Tuesday, 14 April 2009

Is WADA 'aiding and abetting' Lance?

The previous WADAwatch post discussed our perception of the AFLD's actions vis-à-vis Lance Armstrong, and the French perception (as usual, coming from leaked confidential information provided to L'Equipe) of his 'violation', regarding a visit, a wait for confirmation, and a shower outside the view of the attending DCO (Doping Control Officer).

As of today's date, we are not aware of AFLD having provided a full copy of the report submitted by the DCO. We have read reports that indicate, from Johan Bruyneel, that 'all (the interchange between Lance and the DCO) passed as it should, cordially', we read online about Lance saying the cutting of his hair was 'brutalized', and we reported how the AFLD DCO was under oath as a job requirement.

We wrote:

"Simply, Lance contended that the following occurred:

At question is a 20-minute delay when Armstrong says the tester agreed to let him shower while the American rider's assistants checked the tester's credentials."

Now, thanks to our generally-available 'sources', we find that Lance may have acquired a formidable ally, indirectly.

WADA itself.

Through another** lost appeal, WADA appears to have offered Lance Armstrong enough ammunition (if the facts as we have gleaned them remain relevant to his case).

**On 17 December, 2007, WADAwatch published this post:

WADA appeals, loses ASADA – Karapetyn case

In which WADA pushed for a ruling at CAS, through judicial interpretation (aka 'a Tax' on litigating Athletes, who must argue against WADA regarding poorly drafted (or as-yet indeterminant) CODE (or ISL, IST) Articles), as we wrote then:

WADA based its appeal on seeking support at CAS for its ambiguous drafting language of WADA CODE 2003 Article 10.7 (“Disqualification of Results in Competitions Subsequent to Sample Collection”), which calls on ADOs to strip athletes, who were determined to have violated an anti–doping rule, of their interim victories, results, prizes or medals. However, the CAS decision agreed with the Respondents' arguments, which invoked among other items, the language of the Article itself, which includes the phrase “...unless fairness dictates otherwise, ...”.

The CAS Decision came out against WADA's position:

In doing so, CAS refuted the World Anti–Doping Agency's apparent contention: that an ADO with the authority, via the WADA CODE, to 'disqualify results in competitions subsequent to sample collection' MUST do so, in spite of the clear wording “...unless fairness dictates otherwise, ...”.

CAS reasoned that ASADA had acted within the discretion provided specifically through the AWF's adoption of the WADA CODE into its Policy, when that discretion was “...applied in good faith, without bias, error, or undue influence.

Specifically: “ASADA considered the athlete's inadvertent taking of the banned substance nine months before the Commonwealth Games, the fact that the stimulant in question has no lasting effect on the athlete's performance and that his doping control results one month before, during and after the Commonwealth Games were negative for any prohibited substances.

Follow this link to that 17 December post.

So once again (if there were other adverse positions that WADA sought to appeal, following Decisions favouring Athletes, Ww has missed those...), WADA has searched to incorporate, through the prejudicial facts of judicial interpretation (translated another way: cases where Attorneys representing the Athlete must argue a point (driving up legal costs) which by definition must usually be unclear, ambiguous, or poorly drafted by WADA and its Signatories), the strict construction of Article 2.3.

The case?

CAS 2008/A/1551 WADA v. CONI, FIGC & Cherubin

As briefly as possible, this concerns the same issue now facing Lance Armstrong: "notice".

Notice is one of the most well-known and misunderstood legal principles. Anyone that ever watched a TV police show (at least from the USA), is at least subliminally aware of the concept. You see a criminal, at the same time the police (on camera) find them.

And what does the policeman (-woman) cry out?

"Police! Stop or I'll shoot!"

That is the legal principle involved.

An agent ("Police!") representing the 'State', has identified themselves.

He or she issues a command (One word: "Stop!") that advises the 'alleged criminal' to undertake a commanded action.

And then, the criminal (woe be it if he or she is deaf, or without linguistic competence), is put on NOTICE ("Or I'll Shoot!") of the CONSEQUENCES that will follow if the 'alleged criminal' does not comply.

In the Cherubin appeal by WADA (interested readers are strongly adviced to follow the link above, for the 18 p. Decision), Cherubin was 'referred' to the FCJ (the 'football league court') by the assigned prosecutor, NOT for violation of Articles 2.3 (Refusing or failing without compelling justification to submit to sample collection after notification) and 2.5 (Tampering or attempted tampering with any part of doping control). However, the prosecutor did claim that Cherubin "showed a 'lack of cooperation'" in the completion of the anti-doping procedures, invoking a violation of Articles 6.2 and 6.5 of Italy's Operating Instructions of the Anti-Doping Commission.

At the first instance, all charges were dismissed. The prosecutor appealed, to the 'GUI' (in English: Panel of Judges of Final Jurisdiction on Doping Issues), requesting sanctions under Article 4.2 of the Operating Instructions of the Anti-doping Prosecutor's Office. As CAS notes, that provision calls for a "sanction between one and six months ineligibility [which] can be imposed on any licensed athlete who does not provide the required cooperation [...] without advancing acceptable justifications".

In this level of national appeal, Cherubin received a one-month suspension for the Italian Agency CONI rule (Italy has apparently suffered some recent changes to rules and Organizational titles: the CAS Decision reminds us of these: WADAwatch refers simply to Articles and Organs as presented); the body concluded that the Prosecutor's case was clear as to Cherubin's "negligence and incautiousness".

WADA received notice of this 20 March, 2008 decision on 11 April 2008, followed by an English translation on 8 May. WADA filed the discussed appeal with CAS on the next day, May 9th.

WADA's grounds can be read at this link (same again) to the CAS site, paras. 1 to 4.

Our notes summarize the CAS Decision that rejected WADA's appeal:

Background note: a football/soccer match in Italy, had two players from each team notified for doping control, in the closing fifteen minutes of their match. Four officials (it appears) were in charge of this action, under authority of the requesting ADO (CONI).

While three of the DCO officials (??!!) were 'occupied' with Cherubin's team-mate's urine Sample control, one other DCO official followed the two opponents (to stay as visual witnesses while they showered): Cherubin 'apparently presumed' he could do the same (some evidentiary conflicts on the various statements by Cherubin were resolved mostly in his favour, for reasons below). He then was apparently involved in a hostile TEAM-ONLY argument behind locked doors (not directed at his person), the amusing result of which was the dismissal of the team's Coach.

WADA contended, after the resulting disciplinary actions within Italy (described above) didn't satisfy its search for Justice, that the Decisions failed to incorporate Article 2.3 of the WADA CODE, by limiting the decision to rule 4.2 (renumbered since as 5.2)] "... under such rule the sanction between one and six month's ineligibility can be imposed on any licensed athlete who does not provide the required cooperation..." without advancing acceptable justifications.

Synopsis: WADA appealed a decision that was, more or less, favorable to the Athlete Cherubin (received a suspension (one month(!!)), much less than the two years that WADA exiged...) and for factual reasons VERY similar to Lance's case against AFLD (analyzed below).

Got that?

WADA demanded two years, while Italy gave the Athlete one month. The crucial question was found in how Cherubin went 'to shower' versus the requirement to provide 'notice why Athlete could NOT.' (start rubbing your hands, Lance!)

The following paragraphs reveal the status of how CAS interpreted these facts regarding Notice:

(para 64) ... the Panel finds the evidence given is not sufficient to satisfy it comfortably that the Player was unequivocally refused permission (to go shower) rather than just deciding to do so and not obtaining permission to do so. (...)

(para 65) (...) Further, the testers did not face the Player with the facts around his behaviour.

(para 66) (...) ... liability under article 2.3 has not been established because it has not been proven to the Panel's comfortable satisfaction that the Player actually refused or failed in the meaning of article 2.3 to give his sample at 22.25; but rather that he left the station without having been told not to do so in terms he could readily understand as being a formal injunction linked to a possible sanction and in circumstances enabling him to believe that if he immediately returned after taking a shower rather than waiting around while his teammate was being tested that would be sufficient.

KEY ANALYSIS: Without having been expressly told not do so, in terms he could readily understand as being a formal injunction linked to a possible sanction and in confusing (Three officials to 'observe' one of four taking his urine control, one of four watching two other individuals showering, and thus no one to follow Cherubin) circumstances that enabled him to believe that if he immediately returned after taking a shower rather than waiting around while his teammate was being tested that would be sufficient. It must be inferred that the above mentioned team brouhaha had some salient effect on the frustrations of the DCOs.

RELEVANCE: If Lance was not 'on notice' that going to take a shower could lead to a possible sanction (which would of necessity be expressed by the DCO who showed up alone at his house-training site in southern France), it shouldn't matter whether AFLD 'prosecutes' Lance "à la Française".

The CAS opinion, coming only a month before this AFLD 'situation' began, shows (in our Ww humble opinion) total similarities with Lance's case. As such, any disfavourable ruling by our favourite world-renowned ADO (AFLD), should be overturned by CAS if it goes that far (Although 'we' said that about Floyd's case)...

SIDEBAR: the Panel for CAS did not discuss the 'Equal Protection' aspects of this case (presumably not developed by Cherubin's legal counsel): one team's players were allowed to go shower, with an accompanying DCO (doping control officer) accompanying that pair of Players, while this DCO was inadequately and insufficiently staffed, to allow same for the player Cherubin, on the other team, who had to wait an identical time period for 'his turn' as did his two opponents (with people's careers and reputations at stake, one is hardly tempted to joke: "How many Italian DCOs does it take to arrive at one full urine sample receptacle?", with three observers for Cherubin's teammate)

This could be the first time in a Long Time that Lance would have grounds to thank WADA, for its diligent, repeated attempts to 'judicially interpret' the lacunae of the WADA CODE (what constitutes NOTICE?) and enforcing the resulting compliance by IFs and Signatories...

Our dearest Agence française du lutte contre le dopage (AFLD) is now, itself, 'on notice' that its oath-sworn DCOs must audibly REFUSE that the Cyclist remove himself to shower, with expressly communicated (and understood, and accepted) REASONS given, including that a failure to do so would result in possible disciplinary consequences.

Somehow, when WADA attempts to expand its legal arsenal, wherever judicial interpretations are concerned, through actions against Athletes whose cases are decided somewhat in their favour, these actions don't seem (at WADAwatch) to be very... appealing.


Police do it all the time:

"STOP!! Or I'll shoot!!"


copyright 2009 Ww

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