WADA Load Of Nonsense

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.