Monday, 20 July 2009

WADA ya get? Another Eight years and...

... deeper in Debt.

What is WADA: Janus, Gemini or Jekyll and Hyde?

While WADAwatch has been known to castigate various World Anti-doping Agency actions that seem to betray its Fundamental Rationale (CODE introduction), we are starting to wonder if WADA has a front face/back face, is twins, or the Evil that comes out of Every good man? Because somewhere in Montreal, someone who wears a hat saying 'Legal Advice' is taking new and lower roads in seeking another bout of 'judicial interpretation' by CAS, of the meaning of the CODE, written by WADA.

In 2007, WADA's budget showed a line-item for 1.5 million USD, for the purposes of 'litigation'. That amount remained unchanged (other than Swiss Franc conversion values) in its budget for 2008, according to the financial statement issued by Price Waterhouse Coopers. PWC did not advise WADA to separate out of 'administration' the costs for various of its divisions: a dollar value/number for 'Legal' would be heartily received.

What the audit also did not reveal (nor are we convinced it should), is what percent of that fund was used by WADA to perform its diligent aggressive displays of judicial 'zeal', given the WADA CODE's allowance for universal appeals by WADA.

Sadly, the history of WADA shows that it has a bizarre tendency to self-induced judicial suicide, given a certain limited series of cases appealed to CAS, in which its arguments became the bane of any Athlete caught in its cross—hairs: the common denominator is WADA's penchant for 'judicial interpretation' – by CAS – of the extent of WADA's powers. Lest we forget, 'Judicial Interpretation' is a concept that lawyers endorse, for its ability to generate great fees as they argue 'what the Regulation means': this is hand-rubbing-time for them, while it breaks the back of a 'Defendant' (such as Floyd Landis, or others mentioned below).

Sadly, no Defendant has taken WADA to the European Court of Human Rights, with an argument against the patent deficiencies in WADA's CODE, which are so prevalent, that it must be 'interpreted' for nearly every case. Administrative law is not that difficult, unless you purposefully want this to be...

Let us begin by stating this article is about Tyler Hamilton, and begin by offering readers a history lesson, which may show why there is some trepidation as to Hamilton's future health, as long as he is pinned in the WADA legal spider—web.

Back in the year 2006, WADA called upon CAS to determine its rights to appeal against a decision taken at the national level, by a Federation that had not (yet) agreed to join WADA.

The case was CAS 2006/A/1190 - WADA v/Pakistan Cricket Board & Akhtar & Asif (link to the decision at CAS is no longer functioning; we know no reason why CAS could not sustain its preceding cases via Internet links for longer periods of time, considering their value).

WADAwatch wrote an extensive article, offering several citations from the Decision. Briefly, WADA had hoped CAS would rule in its favour, of 'universal jurisdiction' simply because it should be (sarcasm mode off). WADA sought this, in spite of the fact that the Pakistan Federation rules included an Appeals Board (the 'PCB'), whose decisions were 'final', that WADA should be allowed to intervene and, if successful, overturn the case (naturally WADA was appealing because the PCB found in favour of the players).

CAS reminded WADA with the following paragraph, of the limitations WADA faced in such a situation:

In the present case, the statutes or regulations of the relevant body – the PCB – do not contain any reference to a right of appeal to CAS. In fact, clause 11.5 of the PCB Regulations states that the decision of the PCB Appeals Committee will be final and binding on the parties to the appeal. (Paras. 7.2 & 7.3)

With that legal reasoning, CAS reminded WADA that the limitations on the system are solely derived from the body of Rules (centered on the CODE itself) that were drafted under its 'expert' guidance, in plenary and working sessions with certain of its Signatory members.

In November of 2007, WADAwatch offered our sentiments regarding that Decision:

WADA has clear jurisdiction from Signatory approval and express inclusion by reference towards appeals to CAS.

But WADA may be spending valuable resources to short-circuit its limitations via Federations that have not yet modified statutes, or adhered to its program.

Fast forward only a month, when WADAwatch analysed the Karapetyn case. In December 2007, we described an attempt by WADA to seek the return of a Gold Medal won by Australian weightlifter Alexsan Karapetyn (See our report for full details), in the interim of his having been tested, and then being 'disciplined'. Yet the gist of the matter was that the clearly—worded WADA CODE Article (10.7; WADC 2003) included one clear phrase: '... unless fairness dictates otherwise.', as a fallback if the quasi—judicial process found the penalty too harsh. WADA presumed, as it inevitably does – time and again – that 'judicial interpretation' can go far to relieve the repeated lacunae existing in the very CODE it fought hard to produce (and live under). CAS ruled otherwise, WADA lost again, as the Decision found that the appellate process had fairly used the Article specifically as was written and approved for WADA by its Signatories.

A recent case, only decided in April 2009, once again saw WADA riding its horse to battle against the windmills of its own CODE.

WADA had presented to CAS, yet again, another request for 'judicial interpretation' of a decision that ultimately placed an Italian soccer player, Cherubin, under a one—month suspension for not providing the 'required cooperation' (Read our Cherubin case analysis at Is WADA 'aiding and abetting' Lance?). As it turns out, that case was relevant to past and current problems faced or facing Lance Armstrong, and his Astana team (more below, in this two-part post).

So, Tyler is now the latest in a long line of Athletes, for whom the stigma of a suspension has not satisfied the 'beast' in WADA. Eight years, is the duration of Tyler's newest penalty; eight years that would make him forty—six if he attempted a comeback in competitive cycling. Eight years, for taking a homeopathic remedy for a serious case of depression. Visit the blog Rant Your Head Off (Scroll down to 'Vindictiveness, thy name is WADA') for a biting analysis of the situation.

Yet now, WADA seeks 'judicial interpretation' of its CODE, wanting to inflict the ultimate stigma – a lifetime ban – on this second–time offender. This comes from 2008 CODE Article 10.7, which is one of the most confusing Articles WADA ever approved, offering a matrix of coded penalties and the range of years that entail violators. Some who think the US policy of 'three strikes and you're out' as being severe, are slowly waking up to the realities of what WADA (or its 'Legal Service') are doing with its Two-strikes policy. A 'Legal Service' as we've named it, for it is not publicized on the WADA website (or if it is, the publicly available links to it are well–hidden!).

On the one hand, the Hamilton case as it stands now, seems to be exactly what WADA hoped to achieve by seeking severe alterations to its CODE in Madrid, in November of 2007. There, by offering its enthusiastic endorsement of the concept of 'judicial interpretation'... for its newly–drafted Article 10.6: Aggravating Circumstances, WADA hoped to induce Athletes not to create legal procedures that 'prolonged out the inevitable'. Now, on the other hand (the Janus/Gemini/Jekyll and Hyde paradox), WADA is hoping to create a long, expensive and 'Judicially Interpreted' court battle to find out what its own CODE means, when an Athlete faces a penalty that ranges (by WADA's choice) from 'eight years to life' (as in banishment).

WADAwatch has repeatedly focused on the injustice of an organization placing the financial burden (of 'telling WADA what its own drafted rules mean') on the Athletes facing appeal. Our first was the most in-depth: WADA: Aggravating Arrogances.

Thus readers can be sure, while WADA seeks 'judicial interpretation' by CAS, its 'Court of final Appeal', regarding the 'duration required' for Hamilton's admitted offence (another aspect that WADA ostensibly hopes for more 'busted' Athletes, 'admission') that someone like Hamilton (and the USADA, for that matter), does not have the right to 'agree' via negotiations to an eight–year ban (exactly what the CODE calls for), in lieu of the obligation (as WADA perceives) of a finance – draining legal war with no survivors.

WADA, not having learned its lesson from the Landis case, which could only be won through a highly unusual 'reverse subsidy' from WADA to its Signatory, the United States (a Signatory which certain sources claim seems to be perpetually very late in payment of its obligatory annual dues), of over a million dollars, is now publicly On The Record for increasing maximum Legal expenses for Athletes, NADOs and itself. It is On The Record, as being against negotiations that reduce legal costs.


WADA should publicly renounce inflicting 'judicial interpretation' onto the chequebook of USADA, itself and, of course, Tyler Hamilton. That it may not do so, seeking to justify a role of heavy–handed headline seeker, must fall under some perverse sense of justice. We can only surmise, that WADA is again prepared to offer USADA even more cash–on–hand to augment the USADA 'war chest' and achieve what WADA evidently seeks: the total annihilation of Tyler Hamilton, a former champion (who can forget his Tour de France with a broken clavicle?) now in the lurch from a propensity for serious depression.

Whose moneys does WADA have to spend on this appeal, which seems to be a sure loser at CAS? If the Secretariat of CAS were motivated to do some good, it would get on the phone to WADA-Legal and suggest the withdrawal of this spurious appeal. It is not likely to win a case that has so many parallels to the precedent losing 'positions' taken by the World Anti-Doping Agency.

* * * * * * * * * * * * * * * * * * * * * *

Meanwhile, WADAwatch seeks to reason (from a distance) with Madame Roselyne Bachelot, French Minister of Health, Sport and Youth, who recently became 'particularly interested', in what we perceived as her headline–inducing interest (means promoting exposure of her own importance, at a time when President Sarkozy had just 'shuffled' a few ministerial posts) at 'welcoming' Lance Armstrong back to the Tour de France.

She of course supports 'her' AFLD (Because French taxpayers' money is passed to the AFLD through her official capacity as Ministerial controller of their budget allotments: at least 95pc of that), and supports the shoot–from–the–hip comments of AFLD directeur Bordry, about lax UCI testing controls.

If only Minister Bachelot could open her mouth and display wisdom... alas (a Ww translation):

“The UCI saw itself this year invested with the responsibility for the fight against doping. I therefore want to recall for each (presumably UCI, and AFLD) their responsibilities.”

The UCI had held exclusive jurisdiction of testing at the Tour de France, for 'every' year in which testing/controls were performed, Madame. This is proper for an International Federation, one of the oldest in the Olympic Movement, and retained that jurisdiction after becoming a Signatory of WADA. Given a Franco–centric viewpoint is okay, Madame B., yet surely one of your advisers reminded you that the only reason you could have said such a thing, is that Pierre Bordry or certain journalists made such a fuss over the 2008 'renegade' Tour de France, and its battle with the UCI.

That Battle–of–the–Titan–Egos was virtually limited to the issues of whether: a) the ProTOUR concept itself (See -c-) would prevail (ASO having led a long fight against it); b) Floyd Landis could possibly race in it, and; c) Patrice Clerc's unproductive 'war' with UCI vice–president Hein Verbruggen. From that, the Fédération française de cyclisme (FFC) was suspended from UCI activities, the renegade Tour 2008 was run under its 'homegrown' and ad hoc rules, and AFLD found itself in the Captain's seat for those three weeks (apparently, the first year in several in which the Laboratoire National (now 'département des analyses') didn't go on vacation after announcing 'A Sample' results).

But Mme. Bachelot warned the UCI last week, after Pierre Bordry cast his hip–shooting insinuations at them a day earlier, that certain lax procedures would not be tolerated towards certain teams.

And we must refer again to Cherubin, where WADAwatch once suggested that an 'Equal Protection' argument (as one would see in the US Supreme Court) should have been raised, and should be part of the rules that control: any team–based control should be adequately staffed. (We are also curious about the attitude mentioned, of the DCO relaxing over coffee for an hour...) Simply put, it is not reasonable to place only one DCO in front of a team of nine people, and expect their two eyes to control nine pairs of legs, given the limited time for certain 'recuperation' methods to be achieved (showers, massages), and the complexities of team displacements pre– and post–stage.

Mme Bachelot says as much, in her quaint French soliloquy:

The riders, of whom one understands well that they cannot be controlled all in the same time, well understood, must stay within the sight of the Controller so that no suspicion occurs apropos these controls.”

Justify Full

The concepts in the Cherubin case, where one player was 'busted' for a misunderstood 'departure from the scene' from the view of the collection of DCOs, are nearly comical. Recapping briefly: one DCO observed two opponent players as they showered, and three DCOs followed Cherubin's teammate as he went to give his urine sample(!).

The CAS ruling in Cherubin against WADA, who evidently could not stand the thought that an Italian team's player could 'escape' with only a four–week suspension(!), may have had some small influence upon the contemporaneous AFLD decision not to prosecute Lance for perceived 'absences' (while the DCO's credentials were being checked by team director Bruyneel, Lance showered 'upstairs'; what could have been a case, wasn't, perhaps because that DCO never ascribed any 'deviations from protocol' on the form which Lance signed). Certainly from Lance's point of view, Cherubin could not have come out of CAS at any more advantageous moment: that is clear.

Lance, being the most controlled rider on the Tour (increasing the chances for a 'false positive'?), had been personally selected, previously, for discriminatory observation by the powers of Mme Bachelot's office, in striking similarity to the spirit of the Tom Boonen, pre–Tour fiasco, where 'discriminatory practices' by Tour organizers Amaury Sport Organisation (ASO) against Boonen were shot down by the French national version of the CAS.

While most of the Tour's audience(s) are breathlessly waiting for Bourg–St–Maurice, le Grand Bornand, Annecy and Mt Ventoux, some in the audience are waiting to see if Pierre Bordry is going to 'bag' his prize: Armstrong.

Wherever you are, Lance, Bordry and Bachelot are not far behind (except when you're climbing)...

one hundred percent pure

copyright 2009 Ww

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