Wednesday, 12 August 2009

WADA true story in Black and White...

As penance for a limited case of 'writers' poetic license' last week, WADAwatch delved into recent documents published on WADA's web site, to refresh our memory on the Agency's progress towards 'compliance' within its family of Signatories. In our previous article, we'd relied (presumptuously) on personal memory from the three—day WADA World Conference in Madrid, in November of 2007.

At that conference, one of the speakers emphasized the shift at WADA towards 'Signatories' compliance' regarding NADO and IF conformity with the Code, and the underlying International Standards (as opposed to 'compliance' in joining WADA and signing the UNESCO Convention). Our error was in remembering the 'shift' as 'initiation', and thus a substantive argument we raised was not overly erroneous, yet came out perhaps a bit too 'hyperbolic' in its presentation. Due to those personal memories, our WADAwatch article mentioned a "'first series' of compliance reports..." where a phrase such as “... first series of post–Madrid compliance reports' might have better articulated the thoughts regarding WADA and the Italian football Federation. However, research shows we were not far off the mark, as will be revealed after a summary of the Italian Football case that prompted those remarks.

The appeal by WADA in the CONI, FIGC, Mannini and Possanzini case became an unusual case, which was originally decided by CAS in January, in WADA's favour, ordering each of the Italian football players to a one–year suspension. An unusual case, for its post–award aspect: the CAS Arbitration Panel Award was revisited by its Panellists, upon request and submission of the losing parties. That rare possibility was based on an accord reached between the Panel and the parties earlier this year. The second result was based on the presentation of five 'arguments' by FIGC and the players regarding 'new evidence', only one of which was upheld.

The 'First Award', published on January 9, 2009, came from yet–another WADA appeal, parrying its universal right based on WADC (2003) Article 13.2.3 (the 2009 edition has slight semantic changes); WADA contended that this case displayed a clear violation of Code Article 2.3: the players had “unduly refused to submit to urine sample collection on December 1, 2007”. The Italian CONI decision had found the Players 'guilty' of a 'delay in providing blood and urine samples' (from this CAS Panel decision of 27 July 2009) under the applicable Italian FIGC rules, which the CAS increased to a one–year suspension for each of the Italian players, based on WADA's winning arguments.

We postulated, in our prior article, that WADA's actions in appealing the 'light suspensions' were misled. By appealing against the fifteen–day suspension, WADA was disregarding (as we believe is proven in the 'Final' Award) the authentic problem, which was clarified through the recent dénouement of this entire quasi–legal process. That authentic problem was revealed through the one argument that this CAS Panel found legally acceptable (for the purpose of revisiting its First Award): the effect of the 'standards and practice' within the Italian football anti–doping community, which reflected on the capacity of Players to conform to the rules in effect.

We postulated that it was through 'compliance', rather than another 'appeal against Athletes', that WADA would have come to a better outcome, and wish to elaborate herein how WADA should task itself to perform this action, thereby relieving itself of unnecessary and unproductive financial burdens, and meanwhile relieving to a significant degree the burden on those Athletes against whom WADA apparently prefers to continue evoking injudicious wrath and punishment. But evidently WADA presumes differently – the following quoted text comes from their web site:

One way WADA achieves this is by closely monitoring doping cases and exercising its right of appeal to the Court of Arbitration for Sport for cases under the jurisdiction of organizations that have implemented the Code.

Whether or not Athletes or Players actually unduly refuse WADA, IF or ADO Regulations, disciplinary action against them creates headlines that impute against the honesty of the Players, casts doubts about their actions (“unduly refusing to give a doping control sample? How dare they!”), engages a litany of legal counsel, and ties up 'quasi–judicial resources' available from CAS for these high–level arbitrations. Yet, years after scandal–mongering headlines fade, the truth hardly rectifies the situation Athletes face; and that truth rarely reaches the thousands or millions who swallowed the original story hook, line and sinker. Worse comes when the sporting press claims that they 'got off on a technicality'...

Students of American film may remember the 1960s nuclear—dispute film... FAIL—SAFE.

Suffice to remind our audience(s) that, in the title itself of that Henry Fonda film of 'nuclear brinkmanship' between the USA and USSR, comes a concept that WADA ought to incorporate in its Legal Office (wherever the initiative is based, to commence a Code Article 13.2.3 Appeal action against any Signatory's AAF final determination) – that there comes a point to reach a GO // NO–GO decision: whether to 'appeal, or not'.

Elucidating the concept of compliance is crucial to analysing this decision point, as is our favourite CAS Award ruling: the Quigley Rule. Without 'compliance', one may make legal presumptions that can be invalidated, in the end. Mannini and Possanzini, the two 'accused' Italian football players, are living proof of the validity of this thesis. Backing up through a 'Time Tunnel', one could ascertain one or two perfect 'Fail—Safe' points in the cumulated Mannini–Possanzini disciplinary action(s), where a GO // NO–GO moment was not discerned.

In Italy, had the FIGC Anti–Doping Commission reviewed thoroughly the request for disciplinary action against these two Italian football players, and noted how 'standards and customs' created a Quigley–esque regulatory cacophony in which the Players were now embroiled, the matter of their 'discipline' could have ended there. This could have been rectified during that period of time noted by the CAS 'Second Award': from “... July 2005, when the new rules of CONI entered into force, until the beginning of 2008, the anti-doping authorities were not properly and consistently enforcing the new rules and the requirements laid down in Article 6.2 of the IOCA and Section 5.4.1(e) of WADA's International Standard for Testing”. The citation sounds much like a 'compliance' issue: yet WADA took an appeal action against the Players' 'light' suspension, rather than determine that systemic 'compliance' failure was more at fault.

With no evident “Fail—Safe analysis” in its tool belt, WADA and the adrenalin–charged Italian national prosecutors seem impervious, and disregard the very applicable 'viewpoint' of Athletes, many of whom are extremely supportive, and trying to conform to the Testing and Analysis methods of WADA. In fact, WADA (or FIGC) might have brought action against the “team coach and the President of Brescia” (Luigi Corioni), who seemed, from the descriptions provided by CAS' 'Final' Award, to be guiltier of 'unduly refusing' the Players' presence at the Doping Control station.

Yet perhaps the stronger argument is that a strong 'Fail—Safe analysis' would have suggested that someone liaising between FIFA, WADA, FIGC and CONI should have noted the discrepancies that were so very evident (to this CAS Panel). If the DCOs and the Players were unaware exactly what constitutes “the applicable doping-control procedure and the exact scope of the athletes’ duties”, which “could certainly not be readily understood by the Players without them being informed and educated as to the rules by the FICG and/or by the Players’ Union” (quoting the CAS 'Final' Award), then some entity's compliance with WADA appears to have failed. WADA has an 'Independent Observers' program (which has "participated in approximately 30 major events" since 2000 (some 3.75 per year?) with a "15-member IO team"); perhaps this team should be augmented - to include full compliance analysis for dues-paying IFs and other Signatories?

It cannot possibly be, that CAS functions within the umbrella of organisms spawned by the Olympic Movement (as was WADA) to remind constantly the Signatories of the world anti—doping family that they are failing to comply with the very system of Regulations they have demanded, authorised and implemented. Yet in the fourteen years or so since the Quigley ruling was announced, it seems that the hundreds of attorneys working throughout the International Sporting community have not applied 'due diligence' to help their clients heed such clear and clairvoyant advice. A reminder, now, that he who lost the USA Shooting–Quigley ruling was one of the principle authors of the WADA Code (American attorney Richard Young), and apparently a great proponent of 'judicial interpretation': our favourite 'tax' on Athletes. But is this not what WADA prefers? Taxing 'Athletes' through litigation, to enforce IF compliance?

Compliance and noncompliance are of such sufficient stature that the WADC ensures that entities found in noncompliance are afforded their own right of appeal. Article 13.5 delineates this:

Appeals from Decisions under Part Three and Part Four of the Code

With respect to a WADA report of noncompliance under Article 23.4.5 or any Consequences imposed under Part Three (Roles and Responsibilities) of the Code, the entity to which the WADA report pertains or upon which Consequences are imposed under Part Three of the Code shall have the right to appeal exclusively to CAS in accordance with the provisions applicable before such court.

Thus the question offered above, forces repetition: years after Article 13.5 was written and agreed, is it now politically more expeditious not to bring a noncompliance report against an actual Signatory, yet announcing such via an 'attack' (appeal) against Players who, in essence, 'do not know better' (distilled from the CAS Award)? This question reverberates throughout a case such as Mannini and Possanzini.

A report found on WADA's web site reveals relatively recent (22 November 2008) status as to compliance by Signatories to the exigencies of WADA (note the URL shows it to have been placed online in May 2009). The report is the Minutes of the WADA Executive Committee Meeting, from Montreal, Canada (hereafter “ExCom”). Turns out that WADAwatch was not necessarily so 'guilty' of mistaking the 'compliance' time line, to demands in the Code and International Standards. Beginning on page 19 (pdf and doc page) is a discussion of the WADC. Report Section 7.1 offers discussions regarding the Code compliance and implementation report. Ending on page 31, this Section 7.1 takes up 13 pages (25 percent) of the 51page ExCom report.

Reading this thoroughly shows that WADA had originally intended the first IF compliance reports to be received in 2006 ('two years' after the Code was in force in 2004), yet this had been extended for two years, to 2008 (coinciding marvellously with the extensive, exhausting Floyd Landis/Tour de France affair). The session reported appears to be a second discussion of the 2008 report (ExCom p. 20).

WADAwatch saves its readers' time, in gleaning the salient points from Section 7.1 of this ExCom Report. Those boiled down to several substantive issues, leading with the major 'factor' that is preventing total compliance by Signatories: out–of–competition testing. More than a few entities (IFs for the most part) appear to be nearing potential 'noncompliance' determinations; one can presume a majority of these to be the less well–financed entities. However even in the Mannini and Possanzini case, one of the main problems was deciphering whether post–match random testing was 'in–competition' or 'out–of–competition' Testing. Another factor for noncompliance appears to be the tardy payment(s) of dues (to which WADAwatch has alluded previously): the US delegate sought potential use of a status of 'compliant pending payment' rather than 'noncompliant' (for his government? Unclear...).

A third 'situation', as WADA strove earnestly to promote and clear its tardy (or recalcitrant?) stakeholders as 'compliant', reported that it was still doing so under the 2003 Code, when the 2009 Code agreed in Madrid in November 2007, was mere weeks away from being effective: one had to choose a cut–off point for seeking compliance with a soonobsolete Code. Another very relevant item, discussed how to declare Signatories 'compliant', if declared 'noncompliant' after they rectified the noted deficiencies ; would a 'black–marked' IF have to wait two years or could it be 'rehabilitated' faster, through which WADA organ?

The Secretariat noted that it had spent (for 2008, or budgeted for 2009? Unclear...) some $600K (ExCom p. 30) on this work, and queried as to how much further effort the Secretariat should expend to seek compliance under the 'ancient' Code?
(The answer was evidently 'very little'...)

Director General Howman suggested waiting until 2010 for monitoring. Apparently what hadn't occurred between 2006 and 2008 was perhaps being suggested to be pushed back to six years from the WADA Code's first acceptance. Further anecdotal evidence of 'compliance' regarded IFs who faced hardships... such as a short reference, which we expand into: how was the sled—dog Federation to deal with the expenses associated with sending a DCO 'unannounced' across the various northern (or southern) countries, to 'surprise' mushers and dogs (Testing involves both) for out–of–competition testing? And in Russia, what to do when DCOs had “... been taken into custody and doping control samples had been taken away from them....” (ExCom p. 26)?

Obviously 'compliance' is an item that has opportunities to offer WADA interesting, compromising political situations, requiring all the diplomatic savvy they can muster. Gratitude is extended to Executive Committee Chairman (WADA President Fahey), for noting that WADA had “certainly watered down the black and white approach that many believed should have been taken”. Was his pointed indictment against his predecessor, former president Dick Pound? WADA was apparently reflecting upon “... how many last warnings should be given” (ExCom p. 29).

We note that this form of approach – black or white – has never been an obstacle when WADA or its Signatories unite the world's sporting press against Athletes, whether legally (according to Article 7 Results Management), or prematurely and unlawfully via the interminable series of leaked A Sample results published time and again (Mikel Astarloza being the latest example). After all, Dick Pound 'built' WADA into what it is, via leaks offered or repeated, and prejudicial statements regarding Athletes. According to Pound, any Athlete's actions were 'black' (recalling the IOC letter to Dick Pound upon request of Lance Armstrong, suggesting a bit of 'retenu' ('restraint') would be healthy for someone holding the post of President of WADA), while the 'Anti–Doping system' was lily white...

Strict liability always existed at WADA against Athletes, de jure and de facto. It also exists against Laboratories, within the Code as written, that fail their job (WADC 2009 Article 6.4), and Signatories who fail to comply (WADC 2009 Article 13.5 (above)). Yet, when offered opportunities to avail itself of objectivity and neutrality, to use its Code and International Standards against other 'stakeholders' besides the Athletes, WADA seems as soft and fuzzy (grey?) as any politically–driven Intergovernmental Organization, such as within the UN System.

One participating WADA official (VP Ljungqvist) reminded the ExCom of a potential rational for the 'grey', with this observation:

To be declared non-compliant was probably a very serious decision with respect to those being declared non-compliant, not least for IFs, but certainly for NADOs, this meant that they were being deprived of some rights to be part of the Olympic Games, which was a serious consequence, as everybody could understand; therefore, he felt that it was necessary to follow up on the non-compliant organisations very carefully and within a short timeframe.

Professor Ljungkvist is correct: to be declared 'noncompliant' as a WADA Signatory, bears somewhat the same stigma as to be an Athlete declared 'positive': potential 'banishment' from Olympic Games, for one example.

WADA has much work ahead, to convince its Signatories and member States (UNESCO's International Convention Against Doping in Sport had 102 States–members, as of this ExCom 2008 report) to find the means to aid small–revenue IFs to comply with out–of–competition testing (a Ww suggestion (no charge!): 'partnering' a small IF to a worldwide IF could allow the smaller partner to be billed (with or without subsidies...) for services rendered?). Regarding dues collections or preventing the arrest of DCOs in certain countries such as Russia are political situations, which WADAwatch is loath to address. This late–2008 ExCom report also reveals that new staff has been added to WADA's offices in Lausanne, Switzerland (ExCom p.28), to aid with IF compliance, and this act should help to add momentum.

Evidently, according to this Report, WADA finally has an concept in the incubator, regarding Laboratory discipline (whether falling under 'compliance' or 'harmonization' is for readers' interpretation), years after WADA's Code was implemented, and more than a year after WADAwatch pointed out this gaping irregularity. Director General Howman offered this comment to the ExCom on that item:

... in relation to the disciplinary committee for laboratories mentioned at the September meeting. There had been a request for WADA to prepare the rules for such a body. The management had done that, and a paper had been tabled, detailing the process to be followed in relation to this specific committee. It was working pursuant to the ISL, and was not a matter requiring formal Executive Committee approval [.....] This was to deal with situations whereby accredited laboratories were not performing properly and were therefore subject to potential or partial suspension and, rather than leave this responsibility to the Laboratory Committee, which comprised experts, he felt that there should be a proper process. Secondly, he had wanted make sure that everything was established in a proper legal fashion.

The above text shows a welcome change from the current limbo status under the Code and ISL, where WADA Laboratories may perform below Agency standards, and yet remain free of consequences, due to the lacunae derived from the Code itself.

See the Code Article(s):

  • §6.4 for the strict liability on labs,
  • §§7.1—7.2 for ADO or IF review of LDP evidence to spot 'departures' prior to use of that evidence against Athletes,
  • §13.6 for Laboratory appeals (from heretofore 'mystic justice').

Or the ISL:

  • § Suspension of accreditation: listing many grounds, but not 'departure' from an LDP;
  • § Revocation of accreditation: listing many grounds, more egregious in deviations from professional comportment than the above.

Whether WADA can rein–in its apparent 'gaspillage' (“waste”) of legal funds that, perhaps, are one budgetary reason depriving it of the means to seek compliance by IFs, prior to harvesting yet another losing appeal from CAS (such as the Hamilton appeal? seeking a 'Lifetime banishment', when the Regulation clearly states 'Eight years to life'?), remains to be witnessed. The CAS, whose Panels appear to have rediscovered the rationale in Quigley, offers timely guidance, through its justified reopening of the Mannini and Possanzini case, and indications as to the actions that should be undertaken by WADA president Fahey. Somewhat like USA President Obama, Mr Fahey has been elected to ensure a steady ship emerges from a turbulent era; in Fahey's case, the pendulum had swung from Pound to Armstrong, from Pound to Landis... from noncompliance towards... tick–tock.

With the Mannini and Possanzini decision, one CAS Panel recalled that institution's obligation to address and present neutral and objective Awards, derived from the Regulations as they exist (against Athletes), when evidence conforms to the parameters of those Regulations, at the same time a strong subliminal message appears, urging 'compliance'. One hopes such a trend has longevity... and is heard.

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

Always a pleasure to revert to the Floyd Landis case. Perusing this same November 2008 WADA ExCom report, we came across two statements transcribed from the Committee's Chairman (Mr Fahey), regarding that period prior to the settlement of Landis' complaint in US Federal Court:

The Landis case was one that was still not complete, as Mr Landis had challenged the CAS decision in the federal court in California. He had been in dialogue with WADA’s lawyers in Washington and with USADA, and was confident that there would be an appropriate resolution of those proceedings within the coming days. He preferred not to report further, as the discussions were confidential, but he assured the members that this would lead to a resolution with which everybody was comfortable, and there would be no backing down from any principle or from the decision taken by the CAS. He did not need to ask for permission, but advised the members that he would continue to work to ensure that there was a resolution. It would not cost WADA a significant amount in terms of legal fees, and he was sure that the chairman of the Finance and Administration Committee would be relieved to hear that. (p.4)


... he did not think that WADA would spend as much on litigation the following year, and he sincerely hoped that the message that had been sent out loud and clear from the CAS in relation to Mr Landis would mean that athletes would understand that expensive attacks on the system, which was what Landis had done, would not be possible. The message was clear that the system was there and worked properly. (p.16)


Let the record show (it didn't in these ExCom minutes) that Mr Landis questioned (via his Federal Court case submission) the apparent and inherent 'conflicts of interest' that accumulate from the use of a 'small group of insiders' in a rather closed quasi–monopolistic legal system. The globally implemented sports–arbitration system was alleged, by Landis' attorneys, to allow a 'revolving door' perpetuation of legal officers acting as Arbitrators (thus Judge and Jury over Athletes) one week, in one arbitration, and switching hats the next week, to appear as Advocates (representing IFs or ADOs) in front of their fellow CAS–listed confrères (fellow Arbitrators).

SIDEBAR: One wonders how much longer the Court of Arbitration for Sport system – operating an arbitration roster with the “small group of” legal “insiders” – can be sustained, status quo, without constructive, radical change, such as the elimination of the 'revolving door' (as Ww described it here). If the associated attorneys were offered, through newly–implemented restrictions, a rational choice: one might choose to Arbitrate, or to Advocate, but no longer be entitled to earn a living doing both, great strides would be achieved that actually help Athletes when facing an imbalanced quasi–juridical system. Another option comes through offering greater disclosure of Arbitrators' past arbitration involvements to the Athletes whose cases are decided by what is now, in effect, a professional, legal 'fraternity'.

The ExCom Report also did not reveal what WADA considers 'not... a significant' amount for those 'Phase III' legal fees, since the accumulated fees (to Richard Young and others) attributed to USADA and WADA in their 'war' against Landis (via AAA and CAS hearings) were in the several millions of dollars (all for a simple case, as Young said in his opening statement in the Phase I hearing in California).

Pyrrhic victory?

How many WADA IF compliance reports could not be funded or prioritized, between 2006 and 2008, due to the multimillion dollar, tunnel–visionary focus by WADA, sustaining USADA's legal crusade, and the LNDD's level of evidentiary (in–)competence against Floyd Landis? One guesses that WADA's “chairman of the Finance and Administration Committee” may already be recovering from the near
ulcerous conditions he suffered, imposed by the previous WADA president, in the battle waged against Floyd, and finally concluded under Fahey. He is on record, in this ExCom Report, stating that the Landis case had a clear message for Athletes: that “the system... worked properly” – no one can disagree, although some observers' interpretations could be diametrically opposite the implied conclusion...

Unfortunately, Quigley reminds us again that the world anti–doping system that the Honourable John Fahey now runs was put together without respecting legal priorities:

... the rule-makers and the rule-appliers must
begin by being strict with themselves.

International Federation are rule-makers and the rule-appliers, yet their compliance has enjoyed a four–to–five year hiatus... and may finally be achieved in 2010 (WADAwatch is very mindful that its implementation is complex, and burdensome – especially on small IFs that must finance reams of paperwork (on TUEs) and scads of voyages (out–of–competition testing) to remain 'compliant'.

Laboratories are definitely the system's leading rule–appliers, along with IF and ADO Doping Control Officers (DCO), and national or Federation–based disciplinary organisms; however disciplinary procedures for labs were under consideration (at last(!)) in the second half of 2008, “...and would be put into place in the coming weeks” (ExCom p. 19). Our only question is – who requested this (?): “There had been a request for WADA to prepare the rules for such a body” (ibid). WADAwatch is one entity that requested such an action (in our submitted Intervention to the Madrid Conference, and in more than twenty WADAwatch articles), but no one is credited in the ExCom Report for this late initiative, which we resoundingly applaud.

And, six years after the WADC and ISL first created the Code and ISL—based strict liability on Laboratories, the situation is apparently no longer being ignored (or is being re–prioritized). With recurrent evidence of ISL violations (especially one WADA—accredited laboratory?) on the record, the day may soon come when all the Stakeholders are playing on that which WADA hopes to achieve: a level playing field.

And that is (Finally?) the
Black and White

one hundred percent pure

copyright 2009 Ww

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