05 April 2007

WADA do about Strict Liability...

Warning: if anyone you know is a world-class competitor, nay! A CLEAN world-class competitor...

One who follows strict performance-based eating habits, and is exceptionally dedicated to their training programs and clean medical training assistance: beware!

Even if that person is as humanly 'perfect' as possible, morally, physically, and in the performance of their sport, they would still have no guarantee that his or her sports-career will end with their accolades intact, due to one small, grave situation.

They do NOT have to dope, to be convicted of doping.

At the dining table, or through someone offering them anything to drink; the wrong purchase of over-the-counter medications or sport-diet supplements, all these 'inputs' could be damning the competitor, whether through innocent or malicious means, such as being 'doctored' by third-party intervention.

The Athlete you know could have, for example, won the Tour de France through superhuman, heroic efforts, and have that performance validated by seven different daily tests that affirm his lack of doping.

However, given any 'positive' result from a doping test, even if the source could be determined; say, peanut butter sent as a birthday present by an Alabama cousin, perhaps: that positive-testing Athlete would face the worst scandal of their young, over-achieving lifetime... Oooops: but wait!

If we were talking about the 2006 Tour de France, and its winner, Floyd Landis, weren't there eight tests?


In one of Floyd's eight 2006 Tour de France tests, he was found to have an 'uncharacteristically low' epi-testosterone level, which had the legal effect of skewing his Testosterone/epi-Testosterone ratio, which is a violation of the World Anti-Doping Agency (WADA)-approved test, and creating a 'positive' Adverse Analytical Finding (“AAF”, in the vernacular). Announced after his impressive victory of the 21-day race, Floyd has been facing since August 2006 the associated insinuations and loss of credibility we have been forced to associate with cycling.

Flaming the fires through statements to the press, from directors of the Tour de France, Dick Pound, the WADA President (see ZENarticles here, here or here) added prejudicial bias by stating that his title would be stripped, once the test findings were upheld. Statements such as these were unethically premature, by the Tour de France people, and border on the illegal, according to the WADA Code that Dick Pound's organization drafted, accepted and implemented worldwide.

Floyd Landis' earlier career, beside Lance Armstrong, catapulted the Texan towards several of his Tour de France victories at the US Postal / Discovery Channel Team. Graduating into his rôle as leader of the Swiss team Phonak, Floyd's career had never been tainted by any previously positive testing results. The test results for Floyd's 17th stage, mentioned above, were produced from Chatenay-Malabry, the French Laboratoire National du Dépistage du Dopage (LNDD).

Beyond having his team disbanded (PHONAK had witnessed a suspicious proportion of doping cases in its short, impressive history) Floyd saw his impressive career path placed on hold, while awaiting his case's resolution, in May 2007, with a decision by the US Anti-Doping Agency (USADA), and that decision may sanction him to a career-threatening two-year suspension.

The decision to be taken will be based on the evidence presented by the Athlete, and the sporting world that 'indicted' him, via the US Cycling Federation.

Now this article has its own viewpoint, based on the author's cycling and legal experience, as well as his personal presence one hundred metres away from the finish line in Morzine, France, where Floyd raised his arms in victory, in achieving his amazing Alpine comeback.

Generations of French, and cycling fans globally, wanted to believe that how Floyd won was 'à l'eau claire', as they say... “On clean water”. The viewpoint here is that Floyd did win the Tour, and somewhere, somehow, in the poor performance of what should be near-sacred testing procedures, Floyd's urine was found 'positive'.

At this point the overarching problem that was revealed by Floyd's case, after extensive analysis of his situation, are the disparate and biased sports-doping rules implemented by WADA. It is clearly delineated in the new micro-managed WADA world, that Athletes are held to a standard far beyond that to which their accusers – the Laboratories – must adhere.

The disparity? Only Athletes are held to the legal standard of Strict liability, in the context of any AAF. The term 'strict liability' is defined in Black's Legal Dictionary as:

Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.

Which leads to 'absolute duty':

Absolute duty: A duty to which no corresponding right attaches.

In layman's wording? 'Zero tolerance'.

Remember Zero Tolerance, a gift to America from the Reagan administration, which allowed DEA agents to seize Charter sailboats that may have been leased a boat by groups who smoked some joints, all without the knowledge of the lessor? When perhaps as little as a single marijuana seed or stalk was found, after the boat was returned to its owner, that innocent person could face the loss of their boat, or investment, under this legal standard of strict liability.

But what if the Laboratory 'failed' in its work? What if a highly-technical scientific apparatus was mis-calibrated, or 'dirty', or leaked? Should not the accuser be held to the same legal standards? Should any hierarchy of laboratory technicians, their Directors and / or government ministries be allowed to dictate the outcome of events via either actual malfeasance or negligent casual operation of their testing facilities?

This is what Floyd and other Athletes face: there is no differentiation in WADA rules, between deliberate, excessively intentional 'doping', and innocent, accidental (careless or negligent) or malicious (deliberate 'poisoning' Athlete's food, or drink by adversaries or detractors) ingestion against one's proper morals. There are a sufficient number of cases already completed, that show that faith in such a presumption has 'destroyed' a good number of athletes' careers. One perfect example?

As a skier, the case of Alan Baxter is particularly sad, to this author. Alan, the first-ever British Alpine skiing Olypmic medalist, had purchased a Vicks Vapor Inhaler to counter his chronic nasal congestion, while attending the 2002 Salt Lake City events. Although sold under the identical mark as that which he usually bought in the UK (for chronic nasal congestion), its different formulation from that UK product cost him and England their first bronze medal, for his great race in the slalom!

He had never taken doping-medications, yet 'tested positive for methamphetamine'... by utilizing the wrong inhaler. This American variation contained no methamphetamine; however, one component has a similar chemical formula: no stimulative benefit, but it 'reveals' as meth under WADA-approved testing methodologies!

The fact that in the Landis case, “there is a 'there' there” (apologies to Gertrude Stein), by the one (out of eight) of his tests being positive, instantly suggested some prima facie presence of testosterone, or epi-testosterone 'doping' (or 'masking'), to the great majority of observers. Remember, however: Floyd's abnormal ratio stemmed from an ABSENCE: his epi-testosterone was very low. [NB: if this violation had occured under the previous IOC code, Floyd's solitary positive, against his seven other 2006 TdF negative results, may not have risen to the standard for declaring a positive.]

While the 'AAF result' from the French LNDD continues to damn Floyd Landis to a slow-death, through media obfuscation and repetition of often-misstated facts while attending this Spring's sport-arbitration, the legal situation with the LNDD who produced these results is not yet a significant matter: how the lab's analysis was performed could result in LNDD's actual suspension.

In the words of the WADA Code:

Code Article 3.2 Methods of Establishing Facts and Presumptions

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. The Athlete may rebut this presumption by establishing that a departure from the International Standard occurred. If the Athlete rebuts the preceding presumption by showing that a departure from the International Standard occurred, then the Anti-Doping Organization shall have the burden to establish that such departure did not cause the Adverse Analytical Finding.

And how did WADA react to this unfortunate effect of its fight against 'doping'?

Other than its President repetitively spouting high invective, publishing prejudicial opinion pieces that violate the very essence of neutrality embodied in the WADA Code , it has done squat to rectify its imbalances that create a prison-camp mentality in the world-class world of sport.

[WADA has a late 2007 session scheduled, to re-examine the WADA Code in substantive detail.]

Yet, such is the life under 'strict liability' for the Athletes. How many more innocent victims must be, as may be Floyd, as certainly was Alan Baxter, scathingly scarred by the incriminations offered by labs and tests that are theoretically 'cutting edge', yet often-times not assured of the reliability that one presumes to be a standard, across the medical world?

Within the multilevel structure of WADA controlling documents (the Code, the International Standard for Laboratories (ISL) and the International Standard for Testing (IST)), the legal standard of 'strict liability' has only been applied to Athletes. Those entities that hold these Athletes' careers in their aliquots and Sample bottles, are known as the Signatories, and these include governmental authorities (which often include the accredited Laboratories), the International and National Sporting Federation authorities, as well as the Olympic and Paralympic authorities.

Athletes are 'only' members of WADA through their licenses to participate in their sporting Federations (such as FIS: the Federation International de Ski).

Why would WADA not subject its accredited Laboratories and other Anti-Doping Organizations to the same strict liability standards by which the athletes under this authority are judged? The following sub-Article of the WADA Code sets one applicable standard high enough...

Code Article 6 Analysis of Samples

Doping Control Samples shall be analyzed in accordance with the following principles:

6.4 Standards for Sample Analysis and Reporting. Laboratories shall analyze Doping Control Samples and report results in conformity with the International Standard for Laboratories analysis.

And the International Standard for Laboratories (ISL), a derivative document enforced through adherence to the WADA CODE, also contains an interesting section:

5.4.5 Equipment
[.....] General service equipment that is not used for making
measurements should be maintained by visual examination,
safety checks, and cleaning as necessary. Calibrations are only
required where the setting can significantly change the test
result. A maintenance schedule shall be established for items such as fume hoods, centrifuges, evaporators, etc, which are used in the test method. Equipment or volumetric devices used in measuring shall have periodic performance checks along with servicing, cleaning, and repair. Qualified subcontracted vendors may be used to service,
maintain, and repair measuring equipment. All maintenance, service, and repair of equipment must be documented.

There is no directing language associated to this ISL, that forces WADA or its Anti-Doping Agencies (including accredited Laboratories) to operate at the same level of 'perfection' to which Athletes do. Meaning: there is no article in the WADA Code or corresponding Lab and Testing documents that creates strict liability against the Labs or their staff, for 'any deviation from the norm of perfection in testing and analysis', that allows the test results to be void for errors. In plain language: if a lab errs, or if a lab test such as Baxter's allows mis-identified chemical compounds to read as 'positive', should that Athlete face this unthinkably harsh penalty?

These problems bear review. As well, laboratories, especially the French LNDD, have notorious reputations for leaking information of a highly-confidential nature to various journals. The best example of this heinous practice falls against Lance Armstrong; the 2005 case of LNDD 'research' which was foisted off as 'proven', and that its 'bona fide' results established, that Armstrong 'was obviously doped on EPO in 1999'. There are no articles that proscribe automatic suspension of accredited laboratories that have serious problems maintaining mandatory confidentiality requirements.

It could happen, as such practice constitutes a violation of the ISL Annex B “Code of Ethics” Section 1:

1. Confidentiality

The heads of Laboratories, their delegates and Laboratory staff shall not discuss or comment to the media on individual results prior to the completion of any adjudication without consent of the organization that supplied sample to the Laboratory and the organization that is asserting the Adverse Analytical Finding in adjudication.

Why does WADA not hold its accredited laboratories to the same strict liability standards?

How could one envisage an inquisitorial system more perverse, than to have a laboratory that can produce 'innocent errors' or those based on negligence or malfeasance, or from unsatisfactory, yet approved, testing methods, while the Athlete bears all the shame, trauma and repercussions from an AAF against him or herself?

Should a Laboratory, which offers professional and amateur sport-career 'life or death' analyses to innocent Athletes, be held to any lower standard than those whom are to be judged by the results of their labwork?

There is no simple answer, other than the most naïve of responses: that no one could POSSIBLY suspect that a lab might operate, or might be directed to operate, with anything less than one hundred percent objectivity, and scientific perfection in the acquisition, storage and transport, processing, analysis of Samples and the subsequent related reporting of results: 'clean' or 'doped'...

The era of 'strict liability' for Athletes apart, and not for the Laboratories that 'indict' them, must end soon. Fairness, in the world of Sport, demands no less.

Why has WADA allowed this chasm to grow into a canyon of irresponsibility? Will a post-Pound WADA reassert the credibility destroyed by its current loud-mouth, hot-shot, Globetrotting President?


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