VANCOUVER: "Dopening Ceremonies"...

A new Angel from Georgia

No one can smile on this Opening Olympic day that began, early and cloudy, with the violent death of a bright Georgian star, Nodar Kumaritashvili:

CREDIT: Peter Parks, Getty Images

Words cannot express the family's, the colleagues', the World of Sport's sadness: he shouldn't have gone that way. Yet a dangerous sport (when things go wrong) is compounded by the indecisiveness of a (our regulatory opinion) track or Federation management that does not understand physics, dynamic G forces, and geometry.


But for a couple thousand CAD of reinforced nylon barrier tarpaulins, designed to absorb and redirect the free-falling body back into the hard icy cocoon that consittutes his track 'universe', this young man would be alive, bruised and discussing his next run.


Announcements of a investigation can not ignore that exposure (similarly when Swiss skier Silvano Beltrametti hit the mid-finish line (later banned) vertical pylon several years ago, he was paralyzed for life...) to a non-secure, impressive steel structure (surely it will be protected tomorrow: isn't that the way?)... and although no express rules discuss the utility of a safety harness (would the weight of his sled kept him away from Death's Out-Post?), the organizers are going to have to satisfy the second paragraph of the FIL-Luge Rules, Article 3.5:

3.5 Safety regulations

The track layout and components such as curves, walls, bridges, tunnels, transportation set-ups, etc. as well as all facilitities originally belonging to the track must be provided in such a way, that they meet the internationally recognized safety standards.

If the safety regulations on a track are neglected so that the participants in FIL competitions are exposed to a typical danger to their health, the track may only be released by the technical delegate for further use if these deficiencies are removed.

If the steps taken are not sufficient in order to guarantee that the internationally recognized safety standards are followed during a competition, the jury, in accordance with the technical delegates is empowered to shorten the track.

As of midnight, indications are that the luge competition will go on tomorrow. This seems distressing, even to a casual admirer of the sport: what about the other lugers? What about their families? Addressing that situation will transpire away from WADAwatch: we turn to the news of the opening day.


CBS News tells us that "Thirty Athletes Out of Olympics for Doping". The article expresses an interesting thought:

[WADA President John] Fahey confirmed Thursday that more than 30 athletes had been excluded for breaking anti-doping rules over recent months and that the cases include a mixture of positive samples and failure to comply with testing protocols. He refused to give details of the athletes, sports or nationalities but noted that more than 70 athletes were prevented from competing at the Beijing Olympics for violating anti-doping rules in the similar period leading into the 2008 Summer Games.

Now don't take this personally, President Fahey, but obviously there are no cyclists in this group. If any one of those thirty were cyclists, some paper in Europe (whose name escapes us at the moment) surely would have allowed for heady headlines, juicy exposures of suspicions, hunches and insinnuendo.


Noted were the comment made by Fahey, that more than 70 in Beijing had been 'tagged' and withheld from competitions prior to the 2008 Summer Games. Russian athletes "will be under tight scrutiny" after six had been suspended in the last 12 months or so.


Another unique factor: Scott Burns, former Bush Administration Deputy White House 'drug czar' will be leading an international observer commission, that will "for the first time, have the ability to meet on a daily basis with the IOC to report any concerns about the testing process."


Scott, there's still time to bring in an independent expert! Someone that knows the WADA Code nearly as good as its original drafter (maybe better). Just call... WADAwatch is available. We promise not to show up in either of our WADAwatch hooded sweatshirt(s), available in Black or White!


After all, how complicated can a simple urinalysis be?


Is there more to a urinalysis that meets the eye (of any trained bureaucrat)...? Just ask the good Doctor's office in Avon Colorado!


Sometimes the best wayy to experience what these Athletes are going through is to experience yourself the necessity, embarrassment (how crass can one be in joking with the nurse about photographic evidence (pre-sealing of the containers)?), and 'faldoral' of the whole process?


Imagine being a known cyclist; who may be tested once per week or more? Yes, they must. Yes, they should. Yes, they agree. But if it is a different person every time... does it not get old?


But Hey! We're watching Vancouver, with you,

..........@......... WADAWATCH

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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

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copyright 2009 Ww

Updated, Corrected: the Marion Jones Teammates issue(s)

In January of 2008, WADAwatch published a column, "WADA used Gold Medals?" which discussed a then-future, now-realized decision, taken by the Executive Board (EB) of the IOC.

That decision concerns the relay-team teammates of Marion Jones, and focused on a news item from the HamptonRoads website, which featured local resident and soon-to-be-stripped Olympic Gold Medal relayer LaTasha Colander-Clark, of Portsmouth.


News updates require an update to the above Ww article. On the IOC website, at their Press Releases page, the following item has these as the last paragraphs of a 2pg document discussing recent IOC Executive Board actions:

In another doping related decision taken today, the Executive Board disqualified the team mates of Marion Jones (previously disqualified from the Sydney 2000 Games) in the United States Women Relay team from the 4x100 meters race where the team placed third and the 4x400 meters race where the team placed first.

The USOC has been asked to return to the IOC all medals and diplomas awarded to the athletes involved.

The issue of reallocating the medals and diplomas – including those of Marion Jones’ – will be addressed by the Executive Board in due course pending further information in the BALCO affair.

WADAwatch had gone on record, in January, noting that between the IOC, and WADA, there appeared to be no published 'rule' on which the legal basis to overturn that Decision.

That may have been an improper presumption on our part. The rules surely do exist, yet apparently the IOC doesn't have the Sydney rules still on line. WADAwatch has found the following rules, which may or may not be applicable: we cannot determine if the IOC rules were similar to those in effect for the Sydney Games, and the IAAF rules do not seem to have any 'in effect' date, within the document or on the site.


A relay team, as were Jones and her now devestated running partners, is not considered a Team event (itself an interesting WADA definition) by WADA:

Team sport: A sport in which the substitution of players is permitted during a Competition.

Thus relay team members are not participating in a Team Sport. Under what regulatory basis are they competing?


The Olympic rules are a very difficult document to track down (Note to IOC: Let's put the Anti-Doping Olympic rules on the website, please?) This page lists "all documents published on this website"; they have a link down halfway to "Medical". There is a link there to the PDF for the 2006 Turin Olympics Rules. There is no link to 'permanent' or 'Beijing' rules that we could find.


Is it safe to determine that, if they'd made a great change from Sydney, via Turin, we'd find it online by now? Maybe, maybe not. So we analyse from a step away, perhaps, from the rules invoked in the IOC Executive Board determinations. The nature of these rules ('what is a Team', 'what is a relay team?') do not suggest having any radical updates.


Interesting Rules, nevertheless: the IOC Anti-Doping Rules applicable to the XX Olympic Winter Games in Turin, 2006, Article 5 governs Doping Controls. Sub-Article 5.6 is titled Selection of Athletes to be Tested, and if we jump next to 5.6.1.2.1, there we see the IOC stating:

[.....]
For Pursuit, Relay and Team Sprint competitions: one randomly selected Athlete in all top five teams plus one randomly selected athlete in the two randomly selected teams.

Seems to be an interesting concept, these arbitrary, random 'selections' for Testing purposes. However there is another Article to note closely. Article 10: Consequences to Teams controls that which Ww is seeking:

[.....]
In sports which are not Team Sports but where awards are given to teams disqualification or other disciplinary action against the team when one or more team members have committed an anti-doping rule violation shall be as provided in the applicable rules of the relevant International Federation.

Thus if we can presume a functioning legal basis out of the IOC Turin Olympic rules, we are safe to presume we should look to the IAAF Rules, as the applicable IF. Again, we are taking some risks in presuming the Rules that apply are very similar to those published, if not the same, from the Sydney Olympics (and again, the nature of a definition of a relay squad could reasonably suggest carrying a stable definition for decades).


If that presumption holds, then Article 39.2 is our baby (on PDF file page 30, doc.pg "57"):

[39]
2. Where the athlete who commits an anti-doping rule violation under Rule 39.1 is a member of a relay team, the relay team shall be automatically disqualified from the event in question, with all resulting consequences for the relay team, including the forfeiture of all titles, awards, medals, points and prize and appearance money. If the athlete who has committed an anti-doping rule violation competes for a relay team in a subsequent event in the competition, the relay team shall be disqualified from the subsequent event, with all the same resulting consequences for the relay team, including the forfeiture of all titles, awards, medals, points and prize and appearance money.

Sadly, WADAwatch must remind its audience that the 'Jones teammates' case is probably going to pass through the Court of Arbitration for Sport (currently awaiting the final documents admissions for the Floyd Landis case). If the Arbitrators have to work the magic wand of 'Judicial Interpretation', still there appears to be ample justification for the rendered decision.


WADAwatch reminds these three Organizations (WADA, IOC, CAS), that they must strive to create a harmonious legal system, that their rules must be clear, and, as we see in the case of this Relay squad, that it is neither found to be a 'Team Sport', nor can it possibly remain as a 'non-individual, non-team' sport, at least in the WADA CODE.

This may be a clear-case, in the eyes of the Organizations; it cannot be clear to a woman in tears, why the medal over her fireplace, or wherever, has to disappear, and to wear the crown of thorns here and after...


The limbo dance... when Teams are not Teams, and when individuals that have not fallen afoul of any rule, are losing medals; that is the time to clearly move forward, under WADA president John Fahey, and tackle an issue head on, so that future Medallists don't have nightmares attacking them out of the blue sky.

Last thought. There is no one else to blame but Jones... and there are now four former medalists from the 4X100, and a separate four from the 4X400 (as there were evidently substitutions made, from the preliminary to final heats: all participants shared their glory, temporarily)


Not afraid to clarify the record...

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.

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

2008 all copyrights reserved

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'...

+ + + + + + + + +

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

WADA used Gold Medals?

Many world–shaking events from 2007 are currently fermenting like good Swiss wine, slowly turning into the garish headlines of 2008; the world of anti–doping and sport is certainly one of these.

Since the Marion Jones confessions, one of the most salient problems has become what to do with the tarnished gold medals that are held by teammates of doping athletes. Self–righteously, some say, egotistically to others. Does an Athlete who's honest efforts in a team sport, forfeit her or his glory for the depredations of another?


How are the legal scales of justice balancing the issues of fairness?


No question but that what Marion chose to pursue was wrong from Day–D (for Doped) onward, from 'whenever' until her 2007 confessions.


But in the hyper–mediatronized world that exposes the work efforts of WADA and the IOC, it appears safe to say that the negligent regard for forward–planning efforts (during the reign of Richard Pound) is now coming full circle.


Witness the case surrounding Jones' teammates for the 1,600 meter relay, including Oregon native LaTasha Colander–Clark.


WADAwatch seeks the rule promulgated by the IOC and in force prior to the Sydney Olympics, that informs medal–winning athletes of the lifetime nature and legal relationship to Gold, Silver or Bronze medal–winning status.

Here is the decision of the IOC Disciplinary Panel:

RECOMMENDATIONS REGARDING MARION JONES

We live now in an age where many of us will pay good money for products, often ignoring that we've only acquired a 'license' for media or computer items: software, movies or music, rather than purchasing them (read the 'I accept' screen next time you're installing a new program).

It appears comparable to the trend by certain bodies such as the IOC, WADA or the US Olympic Committee, who believe that clear solutions are at hand, by osmosis, to extricate their 'august Institutions' from the tawdry reputations of doping athletes.

Ms Colander–Clark and her teammates of the 1,600 meter race, as well as Jones' 400 m relay partners, are facing pressure by the IOC and USOC to 'voluntarily return' their medals. Look at the three eternally happy faces below...

(From left: Jearl Miles-Clark, Monique Hennagan, LaTasha Colander-Clark and Marion Jones)

What would you choose? What's the applicable rule for this situation?

Four women crying today, for distinctly different (Ww hopes!) reasons?

Crying: because nobody can show them on paper the (IOC or USOC) RULE that allows their medals to be erased and redistributed?

WADA didn't have a CODE in place until 2003; it had been birthed (or divorced?) from the IOC in 1999, and in its first year was in the process of determining what to do and how best to achieve this.

Now, after eight years of existence, many headlines and little to show for standardization of its laboratory network, it comes to light that the power of confession has turned upside down the staid world of the Olympic Movement, not to mention other commercial sporting events such as the US professional sports leagues, the cycling Tour de France, and others.

We learn that the IOC had 'recommended' (says the HamptonRoads.com site) that all of Jones' Sydney relay teammates be disqualified and those gold medals be returned. Although the nature of the legal situation is unclear, the IOC has given the USOC until the end of January 'to submit a defense'.

Peter Ueberroth, normally an admired and respected catalyst in the US Olympic world, and President of the USOC, 'has already publicly asked Jones' relay teammates to voluntarily return their medals.

At WADAwatch, there is only one word of advice to offer to LaTasha and her other obliquely–tarnished teammates:

DON'T.

WADA entered the global fight against sport–doping, as the 'bastard' child of the IOC (perfectly personified by Dick Pound...), and had ample time, resources and support to choose its battles and position itself strategically.

It appears that none of the major players: the IOC, WADA, UNESCO or powerhouse Federations (such as the IAAF, for athleticism, or the IOC athletes' commission) have begun to codify a responsible and accepted, standardized response to certain cases. That is what the world expects of WADA, in such cases where confession or other acceptable means produce an acknowledgement of past wrongs.


LaTasha! You and teammates are being forced to accept a choice that removes the necessary burden of the IOC, or WADA to take a lead for global development of standard practices in the cases that are to come.


The Hampton Roads website quotes Ms Colander–Clark: “Sometimes you have to fight for your destiny and remember not to let anyone walk over you”.


WADAwatch agrees; we at Ww would have preferred that your case be well–defended by the USOC, which realistically has no case against you if no law existed, in force during the Sydney Olympics, that expressly told medal–winners what to expect if ever their teammates were found out as doping Athletes.

The USOC, rather than 'submitting a defense', could and should have led the way in knowing that the system needs a regulation, and forged a global agreement that satisfied legal needs. Instead, it appears that USOC followed a 'lead' one could have predicted for Dick Pound: it only issued a publicized demand for the medals to be returned, and then did nothing, didn't contact the athletes themselves, until the IOC told them to do so.

LaTasha! Are you, and those team mates of yours collective victims of 'retroactively enforced, non–enforceable non–regulations'?


Can't anyone write a rule?

This could be (we won't know until the results from these closed proceedings are publicly announced, sometime after the end of January 2008) a case tainted by nationalism, and as the USOC mounts the anticipated defense, its attorneys and legal drafters ought to consider the role, as a comment to the above–cited article stated, had the US won only the Silver medals in the 1,600m race.

WADAwatch wants systemic stability in this new growth industry of sport–doping investigation and punishment.


Stability in the system could be found, if a NON–retroactive rule was applied, starting with the 2008 Summer Olympics.

To create a fair and objective rule for the confession of past acts, requires a lot of footwork and balanced input from stakeholders: governments, athletes' commissions and the IOC.

Creating bad precedent, as another comment offered, is the key to be avoided. The world of sports has become accustomed to the placement of ** asterisks near records or championships whose performance was later revealed to have 'imperfections of title': I'm sure that LaTasha would rather live WITH an *asterisk, rather than WITHOUT her medal.

WADAwatch will monitor the coming developments in this case, that will have great effect on the lives of many clean Athletes. With WADAwatch watching, hopes increase that a rule governing this situation, transitionally based (where a express rule for the future has a temporary 'what to do' provision covering this decade of change...) or permanent, will be drafted prior to Beijing 2008.

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.

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

© 2008 ZENmud productions