Gordon Robinson | All this for poor Nesta?
Philosophical truth insists nothing is as it appears, so maybe there's more than meets the eye to this Nesta Carter saga.
For starters, with apologies to Zero Mostel, Melvin Frank and Robert Lester, a strange thing happened on the way to Lausanne. After admitting Carter's A-sample tested negative in Beijing, IOC Disciplinary Commission's (IDC) judgment disclosed: "During the transfer of the samples from the Beijing laboratory to the Lausanne Laboratory, the A-samples were not individually resealed nor transported in sealed containers."
To my simple mind, this admission of possible intra-sample or external contamination during transportation 8 years ago should've resulted in abandonment of retesting. My limited understanding of athletics drug-testing procedures is that B-samples are only tested at the athlete's request, after his A-sample returns positive. The athlete may dispense with B-sample tests and face the music based on a positive "A-sample [see 2014-2015 IAAF Rule 32.2 (a) (ii)]. Furthermore, overriding principles of fairness confirm it's better for 1,000 guilty men to go free than one innocent man convicted.
The IDC addressed the irregularity thusly:
"In accordance with the provisions of the applicable International Standards for Laboratories (ISL), the IOC decided the reanalysis process would be conducted as follows:
- An initial analysis was to be conducted on the REMAINS OF THE A-SAMPLES (my emphasis).
- If initial analysis resulted in the indication of the POTENTIAL PRESENCE OF A PROHIBITED SUBSTANCE (again, my emphasis) or its metabolites or markers ('presumptive adverse analytical finding'), the full confirmation analysis process (double confirmation) was to be conducted on the B-sample, which would be split for the occasion into a B1- and a B2-sample (becoming the equivalent of an A- and B-sample) ... ."
Mercy! Instead of aborting the process, the IOC relied on its own custody infraction to lower standards for positive findings of A-sample tests. The IOC felt empowered to take this draconian step because, in 2008, "resealing of A-samples (or transport in sealed containers) wasn't a requirement pursuant to the then applicable ISL". But it is now. Then, it was common sense. Otherwise, why'd IDC feel it important enough to record and circumvent?
Note this extraordinary step was taken pursuant to "applicable  International Standards for Laboratories" with NO REFERENCE to WADA's International Standards for Testing (IST). The IOC's 2016 Rules provide:
"6.5: All samples may be stored and may be subject to further analyses at any time ... by either IOC or WADA. Such further analysis ... shall conform with the requirements of the applicable International Standard for Laboratories AND the applicable International Standard for Testing and Investigations."
How does IOC get away with touching a B-sample in the absence of an adverse result from an A-sample test, especially where that A-sample is compromised and accordingly illegitimate? Because it applied its 2008 rules which provided:
"Samples shall be stored in a secure manner at the laboratory or as otherwise directed by IOC and may be further analysed ... ";
And: "The laboratory shall analyse doping-control samples and report results in conformity with the International Standard for Laboratories." No reference to WADA's IST! Still, what's "a secure manner"? Was it only applicable to "storage" and not transport?
So, in 2016, IOC tested a stored, illegitimate A-sample using 2008 testing rules. The result:
"The analysis of the [athlete's] A-sample indicated the POTENTIAL PRESENCE (my emphasis) of a prohibited substance: methylhexaneamine."
But IOC's 2016 rules provide the lab must find "a prohibited substance or its metabolites or markers in the athlete's A-sample".
It's the TESTING, not the storage, happening in 2016. WADA's current testing rules provide "all testing shall be conducted in conformity with the International Standard for testing ...", yet the IOC conducts tests in 2016 using out-of-date 2008 rules disregarding the 2016 rules.
WADA's current IST provides "samples shall be analysed to detect prohibited substances ... identified on the prohibited list ... " but these rules were ignored by IOC. Was methylhexaneamine on 2008's prohibited list?
Carter wasn't informed an illegitimate A-sample was to be tested, nor was he given any opportunity to challenge that decision by judicial review. The test failed to detect a prohibited substance (found "the POTENTIAL PRESENCE of a prohibited substance"). So, where are we? A legitimate sample tested negative in 2008 but illegitimate "remains" of that sample tested "potentially positive" in 2016 based on obsolete testing rules. Without request from Carter, the B1-sample is then tested as an A-sample and the result applied adversely to Carter.
Why the subterfuge and artifice? Is all this scheming for poor Nesta Carter? Or some other target?
Peace and love.
- Gordon Robinson is an attorney-at-law. Email feedback to firstname.lastname@example.org.