Friday, May 04, 2007

FFF on proposed removal of the gag rule.

Michael Henson sent the following FFF position paper on the WADA proposal to lift the gag rule.

On WADA’s Proposed Revision to WADA Code 14.2
“Public Disclosure”

Proposed Amendment to Article 14, Section 2 of the World Anti-Doping (WADA) Code:

“No Anti-Doping Organization or WADA accredited laboratory, or official of either, shall publicly comment on the specific facts of a pending case (as opposed to general description of process and science) except in response to public comments attributed to the Athlete, other Person or their representatives.” [WADA Code, 2007 Code Amendments, v. 1.0]


Public debate and open dialogue is critical to the success of systemic anti-doping reform, but it should not come at the cost of further athlete disenfranchisement. If an Anti-Doping Organization (ADO) is to be allowed to comment on a pending case, then the current system needs to be overhauled in order to guarantee that the rights of the athlete are preserved and that such comments are not based on the punitive model that currently guides anti-doping regulatory measures.


The Floyd Fairness Fund (FFF) has engaged in a public campaign that is founded on the democratic ideal that open dialogue will lead to system-wide reform and that such reform will result in a more successful anti-doping system as a whole. Any proposed revisions to the WADA Code (the Code) should follow those same principles.

The Danger of Unchecked Pre-Trial Publicity – Examples From The Landis Case:

There was no discretion exercised by the relevant International Sports Federations and WADA early in Floyd Landis’ case. Landis was tried in the court of public opinion through their unsubstantiated leaks and media interviews. He was learning the facts in real time last July and August – usually from press reports that announced test results such as the counter analysis of his Stage 17 “B” sample – and he did not have the information with which he could counter these charges until August 31, 2006. The confluence of circumstances around the leaking of critical information regarding his case before there was a complete test forced Landis to defend himself publicly and set the tone for the debate that has followed.

On July 26, 2006 the president of the international governing body of cycling (UCI – Union Cycliste International), Pat McQuaid, announced that there was an “adverse analytical finding” (AAF) in one of the athletes’ “A” samples taken during routine doping controls after Stage 17. As Mr. McQuaid explained to the press, the rider to whom the AAF belonged was the “worst case scenario.” He then justified the UCI’s premature release of this information by stating “We know that the French laboratory has a close connection with L'Equipe" - France's leading sports newspaper - "and we did not want this news to come through the press, because we are sure they would have leaked it." The acknowledgment of a known leak at a WADA accredited lab is particularly disconcerting coming from the head of an international governing body of sport. Labs are not supposed to be able to identify samples, nor should they leak information to news sources. Athlete confidentiality and proper results management are fundamental principles of ethical scientific testing. (A few days later, on July 31, an unnamed source within the UCI leaked results of Landis’ Carbon Isotope Ratio analysis on his “A” sample to the New York Times).

From the context of his statements, it was apparent that Mr. McQuaid was referring to Landis. With the media speculation that followed, Landis and representatives from Phonak were left with no choice but to confirm that the AAF was endemic to Landis’ urine sample taken after his victory on Stage 17. Landis was subsequently forced to defend himself in public with extremely limited information as to the details of the AAF.

The announcement immediately put Landis’ career and livelihood at stake. In the wake of premature announcements regarding a scientifically unsubstantiated positive test, Landis and his family have had to cope with the glare of negative publicity, a potentially tarnished reputation and a roller coaster of emotions.

In the months that followed, WADA chairman Dick Pound continued to violate WADA Code rules prohibiting public comment on pending cases by making defamatory and false comments in The Ottawa Citizen, The New York Times, Wired, and most recently Bicycling. It is strikingly odd that Dick Pound – someone who shows a willful disregard for the truth and the integrity of due process through his continued willingness to breach the sanctity of athlete confidentiality – would take the moral high ground on this issue, particularly given that Pound has been impugned by the IOC* and the WADA executive committee** for making comments that were injurious to an athlete’s reputation.

If the Pound model is the one on which WADA is going to base the proposed Code revision, then it is flawed at its inception.

Lifting the “Gag Rule” and the Potential Impact on Athletes’ Rights:

Given the severe limitations on athletes’ rights within the existing adjudicative process, Landis has had to take recourse to the limited avenues that are available to him – or any athlete – to advocate for his rights and exhibit the proof of his innocence. By design, the ADOs have every juridical advantage available to them, whereas public discourse is one of the few arenas where an athlete can have his case heard without institutional bias. Considering that he has nothing to hide and invites an open and transparent approach the details of his case – a position that seeks to hold everyone involved to a higher level of accountability – Landis has been able to shine a bright light on an otherwise secretive and under-scrutinized bureaucracy. While it is clear that the revisions to the WADA code have been under consideration since last fall, we cannot help but to hold the opinion that the revision to 14.2 is in part a response to the public disclosures of the Landis Wiki Defense. Through the Wiki, Landis and the FFF has taken a WADA/USADA system that propagates the myth of its own infallibility and has exposed critical fissures in science, ethics and law.

If fundamental systemic changes are made to protect athletes’ rights, then amendments to the Code that introduce open discourse would be a welcome change to a hypocritical system constructed around a double standard. However, allowing the ADOs to comment on ongoing cases with the express stated intent of further limiting athletes rights, which is how we interpret Mr. Pound’s comment that “if something is completely nonsense where someone is challenging evidence by saying there is no reliable test for X and there is, then it would be nice to be able to say the test is reliable,” would set bad precedent for future cases and is something that we would oppose in principle and in actuality. Over the course of the last nine months, we’ve done our best to use fact-based arguments to show that the science is not bulletproof and that WADA/USADA saying that it is doesn’t make it so. Lifting the “gag” order so as to allow for unchecked public comment by anti-doping officials will further minimize the already anemic notion that an athlete is entitled equal protection under the law.

Mr. Pound’s comments also demonstrate a reflexive action on the part of the ADOs to defend the integrity of the scientific and legal processes without any willingness to review potential missteps or inadequacies that, if addressed and corrected, would do a great service to the ADOs and athletes alike by fixing insufficiencies that affect the integrity of the entire process. The Landis defense team currently awaits the results of what we hope to be a full and transparent audit of the Laboratoire National de Dépistage du Dopage (LNDD), a lab that routinely leaks scientifically dubious information to media outlets. If there is clear evidence of the LNDD, or of any WADA laboratory acting in violation of International Laboratory Standards, then that lab should be disciplined and suspended until it can prove to an independent accrediting body that it is capable of practicing science to the highest possible quality standard. WADA/USADA insisting on the reliability of a lab’s testing procedures in the face of mounting evidence that demonstrates a basic misunderstanding of scientific method is a dangerous and damaging course to take.

Give their track record of taking an unreflective and non-critical disposition vis à vis their own procedures, there is no logical reason to assume that comments made by the ADOs prosecuting athlete doping cases will also be factual and truthful.

In the parallel instance of a civil or criminal court case, institutional controls such as inspectors general, court sanctions and executive branch review provide critical checks and balances on comments by the prosecution. In the case of an anti-doping proceeding, no such controls exist to protect the accused from misleading or untrue statements.

If Code revision is going to allow the prosecuting and judging body to make comments in regard to any given case, then there needs to be a formal system of checks and balances put in places so that public comments can be monitored and appropriate disciplinary measures taken if official comment is proven to be false. The ADOs need to be held to the same high ethical standard to which they claim to hold athletes. Anything less stands in stark contrast to the WADA/USADA mission statements that seek to ensure fairness in sport.

The Civil Alternative – Open and Equal Dialogue

Rather than continue the adversarial relationship between athlete and ADO, WADA should consider inviting public debate about their procedures and processes in general so that cases do not become a one-sided polemic. Many of the process issues that the FFF has raised in its public campaign would be better discussed outside of the specifics of an individual case. Both WADA and USADA are resistant to do so. Their stubborn temperament in this regard is one of the many reasons why we have made these issues public now, with Landis’ case as the vehicle for doing so. If WADA were to open the Star Chamber and allow for a vigorous and open discussion about how to improve the fight against doping in a way that gives all interested parties full and equal representation, then we would welcome such reform. Insofar as they are proposing to amend a rule so that they can resist outside scrutiny and further the anti-athlete invective, then the WADA system will continue to ensconce itself in failure and sport as a whole will suffer.

* On February 2, The IOC endorsed an ethics commission's finding in relation to the case of Lance Armstrong’s that Pound's public remarks "could have been regarded as likely to impugn the probity" of Armstrong and noted that the remarks ran contrary to the Olympic charter's goal of "a spirit of friendship, solidarity, and fair play" within the movement. The ethics commission had recommended on Feb. 2 that the IOC executive board "remind [Pound] of the obligation to exercise greater prudence … when making public pronouncements that may affect the reputation of others."

** Scott Burns, Deputy Director for State and Local Affairs at ONDCP and the US representative to the WADA executive committee Burns openly criticized Pound's penchant for disregarding due process by making pre-trial public statements presuming guilt, calling such statements "the antithesis of what was done at WADA ... to speak out or speculate precipitously, especially in public." [WADA Executive Committee Meeting Minutes, September, 2005]

End of FFF release


swimyouidiot said...

Excellent statement!

I have been highly critical of Michael Henson (and the overly aggressive PR strategy) in the past, but this is very good. Clear, substantive, and strong at points (especially wrt to Pound, who is a legitimate target).

I wonder if some of the TBV and DPF feedback from the supporting side has had a little impact?

I honestly doubt whether this will get as much media attention as their other statements, but maybe that is natural because of the more mundane and procedural topic.


Anonymous said...

Right on Mr. Henson. This sums up the ignorance of WADA. WADA should fire Pound while it has any tiny bit of legitimacy left.


randy said...

When WADA meets in November to revise their policies/procedures I'm afraid they will take up the public hearing subject. It may be only USADA that has this provision which the Landis team is taking advantage of (brilliantly I might add). But this public hearing may well be the first and only public hearing. USADA isn't liking it and will try somehow through whatever avenues are available to disallow these in the future-back to zero transparency!

And don't forget that Mr. Pound also proposed that they should only need to analyze an A sample-get rid of those pesky B samples, unnecessary! Hopefully some sane scientist will block this idea. Lame.

Carlton Reid said...

It's a bit long. Not many journalists will get past the first paragraph.

It's good to have the ironic bits about Dick Pound - Mr Blabbermouth - but maybe the release should have majored on that angle, with all the other stuff cut down and placed underneath. said...

Hey, Carlton, it's not a press release, it's a white paper. They run much longer.

White Paper n. A hit piece report on a major issue, often presented as objective even when significantly biased. Perhaps the most famous examples are the British Defence White Papers of 1957 and 1966, which radically shrunk the UK military, and devastated the aerospace industry. Now often used in the information technology industry to slag competitors technology. A white paper is long enough to appear authoritative, but short enough one can pretend to have read it.

- TBV's dictionary of hidden meanings.

Anonymous said...

If a lab appears to leak an athlete’s test results, I think they should suspended until a hearing clears them. If a hearing finds that they must have been party to such a thing, they should be fined and suspended for a year or some period of time like that. It would send home the message to employees of the lab that if they violate an athletes right to confidentiality by leaking testing info to French newspapers, they’re going to be looking for a job.

It’s fine and dandy to have an effort to address and reduce cheating with the use of performance enhancing drugs in sports. But I think it’s a bogus kangaroo court operation when there’s one set of rules for the athletes that result in severe consequences but another set of rules for those who administer the process with no consequences even when they violate their own rules.

If a WADA employee appears to violate their rules, they also should be suspended until they get a hearing. If that hearing finds that they have violated the WADA rules, then they should be reprimanded with punishment up to getting the boot out of WADA. A panel of athletes should be the ones to make that call. The same applies to any official for a country submitting to WADA. That ought to curtail a bunch of the crap that’s been wrong with this process all along.

Judges in courts administer the rules of law. But they are not above a code of conduct. WADA and all parties affiliated should be no different. WADA seems to consider itself above reproach. Dick Pound can make slanderous claims without fear of any sanction like he did against the NHL and others.

If I handled authorization of monies sent to WADA, I would give them a fairly brief time frame to get the above in place. If they didn’t, that country would withdraw funding and refuse to submit to WADA testing until the process is clean up. If that meant pulling out of events, so be it. This garbage is extending dragging sports through the mud. The process needs to be a nice, clean above board result.

I have no idea if Landis is innocent or guilty. But from following this nonsense for a number of years, I’m absolutely positive the stench of this process is an absolute disgrace. I’d much rather cheating athletes get away with it than continue along the path these pompous WADA idiot-egos are on dragging everyone down.

This process should be focussed on getting to the bottom of the truth. It should be about openness and fairness. It should be about an athlete being innocent until proven beyond reasonable doubt that he’s guilty. Suspected mass murderers and heroin dealers are provided a fairer process in courts than these athletes are by WADA. It’s unbelievable in this day and age.

I could understand that this is a new thing in sports and therefore, extend patience as they get this worked out. But the egos at WADA don’t want to acknowledge anything wrong with their process. I can’t stand by and watch people getting railroaded without getting disturbed. These drug tests are new. They have not been proven to everyone’s satisfaction to be flawless. The sooner all parties sit down and explore with open minds what might be flawed, the sooner the correct testing process gets implemented or improved. But all this posturing and protectionism by WADA as if they’re perfect and everyone else must be wrong is disgusting and getting sport nowhere fast.