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2008 Worthington Essay Prize

Worthington Essay Contest Prize Winners, 2008:


Recently a three-member panel of the international Court of Arbitration for Sport (CAS) upheld charges against cyclist Floyd Landis, stripping him of his title as winner of the 2006 Tour de France and suspending him from competition for two years. In doing so, the court placed its stamp of approval on the Carbon Isotope Ratio (CIR) test results generated by the French testing laboratory. The CIR test was one of the two laboratory tests relied upon to support the Adverse Analytical Finding giving rise to Landis's suspension, the other being the testosterone to epitestosterone ratio test. That test had been thrown out earlier by Landis's original arbitration panel, which concluded that the French laboratory failed to perform it according to mandatory lab standards. Landis continues to assert his innocence, contending that the CIR test had not been performed correctly, had not been validated, had not been accredited, and did not generate scientifically reliable results.

Athletes who participate in elite-level sports that are part of the Olympic movement are now subjected to anti-doping tests in an effort to make sports—from running to swimming to cycling—drug-free. Only those labs accredited by the World Anti-Doping Agency (WADA) are authorized to conduct anti-doping tests for international cycling competitions and other Olympic movement sports; most countries–including France-- have only one accredited lab. The labs test for substances on a Prohibited List generated by WADA, and they must perform anti-doping tests in compliance with the International Standard for Laboratories and the International Standard for Testing. Positive tests are referred to as “Adverse Analytical Findings.” The generation of an Adverse Analytical Finding starts the enforcement process against an athlete. The enforcement process is governed by a code of procedural rules generated by WADA.

When the Adverse Analytical Finding is generated, the WADA code permits the athlete to challenge that finding in an arbitration and not a civil trial governed by the rules of evidence. The prosecuting entity in the United States is the United States Anti Doping Agency (USADA), an entity funded primarily through a federal grant. An adverse decision by the original arbitration panel may be appealed by USADA or the athlete. Appeals are taken to the CAS, and are de novo proceedings (literally “anew” but in legal parlance a new trial based on merits, not on procedure).

The CAS arbitrators are chosen from a pool selected by CAS's parent organization, the International Council of Arbitration for Sport (ICAS), with input from the International Olympic Committee and the international sports federations. Like USADA, CAS arbitrators implement the provisions of the WADA Code, as well as its own procedural rules. The CAS arbitrators serve four-year terms. No conflict of interest rules bar these CAS arbitrators from continuing to represent clients in front of CAS during their four-year term in any case in which they have not been selected to serve as an arbitrator.

Critics have attacked the anti-doping regime created by WADA and implemented in the U.S. by USADA. They fault the CAS arbitrator-selection process. They also criticize the anti-doping laboratories, arguing that the methods they use have not been scientifically validated, published, and subjected to a peer review process.

Defenders of the existing system argue that however imperfect the procedures may be, the tests do work to detect and deter cheating. They further contend that if anti-doping tests and methods were published, athletes would have a greater ability to probe the scientific limits of the tests and work around them.

The hypothetical:

You work for a US Senator. USADA's grant expires this year. Critics of the Landis prosecution have argued that the anti-doping regime leaves athletes vulnerable to false positives (or false negatives) because the scientific methods used to develop tests for prohibited substances have not been adequately validated and peer-reviewed, and because the WADA Code denies athletes any meaningful opportunity to challenge the scientific reliability of those tests. USADA counters that drug use in athletics is rampant, that the accredited labs have conducted the tests in good faith and to the best of their ability, that testing is the most effective deterrent to doping, and that publishing the testing methods will allow cheating athletes to learn enough to beat the test.

USADA has asked the Senate to double the amount of federal funding it receives, arguing that prosecuting well-funded athletes like Landis requires a greater level of financial support. Your Senator hates cheaters and loves sports. He's also a firm believer that a person is presumed innocent until proven guilty by a jury of his peers before an impartial judge during a fair trial.

Your job is to advise your Senator whether to increase USADA's funding, and if so, whether to add any conditions to the grant regarding changes to any one of the following three areas: 1). The rules by which it adjudicates the guilt of athletes who test positive; 2) the scientific methods used to establish standards for testing for banned substances; or 3). The methods used to select arbitrators. In addition to the Landis controversy, you should research and evaluate other cases of alleged doping in which the athletes contested the testing results. You are free to increase, reduce, or eliminate the federal grant to USADA but you must justify your advice, whatever it may be.

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