Monday, January 28, 2008

Larry's Curb Your Anticipation, Introduction

By commenter Larry.

Back to the Preface, up to the Table of Contents; on to the next.

The anti-doping case against Floyd Landis (FL) presents us with an uncertain set of facts, to be judged against a baffling set of rules. Over the course of the past months, the TBV community (both the lawyers and the non-lawyers) have struggled to come to grips with these rules.


In most cases, we’ve come to the anti-doping rules with a specific question: is it OK to identify peaks with pattern matching, or do the rules compel the labs to analyze the full mass spectrum data, or should the lab’s failure to reproduce its original findings during the electronic data file (EDF) reanalysis result in the rejection of these original findings? We approach the rules with one of these questions in mind, and we locate provisions in the rules to address the question. For example, rules governing specificity seem to address the question of the mass spectrum data, and rules governing robustness and uncertainty seem to address the question of differences over time in lab findings.

But ultimately, the rules have defied our efforts to understand them. We’ve struggled to define key terms. While some rules seemed applicable to how a lab is supposed to perform its testing, other rules appeared to address different concerns, such as how a lab is to develop its anti-doping tests, or the criteria for lab accreditation. As a result, many of our basic questions about the anti-doping rules remain unanswered.

As a lawyer participating in the TBV community, I come to these questions with a different perspective. To understand a body of law, it’s essential to engage in the effort we’ve tried to undertake on TBV, that is, to try and understand the individual rules that make up that body of law. But it’s also important to see the body of law as a whole and not just as a sum of parts. It’s important to consider the intent behind the body of law, and how the body of law is structured. And it’s essential to carefully review how the body of law has been interpreted by others in authority.

In other words, before we consider how the individual rules address our individual questions, we should first look at the big picture.

My plan here is to take a big picture approach to understanding the anti-doping rules promulgated by the World Anti-Doping Agency (WADA) and the Union Cycliste Internationale (UCI). These are the rules applicable to the Adverse Analytical Finding (AAF) against FL, but my focus will be on understanding these rules, and not on trying to figure out how to apply the rules to the FL case. If you’ve come here looking for an argument that FL was wrongly convicted, or that FL was properly convicted, you’ve come to the wrong place. I will have occasion here to refer to the FL case, and to consider aspects of the FL arbitration decision, but I will do so as part of an effort to better understand the applicable anti-doping rules, and not to argue one side of the case or the other.

My goal is to lay out the rules in a broad and comprehensive way. My goal is to establish a framework that we can use to address some of the legal questions that have come up, and will continue to come up, when we try to make sense of the anti-doping rules

But in this article, I won’t look at all of the anti-doping rules. For example, I won’t consider the rules governing the arbitration of anti-doping cases, such as the restrictions on discovery and the selection of arbitrators. I won’t consider jurisdictional questions, such as the role of the Court of Arbitration for Sport (CAS), or how FL’s doping case managed to be addressed by anti-doping authorities (ADAs) in two different countries.

Instead, I plan to address the following questions:

  • How do the WADA anti-doping rules come to be the set of rules binding on anti-doping cases brought against international cyclists like FL?

  • What general principles can we learn by examining the decisions in other anti-doping cases?

  • What is the general structure of the anti-doping rules of the UCI and WADA?

Once we’ve covered these questions, we’ll shift focus to the WADA rules governing lab testing. This will require us to take a careful look at ISO 17025 and at the International Standard for laboratories (ISL) promulgated by WADA.

Whenever possible, I will provide internet citations to support my conclusions. I am a lawyer, but I’m not an expert in sports law, so you should feel free to question my conclusions. This article may be revised or supplemented as the TBV community moves forward in its understanding of this difficult and complicated area.

Back to the Preface, on to Part 1...