WADA Load Of Nonsense

by Rant on May 13, 2008 · 13 comments

in Doping in Sports, Floyd Landis

Back in my youth, my friends and I would play pinball at a joint called The Roost, which was not too far from the Purdue University campus. The Roost was in a ramshackle old Victorian-style building, a converted farmhouse, about three blocks from my home and within easy walking distance for many of my friends.

Our approach to playing pinball was a variation known as “loser pays.” It is exactly what you think. Whoever lost the game paid for the next one. If you were good at pinball, you could go an entire evening without paying. If you were OK at pinball, you could break even — winning as often as losing — and in effect play for half price. If you were bad, you wound up subsidizing other people’s pinball addiction.

Me, I was pretty good, but not great. Somewhere between break even and play all night for nothing. Back then, pinball was cheap. A quarter bought two games (for one person), or a single game for two people. We always played against someone else, unless The Roost was deserted. And that only happened when the university students were gone on breaks.

Summer school meant fewer students on campus, but there were usually enough to keep the joint filled to capacity (and, had a fire marshall ever set foot in there, beyond capacity) every night of the week.

It seems, that in some respects, the notion of “loser pays” is on the minds of various people at the World Anti-Doping Agency these days. Yesterday, in various articles based on comments by John Fahey (the man who replaced Richard W. “Dick” Pound at the helm of the world-wide anti-doping agency), Fahey appeared to be suggesting that WADA would seek repayment of fees from athletes who lose their challenges to anti-doping cases brought against them.

The difference between what my friends and I knew as loser pays is that what is being reported as WADA’s idea sounds suspiciously like the agency intend for athletes to pay when they lose anti-doping cases and WADA wins, but not when the vice-a is versa.

Reuters, in a story with a sensationalist headline, reports:

“The normal process for costs and proceedings will be followed,” said Fahey, a former Australian finance minister who took over as WADA chairman from Pound in January.

“Clearly the decision has to be made and I understand that is not too far away but of course it is a matter for the tribunal of the Court of Arbitration for Sport to when they release the decision.”

“In the broader sense we have arranged to meet with the head of Court of Arbitration for Sport to cover a number of matters with him.”

“The figure (for Landis court costs) I keep being told is $1.3 million dollars that is what has been spent.”

The Reuters headline (Anti-doping agency to seek court costs from Landis) suggests that WADA wants compensation from Landis for the money they’ve spent on the cyclist’s appeal to the CAS. (And given all that came before, how the heck did WADA spend $1.3 million? Did they put on an entirely new case from scratch?) But the key information here is that first paragraph quoted above.

The Reuters reporter or copy editor didn’t bother to check what the normal process is. In searching through the current version of the World Anti-Doping Code, and the new version going into effect on January 1, 2009, I found absolutely no mention that the athlete is responsible for WADA’s costs in the event he/she loses an anti-doping case. In fact, the only mention I found (in the current code) says that an athlete is entitled to legal representation at the athlete’s expense.

Fair enough — well, kind of. Current practice has been that each side pays its own legal costs. (Which given the greater resources available to the ADAs leaves the considerable costs of a challenge by any athlete as a major deterrent to contesting an adverse finding in the first place.) And, while the UCI apparently hasn’t ponied up any money related to the Landis CAS appeal, WADA can’t exactly claim poverty here.

They’re sitting on a nest-egg of approximately $22 million (US) according to WADA’s 2006 financial statements, which given the dollar’s weakness doesn’t buy as much as it used to. Still, if I were sitting on that kind of money, crying poverty wouldn’t exactly be believable, would it? And it’s not believable when WADA does so, either.

In the broadest sense, WADA exists to fill several roles:

  • First, to create a consistent set of rules, consistently enforced throughout the sporting world,
  • Second, to develop or fund the development of techniques for catching those who break the rules,
  • Third, to educate athletes on the dangers of doping, and on why they shouldn’t break the rules against doping, and
  • Fourth, to prosecute or assist in the prosecution of cases against athletes caught doping

If they’re sitting on a slush fund of $22 million, they are quite able to pay for the case they put on in March at Landis’ CAS hearings. Does that absolve others who should be involved in the case (USADA and the UCI) from bearing the costs? That all depends on what agreements exist between the three regarding such expenses. Given the friction between the UCI and WADA lately, it doesn’t surprise me much to see these two groups at odds.

What does surprise me, somewhat, is the apparent non-participation (financially) of USADA. After all, USADA was the original prosecutor, they might wish to participate in the appeal (or do they not wish to be associated with this appeal, for fear that it may go in Landis’ favor and further diminish their win/loss record?).

Under the current way things are done, the Landis side bears no responsibility for WADA’s expenses in this case. Nor should they. WADA chooses to put on whatever case they desire, using whatever lawyers they wish, and bringing in whatever witnesses they wish, and so forth. They could defend against Landis’ appeal based on the record of the first hearings, or they can put on a whole new case. That’s their decision.

The meeting that Fahey and company seek with the CAS’ head is cause for concern. If WADA is looking to lobby for a change in the way legal fees are allocated, and if they’re looking to shift that cost onto the athletes, this would be a very bad thing indeed. The system is already stacked against the athletes who choose to fight charges that they doped, both in terms of the “judicial” process and in terms of the expenses likely incurred to fight.

This is already a powerful disincentive for anyone accused of a doping offense who might think of trying to defend themselves against such charges. Adding the possibility that such a challenge could also result in being responsible for the other side’s legal bills means that very few (if any) athletes will ever challenge an adverse finding.

This may well be what WADA and other authorities want. Or, it may be an unintended consequence that they didn’t consider. (Yeah, right.) As it is, the system is skewed towards the anti-doping agencies’ side. There are few real checks and balances on the ADAs power as things currently stand.

Now, while many of those accused of doping may well be guilty, the WADA code gives all athletes the right to defend themselves and the right to a fair hearing. It does not impose the obligation of paying WADA’s (or any other organization’s) legal fees should the athlete lose his or her case.

If the CAS were to go along with a hair-brained scheme to institute any form of loser pays, then it needs to be balanced so that both sides are in financial jeopardy. Forcing athletes to pay for the ADAs legal fees could result in those who are fighting merely to fight, rather than because they are innocent, to think again. That, in its own way, prevents cases without merit (on the athletes’ side) from being pursued.

But to balance things out, the ADAs have to be in jeopardy, too. Nothing prevents them from pursuing a flawed case based on poor lab results or imperfect evidence. In the pursuit of such cases, it’s the athlete’s reputation that is destroyed, along with the athlete’s ability to earn a living. When Floyd Landis or another athlete chooses to fight doping charges, no one on the prosecution’s side is in jeopardy of losing a job, never being able to work in his/her current career in the future, or of his or her reputation being forever tarnished. Well, not unless they do something seriously unethical or downright criminal, that is.

One way to put some brakes on the ADAs would be to require them to pay legal fees, and lost current or future income, to the athlete, in the event that ADAs lose their case against said athlete. That provides a powerful disincentive when it comes to pursuing cases of dubious quality or merit. Knowing full well that they could be on the hook for millions of dollars, the decision-makers who choose to pursue anti-doping cases, or who determine whether an athlete’s sample results prove an adverse finding, will need to be more careful in which cases they choose to pursue.

And, they will have an incentive to improve the laboratory procedures and the science behind the testing so that their results will stand up to scrutiny in a challenge — without the need for a presumption of infallibility. This could result in some of the less well-grounded cases from being pursued. And that could result in innocent athletes being spared the turmoil and trauma associated with accusations of doping. (It could also mean that guilty people may not be pursued, but with higher standards and improved detection methods, one would hope such instances would be minimal.)

The current system, where each side pays their own expenses, may well need to be changed. But changing it to a loser pays system when the athletes lose, and not when the ADAs lose, would only serve to further skew things towards one particular side — that of the ADAs. Despite the WADA code’s statements that athletes have the right to a speedy and fair hearing, such a change would further stack the deck against the athletes.

And in the end, such a form of loser pays would be a monumentally bad policy.

Update: Bill Hue points out in a comment below that WADA’s effort to recover expenses appears to be based on a section of the CAS’ code, and not based on WADA’s code. The section Bill cites is neutral to who wins, meaning it could equally be the case that WADA could be on the hook for the athlete’s costs, should the athlete prevail. By seeking to recover legal fees from the athletes, the agency may well be opening the door for athletes to seek legal fees from the agency. Unintended consequences happen.

Ken (EnvironmentalChemistry.com) May 13, 2008 at 10:51 pm

I just saw the Reuters headline in Google News and came here first to see what it was about. Boy, you are fast. The whole idea of the athlete having to pay WADA’s legal fees if they lose their appeal would be completely unjust. Not that I’ve seen anything just in the system so far. Let’s face facts, the whole system is an unjust and corrupt inquisition that has no real concern for due process, fairness or seeking the truth. Unless governments (like the U.S. Congress) decide to stand up for the rights of their citizens, nothing is going to change because there is too much money at stake and everyone in control of the system have become corrupted by their own quests for power.

The sad reality is that there is no way the system is going to be changed for the better and this is a really bad time in history to be a really talented athlete.

bill hue May 13, 2008 at 11:03 pm

WADA’s request for “contribution”, should it prevail, derives from the CAS Code as follows:
“R64.5 The arbitral award shall determine which party shall bear the arbitration costs or in which proportion the parties shall share them. As a general rule, the award shall grant the prevailing party a contribution towards its legal fees and other expenses incurred in connection with the proceedings and, in particular, the costs of witnesses and interpreters. When granting such contribution, the Panel shall take into account the outcome of the proceedings, as well as the conduct and the financial resources of the parties.”

Morgan Hunter May 14, 2008 at 1:30 am

It is getting beyond absurd.

WADA wants the loser to pay – as long as its the athlete and not them.

They want strict liability – but not for them.

I’m wondering how long it will take and how many travesties of WADA “justice and fair play” to finally make the cyclist of the world say: “That’s it! – This may be your ball – but I’m going out and getting my own!” Screw you.

Mr Finance Minister is adding to the WADA Package from his point it would seem.

Wonder what would happen if one day in the new year – nobody submitted for a UCI licenses? Wouldn’t that be a pretty picture?

Finally seeing the bastards holding on to their ball – but nobody comes out to play?

The alphabet soup – needs to find out that bullying is a two edged sword, that just because you got away with it for a long time – people do get awfully fed up and will stop wanting to play.

Rant May 14, 2008 at 6:03 am

Bill,
Thanks for pointing that out. I’ve added an update to the post and a link to your comment. Most appreciated.
Ken,
Sorry your comment got stuck in limbo. It’s certainly not a good time in athletic history to be a talented athlete.
Morgan,
It is getting beyond the absurd. Someday the masses may pick up their marbles and go play somewhere else. If/when that happens, the powers that be maybe ought to look at their own contributions to how things got to that point. But I doubt that would ever happen.

William Schart May 14, 2008 at 6:35 am

One aspect of this is it seems that WADA has been in contact with CAS during the time the panel is deliberating. This seems to me to at least present an appearance of impropriety, if not an actual case of an improper attempt to influence the deliberations. Now, I am now current with the procedures of CAS, but should not such a request have come when the hearing itself took place? At that time, WADA know that UCI and USADA were not going to contribute. It would have been easy to state your case, and say “Oh, by the way, if we win we would like Landis to pay us our costs.” However, since the CAS rules, as referenced by Judge Hue above, allow for the loser to make a “contribution” to the prevailing party, why did WADA need to contact CAS at all. Have other athletes who appealed to CAS been required to pay, and has WADA or UCI or whoever been required to pay, for example, Landaluze?

I wonder if perhaps WADA might have also made some comments or requests about the case itself they are not telling us about.

bill hue May 14, 2008 at 9:55 am

I posted this a TBV and am adding a copy here for anyone interested:

Here is a link you can cut and paste to a case or click on, where a CAS arbitrator went through CAS Rule 64.5 and awarded an athlete prevailing in a CAS Appeal $9500 in attorney fees from the Guam Olympic Committee.

This opinion is an outstanding example of the method a judicial officer utilizes in analyzing a rule and researching/citing precident to apply a specific fact set to the rule and make a reasoned conclusion concerning application of “law” to “fact” in a way any reader can understand.

It is quite elegant, in my opinion.

http://www.guamsportsweb.com/uploads/CAS_Weare%20Award%20on%20Costs.pdf

Here is CAS R59 as it relates to awards not being subject to further appeal absent domicile in Switzerland, the methodology of “announcing” and “publishing” the award and an articulated 4 month limitation from the date of Appeal filing for the Panel to render its award. Landis filed his appeal on or about November 21, 2007.

“R59 Award

The award shall be rendered by a majority decision, or in the absence of a majority, by the President alone. It shall be written, dated and signed. The award shall state brief reasons. The signature of the President shall suffice.

Before the award is signed, it shall be transmitted to the CAS Secretary General who may make rectifications of pure form and may also draw the attention of the Panel to fundamental issues of principle.

The Panel may decide to communicate the operative part of the award to the parties, prior to the reasons. The award shall be enforceable from such written communication.

The award, notified by the CAS Court Office, shall be final and binding upon the parties. It may not be challenged by way of an action for setting aside to the extent that the parties have no domicile, habitual residence, or business establishment in Switzerland and that they have expressly excluded all setting aside proceedings in the arbitration agreement or in an agreement entered into subsequently, in particular at the outset of the arbitration.

The operative part of the award shall be communicated to the parties within four months after the filing of the statement of appeal. Such time limit may be extended by the President of the Appeals Arbitration Division upon a reasoned request from the President of the Panel.

The award, a summary and/or a press release setting forth the results of the proceedings shall be made public by the CAS, unless both parties agree that they should remain confidential.”

Thomas A. Fine May 14, 2008 at 10:26 am

I’m suspicious of the timing (what else is new?).

I wonder if the powers that be have some sense of a win or a loss at this point. It seems pretty likely that they’ve been well-briefed on how the hearing played out by the prosecutors. What would they do if they suspected they won? What would they do if they suspected they lost? These are the sort of games that can drive one nuts, and tend to be futile. Nevertheless, I enjoy playing.

If they think they lost, they’d either want to forget about it (probably foolhardy, since Floyd’s victory would be big news even at this late date), or start throwing stuff out there that would preemptively cloud the issue. This announcement could fit that bill perfectly – they’re going to make the O.J. argument: money buys Floyd his freedom, and gosh poor WADA can’t be expected to deal with a “dream team” defense.

Then again, if they think they won, they might start to get greedy and scare other “guilty” riders from this expensive proposition. After all, WADA is all about scare tactics.

In other words, as always, interpretation could go either way. It could certainly be viewed as useful regardless of outcome, which means that it’s just a good tactic (WADA has been pretty good tactically so far), but with this comes the assumption that they have no idea what the outcome is. This might be true even if they have been briefed on the hearing — it could just be too close to call.

Of course, the lack of leaks in the appeals process is nothing short of miraculous. It seems pretty likely to me that both parties signed an agreement to remain silent. It could be as simple as “I won’t talk if you don’t talk”, but I suspect they might have something in place with real teeth – for instance, if anyone leaks, they forfeit their case.

Of course, if THAT were the case, that could lead to a tactical leak designed to circumvent a final ruling. Let’s wait and see.

(See how much fun these guessing games are?)

tom

Jellotrip May 14, 2008 at 3:22 pm

Here is another award that went in favour of a coach recovering their costs….not that I did any research on the matter or anything…..

http://www.39essex.co.uk/documents/Marinov_v_Asada_Costs.pdf

ASADA had to pay 70 percent of his costs which amounted to:

$35 000 for the initial arbitration costs
$23 900 for the appeal costs

AND

$23 655 for the arbitration costs in the initial hearing
$7 150 for the arbitration costs in the appeal

He was also reimbursed $8 000 from the CAS

It doesn’t mention whether ASADA paid 70% or all of the costs of the arbitration……but a bell ringing of just under $90k is not insignificant.

-Jello

Rant May 15, 2008 at 7:02 am

Jello,
That was very interesting reading. It would certainly be interesting to see if Marinov ever got reimbursed by ASADA. Having to cough up $90K, even though it’s not a huge amount, certainly would make the agency wince.

Jean C May 15, 2008 at 2:02 pm

Some very good stuff about what was using Chambers to dope by Conte:
http://news.bbc.co.uk/sport2/hi/olympics/athletics/7403158.stm

Your performance enhancing drug program included the following seven prohibited substances: THG, testosterone/epitestosterone cream, EPO (Procrit), HGH (Serostim), insulin (Humalog), modafinil (Provigil) and liothryonine, which is a synthetic form of the T3 thyroid hormone (Cytomel)…..

Testosterone/epitestosterone cream was also primarily used during the off season. It was rubbed into the skin on the front of the forearm two days per week, typically Tuesdays and Thursdays. The dosage was ½ gram which contained 50mg of testosterone and 2.5mg of epitestosterone (20 to 1 ratio). The purpose was to offset the suppression of endogenous testosterone caused by the use of the THG and to accelerate recovery.

Rant May 15, 2008 at 8:00 pm

Jean,
Good information, indeed. Thanks for the link. The video on the page is interesting, too.

WADAwatch May 16, 2008 at 4:41 am

If WADA prefers to ‘chase costs’ (and Rant: you should consider adding WADA CODE 20.7 “Roles and Responsibilities of WADA” to your analysis: it was not accorded the right to spend Australian contributions (or any other Signatory’s contributions (failure to pay those deprives Sigs’ of certain rights.. so…?)) on USA disciplinary action-appeals!!!) rather than implement reforms that are now way overdue, we have to step up the heat on the new Fahey-driven WADA.

Why was not WADA ‘a party’ to the Appeal?

Why did it choose to ‘hide’ behind its open-wallet? In doing so, it did not use its many and various rights to appeal, found in Art. 13.

My belief, is that they knew, as I’d written, that failure to properly draft a CODE that balanced Lab Responsibilities to Athlete Responsibilities (ie.: Strict liability for both parties: a lab screws up: case closed, lab sanctioned, done deal), leaves their ‘appeal’ rights fragilised.

What future discriminations will WADA justify in pursuit of the ‘perhaps’ (as TbV wrote: Olympic sponsorship?) subterranean motivations that drive WADA linearly off the cliff? Because throwing millions against Landis, without the right for Landis to ask all the questions I wrote about in the Amicus Brief, won’t result in an updated QUIGLEY rule.

sheesh: sorry for the triple-parenthetical… 🙂

ZENmud aka WADAwatch

Rant May 16, 2008 at 10:05 am

ZENmud/WW,

Here’s a question for you (or anyone else who cares to take a stab at it): Assuming that WADA was not a participant in the Appeal, but merely an organization that donated money to USADA and/or whoever else was a participant in the appeal, on what grounds could WADA seek reimbursement as a result of a win on the ADA side, should the appeal turn out that way.

If they participated in the appeal, I can see grounds for seeking compensation. But if they’re merely a financial supporter, I don’t see how they could argue for that. And further, whoever the beneficiary of WADA’s largesse happens to be couldn’t seek reimbursement for that money spent, either. Why? Because the money spent didn’t come from their own pockets. Had there been no case, they would not have received the donation, so whatever expenses the donation covered basically are non-existent to that entity’s bottom line. It’s a wash.

So, legal eagles, tell me: Am I wrong? If WADA wasn’t sitting at the table participating in the hearings in March, it seems to me that they’re just whistling Dixie when it comes to the issue of how much they’ve chipped in to prosecute Floyd Landis.

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