Comments on the WADA Code Update

SwimYouIdiot from DPF has sent us some pointers to some of the feedback on the WADA code update. First, various parties talk about Article 7, as of December 2006.

Skip right to page 7 of 15, and look at USOC's feedback that the LDP contents as currently specified are inadequate, and their suggestions for improvement. It's not clear to us that this would clarify requirements about, for sake of argument, computer data files from spectrometers.

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Earlier, we find USOC and USADA saying the same thing about comments by ADAs on cases; they want to shut the officials up, but allow non-involved persons to be able to say something, proposing:

7.6 Public Comment on Pending Proceedings To ensure the integrity, neutrality, and independence of anti-doping enforcement, Signatories and their employees and officials shall refrain from publicly expressing opinions about whether an anti-doping rule violation has occurred while an investigation or adjudication regarding the alleged violation is pending. However, nothing in this Article shall be deemed to: (1) prevent release of any fact or document that the Code expressly allows to be disclosed to the public; (2) prohibit public comments about the persuasiveness of a decision under Article 8 or Article 13; or (3) limit public comment by Signatories (and their employees and officials) that are not involved in the investigation or adjudication and have no right under the Code to challenge the results of the investigation or adjudication.
Further, WADA should investigate measures that would allow enforcement of the new Article 7.6. There should be a mechanism for invoking penalties of sufficient certainty and severity to achieve deterrence

It's hard to argue with penalties for loudmouths, unless you are one of them. Some of the other provisions look like they might be tricky to interpret.

Note, however, that USADA did not bring up the LDP content concern raised by USOC.

Throughout, many agencies want clarification that a T/E > 4:1 should not be declared an AAF without a followup study. There's dispute whether tests in the follow up should be known to the athlete, or completely unannounced. Declaring it not an AAF would have simplified Landis' life, and required the longitudinal, so he'd only be looking at the CIR claim now. This makes sense, since they never offered or did the "thorough endocrinological study" he requested. It's hard to quibble with unannounced tests for anyone who is already in the Out-of-competition pool. While it does seem fair to inform them they are undergoing a follow up study with random tests to be done, not informing them makes them identical to subjects of "targeted" tests, which are allowed.

The bodybuilders are sensitive to an a finding being an AAF or not, because it affects whether the athlete can be present for a B test. If it's not an AAF, then there is no B test, and the argument is the follow up replaces the B. This should be clarified.

Several parties want positive affirmation given to athletes when they are negative on tests, thinking a policy of silence is unfair, and inconsistently used. Sounds good to us.

There is a suggestion for codified use of review boards. That wouldn't seem bad if there were rules on what the boards were supposed to do, and rules for statistical reporting of what they actually did.

Japan wants to know what to do if Police seize a B sample when an A is positive, and won't give it back because of a criminal investigation. There's an interesting scenario there -- Officer Jingo finds out his favorite athlete has a positive A, and seizes the B, precluding ADA prosecution. Then he sits on it and does nothing.



The second document is a collection of UK response to the testing standards, undated to us. The summary in the beginning includes:

The document assumes a presupposed homogeneity for the testing process in all sports which we think does not exist in the real world. For WADA to obtain the agreement of professional sports to the code and standards, it may be more helpful if the document recognizes their issues too.

Some of the standards descriptions are vague and open to interpretation. For example there is no indication of the minimum/maximum standards acceptable for testing facilities and conditions in which tests should be undertaken. There seems an assumption that all testing takes place in perfect facilities at purpose built venues which is completely unrealistic and fails to appreciate fully the breadth of experience in testing programmes.

What mechanism will be in place for the verification of adherence to this standard? The ISDC is audited to ISO 9001:2000. Independence of the DCOs should be a fundamental part of the process, equalling the independence of the laboratories.

Which seem like some reasonable concerns. Skipping...

5.2.4.3.1 Laboratories should report all substance found, including those of a different class.

which would address the "where was the cortisone?" question.

5.2.6.7 The last sentence of second paragraph of this section needs redrafting. It says:
‘The reported estimate could be, for example, a multiple of the threshold value or a confidence interval and associated probability’. Whilst the first of these (multiple of the threshold value) has the correct units of concentration, the second (confidence interval and sociated probability)
appears awkward. Perhaps this means: ‘…. or a simple statement that the concentration exceeds the threshold’, with the criteria for this statement then specified in terms of a confidence interval and an associated probability.

Criteria for quantification should be clarified e.g. how many diagnostic ions should be used 1,2 or 3? This needs to be clear to avoid a case being dismissed on those grounds.

This might begin to address the 0.8 uncertainty problem, but probably not; the ion criteria may be important for Landis.

The last few pages offers these thoughts on mindset and "expert testimony" issues, which we quote at length:

My only real doubts occur where I seem to detect a ‘prosecuting mindset’ and I think editing changes at these points could improve the document.

Prosecuting is only for prosecutors. Of course sports authorities need help in a regulatory process aimed at defeating sophisticated and determined cheats. The WADA-accredited laboratories therefore do need to work with sports authorities to anticipate new approaches to drugs infringements and then to do their best to detect prohibited substances in their day-to-day casework. At the point where disciplinary enquiries are held, however, the laboratories and their staff need be entirely neutral, committed only to helping the tribunal – no matter who calls them to give evidence and whether this is factual evidence or expert opinion evidence.

Against this background, I think there is a problem in the final sentence of section 3.4 of Annex 2 on page 46, which says: ‘The laboratory should not provide expert services in defense (sic) of an athlete in doping control case (sic)’.

Forensic science in criminal cases may be instructive. In the mid 1990s, the United States radically changed the management structure of its FBI laboratories after problems occurred in court. When fears arose that the laboratories had become too prosecution-minded, to the detriment of justice, the FBI abandoned its policy of insisting that only career FBI agents could have significant managerial authority in its forensic laboratories and it made sweeping changes.

Earlier, in the United Kingdom, after Appeal Courts had criticised several forensic scientists for inadequate objectivity, Select Committees of the House of Commons and the House of Lords looked into forensic science, as did a Royal Commission. They all noted a disparity in the expertise available to the prosecution and the defence. Moreover, where career forensic scientists are nearly all employed by the law enforcement authorities, and are not available to the defence, the only recourse for a defence team is to seek help from other sources. These people may have had no training in the role and duty of objectivity expected of expert witnesses. Some of these people then cause problems in court by mistakenly believing their duty is to promote the cause of their client when giving expert opinions.

It is disconcerting, therefore, to read in Appendix 2 a statement that ‘The laboratory should not provide expert services in defense (sic) of an athlete in doping control case (sic)’. It is certainly reasonable for a laboratory not to provide services for both the prosecuting authority and the defending team in the same case, but it is difficult to see why a well-qualified expert from another WADA-accredited laboratory should not help the defence if the necessary funding is available. This surely cannot serve the interests of justice. In practice lawyers are unlikely to seek help from employees of WADA laboratories unless they are seriously concerned about a miscarriage of justice, in which case they need the best professional advice available. If the laboratories themselves were to fear being at loggerheads with one another, it would be time they matured and understood their true role in the administration of justice. There is no suggestion here, of course, that the defence should have access to samples for a separate analysis; just that the defence should have access to WADA-recognised experts for advice and expert testimony.

Similar nuances occur in the term ‘Adverse Analytical Findings’. I would prefer a term such as ‘Adverse Analytical Report’ because a report has only a temporary legal status and it may be challenged. Arguably it does not acquire the status of an ‘adverse finding’ until either the defence or the tribunal accepts it, if necessary after crossexamination. The laboratory’s report will often be prima facie evidence of an offence but its status – acceptable wholly, in part or not at all - is one of the disciplinary hearing’s most important decisions, particularly if strict liability applies. Arguably, use of the term ‘Adverse Analytical Findings’ before a disciplinary hearing tends to ‘jump the gun’.

On a similar theme, section 5.2.4.3 (p14) talks of ‘presumptive positives’. Ordinarily testing laboratories take the view that screening aims to eliminate most of the negative samples and reduce the definitive analytical workload to manageable proportions. Screening tests can tolerate a few false positives but they aim to avoid false negatives. At most, samples failing a screening test can be called ‘suspicious’. Confirmatory analyses, by contrast, provide the definitive information on which a disciplinary hearing may turn. These methods must produce no false positives and although they aim to avoid false negatives they can tolerate a few false negatives if this is a necessary part of avoiding false positives.

A complication has arisen since mass spectrometry methods came into routine use at the screening stage because they provide information with such a high discriminating power that it is almost cavilling not to call the result a ‘presumptive positive’. This is not true of immunoassays, however, and on the whole a choice of language that imbues the analyst with caution is to be preferred.

There is a further, legal point. If, as section 5.2.4.3 says, ‘the objective of the confirmation assay is to accumulate additional information regarding an adverse finding’, there is a presumption that the results from the screening test are already being regarded as evidence in their own right. As such, they ought to be given to the defence. If, on the other hand, the screening test is set up merely to eliminate samples from further testing, and perhaps to give a clue as to what further testing might be appropriate, no evidence emerges from the screening stage. There is a need for caution here because, ultimately, only the disciplinary tribunal can decide what to regard as evidence. However, whilst the screening data should certainly be available for inspection, it would be reasonable not to pass screening results to the sports authority as a matter of standard procedure if, within the laboratory’s quality system, they have no evidential status. This is a point of law, however, and could be checked with lawyers.

To which the FFF might say, "amen," except that no changes in these areas are likely to affect the Landis case, because they aren't the current rule set. It does demonstrate that everyone in the system is not as deaf and blind to fairness and justice as much of the leadership appears to be.