Morally Bankrupt Anti-Doping Crusade

The anti-doping crusade is morally bankrupt and in need of drastic reform. From the start the athlete is considered guilty until proven innocent. The athlete is required to refute a presumption of correctness of laboratory analysis by proving through scientific argument that a "departure" in the laboratory practice caused an Adverse Analytical Finding. This burden, placed upon the athlete may be insurmountable due to the trauma that an athlete experiences when he/she is informed that he/she has failed a test for performance enhancing drugs. The threat to his/her professional career in sport, the thought of expensive litigation, the stigma and ridicule, may render a professional athlete psychologically incapable of functioning enough to even assist in his/her defense.

While the anti-doping agencies co-operate to hire outside counsel, the athlete in most cases does not have the financial means to defend him/herself. The athlete must hire an expert in forensic toxicology to observe confirmation testing in order to safeguard the athletes' interests. The athlete must hire a lawyer to present his/her case. If the athlete appeals additional expenses can be expected. This is an inherently unfair to the athlete.

In addition WADA has determined that the mere presence of a banned substance, whether taken intentionally or not, is an inexcusable crime, under strict liability. If any amount of a banned substance is detected, this is a crime. If the quantity detected is insufficient to enhance performance, this is a crime. Both cases still constitute doping offenses. Even if a banned substance was taken by accident, the athlete can still expect a one year suspension. LA Times columnist Michael A. Hiltzik has written a brilliant summary of the problem of "no tolerance" "strict liability" WADA doctrine for athletes, and the impossibility of obtaining a fairly reasoned decision in Arbitration. "Athletes' Unbeatable Foe." Anyone wanting to understand the fundamental unfairness of the current anti-doping crusade to the athlete must read this article.

The deck is stacked in favor of the prosecution in arbitration cases. The most egregious example is in the selection of the arbitrators. The athlete is allowed one arbitrator while the federation (USA Cycling) gets one arbitrator. The third arbitrator is supposed to be neutral. But because of the inherent nature of the selection process of the third arbitrator from a pool of eligible association arbitrators, such as the AAA, this rarely happens. Most times the prosecution is rewarded with two arbitrators.

In arbitration cases with scientific complexity an expert in forensic toxicology is needed to examine the evidence. The expert should be independent from the IOC/WADA certified labs and the athletic federation. The expert should function as amicus curiae or "neutral representative." There may also be amicus briefs filed on behalf of an athlete by neutral parties who argue relevant points of law. For example, "WADAworld, WADA case for CAS...An amicus brief to the CAS in the Floyd Landis case..." by Drew Schafer. http://www.wadawatch.blogspot.com/

Why Did Floyd Landis Lose the AAA hearing?

The scientific expert in the AAA hearing was none other than head of the WADA accredited lab in Rome. Dr. Botre. Dr. Botre's opinion was the single most important factor in determining whether Floyd Landis' defense met the burden of proving that a "departure" on the part of LNDD caused the Adverse Analytical Finding. Botre decided that the forensic evidence did not prove that the methodology LNDD used in the Landis case was serious enough to invalidate the delta/delta Carbon Isotope Ratio findings. Allowing a director of a WADA lab to serve as "independent scientific expert" when WADA is paying the legal expenses of USADA is a very dangerous precedent.

Next article will expand on the danger of having a director of a WADA lab as an "independent" scientific expert based upon the testimony of Christiane Ayotte and the AAA dissent of Christopher Campbell; who pointed out the obvious conflicts of interest of Ayotte in the Landis case. This will be compared to the logic of Bruce Goldberger, professor in pathology, immunology, and laboratory medicine at the University of Florida who felt compelled to testify because he believed that "when I looked at the [LNDD LDP] documents my gut feeling was this is wrong. I am here to exonerate Floyd because I think what was done was outside the standard of analytical toxicology." No ulterior motives, Dr. Goldberger did not "know Floyd." A perfect example of a true "independent" science expert, with no "dog in this fight."