Judging Floyd, Part I

By the Hon. William Hue and David Brower

Copyright 2007 by William Hue and David Brower. All rights reserved. Reproduction in whole or in part is allowed when accompanied with a clearly legible attribution before the reproduction using the words, “Courtesy of Trust But Verify, http://trustbut.com"

The industrial conglomerate IG Farben synthesized testosterone in the 1940’s. Supporting its patrons, the Nazi government, the first nefarious application was keeping prisoners at Auschwitz working harder and longer day after day, until they could work no more. Later, synthetic testosterone was used to enhance the performance of athletes so that they too, could train and compete longer and harder, day after day.

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When athletes give themselves an unfair competitive advantage by using artificial means, the principals of “fair play” are undermined. Doping became a large challenge facing the sporting world. Sporting authorities developed and instituted compulsory medical testing to detect the presence of substances deemed to subvert fair play.

Professional cyclist Floyd Landis shocked his rivals, the cycling world, and the public by rescuing his 2006 Tour de France championship with his epic and astonishing win at Stage 17 of that race. We were shocked again when Landis’ mandatory post stage urinalysis seemed to reveal an illegal ratio of testosterone to epitestosterone and the illegal presence of exogenous (synthetic) testosterone in his system.

Landis himself seemed shocked by the testing results. After a period of floundering, he gathered himself and his resources to launch his now famous “Wikipedia Defense” to the doping charges.

Landis’ fate will soon be decided in a judicial system created by the Olympic Movement (a body of international sport including the Olympic games and other international competitions like professional cycling). The rules used by the Olympic Movement are applied by a body called the Court of Arbitration for Sport (“CAS”). The process of resolving sports doping cases is an arbitration.

King Solomon was likely the first Arbitrator. Will the Arbitration panel for Landis’ case have Solomon’s wisdom? Will that wisdom require the baby to be cut in half? We’ll know the real answer after the hearing on May 14, 2007, but we should start getting some clues soon with rulings on pre-hearing motions expected shortly.

PRELIMINARY PROCESS

Floyd Landis is a professional cyclist licensed as by USA Cycling, the national governing body for bicycle racing in the in the United States of America. On being informed by the UCI that Landis’ tests indicated rules violations, USA Cycling, in standard practice, transferred the case to the United States Anti-Doping Agency (USADA), the national anti-doping organization for the Olympic movement in the United States.

At that point, per protocol, USADA’s Chief Executive Officer appointed a three person Review Board from a review panel with members serving two-year terms. Landis’ Review Board, like all others, was required to have medical, technical and legal knowledge of anti-doping matters so that it had the expertise to independently review the laboratory documentation and any additional information which USADA deemed appropriate along with Landis’ response. The review panel members are independent from USADA although they are selected by USADA’s Board of Directors and are paid for their services by USADA.

Despite acceptance of a response from the accused athlete, the process before the Review Board is not a "hearing” as most people would understand. It only considers the written submittals and has a limited mandate

Landis’ name was not provided to the Review Board by USADA and his identity was redacted from all documentation. He was allowed to protect his identity by responding anonymously through an Athlete Ombudsman.

Instead, Landis responded directly, and filed a 12 page response urging dismissal on September 11, 2006, calling the anonymity of the process a “charade” as the case was notorious and well known. The response asserted:

• The T/E charge is unsupported by a longitudinal study, required by the reporting protocol, so there is no T/E case to progress;
• The carbon isotope ratio test conducted on Landis’ stage 17 urine samples did not show a positive result according to the WADA protocols

At the time of the filing of the formal response, Landis also made a press release summarizing the points above, but absent much detail present in the filing.

Meeting by teleconference on September 18, 2006, the Review Board unanimously concluded that there “was sufficient evidence of doping to proceed with the adjudication process as set forth in USADA’s Protocol for Olympic Movement Testing”. That determination constituted USADA’s decision to prosecute Landis and set in motion the CAS procedure for adjudicating the issues in the case.

This decision of the Review Board did not include any reasoning, and in particular did not address any of the specifics in the Landis response. It seems incorrect to say they rejected his motion – it probably was not fully considered.

This experience brings to light confusing views about the purpose of the Review Board. Landis had hoped to have his case dismissed at this level, however, his hope seems to have over-reached the possibilities of the procedure at that point. One reading of the charter would hold the Review Board does have the scope to consider such motions on merit. The other view is that the board acts similar to an independent magistrate in U.S. criminal courts, assessing probable cause rather then weighing the merits of each side’s arguments or positions.

In the Landis case, we see the board acted according to the second interpretation, but we do not know if all boards act this way. The review board seems to be a buffer between the USADA and the prosecution of a case. Panels have a doctor, a lawyer, and a technician with knowledge of the anti-doping system. They don’t make policy nor carry it out. They look for probable cause and let the arbitrator judges resolve disputes of fact.

When should they act? Suppose there is an American licensed cyclist named Guido Trenti, and there is an Italian licensed cyclist with the same name. If the Italian’s results were sent to USADA and the American submitted proof of that fact or that the documentation numbers were mixed up, the Review Board could act to dismiss the case. Another way in which the Review board might dismiss a case at this stage might be to resolve a therapeutic use exemption (TUE), though it may have been dealt with previously. The Review Board is supposed to notice things like this and recommend dismissal.

We think that Landis’ motion to dismiss did not seriously dispute the sorts of things the Board is likely to address even in the most limited view of its role: That he was the athlete at issue, that his sample was the one analyzed by the lab, or that the alleged violations were actually prohibited.

Landis’ other arguments were and are legitimate, but they are for the arbitrators to decide, as they can interpret policy and facts. The Review Board probably shouldn’t do that. With that understanding, we think the Review Board should seldom stop a prosecution, because there must be some technical reasons present to justify that action.

This becomes curious when we see that the vast majority of "adverse analytical findings" (AAFs) do NOT leave with a recommendation to proceed. In 2005, the UCLA laboratory reported 528 AAFs, but only 31 became cases with USADA, so there must be some major filtering, somewhere. We do not know the criteria, even statistically, as cases closed at these levels are kept confidential. We don’t know where, or why they vanished. The only “filtering” place mentioned in the protocol is the Review Board, so it’s reasonable to wonder what accounts for the discrepancy.

Given the difference in numbers, it’s hard to blame Landis for trying to have the Review Board dismiss his case. Perhaps it may have done so with a less visible case, but under the actual circumstances, if they had, they would be seen too obviously expanding their role.

As the protocol explicitly says that the Review Board is NOT a hearing, it does not fall under the Commercial-Supplementary Procedure Rules utilized under CAS-AAA for arbitration hearing. Therefore, it did not need to make written findings as required by those rules.

The time and place to consider and respond to argument is at hearing (or trial in a judicial case), by the arbitration tribunal, as a fact finder and also as an arm of policy, whatever they determine policy to be, how they may emphasize policy and however they choose to apply it. For example, the panel selected to hear the Landis case is at least considering ordering additional testing performed on Landis’ “B” samples. To do so they must find some general authority through anti-doping policy or some explicit authority within the written Procedures, which we have been unable to find, thus far. One of the current panel members, Christopher Campbell, has asserted that certain requirements such as peer review and proof of the practical elimination of false positives must be required by the panel in order to find validity in medical testing. That view, to which no other panel member has ever joined, adopts a policy having no prior precedent. The Review Board has no such authority.

After the Review Board did not respond as hoped, Landis seized that moment to counter-attack. He began trying to turn the tide of public opinion, to that point very much against him, by highlighting facts calling into question the legitimacy of the laboratory’s conclusions.

On October 12, Landis publicly released the full Review Board submission, the 370 page Laboratory Documentation Package that had been provided to him, and a slide show attacking the credibility of the results. The slide show contained additional arguments not made in the ADRB submission, identifying other problems, such as mismatched sample numbers and inconsistencies in various numeric results. He also began discussing the case in media interviews, online publicly at the Daily Peloton Forums, and later in person at “Town Hall” meetings under the auspices of a defense fund set up in his behalf.

The war had begun in earnest.

Next time: The arbitrators are selected and the discovery process begins.

THE AUTHORS

William Hue is a Wisconsin State Circuit Court Judge (Branch 2 of the Jefferson County Circuit Court). His views are strictly his own.

David Brower is the publisher of Trust But Verify, http://trustbut.com