CAS ICAS elects new president: G'day Mate!

Welcome back to WADAwatch... just one voice discussing the international regulatory agencies whose livelihoods derive from the valiant and strident efforts to reduce and / or eliminate the scurge of doping in Sport.


Our hiatus served to refresh the enthusiasm that has always been a bedrock of the WADAwatch credo. As readers can imagine (those whose memories exceed the average American's short span), the hiatus also has spanned this summer of 2010, which began with Floyd Landis' assortment of confessions, and comes towards winter with Jeff Novitzky entertaining zealous prosecutors from at least Italy, Belgium and France at Interpol HQ in Lyon, France.


Yet our opening 'Fall 2010' blog-post is to reflect on the new changes at CAS/ICAS, which announced last week the election of a new president: John Coates AC of Australia. WADAwatch hesitates to point out the obvious... yet it must be so. Did anyone know that Mr Coates was opposed by Dick Pound, former president of WADA, who ran his second campaign much farther below the radar-screen than his first attempt?
(photo credit 'sort of' to 'Moderately Left', an Australian political blog)


WADA is currently headed by an Australian: the Honourable John Fahey, a former Australian government minister. Now ICAS (the International Council of Arbitration for Sport) has elected its very own Australian to lead the Council that oversees CAS' operations.


Some WADAwatch followers remember our vehement outcry against the candidature of Dick Pound for that very post as ICAS President, when he first ran, loudly and boisterously, and lost: Mario Auletta became the new CAS President in April 2008:


Pound LOSES CAS presidency


Our fear of a Pound presidency was based on his public statements regarding CAS getting 'lost' in a sea of arbitration panels, as well as his rumoured involvement in the events (nebulous, ambiguous) surrounding the 2005 Lance Armstrong 'EPO case' promoted via the French newspaper L'Equipe. Auletta's election, and statuatory changes that were effected under his leadership (the 'conflict of interests' were eliminated: see "WADA" rule from CAS & ICAS...) have helped assure the Athletes whose cases come to this august body would, henceforth, suffer less from the 'revolving door' of Advocates who wore two hats, as Arbitrators or Advocates for either Athletes and International Federations.


Now who is John Coates?


The Olympic Movement, which states so often and so publicly how much it wants Sportsmen and Sportswomen to be 'healthy and pure', seems to have an incestuous (strong word?) reliance on internalizing campaigns to its prominent roles... First there was Dick Pound, who valiantly defended Ben Johnson before spearheading the investigation regarding the Salt Lake City Olympics bidding process. Pound then became the 'White Knight' who headed the movement that became the World Anti-Doping Agency.


And where was John Dowling Coates, while Pound was investigating Salt Lake's bidding shenanigans? According to the Wikipedia, Coates "played a key role in bringing the 2000 Olympics to Australia and in its delivery". Yet this story overlaps with Dick Pound's investigation of the Salt Lake City bid scandal, and wiki tells us that:

In January 1999 John Coates released documents revealing that he, and other officials, had been involved in extensive vote buying in 1993 to secure the Olympic Games for Sydney. He admitted that the night before Sydney won the 2000 Games, he offered more than $A50,000 each to the national Olympic committees of Kenya and Uganda and provided their delegates with expensive hotel accommodation in London and other gifts. Coates also organised a place for the daughter of the Swaziland IOC delegate at a Sydney tertiary education facility. African IOC delegates were also promised that sports training would be provided for African athletes at the Australian Institute for Sport in Canberra, if Sydney won.

Now humanity is known for errors, retributions and forgiveness (unless you're an Athlete who doped), and WADAwatch is not judging Mr Coates for admitting to zealousness in a system (then) which rewarded such behaviours.


We are, at WADAwatch, simply back to observe what happens to Athletes around the globe, who are bound to a system which affords ZERO tolerance, generally. And we are still (as an independent writer) bound to recall the immortal words expressed in the Quigley case:

The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorized bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.

(CAS 94/129, USA Shooting & Q./International Shooting Union (UIT), award of 23 May 1995, CAS Digest I, pp.197-198)

John Dowling Coates takes the reins of power at ICAS in January 2011. He is stepping up from Vice President to assure fairness and tranquillity in the halls of arbitration of Sport. He vanquished Dick Pound, from an undisclosed number of votes.


He will be able to continue policies that were promulgated under Mino Auletta, and perhaps one of his first tasks will be to voice an opinion on Jeff Novitzky's FDA investigation of Lance Armstrong. Much to unravel, as facts replace hyperbole and judicial opinions outweigh the Court of Public Opinion.


"Welcome aboard, Admiral Coates"... good luck .

.........@............WADAwatch
copyright 2010 Ww

WADA concept: good Sciencemanship

Sportsmanship... a well–respected and rewarded characteristic since oases were shared, and WADA communicates 'playing fair' in its Fundamental Rationale; but where is its good sciencemanship? Remember Christopher Campbell's Dissent to the Landis AAA hearing Award?

“Whoever is dishonest with very little will also be dishonest with much. . . So if you have not been trustworthy in handling worldly wealth, who will trust you with true riches ...” (Luke 16:10)

[CORRECTIONS v.2: Below, the original text implied that the link into the COFRAC audit of the AFLD département des analyses, would show the 2006 audit (as it once did) document. The link is LIVE, but the report you'll find is from this year: 2009. Based on a nice email, I have updated my brief 'bio' on Mr Blackledge; my apologies for haste and creating confusion]

[CORRECTIONS v.2.009: Due to one very diligent reader, and long-time science guru for the Landis case, I've been reminded to not use the argument that Landis was 'convicted' based on the 'one of 32 metabolites' argument. Ww stands corrected; proper protocol for ISL analyses under 2006 WADA/UCI/AFLD Rules, called for the T/E test *alone*; only if it was positive (Floyd's was 11.4, apparently after an initial 'finding' of 4.7) would follow-up IRMS studies be undertaken. Thus Floyd's conviction was on the one of eight T/E tests: the seven A Samples that were 'negative' normally would never see a lab-rat's face again... unless the AAA Panelists accepted the use of those seven B Samples as 'further evidence'; and that led to mystery 'non-AAF positives.

So the resulting 'bad arguments now port this color... Ww]

Larry Bowers of the United States Anti–Doping Agency blasted a scientific article concerning the Floyd Landis case evidence, in the journal Clina Chima Acta (“CCA”). Ww received the two articles thanks to a diligent correspondent. We offer a limited analysis of this scientific brouhaha, while dancing around the science itself. He has the weight of two USADA/WADA/AAA/CAS anti–Landis decisions behind him; but does that equate with justice?

Bowers responded to Robert Blackledge's Bad Science: The instrumental data in the Floyd Landis case, with his own Advocacy versus impartial scientific review: A problem for science and the courts, both of which appeared on the CCA website last May. Blackledge holds a MS and was Senior Chemist at the real–world NCIS Regional laboratory in San Diego; Dr Bowers works for USADA. Ww certainly cannot analyze their scientific assessments; yet there are other issues in play. That someone from USADA argues for impartiality in the manner Bowers wrote, is astonishing. That they do so regarding the Landis case is more startling, since Landis was 'doomed' only hours after his A Sample result was first released by the UCI. Within hours, WADA president Dick Pound nailed the coffin, showing the world his idea of impartiality:

“with the levels of Testosterone they found in him, I'm surprised there are any virgins within 100 miles...
(paraphrased: WADA is not USADA, that's true... but they are 'the system')

Implications from Bowers and Blackledge's titles ferment fond memories. Bowers implies to a scientific audience that the 'other guys' distorted the disciplinary process and infers that USADA and its attorney(s) fought clean. He doesn't maintain the high road in this article, however. Ww addresses several of Bowers' complaints, ignores his disrespect of Blackledge, and may surprise our readers with a conclusion offering an optimistic twist. That comes from a very recently decided CAS arbitration case, the format of which substantially alters the situation that created the Blackledge–Bowers blow–up.

Preliminary comment: Ww thinks of Floyd's case as an analogy to 'climate change'... Meaning that a majority of the world's scientists within one area of expertise, have looked at the amassed evidence and see travesties of justice, yet there's one minority group arguing vehemently against the tide: in anti–doping, that group is Team Omerta, the 'our mission is busting athletes' association.

Bowers' impartiality fails outside of the science. No reminding his audience that Floyd's interminable case nearly went to Federal Court for a claim of US Arbitration Act violations, pertinent to Bowers' attempt to boost the 'honour' of the Arbitrators. Landis argued blatant conflicts of interest deprived him of a fair hearing, with very persuasive arguments: his legal brief gave a true lesson in the US Arbitration Act and the effect from the 'revolving door' of CAS Arbitrators. Bowers also argues against the only rational explanation for the duration and expense of the case: the Science was not... Beautiful. Bowers caches ambiguity problems in the WADC, and how his Agency should have (under WADC Art. 7.1 & 7.2) informed WADA regarding multiple severe departures in the LNDD dossier. Those sub–Articles ostensibly protect the rights of someone in Landis' position against bad science. Bowers doesn't discuss that which is (affectionately) called the WADA Omerta: the ban on WADA labs' staff from testifying on behalf of Athletes, against other WADA labs competence. But the science? That should be impartial, n'est–ce pas?

An early complaint from Bowers slams Blackledge for relying on “only the opinions of Landis' experts, ...” which Bowers perceived from Blackledge's acknowledgement section. Bowers ignores Blackledge's statement early in his article, which qualified much of the AAA hearing 'evidence' as inadmissible hearsay; Blackledge clearly relied on evidence from the actual hearings, that was sustainable: “instrumental data and instrument conditions supported by actual LNDD printouts”. Bowers then cherry–picked a ripe quotation from the Landis CAS Panel decision, revealing the basis for his article: partisan expertise. The CAS Panel quote is para. 261, followed by Bowers' comment (the Respondent being USADA, financed by WADA; Landis is the Appellant):

261. The Panel also finds much force in Respondent's contention that “Appellant's experts crossed the line, acting for the most part like advocates for Appellant's cause and not as scientists objectively assisting the Panel in the search for the truth.”

For those who are not experienced in providing expert testimony, this is as stern a rebuke from the bench as one is likely to encounter. The 3 jurists who heard Landis' appeal of his initial American Arbitration Association (AAA) conviction to CAS are extremely well respected international arbitrators who also hear cases outside of sport.1 (Bowers, p.1)

Bowers omits that USADA enjoyed the benefits from the aforementioned 'appearances' of conflict of interest (aka 'COI'), which emanated from those four 'well respected international arbitrators' whom he so admires (the CAS Panel Three, and their friend and colleague, USADA–hired gun Richard Young). Blackledge and his sources happened to be from outside WADA–world: have we read any defense of the WADA–USADA victory that was not from within WADA–world? Bowers certainly does not show how USADA 'expert witnesses' were any less partisan for their own cause; well, he did (once), about Brenna's purchase of two columns to test prior to the CAS hearing. Nor does he mention or justify the Omerta.

Mini–SIDEBAR: Explain Conflicts of Interest? Someone walks into divorce court, and finds his soon–to–be–ex–wife's attorney is the Judge's niece (and husband will be paying her fees after the Decision is announced): should the Judge a) hear this case, b) award his niece's request for a higher than reasonably anticipated fee? Or 'recuse' himself because it's a blatant COI? The husband's attorney should have caught that COI and requested the Judge's recusal (withdrawal in the interests of Justice) long before the hearing date...

Bowers swerves around the fact that lead USADA attorney Richard Young also crossed the line (is love blind?), although his friends on the CAS Panel didn't rebuke him severely, for improper presentation of the legal issues (lightly rebuked with nearly the first question), improper admission of evidence in his closing statement (Issue of 'costs' never argued, until Young slipped it in his post–hearing brief; yet the Panel awarded $100K against Landis; in apparent violation of CAS rules on costs), improper testimony by Young, whose quote, concerning non–chronological entries in LNDD evidence regarding mandated chronological forms (“I certainly wouldn't jump from that to the conclusion that the last entry was a fraud.“), framed the basis for that section of the CAS Award.

Bowers writes: 'this is as stern a rebuke...', yet Ww likes to recall the admonishment by Christopher Campbell, against LNDD in the opening paragraph of his Dissent: “From the beginning, the ... (LNDD) has not been trustworthy.” Different spokes for different folks: 'Being an advocate' or 'not trustworthy': which label would readers prefer? When endorsing impartiality one should refrain from arguing via the opposite.

Another extract from Bowers:

It should be pointed out that GC-C-IRMS was within the scope of LNDD's ISO/IEC 17025 accreditation and that an external GC/C/IRMS expert had assessed their procedure only months before the Landis sample was analyzed. According to the International Laboratory Accreditation Cooperation, accreditation is “a formal recognition that an organization is competent to perform certain specified tasks.” [6] The LNDD staff has also published GC-C-IRMS articles in the peer-reviewed literature [7–10]. (p.2)

Bowers extends a common presumption without basis in fact. Accreditation doesn't guarantee flaw–free work efforts: that's what case documentation reveals. Accreditations serve to confirm that a lab is capable of properly implemented work, if performed as the auditor witnessed and approved. What about the COFRAC French agency's audit, anyway? They made an error (the famous EC-31 method“20pc or 0.8mil”) in May, took seven months to determine the error existed, and issued a retroactive revision (which neatly solved an ugly problem) on 1 December 2006. Was its review of LNDD scientific procedures actually thorough, competent, and well–documented? The record shows that the COFRAC audit report on which Bowers leans, shows rarely more than minimalist, pro–forma confirmations: maybe Bowers never read it? C'est la vie... See the WADAwatch post Post script on Landis: LNDD off the map? (link in text to the actual COFRAC document; confirmed today). Another point could be slimmer: might events at LNDD, between the audit and the Tour–testing period, affected their analyses (the 'Mickey ears' situation? Do COFRAC audits authorize recommencing a run twenty times or manual peak integrations?)? Slimmer still: who audits the auditors?

Another impartial Bowers statement:

Mr. Blackledge demonstrates his lack of understanding of the fundamental concepts of quality control by asking why... 'its OK to screw up 1 of 4 measured values for a blank sample…' when 1 positive result in an athlete's sample is a doping violation. (p. 2)

Bowers does not confide that he took that phrase, tortured its context and modified it. Let's first read the entire Blackledge sentence:

In essence LNDD is saying that for quality control purposes it's okay to screw up on 1 of the 4 measured values for a blank sample, but if one of 4 values on an athlete's sample is outside range then he is guilty!

Bowers prefers to adapt Blackledge's quote to the argument Bowers wants to advance. That action avoids and confirms the odor emanating from the true issue Blackledge invoked: all excuses are valid to protect against charges of WADA lab incompetence, and no rational argument protects Athletes being charged with doping from a similar display of alleged 'incompetence'. The AAA Panel advised USADA and LNDD that, given similar “sloppy” circumstances, to beware: 'the next Athlete (victim of LNDD untrustworthiness) might be acquitted...'. Blackledge correctly states that the French LNDD lab is widely recognized for its “... rate of detecting exogenous testosterone that is >300% that of other certified WADA labs and over 6 times that of the UCLA lab.” Bowers seems to think 'oh shucks, never mind'; he ends this paragraph with a statement that brings tears:

So there is no possibility that an analytical error, particularly in the light of the quality control measures undertaken by LNDD, resulted in Mr. Landis' adverse finding.

Maybe there's no possibility that an analytical conspiracy resulted in Landis' AAF. Yet quality control can not account for White-Out errors, errors admitted by COFRAC's audit agent, missing hard drives, etc.

Bowers compounds confusion by extrapolating from the Landis Award a rule unknown to WADA: should he cite a source for his rule in a Journal article (?): “... 1 positive result in an athlete's sample is a doping violation.”, the Tech Doc (TD2004EAAS) contains no such specific reference. He provides no guidance to the controlling Code, ISL, Prohibited List or other Tech Docs' Articles or Definitions. The ISL mentions Metabolites and Metabolite(s) with equal (and deplorable) imprecision. Ww offers this astonishing ISL sub-Article:

5.4.4.1 Selection of Methods

Standard methods are generally not available for Doping Control analyses. The Laboratory shall develop, validate and document methods for the detection of substances present on the Prohibited List and for associated Metabolites or Markers or related substances. Note that for many substances, the associated Metabolites are detected, thereby confirming the metabolism and the administration of a Prohibited Substance. [Ww: emphasis added]

Note the opening phrase: 'generally not available'? Why fund a Laboratory Standardization Division, if the ISL states that 'Standard methods are generally not available.'? Do the popular initials CYA come to mind?

Next a necessary break down of that final phrase: is Testosterone a Prohibited Substance? Yes. Is it one of the 'many substances' for which Metabolites are detectable? Yes. Are its Metabolites the analysis component whose measurements confirm exogenous Testosterone 'guilt' or 'innocence'? Yes.

By any stretch of logic, one in Mr Bowers' position should use the second highlighted sentence above to construct the foundation that, if three of four Metabolites do not confirm the '... metabolism and the administration of a Prohibited Substance', then the appearance of a minority positive (one) Metabolite should not be sufficient to convict. Or would that be... too logical? Remember another factoid: when WADA took over responsibility for establishing Prohibited List and medical limits from the IOC Medical Committee, it deliberately lowered the T/E magic number from six to four. WADA also eliminated the IOC MC's mandatory longitudinal study prior to announcements of any AAF for Testosterone. So much time spent, making it easier to bust Athletes on Testosterone analyses; so little time to establish the number of Metabolites necessary to do so.

While other Articles in the ISL are equally or more ambiguous; some ambiguity is removed in Code Article 2.1.2:

2.1.2 Sufficient proof of an anti-doping rule violation under Article 2.1 is established by either of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analyzed; or, where the Athlete’s B Sample is analyzed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample. [Ww: emphasis added]

It is not Mr Bowers' fault (Ww suggests Mr Young?), after years of drafting (pre–2004), and two years of redrafting (Chaired by Young, 2006–2007), that no competent resolution – between WADA and its Signatories – promulgated clear Metabolite analysis regulations. One could suggest, in Articles where the the word 'Metabolites' is consistently used, and not printed as 'Metabolite(s)', that this clausal construction disallows a solitary Metabolite Finding from ruining an Athlete's career. Only if one is a member of the 'small group of (legal) insiders' who benefit from resulting ambiguities, such as Young (as Chair for WADA, and USADA Landis trigger–man), does it make sense to uphold this lacunae. USADA/WADA reputedly expended between $4 to 6 million for the Landis Inquisition(s); what was Young's cut: ten percent? Twenty or more?

SIDEBAR: WADAwatch rectifies ambiguity with this hypothetical Code Article:

“For the purpose of establishing an Adverse Analytical Finding against an Athlete based on laboratory analysis of the Athlete's A Sample (and B Confirmation), when the analysis of Metabolites is requisite to affirming such a result, the minimum number of Metabolites values required to pronounce an AAF shall be [one more than half the total number of] Metabolites which correlate to confirmation of use of that Prohibited Substance or Method.”

NB: Testosterone has four Metabolites; 'one more than half' would be three; this would solve one of WADA's most neglected 'children'. Its vast human resources, including staff, Signatories, Foundations, the IOC (and WADAwatch, etc.), ought to be able to agree on a Standard: 'more than one'... 'two'... 'at least two' (the UCLA and Australian standard), 'three', 'four' or 'all relevant' Metabolites as a harmonized Laboratory Standard. The only possibly justifiable reason not to do so, would be disparate national legislative obligations... yet the UNESCO Anti–doping Convention mandates member State support and harmonization of the Code mandates: so what is holding hostage the WADA no–standards system?

No doubt Bowers is aware of SOP at the UCLA laboratory, which performed 26.36345pc of all 2008 WADA A Sample analyses (2008: 72,394 A Samples); the UCLA lab insists on an at–least–two Metabolite standard (according to Blackledge: Ww thought that was three) for Testosterone 'convictions'. Bowers nonchalantly offers his audience his one–Metabolite rule, but curiously doesn't claim that the UCLA ≥2 Metabolite standard violates WADA rules, so thousands of Athletes are skating (no pun) away. Readers witness his repetitiously unilateral stance, and may even realize exactly why he maintains it.

One last point on the WADA non–standard of Metabolites: 'legal construction'. Under Anglo-American common law, attorneys and judges seek guidance against ambiguities from the 'Canons of Construction' (regarding contract and law interpretations). Those logical rules remind us that laws, written by humans, may need 'interpreting' [Ww: This argument is different to our usual, anti–judicial interpretation stance; it makes a difference when one is victim of the System, whose conscious choices created, funded and benefited from those ambiguous draftings]. When rules are ambiguous, a reputable judge (or conscientious Arbitration Panel) should always construe those ambiguities against the Party or Parties that wrote them; that concept denies advantaging the drafting party. Yet some WADA ambiguities seem deliberate...

Bowers continues:

As yet another example of Mr. Blackledge not getting his facts right, he states than [Ww: sic] Dr. Simon Davis was present for the analysis of Landis' B sample. Had he actually studied the documentation available to him, Mr. Blackledge would have seen that Dr. Douwe de Boer (along with two of Mr. Landis' lawyers and two additional scientific experts) attended the B analysis (LNDD “B” documentation package, pages USADA 250-1). Dr. de Boer noted in his report (page USADA 368) that “The impression of the expert regarding the analytical performance of the B-sample analysis was that the LNDD worked in a transparent and professional way and according to transparent and professional procedures.” (p.4)

Interesting to witness the extent to which 'cherry picking' becomes a habit for anti–doping officials. Bowers seized upon the only phrase above (written by a non–native English speaker) which implies 'good sciencemanship' (to coin our very own anti–doping term–of–art: in honour of Copenhagen).

To interject a cultural hypothesis, European 'adverse legal parties' are rarely as antagonistic as one sees in the post–Clinton US legal system. Bowers is indubitably aware of this. It is not at all unusual to see such a compliment to a Lab's Director and staff for being transparent and professional, as a professional courtesy, prior to (softly) bearing witness to failures to provide certain information, such as documentation and data. Does Bowers correlate those two or three items? No. Sadly Dr De Boer didn't use his two–page 'expert witness statement' to reveal upon whose authority, incompetence or downright nasty withholding, the information sought was missing, destroyed (erased?), hidden in desks, or altered?

In justifying all aspects of LNDD 'science' Bowers dismisses numerous related issues. He glosses over the body of Dr de Boer's brief, two-page evidentiary submission (Bowers extracted one phrase – 'A)' of USADA 368), the body of which was much more negative:

[...] B) The identity of the compound(s) belonging to the peaks has not been established according to the minimal WADA requirements.

Therefore, any official conclusion regarding to the T/E ratio as well as of the concentration of testosterone and epitestosterone is and will be premature. As such any official conclusion in relation to the above mentioned parameters of the respective sample is non–conclusive. (USADA 368) [Ww: emphasis added]

And:

B) During the B-Sample analysis it was not possible to see documentation and data regarding the uncertainty of the GC/C/IRMS analysis, which was reported to be 0.8‰ [per mil]... [or] regarding the historical data of blank urine pool no. 4.

(USADA 369) [Ww: emphasis added]

Bowers assures us that De Boer's concerns were 'addressed in the hearings', but not how, and reminds that Landis didn't call on Dr De Boer as a witness. The record shows that CAS Panelists were comfortably satisfied with the COFRAC retroactive correction, which wiped clean one of De Boer's major issues. What reason(s) for Bowers' mischievous allegation of Mr Blackledge's mistake, regarding Dr Davis (who testified as having been blocked out of certain LNDD procedures, which Bowers fails to reveal)? The truth: a) Davis wasn't in France for the A Sample analyses; b) the evidentiary record contains Davis' personal photos of the 'Mickey ears' magnets on the IsoPrime machine inside LNDD, and; c) Davis was surely one of the two 'additional scientific experts' whom Bowers himself mentioned? So he seems to be very confused, suffering from 'keyboard rage', or deliberately confusing.

Had Bowers' diatribe impartially offered the good, the bad and the ugly, with some conjecture as to the diametrically opposite meanings: 'transparent and professional' versus 'not possible to see ...', '... non–conclusive' or 'premature...', it might have influence. It otherwise seems a farce to discuss whether Davis was there, or give an impression that he wasn't; Bowers spends zero time discussing Davis' Iso–Prime/LNDD procedures testimony; why?

There's a bigger–picture aspect to this story, however.

The anti–doping world 'proved' Landis doped, as Bowers stated, because of one Metabolite being 'positive' on the day Floyd ripped across the Alpes in spectacular fashion towards Morzine (and “I was there...”), overcoming his previous–day bonk on Stage 16 and thereby recapturing eight of the (ten or so) minutes he had lost. The focused rage against Landis (and in support) is due to our differing opinions as to the validity and meaning of an AAF, based on only 1/32nd (or 1/4*8) of his testosterone Metabolites, analysed at the world–infamous LNDD laboratory. A fractional focus on one Metabolite, measured via the Beauty of Science as understood in France.

Long before WADAwatch began, this author derived the Pound Doctrine from statements made the first WADA president. Too few people remember how LNDD's Directeur De Ceaurriz, Pierre Bordry of AFLD, and WADA president Richard Pound (as well as, perhaps, two other French officials at WADA) and L'Equipe newspaper, ensemble, mounted an energetic campaign to force world opinion against Lance Armstrong, via the 2005 'tar–n–feather' investigation of his alleged 1999 EPO abuse. Yet their smear lingers; ask non–cyclists about Lance and doping. Dick Pound shot from the hip (his favourite pastime):

“If he had one [Ww: “Armstrong” and “positive result”], you could say it was an aberration. When you get up to six, there's got to be some explanation.”

Words that ripped around the world, and forged widespread support. Pound may not realize he created the Pound Doctrine ('Doctrines' are usually bestowed on their author after the fact), and Ww interprets: because the 2004–2005 EPO analyses of Lance's residual 1999 B Samples allegedly 'proved' (by unanimity of LNDD results) his guilt, one had to admit it was true, and a 'singular result' could constitute an aberrant deviation: a non–conclusive result casting doubt on its analytical bases. (See Floyd goes Free under the Pound Doctrine). Pound's statement carried demagogic power with a salivating sporting press: as if President Monroe issued another warning to European Powers to refrain from New World incursions.

The Pound Doctrine should be a two–edged sword... yet Landis (the case) proves that this simple corollary was never accepted by Pound, AFLD or USADA, as Blackledge complained above. WADA president Fahey said the Landis case outcome proved “... the system is working” (Fahey, WADA Ex Comm: November, 2008) and that conclusion seems Halloween–esque. However, the mathematics made Landis' 2006 TdF experience a 96.875pc clean (for Testosterone) effort. That is the truest, most impartial fact that Bowers can never deny. The other 31 Testosterone Metabolites from Landis' eight TdF 2006 A Sample analyses were not positive.

Floyd's single Metabolite conviction is really not 'WADA rule–based', as Bowers suggests. Our readers know how clearly this Award remains diametrically opposite the Quigley rule: friends at TrustbutVerify had nailed that issue with a post called Seven Paragraphs. The AAA Award mentions 'LNDD positivity criteria' not a 'WADA rule'. Does this fit with Bowers' idea of 'impartiality' claimed in his title? Concerning Landis, French hysteria was very influential in the outcome: WADA had to spend (announced one week before the CAS hearing) well over a million dollars – a 'financial bail–out' to USADA – to prove this French lab worked clean, and that “the system was working”. WADA also supported (by not prohibiting) the AFLD renegade (third) Landis trial, which remains a clear contradiction to Code Article 15.4 (Mutual Recognition). WADA claimed that French renegade process was permissible, due to its falling under a prior French law (Howman, directly answering a Ww question, 2008). Yet “That dog don't hunt...” (said the American President more than ten years ago).

In WADA–world, however, the Pound Doctrine only serves to indict Athletes, not to exonerate. Blackledge claimed 'bad science'; Bowers claimed 'partisan advocacy chills legal solutions': take your pick. Ww agrees with Bowers' claim: we do not believe he presented a non–partisan case supporting that, and we think his omissions and dismissals prejudice his presentation. Bowers only succeeded in demonstrating that he is far from impartial, in his desire to promote unbiased expert testimony...

You know what you're really thinking: LNDD doesn't keep its
1986 IsoPrime wünder–machina because 'they know how it works':
they keep it because 'they know how to work it'...

Postscript: Ww understood little from the IRMS 'data' seen in LNDD chromatography: the one symmetric UCLA chart that Blackledge offered in his article (p. 9) does more to render objective how 'different' LNDD and UCLA seem to be, in WADA's non-standardized laboratory family.

AFLD ought to stop seeking headlines, and work on perfecting its sciencemanship. Consider this: either all the Labs in the WADA family are not as perfect as LNDD, or... the opposite is true. If LNDD is the best, there's soon going to be a shortage of vintage Cold War (1986) IsoPrime machines; and Ww will write about the new WADA International Standard on Manual Peak Integrations...

SIDEBAR: if Ww had engaged Sherlock Holmes as consultant, he may make the following observations...

“Did you notice the curiosity within the Landis AAA transcript? The cyclist was never asked about Prohibited Methods. Weren't four or five other Phonak cyclists 'busted' for blood packing? What if this whole body of evidence was designed, constructed, to 'bust' Landis for something that he hadn't done (Testosterone), because they 'knew' what he had done, but couldn't prove it (the blood packing)? That would neatly explain the bad science, abnormal values, missing hard-drive, non–chronological data entries, bad chromatography, time gaps, manual integration... and the outcome(s)! The French 'hysteria' over the case... c'était une farce!

In the alternative; wasn't Floyd offered a 'light suspension' if he outed Armstrong?

There, Watson: two different theses that offer an explanation as to the genesis of these lab findings. The anti–doping movement may have felt a moral right to back and invest in such a pissant evidentiary case; even if they were legally wrong to do so. 'The ends justify the means...' Where's my pipe?”

We leave aside the scholarly debate, to remind about two very relevant, positive innovations at CAS, which serve as a potential conclusion. Had they come three years ago, they would have greatly helped the Landis disciplinary processes, perhaps taking the wind out of Bowers' sails.

Ww already wrote about the first CAS innovation their October rule change. CAS Arbitrators must choose to serve forever more only on Arbitration Panels, or act as attorneys before those Panels. They are no longer permitted to operate as both: the former 'revolving door' system has been closed. Systemic conflicts of interest thus are resolved for future litigants (although the professional friendships remain). Think of it as Landis' legacy: to increase Athletes' reasonable expectation of fairness in future anti–doping disciplinary hearings. We could call it the Landis Rule...

Suggestion: could CAS please improve their fax–to–web-PDF file transfers, for Awards it posts on its web site; or will they scan harsh fax photocopies forever?

The second CAS innovation comes from the recently–decided Pechstein case, a German speed skater who was suspended from her Blood passport evidence (Ww is still mulling over the substantive ramifications of this 'test case'). That case instituted a new (to Ww) procedural device that WADAwatch loudly applauds. The Pechstein Panel innovated by receiving the Parties' expert witness testimony en bloc, after accepting the two parties' lists, and 'coordinating' those to be heard in conference format (or a 'Battle Royal').

Being an appeal of Frau Pechstein's initial 'prohibited Method: biological passport evidence of blood doping' suspension, the twelve proposed Experts were formed by the Panel into four groups, addressing different areas of 'expertise': 'haematological issues'; 'Advia 120 machine and other measurement issues'; 'International Skating Union data processing and procedures'; and, the 'factual (non–expert) issues' (to hear the ISU Anti–Doping Administrator solo). The Panel accorded full rights to the attorneys to “... examine and cross–examine” in groups the Panel constructed.

One is left breathless –awestruck– at this streamlining process: the possibility for swift comprehension, shifting away from lawyerly sparring toward compromise and consensual acquiescence. If it was only an ad hoc innovation, CAS should determine its potential for systemic implementation. Judging expert groups as peer groups could be a stimulating revision offering reduced costs for anti–doping Arbitrations. Given that millions were spent by (>2?) and against (>5?) Floyd Landis, and nearly two thousand pages of the first Landis AAA hearing transcript document dozens of hours of (some agonizingly bad) Expert Witness testimony deliveries (or delaying tactics?: “what page is that? Could the Panel instruct Counsel to wait until we find the page?”) and evidence of pure partisanship by both parties.

CAS seems to be acting as Guide for WADA, finding the way out of its pain–in–the–morass Code–created deficiencies...

CAS displays an action–oriented application of lessons learnt from the Landis case: if only WADA could match those efforts, such as by transparently publishing and implementing the long–retarded WADA 'laboratory discipline rules', proposed in 2008, would be a start....

The Beauty of Science...

Laboratory Standardization...

Clear regulations replacing ambiguous Articles...

Reduced legal costs...

Clean(er) sport...

... Ten Years (more?) After

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

copyright 2009 Ww

Cycling War II: the UCI shows its honour

The UCI has responded to the AFLD report (a report which has never been published on its web site by the accusing French Agency) with a fact-based series of observations that stimulate the thought, previously expressed here at WADAwatch, that there is an agenda at AFLD.

WADAwatch notes an interesting presse communiqué dated 30 October, 2009, from the AFLD web site. It's text was short:

L’AFLD a pris connaissance des réponses de l’UCI à son rapport sur le Tour de France 2009.

Elle remettra des observations détaillées sur les réponses de l’UCI au Ministre chargé des sports, à l’UCI et à l’Agence mondiale antidopage. D’ici là, elle s’abstiendra de tout commentaire public sur ces questions.

Our in-house translation:

The AFLD has taken note of the responses from the UCI regarding its report on the Tour de France 2009.

[The Agency] will submit detailed observations on the UCI responses to the Ministry controlling Sports, to the UCI and to the World Anti-Doping Agency. Until then, [the Agency] will abstain from all public commentary on these questions.

Before analyzing the confident observations emitted by the UCI, one should note that it is interesting to find the AFLD has now found it 'sage' to withhold premature public commentary. That distinction wasn't evident when it engaged the shrill pen of Stéphane Mandard to write his series of biased, and immature articles in Le Monde, regarding Plucky Pierre's rages against cycling.





One should also hope that the French Secretary of Sport, Rama Yade, draws up a list of questions that call into question the competence, and continued support, through which Pierre Bordry sustains his prominent, if not illustrious, career as head of the Agence française pour le lutte contre le dopage. She has been quoted as 'demanding responses' from the UCI, and 'hoping for a rapprochement' between the French Agency, and the UCI, especially as to future collaboration.


But Yade's priorities may now be leaning towards hoping that the UCI would consider collaborating with such a treacherous 'partner' in the future. And, with a career pharmacist as Minister of Health and Sport, in the person of Mme Rosalyne Bachelot, one can wonder how long the maintenance of AFLD as a 'monopoly anti-doping agency' can exist.


A second recent communiqué from AFLD discussing a recent French meeting, between Plucky Pierre and WADA President John Fahey. In short summary, those issues, which appear to have not been specifically oriented towards this Cycling War II, are:

• The evolution of respective competences of the International Federations and the NADO, and the research of a new equilibrium;
• The support of demands by NADOs addressed to IFs once they have a possibility to effect additional controls;
• The limits of classic antidopage controls, in the face of the growing sophistication of doping activities, which situation incites recourse towards complementary procedures of a judicial nature, and with closer collaboration with Customs and police Officials.
  

Interestingly, the 'general' nature of those 'discussion points' run in strict parallel with the leaked AFLD 'findings', of which we now have the UCI response (a 12p report on-line since the weekend), to the mystery AFLD report (evidently the only thing that Bordry and Le Monde refrained from publishing).


The UCI response offered an anticipated disappointment - that the AFLD has degenerated once again - and catalogues the IFs that are not using AFLD's 'services' at this date (without naming them, although clues are attached: we know that one is the ITF for tennis, and are guessing another might be the Fédération internationale de ski, whose World Championships were in Val d'Isère last February; we won't guess if that is the second or third listed example). But take it from the source:

[...] the UCI is aware of at least three other major International Federations who have experienced significant problems working with AFLD. One International Federation now arranges sample collection and analysis of samples by parties outside of France for its premier event on French soil; another International Federation had to severely reprimand AFLD for failing to conduct sufficient tests on the French national team members before a major World Championships in 2009. Yet another International Federation experienced the same breakdown of anonymity of a sample sent to the laboratory with the athlete’s name included.

UCI's report writer (who Ww congratulates for her or his objectivity) starts by noting the concept of 'partnership':

A relationship between individuals or groups that is characterized by mutual cooperation and responsibility, for the achievement of a specified goal.

The only component missing would have been a citation to the WADC, Article 20.5.2, as we had written two weeks ago: To cooperate with other relevant national organizations and agencies and other Anti–Doping Organizations. It is evident from reading these 12 pages, that the UCI has a long history of 'AFLD stories'.


Start with the comment that the AFLD had requested information so that it could carry out 'extensive pre-Tour testing':

On 14 May 2009, Mr Bordry and some of his staff members met with the UCI and ASO in Aigle. AFLD and ASO expressed a desire to conduct a large number of targeted out-of-competition tests in the six weeks before the Tour de France. We agreed to provide AFLD with whereabouts information of teams who were training in France during this time. This was to enable AFLD to conduct the large scale out-of-competition testing that they considered necessary. By the start of the Tour, UCI had conducted 190 out-of competition tests on riders short listed for the Tour, while AFLD had conducted 13 tests. Of these, 6 were on French riders whom they have access to test all year round.

Sacré bleu, Pierre!

Where, between all the press conferences and your constant 24/7 tracking of Lance Armstrong, did you find the time to send your staff out to test seven foreign riders on French soil (in two months)?! The UCI commentary that six of those thirteen tested riders were "... French... whom they have access to all year round." seems compelling evidence that, as one once said about GW Bush (and as is said about half of the Western-clothing-wearing transplanted 'ranchers' to Texas), Plucky Pierre is...

'All Hat No Cattle'

The UCI response reminds us, that in the two months in which AFLD took to 'verify' and publish it's 'J'Accuse!' report, it failed to remind itself that the Tour was in Barcelona on 9 July, not the 7th.


It reminds readers that UCI was accused of 'speaking of forthcoming tests in public in a loud voice (we are not aware of the specificity with which AFLD cast that observation)', and responds in saying that "... on the night of 9 July [Ww: not the 7th], the UCI DCOs shared a dinner table with UCI race commissaires and did not discuss their anti-doping activities at all."


(Maybe the AFLD staff were not at the next table?)


The UCI response recalls AFLD allegations that 'chaperones were not used for early morning blood tests', while the UCI asserts that its standard procedure mimics those of 'team sports', where the Team Manager (or director, coach: responsible) is notified, commenting that if you have to do 200 tests in one morning, it's not efficient to have individual notification. Sadly, AFLD didn't seem aware of that possibility, and Ww suggests that more collaborative relations would rendered moot the 'point' raised by AFLD's accusations.


The UCI presents its own allegations, in several places. It responds to the comment regarding no chaperones on 11 July, by stating that there were fears in the UCI contingent that there could be leaks from the AFLD chaperones regarding which riders would be chosen, and a more simple explanation: "because the chaperones were lodged a long way away from the hotels at which testing would occur." Maybe the AFLD report should have faulted ASO for assigning lodgings so far from its work zone? Hmmmmm...


Another day AFLD chose for this type of complaint, was the Team Time Trial stage, and (we were not aware of this competence) due to the fact that UCI DCOs also are fully-vested Race Commissaires, and their presence was required and fulfilled to ensure a proper race control. The UCI did acknowledge one of its DCOs informed one team director about an upcoming control, and that this was originated only five minutes before that stage ended, in the effort to make sure the director knew to look for the AFLD chaperone. UCI discussed this seeming 'impropriety' with that DCO, and takes the stance that such information 'was not a necessity', and thus is preferable to avoid. Hardly seems, as one instance out of some 700 to 800, to require the cry of 'scandal!' that AFLD's initial acts of war generated.

SIDEBAR: The AFLD six-months' activity report, of which WADAwatch posted a summary here, discussed a total of 537 samples being submitted (185 urine and 352 blood samples, of which 180 from the start of the race) by the riders: in the UCI response, the number cited was 762 (185 urine samples, 246 blood samples and 331 'biological passport samples').

Has anyone noticed the discrepancies in these variously-published numbers? Are we missing some 106 blood samples? One would think the numbers, of anything, could match between these two control-oriented bodies...

The points in the UCI response continue ad infinitum, and we encourage the faithful to read that report, linked here (again). We prefer to use our independent (and under-funded) status to offer a series of quotes that the UCI offers, regarding the unprofessionalism of the AFLD report, and its manner of publication to the press, prior to receipt by this fellow WADC Signatory and WADA itself. A long page-worth of extracts follow:

The role of the AFLD according to the agreement was modest. In short, they provided the doctors to assist our Doping Control Officers.

[...]
The AFLD’s unilateral decision to conduct an informal observer programme, with the unfortunate result of an untimely, incomplete, misinformed and inaccurate report is puzzling and disappointing. It calls into question the motives of AFLD.

[...]
Most importantly, a true partner in the fight against doping in sport does not take actions which may substantially undermine athlete and public confidence in the harmonisation of the international anti-doping effort.

[...]
One of the gravest and most unfounded of AFLD’s assertions relates to favourable treatment given to Astana riders. This was an issue which was raised by the AFLD during the Tour in mid July. President Pat McQuaid investigated this issue immediately upon becoming aware of it during the Tour and responded in detail to Mr Bordry. The fact that he raises the issue again shows his complete disregard for the facts and the partnership.


[...]
Astana riders, who comprised 5% of the total number of participants, were subjected to 81 antidoping tests, or over 10% of the total tests conducted. In fact the top individual Astana riders received more than three times the number of tests of most other riders in the race.

[...]
Before responding in detail to the public assertions made by the AFLD against UCI staff, the UCI wants to make two things clear. Firstly, these sort of unfounded criticisms should not be raised in public.

[...]
However, with the UCI’s reputation already shattered by Mr Bordry’s actions and rhetoric, there is no recourse but to set the record straight in the UCI’s correction of his mischievous and misinformed statements.

[...]
Secondly, it is important for everyone to understand that AFLD is far from perfect in the implementation of their own anti-doping activities. The common saying which seems relevant here is “people in glass houses should not throw stones”.

[...]
... five [Ww: of the six tests carried out on French riders, all from the same team, all on the same day] were declared invalid [Ww: due to improperly labelling (by AFLD) of the sample containers with “full names and details”] makes us question the competence of the AFLD and their authority to point the finger at others.

[...]
The leakage of highly confidential anti-doping information from French authorities is well known in anti-doping circles and UCI has experienced this for many years. This may be a structural deficiency in that AFLD encompasses both the testing department and the laboratory, which it openly refers to as its analysis department. Even as recently as the 2009 Tour de France, the UCI continued to suffer from a lack of confidentiality from AFLD. As an example, immediately following an early morning blood test, an AFLD staff member informed a representative of ASO, the race organiser, about issues relating to one particular rider and his sample provision.

The UCI did not make this public.
The UCI did not put AFLD in the pillory over this.
(Ww: emphasis added)

[...]
In addition to matters arising from the Tour de France, on 8 June 2009, the UCI President had previously written to Mr Bordry expressing concern over the unreliable manner in which AFLD doctors were undertaking their role at UCI events. These concerns were mostly related to AFLD doctors simply not attending races to which they had been assigned or to giving riders completely incorrect instructions about the nature of their sample provision. Several UCI international races went without adequate doping control because of the failure of AFLD to fulfil their commitment to the French Cycling Federation and the UCI to send doctors to conduct testing.

It serves now, to recall that WADA has a problem with non-compliance from Signatories, and this has evolved into a systemic problem: Italian Football leagues misunderstand rules-implementation, small IFs have not the funding to perform out-of-competition testing as required, a certain country has been known to arrest DCO on official sample collection trips, and confiscate duly-acquired samples... and now we seem to read that a Agency head has acted in such a way as to have the 'victim' IF wondering what possible motivations exist?


And thus, by the benefit of AFLD trying to accuse the UCI of 'malingering' in its duties, we spot evidence that it may, in fact, be the accuser, AFLD, who should stand at the Bar', facing the first-ever WADA 'Compliance Investigation'... or would Bordry be forced to stand down, and resign from the AFLD director's chair?


What outcome from WADA, would result from the unprofessionally-dispersed allegations publicized by the AFLD, and its analysis of these proper UCI response(s)?


This is a separate issue from the 'Case of the Medical Waste', in which one hopes the 'DNA evidence' that comes out, goes as far as to investigate any fingerprints found on the material itself: after all, one of the parties that became aware of this case, has full access to riders' blood and urine samples, and could easily plant such damning 'evidence' on materials that were collected from who-knows-where, and introduced as potentially incriminating evidence.


Mr Fahey, whose visit to France wasn't (highly) published until the AFLD published its communiqué, may have also visited the UCI while on the Continent. WADAwatch would hope that to be the case. And WADAwatch does not see the need for WADA to conduct an 'open trial' of Bordry... there are times when political discretion can achieve more, especially when superiors, or former superiors of someone like Bordry would show lingering regrets for the publicity that has attached to this boding situation.


Fahey may have to call in the services of someone like Hans Blix, world-renowned legal 'weapons investigator' authority, whose competent services in Iraq were acknowledged by all the world, other than the US administration of Dick Cheney and GW Bush.

Chère Madame la Secrétaire Rama Yade,
on serait ravi d'entendre que
vous en avez eu assez ;
le temps pour une décision est maintenant :
quel avenir pour l'AFLD?

[Dear Mme Secretary Rama Yade,
we would be happy to hear that
you've had enough;
the time for a decision is now:
what future for the AFLD?]

To be continued....

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

copyright 2009 Ww