Is WADA 'aiding and abetting' Lance?

The previous WADAwatch post discussed our perception of the AFLD's actions vis-à-vis Lance Armstrong, and the French perception (as usual, coming from leaked confidential information provided to L'Equipe) of his 'violation', regarding a visit, a wait for confirmation, and a shower outside the view of the attending DCO (Doping Control Officer).

As of today's date, we are not aware of AFLD having provided a full copy of the report submitted by the DCO. We have read reports that indicate, from Johan Bruyneel, that 'all (the interchange between Lance and the DCO) passed as it should, cordially', we read online about Lance saying the cutting of his hair was 'brutalized', and we reported how the AFLD DCO was under oath as a job requirement.


We wrote:


"Simply, Lance contended that the following occurred:

At question is a 20-minute delay when Armstrong says the tester agreed to let him shower while the American rider's assistants checked the tester's credentials."

Now, thanks to our generally-available 'sources', we find that Lance may have acquired a formidable ally, indirectly.


WADA itself.


Through another** lost appeal, WADA appears to have offered Lance Armstrong enough ammunition (if the facts as we have gleaned them remain relevant to his case).


**On 17 December, 2007, WADAwatch published this post:

WADA appeals, loses ASADA – Karapetyn case

In which WADA pushed for a ruling at CAS, through judicial interpretation (aka 'a Tax' on litigating Athletes, who must argue against WADA regarding poorly drafted (or as-yet indeterminant) CODE (or ISL, IST) Articles), as we wrote then:

WADA based its appeal on seeking support at CAS for its ambiguous drafting language of WADA CODE 2003 Article 10.7 (“Disqualification of Results in Competitions Subsequent to Sample Collection”), which calls on ADOs to strip athletes, who were determined to have violated an anti–doping rule, of their interim victories, results, prizes or medals. However, the CAS decision agreed with the Respondents' arguments, which invoked among other items, the language of the Article itself, which includes the phrase “...unless fairness dictates otherwise, ...”.

The CAS Decision came out against WADA's position:

In doing so, CAS refuted the World Anti–Doping Agency's apparent contention: that an ADO with the authority, via the WADA CODE, to 'disqualify results in competitions subsequent to sample collection' MUST do so, in spite of the clear wording “...unless fairness dictates otherwise, ...”.

CAS reasoned that ASADA had acted within the discretion provided specifically through the AWF's adoption of the WADA CODE into its Policy, when that discretion was “...applied in good faith, without bias, error, or undue influence.”

Specifically: “ASADA considered the athlete's inadvertent taking of the banned substance nine months before the Commonwealth Games, the fact that the stimulant in question has no lasting effect on the athlete's performance and that his doping control results one month before, during and after the Commonwealth Games were negative for any prohibited substances.”

Follow this link to that 17 December post.


So once again (if there were other adverse positions that WADA sought to appeal, following Decisions favouring Athletes, Ww has missed those...), WADA has searched to incorporate, through the prejudicial facts of judicial interpretation (translated another way: cases where Attorneys representing the Athlete must argue a point (driving up legal costs) which by definition must usually be unclear, ambiguous, or poorly drafted by WADA and its Signatories), the strict construction of Article 2.3.


The case?


CAS 2008/A/1551 WADA v. CONI, FIGC & Cherubin


As briefly as possible, this concerns the same issue now facing Lance Armstrong: "notice".


Notice is one of the most well-known and misunderstood legal principles. Anyone that ever watched a TV police show (at least from the USA), is at least subliminally aware of the concept. You see a criminal, at the same time the police (on camera) find them.


And what does the policeman (-woman) cry out?

"Police! Stop or I'll shoot!"

That is the legal principle involved.

An agent ("Police!") representing the 'State', has identified themselves.

He or she issues a command (One word: "Stop!") that advises the 'alleged criminal' to undertake a commanded action.

And then, the criminal (woe be it if he or she is deaf, or without linguistic competence), is put on NOTICE ("Or I'll Shoot!") of the CONSEQUENCES that will follow if the 'alleged criminal' does not comply.


In the Cherubin appeal by WADA (interested readers are strongly adviced to follow the link above, for the 18 p. Decision), Cherubin was 'referred' to the FCJ (the 'football league court') by the assigned prosecutor, NOT for violation of Articles 2.3 (Refusing or failing without compelling justification to submit to sample collection after notification) and 2.5 (Tampering or attempted tampering with any part of doping control). However, the prosecutor did claim that Cherubin "showed a 'lack of cooperation'" in the completion of the anti-doping procedures, invoking a violation of Articles 6.2 and 6.5 of Italy's Operating Instructions of the Anti-Doping Commission.


At the first instance, all charges were dismissed. The prosecutor appealed, to the 'GUI' (in English: Panel of Judges of Final Jurisdiction on Doping Issues), requesting sanctions under Article 4.2 of the Operating Instructions of the Anti-doping Prosecutor's Office. As CAS notes, that provision calls for a "sanction between one and six months ineligibility [which] can be imposed on any licensed athlete who does not provide the required cooperation [...] without advancing acceptable justifications".


In this level of national appeal, Cherubin received a one-month suspension for the Italian Agency CONI rule (Italy has apparently suffered some recent changes to rules and Organizational titles: the CAS Decision reminds us of these: WADAwatch refers simply to Articles and Organs as presented); the body concluded that the Prosecutor's case was clear as to Cherubin's "negligence and incautiousness".


WADA received notice of this 20 March, 2008 decision on 11 April 2008, followed by an English translation on 8 May. WADA filed the discussed appeal with CAS on the next day, May 9th.


WADA's grounds can be read at this link (same again) to the CAS site, paras. 1 to 4.


Our notes summarize the CAS Decision that rejected WADA's appeal:

Background note: a football/soccer match in Italy, had two players from each team notified for doping control, in the closing fifteen minutes of their match. Four officials (it appears) were in charge of this action, under authority of the requesting ADO (CONI).

While three of the DCO officials (??!!) were 'occupied' with Cherubin's team-mate's urine Sample control, one other DCO official followed the two opponents (to stay as visual witnesses while they showered): Cherubin 'apparently presumed' he could do the same (some evidentiary conflicts on the various statements by Cherubin were resolved mostly in his favour, for reasons below). He then was apparently involved in a hostile TEAM-ONLY argument behind locked doors (not directed at his person), the amusing result of which was the dismissal of the team's Coach.

WADA contended, after the resulting disciplinary actions within Italy (described above) didn't satisfy its search for Justice, that the Decisions failed to incorporate Article 2.3 of the WADA CODE, by limiting the decision to rule 4.2 (renumbered since as 5.2)] "... under such rule the sanction between one and six month's ineligibility can be imposed on any licensed athlete who does not provide the required cooperation..." without advancing acceptable justifications.

Synopsis: WADA appealed a decision that was, more or less, favorable to the Athlete Cherubin (received a suspension (one month(!!)), much less than the two years that WADA exiged...) and for factual reasons VERY similar to Lance's case against AFLD (analyzed below).

Got that?

WADA demanded two years, while Italy gave the Athlete one month. The crucial question was found in how Cherubin went 'to shower' versus the requirement to provide 'notice why Athlete could NOT.' (start rubbing your hands, Lance!)

The following paragraphs reveal the status of how CAS interpreted these facts regarding Notice:

(para 64) ... the Panel finds the evidence given is not sufficient to satisfy it comfortably that the Player was unequivocally refused permission (to go shower) rather than just deciding to do so and not obtaining permission to do so. (...)

(para 65) (...) Further, the testers did not face the Player with the facts around his behaviour.

(para 66) (...) ... liability under article 2.3 has not been established because it has not been proven to the Panel's comfortable satisfaction that the Player actually refused or failed in the meaning of article 2.3 to give his sample at 22.25; but rather that he left the station without having been told not to do so in terms he could readily understand as being a formal injunction linked to a possible sanction and in circumstances enabling him to believe that if he immediately returned after taking a shower rather than waiting around while his teammate was being tested that would be sufficient.

KEY ANALYSIS: Without having been expressly told not do so, in terms he could readily understand as being a formal injunction linked to a possible sanction and in confusing (Three officials to 'observe' one of four taking his urine control, one of four watching two other individuals showering, and thus no one to follow Cherubin) circumstances that enabled him to believe that if he immediately returned after taking a shower rather than waiting around while his teammate was being tested that would be sufficient. It must be inferred that the above mentioned team brouhaha had some salient effect on the frustrations of the DCOs.

RELEVANCE: If Lance was not 'on notice' that going to take a shower could lead to a possible sanction (which would of necessity be expressed by the DCO who showed up alone at his house-training site in southern France), it shouldn't matter whether AFLD 'prosecutes' Lance "à la Française".

The CAS opinion, coming only a month before this AFLD 'situation' began, shows (in our Ww humble opinion) total similarities with Lance's case. As such, any disfavourable ruling by our favourite world-renowned ADO (AFLD), should be overturned by CAS if it goes that far (Although 'we' said that about Floyd's case)...

SIDEBAR: the Panel for CAS did not discuss the 'Equal Protection' aspects of this case (presumably not developed by Cherubin's legal counsel): one team's players were allowed to go shower, with an accompanying DCO (doping control officer) accompanying that pair of Players, while this DCO was inadequately and insufficiently staffed, to allow same for the player Cherubin, on the other team, who had to wait an identical time period for 'his turn' as did his two opponents (with people's careers and reputations at stake, one is hardly tempted to joke: "How many Italian DCOs does it take to arrive at one full urine sample receptacle?", with three observers for Cherubin's teammate)

This could be the first time in a Long Time that Lance would have grounds to thank WADA, for its diligent, repeated attempts to 'judicially interpret' the lacunae of the WADA CODE (what constitutes NOTICE?) and enforcing the resulting compliance by IFs and Signatories...

Our dearest Agence française du lutte contre le dopage (AFLD) is now, itself, 'on notice' that its oath-sworn DCOs must audibly REFUSE that the Cyclist remove himself to shower, with expressly communicated (and understood, and accepted) REASONS given, including that a failure to do so would result in possible disciplinary consequences.

Somehow, when WADA attempts to expand its legal arsenal, wherever judicial interpretations are concerned, through actions against Athletes whose cases are decided somewhat in their favour, these actions don't seem (at WADAwatch) to be very... appealing.

Remember!

Police do it all the time:

"STOP!! Or I'll shoot!!"

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

copyright 2009 Ww

WADA trial, de novo with a twist: WADA sandbags Landis

It is Day ONE...

FLASH: WADA helping USADA pay for Landis prosecution! A sign of 'neutrality'??? (see below, AND tomorrow)

Somewhere in a legal office in Manhattan, men and women will gather in one location, to hear, once again and perhaps for the last time, some five days of testimony, by participants and expert witnesses alike, the facts and theories, the tests and the complaints thereto, of the Floyd Landis case concerning possible testosterone abuse by the last American cyclist to have stood on a podium in Paris, on les Champes Elysées, to receive the Yellow Jersey, awarded to victors of the Tour de France.

Nobody in France knows how many of Floyd's predecessors were 'doped'; nobody in the world, may ever know the true history of LE Tour...

But certainty is as certainty does, and since 1986, Americans have worn the victor's Jersey eleven out of 21 years (3 for Lemond, 7 for Armstrong, 1 for Landis).

On trial today, is a defendant, yet an entire system is also at risk. When the decision falls, we will voraciously read the logic of a reversal*, in which Floyd is exonerated due to 'errors of procedure', or 'incapability of staff in a lab to follow clear rules, and use precision tools' (up to more than 500 thousand Swiss francs, or similarly in dollars).

OR, we will read an affirmation* that the substantive evidence, in spite of the known, acknowledged, and minimized errors found therein, are still sufficient proof of a digression from purity in sport.

* While the case in front of the CAS is technically a 'trial de novo' (or 'new trial') and not an appeal per se, where the 'errors' of the 'lower instance' are hashed and rehashed, still the outcome, based on new arbitrators hearing perhaps repeated or new arguments from Floyd's attorneys and the USADA lawyers, will share the legal reasoning of the USADA, which was prevalent at the first hearing, or it will tack to the lee side, and concur, perhaps, with the reasoning of Christopher Campbell, the single arbitrator who sided with the theory presented by Floyd, that the sum total of work product issued by the Laboratoire nationale du dépistage du dopage, or LNDD, was not competent to rise to the level of inculpating evidence.

Out of the wordwork now, are coming new statements via authors that 'know Floyd', such as this article by Martin Dugard, who passes long paragraphs in support of Floyd, and their common history as one writer and an Athlete-cyclist, and let's us know that Floyd DOES state 'Lance doped', and at the end of his long story, that he believes Floyd 'did it also'.

The trial starts sometime Wednesday morning, in New York City.

WADAwatch reminds readers everywhere, that one simple fact has come out of the Floyd Landis case: the entire 'œuvre' created by WADA, has made itself examined as nearly in depth as a competent gynaecologist may...

Are lab errors given the same disciplinary weight as an Athlete whose tests 'may reveal' doping products or procedures?

Are Signatories, whose subordinate agencies disregard evidence of 'lab irregularity', to be rewarded or punished, to the same degree, or more severely than an Athlete?

Are Signatories who ignore prime Articles in the CODE, and thereby instigate secondary and duplicitous procedures (as well as prosecuting the Athlete under the wrong section of applicable law) against an Athlete who has already been duly investigated, prosecuted and penalized in a properly-constituted forum, doing so in all impunity from WADA?

Is WADA, now in the implementation phase of its newly-revised CODE, preparing to 'secure' more cases, and offer less Justice, through its sidestepping distancing from the classic burden of 'A Sample, B Confirmation' testing procedures?

The words of Director General Howman, spoken to WADAwatch in person, at the Third Press Symposium, assured that the ideals of WADA were the opposite, that Justice should prevail, over 'winning at any cost'.


FLASH: part two... how can Mr Howman declare in February, that WADA is more interested in JUSTICE than victory, and then 'come to the rescue' of USADA, against Floyd Landis? The hypocrisy is reaching a climactic dénouement, mes amis... how much of that money from WADA is sourced from the bank CREDIT LYONNAISE? Via France? A new definition of outrageous conduct, has been entered into the WADAwatch lexicon of sporting justice.


[Now we return to our previously-written column...]

We shall see, perhaps, in the next five to eight weeks. We should know, before mid-May, if CAS does what it normally does.

This is beyond a 'last chance' for Floyd, beyond a 'final conviction' or 'loss of his appeal'; this case is an affirmation that the WADA CODE affects all of its constituent components with a broad brush painted...

EQUALITY

A quote from Floyd, which made the news last week, may be self-serving, or may be the Ultimate Truth... "

"to wrongly strip a champion of his victory due to a flawed test is much worse than to have an athlete cheat his way to victory."

Feel free to quote WADAwatch also:
"To support erroneously a system that seeks hypocrisy over Justice, who implements imbalance over fairness, who supports Signatory countries which are acting illegally and contravening its CODE with rampant insouciance, is an egregious act of a compliant press, and an ignorant public."


Mr Howman, you can't have the butter, and the money from the butter also.

WADA's investment in USADA prosecution sets a very, very bad precedent.

LIVE with it...

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

Aghastly watching New York,

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

© 2008 ZENmud productions