More Slings and Arrows

Ever have that feeling like you left something out of something you wrote, or left something behind? Happens to me, every once in a while. Most of the time, it happens when traveling, and almost always on the outward bound portion of a trip. Only once have I been badly stung by the cost of replacing what I left behind — a good pair of shoes, needed for a formal event at my destination (ouch!).

Leaving something out of my writing? It happens on occasion. Great thing about the blogosphere is that someone will usually come along and point out the weakness in the writing and I’ll correct it.

So, after yesterday’s mini-rant “The James G. Watt Shoot Yourself In The Foot Award Goes To …”, TBV picked up on the missing part of the story, when he observed:

Unfortunately, the Gonzalez ruling is completely consistent with all the “strict liability” precedents.

Spot on, TBV. I hate it when I leave stuff out. He’s absolutely right. The Gonzalez ruling is completely consistent with the “strict liability” formulation of the World Anti-Doping Code, as stated in Article 2 of the code (gluttons for punishment can read it here:

The following constitute anti-doping rule violations:

2.1 The presence of a Prohibited Substance or its Metabolites or Markers in an Athlete‘s bodily Specimen.

2.1.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimen. Accordingly it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping violation under Article 2.1.

There it is, in black and white. Strict liability. Other parts of Section 2 discuss and lay out rules for substances that may be also be produced by the body (like testosterone). Interestingly, in the commentary on section 2.1.1 on the same page is this gem:

However, the Athlete then has the possibility to avoid or reduce sanctions if the Athlete can demonstrate that he or she was not at fault or significant fault. (Article 10.5 (Elimination or Reduction of Period of Ineligibility Based on Exceptional Circumstances))

– snip –

It is important to emphasize that while the determination of whether the anti-doping rule has been violated is based on strict liability, the imposition of a fixed period of ineligibility is not automatic.

And then the commentary goes on to justify the strict liability rule, and comment that life is unfair and it’s not possible to undo various types of unfairness, but states that it is more unfair to allow athletes to avoid punishment for accidental exposure from the point of view of the rest of an event’s participants who were not doping than it is to punish the individual. It’s a thoroughly confused and confusing commentary — and just the kind of thing that the CAS could interpret and clarify, if it has the power and were inclined to do so.

Problem is, that unlike a judicial system, where laws are routinely interpreted (think of any proceeding in any high court in most countries, like the Supreme Court in the United States or similar courts elsewhere), the CAS is not necessarily in a position to make that interpretation.

In looking at the CAS’ web site, I tracked down the rules that an individual panel operates under. To be more precise, since it’s arbitration, the two sides agree on what rules will be used to judge a case. In a doping case, that would be the World Anti-Doping Code (WAC).

Their job may just be to determine whether the rules in a particular case were followed or not. And their judgments may not set the same kinds of precedents that, say, a Supreme Court ruling would. But if they do, then I fear the implications of this particular ruling.

Judging by the Spanish federation’s determination, the Spanish tribunal looked at the WAC, saw some flexibility and came up with an appropriate punishment. To me it looked fair and balanced. The UCI, on the other hand, appealed to the CAS seeking a harsher punishment for Gonzalez.

So, it was a perfect opportunity for the CAS arbitration panel to clarify some murky legalese and perhaps introduce at least a bit of balance into the system. The panel chose not to do so, going instead with the more strict interpretation, citing its belief that Gonzalez hadn’t met the standard for either No Fault or Negligence or No Significant Fault or Negligence standards in section 10.5 of the code.

It all boils down to how you interpret the evidence and the rules. The Spanish federation took a more balanced view, and the CAS took a more hard-line view. Perhaps they were intending to send a signal or set a precedent that says the more balanced view will be tossed on appeal. If that’s the case, then a great many athletes who get caught up in cases of accidental exposure are going to be punished, and punished severely.

Which all leads back to the question Peloton Jim posed: When will common sense prevail?