Wednesday, 21 October 2009

Nettoyage Éthique / Ethic Cleansing, Part III

WADA Hot Lines...

[In Part I of this three-part post, WADAwatch analysed the newest Le Monde article regarding the escalating CWII (Cycling War II) declared by the AFLD against UCI. In Part II WADAwatch presented AFLD documentation regarding its efforts in the first half of 2009 (especially the Tour de France), to integrate that information with the Le Monde series of October 2009 articles; in this Part III Ww discusses whether WADA will take up an objective role in defraying this conflict.]

Last month, WADAwatch recalled WADA Code Article 13.5 (Appeals from Decisions under Part Three and Part Four of the Code), which provides an avenue for adjudication of non–compliance issues, etc., from its Signatory Agencies, ADOs or others (IFs?). We now remind our readers of the final clause in that Article, regarding appeals by Signatories found to be non–complying:

“... [they] shall have the right to appeal exclusively to CAS in accordance with the provisions applicable before such court.

In the last month, more than enough 'evidence' has been offered for an objective organization, such as one expects of the World Anti–Doping Agency, to initiate an investigation regarding cycling. If comfortably satisfied (the legal threshold that prevails in WADA world), WADA must either discipline the UCI, or Plucky Pierre (aka 'Pierre et le Loup') Bordry (of the AFLD), if his charges against the UCI were inaccurate. His 'UCI Report' presented accusations against the UCI, which were viewed by the French newspaper Le Monde reporter Stéphane Mandard, and published, while the official 'UCI Report' was in still transit (or only just received at) to UCI and WADA headquarters.

Yet if WADA found otherwise, that there were no substantive bases for such an inquest against its Signatory UCI, it could find itself running an inquisition regarding the rogue AFLD French Agency. Given the decision made by AFLD to go public with the above–mentioned UCI Report, prior to official submission to UCI or WADA, and given its long history (at least since 2005) of subverting 'international cooperation' to the interests of the French cycling aristocracy – ASO and the French Cycling Federation, WADA may have to undertake its first 'Signatory compliance procedure', with the anticipated result being some form of 'chastisement' against that French governmental agency.

Hypothetically, either AFLD has presented bona fide 'evidence' of a certain nonchalance by the UCI, vis–à–vis the cycling team Astana and its leaders Armstrong and Contador, amongst others, and thus WADA has a case (as Bordry promotes) against UCI, or the UCI (and WADA?) has a case (at last?) against AFLD for a (another?) violation of its Code–derived duties.

Did AFLD take into account the 'media circus' surrounding the Lance v Alberto sideshow drama, highly promoted throughout the French media, which promoted the evident discord between the two riders, making Astana's peaceful attention to its duties somewhat complex? Perhaps a finely–discerned line was maintained by UCI, displaying a savoir–faire that passed unperceived by the AFLD doctors 'stalking' the UCI anti–doping teams? Did the AFLD report remind WADA and the UCI of the discrimination clearly promised to Lance, by Madame la Ministre Rosalyne Bachelot? Recall that she promised, in her showboating pre–Tour welcoming invitation to Lance, that he would be 'particularly, particularly, particularly' surveyed? Perhaps she should have included 'the UCI'?

Objective analysis might suggest a reticence on the part of WADA to support a Signatory who, by clear evidence, has at least violated a discretionary role for WADA, to pursue an investigation of the AFLD's charges against UCI. What might have been, had AFLD not initiated the affair through another 'à la Lance' insinuendo–crescendo to prominent French daily papers, and so the world, however, no longer exists as an available option. Two French teams were recently refused ProTour License renewals (BBox Bouygues, and Cofidis), and not a few cycling aficionados believe Pierre Bordry's 'official Report' is no more than a smokescreen, for a renewed French 2010 agenda of independence from the UCI for their Tour de France.

Merci encore, M. Bordry...

However, should WADA undertake any 'compliance discipline' against the ADO of a State Party to the UNESCO Convention, some complications lay in its path, that WADA may not have foreseen. Some 102 or more Governments (as of late 2008) are Parties, by signature of the UNESCO International Convention Against Doping in Sport ('ICDS'), which promotes WADA in its mission, and provides legal standing for governments to support WADA, as an essentially private, international Foundation.

ICDS Section II (Anti–doping activities at the national level) Article 12.1–3, and Section III (International Cooperation) Article 13, place as primary components 'cooperation' and 'facilitating', in delineating the State Party mandates. Other Articles mandate support by State Parties to support the Code (as revisited below). WADAwatch is of the opinion that the WADC Article 13.5 wording, mentioned above, is hardly enforceable against a State organ such as AFLD (especially a French Agency...).

WADC Article 13.5 restricts a Government Agency, under the national authority of its government and facing some 'investigation' by WADA for its 'unethical', 'uncooperative' or 'incompetent' acts, when facing undefined 'disciplinary measures' by such a foreign, private institution, to utilize the services of the Court of Arbitration for Sport (CAS) in 'case of appeal'. Should WADA ever accuse a 'State Agent' of improprieties or non–compliance, rare are the occasions when the Government of that State would permit 'justice' to be rendered against that State's ADO or other Signatory, through a roster of private international (and respected) attorneys (aka 'a small group of insiders').

While there is no wording in the ICDS that mandates States Parties to enforce disciplinary actions in the WADC, which are limited (and 'undefined' as to formal proceedings) towards use of the CAS for appeals, Section I, Article 4 of the ICDS offers this:

1. In order to coordinate the implementation, at the national and international levels, of the fight against doping in sport, States Parties commit themselves to the principles of the Code as the basis for the measures provided for in Article 5 of this Convention.

We are not aware of a Government that would prefer (or submit... or authorize?) to arbitrate international disciplinary situations involving its own Agencies, by a trio of private attorneys in a system that provides no appeal of those decisions. Nor would it, while assuring its support of the Code, be averse to stating that they would continue to 'commit themselves to [its] principles' without agreeing to submit their Agency to private international arbitration. Offered hypothetically, a commentary from WADA's Legal Office (the 'Code development Division' or Committee):

“Oops, we didn't think of that... hmmm”

There are (at least) two strong arbitral bodies dealing with State v State issues that come to mind: the WTO Trade Dispute system, and the International Tribunal for the Law of the Sea. We do not suggest that 'UCI v AFLD' would be a State v State question of International Law, but it certainly possesses a different weight than do the more common (sadly) disputes centered on Athletes' AAFs, their IFs, and the ADOs that inculpate them through doping controls.

Thus WADAwatch suggests that a void exists between the UNESCO ICDS and the WADA Code, lacking definite language framing a prosecution for discipline or an 'enforcement' action against any entity other than individual Athletes (or Teams, or Support staff). Perhaps this creates further grounds to assert that the implementation of the WADA Code serves only a portion of its true needs. The word 'lacunae' rears its head again; an unavoidable word when dealing with WADA's controlling documents. Rules that don't exist in writing cannot be 'objectively clear' and 'predictable', as the Quigley Rule suggested fifteen years ago.

If WADA perceives a case either way, investigating UCI or the AFLD, the applicable WADA Code Articles are:

  • 20.3 Roles and Responsibilities of International Federations;

  • 20.5 Roles and Responsibilities of National Anti–Doping Organizations;

  • 20.7 Roles and Responsibilities of WADA.

Article 20.5.2, under which AFLD holds its status in the WADA family, states inter alia:


To cooperate with other national organizations and agencies and [sic] other Anti–Doping Organizations.

SIDEBAR: Were Dick Pound still reigning at (or holding the wagon reins of) WADA today, he would inevitably (we presume) be telling someone that 'there's no violation in the Code, so your insinuations are baseless' (paraphrasing his scathing response to ASOIF and the IOC Athletes Commission letter in 2005, regarding their legitimate concerns over use of Lance Armstrong's B Samples as research, then attributed against the person for disciplinary measures), and he could be right. But that would be a shallow response to a deep question, and an international situation, for which WADA was granted and ordained to be the institution that foresaw, promulgated and implemented a valid Code, in detail, that responded to such concerns.

Remember, doping was a propaganda war only a generation ago: there's no reason not to prepare for the day when a State's ADO allegedly shows bias through activities undertaken in the name of the 'fight against doping' that project towards foreigners.

Cautiously, would we counsel WADA to find the means to implement Signatory Discipline, in line with the underway plan for Laboratory Discipline.

Unfortunately, at the present, we repeat that uncertainty exists, as to how or through which disciplinary mechanism WADA could investigate either the UCI or AFLD, or both. Perhaps Dick Pound never envisaged this, as he pushed for WADA to become a powerhouse enterprise, with mock concern for a just system; perhaps he thought it was something one should (or could) handle diplomatically; far from evidentiary hearings, transcripts and 'the world'.

The Honourable John Fahey seems to prefer 'Black and White' clarity; we hope his influence remains objective, in the face of these French renegades. This author personally requested a reply to a similar question at the February 2008 WADA Press Seminar, so the Agency is on notice that the issue hasn't gone away.

Without clarity as to which Code Article either Organization would/could be judged 'non–compliant' due to 'irregular Signatory behaviour', how is such a decision to be taken? If a WADA 'committee' found one of these two parties 'guilty as charged', how would that decision result in an appeal to CAS? It is easier to foresee UCI being obligated to render itself to CAS if it chose to appeal some 'decision' by some 'body' within WADA. As to AFLD, one presumes that the AFLD would not submit itself to such private arbitration.

In the case of the French AFLD, and its 'très supportif' Ministry of Health, Sport and Youth, these entities that advised investigator Vrijman (in l'Affaire Armstrong, 2005-6) not to expect further administrative cooperation, as he was an 'opposing party' (when no litigation was en route; that deflection of responsibilities under judicial cover appeared to be falsely–based, a self–serving premise) to whom the only recourse would be under proper French judicial authority. Is this a case of 'what's good for the goose is good for the gander'? WADAwatch sees the signs of discordance, and merely wonders if others are waiting to see how this legal 'dance' plays out.

The AFLD stated, in response to the UCI announcement of earlier this month, that it was not interested in further collaborations with the UCI. The UCI had proclaimed two weeks earlier, that it would explore performance of Tour de France testing through another party than AFLD. These announcements presage CW II: a re–opening of the 'War' between France's government Agency and Ministry, against the UCI, as we wrote in Parts One and Two of this series. Will the UCI commission Swiss, Belgian or Canadian lab(s) to undertake TdF 2010 laboratory analyses?

Or might the UCI 'lose' its re–integrated role as IF–in–charge of the Tour de France? Remember, this event went 'renegade' in 2008 for the first time in modern times, the first time since UCI was the Federation charged with the sporting regulation of the race. It could happen again, whether or not the UCI is found to have performed as insinuated by Bordry in his Report.

In 2008, French entities unilaterally withdrew the TdF away from UCI supervision. Was the temporary reconciliation for the 2009 TdF only a vehicle that served to offer Plucky Pierre sufficient time to 'accumulate stronger evidence'? We know what 'evidence' means, at least as to France's conception of the Beauty of Science. Has AFLD offered its 'Report' to the press as a fait accompli, prior to an official submission to a co–Signatory and the parent Organization WADA, simply to justify unilateral action (whether or not WADA acts, this could happen!). How will WADA react, knowing that it should have had full access to an official Report, prior to reading about this in the press?

Laboratories are (it is now evidently clear) not the only 'entities' for which WADA CODE document–development Committee(s) have omitted definitive administrative rules – clear, precise, predictable and thus Quigley–compliant – under which a Sporting world can cooperate, to produce the work in the field for which they are engaged. WADA finally is verging on implementation of Laboratory disciplinary process regulations, in the Tenth Anniversary year of WADA's inauguration. Soon it will be six years since the first version of the Code was written (implemented 1 January 2004); yet it is doubtful that, by the opening of the Winter Olympics at Vancouver, a complete legal family of WADA–derived disciplinary systems will be in place: one could hope such were finalized before London 2012?

Another objective question:

Is Pierre Bordry the only person capable of
directing the AFLD?

One wonders who supports his egregious actions in the French hierarchy that supervises him? Between Pierre Bordry, Ministre Rosalyne Bachelot, Rama Yade (Secretary of State for Sport), Jean–François Lamour (ex–VP of WADA) and Dr Olivier Rabin (the Science Director for WADA), one has to imagine to what length, and end, their telephone lines were burning up this month.

NB: even if he is correct in substance, Bordry seems very culpable for undertaking the procedure he chose, via Le Monde, against the UCI.

France, whose two (of four) ProTour cycling teams were denied UCI license renewals two or three weeks ago, may be bringing out its big guns in retaliation. Police actions in July, of which not one word had been announced in timely, official 'police' fashion (WADAwatch remembers the swift 'justice' offered in prior hotel dustbin investigations from Tours in 1998 through today), are only now confirmed, precisely after two French teams: Cofidis and BBox Bouygues, found themselves relegated to national–level status. The AFLD Report, itself, in development since at least the end of this year's Tour, surfaced within days of that UCI announcement. When might the world have known of this Report, had the UCI not announced a reshuffling of ProTour licenses this month?

The timing: suspicious; the manner of publicizing it: illegitimate?

The hard work accomplished in late 2008, that brought reconciliation between WADA, UCI, ASO: is that all for naught? Is Bordry's report a defiant act against all the world, or with full support from his superiors (reminding readers again, of the French government decree that put a Ministry 'overseer' into the AFLD, earlier this year)?

Last reminder: when John Fahey was nominated, the 'loser' in that affair was French national Jean-François Lamour, who'd been Vice President of WADA under Dick Pound. He exited the scene, with some hasty words that said, in effect: “WADA is obviously going in the wrong direction; we may have to create another 'WADA' for the European region.” One can only ponder whether, via the Tour de France, some portion of that conceived disruption has any substantive basis?

Hopefully this isn't another 'oh Jesus!' moment for the Honourable John Fahey...?

Consequences for UCI, if found 'complacent'? One might think the UCI has suffered enough from the AFLD and its laboratoire.

Consequences for AFLD, if found 'defamatory' towards a fellow WADA Signatory? When might their Signatory cup runneth over?

Will WADA undertake the publicly transparent, necessary course of action, in the hopes that one of these two 'in the headlines' Signatories will...


one hundred percent pure

copyright 2009 Ww

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