Tuesday, August 29, 2006

Thought experiments gone bad

One - That was MY foot

Let's pretend that Floyd conducted the following test. He does a hard training ride approximating the first Alp stage, and collects urine and blood samples. He does a hard ride through bonking, collects samples, has a couple of beers and some JD, and the other recovery stuff he will claim to have done. On the third day, we collect pre-ride samples, and then he rides a wattage profile like stage 17, and collects more samples.

Now suppose we find that the samples evaluate fine, except the before and after samples on the last day match more or less exactly what was found in the reports.

What do we conclude? Rationally, that it was a natural production, and there is no violation.

What could the Rules conclude? That he just committed a second doping violation in an out-of-competition test, because the second set of results are as bad as the first.

Leading to a life ban.

Is there something wrong with this system? Yes, there is.

Two - Higher Review?

It is currently taken as fact that the CAS is the end of the line for appeal. This might not be so. In this article, we learn there may be an angle that would bring the EC into the picture. The article interprets the ruling of

the European Court of Justice, which determined that sporting cases do fall within the scope of Article 81. Put another way, the court decreed that the rules on doping in sport are not exempt from EU laws on competition and freedom to provide services.
This seems to me to be wishful thinking. Here's the appeal ruling, and that of the court of first instance. When you read it, you find that it appears to completely accept that the doping system is part of the competitive rules, and therefore not a topic for judicial review. I read it that the appellents got over the idea that there economic parts of sport that qualify for review, but got a complete no sale on the idea that the doping rules were economic. That is, the last sentence of the quotation above would more accurately read, "Put another way, the court decreed that sports do fall under Article 81, but explicitly determined that doping rules were part of competitive, not economic review, and out of bounds for judicial concern."

The appelants got nailed on their doping case, which argued that some meat they ate caused the skewed results.

Now, the faint hope offered by one of the lawyers is that somehow, since the court ruled that Article 81 applies sometimes, that this can be used to get into things that athletes or federations find unfair in the WADA code or their dealings with the IOC.

On this one, I'm inclined to agree with Dick Pound (first for everything!) that the ruling ratified the foundation of the WADA code as something that could be imposed as a sporting regulation without further review.

Which is not to say it wouldn't be nice to have somewhere to go beyond the CAS.

What's kind of interesting, in a twisted way, is how tortured interpretations can be of the same document. The plain reading of the text so contradicts what the original report seemed to suggest that I'm completely baffled.

[updated 7-nov to fix broken links]


Jank said...

Yeah, that's a screwed up system.

Wha? I am SO glad I'm not a lawyer...