biased system, and implemented that, allowing laboratories to accuse Athletes without having the proper systemic checks on their functions.
Since 2003, WADA has striven to mark its territory, and no one helped the cause more than the tandem aspects of Dick Pound, the most biased and unprofessional former president, and the world's sports journalists, who made him their starring-source of quotations.
Today, in the aftermath of Poundism, WADA has imposed on the world's International sports Federations (e.g.: FIS for Skiing, UCI for Cycling, etc.) a New! and Improved! CODE.
These IFs are, perhaps, nervously awaiting the lasting effect of the new draft CODE, which contains several on-running "bulls", the newly energized 'CODE on STEROIDS' negotiated with WADA in Madrid last November...
It is truly a monopoliser's dream document:
Athletes, who formerly had rights to a B sample, now face a CODE that has worded in a legal basis that can avoid offering the Athlete that long-held standard.
Athletes who formerly would be facing a maximum two-year offence, now are almost certainly liable to be slammed by the undefined WADA Article 10.6: AGGRAVATED CIRCUMSTANCES, which surreptitiously boosts first-offence suspensions into a four-year ban.
Worse: WADA has, through its CODE redrafting exercise, offered NO legitimate assurance (as of yet) to these Athletes, OVER NINETY-FIVE (95) per cent of which have never failed a doping control (when the evidence is sourced from a WADA-accredited laboratory), that the proper test was properly performed at EVERY WADA lab, with a standardized methodology, harmonized criteria, and, penultimately: uniform and ETHICAL results management.
WADA also has demonstrated recently, from whoever's advice and or request, that it is willing to spend its money (perhaps without protection of its CODE Article 20.7, that delineates and governs WADA's 'roles and responsibilities'), not to stand legitimately as an Appellate party, on its own force, but instead to discriminate against Federations and Athletes together, 'bailing' out one of the richest (comparatively-speaking) nation's ADO.
This has the feeling of the Alpha Male Elk herd Leader, herding its family forward, and distorting thereby the role of Justice to render a decision on the Landis case. But the damning evidence is mounting, and WADAwatch may have to hedge any enthusiasm for this new post-Pound era, evermore so since WADA chose to 'invest' in the USADA's prosecution of appeal, against cyclist Floyd Landis.
Read here, where we feel Pound has infringed his own WADA rules (from our crystelZENmud blog);
Read our crysteZENmud endorsement of John Fahey, prior to his election in Madrid last fall;
Read here, in the Revised Amicus Brief (E.g.: Argument IV: WADA's participation in financing a majority of the USADA appellate costs), where WADAwatch believes that WADA is on thin legal ice, in its biased and discriminatory subsidizing of the Floyd Landis appeal to CAS.
Arguably, WADA has no other choice, apparently believing (and announcing so in an arguably prejudicial period, while the Arbitrators of CAS are deliberating) that 'others' should be subsidizing this witch-hunt. By 'Others', WADA left it clear that they wanted to spin the situation onto the back of the UCI, a legitimate and historic IF that regulates the many cycling sports.
For the first time, the recently-concluded WADA Foundation Board session was presided over by Australia's John Fahey, who WADAwatch had picked upon his nomination, as perhaps the right man to re-establish a proper balance at WADA, once chosen to replace the boisterous and WADA-rule breaking first president, Dick Pound.
After last weekend's session, Fahey repeated an earlier WADA proclamation, in an article appearing in the International Herald Tribune on May 12, 2008, about their perception that the UCI was failing its obligations, and 'injuring WADA' itself, through a legitimate lawsuit that simply aims to dissect the rights of an International Organization's president, while serving elective office, and while responsible for establishing the Rules that he (Pound), his Organization, and the stakeholders must all adhere to, to have failed - in his duty:
to SHUT UP.
No one other than Dick Pound is responsible, the UCI has already commented in the past about 'cycling being Dick Pound's bête noire to advance his political agenda' (which, WADAwatch assures its readership, has not ended: try a test! ... Google 'Dick Pound' and 'Beijing' and 'Canadian athletes' and read the 12,100 web items... "Shut up or stay home" was a popular headline) and WADA's current press claims, in these weeks awaiting the Landis decision by CAS, are only as prejudicial TO THE SAME DEGREE as were Pound's claims about Floyd Landis, within days of the early release about Floyd's A Sample.
Why can't this Organization do the right - and dignified - 'thing'? It boggles a logical, legally-trained mind...
Reverting to the WADA claim about the UCI...
While the UCI could potentially be a party to an appeal of this nature, the established rules should always prevail. The case, brought by the United States Anti-Doping Agency (USADA), set new boundaries for un-ethical behaviour (neither side being innocent of that charge, admittedly, and this author is, due to the intervening events, forced to include 'conflict of interest' into the ethics equation), although prosecuting attorney Richard Young proclaimed that, no doubt, this case was to be ruled on 'science'.
The "Science", and the derived evidence therefrom that USADA offered as proof, as noted in our Revised Amicus Brief (Argument I: paragraphs 5-9), was duly and notably unreliable: both the Majority Decision (against Landis) and the Minority Dissent castigated the French laboratory LNDD: hypothetically by the Decision, categorically and emphatically by the Dissent.
Thus with the new CAS 'de novo' trial in New York, another monstrous series of deliberations is underway. CAS must be aware that, more than at any other time in its history, the results from its deliberative processing of the evidence will reverberate through every WADA Signatory, every world-class Athlete, every UCI cyclist, for a generation.
The proper outcome of a CAS-Landis case, as we argued, should produce a NEW landmark Landis Rule.
The scope of a hypothetical Landis Rule, however, would be a mysteriously severe rebuke to the organization that had been charged, de facto, to fulfil the plain language of the Quigley Rule.
More tragic to the sporting world than perhaps is doping itself, WADA, having admitted in these articles that it is spending its Signatories' donations to prosecute ONE cyclist (without appearing as an Appellant: Hmmmmmm? Was that a conscious decision? Taken, perhaps, to avoid cross-examination of The World of Wada?), announced its intention to "take up with the CAS" in June, said Director General David Howman: "the issue of costs in very expensive cases ... because there can be very good examples in civil law where the costs fall with the party who has been determined to be at fault." This position at WADAwatch is not uniquely rabid to the position taken time and again by WADA: this comment from our dear friends at TrustbutVerify serves well to mark the pertinent points:
"Good thing for WADA that they have to ability to acquire more working capital with the establishment of a "special fund" for cases just such as this, the same cannot likely be said for the athletes vainly attempting to find some "justice" within a system that seems more stacked against them every day. Due process, equal standards for all parties? Apparently WADA is not required to follow such arcane rules."
'Tragic', would be if CAS responded favourably to the hollow complaint offfered by the DG of the World Anti-Doping Agency. 'Ecstatic' would be a cyclist such as Landis, being awarded some 2 or 3 million dollars in lost wages and legal fees, after the proof is publicized, to the far degree from objectivity that this trial has passed.
Tragic again would be in watching a (future) broken Athlete being forced, by a private arbitration panel, to pay beyond the 'legal drafting Tax' that WADA has already imposed on Landis this former champion, a tax based on WADA's blind faith in 'judicial interpretation' of the massive failures (omissions of language in Articles that define how laboratory failures are disciplined) of and by WADA, through its CODE, to implement what the CAS called for, in its landmark Quigley decision, exactly fifteen years ago.
Remember, the Quigley rule is the backbone for a system that has functioned decently for the last 15 years. CAS cases invariably turn, on inclusion and with their interpretation of the cases' facts, in light of this rule.
For the purposes of ending this article, WADAwatch will dissect this singular quotation into its prime elements for argumentation purposes (The Quigley rule is set forth mostly in individual sentences, in brown):
“The fight against doping is arduous and it may require strict rules."
And so, after announcing this need for a process in 1993, no IOC action occurred, until after the infamous Festina Affair scandal at the 1998 Tour de France. That wide-ranging nephast system impelled the IOC to 'do the right thing', and thus these high-minded idealists at the IOC (who were staunchly planted in their own imbroglio about Olympic City Host bribing of IOC Members for voting corruption issues) begat WADA, whose immortal(ized) president (he who lost to Jacques Roggé a chance to become the IOC president) chose his preferences, in priorities and selection of the individuals that made up the team, which drafted and imposed the first WADA CODE, establishing their paradigm for global implementation of these rules...
“But the rule-makers and rule-appliers must begin by being strict themselves."
Thus the eternal question that the CAS must address: "How will WADA demonstrate, through its CODE, that it has created a self-policing system projecting self-policing integrity to its participating Signatories and Athletes?"
“Regulations that may affect the careers of dedicated athletes must be predictable."
People familiar with the Landis case science know that his original accusation came from a process of Testosterone testing, which requires the WADA-accredited labs to find 'a positive' from among the four 'metabolites' that actually are tested. Sadly, in the five years (or more) since WADA implemented the Technical Document for Testosterone testing protocols, it has NEVER promulgated a standard of reference precisely addressing these four metabolites.
Landis is 'guilty', if you believe the French lab, because one of his metabolites was just over the threshold of measurement uncertainty. NO OTHER laboratory in WADA's system appears ready to destroy an Athlete's career based on a 25% verdict (one of four metabolites).
The labs seem free to come up with their own standards: WADA didn't care about the UNPREDICTABILITY that may result from having a laboratory find a positive case, from one, or two, or three, or four of metabolites being over the established threshold. No greater failure exists at WADA (other than the mouth of Pound...), than that of its lack of standardization and harmonization of these criteria, and those of the other similar Tech Docs.
“They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. "
No argument here: WADA has proven itself effective in the pursuit of worldwide adherence to a malignant CODE; only the BIG CASH sports (FIFA, as well as the US sports leagues) have determined WADA's strict system to be anathema to their quest for sports domination. WADAwatch has no argument where Signatory IFs have chosen to follow WADA; whether they were blinded to the problems inherent in this drafted CODE, they all agreed in the majority last fall, in Madrid, to the advancing efforts of WADA to become more strict against the Athletes, and more lenient to the laboratory failures that provide 'evidence' against those Athletes.
“They [Ww: the Rules] should not be the product of an obscure process of accretion."
But, time and again, WADA expounds its preferences for 'judicial interpretation' (this means that any private Arbitration panel can 'add' to what a WADA CODE Article stands for; it betrays the faith in its Signatory IFs who pay WADA their contributions in the belief that WADA stands for the words in its FUNDAMENTAL RATIONALE) rather than proper, strict and FAIR drafting of an Universal CODE that provides a basis to stop bad Science from distortions of the truth regarding the infinite variables found in the physiologies of extremely hard-pushing Athletes.
"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))
BUT!
This is exactly what WADA HAS ACHIEVED.
The real question, is how has WADA achieved such a biased system that protects labs from any recriminations, while jeopardizing any number of Athletes' (especially world-ranked cyclists?) careers?
It cannot deny that its internal processes are off-kilter. Via a lack of controlling language that could allow any NADO (National Anti-Doping Organization) to stop a WADA-accredited laboratory-derived accusation against any Athlete or Cyclist, it has failed demonstrably to create a checks-and-balances system, that would FORCE laboratories to do their job.
How? When a conscientious ADO may, in its careful fulfillment of Articles 7.1 and 7.2, determine that a laboratory departure had (in the words of the old CODE) "... undermined the validity of the Adverse Analytical Finding" (AAF), WADA, perhaps deliberately, perhaps unconsciously, perhaps maliciously, determined not to need an Article 7.3, that could balance out the equation when a lab failed in its performance, thus rendering its Doping Control evidence unworthy for use in a prosecution.
How can WADA not see this?
Simple: it seems to have failed to reading between the lines of the CAS decision in the Landaluce case. Unlike in the USA, the Spanish ADO with results management responsibilities decided that a clear violation of the WADA CODE, had occurred, through examination of the French facility's , 'laboratory documentation package' which was produced by the same lab that later accused Landis.
In its WADA-given discretion, it (the Spanish Cycling Federation) chose to close the case. For whatever reason that the UCI determined it needed to appease WADA, and reopen the case, nevertheless CAS ruled convincingly that the faults produced from the evidence of LNDD scientific incapacities were sufficiently egregious to stop the process against Landaluce.
Although one could argue that, because the Landaluce decision had not (of course!) been decided in time for the Lab to adjust its procedures, it shouldn't be held accountable for the same errors in the Landis case, the opposite argument bears the weight of reason and logic: here is presented, in two events only several weeks apart, proof certain of a distinct and pathological inability of one French Lab to
DO ITS JOB.
So Landis waits and pays, legitimately but unnecessarily, to observe whether a private justice system can, in fact, be that, and offer that: Justice.
And WADA waits and pays, without assurance that its expenditures are ethical, and with a world watching, that wonders how it can issue protection-money to boost the possibilities of burying Landis under a pile of bad science, which only the WADA-lab directors seem capable of substantiating?
It will not be long, before WADA returns to the drafting board, to come up with a NEW CODE, even as IFs are racing to implement the revised Madrid CODE (as did FINA last month), in time to have it ready for BEIJING.
A new and balanced CODE, that could:
- define "Aggravating Circumstances" so that other civilizations can explain and translate its meaning, to their non-Western language-speaking Athletes;
- revert to the 'standard' that was found in Article 7.2, prior to Madrid, where WADA encouraged mightily its Signatories to approve the replacement of the phrase concerning 'departures', being '... which undermine the validity of the [AAF]...' to the nearly legally impossibility to prove 'which caused the AAF.';
- create Article 7.3: "Laboratory Departures Resolution" that would add the 'missing link' by allowing any ADO that received a bogus LDP to halt instantly the process against an Athlete, and turn to WADA for implementation of an (for lack of a better name) "Evidence Justification Hearing", sponsored and funded by WADA alone, in which the Lab Director, and his or her science-technology staff, will explain how and why 'clear international Standards' were violated, and with only two possible outcomes:
the 'departure' is explained away (with a very high burden of evidence proof), and thus substantiating the claim of an AAF by the Athlete, or
the 'departure' is proven to have been the cause of the AAF (WADAwatch uses the new, tougher standard that was imposed, again in Madrid, that eliminates another balancing point that would have aided Athletes to survive these Inquisitions)
To WADAwatch, a parenthetical comment, above, has been reverberating in our collective minds:
WHY didn't WADA take on its allowed Appellate Party role, as it has done dozens of times, with results that imply Major League Baseball 'batting averages' (and not record-breaking ones at that), being less successful than it would perhaps desire? Why did it take the 'financing' route with money for USADA, instead of holding a seat at the table?
Only one answer appears logical, outside having a microphone-wire into the offices at WADA: something may be very accurate, about our position at WADAwatch, claiming the whole Landis circus has created a prismatic lens that focuses on, as we wrote above (and earlier):
what WADA does, and
how WADA implements both,
through documents and its Signatories.
It may only be this: WADA as a party, would raise arguments that would allow examination and cross-examination of witnesses that may better serve WADA's cause by remainging SILENT.
WADA, perhaps, cannot afford an examination of its precepts, morals, actions. It may, with a 'Landis Rule', be forced to admit that its system, which should be strong, predictable, and harsh against 'ALL Violators', has failed to do so.
CAS, one hopes, will rise to this occasion and return a verdict of not-guilty against Landis, castigate WADA severely for its financial intervention of the USADA appeal, introduce a ruling that forces WADA to redraft its CODE in an emergency session prior to July 31st, and suspend the French Laboratory LNDD prior to the running of this year's Tour de France.
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.
Watching the legal WADA,
.................@...............WADAwatch
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