Tuesday, March 27, 2007

Judging Floyd, Part III

Hearing Overview

In Part III, we give an overview of the hearing process, discussing what the parties must provide beforehand, who participates and observes, how the arbiters evaluate materials, controlling law, burden of proof and presumptions; the form of a decision, and the nature of an appeal. This is introductory material and will be expanded in later parts of the series as we come upon events.

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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"

Starting the Hearing Process

The Procedures require that the Landis hearing take place in the United States. The parties and arbiters agreed to hold the hearing at Pepperdine University in Malibu, California on May 14, 2007. USADA may invite the International Federation and WADA (World Anti-Doping Association) to participate either as a party or as an observer. Neither of these entities has been designated a party but we assume they will observe the proceedings. Landis may invite the Athlete Ombudsman to observe; we don’t know if he has done so. If Landis had not exercised his sole right to a “hearing open to the public”, only these entities would have been participants/observers in the hearing process.

As we know, Landis did request a “hearing open to the public”, and there has been some question as to what that means, exactly. Although the Supplementary Procedures define many terms, “hearing open to the public” is not one of them. They explicitly leave that definition to the discretion of the Panel by permitting the Panel to impose “limitations” (unencumbered by reasonableness or other criteria) on that right. Current speculation anticipates that 500 or more people may attend this hearing. The logistics alone will require the Panel to institute some control over the proceedings.

The United States Olympic Committee will pay the costs of using the facility and other costs associated with the administration of the case. The Panel will be paid for “study days” as well as attendance at hearing and for the deliberation and preparation of their decision. Full time AAA arbitrators earn a sliding scale of $115,000 to $150,000 per year and part time arbitrators receive a percentage of the amount in dispute in commercial cases or set their own fees paid by the parties, equally. CAS-AAA arbitrators are not full time and their fees and costs (lodging, transportation, some supplies and meals) are also paid for by the United States Olympic Committee and not by USADA or the athlete. We do not know what these three arbiters are charging for their services, but we can guess that their fees are significant, given the scale mentioned above.

You may wonder how three human beings, even those as knowledgeable as the three arbiters in this case are (as highlighted in Part 2 of this series), manage to wade through the bulk of highly technical laboratory analysis and other written materials in an expeditious manner. Of course, as pointed out above, the arbiters are paid for “study” time. We don’t know if the arbiters are receiving any additional staffing help, or have any staff at all, as the Supplementary Procedures are silent on this topic. Lacking such resources, the panel may be on its own, making it more difficult to address complicated technical issues.

Should the case be appealed, CAS Appellate Division arbitrators have CAS employed clerks to brief and summarize the complicated issues for them. Speaking from experience, it is very nice to have the help of a clerk, to compile, summarize and synthesize material.

Preliminaries

Both sides are required to submit their positions to the panel in writing. USADA started first, by submitting a statement of its claim, the written evidence (including testing results) that it will rely upon at hearing and a list of witnesses and experts it will call. Landis responded to the claim, denying the premise that he doped. Some athletes do not deny this, but seek to shorten their suspensions for the few allowable reasons permitted for such argument. Landis was also required to submit the written evidence he would rely upon and list the expert and lay witnesses he intends to present at trial.

We know that each party made requests for discovery as we indicated and identified in Part 2 of this series. Pending resolution of the discovery issues and completion of the process, no party will be able to fully and completely disclose all written submissions and witnesses each will rely upon. The system contemplates this -- there is a further requirement that each party respond to the other’s submissions. That requirement likely remains in process pending completion of discovery, under the authority and discretion of the arbiters to alter the proceedings as the circumstances warrant as long as each party is treated equally and has a fair opportunity to present its case. The management and control of the proceedings are left to the good judgment of the Panel.

Under the CAS-AAA Supplementary Procedures, there is no time limit for completing the arbitration process and that is what we are seeing in the Landis case. While the Panel has authority to “expedite” procedures where doing so protects the athlete’s right to a fair hearing, a fair hearing in this case has apparently required significant delay.

What Law Applies?

One of the procedural questions that must be resolved is what rules are used when there is ambiguity in the Supplementary Procedures. This is called “controlling law”, and there are choices to be made as to what law applies when the Procedures do not speak to the issue.

The Supplementary Procedures of CAS-AAA govern procedure and substance in the Landis hearing. During the hearing, the substantive rules governing the question of whether a doping offense has occurred is governed by the WADA Code. These rules leave much to the good discretion of the Panel, and the Supplementary Procedures do not specify domestic or national law to fill any gaps. This is different than the CAS Code, which designates Swiss law to govern its arbitration procedures.

Nevertheless, we have heard that the issue of controlling law is the topic of pre-hearing motions and discussion, and has not been resolved as we write. For reasons unclear, there is the suggestion that USADA is arguing for the application of Swiss law.

But, Floyd Landis isn’t a Swiss citizen and this hearing is being instigated by a US agency on US soil. Without going into extensive examination of this subject, we believe that the United States Constitution forbids application of Swiss law in this proceeding, and that United States law is appropriate to fill in gaps in procedure and substance. Neither Landis nor any other United States athlete bargained in some equal position to choose the laws of Switzerland to govern his case so the selection of Swiss laws, in our opinion, under these circumstances, likely violates public policy as well.

While the forgoing discussion might seem fairly academic, the distinction might become important in the Landis case for example, in the resolution of the meaning of the term “metabolite(s)” as used in the WADA code. How the Panel interprets that term will depend on the controlling law because the Code does not define it. In the ADRB Filing, Jacobs urges the Panel to resolve that issue by using rules of construction found in US law and published precedent. Those rules, if used to “fill in the blanks” require that once a term is determined to be ambiguous then the phrase should be read to favor the party that did not write it, in this case Landis, arguing for the “all” metabolites argument. Believe it or not, Swiss law or some other law may deal with the issue in an entirely different if not diametrically opposite manner.

Another practical example of where the selection of laws might become important is the standard the Panel adopts in evaluating the testimony of experts. CAS-AAA panels have often been unable to resolve conflicts in the opinion of experts in cases such as Landaluze and Hamilton. At some point, a Panel will find itself obligated to do that and in so doing, will establish a law to apply and thereby a standard adopted by that law to resolve that issue and others as well.

In previous CAS-AAA proceedings, Christopher Campbell is the only arbiter that has cited United States law on substantive issues, in the Ina and Neben cases. It is also interesting that in those and other cases the Panels are starting to cite other Panels’ rulings as precedent (also known as “case law”), even though they are not bound by precedent as in normal court practice.

This is important because, as a practical matter, issues such as what substantive law applies to fill gaps might be resolved for the first time by a single Panel and then that decision would then be honored by future Panels in other cases. The wheel would then not have to be reinvented on a case-by-case basis.


Moreover, if no back up domestic law is designated and no domestic law adopted, then the personal notions and experience of each panel member as to substantive matters, even those of fairness and due process will become a wholly ad hoc and therefore unpredictable determination.

Thus, it will interesting to see whether this Panel will use the law of the United States or Switzerland or some other law or decide all issues ad hoc, based upon their own experience or finds some other back up law such as the Federal Arbitration Act to supplement the “Supplementary Procedures”. The selection of the individual arbiters plays an important role in the way in which such issues will be resolved in this case, if they arise.

Hearing Process

Patrice Brunet as Chair of the Panel will preside over the hearing. We don’t know if he’ll have an actual gavel, but he will be the one who opens and closes proceedings.

In a CAS-AAA proceeding, the standard rules of courtroom evidence do not apply. This is important because the procedure will be much less formal and indeed less “technical”. Each side should be able to get its case in and its points across without much difficulty. A more relaxed set of procedural rules is in force. The Panel has much discretion as it relates to the presentation of evidence. The rules say
  • Evidence presented at hearing must be relevant to the submissions presented pre-hearing. The completeness and accuracy of the pre-hearing submissions are very important as they establish the foundation of all evidence at hearing.
  • Testimony must be concise and relevant, and may the scope may be narrowed to relevant topics, or ruled out of order.
  • Witnesses are “invited” to tell the truth under penalty of perjury.

Like a court in the United States, the Panel is permitted to call its own witnesses, order the production of documents or hire experts to evaluate the evidence according to its own needs.

In many published CAS-AAA cases, the parties were permitted to make opening statements and closing arguments. It further appears that much of the material submitted pre-hearing is accepted into evidence at hearing. This serves to expedite matters considerably.


Burden of Proof and Burden Shifts

The Supplemental Procedures assigns the burden of establishing that the anti-doping rule violation has occurred to USADA to “the comfortable satisfaction” of the Panel bearing in mind the seriousness of the allegation that has been made.

This burden is less than proof beyond a reasonable doubt in a criminal case, and is greater than a mere balance of probability. It is most like the “middle burden” in U.S. law of “clear and convincing” evidence. On the surface, this doesn’t sound too bad for the athlete.

However, important elements are caught up in rules that are less friendly to a defense.

The transportation, custody and testing of an athlete’s sample is presumed to be properly performed and performed according to prevailing scientific standards. The Supplementary Procedures explicitly state that WADA accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for laboratory analysis. The Supplementary Procedures define International Standards as a standard adopted by WADA in support of the code. It notes further that compliance to the WADA standard, as opposed to another alternative standard, practice or procedure, is sufficient to conclude that the procedures addressed by the WADA standards were properly performed. That is, the lab need not perform to some national standard, or to, for example, the WADA-predecessor IOC requirements.

It is therefore a given that the arbiters must comply with these explicit anti-doping provisions designed to give validity to WADA approved scientific procedures and tests as a matter of policy. Simplified, by rule, the athlete doesn’t get to question the validity of the system, or the validity of the essential test protocol. That is, walking into the hearing, the athlete is, in fact, presumed guilty by the positive test results

The athlete may rebut the presumption by establishing part of the ISL was violated and that the violation is enough to call into question the correctness of the analytical result. To do this, the athlete must present evidence that demonstrates these things by a “balance of probability” (more likely then not) test.

One example of this in the Landis case is the issue of whiteout on a summary sheet. If Landis shows that this occurred, he would also have to prove by a balance of probability that the whiteout calls into question the results. This may or may not be enough of a violation to shift the burden to shift the burden back to USADA. No one could seriously argue that a whiteout significantly calls into question results when that is all there is to it. But, couple the whiteout with another rider’s similar number from a different stage, tested in the same lab at the same time and Landis might have enough if the facts warrant, calling into question the results. Or he might not, depending on how the Panel sees and interprets the issue. If the Panel determines the whiteout issue calls into question the test’s results by a balance of the probabilities, then the burden shifts back again to USADA to prove that the testing departure did not cause the adverse analytical finding, presumably by showing that the sample was, in fact, Landis’ to the Panel’s “comfortable satisfaction”.

Another example is the issue of whether the same analyst “tested” both the “A” and “B” samples. In Landaluze, the Panel determined the deviation to be so significant that “as a matter of law” the test result could not be relied upon to be correct. Presumably, somewhere in between actually performing the analysis of both samples by a single technician and having each sample entirely analyzed by two different technicians is a single technician’s involvement in some aspect of both tests. Assuming that involvement is not enough to invalidate the test completely but calls into question the test’s results by a balance of probability, then the burden shifts again USADA to prove to the Panel by a “comfortable satisfaction” standard that the testing departure did not cause the adverse analytical finding.

The final issue we wish to comment on as it relates to this burden shifting issue in the Landis case is whether exogenous testosterone exists in his samples. On that issue, Robert Mionske, at Velonews observes:

At a high enough ratio, an endogenous substance like testosterone is presumed to be exogenous. In order to rebut this presumption, the rider must prove that the prohibited substance is attributable to a physiological or pathological condition. However, if "based on any reliable analytical method (e.g. IRMS), the laboratory can show that the prohibited substance is of exogenous origin" the Sample will be deemed to contain a prohibited substance. The rider must then rebut the presumption that the sample analysis and custodial procedures were conducted in accordance with WADA's International Standard for Laboratory Analysis. If the rider rebuts this presumption, the UCI or the National Federation then have the burden to establish that the proven departure from the International Standard did not cause the adverse analytical finding.”

In Mionske’s example above, the burden shifted 4 separate times after the initial premise was offered. To observe the area is complicated barely glosses the surface! There are no answers when in something seemingly so simple as the example, the burden shifts four times. That is kind of silly, and not much of a system. Here's how you might solve it: leave the comfortable satisfaction standard to be proven by USADA, don't mess around with burden shifts and decide at the end of it all. The thing about burden shifts that benefits a fact finder is the ability to just call it off after any of the 5 turns (in the Mionski example) and hear no more.

It seems difficult to believe the Panel will be inclined to accept questions about whether the WADA approved test process achieves a reliable result. The Supplementary Procedures seem to exclude challenging the test itself once WADA adopts it, and this is where Tyler Hamilton found his Panel to be particularly unresponsive except for Campbell, who is on this Panel, as well.

In particular, we do not have any idea how the panel will react to the suggestion that variance in positivity criteria between labs is a violation of the ISL sufficient to call the results in question. Are positivity criteria part of the WADA test protocol that may not be questioned, or part of the test execution that may be challenged? If positivity criteria are part of the individual lab’s implementation of the protocol, will the Panel allow Landis to attempt to rebut the presumption that this lab’s interpretation of the standard is correct?

Many other issues have come to light in the Landis case concerning alleged deviations from the International Standards and we will cover some of these in detail in future Parts of this series.

The Decision

The Panel’s decision is by majority vote. The decision must be written, and the Panel is required to state its reasoning. Should it conclude a violation has occurred; the Panel has the additional important task of setting forth the sanction. The decision must be made public, unless the parties agree otherwise, but only some decisions are actually published. Our difficulty in finding copies of some decisions has been amply demonstrated in the 2nd part of this series, for example.


Appeal

The Panel’s final decision remains in effect even if an appeal is requested. Such an appeal is to CAS, and may be made by any party to the CAS-AAA case. Do the observers, WADA and the International Federation have the right to appeal as well? That is an interesting question as typically, only those with standing, parties, have the right to appeal. Observers are not parties but WADA in particular, may have a right to appeal. So, should Landis prevail and USADA lose its will, WADA may take over the prosecution of the appeal. The hearing of an appeal shall take place in the United States. The appeal Panel will hear the arguments and evidence de novo, meaning it is able to revisit everything as if it were a fresh case, essentially being another trial.

The Appeal Panel may increase decrease or void the sanctions imposed by the CAS-AAA Panel, and regular CAS rules under Swiss law apply. A second prosecution kick, under Swiss law, may await Mr. Landis should he prevail. It isn’t going to be over even with a victory and as pointed out above, a change in the recognition of underlying law may compel a completely different result.


Next time: Part IV, Looking at the first Interlocutory Award.

Previously, Part I and Part II.


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

3 comments:

swimyouidiot said...

Thank you both for the clear, concise work!

Anonymous said...

Great article.

I'm a bit confused that you say that the appeal process "shall take place in the United States", but CAS rules under Swiss law apply.

Earlier in the article, you mentioned that the application of Swiss laws to a matter on US soil, and to a US citizen would violate public policy, and be constitutionally forbidden.........

Is it because a non-US agency (WADA) would be instigating the appeal process? Does the fact that the WADA headquarters are in Montreal affect anything?

(the Canuckian Charter of Rights is a pretty kick ass document)

-jellotrip

tbv@trustbut.com said...

JT,

I think it's that the CAS rules say swiss law, so it's part of the procedure, and "contractually agreed to"

Under the AAA process, they don't specify law, which is why the discussion point comes up. If the AAA rules or the supplement said something, then it would be decided, but they don't, so we get to argue about it.

TBV