Monday, April 16, 2007

Judging Fl ^H^H USADA/CAS-AAA, Part IV

Result Driven Decision Turns Loophole into a Noose

The first interlocutory decision of the Landis Panel raises many issues to discuss. Our focus here is the Panel’s determination that additional “B” sample analysis is permitted, and will be admissible if non-negative, but will not be admissible if negative.

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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"

The first interlocutory decision of the Landis Panel raises many issues to discuss. Our focus here is the Panel’s determination that additional “B” sample analysis is permitted, and will be admissible if non-negative, but will not be admissible if negative.

(Other serious issues associated with this decision will be commented upon in future additions to this series.)

There are multiple ways of looking at the result of any tribunal determination. An important one is the effect upon the parties. Another is the decision’s legal effect on subsequent cases. In the B sample decision, we see fallout from a previous decision that had a “bad” result from an ADA perspective. The desire to achieve a “good” result has influenced the reasoning in this case – in a way that will have its own ramifications.

When and how desired results dictate a tribunal’s legal conclusion is the most interesting aspect of this decision. Somewhere, sometime, somehow this issue faces most judges, arbiters, administrative judges and mediators. Sometimes you can’t tell by reading a decision that desired results dictated the conclusion reached because most tribunals will always support their decision with logic, precedent, the law or common sense. We’ll show how desired results have affected this ruling, and illuminate some of the implications.


The Landaluze Loophole

The published decision in Landaluze not only recognized but also codified by published decision a “loophole” that gave athletes a way to defend against doping charges. It became apparent that the ADAs were going to have to rebut presumptions created by clever lawyers and athletes seeking to be acquitted of doping violations. At the first opportunity, some ADA had to address the Spanish ADA’s failure to prepare a response in Landaluze, by eliminating any potential for that result to repeat itself.

The pending high profile Floyd Landis case afforded USADA the opportunity to do just that. We’ll examine the rationale and effect of the Landis Panel’s decision to allow additional “B” sample testing, but first we need to to understand the Court of Arbitration for Sport (CAS) Panel’s ruling in “acquitting” Iñigo Landaluze. This ruling was made about half way into the Landis proceedings and has affected the strategy of all parties.

Iñigo Landaluze is a professional cyclist racing under a Spanish license. He took part in the Critérium of Dauphiné Libéré in June of 2005 as a member of the professional cycling team Euskaltel. A sample of his urine was collected after the June 11th stage. On March 21, the French laboratory Châtenay-Malabry (the LNDD) analyzed the sample, and declared the sample adverse through analysis by mass spectrometry of isotopic reports/ratios. That test indicated that Testosterone or the one of its precursor exceeded the ratio permitted under WADA Code.

A disciplinary proceeding ensued. Landaluze asserted that International Standards for laboratory procedures were violated because the same LNDD technician performed the analysis on both his “A” and “B” samples. The CAS Panel took the issue under advisement.


While that matter awaited a decision, Floyd Landis won the 2006 Tour de France. Similar to the Landaluze case, Landis’ urine sample, as tested by the same laboratory, LNDD, was declared to have been adverse, also as a result of a testosterone/epitestosterone ratio that exceed allowable levels and also as a result of the determination that exogenous testosterone existed in both the “A” and “B” samples.

The Landis disciplinary proceeding commenced and Landis took the extraordinary step of publicly revealing many of his defenses. Some of those defenses included claims that LNDD violated International Standards in its testing protocols.


As the Landis proceedings wound their lengthy way through the disciplinary process, CAS issued a decision refusing to sanction Landaluze, but also declaring its regret that as Landaluze could successfully “beat” the accusation as a result of a “technicality”. The Panel noted the clear requirements of sec. 5.2.4.3 .2.2 of the International Standards:

“The confirmation on the “B” Sample must be carried out in the same Laboratory that that carried out the analysis on the “A” Sample but by a different analyst on each. The operator(s) carrying out the “A” Sample analysis are permitted only to carry out the instrumental adjustments, with controls of conformity and to check the results.”

LNDD’s documentation revealed that because of money, time and personnel shortages, the same analyst performed functions on each sample, which, by admission, exceeded those allowable by International Standards.

Landaluze had thus met his burden to demonstrate International Standards violations and the prosecuting Spanish authority presented no further evidence. Thus, it could not prove that despite those violations, the violations did not “cause” the adverse results.

It is easy to see why a technician may not perform analysis on both the “A” and “B” sample. A basic tenant of science is that if results are accurate, the same test can be performed by any number of technicians and the results, through duplication and confirmation can be comfortably confirmed. Because the foregoing is true, an additional basic tenant of science requires a different lab technician to analyze each separate sample when two samples are tested, one to confirm the other, In most Courts of Law, internationally, scientific testing lacking in that foundation is so wholly unreliable that any and all results of such tests are not admissible as evidence.

However, in the unique world of CAS Arbitration proceedings adjudicating doping control violations, the test results not only are admitted, despite violations of International Standards, they are actually considered and considered to be valid even though the prosecuting authority failed to prove that the results were not caused by the violations.

The Landaluze case didn’t fail by lack of evidence; it failed because the ADA failed to rebut a presumption. As a result, while the case against Landaluze was dismissed by a 2 to 1 majority of the Panel (1 Arbiter would have convicted Landaluze), that Panel did so reluctantly and with regret, choosing to dismiss the case, summarized from the machine translation as follows:


“… The referees do not create the rules. They apply them. The drafters of the WADA Code preserved the rule requiring that a single technician may only perform certain tasks relating to the “A” and “B” samples. The rules can certainly be modified or refined, but such is not the role of the Panel. The applicable rule is clear and the Panel is deprived of any flexibility. The referees do not have the authority to modify the rules nor the discretion when no text authorizes them to do it … The referees do not have any reason to doubt the explanation provided by Prof. De Ceaurriz according to which overlapping of the operations carried out by the analysts was due to an extra work within the LNDD. It in addition pointed out that malevolent and accessory people would have covered their intrigues while writing reports/ratios relating to the analyses so that no possible failure can their reproached being. With the case present, it is all the opposite; the athlete obtains profit of cause on the basis of information the laboratory had and who were honestly communicated. In any event, the present sentence does not constitute a declaration of innocence of Mr. Landaluze taking into consideration the anti-doping rules. Mr. Landaluze profits simply of a rule formal and yet fundamental, tending to guarantee the rights people subjected to anti-doping controls.”


Effect of Landaluze on Landis

Because the Landis case was pending and only a few months were left until it was to be decided and because the issues in Landis’ case were strikingly similar to those in the Landaluze case, USADA had to formulate a plan of attack to address the consequences of the Landaluze decision,

USADA could have accepted the Landaluze case as establishing justice. It might then have evaluated or litigated the issues concerning International Standards violation in laboratory procedures and moved on to dismiss the case or win or lose it depending on how it played out, under the law established by the Panel in Landaluze.

Instead, USADA demonstrated a desire to win. Its lawyers must have recognized the implications of the Landaluze decision on the pending prosecution of Landis. They wanted to avoid the Spanish ADA’s predicament in being unable to rebut the presumption Landaluze successfully created. Therefore, they urged the Landis Panel to permit and then admit untested “B” samples from the 2006 Tour de France and some out of competition samples, as well, Landis countered by asking the Panel to enjoin USADA from any such additional “B” sample testing.

In the request to the Landis Panel, quoted in the decision, the USADA addressed its dilemma as recognized in the Landaluze case. USADA framed their request for additional testing as providing information necessary to rebut the presumption that technical procedural violations caused adverse analytical results. The Landis Panel (also by a 2 to1 vote) embraced this request.

In denying Landis’ request to enjoin USADA from testing the additional “B” samples, the Panel found a way to give USADA additional ammunition to potentially overcome Landis’ possible successful burden flip. If he is able to demonstrate International Standard violations in testing procedures, this places the burden on the ADA, as happened for the first time in Landaluze. The request by USADA had apparently never been done before, as there had never been a perceived need to do so, and this led to permission that had never previously been granted.

The out of competition samples had been tested at the WADA lab at UCLA. They had been determined to be negative. The Panel ruled that as negative samples, they would not be admitted in evidence and there was no need to test those samples at LNDD. The reasoning appears to be that nothing about testing the B’s of those samples at LNDD would relate to USADA’s burden shift problem.


What Really Happened

The circumstantial evidence demonstrates that the Panel wanted to reach the result and found a way to make it happen. To add a twist of the knife, they presented the view that the Landis lawyers, in effect, asked for the results to be achieved! They subsequently embraced a novel, and to that point, never considered interpretation of the Code’s language.

One might question whether the “neutral” Panel would actually work hard to try to confirm the adverse analytical finding. It is simple. That is the way the system is set up. The overriding goal of the anti-doping disciplinary process is to catch “doping” athletes and punish them.

Consider the Landaluze Panel’s declaration that the anti-doping rules are paramount in their decision making process. Then consider their conclusion (by a 2-1 vote, with the dissenter willing to convict him anyway) that Landaluze benefited by the mere formality that a double blind two part testing procedure test is necessary to give validity to the results of a scientific test.

Consider further that the Landaluze Panel admitted the test results into evidence because the system requires consideration of such results by requiring a number of burden shifts in the decision making process. Also understand that the reason the burden turns are required is so that more evidence may be submitted in order to convict “doping” athletes. This system thus compels admission of adverse analytical findings violating International Standards, when any other system in the free world would simply exclude them because they lack foundation.

Now consider that the published decisions in CAS-AAA proceedings are beginning to form a case law of sorts and they establish precedent for future cases. The Landaluze Panel has now actually acquitted a “doper”, because up to the date of that decision, the athlete had the opportunity to actually obtain acquittal by proving, unrebutted, that there was an International Standard violation in the testing procedures.

To convict “dopers” in light of the Landaluze decision, USADA had to urge the Landis Panel to conclude that the case law needed to be further developed to help it rebut that presumption once proven. Faced with an increasing ability of athletes to retain legal talent and experts to establish those facts, having been shown the way by the Landaluze case, USADA’s goal was to fortify the ability of any ADA to meaningfully respond.

The method USADA chose to achieve this goal was to urge the Panel to broaden the ability of the ADAs to formulate a better foundation, or replace the foundation for the adverse analytical finding by authorizing the unprecedented and theretofore not even attempted ability of the ADA to test other “B” samples for those purposes.

The Panel, by 2-1 vote, accepted USADA’s position.

In adopting that position, the Panel took an historic and unprecedented step to allow seven additional “B” sample tests one month before trial, saying any non-negative results would be admitted into evidence, and excluding any negative results that tests might result in from hearing. They also specifically excluded out of competition negative “A” samples tested at UCLA from hearing.

The Panel held that the samples could be used to bolster USADA’s necessary argument, should Landis successfully show violations in International Standards, that such violations did not “cause” the adverse finding at issue (the one taken after Stage 17 of the Tour de France).

By finding that other “B” sample non-negatives exist, fortifying if not outright replacing (which the Panel also expressly permitted) the current “B” sample, under challenge, USADA would then be able to confirm the Stage 17 adverse analytical finding.

The overriding systemic goal to catch and convict “dopers” forced an evolutionary mutation with this decision. In order to develop the law to meet the goal, the Panel needed to “clarify” some definitions as they historically existed, in a brand new way. They had to change how the terms could be used in order to permit a new method in the war against “dopers”.


Allowing the Additional Tests

Let’s look at the Panel’s rationale. Up until the Landis case, no ADA had tested or asked a Panel to allow testing on “other” “B” samples taken out of competition to use at a disciplinary hearing. Of course, up to that point in history, the Landaluze case had not been decided, either. Consequently, Landis asked the Panel to enjoin any such testing.

The Panel’s response was that Landis “sought from the Panel a ruling that we should put such an overarching construct on the applicable UCI and related rules” because the samples belonged to UCI and UCI was permitted to test the samples for purposes “other than confirming an adverse analytical result”. That makes plenty of sense. However, up until this decision, most athletes and ADAs interpreted that clause to mean the sample could be tested for experiments and the like. But the Panel rhetorically asked where that limitation (experimental testing only) was explicitly found in the WADA Code. It isn’t. Consequently, finding no such rule limiting testing to experiments etc, the Panel refused to issue an injunction, noting that under WADA rules, the UCI could do whatever it wanted to do with the samples and Panel had nothing to do with that decision. That makes sense. The Panel was certainly correct in not issuing the requested injunction.

Admissibility

But, of course, the matter didn’t end with denial of Landis’ injunctive relief. The Panel turned to USADA’s argument that the Panel order testing and make preliminary rulings on admissibility. That argument deserves some analysis here. At paragraph 22, it held:

“In the normal course of events this Panel would be inclined to advise the parties that it would reserve on any rulings as to admissibility of evidence until the time it is proffered as such in the arbitration proceeding. However, we were persuaded by the submissions of Respondent’s counsel that in this case the cost of testing and having experts present is so enormous that it is unrealistic to go through the process only to learn at a later date that the Panel will not accept the proffered potential evidence as being admissible evidence. For this reason we are persuaded to make the following preliminary ruling on admissibility.”

The Panel also determined at paragraph 18:

“In making the foregoing ruling the Panel notes the Respondent’s submission That the two-sample protocol contained within the applicable rules is Designed to protect the rights of athletes against false positives and flawed Methodologies. However, further “B” sample testing is not within the two sample protocol because the result does not lead to an adverse analytical finding. The argument of the Respondent is one to put up a protective shield that would never permit anyone knowing what the “B” tests might reveal. That is not a search for the truth or to understand all the facts involved in the matter.”

The International Standards define an “Adverse Analytical Finding” as follows:

A report from a Laboratory or other approved Testing entity that identifies in A Specimen the presence of a Prohibited Substance or its Metabolites or Markers (including elevated quantities of endogenous substances) or evidence Of the Use of a Prohibited Method.” (International Standards, Section 3.1, page 8).

So one might conclude, reasonably, that “an adverse analytical result” as used in the limiting clause, precludes the use of “B” sample test results at hearing for any purpose other than to confirm the corresponding “A” sample. That seems to be the plain meaning of the limiting language.

The Panel chose to read it differently, and it seems to be within its scope of authority to do so. But in the process, it tortured the English language and added two important words to the limiting language in the WADA code; that “B” sample testing is permitted unless it “leads to” an adverse analytical finding, defining “leads to an” at that point to mean “the” (because it can’t be used to confirm its twin “A”). The Panel stated that any argument that the phrase “an adverse analytical result” was used to limit testing of “B” samples on stages other than the one at issue, results in a failure to search for truth and fails to understand potential uses allowable under the third burden term. Perhaps that is why they added two words to the definition, to foster further potential evidence under the third burden turn. As to “the truth”, any limiting rule certainly affects the search for truth. Had a rule existed to limit lie detector use, one might also argue that that limit is not a search for the truth, either.


This Panel, in bold contrast to its reluctance to “overarch” by issuing an injunction, determined to address the issue of its involvement in testing and preliminary rulings about admissibility. And the Panel amazingly found a way to determine that Landis was responsible for the need to make certain pre-trial admissibility determinations!

It didn’t need to hoist Landis’ lawyers on their own petard as an excuse for making a pre-trial ruling on admissibility. It simply could have passed on the issue if that is what it wanted to do, or rule on the issue in USADA’s favor, adopting its proposed rationale. This happens in tribunals every single day. One certainly wonders why the Panel had to posture its decision in that particular way, needlessly calling a lawyer’s skill and arguments into question.

The panel also didn’t need to question the sincerity of Landis’ lawyers to seek truth by their attempt to shield him from the greatest data mining expedition ever requested of any CAS Panel in history.

If a “search for truth” was desired, why didn’t USADA request nor the Panel order additional testing (since the ball was rolling anyway) on the previously UCLA tested OoCs, and then make a prospective ruling on their admissibility by allowing differences in results to be used to impeach the LNDD after a fourth burden turn? Maybe because the Panel just figures that after the “B” samples come back non-negative, then the case is over and a “doper” caught. But what is sauce for the goose is sauce for the gander. Right? The system just isn’t interested in fairness or truth in that regard. It is interested in doing what it has to do under the Code’s directives, to allow the ADA’s any potential opportunity to present evidence after the burden flip, so they can convict “dopers.”

Throwing the “search for truth” card on the table was disingenuous.

The most telling and confirming paragraph from the decision is found at paragraph 14. The Panel acknowledges that it needs to endorse additional testing in order to be consistent with the overriding concern of the WADA code, that we have been talking about:

“Furthermore, Article 17 of the UCI Rules permits a national anti-doping agency such as USADA to prove an anti-doping violation “by any reliable means”. UCI Article 178 further supports this proposition by permitting rather than restricting the analysis requested.”


This decision was rendered two months (on March 17) before hearing and its result has added tremendous costs and uncertainty to the proceedings.

A Panel concerned with fairness and cost to the parties would have deferred all decisions on this subject until the trial. UCI owns the urine. Would USADA have tested it without the Panel’s “permission” a month before trial? If USADA didn’t have the courage of its convictions, there would be no “B” testing and the anti-doping world would be exactly the same as it ever was. It would have been consistent with their reluctance to grant Landis’ injunction. Instead, the Panel plowed completely new ground, for the benefit of every ADA on Earth, to help them convict “dopers”.

Results drive the Law

The decision was thus the embodiment of the debate tribunals face every day; does the law compel results or is the determination of the law compelled by the results desired?

In this instance, the overriding goal of the WADA code is to convict “dopers”.

This Panel, in light of the reality of the precepts adopted in the Landaluze case, chose to afford USADA every possible method to prove a “doper” guilty and found a novel and brand new way for ADAs to respond to an athlete’s success at the second burden turn.

The circumstances show they did so in order to reach the results they sought. Perhaps this Panel wants to run Landis through the gauntlet should he be found not guilty, in order to satisfy most that he is, in fact, not a doper. On the other hand, they may simply want to afford USADA a methodology to convict a “doper”. Only the evidence at hearing will make that clear. However, this decision appears to significantly favor the ADAs, and it appears the Panel wanted to do exactly that.




Next time: On to the hearing.

Back to Part I, Part II, and Part III.


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

13 comments:

Anonymous said...

Why would the panel order testing on the OoC B samples? This is about CIR tests and the OoC samples have already undergone CIR tests.

-Ferren

Daniel said...

Thanks Mr.s Hue and Brower.

I was wondering, if one was going to write a letter to a congressional leader, what an articulate and concise summary of concerns with USADA would be. Perhaps, Mr. Hue, given your level of familiarity and articulate pen, could you draft a little something something for one to send out? Would you emphasize the unequal ability to test and admit results to the panel? Can we name drop famous and influential scientists with a concern over LNDD technical competence? My best guess is that Congress moves its ass faster when the fabulously rich or popular take to a cause.

Could you prepare a draft that one could personalize? I would think FFF would have done this but perhaps they are new to these types of things.

tbv@trustbut.com said...

Ferren, the reason would be to get the same sample tested in more than one place.

TBV

Anonymous said...

I understand. Thanks.

-Ferren

Thomas A. Fine said...

Is there really no circumstance in which these other B samples could be used in Floyd's defense?

Their negative status, in and of itself may not be useable, but what if the specific numeric results are such that they could support an alternate theory? Suppose Floyd's team didn't simply want to argue "hey look, they're negative", but wanted to argue that some particular measurement is a clear indication of something besides exogenous testosterone influencing the results?

tom

tbv@trustbut.com said...

I think given the example of these other B's being allowed for USADA in the 3rd burden flip, there is a good case to be made that the other results could be admitted for Landis in the 4th flip. They would not be demonstrating that he didn't dope (which isn't allowed), but that there are problems with the testing procedure and consistency. At least, that's conjecture we raise above. Whether that would actually be allowed might depend on what result the deciding Panel intends.

TBV

swimyouidiot said...

Tom, my own view is that Bill is not quite fair to the arbs on this question. As you probably know, the fifth "admissibility" reason they give in their decision is that results "may be admissible for reasons unknown at this time." That seems to me to leave the door wide open to the results being used as exculpatory evidence. Bill doesn't agree.

I think the strongest part of Bill's argument is his description of how they had to add two words, "leads to," into the definition of an AAF. I think Bill (and Campbell) are spot on about this, and I think the admissibility of the B sample results is good grounds for appeal to the CAS (if Floyd can afford it).

Peace

Bill Hue said...

Some of you guys are more optomistic than I am about using negative "B" sample on the "4th burden turn" because that use if it even exists (see below) is foreseeable. If you are writing an advisory opinion about potential uses of evidence at trial, pre-trial,you want to cover any foreseeable use as long as you are banging away. The 2 arbiters apparantly could not think of specific uses for admission of negative samples and thus I doubt they think such negatives would be relevant to or that a 4th burden turn even exists. In fact, the Panel excluded some UCLA tested "A" samples from evidence in the decision. /those WOULD be relevant in the 4th burden turn so i think the Panel is thinking that no such opportunity exists under the Code.
If the 2 arbiters believed that there would be ANY chance of the "B" samples being negative, then some specific list of their allowable uses at hearing would have been included on the specific list. Yet no such use was listed like 4 other specific instances of permitted non-negative samples were.

Don't let the "catch-all" mislead you in that respect. Under the rules of construction, in instances where specifics are listed followed by a "catch-all", the "catch-all" is generally limited to instances of things like the specific things listed, i.e. uses for non-negative samples, just in case USADA argued that they could be used for some purpose the Panel didn't think about.

That said, it would be a breath of fresh air to see negative "other" samples heretofor treated as irrelevant, actually be admitted for some unforeseen purpose. Unfortunately, any use I can think of and the Panel too, apparantly, appears to be irrelevant to the specific issues at hearing..

The burden turns have to stop somewhere. They are not infinate. It not only wouldn't be a mis-use of discretion for the Panel to stop them after the ADA overcomes FL sucessful flip, it just might not be feasable under the WADA Code.

Bill

swimyouidiot said...

Thanks Bill. Good reasoning, especially with the information about what happens "under the rules of construction." You could well be right about this.

I guess I just don't yet want to believe that the process is THAT unfair.

Anonymous said...

Could someone please describe (in layman's terms) what a burden turn and burden flip might be? Are they the same? Are there 4 of them or more? Thanks!

tbv@trustbut.com said...

last anon, see "Burden of Proof and Burden Shifts" in Part III.

TBV

Bill Hue said...

Hi anon.
The first turn or flip belongs to USADA. They have already been successful because a WADA certified lab has confirmed an adverse analytical from stage 17.
The second turn, or flip, is Landis', to try and show a violation of International Standards in the way the lab tested the urine.

The third burden turn or flip is USADA's to show the Standards violation(s) did not "cause" the adverse anylitical results.
The 4th burden turn or flip might be Landis' but now we are straying into uncharted territory.
There also has been some discussion as it relates to the metabolite(s) issue that there might be another burden turn in the middle of thata one.
Confused?
How about if they just gave the ADA the burden of proof to the Panel's comfortable satisfaction, once and avoid all this?

Tom,
That is an interesting question and speaks to the 4th burden flip.... it just doesn't seem to be the kind of thing that the Code contemplates.

Daniel,
I get letters from people all the time.
You know what works?
Hand write it, with a hand written return address.
Speak from your heart and don't be afraid.
Keep your letter under a page.
People can tell letters that are manufacured. Sometimes more than 1 exactly the same come in the same day. Then they allcan be ignored.
So, my advise is to do your best and it will be fine.
Bill

Daniel said...

Great advice Bill, thanks. Dan