WOW. Unintended consequence of Landis Ruling. WOW

donrhummy

http://rant-your-head-off.com/WordPress/?p=655

Rules, Standards and the Law of Unintended Consequences

There’s something lurking in the Landis decision that I suspect the CAS panel didn’t mean to write (or copy and paste). Or if they did, they didn’t think it through. Because the precedent they’ve set has some far-reaching consequences and implications that have a huge impact on anti-doping enforcement in the future.

What’s caught my eye in the panel’s ruling? It’s the idea that the anti-doping labs don’t have to comply with written standards, they merely have to comply with the “concepts” in those written standards. Here’s what the panel wrote:

175. According to the Respondent, the ISL requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody.
…
178. The Panel finds that there was no ISL violation:
• The ISL requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody, not literal compliance with the WADA Technical Documents on chain of custody. In addition, pursuant to the WADA Technical Document on chain of custody, testimony may be used to establish chain of custody;

• The Respondent’s evidence and witness statements established that it complied with the “concepts” found in the WADA Technical Documents, such as LNDD 2014, 2015 (the laboratory plan);69 USADA0024 (transfer of bottles from one operator to another).70 The Tribunal accepts the evidence of Dr. Ayotte71 that there is no requirement of a single document, and that so long as each staff person in possession of the bottle is identified, a chain of custody is established;72
…
215. The Panel considers that there is insufficient evidence to establish an ISL violation:
• Pursuant to WADA TD2003LCOC (chain of custody):
“Any forensic corrections that need to be done to the document should be done with a single line though and the change should be initialed and dated by the individual making the change. No white out or erasure that obliterates the original entry is acceptable. “
• The ISL generally requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody, not literal compliance with the WADA Technical Documents on chain of custody;
• The corrections in the document do not obscure or confuse the identity of the sample nor cover up laboratory errors.

For those who need a refresher, ISL stands for International Standards for Laboratories.
...
Now, on the idea of following the concepts in the standard. That’s tricky, who’s to judge that a lab followed the “concepts” correctly? You’re getting into some rather murky waters when the “rules” become subject to this kind of interpretation. How does one judge whether or not the lab has understood a document’s “concepts”?
...
Same is true for evaluating a lab’s work. You can’t effectively measure their understanding of a concept. But you can measure how well they’ve followed a specific set of requirements. That’s what the ISL is. A specific set of requirements. Not a set of concepts to be implemented in whatever manner or fashion each individual lab sees fit.
...
So, in the example above, the lab might be complying with the “concepts” of the standard while not actually complying with the standard. Imagine technicians who keep track of the chain of custody by making notes on scraps of paper that they then put together when needed to show what’s been where when. Yes, they keep records. No, it’s not as thoroughly or properly documented as the standard requires, and it’s not kept in a single, organized, contemporaneous log or document. And, as an added bonus, some of those scraps of paper could be lost, meaning that some of the chain of custody records have vanished. No problem, as long as someone remembers where things were. Right? Wrong. Our memories aren’t always as accurate as we think they are. According to the panel’s ruling, if a lab kept records on scraps of paper, that would be OK, because they were following the concepts of the rule.
...
Ultimately, this part of the panel’s ruling appears to mean that the rules aren’t rules, they’re merely suggestions. Which means that there are no standards, really.

You should read the whole blog. Really fantastic analysis. And someone wrote a brilliant comment to it, pointing out that if "concepts" are all that the rules stand for, then someone using an inhaler which, unbeknownst to them, has a banned substance is complying fully with the concepts in the ISL. Of course, that's NEVER how they rule, but that's because it's the athlete.

donrhummy

150 views and not one comment?

deal

shocking :shock:

ps. happy now ?

donrhummy

deal wrote:

shocking :shock:

ps. happy now ?

LOL. A man of few words.

Seriously, though, do you think this will end up having repercussions that they did not forsee? Could this be what finally brings the system down in a court of law? Or will it simply be another small act in a sea of "the organization's always right" anti-doping motions?

DaveyL

It's possible that this could still be dealt wth by national federatons and CAS on a case-by-case basis, with the ruling being made in each case as to whether the labs complied or not.

Anyhow this only seems to be dealing with chan of custody. This is a pretty difficult one anyway - I mean, who here knows how this really works? I don't. But I can imagine it is difficult to show for sure that, for example, a sample could not have been tampered with, even if you have a full chain of custody. Unless it hasn't been out of anyone's sight the whole time it's in the lab, you can't say that.

Also, the example the blogger gives at the end (the scraps of paper) is a bit disingenuous, as he's pretty much telling his readers this would be OK. I suspect it might not be part of the WADA ISL concept to keep record of the CoC on bits of scrap paper. An arbitrator could then rule that the concept hadn't been followed. One would need to look into the exact wording of all the documents the blogger refers to. I suspect it's playing on being a little alarmist and is scaremongering to some extent.

Kléber

I don't see the fuss. The CAS just said they thought some processes weren't followed 100% in the lab but ultimately this did nothing to detract from the presence of exogenous testosterone in Landis's samples.

Landis's groupies can spend their free time picking over the bones of every appeal he wastes his money on but nothing can hide the fact that he's a guilty. They keep trying to undermine the testing procedures, to cast aspersions when the real villain is Mr Landis, aided and abetted by the "medical" staff he worked with.

flattythehurdler

+1.
Along with half the peleton, with some particular beneficiaries.

ricadus

Kléber wrote:

I don't see the fuss. The CAS just said they thought some processes weren't followed 100% in the lab but ultimately this did nothing to detract from the presence of exogenous testosterone in Landis's samples.

Landis's groupies can spend their free time picking over the bones of every appeal he wastes his money on but nothing can hide the fact that he's a guilty. They keep trying to undermine the testing procedures, to cast aspersions when the real villain is Mr Landis, aided and abetted by the "medical" staff he worked with.

Exactly. Their kind of nit-picking was clearly aiming to get the big fish off the hook on a technicality. The attempt to gain the moral high ground wasn't helped by one of his agents being caught attempting to intimidate a witness either.

Floyd's suspension is up in 2009 and if he really wants to prove himself he can race then. There seem to be plenty of teams that will hire dopers (or those alleged to have doped).