If you have read, ZENers, my posts 'Part I' and 'Part II' about the WADA CODE and its revision period which ends in November (as scheduled), it may appear to you that I 'left out' crucial analytical points and conclusions...
You may be right! :-)
But, but! Evidently so did WADA, and its 570 Signatories, non?
Sometimes for me it's much better to think overnight and 'swallow' the substance of the argument... and allow all of the readers here to grasp their own threads and weave their own tapestry... and this year has been my uphill-learning curve: I admit no prior expertise in the world of Sports Doping International Regulation.
Thus, today, we complete the triumvirate of this pre-Madrid session analysis.
Allons-y... Here's what I see as being the imbalanced logic of the WADA CODE.
STRICT LIABILITY – TESTING
... is applied against the Athletes, in every case, while the Laboratories which produce the evidence that inculpates those Athletes, are given 'a pass' in ANY case, through the famous 'presumption' that is found in sub-Article 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.”
That sentence, as lax and permissive as possible, should read as follows (merely a ZEN-legal drafting mental exercise):
“WADA-accredited laboratories are presumed to have conducted Sample analysis and custodial procedures in accordance with the International Standard for laboratory analysis; the failure to so perform, based on evidentiary proof, shall render void any relevant analyses and subject that laboratory to suspension or revocation of their WADA-accreditation.”
“WADA-accredited laboratories are strictly liable in conducting Sample analysis and custodial procedures in accordance with the International Standard for laboratory analysis, evidentiary proof of substandard analysis or custodial procedures shall render void any relevant analyses, and subject that laboratory to suspension or revocation of their WADA-accreditation.”
Why 'strict liability'? Is this not too severe?
Well, if it is necessary for the Athletes, it is even more necessary for the Laboratories who will exonerate or inculpate the tested individuals. In this world of million-Euro athletes, sponsors and events, where laboratories are testing the blood or urine of participants on machines more complex, more sensitive than your laptop, often costing hundreds of thousands of Euros, the facility that holds such a responsibility must adhere to the highest standards possible.
Standards? The International Standards Organization (ISO) regulates many industries, many commercial activities, through officially-codified Standards. Go look at your bike helmet, or your automobile's windshield... and the analytical laboratories of the world that conform to ISO:EC 17025:2005 (‘General requirements for the competence of testing and calibration laboratories’: On sale (for CHF 114.00)) are agreed-upon global standards, of which most patients in hospitals worldwide are both ignorant, and thankful for their existence.
So it is mandatory that the laboratories conduct their work, in testing Athletes, to the highest standards of excellence. Non?
There is another aspect to this. We are ALL humans (if you're reading this, voilà the proof), and we are prone to errors, sometimes inconsequential, sometimes grave. Sometimes, our errors are so embarrassing, if related to our profession, that there is a desperate instinct to 'cover them up'.
If ever a soldier was cited for bravery when in fact heinous acts were perpetrated in the heat of battle (or an “Abu Ghraib” situation?), if ever an automobile design engineer was promoted after putting an unsafe car on the streets, with sales in the millions of Euros, a laboratory technician could produce an erroneous report with enormous repercussions.
But errors, whether by Athletes or laboratories, will happen. Athletes are certainly well-informed that their ingestion of a wrongly-labeled 'nutritional supplement' could end their days of Glory.
Employees of the 34 WADA-accredited laboratories should be working under that same 'tension' for clean performance, non?
STRICT LIABILITY – RESULTS MANAGEMENT
... is the term for how testing results are kept confidential, when and how Athletes and Federations are informed, and what must sequentially happen before the Press is informed. This aspect is such a vital link in the chain, that ANY violation of Results Management should also be dealt with as a Strict Liability situation: announcement in the Press of an 'A Sample' test result, should banish that facility from the WADA-accredited list for at least two years. Analysis of this follows from the preceding analysis on 'testing'... based on sub-Article 3.2.1, as well as the relationship between sub-Articles 7.1 and 7.2, in liaison with sub-Article 14.2 (Public Disclosure).
Another aspect of the interrelationship of these articles is very important, and is examined separately.
OMISSION OF LIABILITY
Sub-Article 7.1 states: “... the Anti-doping Organization ... shall conduct a review to determine whether ... (b) there is any apparent departure from the International Standards for Testing or laboratory analysis that undermines the validity of the Adverse Analytical Finding."
Sub-Article 7.2 states: “If the initial review under Article 7.1 does not reveal ... [a] departure that undermines the validity of the Adverse Analytical Finding, the Anti-doping Organization shall promptly notify the Athlete."
Omission? What happens when the Anti-doping Organization DOES find an 'apparent departure'?
SILENCE in the CODE...? as we know from Contract Law, what is not expressed in an agreement, is not part of the agreement.
Somewhere, between 7.1 and 7.2, included text must be introduced, that mandates the investigation of the 'apparent departure', with express language to mandate the suspension of key personnel, or of the Laboratory itself, from WADA-accreditation, with a stated period or means whereby that Laboratory can redeem itself and re-apply for accreditation. Such could be the firing or re-assignment of laboratory staff, severing of ties between Laboratory staff and members of the Press (In cases falling under the obit of sub-Article 14.2), or other solutions.
I do not offer a variant to the existing sub-Articles... because I think sub-Article 14.2 should become sub-Article 7.4. It would then follow a new sub-Article 7.3, which would define what procedures to follow in the case whereby an ADO has found an 'apparent departure'.
This is a serious 'Black-Hole' in the legal basis of the WADA CODE 2003.
OMISSION of LABORATORY SUSPENSION PROCEDURES.
Worldwide, Athletes live in terror of being 'busted' for something that perhaps was not their own fault. Recall the Alan Baxter case: First British Olympic medal for skiing (Bronze, Slalom, Salt Lake City)... Alan was strictly liable for the purchase (This author accepts the evidence of the case) of an inhaler, sold by the same company, but with a different chemical formulation in the USA than in the United Kingdom.
A ZEN opinion would appreciate a world in which Laboratory staff live under the same 'fears': perfection in testing competence and techniques, as well as custodial maintenance of samples, must be the standard; to fail to uphold these, with direct implications on the lives and the careers of Athletes, is destructive, and certainly a violation of the ISO:EC 17025:2005 standards.
Referring back to the analogies of soldiers or automobile executives being promoted (Should we add in the Alberto Gonzales' of the world? Or the L. Paul Bremers?), scandals in organizations are often 'covered-up' at great expense to Truth and Honesty (Ummm: Watergate?).
One shudders when thinking that an Athlete's revealed test results, which may have been negligently produced, are going to make that person suffer horrendously, and bring dishonor to him or herself, their family, and their sport. Evidence of any cover-up, against a laboratory, would negate the entire purpose established by the anticipated harmonization through revisions to the WADA CODE: playing 'by the rules', 'ethics' and 'the law'.
If a Labo-gate case were unveiled, what consequences are established within the WADA CODE?
Strict liability for testing and results management; omission of liability for violations of those two important laboratory responsibilities; omission of the substantial and procedural aspects of laboratory suspension, and/or revocation of WADA-accreditation...
The WADA CODE v2007 is, perhaps, at a crucial moment: to either choose to continue its charade of 'neutrality and harmonization', which appears to this independent analyst to be more hype and PR than currently regulated reality, or...
To perform the necessary 'grafting' of new controlling language, new 'branches' onto the already-rooted 'tree' that the International Olympic Committee entrusted to WADA.
We'll observe and note the responses to my Questionnaire, or... whether the Anti-doping world, the WADA-directed, WADA-accredited, WADA-financed world, will consciously circumvent this opportunity.
Athletes are, it should be noted, at the global international level, paying a high price for the less than two per cent of Athletes that are doping. Yes that's right, in the growth industry which sports testing has become, the global statistics prove that only 1.96 per cent of Athletes are tested positive for prohibited substances or procedures.
[Keep in mind that statistic portrays only one of two possible worlds: either Sport itself is ALREADY much cleaner than the Society that sustains it (And thus there is a lot of hype behind 'Doping!!! Again!!!' to augment budgets of certain Signatories), or the ancillary domain of 'Doping Masking Agents' is proving better attenuated than is the world of Doping Testing, to present]
That's certainly a lower percentage of their small community, than non-athletic drug-users in normal society, automobilists who violate the laws, and taxpayers who ... never mind...
Watch the politicians, all Athletes, all concerned parties, to hold them accountable for the work they undertake, the documents they produce, under our name(s), achieved from various tax-related sources or donations.
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