WADA true story in Black and White...

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


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


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


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


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


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

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

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


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


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


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


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


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


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


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


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

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

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

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


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


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


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


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


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


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

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

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


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


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

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

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


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


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

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

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


See the Code Article(s):

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

Or the ISL:

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

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

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

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

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

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

[.....]

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

Amen...


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

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

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

Pyrrhic victory?

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


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

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

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


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


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

And that is (Finally?) the

Black and White

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

copyright 2009 Ww

WADA v World... post Landis stress syndrome?-

After release Monday of the strongly–worded Landis case appellate decision, published by the Court of Arbitration in Sport, the steadfast Knight in now–stained armour, who lost the world's most expensive, private anti–doping arbitration process since the IOC begat WADA at the start of this decade, has had his testosterone–based USADA suspension confirmed, now in the spotlight again, confirmed as guilty in the eyes of the world, for actions of which only he knows the deepest truth.

Apparently WADA, according to their press release, is really really mad that people have 'observed their minutia' rather than trusting them, as the experts (ahem...) in this vital growth industry that is Sport Doping Control (you young law students ought to consider this specialty: free trips to the Olympics, world travel, it's a gas gas gas...!)

This is the first instalment in a multi–article series of analyses.

Part ONE: Knight, knave, or Don Quixote?

The CAS Decision shafted many more dreams than those of Floyd Landis, the former Tour de France 'winner', now twice–defeated in his legal battle against the charge of testosterone doping. A rare American, of the Mennonite religion, a believer, as are most Americans, of the ideal (or myth) of 'truth and justice'.

Around the globe, one presumes that now, before a renegade Tour de France begins in two days, and the Beijing Summer Olympic Games in August, the attention of most world–class Athletes, their parent International Federations (IFs) everywhere, national or regional Anti–doping Organizations, and perhaps a select few of the world's sporting press are curious as to whether this 58–page defense of the 'System' has any long arms attached.

Where WADAwatch had urged CAS to create the Landis Rule, (see para. 27) surplanting the thirteen year–old Quigley Rule (below), the opposite has occurred, to the detriment of clean sport and clean anti–doping efforts. A cut to the quick?

An interesting paragraph from this third Landis Decision (two legitimate USADA or CAS decisions, one extraordinary renegade French Decision) has captured our attention, now three months after Ww published its Revised Amicus Brief (“RAB”) on behalf of Floyd Landis, as well as future WADA–accredited laboratories' AAF victims, in the latter third of the Landis Final Decision. Quoting the Decision's paragraph:

259. There is a clear distinction between administrative deficiencies, bad laboratory practice, procedural error, or other honest inadequacy on the one hand and dishonesty or bad faith on the other. Some of the Appellant's expert witnesses appeared insufficiently aware of this distinction.

Does that strike any other reader similarly?

First off, all but the first (“administrative deficiencies”) are outlawed by the WADA CODE.

Bad laboratory practice? Check the CODE, and the ISL: not allowed.

Procedural error? Presumably, if meant about labs, these are not acceptable by the CODE or ISL (which refers constantly to the ISO 17025:2005).

But?!

“Other honest inadequacy”?

That non sequitur is not in the CODE, nor the ISL, and shouldn't have reached the final draft of this Decision. Inadequate laboratories are to be suspended, or have their accreditation revoked. NB: with the world reading about the Copenhagen study published just last week in a scientific, peer–reviewed journal, more consequent results are surely to follow, if WADA wants to retain some level of credibility as an “lab accreditation” source. 'Non sequitur', in fact, as an 'inadequate laboratory' must either denounce itself (“Sorry, we are incapable of such high scientific performances”), or be withdrawn from the WADA list of 'accredited laboratories'.

Clearly, CAS seems to have not understood how it has confirmed, in terms that Floyd and all future Athlete–victims are supposed to understand, that in order to sustain WADA–world, the ensemble (WADA, its Signatories, labs and official system of justice) now condones administrative deficiencies, bad laboratory practice, procedural error, or other honest inadequacy, on behalf of the WADA–accredited laboratories producing Adverse Analytical Findings (“AAF”) evidence. While apparently seeking to chastise this Appellant (rather, his legal team) that dishonesty or bad faith require 'proof', CAS has, in effect, struck a deep blow against its Quigley Rule.

[NB to Richard Young: you may need to include a definition of honest inadequacy in the next published version of the WADA CODE.]

The only clear distinction we found is that this CAS Panel, made up of three officials selected from the exclusive CAS list of sports–law arbitrators (apparently in response to the late arguments in closing submissions as to fraudulent or covered–up activities alleged by Landis' attorney(s) against LNDD or certain staff), may not have been willing to deal with the terrible realities stemming from any ratifications of the 'reams' of evidence that had been presented, whether at the AAA hearing or this appeal.

In the paragraph (#258) which preceded the above quoted text, Jan Paulsson (whom WADAwatch had hoped would raise several Chris Campbell–styled arguments, in as clear a fashion as he had when presiding over the Landaluce case), thoroughly diced up the work plan followed by Landis' attorney(s).

Paulsson made his point reasonably: making an argument does require evidence, items that had been revealed (or not?) since the fall of 2006 (eg: what ever happened to the frothy French claim that LNDD's computers had been hacked into by associates of Landis'?), and the creation of the Landis Wiki–defense, show skeptical documents all purportedly originating at LNDD. All were accepted by the Panel as 'proof' of Landis' wrongdoing. But was Paulsson accurate in denouncing the lack of evidence pointing to fraud? Had Landis' attorneys simply not acted, or had they overstepped their known attacks through hype? Paulsson opined:

“... if Mr Suh is on the subject, if he continues to pursue the themes of bias in the lab and cover-up in the light of the evidence of these hearings, it would be handy not to have a lot of adjectives about it, but just notations of what are what is the evidence of those propositions, in objective form.”

We cannot yet be sure “what are what is”, but since the LNDD documentation has been online, the world can arbitrate in private, to their commensurate ability to download. Make the Landis evidence your next Party Theme!

Paulsson's castigation of Landis' legal defense team, seems to have forgotten the evidence offered (see CAS transcript pp. 815–820, then 1471–1472; all conveniently displayed in Dr Arnie Baker's book, at pp. 39–40), wherein yet another non–chronological 'contemporaneous data entry' was unsatisfactorily explained by the LNDD witness, Claire Frelat. Apparently, the very words of Richard Young were sufficient to sway this Arbitration Panel:

“I certainly wouldn't jump from that to the conclusion that the last entry was a fraud.”

(Okay Mr Young, you're on the CAS List of Arbitrators: you're 'one of us': if you say it isn't a fraud, we'll make sure that it isn't...)

The first 'that' which Young stated, refers to a USADA exhibit, submitted as the contemporaneous maintenance log of the GC/MS analytical machine. There is no way to create a January 20, 2006 entry, BELOW an entry for January 30, 2006, without the log instantly becoming 'non–contemporaneous'. So how did Richard Young's associated Attorneys on the CAS Panel rule?

CAS Decision last Monday: “189. The Panel finds that there was no SOP violation and accordingly no ISL violation.”

Merry Christmas, Mr. Young.

Since the previous AAA decision precisely eliminated the most 'irregular' test (for T/E) from the case below, CAS was perhaps exceptionally well–placed, because of that anticipatory AAA Decision, to be able to sidestep one of Floyd's stronger issues. Had that T/E result reentered the case, could CAS assert as it did?

Coming back to para. 259 and its 'clear distinction', Ww thinks that CAS has put on the one hand, any “administrative deficiencies, bad laboratory practice, procedural error...” and labelled those “honest inadequac[-ies]”, through inclusion of the conjunctive “or other...” [presumably: deficiencies, bad lab practices, procedural errors]”, and set those apart from “dishonesty or bad faith”.

Honestly, inadequacies of the type which CAS now finds condonable in the quest to quash any athlete's well–funded defense, are an even greater expansion of the powers of laboratories to advance cases of dubious legal merit.

WADAwatch has not, in offering these opinions, ignored the harshness to which this CAS Panel directed invectives towards both Landis and his squad of expensive attorneys. Ww finds it strange, however, that CAS 'made nice' to the inadequacies of the LNDD, which are in some measure at least equal if not greater than the 'inadequacies' of Landis' indefatigable defense.

Offering the sporting world a sense that 'anything goes, in our labs: anything is permissible, EXCEPT proven dishonesty or bad faith', is not an impressive tag to graft onto the term “WADA–accredited”. Yet CAS has achieved precisely this.

Some months ago, when WADAwatch published our Revised Amicus Brief, and now turn to the four issues that were raised therein. This article deals primarily with the first two:

1. What level of confidence can be associated to the evidence that the Laboratoire Nationale du Dépistage du Dopage (LNDD) offered (being a French governmental laboratory, now renamed the 'département des analyses', and hierarchically placed within the Agence française de lutte contre le dopage (AFLD)) in the Floyd Landis testosterone case?

2. Was Landis inculpated only due to an unequal application and enforcement of the WADA Code between classes of stakeholders?

To be covered 'prochainement' (FR: 'nextly' or soon)

3. Is WADA's expressed reliance on 'Judicial Interpretation', as a means to amplify unexpressed, or hypothetical meanings of its Code, actually a “Quigley violation”, and detrimental to proper WADA rules promulgation?

4. Given the aspects of Argument III, supra, is participation by WADA in financing a majority of the USADA appellate costs in this case a legitimate use of its funding under the controlling 2003 WADA Code, or does it establish a very discriminatory precedent toward future Athletes, whose defense of their cases, solely due to WADA's inordinate reliance on 'judicial interpretation' as opposed to proper Code drafting, may be more contentious and thus more expensive than otherwise would be the case under a properly drafted WADA Code?

Taking each of the first two issues in turn, with some commentaries dredged out from the RAB, this article continues its analysis of the dénouement of those topics.

I Level of confidence:

CAS found LNDD's laboratory performance sufficient to confirm Floyd's 'conviction'.

Remember that the AAA Majority Decision had stated, regarding the 'sloppy lab practices' of LNDD, that if “such practises continue it may well be that in the future an error like this could result in the dismissal of an AAF finding by the Lab.”, and the Minority Dissent had offered its variation less subtly:

“From the beginning, the Laboratoire National de Dépistage et du Dopage (“LNDD”) has not been trustworthy. In this case, at every stage of testing it failed to comply with the procedures and methods for testing required by the International Standards for Laboratories, Version 4.0, August 2004 (“ISL”) under the World Anti-Doping Code, 2003 (“WADA Code”). It also failed to abide by its legal and ethical obligations under the WADA Code.”

Ww had stated (RAB, paras. 5–9): “There are very few exceptions to a rule for Athlete's ingestion of Prohibited Substances, or Procedures, yet the AAA Majority, in this specific case, has appeared to create a 'do–over' rule for lab failures that is not found in either the WADA Code or ISL.”

It now appears that CAS confirms this WADAwatch interpretation of the AAA ruling, from the ruling of this appellate Decision...

SIDEBAR: Whether or not an innocent coincidence, it is still stunning to see that, at each stage of the Landis case, the Arbitration panels were presided over by compatriots of the two successive WADA Presidents: Patrice Brunet of Montreal for the AAA Panel, during Canadian Dick Pound's final two years in power, and David Williams QC of Australia, for the CAS Panel, as Australian John Fahey reaches the midpoint of his first year in office.

... paragraph 259 insulates WADA–accredited labs from multiple types of errors, and in fact nearly created a new worldwide term: 'Standard Operating Mistakes' (“SOM”?), that they evidently are prepared sans precedence to allow: CAS has buried the Quigley Rule, at least as regards WADA lab record–keeping. As long as no proof exists (a very key element) that those mistakes originated through dishonesty or bad faith, to the degree that future cases reveal evidence of equally sloppy, untrustworthy or ... honestly inadequate errors, CAS is going to back the bad labs that send it untrustworthy work.

Questions as to lab performance that were left unanswered from the CAS Decision (which may very well have been part of the closed–session hearings in March), could include:

A. How much actual consecutive time does it take to perform standard T/E, or IRMS doping control examinations, across the WADA family of 'accredited laboratories' (and accounting for varieties of machines used), and was the time invested to process the A Sample 995474 outside of these norms? By what factor?

B. Is the machine or software that LNDD possesses for the pursuit of these tests obsolete? (does WADA have any form of compliance–certification that assesses these factors? Having a (hypothetically) 'newfangled' 1995 machine running 20–year old software that needs manual integration simply to override 'Computer Software Errors' (does not resonate with any concepts of 'state of the art')

Does WADA need to fund the French Government to provide its lab staff with newer analysis equipment? How is the research at this laboratory validated anyway? There are few publications available at the lab's website, and we have published several times, that lack of any accreditation documentation available from COFRAC, AFLD, or LNDD, concerning that lab.

WADAwatch is thus of the opinion that this CAS Panel has now confirmed the unwritten or omitted notion that WADA–accredited laboratories are not held to any high standard of performance by the organization that uses their results to pursue doping cases against Athletes, who are being held to the strictest, most unwaveringly high standards of liability.

The level of mistakes allowed by CAS, in endorsing LNDD–provided, USADA–approved evidence, have demonstrably turned the tide on the 13 year–old Quigley Rule (more on this below); as labs have been proven to receive every 'benefit of the doubt', much as the families and children of WADA–accused AAF Athletes would shed a tear of joy to receive similarly even one small benefit.

The days of Quigley are now in a receding tide, for Athlete's protection within 'the system'. Here's how.

II Unequal standards for WADA stakeholders

As the precedent argument demonstrated, when labs are not held to a strict liability standard for its work, then WADA has not created a balanced prosecutorial system: it has created an Inquisitorial system.

WADAwatch had argued in the RAB (See paras. 10–23) that a series of CODE Articles pointedly demonstrated either a serious breach, or a conscious omission in the drafting of the CODE, leading to a lack of oversight, or an incredibly lenient allowance by WADA, in its oversight role as to the scientific practices undertaken by its laboratories. CAS has now verified this. We wrote:

10. WADA appears to have deliberately produced an enforcement system, being the WADA Code, and its related subsidiary International Standards, that has been designed to protect its Signatories unduly, and inflict unnecessary legal costs on victimized Athletes.

In fairness, Ww reminds that the Director for Laboratory Standardization and Harmonization, in a direct conversation in Madrid, had discounted these theories by insisting that such lacunae or omissions were found in the ISL. We're still looking...

However, CODE Articles 6.4 (Analysis of Samples), and 7 (Results Management), including its sub–Articles 7.1 (Initial Review) and 7.2 (Notification after Review), were the focus of that Ww analysis. In the CAS Decision, not one of these Articles (6.4, 7.1, 7.2) ever appears; they seem to have been not any part of either side in this case: no one raised this particular battle pendant.

Why?

Floyd may have wanted to consider these earlier in the process, and whether WADA and USADA might have been forced down a different defensive path is a battle for another day (a small sardonic reminder that Ww did not receive any portion of any millions of dollars from any benefactor for these pro bono analyses).

Ww concludes that the case appears (superficially (!) to the undiscerning) as justifiably decided, since the Arbitrators acted as if the above–listed Articles were not substantively and directly necessary to reach its conclusions, which it could (and did) do by retaining a focus on sub–Article 3.2.1.

To begin, let's compare the WADA CODE sub–Article(3.2.1) that dominated the Landis hearings with the other three sub–Articles:

3.2.1 "WADA-accredited laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for laboratory analysis.

6.4 Laboratories shall analyze Doping Control Samples and report results in conformity with the International Standard for laboratory analysis.

While most international jurists would deplore the lack of uniformity in WADA's presentation of precise language, Ww points out that 3.2.1 is found in the body of Article 3, Proof of Doping, while 6.4 issues from Article 6 on Analysis of Samples, and Article 7 mandates Results Management.

Given that the evidence that is eventually provided to a AAA or CAS Panel (from urine into a sterile bottle, or a drawn blood Sample), as proof of doping must originate from earlier Analysis of Samples, the precedence of fulfilling Article 6.4 mandated proof ('shall') should have held great priority over the more slippery presumption found in Article 3.2.1. In layman's language, 6.4 offers Zero 'wiggle room', while 3.2.1 offers an entire dance floor of 'presumptions'.

This anomaly points out one of the greater problems in how the CODE was drafted.

Since the Article concerning the labs (6.4: Standards for Sample Analysis and Reporting: a strict mandated standard) takes legal precedence over Articles concerning ADO receipt of lab evidence of an AAF (7.1 Initial Review Regarding Adverse Analytical Findings), and subsequent informing the Athlete through 7.2 (Notification After Initial Review), prior to commencing any hearings (Article 3 Proof of Doping), we have only WADA, probably Richard Young, and a Drafting Committee to thank for this unworkable, wrongly–structured system. Thanks to Floyd, however, the world has awoken to the injustices that prevailed.

Simple: 3.2.1 is a financial and evidentiary burden/shift.

By offer from WADA, the burden shifts from the Lab and ADO to LANDIS.

Unfortunately for prosecuting ADOs, being relieved of the early financial burden of analyzing Lab doc packages under 7.1, forces it to generate massive legal defense budgets at a later stage, much like the rookie raft guide who, instead of producing two oar strokes when 140 meters upstream, to avoid the rock, must pump the oars many times in the last 12 meters.

Somehow, it appears that the 'gift' provided to ADOs via the CODE drafting exercise(s) producing 3.2.1, as directed by Richard Young, attorney from Colorado, is a gift Horse whose mouth should be looked into. CAS, sadly, didn't see it that way.

Going deeper into this vital explanation: Art. 7.1 authorizes the procedure for USADA to verify that there were no departures that undermine the validity of the alleged AAF in the evidence, as presented by the LNDD laboratory in this case (post–6.4: Lab's strict performance per ISL and other rules), and to 'certify' (adding a WADAwatch conceptual component) the adequacy of the laboratory documentation package. Note that, in the new CODE, this standard that has been raised to conform with the more onerous language in Article 3.2.1 ('caused...' in lieu of 'which undermined the validity' of the departure). After an ADO such as USADA performs its 7.1 mandate, Art. 7.2 describes the regulations for controlling the flow of information concerning the AAF to the Athlete (nominally from an ADO or IF/NF (Landis, USADA or UCI/USA Cycling (license issuer).

Sidebar: WADAwatch has already described the obvious problem: there are no procedural rules to follow when an ADO would notify WADA of any departure from a laboratory's AAF lab–documentation package, when that ADO determines an undermining departure has been offered as evidence.

Seeing now how seriously these drafting failures are effecting Athletes, Ww would now add that a signed processed document should be mandated by and for WADA, copying the Lab, as well as the Athlete. When this becomes a part of the future WADA CODE, Athletes may sleep easier. Failure of a WADA Signatory ADO to observe and inform about departures should be a violation of the CODE. It should be a defense of the Athlete, prior to direct confrontation of a laboratory staff, that the Athlete was being abused by an ADO's silent acceptance of tainted evidence.

Why is the WADAwatch position the more logical?

Because under the CODE, a laboratory shall do highly competent and clean scientific work. An ADO shall review this submitted evidence. It's clearly written into the CODE.

The quality of the evidence package, itself and alone, is the only way to reduce legal costs on both sides... unless this is their best 'deterrent' for hard-pressed Athletes.

LNDD failed to understand that, USADA failed to report them (that itself points to the failure described in the Ww RAB: USADA has no course, via omissions to both CODE and ISL, to create an investigation of a lab for departures in its documentation. The CAS Decision expands dubious laboratory performances, and restricts an Athlete's ability to seek strict equal treatment: surely the primary focus of the entire reason WADA exists, including its Fundamental Rationale (CODE p. 3).

Another example of unequal treatment exists, thanks to an improper interpretation presented by this CAS Panel. ISL 5.4.4.4.1.4 (you don't have to memorize these) was excerpted, mis–characterized and mis–analyzed by CAS. The mis–characterization was “... are intended to deter reworking of data sets once produced, rather than compel laboratory technicians to produce reams of documentation in the course of analysis...” (emphasis added by Ww), which it extracted from a misguided reading of the excerpted portion of this ISL:

“... all data entry, recording of reporting processes and all changes to reported data shall be recorded with an audit trail” (emphasis from the CAS Decision)

It is a clear mistake (Floyd? Ready for the Swiss 'Supreme Court'? It's your only hope), to extract only 'reported data' from that particular ISL sub–Article, and claim this is the only requirement 'to deter reworking of data', that creates comfort for this Panel.

“All data entry” plus the “recording of reporting processes” plus “all changes to reported data”, have been linked by the word “and” in this ISL Article, and thereby they create a legally–inclusive and simple list that must be respected and implemented for the only proper audit trail, whether or not that damns a Laboratory to 'produce reams of documentation'. This follows what are commonly known in law as the 'Canons of construction' that determine, in real–world courtrooms, how a judge would interpret any statutory construction.

The CAS Panel has tortured this ISL into a creative writing fiction, which is exactly what they claimed Landis had done (CAS Decision, para. 53, second and third sentence), through his series of witnesses, experts and evidence analysis.

Through their unfortunate characterization that insinuates great undue efforts through choice of the word 'reams', they add mis–characterization to their misread legal folly. Whether paper, or in memory–sticks, Palm Pilots and DVD evidence submissions, a rule must be clearly followed (as CAS purported to instruct Landis, then violated their own directive), and CAS provided its improper analysis, further obfuscating the clarity of the ISL.

Laboratories that cannot perform to the standard laid out in CODE Article 6.4 should not be accredited by WADA, they especially shall not succeed in the 7.1 review required of ADOs, and information such as we've already analyzed should never be provided the presumption afforded under 3.2.1.

The Inquisitorial system is henceforth well–established, unfortunately due to Floyd Landis.

Floyd, whatever you have done, you are not yet aware of how this case has systemically changed the control of doping in Sport: worse in the short term, perhaps, wrongly for yourself, but the future of all Sport will be better for having attracted the attention you brought, justifiably, on this WADA world...

Stay tuned in for Parts Two and Three (sometime next week):

Part TWO: Death of the Quigley Rule... more case notes

Part THREE: WADA's and USADA's millions, for one man's two year suspension

NB: this quote taken from the WADA statement placed on their site earlier this week:

Mr Landis had every opportunity to present his case to hearing panels at different stages of the process. He did so and chose in addition to mount an aggressive campaign against the anti-doping movement, spreading an unprecedented amount of misinformation in the public domain to attempt to derail the attention from the core of the case.

Misinformation is only in the eye of the beholder...

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