Wednesday, April 11, 2007

First Arbitration Decision

The first final decision by the arbiters has been made, titled "Interlocutory Award, Case No: 30 190 00847 06"; we've uploaded it to the archive.org repository.

In quick summary:

  • USADA was told on Feb 2 to produce all documents responsive to Landis's Oct 23 and Jan 22nd document requests, or say why they could not be produced. We've seen the first request, but not the latter, and don't know what has been produced so far and what has not.
  • USADA asked to test the other B's.
  • Landis asked for depositions or testimony.
Rulings on B sample testing:
  • No AAF could result from testing of the other B's.
  • There is no rule prohibiting testing the B's, but doing so must be for purposes other than confirming an AAF.
  • Landis' expert should be able to see if the process is flawed;
  • They don't have the power to preclude testing;
  • While unusual, they can make a preliminary ruling on admissibility;
  • They can find some reasons other than confirming an A sample AAF.
Rulings on depositions:
  • USADA will be calling technicians as witnesses. Those not called will be available if required at the hearing.
  • Since they will be appearing, there is no need for depositions before an expedited procedure.
There is a concurrence and partial dissent from Christopher Campbell. He agrees they don't have the power to order depositions, but believes the Lab witnesses should go on first, so Landis's experts can have time to prepare for cross-examination.

On the testing of the other samples, he thinks it should be prohibited. He doesn't find the USADA arguments convincing, and doesn't think any results should be admissible.

The absurdity of allowing the testing of a B Sample with no corresponding A sample confirmation is demonstrated by taking the analysis of the LNDD's obligation to its natural conclusion.

He also sees a clear conflict of interest in LNDD's testing those samples, in violation of the ISL.

For the reasons stated above, it is inappropriate for USADA to direct further testing of the B Samples. To produce reports from those B Samples, the LNDD would have to violate the WADA Code. I would order USADA to cease and desist from pursuing further testing of those samples. I would also rule that any reports from those B Samples would not be admissible as evidence in this case. The admission of evidence obtained in clear violation of the WADA Code smacks of an uneven application of the rules. To allow such conduct strips this adjudication of the appearance of fairness.

Other stories and reactions are covered in Today's Roundup. There are lots of comments to this post as well.

17 comments:

swimyouidiot said...

Well, well, well. Interesting. I have sort of mixed feelings about this.

First, on first "glance," it doesn't sound this initial decision bodes well for the process. It sure would be nice if the arbs had worked by concensus and found an approach the three of them could agree on. I fear that this is an indication that at the end of the process, no matter the outcome, we are not going to feel like due justice was done. I was hoping for some clear resolution, not just about a penalty, but clear resolution whether he is really guilty or not. If the tone of this first decision, or at least Campbell's dissent from it, is any sign, it doesn't sound like we will have a lot of clarity at the end.

On the other hand, I really don't mind USADA testing the other B's, although I do wish it would not be done at LNDD. If Floyd is innocent, then there could be no sign of no sign of exogenous T in those other samples. I think he was right from a legal standpoint not to give his consent to the tests, but now that they are going to be done anyway, hopefully (if he really is innocent), they ought to help rather than hurt him.

It seems like the document discovery arguments went pretty much fully in Floyd's favor. That's good. So, where is the mass spec data???

I'll go read the full thing now.

Anonymous said...

It appears there is no pdf there at archive. Where is the original, TBV?

tbv@trustbut.com said...

link fixed.

Anonymous said...

The retesting of these already negative samples should be at UCLA--if anywhere.

It's clear that LNDD did not get it right the first time.

We certainly can not trust that in looking at 7x4 = 28 more metabolites that LNDD will analyze these correctly.

swimyouidiot said...

TBV, you provided a good summary. I think Campbell's arguments about why the testing, if it is going to be done, should not be done at LNDD are good. They have a vested interest in confirming the results of the AAF. Their impartiality is clearly compromised.

I thought one line in particular was interesting, and may be important for the case as a whole. Speaking of Landis trying to block the B sample tests, they wrote, "That is not a search for the truth or to understand all the facts involved in the matter." Might that indicate they are not going to stick to the letter of the law in all cases? We'll see.

Although I don't read this anywhere in this decision document, I assume that Landis will get a copy of the full lab report for all those B samples?

Anyway, it seems if the B samples are going to be tested, the truth about exogenous testosterone should be pretty clear.

Richard said...

We should get this in front of Judge Hue and and see what he thinks....

Michael said...

What I don't understand and what Campbell so easily states, is why the other two arbitrators aren't requiring USADA to 'play by the rules'?

NUTS!!

Floyd is going to get screwed.

Anonymous said...

While I agree with the pannel that if Landis is ultimately seeking the truth he should not have a problem with the B samples being tested, but I would ad with the caviat that testing is at the HIGHEST LEVEL OF WADA and ISO STANDARDS. I think that any reasonable person with a 5th grade education that has followed this case or Lances case would agree that LNDD is incapable of providing competent and unbiased testing. While it is a good gesture by the Arbitration pannel, I disagree that having a "expert provided by the panel to review the operation of the [LNDD] Lab's IRMS and GC/MS equipment will provide the protection for the Athlete." If said expert is in anyway related to WADA, the system is fatally flawed to bias in favor of USADA and WADA. And just the thought of LNDD having a chance to screw it up a 3rd, 4th, 5th, 6th,7th, 8th and 9th time all the while knowing their accreditation and reputation is on the line. Biases them in such a way that Mr. Suh and Mr. Campbell are absolutely correct in stating, "this is no ordinary conflict of interest; this is a conflict of interest "on steroids."

If you ask me this is not a search for truth regarding innocence or guilt by the panel but rather, at best, a search for truth about the ability of the LNDD lab to prove their incompetence again or lack there of (yes, I meant to say it that way)at worst a chance to screw Floyd 7 more times.

Well, in light of the new information, I'm updating my list of questions to ask Floyd and team on Monday.

Overall it appears that the only one on the panel that is really seeking the truth is Mr. Campbell. I wish the other panel members would explain why they think there is no conflict of interest in LNDD working on the "B" samples. The lack of explanation makes them look as biased and incompetent as LNDD.


A-Town, Tx.

Anonymous said...

Christopher Campbell ...where have I heard his name before? Thinking... thinking .... Not the same Christopher L. Campbell who has a CAS case history record of being the only arbitrator to dissent?

Anonymous said...

ORG here ....

Paragraph 27 (page 7)....

The Respondent further alleges that Lab documents have been tampered with. After the receipt by the Athlete of the laboratory document package from USADA on 28 August 2006 Mr. Landis publicly alleged that some of the documents contained incorrect critical data. On 20 September 2006 the Athlete received a second set of laboratory documents from the Agence Francaise de Lutte contre le Dopage {“AFLD”} who were conducting a parallel proceeding in France pursuant to the French Public Health Code. The same documents from the USADA package had the previous errors
“corrected” and yet both documents apparently bore the stamp that indicted that they were originals. It was submitted that these events justify the deposition of the Lab Director.

----

I though he rec'd the AFLD version of the LDP around February 8, 2007, not Spetember 20. Am I reading this wrong?

Anonymous said...

ORG again ...

Another thought, no depositions assuredly means a continuance. Their testimony, which I assume will be in French, will take time to digest. Campbell's discussion means this will be critical. While I'm not a lawyer (or play one on TV) my reading of his discussions makes it sounds like the LNDD is also on trail along with Landis. The LNDD personal cannot testify in French on Monday and then have Jacobs prepare to cross on Tuesday.

Sorry TBV, look like you going to by in Mailbu two days in May and then have to return in mid-to late June for the hearing to conclude.

Thoughts?

Bill Hue said...

I'm going to write about this and other arbitration decisions for Part 4 of the Series.

The Panel's unanimous decision (in result but not rational) in refusing to compel deposition of the LNDD technicians as long as the technicians appear at hearing makes sense but only Campbell would instantly grant an adjournment upon Landis' request, to prepare a rebuttal upon hearing that evidence (testimony). That is what is obviously and exclusively fair. Anything else is not. The fact that neither of the other two would join in that promise is very disappointing.

Further, the B sample decision is really disappointing. By a 2 to 1 vote, the urine belongs to UCI and not Landis. By a 2 to 1 vote, UCI can do anything they want with it, other than to declare a new adverse finding. By a 2 to 1 vote, as long as it isn't used to support a new adverse analyitical finding, it can be used at hearing. The UCI can experiment with it or test it before and after hearing with this Panel's approval.

That is unprecidented. It is a huge win for this case and others for USADA. It derives from shaky rational because those B samples are obviously no longer anonymous. I now doubt that such concerns are even relevant to this Panel under their rational that such deviations from the International Standard can be refuted because the 3rd burden flip I complained about in Part 3 permits USADA to show those deviations didn't affect the results.

Further,imagine LNDD tests those B samples after an acquittal (a huge hypothetical after reading this decision)declaring one or more "non-negatives". Even though USADA can't prosecute those adverse determinations, if L'Equipe is informed of the results, they will publish them. What was once a "win" will again be in doubt. Ask Armstrong about stuff like that.

This Panel didn't have to hand USADA that card to play now or later, simply by exercising the restraint they did on the deposition issue. If this inconsistancy is simply result driven, then those aren't the kind of results Landis or any athlete wants to see, for sure.

Jim T said...

If LNDD tests these samples, it will be in violation of WADA and ISO standards, because there will be no anonymity - and if the arbs accept the results as evidence, they'll be saying they're willing to let standards go by the wayside if they feel like it.

Do they REALLY want to say that? If so, why do we bother with standards in the first place? Or are the arbs suggesting the standards aren't necessary here because Landis will have an observer present?

Death Bredon said...

The B Sample Ruling already shows that Floyd is going to be railroaded. As the dissent notes that the WADA rules are being ignored. What's is the point of continuing before a lawless tribunal?

Richard said...

Sounds like Jacobs has grounds for a lawsuit as soon as this Dreyfus Affair closes.

What the heck were the other two Arbs thinking???

Anonymous said...

so if the French technicians are coming to Malibu for the hearing, who gets to pay for their travel and per diem? Landis? I'd be happy if USADA (my tax dollars) paid for it but I have this feeling Landis pays for everything. Any ideas?

Cal said...

The ruling also mentions that the arbs are going to have an independent expert verify the accuracy of LNDD's GC-MS-C-IR Equipment. They state this ensures fairness to the athlete. This seems to be a crucial piece, but I have little trust in the "independent" part.