Ethics Newsline®

Please Note: The next issue of Ethics Newsline™ will be published on Tuesday, August 15.

What can we learn from the story of Floyd Landis?

At first, the American cyclist’s tale was a romance. Last month, when he won the Tour de France after a blistering comeback performance, he was everyone’s darling. Making up nearly eight minutes in a single day of riding through alpine passes after all but collapsing the day before, he finally overtook the leader despite the pain of degenerative arthritis in his hip. His was the stuff of legend, material for the next no-guts-no-glory Hollywood extravaganza. The sports press effervesced with wonder.

Now, following reports of illegal drug use, his is a tale of tragedy — the fall of a great figure from a high place. Laboratory drug tests confirmed extraordinary levels of testosterone in his urine samples, as well as evidence of a synthetic form of testosterone that his body could not have manufactured. In response, his Swiss team, Phonak, announced that Landis “will be dismissed without notice for violating the team’s internal Code of Ethics.” Tour de France officials suggested that the number-two finisher, Oscar Pereiro of Spain, would be declared the champion. The sports press salivated with indignation.

What are we to make, however, of the fact that his tale isn’t finished? Moral judgment ought not to spring to conclusions; it should await the facts. Landis, asserting his innocence and sending in his lawyers, has declared, “I will fight these charges with the same determination and intensity that I bring to my training and racing. It is now my goal to clear my name and restore what I worked so hard to achieve.”

Under international cycling’s disciplinary procedures, that restoration could take months, perhaps years. Must we wait — perhaps beyond next year’s Tour de France — before knowing who won in 2006? Since the issue is still being deliberated, Landis could still be exonerated. So did Phonak act unethically in firing him, or the Tour by suggesting that his title could be revoked? Are commentators wrong to use this latest embarrassment as a launching pad for diatribes against the Tour, which earlier this summer had to disqualify nine riders for alleged connections to a doping ring in Spain? Are we watching an unconscionable rush to judgment or a well-deserved blast of moral outrage?

The dilemma reaches far beyond cycling. As the opportunities for unethical athletic competition increase with the introduction of harder-to-identify drugs, more sophisticated drug rings, and an apparent decline of intolerance among some hard-driving athletes for an anything-goes culture, how are we to come to judgment? We know that justice delayed is justice denied, so something within us craves a decision-making process that is quick and sure. But we also know that the accused are innocent until proved guilty, so something also yearns to honor due process.

Which of these principles should be ascendant? Think where each one leads. Carried to its logical extreme, a due-process argument theoretically could be applied to any call made by any referee in any sport. Absurd, you say? Not at all, especially if lawyers could make the case that the call in question might have made the difference between winning or losing a massive purse or a multimillion-dollar contract. The result, in an increasingly litigious age, is not difficult to imagine. Suppose, from now on, the public is never to know the winner of any Tour de France until months later when the lawsuits have been settled. Now carry that into baseball, football, and basketball, where no one knows the outcome of any game until a committee has sifted all the evidence. At that point, sports becomes exasperating and inconclusive, and fans find other things to do.

So what if the principle instead is, “No recourse.” That, in fact, is the way sports is commonly played. The referee’s word stands. There’s little chance to challenge calls that players see as unfair. Hardly any due process is afforded. While the public isn’t thoroughly comfortable with that tradition, especially given the availability of instant replays to reexamine controversial calls, there’s general comfort with the theory that skilled referees must have the right to “call ‘em as they see ‘em.” Most school-age players sign on to that tradition, and many coaches insist that honoring the ref is a hallmark of sportsmanship.

Does this tradition provide a basis for redeeming the Tour de France? What if the referee’s prerogative were extended to the laboratory testing that, unfortunately, has become so necessary? What if competitors had to agree up front that independent lab technicians also could “call ‘em as they see ‘em,” deliver quick results, and have those results considered final? What if the right to win were contingent upon first giving up the right to due process when it came to drug testing?

In an age struggling to expand global democracy and the rule of law, that may seem an odd suggestion. But ask yourself this: Why would competitors refuse to give up that right unless they intended to use drugs? It’s not an ideal solution, but it’s probably better than justice agonizingly delayed.

©2006 Institute for Global Ethics

“We weren’t systematically prepared to do the kind of contracting necessary at the time of the invasion. That’s the cold reality…. They were just operating under their own regulations that they wrote up. It was ad hoc. And that’s why people described it as the Wild West.”

– Stuart W. Bowen, Jr., special inspector general for Iraq reconstruction, discussing the confusion and corruption surrounding the government’s contracting process for rebuilding Iraq after the U.S. invasion. Bowen’s office released a report last week warning that the reconstruction effort, which is being handed over to the Iraqis, is mired in mismanagement and failed efforts. “Bowen’s office has referred 25 cases of suspected criminal behavior to the Justice Department, and it has 82 more open investigations into alleged fraud, corruption, bribery, kickbacks or gratuities,” reported the Washington Post.

“This story is a very disappointing one. Everywhere you look, goals have not been achieved. I don’t think we can ever get back the billions of dollars that have been lost to poor planning, outright fraud and corruption,” said Sen. Susan Collins (R-Maine), who held a hearing on the reconstruction last week, according to the Post.

WASHINGTON
Boeing’s CEO appeared before Congress last week and told lawmakers that he intends to build “one of the most robust ethics and compliance programs in corporate America,” a declaration that comes after a series of scandals that resulted in the firm paying $615 million to settle civil and criminal probes.

The Reuters news agency reported that James McNerney took full responsibility for the actions of Boeing employees and said the firm would not deduct the settlement charges from its taxes.

Boeing admitted that it hired a former Air Force procurement official who improperly steered government contracts to the firm, and that in a separate incident midlevel employees stole proprietary pricing information from rival Lockheed Martin.

McNerney said Boeing has introduced a rigorous ethics code and vowed that ethics will be “woven into the fabric” of the giant aerospace firm, which employs about 155,000 people, according to a report from the Associated Press.

But even as McNerney was detailing Boeing’s reforms, it was revealed that another investigation of the firm is under way, according to the Washington Post. Under questioning by Armed Services Committee member Sen. John McCain (R-Ariz.), a government official said there is an ongoing probe of whether Boeing improperly hired another high-ranking Air Force official.

McNerney did not comment on the particulars of the case, declining to name the official, but he did say the person in question no longer worked at Boeing, according to the Post report.

The Chicago Tribune reported that sources close to the probe say the individual was a former general who went to work for Boeing as a lobbyist. According to the Tribune, the current probe centers on whether the general violated a federally mandated one-year “cooling off” period before a former government employee can lobby the government agencies he or she left.

NEW YORK
Unethical corporate managers erode worker productivity, drive away employees, and damage recruiting efforts, according to a new survey.

LRN, a California-based firm that works with corporations on ethics issues, said the survey showed ethics is a growing concern among U.S. workers, and that about three quarters of respondents would work for less money to join a company that had good ethical practices, the Associated Press reported.

More than a third of respondents said they had left a job because of ethical issues with managers or fellow employees, according to a summary in the St. Paul Pioneer-Press.

Other key findings citied by LRN’s survey:

• A majority of workers — 94 percent — say it is “critical” or “important” that the company they work for is ethical.
• 21 percent cite pressure to engage in illegal activity as a reason for leaving a prior job.
• 56 percent of U.S. workers define their current company as having an ethical culture. But one in four say that in the past six months they witnessed unethical, and even illegal, behavior where they work.

The survey questioned 834 employees at firms across the United States

LOS ANGELES
Merck won another round in its continuing series of court battles over the now-withdrawn arthritis drug Vioxx, with the victory underscoring the drug company’s strategy of refusing to enter into a blanket settlement with people who say they were sickened by the medicine.

A California jury last week rejected a man’s claim that the drug was responsible for his heart attack, the Agence France-Presse reported, accepting Merck’s argument that the attack was caused by a pre-existing condition.

Merck pulled Vioxx from the market in 2004 after a clinical study showed that the drug was linked to higher rates of heart attack and stroke in people who took it for longer than 18 months. Since then, Merck has won five cases involving Vioxx and lost three, Forbes reported, with a ninth case now in a New Orleans federal court.

According to the New York Times, Merck still faces about 14,000 suits that have been filed but not yet reached trial. Merck has adopted a strategy of contesting each claim, a move that apparently has discouraged some from filling suit.

CNN reported that the strategy appears to be working. “I think they’re doing the right thing, at least from a cost-benefit point of view,” Bryan Liang, professor of health law studies at California Western School of Law, told CNN. “Eventually they’re going to wear people down. If they continue to get more wins, I think that some plaintiffs are going to say ‘this is too much’ and they’re going to start dropping these cases.”

While some contend that the strategy will make it difficult or impossible for some with legitimate claims to collect damages, others defend the aggressive stance as the proper legal and ethical course of action.

“The plaintiffs are failing in the effort to extort money from Merck,” Michael Krensavage, a drug industry analyst at Raymond James, told the New York Times. “The plaintiffs are just trying to get a quick buck out of Merck, and I think they’ll go chase another ambulance once they figure out that Merck’s not paying.”

LONDON
Volunteers for a disastrous British experimental drug trial have been told they are likely to suffer early deaths as a result of the tests, a scenario that may be discouraging the public from volunteering for any type of medical research.

The Times of London reported that one victim has been told he shows early signs of lymphatic cancer and others are likely to develop incurable auto-immune diseases.

They were paid the equivalent of $3,800 to volunteer for tests of a drug called TGN1412, and were told by doctors that they would not face life-threatening risks from the tests, according to the Times. But they soon began developing serious heart, liver, and kidney disorders.

The Scotsman newspaper reported that the lawyer for four of the men said they were considering legal action against Parexel, the firm that ran the trial.

Parexel has denied any responsibility for their condition.

According to a report from the Manchester Evening News, doctors believe that fears related to the tragic tests are driving volunteers away from important studies. In one case, tests of a promising new breast cancer drug at a Manchester hospital have been slowed because 600 volunteers are needed, but only 100 have stepped forward.

“No woman has ever said that she is not taking part because of the trials that went wrong, but this sort of thing goes on in the subconscious and it may tip the scales against going on the trial,” Dr. Tony Howell, professor of cancer prevention at Wythenshawe Hospital, told the News.

In a related story, researchers in London and Leeds are arguing that some ethics guidelines for medical studies are actually too restrictive, according to the Guardian. Writing in a prominent medical journal, the researchers argued that well-intentioned National Health System laws put into place following a scandal in which body parts were improperly retained by a Liverpool hospital have backfired.

Most troubling, they argue, is an opt-in procedure that permits researchers to ask a patient to participate in a clinical trial only if that patent previously has expressed willingness to participate in research during conversations with their personal physicians.

They also complain about excessive paperwork, including a 64-page ethics committee report that takes about 40 hours to fill in, the Guardian reported.

Special to Ethics Newsline™ from Adrian Allen

WASHINGTON
Last week’s announcement by the Food and Drug Administration (FDA) that it would take steps to make emergency contraception available without a prescription did little to sway senators who have prevented the confirmation of the agency’s commissioner.

The surprise announcement by FDA acting commissioner Andrew von Eschenbach prompted criticism that he was furthering the politicization of the agency, reported the Washington Post.

The emergency contraceptive pill, called Plan B and produced by Barr Pharmaceuticals, is currently available to women by prescription only.

In 2003, an outside panel of experts commissioned by the FDA recommended that Plan B be made available without a prescription to women of any age, the Tribune reported.

That recommendation was blocked by Bush administration officials due to opposition from conservative and anti-abortion groups, reported the New York Times. Religious conservatives oppose the sale of Plan B without a prescription, fearing that it could promote promiscuity and encourage the sexual exploitation of girls, reported the Chicago Tribune.

Critics have blasted the FDA both for the slow pace of the decision on Plan B and for allegedly caving into political pressure during the approval process for other drugs. Sen. Barbara Mikulski (D-Md.), told the Post that “there is a crisis of confidence at FDA,” and claimed that there is a perception that the Bush administration is imposing ideology over evidence.

Now, with von Eschenbach waiting to be confirmed as FDA head, the agency has proposed making Plan B available to women over the age of 18 without a prescription, according to reports from the Washington Post and the Reuters news agency.

The Senate will not vote on Eschenbach’s confirmation until at least September, noted the Washington Post. The debate over his nomination may be irrelevant if President Bush uses a recess appointment to give him the job this month.

SHANGHAI
In a scenario that has sparked ethical debate between animal lovers and those who say that protecting humans must be the top priority, two Chinese cities are instituting a program of clubbing, electrocuting, or hanging dogs in an effort to control an outbreak of rabies.

The Times of London reported that the heavy-handed culling began last week in a county in southwestern Yunnan province. In one instance, officials approached a woman walking her small white dog, persuaded her to hand over the leash to her pet, and then beat the dog to death while she watched.

State media announced that the dog slaughter will now move to Jining, a city in an eastern province, according to the BBC, which reported that about half a million dogs could be killed.

The killings have been the target of unusually harsh criticism of local government actions. “Killing dogs blindly is not an effective, scientific way to curb rabies, because all warm-blooded animals can possibly carry the rabies virus,” He Yong, from the International Fund for Animal Welfare in Beijing, told China Daily.

Zhang Luping, founder of the Beijing Human and Animal Environmental Education Centre, told the Associated Press that the action was “completely insane…. What’s more, this really damages our national image and sets a really bad example to show how lazy and inconsiderate those local government officials are.”

Government officials insist that little else can be done because rabies has become a serious health problem in China, with more than 600 people dying from the disease last year.

The latest dog cull was sparked by an outbreak in which 16 people, including a child, died from rabies.

MADISON, Wis.
While defending his right to free speech, the University of Wisconsin has warned a controversial faculty member to stop associating the university with his views.

Kevin Barrett claims the 9/11 attacks were orchestrated by the Bush administration in an effort to provoke war. Barrett, who has been interviewed by news media worldwide, has been a lecturer at the University of Wisconsin at Madison since 1997, according to a report from the New York Times, and has taught a variety of courses about Islam, African literature, and other subjects.

His claim has instigated a blistering debate about academic freedom and brought about calls for his removal by some Wisconsin legislators.

“They apparently have no limits to what can be taught in the classroom,” Rep. Steve Nass told the Times. “Barrett has got to go…. It is an embarrassment for the state of Wisconsin. It is an embarrassment for the university.”

But University of Wisconsin provost Patrick Farrell told UPI that he stands behind Barrett’s academic freedom and that the instructor will be teaching a course on Islam at the Madison campus this fall.

“If the situation arises that I don’t have confidence that he can separate his views from what he teaches, I’ll change my decision,” Farrell said.

But the Associated press reported that Farrell also threatened in a letter to change his mind if Barrett continues to use Wisconsin’s imprimatur to seek publicity. “If you continue to identify yourself with UW-Madison in your personal political messages or illustrate an inability to control your interest in publicity for your ideas, I would lose confidence,” he wrote in the letter, which was obtained by the AP.

Barrett’s case is reminiscent of the controversy surrounding Ward Churchill, a professor at the University of Colorado at Boulder who became notorious after an essay he had written comparing 9/11 victims to Nazis was publicized. The Los Angles Times noted that Ward is in the process of being fired after his university scrutinized his works and claimed he committed fraud.

Churchill claims he has been targeted for his political beliefs and plans to sue, according to the Times.

PARIS
Ethics in sports — specifically, controversies over allegations of steroid abuse — figured in three major stories last week:

• Floyd Landis was fired by his team Saturday after a second doping sample came back indicating abnormally high levels of testosterone as well as synthetic testosterone. The Associated Press reported that the Landis was dismissed without notice for violating the Phonak team’s code of ethics, and that Tour de France director Christian Prudhomme said Landis no longer was considered champion, although the International Cycling Union would have to take the formal action necessary to officially strip Landis of the title. Sports Illustrated reported that Landis had claimed his body naturally produces an overabundance of testosterone and that the test results were skewed by dehydration, a claim rejected by anti-doping officials.
• Jacques Rogge, the president of the International Olympic Committee, said he was both disappointed and encouraged by the Landis incident and by a similar case involving U.S. sprinter Justin Gatlin, who faces a lifetime ban from competition after failing a drug test in April. According to a report from the CBC, Rogge claims the positive tests are proof that current drug-policing procedures are working. “Events of recent days are extremely disappointing in many respects, but we should not be totally discouraged by them,” Rogge said. “On the one hand, such revelations make sports lovers feel understandably deceived. On a more positive note, every test that catches cheaters demonstrates that increased testing does have an impact.”
• The U.S. Olympic Committee (USOC) last week permanently banned Gatlin’s coach, Trevor Graham, from all of its training centers and sites, the San Francisco Chronicle reported. USOC chairman Peter Ueberroth said the ban was “based on the unusual number of athletes [Graham] has coached who have been convicted of doping offenses.” Graham coached Gatlin and six other prominent athletes who either tested positive for steroid abuse or had been suspended for doping offenses, according to the Chronicle.

LAS VEGAS
After a torrent of withering criticism over security holes in its software, Microsoft Corp. is turning over a prototype of its next-generation operating system to hackers and other computer experts with instructions to try to break through its security features.

The Associated Press reported that Microsoft took the action after critics claimed that it did not put enough effort into improving its products. The company is trying to convince consumers and industry observers that it has changed.

Microsoft distributed a beta copy of Vista, the latest iteration of Windows, at a gathering of security experts known as the Black Hat conference, and invited them to hack it. Some of the cybersecurity experts are hostile to Microsoft, the AP reported, and are expected to provide a stern test.

The trade journal InformationWeek reported that after one hacker demonstrated a way to penetrate the operating system’s security, a Microsoft official attending the conference said, “This is exactly why we’re here at the conference.”

A report from PC Magazine and ABC news noted that Microsoft also has put some of its severest critics on the payroll, setting up an internal attack force that mounts vigorous attempts to breach the program’s security. The group, known as LSD — for “Last Stage of Delirium” — consists of four expert hackers from Poland who previously castigated the firm for a lax approach to security.

In a related story, Wired magazine last week reported on a group of Internet vigilantes who turn the tables on Nigerian email scam artists — those folks who fill your inbox with convoluted sob stories promising that you will receive a share of a nonexistent fortune if you provide an upfront fee.

The leader of the British vigilantes, who uses the online moniker Shiver Metimbers, ensnares the scammers into performing outlandish tasks — such as posing for embarrassing photos or tattooing the words “Baited by Shiver” on their bodies — in the belief that they will convince Shiver Metimbers to send them the upfront fee.

Shiver regularly posts these photos on his website.

“The threat of jail certainly doesn’t deter these people,” one of Shiver’s accomplices told Wired. “But being humiliated in front of their peers just might cost them some reputation. It’s likely the only punishment most scammers get.”

While some critics cited in the story adopt the Kantian “categorical imperative” view that scamming is scamming and it’s always wrong, supporters note that Nigerian fraudsters steal nearly $200 million a year from those they dupe, and have driven some victims to suicide.

From LRN:

“Whether a company acts ethically is a significant factor in the average American’s willingness to work for an employer, according to independent research released today by LRN, a leading provider of governance, ethics and compliance management applications and services. In fact, more than one in three employed Americans have actually left a job because they disagreed with a company’s business ethics.

“The latest LRN Ethics Study provides new evidence that links a company’s ability to foster an ethical corporate culture with an increased ability to attract, retain and ensure productivity among U.S. employees. Results are based on telephone interviews conducted among a sample of full-time American workers as part of an omnibus survey from Opinion Research Corporation. Findings include:

• “A majority of workers — 94 percent — say it is ‘critical’ or ‘important’ that the company they work for is ethical.
• “Eighty two percent said they would prefer to be paid less but work for a company with ethical business practices than receive higher pay at a company with questionable ethics.
• “…Twenty-one percent cite pressure to engage in illegal activity.
• “Fifty-six percent of U.S. workers define their current company as having an ethical culture. Yet one in four say that in the past six months they witnessed unethical, and even illegal, behavior where they work. Among those, only 11 percent say they were not affected by it.

” ‘Our findings confirm that companies with a commitment to ethical conduct enjoy distinct advantages in the marketplace, including attracting and retaining talent,’ said LRN CEO and chairman Dov Seidman….

“Virtually all Americans want to work for a company that they believe is ethical, with 57 percent saying it is critical, the LRN Ethics Study found….

“Eighty-six percent of Americans employed full-time in professional or managerial positions would prefer to work for an ethical company rather than be paid more, compared with 76 percent of those working in blue collar occupations. Those 35 and older are slightly more likely than younger workers to choose working for an ethical company over more pay, 85 percent versus 76 percent, although clearly both groups prefer working for an ethical business.

“Not only do employees want to work for ethical companies, but the LRN Ethics Study found that employees are willing to leave when they are dissatisfied with their employer’s ethics. More than one-in-three respondents, or 36 percent, said they have left a job because they disagreed with a company’s ethical standards for doing business. This is true of Americans regardless of gender, age or socioeconomic factors….

“The most common ethical reason for leaving a company is disagreement with the ethics of fellow employees, a supervisor or management, according to 80 percent of those surveyed. Moreover, one in five, or 21 percent, of those surveyed felt pressure to engage in illegal activity, a number equal to 8 percent of Americans employed full-time. Other ethics-related reasons for leaving a job include feelings by employees that the company was not acting according to its promises or corporate values, 72 percent, and employees feeling pressure to compromise their own ethical standards, 67 percent.

“A majority of Americans working full time, or 56 percent, say their current employer embraces ethics and corporate values in everything they do….

“Despite the positive overall findings, about half as many, or 30 percent, say their company merely [toes] the line by following the law and company policies. The remaining nine percent, or nearly one in 10 people surveyed, say they either work at a company where they do what they are told and are not encouraged to ask questions about what is right or wrong, or they often see management and peers acting in questionable ways.

“Although the majority of employees think highly of their employer’s ethical business practices, one-fourth of those surveyed, or 25 percent, said that in the past six months they have witnessed a colleague acting unethically (18 percent), illegally (7 percent) or in a harassing or discriminatory manner (14 percent). Cross referencing this data with data from previous questions found among those who left a job because of ethical considerations, 20 percent say they have seen a colleague acting unethically in the past six months, compared with 12 percent of employees who have not left a company due to ethical issues….

” ‘Although the survey results confirm employees care deeply about the ethics of their employers, they also suggest companies have an opportunity to do a better job of making ethics paramount to their culture and business,’ said Seidman. ‘An ethical culture where employees and management use values and not rules to self-govern can only take root when executives, managers, supervisors and employees understand and embrace the company’s principles and values and incorporate them into their daily conduct.’ “

“I am afraid we must make the world honest before we can honestly say to our children that honesty is the best policy.”

George Bernard Shaw (Anglo-Irish author and socialist, 1856-1950)