And so it goes for the US Anti-Doping Agency, whose record in arbitration now falls to 36 wins and one loss. Perhaps it was predictable that such a loss would come in a less publicized case than the Floyd Landis doping allegations. With extreme media scrutiny on USADA leading up to the Landis hearings in May, no doubt they brought their “A” game and top players to the table in Malibu. Perhaps they didn’t see the need to fight the LaTasha Jenkins case with the same kind of effort as they did the Landis case.
Whatever the reason, USADA’s case against Jenkins who allegedly tested positive for nandrolone at a track meet in Belgium in July 2006 fell down on the same kind of problem that anti-doping officials encountered with the Landaluze case. The same technician worked on the analysis of both the original A sample and the confirmation B sample, which is a violation of international standards that require the tests to be run by different technicians.
Jenkins was represented pro-bono by Michael Straubel, a Valparaiso University Law professor who runs the law school’s Sports Law Clinic, along with four Valparaiso law students. As Straubel told Eddie Pells of the Associated Press:
It’s a good day for athletes … The panel acknowledged that an allegation of doping is a serious matter which profoundly affects an athlete, and laboratories therefore must ensure the highest scientific reliability of the testing process.
Straubel said in comments to Chicago Sun-Times columnist Phil Hersh:
“This addresses a crucial issue emerging in sports law,” Straubel said. “Has the science been done well? The standard these labs violated is a safeguard that prevents labs from providing doctored results to mask testing process error or to intentionally harm the athlete’s standing.”
Straubel also told the Chicago Tribune columnist:
“I think USADA needs to get beat once in a while to preserve the credibility of the system.”
Hersh also provides a quote from a member of the CEO of the US Olympic Committee:
“This result reinforces there is a system giving athletes an opportunity for a fair outcome,” said Jim Scherr, chief executive of the U.S. Olympic Committee.
According to Hersh’s article, Travis Tygart almost sounded magnanimous in defeat:
“Our mission in every case has been a search for the truth, and as long as we have done our job to fulfill our mission we are satisfied with the outcome, whether it is a win or a loss,” Tygart said.
Still, I don’t see Tygart’s comments to Hersh as exactly (to use Tygart’s own phrase) “celebrating clean athletes.” Perhaps that’s because, like any anti-doping case, Jenkins case was won on a technicality.
Eddie Pells of the Associated Press got comments from Landis and Maurice Suh.
“I want USADA, when accusing people of breaking the rules, to follow the rules,” Landis said. “Here you have a person who is missing a year of her life. You can’t possibly put a value on that.”
Suh said he wasn’t surprised USADA’s first loss came in a relatively low-profile case. Still, he thought it was a sign the explosive Landis case might have had an effect.
“I hope we brought attention to problems in testing and to the fact that rules are important,” Suh said. “They shouldn’t be enforced one way against one athlete and other ways against others depending on the political pressure that’s going on.”
Hersh asked Jenkins’ attorney why he thought that both labs who analyzed her sample made the same mistake. His response? “They thought the rule was unnecessary and they complied with it in what proved to be an inadequate way.” Well, I’m not sure if that’s entirely true. They could just have been swamped with work, or understaffed. Or just plain careless. Maybe everyone was in France, helping LNDD manage all the hard work of analyzing the tests from the Tour.
The three arbitrators in the case, Yves Fortier of Montreal, Barbara Shycoff of Washington and C. Mark Baker of Houston, Texas have not yet released their full written opinion. When they do, I’m guessing that it will make for some interesting reading.
If you’d asked me at the beginning of the year whether I thought USADA would lose an anti-doping case, my answer would have been yes. If you’d asked me who the first person to win against them in arbitration would be, I wouldn’t have guessed LaTasha Jenkins. But it’s a good day when the labs are required to follow the rules, as it provides for some checks and balances within the system. Even if it’s only a win on a technicality, it still shows that at its best, the system requires that everyone must follow the rules — including those who are responsible for testing and enforcement.
Maybe I am missing or overlooking something, but I am a bit confused. USADA lost the case because the same tech worked on both A and B tests, but latter on your refer to “both labs”. Did the same tech work for 2 different labs?
William,
I haven’t seen it spelled out exactly, but what it sounds like is that there were A and B sample tests performed at both labs, and the labs both made the same error — having the same tech work on both samples. Why there would be two labs conducting the tests is something that’s beyond me.
But it’s also possible that a freelance tech working at the two labs happened to be involved in crucial parts of the A and B sample testing. It’s a question that those in the mainstream press didn’t ask, and should have. Or, the answer was edited out of their stories.
Ah, that explains it.
There seems to be a lot of “let’s make up our own procedures” lately in the AD realm. Having 2 labs do both tests could be taken as being both for and against the athlete, depending on how USADA would have acted if the results from one lab were different than those of the other. Look at what is happening with Mayo’s tests: despite the fact that the B tests did not back up the A tests, they are doing additional testing. Sounds like they are trying to get the desired result. Would the USADA have let Jenkins off if one lab’s results were positive and the other’s negative, or would they have attempted to ban her? I am assuming here that the results were in fact the same.
William,
I think that it’s pretty safe to assume that the results from both the Ghent lab and Cologne were the same or similar. If the results from one lab contradicted the other, I would think the ruling could still be the same, but for reasons that are more than just a Landaluze-type error. Once the panel’s full opinion is released, we’ll know more about how Jenkins tests were performed.
I had Prof. Straubel for Sports Law this semester, he was gone for 2 class periods about 2 weeks ago, now I see why. We spent a lot of time on doping and it was one of the essay questions on the test. This guy is hard core, I hope I can be a part of the clinic next year!
Jeff,
Good luck with that. I’m sure there will be no shortage of cases for the clinic next year. Especially with Professor Straubel’s new-found notoriety.
All of these doping tests have left my head dizzy and my cheeks stinging. Am I remembering right that Mayo’s B sample was tested by two labs, each of which said the sample was negative but now LNDD says this:
http://www.velonews.com/news/fea/13812.0.html
Is this like “best one out of three and you lose”?
No. It’s not the case. The 2 other EPO tests were inconclusive… not negative or not positive…lucky they were to have enough piss to rerun testing and to confirm the positive sample A.
Jean C, with all respect, dude,
Bullshit.
What does inconclusive mean? From two different labs, all of which are using WADA certified procedures? It is either there or it is not. Inconclusive says it it not there and you ain’t gonna see it unless you do some tricks with the base line. What a friggin’ joke.
Iban Mayo’s B sample returned positive for EPO in a test performed by the French national anti-doping laboratory (LNDD) in Chatenay-Malabry this Wednesday. After the A sample was found positive for the performance-enhancer at the Tour de France’s second rest day last July by that same laboratory, the B sample was first analysed by a another accredited lab in Gent, Belgium. But scientists there found it to be “inconclusive”, which made the International Cycling Union (UCI) ask the French lab to re-test the remainder of the B sample after the Spanish Cycling Federation (RFEC) announced the probe to be “negative”.
Anne Gripper, UCI anti-doping manager explained this discrepancy in October, saying, “In Gent, they use a slightly different technique [than the Paris laboratory].”
So no bullshit, if you don’t have the same instrument, the same competence, they can do’it differently and some time not able to perform enough, especially when they need to detect EPO in an older sample. EPO disappear with time so some method could be less sensible or unsuitable.
It’s not a “fight” between WADA and riders, WADA has to protect the clean athletes. In this case we can only suppose they have done their job.
Jean,
Interesting quote. What publication did it come from?
The one thing that concerns me about WADA in this instance is that it seems to me they should be creating or adopting standard testing techniques to be used by all labs. If they did such a thing, then the way the tests were performed would be identical, no matter which lab did the work. Were that the case, it would be easy to set up requirements in terms of competence — both for the labs and the lab technicians. And if they were to adopt such standards, we wouldn’t have any cases of differing results such as happened in Mayo’s situation. Assuming both labs were certified to use the same tests, and the personnel were certified to be capable of doing the tests, then in theory we wouldn’t see another situation like this again.
But that’s only a theory. Practice is sometimes a different matter.
Sorry Jean but:
“So no bullshit, if you don’t have the same instrument, the same competence, they can do’it differently and some time not able to perform enough, especially when they need to detect EPO in an older sample. EPO disappear with time so some method could be less sensible or unsuitable.”
is bullshit.
Who is more competent, LNDD or the Belgiums? They did not say.
What instrument is better, the one at LNDD or Belgium? They did not say.
Who has the more “sensible” (did you mean sensitive?) or suitable/unsuitable test, the Belgium’s or LNDD? They do not say.
And finally, if this was a case of vanishing EPO in old piss, then the Belgiums would have seen the last remnants prior to the re-analysis at LNDD ( a lab I am convinced everyone who works at must wear pink hair and a big rubber nose).
So I stand on bullshit for this mess.
Rant,
I think I take the quote from cyclingnews, it was most confortable for me so I googled to find a suitable english quote.
http://www.cyclingnews.com/news.php?id=news/2007/dec07/dec20news
WADA try to uniform the procedures and the material, but that need a lot of money and time. We are just at the beginning. But I doubt it will be possible because it’s a permanent war which need to update the procedures for the new product. Since AMGEN EPO we have seen a lot of new kind of EPO, like ARANESP,… one of the last is Dynepo… Of course the new kind of EPO were passing the first EPO test.
LNDD is the father of EPO test and is still working on EPO detection, they are probably the most competent of the world as are saying other lab. That can explain why Gent was not able to do the test!
BSMB,
We can only say that there is no bullshit because the 2 other labs said that their tests were inconclusive not negative. Now if you want to say that they are liars, you can as I can say that Mayo was propably cleaner than the precedent years!
Interesting to note: when suspected and doped athletes are saying that test doesn’t work and so, clean athletes as swedish worldchampion Klüft are requesting for more controls!!!!
Here is where we get into a case of he said she said.
According to the Spanish ADA, their interpretation of the rules differes from the UCI’s interpretation.
The Spanish Organization interprets an inconclusive result to be a negative result, the UCI feels that it’s OK to test until they get a definitive result. Personally, my feeling is that if it’s a WADA acredited lab, then the results should be accepted. If they cannot conclude that there was a positive, then it is by de facto, a negative.
If the lab cannot be relied upon to conduct the test with an acceptable level of reliability and consistency, they should not be a WADA accredited Lab. It was the UCI’s decision to send the samples there in the first place, they should have the integrity to either admit they screwed up by doing so, or stand by the results that came of it. Either way, Mayo should get off on this one.
By sending it back to LNDD, who I have little doubt knew they were re-testing Mayo’s sample, they put the lab in the position of having to verify their work was accurate (again). What I think will be interesting in the days to come will be how this is handled by the Spanish ADA and what bickering will go on between them and the UCI as they Spanish had already said they considered the case closed.
ddt240,
Personally, my feeling is that if it’s a WADA acredited lab, then the results should be accepted. If they cannot conclude that there was a positive, then it is by de facto, a negative.
Your feeling is bad because it’s very difficult to be competent everywhere. How is it unjust for the people who are victim of the dopers? They deserve respect, and WADA and UCI have to do their best effort to catch the dopers, they can’t throw into rubbish every inconclusive samples without doing their best!
Given that this is by no means a life or death situation and that reputations in sport can be ruined by nothing more than a baseless accusation…
I would find it more unjust to punish just one inocent person than to let five dopers off the hook due to lack of concrete evidence.
Who is more of a victim, the person who looses out on the winnings of one position in a race due to a doper placing higher than them, or the person who looses their entire livelyhood due to a false positive, or much worse, nothing more than a false accusation?
If this were a murder case, I might feel differently, but it’s not. It’s bicycle racing, a hyped up competition on highly modified toys. The only true “victims” of doping are the likes of Pantani, Tom Simpson, etc, IE: the dopers themselves. Yes, it ruins the enjoyment for the fans, but I think there are a lot of people who really need a reality check.
Hey ddt240,
You have to make a choice between : sport or livelihood.
I explain, if someone has damaged my livelihood, I would sue him. Police and justice have to their best to catch him with proofs, even if they have to rerun inconclusive tests.
In sport like football sometimes referees make mistake when their refuse valid goals but no one sue them!
I choose livelihood.
Your example is apples and… well, grapefruit.
If a referee makes a bad call, even if you get red carded, you’re only out for the rest of the game. Even if it was a good call, you’re not out for the rest of the season without pay, and most certainly are not out for 2 years.
With doping, a bad call can put you out of work for 2 years. If you decide not to fight a false charge, that’s all you are out, 2 years without pay. If you decide to fight, you’re out much more, not to mention that either way your reputation is ruined simply by the accusation.
That would be like accusing a writer of plagiarism and banning them from writing for 2 years for providing incorrect documentation for a reference.
Don’t get me wrong, I’m all for the anti-doping movement and getting doping out of sport, but you have to make sure you are protecting the innocent and not punishing them. Again, it’s a sport, we’re not dealing with serial killers. We can afford to let a few off to protect the ones that have done nothing wrong. One would hope that the ones that get caught and then let off would be “scared straight” so to speak.
Ultimately, getting rid of doping will require a culture shift, not stricter liability. It will take the participants to change the culture before it will go away.
Case in point.
http://www.cyclingnews.com/news.php?id=news/2007/dec07/dec21news
Björn Leukemans’ positive test for testosterone was due to a product mistakenly prescribed by a team Predictor-Lotto doctor, according to the Belgian newspaper De Morgen, which further reported that the team has fired the doctor. It was, however, unclear as to why the rider was given the product in the first place.
The newspaper claimed that the doctor, whose name is not given, gave Leukemans the product Prasteron, which contains the steroid DHEA (Dehydroepiandrosterone). DHEA is similar to testosterone and is on the forbidden list.
“It is terrible thing from a young, dedicated doctor with an impeccable record,” an unnamed team source told the newspaper. “However, it was an enormous mistake.”
In my oppinion, here we have a prime example of a “doper” who should be let off.
let me restate that….
In my opinion, here we have a prime example of a “doper” who should be let off assuming that a valid reason is given for why he was taking the drug.
Given it’s common uses, further investigation should be required, but if it’s proven that he and/or the doctor were unaware of it having PED characteristics, I think this is a situation where we could give the rider leniency, but punish the doctor.
UCI/WADA have to punish the rider and eventually to ban the doctor if he is linked to UCI. But the rider stays full responsible, he can sue his team and the doctor for the damages!
If we are regarding Leukemans
What is the Leukemans’ illness needing Prasteron just before the world championship?
Sorry but it’s very probably just one more who are trying to fool us!
Ddt240 – You write — “Ultimately, getting rid of doping will require a culture shift, not stricter liability. It will take the participants to change the culture before it will go away.”
While Jean C attempts to counter with — “Sorry but it’s very probably just one more who are trying to fool us!”
I contend that while both your reasoning seems sound on the surface they miss the point.
It seems to me that what you both are discussing is CHEATING IN SPORTS.
Ddt240, do you actually think that “cheating” – in this instance doping – will go away if there is a cultural shift? How do you see this “automatic happening?”
Understand — I am not attacking you — rather I am asking you. Please “explain” how you come to this conclusion and how it will automatically bring about an end to “dope” cheating.
Taking for granted (accepting) that “cheaters” will “try to fool us” – Jean C – I am failing in following your logic in response to ddt240’s comment — “In my opinion, here we have a prime example of a “doper” who should be let off.”
It seems to me that you believe that “as long as you suspect that cheating is going on” the “governing bodies” need not have substantiated proof of intent — therefore it is “fair” to “throw the bum out!” — Please explain to me how this applies to a “fair-system” in dealing with the problem of cheating in sports? Or for that matter — how fair governance is involved?
and speaking of second (or is it third or fourth?) chances, Tyler is back with a team owner that is proud, yes very proud of having him signed, sealed and delivered. Tyler will no doubt have a fine spring tuning up for some big continental races only to have yet another poorly zeroxed copy of a translated FAX using his grandmothers second maiden name to code for a bag of mysterious substance found under the bed in a house Dr. Fuentes lived in in 1975, and then Tyler’s new owner will drop kick him back to Boulder. is this deja vu all over again?
Naw – its them Nazi-frogman on doped-up Harley’s – doing the “time warp!”
Morgan,
ROTFL! Now there’s and image that’s going to be hard to forget!
All I want for Christmas is Dickie Pound – dressed as Dr Frankenfutter – all sweaty from ravishing virgins after his epococtail with testosterone on the rocks……
Morgan,
I do not have the naivety to believe that cheating will ever completely go away. Not in sports, not in the professional world, politics, etc. The desire to get ahead by any means necessary is too ingrained in human nature, there will always be someone who will give in to the temptation.
What I’m saying is that stricter liability and punishment is not the answer as it increases the chances (dare I say a foregone certainty) that you will end up punishing an innocent due to a false positive or false accusation. There will always be those that cheat, and regardless of how strict they are about testing and punishment, the ones that cheat will always find a way. Being more strict may scare a few straight, but I think it will be at the expense of the innocent and will ultimately do more harm than good.
In my opinion, the best way to curb cheating is to get buy-in from the participants to regulate themselves. In my experience, there is no pressure greater than peer pressure. We need more people like David Millar in the sport. If the culture of the peloton is to pressure other riders to ride clean and to ridicule those that don’t, most of them will ride clean. For this to happen, the culture will also need to change away from the stigma that has been put on talking about what they know. The riders know who dopes and who doesn’t. Maybe they don’t all know, but I find it hard to believe that anyone in the peloton is doping without any of their peers knowing about it.
I think Jonathan Vaughters is on the right track, especially in that he apparently has the buy-in from his riders into his system. If you can get more teams (especially pro tour teams) and more riders to buy-in to systems like this, the problem will all but go away. Not because of increased regulations, but because of peer pressure to ride clean. There will still be those that cheat, maybe it’s an illegal bike, maybe it’s a PED, but it won’t be as widespread as it appears to be now.
I hope this explains my position a little bit better.
ddt240,
I wish to clarify that I did not mean to imply that you were naive — I really only desired to “hear” a clarification of your stance. This you have supplied succinctly — thank you.
You write — “What I’m saying is that stricter liability and punishment is not the answer as it increases the chances (dare I say a foregone certainty) that you will end up punishing an innocent due to a false positive or false accusation.”
If I may – I would like to interact with your answer. — Before I go any further — I wish to state clearly that I agree with this viewpoint. To use my own words — Rules and laws are established in societies; in this case, the society of sport — to level the playing field — to protect the weak from the overwhelming might of the strong. I believe you and I are agreeing on this particular point, no?
But let us look at HOW this present problem is being presented in the media. Michael Straubel, a Valparaiso University Law professor made this statement to the media”¦
—“The panel acknowledged that an allegation of doping is a serious matter which profoundly affects an athlete, and laboratories therefore must ensure the highest scientific reliability of the testing process.”
—“This addresses a crucial issue emerging in sports law. Has the science been done well? The standard these labs violated is a safeguard that prevents labs from providing doctored results to mask testing process error or to intentionally harm the athlete’s standing.”
And then Mr Straubel has a “blond-moment” and caps his statement with this”¦
—“I think USADA needs to get beat once in a while to preserve the credibility of the system.”
May I point out that the first two statements were a hurriedly vague representation of the fight he had just won against the USADA — they point to, in a broad sense, the problem that exists in dealing with “cheating in sports” and how we, as a society, are trying to deal with it.
The fact that the “trial” was to determine if LaTasha Jenkins had cheated or not — at least this was the “public expectation” of the arbitrators rendering — “IS SHE A CHEATER OR IS SHE NOT” — is not answered. WHY THIS IS NOT ANSWERED is also blatantly not addressed. Therefore THIS IS WHERE we have the problem.
Mr Straubel has a “blond-moment” because by stating his thoughts as he did in the last quote — he, without realizing it, invalidates what he is accusing the system of — in essence — poor lab protocols, testing protocols, along with the issues to do with chain of custody.
He basically winds up saying that the system works because he had won. Has he? Technically, yes. — Is LaTasha Jenkins a cheater or not? We haven’t got a clue. ALL THAT we are left with is that dissatisfying tin-taste in the mouth — “she got off on a technicality.” Is the viewing public fandom satisfied — I do not believe this to be so. Do you?
The reporter who took these statements then proceeds to quote Jim Scherr, chief executive of the U.S. Olympic Committee.
—“This result reinforces there is a system giving athletes an opportunity for a fair outcome,”
And Mr Travis Tygart – commenting:
—“Our mission in every case has been a search for the truth, and as long as we have done our job to fulfill our mission we are satisfied with the outcome, whether it is a win or a loss.”
I am seriously left wondering, “what was the question?” that these two individuals were “commenting” on. Any guesses? Could it be the same UNSTATED view that there is a lack of balance and fairness in the system? That Mr Straubel had neglected to voice in his comment? Mr Scherr’s comment certainly would lead me to draw this conclusion. Otherwise — why make it? Now as to Mr Tygarts attempts to “take the high road” in his public response to his losing — comes as no surprise.
But what is the PUBLIC LEFT WITH? A good word to describe it would be FRUSTRATION. Why? Because ALL the officers of the court failed miserably to fulfill their position of responsibility. Do I mean Legally? — NO. But I could strongly argue that they ethically completely missed the boat.
Now ddt240 — do you think that this little presentation expresses what you state with,
—“The desire to get ahead by any means necessary is too ingrained in human nature, there will always be someone who will give in to the temptation.” — Have the major players here — “given into the temptation?” I think they may have, a long time ago.
Can we — or – Should we enact rules and laws that govern such behavior? We could. But should we? I don’t think so. Because rules are not meant to be “moral” boundaries — but rather an attempt at a civilized way of leveling out the playing field — protecting the weak from the overly strong.
And ddt240 – thank you for taking the time to respond.
Regarding Straubel’s statement about USADA needing to be beat every once in a while; I really don’t know what to make of it. When I originally read his comments, I thought that it was perhaps a incomplete sound bite of sorts, that maybe he had more to say on the topic or that it was a poor choice of words.
I agree with him in that the alphabet soup should loose on occasion to maintain any credibility, but those losses should be legitimate, not ceremonial. As I’m not very familiar with the Jenkins case, I really don’t have an opinion on weather or not she actually is guilty, however, I can’t fault her on winning by technicality as that is currently the only way to fight the charge. This is where the shift needs to move from strict liability regulated by a governing body to the cultural shift of self regulation on the part of the athletes.
The thing that frustrates me the most are the athletes that fight the charges but never deny the allegations. Kashechkin for example, who is fighting his positive from the TdF, yet has never come out and said he didn’t do it.
As for the comments coming from Tygart et. al.; I think that was just saving face. I seriously doubt the sincerity of any of the comments made. I wouldn’t be surprised if in some twisted logic the likes of Tygart, Pound, and Gripper actually believe that the system is skewed toward the athletes and I wouldn’t be surprised if Tygart actually feels like they were cheated out of their flawless record. Public perception is going to depend completely on how informed the public is and I think the Landis case did a lot to expose many of the problems.
In regards to the rules; I don’t think that’s where the problem lies. The rules don’t seem to be the problem in my opinion. The problem is the method of enforcing the rules and the punishments for violations. The rules are there for the right reasons, and I think for the most part they are good rules, they just need to refine and standardize the testing and re-evaluate the arbitration process.
Sorry if I missed anything and for the delays in responding, my main computer is on the frits and I’m waiting on parts and I was a bit distracted today so I might have missed a bit here or there.
-Drew
Drew,
I have to point out to you that you are contradicting yourself when you state,
— “I agree with him in that the alphabet soup should loose on occasion to maintain any credibility, but those losses should be legitimate, not ceremonial.”
Your comment infers that for the “alphabet soup” to “lose now and then” makes them “legitimate.” I contend that along this line of reasoning, their winning or losing becomes a matter of ceremony, NOT a question of legality or legitimacy.
When an accused is put on trial, their innocence or guilt “is the central issue.” It should not be accepted that the prosecuting body gets it’s legitimacy from the statistics of its winning or it’s losing.
For a “win” to be legitimate — the trial results should prove the accusation one way or the other, not the “winning or losing.” Everything else falls into the category of hyperbole.
You state — “As I’m not very familiar with the Jenkins case, I really don’t have an opinion on weather or not she actually is guilty, however, I can’t fault her on winning by technicality as that is currently the only way to fight the charge.” — I put to you that one should not need to be “familiar” with a case, “familiar” meaning having an opinion as to guilt or innocence — to approach understanding from this point of view is subjective and therefore partisan from the start.
I have nothing against Jenkins “winning” on a technicality — since the only way for her to “win” was to apply the rules that exist at present to try a case of this kind. But it may not be ignored that turning the situation of her trial into a “technical” game of gymnastics avoids the central question of guilt or innocence, is not of her making – rather the result of the rules as they exist today.
You state —“In regards to the rules; I don’t think that’s where the problem lies.” With this stance I must wholeheartedly disagree.
When rules are written to prevent the accused from “questioning” the prosecutorial evidence because they are to be considered unimpeachable merely on the say so of the governing body and the accused is prevented from questioning the “evidence” against them, then such rules can only be considered “slanted” favoring the prosecution, at the expense of the accused. I put to you that such rules may not be perceived as “fair or unbiased.” Curtailing legitimate questioning of evidence may not be perceived as anything to do with transparency of the legal process.
When you claim that — “The rules are there for the right reasons, and I think for the most part they are good rules,” — As you state it — I have to restate my reactions. If you mean by this that rules are necessary to deal with “cheating” — this I agree with 100%. But I cannot agree that the present rules, which I find to be wanting in fairness and transparency, may be referred to as “good rules.”
—“Public perception is going to depend completely on how informed the public is and I think the Landis case did a lot to expose many of the problems.” — You cannot have stated this more accurately, Drew.
The problem is though that “public perception” is being formed on — assumptions – rather then on – facts. Yes — I also feel that the Landis Case exposed much of the problems with the present governing system. But realistically these “discoveries” remain mostly ignored by the mass media, and by the governing bodies themselves.
I put to you that it is not possible to have a “legitimate” means of dealing with “cheating/doping” without the foundation of a fair and balanced judiciary attached to the system.
Having said this — I wish to point out that I am NOT against having a WADA to deal with drug testing for sports — but I am wholeheartedly against the present form the rules are taking. I must ask myself — what is the point of “considering” punishments — when guilt or innocence may not be got at?
Lastly — as you state —“I wouldn’t be surprised if in some twisted logic the likes of Tygart, Pound, and Gripper actually believe that the system is skewed toward the athletes and I wouldn’t be surprised if Tygart actually feels like they were cheated out of their flawless record.” — That is the whole point of this fiasco.
If we had a “fair and balanced” set of rules — then the subjective opinions that get voiced by the above mentioned can be easily perceived for what they are — biased and having little to do with “championing” fair play, clean athletes or honesty in sports.
Morgan,
I don’t think I’m contradicting myself, but I think it does point out how easily intention and perception can be interpreted differently. When an organization with a charter to protect athletes has a flawless record when prosecuting those they are supposed to protect, it will produce the ayre of having a lack of credibility. To maintain any perception of being a credible system, the organization will need to loose occasionally. Loosing in itself (a ceremonial loss) does not automatically make the system credible, but if the loss is legitimate, and the athlete does in fact prove their innocence, then the perceived credibility of the system appears to be more legitimate.
The fatal flaws in the system are that not only must the athlete prove their innocence (rather than the organization proving guilt), but they can only win by technicality which removes the incentive for addressing the guilt or innocence issue in arbitration. As such, even if they do win, the issue of their personal credibility is still in question as they have no way to “prove” their innocence. This fact alone, in my opinion, calls into question the credibility of the system as a whole.
In regards to the rules, I see them as having 3 parts:
1. The rules; the basic policies that have been written to ensure a level playing field. WADA has rules regarding what substances may not be used and it what quantities. UCI has rules regarding the geometry, measurements and weights of the bikes, so on and so forth.
2. Enforcement; the means of collection and monitoring. This is the how, when and why of it. How the organizations collect and monitor the athletes, the procedural guidelines of how they proceed when they find a non-negative, etc.
3. Punishment; how the organizations penalize the athletes when they find a positive. I include everything after the non-negative becomes a positive in this part. The organization issues a punishment, and if the athlete contests, the arbitration process is still part of the punishment phase the way I see it.
So, all this being said, I still hold that the rules are good and just, but the enforcement and punishment needs some serious work. I think that when put this way, we are probably in agreement in this opinion. The current method of collection and testing (enforcement) is not standardized amongst all of the WADA accredited labs. This is the first thing that needs to change. The burden of proof, and criteria for proving ones innocence (inability to argue the science of the test) being the second (punishment). For either of these to happen will require a paradigm shift in the thought process of the heads of the powers that be, and honestly, I’m not optimistic that this will happen anytime soon.
While I hate to say it, perhaps LeMond was right about one thing. Make it criminal, that way the enforcement and punishment would be governed by the rule of law and handled by the courts, not an arbitrary body.
-Drew
Drew — Happy Holidays first of all — (:-)
— “When an organization with a charter to protect athletes has a flawless record when prosecuting those they are supposed to protect, it will produce the ayres of having a lack of credibility.” —
I would have to respond to this as sheer bald-faced hyperbole on your part. The only time when such a miasma of mistrust occurs is when the process lacks transparency.
Besides — we are not speaking hypothetically — as you yourself have pointed out — the Landis case did in fact bring to light the actual methodology of how the rules written up by WADA and accepted by the USADA and adhered to by the CAS panel — reveal themselves to be slanted AGAINST the athlete. This is NOT OPINION — it is fact. You yourself point out,
—“The fatal flaws in the system are that not only must the athlete prove their innocence (rather than the organization proving guilt), but they can only win by technicality”¦” —
If the ACCUSED is prevented from even an attempt at proving the accusation against him and then is left with nothing but a “loophole” to fight against the “accusation” — then it is not merely a matter of “interpretation of perception” that is taking place, rather a blatant attempt to permanently “mark” the athlete by the accuser — FOR ONE REASON ONLY — so that even if the athlete “wins” — the stain of the accusation cannot be removed.
I do not consider this a question of misapplication of “fair rules” — since it is the rules themselves that bring about this situation themselves — NOT merely the misapplication of the rules by individuals.
You state yourself —“As such, even if they do win, the issue of their personal credibility is still in question as they have no way to “prove” their innocence.” EXACTLY! Therefore the RULES are the main point of issue here. Your statement should indeed call into “question” the RULES — because they are a manifestation and a product of the SYSTEM. The “rules/laws” under which an accused athlete is treated in a quasi-legal court such as the CAS — HAVE TO BE CALLED INTO QUESTION.
Simply put — they are unfair rules. It matters not that WADA or the UCI “claim” that they “think/feel” the rules are “slanted” to protect the athlete — THIS is nothing but a complete affront to our understanding of “fair-play” and our intelligence – it is also a bald faced lie — it “interprets” a reality not with the idea of seeking truth — but rather to present an “acceptable public face” on this skewed matter.
If one approaches the present problem — one must think strategically. One must ask —
— What is easier — “scraping” WADA and starting over from scratch? -OR-
— Addressing the rules and bylaws under which they have to exist?
I submit to you that trying to “get rid of WADA” is nie-impossible — WADA has been formed by diverse governmental agencies, political groups, entrenched “interested parties” — and — I would not wish to get rid of a “world wide accepted agency that is responsible for controlling “drug use and cheating” in sport.
Without such an agency — I do not see how we can expect to get anywhere near to some level of “fair-play” in the sports world.
BUT — we CAN force a change in their rules and laws, part of that “forcing” is such “public dialogs” as you and I are having at this moment. Such a situation as we find ourselves in today as far as the WADA Question, the Rules Question, the Adherence to the set rules by all parties concerned — did not come about by “chance” or “happenstance” — IT WAS INTENTIONALLY CREATED.
We may get into a discussion of the possible theories behind these creations — but I don’t think this moment is the right one for such effort.
THIS MOMENT needs to address only one simple question. If we know the rules to be written so that the ACCUSED cannot clear his name — once he has been accused — THEN WHY IS NOTHING BEING DONE ABOUT IT?
We may also go to the next logical question — WHO BENEFITS from such a situation?
Does the athlete? I do not think so. Does the “fandom” benefit from whatever result such a situation brings out? Again, I do not think so. Does The Sponsor gain anything? Not really. Does cycling gain from the situation? Again — as I see it — I do not think so!
So what do we have?
—What we have is a world wide sport that has been turned on its head and sponsors are jumping ship so fast it makes you dizzy.
—You have “public–media–trials” that assassinate the character of individuals.
—You have a system that hides its activities “behind closed doors” under the “guise” of claiming to be in the interest of the athletes “privacy.”
—You have no means of rectifying the situation when falsely accused.
—You have no means of taking to task your accusers when they have unjustly accused you.
—You have a “governing body” that ignores the rules when it suits it.
—You have no means at present to hold anyone responsible for any of these activities because said body is an independent private organization that does not have to follow ANY RULES other then its own self created ones.
—You have repeated instances when “involved parties” have “conflict of interest” issues that are simply ignored as irrelevant.
I could continue on — but I do not think I need to. In my thinking — we are not “discussing” a matter of mere “interpretation” Drew. If we allow ourselves such offhanded responses to such a very serious situation — than we are deserving of whatever the eventual outcome we wind up with.
Pardon me Drew if I give the “impression” that I am “arguing against you.” This is not my intent. My “interpretation” (:-)) — of what we are doing is trying to dig into the present problem and discuss it as clearly and logically as possible. Something the people who are running WADA do not seem to be able to accomplish.