Wednesday, August 23, 2006

Burden of Proof Problems

Possibly definitive article about burden of proof in CAS cases, by Lauri Tarasti, Justice of the Supreme Administrative Court of Finland and Member of the Sport and Law Commission of the IOC. The quick summary is, if there are any tests that say you have something bad in them, you are toast. You don't get to challenge the test, and nothing can mitigate. It's not clear to me how you would have an angle to show the test is a flawed methodology, or that the inferred result is incorrect. Let's say it isn't promising.

In a conversation I had on Usenet (link), Simon Brooke shuts me down by saying,

But as the CAS ruling is, as you point out, inevitable, it /is/ over. The only thing still in question is whether it drags out for two years and bankrupts Landis, or whether he 'fesses up tomorrow and takes hismedicine, and gets to keep his house and maybe a bike or two.
Depressing thought. Now, when I'd said a CAS appeal was inevitable, I meant that there certainly would be one. Brooke had carried that one step further, inferring the result is a foregone conclusion because of the way the process is stacked. Based on the cases described in Tarasti's article, you can certainly draw that conclusion.

You can back up and suggest then that the issues should be addressed at the time of the national federation process, before it gets to CAS. This probably doesn't hurt, but the UCI and WADA can themselves appeal to CAS, and they process seems to get to the same result.

In another part of the same thread, I wondered whether the pre/post samples were available for additional testing. There has been no information offerered on that one way or the other.
If they are available, Photoshopper advises:
For a few thousand bucks, Floyd could probably have those other "non-adverse" samples tested for exogenous testosterone. With the crappy way the rules are written (see, I acknowledge the flaws), it probably still won't prevent him from being suspended, but he'd at least be able to show the world that he was likely seriously wronged. His case would be better served by his publicly calling for that as opposed to him offering yet another excuse.
Not encouraging.