24 September 2007

WADA decision – The Landis case

If 'legalese' numbs your senses, better stop reading. Here at ZEN Central, the overtime hours (unpaid, volunteer, weekend-absorbing at that) are accumulating.

As the 'verdict heard 'round the world', you are by now aware that 'Floyd lost'. As of this writing, I am unclear whether Floyd will, can afford or has chosen not to pursue his appeal to the Cours Arbitral de Sport in Lausanne, Suisse.

I could have written 'Floyd doped', or 'Floyd cheated' or another phrase, but we really don't know that yet. The focus of this blog remains on the future, and if Floyd wants to appeal his case, he has the right to.

Yet before the dry antiseptic review... (anti-skeptic review?), a couple thoughts...

In having read my fair share of legal opinions, I noted a difference in this arbitration decision, which includes the Decision, penned by the two-arb majority of Attorneys Patrice Brunet and Richard McLaren, as well as the Dissent written by Attorney Christopher Campbell. This 'For/Against' decision displays one very disconcerting aspect.

Namely, one often reads, in US Supreme Court or Appellate Court decisions (that often contain Dissents) reference is customarily made to the other side's writing, which serves as a signpost of collegial discussion and, ultimately, adds depth to their disagreements.

The Majority can write their contentions concerning the items discussed in a Dissent, while those Judges or Justices who contribute to the Dissent can attribute their legal reasoning to counter that of the Majority.

There is no sign, as far as my twice-through readings this weekend of each part of this decision have found, that the majority wanted to discharge the emphasis of Mr. Campbell's points. As well, Mr. Campbell displayed minimal integration, or rather counterbalance, of his Dissent to that of the majority's Decision.

What am I on about? It could very well be that, from nearly the debut of this case's decision-writing session, that the majority had not shared, nor admitted, any of Mr. Campbell's points. More upsetting, is it stimulates the thesis that, from nearly the moment of writing both parts of this one Decision, that the minds of the Majority were not disposed to entertain the contentions of Mr. Campbell.

The best example of this, from my first, early analysis of a total of 103 relevant pages (of some 110 total), is found in the Campbell Dissent, and concerns the topic of 'cherry picking through separate sequences for ICRS evidence' (see Campbell, paras. 4 – 12).

In the majority's Decision, there is no mention of 'cherry picking' of evidence from the vital testing sequences that resulted in the Floyd decision of positive. Why not? Why ignore the most powerful statements made by the third member of this Arbitration panel?

Furthering that dichotomy, the Campbell Dissent passes from 'cherry picking' into the potentially perjurious testimony by certain WADA experts (Campbell, paras. 13 – 17).

As Campbell stated (concerning the USADA 'expert witnesses', all of whom are or were WADA-accredited laboratory directors): “The Laboratory Directors in this case were Dr. Ayotte, Dr. Wilhelm Schänzer and Dr. Catlin. They all testified they had carefully reviewed the documents provided by the LNDD. None of them disclosed the problem associated with the cherry picking of data.

Thus one is left to ponder wherein the justice flows? Were Brunet and McLaren even aware that the Decision they produced did not address the central tenet of the Dissent?

More to come, ZENers... analysis of a massive brief, such as the Floyd Landis Tour de France case, will take a week or two, as more information is gleaned from... 'The Record'.

But I leave you with two thoughts, by Mr. Christopher Campbell. These come from the first paragraph of his Dissent, and nearly the last (para. 61) paragraph. I myself, would not write these words if I didn't have one-hundred percent certainty of my conviction as to the veracity:

1. From the beginning, the Laboratoire National de Dépistage et du Dopage (“LNDD”) has not been trustworthy. In this case, at every stage of testing it failed to comply with the procedures and methods for testing required by the International Standards for Laboratories, Version 4.0, August 2004 (“ISL”) under the World Anti-Doping Code, 2003 (“WADA Code”). It also failed to abide by its legal and ethical obligations under the WADA Code. On the facts of this case, the LNDD should not be entrusted with Mr. Landis’ career.

“61. These doping adjudications can cause substantial harm to a human being financially, physically and emotionally. It can destroy families. If, from time to time, WADA's mission obligates it to inflict such harm, it should be obligated to get it right – all of it. As athletes have strict liability rules, the laboratories should be held strictly liable for their failure to abide by their rules and sound scientific practice.

Simply put, inarguably true. As the crystelZENmud Questionnaire stated, regarding WADA, its CODE and the various official derivative documents (and which was published Tuesday, prior to the Decision being rendered on Friday):

I am convinced, and hope to convince readers, that the upcoming session will not focus, as it should, on the most important, heretofore ignored aspect of the WADA CODE: full harmonization of laboratory procedures, and further tightening of sanctions against laboratories that do not display adherence to the scientific International Standards, or who fail proper, 'results management' procedures by allowing premature releases (or leaks) of 'A Sample' results, prior to the 'B Sample' testing/confirmation of those, to the press.”

And read this post (“PART III: WADA questionnaire – analytical wrap-up...”), published on Wednesday, for a more in-depth analysis of what WADA must do this November, if it wants to retain credibility amongst an athletic world that will be aghast at what actions were taken to “convict” Floyd Landis.

COURAGE, friends!!!

ç*”*”*””*ç”*”* ZENmud ”*””*ç*”*”*””*ç”

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