After release Monday of the strongly–worded Landis case appellate decision, published by the Court of Arbitration in Sport, the steadfast Knight in now–stained armour, who lost the world's most expensive, private anti–doping arbitration process since the IOC begat WADA at the start of this decade, has had his testosterone–based USADA suspension confirmed, now in the spotlight again, confirmed as guilty in the eyes of the world, for actions of which only he knows the deepest truth.
This is the first instalment in a multi–article series of analyses.
Part ONE: Knight, knave, or Don Quixote?
The CAS Decision shafted many more dreams than those of Floyd Landis, the former Tour de France 'winner', now twice–defeated in his legal battle against the charge of testosterone doping. A rare American, of the Mennonite religion, a believer, as are most Americans, of the ideal (or myth) of 'truth and justice'.
Around the globe, one presumes that now, before a renegade Tour de France begins in two days, and the Beijing Summer Olympic Games in August, the attention of most world–class Athletes, their parent International Federations (IFs) everywhere, national or regional Anti–doping Organizations, and perhaps a select few of the world's sporting press are curious as to whether this 58–page defense of the 'System' has any long arms attached.
Where WADAwatch had urged CAS to create the Landis Rule, (see para. 27) surplanting the thirteen year–old Quigley Rule (below), the opposite has occurred, to the detriment of clean sport and clean anti–doping efforts. A cut to the quick?
An interesting paragraph from this third Landis Decision (two legitimate USADA or CAS decisions, one extraordinary renegade French Decision) has captured our attention, now three months after Ww published its Revised Amicus Brief (“RAB”) on behalf of Floyd Landis, as well as future WADA–accredited laboratories' AAF victims, in the latter third of the Landis Final Decision. Quoting the Decision's paragraph:
259. There is a clear distinction between administrative deficiencies, bad laboratory practice, procedural error, or other honest inadequacy on the one hand and dishonesty or bad faith on the other. Some of the Appellant's expert witnesses appeared insufficiently aware of this distinction.
Does that strike any other reader similarly?
First off, all but the first (“administrative deficiencies”) are outlawed by the WADA CODE.
Bad laboratory practice? Check the CODE, and the ISL: not allowed.
Procedural error? Presumably, if meant about labs, these are not acceptable by the CODE or ISL (which refers constantly to the ISO 17025:2005).
But?!
“Other honest inadequacy”?
That non sequitur is not in the CODE, nor the ISL, and shouldn't have reached the final draft of this Decision. Inadequate laboratories are to be suspended, or have their accreditation revoked. NB: with the world reading about the Copenhagen study published just last week in a scientific, peer–reviewed journal, more consequent results are surely to follow, if WADA wants to retain some level of credibility as an “lab accreditation” source. 'Non sequitur', in fact, as an 'inadequate laboratory' must either denounce itself (“Sorry, we are incapable of such high scientific performances”), or be withdrawn from the WADA list of 'accredited laboratories'.
Clearly, CAS seems to have not understood how it has confirmed, in terms that Floyd and all future Athlete–victims are supposed to understand, that in order to sustain WADA–world, the ensemble (WADA, its Signatories, labs and official system of justice) now condones administrative deficiencies, bad laboratory practice, procedural error, or other honest inadequacy, on behalf of the WADA–accredited laboratories producing Adverse Analytical Findings (“AAF”) evidence. While apparently seeking to chastise this Appellant (rather, his legal team) that dishonesty or bad faith require 'proof', CAS has, in effect, struck a deep blow against its Quigley Rule.
[NB to Richard Young: you may need to include a definition of honest inadequacy in the next published version of the WADA CODE.]
The only clear distinction we found is that this CAS Panel, made up of three officials selected from the exclusive CAS list of sports–law arbitrators (apparently in response to the late arguments in closing submissions as to fraudulent or covered–up activities alleged by Landis' attorney(s) against LNDD or certain staff), may not have been willing to deal with the terrible realities stemming from any ratifications of the 'reams' of evidence that had been presented, whether at the AAA hearing or this appeal.
In the paragraph (#258) which preceded the above quoted text, Jan Paulsson (whom WADAwatch had hoped would raise several Chris Campbell–styled arguments, in as clear a fashion as he had when presiding over the Landaluce case), thoroughly diced up the work plan followed by Landis' attorney(s).
Paulsson made his point reasonably: making an argument does require evidence, items that had been revealed (or not?) since the fall of 2006 (eg: what ever happened to the frothy French claim that LNDD's computers had been hacked into by associates of Landis'?), and the creation of the Landis Wiki–defense, show skeptical documents all purportedly originating at LNDD. All were accepted by the Panel as 'proof' of Landis' wrongdoing. But was Paulsson accurate in denouncing the lack of evidence pointing to fraud? Had Landis' attorneys simply not acted, or had they overstepped their known attacks through hype? Paulsson opined:
“... if Mr Suh is on the subject, if he continues to pursue the themes of bias in the lab and cover-up in the light of the evidence of these hearings, it would be handy not to have a lot of adjectives about it, but just notations of what are what is the evidence of those propositions, in objective form.”
We cannot yet be sure “what are what is”, but since the LNDD documentation has been online, the world can arbitrate in private, to their commensurate ability to download. Make the Landis evidence your next Party Theme!
Paulsson's castigation of Landis' legal defense team, seems to have forgotten the evidence offered (see CAS transcript pp. 815–820, then 1471–1472; all conveniently displayed in Dr Arnie Baker's book, at pp. 39–40), wherein yet another non–chronological 'contemporaneous data entry' was unsatisfactorily explained by the LNDD witness, Claire Frelat. Apparently, the very words of Richard Young were sufficient to sway this Arbitration Panel:
“I certainly wouldn't jump from that to the conclusion that the last entry was a fraud.”
(Okay Mr Young, you're on the CAS List of Arbitrators: you're 'one of us': if you say it isn't a fraud, we'll make sure that it isn't...)
The first 'that' which Young stated, refers to a USADA exhibit, submitted as the contemporaneous maintenance log of the GC/MS analytical machine. There is no way to create a January 20, 2006 entry, BELOW an entry for January 30, 2006, without the log instantly becoming 'non–contemporaneous'. So how did Richard Young's associated Attorneys on the CAS Panel rule?
CAS Decision last Monday: “189. The Panel finds that there was no SOP violation and accordingly no ISL violation.”
Merry Christmas, Mr. Young.
Since the previous AAA decision precisely eliminated the most 'irregular' test (for T/E) from the case below, CAS was perhaps exceptionally well–placed, because of that anticipatory AAA Decision, to be able to sidestep one of Floyd's stronger issues. Had that T/E result reentered the case, could CAS assert as it did?
Coming back to para. 259 and its 'clear distinction', Ww thinks that CAS has put on the one hand, any “administrative deficiencies, bad laboratory practice, procedural error...” and labelled those “honest inadequac[-ies]”, through inclusion of the conjunctive “or other...” [presumably: deficiencies, bad lab practices, procedural errors]”, and set those apart from “dishonesty or bad faith”.
Honestly, inadequacies of the type which CAS now finds condonable in the quest to quash any athlete's well–funded defense, are an even greater expansion of the powers of laboratories to advance cases of dubious legal merit.
WADAwatch has not, in offering these opinions, ignored the harshness to which this CAS Panel directed invectives towards both Landis and his squad of expensive attorneys. Ww finds it strange, however, that CAS 'made nice' to the inadequacies of the LNDD, which are in some measure at least equal if not greater than the 'inadequacies' of Landis' indefatigable defense.
Offering the sporting world a sense that 'anything goes, in our labs: anything is permissible, EXCEPT proven dishonesty or bad faith', is not an impressive tag to graft onto the term “WADA–accredited”. Yet CAS has achieved precisely this.
Some months ago, when WADAwatch published our Revised Amicus Brief, and now turn to the four issues that were raised therein. This article deals primarily with the first two:
What level of confidence can be associated to the evidence that the Laboratoire Nationale du Dépistage du Dopage (LNDD) offered (being a French governmental laboratory, now renamed the 'département des analyses', and hierarchically placed within the Agence française de lutte contre le dopage (AFLD)) in the Floyd Landis testosterone case?
Was Landis inculpated only due to an unequal application and enforcement of the WADA Code between classes of stakeholders?
To be covered 'prochainement' (FR: 'nextly' or soon)
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?
Given the aspects of Argument III, supra, is participation by WADA in financing a majority of the USADA appellate costs in this case a legitimate use of its funding under the controlling 2003 WADA Code, or does it establish a very discriminatory precedent toward future Athletes, whose defense of their cases, solely due to WADA's inordinate reliance on 'judicial interpretation' as opposed to proper Code drafting, may be more contentious and thus more expensive than otherwise would be the case under a properly drafted WADA Code?
Taking each of the first two issues in turn, with some commentaries dredged out from the RAB, this article continues its analysis of the dénouement of those topics.
I Level of confidence:
CAS found LNDD's laboratory performance sufficient to confirm Floyd's 'conviction'.
Remember that the AAA Majority Decision had stated, regarding the 'sloppy lab practices' of LNDD, that if “such practises continue it may well be that in the future an error like this could result in the dismissal of an AAF finding by the Lab.”, and the Minority Dissent had offered its variation less subtly:
“From the beginning, the Laboratoire National de Dépistage et du Dopage (“LNDD”) has not been trustworthy. In this case, at every stage of testing it failed to comply with the procedures and methods for testing required by the International Standards for Laboratories, Version 4.0, August 2004 (“ISL”) under the World Anti-Doping Code, 2003 (“WADA Code”). It also failed to abide by its legal and ethical obligations under the WADA Code.”
Ww had stated (RAB, paras. 5–9): “There are very few exceptions to a rule for Athlete's ingestion of Prohibited Substances, or Procedures, yet the AAA Majority, in this specific case, has appeared to create a 'do–over' rule for lab failures that is not found in either the WADA Code or ISL.”
It now appears that CAS confirms this WADAwatch interpretation of the AAA ruling, from the ruling of this appellate Decision...
SIDEBAR: Whether or not an innocent coincidence, it is still stunning to see that, at each stage of the Landis case, the Arbitration panels were presided over by compatriots of the two successive WADA Presidents: Patrice Brunet of Montreal for the AAA Panel, during Canadian Dick Pound's final two years in power, and David Williams QC of Australia, for the CAS Panel, as Australian John Fahey reaches the midpoint of his first year in office.
... paragraph 259 insulates WADA–accredited labs from multiple types of errors, and in fact nearly created a new worldwide term: 'Standard Operating Mistakes' (“SOM”?), that they evidently are prepared sans precedence to allow: CAS has buried the Quigley Rule, at least as regards WADA lab record–keeping. As long as no proof exists (a very key element) that those mistakes originated through dishonesty or bad faith, to the degree that future cases reveal evidence of equally sloppy, untrustworthy or ... honestly inadequate errors, CAS is going to back the bad labs that send it untrustworthy work.
Questions as to lab performance that were left unanswered from the CAS Decision (which may very well have been part of the closed–session hearings in March), could include:
A. How much actual consecutive time does it take to perform standard T/E, or IRMS doping control examinations, across the WADA family of 'accredited laboratories' (and accounting for varieties of machines used), and was the time invested to process the A Sample 995474 outside of these norms? By what factor?
B. Is the machine or software that LNDD possesses for the pursuit of these tests obsolete? (does WADA have any form of compliance–certification that assesses these factors? Having a (hypothetically) 'newfangled' 1995 machine running 20–year old software that needs manual integration simply to override 'Computer Software Errors' (does not resonate with any concepts of 'state of the art')
Does WADA need to fund the French Government to provide its lab staff with newer analysis equipment? How is the research at this laboratory validated anyway? There are few publications available at the lab's website, and we have published several times, that lack of any accreditation documentation available from COFRAC, AFLD, or LNDD, concerning that lab.
WADAwatch is thus of the opinion that this CAS Panel has now confirmed the unwritten or omitted notion that WADA–accredited laboratories are not held to any high standard of performance by the organization that uses their results to pursue doping cases against Athletes, who are being held to the strictest, most unwaveringly high standards of liability.
The level of mistakes allowed by CAS, in endorsing LNDD–provided, USADA–approved evidence, have demonstrably turned the tide on the 13 year–old Quigley Rule (more on this below); as labs have been proven to receive every 'benefit of the doubt', much as the families and children of WADA–accused AAF Athletes would shed a tear of joy to receive similarly even one small benefit.
The days of Quigley are now in a receding tide, for Athlete's protection within 'the system'. Here's how.
II Unequal standards for WADA stakeholders
As the precedent argument demonstrated, when labs are not held to a strict liability standard for its work, then WADA has not created a balanced prosecutorial system: it has created an Inquisitorial system.
WADAwatch had argued in the RAB (See paras. 10–23) that a series of CODE Articles pointedly demonstrated either a serious breach, or a conscious omission in the drafting of the CODE, leading to a lack of oversight, or an incredibly lenient allowance by WADA, in its oversight role as to the scientific practices undertaken by its laboratories. CAS has now verified this. We wrote:
10. WADA appears to have deliberately produced an enforcement system, being the WADA Code, and its related subsidiary International Standards, that has been designed to protect its Signatories unduly, and inflict unnecessary legal costs on victimized Athletes.
In fairness, Ww reminds that the Director for Laboratory Standardization and Harmonization, in a direct conversation in Madrid, had discounted these theories by insisting that such lacunae or omissions were found in the ISL. We're still looking...
However, CODE Articles 6.4 (Analysis of Samples), and 7 (Results Management), including its sub–Articles 7.1 (Initial Review) and 7.2 (Notification after Review), were the focus of that Ww analysis. In the CAS Decision, not one of these Articles (6.4, 7.1, 7.2) ever appears; they seem to have been not any part of either side in this case: no one raised this particular battle pendant.
Why?
Floyd may have wanted to consider these earlier in the process, and whether WADA and USADA might have been forced down a different defensive path is a battle for another day (a small sardonic reminder that Ww did not receive any portion of any millions of dollars from any benefactor for these pro bono analyses).
Ww concludes that the case appears (superficially (!) to the undiscerning) as justifiably decided, since the Arbitrators acted as if the above–listed Articles were not substantively and directly necessary to reach its conclusions, which it could (and did) do by retaining a focus on sub–Article 3.2.1.
To begin, let's compare the WADA CODE sub–Article(3.2.1) that dominated the Landis hearings with the other three sub–Articles:
3.2.1 "WADA-accredited laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for laboratory analysis.
6.4 Laboratories shall analyze Doping Control Samples and report results in conformity with the International Standard for laboratory analysis.
While most international jurists would deplore the lack of uniformity in WADA's presentation of precise language, Ww points out that 3.2.1 is found in the body of Article 3, Proof of Doping, while 6.4 issues from Article 6 on Analysis of Samples, and Article 7 mandates Results Management.
Given that the evidence that is eventually provided to a AAA or CAS Panel (from urine into a sterile bottle, or a drawn blood Sample), as proof of doping must originate from earlier Analysis of Samples, the precedence of fulfilling Article 6.4 mandated proof ('shall') should have held great priority over the more slippery presumption found in Article 3.2.1. In layman's language, 6.4 offers Zero 'wiggle room', while 3.2.1 offers an entire dance floor of 'presumptions'.
This anomaly points out one of the greater problems in how the CODE was drafted.
Since the Article concerning the labs (6.4: Standards for Sample Analysis and Reporting: a strict mandated standard) takes legal precedence over Articles concerning ADO receipt of lab evidence of an AAF (7.1 Initial Review Regarding Adverse Analytical Findings), and subsequent informing the Athlete through 7.2 (Notification After Initial Review), prior to commencing any hearings (Article 3 Proof of Doping), we have only WADA, probably Richard Young, and a Drafting Committee to thank for this unworkable, wrongly–structured system. Thanks to Floyd, however, the world has awoken to the injustices that prevailed.
Simple: 3.2.1 is a financial and evidentiary burden/shift.
By offer from WADA, the burden shifts from the Lab and ADO to LANDIS.
Unfortunately for prosecuting ADOs, being relieved of the early financial burden of analyzing Lab doc packages under 7.1, forces it to generate massive legal defense budgets at a later stage, much like the rookie raft guide who, instead of producing two oar strokes when 140 meters upstream, to avoid the rock, must pump the oars many times in the last 12 meters.
Somehow, it appears that the 'gift' provided to ADOs via the CODE drafting exercise(s) producing 3.2.1, as directed by Richard Young, attorney from Colorado, is a gift Horse whose mouth should be looked into. CAS, sadly, didn't see it that way.
Going deeper into this vital explanation: Art. 7.1 authorizes the procedure for USADA to verify that there were no departures that undermine the validity of the alleged AAF in the evidence, as presented by the LNDD laboratory in this case (post–6.4: Lab's strict performance per ISL and other rules), and to 'certify' (adding a WADAwatch conceptual component) the adequacy of the laboratory documentation package. Note that, in the new CODE, this standard that has been raised to conform with the more onerous language in Article 3.2.1 ('caused...' in lieu of 'which undermined the validity' of the departure). After an ADO such as USADA performs its 7.1 mandate, Art. 7.2 describes the regulations for controlling the flow of information concerning the AAF to the Athlete (nominally from an ADO or IF/NF (Landis, USADA or UCI/USA Cycling (license issuer).
Sidebar: WADAwatch has already described the obvious problem: there are no procedural rules to follow when an ADO would notify WADA of any departure from a laboratory's AAF lab–documentation package, when that ADO determines an undermining departure has been offered as evidence.
Seeing now how seriously these drafting failures are effecting Athletes, Ww would now add that a signed processed document should be mandated by and for WADA, copying the Lab, as well as the Athlete. When this becomes a part of the future WADA CODE, Athletes may sleep easier. Failure of a WADA Signatory ADO to observe and inform about departures should be a violation of the CODE. It should be a defense of the Athlete, prior to direct confrontation of a laboratory staff, that the Athlete was being abused by an ADO's silent acceptance of tainted evidence.
Why is the WADAwatch position the more logical?
Because under the CODE, a laboratory shall do highly competent and clean scientific work. An ADO shall review this submitted evidence. It's clearly written into the CODE.
The quality of the evidence package, itself and alone, is the only way to reduce legal costs on both sides... unless this is their best 'deterrent' for hard-pressed Athletes.
LNDD failed to understand that, USADA failed to report them (that itself points to the failure described in the Ww RAB: USADA has no course, via omissions to both CODE and ISL, to create an investigation of a lab for departures in its documentation. The CAS Decision expands dubious laboratory performances, and restricts an Athlete's ability to seek strict equal treatment: surely the primary focus of the entire reason WADA exists, including its Fundamental Rationale (CODE p. 3).
Another example of unequal treatment exists, thanks to an improper interpretation presented by this CAS Panel. ISL 5.4.4.4.1.4 (you don't have to memorize these) was excerpted, mis–characterized and mis–analyzed by CAS. The mis–characterization was “... are intended to deter reworking of data sets once produced, rather than compel laboratory technicians to produce reams of documentation in the course of analysis...” (emphasis added by Ww), which it extracted from a misguided reading of the excerpted portion of this ISL:
“... all data entry, recording of reporting processes and all changes to reported data shall be recorded with an audit trail” (emphasis from the CAS Decision)
It is a clear mistake (Floyd? Ready for the Swiss 'Supreme Court'? It's your only hope), to extract only 'reported data' from that particular ISL sub–Article, and claim this is the only requirement 'to deter reworking of data', that creates comfort for this Panel.
“All data entry” plus the “recording of reporting processes” plus “all changes to reported data”, have been linked by the word “and” in this ISL Article, and thereby they create a legally–inclusive and simple list that must be respected and implemented for the only proper audit trail, whether or not that damns a Laboratory to 'produce reams of documentation'. This follows what are commonly known in law as the 'Canons of construction' that determine, in real–world courtrooms, how a judge would interpret any statutory construction.
The CAS Panel has tortured this ISL into a creative writing fiction, which is exactly what they claimed Landis had done (CAS Decision, para. 53, second and third sentence), through his series of witnesses, experts and evidence analysis.
Through their unfortunate characterization that insinuates great undue efforts through choice of the word 'reams', they add mis–characterization to their misread legal folly. Whether paper, or in memory–sticks, Palm Pilots and DVD evidence submissions, a rule must be clearly followed (as CAS purported to instruct Landis, then violated their own directive), and CAS provided its improper analysis, further obfuscating the clarity of the ISL.
Laboratories that cannot perform to the standard laid out in CODE Article 6.4 should not be accredited by WADA, they especially shall not succeed in the 7.1 review required of ADOs, and information such as we've already analyzed should never be provided the presumption afforded under 3.2.1.
The Inquisitorial system is henceforth well–established, unfortunately due to Floyd Landis.
Floyd, whatever you have done, you are not yet aware of how this case has systemically changed the control of doping in Sport: worse in the short term, perhaps, wrongly for yourself, but the future of all Sport will be better for having attracted the attention you brought, justifiably, on this WADA world...
Stay tuned in for Parts Two and Three (sometime next week):
Part TWO: Death of the Quigley Rule... more case notes
Part THREE: WADA's and USADA's millions, for one man's two year suspension
NB: this quote taken from the WADA statement placed on their site earlier this week:
Mr Landis had every opportunity to present his case to hearing panels at different stages of the process. He did so and chose in addition to mount an aggressive campaign against the anti-doping movement, spreading an unprecedented amount of misinformation in the public domain to attempt to derail the attention from the core of the case.
Misinformation is only in the eye of the beholder...
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