Tuesday, January 16, 2007

The AFLD Proceeding

Correspondent Marc has looked into the AFLD proceeding in France, thinking about attending on our behalf. He forwards the following research, with some editing and arranging at TBV World HQ. Where errors are made, they are probably TBV's.

By Marc and TBV

Based on research today, it appears Team Floyd could request an an open hearing in France, based on a rule discussed below -- but, the AFLD is not required to grant the request. We also learn the jursidiction under which the proceeding is being carried forward. And there's plenty we don't understand.

[MORE]

(1) From AFLD's website we got a copy of the official rules for disciplinary hearings. We'll call it the "Décret." Like most official bodies, the specific laws that created it are all over the map, and so are its rules of procedure. There is another document called the "Code du sport" from the website of its predecessor organization, CPLD (Conseil pout la lutte antidoping--the Anti-doping Council). There was an organizational shuffle in October that brought LNDD under AFLD, and CPLD is no more.

(2) Except for the AFLD official rules, the more interesting site for the time being is that of the CPLD, which remains live. When you get there, choose "Telechargement" at left then "Les décisions disciplinaires," then scroll to bottom and click on:

"Tableau récapitulatif des décisions disciplinaires rendues par le Conseil de prévention et de lutte contre le dopage depuis mai 2000"

What you get is a summary of all the decisions they have made from 2001 to Sept 2006, along with their case numbers (year+number). There were around 9 testosterone cases, of which 4 were in Cycling. None was contested; all were in closed hearings. Once you have got the case number from this summary table, you can find the actual letter written to the guilty party (but without his/her name) in the long list above.

After you've played with that a bit, choose "Divers" (under Telechargement), then "Bilan des contrôles antidopage effectués lors du Tour de France 2002" and "Bilan des contrôles antidopage effectués lors du Tour de France 2003"

There were (no surprise) no testosterone cases at all in those two Tours.

(3) Now, from the AFLD's site and the two sets of official disciplinary rules, we found three interesting things.

(a) The only reason the AFLD has been able to move against FL is that the USADA did not come to a primary decision within 10 weeks (or an appeals decision within 4 months) of the supposed infraction. Right of first decision lies with the national federations, but AFLD's mandate from the French government allows it to move after those deadlines. Whether we should say the fault lies with the USADA or with FL's own lawyers' motions, is hard to say -- if Landis had taken a sanction, it would all be over, but that is not defending. Relevant text from the AFLD's website,
[The AFLD] est compétente [to intervene] dans quatre cas différents :

1° du L.232-22 : lorsque le sportif contrôlé n’est pas licencié en France, par exemple dans le cadre d’une compétition nationale open, ou dans le cadre d’un contrôle de l’AFLD réalisé hors compétition sur un sportif licencié à l’étranger ;

2° du L.232-22 : lorsque la fédération agréée ne s’est pas prononcée dans les délais prévus par la loi (10 semaines pour l’organe disciplinaire fédéral de première instance, 4 mois pour l’organe fédéral d’appel) ;

3° du L.232-22 : lorsque le collège de l’Agence estime utile de réformer la décision prise dans les délais par la fédération compétente ;

4° du L.232-22 : à la demande d’une fédération, ou de sa propre initiative, pour étendre une sanction de suspension à d’autres fédérations que celle ayant prononcé la sanction originelle.

Paragraph 2 is the key one:
"[The AFLD is competent to intervene in four different cases: ]. . . 2nd, from L. 232-22: when the authoritative federation does not render a decision within the deadline established by law (10 weeks for the federal disciplinary body of the first instance, 4 months for the federal appellate body)."

And here's another little worrying line from that same web page:
La saisine de l’AFLD est suspensive de la sanction prononcée par la fédération.

"The admission of the case to AFLD jurisdiction is suspensive of a sanction pronounced by the federation."

Does that mean that in fact this AFLD hearing will be the only one FL will get? No, probably not, since everyone wants him to be suspended and to lose the TdF win, and the AFLD admits it doesn't have the authority to do that. So the USADA will have to meet if they want to get that accomplished. Butwe're not clear on what the force of this line is.

(b) Though all of their hearings have been closed, Landis may be allowed to ask for an open hearing. Even if he is allowed to ask, the AFLD is presumably not required to grant the request. From the official rules (the "Décret"), Chapter 2, Article 10 (p. 2), Para 3:
Hearings before the disciplinary bodies are not public, unless a request to the contrary has been made, formulated before the opening of the session, by the interested party or his defender. . . .

and Décret Annex, Chapter 2, Section 1, Article 10 (p. 6):

In the context in the Annex, the "disciplinary bodies" referred to are the bodies "of first instance." But in the first citation, the law is talking specificaly about the AFLD's actions. Moreover, since the AFLD has taken over for the first-instance bodies, we'd argue that even in the Annex the same right to ask for an open hearing passes to them.

(c) We suspect this French law allows Landis an appeal within the French legal system, but that is unclear. From the "Code de sport" (p. 11):
Interested parties [they mean defendants] have full legal rights to file an appeal against decisions made by the AFLD in application of articles L. 232-22 and L. 232-23.
(Maybe.) And from that web page cited earlier:
Les décisions disciplinaires de l’AFLD peuvent faire l’objet par tout intéressé d’un recours de plein contentieux devant le Conseil d’Etat, dans le délai de deux mois après leur notification.

"Any interested party can make a full legal appeal of AFLD disciplinary decisions to the Council of State within two months of their notification."

So, should AFLD decide to bar Landis from competition in France, there is recourse.

We haven't heard if Landis has asked for an open hearing on the 8th, or if such a request has been granted. Heck, we don't even know if Landis knows he can ask. We'd think if they were really facing a hearing that could lead to a ban, they'd be beating some drums, but it has all been quiet and matter-of-fact.

Could this all be sturm und drang leading to a consolidation or continuance of some sort?

[end]

2 comments:

William Schart said...

"The admission of the case to AFLD jurisdiction is suspensive of a sanction pronounced by the federation."

Perhaps ths means that, even if the USADA and/or CAS decide in Landis' favor, AFLD can still ban him in France?

tbv@trustbut.com said...

Everybody has been saying that AFLD could prohibit him from competing in France, independant of UCI/USADA/CAS findings. The quote seems to us to support that view.

As we note, there does appear to be recourse for appeal should that happen.

TBV