Tuesday, May 08, 2007

A Peek Over the Edge, and a Retreat

Michael Hiltzik of the LA Times and Alan Abrahamson of NBC Sports today revealed decisions, dissent and backpedaling by the Landis Arbitration Panel. We present the documents for your consideration.


Landis had made a motion to exclude the results of the new B sample testing because of the procedural violations observed at the testing at the LNDD. The last of the briefs were filed around Sunday midnight; at about 5:30 in the morning of Monday May 1st, Brunet and McLaren issued a ruling against Landis without having consulted Campbell. The ruling claimed it was a "clarification of the 2-1 interlocutory decision, and therefore, could be resolved by the two who wrote it. This irked Campbell, who filed a dissent. After thinking about it, Brunet quickly issued an offer to reconsider the motion.

We think the rush to judgment on the motion suggests a review of about the same quality as that given by the ADRB to Landis's submission to that body, and the absence of Campbell in the decision making process should have sent alarm bells ringing, and Brunet seems to have gotten the message.

It remains to be seen whether this decision making process is a precursor, or if The Panel will have gotten a clue that their credibility is under the microscope. There's discussion of this over at DPF.

First, the "clarification", which was sent as an email:

Dear Parties, It is the wish of the majority members of the Panel who rendered the interlocutory award dated March 17th, 2007 to state:

1. Paragraphs 6 to 25 of said Interlocutory award govern the “Testing of Additional Samples” issue

2. The Panel ruled that it “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 by the Respondent” (paragraph 20)

3. This paragraph does not contradict the previous paragraph 19 which states that “...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.”

4. For further clarity, it seems necessary for the Panel to repeat that it did not rule that the B samples were to be analyzed in the presence of the Panel’s expert. To draw this conclusion would contradict the very substance of the Panel’s ruling as contained in paragraphs 16-25.

5. The Panel ruled, and still maintains, that the panel-appointed expert will advise whether the Lab’s methodologies are flawed, which represents an adequate protection for the Athlete (paragraph 19). Therefore, the Respondent’s recent objections to Claimant’s discoveries issues related to additional testing are considered moot.

Yours truly,

Patrice Brunet
Richard McLaren

Campbell issued a dissent in quick order:

Page 1

Page 2

Page 3

Page 4

Page 5

A little while later, Brunet sent the following email:

Dear Parties,

I am currently out of town, and only have limited access to emails.

I have, however, read my colleague Panel member's dissent decision on my Blackberry.
As was previously explained to Mr Campbell, and which is offered to the Parties is the following:

(1) The Panel has always worked collaboratively, and intends to continue to work in this direction.

(2) All the decisions are taken after thorough consultation with other Panel members.

The majority Panel's interpretation of the Motion in limine was based on our understanding that the said Motion was based on an interpretation of the majority's interlocutory award.

It naturally flows that only the authors can interpret their own statements. This is the reason Mr. Campbell was not invited to respond, as was explained to him when requested.

Inversely, if any of the Parties had requested clarification from the Panel regarding Mr. Campbell's dissent award, Mr. McLaren and I would have remained silent and offered that he provide the explanation himself.

Now, the Panel is currently in receipt of a Motion to reconsider the initial decision.

Please note that this Motion is currently being reviewed by the Panel; each Panel member will have the opportunity to participate in the decision-making process.

Yours truly, Patrice Brunet

We do not yet have copies of the original motion, the reply brief, or the motion to reconsider.


Anonymous said...

What nonsensical twaddle from arbitration chair Brunet.

It looks like the kangaroo panel is in session.

bill hue said...

If I didn't actually read it, I would never have believed it. This is the same way I felt after reading the 2 to 1 Interlocutory Order.

The WADA Code and the Supplimentary Procedures do not mandate this result.

We are witnessing all this as a result of Landis' "open hearing" request.

Thank You Floyd but Godspeed, as well.


pem said...

I am a proud Canadian, but the conduct of these Canadian lawyers are an embarrassment - McLaren, Brunet and Pound!!!

Anonymous said...

At first I was appalled at how the lab could screw things up so badly.

Now I am appalled about how brazenly the panel can screw things up.

Floyd’s right. the WADA system is irreparably broken.

Ali said...

It looks like the lunatics have finally taken over the asylum.

Are Floyd and his team the only sane people involved with this case ?. Everybody else seems to be a complete basket case. Words fail me ... unbelievable !

Michael said...

Or...the USADA is setting up reasons to drop the case at 11:59 May 13th...

Just wishful thinking but this whole thing stinks.

Anyone check out the latest issue of Bicycling Mag and read the article on Landis? There's a paragraph or two about P. Scott and why he joined Landis' team. It also seems as though he and Catlin might be going against each other in the case.

Anonymous said...

I hope the non-cycling world takes note to what is going on here. How any sane person could still believe that Floyd is getting a fair hearing is beyond me. Just keep shedding the light on them Floyd!
Green MTN.

Anonymous said...

Is this the kind of stuff that happens behind the WADA steel curtain when the doors are closed? Did the arbs forget people are now watching? What Idiots! Bill Hue,Is it even Legal for them to make a ruling without consulting/informing all arbs? if not the DOJ needs to be involved NOW!

A true Kangaroo Court. I always thought it only happened in the movies these days. Now if I only had time to go to the Peperdine ZOO to see the Kangaroo's in action. Watch out Floyd, Kangaroos are known as dirty fighters, as we are seeing.

Atown, Tx.

bill hue said...

I checked out the AAA arbitration rules.
IT appears to require that all meet to make all decisions but others have interpreted the rule to mean only two have to meet at any time.

Anonymous said...

This makes me wonder if USADA/WADA realize their case can not stand on its own merits and are reverting to everything they can to get the outcome they want....To include having the ears and pens of two of the arbitors!

Anonymous said...

Anon 6:54,

I agree with your statement. It truly stinks, it's also what Dick calls the non-analytical positive.

Yol said...

"I am currently out of town, and only have limited access to emails."

Little white lie? ["I was away from my desk"]

Or indication of general level of concern? ["I didn't bother to bring my laptop."]

bill hue said...

Maybe Brunet was still in China with the rest of the Olympic cabal?

ZENmud said...

At least the idiots in your country aren't running a bankrupting warzone in the Middle East...

When the dissent is pages longer than the originating order, there's monkeys-work going on...


pem said...

I am a proud Canadian, but the conduct of these Canadian lawyers are an embarrassment - McLaren, Brunet and Pound!!!