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At Long Last, Is There No Sense Of Decency?

By Staff

Date: 4/30/2007

At Long Last, Is There No Sense Of Decency?

At Long Last, Is There No Sense Of Decency?
A responsible critic embracing a noble goal, but rejecting current methods failing to achieve it; should propose some alternatives. This is An Editorial on the current anti-doping system.

Bill Hue

"In the early 1950s in the US, there was what was called McCarthyism and the only reason it succeeded was that there was no resistance to it. When they tried the same thing in the 1960s it instantly collapsed because people simply laughed at it so they couldn't do it. Even a dictatorship can't do everything it wants. It's got to have some degree of popular support."
Noam Chomsky

While I do not usually agree with Mr. Chomsky, his point is well made, here. Harvard Law School Dean Erwin Griswold noted that McCarthyism owed much of its success to the fact that government, through Senator McCarthy, was able to be "judge, jury, prosecutor, castigator, and press agent, all in one."

Similarly, the U.S. Anti-Doping Agency (USADA), with its 12 million dollar per year budget, two thirds funded by The United States government and thus, our tax dollars, owes much of its 165-0 successful prosecution rate to the fact that it, in conjunction with its world partner, the World Anti-Doping Agency (WADA), has devised a “disciplinary system” that as a practical matter has no checks and balances, is closed and gives the anti-doping agencies license to be judge, jury, prosecutor, castigator, and press agent, all in one.

Yesterday’s government’s hunt for “communists” used the same methods that today’s government supported agency uses in its hunt for “dopers” in sport. It should then come as no surprise that the same problems exist. While the removal of communist spies from government and removing dopers from sport are both arguably noble goals, without popular support in the method used to achieve those goals, the efforts will eventually fail. Just as the methods utilized though initially successful came to be ultimately rejected in the past, the very same methods ought to become similarly rejected and thus doomed to failure today. Without public support, those efforts will fail.

Critics should propose some alternatives to systems they criticize. It is important to rid sport of dopers, both to guarantee the integrity of sport and to preserve the health of its participants.

Although in its Infancy,
The World Anti-Doping Disciplinary System is Not Fair and Should be Rejected
Since its creation, in 1999, the anti-doping disciplinary system has been evolving. Yet, it is not too early to conclude that the system as it currently exists is not getting better in its adolescence. It is in fact, getting worse.

A Closed System
The system is closed in the sense the WADA Rules prevent any employee of any WADA accredited laboratory from testing or testifying in any matter calling into question the scientific validity of work preformed in the anti-doping program.

While science is its most vigorous when transparent, WADA has managed to eliminate any critical oversight of its scientific processes through its secretive rules. WADA is the sole arbiter of the tests it employs and there is no oversight by the scientific community or the public. The system certainly has a vested interest in the “success” of its anti-doping scientific processes. The laboratories are not objective. They are pivotal parts of the prosecutorial process.

Until cyclist Floyd Landis took the unique step (as afforded to him by the Supplemental Rules applicable to his hearing process in North America) to demand that the disciplinary process against him be held “in public”, the adjudication process has also been closed since its inception. In fact, there is no similar provision to “open” the hearing to the public in any other region’s anti-doping arbitration process. The closed adjudicative process ostensibly exists to preserve the athlete’s medical privacy.

While Landis has been successful in bringing aspects of that process heretofore unknown to the public to the public eye, Landis and his effort to defend himself have also been roundly criticized by WADA’S Chairman Richard Pound, UCI President Pat McQuaid, USADA’s general counsel Travis Tygart and outside counsel Matthew S. Barnett (how many lawyers do US citizens need to pay for to “convict” alleged doping athletes... as many as it takes, apparently). They appear to have been the chief castigators and press agents for the anti-doping cause from the initiation of the case, ignoring the system’s nod to preservation of the athlete’s medical privacy.

Until Landis formulated his aggressive defense scheme, those were typically and primarily the only voices heard from in North American Cases. While Tyler Hamilton attempted to combat those voices publicly, he was by and large and especially in comparison to Landis, unsuccessful.

Once the arbitration panel assigned to the Landis case got a handle on it and thus got a handle on Landis, a “gag” order as to evidence was achieved, bringing any “new” aspect of the case (such as the result of the additional “B” samples being tested at LNDD) back into darkness until the hearing.

The interesting thing about the “gag” order is that it borrows from a North American civil and criminal judicial concept designed to avoid influencing jurors by “trying” one’s case in public, something not at all applicable to the arbitrators themselves, who are not likely to be influenced by anything Floyd Landis, Travis Tygart or supporters or critics of either side say or reveal in public. Rather, the “gag” order simply appears to reject Landis’ broad concept of “openness” in the process.

Checks and Balances
The disciplinary system utilizes a private arbitration company under rules created by WADA and a nomination process favoring the anti-doping agencies qualifies the arbiters. The system lacks checks and balances. We don’t need a civics lesson to know that there are legislative (they make the laws), executive (they enforce the laws) and judicial (they adjudicate the laws) branches of government in North American democracies.

In Anti-Doping Agencies, the agency makes the anti-doping code, prosecutes the anti-doping code and restricts the arbitration panel through the anti-doping code to abide by its overriding goal, to rid sport of “dopers”. As a result, the prosecutors are able to achieve “convictions” because of a convoluted “burden turn” system, utilizing to any reasonable degree any method (such as in the Landis case, one month before hearing, testing additional “B” samples, the twins of previously tested “A” samples found to be negative, to support or replace “defective or challenged” “B” samples that were supposed to “confirm” their twin, non-negative “A” sample) necessary to prosecute an alleged “doper”.

Success or Injustice?
Moreover, when the results of the system’s “successes” become public, if they do, the stories told are horrific. WADA’s “Strict Liability” policy, particularly, is severely unfair.

For example, A 17-year-old Italian swimmer treated her foot infection with an over the counter cream her mother bought her and failed a urine test for steroids. The Panel acknowledged that the steroid in the cream did not enhance or favor her performance. She was banned from competition for a year because no penalty in the WADA Code addressed that kind of violation. She was treated the same as if she intentionally took a steroid to enhance performance.

Similarly, a British skier failed a urine test because the Vick’s inhaler he used for chronic nasal congestion had a different compound in the US than Vick’s inhalers purchased in Britain. The US inhaler contained a banned substance, although its formulation lacked an actual stimulant. The athlete forfeited his Olympic bronze medal. He, too, was treated the same as an athlete intentionally cheating and obtaining an actual advantage in competition.

An athlete was banned from competition for being late for an out of competition urine test, due to unforeseen heavy traffic. No penalty existed in the code to address an appropriate penalty for that violation. The athlete was punished the same as would an athlete intentionally missing the test would have been. Other similar anecdotal cases abound. Such cases indicate that the system is too often arbitrary and draconian. Those adjectives are the antithesis of dignity and fairness in a judicial process.

The system is not fair.
    • The science it employs is not transparent or accountable.
    • Its science is not objective and is, in fact, part of the prosecution process.
    • While the adjudicative process acknowledges the athlete’s privacy, its leaders engage in public relations acts   contrary to an athlete’s privacy.
    • The system lacks checks and balances.
    • Its results are often draconian and arbitrary, anecdotally.
    • Anti-doping agencies act as judge, jury, prosecutor, castigator and press agent, all in one.

This kind of system has correctly been rejected by the public in the past and should not derive support from the public today.

The System Can be Fixed
While the system as currently enforced is not fair, there are steps that can be taken that will go a long way toward making the system fair to the athletes while continuing to vigorously pursuing elimination of illegal doping in sport. Implementation of the following procedures and protocols would do much to level the playing field and provide a fair and balanced enforcement system.

Enforce the Existing Rules
First; enforce the rules that already exist prohibiting comment on the guilt or innocence of an athlete until such time as the matter concludes. Enforce the rules that already exist prohibiting violation of the medical privacy of an athlete. No comments should be permitted by anyone associated with an anti-doping agency or its partners about “worse case scenarios” or other hints designed to identity athletes.

Any such comment should be censured or punished even if made by leaders of the anti-doping agencies or their partners. If a WADA lab leaks such information and the anti-doping agency or one of its partners want to beat the Lab to the leaks, discipline the leaking lab and its media accomplices. Restrict media violators from access to events, interviews and other niceties frequently conferred on media representatives if they supersede basic human rights rules. Shut down the lab or find the person there providing the leaks. Punish them for violating the rules that already exist and enforce those rules instead of ignoring them. Encourage a new culture of respect and dignity, whether an athlete is guilty or not.

Transparency of the Scientific Process
Second, open up the scientific process. Utilize outside laboratories to develop and also evaluate anti-doping tests. Subject WADA accredited labs to vigorous scientific evaluation from outside entities, particularly in North America, where taxpayers support the system and the laboratories with their tax dollars. Opening up WADA coffers to others will encourage ingenuity and incentive for “outside scientists” to help the ADA's keep up with doping athletes, who always seem to be ahead of the curve and who make it profitable for “outside” scientists to help them cheat.

Turn this around and make it as profitable for “outside” scientists to join the battle against doping as it is for them to develop ways to cheat the tests. Permit WADA accredited laboratory employees to testify as to the truth, whatever the truth may be and for whoever is seeking that truth. In conjunction with true transparency and accountability, provide the athlete with all test results. Finally, test non-negative “A” sample twin “B” samples or other samples allowed at another WADA accredited laboratory.

Future Testing
Third, because WADA may be behind in recognizing methods of cheating, make the athlete’s aware that their urine/blood samples, once submitted, shall be subject to further testing for cheating methods such as EPO injection, for which no tests were available at the time of submission for some reasonable period of time. This probably would require “A”, “B”, “C” and “D” sample parceling. If an athlete doesn’t have enough urine, take urine and blood or hold the athlete until enough of a biological sample is obtained.

Arbitration Rules
Fourth, release arbitration panels from any Supplemental Rules or Code requirements that either needlessly flip burdens or authorize the Panels to engage in prosecutorial procedures that do whatever is possible to convict an athlete. Change any such rule to permit the Panel to utilize whatever procedures are necessary to be fair.

Strict Liability Policy
Fifth, examine and change the draconian results of the “Strict Liability” policy. Adopt rules permitting the arbiter’s to assess the violating act against a broad enough array of penalties so that justice may occur.

Professional Riders Union
Sixth, particularly as applicable to professional cycling, the athletes should form a strong union to protect their interests individually and collectively so that the power of the anti-doping agencies can have some sort of a check and balance. (Editors note: The UCI currently considers itself the Riders Union and each contract contains a clause that any professional rider active in forming a union can have his license revoked. This is a conflict of interest and illustrates the further need for appropriate checks and balances. The licensing entity must not be permitted to prohibit independent representation counter balancing its power.)

Union and Change of the Doping Culture
Seventh, also as particularly applicable to professional cycling, one of the stated goals of the union should be to condemn cheating in all forms and doping in particular. Change the culture of cheating through leadership and peer pressure. Destroy the Omerta.

Team Anti-Doping Initiatives
Eighth, also particularly applicable to professional cycling, the teams and management must become more involved in the anti-doping process and also held accountable for doping by members of their team. Part of the budget committed by each team should be a minimum sum for increased independent security and a T-Mobile/Slipstream type medical program to establish medical baselines.

This must include increased additional testing for all athletes as analyzed by independent laboratories paid by the teams but selected and accredited by WADA, outside of and independent of mandatory WADA medical controls.

Teams and management should be subject to monetary fines for violations of the team’s obligations and also violations by individual athletes. Other methods might also be employed to enforce the anti-doping rules. One such consequence for violation might require a team to compete with one or two less team members in a race/competition or a series of races/competitions. Deduction of UCI team competition points should also be a consequence.

Conclusion
The current anti-doping system isn’t working. In professional cycling, sponsors have left the sport in disgust or disgrace. Fans of cycling have become cynical or disinterested. The cyclists themselves are divided and seem disillusioned. The Omerta still rules. The clean cyclists lose to cheaters and winners are rewarded with higher pay. The media sensationalizes cycling’s problems to sell papers or product, secure in the knowledge that even if its treatment of the sport destroys it, there is always a new day and new way to sell a story tomorrow.

Those who love cycling should no longer support a system that not only has miserably failed to remedy the problem of doping in sport, but has also caused the additional problems highlighted herein.

If you love the sport of cycling, as we do you want to help fix and preserve it.

If you have a passion for the sport and sports at all, you want clean sport with a transparent, fair and effective system of discipline; that is supported by all involved. This is why we published this editorial and others. We appreciate your questions or comments.

"Bill Hue is an avid cyclist and cycling fan in his spare time. He is Wisconsin State Circuit Court (Trial) Judge (Branch 2, Jefferson County), professionally. The views expressed are strictly his own."

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