The Beau-jo (Lab stats) Nouveau est arrivée

[Edited twice to reformulate our own massive math errors, from
cross-references to 'Olympic' or 'Overall' statistics: we'll
accept any offers of editing on math... and to discuss Footnote 2 Ww]

On request from a correspondent, WADAwatch is thinking about 'Atypical Findings', that bear influence in WADA's 2008 Laboratory Statistics Report...

From the Laboratory Statistics Report 2008:

“Atypical Finding” is defined in the World Anti-Doping Code as “a report from a laboratory or other WADA-approved entity which requires further investigation as provided by the International Standard for Laboratories or related Technical Documents prior to the determination of an Adverse Analytical Finding.” Atypical Findings may correspond to multiple measurements performed on the same Athlete, such as in longitudinal studies on testosterone.

Legally, there seems to be no justification for any inclusion of 'Atypical Findings' within that 2008 Report, for the simple reason that 'Atypical Findings' were never a part of the 2004 International Standards for Laboratories (ISL).

As the ISL 2009 and Code 2009 first took effect in January 2009, one would think two alternatives were pertinently apt: a) that WADA would include a footnote in the Lab Report cited above, which offers its reasoning for inclusion of a statistical measurements that isn't legally in force; b) that the inclusion of AF statistics would not appear before the Lab Report 2009, which of course will be issued in the fourth quarter of 2010.

But that procedural anomoly ignores the series of deeper, substantive problems that lay within the 'Definition' itself. And these go to our least favourite WADA problem, recurring regularly within its legal Documents: the language.

There is first one term that grates our senses, being this:

“... a report from a laboratory or other WADA-approved entity...”

There are thousands of laboratories around the world, and there are 33 (currently) WADA-accredited laboratories. So we have no rational reason for this ambiguous drafting WADA 'carefully' chose to make official. It would have been so easy, and preferable, to write and approve the following:

“... a report from any of the current WADA-accredited
laboratories or such entities as receive ad hoc or official
approval from WADA for the specific time period or event, which...”

Beware, Athletes under WADA's guidance: there's more 'judicial interpretation' en route, which is liable to expand your legal costs resulting from any CAS, NADO or Federation disciplinary procedures against you, if the Atypical Finding 'definition' is a factor in your case. We've chosen to 'bracket' the 'definition', because we spent a good part of this weekend trying to really define what 'IS' an AF.

We still don't 'know'...

The 2009 Code Definition, which you see above, incorporates the 2009 ISL 'definition': they are identical. That means, by reference from the Code, inquisitive Athletes or others (people that are bored on a Sunday afternoon?), are constrained to 'follow the breadcrumbs'. Since the wording of each 'definition' is identical, all we know is that an AF equals 'a report'... we aren't yet aware of the basis for that 'Atypical' status. The researcher seeks the Tech Docs, therefore, to elucidate the Code and ISL Definitions.

The WADA system has nine downloadable Tech Docs (two of which actually take effect in five weeks: 1 January 2010): they are all listed here. Another one, listed twice, will be superseded on 1 January, as well. The Tech Docs are listed (here) in two sets: those which mention 'Atypical' and those without mention (each set, in chronological order of first 'in force' date):

• TD2009LDC (January 01, 2009: on laboratory documentation packages for AAF cases):

this TDC only mentions Atypical Findings in the sense that a the LDC provides a 'summary table... [with] criteria utilized to identify and/or quantitate the target substance(s) to report [an AAF or AF];

• TD2009EPO (September 21, 2009: on harmonization of the method for the identification of recombinant erythropoietins (i.e. Epoetins) and analogues (e.g. Darbepoetin and Methoxypolyethylene glycol-epoetin beta)):

this document only mentions “... may ... be an atypical profile (shifted towards the basic area) ... additional scientific evidence may be needed to arrive at a final conclusion.” (although that continues, suggesting complementary processes to “... confirm the exogenous or endogenous origin of the finding.”).

• TD2009MPRL (January 1, 2010: on Minimum Required Performance Levels for detection of Prohibited Substances):

the three-page document concludes with this catch-all phrase “At any time relevant anti-doping organizations may conduct any additional investigations as they deem appropriate in assessing an atypical sample.”

• TD2009NA (January 01, 2010: Harmonization of analysis and reporting of 19-norsteroids related to nandralone):

this document states: “If the Sample does meet one of the conditions discussed in sections 3.3 and 3.4 below, then it shall be reported as an Atypical Finding and both the Testing Authority and WADA shall be notified of the results as a comment in the test report.”

As the following TD have no reference to the word 'atypical' they are merely listed by title:

• TD2003IDCR (January 1, 2004: Identification criteria for qualitative assays incorporating chromatography and mass spectometry);
  
  

• TD2004EAAS (August 13, 2004: Reporting and evaluation guidance for testosterone, epitestosterone, T/E ratio and other endogenous steroids);
  
  

• TD2004NA (August 13, 2004: will be superseded by above 2009NA, with title change (above includes “19-norsteroids related to” ));
  
  

• TD2009MRPL (January 01, 2009: will be superseded by above TD2009MRPL);
  
  

• TD2009LCOC (January 01, 2009: Laboratory Internal Chain of Custody).

Now we remind our audience we're still trying to find out what 'IS' an 'Atypical Finding'.

Frankly, answering that question is only clear, if we are asked what an AF is for 19-norsteroids related to nandralone, next year. Sections 3.3 reminds us of female subject protocols, and §3.4 discusses 'unstable urine' Samples. The AF would relate to findings for women, or when the Sample shows signs of instability. So an AF in NA is related to either pregnant woman (presuming our readers actually refer to the provided TD links), or unstable urine samples. This opens a door, when someone delays or poorly packages a Urine Sample for transport, that an Athlete could be found 'Atypical', and then 'positive', if the Laboratory refuses or ignores (or never receives) evidence of bad transport.

One is absolutely left in wonder, legally, at the realization that an AF may be just what any lab director wants it to be, based on the catch-all phrase in the 2010-effective Tech Doc on Minimum Required Performance Levels: most of the other Tech Docs do not add any coherent (and consistent!) definition, which should be complete and identical to those in both the WADC or ISL. Notably, however, the TechDoc on Measurement Uncertainty leaves 'AFs' undefined.

With such a legal dilemma, procedurally and substantively, we now can turn to the 2008 Lab Statistical Report, and look at the precocious inclusion of this data.

We've written before about the 'growth industry' aspects of anti-doping control, assuring our readers that we recognize that fact's validity, and still hoping that WADA goes 'black and white' as to the control of laboratories, NADOs and/or Anti-doping Agencies. The first statistic shown, defines that growth: 'Olympic Sports testing' grew at 15.8pc, while 'non-Olympic Sports testing' grew at 46.8pc, providing an overall industry progression of 22.7pc (actual 'A Sample analyses' hit the global sum of 274,615).

Of the 202,067 Olympic Sports A Samples analyzed, there were 1,974 AAFs, yet a total of 3,715 'findings' were counted. This is claimed to be an increase of 10.1pc in findings from 2007. However, the associated footnote reminds, under the column comparing 2008 to 2007, that the AF stats are included.

However, astute researchers find that AF, per se, are not included in the 2007 Report (whether they should actually be in the 2008 report, as they were not a legally-supported item until 'in force', remains on the table). A second footnote (FN 2), also reminds us in the 2008 Statistics Report, that it shows 2003-2007 AAF numbers, which 'include findings that are defined in the 2008 Report as Atypical Findings'. This becomes so very disconcerting: could someone at WADA please inform Athletes when an AAF IS an AAF, and when an AAF is NOT an AAF? What their legal bases are, for acting as nonchalantly as they appear in this report, are not those for which a Quigley-Rule-based CAS Panel would express its admiration.

One thinks that WADA Signatories would request finite conclusions, finite inclusions, in the official reports that are 'signed-off' by the Secretariat for publication, and we wonder how anyone would ever know if their previous AAF was legally invalid, based on footnote text from WADA found in this report? Last point... if 'some' pre-2008 (actually pre-2009, but it's WADA in the driver's seat on this legal SNAFU) AAF actually were AF, but preceded any legal obligation to be announced as AF, does WADA have a legal and moral obligation to assign numbers (quantitative) to the assertion in FN 2? Does WADA want the world to know, or not, if Athletes were prosecuted (persecuted?) by false AAF?

It thus appears that WADA is claiming a 15pc growth in total findings, only justifiable when including the 2008 AF numbers. Overall, there were 2,956 AAF in 2008, with 5,o61 'findings'. In the 2007 Lab Report, there were 4,402 AAF. Now we presume there is a rational reason for WADA's assertion of 'growth', yet 2956/4402 presents a different ratio to this bad mathematician.

We believe, on this singular 'global' statistic, that it is more realistic to state that AAF went down, in 2008, by a factor of nearly 32pc. And if we concede WADA's inclusion of the precocious AF statistics (obviously the numbers are 5,061 – 2,956 = 2,105 AF), we find a claim of '15pc growth from 2007' that truly reflects (in the 'global' sense') odd logic: we see premature inclusion of a legally-unfounded component, provoking odd, 'new-math' conclusions. By inclusion of the legally-unfounded AF component, the stats work as WADA claims. Without AF in the equation, the reduction in AAF is obvious. And WADA should be trumpeting its efforts.

As a percentage of total testing, the 'facts' seem to prove that WADA is being effective, even though its mathematical conclusions tend to show the opposite: why is this, or where is our math analysis wrong? In 2008, AAF percentages 'overall' were 1.08pc of all A Samples. Including the AF component, we have 1.84pc. In 2007, the annual Lab Report, regarding AAF stats, offers 1.97pc (?=?). From a 2007 level of roughly 2pc, the AAF number has nearly been cut in half, and inclusion of AF renders a five percent drop. Yet FN 2 destroys any analytical comparisons, in our view.

If the 'numbers' don't lie, conclusions flock into WADAwatch's cogitative center. Are the Athletes, as is usually claimed, slipping away from Laboratory analysis due to ever-newer medications, some even not out of Phase II clinical trials (as we reported via AFLD's claim in Le Monde: see AFLD Steps Up a Notch)? Or are they 'cleaner' (but 'Atypical'??)? Wouldn't WADA want the Athletes to receive Kudos for cleaning up their sports?

Is there a justification for examining, as Pierre Bordry suggested to WADA president John Fahey, “The limits of classic antidopage controls, in the face of the growing sophistication of doping activities...”? We would agree, in questioning the continuous preoccupation with end users, instead of attacking the traffickers of these boutique products. If an Athlete is receiving a Phase II Clinical Trial product, which are not yet on the publicly-available market, are not yet subject to WADA-approved (or Nature-approved, or JAMA, etc., for that matter) laboratory analyses, the focus should be on the Pharmaceutical Industry, and their sports-fan research staff driving Maseratis (non?).

When a country's authorities (police, border/Customs agents) bust some smuggler with 4kilos of Afghani hashish, heroin or Peruvian cocaine, they deprive a portion of the 'end market' with a percentage of available 'stock'. The market, which in sports doping ends at the Athlete, begins 'far far away'.

So, for once in WADAwatch's existence, we could find ourselves agreeing with Monsieur Bordry, that WADA should be re-prioritizing, re-focussing a portion of its fight. And improving, or clarifying its mathematical analysis of its family's performance that equates with our vision of (minimalist at that) Reality in Statistics... which parallels our focus on the 'Beauty of Science.'

To be continued.... "And.... action!"

..........@......... WADAWATCH
one hundred percent pure

copyright 2009 Ww

WADA true story in Black and White...

As penance for a limited case of 'writers' poetic license' last week, WADAwatch delved into recent documents published on WADA's web site, to refresh our memory on the Agency's progress towards 'compliance' within its family of Signatories. In our previous article, we'd relied (presumptuously) on personal memory from the three—day WADA World Conference in Madrid, in November of 2007.


At that conference, one of the speakers emphasized the shift at WADA towards 'Signatories' compliance' regarding NADO and IF conformity with the Code, and the underlying International Standards (as opposed to 'compliance' in joining WADA and signing the UNESCO Convention). Our error was in remembering the 'shift' as 'initiation', and thus a substantive argument we raised was not overly erroneous, yet came out perhaps a bit too 'hyperbolic' in its presentation. Due to those personal memories, our WADAwatch article mentioned a "'first series' of compliance reports..." where a phrase such as “... first series of post–Madrid compliance reports' might have better articulated the thoughts regarding WADA and the Italian football Federation. However, research shows we were not far off the mark, as will be revealed after a summary of the Italian Football case that prompted those remarks.


The appeal by WADA in the CONI, FIGC, Mannini and Possanzini case became an unusual case, which was originally decided by CAS in January, in WADA's favour, ordering each of the Italian football players to a one–year suspension. An unusual case, for its post–award aspect: the CAS Arbitration Panel Award was revisited by its Panellists, upon request and submission of the losing parties. That rare possibility was based on an accord reached between the Panel and the parties earlier this year. The second result was based on the presentation of five 'arguments' by FIGC and the players regarding 'new evidence', only one of which was upheld.


The 'First Award', published on January 9, 2009, came from yet–another WADA appeal, parrying its universal right based on WADC (2003) Article 13.2.3 (the 2009 edition has slight semantic changes); WADA contended that this case displayed a clear violation of Code Article 2.3: the players had “unduly refused to submit to urine sample collection on December 1, 2007”. The Italian CONI decision had found the Players 'guilty' of a 'delay in providing blood and urine samples' (from this CAS Panel decision of 27 July 2009) under the applicable Italian FIGC rules, which the CAS increased to a one–year suspension for each of the Italian players, based on WADA's winning arguments.


We postulated, in our prior article, that WADA's actions in appealing the 'light suspensions' were misled. By appealing against the fifteen–day suspension, WADA was disregarding (as we believe is proven in the 'Final' Award) the authentic problem, which was clarified through the recent dénouement of this entire quasi–legal process. That authentic problem was revealed through the one argument that this CAS Panel found legally acceptable (for the purpose of revisiting its First Award): the effect of the 'standards and practice' within the Italian football anti–doping community, which reflected on the capacity of Players to conform to the rules in effect.


We postulated that it was through 'compliance', rather than another 'appeal against Athletes', that WADA would have come to a better outcome, and wish to elaborate herein how WADA should task itself to perform this action, thereby relieving itself of unnecessary and unproductive financial burdens, and meanwhile relieving to a significant degree the burden on those Athletes against whom WADA apparently prefers to continue evoking injudicious wrath and punishment. But evidently WADA presumes differently – the following quoted text comes from their web site:

One way WADA achieves this is by closely monitoring doping cases and exercising its right of appeal to the Court of Arbitration for Sport for cases under the jurisdiction of organizations that have implemented the Code.

Whether or not Athletes or Players actually unduly refuse WADA, IF or ADO Regulations, disciplinary action against them creates headlines that impute against the honesty of the Players, casts doubts about their actions (“unduly refusing to give a doping control sample? How dare they!”), engages a litany of legal counsel, and ties up 'quasi–judicial resources' available from CAS for these high–level arbitrations. Yet, years after scandal–mongering headlines fade, the truth hardly rectifies the situation Athletes face; and that truth rarely reaches the thousands or millions who swallowed the original story hook, line and sinker. Worse comes when the sporting press claims that they 'got off on a technicality'...


Students of American film may remember the 1960s nuclear—dispute film... FAIL—SAFE.


Suffice to remind our audience(s) that, in the title itself of that Henry Fonda film of 'nuclear brinkmanship' between the USA and USSR, comes a concept that WADA ought to incorporate in its Legal Office (wherever the initiative is based, to commence a Code Article 13.2.3 Appeal action against any Signatory's AAF final determination) – that there comes a point to reach a GO // NO–GO decision: whether to 'appeal, or not'.


Elucidating the concept of compliance is crucial to analysing this decision point, as is our favourite CAS Award ruling: the Quigley Rule. Without 'compliance', one may make legal presumptions that can be invalidated, in the end. Mannini and Possanzini, the two 'accused' Italian football players, are living proof of the validity of this thesis. Backing up through a 'Time Tunnel', one could ascertain one or two perfect 'Fail—Safe' points in the cumulated Mannini–Possanzini disciplinary action(s), where a GO // NO–GO moment was not discerned.


In Italy, had the FIGC Anti–Doping Commission reviewed thoroughly the request for disciplinary action against these two Italian football players, and noted how 'standards and customs' created a Quigley–esque regulatory cacophony in which the Players were now embroiled, the matter of their 'discipline' could have ended there. This could have been rectified during that period of time noted by the CAS 'Second Award': from “... July 2005, when the new rules of CONI entered into force, until the beginning of 2008, the anti-doping authorities were not properly and consistently enforcing the new rules and the requirements laid down in Article 6.2 of the IOCA and Section 5.4.1(e) of WADA's International Standard for Testing”. The citation sounds much like a 'compliance' issue: yet WADA took an appeal action against the Players' 'light' suspension, rather than determine that systemic 'compliance' failure was more at fault.


With no evident “Fail—Safe analysis” in its tool belt, WADA and the adrenalin–charged Italian national prosecutors seem impervious, and disregard the very applicable 'viewpoint' of Athletes, many of whom are extremely supportive, and trying to conform to the Testing and Analysis methods of WADA. In fact, WADA (or FIGC) might have brought action against the “team coach and the President of Brescia” (Luigi Corioni), who seemed, from the descriptions provided by CAS' 'Final' Award, to be guiltier of 'unduly refusing' the Players' presence at the Doping Control station.


Yet perhaps the stronger argument is that a strong 'Fail—Safe analysis' would have suggested that someone liaising between FIFA, WADA, FIGC and CONI should have noted the discrepancies that were so very evident (to this CAS Panel). If the DCOs and the Players were unaware exactly what constitutes “the applicable doping-control procedure and the exact scope of the athletes’ duties”, which “could certainly not be readily understood by the Players without them being informed and educated as to the rules by the FICG and/or by the Players’ Union” (quoting the CAS 'Final' Award), then some entity's compliance with WADA appears to have failed. WADA has an 'Independent Observers' program (which has "participated in approximately 30 major events" since 2000 (some 3.75 per year?) with a "15-member IO team"); perhaps this team should be augmented - to include full compliance analysis for dues-paying IFs and other Signatories?


It cannot possibly be, that CAS functions within the umbrella of organisms spawned by the Olympic Movement (as was WADA) to remind constantly the Signatories of the world anti—doping family that they are failing to comply with the very system of Regulations they have demanded, authorised and implemented. Yet in the fourteen years or so since the Quigley ruling was announced, it seems that the hundreds of attorneys working throughout the International Sporting community have not applied 'due diligence' to help their clients heed such clear and clairvoyant advice. A reminder, now, that he who lost the USA Shooting–Quigley ruling was one of the principle authors of the WADA Code (American attorney Richard Young), and apparently a great proponent of 'judicial interpretation': our favourite 'tax' on Athletes. But is this not what WADA prefers? Taxing 'Athletes' through litigation, to enforce IF compliance?


Compliance and noncompliance are of such sufficient stature that the WADC ensures that entities found in noncompliance are afforded their own right of appeal. Article 13.5 delineates this:

Appeals from Decisions under Part Three and Part Four of the Code

With respect to a WADA report of noncompliance under Article 23.4.5 or any Consequences imposed under Part Three (Roles and Responsibilities) of the Code, the entity to which the WADA report pertains or upon which Consequences are imposed under Part Three of the Code shall have the right to appeal exclusively to CAS in accordance with the provisions applicable before such court.

Thus the question offered above, forces repetition: years after Article 13.5 was written and agreed, is it now politically more expeditious not to bring a noncompliance report against an actual Signatory, yet announcing such via an 'attack' (appeal) against Players who, in essence, 'do not know better' (distilled from the CAS Award)? This question reverberates throughout a case such as Mannini and Possanzini.


A report found on WADA's web site reveals relatively recent (22 November 2008) status as to compliance by Signatories to the exigencies of WADA (note the URL shows it to have been placed online in May 2009). The report is the Minutes of the WADA Executive Committee Meeting, from Montreal, Canada (hereafter “ExCom”). Turns out that WADAwatch was not necessarily so 'guilty' of mistaking the 'compliance' time line, to demands in the Code and International Standards. Beginning on page 19 (pdf and doc page) is a discussion of the WADC. Report Section 7.1 offers discussions regarding the Code compliance and implementation report. Ending on page 31, this Section 7.1 takes up 13 pages (25 percent) of the 51–page ExCom report.


Reading this thoroughly shows that WADA had originally intended the first IF compliance reports to be received in 2006 ('two years' after the Code was in force in 2004), yet this had been extended for two years, to 2008 (coinciding marvellously with the extensive, exhausting Floyd Landis/Tour de France affair). The session reported appears to be a second discussion of the 2008 report (ExCom p. 20).


WADAwatch saves its readers' time, in gleaning the salient points from Section 7.1 of this ExCom Report. Those boiled down to several substantive issues, leading with the major 'factor' that is preventing total compliance by Signatories: out–of–competition testing. More than a few entities (IFs for the most part) appear to be nearing potential 'noncompliance' determinations; one can presume a majority of these to be the less well–financed entities. However even in the Mannini and Possanzini case, one of the main problems was deciphering whether post–match random testing was 'in–competition' or 'out–of–competition' Testing. Another factor for noncompliance appears to be the tardy payment(s) of dues (to which WADAwatch has alluded previously): the US delegate sought potential use of a status of 'compliant pending payment' rather than 'noncompliant' (for his government? Unclear...).


A third 'situation', as WADA strove earnestly to promote and clear its tardy (or recalcitrant?) stakeholders as 'compliant', reported that it was still doing so under the 2003 Code, when the 2009 Code agreed in Madrid in November 2007, was mere weeks away from being effective: one had to choose a cut–off point for seeking compliance with a soon–obsolete Code. Another very relevant item, discussed how to declare Signatories 'compliant', if declared 'noncompliant' after they rectified the noted deficiencies ; would a 'black–marked' IF have to wait two years or could it be 'rehabilitated' faster, through which WADA organ?


The Secretariat noted that it had spent (for 2008, or budgeted for 2009? Unclear...) some $600K (ExCom p. 30) on this work, and queried as to how much further effort the Secretariat should expend to seek compliance under the 'ancient' Code?
(The answer was evidently 'very little'...)


Director General Howman suggested waiting until 2010 for monitoring. Apparently what hadn't occurred between 2006 and 2008 was perhaps being suggested to be pushed back to six years from the WADA Code's first acceptance. Further anecdotal evidence of 'compliance' regarded IFs who faced hardships... such as a short reference, which we expand into: how was the sled—dog Federation to deal with the expenses associated with sending a DCO 'unannounced' across the various northern (or southern) countries, to 'surprise' mushers and dogs (Testing involves both) for out–of–competition testing? And in Russia, what to do when DCOs had “... been taken into custody and doping control samples had been taken away from them....” (ExCom p. 26)?

Obviously 'compliance' is an item that has opportunities to offer WADA interesting, compromising political situations, requiring all the diplomatic savvy they can muster. Gratitude is extended to Executive Committee Chairman (WADA President Fahey), for noting that WADA had “certainly watered down the black and white approach that many believed should have been taken”. Was his pointed indictment against his predecessor, former president Dick Pound? WADA was apparently reflecting upon “... how many last warnings should be given” (ExCom p. 29).

We note that this form of approach – black or white – has never been an obstacle when WADA or its Signatories unite the world's sporting press against Athletes, whether legally (according to Article 7 Results Management), or prematurely and unlawfully via the interminable series of leaked A Sample results published time and again (Mikel Astarloza being the latest example). After all, Dick Pound 'built' WADA into what it is, via leaks offered or repeated, and prejudicial statements regarding Athletes. According to Pound, any Athlete's actions were 'black' (recalling the IOC letter to Dick Pound upon request of Lance Armstrong, suggesting a bit of 'retenu' ('restraint') would be healthy for someone holding the post of President of WADA), while the 'Anti–Doping system' was lily white...


Strict liability always existed at WADA against Athletes, de jure and de facto. It also exists against Laboratories, within the Code as written, that fail their job (WADC 2009 Article 6.4), and Signatories who fail to comply (WADC 2009 Article 13.5 (above)). Yet, when offered opportunities to avail itself of objectivity and neutrality, to use its Code and International Standards against other 'stakeholders' besides the Athletes, WADA seems as soft and fuzzy (grey?) as any politically–driven Intergovernmental Organization, such as within the UN System.


One participating WADA official (VP Ljungqvist) reminded the ExCom of a potential rational for the 'grey', with this observation:

To be declared non-compliant was probably a very serious decision with respect to those being declared non-compliant, not least for IFs, but certainly for NADOs, this meant that they were being deprived of some rights to be part of the Olympic Games, which was a serious consequence, as everybody could understand; therefore, he felt that it was necessary to follow up on the non-compliant organisations very carefully and within a short timeframe.

Professor Ljungkvist is correct: to be declared 'noncompliant' as a WADA Signatory, bears somewhat the same stigma as to be an Athlete declared 'positive': potential 'banishment' from Olympic Games, for one example.


WADA has much work ahead, to convince its Signatories and member States (UNESCO's International Convention Against Doping in Sport had 102 States–members, as of this ExCom 2008 report) to find the means to aid small–revenue IFs to comply with out–of–competition testing (a Ww suggestion (no charge!): 'partnering' a small IF to a worldwide IF could allow the smaller partner to be billed (with or without subsidies...) for services rendered?). Regarding dues collections or preventing the arrest of DCOs in certain countries such as Russia are political situations, which WADAwatch is loath to address. This late–2008 ExCom report also reveals that new staff has been added to WADA's offices in Lausanne, Switzerland (ExCom p.28), to aid with IF compliance, and this act should help to add momentum.


Evidently, according to this Report, WADA finally has an concept in the incubator, regarding Laboratory discipline (whether falling under 'compliance' or 'harmonization' is for readers' interpretation), years after WADA's Code was implemented, and more than a year after WADAwatch pointed out this gaping irregularity. Director General Howman offered this comment to the ExCom on that item:

... in relation to the disciplinary committee for laboratories mentioned at the September meeting. There had been a request for WADA to prepare the rules for such a body. The management had done that, and a paper had been tabled, detailing the process to be followed in relation to this specific committee. It was working pursuant to the ISL, and was not a matter requiring formal Executive Committee approval [.....] This was to deal with situations whereby accredited laboratories were not performing properly and were therefore subject to potential or partial suspension and, rather than leave this responsibility to the Laboratory Committee, which comprised experts, he felt that there should be a proper process. Secondly, he had wanted make sure that everything was established in a proper legal fashion.

The above text shows a welcome change from the current limbo status under the Code and ISL, where WADA Laboratories may perform below Agency standards, and yet remain free of consequences, due to the lacunae derived from the Code itself.


See the Code Article(s):

• §6.4 for the strict liability on labs,
• §§7.1—7.2 for ADO or IF review of LDP evidence to spot 'departures' prior to use of that evidence against Athletes,
• §13.6 for Laboratory appeals (from heretofore 'mystic justice').

Or the ISL:

• §4.4.11.2 Suspension of accreditation: listing many grounds, but not 'departure' from an LDP;
• §4.4.11.3 Revocation of accreditation: listing many grounds, more egregious in deviations from professional comportment than the above.

Whether WADA can rein–in its apparent 'gaspillage' (“waste”) of legal funds that, perhaps, are one budgetary reason depriving it of the means to seek compliance by IFs, prior to harvesting yet another losing appeal from CAS (such as the Hamilton appeal? seeking a 'Lifetime banishment', when the Regulation clearly states 'Eight years to life'?), remains to be witnessed. The CAS, whose Panels appear to have rediscovered the rationale in Quigley, offers timely guidance, through its justified reopening of the Mannini and Possanzini case, and indications as to the actions that should be undertaken by WADA president Fahey. Somewhat like USA President Obama, Mr Fahey has been elected to ensure a steady ship emerges from a turbulent era; in Fahey's case, the pendulum had swung from Pound to Armstrong, from Pound to Landis... from noncompliance towards... tick–tock.

With the Mannini and Possanzini decision, one CAS Panel recalled that institution's obligation to address and present neutral and objective Awards, derived from the Regulations as they exist (against Athletes), when evidence conforms to the parameters of those Regulations, at the same time a strong subliminal message appears, urging 'compliance'. One hopes such a trend has longevity... and is heard.

* * * * * * * * * * * * * * *

Always a pleasure to revert to the Floyd Landis case. Perusing this same November 2008 WADA ExCom report, we came across two statements transcribed from the Committee's Chairman (Mr Fahey), regarding that period prior to the settlement of Landis' complaint in US Federal Court:

The Landis case was one that was still not complete, as Mr Landis had challenged the CAS decision in the federal court in California. He had been in dialogue with WADA’s lawyers in Washington and with USADA, and was confident that there would be an appropriate resolution of those proceedings within the coming days. He preferred not to report further, as the discussions were confidential, but he assured the members that this would lead to a resolution with which everybody was comfortable, and there would be no backing down from any principle or from the decision taken by the CAS. He did not need to ask for permission, but advised the members that he would continue to work to ensure that there was a resolution. It would not cost WADA a significant amount in terms of legal fees, and he was sure that the chairman of the Finance and Administration Committee would be relieved to hear that. (p.4)

[.....]

... he did not think that WADA would spend as much on litigation the following year, and he sincerely hoped that the message that had been sent out loud and clear from the CAS in relation to Mr Landis would mean that athletes would understand that expensive attacks on the system, which was what Landis had done, would not be possible. The message was clear that the system was there and worked properly. (p.16)

Amen...


Let the record show (it didn't in these ExCom minutes) that Mr Landis questioned (via his Federal Court case submission) the apparent and inherent 'conflicts of interest' that accumulate from the use of a 'small group of insiders' in a rather closed quasi–monopolistic legal system. The globally implemented sports–arbitration system was alleged, by Landis' attorneys, to allow a 'revolving door' perpetuation of legal officers acting as Arbitrators (thus Judge and Jury over Athletes) one week, in one arbitration, and switching hats the next week, to appear as Advocates (representing IFs or ADOs) in front of their fellow CAS–listed confrères (fellow Arbitrators).

SIDEBAR: One wonders how much longer the Court of Arbitration for Sport system – operating an arbitration roster with the “small group of” legal “insiders” – can be sustained, status quo, without constructive, radical change, such as the elimination of the 'revolving door' (as Ww described it here). If the associated attorneys were offered, through newly–implemented restrictions, a rational choice: one might choose to Arbitrate, or to Advocate, but no longer be entitled to earn a living doing both, great strides would be achieved that actually help Athletes when facing an imbalanced quasi–juridical system. Another option comes through offering greater disclosure of Arbitrators' past arbitration involvements to the Athletes – whose cases are decided by what is now, in effect, a professional, legal 'fraternity'.

The ExCom Report also did not reveal what WADA considers 'not... a significant' amount for those 'Phase III' legal fees, since the accumulated fees (to Richard Young and others) attributed to USADA and WADA in their 'war' against Landis (via AAA and CAS hearings) were in the several millions of dollars (all for a simple case, as Young said in his opening statement in the Phase I hearing in California).

Pyrrhic victory?

How many WADA IF compliance reports could not be funded or prioritized, between 2006 and 2008, due to the multimillion dollar, tunnel–visionary focus by WADA, sustaining USADA's legal crusade, and the LNDD's level of evidentiary (in–)competence against Floyd Landis? One guesses that WADA's “chairman of the Finance and Administration Committee” may already be recovering from the near–ulcerous conditions he suffered, imposed by the previous WADA president, in the battle waged against Floyd, and finally concluded under Fahey. He is on record, in this ExCom Report, stating that the Landis case had a clear message for Athletes: that “the system... worked properly” – no one can disagree, although some observers' interpretations could be diametrically opposite the implied conclusion...


Unfortunately, Quigley reminds us again that the world anti–doping system that the Honourable John Fahey now runs was put together without respecting legal priorities:

... the rule-makers and the rule-appliers must
begin by being strict with themselves.

International Federation are rule-makers and the rule-appliers, yet their compliance has enjoyed a four–to–five year hiatus... and may finally be achieved in 2010 (WADAwatch is very mindful that its implementation is complex, and burdensome – especially on small IFs that must finance reams of paperwork (on TUEs) and scads of voyages (out–of–competition testing) to remain 'compliant'.


Laboratories are definitely the system's leading rule–appliers, along with IF and ADO Doping Control Officers (DCO), and national or Federation–based disciplinary organisms; however disciplinary procedures for labs were under consideration (at last(!)) in the second half of 2008, “...and would be put into place in the coming weeks” (ExCom p. 19). Our only question is – who requested this (?): “There had been a request for WADA to prepare the rules for such a body” (ibid). WADAwatch is one entity that requested such an action (in our submitted Intervention to the Madrid Conference, and in more than twenty WADAwatch articles), but no one is credited in the ExCom Report for this late initiative, which we resoundingly applaud.


And, six years after the WADC and ISL first created the Code and ISL—based strict liability on Laboratories, the situation is apparently no longer being ignored (or is being re–prioritized). With recurrent evidence of ISL violations (especially one WADA—accredited laboratory?) on the record, the day may soon come when all the Stakeholders are playing on that which WADA hopes to achieve: a level playing field.

And that is (Finally?) the

Black and White

..........@.........WADAwatch
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copyright 2009 Ww

Plus ça change, plus c'est la même chose...

Continuing our public service utility at WADAwatch sometimes takes powerful help. Thus it comes as no small pleasure, to read last week's Le Canard Enchainé (LCE), our latest source of pertinent information from within the French political theatre.

In a small article on the paper's 'tidbits' page (mostly those 'we heard from an anonymous source'... type of stories), no less a French authority than Nicolas Sarkozy himself, was interpreted by the authors of this weekly satiric, biting journal, regarding his use of Tour metaphors to stimulate the promotion of Sarkozy's liberal program.

NB: We began writing this while observing the 'Radio-Free Tour' UCI experiment ('remerciements' to FR2 TV) on Bastille Day, the French national holiday. At the same time, FR TV commentators and cameramen were fixated on a side-race: three escargot were attempting to edge out onto the road surface while the breakaway and peleton approached...

The LCE article was entitled (as usual, a WADAwatch translation)...

The Doped of the Elysée (FR: 'dopé)

Communication from Rama Yade, new Secretary of State for Sports, during the Council of Ministers held on July 1. She evoked the fight against doping, three days before the beginning of the Tour de France. Sarkozy jumped on the occasion to recount his childhood memories at age 12, when he enjoyed the 1967 Tour and harvested some autographs from the champions of the epoch. And then he launched into a elegy ('panégyrique'):

“Stop stigmatizing the Tour de France, the world's largest bicycling race!” he said to his ministers. “It is a victim of doping and not a guilty (Ed: party). And while not ignoring the past errors, one must recognize the efforts agreed to by the racers in the matter of controls.”

The Chief of State continued: “The Tour de France, is really a Fête, really a mass event, be on the side of the French. It's because of the Tour that people see and discover what France is.”

And then, regarding [newly appointed Minister of Culture] Frédéric Mitterand, he pursued his thoughts: “Take these sports affairs seriously. Sportsmen, the racing cyclists, are not only people that practice a sport. This [event] goes way above that. At this level of exploit, this is more than sport. This is 'culture'.” (sic). And when a minister of Sports and Culture?

His conclusion: “Take a look at Armstrong, this guy who surmounted cancer, who has won seven Tours and who begins again this year. He's really a courageous guy, in the image of all these cyclists, who battle themselves and competitors just to the most extreme.”

A minister's translation: “In fact, he wanted to transmit to us the following message: 'Be as courageous as Armstrong and the pro cyclists in order to pass my reforms.'”

Little matter the contents of the syringe.

* * * * * * * * * * * * * * * * * * * * * * * *

What makes this story pertinent, and highly informative, is its correlation with other current news, as customarily transmitted via L'Equipe, and emanating from Pierre Bordry, head of l'Agence française du lutte contre le dopage (AFLD).

After the French government's signing of the accord with the UCI for this year's TdF testing controls, and ample warnings that the accord afforded independent 'competence' for the AFLD to institute its own tests...

SIDEBAR: a reminder for the uninitiated, on anti-doping 'legalese': in WADA parlance, 'Testing' is the taking of the Sample (tissue or bodily fluid(s)), by officials, from the Athlete (in competition, here), it's observed division and sealing into Samples A and B, and its secure transfer to the appropriate Laboratory. 'Control' is also used for the sense of Testing. Doping Control Officers are those with the authority to act in this intervention; under the authority of WADA's International Standard for Testing (IST).

'Laboratory analysis' is the (hopefully) scientific, careful, documented receipt, storage, and analysis of the 'A Sample', by very competent scientists, doctors or technicians, with the full knowledge of the legal, scientific and ethical standards that their job entails; these are controlled by the International Standard for Laboratories, and the various Technical Documents. WADAwatch, as much as WADA and other system participants, wouldn't mind a bit of conformity amongst the world's sporting press.

... Pierre Bordry chose the Monday rest day for announcing his agitation (disappointment?) with the UCI testing program, shared with the world widely via RTL. And, bien sûr, M. Bordry did so by stating a classic contradiction, clearly described in an article found in French, in M. Bordry's 'personal press agent', L'EQUIPE. In the interests of public education, WADAwatch provides a translation of that Equipe article (13/07/2009; entitled Bordry: «L'UCI complaisante»):

The Complaisant UCI

“One has the impression of a bit of complacency towards these cyclists.” This is what Pierre Bordry declared Monday on RTL on the subject of the UCI inspectors charged with supervising the antidoping controls. According to the president of the AFLD, the controls are "less professional from the UCI. I am not sure that they're applying the same rules to everyone in identical conditions."

The president of the AFLD nevertheless refused to develop his thought: "I will not say more at this point because I have an intention to discuss these with Pat McQuaid, president of the UCI." "I do not suspect anything at all, we are in a competition of great importance, and the same rule must be applied to everyone," added Pierre Bordry.

The AFLD, sole in charge of controls for the 2008 Tour, is collaborating with the UCI, which is responsible for antidoping controls on the 2009 edition of 'le Grand Boucle' ('Great Buckle'... ring around France) Under virtue of the accord signed the 10 June, the AFLD is the service provider on the Tour, but the French agency can bring about certain unannounced controls. During the race, the riders designated for a control are escorted by chaperones from the finish line just to the point of sample collection. The stage winner and the bearer of the Yellow Jersey are the central concern. Unannounced tests can also be practiced in teams' hotels.

(with AFP: Agence France Presse)

* * * * * * * * * * * * * * * * * * * * * * * *

It saddens WADAwatch to witness a man who seems oblivious to so many different factors, using the power of his station to shoot from the hip in so many directions.

After ASO was chastised by the French Court for Arbitration of Sport (a rare Ww article in French) regarding discrimination against Tom Boonen, an admonishment that contrasted with Minister Bachelot's 'particular' warning, welcoming Lance Armstrong back to his first Tour since 2005, along comes Bordry, to remind the world that he has an insinuation to offer, but that he's not going to make an accusation, because he hasn't talked to the man (Pat McQuaid, UCI president), concerning a situation that is no less his Agency's fault, if it exists.

And as a result, McQuaid has to respond (scroll to 'Testing Questioned') to a flock of press inquiries without any idea of the basis for which this non—accusatory insinuation has generated hundreds of headlines.

So this article is published, as many others prior, not knowing what part of the 'Testing' or 'Control' (or choice of chosen riders? Or this or that...) are the factors that Bordry 'observed' or 'noted', while having contractual authority to simply augment the efforts by instigating AFLD—based tests.

To believe past articles from Le Canard Enchainé, there's a financial reason for ASO instructions to the writers of L'EQUIPE to 'back off' on doping story reporting, which is opposite the WADAwatch position, regarding what certainly appeared to be an internal ASO conflict of interest.

It is in the interests of all parties, that effective, standardized testing methodologies are implemented around the world, in the family of WADA—accredited labs.

Perhaps Bordry's rash remarks, without the 'politesse' of prior conferencing with his contractual partner (UCI, McQuaid), are truly exposing certain lacunae in UCI methodologies. So be it, if true. But coming from a partner in the effort, who didn't have to shout the news across the world, while the ASO/FFC/UCI 'family' is trying to re—establish decent working conditions, only seems like a yellow—card low blow.


Vive le Tour, vive the fight against doping, in a harmonized standardized regime... otherwise: the French say it best: 'The more things change, the more they stay the same'...

..........@.........WADAwatch
one hundred percent pure

copyright 2009 Ww

Riders! On the Tour...

Riders on the Tour...

Riders on the Tour...
Into this house were born;
Into this Lab were thrown:

Like a dog without a bone;
An actor out on loan - Riders on the Tour...
(Parody of the Doors: "Riders on the Storm")

Riders of the Tour!

The Tour de France beckons (unless you are with Astana: then this won't concern you, we are sad to state)...

How do you feel, Riders of the Tour de France, about the French National anti–doping Laboratoire, the LNDD?

Is it the best in the world?

Or is it the most over–ruled anti–doping Laboratoire in the WADA system?

Do the names Armstrong, Landaluce, Landis, Mayo, if found in the same sentence as “LNDD”, fill you with some mixed emotions? That sinking feeling in your gut?

If you are a Pro Tour or 'other' team cyclist whose group have been invited to the Tour 2008, its time to think about the newly-devised race control system that is about to be offloaded onto your shoulders. You, who we admire if and when we know you are clean, are entering the Biggest (cycling) Show on Earth, which for the first time perhaps in its modern history, shall be organized and implemented outside the UCI Rules.

Riders of Paris–Nice already have their experiences. Same for the Paris–Roubaix... and we can only hope that the experiences of March and April have given the French enough input that they can put on the race that they think is best achieved away from the UCI.

In fact, be aware that there remains a question as to whether the Fédération française de cyclisme, or FFC, can in fact host a race that is not run within the structure of the UCI.

Anyone reading the FFC rules, which control any French, non–UCI event (local citizens' races, cyclosportifs, and junior national programs, etc), must be aware that nearly every clause makes at least one reference to 'the UCI rules', whether those be 'under the UCI', 'as established by the UCI', or any of the hundreds of stipulations.

But since the Amaury Sport Organisation, or ASO, broke ranks by leading a revolt against the UCI, and 'promised' to hold its race independently of the global cyling organization, the turbulence promised by such acts falls, ultimately, upon your shoulders. Where does that leave a rider?

If the UCI is officially 'unwelcomed' by the ASO group that owns the Tour de France, and if events happen that call the FFC rulebook into question, how is any rule, with a reference to the corresponding UCI Rules, going to be interpreted?

Only subsequent justice would answer that question, and a swift read of the AFLD Decision (Mais bien sûr! C'est en français) involving a second, and perhaps–illegitimate process taken against Floyd Landis, from 2006 to 2007, reveals that 'French Administrative Justice' comes down to being 'whatever we want it to be'.

In the Decision that emerged from this extraordinary second French case against Landis, no judges are named, no expert's testimony appears to have been cross–examined, and the sum total of damning evidence that is contained in that record, was that the Agency published its 'Decision' (Derision?), miraculously on the same calendar day as it received the bulk of Landis' Attorneys' legal filings.

Unclear as these legally damning items were, even more so is the questionable legitimacy of the legal regulation under which Landis was prosecuted in France. The one clear part of this ultralight decision, is that it states categorically that France holds jurisdiction over this man as an 'unlicensed cyclist'.

But, you, as a peer of Floyd, know that he has always held a license from USACycling. He has been a 'licensed American pro cyclist' every year his foot touched a pedal in the Tour. How then, can the French Agence française du lutte du dopage, or AFLD, prosecute him as unlicensed? How could any French Appellate Court, whether administrative or otherwise, not overturn such a blatantly unreal reality?

Boggling the mind...

So this is the Strangelovian world you all enter, as our friends, our heros, or... as goats if found 'positive'.

And as the focal point of the French anti–doping world, the LNDD laboratoire – that will process your collected tests for doping control purposes – is only the most notoriously incompetent laboratoire in the system of WADA–accredited labs.

LNDD already lost one case from 2006 (Landaluce: failure to uphold ISL testing requirements), lost a contract to run doping controls on the ITF's tested players at Roland Garros last year, to the WADA–accredited lab in Montreal (only 3400 km from the stadium, itself being no more than 18 km across Parisian suburbs from LNDD!), and, the real topper: it went on vacation in the middle of its busiest testing season of 2007, perhaps as an un–notified 'work stoppage' action (?!) in protest of the growing animosity between anything French that is related to Cycling and the UCI.

SIDEBAR: The UCI had published the famous Vrijman report, in the spring of 2006, which objectively and neutrally thrashed that laboratoire's infamous 'research' that had led to an article against Lance Armstrong, which was published in the French sports–rag l'Equipe. Vrijman noted, in a very linear and clear fashion, how French government officials, the former WADA president Dick Pound, and the l'Equipe journalist had unanimously appeared unable or unwilling to assist the UCI to investigate the Armstrong allegations. Recalling paragraph 1.14 of Vrijman is very important:

“Despite the recognition of the proper jurisdiction of the independent investigator by all individuals and organizations that were contacted, the French Ministry, the LNDD and WADA, all refused to provide the investigator with the documents and full cooperation necessary to reach definite conclusions on certain issues that remain unresolved. The refusal by the LNDD, the French Ministry and WADA to provide documents and information that are necessary for the proper conduct of a complete investigation is extremely troubling and is inconsistent with the principles of the Olympic Movement. The fact that WADA President Dick Pound and the LNDD’s Professor De Ceaurriz were willing to discuss the research project and its results in great detail with the media, while they at the same time were unwilling to cooperate with a proper investigation by the organization with jurisdiction over this matter, raises substantial questions regarding their reasons for doing so and makes one wonder as to what complete cooperation would disclose.”

Consequent to the sum total of these events, it remains astonishing that ASO could even consider opening its organizational 'voice' against violations against the WADA CODE, as it has, consistently throughout the years, through its one – hundred per cent ownership of the l'Equipe paper, been in continuous recidivism as to violations of WADA regulations that guarantee Athletes' rights to confidentiality, by 'scooping' information about not only Tour riders' A Sample doping control results.

As a internationally–contracted laboratoire in the WADA system, perhaps it is a good thing that it proved, once and for all in 2007, which of its priorities were the most dear:

Going on vacation?

By stopping the process, after unveiling an A Sample positive control held against Spanish rider Iban Mayo, and shutting down its facility “because we are French, and this is the French vacation month” (which WADAwatch is unaware that it ever 'stopped' work on previous years' samples), its outrageous acts forced the UCI, the IF that had contracted and paid it for more than these manifestly sub–standard services... to track down another facility, which was itself an unjust act, falling outside the conditions of WADA ISL Articles 5.2.4.3.2.1 “”B” Sample analysis should occur as soon as possible and should be completed within thirty (30) days of notification of an ”A” Sample Adverse Analytical Finding.” AND Article 5.2.4.3.2.2: ““B” Sample confirmation must be performed in the same Laboratory as the “A” Sample confirmation.”).

Leaving the details of these matters aside, there is only one common element that runs throughout: an entity within the French Government, which is accredited by a global international Sporting association (which isn't per se in the business of 'accrediting' Labs: it's happy to take the word of any national body that belongs to ILAC...), has much support from WADA, in its quest to achieve convictions... if only they could remember that they themselves have strict rules to follow.
(PHOTO: Professeur De Ceaurriz and M. Lamour,
ex-Ministre de la Jeunesse et Sports, colleague unknown)

Here at WADAwatch, we consider it a good thing that the 2012 Summer Olympics were awarded to the British.

After all, how could you run a
Summer Games when the laboratoire
staff are all down in St. Tropez,
over in Guadalupe or up in Chamonix,
discussing...

how important their work is?

But hopefully you follow me...
"Riders of the Tour... daa da-da da daaaa..."

Disclaimer

The opinions expressed by WADAwatch are
strictly formed with the purpose of inciting WADA to adhere
to its Fundamental Rationale, achieve its goals and fulfil
the aspirations of its Signatories, in achieving the
highest possible level of objective, neutral
science in sport-doping control.

Watching WADA, and LNDD... and more,

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

2008 all copyrights reserved