http://rant-your-head-off.com/WordPress/?p=393 Always select Genuine Rant™ Brand. Everything else is just words. Tue, 07 Sep 2010 21:27:08 -0400 hourly 1 http://wordpress.org/?v=3.0.1 http://rant-your-head-off.com/WordPress/?p=393#comment-13373 Larry Sun, 07 Oct 2007 17:59:35 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13373 Morgan, I get that some athletes are going to cheat, and that we cannot make the cheating stop with talk of what is right and what is wrong. ... I also get that we put a lot of pressure on our athletes to win, and that Marion Jones may have been a victim of this kind of pressure. This may explain her behavior, but it does not excuse it. ... I expect the WADA rules to be fair, and to be fairly enforced. But if athletes frequently break the WADA rules, then this places pressure on the system, and makes it harder to set up and enforce the rules fairly. Think about it in terms of crime in your neighborhood. If the crime rate goes up, then the neighborhood residents (generally speaking) will expect the police to get tougher, and the police in turn may start bending some of THEIR rules. It's not pretty, it's not nice, but it is a fact of life. ... This is all I'm trying to say: every Marion Jones makes life harder for all athletes. …
I also get that we put a lot of pressure on our athletes to win, and that Marion Jones may have been a victim of this kind of pressure. This may explain her behavior, but it does not excuse it.
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I expect the WADA rules to be fair, and to be fairly enforced. But if athletes frequently break the WADA rules, then this places pressure on the system, and makes it harder to set up and enforce the rules fairly. Think about it in terms of crime in your neighborhood. If the crime rate goes up, then the neighborhood residents (generally speaking) will expect the police to get tougher, and the police in turn may start bending some of THEIR rules. It’s not pretty, it’s not nice, but it is a fact of life.
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This is all I’m trying to say: every Marion Jones makes life harder for all athletes.]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13370 Larry Sun, 07 Oct 2007 14:58:27 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13370 Jeff - ... I'm mostly going to stand on what I've already written, but some quick thoughts. ... It's one thing to say that a government agency must act consistently with established standards of human rights and concepts of law. It's another thing to say that a particular agency action can be overturned by a court on those grounds. Down here, I'd need something more specific on which to base my case. ... As far as search and seizure, if a private detective breaks into my house, then unless the private detective is working for the government, my 4th amendment rights regarding unreasonable search and seizure have not been violated. I may have other grounds to complain about this action. ... Good luck with your case. …
I’m mostly going to stand on what I’ve already written, but some quick thoughts.
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It’s one thing to say that a government agency must act consistently with established standards of human rights and concepts of law. It’s another thing to say that a particular agency action can be overturned by a court on those grounds. Down here, I’d need something more specific on which to base my case.
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As far as search and seizure, if a private detective breaks into my house, then unless the private detective is working for the government, my 4th amendment rights regarding unreasonable search and seizure have not been violated. I may have other grounds to complain about this action.
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Good luck with your case.]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13369 Luc Sun, 07 Oct 2007 12:39:45 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13369 Jeff, As an athlete going through your own personal hell with WADA and in light of Marion Jones partial admissions (i don't think she is coming completely clean), i was wondering if you can appreciate the cynicism that is welling up in the general public because of athletes like MJ who steadfastly deny any wrong doing only to be found to have lied and lied convincingly. I must say that when another athlete is found to be doping after a round of denials, it shakes my conviction in Floyd Landis....a little. I think that the antidoping authorities are winning the battle against the dopers but at a cost. That cost is public trust in the athlete. WADA gets a positive and immediately the knives are out and the athlete is declared guilty. It reinforces the public's belief in the infallability of the anti doping system. WADA scores again. So what if WADA cheated a little bit to get the results. They are the good guys and they are catching the bad guys. So Jeff, how do we give back the trust to the athlete who has been 'wrongly' accused only to find out that he/she was rightfully accused in the first place? Or for that matter how do we trust an athlete that says he is clean? We can't. It could be Mother Theresa but we still couldn't trust her. We can only let the tests speak for themselves. And keep testing and testing and testing and hope that the tests do what they are supposed to do. http://rant-your-head-off.com/WordPress/?p=393#comment-13367 Morgan Hunter Sun, 07 Oct 2007 07:03:17 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13367 Larry I also want clean and fair sports. But to make it possible to have clean and fair sports, all parties must have fair and unbiased rules to follow. If the rules we all agree to follow are not fair or unbiased, meaning "slanted" to favor one party or another, it is not possible to expect people to hold to the highest standards of morals and ethics. - I am not certain that "morals and ethics" can be forced on people, Larry. In a fair society, the rules are made so that when "wrong" is done, we have fair ways of dealing with it. So to approach the present situation from the point you state, "if it were somehow possible to get the athletes to stop cheating, maybe we could get the ADAs to relax a bit and behave better," presents a paradox -- because it is "conditional," -- It is like saying that the victim of abuse is responsible for his/her abused condition. - The "rules" we make for ourselves therefore "define" what is good or bad behavior. Therefore the "rules/laws" we establish, must be able to be shown as being "fair" and impeccable -- first. We cannot claim, "that they are as they are because one side is behaving badly." Such "conditionality" is usually the first sign that the laws are not fair to begin with, that one party has an unfair advantage which is at the cost of the other, such "conditionalized" laws and rules should not be allowed to exist. - There is an "expectation" from the whole, that the rules and laws that we "choose" to follow are fair and above reproach. The "whole" accepts such rules, as "fair," because the rules are greater then their individual perspectives, that the rules are ethically beyond manipulation by any part of the "whole". - Larry, your profession as a lawyer is hardest of all. I happen to feel that EVERY lawyer has to face the question of ethics and morality on a daily basis, much more often then the average person is forced to. Some may call me idealistic or even naive for thinking that lawyers are expected to be "better" then mere individuals in the whole. A lawyer is faced with his own "subjectivity" -- his own personal likes and dislikes and is expected to over come these, daily - so that he/she can serve the "larger good." This is no cakewalk, as you know I am certain. - I am not playing apologist for one side or the other. I fight for the rule of law. I believe in it. My ethics and morality therefore are always being tested, as it should be. So when I am confronted with a "dilemma" -- I turn to something that is "greater" then my own personal world view -- the rules and the law. If these rules or laws are themselves not fair, then what am I left with? - One does not have to have a degree in psychology to understand that people are egocentrically motivated. Yes -- it is amazing how easily people manage to ignore ethics and morality, not just elite athletes. The rationalization that goes into "self-justification" is endless. But fighting this fight is what it is all about. We aim for perfection - "fairness" daily and at the end of the day; we discover that we have made small progress, or sometimes, none at all. But this should not be our excuse for stopping to make that daily effort, that is when morality and ethics are out the window. I also want clean and fair sports. But to make it possible to have clean and fair sports, all parties must have fair and unbiased rules to follow. If the rules we all agree to follow are not fair or unbiased, meaning “slanted” to favor one party or another, it is not possible to expect people to hold to the highest standards of morals and ethics.
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I am not certain that “morals and ethics” can be forced on people, Larry. In a fair society, the rules are made so that when “wrong” is done, we have fair ways of dealing with it. So to approach the present situation from the point you state, “if it were somehow possible to get the athletes to stop cheating, maybe we could get the ADAs to relax a bit and behave better,” presents a paradox — because it is “conditional,” — It is like saying that the victim of abuse is responsible for his/her abused condition.
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The “rules” we make for ourselves therefore “define” what is good or bad behavior. Therefore the “rules/laws” we establish, must be able to be shown as being “fair” and impeccable — first. We cannot claim, “that they are as they are because one side is behaving badly.” Such “conditionality” is usually the first sign that the laws are not fair to begin with, that one party has an unfair advantage which is at the cost of the other, such “conditionalized” laws and rules should not be allowed to exist.
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There is an “expectation” from the whole, that the rules and laws that we “choose” to follow are fair and above reproach. The “whole” accepts such rules, as “fair,” because the rules are greater then their individual perspectives, that the rules are ethically beyond manipulation by any part of the “whole”.
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Larry, your profession as a lawyer is hardest of all. I happen to feel that EVERY lawyer has to face the question of ethics and morality on a daily basis, much more often then the average person is forced to. Some may call me idealistic or even naive for thinking that lawyers are expected to be “better” then mere individuals in the whole. A lawyer is faced with his own “subjectivity” — his own personal likes and dislikes and is expected to over come these, daily – so that he/she can serve the “larger good.” This is no cakewalk, as you know I am certain.
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I am not playing apologist for one side or the other. I fight for the rule of law. I believe in it. My ethics and morality therefore are always being tested, as it should be. So when I am confronted with a “dilemma” — I turn to something that is “greater” then my own personal world view — the rules and the law. If these rules or laws are themselves not fair, then what am I left with?
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One does not have to have a degree in psychology to understand that people are egocentrically motivated. Yes — it is amazing how easily people manage to ignore ethics and morality, not just elite athletes. The rationalization that goes into “self-justification” is endless. But fighting this fight is what it is all about. We aim for perfection – “fairness” daily and at the end of the day; we discover that we have made small progress, or sometimes, none at all. But this should not be our excuse for stopping to make that daily effort, that is when morality and ethics are out the window.]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13364 Jeff Adams Sun, 07 Oct 2007 03:18:55 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13364 Larry, I'm certainly no expert - a sapling in a forest of oaks, an apprentice playing with the master's tools....but thank you for the compliment. ... The areas of law that apply to my case apply pretty universally - and the issues are fundamental - do the rules of the anti-doping establishment have to be consistent with established standards of human rights and established concepts of law. Given the governmental participation in the anti-doping regime (50% of funding, and positions on the executive of WADA, the IICGADS international instrument that Canada and the USA is a signatory to, the "public interest" relied on by WADA to justify the regime, the declaration by WADA on their web site: "WADA is a unique hybrid organization that is governed and funded equally by the Sports Movement and Governments."), that the rules of the anti-doping regime MUST accord with law. ... The example of the presumption of innocence is a good one, precisely because of the point you make about criminal/civil matters - although the arbitration proceedings are not criminal, they are penal in nature, a point that many CAS panels have upheld. This alone would make the presumption of guilt or strict liability an illegal contractual element in any professional misdemeanor proceedings. ... They're not actually rulings on Privacy laws - the quotes are from an opinion piece by the Privacy Commission, an arm of the Canadian Human Rights Commission. ... The opinion is written from a privacy p.o.v., but the sections of the Charter cited (7 and 8) that the Privacy Commission said would be violated by drug testing are not privacy related. ... From the Charter: ... Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ... Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. ... If a dick broke into Landis' home in an effort to seize evidence, then what is the difference between that same dick sending other people into his home to seize bodily fluids without a warrant or any judicial oversight? If the dick writes it into the rules that the anti-doping authorities are allowed access to athletes residence in order to secure evidence, does it become ok? ... I understand that a person can contractually consent to his/her bodily fluids being seized, but only to be used in such a way as that contract stipulates. If the contract is broken (if the rules are departed from), then that person's consent is viciated. In the context of a private entity that is acting to further a government policy or acting on behalf of the government, that's a big deal. ... In Canada, the test for what is "reasonable" in justifying the kind of violation of privacy that drug testing entails in a free and democratic society is public safety - nothing less. ... Ov'r and oot. ... Jeff
I’m certainly no expert – a sapling in a forest of oaks, an apprentice playing with the master’s tools….but thank you for the compliment.

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The areas of law that apply to my case apply pretty universally – and the issues are fundamental – do the rules of the anti-doping establishment have to be consistent with established standards of human rights and established concepts of law. Given the governmental participation in the anti-doping regime (50% of funding, and positions on the executive of WADA, the IICGADS international instrument that Canada and the USA is a signatory to, the “public interest” relied on by WADA to justify the regime, the declaration by WADA on their web site: “WADA is a unique hybrid organization that is governed and funded equally by the Sports Movement and Governments.”), that the rules of the anti-doping regime MUST accord with law.

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The example of the presumption of innocence is a good one, precisely because of the point you make about criminal/civil matters – although the arbitration proceedings are not criminal, they are penal in nature, a point that many CAS panels have upheld. This alone would make the presumption of guilt or strict liability an illegal contractual element in any professional misdemeanor proceedings.

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They’re not actually rulings on Privacy laws – the quotes are from an opinion piece by the Privacy Commission, an arm of the Canadian Human Rights Commission.
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The opinion is written from a privacy p.o.v., but the sections of the Charter cited (7 and that the Privacy Commission said would be violated by drug testing are not privacy related.
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From the Charter:
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Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
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Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
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If a dick broke into Landis’ home in an effort to seize evidence, then what is the difference between that same dick sending other people into his home to seize bodily fluids without a warrant or any judicial oversight? If the dick writes it into the rules that the anti-doping authorities are allowed access to athletes residence in order to secure evidence, does it become ok?

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I understand that a person can contractually consent to his/her bodily fluids being seized, but only to be used in such a way as that contract stipulates. If the contract is broken (if the rules are departed from), then that person’s consent is viciated. In the context of a private entity that is acting to further a government policy or acting on behalf of the government, that’s a big deal.

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In Canada, the test for what is “reasonable” in justifying the kind of violation of privacy that drug testing entails in a free and democratic society is public safety – nothing less.

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Ov’r and oot.

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Jeff]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13350 Larry Sat, 06 Oct 2007 23:51:05 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13350 Morgan, understood. ... What I want is clean and fair sport. Athletes who cheat and ADAs that don't play fair, they're all in my focus. If you prefer to focus on the ADAs, then consider: if it were somehow possible to get the athletes to stop cheating, maybe we could get the ADAs to relax a bit and behave better. On the other hand, every time an athlete like Ms. Jones confesses, and the ADAs realize that she passed every drug test, it's going to make the ADAs a little crazier and harder to deal with. ... Psychologically, I don't know what's going on with Ms. Jones. The capacity of athletes to do "denial" is very impressive. …
What I want is clean and fair sport. Athletes who cheat and ADAs that don’t play fair, they’re all in my focus. If you prefer to focus on the ADAs, then consider: if it were somehow possible to get the athletes to stop cheating, maybe we could get the ADAs to relax a bit and behave better. On the other hand, every time an athlete like Ms. Jones confesses, and the ADAs realize that she passed every drug test, it’s going to make the ADAs a little crazier and harder to deal with.
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Psychologically, I don’t know what’s going on with Ms. Jones. The capacity of athletes to do “denial” is very impressive.]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13348 Larry Sat, 06 Oct 2007 22:45:37 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13348 Jeff, you've clearly become an expert in the areas of law that impact your case. These are not necessarily areas of law that are applicable to the Landis case. I'm not an expert, but I'll try to throw some light on the areas of U.S. law that you've mentioned. I'm going to address the issues in VERY general terms, as many of the issues are complicated. ... U.S. courts and law favor and encourage the arbitration of private civil disputes. It's widely believed that there are benefits to resolving private disputes in arbitration, and in keeping these disputes out of the courts - one obvious benefit is to reduce the case load in state and federal courts (most of which are overcrowded). Obviously, if the legal system is going to realize these benefits, then the system must restrict the ability of a party to appeal an arbitration decision to a state or federal court. ... In order to challenge an arbitration decision in a court of law, it's not enough to merely argue that the decision is wrong. You have to show that the arbitration process itself had gone very wrong. For example, you could try to prove that the decision was procured by corruption or fraud, or that the arbitrators had exceeded their powers, or that an arbitrator was subject to disqualification, or perhaps that the arbitration decision was VERY wrong - "in manifest disregard of law" or an "unconscionable" result. I imagine that some of you might read this and think that these standards could be applied to the FL decision. Please understand that in practice, these are all very difficult standards to satisfy. ... Jeff, you cite Canadian rulings governing rights of privacy. I'm not going to do the research to tell you whether USADA's actions can be challenged if they violate federally protected privacy rights of athletes. Landis' right of privacy is not at issue in this case -- at least I've never heard anyone argue that Landis' privacy rights were violated. ... It's conceivable that OTHER constitutional rights are impacted by the arbitration -- I'm thinking in particular on the right to a jury trial and the right to due process. However, as I've stated, the courts and the law allow private parties to resolve their disputes in private forums, without juries. I don't know whether it's possible to challenge an arbitration decision on constitutional due process grounds. I suspect that due process concerns are satisfied so long as it's possible to challenge an arbitration decision for fraud, manifest disregard of law, etc. ... What I was trying to state to Debby is that for the most part, the constitution protects individual rights against government intrusion, and that USADA is not part of the government. In hindsight, that statement was a bit too sweeping. I don't think USADA actions are subject to the full panoply of the Bill of Rights -- for example, I don't think they're required to protect an athlete's right of free speech. If Dick Pound broke into Landis' home in an effort to seize evidence, this would break about a million laws but it probably would not violate Landis' 4th Amendment rights regarding search and seizure. But USADA arbitration decisions ultimately are enforceable in U.S. courts (to the extent that such enforcement was required), so perhaps the right to due process IS applicable. I'd have to do more research to figure it out. ... As far as your question of whether an arbitration panel can act in a way that violates basic principles of American law ... that question is a little bit vague. You mention the presumption of innocence, but that's a presumption for criminal matters, not civil matters. In a civil matter in a U.S. court, you win if your case is just a little bit better than the other guy's. If you think that the right to a jury trial is fundamental, then yeah, the arbitration process violates that fundamental right. I'm reasonably certain that the arbitrators cannot discriminate on the basis of race or religion. ... It's probably true that USADA has taken on certain obligations by accepting federal funding. I'm not sure what these obligations are or what affect they could have on the Landis case. ... If you sense that I'm struggling a bit here, well, I am. This is not exactly my area of law. It's also difficult to discuss so many broad areas of law in such general terms. If you're asking, is it OK under U.S. law to have a case like the Landis case decided by arbitration, the answer is yes. If you're asking, is it possible under U.S. law for a particular system of arbitration to be thrown out because it is manifestly unfair, the answer is yes, but it's extremely difficult to do this. If you're asking, can a particular arbitration decision be overturned because it is manifestly unfair, the answer is yes, if you can prove it. ... It will be a lot easier to answer more specific questions! (if I can) …
U.S. courts and law favor and encourage the arbitration of private civil disputes. It’s widely believed that there are benefits to resolving private disputes in arbitration, and in keeping these disputes out of the courts – one obvious benefit is to reduce the case load in state and federal courts (most of which are overcrowded). Obviously, if the legal system is going to realize these benefits, then the system must restrict the ability of a party to appeal an arbitration decision to a state or federal court.
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In order to challenge an arbitration decision in a court of law, it’s not enough to merely argue that the decision is wrong. You have to show that the arbitration process itself had gone very wrong. For example, you could try to prove that the decision was procured by corruption or fraud, or that the arbitrators had exceeded their powers, or that an arbitrator was subject to disqualification, or perhaps that the arbitration decision was VERY wrong – “in manifest disregard of law” or an “unconscionable” result. I imagine that some of you might read this and think that these standards could be applied to the FL decision. Please understand that in practice, these are all very difficult standards to satisfy.
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Jeff, you cite Canadian rulings governing rights of privacy. I’m not going to do the research to tell you whether USADA’s actions can be challenged if they violate federally protected privacy rights of athletes. Landis’ right of privacy is not at issue in this case — at least I’ve never heard anyone argue that Landis’ privacy rights were violated.
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It’s conceivable that OTHER constitutional rights are impacted by the arbitration — I’m thinking in particular on the right to a jury trial and the right to due process. However, as I’ve stated, the courts and the law allow private parties to resolve their disputes in private forums, without juries. I don’t know whether it’s possible to challenge an arbitration decision on constitutional due process grounds. I suspect that due process concerns are satisfied so long as it’s possible to challenge an arbitration decision for fraud, manifest disregard of law, etc.
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What I was trying to state to Debby is that for the most part, the constitution protects individual rights against government intrusion, and that USADA is not part of the government. In hindsight, that statement was a bit too sweeping. I don’t think USADA actions are subject to the full panoply of the Bill of Rights — for example, I don’t think they’re required to protect an athlete’s right of free speech. If Dick Pound broke into Landis’ home in an effort to seize evidence, this would break about a million laws but it probably would not violate Landis’ 4th Amendment rights regarding search and seizure. But USADA arbitration decisions ultimately are enforceable in U.S. courts (to the extent that such enforcement was required), so perhaps the right to due process IS applicable. I’d have to do more research to figure it out.
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As far as your question of whether an arbitration panel can act in a way that violates basic principles of American law … that question is a little bit vague. You mention the presumption of innocence, but that’s a presumption for criminal matters, not civil matters. In a civil matter in a U.S. court, you win if your case is just a little bit better than the other guy’s. If you think that the right to a jury trial is fundamental, then yeah, the arbitration process violates that fundamental right. I’m reasonably certain that the arbitrators cannot discriminate on the basis of race or religion.
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It’s probably true that USADA has taken on certain obligations by accepting federal funding. I’m not sure what these obligations are or what affect they could have on the Landis case.
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If you sense that I’m struggling a bit here, well, I am. This is not exactly my area of law. It’s also difficult to discuss so many broad areas of law in such general terms. If you’re asking, is it OK under U.S. law to have a case like the Landis case decided by arbitration, the answer is yes. If you’re asking, is it possible under U.S. law for a particular system of arbitration to be thrown out because it is manifestly unfair, the answer is yes, but it’s extremely difficult to do this. If you’re asking, can a particular arbitration decision be overturned because it is manifestly unfair, the answer is yes, if you can prove it.
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It will be a lot easier to answer more specific questions! (if I can)]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13347 Morgan Hunter Sat, 06 Oct 2007 21:58:11 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13347 Sorry - this got cut off some how - to continue - in the meantime - I am trying to keep focused on dealing with what I see the situation to be here. You are a lawyer - you know well how easily one can lose his focus - and once that is lost - the battle is lost. - You make me out much too nice Larry - but thank you for such a great compliment. I don't deserve it. I just don't want to lose focus on "this" issue, Accuse me of having tunnel vision - I was a competitive athlete - focus was and is essential in any endeavor. I don't want us to lose it - the Floyd Landis issue has to be kept at, to make something happen - even if we could only accomplish the small thing of getting more then just our small group to understand - what in heck went down! We will be successful. - You may not have considered - but MJ's "confession" does weaken the hearts of the many - The Rant line to me has never been merely a place to "vent" - if you must know - that is the reason I respect it, and the people who participate on it. Perhaps, I am a "detached" person - I do not believe so - My statement was not intended at criticizing you or anyone specifically - But most assuredly you will NOT find me supporting a "tar and feathering party!" This sort of "thinking" I am completely against. - On a personal note - I am not a "religious" person - but I do hold to the old saw - "let the man who is without fault - toss the first stone. I can and do understand the deep humanly devastating feeling that many have for the outing of Marion Jones - I do not feel that any disappointment I feel gives me the right to judge her - no matter how pissed off I may feel about it. - As to what I would say if my children were young enough not to make up their own minds -- I'd point out to them that Marion is first a human being -- that what she did was WRONG and without honor and it is alright for them to feel disappointed, that when it comes their time to make such decision for themselves, they must work hard and do the right thing. -
You make me out much too nice Larry – but thank you for such a great compliment. I don’t deserve it. I just don’t want to lose focus on “this” issue, Accuse me of having tunnel vision – I was a competitive athlete – focus was and is essential in any endeavor. I don’t want us to lose it – the Floyd Landis issue has to be kept at, to make something happen – even if we could only accomplish the small thing of getting more then just our small group to understand – what in heck went down! We will be successful.
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You may not have considered – but MJ’s “confession” does weaken the hearts of the many – The Rant line to me has never been merely a place to “vent” – if you must know – that is the reason I respect it, and the people who participate on it. Perhaps, I am a “detached” person – I do not believe so – My statement was not intended at criticizing you or anyone specifically – But most assuredly you will NOT find me supporting a “tar and feathering party!” This sort of “thinking” I am completely against.
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On a personal note – I am not a “religious” person – but I do hold to the old saw – “let the man who is without fault – toss the first stone. I can and do understand the deep humanly devastating feeling that many have for the outing of Marion Jones – I do not feel that any disappointment I feel gives me the right to judge her – no matter how pissed off I may feel about it.
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As to what I would say if my children were young enough not to make up their own minds — I’d point out to them that Marion is first a human being — that what she did was WRONG and without honor and it is alright for them to feel disappointed, that when it comes their time to make such decision for themselves, they must work hard and do the right thing.]]> http://rant-your-head-off.com/WordPress/?p=393#comment-13346 paul sanders Sat, 06 Oct 2007 21:03:27 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13346 Barry Bonds is in 'The Clear'. http://rant-your-head-off.com/WordPress/?p=393#comment-13345 Jeff Adams Sat, 06 Oct 2007 20:43:39 +0000 http://rant-your-head-off.com/WordPress/?p=393#comment-13345 Larry, Not sure how things work in the US, but in Canada the Government is not allowed to have a private entity impliment government policy in order to circumvent the scrutiny of a person's rights under the Canadian Charter of Rights and Freedoms (our version of Amendment Rights). ... From a 1990 opinion document of the Privacy Commissioner: ... "Charter rights also apply to federally-funded athletes. Like other employees, these athletes receive monthly cheques from the government for their efforts. The federal government dictates athlete drug testing policy. If those policies fail to measure up to Charter requirements, they will be subject to challenge even if a non-governmental agency actually conducts the tests." ... http://www.privcom.gc.ca/information/02_05_12_e.pdf ... Also in the document at p. 43, the Privacy Commissioner says: ... "Few would disagree that, should such a challenge be launched, random mandatory drug testing of athletes would be found to violate sections 7 or 8, or both, of the Charter. The sole matter for real debate would be whether such testing constitutes a reasonable limit on Charter rights "as can be demonstrably justified in a free and democratic society". In addressing this latter question, the courts should canvass the factors contained in recommendation 2 of this report. On almost all counts, random mandatory testing of athletes would fail to measure up. Thus, not only would such a program fail to comply with the Charter, it would, if conducted by Sport Canada, be a violation of the Privacy Act." ... Of course this is not binding, but certainly is instructional - and it's the freaking Privacy Commission's opinion - not a lightweight body. ... The Government itself admits that they dictate anti-doping policy (although they strenuously and disingenuously denied that in my anti-doping arbitration). This is from a funding criteria document from the Canadian Department of Heritage: Funding Policies and Procedures 3.1.4 Doping in Sport The Government of Canada (Sport Canada) has had a policy against doping in sport in one form or another since October 1983. The current policy, the Canadian Policy Against Doping in Sport (2004), was endorsed by the Federal, Provincial and Territorial Ministers responsible for Sport, Recreation and Fitness in April 2004 and came into full force and effect on June 1, 2004. The policy provides that, with the cooperation and support of sport organizations and governments, the Canadian Centre for Ethics in Sport shall maintain and carry out the Canadian Anti-Doping Program. This program is to be consistent with the World Anti-Doping Program and other international best practices. ... Again, not sure if this applies to the US or not, but failing government action, private matters (including private arbitrations) are expected to be conducted in accordance with the overarching principles of the "law of the land", which in Canada includes the Charter and other human rights legislations. ... Question for the legal eagles - Is it possible for the AAA to adjudicate private rules on behalf of a private organization that run contrary to the legal principles upon which the USA is founded? ... By that I mean - say a private company had a set of rules, and used the AAA to adjudicate those rules - could those rules being adjudicated violate the principles of the Constitution or Amendment Rights or the specific overarching legal concept of the presumption of innocence? ... Seems odd for USADA (whether they are a private organization or not, and regardless of the degree to which the rules they have are implimenting gov't policy or not) to be able to use the AAA to adjudicate those rules that seem to run counter to fundamental beliefs of the US system of justice, make decisions that would seem to scar the foundations of the American legal system and would seem to be unacceptable in law in any jurisdiction in the U.S. As I said above - in Canada, we frown on that (and by we, I don't mean me, I mean the Supreme Court of Canada). ... I'm pretty confident that at some point, I'm going to win this argument - either in my appeal to CAS that will go in shortly, or failing success at that level, with the Supreme Court. ... It will be interesting to see if global dominoes start to tumble if (when) I'm successful in bringing constitutional protections to the Canadian corner of the doping Universe. ... I also agree that people should be made to pay back ever bit of what they've stolen. I believe that this applies equally to anti-doping authorities who dance on the heads of pins and twist rules to their benefit, and arbitrators who are intellectually dishonest in order to reach conclusions that run counter to evidence and jurisprudence. ... Read into that what you will, but if athletes are to be required to pay back salaries based on presumptions of guilt and strict liability, so should everybody involved in the process. ... Jeff www.adamsmania.com
Not sure how things work in the US, but in Canada the Government is not allowed to have a private entity impliment government policy in order to circumvent the scrutiny of a person’s rights under the Canadian Charter of Rights and Freedoms (our version of Amendment Rights).

…

From a 1990 opinion document of the Privacy Commissioner:

…

“Charter rights also apply to federally-funded athletes. Like other employees, these athletes receive monthly cheques from the government for their efforts. The federal government dictates athlete drug testing policy. If those policies fail to measure up to Charter requirements, they will be subject to challenge even if a non-governmental agency actually conducts the tests.”

…

http://www.privcom.gc.ca/information/02_05_12_e.pdf

…

Also in the document at p. 43, the Privacy Commissioner says:

…

“Few would disagree that, should such a challenge be launched, random mandatory drug testing of athletes would be found to violate sections 7 or 8, or both, of the Charter. The sole matter for real debate would be whether such testing constitutes a reasonable limit on Charter rights “as can be demonstrably justified in a free and democratic society”.

In addressing this latter question, the courts should canvass the factors contained in recommendation 2 of this report. On almost all counts, random mandatory testing of athletes would fail to measure up. Thus, not only would such a program fail to comply with the Charter, it would, if conducted by Sport Canada, be a violation of the Privacy Act.”

…

Of course this is not binding, but certainly is instructional – and it’s the freaking Privacy Commission’s opinion – not a lightweight body.

…

The Government itself admits that they dictate anti-doping policy (although they strenuously and disingenuously denied that in my anti-doping arbitration). This is from a funding criteria document from the Canadian Department of Heritage:

Funding Policies and Procedures

3.1.4 Doping in Sport

The Government of Canada (Sport Canada) has had a policy against doping in sport in one form or another since October 1983. The current policy, the Canadian Policy Against Doping in Sport (2004), was endorsed by the Federal, Provincial and Territorial Ministers responsible for Sport, Recreation and Fitness in April 2004 and came into full force and effect on June 1, 2004. The policy provides that, with the cooperation and support of sport organizations and governments, the Canadian Centre for Ethics in Sport shall maintain and carry out the Canadian Anti-Doping Program. This program is to be consistent with the World Anti-Doping Program and other international best practices.

…

Again, not sure if this applies to the US or not, but failing government action, private matters (including private arbitrations) are expected to be conducted in accordance with the overarching principles of the “law of the land”, which in Canada includes the Charter and other human rights legislations.

…

Question for the legal eagles – Is it possible for the AAA to adjudicate private rules on behalf of a private organization that run contrary to the legal principles upon which the USA is founded?

…

By that I mean – say a private company had a set of rules, and used the AAA to adjudicate those rules – could those rules being adjudicated violate the principles of the Constitution or Amendment Rights or the specific overarching legal concept of the presumption of innocence?

…

Seems odd for USADA (whether they are a private organization or not, and regardless of the degree to which the rules they have are implimenting gov’t policy or not) to be able to use the AAA to adjudicate those rules that seem to run counter to fundamental beliefs of the US system of justice, make decisions that would seem to scar the foundations of the American legal system and would seem to be unacceptable in law in any jurisdiction in the U.S. As I said above – in Canada, we frown on that (and by we, I don’t mean me, I mean the Supreme Court of Canada).

…

I’m pretty confident that at some point, I’m going to win this argument – either in my appeal to CAS that will go in shortly, or failing success at that level, with the Supreme Court.

…

It will be interesting to see if global dominoes start to tumble if (when) I’m successful in bringing constitutional protections to the Canadian corner of the doping Universe.

…

I also agree that people should be made to pay back ever bit of what they’ve stolen. I believe that this applies equally to anti-doping authorities who dance on the heads of pins and twist rules to their benefit, and arbitrators who are intellectually dishonest in order to reach conclusions that run counter to evidence and jurisprudence.

…

Read into that what you will, but if athletes are to be required to pay back salaries based on presumptions of guilt and strict liability, so should everybody involved in the process.

…

Jeff

http://www.adamsmania.com]]>