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

OR:

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”

and

“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.

TWO: 'HONEST INADEQUACIES':
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)

Conclusion:

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]

WADA:

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.

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.

A CAS case analysis provided by

.................@...............WADAwatch

copyright 2008 Ww