Monday, May 21, 2007

Hue-Monday Mailbox

If the panel thinks there are ISL violations, do they let USADA know that before the hearing is over? USADA to this point hasn't admitted any significant errors. Does USADA start operating at least partly on the premise that such a thingmight occur and start trying to show that such errors didn't cause the finding, or do they stumble along their current path of "everything is fine despite the fact that it isn't" tactic?


That is a question we talked about quite a bit. I originally thought that the complex "burden turn" system in the WADA Code would be used to terminate hearings at certain points. But I think it is a process the arbitrators will go through to stop or continue their fact finding in deliberation. That won't effect the evidence. USADA will not just assume they won. They will put on evidence in rebuttal just in case.

Bill - you seem to be changing your tune on the panel (i.e. no way it would be anything other than 2-1 against Landis). Are you implying that you now think they will give Floyd a fair shake?

I'm thinking 2-1 against Landis if they determine no International Standards violation. With the evidence today, if they believe International Standards violations occured, I further believe they will buy the Landis case 3-0. If they do that,they will want to be unanimous to jetison LNDD,while endorsing the rest of the WADA labs. It depends on whether the Panel expert, Botre, will he toe the WADA line? Whatever is done will be done in private. Oh, but to be a fly on the wall!!!

Bill, how do they judge violation of International Standards? Simply the opinion of the panel? The Landis team put on pretty compelling evidence that LNDD is incompetent today (which frankly didn't take much to show after listening to their employees). Is one violation enough? Five? A pattern of such violations?

They conclude or don't conclude the IS violation by majority vote. No athlete has ever succeeded in doing that against USADA. Travis Tygart may have made a shrewed political move assigning this case to outside counsel. Whatever violation(s) they conclude occured must be shown by USADA to the Panel's comfortable satisfaction NOT to have CAUSED the adverse analytical finding .

Does the panel have the authority to order that the samples be retested at an alternate lab? Provided there is enough sample left to test, this would seem to be a possible solution that might really get to the truth, provided that the samples have not been contaminated or deliberately spiked. I guess that these are the issues depend on the ruling on CoC issues.

By a 2-1 vote, they have determined they can't stop UCI, by USADA, the owner's of the urine (Floyd Landis doesn't own it) from testing it, as long as their expert (from the Rome WADA lab) is there and Landis reps have whatever right their attendance at "B" sample testing is to be there too. so the log answer is no. although the concept is intriguing. See the athlete can't get any portion of his urine back under the WADA code to test it himself.

I remember talk on the DPF board at one time (I think lost in the crash) that the A and B samples were so inconsistent that it implied tampering. Any chance the Landis lawyers will argue that? Have they been setting up that point at all?

I don't think that is something they are going to do. They didn't say anything in opening in that regard and that would feed the critics who insist this case is not about LNDD science proceedures but is actually based on a conspiracy theory. As long as I've been following the case, I have not seen the Landis team claim conspiracy.

32 comments:

Anonymous said...
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MMan said...

I remember talk on the DPF board at one time (I think lost in the crash) that the A and B samples were so inconsistent that it implied tampering. Any chance the Landis lawyers will argue that? Have they been setting up that point at all?

Anonymous said...

Judge Hue,
This morning, you directed me to your guest editorial at the Daily Peloton in response to my question: what can the U.S. cycling community do to change this system. EXCELLENT summary and suggestions. I wrote to USA cycling today stating that nobody, especially an American cyclist holding one of their licenses, should be subjected to such an unfair system. I attached a link to your article and asked that they forward it to Jim Ochowicz.

Regards,
Bob/Phoenix

bill hue said...

Thanks Bob!
Bill

Anonymous said...

I wonder how Floyd Landis will do under cross examination?

Will he be asked to read his November 30, 2006 DPF post re: threat to Greg Lemond?

Will he be quizzed on many his Phonak teammates busted for doping?

Will he explain why he failed to call any profession cyclists or teammates to testify on his behalf?

Will he explain why he told Will Geoghegan about Greg Lemond's child moestation? Why he betrayed a confidence?

Can he explain Operation Puerto, Ivan Basso, Tyler Hamilton, Jan Ulrich, Jose Gutierrez (Phonak), Elisa Basso, Eddy Mazoleni legal troubles?

Wanna wager?

tbv@trustbut.com said...

I wonder how Floyd Landis will do under cross examination?

as do we all.

Will he be asked to read his November 30, 2006 DPF post re: threat to Greg Lemond?

quite likely.

Will he be quizzed on many his Phonak teammates busted for doping?

maybe.

Will he explain why he failed to call any profession cyclists or teammates to testify on his behalf?

because there is no purpose?

Will he explain why he told Will Geoghegan about Greg Lemond's child moestation? Why he betrayed a confidence?

because he told his whole team, is one likely reason, to prepare for lemond's testimony .

Can he explain Operation Puerto, Ivan Basso, Tyler Hamilton, Jan Ulrich, Jose Gutierrez (Phonak), Elisa Basso, Eddy Mazoleni legal troubles?

I doubt it it will come up, as it is not germane to the case

Wanna wager?

nope. I'm already all in.

Anonymous said...
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velomama said...

Dear Judge,

Will you marry me? Oh, wait--I'm already happily married, but you can't blame a girl for having a backup plan can you?

Thank you and TBV for the hard work, and for the fabulous legal viewpoints. This case is a revelation. Just for the record, if Floyd is not exhonerated and the system improved, I can't bring myself to follow cycling any more. This is too heartbreaking.

Sleep well my friends.

Velomama

bill hue said...

Velomama,
Thanks for the offer but I'm taken too!
Bill

Anonymous said...

Anonym 8:54

1. DPF post any different than GL telling the world that he "knows" FL must be cheating?

2. Do you get quizzed when a co-worker gets a DUI after Happy Hour?

3. What do pro riders know about laboratory science?

4. Its called discussing strategy, potential witness statements, potential rebuttal.... GL himself said "Floyd assumed that I breached some secret pact..."

5. Can you explain why he should be responsible for other people's actions?

Wager: 2-1 Floyd, although it should actually be 3-0.

swimyouidiot said...

Anon 8:54,

Asked to read his statement about LeMond? Maybe. Maybe he'll also read accounts of LeMond saying about Armstrong “He threatened my wife, my business, my life,” LeMond told L'Equipe. “His biggest threat consisted of saying he would find 10 people to testify that I took EPO. Of course, he didn’t find a single one.” People say stupid things, Landis and LeMond.

Phonak? Irrelevant.

Other cyclists testify? Irrelevant. What lots of cyclists do doesn't matter. This is about lab results.

WG's "threat": Despicable. I would be happy for Landis to be asked about it and have another chance to make it clear he rejects the comments. He had to tell Will (and his whole team) about LeMond's comments to him because LeMond was testifying. Even that is not something you keep from your legal team.

Puerto, etc.: Irrelevant. This is about lab tests. In fact, please do bring up Puerto. Landis isn't even implicated.

Have any more irrelevant things for Young to waste time on tomorrow?

Anonymous said...

"The Landis team put on pretty compelling evidence that LNDD is incompetent today (which frankly didn't take much to show after listening to their employees). Is one violation enough? Five? A pattern of such violations?"

Hue, please note that such comment is unfair and certainly not shared by all your readers. Why do you continue to try to influence/manipulate your readers by putting highligh on such non-rational thinking ?
The hearings clearly shows that heard WADA labs all agree with LNDD conclusion and practices, and Landis experts non directly and specifically involved in anti-doping analytics have found some points to be discussed.
In no case this situation can be summurized with "LNDD is incompetent" sentence. It is just as stupid and reductive as saying "Landis lawyers and fans do not know what is a competent expert in anti-doping analytics".

swimyouidiot said...

Bill or TbV, other than a few questions about the evidence from Campbell, did Brunet and McLaren ask any questions to show they might be at least interested in this testimony today? I would love to see some signs of "thawing" from them.

tbv@trustbut.com said...

No, I don't remember them asking anything. On the other hand, finally getting Barnett and Young to shut up and let Herr Doktor do his thing was something of a concession.

I was afraid at the time they were going to accept Young's argument (which would have worked in court). I think Suh got him with the "Young Gambit" by citing the informal and expedited nature of arbitration.

They may not have enjoyed letting it in, but it would have been a fiasco for them to have rejected it.

TBV

Anonymous said...

Too bad the power point Q & A was not allowed for the record w.o the unneeded posturing.

That unforgivable dirty Phonak legacy hurts the Landis PR too.

Dog & pony shows often depend heavily upon putting lipstick on a pig.

The Will Geoghegan fiasco was not rehabilated today. Nor the DPF November 30, 2006 post disaster.

That post alone sunk FFF.

Anonymous said...

If anyone really depends on steroid enhanced cyclists to inspire you to ride bikes or feel good-----please get out of our sport now!

Before you crash with their kidney, pituitary gland functions.

Theresa said...

Look,this hearing has affect on ALL our athletes! Any sport that is in the olypmics is subjected to the WADA rules, and the unfair system! I want oversite from congress!! Cycling bashing and cyclist=bashing doesn't help anything! Give the past a rest, and let's look to the future, to make things fair for all sports!! OP will eventually be cleaned up,(I hope); but this hearing is not about OP.

If you want to argue or bash, go to the forums, that's what they are there for (from what I can tell!!)

Anonymous said...

Bill,

One of your responses in a recent post suggests that the "independent expert" is going to participate in deliberations of the panel. I raised this mis way through Monday and would like to know if there is confirmation of this.

Seems like something that Landis' team should get out in the open and have the chair respond to on the record. If he does, then the proceedings become even more of a mockery in terms of their structure and procedure. The deliberations will include an unsworn witness offering expert opinion off the record. Given who it is, this would be beyond mind boggling if they casually permit it. After all, the panel is supposed to be composed of persons with knowledge of doping. Thanks,
pcrosby

bill hue said...

Anon9:16
A reader qrote that questuon and I answered it.
Should I censure your question?
I don't do that.
Bill Hue

bill hue said...

PC
There is no confirmation onBotre's role but we assume he has been at the hearing for a week and a half to be able to do something!
Bill

the Dragon said...

Anon 9:16,

Interesting ALL WADA Labs said LNDD OK, Good, Excellent. Those comments are REQUIRED by contract or to achieve accreditation.

More interesting, 2 or 3 of the WADA Labs said under cross that yes, it is excellent work, although implying that such shoddy work wouldn't happen in their lab. I also think Catlin (late of UCLA?) basically stated that the results wouldn't be positive in his lab, other than for WADA standards (I think I have represented his statements correctly).

Since, other than Amory (who IS NOT connected with a WADA Lab, no one with WADA connections has questioned LNDD.

If Omerta is thought evil in the peleton, why is it not so in WADA Labs?

Regards,

Chaz said...

Bill,

If, as you proposed in one of your posts, WADA or USADA decides to throw LNDD under the bus to protect the rest of the labs, will they then be unlikely to appeal? Or are they still likely to appeal with hopes of winning?

bill hue said...

Chaz,
Look for USADA to go back to buisness as usual if they do not win and the appeal to be picked up by WADA itself. UCI could also independently appeal but they wouldn't seem to have a bone to pick with any rejection of LNDDD procedures. We are hearing though that McQuade is pretty mad at FL so they might jump on as well.

Chaz said...

I also have to agree with the Dragon, that it seems to me that the code that prevents representatives of USADA or WADA from testifying on behalf of an athelete, seems to be unethical. It in a sense prevents them from ever providing credible testimony. Would it be of any use for the Landis team to explore this with any of the witnesses? Something like this: You said that the lab work was excellent, is that correct? If you believed that it was of poor quality, would you be permitted to express that opinion?

What do you think?

Chaz said...

Bill,

Sorry to keep asking questions, but this is very interesting to me. If this case does go to appeal, how would the procedure be different? Is the format the same? Three person panel etc.

bill hue said...

Chaz, A new 3 person panel but not AAA-CAS Proceedures. Instead, Swiss law proceedures.

BTW: Dick Pound is angling to be head of CAS (This is NOT a snark or Joke, it is very real). He could very well Chair that CAS Panel (Again, I'm not kidding but the appearence of impropriety probably would prohibit this under CAS panel selection proceedures).
Bill

Chaz said...

Thanks Bill!

You guys are really doing everyone a great service.

randy said...

Bill, Since the panel ruled that testing all of Floyd's B samples from the TdF was fair game, what stops any other ADA from testing all the frozen B samples from any race for other cyclists. Say, the Basso samples from the 2006 Giro?

You mentioned in your recommendations to clean up cycling (in your daily peloton article) that making past samples available for testing (say new tests become available or new information like in the Basso case) would be a huge deterrent to doping since you could only be ahead of the science for so long......Hard to repay the prize money 3 years later. Thanks in advance for your response!

bill hue said...

randy,
This is a published precendent. all "B" samples everywhere can be tested once 1 sample returns an adverse analytical finding. that is a brand new arrow for the anti-doping associations to use.

While you can't get money back 3 years later, you can get at the truth so i think the athletes should be put on notice, the samples divied up into 4 or more parts and let the chips fall where they may.
Bill

Anonymous said...

They can call it the Program for International Sample Storage (PISS)... housed in a WADA Collection (WC) facility. ;)

bamalaw

Anonymous said...

Bill,
I share your belief that Botre is there for a purpose. I also realize that Landis might antagonize the panel ("the majority" asnyway) by getting his role on the record, but if part of the purpose of all this is to illustrate the marked deck, then they should figure out a way to do it. Otherwise, everyone has to guess and there will be people who will never believe that something that unfair occurred. Get it on the record even where there is no use in an appeal within the system; it will be valuable in carrying forward the effort for change.
pcorsby

bill hue said...

pcrosby,
I agree with what you say but that is a risk I wouldn't take, personally