Tuesday, 28 April 2009

AFLD-ermath redux: Lance unleashed....

(AKA the 'Right to Shower' - inconsistencies)

Announcements surfaced Friday evening in France, that Lance Armstrong would not be pursued by French Agency AFLD (Agence française du lutte contre le dopage) for the crime of showering pre-DCO: the effected Controls were negative in every aspect for prohibited products or methods.

Interestingly, the NY Times reported that the AFLD: "[antidoping agency] said that Armstrong was required to stay with the drug tester at all times, and that the tester had warned him of that."

However, as to the AFLD, 'l'Equipe' reported the following:

Le médecin contrôleur avait en effet rédigé un rapport suite au contrôle car le septuple vainqueur du Tour n'avait pas été en sa présence en permanence, s'éclipsant notamment pour prendre une douche. Le collège de l'AFLP a décidé «de prendre en considération les explications écrites du sportif et, en conséquence, de ne pas ouvrir de procédure disciplinaire à son encontre pour ces faits.»

Our own translation would be:

The doctor-controller (DCO in WADAspeak) had in effect issued a report following the control, because the seven-time Tour (de France) winner had not been in his (the DCO's) presence permanently, eclipsing notably to take a shower. The Board of the AFLD decided "to take in consideration the written explanations from the Athlete and, by consequence, to not open a disciplinary procedure against him for these facts."

Was there anything publicized about Lance's comments regarding the DC form which he'd signed at the time of this DC, that no comments were registered 'at the time' by this DCO (of 15 years' experience as such...) as to irregularities, which had previously been reported? Not that we'd found...

One can only wonder whether AFLD would have come to the same conclusion, without the recent CAS Decision (as revealed by WADAwatch) that squashed WADA's appeal in the Cherubin case? WADA had requested CAS to intervene in that case, and increase the duration of the one–month suspension for an Italian soccer player whose 'comportment' during a post–match doping–control was sufficiently 'abnormal' (in the eyes of the Italian anti–doping prosecutor) to present a case against Cherubin.

Important to remember that the initial case against Cherubin failed to bring a penalty against him: it was only upon appeal that the Italian National 'Football Court' had agreed with the maybe-overzealous prosecutor, yet only inflicted a one-month ban. That was the bee in the bonnet that drove WADA towards requesting, via CAS (and its CODE-based right to bring infinite appeals: Article 13.2.3) that 'failure by shower' be accorded a two-year work stoppage...

Simply restated, CAS disallowed the WADA position, rejecting its theory that the violation was of such heinous calamity that only a two–year suspension was proper justice. All the pertinent facts were remarkably in parallel with the events that occurred during Armstrong's contested control circumstances. An Athlete presumed upon the status of the circumstances at hand, that a shower was permitted; albeit the DCO facing Armstrong appeared solo. In Cherubin's case the four DCOs present in the Cherubin case were inexplicably and perhaps irregularly deployed, to accompany the four Athletes that had been notified of their participation in this in–competition control. Read more in this previous WADAwatch (same link as above) post.

Now, with the news that there is not to be a prosecution, in France against Armstrong, one wonders if certain evidence or information was passed to AFLD, regarding the Cherubin case? Was (perhaps?) AFLD reminded, as we had once written, that the commercial aspects of this calamatous (financially speaking) year's Tour de France would have been compromised without le Grand Lance himself in attendance?

Or should we take AFLD upon its word, that because Lance filed written 'explanations' (perhaps just after the DCO 'remembered' that certain 'irregularities' needed to be written into the case-record?), which 'explained' Armstrong's position to the 'comfortable satisfaction' of the AFLD Board ('Collège' en FR; and offering the WADA legal system's 'standard of review' as the hypothetical determining standard), and certainly because the tests themselves were 'negative' (although the hair samples seem to have become superfluous: AFLD claims that they have not yet been tested...?), Lance is free to ride in the Tour de France 2009?

Vive le Tour! Best of luck in Italy, Juan Pelota...!

Don't forget to support le Tour de Romandie, tout le monde!


copyright 2009 Ww

Tuesday, 14 April 2009

Is WADA 'aiding and abetting' Lance?

The previous WADAwatch post discussed our perception of the AFLD's actions vis-à-vis Lance Armstrong, and the French perception (as usual, coming from leaked confidential information provided to L'Equipe) of his 'violation', regarding a visit, a wait for confirmation, and a shower outside the view of the attending DCO (Doping Control Officer).

As of today's date, we are not aware of AFLD having provided a full copy of the report submitted by the DCO. We have read reports that indicate, from Johan Bruyneel, that 'all (the interchange between Lance and the DCO) passed as it should, cordially', we read online about Lance saying the cutting of his hair was 'brutalized', and we reported how the AFLD DCO was under oath as a job requirement.

We wrote:

"Simply, Lance contended that the following occurred:

At question is a 20-minute delay when Armstrong says the tester agreed to let him shower while the American rider's assistants checked the tester's credentials."

Now, thanks to our generally-available 'sources', we find that Lance may have acquired a formidable ally, indirectly.

WADA itself.

Through another** lost appeal, WADA appears to have offered Lance Armstrong enough ammunition (if the facts as we have gleaned them remain relevant to his case).

**On 17 December, 2007, WADAwatch published this post:

WADA appeals, loses ASADA – Karapetyn case

In which WADA pushed for a ruling at CAS, through judicial interpretation (aka 'a Tax' on litigating Athletes, who must argue against WADA regarding poorly drafted (or as-yet indeterminant) CODE (or ISL, IST) Articles), as we wrote then:

WADA based its appeal on seeking support at CAS for its ambiguous drafting language of WADA CODE 2003 Article 10.7 (“Disqualification of Results in Competitions Subsequent to Sample Collection”), which calls on ADOs to strip athletes, who were determined to have violated an anti–doping rule, of their interim victories, results, prizes or medals. However, the CAS decision agreed with the Respondents' arguments, which invoked among other items, the language of the Article itself, which includes the phrase “...unless fairness dictates otherwise, ...”.

The CAS Decision came out against WADA's position:

In doing so, CAS refuted the World Anti–Doping Agency's apparent contention: that an ADO with the authority, via the WADA CODE, to 'disqualify results in competitions subsequent to sample collection' MUST do so, in spite of the clear wording “...unless fairness dictates otherwise, ...”.

CAS reasoned that ASADA had acted within the discretion provided specifically through the AWF's adoption of the WADA CODE into its Policy, when that discretion was “...applied in good faith, without bias, error, or undue influence.

Specifically: “ASADA considered the athlete's inadvertent taking of the banned substance nine months before the Commonwealth Games, the fact that the stimulant in question has no lasting effect on the athlete's performance and that his doping control results one month before, during and after the Commonwealth Games were negative for any prohibited substances.

Follow this link to that 17 December post.

So once again (if there were other adverse positions that WADA sought to appeal, following Decisions favouring Athletes, Ww has missed those...), WADA has searched to incorporate, through the prejudicial facts of judicial interpretation (translated another way: cases where Attorneys representing the Athlete must argue a point (driving up legal costs) which by definition must usually be unclear, ambiguous, or poorly drafted by WADA and its Signatories), the strict construction of Article 2.3.

The case?

CAS 2008/A/1551 WADA v. CONI, FIGC & Cherubin

As briefly as possible, this concerns the same issue now facing Lance Armstrong: "notice".

Notice is one of the most well-known and misunderstood legal principles. Anyone that ever watched a TV police show (at least from the USA), is at least subliminally aware of the concept. You see a criminal, at the same time the police (on camera) find them.

And what does the policeman (-woman) cry out?

"Police! Stop or I'll shoot!"

That is the legal principle involved.

An agent ("Police!") representing the 'State', has identified themselves.

He or she issues a command (One word: "Stop!") that advises the 'alleged criminal' to undertake a commanded action.

And then, the criminal (woe be it if he or she is deaf, or without linguistic competence), is put on NOTICE ("Or I'll Shoot!") of the CONSEQUENCES that will follow if the 'alleged criminal' does not comply.

In the Cherubin appeal by WADA (interested readers are strongly adviced to follow the link above, for the 18 p. Decision), Cherubin was 'referred' to the FCJ (the 'football league court') by the assigned prosecutor, NOT for violation of Articles 2.3 (Refusing or failing without compelling justification to submit to sample collection after notification) and 2.5 (Tampering or attempted tampering with any part of doping control). However, the prosecutor did claim that Cherubin "showed a 'lack of cooperation'" in the completion of the anti-doping procedures, invoking a violation of Articles 6.2 and 6.5 of Italy's Operating Instructions of the Anti-Doping Commission.

At the first instance, all charges were dismissed. The prosecutor appealed, to the 'GUI' (in English: Panel of Judges of Final Jurisdiction on Doping Issues), requesting sanctions under Article 4.2 of the Operating Instructions of the Anti-doping Prosecutor's Office. As CAS notes, that provision calls for a "sanction between one and six months ineligibility [which] can be imposed on any licensed athlete who does not provide the required cooperation [...] without advancing acceptable justifications".

In this level of national appeal, Cherubin received a one-month suspension for the Italian Agency CONI rule (Italy has apparently suffered some recent changes to rules and Organizational titles: the CAS Decision reminds us of these: WADAwatch refers simply to Articles and Organs as presented); the body concluded that the Prosecutor's case was clear as to Cherubin's "negligence and incautiousness".

WADA received notice of this 20 March, 2008 decision on 11 April 2008, followed by an English translation on 8 May. WADA filed the discussed appeal with CAS on the next day, May 9th.

WADA's grounds can be read at this link (same again) to the CAS site, paras. 1 to 4.

Our notes summarize the CAS Decision that rejected WADA's appeal:

Background note: a football/soccer match in Italy, had two players from each team notified for doping control, in the closing fifteen minutes of their match. Four officials (it appears) were in charge of this action, under authority of the requesting ADO (CONI).

While three of the DCO officials (??!!) were 'occupied' with Cherubin's team-mate's urine Sample control, one other DCO official followed the two opponents (to stay as visual witnesses while they showered): Cherubin 'apparently presumed' he could do the same (some evidentiary conflicts on the various statements by Cherubin were resolved mostly in his favour, for reasons below). He then was apparently involved in a hostile TEAM-ONLY argument behind locked doors (not directed at his person), the amusing result of which was the dismissal of the team's Coach.

WADA contended, after the resulting disciplinary actions within Italy (described above) didn't satisfy its search for Justice, that the Decisions failed to incorporate Article 2.3 of the WADA CODE, by limiting the decision to rule 4.2 (renumbered since as 5.2)] "... under such rule the sanction between one and six month's ineligibility can be imposed on any licensed athlete who does not provide the required cooperation..." without advancing acceptable justifications.

Synopsis: WADA appealed a decision that was, more or less, favorable to the Athlete Cherubin (received a suspension (one month(!!)), much less than the two years that WADA exiged...) and for factual reasons VERY similar to Lance's case against AFLD (analyzed below).

Got that?

WADA demanded two years, while Italy gave the Athlete one month. The crucial question was found in how Cherubin went 'to shower' versus the requirement to provide 'notice why Athlete could NOT.' (start rubbing your hands, Lance!)

The following paragraphs reveal the status of how CAS interpreted these facts regarding Notice:

(para 64) ... the Panel finds the evidence given is not sufficient to satisfy it comfortably that the Player was unequivocally refused permission (to go shower) rather than just deciding to do so and not obtaining permission to do so. (...)

(para 65) (...) Further, the testers did not face the Player with the facts around his behaviour.

(para 66) (...) ... liability under article 2.3 has not been established because it has not been proven to the Panel's comfortable satisfaction that the Player actually refused or failed in the meaning of article 2.3 to give his sample at 22.25; but rather that he left the station without having been told not to do so in terms he could readily understand as being a formal injunction linked to a possible sanction and in circumstances enabling him to believe that if he immediately returned after taking a shower rather than waiting around while his teammate was being tested that would be sufficient.

KEY ANALYSIS: Without having been expressly told not do so, in terms he could readily understand as being a formal injunction linked to a possible sanction and in confusing (Three officials to 'observe' one of four taking his urine control, one of four watching two other individuals showering, and thus no one to follow Cherubin) circumstances that enabled him to believe that if he immediately returned after taking a shower rather than waiting around while his teammate was being tested that would be sufficient. It must be inferred that the above mentioned team brouhaha had some salient effect on the frustrations of the DCOs.

RELEVANCE: If Lance was not 'on notice' that going to take a shower could lead to a possible sanction (which would of necessity be expressed by the DCO who showed up alone at his house-training site in southern France), it shouldn't matter whether AFLD 'prosecutes' Lance "à la Française".

The CAS opinion, coming only a month before this AFLD 'situation' began, shows (in our Ww humble opinion) total similarities with Lance's case. As such, any disfavourable ruling by our favourite world-renowned ADO (AFLD), should be overturned by CAS if it goes that far (Although 'we' said that about Floyd's case)...

SIDEBAR: the Panel for CAS did not discuss the 'Equal Protection' aspects of this case (presumably not developed by Cherubin's legal counsel): one team's players were allowed to go shower, with an accompanying DCO (doping control officer) accompanying that pair of Players, while this DCO was inadequately and insufficiently staffed, to allow same for the player Cherubin, on the other team, who had to wait an identical time period for 'his turn' as did his two opponents (with people's careers and reputations at stake, one is hardly tempted to joke: "How many Italian DCOs does it take to arrive at one full urine sample receptacle?", with three observers for Cherubin's teammate)

This could be the first time in a Long Time that Lance would have grounds to thank WADA, for its diligent, repeated attempts to 'judicially interpret' the lacunae of the WADA CODE (what constitutes NOTICE?) and enforcing the resulting compliance by IFs and Signatories...

Our dearest Agence française du lutte contre le dopage (AFLD) is now, itself, 'on notice' that its oath-sworn DCOs must audibly REFUSE that the Cyclist remove himself to shower, with expressly communicated (and understood, and accepted) REASONS given, including that a failure to do so would result in possible disciplinary consequences.

Somehow, when WADA attempts to expand its legal arsenal, wherever judicial interpretations are concerned, through actions against Athletes whose cases are decided somewhat in their favour, these actions don't seem (at WADAwatch) to be very... appealing.


Police do it all the time:

"STOP!! Or I'll shoot!!"


copyright 2009 Ww

Friday, 10 April 2009

the AFLD--termath... on Lance's test

Anyone that devotes any part of their days to, first: cycling, second: anti-doping issues, and third: this blog, should be well aware that AFLD has, once again, thrust itself forcefully, dare we say Bordrilly, onto the anti!doping!scene! ... as world leaders offering to WADA Signatories, worldwide their very own, new meaning of the word:

(en Français: vindictif)

Themselves? Sacrè Bleu...

It's a sad day to think that, according to the Head of the French Agence Française du Lutte contre le Dopage (AFLD), and in spite of the evidence coming out (as to what actually transpired in the house from which Lance Armstrong was conducting a training session), Pierre Bordry believes himself to have 'finally, fairly and most of all,


... convicted his 'lifelong' antiChrist-like nemesis of the last 11 years:

Lance Armstrong.

AFLD: incapable of reasonable levels of objectivity (as WADAwatch sees it), incapable of eliminating the Alaska-pipeline-sized path through which someone forwards Super-Sized leaks to the French newspaper L'Equipe.

When it comes time to award Olympic-sized medals to WADA Signatories who have repeatedly violated the WADA CODE...

Are there, seriously, any other contenders than AFLD?

Think about this phrase, from Yahoo! and the Associated Press (for whom, in light of their drumbeating cause to flurry the Web with lawsuits , we would like to remind you, faithful reader, that our borrowed content is protected under the 'Educative purpose' exception in copyright law):

"In France, drug testers take an oath before a court to discharge their duties honestly before they are allowed to work."

Wouldn't that be a logical starting point for AFLD to undertake investigating what happened, before having the 'ducks in a row' it would need to 'discipline' Lance Armstrong? The Tester can lose his or her job for lying, deception or negligence...

After AFLD's unseemly (we're trying to be nice, WADA) second prosecution of Floyd Landis (in 2006 and 2007; see
'CRIME AGAINST SPORTSMANITY'), which, in every respect of known law should have been sufficient grounds for an internal or public WADA investigation, one would have thought they'd remembered their status as one of the most active member States of WADA.

(for out-of-towners: Athletes should be 'disciplined' by the IF with authority)

As an American-licensed Cyclist: Floyd Landis was 'disciplined (and How!?) by the combined competent authorities: USACycling (the NF), and USADA (the ADO) in front of an AAA arbitration Panel, 'confirmed' by a most unusual CAS-AAA 'appeal', which did much more than rubber-stamp the first Decision, yet AFLD had decided in 2006 the undertaking of its own national-only procedure, which it then delayed until 2007; being their mind was that Floyd would indubitably not be banished from any French racing possibilities, under the prospective situation (which did occur) that the UCI-Jurisdictions would not have legal effect if the Tour de France 2008 was undertaken only under French authority.

There has been no other worse example, in the monopolistic world of WADA's 'sport-doping legal disciplinary arbitration', of a clear violation of WADA CODE Article 15.4.

This link to the 2003 CODE
(Article 15.4), in force under the Landis affair; and this link to the 2009 CODE, (Article 15.4.1) now in force and regulating actions by WADA Signatories today, both contain an identical phrase regarding MUTUAL RECOGNITION. One would like to believe its mandates include France's AFLD.

Reading either
is so clear, one wonders about the French language version. Here's the newest English sub-Article:

15.4.1 Subject to the right to appeal provided in Article 13, ... and hearing results or other final adjudications of any Signatory which are consistent with the Code and are within that Signatory's authority, shall be recognized and respected by all other Signatories.

How's that?

A Signatory, or member State having any stake in WADA, should be acknowledging the authority and actions taken by the country, of whom its NF or IF from which the Cyclist has the authorized License to compete.

WADAwatch contends that this has not happened, in the French process against Landis, and both France and WADA are remiss for, respectively, inflicting and not rectifying the second of the double prosecutions undertaken on Floyd (when France had full authority to join the Appeal to offer an added question in this sense (that's the ignored CODE Article 13 APPEALS).

With apologies for continuing the long list, necessary to prove the evident lack of objectivity at AFLD, a letter was sent by the ASOIF to WADA, during the period after the so-called research produced L'Equipe's August, 2005 article against Lance. Was this their apparent 'thank you' for the millions of Euros in profit that Lance's enthusiasm and talent had brought to the Tour (
especially in sponsorships, more than paper sales: it's all one family company, after all) for seven years?

Vitriolic responses awed and shocked, from the desk of Dick Pound, the entire interchange was mentioned in the Vrijman report (NB: apparently the UCI found it beneficial to recode the link to the Vrijman report: check your bookmark links eventually; we will):

"... the ‘General Association of Summer Olympic Federations’ (hereinafter: ‘ASOIF’), together with the ‘IOC Athletes Commission’ (hereinafter: ‘Athletes Commission’), sent a joint letter to WADA on September 20, 2005..."

... who had found it necessary to request of Dick Pound and WADA, an urgent investigation of ALFD's lab LNDD, in light of perceived, evidenced inclusions of identifiable (as to Armstrong, it really matters not how this happened) Samples, violating the Helsinki Agreements on guarding anonymously any tissue samples made available for 'research':

As this [Ww: the necessary and compromised anonymity of Armstrong's samples] was clearly not the case here, we demand that WADA conducts a thorough Investigation in order to establish the violations committed and to identify and sanction those responsible. We also demand that, pending this investigation, WADA suspends the accreditation of the Châtenay-Malabry laboratory.

One might think that when requested by the elected representatives of the entire body of Olympic Athletes, as IFs and Signatories, they would have received satisfaction from the Organization - WADA - that enjoys its salaries and travel benefits expressly from accumulated dues received from these IFs, and others.

Their formal request went nowhere, with harsh replies from Pound that really, in essence, stated 'watch what you say, watch what you do'...

Let's repeat that phrase from the AP article above, discussing Lance's 'test' this week:

"In France, drug testers take an oath before a court to discharge their duties honestly before they are allowed to work."

How is this relevant? Simply, Lance contended that the following occurred:

At question is a 20-minute delay when Armstrong says the tester agreed to let him shower while the American rider's assistants checked the tester's credentials.

Yet the world now knows through AFLD, L'Equipe and the train of sports reporters (who would probably prioritize the Drudge Report if American politics were their focus), that AFLD 'accused' Lance of 'procedural irregularities' by 'non-conformance' with its Rules (which parallel those of WADA's).

If, however, the 'tester' dispatched by AFLD, who works under the above Court-adminstered oath to discharge their duties honestly, allowed Lance to shower, and thus (we presume) remove himself from the presence of the 'Tester', which Tester then claimed to Bodry that,
by doing so Lance violated AFLD/WADA/UCI rules, it appears one to four violations have occurred under Pierre Bodry (not in any order implying probability):

  1. Conscious violation of Testers' oath: if true, would be a serious ethical infraction. WADA has had one such case already. In Floyd's CAS appelate case, USACycling claimed Floyd had 'violated' his suspension for riding in the Leadville 100 mountain bike race (conveniently forgotten, and then established by Floyd, was the permission granted by express written letter from USACycling to Floyd, to do so(?)).

  2. Unconscious violation of Testers' oath: if the Tester simply was negligent, that should be sufficient grounds for AFLD to halt its 'March to Court' against Lance. Any leaks to its publicist L'Equipe should be publically retracted. AFLD also should have to request a thousand pardons from Lance for having the gall (Do Gauls have 'gall'?) to have, once again, slandered him for no reason.

  3. The leak itself. Will AFLD ever get it? (sigh) Riders have rights, and one absolute right ignored, although in the CODE, is to have results handled by the ADO (AFLD) discretely. One can imagine that some people in France, who've had marital indiscretions, do understand the term 'discretion', but this has never been a French cycling-doping-press related strength. One can understand in the Depression-style economy that we have, a newspaper's desire to shock and awe readers that may have dispensed with purchases, in favor of food for their children. But it's wrong, and WADA knows this. They did take responsibility, certainly, from the IOC to produce a viable system.

  4. Whose plan was this? It would not appear seemly to place preponderant weight on the 'conscious violation' theory. If in any way that were what happened (An under-oath Tester asserts Armstrong can leave and shower (thus violating the required constant presence), and then returns to AFLD, to file a report claiming it was Armstrong's unilateral and violative choice to 'disappear'), the powers at be would have to know if that happened in AFLD, or on personal initiative of the Tester, or by 'any outside intervention', which would have to include the 'usual suspects': why would anyone possibly suspect the world's leading WADA CODE-confidentiality violating newspaper?

    See, it couldn't be that, could it? (wink)

Fifty-five years ago US Senator McCarthy, he of the Army-McCarthy hearings, which pretended to rout out Communists in the US Government, Hollywood and elsewhere, was forced to listen as US Army attorney Welch responded, with impassioned rhetoric, as McCarthy finished demanding information about a colleague in his Boston Law offices.

WADAwatch takes no pleasure in adapting these words to request the same soul-searching by Pierre Bordry, head of the AFLD:

"Until this moment, Monsieur Pierre Bordry, I think I never gauged your cruelty or your recklessness[...]"

"Let us not assassinate this lad further, Monsieur. You've done enough. Have you no sense of decency, sir, at long last?

"Have you left no sense of decency?"

If Lance is able to prove the contention that the Tester allowed the shower, AFLD has absolutely no grounds to contend that a violation of AFLD and French regulations occurred. But the newspapers containing this story are selling 'comme des petits pains' (EN: like blueberry muffins) wherever L'Equipe is sold.

It's Pierre Bordry's nightmare ('Mais quel cauchemar!!)

Wiley E Coyote-Bordry v. Lance RoadRider...


copyright 2009 Ww

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