Sportsmanship... a well–respected and rewarded characteristic since oases were shared, and WADA communicates 'playing fair' in its Fundamental Rationale; but where is its good sciencemanship? Remember Christopher Campbell's Dissent to the Landis AAA hearing Award?
“Whoever is dishonest with very little will also be dishonest with much. . . So if you have not been trustworthy in handling worldly wealth, who will trust you with true riches ...” (Luke 16:10)
[CORRECTIONS v.2: Below, the original text implied that the link into the COFRAC audit of the AFLD département des analyses, would show the 2006 audit (as it once did) document. The link is LIVE, but the report you'll find is from this year: 2009. Based on a nice email, I have updated my brief 'bio' on Mr Blackledge; my apologies for haste and creating confusion]
[CORRECTIONS v.2.009: Due to one very diligent reader, and long-time science guru for the Landis case, I've been reminded to not use the argument that Landis was 'convicted' based on the 'one of 32 metabolites' argument. Ww stands corrected; proper protocol for ISL analyses under 2006 WADA/UCI/AFLD Rules, called for the T/E test *alone*; only if it was positive (Floyd's was 11.4, apparently after an initial 'finding' of 4.7) would follow-up IRMS studies be undertaken. Thus Floyd's conviction was on the one of eight T/E tests: the seven A Samples that were 'negative' normally would never see a lab-rat's face again... unless the AAA Panelists accepted the use of those seven B Samples as 'further evidence'; and that led to mystery 'non-AAF positives.
So the resulting 'bad arguments now port this color... Ww]
Larry Bowers of the United States Anti–Doping Agency blasted a scientific article concerning the Floyd Landis case evidence, in the journal Clina Chima Acta (“CCA”). Ww received the two articles thanks to a diligent correspondent. We offer a limited analysis of this scientific brouhaha, while dancing around the science itself. He has the weight of two USADA/WADA/AAA/CAS anti–Landis decisions behind him; but does that equate with justice?
Bowers responded to Robert Blackledge's Bad Science: The instrumental data in the Floyd Landis case, with his own Advocacy versus impartial scientific review: A problem for science and the courts, both of which appeared on the CCA website last May. Blackledge holds a MS and was Senior Chemist at the real–world NCIS Regional laboratory in San Diego; Dr Bowers works for USADA. Ww certainly cannot analyze their scientific assessments; yet there are other issues in play. That someone from USADA argues for impartiality in the manner Bowers wrote, is astonishing. That they do so regarding the Landis case is more startling, since Landis was 'doomed' only hours after his A Sample result was first released by the UCI. Within hours, WADA president Dick Pound nailed the coffin, showing the world his idea of impartiality:
“with the levels of Testosterone they found in him, I'm surprised there are any virgins within 100 miles...
(paraphrased: WADA is not USADA, that's true... but they are 'the system')
Implications from Bowers and Blackledge's titles ferment fond memories. Bowers implies to a scientific audience that the 'other guys' distorted the disciplinary process and infers that USADA and its attorney(s) fought clean. He doesn't maintain the high road in this article, however. Ww addresses several of Bowers' complaints, ignores his disrespect of Blackledge, and may surprise our readers with a conclusion offering an optimistic twist. That comes from a very recently decided CAS arbitration case, the format of which substantially alters the situation that created the Blackledge–Bowers blow–up.
Preliminary comment: Ww thinks of Floyd's case as an analogy to 'climate change'... Meaning that a majority of the world's scientists within one area of expertise, have looked at the amassed evidence and see travesties of justice, yet there's one minority group arguing vehemently against the tide: in anti–doping, that group is Team Omerta, the 'our mission is busting athletes' association.
Bowers' impartiality fails outside of the science. No reminding his audience that Floyd's interminable case nearly went to Federal Court for a claim of US Arbitration Act violations, pertinent to Bowers' attempt to boost the 'honour' of the Arbitrators. Landis argued blatant conflicts of interest deprived him of a fair hearing, with very persuasive arguments: his legal brief gave a true lesson in the US Arbitration Act and the effect from the 'revolving door' of CAS Arbitrators. Bowers also argues against the only rational explanation for the duration and expense of the case: the Science was not... Beautiful. Bowers caches ambiguity problems in the WADC, and how his Agency should have (under WADC Art. 7.1 & 7.2) informed WADA regarding multiple severe departures in the LNDD dossier. Those sub–Articles ostensibly protect the rights of someone in Landis' position against bad science. Bowers doesn't discuss that which is (affectionately) called the WADA Omerta: the ban on WADA labs' staff from testifying on behalf of Athletes, against other WADA labs competence. But the science? That should be impartial, n'est–ce pas?
An early complaint from Bowers slams Blackledge for relying on “only the opinions of Landis' experts, ...” which Bowers perceived from Blackledge's acknowledgement section. Bowers ignores Blackledge's statement early in his article, which qualified much of the AAA hearing 'evidence' as inadmissible hearsay; Blackledge clearly relied on evidence from the actual hearings, that was sustainable: “instrumental data and instrument conditions supported by actual LNDD printouts”. Bowers then cherry–picked a ripe quotation from the Landis CAS Panel decision, revealing the basis for his article: partisan expertise. The CAS Panel quote is para. 261, followed by Bowers' comment (the Respondent being USADA, financed by WADA; Landis is the Appellant):
261. The Panel also finds much force in Respondent's contention that “Appellant's experts crossed the line, acting for the most part like advocates for Appellant's cause and not as scientists objectively assisting the Panel in the search for the truth.”
For those who are not experienced in providing expert testimony, this is as stern a rebuke from the bench as one is likely to encounter. The 3 jurists who heard Landis' appeal of his initial American Arbitration Association (AAA) conviction to CAS are extremely well respected international arbitrators who also hear cases outside of sport.1 (Bowers, p.1)
Bowers omits that USADA enjoyed the benefits from the aforementioned 'appearances' of conflict of interest (aka 'COI'), which emanated from those four 'well respected international arbitrators' whom he so admires (the CAS Panel Three, and their friend and colleague, USADA–hired gun Richard Young). Blackledge and his sources happened to be from outside WADA–world: have we read any defense of the WADA–USADA victory that was not from within WADA–world? Bowers certainly does not show how USADA 'expert witnesses' were any less partisan for their own cause; well, he did (once), about Brenna's purchase of two columns to test prior to the CAS hearing. Nor does he mention or justify the Omerta.
Mini–SIDEBAR: Explain Conflicts of Interest? Someone walks into divorce court, and finds his soon–to–be–ex–wife's attorney is the Judge's niece (and husband will be paying her fees after the Decision is announced): should the Judge a) hear this case, b) award his niece's request for a higher than reasonably anticipated fee? Or 'recuse' himself because it's a blatant COI? The husband's attorney should have caught that COI and requested the Judge's recusal (withdrawal in the interests of Justice) long before the hearing date...
Bowers swerves around the fact that lead USADA attorney Richard Young also crossed the line (is love blind?), although his friends on the CAS Panel didn't rebuke him severely, for improper presentation of the legal issues (lightly rebuked with nearly the first question), improper admission of evidence in his closing statement (Issue of 'costs' never argued, until Young slipped it in his post–hearing brief; yet the Panel awarded $100K against Landis; in apparent violation of CAS rules on costs), improper testimony by Young, whose quote, concerning non–chronological entries in LNDD evidence regarding mandated chronological forms (“I certainly wouldn't jump from that to the conclusion that the last entry was a fraud.“), framed the basis for that section of the CAS Award.
Bowers writes: 'this is as stern a rebuke...', yet Ww likes to recall the admonishment by Christopher Campbell, against LNDD in the opening paragraph of his Dissent: “From the beginning, the ... (LNDD) has not been trustworthy.” Different spokes for different folks: 'Being an advocate' or 'not trustworthy': which label would readers prefer? When endorsing impartiality one should refrain from arguing via the opposite.
Another extract from Bowers:
It should be pointed out that GC-C-IRMS was within the scope of LNDD's ISO/IEC 17025 accreditation and that an external GC/C/IRMS expert had assessed their procedure only months before the Landis sample was analyzed. According to the International Laboratory Accreditation Cooperation, accreditation is “a formal recognition that an organization is competent to perform certain specified tasks.”  The LNDD staff has also published GC-C-IRMS articles in the peer-reviewed literature [7–10]. (p.2)
Bowers extends a common presumption without basis in fact. Accreditation doesn't guarantee flaw–free work efforts: that's what case documentation reveals. Accreditations serve to confirm that a lab is capable of properly implemented work, if performed as the auditor witnessed and approved. What about the COFRAC French agency's audit, anyway? They made an error (the famous EC-31 method“20pc or 0.8mil”) in May, took seven months to determine the error existed, and issued a retroactive revision (which neatly solved an ugly problem) on 1 December 2006. Was its review of LNDD scientific procedures actually thorough, competent, and well–documented? The record shows that the COFRAC audit report on which Bowers leans, shows rarely more than minimalist, pro–forma confirmations: maybe Bowers never read it? C'est la vie... See the WADAwatch post Post script on Landis: LNDD off the map? (link in text to the actual COFRAC document; confirmed today). Another point could be slimmer: might events at LNDD, between the audit and the Tour–testing period, affected their analyses (the 'Mickey ears' situation? Do COFRAC audits authorize recommencing a run twenty times or manual peak integrations?)? Slimmer still: who audits the auditors?
Another impartial Bowers statement:
Mr. Blackledge demonstrates his lack of understanding of the fundamental concepts of quality control by asking why... 'its OK to screw up 1 of 4 measured values for a blank sample…' when 1 positive result in an athlete's sample is a doping violation. (p. 2)
Bowers does not confide that he took that phrase, tortured its context and modified it. Let's first read the entire Blackledge sentence:
In essence LNDD is saying that for quality control purposes it's okay to screw up on 1 of the 4 measured values for a blank sample, but if one of 4 values on an athlete's sample is outside range then he is guilty!
Bowers prefers to adapt Blackledge's quote to the argument Bowers wants to advance. That action avoids and confirms the odor emanating from the true issue Blackledge invoked: all excuses are valid to protect against charges of WADA lab incompetence, and no rational argument protects Athletes being charged with doping from a similar display of alleged 'incompetence'. The AAA Panel advised USADA and LNDD that, given similar “sloppy” circumstances, to beware: 'the next Athlete (victim of LNDD untrustworthiness) might be acquitted...'. Blackledge correctly states that the French LNDD lab is widely recognized for its “... rate of detecting exogenous testosterone that is >300% that of other certified WADA labs and over 6 times that of the UCLA lab.” Bowers seems to think 'oh shucks, never mind'; he ends this paragraph with a statement that brings tears:
So there is no possibility that an analytical error, particularly in the light of the quality control measures undertaken by LNDD, resulted in Mr. Landis' adverse finding.
Maybe there's no possibility that an analytical conspiracy resulted in Landis' AAF. Yet quality control can not account for White-Out errors, errors admitted by COFRAC's audit agent, missing hard drives, etc.
Bowers compounds confusion by extrapolating from the Landis Award a rule unknown to WADA: should he cite a source for his rule in a Journal article (?): “... 1 positive result in an athlete's sample is a doping violation.”, the Tech Doc (TD2004EAAS) contains no such specific reference. He provides no guidance to the controlling Code, ISL, Prohibited List or other Tech Docs' Articles or Definitions. The ISL mentions Metabolites and Metabolite(s) with equal (and deplorable) imprecision. Ww offers this astonishing ISL sub-Article:
184.108.40.206 Selection of Methods
Standard methods are generally not available for Doping Control analyses. The Laboratory shall develop, validate and document methods for the detection of substances present on the Prohibited List and for associated Metabolites or Markers or related substances. Note that for many substances, the associated Metabolites are detected, thereby confirming the metabolism and the administration of a Prohibited Substance. [Ww: emphasis added]
Note the opening phrase: 'generally not available'? Why fund a Laboratory Standardization Division, if the ISL states that 'Standard methods are generally not available.'? Do the popular initials CYA come to mind?
Next a necessary break down of that final phrase: is Testosterone a Prohibited Substance? Yes. Is it one of the 'many substances' for which Metabolites are detectable? Yes. Are its Metabolites the analysis component whose measurements confirm exogenous Testosterone 'guilt' or 'innocence'? Yes.
By any stretch of logic, one in Mr Bowers' position should use the second highlighted sentence above to construct the foundation that, if three of four Metabolites do not confirm the '... metabolism and the administration of a Prohibited Substance', then the appearance of a minority positive (one) Metabolite should not be sufficient to convict. Or would that be... too logical? Remember another factoid: when WADA took over responsibility for establishing Prohibited List and medical limits from the IOC Medical Committee, it deliberately lowered the T/E magic number from six to four. WADA also eliminated the IOC MC's mandatory longitudinal study prior to announcements of any AAF for Testosterone. So much time spent, making it easier to bust Athletes on Testosterone analyses; so little time to establish the number of Metabolites necessary to do so.
While other Articles in the ISL are equally or more ambiguous; some ambiguity is removed in Code Article 2.1.2:
2.1.2 Sufficient proof of an anti-doping rule violation under Article 2.1 is established by either of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analyzed; or, where the Athlete’s B Sample is analyzed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample. [Ww: emphasis added]
It is not Mr Bowers' fault (Ww suggests Mr Young?), after years of drafting (pre–2004), and two years of redrafting (Chaired by Young, 2006–2007), that no competent resolution – between WADA and its Signatories – promulgated clear Metabolite analysis regulations. One could suggest, in Articles where the the word 'Metabolites' is consistently used, and not printed as 'Metabolite(s)', that this clausal construction disallows a solitary Metabolite Finding from ruining an Athlete's career. Only if one is a member of the 'small group of (legal) insiders' who benefit from resulting ambiguities, such as Young (as Chair for WADA, and USADA Landis trigger–man), does it make sense to uphold this lacunae. USADA/WADA reputedly expended between $4 to 6 million for the Landis Inquisition(s); what was Young's cut: ten percent? Twenty or more?
SIDEBAR: WADAwatch rectifies ambiguity with this hypothetical Code Article:
“For the purpose of establishing an Adverse Analytical Finding against an Athlete based on laboratory analysis of the Athlete's A Sample (and B Confirmation), when the analysis of Metabolites is requisite to affirming such a result, the minimum number of Metabolites values required to pronounce an AAF shall be [one more than half the total number of] Metabolites which correlate to confirmation of use of that Prohibited Substance or Method.”
NB: Testosterone has four Metabolites; 'one more than half' would be three; this would solve one of WADA's most neglected 'children'. Its vast human resources, including staff, Signatories, Foundations, the IOC (and WADAwatch, etc.), ought to be able to agree on a Standard: 'more than one'... 'two'... 'at least two' (the UCLA and Australian standard), 'three', 'four' or 'all relevant' Metabolites as a harmonized Laboratory Standard. The only possibly justifiable reason not to do so, would be disparate national legislative obligations... yet the UNESCO Anti–doping Convention mandates member State support and harmonization of the Code mandates: so what is holding hostage the WADA no–standards system?
No doubt Bowers is aware of SOP at the UCLA laboratory, which performed 26.36345pc of all 2008 WADA A Sample analyses (2008: 72,394 A Samples); the UCLA lab insists on an at–least–two Metabolite standard (according to Blackledge: Ww thought that was three) for Testosterone 'convictions'. Bowers nonchalantly offers his audience his one–Metabolite rule, but curiously doesn't claim that the UCLA ≥2 Metabolite standard violates WADA rules, so thousands of Athletes are skating (no pun) away. Readers witness his repetitiously unilateral stance, and may even realize exactly why he maintains it.
One last point on the WADA non–standard of Metabolites: 'legal construction'. Under Anglo-American common law, attorneys and judges seek guidance against ambiguities from the 'Canons of Construction' (regarding contract and law interpretations). Those logical rules remind us that laws, written by humans, may need 'interpreting' [Ww: This argument is different to our usual, anti–judicial interpretation stance; it makes a difference when one is victim of the System, whose conscious choices created, funded and benefited from those ambiguous draftings]. When rules are ambiguous, a reputable judge (or conscientious Arbitration Panel) should always construe those ambiguities against the Party or Parties that wrote them; that concept denies advantaging the drafting party. Yet some WADA ambiguities seem deliberate...
As yet another example of Mr. Blackledge not getting his facts right, he states than [Ww: sic] Dr. Simon Davis was present for the analysis of Landis' B sample. Had he actually studied the documentation available to him, Mr. Blackledge would have seen that Dr. Douwe de Boer (along with two of Mr. Landis' lawyers and two additional scientific experts) attended the B analysis (LNDD “B” documentation package, pages USADA 250-1). Dr. de Boer noted in his report (page USADA 368) that “The impression of the expert regarding the analytical performance of the B-sample analysis was that the LNDD worked in a transparent and professional way and according to transparent and professional procedures.” (p.4)
Interesting to witness the extent to which 'cherry picking' becomes a habit for anti–doping officials. Bowers seized upon the only phrase above (written by a non–native English speaker) which implies 'good sciencemanship' (to coin our very own anti–doping term–of–art: in honour of Copenhagen).
To interject a cultural hypothesis, European 'adverse legal parties' are rarely as antagonistic as one sees in the post–Clinton US legal system. Bowers is indubitably aware of this. It is not at all unusual to see such a compliment to a Lab's Director and staff for being transparent and professional, as a professional courtesy, prior to (softly) bearing witness to failures to provide certain information, such as documentation and data. Does Bowers correlate those two or three items? No. Sadly Dr De Boer didn't use his two–page 'expert witness statement' to reveal upon whose authority, incompetence or downright nasty withholding, the information sought was missing, destroyed (erased?), hidden in desks, or altered?
In justifying all aspects of LNDD 'science' Bowers dismisses numerous related issues. He glosses over the body of Dr de Boer's brief, two-page evidentiary submission (Bowers extracted one phrase – 'A)' of USADA 368), the body of which was much more negative:
[...] B) The identity of the compound(s) belonging to the peaks has not been established according to the minimal WADA requirements.
Therefore, any official conclusion regarding to the T/E ratio as well as of the concentration of testosterone and epitestosterone is and will be premature. As such any official conclusion in relation to the above mentioned parameters of the respective sample is non–conclusive. (USADA 368) [Ww: emphasis added]
B) During the B-Sample analysis it was not possible to see documentation and data regarding the uncertainty of the GC/C/IRMS analysis, which was reported to be 0.8‰ [per mil]... [or] regarding the historical data of blank urine pool no. 4.
(USADA 369) [Ww: emphasis added]
Bowers assures us that De Boer's concerns were 'addressed in the hearings', but not how, and reminds that Landis didn't call on Dr De Boer as a witness. The record shows that CAS Panelists were comfortably satisfied with the COFRAC retroactive correction, which wiped clean one of De Boer's major issues. What reason(s) for Bowers' mischievous allegation of Mr Blackledge's mistake, regarding Dr Davis (who testified as having been blocked out of certain LNDD procedures, which Bowers fails to reveal)? The truth: a) Davis wasn't in France for the A Sample analyses; b) the evidentiary record contains Davis' personal photos of the 'Mickey ears' magnets on the IsoPrime machine inside LNDD, and; c) Davis was surely one of the two 'additional scientific experts' whom Bowers himself mentioned? So he seems to be very confused, suffering from 'keyboard rage', or deliberately confusing.
Had Bowers' diatribe impartially offered the good, the bad and the ugly, with some conjecture as to the diametrically opposite meanings: 'transparent and professional' versus 'not possible to see ...', '... non–conclusive' or 'premature...', it might have influence. It otherwise seems a farce to discuss whether Davis was there, or give an impression that he wasn't; Bowers spends zero time discussing Davis' Iso–Prime/LNDD procedures testimony; why?
There's a bigger–picture aspect to this story, however.
The anti–doping world 'proved' Landis doped, as Bowers stated, because of one Metabolite being 'positive' on the day Floyd ripped across the Alpes in spectacular fashion towards Morzine (and “I was there...”), overcoming his previous–day bonk on Stage 16 and thereby recapturing eight of the (ten or so) minutes he had lost. The focused rage against Landis (and in support) is due to our differing opinions as to the validity and meaning of an AAF, based on only 1/32nd (or 1/4*8) of his testosterone Metabolites, analysed at the world–infamous LNDD laboratory. A fractional focus on one Metabolite, measured via the Beauty of Science as understood in France.
Long before WADAwatch began, this author derived the Pound Doctrine from statements made the first WADA president. Too few people remember how LNDD's Directeur De Ceaurriz, Pierre Bordry of AFLD, and WADA president Richard Pound (as well as, perhaps, two other French officials at WADA) and L'Equipe newspaper, ensemble, mounted an energetic campaign to force world opinion against Lance Armstrong, via the 2005 'tar–n–feather' investigation of his alleged 1999 EPO abuse. Yet their smear lingers; ask non–cyclists about Lance and doping. Dick Pound shot from the hip (his favourite pastime):
“If he had one [Ww: “Armstrong” and “positive result”], you could say it was an aberration. When you get up to six, there's got to be some explanation.”
Words that ripped around the world, and forged widespread support. Pound may not realize he created the Pound Doctrine ('Doctrines' are usually bestowed on their author after the fact), and Ww interprets: because the 2004–2005 EPO analyses of Lance's residual 1999 B Samples allegedly 'proved' (by unanimity of LNDD results) his guilt, one had to admit it was true, and a 'singular result' could constitute an aberrant deviation: a non–conclusive result casting doubt on its analytical bases. (See Floyd goes Free under the Pound Doctrine). Pound's statement carried demagogic power with a salivating sporting press: as if President Monroe issued another warning to European Powers to refrain from New World incursions.
The Pound Doctrine should be a two–edged sword... yet Landis (the case) proves that this simple corollary was never accepted by Pound, AFLD or USADA, as Blackledge complained above. WADA president Fahey said the Landis case outcome proved “... the system is working” (Fahey, WADA Ex Comm: November, 2008) and that conclusion seems Halloween–esque. However, the mathematics made Landis' 2006 TdF experience a 96.875pc clean (for Testosterone) effort. That is the truest, most impartial fact that Bowers can never deny. The other 31 Testosterone Metabolites from Landis' eight TdF 2006 A Sample analyses were not positive.
Floyd's single Metabolite conviction is really not 'WADA rule–based', as Bowers suggests. Our readers know how clearly this Award remains diametrically opposite the Quigley rule: friends at TrustbutVerify had nailed that issue with a post called Seven Paragraphs. The AAA Award mentions 'LNDD positivity criteria' not a 'WADA rule'. Does this fit with Bowers' idea of 'impartiality' claimed in his title? Concerning Landis, French hysteria was very influential in the outcome: WADA had to spend (announced one week before the CAS hearing) well over a million dollars – a 'financial bail–out' to USADA – to prove this French lab worked clean, and that “the system was working”. WADA also supported (by not prohibiting) the AFLD renegade (third) Landis trial, which remains a clear contradiction to Code Article 15.4 (Mutual Recognition). WADA claimed that French renegade process was permissible, due to its falling under a prior French law (Howman, directly answering a Ww question, 2008). Yet “That dog don't hunt...” (said the American President more than ten years ago).
In WADA–world, however, the Pound Doctrine only serves to indict Athletes, not to exonerate. Blackledge claimed 'bad science'; Bowers claimed 'partisan advocacy chills legal solutions': take your pick. Ww agrees with Bowers' claim: we do not believe he presented a non–partisan case supporting that, and we think his omissions and dismissals prejudice his presentation. Bowers only succeeded in demonstrating that he is far from impartial, in his desire to promote unbiased expert testimony...
You know what you're really thinking: LNDD doesn't keep its
1986 IsoPrime wünder–machina because 'they know how it works':
they keep it because 'they know how to work it'...
Postscript: Ww understood little from the IRMS 'data' seen in LNDD chromatography: the one symmetric UCLA chart that Blackledge offered in his article (p. 9) does more to render objective how 'different' LNDD and UCLA seem to be, in WADA's non-standardized laboratory family.
AFLD ought to stop seeking headlines, and work on perfecting its sciencemanship. Consider this: either all the Labs in the WADA family are not as perfect as LNDD, or... the opposite is true. If LNDD is the best, there's soon going to be a shortage of vintage Cold War (1986) IsoPrime machines; and Ww will write about the new WADA International Standard on Manual Peak Integrations...
SIDEBAR: if Ww had engaged Sherlock Holmes as consultant, he may make the following observations...
“Did you notice the curiosity within the Landis AAA transcript? The cyclist was never asked about Prohibited Methods. Weren't four or five other Phonak cyclists 'busted' for blood packing? What if this whole body of evidence was designed, constructed, to 'bust' Landis for something that he hadn't done (Testosterone), because they 'knew' what he had done, but couldn't prove it (the blood packing)? That would neatly explain the bad science, abnormal values, missing hard-drive, non–chronological data entries, bad chromatography, time gaps, manual integration... and the outcome(s)! The French 'hysteria' over the case... c'était une farce!
In the alternative; wasn't Floyd offered a 'light suspension' if he outed Armstrong?
There, Watson: two different theses that offer an explanation as to the genesis of these lab findings. The anti–doping movement may have felt a moral right to back and invest in such a pissant evidentiary case; even if they were legally wrong to do so. 'The ends justify the means...' Where's my pipe?”
We leave aside the scholarly debate, to remind about two very relevant, positive innovations at CAS, which serve as a potential conclusion. Had they come three years ago, they would have greatly helped the Landis disciplinary processes, perhaps taking the wind out of Bowers' sails.
Ww already wrote about the first CAS innovation their October rule change. CAS Arbitrators must choose to serve forever more only on Arbitration Panels, or act as attorneys before those Panels. They are no longer permitted to operate as both: the former 'revolving door' system has been closed. Systemic conflicts of interest thus are resolved for future litigants (although the professional friendships remain). Think of it as Landis' legacy: to increase Athletes' reasonable expectation of fairness in future anti–doping disciplinary hearings. We could call it the Landis Rule...
Suggestion: could CAS please improve their fax–to–web-PDF file transfers, for Awards it posts on its web site; or will they scan harsh fax photocopies forever?
The second CAS innovation comes from the recently–decided Pechstein case, a German speed skater who was suspended from her Blood passport evidence (Ww is still mulling over the substantive ramifications of this 'test case'). That case instituted a new (to Ww) procedural device that WADAwatch loudly applauds. The Pechstein Panel innovated by receiving the Parties' expert witness testimony en bloc, after accepting the two parties' lists, and 'coordinating' those to be heard in conference format (or a 'Battle Royal').
Being an appeal of Frau Pechstein's initial 'prohibited Method: biological passport evidence of blood doping' suspension, the twelve proposed Experts were formed by the Panel into four groups, addressing different areas of 'expertise': 'haematological issues'; 'Advia 120 machine and other measurement issues'; 'International Skating Union data processing and procedures'; and, the 'factual (non–expert) issues' (to hear the ISU Anti–Doping Administrator solo). The Panel accorded full rights to the attorneys to “... examine and cross–examine” in groups the Panel constructed.
One is left breathless –awestruck– at this streamlining process: the possibility for swift comprehension, shifting away from lawyerly sparring toward compromise and consensual acquiescence. If it was only an ad hoc innovation, CAS should determine its potential for systemic implementation. Judging expert groups as peer groups could be a stimulating revision offering reduced costs for anti–doping Arbitrations. Given that millions were spent by (>2?) and against (>5?) Floyd Landis, and nearly two thousand pages of the first Landis AAA hearing transcript document dozens of hours of (some agonizingly bad) Expert Witness testimony deliveries (or delaying tactics?: “what page is that? Could the Panel instruct Counsel to wait until we find the page?”) and evidence of pure partisanship by both parties.
CAS seems to be acting as Guide for WADA, finding the way out of its pain–in–the–morass Code–created deficiencies...
CAS displays an action–oriented application of lessons learnt from the Landis case: if only WADA could match those efforts, such as by transparently publishing and implementing the long–retarded WADA 'laboratory discipline rules', proposed in 2008, would be a start....
The Beauty of Science...
Clear regulations replacing ambiguous Articles...
Reduced legal costs...
... Ten Years (more?) After
one hundred percent pure
copyright 2009 Ww