What the U.S. Rodchenkov Act means for Kenya

rule readerr wrote:

If the coach prosecution was based on the athlete having doped then it would but there would be circumstances where a coach could face prosecution without there being and athletes positive.

You have no knowledge of the history of doping cases in relation to your last para.

Beloff introduced comfortable satisfaction as beyond reasonable doubt would not stand up on a regular basis.

Once again, the prosecution only needs to establish guilt to the criminal standard. Each piece of evidence used to establish that guilt does not need to meet that standard, but all of it together should exclude all reasonable alternative possibilities.

I think you are not quite grasping the nature of the Act.

For context: "It shall be unlawful for any person, other than an athlete, to knowingly carry into effect, attempt to carry into effect, or conspire with any other person to carry into effect a scheme in commerce to influence by use of a prohibited substance or prohibited method any major international sports competition."

Such a prosecution will require a lot more evidence to show "knowingly", "carry into effect, or attempt to, or conspire with someone else", "scheme in commerce", "influence by use", "any major international sports competition". An athlete sanctioned by WADA standards will be corroborative evidence of use, contributing to establishing guilt "beyond reasonable doubt".

Regarding history of doping cases, there were early mistakes, and lessons learned, and improved standards for handling of samples. Such mistakes would not be tolerated anymore.

Thanks for the thoughtful post.

You say that the sanction of an athlete by Wada standards will be corroborative evidence.

This is where a good lawyer will earn his corn.

How can you have a conviction which is evidence to sub criminal standards be used for a criminal conviction.

This contradiction between wada standards and criminal standards will be embarrassing for wada.

I re read the ISTI and there is still no requirement for the sample to be collected in closed circumstances nor any standard for defining the conditions as unsatisfactory in hygienic let alone circumstances where supplements / drugs would have been used.

rule readerr wrote:

Thanks for the thoughtful post.

You say that the sanction of an athlete by Wada standards will be corroborative evidence.

This is where a good lawyer will earn his corn.

How can you have a conviction which is evidence to sub criminal standards be used for a criminal conviction.

This contradiction between wada standards and criminal standards will be embarrassing for wada.

I re read the ISTI and there is still no requirement for the sample to be collected in closed circumstances nor any standard for defining the conditions as unsatisfactory in hygienic let alone circumstances where supplements / drugs would have been used.

There is no requirement for evidence to meet criminal standards -- only the guilty verdict.

WADA will not be embarrassed, as the WADA standard is fit for its purpose, as they do not consider doping a crime.

rekrunner wrote:

rule readerr wrote:

Thanks for the thoughtful post.

You say that the sanction of an athlete by Wada standards will be corroborative evidence.

This is where a good lawyer will earn his corn.

How can you have a conviction which is evidence to sub criminal standards be used for a criminal conviction.

This contradiction between wada standards and criminal standards will be embarrassing for wada.

I re read the ISTI and there is still no requirement for the sample to be collected in closed circumstances nor any standard for defining the conditions as unsatisfactory in hygienic let alone circumstances where supplements / drugs would have been used.

There is no requirement for evidence to meet criminal standards -- only the guilty verdict.

WADA will not be embarrassed, as the WADA standard is fit for its purpose, as they do not consider doping a crime.

A good lawyer will exploit this contradiction.

The wada code says that it is sports rules but that intention will look impossible to maintain as sports rules mean a whole lot more than such as depth of the pegs on a pole vault stand.

Twenty years ago you could hardly find a sports lawyer now there are firms based on them.

Have you noticed at every point wada has tried to stop doping becoming a criminal offence.They know that under legal examination wada protocols will not stand up in court if judged against normal legal protocols.

Thus to bring it back to the heading ; the Act will make no difference to Kenya.

rule readerr wrote:

A good lawyer will exploit this contradiction.

The wada code says that it is sports rules but that intention will look impossible to maintain as sports rules mean a whole lot more than such as depth of the pegs on a pole vault stand.

Twenty years ago you could hardly find a sports lawyer now there are firms based on them.

Have you noticed at every point wada has tried to stop doping becoming a criminal offence.They know that under legal examination wada protocols will not stand up in court if judged against normal legal protocols.

Thus to bring it back to the heading ; the Act will make no difference to Kenya.

While a good lawyer will attempt to establish reasonable doubt whereever he(/she) can, a good prosecutor will have to gather strong evidence of "carrying into effect a scheme", or an "attempt" to do so, or "conspiring with someone" who attempted to do so or did do so, regardless of any WADA sanctions of any athletes. This is why the involvement of several federal agencies with more power to gather evidence than national ADOs, and the requirement to share that information with USADA feature in the bill.

The WADA code *IS* a collection of sport rules, and the legal grounds for enforcement are well established and accepted by all nations worldwide, being based on established contract law, established arbitration process, and national signatories encoding some of the rules into their own national laws.

WADA is against criminalizing doping for athletes, for several obvious reasons -- the increased legal burden will cost more time and money and result in fewer sanctions. Efforts to make it more effective will result in even more encroachment on athletes' privacy (increased surveillance?, hidden cameras?, mobile tracking apps?, ankle bracelets? ...)

However, WADA does support legislation against traffickers and distributers of doping to athletes. They expressed support for the Rodchenkov Act for not targeting athletes, but only opposed the extra-territorial nature of the Act which can be counter-productive and lead to confusion and copycat legislation by other nations also interested in the same events.

Good comments ; thanks.

My point is how long can doping rules just be considered sports rules and if a prosecution is based on a coach’s athlete’s positive then proper evidence and science will abound.Sports rules are subject to the law as far as Human Rights go; this was not the hope at the outset, so they are not just “ sports rules”.

Football and Boxing have already cost wada world many millionS and that is what we know about.

I don't see fewer sanctions, on the contrary. The police actions, enabled by the criminalization of doping in various European countries, led to additional sanctions in the Aden case and in Operation Aderlass, to give two cases in point.

Do you have examples where athletes escapes a ban because of the criminalization?

See also

Note that Aderlass was a German/Austrian cooperation. Overview, including several athletes who got banned because of it, here of course:

Great article.

It did make reference to harmonising criminal and wada standards and there is the problem of wada’s sports rules being inadequate and exposed.

For those cases where there is not great conspiracy as indicated in Aderlass etc then such as a footballer acting as a single agent would expose wada if he was to be prosecuted under law.

Oh! A footballer did in fact do this and pinged wada for £13 million and Fury cost them £,7m.

Will the public prosecutor take on a case for micro coke use when Police just ignore in the real world?

rule readerr wrote:Will the public prosecutor take on a case for micro coke use when Police just ignore in the real world?

I suppose that depends on the prosecutor (and country!). While there could be a case here or there where a drug cheat gets fined or even jailed by the court, but not banned by WADA, or vice versa where someone gets banned by WADA but not fined by the court (which is currently the norm, mind you), I really appreciate that

a) these cheats have to be afraid of jail time

b) doping centers may get raided to actually find evidence (rather than e.g. USADA asking to please hand over data).

The Preidler case is an interesting one. There is no evidence that he actually re-inserted his blood, only that his blood was taken and stored, and yet he got a 4-year ban (UCI) as well as a fine and a suspended jail term of 12 months for fraud.

And of course more data showing how easy it is to beat the blood passport.

Interesting about how to beat the test.

Wada try and indeed succeed in keeping evidence back from the defence on the basis that such is not set out in their limited document package after a positive.

They argue that releasing such would benefit those who wish to get round a test.

Now; try that in a criminal court.

And I think it is deemed “a fact “ that the lab has done the analysis correctly.

Try that on, wada , in the real world.

casual obsever wrote:

rekrunner wrote:WADA is against criminalizing doping for athletes, for several obvious reasons -- the increased legal burden will cost more time and money and result in fewer sanctions.

I don't see fewer sanctions, on the contrary. The police actions, enabled by the criminalization of doping in various European countries, led to additional sanctions in the Aden case and in Operation Aderlass, to give two cases in point.

Do you have examples where athletes escapes a ban because of the criminalization?

It's important to recall the context.

If WADA were to increase the standard required for sanctions from "comfortable satisfaction" to "beyond reasonable doubt", this higher standard would cost more time and money to investigate, and litigate, and let some athletes free, who might have exceeded the lower standard.

Of course if you supplement the existing WADA process with criminal investigations, with separate funding, this can result in many sanctions that normal anti-doping processes might never have caught.

Having said that, one tool ADOs can use is to negotiate lighter sentences for athletes, if the athletes cooperate and give the ADOs information on other doping. This ability to bargain is taken away in cases where WADA sanctions would be accompanied by criminal offenses with the threat of jail time. This could theoretically reduce future sanctions by removing the incentive for athletes to confess what they know about larger schemes.

We should also distinguish between the criminalization of supplying the drugs (coaches, doctors), something WADA is in favor of, and the criminalization of using (athletes), something that WADA is not in favor of. The police actions for Aden and Operation Aderlass were arguably not investigations into the doping of individual athletes, but larger investigations against a coach (Aden) and a doctor (Mark Schmidt). Spain's criminalization does not extend to athletes. Operation Aderlass was an 8-year investigation before the first arrest.

rule readerr wrote:

For those cases where there is not great conspiracy as indicated in Aderlass etc then such as a footballer acting as a single agent would expose wada if he was to be prosecuted under law.

Oh! A footballer did in fact do this and pinged wada for £13 million and Fury cost them £,7m.

Just a reminder, the footballer was wrongly accused of doping, as WADA considered the substance higenamine as a Beta-2 analyst, while the footballer successfully argued it is not -- and the footballer sued in a real court for damages.

UKAD (not WADA) reportedly spent £585,659 on the Fury case, mostly in legal fees. What is unusual is the length of time -- it took UKAD 16 months to charge Fury with doping based on a sample 16 months earlier, and another 18 months to schedule a hearing.

Neither of these cases "expose WADA", as they were both failures to apply the rules correctly, or timely, rather than a fundamental failure of the rules themselves, or the legal status of the expected WADA enforcement process.

Given UKAD spent so much on the Fury case, I'm curious what the cases of Lance Armstrong, and Alberto Salazar cost USADA.

This Act will not be enforced on Football , MLB, NHL ,NBA . Only the niche sport of running , where nobody cares .

Wada world was exposed because there is no certainty in the term “ related compounds”

A Mc D hamburger could be one,

Nor is is clear from research what drugs are in the food chain .Wada have a bit of a policy; like don’t eat in Mexico cos you have been told or should know the meat is contaminated and strict liability will get you..

So both down to sports rules and not science.

Wada world exposed..

rule readerr wrote:

Wada world was exposed because there is no certainty in the term “ related compounds”

A Mc D hamburger could be one,

Nor is is clear from research what drugs are in the food chain .Wada have a bit of a policy; like don’t eat in Mexico cos you have been told or should know the meat is contaminated and strict liability will get you..

So both down to sports rules and not science.

Wada world exposed..

You seem to be greatly confused about many things surrounding WADA:

- The case of the footballer did not hinge on the term "related compounds", but on the term "Beta-2 antagonist", and whether higenamine is one.

- Meat contamination is a known issue in Mexico and China, hence the warnings -- not much uncertainty there. The uncertainty in meat contamination in countries like the US, after investigation on the athlete side about the source and treatment of the meat, has led to "no fault" verdicts -- still guilty under strict liability, but no sanction due to lack of intent and knowledge -- only annulment of the single result.

The WADA code is a collection of sports rules based on science and law and ethics. Exposure has shown time and time again that international consensus involving athletes, federations, and governments is a robust approach. Issues such as any ambiguity in a WADA banned list can be easily rectified in the next year's review and release of a new list, as was the case with higenamine, which is now explicitly banned. It may continue to evolved with minor tweaks, but it won't be going away.

Evidence of re-insertion is not required, only evidence of "attempted use". Success or failure is not material. The relevant rule is:

Like WADA, I'm in favor of criminalizing the supply chain, while sanctioning athletes under WADA rules (civil and contract law rather than criminal law).

One of the reasons against adding legislation for criminalizing doping for athletes is that fraud is already a crime in most, if not all, countries.

No one said the blood passport was foolproof, or that catching dopers with the blood passport is the only measure of success.

The ABP is an improvement over a system with no ABP. It provides a deterrent effect, as well as forcing blood dopers to reduce blood doping to a level which can be matched by clean athletes with legal altitude training.

rekrunner wrote:

Evidence of re-insertion is not required, only evidence of "attempted use". Success or failure is not material. The relevant rule is:

Right - but if he is to believed, he only intended to use, and didn't even attempt to.

casual obsever wrote:

rekrunner wrote:

Evidence of re-insertion is not required, only evidence of "attempted use". Success or failure is not material. The relevant rule is:

Right - but if he is to believed, he only intended to use, and didn't even attempt to.

Perhaps extraction was interpreted as starting an attempt, and he was caught in the middle of an attempt, in the time between extraction and re-insertion.

I guess the "no harm, no foul" argument, while not material for a WADA sanction, was more for the court of public opinion, and/or for his competitors, and/or relevant to calculating damages, and/or relevant to another potential court case from his former team Sunweb.

You can’t have costly mistakes and then say we have made changes.

Wada’s later documents point to possible mistakes in declaring positives for grand daughter metabolites in that they could be naturally occurring from athletes own hormones. But they never checked to see if they could occur prior to banning.Damn shoddy science that would get exposed in a criminal court.

Even Bolderone has been found to be naturally occurring.