IF Floyd rode under the IOC Medical Rules...
This is the First of a three-part article looking into the supranational legal effect of the World Anti-Doping Agency, its CODE covering doping analysis, and its effect on the cyclist Floyd Landis.
Click here for Part II, and Part III
I have questions about the rôle played by the WADA CODE, and its relevence to the ongoing battle between Floyd Landis, and the USADA, WADA and the Tour de France. I began this article by accident, when I read a clause in the IOC Medical CODE (excerpted from a paper by Lauri Tarasti, below, further citations sought), relating its procedures when existing evidence points towards a positive Testosterone/Epitestosterone (T/E) ratio, and the mandated steps before announcement of findings.
These questions relate to how Floyd Landis would have fared, in light of his positive T/E test in the 2006 Tour de France, and if he was treated under the WADA CODE as fairly as he would have if under Olympic authorities. (PHOTO credit: Bas Czerwinski - AP) There resides also the question of harmonization, which comes in the insertion of WADA as a new intergovernmental Organization (IGO).
To begin, certain passages of the IOC Medical CODE are emphasized the portions in italic, and in bold (and blue) italic, at the heart of this pertinent and vital paragraph:
2. IOC Medical Code, Chapter II:
The presence of a testosterone (T) to epitestosterone (E) ratio greater than six (6) to one (1) in the urine of a competitor constitutes an offence unless there is evidence that this ratio is due to a physiological or pathological condition, e.g. low epitestosterone excretion, androgen production of tumor, enzyme deficiencies. In the case of T/E higher than 6, it is mandatory that relevant medical authority conduct an investigation before the sample is declared positive. A full report will be written and will include a review of previous, subsequent tests and any results of endocrine investigations. In the event that previous tests are not available, the athlete should be tested unannounced at least once per month for three months. The results of these investigations should be included in the report. Failure to cooperate in the investigations will result in the sample being declared positive.
Is there harmony, between IOC MC-Ch.II and existing UCI Rules? Meaning: did Floyd enjoy any longitudinal testing that would, as is mandatory under the IOC Code above, serve to show a “physiological or pathological condition”?
If not, why are the IOC and WADA not in harmony on this issue?
The matter involves the documentation of International Standards for Testing, and International Standards for Laboratories, hopefully to be the focus of a second essay in the near future...
Does IOC trump WADA?
Not according to WADA... its Code, in sub-Article 20.1 et seq., manifest an obligation on the IOC to conform with the WADA Code, International Standard(s), and Best Practices. Yet if the WADA CODE (and International Standard for Testing) does not go as far as IOC already did, as found in the sequence reproduced above, should not WADA rectify the existing ambiguity by adopting the more stringent IOC standard?
If WADA had the supplementary testing requirement as part of its controlling documents, what would have been undertaken, to supplement the findings of Professeur de Ceaurriz' laboratoire, in the Floyd Landis Tour de France case?
A conference on updating the WADA Code will take place in late 2007. If issues discussed here are not addressed for inclusion in the WADA Code, or in the International Standards for Testing, it would reinforce certain perceptions that exist that WADA exists to satisfy governmental and political needs more than those of the competitive world it governs.
I suggest that WADA, if actually possible under the vitriolic leadership of Dick Pound, absolutely must strive to reinvigorate its CODE.
The CODE is a document requiring massive re-writing:
to harmonize its mandate; and,
introduce the requisite essentials that form objective and fair legal bases.
Balancing its quasi-legal system to afford more particular rights to the world class athletes in all sports, who undertake repetitive blood and urine tests, must be the goal. Those rights are not to provide any advantages to athletes – those rights are to receive transparent, exemplary science implementation, and guarantee confidentiality in the Results Management phase.
Even more severe, is a growing perception that the structure and inter-relationships between WADA, National Authorities and International Federations is not healthy or conducive to the fair administration of justice through private arbitration.
This indictment is not against WADA in the aggregate: it is specifically against its current President, Mr. Richard Pound, of Canada. Growing evidence serves as proof that, under his 'guidance', WADA has failed to maintain its penultimate, impartial and neutral rôle.
What's wrong with WADA? The GRAND CANYON in missing WADA rules coverage:
A humongeous chasm, wider than the Grand Canyon, exists in the World Anti-Doping Agency (WADA) in its efforts to harmonize and give structure to the fight against doping; that canyon is revealed as a fundamental failure to address a critical component in the testing process: a fatal flaw that must be addressed before WADA-associated Anti-Doping Organizations destroy other athletes' careers through negligence or malfeasance.
'Other athletes', in the sense that as you read this, Floyd Landis, 2006 winner of the Tour de France bicycle race, awaits his USADA hearing in May 2007, on the damning 'evidence' that he was 'positive' for an imbalanced testosterone/ epitestosterone (T/E) ratio: the tests that are used to measure possible exogenous intake of a doping product.
That critical, overlooked component is the lack of disciplinary control expressed in the WADA CODE regarding Doping Control Authorities, and/or their authorized laboratory(-ies), concerning their procedures and adherence to scientific standards. This article addresses the salient points revealed within the WADA “World Anti-Doping CODE” 2003.
Short tour down WADA-MEMORY Lane...
WADA was founded in 2003, inaugurated after the prior years had demonstrated doping corruption in many world sports not limited to cycling: the top of the International Olympic Committee was rocking from financial and influence-peddling scandals, and cycling offered its own “Affaire Festina”, which rocked the 1998 Tour de France, after a Festina team trainer had been arrested at the Belgian/French border, in a station wagon full of EPO and other illegal medications.
The birth of WADA in 2003 begat the subsequent acceptance of its CODE, which had been promulgated “...to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed anti-doping principles are implemented.”
Considered means; noble ends. Ignoble failure.
It is this article's contention that WADA's mission: 'to achieve complete harmonization on issues where uniformity is required...' is a sword with two sharp edges, and regarding which WADA has failed drastically in the achievement.
Clearly, the WADA CODE indicates what happens when any athlete has been tested positive; its Articles 7 through 11, (some 15 pages), specifically fix the processing of Sample Specimens, and consequential punitive steps. [NB: words in italics most often denote official language of the CODE.]
Yet the CODE itself does not elaborate how a laboratory becomes accredited, establishes its finding(s) and shall comport itself, in: maintaining state-of-the-art scientific testing apparati; objective performance (and auditable) criteria to be able to test Sample Specimens properly, and proper, confidential submissions of test data, that ensure the transmission of such results to the appropriate receiving Anti-Doping Organizations (ADO).
Clearly, how a laboratory produces the results that announce or reveal legitimate doping incidents, or false accusations that result from bad scientific processing, illegal tampering or simple negligence, must be held to as high a standard as WADA can expect from its captive audience – athletes the world over. The WADA CODE is a two-edged sword that now only cuts deep on one edge.
This dichotomy appears to be a failure for WADA, and its CODE.
WADA has demonstrably failed to provide, as its mission requires, a standard for harmonization and balance in the upholding of its rules. The applicable introductory paragraph of the CODE, regarding its INTERNATIONAL STANDARDS, conditions that: “Adherence to the International Standards is mandatory to ensure compliance with the CODE.” Yet how is such a simple assertion backed? Where are the sticks and carrots? Within the CODE, there are none, as will be revealed in Parts II and III of this article.
The WADA CODE certainly offers a great deal of specificity as to Athletes, as well it should. It covers so thoroughly nearly all aspects of procedures and results management reporting, as well as appeals regarding sports-doping, that the omission of any balancing regulations to uphold laboratory standards and accreditation stands out as brightly as would the Colorado River, gleaming away down in that ... Grand Canyon.
Yet the Laboratories serve as the front line against doping: the most critical component of the Doping Control phase. In an official document that even devotes an article (Art. 16) to the doping of animals (horses, one presumes), one would expect to read how WADA stridently regulates the laboratories that produce the AAFs against athletes such as Floyd Landis.
However, the WADA CODE does not define terms like 'Laboratory', 'accredited Laboratory', 'Testing Laboratory' or 'Testing Procedures' in any way, as THE critical component of Doping Control.
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