This is the Second of a three-part article looking into the supranational legal effect of the
In the first part, we reviewed the pertinent IOC regulation at question, juxtaposed with looks at the foundation of WADA, and introduced the situation which confronted Floyd Landis after his test results for Stage 17 of the Tour de France were announced positive for a T/E ratio that was anormal. Now we enter the World Anti-Doping Agency, its CODE covering doping analysis, and its effect on the cyclist Floyd Landis.
It is necessary to review what WADA's CODE does define:
Doping Control: “The process including test distribution planning, Sample* collection and handling, laboratory analysis, results management, hearing and appeals.”
National Anti-Doping Organization, whose relevant text concerns “... direct collection of Samples*, the management of test results, and conduct of hearings, all at the national level.”
TESTING: “The parts of the Doping Control process involving test distribution planning, Sample* collection, Sample* handling, and Sample* transport to the laboratory.”
* While reading the prior sentence, understand that the CODE never defines Sample, per se. WADA chose to define:
“Sample Specimen: “Any biological material collected for the purposes of Doping Control.”
However, nowhere in the CODE document is Sample Specimen used. This is VERY close to legal malpractice – to define an unused term in an IGO Regulatory document, while leaving the used term undefined. This creates another form of confusion as surely as not having a definition in the first instance. One wonders, actually, if this should read “Sample/Specimen”?
However, we return to the remaining fact, this express void as to Doping Control /laboratory criteria', that exists in this 2003 WADA CODE. A void with implications towards the current 'situation' facing UCI Pro rider Floyd Landis, winner of the 2006 Tour de France.
Floyd, as most reading this are aware, was declared positive following his phenomenal Stage 17 performance into Morzine, France. This Stage victory in extraordinarily hot conditions, climbing most of four mountain passes in a historic (many still believe) solo effort, gave him and his Phonak Team an impressive victory, which allowed him to recuperate over seven of eight minutes he lost in the previous day's humiliating bonk, or loss-of-force, and ensured a very good chance to continue, through stages to come, including a time trial, to victory in Paris, on the Champs Elysées.
After the victory parades and spectacles, the devastating news fell: a declaration that his A sample had tested positive was issued, based on an imbalance, seemingly exogenic, of his testosterone/epitestosterone ratio. Remember: this article opened with a series of questions regarding how the IOC would, faced with this exact situation, cover objectively through insistance for a complete series of retrospective test-analysis reviews, or subsequent unannounced testing.
This article leaves to other better-qualified individuals, to discuss the scientifics of 'testosterone doping'; the intent here is to ensure that readers understand the 'black hole' regulatory effect created with the 2003 WADA CODE.
Briefly, however, one of his metabolite values (of four) showed a value higher than normal. The Châtenay-Malabry laboratoire in France, which produced the Tour de France tests, had done so while still in the tornado of its relevations from the summer before; the lab leaked to L'Equipe sporting newspaper of France, which in August of 2005 published an accusal against Lance Armstrong for alleged r-EPO use in 1999. The lab's results were based on illegal testing and publication of results, in conjunction with the French Ministry of Youth and Sport AND WADA, in what turned out to be a series of arrogant, very doubtful errors, which resulted in a scathing UCI investigation that indicted everyone involved: except Lance Armstrong.
The ignominity generated by this event, attached to L'Equipe, which had received the leak and published it; the LNDD/Châtenay-Malabry laboratoire that produced, used and would not reveal its 'un-promolgated test', developed by the lab's directeur, Prof. Jacques de Ceaurriz; the numerous rules violated by LNDD, WADA and its President Dick Pound, and; the French Ministry of Sports (It has been alleged, but proof remains to be uncovered). All these parties were all rocked by the scathing criticisms that errupted from the volcanic UCI Investigation, a report produced by prominent Netherlands sports-law attorneys and scientists.
Thus the tensions between the UCI versus LNDD, WADA and others was already white-hot in the summer of 2006, due to the Armstrong incident. As well, the Tour de France staff, under the new direction of Christian Prudhomme, was ready to explode if any rider was tested positive: this was compounded by the ongoing feud between the three Grand Tours (also the Giro d'Italia, and the Vuelta d'Espagna) and the UCI's still relatively new ProTour format.
Much more material has been written on Floyd, and you can explore that with these highly recommended links:
But digressions were necessary to point out that the riders are trying to work in a system of patchwork legal obligations and structures, yet we will now return to the thrust of this article – that WADA has failed, as demonstrated in the two recent Tour de France incidents (False accusations that Lance took EPO in 1999; Floyd and his 2006, narrowly-positive 'testosterone' results), to assure (for athlete's security and WADA credibility) that the WADA CODE fails to establish that facilities entrusted with a precision task have the mental and moral capacity to accomplish this honored and prejudicial assignment.
The WADA CODE
A brief tour of the text of relevant Articles will be interspersed with [commentary in MOSTLY green text.]
WADA CODE 5.2: Standards for Testing:
Anti-Doping Organizations conducting Testing shall conduct such Testing in conformity with the International Standard ** for Testing.
** Appendix I – Definitions (Code)
“International Standard: A standard adopted by WADA in support of the CODE. Compliance with an International Standard (as opposed to another alternative standard, practice or procedure) shall be sufficient to conclude that the procedures addressed by the International Standard were performed properly.”
[Legal wisdom: any use of the word “shall” in a treaty-like document, as this is, creates a mandatory action: the party charged has no choice but compliance, unlike use of the conditional “should.” Labs thus are under obligation, without option, to conform.]
WADA Code 6.4: Standards for Sample Analysis and Reporting
Laboratories shall analyze Doping Control Samples and report results in conformity with the International Standard for laboratory analysis.
[A. Again note the mandatory nature of this Article 6.4: the (accredited?) laboratories must comply and conform in their analyses;
B. A curiosity: Article 5.2 discusses an “International Standard for Testing” (IST) However, Article 6.4 pertains to an “International Standard for laboratory analysis.” If this is only an editing error (WADA CODE has put into italics the terms that are defined), it still should have been caught before publication.]
ARTICLE 7: RESULTS MANAGEMENT
Each Anti-Doping Organization conducting results management shall establish a process for the pre-hearing administration of potential anti-doping rule violations that respects the following principles:
[Note that there is no following sub-Article regarding leaking confidential information to the press by an Anti-Doping Organization (ADO): nor is there any mention of penalization for facilities or employees that do so. This should be one of the three most salient points, along with facilities maintenance and test-processing performance.]
WADA Code 7.1: Initial Review Regarding Adverse Analytical Findings:
Upon receipt of an A Sample Adverse Analytical Finding, the Anti-Doping Organization responsible for results management shall conduct a review to determine whether: (a) an applicable therapeutic use exemption has been granted, or (b) there is any apparent departure from the International Standards for Testing or laboratory analysis that undermines the validity of the Adverse Analytical Finding. [“AAF”]
[The Anti-Doping Organization, or “ADO” is charged to, without express controlling text, on receipt of an AAF from (unspecified) Doping Control, to conduct a review for exonerating circumstances that disculpate the positively-tested athlete. Thus a general principle reminds us how IOC would specifically have covered the Landis-styled T/E ratio imbalance 'positive' result, forcing some retrospective test results analysis, if available, or subsequent unannounced testing as a second choice to confirm the A Sample positive.]
WADA Code 7.2: Notification after Initial Review
If the initial review under Article 7.1 does not reveal an applicable therapeutic use exemption or departure that undermines the validity of the Adverse Analytical Finding, the Anti-Doping Organization shall promptly notify the Athlete, in the manner set out in its rules, of: (a) the Adverse Analytical Finding; (b) the anti-doping rule violated, or, in a case under Article 7.3, a description of the additional investigation that will be conducted as to whether there is an anti-doping rule violation; (c) the Athlete's right to promptly request the analysis of the B Sample or, failing such request, that the B Sample analysis may be deemed waived; (d) the right of the Athlete and/or the Athlete's representative to attend the B Sample opening and analysis if such analysis is requested; and (e) the Athlete's right to request copies of the A and B Sample laboratory documentation package which includes information as required by the International Standard for laboratory analysis.
[This acts as the mandate to serve due notice on the suspected violator of the results, rule(s) violated, and subsequent rights and responsibilities accorded to the athlete. The mandating verb 'shall' and the phrase 'in the manner set out in its rules' serve together to protect unauthorized notifications of athletes, such as would include press leaks.]
[NB: this sub-Article leaves undefined, in deference to Sporting Bodies or governments, any sanctions that could address negligence or malfeascence by Doping Control agents) and Appeals (13); Articles 7 to 11 cover some 15 pages.]
This ends Part II of this three-part article, exploring the legal bases of WADA, its interrelationship with the signatories, or stakeholders that compose the world of sport-doping controls, and the effects of these on the Floyd Landis case.