Breaking Away

Along with introducing new contributor, John Gilliland, we're trying something new, a fairly detailed look at some specific legal and strategic issues. It's kinda long, and heads towards legal review territory, with footnotes and all, but we think there are some interesting ideas explored. Let us know what you think.

USADA’s options if it decides to drop its case

Copyright © 2007 by David Brower and John E. Gilliland.
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"

If the status quo holds, on 14 May 2007, an American Arbitration Association (AAA) panel will hear the Floyd Landis anti-doping case and will release its decision sometime thereafter. But what if the status quo changes and USADA wants to drop the case? Can it do so at this stage? Further, if USADA drops prosecution¹ of the case, could it change sides and take to Landis’ side if WADA or another party wishes to pursue the case anyway?

We consider two lines of thought. The first is what can happen prior to the AAA hearing. The second is whether USADA could turn against the prosecution of the case, either prior to or after the hearing.

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Can USADA Change Course

USADA is not obligated to pursue a case after notification of an alleged AAA. Once an alleged adverse analytical finding (AAF) is reported to USADA, the governing directives in the USADA Protocol (Protocol) for Olympic Movement Testing require USADA to refer the evidence to a results management anti-doping review board. This board reviews the written information it receives from the applicable lab (in the Landis case) and any written information the athlete provides to the board. The board then recommends that USADA either pursue or not pursue a case against the accused².

The Protocol requires USADA to forward that recommendation to USOC, WADA and any applicable national governing body. However, USADA alone decides whether to close the matter or to pursue a formal finding of an AAF through the arbitration panel process³.

Obviously USADA is moving forward with its case against Landis. However, because of the public nature of Landis’ defense, and particularly because of the public inputs from a variety of sources, USADA has access to much more information than is the norm in anti-doping cases. If, either as a result of this information or for other reasons, USADA determines that there is no basis to continue the case, it is procedurally allowed to do so. The USADA Protocol does not explicitly state this, but fundamental fairness, common sense and American jurisprudence in general support this conclusion.

Additionally, Mr. Tygart alluded to doing so in a 19 April 2007 interview in the Chattanooga Times Free Press. We do not know if this can be done unilaterally by those involved in managing the case, or if it would be necessary to reconvene the ADRB to get a revised recommendation. Nor do we know if a reconvened ADRB would need the same membership, or could have different people than the original ADRB that decided to move forward with the case.

Non-Appeal Options if USADA Changes Course

Should USADA choose to alter course and not pursue an alleged AAF, could WADA pursue it instead? The WADA code and USADA Protocol define an Anti-Doping Organization as an organization responsible for adopting, among other things, enforcement rules. These definitions specifically include WADA. Clearly, then, WADA is an enforcement body. Also, the WADA code and USADA Protocol define a national anti-doping organization (NADO) as the primary enforcement body. The reasonable inference here is that NADOs are not the sole enforcement bodies. This seems to leave the door open for WADA to pursue an AAA case without USADA.

However, section 3e of USADA Protocol states that USADA “shall be responsible for results management” for the category of athlete that includes Landis.⁴ While the USADA Protocol does not explicitly state that USADA is the exclusive enforcement body, a few factors lead to that conclusion. First, USADA puts covered athletes on notice that these are the applicable rules⁵. Second, the Protocol does not indicate that any other agency may take up a case. Third, USOC and WADA are well aware of the contents of the USADA Protocol. If either entity wanted to clarify that another potential other enforcement agency could pursue a case, either party arguably could have done so. These facts and the “shall be responsible for results management” language strongly suggest that WADA may not pick up – at least in the United States – a case that USADA decides to drop.⁶ But we’ve already seen curious things happen in anti-doping legal interpretation due, in part, to an absence of explicit rules.


Where is a Forum for a WADA Hearing?

Assuming, however, that WADA could step into the NADO role and pursue an alleged AAF⁷, we believe it could not do so in the United States. The USADA Protocol mandates the AAA, using its supplementary procedures for doping cases, as USADA’s sole forum.⁸ The procedures also mandate that USADA (vs another party) initiate these proceedings. Finally, the supplement also lists the only potential parties to the hearing. WADA is not one of those potential parties.⁹

Perhaps WADA could intervene in the current French AFLD proceedings against Landis, but we don’t think the AFLD has the power to strip him of his 2006 Tour de France title – a limitation that probably wouldn’t satisfy WADA¹⁰. Also, this intervention – removing an American case to France – would have negative political consequences. WADA’s options at the pre-hearing level, therefore, seem limited. The most likely result of USADA dropping this case before the hearing would be a WADA appeal to CAS. This brings us to our second topic: whether USADA could go from dropping the case to opposing WADA at an initial hearing and/or on appeal.

USADA’s Role if it Changes Course

NADOs and WADA are independent organizations. Various parts of the WADA code make this clear. For example, the Introduction and Models of Best Practice sections acknowledge this independence. Also, the language of Article 13 makes it clear that several parties (including NADOs and/or WADA) are entitled, but not required, to appeal an adverse hearing decision. No party is obligated to appeal. This means a NADO could chose not to appeal a particularly decision but that WADA could chose to appeal.

While the WADA code is unclear in many instances, here it is not. Also, Section 13.3, which deals with therapeutic use exemptions (TUE), explicitly envisions situations in which the NADO and WADA disagree over an issue and take action against each other to protect their positions.¹¹ Clearly, NADOs are allowed to disagree with WADA and formally oppose WADA in legal proceedings. Our conclusion is that USADA could oppose WADA at the initial AAF hearing and/or appeal level.

Significantly, CAS 2006/A/1153 supports this view. In that case the Disciplinary Committee of the Portuguese Football Federation (PFP) prosecuted a doping case and imposed a suspension on the athlete. The athlete then appealed to the Judicial Board of the PFP, which ruled in his favor. WADA then appealed that decision to CAS, and the PFP opposed WADA before CAS, siding with the athlete.¹²

USADA’s Intentions

Of course, whether USADA would drop the case, decline to appeal if it “loses,” or oppose another party that wants to pursue the case is doubtful for several reasons.

A rational reason is that USADA continues to honestly believe Landis’ tests were positive, that any lab errors did not adversely affect the validity of the test results, and the arbitrators made an ill-informed and/or poorly reasoned decision against USADA. While the Landis team has provided a wealth of information regarding these results and the testing process, we have not heard USADA’s side yet. Once USADA shows its hand, perhaps we will be better able to evaluate whether USADA can rationally and legitimately pursue an appeal if it loses.

The following reasons for pursuing the case are irrational, but we should not discount the subtle or not-so-subtle influence they may have on the decision to appeal.

One, institutional inertia: the organizational tendency to continue a course of action, in spite of the constituents’ better judgment, simply because that is the course of action originally chosen. USADA will have expended an enormous effort to convince the arbitration panel that Landis should be sanctioned. It will have been knee-deep in this case for months and could easily suffer from tunnel vision.

Two, USADA’s desire to protect its perfect record¹³. Though the mantra of prosecutors is to seek justice,¹⁴ the reality is that various pressures sometimes cause us to lose sight of this philosophy. If I had a perfect record as a prosecutor (I don’t!), it would be easy for my office to focus too much on that fact and less on our obligation to seek justice. To counter that tendency, my office needs a culture that keeps us hyper-aware of the irrelevance of those statistics to individual cases. It is very easy to develop individual and institutional pride over these kinds of statistics, and for that pride to lead us to believe in the rightness of our positions, despite what the facts say.

As a complication, rightly or wrongly, reputations are made over these kinds of statistics. For example, Travis Tygart’s announced impending promotion to CEO of USADA¹⁵. If the organizational culture places a disproportionate emphasis on these statistics, you can imagine how important it becomes to maintain that record and how it would feel to lose a case for the first time. It is common to not want to be “that guy.” However, attorneys have ethical and other obligations to avoid falling into the statistics trap.

Three, in addition to internal motivations, there is the specter of outside pressure. WADA and/or the United States Olympic Committee have influence. The comments by Mr. Pound have increased the stakes in the Landis case, making a finding against Landis even more critical to USADA. Though publicly WADA would likely downplay USADA’s role in any “loss,” Mr. Pound’s comments make it more than reasonable to assume WADA would privately take USADA to the woodshed if it “loses.”

WADA can use money as a weapon. Section 20.4.6 of the WADA code makes Olympic funding of the NADOs contingent on their conformity with the code.¹⁶ Also, Section 23.4 of the WADA code makes WADA the code compliance monitor. It could certainly use this as a basis to justify ”scrutiny” of USADA if it failed to continue the case against Landis and/or appealed against WADA. Because WADA hasn’t hesitated to flex its muscles in unfair ways, it would be naïve to believe it wouldn’t use the funding weapon to encourage USADA to stay out of the case should it decide not to pursue prosecution on its own.

Remember too that WADA and the Olympic committees have very close working relationships, so WADA could exert pressure on USADA indirectly via the USOC. USADA has a contract with USOC “to conduct drug testing, manage test results, and adjudicate disputes….” ¹⁷ We assume there are provisions by which USOC could terminate that contract¹⁸, which of course threatens not only USADA’s stature, but also its very existence. Finally, the current B sample testing fiasco shows a confluence of interest between LNDD and USADA¹⁹.

The reasons above suggest USADA will not abandon its current position. Additionally, the recent discovery request by USADA’s outside counsel and the tone of Mr. Tygart’s comments to the Daily Peloton and other media²⁰ strongly hint that it is determined not to seek the truth, but instead to defeat Landis and reassert its hegemony. Finally, USADA’s recent behavior at the retesting of his B samples, as reported by the Landis team, are consistent with this conclusion. While the Landis account is clearly biased, the likelihood of gross factual inaccuracy over issues such as access and consultation during testing seem unlikely to be contradicted.

However...

While WADA has substantial influence over USADA, the majority of USADA’s funding comes directly from the US Congress. On this front, Landis has apparently been successful in raising awareness of the inequalities involved in his case and the system, to the extent that USADA is complaining about his efforts, as evidenced by its last request for production. Should USADA wish to drop the case, it could cite Congressional pressure to justify its actions to WADA.

Path to a Flip?

Should USADA conclude the case really is a loser, or a pro-Landis decision is worded properly, it could abandon the case or switch sides. If it plays its political and public relations cards right, it might come out looking like a heroic champion of justice – at least on the national stage, and perhaps on an international level. Such a flip could be a politically deft move, and shore up support in the US, and therefore, its funding.

This would not be easy.

The pressure WADA might exert on USADA to keep the wagons circled might be too much for USADA to resist. Breaking ranks in this very public and extreme way would risk the future working relationships between these organizations, which need each other to execute their missions.

Whether USADA would even consider such a switch would depend greatly on the increased exposure Landis has brought to USADA’s tactics and a rational consideration of the facts in the case. We believe USADA’s most recent production request is an overreaction to an unfamiliar feeling: vulnerability. So dramatic changes are not impossible should USADA unlock its position.


CONCLUSION

The applicable guidance shows that USADA could abandon the case and then side with Landis against WADA both at the initial hearing and/or at an appeal. USADA is clearly not required to appeal an adverse decision by the AAA Panel.

It seems unlikely that USADA would do this, even though fairness may indicate it to be the right course. All the evidence we have so far - public statements by USADA regarding the Landis case²¹, USADA’s apparent refusal to provide required documentation to the Landis defense team in a timely way, USADA’s questionable behavior concerning an open hearing, the bizarre contents of USADA’s most recent discovery request, and its behavior during the retesting of Landis’ B samples - strongly suggests it will maintain its current position to the end.

The only logical conclusion is that, thus far, USADA’s tactics reflect a win-at-all costs mentality, which can make it an irrational actor.

Epilogue

As an indication of irrational decision making, the discovery request of April 3rd raises questions whether USADA and/or its outside counsel may have violated attorney ethics rules. That, however, is a topic for another time.

About the Authors

John Gilliland is an Air Force judge advocate. He has been involved in numerous drug prosecutions involving urinalysis testing. His views are his alone; they do not represent those of any government agency.

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


NOTES

1 Though the word “prosecution” in this context is incorrect because Landis isn’t facing criminal charges, we use it here because of familiarity.

2 USADA Protocol.pdf

3 Id.

4 USADA Protocol.pdf, sections 2a, d, and/or e.

5 http://www.usada.org/files/active/athletes/athlete_handbook.pdf, pps 30-31.

6 Conceivably WADA could pursue a fraud or similar case in the US courts, but that would set a precedent that would likely work against WADA by opening the door to athletes initiating actions in the US court system.

7 The ongoing public statements by Mr. Richard Pound, the head of WADA, indicate that he is not above changing the rules to his organization’s benefit.

8 USADA Protocol.pdf, 10b, p 10.

9 AAA modified rules for doping cases.doc, R-4. The only potential parties are the athlete (or other party charged, such as a soigneur), USADA, the applicable international federation - the UCI, in Landis’ case.

10 . Whether it could directly intervene in proceedings in another country depends on the rules of those proceedings. USADA could certainly provide public and political support, and could appeal to CAS in Landis’ defense. Also, Landis could conceivably call USADA personnel to testify on his behalf, and that is easier for him if USADA is cooperative.

11 WADA code.pdf, pp 38-40. Note also that the American Arbitration Association Arbitration of Olympic Sport Doping Disputes Supplementary Procedures, which governs the upcoming Landis proceedings, is silent on this subject. Though these rules do spell out appeal rights, the primary focus is on the process and procedures related to the initial hearing, so it makes sense that these rules are not relevant to this issue.

12 While the American and Portuguese rules and organizational structures are not identical, the fact remains that the PFP, an enforcement body, imposed a suspension, then sided with the athlete against WADA before CAS. Remember that the appeal procedures are identical, so the same section I have cited here were applicable to the Portuguese case.

13 For anti-doping violation cases involving use/possession of prohibited substances. On 30 January 2007, USADA cleared 2 testees who had been previously sanctioned for failing to appear for drug testing. They had been reserves who would not have been subject to testing because “both the automatic selections and the randoms were available for testing.” www.usada.org/files/active/resources/press_releases/Two%20Cycling%20Athletes%20Cleared%20by%30USADA.pdf. Of note is that of approximately 50 press releases and rulings posted on the USADA web site, this case is the only one in which an athlete was cleared. Remember this case dealt with athletes who were suspended for not showing up for a drug test, even though they were not required to do so.

14 The “Fundamental Rationale for the World Anti-Doping Code includes “Ethics, fair play, and honesty…respect for rules and laws,” etc. WADA code.pdf, p2. The USADA results management web site says, “We work each day to achieve a transparent and fair results management and adjudication process.” www.usada.org/what/management.

15 www.usada.org/files/active/resources/press_releases/Madden%20Resignation%20-%20March%202007.pdf. Though I doubt statistics are the only reason for his promotion, it is reasonable to assume the successful prosecution rate is a contributing factor.

16 WADA code.pdf, p 56.

17 www.usada.org/files/active/policies_procedures/2004%20USADA%20Protocol[3].pdf, para 1, p 3.

18 Such provisions are common in these kinds of contracts.

19

20 I acknowledge that Mr. Tygart’s tone could be a result of the editorial process, but the fact that Mr. Tygart has not challenged that interview (it would be easy to do so via the USADA web site) suggests that the interview conveyed his views accurately.

21 http://www.dailypeloton.com/displayarticle.asp?pk=10343. Without naming them explicitly, the targets of at least some of Mr. Tygart’s barbs in this interview are clearly Landis and his defense team. He also takes a general shot at athletes who chose to exercise their rights to contest adverse analytical findings. His comment that anyone who suggests the USADA process impinges on athletes is “a blatant distortion of the truth” must be tempered by the fact that he was involved in drafting the code that he is defending: http://www.usada.org/files/active/resources/press_releases/Madden%20Resignation%20-%20March%202007.pdf Perhaps there’s a bit of bias there.