Wednesday, July 02, 2008

Marc: Might have guessed from the AFLD decision

Our Correspondent Marc sent the following via email

Insofar as any of us thought there was a chance of a reversal, we were deluding ourselves. It was only in reading today the specific terms in which the issue was framed that I realized how completely the deck was stacked against FL.

Back in January we saw the exact terms used in the AFLD appeal decision, a decision, as I noted at the time, that had been written even before the testimony had been heard.

You will have already noted that the experts had finished their reports even before FL's case was heard by the arbitration panel--therefore presumably before they'd have heard what problems had specifically been identified in LNDD's lab work/practices. But even without knowing what FL was going to complain about, they knew everything was hunky dory.

As stated first by one of the experts (apparently without waiting to hear FL's evidence):

"The analytic methods are reliable" and . . . it "is possible, with virtually no risk, to consider that the conclusions drawn by LNDD cannot be disputed"

and then, in the AFLD's conclusion:

"Considering that it follows that the aforesaid expert conclusions that the analyses performed by LNDD . . . were performed while respecting the rules imposed by WADA; . . . in fact, that this laboratory . . . has been accredited for many years by the highest sporting authorities . . .; and that, [for] these reasons, [FL’s] argument, aiming at disputing the quality of work performed by LNDD must be rejected."

Today we can read:

"1. The LNDD is a WADA-accredited laboratory which benefits from the presumption that it conducted sample analysis in accordance with international laboratory standards.

"2. The athlete has not rebutted this presumption by showing that a departure from the International Standard occurred."

The very fact that LNDD was the AFLD's official lab made it bullet-proof. There was no realistic way, we can now see, to get past that.

I'd love to believe that--despite the outcome of this case--the serious scientific discussion that has been conducted on TbV really shook the anti-doping bureaucrats, and is forcing them to reconstruct their protocols and policies. But I don't believe so.


Thomas A. Fine said...

I think it's now obvious to everyone who's looked at this decision that they set the bar incredibly (impossibly?) high for Floyd to win.

Their decsion makes it clear that only clear ISL violations would do, AND only if those ISL violations were shown to DEFINITELY (not just possibly) be the cause of the positive. And if it's not specified in the ISL, then anything goes.

The only real question left at this point is, how does t his decision compare to other CAS decisions. For instance, is this a consistent stance with the Landaluze case?

My sense is that others have successfully used defenses that did not meet such a high, strict standard, and that therefore they have not handled this case consistently. But I haven't really looked in detail at other cases to see if this is true or not.


Ali said...

It's possible that some improvements may take place at LNDD, although only because even they must realise that they can't get away with it forever, i.e. "... but you can't fool all of the people all of the time" (not that they managed to fool many people this time, I'd guess).

The only positive thing I got from the "fallout" was Floyd's statement:

"They will never get to the end of how much I can take"

I was trying to think of something to add to that, but I couldn't. Spoken like a true champion.

Unknown said...

Great point, Marc.

Ali, I doubt anyone will seriously try to fight that system for a while. Millions of dollars? Public ridicule? No chance of winning? Better to take the abuse and ride sooner.