This is the Final part 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 I or Part II
We've introduced the basic format for WADA and its CODE, in Part I, and worked into a review of certain relevant clauses in Part II: now we skip through a series of interceding Articles, which govern: Hearings (8), Automatic Disqualifications (9), Sanctions on Individuals (10), Consequences to Teams (11), Sanctions against Sporting Bodies (12).
Although one should note that, there exists not one Article, one sub-Article or even a word addressing sanctions or loss of accreditation by an accredited laboratory, within this WADA CODE, however, within the following Article WADA allows ... well, read on!
WADA Code 13.5: Appeals from Decisions Suspending or Revoking Laboratory Accreditation
Decisions by WADA to suspend or revoke a laboratory's WADA accreditation may be appealed only by that laboratory with the appeal being exclusively to CAS.
[Without expressed means for sanctioning, suspending or revoking WADA accreditation, the CODE still offers the means whereby any 'discredited' laboratory can appeal such a finding, at CODE Article 13.5. Remember! There are 15 pages, from Article 7 to Article 11, concerning the legal rights and procedures against positively-tested athletes. It seems disingenuously anormal to have recourse to controlling the appelate procedure of a laboratoire that may be stripped of its accreditation for compliance failures, in a document that fails to offer such procedural mechanisms for destitution of accredited status.]
WADA Code 14.2: Public Disclosure
The identity of Athletes whose Samples have resulted in Adverse Analytical Findings, or Athletes or other Persons who were alleged by an Anti-Doping Organization to have violated other anti-doping rules, may be publicly disclosed by the Anti-Doping Organization with results management responsibility no earlier than completion of the administrative review described in Articles 7.1 and 7.2. [.....]
[Thus the only acceptable, legal source of publicity stemming from a positive test is from that “Anti-Doping Organization with results management responsibility...” and this is to be “...no earlier than completion of the administrative review.” Remember, if Floyd Landis had been held to the IOC Medical Rules, and if confidentiality rules were upheld, the revelations would perhaps have been received with increased respect and less incredulity.]
The following Article (20) strikes this legal theorist as strange, as written: it places, as first priority, the 'roles and responsibilities' of the International Olympic Committee, ahead of those of WADA, the authoring Organization.
Wouldn't it seem much more logical to place the authoring Organization at the top of the list?
ARTICLE 20: ADDITIONAL ROLES AND RESPONSIBILITIES OF THE SIGNATORIES
20.1: Roles and Responsibilities of the International Olympic Committee.
20.1.1 To adopt and implement anti-doping policies and rules for the Olympic Games which conform with the Code.
20.1.2 To require as a condition of recognition by the International Olympic Committee, that International Federations within the Olympic Movement are in compliance with the Code.
[This places direct requirements on the IOC to ensure its rules conform with those promulgated under WADA authority; there appears no converse obligation forcing WADA to align itself to the historic continuity previously established by IOC with the International Federations. Similarly, WADA directs the IOC to oversee extension of these requirements to the International Federations, such as the UCI, FIS or FIFA.]
[.....]
20.3: Roles and Responsibilities of the International Federations.
20.3.1 To adopt and implement anti-doping policies and rules which conform with the Code.
20.3.2 To require as a condition of membership that the policies, rules and programs of National Federations are in compliance with the Code.
[.....]
[This sub-Article ensures that the various International Federations obligate their various National Federation members to conform with those rules promulgated under WADA authority, such as the US Cycling or others.]
These rules continue, mutatis mutandis, for National Anti-Doping Organizations (20.5 et seq.), Major Event Organizations (20.6 et seq.)
NB: 'Mutatis mutandis' is 'treaty-law' vocabulary: 'The things needing to be changed, being changed' (implying that the rest of concern ed texts remain).
20.7 Roles and Responsibilities of WADA
20.7.1 To adopt and implement policies and procedures which conform with the Code.
20.7.2 To monitor the processing of Adverse Analytical Findings.
20.7.3 To approve International Standards applicable to the implementation of the Code.
20.7.4 To accredit laboratories to conduct Sample analysis or to approve others to conduct Sample analysis.
[.....]
20.7.7 To conduct an effective Independent Observer Program.
20.7.8 To conduct Doping Controls as authorized by other Anti-Doping Organizations.
[The Independent Observer Program should be amplified in express terms, in future revisions of the CODE, and this author believes that WADA should NOT conduct 'Doping Controls.' Inclusion of this sub-Article opens a door to a direct conflict-of-interest between itself and its constituant stakeholders: this does not mean that WADA should not be at the forefront of Research in the fields of sports-doping, but definitely, it should never offer itself as a service provider in competition with these other accredited laboratories!]
There is no further sub-Article in this CODE that establishes criteria for the acceditation of Doping Control facilities! How can a CODE that has authority to strip athletes of their honor and perhaps livelihood, and offers an Article regarding appeals of laboratories that have lost their accreditation, not address the regulations concerning accreditation of Doping Control (laboratory) facilities?
How is a laboratory's involvement in the process controlled, if not herein? If this topic is covered in the International Standards for laboratory analysis, and yet a laboratoire that was discredited, losing its accreditation, would come back to this document for instructions on how to effect its sole recourse to an appeal, there again seems to be either the Grand Canyon of missed regulation, or worse.
If sanctions for athletes, moreover, are covered in 15 pages, from Article 7 to Article 11 (Teams), and yet Appeals by 'excommunicated' facilities are ONLY addressed herein, in one sentence, there obviously exists a legal vacuum, a serious gap that needs urgent attention by WADA and its Member States' legal counsels: WADA cannot fail to harmonize its laboratory accreditations.
The long and the short of it, is that either Article 13.5 is superfluous in this CODE because that which it controls is defined and agreed in another controlling document (presumably the International Standards for laboratory anaylsis), or a canyon of epic proportion festers in the midst of this document.
ARTICLE 22: INVOLVEMENT OF GOVERNMENTS
The text of this Article does not expressly force governments to monitor, or perform quality auditing of its national Doping Control Organizations.
This simple analysis unfortunately reveals that WADA has heretofor failed, apparently, in executing its mandate to provide sound legal bases for the sustained accreditation of Doping Control facilities. Remember, these labs and technical staff are serving, in effect, as the gatekeepers for the National ADOs' role as Inquisitors, just as had occured in Joan of Arc's heresy trial.
WADA cannot survive, without the support of the athletes that are willing to be controlled when those controls are properly administered, properly analyzed and properly communicated. WADA has already begun to lose support, and this will continue if it does not take affirmative action to rewrite its own CODE. Those rewrites should include two vital steps, the first being the improvement of its mandate to “...conduct an effective Independent Observer Program”, with the teeth to de-fang any outlaw laboratories, should evidence of this become apparent, through Article 7.2. The second should be to remove totally any Article authorizing WADA to act as an ADO; the risks of conflict-of-interest are too enormously great to allow it to 'compete' against its own signatory facilities.
Regarding the pivotal Armstrong/LNDD/WADA/Equipe case, and its ramifications in worldwide sport, and the subsequent temblor that is the Floyd Landis/Tour de France case, it is not surprising that WADA and Dick Pound received the following letter expressing grave concerns:
“The consequences of a positive test for an athlete are so severe that the procedures that lead to such a result must adhere to extremely strict rules and the results must be based on irrefutable evidence.
“We were therefore shocked to note that those admonishing Armstrong for a violation of the anti-doping regulations have not themselves respected, in their procedures, the fundamental rules that govern them. So, if anyone wishes to give lessons on fair and clean practices, he himself must first be beyond reproach.”
(Quoting the UCI report, FN51: “Letter from Dennis Oswald, President, ASOIF,
and Sergey Bubka, President, IOC Athletes Commission, to Richard Pound, President, WADA, (September 20, 2005).
This is beyond athletes that dope, and the uneven efforts – by various sports entities: national or international – to track them and ensure fair competitions. It becomes nepotistic, diplomatic, nefaste.
Eight years before WADA was founded, and eleven years before Floyd ran into the WADA-LNDD-TdF 'wall', the Court Arbitral du Sport (“CAS”) issued this comment, in a case known as USA Shooting and Quigley v. UIT:
“The fight against doping is arduous and it may require strict rules. But the rule-makers and rule-appliers must begin by being strict themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised 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 by a small group of insiders.”
(USA Shooting and Quigley v. UIT, May 23, 1995 (CAS 94/129).)
WADA cannot survive, without the support of the athletes that are willing to be controlled when those controls are properly administered, properly analyzed and properly communicated. WADA has already begun to lose support, and this will continue if it does not take affirmative action to rewrite its own CODE. Those rewrites should include two vital steps, the first being the improvement of its mandate to “...conduct an effective Independent Observer Program”, with the teeth to de-fang any outlaw laboratories, should evidence of this become apparent, through Article 7.2. The second should be to remove totally any Article authorizing WADA to act as an ADO; the risks of conflict-of-interest are too enormously great to allow it to 'compete' against its own signatory facilities.
Vive la regulation propre du sport propre!
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