Friday, 11 July 2008

Post script on Landis: LNDD off the map?


In perusing the cycling news today, grace of VeloNews, an interesting story becomes one of those tantalizing Tidbits that makes 'WADAwatching' fun... who referenced the French leading newspaper Le Monde.

Here's the quote from VeloNews:

"The blood samples taken from the entire Tour de France peloton on July 3 and 4 have been analyzed by the anti-doping laboratory in Lausanne, which is accredited by the World Anti-Doping Agency (WADA) and the International Cycling Union (UCI)," said the statement issued on the AFLD website.

Here's the quote from l'Agence française du lutte contre le dopage (AFLD; quotation en Français, pdf document):

Ces analyses ont été effectuées par le laboratoire antidopage de Lausanne, accrédité par l’AMA et l’UCI, conformément au protocole prévu pour le passeport sanguin de l’UCI.

News prior to the Tour was that the AFLD was donating its testing services to the FFC. Readers can follow our series of Pre-Tour posts here:

From May 30, 2008 (discussed the recent history of the LNDD lab in France):
Riders! On the Tour...

From June 10, 2008 (offering links to a year's worth of LNDD-focused posts at both blogs crystelZENmud or WADAwatch):

Why does France still enjoy WADA's support?

And from June 30, 2008 (where we intimated that the analyses for this renegade Tour de France would be as fallible as work evidence provided for the Landaluce and Landis cases):
Prepare for the Worst... An ASO-FFC renegade Tour de France

... but unless we shouldn't be inferring anything from this obviously clear press release, the former LNDD, or 'département des analyses' of AFLD, did not do these blood tests, and possibly may be

Excluded like Team ASTANA

... from this year's renegade Tour de France!

In Other News:

For what may qualify as a correction (Apologies if Ww, was not diligent enough to master the intricate linking sequences necessary to find the bloody thing, although any party mentioned has received emails from WADAwatch and could have enlightened us easily thereby) or may be simply a 'Eureka!' moment, WADAwatch is happy to share the findings of the most recent Accreditation document, recently found at the COFRAC site.

NB: follow this link to COFRAC (Which if it works should show a link mid-page stating 'annexe technique'... at which point you'll find the seven-page 2007 audit signed by named auditor (in the Landis CAS hearings) Robin Leguy.

A brief overview, even for a non-French speaker/reader, would note that there are NO commentaries, no compliments, no 'recommendations' (vital components of most evaluations). The sole operative word, in the middle of a vast right column, is (repeatedly) 'confirmation'; named procedures, no named technicians, very much a superficial 'thanks for dropping in!' kind of process, it seems...?

As part of our summer homework, a comparative analysis of this document with any other lab's traceable accreditation documents will allow us to know if French comprehensive analysis for accreditations falls within the reasonable norms established by WADA and the ILAC association of accreditation organs.

Or otherwise...?

In the summertime, and the Olympics are hot,


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.

A breaking AFLD scoop (?) provided by


copyright 2008 Ww

Part THREE: Seven Millions, toward one man's suspension


Part THREE of Post Landis Stress Syndrome


Part ONE: Knight, knave, or Don Quixote?

Landis is now a CAS arbitration case name, marking a turning point in the history of sports litigation, a mark for posterity.

Landis the man, is now a vanquished champion.

As a case,
Landis may have killed the Quigley Rule. We won't know until another case tries to cite what Quigley formerly stood for, in the future.

Recently, WADAwatch briefly interviewed Jean–Pierre Pedalstrap, a worldfamous former Tour de France team domestique, who retired from racing around 199x... Pedalstrap's answer to our one–question interview reminds all that he had the reputation of being able to make everyone laugh in the peleton, even Bernard Hinault...

WADAwatch: “Jean–Pierre! Hey–oh? Comment ça va, mon pote! (How's it going, buddy!) What's your take on the Landis case, the CAS Decision?”

“Salut, WhaWa... You want to know what I zheenk of zees Landis case? I tell you: I pray and zhank God zat zee LNDD didn't make a single mistake! Zees case cost ze WADA and z'USADA over FIVE millions of dollars...

Can you imagine if zee LNDD, she had made zees erreurs under z'ISL, comme Monsieur Landis had, how you say... 'suggested'? If zee laboratoire had made z'ISL erreurs, WADA et z'USADA might have had to spend more zan FIFTEEN million dollars to...
[transcription lost] zees lab's problems!!!

Nobody pointed that out before J–P did here at WADAwatch:

Thank our Gods that CAS (and/or WADA) was right!

USADA, WADA, Richard Young and their All-Star lineup of WADA–system–employed expert witnesses were all legally, factually, under–oath'edly honestly correct: LNDD had committed no 'departure' mistakes, no real ISL mistakes, only SNAFUs, otherwise this case would have cost MILLIONS.

SIDEBAR: (Children under 18! Don't read this) For our non–USA audience : in the US Military, for several Generations, the 'word' SNAFU describes overall command structures and communications. It stands for:

Situation Normal: ALL FUCKED UP

(Ww: demonstrating as well, how to correct ISO/ISL approved Lab documents legally, under
ANY internationally–agreed scientific body of rules; initials 'Ww' should be included).

The legal Landis tsunami is dissipating across a cycling world gone adrift, and within the pre–Beijing Olympics Sporting world, readers may choose for themselves whether 'tsunami' describes Floyd's “Aggressive assault on the anti–doping movement” (WADA press release) or the Decision by CAS, released on 30 June 2008.

711 days after his 'victory' in
Morzine, France

This, the final installment of “Post Landis Stress Syndrome”, takes a step away from Floyd, the man. A step beyond, a step above: towards the future; a higher viewpoint of 'The Landis Case' v 'The WADA System'.

In Part ONE of Post Landis Stress Syndrome, Ww catalogued points regarding the CAS Decision that confirmed our pre–Decision theory of permissive differential treatment amongst the necessarily–adversarial human components comprising the World of WADA. The key to retain is that 'prosecutions' now are demonstrably (and in our opinion, wrongly) focused on the Lab–shielding 'presumptions' contained in Article 3.2.1, that force Athletes to amass armies of experts, even if now proven futile in persuasion. Why?

Ww argued that the world of WADA had forgotten the twinned Articles 6.4 and 7.1, compelling 'strict compliance' by Labs to their regulations, and in–depth review by ADOs of that work effort.

By forcing focus on 3.2.1, under which Athletes must argue cases to the last comma, illegal erasures and White-Out (TM) on the laboratory documentation package (LDP), Ww argued that WADA consciously created a financially irresponsible burden–shift away from ADOs and onto the backs of accused Athletes such as Landis.

One heretofore unstated conclusion on that argument: WADA sets no performance standards for what quality of 'review' an ADO is obligated to undertake...

there is no WADA second–level “ISA”
(International Standards for ADOs)

The ADOs, who should be 'protecting the integrity of the case' by ensuring 'no departures', a clear and accurate audit of the evidence amassed by a laboratory, would thereby create an efficient and dual protection of Athlete and ADOs. NB: this may have been what the Spanish Federation used when refusing to press the
Landaluce case forward (brought to CAS by a UCI appeal over the Spanish Decision to drop on grounds of Lab failure to abide by the Rules, which CAS confirmed), but we offer no comments as to any motivating factors that motivated the Spanish Committee; those are for another day.

Equal treatment, equal protection.

Less costly, more justice

In Part TWO: All the King's Men and The Emperor's Clothes, a string of striking evidentiary situations offered somewhat of a concours between the CAS' very own incisive Quigley Rule, calling for systemic fairness, predictability, standardization, and uniformity, which is apparently opposed by the 'small group of insiders': some former Olympians, some attorneys, some both, who apparently advocate ad hoc legal solutions through the philosophy and free–market spirit of 'judicial interpretation' (labs' anti–doping budgets and lab/Anti–doping law have recently become booming businesses; call it career–boosting self–preservation of a system).

More costly, less justice

Ww concluded that this CAS Decision itself indicates the nervousness of an entire pseudo–legal system, really private monopolized sporting 'justice', which now has been examined more closely than it was prepared, perhaps, to reveal. Killing the Quigley Rule will mean... what?

Is CAS aware of the implications that this Decision portends for future Athletes? It really looks, through an objective lens, as though all these separate elements, implemented under guidance and origin of the International Olympic Committee, have protected each other's back against Landis' evidentiary reliability issues:

It's our house, our rules, our members, our CODE, our evidence, our experts, our arbitrators, our justice, and OUR DECISION: of course Landis is guilty.

Sadly, Landis as a 'CAS case' is probably going to be relegated somewhere (in the sense of never becoming a precedent–setting' citation) near the Bush v Gore 2000 US Supreme Court Decision. Like Bush v Gore, Landis uniquely addressed one man's cased by creating a rupture with a long line of cases decided on Quigley's clear logic. This Landis Decision itself favours judicial interpretation, falling in total opposition to Landaluce, whose Panel recently reminded WADA that CAS could only interpret rules literally and clearly.

Or ignore them?

WADA could change its rules back towards Quigley and balance its current biases. Sadly, they are currently moving towards full implementation of harsher measures against Athletes: 'Tough Love'... which often comes through greater lenience provided to the evidence–recording Labs. The hundreds of CODE changes accepted at Madrid provide large swaths of newly–modified content, as well as completely new sub–Articles (7.3, 10.6 et al), and the ignored (in Landis' cases) 6.4 and 15.4, or neglected, underachieving Article 7.1.

WADAwatch also notes how profoundly the WADA press release proclaimed that Floyd had led '
an aggressive campaign against the anti–doping movement', apparently needing to assert 'unity', to the Sporting Press.

We offered a 'refined' retort in Part II, providing an accurate assessment and interpretive response to the World Anti–Doping Agency, concerning any of those 'interested third parties' whose lives have been supremely, surprisingly affected by the charges and cases brought against Floyd:

An aggressive campaign against the
and administration
of the anti–doping movement by
a small group of insiders.

A Part TWO post–script: it should be retained that this CAS Panel is only one Panel of three CAS arbitrators, one of whom (Jan Paulsson, logically chosen by Landis) had presided over the Landaluce case; more than a hundred Arbitrators are active on the CAS list (means: it isn't like being in agony by decisions of the US Supreme Court, having nine Justices).

However, the Majority of this seemingly–unanimous Panel apparently never met a WADA witness of whom it didn't approve, or whose offered testimonies weren't comfortably satisfactory and thus sustained.
And that is very very troubling.

Landis could have saved a strong part of a million dollars or more, if someone had simply told him: “forget it man: your witnesses won't have any persuasive value, because only WADA people know WADA science and WADA CODE/ISL Articles and WADA doping control analysis... they know absolutely more than anyone you could ever call as witness. We trust only THEM. Period.

A final recap: our first two instalments moved us through arguments that Landis, as an Athlete, was obviously held to a stricter standard on liability for failure (testosterone), than was the LNDD Lab, which had commensurate CODE–originating duties to comply with its ISL, ISO, accreditation, chain–of–possession, data retention and the beauty of Science, yet didn't. We contended that this bias is written into, or omitted in the CODE, and we now register that these lacunae are legally supported at CAS. We admitted it's nearly impossible to tell whether these lacunae were deliberate or negligent drafting exercises.

We discussed the nearly inconceivable (and handsomely remunerated?) roles played by Richard Young, attorney hired from his private practice in Denver for USADA, whose prosecution of this “
simple AAF” case, both at the AAA (where he's listed as an Arbitration specialist), and CAS (where he's also an Arbitrator), was funded by WADA (whose CODE he drafted).

Our third instalment revisits arguments developed in our 'Issue IV' from the Revised Amicus Brief. WADAwatch would like to acknowledge publicly our gratitude to the Secretary General of CAS, whose reply to our email request afforded that CAS has no provisions in its rules that allow for accepting such a document: “this possibility is not foreshadowed in the CAS Rules” (Ww translation from FR email).

That an outside 'body' cannot submit an 'Amicus Brief' (A 'Friend of the Court' writing, which we'd submitted 'to protect Future Victims of potentially inadequate AAF laboratory work), is sad. In our fourth Argument we surmised:

Given the aspects of Argument III
[WADA favoured judicial interpretation, which would kill the Quigley Rule], 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?

Ww used the facetious J–P Pedalstrap interview to present an over–arching point:

If it cost “
USADA–WADA” six Million dollars to defend one French laboratoire's SNAFU'd 'laboratory documentation package' against the known “leader of the anti–anti–doping movement” (Landis), how much will it cost when a laboratoire worse than LNDD actually presents WADA CODE, ISL and ISO:17025 errors in its lab doc pack?

In our Brief, we wrote about the highly irregular, extra–budgetary expenditure by WADA of some 1.3 million dollars to fund one of its Member ADO's Landis prosecution:

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, probably received little or no such support by WADA, for lack of available funds. It may not be under the remit of this CAS Panel, to resolve a question such as 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.

NB: Hello Pandora...

WADA apparently wasn't requested to help fund the renegade French AFLD prosecution: Sorry, les amis, or countries processing other cases... Maybe it's Nafta–related, a North American thing: Landis should certainly be the last case in which WADA funds a NADO prosecution with greater than a million in subsidies. Why?

Thanks to CAS, WADA is now allowed to bet 'double or nothing' on any CAS appeal without appearing as a named party, outside the ambit of the obligations and responsibilities it is afforded by Article 20.7. Why?

Imagine fighting a municipal parking ticket, and the US Justice Department offers to fund your Smallsville prosecutor's office? Just what did you do, anyway? WADA already has very broad plenary rights to join
ANY case as an Appellant or Respondent (Articles 13.2.3 and 13.3).

SIDEBAR: It may not appear obvious, but there's a whale of a legal difference between WADA 'funding USADA's appeal' and WADA appearing as a separate appealing 'agent' as specified in the CODE. By not appearing as an appellant, WADA did not have to develop any arguments, call any witnesses, and thus, most importantly, would not be subject to legal cross–examination 'Attacks' by Generalissimo Landis. It 'stood behind' USADA, not alongside.

Mr. WADAwitness, can you provide a list of any and all communications (in any format) that you've undertaken throughout the Landis case, with your countryman AAA Panel president Brunet (of Canada, during Canadian Dick Pound's term), or your countryman Williams (President of this CAS Panel, Australian as is John Fahey)?”

Some questions could have been harsh, were WADA an appellate party. Similarly, France could have come to CAS as a legitimate party in appeal to resolve its quest: absolute certainty that Landis would
not race in France this year (perhaps a presaging of the mutiny of ASO from the UCI?). Yet France did not, and by running its renegade AFLD 'second case' against Floyd, opened it up to exposure (as Ww tried...) as an irrespective Signatory of the CODE.

From our Revised Amicus Brief, again, we add verbatim more previous commentary, sadly noting that these were not made part of the CAS Decision:

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 mistepped 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.
[Ww: Italics added July 2008]

WADAwatch is proud to stand on those words, unchanged in four months. The 'sum total of evidence' cost WADA–USADA over five million dollars to 'defend'. Not one Attorney sitting on either AAA or CAS Panels, could embellish the nature of the evidence presented (more below), and the lot was insulted ('untrustworthy' by Campbell), forgiven ('sloppy: next time maybe an acquittal'), put on a judicial scale OR supported ('honestly inadequate', then 'only minor procedural errors': CAS).

Honestly, inadequacies that are forgivable, by such highly reputed legal 'scholars' as are found in the CAS Arbitration roster, the 'small group of insiders', the supporters of “pay us: we can get you a 'judicial interpretation' you can live with”, strike deep in the belly of someone believing in Truth and Justice. Paraphrasing a comment from our Part TWO: if only the mother and wife of Floyd Landis could have felt that the 'System' had given Floyd the benefit of a doubt, when evidence on the T/E test was so untrustworthy that the AAA legally refused that test result, so it could eliminate his best argument as to tainted lab work. But the system that had been called into question by Emile Vrijman, had to have revenge: Floyd was the wrong American in front of a good race on a good day, and being 1/32nd positive (based on 32 metabolites analysed across eight Tour de France testosterone controls, one was, in the true sense of the word, 'suspiciously positive'.

Is it that, when the Hon. John Fahey signed the Press Release that castigated Landis for his 'assault on the entire anti–doping movement', might WADA have had these words in mind, first read here at WADAwatch? We'd carry that as an honour, were it to be true.

Which way will WADA advance in the coming year(s)?

The cartoon above was offered before the
WADA World Conference, in Madrid, November 2007:
click on photo to link to the November 2007 Madrid

That depends on whether it realizes what it has 'done' or 'learned' in these last twelve months, vis–à–vis Floyd Landis.

Thanks to the new-found policy, that SNAFU evidence equals quality evidence, a classic 'judicial interpretation' rules this case in favour of WADA. That move opens doors for relaxed standards of lab work to appear:

– 'SNAFU–only, appeal–proof evidence' –

... in those AAF cases that are based on a scientifically–produced lab doc package.

Similarly, Member States (under the UNESCO Treaty) and Member Signatories, as well as the Olympic Movement, must determine if they have sufficient assurances that their sum total budgetary contributions to finance WADA operations will fund the Budget, and not be diverted into a major 'perp' headline–drawing (or –seeking?) legal
battle royale.

Who next will be singled out of the herd, a 'doper' whose case must be won at any cost, to justify press releases of self–congratulatory praise?

Did WADA win new financial support because it proved it has an ethical system, providing simple and swift justice? (NB: the press release quoted above has sunk out of 'site': Ww could not locate it today for linking)

John Fahey has a fast–paced summer in front of him; we have no idea at this point how things will turn out with this year's renegade DETour de France, and we wait with trepidation to see whether 'anti–doping busts' in Beijing might clear a path (risky conjecture bordering on the... responsible?) for some unexpected Chinese successes. Maybe these conjectures are invalid: one could only hope so.

WADA should assess how to reassure its Signatories that it is fully aware of its commitments to
Fairness and Justice, such as are prominently displayed in the CODE's 'Fundamental Rationale', also found historically in the quoted passage from the defunct Quigley case, the Council of Europe Anti–Doping Convention of 1989 and the Olympic Charter of 1990 (see our Part TWO). WADA must acknowledge that its extraordinary, extra–budgetary funding of this National ADO's case (USADA) presents an unsustainable financial burden to its annual operations.

Question: If CAS had decided Landis was not to suffer a suspension, and issue an acquittal, due to the evidence per se, where would WADA go, what would become of LNDD, how would USADA face Congress?

The tsunami might have returned to the source.

WADA also now has to determine the effects of its continued emphasis on 3.2.1, if the jurisprudence continuously ignores 6.4/7.1, and forgets the latter's requirement to induce ADOs to inspect and 'certify' Lab doc packages (LDPs). WADA after Landis can literally choose to eliminate burdens on laboratories to actually work to a higher–than–SNAFU standard, and for the ADOs who receive evidentiary LDPs to certify that such LDPs contain only SNAFU or better contents.

SIDEBAR: Signatories, WADAwatch and others commented on the new CODE Article 10.6
Aggravating Circumstances (A month after Madrid, Ww asserted that WADA appears to endorse the 'small group of insiders' sense of Justice and Fairplay). The new sub–Article boosts 'first offense' penalties from two to four years based on a series of aggravated 'causes', some justly derived, and one ('obstruction of justice') that is heinously undeserving by an august body such as WADA.

In much the same vein, removal (in certain circumstances) of B Sample confirmation tests is now a fact, and the change in CODE Article 7.1 (the evidentiary standard was formerly '
undermin[e] the validity', now an Athlete will have to prove that these errors 'caused' their AAF finding) raises the bar, just as CAS has provoked, in requiring 'proof of dishonesty, bad faith, conspiracy or... ghostly intervention? SNAFUs?).

Readers are recommended to read Rant your head off, who created a well–developed argument on 'concepts', as CAS ruled that certain aspects of the ISL evidence did not necessarily require being followed verbatim, as long as the 'concept' is 'followed' in at least SNAFU–ish competence, or better than Honest inadequacy; another concession by CAS that helps enable a sense of having accepted for publication a new book: 'WADA Lab Rules for Dummies'.

Landaluce won because CAS said “clear rules must be followed clearly: change them if they're not producing the anticipated results...”. That Decision never drew attention to the new CAS legal standard: the 'Concepts of rules' (below).

Landis lost, because a different CAS Panel said “rules designed to produce clear evidence may be legally acceptable if
at least the concepts behind them are evident in that evidence...”.

Where WADA failed most, however, was in its utter '
laisser faire' attitude continually displayed regarding France, the State whose laboratory SNAFU'd Landis' LDP, decided to dishonour the election of the Hon. John Fahey after its own insider candidate slinked out of his WADA Vice–President office, and finally insisted on holding the renegade French 'legal anti–doping hearing', a clear double jeopardy case against Landis (read our posts here or here).

France, at the origin of the Armstrong = EPO rumour scandal, for which Lance properly requested the IOC to 'chastise' (our term) the former president of WADA for scandalous comportment (a separate lawsuit filed by the UCI against Dick Pound is still pipelined, the announcement of which helped crush WADA contributions to the UCI Passport program).

France, at the origin of the Landis case (if the reader is okay with SNAFU evidence... that's a good thing; yet there are many others that don't see this as anything but an affront to the 'science' of anti–doping control analysis).

France, at the origin of the Landis 'renegade' French AFLD procedure, which unfortunately (and apparently) was never appealed, and was factually and legally error–ridden.

France, whose renegade FFC cycling Federation is suspended from UCI for 2008, following its disdainful attitude to its international parent, while supporting the private corporation ASO in its parallel renegade 'hors–le–loi' 2008 Tour. Who boosted the concept of the longitudinal passport, then withheld funds destined to aid the UCI to put this plan in action.

WADA mess to clean up, John... you entered this hornets' nest of lax SNAFU practices that prove bias against Athletes. If only someone could have captured your attention!

It certainly cannot be said that no one tried... this writer, in February at Lausanne (the Third WADA Press Symposium), asked Mr. Fahey a question about these very situations involving France and Landis, via AFLD adjudications, and Article 15.4.

His response... 'Oh Jesus' was a swiftly muttered aside, indicating... well, we're still cogitating over that one, but we feel it's a compliment to our investigatory nature.

The painfully obvious conclusion, in spite of efforts to act as a conscience for WADA, to remind its better side of its Fundamental Rationale, to whisper in its ear that 'these things you promote are WRONGLY based, legally', is this:

Under Richard Pound, first president of WADA, it never had any intention of creating a Quigley–derived 'strict and yet fair' system, which could, as was requested by the Olympic Charter, to “ensure that the rights of suspected Athletes are protected”, building on the Council of Europe's desire to see the global anti–doping movement “applying agreed international principles of natural justice and ensuring respect for the fundamental rights of suspected sportsmen and sportswomen.

Certainly one must never forget that there are many good and ethical people working, doing their job, at the World Anti–Doping Agency, on a daily basis. They simply are a world apart from the top job, which for eight long years was in the hands of one Richard Pound. A political job, a post for which elections are held, sometimes competitively, for the precious nomination that leads to a vote. As a fairly new organization, growth pains are normal, expectations are high, and results are necessary.

The Landis case, busted open and shocking those who watched Landis 'win' in Morzine, busted by a sad French system of bureaucracy cum science, offered all the necessary glitz that didn't become available when the UCI had refused to dance to WADA's tune back in 2005, when L'Equipe, a French sports newspaper owned by the Tour de France's parent, offered 'expertise' that wasn't, in publishing a slam against Lance Armstrong, as gratitude for the millions of dollars in pure profit Lance brought to the Tour, and L'Equipe, by being the most talented American cyclist with the ambition to win more Tour victories than any previous European or American victor in History.

Richard Pound, himself, knows the value of big–splash headlines. He learned them throughout his career, floating between private legal practice and a star–quality lifestyle as a former Olympian–turned–attorney, an IOC Committee Member, he who chaired the IOC corruption investigation, then lost a year later to Jacques Roggé, now President of the IOC. However, Pound still seems fixated with his own ego and place in Olympic History. Because of his presidency, WADA finds its headquarters in his home city of Montreal, although the official record shows that Pound played 'no role' in the decisions taken to locate its HQ far from the finite world of other International Federations and the International Olympic Committee, here in Switzerland.

Given all that we have all learned, through a massive 'assault' on the system promoted under WADA's direction, what conclusion may we draw, as witnessed through the prismatic spectrum of the case Landis endured?

At WADAwatch, we have a sincere opinion, unfortunately:

WADA was created to be an

Inaugurating WADA insured the major facets of the Sporting Business, especially the Organizers of events (Certainly the Olympics: the Tour de France, World Cup Skiing, Track and Field athletics, etc.) against Sponsorship withdrawal due to scandals.

Big Money sports (
Not the HUGE MONEY sports: remember the US Pro leagues, as well as FIFA, are the last and largest 'players' to agree to align their businesses with WADA) needed an Agency that insured that the message would be delivered, a plan of action would be initiated, the appearance of legitimacy would offer the Sporting press, avid to soak up its Press releases, a true sensation of legitimacy.

The tests and controls were strong, we were told, the labs were duly accredited, we were told, and WADA was going to get those bastards that had been getting away with (Doping) violations, we were told.

Thanks to the Richards (Pound and Young), WADA's CODE was implemented, and its growth would only be assured if suspected Athletes were cleanly convicted based on its CODE system of Inquisitions.

Through 'diligent (non)-standardized laboratory performance' acceptability criteria, the scenario we project then worked to allow the following dialogue:

Please, Mr. KoKa–Kola, Mr McDarnolds, Ms Credit Mayonnaise, Mr Nikie! Please don't take your multimillion (dollar Yuan Euro) sponsorships away from our Sport Business Enterprise or Event because of Doping...

Because we're doing all we can...

We proved it with Landis...

Is the Landis conviction, a final decision because of WADA's 'proven system of results management'?

A reminder that
Results Management is a term for properly informing Athletes of AAFs, not a term for controlling through a 1.3 million dollar infusion of appeal funding, the outcome of the case.

Landis: this so–important conviction of
that bastard, that upstart, that who–does–he–think–he–is, a virgin–busting, testosterone–abusing, nothin–but–a–Cyclist, that (gasp) American, and my God (!) his attorneys who dared (“How could they??”) to peek under the corner of the rug of our beautiful system...

A system of now publicly acknowledged and authorized SNAFUs, a system that shows outsider attorneys that there is no proof so fine as the proof coming from the mouth of a finite WADA family of associated '
experts'. Ww hopes that people in the anti–doping movement will soon realize that if they hold the power to affect person's lives, through imposition of legal norms and severe criteria, that they hold themselves as accountable as those whose convictions they seek.

Almost sounds like Quigley... This author needs a vacation...

WADAwatch will do all it can, to sustain and revive the memory of QUIGLEY.

Doing better than WADA has performed to date, than
has LNDD, in the Landis case, is really their one combined obligation, more than a concept: their sole responsibility. The world supporting WADA needs confidence that that organization will create a real system, as soon as they demystify the opacity surrounding 'concepts' of Rules and honest inadequacies.

Recall the infamous words of Jean–Pierre Pedalstrap: After Landis, with its
sufficient level of evidence (a Decision is a Decision, after all), how much would evidence of ISL–violating, CODE–violating, Laboratory–suspending activities have cost these two cash–strapped organizations in defense?

Can the World Anti–Doping Agency afford a “two–front army” (the Pentagon's 'prescient' ideal during the post–Soviet 'stand–down' years under Clinton)?

Spending over five million to defend its system: the CODE, its ISL and a Signatory Laboratoire, the case WADA–USADA brought and funded against Floyd Landis, showed incompetence, arrogance, and SNAFU evidence. In the eyes of highly–reputed and well–trained, non–Richard Young legal opinions, these LNDD problems ranged from
Untrustworthy to Sloppy to Honestly inadequate to Minor procedural errors.

A better judge, perhaps, would have made all but the last a 'legal threshold' for throwing out the 'charges', or acquitting the 'suspect').

Are WADA and its partenariat, urgently but silently, in off–the–record communications to implement better forensic procedures regarding evidence, without effecting any changes to the language of the CODE? Signatories deserve to know this.

Honest Athletes deserve to know that false positives (we know they exist, it's been acknowledged by one of WADA's 'strongest' witnesses, Don Catlin) will not be allowed to ruin their lives.

WADAwatch was born as a blog, due to the Floyd Landis case.

WADAwatch may become a fully–vested Non–governmental Organization,
due to the Landis Decisions.

Our day in Morzine began with a river swim some five kilometres below the village because, at 10AM, it was already raging hot: hot enough to change anyone's physiological values.

The images offered on the big screen and bar TVs were incredible. The shock of the news when it came out, after the Tour, was immense (much as when Frank Schleck went over the guardrail in this year's Criterium Dauphiné Liberé).

That the Landis case certainly could have been born out of the frustrations felt in France, between the AFLD and LNDD, from the way the UCI responded to the L'Equipe's August 2005 Armstrong–EPO myths, is our theory. Rather than staining Armstrong due to tainted evidence on samples which no longer qualified as such, the UCI initiated an independent investigation, brought forward by one of the finest and most courageous sports–doping legal experts, Mr Emile Vrijman of the Netherlands, whose professional rigor, and outright dismay, was cautiously presented in the
Vrijman report, which was published only two months before Floyd was controlled positive for Testosterone.

If Floyd Landis' case gave birth to WADAwatch (and TrustbutVerify, and many other good blogs), then the sequence and discordant rulings found in the three Decisions (the 'legal' AAA/CAS process, as well as the 'renegade' French procedure), may propel WADAwatch into a more substantive future.

WADAwatch is taking a great part of this summer off, to explore seriously the feasibility of transforming into an NGO.

Ww has received a 100 per cent
non–Landis–associated 'seed money' donation of several thousand Swiss Francs; this fund will be put towards exploring the feasibility of legally establishing an NGO, somewhere.

Building the NGO requires a Board of Directors, and many more steps that require full-time attention.

Our 'Mission' will simply be to create a world in which WADA fulfils its own
Fundamental Rationale, in seeking to respect the Heritage that gave it birth, from the Council of Europe in 1989, the 1990 International Olympic Charter, by returning to the legal guidance offered by Quigley's famous and now, perhaps, forgotten case. An informative role, publication of more regular and wider–ranging information, would help keep Sportswomen and Sportsmen aware of their rights and responsibilities, lobby Federations, Governments, even WADA itself, for the honest system that pulls honest Athletes forward.

That can only be done if, when evidence that screams 'Positive!' is unassailable, because the analyst in the Lab devotes as much integrity to their job, as does the man on a bike, who trains seven hours a day, to earn the right to be tested as an Elite Pro Cyclist.

WADAwatch will be watching the renegade non–UCI Tour de France and the Beijing Olympics, with eagle eyes for irregularities.

Enjoy your summer...


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.

... and thanks for reading about the World Anti-Doping Agency,


copyright 2008 Ww

Monday, 7 July 2008

All the King's Men and the Emperor's New Clothes (Part TWO)


Part TWO: Death of the Quigley Rule...
(Analysis and some case notes)

In Part ONE of this three–part series, "Post Landis Stress Syndrome" WADAwatch presented its opinion, originally published in the Ww Revised Amicus Brief, that the June 30th CAS Decision declaring Floyd Landis 'positive' confirmed indications of differential treatment amongst the necessarily adversarial component–groups that comprise the World of WADA.

Those groups are, grosso modo:

a. the Athletes

(team staff, medical directors and sponsors also);

b. their Sporting Governance Structures

(Olympic Committees, International Federations, which usually have as Members, the National Federations), and;

c. WADA World
(WADA, its Governments that have legally incorporated the Copenhagen Declaration and the UNESCO treaty, The International Convention Against Doping In Sport, National Anti–doping Organizations, and the 33 WADA–accredited labs).

[Of course the multiple Committees of the Olympic and Paralympic movements are active, vital, integral components of this equation (especially financial: IOC matches government contributions to WADA on a 1:1 basis): they simply aren't part of this analysis]

'Necessarily adversarial' is not to connote harsh animosities; rather, in any legal (or quasi–legal) system that presents an 'adversarial' judicial resolution structure, the question of 'balance of powers' or 'checks and balances' is a well–known notion to students of the US Constitution (a document which has, itself, suffered grave injuries in this new Millennium), and has subsequently been transplanted into many other legal systems.

Note that, by its structuring, the Sporting Governance Structures (“SGS”) and WADA World (“WADA”) themselves created the Code. As a consequence, WADA has become the conduit for mutually agreed codification of anti–doping measures, which then are integrated into the Signatories regulatory structures.

In the tripartite Global Sporting World, if Athletes are the 'Citizens', Signatories could be considered (with overlapping direction and presence of WADA) the 'Legislative branch', who negotiated and agreed to implement the WADA CODE, and WADA (itself, and through the labs and ADOs) is the Enforcement and Judicial (Investigative, Judge, Jury and “Executioner”). As CAS and WADA were each created, in turn, by initiatives originating in the IOC, they co–exist as part of a small group of insiders.

Sidebar: Remember, as an example of the overlapping and potentially conflicting personal relationships that permeate this august domain of Olympians and elite Athletes, that Canadian Dick Pound, in 2007, while president of WADA, was simultaneously: member of the IOC (having been a former vice–president); member of CAS, candidate to become president of CAS... all at the same time.

This is not wrong per se: it just allows incidents that can give rise to ideas of latent personal bias, or flagrant conflicts of interest, beyond the eyes of the massive world that is Sport Business (including sport media).

Pound was also the single individual most often violating Athletes rights to a fair hearing with premature, inflammatory and continuous expressions of prejudicial commentary in off–the–cuff interviews; he received a corrective letter from the IOC based on a complaint earlier by Lance Armstrong.

But even if our terminology used above appears democratic, still the Athletes have no 'vote'. Their interests are only guarded to the capacity of National Federations and IFs of their sports to press to create a balanced, healthy system.

In a historic sense, WADA was conceived even before the International Olympic Committee's (IOC) International Olympic Charter in 1990, (“Charter”). According to Annex 6 of the Charter, sports organizations have a strong responsibility: ‘to have clear regulations and to conduct competition and out-of-competition controls’ and ensure that the rights of suspected Athletes are protected through promulgation of regulations that ‘are adequate and sufficient’ (Annex 6; para. 1.2 and 1.7).

That Charter echoed words that had been agreed within the structure of the Council of Europe. In 1989, its Anti–Doping Convention impelled sports organizations (presumably beginning with the global reach of the Olympic Movement) to: “clarify and harmonize their respective rights, obligations and duties, in particular by harmonizing their ... (d) disciplinary procedures, applying agreed international principles of natural justice and ensuring respect for the fundamental rights of suspected sportsmen and sportswomen; ...”

And momentum continued to grew through the 1990s, between the CAS USA Shooting and Quigley v UIT case Decision (below), continued analysis of the growing doping problems in many sports by the IOC (and its efficient Medical Committee), and of course the Tour de France's Dream Team Festina, whose revelations of systemic and competing (now that confirmation exists of the Deutsch Telekom medikation) opened wide the hidden world of sports doping in cycling.

The Quigley case had been a guiding light for the duration of these last thirteen years: a beacon giving authority from the Court for Arbitration in Sport towards the legal creation of a fair system.

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:italics added]
[CAS: USA Shooting & Quigley v. UIT, 1995 (CAS 94/129)]

The WADAwatch Revised Amicus Brief was drafted to present a case that affirming the 'culpability' of Landis by CAS would have a serious aftershock effect on any future 'victims' of potentially inadequate laboratory work standards.

Ww analyzed four issues (the first two are found in Part One); for the third issue (RAB paras, 24–35), we wrote:

III Is WADA's expressed reliance on 'Judicial Interpretation', as a means to amplify unexpressed, or hypothetical meanings of its Code, actually a “Quigley violation”, and detrimental to proper WADA rules promulgation?

Expanding on that statement of the issue, we had offered an opinion that has foundation in our prior treaty–drafting and research experience:

[.....] 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 ('Tough LUCK'?) between its various Signatories toward the Athletes whose lives are affected by accusations and convictions for doping.

That paragraph was not written hastily, nor with 'malice aforethought'.

It was written regretfully, in thinking that the chances to maximize the durability and strength of the foundation of WADA had been overridden, somehow.

The nexus of the problem that is distilled from the WADA/USADA/LNDD case against Landis, is this: one cannot fulfill the requirements for systemically fair, administrative juridical Regulations, as requested by the Council of Europe, the IOC Charter, and Quigley, through a CODE whose operation and legal adjudication is based on the philosophy of judicial interpretation.

To the layman who paid a traffic fine one day late, or didn't receive unemployment benefits because a form was not filled out perfectly, or whose loan application wasn't accepted because attachments were stapled, not paper–clipped together: you have a deep appreciation, albeit negative, perhaps, for 'administrative regulations'.

The Quigley–defined aim to create a fair system, for all concerned, echoed the IOC, and the CoE. WADA was conceived to help this happen (and long long before WADAwatch), and yet through this Landis Decision from CAS, it really has to be stated that it now appears that the 'small group of insiders' has won again, who prefer judicial interpretation to clear, concise Quigley–based rules.

WADAwatch calls upon WADA, as an organization whose budget comes from contributions, to reflect long and hard on its own need to modify its homemade system, whose foundation presents such excessive doubts, and to render to the public an accounting of its legal expenses used to affirm the USADA Decision against Landis. USADA also, should reveal how it spent what was published in l'Equipe as between three and four million USD.

A press statement from WADA's president, the Hon. John Fahey, regarding the case presented by Landis added an interesting component: “ [Landis] ... chose in addition to mount an aggressive campaign against the anti–doping movement.”

General Floyd Landis, Commander of the anti–anti–doping Movement?

Sadly, WADA didn't discern the fine and honorable nuance between:

“an aggressive campaign against the anti–doping movement”


“an aggressive campaign against the implementation and
administration of the anti–doping movement
by a small group of insiders

And we agree, being a part of the former can only mean you would be a doping Athlete who thrills at cheating, laughs at his or her own death–wish which overrides medical evidence, or you are a supplier whose livelihood (and fast car) depends on growth markets and distribution, or lastly those sponsors who wink one day, congratulate and then denounce their star the next.

Although... you could also be a part of the legal anti–doping market, which of course is in an aggressive–growth, risk–free industry. As Lab budgets are growing, so do ADO budgets, and lawyers are making a killing: from 'judicial interpretation' of lacunae in the CODE et al.

Given Lausanne laboratory Director Martial Saugy's interview late last week, which was provided here as a public service, it was interesting to see his suggestion that perhaps the two–year, legal procedure and suspension system engendered from (as noted in Fahey's press release) a simple AAF, needed to be re–thought, favouring an approach channelled through medical 'unfit to work' criteria. Remember that, even as recently as twenty years ago, the Tour de France–UCI rules (oh! The good old days...) carried a penalty for certain doping cases occurring in the TdF of ten minutes being added to their Classification Génerale overall time (eg: Pedro Delgado, 1988 TdF).

Retrograded out of the standings, may have been too light.

Two years without work: might that be too much (in a human rights, right–to–work sense)?

Is the proposition presented by M. Saugy the just right solution? Being legally–trained, yet coherently separated from the administration of the anti–doping movement', WADAwatch is inclined to think:

if the only thing that an American attorney (Richard Young, who has been infinitely important in guiding the developed WADA CODE to its present form), can decide to create is a system that puts a huge fee in his own pocket to manage the simplest of 'AAF–lab evidence' cases, maybe lawyers themselves should be reduced out of the equation to the maximum degree possible”.

Given that long introduction, it's now time to return to the case Landis brought, and see if there's a clear delineation between the quest for Quigley (Clear rules) and Judicial Interpretation philosophies.

In Part ONE, of this three–part series, we already pointed out disquieting items found in the CAS Decision, which won't be repeated in–depth. There, we argued sadly that USADA appeared to have vanquished Landis' right to question the departures (CODE Art. 7.1) in the lab doc package, which departures apparently USADA never chose to recognize, nor to disclose WADA or Landis (One cannot dismiss the fact that such could have happened, but we are not to know that it did).

Under the theory that the mandatory requirement that labs do their job (CODE Art. 6.4) according to ISL and ISO standards, and that ADOs such as USADA do their job verifying that the lab (LNDD) did its job to a high level of technical competence (CODE Art. 7.1 verifies 6.4 competence, one could say), the Landis case is not indicative of a healthy system. The steps above are, theoretically, occurring before CODE Art. 7.2 grants the ADO the burden and responsibility of informing the affected Athlete (or other regulation violator, such as a coach) and controlling information in total confidence, between the A Sample analysis conclusion, the above described procedure, and the Athlete's choice to request the B Sample confirmation analysis.

Seem like such clear, 'Quigley' style rules, non? What if they don't happen with a substantial degree of sincere good faith?

What effect, say, if labs do sloppy, untrustworthy, or honestly inadequate work, or afterwards, an ADO sees 'departures' but perhaps is 'hungry' to 'bust' a big–name 'crime perp' (–atrator)?

It may figure on being able to hire a good attorney (hint?) that knows the 'system' really better than anyone (helped create it, even). Since there's always the CODE Art. 3.2.1=burden–shifting argument made in Part One of this set of essays, whereby labs receive a 'gimme' (an American golfing term used when a putt is so close to the hole that one's opponents prefer to save time and grant that the player would certainly make it), as confirmed in the CAS Decision, a de novo review of the Landis case, we wonder how to classify an over Five Million Dollar legal 'procedure' as, in Fahey's words, a

... sample analysis [that] resulted in an adverse analytical finding”.

When all the King's Men see royal robes, and the rest of the world sees the Emperor has no clothes... where do we go next?

Into the Issues, naturally from the Landis Decision from CAS... in no certain order.

ONE: Costs paid by Landis are not 'costs' within Rule 65.3

This Panel from CAS awarded to USADA 'costs' of $100,000.00 dollars. However, the Panel only cited that Landis should pay this, based on rhetoric in the Decision that USADA had expended some $60,000.00 on some nine witnesses whose presence Landis had requested, only for his attorneys to have never called those nine to testify.

CAS did not say why USADA deserved an award from an appeal by Landis, when WADA footed over 60 per cent of the Appellate case for USADA... ANY clues would be gratefully acknowledged.

NB: 60K / 9 = $6,667 per person (transportation, hotel, meals only) for some portion of a five–day hearing, and

100K – 60K = 40K, which apparently equals the 'expert witness fees and substantial attorney's fees'.

Given that we know approximately the budget of the case being some three to four million dollars from USADA, and another 1.3 million from WADA, either Landis should be paying much more in 'COSTS' or CAS is imposing a 'fine' which is nowhere to be found in the WADA scheme of prosecutions, nor in the CAS rules. Without even tagging a concrete reason onto the Decision's attribution of these extra forty thousand as some necessarily paid fraction of the total 'expenses', 'judicial interpretation' trumps 'Quigley' as to the clear rule on Costs.

NB: While the Decision's linguistic fury is constantly maintained against 'Team Landis', they offered no commiseration towards Landis when USADA/Young listed a COFRAC auditor as a witness, then refused to call that person, thus affording no chance for Landis to cross–examine the veracity of the audits done by the French Accreditation Authority who accredits French Labs for a French Government Agency.

WADAwatch has already argued that it appeared that the addition of WADA's 1.3 million dollars to boost the Inquisitio...

... umm, the USADA Prosecution's budget back up to its (approximate) 2.6 to 1 ratio over Floyd's (funds paid out of pocket and his Foundation; from simple believers in Floyd's cause), may not have been justified through the authority vested in WADA by its members. Their contributions to a world organization were funneled back into the funding of the 'anti–Floyd' movement's case, in which WADA was not appearing as a party, although it had the right to do so. Would it, as USADA/Young didn't call the COFRAC auditor, been forced as a party to call witnesses who couldn't face cross–examination?

So it's sad to see that the entities that had so much more faith in their own 'system', needed to be awarded costs, that equalled less than three to four per cent of their war fund.

the limbo stick offered to this WADA lab

Can you do the limbo?

Of course you can: 'everyone' can limbo, if the bar remains high enough.

Do WADA laboratories need a lower standard of technical competence, to get their jobs done?

Another way of asking this, is "how to compare 'WADA accreditation' to forensic system, or medical system accreditation?" Should they be equal? Should anti–doping labs work as if lives depend on the quality of their work? (A corollary question: is France taking any action to ensure that its LNDD lab doesn't embarrass the Ministers and French President?)

If true, WADA should re–write the WADA CODE, eliminating the Article 6.4 which clearly has little meaning in litigation, to the point it served no part of this CAS Decision.

Having done that, and writing in a CODE Definition for 'Honest Inadequacies', to cover those minor non–threatening Standard Operating Mistakes (“SOM”?) that WADA can only forgive if it removes Article 6.4, WADA should be able to steamroll its next victims much easier and with less dust than that this rebellious upstart Landis.

And, again: all the King's Men (and Women) found the totality of the 'State's Evidence' to be not sloppy, not untrustworthy, merely 'honestly inadequate' and within the 3.2.1 'presumption' necessary to trump any od these 'departures' that Landis apparently should never have wasted this Panel's time RE-analyzing.

Further, it may even be that CAS disassociates itself with its own words it had first argued, and wished to erase all thoughts of the 'sloppiness' – 'untrustworthy' dialectic from the AAA Decision, with a phrase in its final section on costs. There, CAS stated

“all that the Appellant has established after a
wide–ranging attack on LNDD is that there were some
minor procedural imperfections.”

How are we...

– and future 'victims' of the legal perfection (?) of -
- WADA and its Labs –

... to balance the CAS ruling in Section VIII C (from which we received para. 259) on “administrative deficiencies, bad laboratory practice, procedural error...” which it lumped together inclusively with “... other honest inadequacies”, against this latter “minor procedural imperfections”?

Quigley is quickly sinking in interpretive quicksand...

Remember, though: 'departures' cannot exist under Art. 6.4.

As a legal standard, 6.4 is as unforgiving as the 'strict liability' WADA holds against Athletes on any form of ingested prohibited substance, based on the science of the control analyses that are available, after peer–reviewed scientific development and publication.

A Quigley clear rule system, or a 'judicially interpreted' ad hoc Decision?

In a balanced system, one might anticipate words such as 'Honest Adequacy' being the foundation of a Decision taken in Arbitration by a Panel facing scientific evidence from an accredited laboratory.

What made Floyd different? Ww says judicial interpretation won again.

THREE: Find the issue(s)...

A CAS appeal for an anti–doping violator (thus Landis after USADA–AAA Decision was determined) is a 'de novo' review (a brief repetition from Part ONE of this three–installment series).

Since a de novo review means 'new case' and not 'review of lower decision', it was so astounding to read the admonishment given by CAS against Young, for his single issue* submission that requested

“Did the AAA Panel err in finding that the
Appellant committed an anti–doping rule violation
during the Tour de France?”

So many problems, in so few words.

a. requesting a de novo Panel to review a lower decision for error(s) is legally invalid;

b. expanding the violation that was found from the specific Stage (Stage 17, on July 20th, 2006) to 'during the Tour de France' vibrates with a resonance toward the predetermined;

c. the bloody year isn't even mentioned! (Could CAS have examined other years' samples?)

Why was Attorney/CODE draftsman/CAS Member Richard Young's 'Statement of Issues' so... inadequate?

Remember this was discussed in Part ONE last week. To be 'conclusory', it seems doubly disingenuous that CAS slapped Landis (and his lawyers especially) down hard, legally, financially, and rhetorically, about 'all of its multiple defenses have been rejected as unfounded', while making nice with a switch–hitting prosecutor whose legally baseless issue left nothing to present legitimately.

* Sidebar: The only other 'issue' presented by USADA/Young/WADA (costs being part of the Award), was if CAS would please be nice enough to stop the already–running suspension, adding nearly seven months for Landis having participated in the Leadville 100 (CAS Decision, paras. 268–283).

Without calling into question the very troubling and amnesiac behaviour of Sean Petty, of USA Cycling, who told WADA/Young/USADA that yes, Floyd raced illegally in the Leadville race, after telling Floyd (through the Leadville promoters) that there was specifically no problem if Floyd raced. Landis contended (apparently it was the sole argument that won any part of the Panel's attention), that because riders were not required to present a license, no price monies were awarded, and no standard USA Cycling categories ('Cat 1', 'Cat 2', etc) were followed.

While not really straddling the 'Quigley–Judicial interpretation', one wonders if Young really felt he hadn't a reason in the (legal) world to expand his 'issues' beyond the only false possible issue to submit.

Recalling his AAA hearing opening statements regarding 'hard science', and having seen the first of two tests thrown out for their 'irregularities' (the T/E conclusion), maybe he wasn't trusting himself to provide the hat peg to which he could surely throw his Stetson.

THREE: Peaking at Peak Identification...

Appellant Landis argued that LNDD had changed its position through the course of the AAA hearing and in fact the entire process, as to how Peak Identifications are performed for GC/C/IRMS.

Appellant also argued that USADA had also evolved its explanations for the GC/C/IRMS, although it isn't apparent if this meant 'in tandem', 'in parallel', coincidentally, or 'in collusion' with LNDD.

Landis also argued that the testimony of WADA experts was not pertinent as they had no grounds to actually state what LNDD staff actually did.

In rebuttal, the CAS Panel states that USADA/Young argued that LNDD technicians described their processes consistently in their witness statements. A written witness statement should be one thing, and oral sworn testimony should be a separate thing: we do not know from this wording whether written statements were argued as having been replaced, or if 'oral testimony' had not been consistent.

The CAS Panel does not state one word about whether USADA changed its explanatory arguments, where Landis had argued that LNDD and USADA had changed their tunes. Why does this Decision omit an Appellant's argument?

Further: its Analysis and Findings on this issue contain no conclusions as to the serious allegation presented by Landis that, as information came forward, was 'found in a box' or computer–file, the USADA–LNDD 'explanation' for this changed from A to B to C.

But again, the Decision claims all of Landis' substantive arguments were 'unfounded'. Some of them appear to have been forgotten in the compiling of this written Decision.

FOUR: LNDD 'SOP' regarding
Data Reintegration and Manual Integration

Ww has coined the term 'Standard Operating Mistakes' (“SOM”) to describe the ensemble of 'honest inadequacies', the term with which CAS characterized and indicated as legally permissible, the collected 'non–departure' errors at LNDD.

Our Appellant's expert testified that “manual integration was not within the IsoPrime machine manufacturer's guidelines”.

CAS stated: “Manual integration is consistent with the LNDD SOP.” (see CAS Decision para. 120, first point).

Sadly, that statement cannot actually read: “Manual integration at LNDD is consistent with the WADA SOP”, which would do a lot to alleviate some legal concerns from outside our favorite 'small group of insiders'.

CAS, on the other hand, did not express a concern that the SOP of LNDD was directly in conflict with the manufacturer's guidelines, as introduced by Landis.

Could it get worse?

It did. CAS also mentioned this poignant conundrum:

... Respondent's experts testified that relying on the software alone was ineffective; manual integration provided a quality control. The manual integration corrected errors that the software program seemed to produce.”

At paragraph 162, third bullet, it gets even more Byzantine:

The different results from reprocessing with software alone may well indicate that the software alone may be unreliable and that manual integration was necessary, rather than the other way around.”

Floyd, man, you're guilty. (sarcasm MODE ON)

The machine whose operational SOP ignores manufacturer's guidelines, whose ancient software produces errors for which subjective human manual integration is SOP/SOM, said you're guilty.

Why can't you let our WADA family of labs continue to do its perfect (or honestly inadequate?) work in standardized harmony?

“Where have all the Quigleys gone? Long long ago...”

PS: In the CAS Decision, para. 161, third bullet, CAS qualifies Dr. Botré as a 'qualified independent expert'.

In the legal world, it is usually hard to retain the word 'independent' when that individual is professionally associated to the party paying over 60 per cent of the Prosecuting side's legal fees, the bulk of which are going to the individual whose leading role in drafting the CODE is a fact, and whose lab (Botré's) operates under the mutually agreed WADA CODE.

FIVE: Steroid Metabolism

Remember: Floyd Landis is guilty because the LNDD tested and found an AAF for testosterone.

So concuded USADA, so concluded CAS.

Then why put such a paragraph as this (232) into its ruling on this issue?

The Panel cannot conclude that the reported results run contrary to the known science of testosterone metabolism on the basis of Dr Amory's testimony. Available data on steroid metabolism indicates that the scientific evidence on how different forms of testosterone are metabolized as it relates to the Appellant is not conclusive:

The paragraph includes three bullet points:

a. “gel... testosterone... TE results... are highly variable”;

b. Amory's testimony differed from USADA witness–experts Shackleton and Clark, regarding certain forms of testosterone, but Amory's conclusions were based on data from oral and other forms of testosterone (not gel or combinations of forms);

c. the suppressed lutenized hormone levels cannot be conclusively tied one way or another to testosterone use”.

In other words Floyd, you're guilty because we concluded that the tests taken on you were conclusive.

However, we are inconclusive as to which form of testosterone, and how you ingested it, because the research, and the science, and the tests, and the data, and the honest inadequacies of LNDD SOM/SOP don't afford us the luxury of conclusively knowing anything other than what LNDD and WADA experts have said, again and again.

(If this author could link 'judicial interpretation'
to the lyrics of 'Puff the Mighty Dragon'
“who frolicked in the mighty Labs of trusty LNDD'...?
It would be here)


Our Revised Amicus Brief had asked if CAS would consider this:

Is WADA's expressed reliance on 'Judicial Interpretation', as a means to amplify unexpressed, or hypothetical meanings of its Code, actually a “Quigley violation”, and detrimental to proper WADA rules promulgation?

The USADA is part of the WADA family, in an ADO role, and CAS, being a separate family branch of common Olympic parentage, for the private world of Sport Arbitration justice, went to great lengths, in our opinion, to obfuscate a case which did present evidence of egregious multiple errors, in the SOP and performance of the French LNDD (CAS' Panel denied the 'existence' of evidence at many paragraphs, inventing the new term du jour: 'honest inadequacies', rather than denying the 'validity' of the evidence offered by Landis).

That CAS had to invent new terms, such as just used, and heap officious scorn on Landis for 'commanding an army of terrorist castle–storming legal troops' (NB: that simply means experts 'not from within 'WADA World'), while using creative techniques themselves to change the meaning of clear ISL rulings, ignoring the implications of vaulting CODE Article 3.2.1 over prerequisite Articles 6.4 and 7.1/7.2, and enjoying the legal banter justifying a 2006 Testosterone AAF done on a 1996 IsoPrime–1 machine with 1987 OS2 software, while a newer uncertified IsoPrime–2 sat nearby, only to use when the poor ole' cuss broke down (how often? We aren't told) is a royal flush from a self–dealt deck of cards.

Quigley IS DEAD, long live WADA.

Here, for the last time, is a look at the long serving and now rejected Quigley Rule, Line by sorrowful line:

The fight against doping is arduous, and it:
“... may require strict rules.”

(WADA: yes as to Athletes, NO as to Laboratories)

But the:
“Rule–makers and rule–appliers must begin by being strict themselves...”

(WADA: Pound's prejudicial statements; rigorously, singularly–focused CODE drafting (against Athletes by any evidence outside of fraud); excessive appellate funding for a simple AAF case without using its exceedingly powerful and broad powers from Article 13.2.3 Persons Entitled to Appeal to appear as a Party)

Regulations that may affect the careers of dedicated athletes:

“... must be predictable.”

[Ww: Voilà the Quigley Rule]
(WADA: 'judicial interpretation' of formerly 'untrustworthy/sloppy' evidence creates honest inadequacies (which is no Definition found within the WADA CODE), and thus does not overturn the presumption of glorious laboratory perfection granted by Art. 3.2.1)

They (the regulations) must:
“... emanate from duly authorized bodies.”

(WADA: No issue here, with the process that was undertaken by all concerned from the IOC to the CoE to formation and conception of the WADA / UNESCO system: sadly it appears that form superseded adherence to the PRINCIPLE-driven objectives above)

They should not be:
“... the product of an obscure process of accretion.”

[Ww: Voilà the warning against judicial interpretation and bad or biased CODE drafting (and redrafting!)]
(WADA: reminded its constituents, prior to adoption of the New CODE 2007, that [Ww paraphrased]: 'precision in some rules may overburden courts or restrict some pursuit of wrongdoers', as to defining its new Article on Aggravating Circumstances)

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: Voilà the second iteration of the Quigley Rule, warning against judicial interpretation and bad or biased CODE]


How many metabolites equal positive?

How old is that IsoPrime?

Where's that missing (fill in the evidentiary blanks ______)?

What do you mean, on Article 6.4?

Hell, yes, USADA, no problem, if you're still needing funding to fight Landis' claims, mates, we'll kick in a million or more. Young wrote the CODE, and is part of the CAS group of arbitrators, their claims of fraud won't get far...

Sloppy? Untrustworthy? We'll call them 'honestly inadequate'..."
and so it goes)

(hypothetical creative writing...)

Something's brewing: a recipe for disaster.

With the widest, wildest–ly implausible boundaries permissible for SCIENCE to be called so, as towards evidence from gerry–rigged diagnostic tools (is your doctor using 20 year–old software? Or dental tools?), issuing and affirming findings in defiance of every witness of any pedigree who exists outside WADA World.

Our last installment sometime this week, on the CAS Landis Decision:

Part THREE: WADA's and USADA's millions, for one man's two year suspension.


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.

A CAS case analysis provided by


copyright 2008 Ww

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