Wednesday, 31 July 2013

Viktor Troicki and Anti-Doping ad-hoc-ery

You can certainly argue Troicki's suspension (full statement here) could be shorter.

You can also argue that whilst she didn't perhaps give any "assurances", that the DCO may have been ambiguous, and that she possibly didn't go far enough in removing all doubts as to what Troicki was leaving himself open to.

You can definitely argue that the ITF have emerged from this as a writhing mass of incompetence and that five blood tests over the entirety of Troicki's career is beyond parody.

It's difficult though, given Troicki's age and experience, to understand just how he imagined a hastily drafted note at the eleventh hour would excuse him from a blood test - not just in today's BioGenesised climate, but in any climate. In any case, the BCF he signed lays out (with or without the attached sick-note) the consequences of refusing a sample quite starkly.

There appears to be zero doubt, then, that an offense was committed, whatever else one might think of the length of the suspension (and which may still, remember, be reduced on appeal). The consequences of letting this slide, or even of treating a refusal any differently to actually testing positive, should, I hope, be very evident.

That doesn't mean, however, that certain aspects of the tribunal's decision don't deserve more scrutiny.

They seem, in particular, to be placing a lot of stock in the fact that Troicki behaved in an inconsistent way - whilst also, I might remind you, accepting that he had, under stress, convinced himself (quite wrongly of course) the DCO was offering him "assurances", hearing what he wanted to hear, and "elevated" what was, in fact, standard procedure activated in the event of a refused sample, to the level of a "potential solution to the problem" he faced.

On the one hand, you can't really fault this approach: the tribunal can only rely on uncontested facts and use any remaining inconsistencies in testimonies to piece together what parties thought was happening versus a viable approximation of what actually did.

To make matters even simpler they've, quite reasonably it appears, 'Occamised' things, opting to focus solely on the exchange that took place between Troicki and the DCO.

Having done all that, Dr Gorodilova was assessed as having imparted her duties correctly, and as having given a credible and coherent account of events. Troicki's testimony, meanwhile, was riddled with inconsistencies. The wonder that is Jack Reader was disregarded altogether.

Anything less than a suspension under such circumstances would be rightly regarded as a farce.

But let's be clear about this: the tribunal's decision relies on a quite specific reading of Troicki's behavior.

Paragraph thirty-three's contention, in particular, that Troicki's misinterpretation couldn't have extended so far as to have warranted the assertion he made to Braetov seems to me to require a leap of faith; which isn't uncommon, but quite a lot has been made of this, and against a backdrop of other similarly ad-hoc reasoning (see later) and an entrenched opacity from the anti-doping bodies, it does give one pause.

We should make it clear that we are not here suggesting that Dr Gorodilova was at all unclear in what she stated to Mr Troicki, rather that Mr Troicki (in the circumstances and for the reasons stated above) was misinterpreting her various statements. That said, we do not accept that Mr Troicki misinterpreted Dr Gorodilova to an extent that warranted the assertion made by him shortly afterwards to Mr Bratoev. His attempt to speak to Dr Miller, the content of his letter to Dr Miller (“thank you very much in advance for your understanding”; and the absence of any mention in that letter of assurances given to him by Dr Gorodilova or of any understanding on the part of Mr Troicki that he was justified in not giving blood), his failure to complain to Dr Gorodilova on 16 April 2013 when it became clear to him that his failure to give a sample might prove problematic (or even to mention to her in that context any assurances given by her the previous day) and the qualifications contained within his statement written four days later, all clearly indicate that Mr Troicki was not as confident as to the outcome as he wanted Mr Bratoev to believe was the case. One can speculate as to why Mr Troicki exaggerated the position to Mr Bratoev as he did; Mr Troicki came across to us as someone prone to exaggeration in order to make his point, but it may have been that he expressed himself in a way designed to avoid the possibility of Mr Bratoev telling him to go back to take the test.

a) 'It should be ok' - Whether or not she used those words, assume for a moment that the DCO was ambiguous (the tribunal was a little thin on the scrutiny she was put under): does it necessarily follow that Troicki should, in the letter he wrote to Dr Miller, make reference to the assurances he believed he was receiving, as implied by paragraph 33? And that the absence of such a mention must, therefore, indicate he wasn't truly convinced he was being assured?

I don't see it. While it might have made sense to include it, it's absence is neither here nor there (obvious differences aside, can you recall ever prefacing any sick note you've ever written with your understanding of its procedural role? I can't).

Indeed, if you believe that Viktor convinced himself that the DCO's instructions to write a letter to Dr Miller entailed her assurance that this would not then return to bite him in the ass (and bear in mind the tribunal concedes he convinced himself of precisely that), it's quite easy to conceive of him as following her instructions, safe in the knowledge that this is the way things are done, and that writing to 'the man that is deciding things' would alleviate him of any further responsibility. It's not clear to me that leaving out explicit mention of those assurances changes any of that, however bewildering we might find his choices.

b) What about the fact that he didn't complain to Dr Gorodilova when he was recalled back to her office a day later, that he made no mention of assurances supposedly only given 24 hours ago? Wouldn't that be precisely the moment to speak up?

This is more difficult to explain. But remember, we're not dealing with coherent behavior.

He may simply have arrived in her office determined to do whatever it took to put this behind him: complaining, and confronting a DCO on the way she's going about things is hardly conducive to that effort.

Clearly a stretch, but not the hopeless implausibility we're being lead to believe.

c) As to the later qualification he issued "wanted to be 100% sure" that too doesn't, in itself, betray any lack of certainty in any assurances he thought he was receiving - people often go to great lengths, engaging in further supplementary efforts, to secure peace of mind in matters where certainty already exists. We've all been there.

In no way is any of this an endorsement of Troicki's decision-making, which even in its most sympathetic rendering remains extraordinarily clueless; nor, as already mentioned, do I think the tribunal weren't completely justified in issuing a suspension.

It's a stretch though to infer (as paragraph 33 does) that inconsistent behaviour, in itself, somehow belies a certainty in his beliefs.

We've surely met enough irrational, yet quite committed, people to know that behavioural inconsistencies with professed beliefs don't often have any real bearing on anything - least of all the strength of their convictions.

Furthermore, if you concede (as the tribunal has) that someone's acted irrationally, that their faculties are "impaired", that they've even "blanked out" anything that doesn't cohere with what they want to believe, you don't then get to make logical inferences based on their manifestly illogical behaviour - or at least, to read a whole lot into it when things don't add up ("We accept Viktor convinced himself of gibberish but only up to a point." "Why 'only up to a point'?" "Because we reconciled that gibberish against gibberish and it turns out it's gibberish." "Oh.").

That's not to say Troicki definitely wasn't less than certain in his fantastical convictions (or even that he wasn't being evasive) - merely to point out that we simply don't know, and probably never will.

It's entirely proper for the tribunal to pore over Viktor's many inconsistencies and to then determine that their collective weight, together with further discrepancies from Reader, as well as the strength of the DCO's testimony, renders the idea of his being something less than certain, to be, on balance, the likeliest of theories (I know I buy that). But that's very different to saying irreconcilable behaviour must, of necessity, betray that lack of certainty - an assertion, not that different, in nature, to the kind of "elevation" the tribunal suggests Viktor engaged in.

This is important, as you otherwise open the door to the suggestion that Troicki isn't being entirely honest about things - the tribunal, in one its finest moments, diplomatically side-steps this inconvenience by characterising Viktor as 'prone to exaggeration' (fine, but that does seem to suggest that they too see a problem here).

It actually feels as if they thought an act of misinterpretation wouldn't, in itself, warrant the kind of sanction they wanted to impose: Viktor did, after all, refuse a sample - you can quite easily see the precedent of, say, a 6 month ban for something as serious as that being abused quite horribly.

Introducing this more 'intangible' sense of 'not-quite' wrongdoing clears the way for a stiffer ban whilst preserving the innocuous basis for the misinterpretation.

But while we likely all have a private view on the veracity of his claims, it's all too easy to transpose that view upon what the tribunal also found:

- they accepted his phobia of needles and how weak he looked that day.

- they actually went as far as to confirm that they didn't believe he was trying to "evade detection of a banned substance".

- any inconsistency in his testimony was clearly framed in terms of "stress", "impaired faculties", his being "prone to exaggeration" even, but never anything more sinister. Never, that is, except in a resolutely harsh reading of paragraph 33 (which I'd argue it leaves itself open to).

Not everyone will buy this, and that's ok, because even this more sympathetic view of his actions is based upon a 'balance of probabilities' - a judgement call, in other words, not dissimilar to the type of judgement call being made in paragraph 33.

The truth is, we can't ever know that Viktor wasn't being evasive any more than we can know exactly what impression the DCO gave him. Viktor not making any mention of "assurances" in a letter he hastily scrawled at the last minute, labouring, we are told, under a misapprehension, doesn't change any of that.

And that really goes to the heart of the problem. Because this isn't the only place where the reasoning feels less than rigorous: the decision not to require Troicki to forfeit his winnings in events subsequent to the date of the offence, right up to Umag, has proved even more difficult to digest.

Article 10.8 of the Programme provides that “all other competitive results obtained from the date the Sample in question was collected...or other Anti-Doping Rule Violation occurred through to the start of the Ineligibility period shall be Disqualified (with all of the resulting consequences, including forfeiture of any medals, titles, ranking points and Prize Money), unless the Independent tribunal determines that fairness requires otherwise”. The ITF submits that the burden is on Mr Troicki to establish why fairness requires otherwise in the circumstances of his case. Accepting that burden, Mr Troicki argues that it would be unfair to Disqualify him in respect of subsequent events because he was truly convinced that he had not broken the Rules.

While we have not accepted that as a fair summary of the player’s state of mind at the time, we are nonetheless of the view that fairness dictates that Mr Troicki should not suffer any Disqualification beyond the event in question. In reaching that conclusion, we have borne in mind the helpful analysis of the relevant authorities on this point in the case of Bogomolov (an ITF Anti- Doping Tribunal Decision of 18 January 2005). It seems to us that, in circumstances where the Anti-Doping Rule Violation is constituted by a failure or refusal to submit to giving a sample, where there is no suggestion that this failure or refusal was in fact prompted by the player’s desire to evade the detection of a banned substance in his system, where there have been subsequent negative tests (including on the following day) and where the facts of the case warrant some mitigation of sanction under Article 10.5.2 of the Programme, it would be disproportionate to penalise Mr Troicki in respect of his subsequent playing activities. We accept that there is something to be said for the view (advanced by the ITF in argument in Bogomolov) that the Programme is designed to encourage players voluntarily to abstain from competing pending the decision on their case and that Article 10.8 should be read against that background. However, we do not consider that, on the facts of this case, Mr Troicki should be penalised in effect because he chose not to take that voluntary course.

Perhaps the most damning revelation is that that a negative blood test given 24 hours after it was first requested (quite enough time for substances to leave no trace) is being taken as support for there being "no suggestion that this failure or refusal was in fact prompted by the player’s desire to evade the detection of a banned substance in his system".

Despite the very evident disparity between how understanding, congenial even, the tone here appears to be vs. how restrictive and specific things get in the case of paragraph 33, the reasoning in both cases feels similarly ad-hoc. There may be very valid reasons for this - we're not privy to everything, of course - but it's hard to escape a feeling that something's either missing or remiss. Neither instils much confidence.

If we are to have confidence in the testing process, reasoning, both for and against athletes finding themselves in this position, has to be less opaque, demonstrably consistent, and far more robust. We simply can't get to that point if distilled, hygienic, some would say tokenistic, rulings like this continue to trickle intermittently down to us from some magical wormhole up above based largely, it would seem, upon the whim of the authorities.

What are its guiding principles?

What accountability is in place in respect of the conduct of DCOs and other testing officials?

Who does one escalate to in the event of a refused sample?

Are they required to be on the other end of a phone, and if not what are the limits on how long they may take to make themselves available?

Is it standard practice to get the athlete concerned to attempt to contact them with a fax number?

Are just 5 blood tests over a 7 year period considered acceptable?

Are the reasons for this indecently low number purely budgetary? And if so, what precisely needs to happen (besides everything that already has) for that to change? What is scandal tolerance threshold?

Are so-called 'silent bans' solely the province of folklore and conspiracy theorists?

What is the specific protocol for the publicising of an offence?

Should there be such a disparity in the length of various suspensions?

What guidelines are in place to shape understanding of 'mitigation' and 'compelling justification'?

What, if any, is the cut off from the committal of a doping offence to when a suspension formally begins?

I suspect that none of these questions have one-line answers, and it's really quite juvenile to expect every internal procedure to be made public; but the call for more transparency will only continue to get louder and, I'm guessing, more abrasive with each passing month.

Without such transparency, and with the continuing fallout of the Biogenesis affair, it's no longer fanciful to think this smacks of more worrying systemic failures within the heart of the testing process.

It's a tad heavy-handed to call it a 'heart of darkness' just yet. But, of course, all that depends on how much opacity we are prepared to tolerate.

(Photo: Fox Sports Asia, AP)
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