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.

WHITE PAPER:

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]

Introduction:

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.

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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.

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* 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