Wednesday, May 09, 2007

Arbitrator's Ethics

An anonymous attorney emailer sends us the following information and analysis:

There has been discussion about whether two arbitrators can make a decision or “clarification” without involving the third. In my view, that violates the Code of Ethics for Arbitrators in Commercial Disputes, which can be found here: http://www.abanet.org/dispute/commercial_disputes.pdf.

For all those trying to rationalize the arbitrators' misconduct, consider what the The Code of Ethics for Arbitrators in Commercial Disputes has to say:
[MORE]


"CANON IV. AN ARBITRATOR SHOULD CONDUCT THE PROCEEDINGS FAIRLY AND DILIGENTLY.

* * *

G. Co-arbitrators should afford each other full opportunity to participate in all aspects of the proceedings.

Comment to paragraph G

Paragraph G of Canon IV is not intended to preclude one arbitrator from acting in limited circumstances (e.g., ruling on discovery issues) where authorized by the agreement of the parties, applicable rules or law, nor does it preclude a majority of the arbitrators from proceeding with any aspect of the arbitration if an arbitrator is unable or unwilling to participate and such action is authorized by the agreement of the parties or applicable rules or law. It also does not preclude ex parte requests for interim relief. "


And yes, these proceedings are governed by the American Arbitration Association's Commercial Rules, with supplementary procedures for anti-doping actions:

"R-1. Applicability

The Commercial Arbitration Rules of the AAA, as modified by these Supplementary Procedures for the Arbitration of Olympic Sport Doping Disputes (Supplementary Procedures) shall apply to arbitrations, which arise out of the USADA Protocol. To the extent that there is any variance between the Commercial Arbitration Rules and the Supplementary Procedures, the Supplementary Procedures shall control."

American Arbitration Association Arbitration of Olympic Sport Doping Disputes Supplementary Procedures as of August 2004.


I would think the attendance of McLaren and Brunet at a WADA conference during the pendency of these proceedings is also suspect under Canon I (C):


"CANON I. AN ARBITRATOR SHOULD UPHOLD THE INTEGRITY AND FAIRNESS OF THE ARBITRATION PROCESS.

C. After accepting appointment and while serving as an arbitrator, a person should avoid entering into any business, professional, or personal relationship, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality. For a reasonable period of time after the decision of a case, persons who have served as arbitrators should avoid entering into any such relationship, or acquiring any such interest, in circumstances which might reasonably create the appearance that they had been influenced in the arbitration by the anticipation or expectation of the relationship or interest. Existence of any of the matters or circumstances described in this paragraph C does not render it unethical for one to serve as an arbitrator where the parties have consented to the arbitrator's appointment or continued services following full disclosure of the relevant facts in accordance with Canon II."


It's one thing for the USADA-selected arbitrator to be cavorting with WADA officials during the pendency of these proceedings, but the "neutral" arbitrator as well?

The actions by McLaren and Brunet violate the Code of Ethics to which they are subject. I'd be surprised if Landis’ attorneys are not entertaining submitting a request to have the "neutral" arbitrator removed from the panel:

"R-17. Disqualification of Arbitrator

(a) Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for

(i) partiality or lack of independence,

(ii) inability or refusal to perform his or her duties with diligence and in good faith, and

(iii) any grounds for disqualification provided by applicable law. The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-12 shall be nonneutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.

(b) Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive."

[UPDATE FROM A COMMENT BELOW]

The American Arbitration Association Arbitration of Olympic Sport Doping Disputes Supplementary Procedures provide that the party appointed arbitrators are to be neutral:

R-12. Qualifications of an Arbitrator

* * *

2. Party-appointed arbitrators are expected to be neutral and may be disqualified for the reasons set forth in R-19.

The Code of Ethics for Arbitrators in Commercial Disputes specifically addresses party-appointed arbitrators in CANON IX:

CANON IX. ARBITRATORS APPOINTED BY ONE PARTY HAVE A DUTY TO DETERMINE AND DISCLOSE THEIR STATUS AND TO COMPLY WITH THIS CODE, EXCEPT AS EXEMPTED BY CANON X.

A. In some types of arbitration in which there are three arbitrators, it is customary for each party, acting alone, to appoint one arbitrator. The third arbitrator is then appointed by agreement either of the parties or of the two arbitrators, or failing such agreement, by an independent institution or individual. In tripartite arbitrations to which this Code applies, all three arbitrators are presumed to be neutral and are expected to observe the same standards as the third arbitrator.

...

CANON X. EXEMPTIONS FOR ARBITRATORS APPOINTED BY ONE PARTY WHO ARE NOT SUBJECT TO RULES OF NEUTRALITY.

...

Since the supplemental rules explicitly provide that the party-appointed arbitrators are expected to be neutral, the exemption set forth in Canon X of the Code of Ethics for Arbitrators in Commercial Disputes is inapplicable to them. Pursuant to Canon IX of the Code, these arbitrators must adhere to the same ethical standards as the third arbitrator.

Also worth noting is that the Ethics Standards for Neutral Arbitrators in Contractual Arbitration adopted by Judicial Council of California 04/19/2002 may be applicable to these proceedings.

31 comments:

Bill hue said...

Nice work. Thanks. Confirms everything people versed in the law have been saying here and elsewhere since last night.
Bill

swimyouidiot said...

Wow. Great information. You didn't identify who did the work. Confidential?

Somewhere in these reports since last night Henson said he just didn't know if there was any recourse. Given the passing of a few hours, I would sure expect them to be looking into this motion for dismissal of Brunet.

Anonymous said...

Trislax here: I have to admit that I laughed out load (LOL, but I hate that aim crap) at Canon I-C. If someone doesn't make a movie about this whole thing, it will be a shame since no one will be able to look back on it and believe any of this comedy of errors could have been scripted let alone come from reality...

Anonymous said...

Sean here:

If both McLaren and Brunet violated the Code of Ethics, couldn't Jacobs ask to have BOTH dismissed?

daniel m (a/k/a Rant) said...

It never ceases to amaze me. The twists and turns in this case get increasingly curiouser and curiouser.

- Rant

bill hue said...

The forum smarts are defending this, though, with all their might and fury.
God forbid that something like this ever happens to them.

Anonymous said...

ORG here ....

TBV, I posted that note in a hurry this morning from a airporrt kiosk on my way to a business meeting in Toronto. I'm glad you were able to understand my butchered english, that post was worse than my typical below average effort.

Anyway, I have time betwen meeting and I want to add some conjecture to get feedback .....

Beijing 13 hours ahead (to the central time zone), it is likely the Brunet and McLaren where in the same room in the middle of the night.

My guess is they spent a lot of time together in Beijing. They Probably sat next to each other on the way home (14 hours to Montreal). My fear is they talked about this case a great deal and have basically decided its outcome.

They now have such a good feeling about each other's thougths that they simply forgot Campbell was involved. That's why their instinct was to exclude him.

Also, I happened to be in Beijing at the same time on business (unrelated to them Velonews) and it not uncommon to have severe jet lag. So, I'm not surprised Brunet was up all night on April 30, I flew back on the 27th and I was up all night as well.

Either they knew each other so well after their week in Beijing that they talked e-mailed each other all night due to jet lag or they hashed out the e-mail on the flight home.

Either way, they appear to have gotten too close to each other to be objective anymore. One of them should be replaced.

Thoughts?

P.S. heading to Montreal tonight and will be there tomorrow on Business. You think Brunet would have a cup of coffee with me? I'd love to talk to him.

kate said...

Section R-17 a (iii) reads:
any grounds for disqualification provided by applicable law. The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-12 shall be nonneutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.


I'm not a lawyer......but doesn't the above mean that McLaren can't be DQ'd or removed, ethics or not??? (since he was appointed by USADA)

swimyouidiot said...

"You think Brunet would have a cup of coffee with me? I'd love to talk to him."

By all means, give it a shot, ORG!

His office number is (514) 842-5515.

I dare you to try!

bill hue said...

Kate, you are correct. Under the Supplementary Procedures, McLaren and Campbell are not neutrals so it is difficult to find a circumstance requiring their removal.
Bill

Thomas A. Fine said...

This case has been much too weird to work as a movie. I think there's only one medium weird enought to adequately tell Floyd's story:

Broadway Musical.

tom

Anonymous said...

It is essential that there not exist any perception of impropriety in any sense, including verbal and written communication. The Bejing gathering sure looks likely to be an opportunity for unethical behavior, but the exclusion of Campbell from the “clarification” is blatantly unethical.

Think about it. Rather than listening to a counter point of view, let alone arguing with Campbell, Brunet & McClaren made the decision for the committee. What if Campbell raised an unassailable point? Oh, we didn’t think of that! Well, you’re not gonna know if you keep this a secret.

If you can’t find justice amongst the arbitrators, how can you expect justice served on Landis? (hint: it’s impossible)

Rocket_head
PS: Anyone who talked to arbitrators without the entire panel (like in Bejing) raises the specter of unethical behavior. It makes me think of jury tampering.

Anonymous said...

The American Arbitration Association Arbitration of Olympic Sport Doping Disputes Supplementary Procedures provide that the party appointed arbitrators are to be neutral:

R-12. Qualifications of an Arbitrator

* * *

2. Party-appointed arbitrators are expected to be neutral and may be disqualified for the reasons set forth in R-19.

The Code of Ethics for Arbitrators in Commercial Disputes specifically addresses party-appointed arbitrators in CANON IX:

CANON IX. ARBITRATORS APPOINTED BY ONE PARTY HAVE A DUTY TO DETERMINE AND DISCLOSE THEIR STATUS AND TO COMPLY WITH THIS CODE, EXCEPT AS EXEMPTED BY CANON X.

A. In some types of arbitration in which there are three arbitrators, it is customary for each party, acting alone, to appoint one arbitrator. The third arbitrator is then appointed by agreement either of the parties or of the two arbitrators, or failing such agreement, by an independent institution or individual. In tripartite arbitrations to which this Code applies, all three arbitrators are presumed to be neutral and are expected to observe the same standards as the third arbitrator.

...

CANON X. EXEMPTIONS FOR ARBITRATORS APPOINTED BY ONE PARTY WHO ARE NOT SUBJECT TO RULES OF NEUTRALITY.

...

Since the supplemental rules explicitly provide that the party-appointed arbitrators are expected to be neutral, the exemption set forth in Canon X of the Code of Ethics for Arbitrators in Commercial Disputes is inapplicable to them. Pursuant to Canon IX of the Code, these arbitrators must adhere to the same ethical standards as the third arbitrator.

Also worth noting is that the Ethics Standards for Neutral Arbitrators in Contractual Arbitration adopted by Judicial Council of California 04/19/2002 may be applicable to these proceedings.

(And, yes, I did send the original email to TBV.)

Anonymous said...

Sorry, left out the FWIW at the end of my previous comment.

Anonymous said...

if the initial test data was wiped from a PC, how can this arbitration proceed w/o any evidence? why hasn't floyd's media team called 60 minutes yet for a story?

Anonymous said...

From an admittedly non-legal standpoint, rather from a common sense point of view, I previously couldn't imagine this case getting more f&*%ed up than it was when it was when (2) arbs ruled additional B-samples could be analyzed. Brunet & McClaren proved me wrong! Hopefully some semblance of justice will prevail and one of the two ethics offending arbs will be kicked off this kangaroo court and we can get down to a more fair hearing.
Jeff from Newark

Anonymous said...

I am just beginning to pick up on FLoyd's case, and had to comment about this post (and generally comment). There seems to be an attempt here to question if the Arbitrators who will hear Floyd's case are able to do the job without bias. This seems to me to be delving into microscopic territory here - IS there a way to insist on the removal of an arbitrator because a defendant feels that s/he isn't unbiased? I ask that genuinely, because otherwise it just seems as though here, and on floydlandis.com, records are being brought forth to show inconsistencies, yet I never hear about how this is illegal and will be prosecuted. What is the point here? Is there yet any motive for the USADA and the Tour organizers to deliberately tamper with evidence? Some of the bigger questions about Mr. Landis' case are almost ignored in relation to disucussion about how he intends to prove that he has been the victim of a conspiracy. If you look at the majority of legal posts on this site, they seem to focus on unfairness, yet why is there no evidence about WHO could have doped this (these) samples, and WHY? In the meantime, I was shocked to find out that Landis is actually raising money - for his legal defense. I'm very, very confused about this - Mr. Landis, I don't know whether you read this blog or not, but how on earth can you justify raising money to pay your lawyers when there are children dying of starvation in the world? I'm sorry to be a wet blanket to this very active and enthused board, and I champion Floyd taking his case to the Web, but I cannot in any way see a justification for charity. There is a far greater need for legal defense for victims of violent crime.

Anonymous said...

Anon 6:20
If you don't see any justification for charity, there is a simple solution. Don't give charity. Your call for you. Others can do as they see fit.
Jeff from Newark, DE

Michael said...

Anon 6:20

Spend some time reading all that's been posted on TBV and DPF and then come back and make an educated statement regarding the Landis case.

Thanks,

Mike

pfinjt said...

I'm getting tired of the "how can Floyd raise money when there are starving children in the world?" argument. Trouble with this argument is that it has no end and even those who make the argument probably don't take it seriously.

Do you own a television? "How can anyone buy a television when there are starving children in the world?" Do you have a nice car? "How can anyone have a nice car when there are starving children in the world?" Did you have braces put on your children's teeth? "How can anyone justify braces for cosmetic reasons when there are children starving in the world?" Unless you live on the bare minimum and donate everything else you have to the starving children, you really can't use this argument.

Anonymous said...

Jeff, Mike - I'm the author John from Boston, who posted anonymously previous to your comments. I have, in fact, been reading documentation about the case. I am equally confused about the arbitrators decision to exclude Landis' representative from viewing the re-testing. However, the implication is that the other arbitrators are lying, which again seems to suggest a conspiracy theory. What else is the implication? And if this is the implication, then what is the motive?
In terms of making an educated statement about the case, I cannot claim to be a scientist, nor understand the legal system for atheletes. I have read arguments about the methods of urine testing for elevated testosterone levels and they are generally split 50/50 both backing up and refuting the vailidity of such tests. I think it is clear and educated to ask what is the motive involved here? If a crime has been committed, who are the suspects? Are they being investigated? Also, in terms of making an educated statement, I've had to read through tons of very uneducated statements implying that the entire Republic of France is somehow implicated in this conspiracy - so let's admit it - there is plenty of BS being posted as evidence as well. I do hope for Floyd's case that, if this has all been a very screwed up process that somehow turned into a witchhunt, that he will be vindicated, or at least have his case dropped. I just wish that someone could come forward with a plausible reason that it would benefit either the USADA or French authorities to concoct and deliberately falsify information to their benefit. As I see it right now, NO ONE is winning anything.

Anonymous said...

pfinjt - John from Boston here - I understand your argument to my argument - there is no way to stop the spiral of 'what constitutes charity', etc. But I think that you missed my point. There are many people who forgo luxuries in life in order to offer more to others. They often remain under the radar for the simple fact that they're not wealthy enough to be celebrities, and therefore do not receive attention. I speak from personal experience. Because I was unable to afford a immigration lawyer, my foreign-born fiance and I were unable to marry or remain in one country without violating immigration laws for either the US or the UK. The relationship could not stand the two years of separation. I did not have the clout to raise money for a legal defense, nor did I even think of asking for charity for it. Perhaps I am reacting to this too personally, and that would remove some objectivity on my part, but I still feel that there is a distinct difference between helping those who really need the help and helping those who already have a very, very comfortable living. Floyd is not starving.

Anonymous said...

The way I see it is if people are stupid/brainwashed/naive enough to pay money to attend a FFF fundraiser event, then that's their perogative. This is America.

Their contributions will help pay for endless press releases and ranting and raving espousing Conspiracies, Victimization of their CLIENT and various Accusations against Drug testing laboratories (LNDD, etc.), World Organizations attempting to control Doping (WADA), American Organizations charged with controlling doping in sports (USADA), the International Cycling Governing Body (UCI) and more.

The brilliant minds behind the "Floyd Fairness Fund" dreamed up the idea that the LNDD/UCI/Press/USADA/WADA are on a "Witch Hunt" and are creating an atmosphere of "McCarthism" in their persecution Floyd Landis. Now there's a real good use of anyone's money. Pay for those brilliant ideas. NOT.

Contributers can pay the salaries of Henson and Jacobs among others ... real freedom fighters. They are fighting for the freedoms of downtrodden athletes who just want to compete because they love their sport and would never think of enhancing their performance with banned chemical substances. . . to make a buck.

The "legal" and P.R. effort that is paid for by the FFF is basically aimed at diverting public attention away from a straighforward doping infraction (or maybe multiple infractions) by putting the organizations charged with controlling doping in sports on trial (in the press).

It is besides the fact that the case is heard by an arbitration panel and not by a jury, not by the public. If they really wanted to make good use of FFF funds, you would think they would come up with some better arguments when petitioning the arbitration board.

Believe me, I have read all of the Landis legal team's petitions to the arb board (that are publicly available) for everything from throwing the case out to disallowing additional testing of TDF B samples to wanting to drag this case on and on, and they really do have weak arguments.

BTW, I have read both the majority and dissenting opinions on everything and the majority opinions seem to me to be straightforward, right to the point and directly defensible with WADA protocol. The dissenting opinions employ emotion, rhetoric and very loosely logical arguments.

Also, don't forget this lovely Legal/PR team which benefits directly from the FFF employs techniques like:

-Constant attacks
-Acqusations without proof
-Deceptive statements


Yea. The lawyers and P.R. folks whose salaries are paid by the FFF really are modern day heros. Or not? Judge for yourself.

I just have to express an alternative viewpoint to what I perceive to be many posters on this blog who have their "heads in the sand." Please don't take it personally.

Like the title of this blog says, Trust but Verify. I did trust the Landis defense team way back in August of 2006. But, as I have read the documents, looked at the facts and cut through the rhetoric, I've changed my opinion considerably.

Anonymous said...

Tom,

Broadway Musical...yeah, that could work....Thanks for that, I haven't laughed that hard in sometime!!

I can see it now..the cast...

From "The Producers" Nathan Lane and Gene Wilder as Dick Pound and Pat McQuaid.

The part of Travis Tygart could be played by Fagin from "Oliver" (Ron Moody)

Mssr Bordry...Michael Crawford (Phantom of the Opera)

Dr Arnie Baker has to be none other than Rex Harrison (Professor Henry Higgins...and Dr Doolittle)

Floyd would be played by Carey Elwes (Robinhood Men in Tights, Princess Bride)

The part of Chris Campbell, Christopher Plummer.

And, because there can't be a hit broadway musical without her, Amber would be portrayed by Julie Andrews.

pfinjt said...

Anon - 10:00 pm

There are arguments to be made on both sides here - but it's really a sretch to call this a "straightforward dopoing infraction". It's just not open and shut, in spite of what either side says.

Anonymous said...

If what has been reported is true, that the A and B samples have been used up in the most recent testing by LNDD at the command of USADA, without spliting the samples for testing at an independent lab, one without a vested interest in the results of the testing, as requested by the Landis side, then NO, not only is there nothing open an shut about the case, rather LNDD commanded by USADA has destroyed all of the evidence that could be used by a qualified independent entity to confirm or discredit the original and subsequent results, whatever the subsequent results actually are. I wouldn't stke my life or reputation on yet another lab leak reported by L'Equipe, would you?

Couple the above with highly probable ethics violations involving two of the arbs not cohsen by the Landis side and the kangaroo court circus sideshow continues to devolve to the ridiculous.

These are only examples of relatively recent events. Irregularities in the handling of this case by "responsible" officials started from day #1.

Jeff from Newark, DE

ZENmud said...

TBV collected such a great library on this case, he ought to be at the table...

If Bill Hue reads this comment, I applauded your article, and commented on it at the TOPIX Floyd fora...

WADA insists on Strict Liability against athletes, but not against its own staff, or the labs' behaviour.

TBV has been nice enough to link to some of my articles, and I would like to continue, post-Floyd, in the REFORM-WADA movement that must occur between now and its fall 2007 re-drafting session...?

Stay tuned...

ZENmud

Anonymous said...

The arbitration board, which by WADA protocol is charged with administering the hearing for this case, ruled that:

"Under the UCI Rule 167 the sample collected from the Athlete
under the Anti-Doping Rules shall become the property of the UCI upon
collection and is no longer within the control of the Athlete. Aside from Rule 167 the Athlete has agreed to this consequence by contract through his
license to cycle and the athlete agreement. Therefore, the UCI and through them USADA may engage in additional testing of the “B” sample only for purposes other than confirming an adverse analytical result."

(Translation -> If you as an athlete choose to participate as a professional in a UCI event, you agree not to dope, and any urine samples that you are required to give as a condition to participate become the property of the UCI)

Then, the arbitratin panel ruled that they do not have the authority to stop the USADA from collecting potential evidence in a doping proceeding.
"Even in the absence of the foregoing determination in paragraph 18, this Panel does not have under the applicable rules the juridical power to restrict
the gathering of potential evidence by any party to the proceeding. USADA does not require the permission of the Panel to engage in further analysis of
the “B” samples or any other aspects of their gathering of potential evidence. Equally the Panel does not have the legal authority to issue an injunction to
stop USADA in its process of gathering potential evidence as requested bythe Respondent."

Then, they ruled that the additional B sample test results are admissible as evidence in this hearing, but reserved the right to modify that decision at a later time. Here is the reasoning, which sounds pretty logical and fair to me:

"The “B” samples CIR analysis results are admissible as evidence:
(i) to test the credibility of the Athlete and other witnesses
testimony;
(ii) to satisfy the shifting burden of proof arising from the
rebuttable presumptions that a departure from an
International Standard with regard to analytical or custodial
procedures of a laboratory has occurred as provided by
Article 3 of the WADA Code;
(iii) to corroborate3 the analysis of the “B” sample that was
performed by the Lab by providing additional scientific
evidence, albeit insufficient to establish an adverse analytical
finding;
(iv) to establish the fact of doping by another reliable means; and
(v) may be admissible for reasons unknown at this time."

Just to review, the arbitration board is basically saying that the additional B samples are property of the UCI and can be used to collect evidence, as deemed necessary, by the USADA. They did put in safeguards to address fairness towards and the rights of the athlete. First with,

"Further in making the foregoing ruling, if the methodologies of the Lab are indeed flawed, as alleged by the Respondent, then, the appointment of an expert by the Panel to review the operation of the Lab’s IRMS and GC/MS equipment will provide the protection for the Athlete. The Panel’s expert will identify if there are flaws in the testing equipment. Therefore, the interests
of the Athlete are protected in permitting an analysis of the “B” samples through the role of the Panel’s expert. That expert will have determined if the methodologies are flawed."

This expert will serve to provide a check over the methodologies on the Lab, which were so repeatedly challanged by the Landis defense team. From what I understand, that expert provided the report on Lab methodologies to the Landis defense team a few days ago.


Also, note that the USADA suggested that the Landis defense team "might like to have" an observer present to view the opening and analysis of these samples.

"USADA advised the Athlete’s counsel by letter on 27 December 2006 that it
intended to test the seven remaining “B” samples using the CIR analysis.

"They further advised that the Athlete might like to have his own observer present to view the opening and analysis of these samples. Mr. Landis counsel objected immediately. It was agreed by the parties that the issue would be placed before this Panel for resolution."

The point is that the USADA was attempting to make sample opening and analysis process fair and open to Landis.

Besides appointing the independent expert to observe the labs testing and analysis methodologies, the arbitration panel ruled that,

"In view of the foregoing determinations, the Panel finds that should any additional testing be carried out by USADA through the authority of the UCI that the Athlete have the same rights of attendance and participation as were extended to him at the time of the confirmation analysis of the “B” sample at issue in this proceeding."

That, my friends, is the litmus test for Landis' experts participation in the CIR testing of the additional "B" samples. It does not say that a Landis representative has to be in the Lab at all times (with the USADA representative) during testing. It does not say that the Landis representative may direct or suggest how the testing may be carried out. I think the hearing next week should focus on whether or not that standard was met.

Now, as for the lates bruhaha about arbitration board making communicaitons back to parties without having a collaboration between all three parties (Campbell was excluded). That does sound wrong and maybe it really is a violation of arbitration ethics.

Lets put it in perspective:

The communication that went out to the Landis defense team basically said that the arbitration board was not going to dismiss the additional "B" sample testing on the grounds that the Landis defense team raised after the testing occured. They said to the Landis defense team, reread the "Interlocutory Award Case No: 30 190 00847 06" paragraphs 6 through 25 because what happened during testing followed those provisions. (I quoted some of those paragraphs above)

They also said that they in effect weren't really making a ruling but rather clarifying the existing ruling to the Landis defense team and that is why it was done without collaboration from all three arb board members.

Is that a grave injustice? Cause for removal from the arbitration board? Proof that the hearing is unfair?

I don't know, but put it in perspective. And Jeff, unfortunately, B urine samples are destroyed as a product of conducting CIR tests. It isn't a conspiracy to destroy evidence by the Lab or by the USADA.

Anonymous said...

Point well taken, this certainly is not a straightforward doping case.

It has been clouded into many side issues. Think about where that came from.

cyntax said...

...They also said that they in effect weren't really making a ruling but rather clarifying the existing ruling to the Landis defense team and that is why it was done without collaboration from all three arb board members.
-- anonymous


That seems to be neither sound process nor fair. Consider the following rebuttal to your reasoning that was posted on dailypelotonforums by tom:

"Other people here who claim to be lawyers have stated that this was a Motion in Limine related to the additional B-samples. As I understand this, it is a pre-trial request to have the additional B-samples excluded.

"Also, read the point that alanshearer just made which I elaborated on, about anyone being sure that Campbell would not sway their opinions. If they believed this, then they are not impartial. There's no other way out.

"Let me also expand on the idea that Campbell's input wasn't required because he didn't write the decision. Decision of the arbitration panel are legally binding (from the arbitration contract). This applies to everyone. Campbell can issue a dissent, but since a majority of the panel agreed to it, everyone involved becomes bound by it, including the arbitrators. All of the arbitrators. As an arbitrator, Campbell is bound by the decisions of the majority as well, and as such has every right to interpret the document, regardless of his dissent.

"Imagine if it were not this way - Campbell would be excluded from every decision related to the interlocutory order. And suppose McLaren and Brunet had a dispute over some issue that is the child of that order - how would it be resolved? Clearly this is not a functional process."

Sorry anon but I find tom's reasoning more persausive because of its ability to explain how your contention actually undercuts the impariality and effectiveness of the arbitrators. From my perspective what the arb panel did was serious and does undermine their impartiality.

Anonymous said...

cyntax,

That was very well spoken and I am more and more agreeing with you.

anon from 7:05