End International Olympic Committee Sport Arbitration

Arbitration to determine whether an athlete used a performance enhancing substance to gain an unfair advantage is an abysmal failure. Currently, athletes have no choice but to arbitrate cases through entities created by the International Olympic Committee.

The Olympic Committee created the World Anti-Doping Agency (WADA). WADA is an agency that controls anti-doping testing and also acts as a de-facto prosecution body. The laboratories are accredited by WADA under International Standards for Laboratories (ISL) and Testing (IST). Therefore their results are presumed to be correct. WADA rules preclude an athlete to challenge this presumption of correct results unless obvious laboratory violations of ISL and IST "caused the Adverse Analytical Finding" (AAF). Unfortunately, laboratory directors and employees of WADA are precluded from testimony that would benefit the athlete, even if they know of or suspect violations. The game favors WADA, the cards are stacked.

The arbitration hearing in the United States is under the jurisdiction of the North American Court of Arbitration of Sport (AAA). Unlike American courts where points of law are written based upon merits of cases argued in court arbitrators have an unlimited amount of power to write "law" at their whim. For example, in order to file an Adverse Analytical Finding, urine or blood samples must be split in half and tested separately. This is done to protect the athlete from false positive results, or results that falsely indicate prohibited substance use. A fire alarm without a fire is a false alarm.

Unfortunately, in the Floyd Landis case, the United States Anti-Doping Agency (USADA) asked for and the AAA granted USADA alternate "B" tests on Tour de France stages where Mr. Landis passed the initial testosterone/epitestosterone screen tests <4:1. These tests violated the safeguard of eliminating false positive results and as Emile Vrijman would say "constitute nothing," because the "A" portion of the urine samples were not IRMS tested. However, even though there was no confirmation IRMS tests of these alternate "B" urine samples, some results were used as "evidence" to support the contention that Mr. Landis used synthetic testosterone.

An independent scientific expert is to be provided to the arbitrators to weigh the contentions of the prosecution and defense in an impartial manner. In the Landis case the independent scientific expert was a director of a WADA accredited lab. As we have noted previously; an employee of WADA cannot testify in favor of an athlete in an arbitration hearing; therefore the independent scientific expert becomes a de-facto fourth arbitrator that sides with the prosecution. In the Floyd Landis case the lab technican Ms. Frelat injected a calibration mix into the IRMS, she forgot to close the carbon dioxide valve. She had a result on the first calibration mix where the "peaks did not look right." She overwrote the results of this injection with the results of a second calibration mix injection on the same file and in the process destroyed the data of the first calibration mix. She left the second calibration mix in the IRMS for seven hours unattended, therfore violating the chain-of-custody requirement. Her results of the second calibration mix when done manually were in error by 2 delta units in a positive direction (less negative) than the results derived by OS/2 automatic processing. Both OS/2 and Masslynx found the calibration mix to be above threshold for synthetic testosterone >3delta units. Yet the AAA and the Court of Arbitration for Sport (CAS) found her carbon content and delta/delta scores "valid" for the Stage 17 Floyd Landis urine samples. The independent scientific expert was precluded by WADA rules to disagree with the AFLD contention that because Ms. Frelat passed an old COFRAC accreditation audit she was competent to evaluate the Landis metabolite peaks. The fact that she may have made an error and manipulated the peaks as was contended by Dr. Davis was ignored and dismissed. Dr. Ayotte, Dr. Brenna, and Dr. Catlin were also precluded from stating that an error by Ms. Frelat may have been made during the testing. One problem remains with Ms. Frelat. We have no idea what she did during the testing, we have her word only that she performed the tests correctly even though LNDD did not have an operating manual for the IRMS at the time. Dr. Davis said that the operating manual was essential for the IRMS test to be conducted correctly. Of course, there were other problems besides the unsophistication of Ms. Frelat, improperly adjusted jets, tubes sucking up atmosphere from the laboratory, poor peak separation. Dr. Davis declared in his testimony that all of these factors were essential to derive precise results with an IRMS, proper jet pressure, proper tubing routing, good peak separation...at the risk of sounding sarcastic.

Of course, all of the WADA experts ignored the fact that the processing of the metabolites returned large errors that reflected problems of the software or the manual configuration of the peaks; all of the delta/delta calculations were incorrect by a large margin. Certainly, the results of the automatic processing were outside of the stated +/-.8 mil error rate published by LNDD when compared to each other. The data is only as good as the instrument measuring the data (or the person) and even if you agree that the IRMS is a very precise in rendering measurements in the billionth of mils 0/00 if the processing is garbage this fact is moot.

It is time to do away with the Olympic Committee arbitration model. A prosecution and arbitration hearing within a specific country is marginal. But appeals of awards should be done in National Federal Courts where the athlete resides, not in a Court of Arbitration of Sport in Switzerland. This would stop a "second arbitration" that is done from scratch, with a new set of testimony and arbitrary rules. This would stop jurisdictional questions between countries if an athlete appeals a CAS award to a court of law. Example: Where is the "seat", the United States or Switzerland. Unnecessary conflict of interest of CAS arbitrators would also be avoided.

Most important of all the blackmail that USA Cycling and the International Olympic Committee uses to coerce athletes into signing away their legal rights as a condition to participate in athletic contests under dubious contractual agreements would cease.

The current anti-doping model was created to combat designer drug use by athletes as happened in the Victor Conte BALCO scandal. The concept was good; but it has become corrupted by monopoly of amoral people who cherish victories in arbitration rather than discovering truth. The athlete denied due process has no chance of success in arbitration. It is time to end this charade and invite the courts to intervene where the athlete resides as a citizen.