WADA - virgin territory

WADA's Legal Reference pages

In responding to a request for research through the legal pages at WADA, and its appellate record, WADAwatch ran a quick tour of the WADA website today, in the strident hope to come up with glimmerings of an answer, or two.

A swift survey started, simply enough, with a glance through the WADA website page 'Sitemap' (in EN).

NB: That sitemap page has just been installed in the right-hand column of WADAwatch links >>>> over there >>>>>.

WADAwatch remains curious at the results found there. WADA furnishes the following headings, and WADAwatch has added the information in parantheses, as a visual aid. Under this heading (no link from it):

- Legal: articles, case law and national laws

Are these linked topical choices:

- Overview (id=379 )
- Advisory and Legal Opinions on the Code (id=377 )
- Legal Articles on the Code (id=539 )
- Case Law (id=378 )
- National Laws (id=659 )

Now WADAwatch will tell its readers, that astonishment may not be the word that properly conveys the sentiment, when finding out that ALL THOSE links go NOWHERE. Notice, that there are five different URL string endings?

Which simply means, as Gertrude Stein famously said, 'There is no THERE, there.' Each of those links, goes to a separate 'empty' page (means: no content of a any nature that fulfils the purpose of the link. Eg: 'Case Law')

Translated, it means that WADA simply has not yet provided online access to its 'law library', its overviews, 'Legal Opinions', articles, case law and national laws' archives, in a system that is attainable through diligent use of their 'site map' page.

Now, readers may scoff, and remind Ww that the homepage of the WADA site has the text that follows:


Independent Legal Opinion Finds Code Revision Compatible with Fundamental Rights of Athletes


Yet that link goes to this URL:
http://www.wada-ama.org/en/newsarticle.ch2?articleId=3115523


Which is an intermediate page, offering yet another link (Why not?) to a choice of legal items.


However, its URL as thus:
http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=377

Which is close to, but not identical to, this:
http://www.wada-ama.org/en/dynamic.ch2?pageCategory_id=377

(did you see a difference? Category.id OR Category_id :
the difference between _ and . )

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So, either WADA is needing to call back to work an AWOL website management person, or its self-trumpeted call for 'transparency' in the world of doping in sport, could arguably start 'at home', through a great amount of work to build up WADA's own in-house library.


FOR THE RECORD: Even having a page that does catalogue the topics for which most of the links above are available, still it is worth a final mention that the CASE LAW, and National CASE LAW, are not available on the cited page, above.


Also worth mention, is that the bottom of the 'site map' page has a list featuring THIRTY-SEVEN country names; it also displays six Federations (or one IGO: UNESCO) on the 'site map' page.


WADAwatch confirms that NOT ONE of those pages has any substantive content other than 'standard WADA links':

• Not even France: whose AFLD should soon be displaying the antidoping rules it intends to utilize for the plethora of ASO race events that will not be run under UCI rules; and it certainly could display online its 'case history', especially that of Floyd Landis, who (WADAwatch maintains) was illegally prosecuted under an inapplicable French Code Civile law;
  
  

• Not even the United States: where are its USADA decisions, the 37 'victories' (Noting that USADA has never denied being different from WADA, which maintains a stance for 'justice' over 'winning'), including the Landis/USA Cycling affair;
  
  
• Not China... not yet... Beijing Summer Games: 154 Days and counting;
  
  
• Not even UNESCO: WADA would, wouldn't it, want to have a link to the UNESCO Treaty (Dear WADA: the link is over >>>there>>>> in the 'Related Anti-doping Linx' box, as well), as it clearly wants more State members to its organization?
  

In terms of TRANSPARENCY, WADAwatch is mulling over still, whether it would be useful, and legally justifiable, to encourage WADA to go as far as to post its Legal Briefs online, in advance of the arbitration appeals it pursues.


Director General David Howman claimed that WADA's true interest, legally, is 'that justice prevail', not winning for the sake of winning. His comment came when answering a question from WADAwatch directly related to the CODE Article 10.6: Aggravating Circumstances.


The truth is that WADA will allow these 'judicial interpretations', which have an implied effect of shifting judicial expenses from WADA - who could have offered a legal definition of 'Aggravating Circumstances' - to the Athletes facing the first litigations under its ambit (WADA's often expressed attitude is that 'judicial interpretation' is proper, when amended texts offer less-than-clear guidance to the Athletes themselves).


WADAwatch continues to trumpet that, in doing so, WADA perpetuates an ongoing perception of unfairness; not only will the first Athlete(s) who are tried under 10.6 going to have to argue their defense, they will be burdened with the legal costs of passing an argument to the Arbitration Panel that may define (for better or for worse, vis-à-vis WADA) any and all legal ramifications of this additional severe penalty regime.


And, WADA seems not to worry, were CAS to find judicially that this Article 10.6 has been poorly drafted, to the point where Athletes whose cases may be determined under its elements find themselves relieved of its intended effect.


Article 10.6 of the CODE, if you've not read it, effectively doubles any two-year suspension, for EVERY athlete who cannot prove that they ingested 'something' ONE TIME, ACTING ALONE, without INFLUENCE BY A THIRD PARTY. If that doesn't seem harsh, maybe read it reversed: any Athlete, who's proven to have 'repetitively ingested' (sequence of doping events), or proven to have 'multiply ingested' (more than one ingested substance), OR proven to have either followed advice (or 'orders') or to have 'obstructed' an investigation or litigation on any AAF or rules violation, is going to be off the field for the doubled term.


Why didn't WADA simply convince its Signatories that, in its four years of applying the CODE, it appeared clear that the onus of a two-year suspension had not proved itself as adequate to stem the doping 'tsunami', and thus a four-year standard suspension should be debated, and if agreed, implemented?


Instead, it went through this perhaps-unfairly conceived amendment, a royal gift to the prosecuting Richard Youngs of the world.


In summary, if WADA purports to seek 'justice', rather than 'victory' in its appellate arbitration cases, it could rightfully publish any document it used for the appeal of any arbitral decision, coincident with that document being filed with the CAS or a national Appellate review.


For judicial interpretation to have meaning and import, those cases must be maintained in an openly accessible archive, preferably at no cost to any researcher, or attorney. At the CAS website, their preferences seem to be in offering a selection of cases only, and certainly only the most recent.


Hopefully, the more serious side of new President John Fahey will awaken to this lacunae in his fervent desire to bring WADA forward, in a crucial year of radical changes that are going to explode across the media screens of this summer, firstly in accents from France, and secondly those of a Chinese flavour.


John Fahey's effective speech in Lausanne included its emphasis that the CODE had 'proven to be fair, and effective'. Time to prove it, John, by augmenting as swiftly as possible the missing Case Law content, to the sporting world watching WADA.


Watching WADA, for you,

.................@............WADAwatch

© 2008 ZENmud productions

WADA LEAP YEAR 2008:

Fahey's first Tour, and Beijing

Is the best thing that's happening to WADA this year, the worst that possibly could happen to it? WADAwatch is not, repeat NOT, referring to WADA's newer, gentler president, nor anyone else.

This question is not meant to be confusing, nor will it remain so; WADA is banking on a newly formulated tool to combat the flux of doping:

the Athlete's Passport

By no means a 'government-authorized travel document', the “AP” was introduced to the sporting press at WADA's Press Symposium in Lausanne, Switzerland, on Wednesday the 27th February. In an all–day session hosted by WADA's president John Fahey, director general David Howman, and medical director, Dr Alain Garnier, participants were immersed in: the transition from Pound to Fahey, the role of Europe (which has pride enough in its sustenance of WADA, contributing 47.5 per cent of the operating budget) in WADA's governance, and the technical aspects (WADA PASSPORT for dummies?) of this Brave NEW Tool in the WADA toolbox.

Introduced as a 'pilot project', the Athletic Passport creates a longitudinal, auto-generated 'blue print' or record of each separate participant, being the 700 to 900 cyclists atop the UCI rankings. This concept 'in the pipeline' was elaborated, after the ashes cooled following the 'crisis' at last year's Tour de France, by the French Ministry of Health, Youth and Sport, ASO, the UCI and other interested Signatories of WADA. A meeting hosted by the French Ministry in October, 2007, attracted those participants, some of (whom WADAwatch is sure) were in no mood to accommodate their collaborators across the table.

There's only one small drawback: two of the participating organizations, vital to the success of this Longitudinal pursuit, should be straightjacketed and removed from civilization.

The UCI, which regulates the cycling world, and ASO, which is the French, privately-held company owning the Tour de France, amongst many other sporting events in the cycling world, etc., are doing their level best to out-piss the other in a war AGAINST CYCLING AS A SPORT, not at all indicative of success in cycling's the search for CREDIBILITY, new sponsorships, new talent, new glories...

Slides herein are from WADAwatch photos, however WADA did mention that their power Point presentations would be online shortly... visit this link, for the full set of presentations.

Sidebar: the 2009 WADA CODE is now online, it goes into effect in ten months:
1 January 2009.

(NB: it's not yet on the CODE page from the drop-down menu, follow links from the home page text to find it)

Thus IF the Honourable John Fahey can pass from Leap DAY (today!) to New Year, without the Tour de France and UCI throwing a stick in the spokes of this new and hopefully more effective monitoring system (which could go across to other sports if overwhelmingly validated), it remains to be seen if their Athlete's Passport will provide the right parameters.

The Athlete's Passport is not
a travel document!

(remember to can click on these photos, it opens
into a separate screen in 'full sized' mode)

Given all the interest that 'doping' has generated, and maybe in spite of the dearth of scientifically accurate, and truly well–written articles, the press that attended were quick to tie certain angles together.

WADAwatch had published, the preceding Friday, an article titled 'Five Easy Questions for John Fahey', and this article seeks to provide the appropriate responses, either directly from our questions, directly from the multiple presentations, or by gleaning appropriate comments from the responses directed to the journalists in the audience. The five questions (summarized) covered:

1. WADA laboratory standardization vis–à–vis anecdotal press information to the contrary (occasionally, or specifically to certain labs);

2. Further or future amendment possibilities to the WADA CODE, subsequent to this last World Conference in Madrid;

3. The likelihood that Article 10.6 requires 'judicial interpretation' to see what it actually means, as an extra 'legal burden' to the first litigated Athletes whose legal defense must 'carry the water' for WADA's repeated opportunity, and now lost chance, to actually offer a 'legal definition' of what is 'Aggravating Circumstances';

4. Why France is not in violation of WADA CODE Article 15.4, on Mutual Recognition, for its secondary litigation against Floyd Landis, during and after the USADA process was initiated and decided (although still pending appeal);

5. The need, somewhere between WADA, its Signatories, and the International Olympic Committee, to draft a clear set of rules for Athletes, outlining their risks as members of teams, in the case where (Marion Jones) one participant may be found to be doped, yet the others are under no legal suspicion or suspension for that pertinent participation.
   

WADAwatch requests your indulgence; if errors are found we will certainly provide an updated article noting any corrections.

Laboratory standardization

Unfortunately, this issue was not directly discussed.

However, the 'undercurrent' provided by discussions of the panoply of measures being taken in combatting doping, appear to WADAwatch to be somewhat an admission that the science of medicine favors the cheating side.

The adage of our times is 'Law follows science' is never clearer than in this field, as it is easier to 'guinea pig' the Athletes who are seeking advantage, and harder for the scientists that must, of course, take time to cautiously determine proper testing methodologies, standardize the tests and publish, and then begin busting the guilty parties.

Marion Jones' history of successful evasion, throughout her career, of some 180–plus tests, is as good an example (or as sad...) of the need to augment capacities to measure biomarkers (blood or urine components), and has led to the abovementioned Athlete's Passport.

Further CODE revisions

WADAwatch asked David Howman, WADA's Director General, about the capacity of this organization to re-open CODE drafting, if and when it felt necessary, whether through feedback or 'judicial interpretation'; would it take another four years, until another presumed 'World Conference' had been called?

NB: The First World Conference on Doping in Sport was in 1999, in Lausanne, Switzerland (home of the IOC); the Second Conference was held in Copenhagen, Denmark, and the Third Conference was last November in Madrid, Spain.

Howman smiled and replied to the effect that, 'it appeared to be a trend, didn't it?', but that there really wasn't a formal requirement for a WCDS every four years. He continued by stressing that he wanted the CODE, as now modified and accepted, to be implemented to see where it had weaknesses, or success.

10.6 Aggravated Circumstances

In a separate follow-up to some other press questions, WADAwatch asked Howman again, if the lack of the redrafted CODE, with this entirely new article, didn't prejudice against any Athlete whose first litigation would help WADA achieve the definition they've chosen (in three redrafts) not to include, because: a- it poses an unfair financial burden on that first litigant to argue to CAS (Since it would be impossible to use a National ADO Decision as precedent-setting) what WADA's Article 10.6 DOES mean legally, and b- that CAS opinion could fall AGAINST WADA; did they relish incurring that risk?

Howman, who's far higher in his legal career (far more diplomas, than 'we WADAwatchers', definitely) emphasized, and rightly so, that WADA wasn't necessarily 'out to win' EVERY litigation; he stated that 'seeing justice prevail' was more important than whether WADA won or not.

WADAwatch takes heart in hearing those words, but of course it's a phrase that must be put to the test: ample cases in the past seemed to tend towards 'grasping at judicial straws', by seeking appeals from Federation decisions where, for one example, a national Federation was not a Signatory of WADA.

Future coverage of WADA's litigation excursions will remain a strong facet of WADAwatch.

15.4 Mutual Recognition

It's not embarrassing to admit a bit of nervousness, when asking these highly professional WADA officials about what appears to be, and which WADAwatch has described as, an 'outlaw decision' from the French AFLD, the Agence française pour le lutte contre le dopage.

In a rare gesture of discretion, WADAwatch won't reveal who muttered a clearly audible 'Oh, Jesus!' into his microphone.

David Howman did respond, afterwards, to our question concerning Floyd Landis' hearings and decisions in the USA. That judicial procedure was undertaken under the proper guise of WADA, UCI and the applicable US regulations from USA Cycling and USADA, with evidence from the French laboratory formally named the LNDD.

David's response was brief and (IWwHO) deflecting this inquiry off the scene, indicating that it was 'done under their previous law', and thus 'not in conflict with the US process'.

WADAwatch has sought from WADA, earlier today, a precision to that response.

It shouldn't be allowed, under Article 15.4, that a cyclist who's been suspended in the USA, faces another Signatory's disciplinary process, period 'point finale'. See 'BAFFLED by AFLD: an afterword' or 'Paths of GLORI (-ous French Failure)'

France could run twenty different Floyd Landis proceedings, under any law it chose, during or after USADA had its winning case decided (while the dissent from Chris Campbell distinguished itself in the Sports Law legal Hall of Fame by branding, in his very first sentence, the French lab (and thus its evidence) as being 'untrustworthy'): not one instance can be claimed that this would be (in our opinion) anything BUT an 'outlaw' process.

Stay tuned...

Retrospective Rulemaking for
Team mates of 'convicted dopers'

WADAwatchers, sometimes there's not enough day in a day, to get answers to every question. Some, like discussing what to do with the team mates of Marion Jones, now that she's confessed. We're the first to admit that this question may be better off being addressed to the International Olympic Committee.

One aspect pertinent, and for which most people would be grateful to learn, is that WADA reminded our audience that it has always had, since publishing the first CODE in 2003, a definition of Teams to be:

“a sport in which the substitution of players is permitted during a Competition.

Thus relay teams, cycling teams, crew teams, freestyle water ballet teams, are NOT TEAMS. (We're not sure if we know or if WADA knows precisely what those multi-person, event-participants are going to be defined, but it could be another case of 'judicial interpretation'...

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This week is drawing to a close, and there is much more to come from this interesting Symposium. Come back Tuesday and see what more came from Lausanne...

Where will WADA be, On LEAP DAY 2012?

............@............WADAwatch

© 2008 ZENmud productions