Tuesday, 4 August 2009

WADA waste... WADA lost cause

WADAwatch notice of errata and additions:

[in the post below, changes have been effected to rectify one major error: the 'presumption' on our part that WADA had not yet begun a significant process of 'Compliance accountability' (see the later paragraphs: one could use 'find' command)... additional text has been added in the color of this notice; we seek readers' indulgence, and apologize to our audience, for this hastily-concluded and published post. We will follow up with a separate post, on any published information from WADA regarding such 'compliance'. NB: some text should show a strikethrough and it may or not be published as such: this is a 'TEST']

Once upon a time... There were the world's international sport regulating bodies, members of the Olympic Movement family and beyond, comfortably guided by the body of legal rulings generated from the objective and neutral Court of Arbitration for Sport (CAS).

Years before the World Anti—Doping Agency (WADA) was created and drafted its Code for implementation, one important ruling from CAS guided the Federations regarding rule—making. It offered exemplary eloquence, similar to an Abraham Lincoln speech. That ruling established a clear and clairvoyant principle regarding the promulgation and implementation of sport—oriented regulations that would reverberate across the developing body of legal practice regarding International Federations (the “IFs”), their medical or anti—doping regulations, and the amateur or professional careers of Athletes whose lives were controlled thereunder.

The decision came out of the case USA Shooting and Quigley v. UIT (May 23, 1995 (CAS 94/129), and established a linear equation regarding administrative law—based rules, which had theretofore been 'accreted' into bodies of haphazardly developed regulations: what was 'SOP' in one Federation's anti—doping Rules could have been 'under rare exception' in another's. The articulate words that make up the often—cited 'Quigley Rule' have been reproduced by WADAwatch many times:

The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorized 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 of a small group of insiders.

(CAS 94/129, USA Shooting & Q./International Shooting Union (UIT), award of 23 May 1995, CAS Digest I, pp.197-198)

The legal question at the root of the 'Quigley' case was:

Whether (or not) a definition of 'doping' as promulgated in the UIT Anti—Doping Regulations conferred a legal standard of 'Strict Liability' for Athletes controlled under those Regulations.

One author (Emile Vrijman of the Netherlands) reminded the world about Quigley – when examining whether Lance Armstrong's leftover 1999 Tour de France samples could be reclassified five years later, from 'research material' to potential evidence of an Adverse Analytical Finding (AAF). Remembering that the French laboratoire had 'performed research' on these body fluid samples, declared 'evidence of EPO' existed in them, and then such information was published in Amaury Editions' publication L'Equipe, singularly naming Lance and none of the other riders, who very well could have included some French riders; over 30 of the 189 starting riders came from the host country. Armstrong's “B Samples” -- and those of the other Tour riders – were retained for five years, after the corresponding A Samples were declared 'negative' (no violation) under then—current state—of—the—art testing.

Declaring these an AAF was the demanded action—plan pushed upon UCI through repeated WADA communications from its then—president Dick Pound, exacerbated by his prejudicial public assertions that echoed instantly across the planetary sporting press, and further reinforced by other noted cycling personalities such as Jean—Marie Leblanc (who was the Tour Director during that epoch).

In his Quigley analysis, Vrijman reminded his audience how its linear, eloquent phrases revealed that, while the CAS Panel in that case had emphasized “its sympathy for the principle of strict liability” still it could not in good legal conscience allow that sympathy to affect its ruling: “... to create such a rule where it did not exist.” Regulations that are promulgated and expressed in writing must mean what they say: some advocates, however, prefer to think that rules may 'mean something implicit', not explicit, and thus seek 'judicial interpretation(s)' ad infinitum. As to Armstrong, and the EPO 'scandal', Mr Vrijman was emphatically clear on two points: calling Armstrong's B Samples 'positive' through research at LNDD, denied the universal application of the Helsinki Convention (on anonymity of 'research samples' to advance medical science), and denied the WADA Code's continuation of a long—time A/B Sample standard (by 'shifting' Armstrong's 'B Sample' into 'A Sample' status via 'research', there was no protection of the Athlete's right to a confirmation through a 'second identical portion').

When the Landis case was decided, at the first USADA/AAA hearing, various legal scholars and authors were left weakly presumptuous that CAS Panellists would recall Quigley in their ruling at the appeal; that presumption failed.

Unknown is the 'why?' factor: perhaps that was due to 'political pressure', or exceptionally murky circumstances outside the confining circle of admissible evidence. One point we've raised previously, was the remarkable, coincidental circumstance of having Landis' first AAA Panel presided by the appointed Arbitration panellist, who happened to be from Montreal (as was Dick Pound himself, also site of WADA's operational HQ), and having Landis' second AAA/CAS Panel presided by an experienced Australian arbitrator, while the Honourable John Fahey entered his first year as WADA president, is also an Australian...

Two WADA presidents: two countries;
Two arbitration Panel presidents: same countries.


Several previous WADAwatch comments bear repeating, regarding the Awards against Floyd, which legally supported the insufficient Laboratory adherence (In Ww' opinion) to national and international regulatory standards. The first citation recalls our view of the Landis case's long—term applicability:

Sadly, Landis as a 'CAS case' is probably going to be relegated somewhere (in the sense of never becoming a precedent–setting' citation) near the Bush v Gore 2000 US Supreme Court Decision. Like Bush v Gore, Landis uniquely addressed one man's case by creating a rupture with a long line of cases decided on Quigley's clear logic. This Landis Decision itself favours judicial interpretation, falling in total opposition to Landaluce, whose Panel recently reminded WADA that CAS could only interpret rules literally and clearly.

WADAwatch compared Landaluce and Landis (read more by scrolling through WADA ... Dear John letter :

Landaluce won because CAS said “clear rules must be followed clearly: change them if they're not producing the anticipated results...”. That Decision never drew attention to the new CAS legal standard: the 'Concepts of rules' (below).

Landis lost, because a different CAS Panel said “
rules designed to produce clear evidence may be legally acceptable if at least the concepts behind them are evident in that evidence...”.

We drew upon another blog—author's commentary for those thoughts, and supported it; the author of Rant Your Head Off, analysed the newly—promoted CAS Landis Appellate Panellists' idea of the 'concepts of rules', which Ww synthesized as follows:

[.....] CAS ruled that certain aspects of the ISL evidence did not necessarily require being followed verbatim, as long as the 'concept' is 'followed' in at least SNAFU–ish competence, or better than Honest inadequacy; another concession by CAS that helps enable a sense of having accepted for publication a new book: 'WADA Lab Rules for Dummies'.

Then, in admittedly more sarcastic (or cynical) terms:

However, the Majority of this seemingly–unanimous Panel apparently never met a WADA witness of whom it didn't approve, or whose offered testimonies weren't comfortably satisfactory and thus sustained. And that is very very troubling.

Landis could have saved a strong part of a million dollars or more, if someone had simply told him: “forget it man: your witnesses won't have any persuasive value, because only WADA people know WADA science and WADA Code/ISL Articles and WADA doping control analysis... they know absolutely more than anyone you could ever call as witness. We trust only THEM. Period.”

And, because cynicism breeds dark impressions, we wrapped up by stating:

Spending over five million to defend its system: the CODE, its ISL and a Signatory Laboratoire, the case WADA–USADA brought and funded against Floyd Landis, showed incompetence, arrogance, and SNAFU evidence. In the eyes of highly–reputed and well–trained, non–Richard Young legal opinions, these LNDD problems ranged from Untrustworthy to Sloppy to Honestly inadequate to Minor procedural errors.

A better judge, perhaps, would have made all but the last a 'legal threshold' for throwing out the 'charges', or acquitting the 'suspect'.
[ Ww: emphasis added, for this post]

The emphasized words above came from the ensemble of six different Lawyers who sat on the two legitimate Landis Panels, either individually, or as members signing the official Award(s)). They offered these uncomplimentary qualifying adjectives to describe the work ethic or deliverables presented to the Panels by the French laboratory (the 'LNDD' or 'département des analyses') via the USADA prosecutors, regarding LNDD's less—than—stellar performance(s).

Untrustworthy”: from US attorney Christopher Campbell, who dissented from the USADA/AAA Majority Award, and recounted several of the ISL or Code regulations of which, in his professional opinion, the LNDD had failed to adhere to their literal implementations.

Sloppy”: the AAA assessment, in the Majority Award to which Campbell dissented, which came accompanied with the breathtaking thought that, if LNDD ever offered evidence this sloppy again, those very attorneys could envisage siding with the Athlete, in a hypothetically—similar future situation. But apparently such beneficence was not due Landis.

Honestly inadequate” or “Minor procedural errors” were the damn—near 'whitewashing' excuses offered (and never defined or given with thresholds of diligence) in defense of the LNDD, by the CAS Appellate Panel.

Elsewhere here at WADAwatch, we made a conclusion referencing “CAS”, which we now admit (and apologize herewith to CAS) would have better articulated its point if restricted towards the actual CAS Panel that decided Landis' appeal. We wrote:

... paragraph 259 [of the Landis Appellate Decision] 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.

WADAwatch has recalled all of these citations for one express purpose.

We were thrilled, recently, and are content to report that another CAS Panel has revived the Quigley Rule, as to the facts in WADA v. CONI, FIGC, Mannini & Possanzini, which it decided with a Award published on 27 July 2009. That Award seems to confirm our stated belief (cited above) that the Landis case is: “... probably going to be relegated somewhere (in the sense of never becoming a precedent–setting' citation) near the Bush v Gore 2000 US Supreme Court Decision.”.

Before analysing this recent case (CAS 2008/A/1557: WADA v. CONI, FIGC, Mannini & Possanzini), there is an aspect to it, which leaves us perplexed.

This Award reveals a precedent or power that we were not aware CAS appellants could acquire; WADA v. CONI, FIGC, Mannini & Possanzini, as published, and discussed here, is a 're—opened' CAS Arbitration, based on 'new evidence' that readers can assess, by following the link above. The two legal bases required, evidently, to do this were 'new evidence' that was accepted as such, and 'mutual agreement' by the parties (WADA's position was taken from its correspondence, as being willing to 'abide by such a decision' if the Panel judged this action necessary).

In light of the 'evidence' offered by Floyd Landis in his US Federal Court suit, seeking to overturn the CAS/AAA Appellate Award under the Federal Arbitration Act, his basis was founded on claimed undisclosed conflicts—of—interest. That Federal case was 'withdrawn' (to the mutual satisfaction of both parties); it seems that such the 'new evidence procedure' used by CONI, FIGC, Mannini and Possanzini may also have benefited the Landis legal team.

The substance of this recent case offers surface parallels to another other Italian soccer/football case that we discussed earlier this year, that of itself displayed seeming parallels to the Armstrong—AFLD 'situation' that arose in March, 2009. In the Cherubin case, as in this FIGC/Mannini & Possanzini, a pair of players from a team which lost its match were selected for anti—doping controls, and then one (Cherubin) was 'lost' to the sight of the Doping Control Officers (DCOs) who'd been assigned to handle their testing.

Apparent similarity to Cherubin can be extended to the misunderstandings displayed by Coaches, team Presidents, staff and the players, compounded by apparent complicity by the DCOs themselves, and a post—game verbal 'thrashing' by the team's upset coach, etc., etc.; all of course under Italian Federation regulations. Regulations that were drafted to reflect WADA's Code, and International Standard for Testing (IST).

Of course, the linchpin stems from WADA's desire to appeal; its 'open, self—approved invitation' to inflict maximum damage in minimalist cases, claiming that the actions of these two team members showed that they had “unduly refused to submit to urine sample collection on December 1, 2007” (the date of the disputed match and control), which in their legal opinion revealed a punishable violation of WADC Article 2.3.

The 'First Award' had ruled in favour of WADA and against the players and Italian soccer's legal system: the men were suspended for two years. The claim of new evidence by the losing Parties, for the analysis of which the First Award had not benefited, and the basis for reopening the Panel to produce this Final Award, also sought reliance on the legal foundations of the Cherubin Award. A short listing of the evidentiary items offered by the team of CONI, FIGC and the two players includes:

  • The two Italian DCOs had independently contacted FIGC after the First Award, citing by one that the tests “were carried out without any violation of the rules by the players” and the resulting delay (caused by the Coach/President of the club) was “clearly tolerated by” the DCOs, by the second that “must have been caused by a misunderstanding of the facts of the case, since a) the anti-doping officers expressed “certain tolerance … about test timing”, b) the Players during the team meeting “were visible in sight [sic] and were not doing any illegal anti-doping practices”;
  • The President of the Club (Brescia), who with the team's Coach had provided the lashing—down, informed CAS' Panellists that “the door of the Brescia locker room was open to allow players and staff, as well as other people on duty to enter”, and that he “had not testified in the previous proceedings because he was under suspension by the league at the time of the doping test and was thus not supposed to be in the locker room. He did not want to openly admit that he had acted in violation of the suspension order.”;
  • As to Italian Soccer's incorporation of the WADA Code (WADC) 2003, an important 'sense' was lost by changing Article 2.3 text from its English variant: 'compelling justification', into simply 'justification' in Italian;
  • Most importantly (we know now), the 'customary procedures and habits' in Italy had created a perception throughout the Italian Soccer 'family', that such post—competition testing were considered 'advance notice testing(s)', thus without a requirement for constant chaperoning – this practice was confirmed by offering the FIGC Anti—Doping Commission's Guidelines, produced by that Commission's fully independent membership comprised of players and clubs;
  • Lastly, as referred to above, the Cherubin Award of 18 March 2009 offered an analysis and Award on seemingly similar facts, which was diametrically opposite to the First Award (the First Award actually preceded Cherubin by two months).

Under the WADC of 2003 (or 2009), WADA holds nearly unlimited powers of appeal in anti—doping cases, and apparently relishes the sensation of this power to a greater degree than that which was suggested as healthy, by the sage words of Thomas Jefferson. In discussing the newly—created United States of America, Mr Jefferson wrote:

I hope our wisdom will grow with our power,
and teach us, that the less we use our power
the greater it will be.”

Yet it is best, sometimes, to let WADA's arguments be summarized by others. This CAS Panel wrote:

WADA argues that the re-opening of a case already closed by a CAS award should occur only in exceptional circumstances. In any case, a party to a CAS proceeding should not be allowed to re-open a case in order to file evidence, which such party “renounced to file” in the previous proceedings. In particular, it would be contrary to the principle of good faith for a party to “renounce to file” evidence in proceedings and wait for the outcome of such proceedings before filing allegedly "new" evidence and requesting a reconsideration of the case, if the award is adverse to such party.

Interestingly, the CAS Panel found reasons to disallow most of the offered 'new evidence' cited above: the 'DCO witnesses' could have been called or their potential testimonies should have been foreseen; linguistic discrepancies were not (and easily could have been) argued with some persuasiveness; and Cherubin was legally distinguishable from the present facts due to the fact that the Player Cherubin went to the zone for Controls, and then left [Ww: due to 'similarly confusing' administrations of Italian rules or habits], which actually is opposite of the facts in this CONI/FIGC—Mannini—Possanzini case.

However, the sole remaining basis was evidently strong enough for this unique CAS Panel to justify a reopening of the case. That basis was the 'practice' and/or 'custom' of the Italian soccer world. In the Award, paragraphs 5.8 to 5.16, the CAS Panel discusses with great rigour how Players were themselves unaware of the exacting standards that WADA demanded with 2003 Code Article 2.3. The pertinent extract is:

Because the gap in understanding between what was legally required of the Players in terms of duties and what they allegedly believed to be their rights and obligations in undergoing the doping control after the game only became apparent to them upon receipt of the First Award, the Panel finds that the Players cannot be deemed negligent for having failed to adduce fuller evidence on this point during the proceedings that preceded the First Award.

The Panel judged the reopening of this case on the structure of the 'Rules'
and the failure to upgrade and offer information to which Italian football players were bound. The Panel's understanding and adherence to Quigley allowed it to perform objectively, and rationally, towards a just Award. This merited the re-opening of the CAS Arbitration Panel, in Ww's opinion, although, again, we are unfamiliar with this capability of CAS.

It is now the absolutely proper time to ask WADA how it is progressing through its goal (and prioritization) of 'Compliance' as articulated in Article 23 of the 2003 and 2009 Code. In the 2003 Code, emphasis was on accelerating the acceptance of the Code, to have it accepted and in use before the Athens Olympics of 2004; Articles 23.4 and 23.5 concerned compliance. At the 2007 World Conference, after four years of the Code, the priority naturally shifted, towards enforcement and encouragement of proper promulgation and acceptance, as was iterated by Director General Howman in Madrid. The 'compliance Articles' expanded, becoming 23.3 ('Compliance...') 23.4 ('Monitoring Compliance...') and 23.5 ('Additional Consequences of a Signatory's Noncompliance...').

Specifically, Articles 23.4.2 through 23.4.5 create obligations on Signatories to report on a biennial basis (each two years) their compliance status, and enable WADA to discuss items found to be in non-compliance with the authoritative members of its 'family', and to determine the consequences for those items not in compliance, to the 'offending' Federation or Signatory.

It may be that, in such a situation as this facing Italy's soccer family, requiring a 'migration' of terms and practices to an updated norm, is a situation of 'non—compliance' that must be analysed by WADA. A
s indicated in the CAS Final Award (below), the period in question (from “around July 2005, when the new rules of CONI entered into force, until the beginning of 2008”) may have already permitted CONI to work with FIGC to achieve this 'migration'. But the greater question remains this:

Why does WADA seek constant 'judicial interpretation' of cases
involving the least powerful, and the 'shallowest pockets' of its
family of constituents – Athletes or Players –

... when the real problem lies elsewhere?

A healthy Organization (which our Conscience demands of WADA) should have been appealing, not to enforce a two—year banishment of these two players, but against its Signatories whose 'laggard' responses to the 'new cause' created this hardship against Senori Mannini i Possanzini (admittedly, the Signatory Parties undertook discussions to rectify them; th
ese may be 'already achieved or accelerated' as we read the news this week). No doubt the Italian Soccer Federation will be (or has) finalizing (-ed) new Guidelines, to inform the Players better of their legal consequences (if Mannini and Possanzini's exposure in the Italian press weren't sufficiently universal), when facing a DCO seeking Samples during a match, so as to offer WADA a clean 'WADC compliance report' sometime in the next half—year. We have greater doubts that WADA will undertake its own 'rectification' to remove the ambiguities cited by CAS, one example being a mere reference in the WADC to the appropriate IST Article (§ 5.4.1).

By reducing the apparent lust in WADA for having Athletes removed from their careers, and refocusing its organizational resolve, financial resources and responsibilities (as awarded to it variously from the IOC, world Governments, UNESCO and the UN), WADA could receive [its first] a fine series of 'compliance reports' (the period established under WADC Article 23.4.3), from which it can loudly proclaim before the Vancouver Olympics in early 2010, that its IFs and Laboratories, its Signatory States and Athletes, in more than a hundred countries and languages, are


As a conclusion, let us remind readers how this case revives and endorses the Quigley Rule, to the same degree that Landis Panel ignored that. Here are the relevant paragraphs:

6.16 Given the legal principles [Ed: Quigley citation] recalled above, the Panel considers that in this case the Players cannot be deemed responsible for their lack of knowledge and understanding of the nature of the anti-doping test and corresponding duties to which they were subject on 1 December 2007.

6.17 Article 2.3 of WADC and the corresponding CONI rule are generic in nature, in the sense that they simply define the anti-doping violation consisting of a failure to submit to sample collection. They do not define the different types of doping controls that exist for sample collection or the related procedural requirements for the testing. Those details are found in underlying anti-doping rules.

6.18 In this case, the definition of the nature of the doping-control test involved, of the corresponding procedural requirements and of the DCO’s, the chaperone’s and the Italian football players’ respective duties derives from a combination of various sections (“Libros”) of the Norme Sportive Anti-Doping of CONI and of the WADA International Standard for Testing, in a manner which is not easy to comprehend even for a lawyer.

6.19 Thus, even if they do not quite represent “a thicket of mutually qualifying or even contradictory rules”, the applicable doping-control procedure and the exact scope of the athletes’ duties 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. Otherwise, the Players would not “see the wood for the trees”.

6.20 In relation to the foregoing, the Panel finds that the declarations and testimony heard on 3 April 2009 establish beyond reasonable doubt that on the date of the doping control in December 2007 (i) the two Players had received no manner of education or materials and did not have ready access to any source of information that would have allowed them to understand in a synthetic manner the essential and imperative elements of the anti-doping controls they were subject to and what exact duties they must abide by, (ii) the practices among chaperones/DCOs were not entirely uniform with regard to important conditions such as the immediacy with which players must report to the control station and the strictness of requiring uninterrupted visual contact, (iii) from around 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, and (iv) although a certain level of collaboration from the selected players was expected, this was far from being seen and enforced as a duty the violation of which would incur a sanction of two years ineligibility. As a result and with doping controls conducted as often as every Sunday, many football players participating in Serie A and Serie B were bona fide convinced that immediate reporting to the doping control station and uninterrupted visual control by the chaperones were not – in the words of Mr Mannini – “essential”.


WADAwatch applauds the CAS arbitrators who demonstrated support for the Quigley Rule, and revived it by supporting its legal reasoning in such applications, where pertinent Regulations are clearly ambiguous (no pun intended), and the 'notice' given to Athletes (of potential consequences) is clearly inadequate.

We sincerely
hope that WADA finds within itself the means to endorse and promote worldwide compliance, as per WADC Article 23.3—23.5, with a portion of its adequate funds that are now devoted towards seemingly unending appeal–litigation of Athletes (to 'define the undefinable' portions of the WADC), who've 'benefited' from lenient, short—duration national suspensions. It would be sad to see WADA straining itself to, as it did for Floyd or Lance, trumpeting 'non-compliant' Signatories post facto to the world's media, instead of helping their proactive 'migration' to properly promulgated regulations and practice.

WADA's [first series of] two—year compliance reports (naturally undefined as to submission dates (nor 'Commented') in 2009 WADC Article 23.4.2) [should be coming to harvest soon], should be made public, if they are not already [theoretically], and one now enjoys some reassurance that that portion of CONI's report dedicated to soccer will be exemplary. Whether WADA's web site will be utilized to publish the Signatories' or Federations' declarations on 'Compliance' is also unknown.

Surely WADA could find someone with a sense of neutrality in promulgating International Regulations: for the price of two arbitration appeals (but then: what are a few good legal fees amongst a small group of friends really worth?) against three Italian Football players, which WADA has now lost, it could have, perhaps, performed a greater good by focusing resources towards engaging consultants or staff to promote actively Federation compliance under its member Signatories, such as are CONI and the Italian football Federation(s).

one hundred percent pure

copyright 2009 Ww

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