Saturday, August 04, 2007

Saturday Roundup

The New Zealand Herald's Phil Taylor writes of trying to get cycling clean and the challenges that entails with UCI leadership like Pat McQuaid's:

We trust McQuaid's judgment has matured from when, as a racing cyclist, he went to South Africa under a false name and in breach of the anti-apartheid boycott. McQuaid has said he doesn't regret it - despite it resulting in him being banned from the 1976 Olympics - as he got to see the situation in that country the republic for himself and benefited from an extra two months of racing. It sounds like expediency and expediency has helped cycling into the mire.


The CyclingNews, in a piece with no Landis content,writes that Dick Pound has asked Werner Franke to submit any information he might have on Alberto Contador and possible doping:
WADA President Dick Pound has asked German antidoping crusader Werner Franke to send him the documents which are said to show that Alberto Contador was a client of Dr. Eufemiano Fuentes. Franke has sent the papers, according to the Süddeutsche Zeitung, and even added the protocol of Jörg Jaksche's interrogation by German investigators. Jaksche is noted as "JJ" in Fuentes' list, right next to the officially unidentified "AC."


The VeloNews' Friday Mailbag brings up the provocative question of doping in sports reflecting society, and the hypocrisies within:
Dear Velo,
We put athletes on a pedestal and when they are busted for doing, we burn them at the stake. Aren't we the ones who buy pills to enhance our sex lives? Don't many of us buy pills to help us get a better night's sleep, so we can be more alert and on top of our game? Don't most of us down coffee and energy drinks so that we can get the lift we need to get us through the day?

So why should the athletes be any different? Where do we draw the line with performance enhancing? When we stop investing so much money in our pros and what we expect from them, then maybe the doping problems will fade away. Until then it's here to stay.

Excuse me now why I go get my 24oz monster drink.
Brian Carvalho
San Diego, California


The VeloNews also notes that Lance Armstrong will NOT be competing in next week's Leadville 100 due to scheduling conflicts. Looks like Lance noticed all the training Floyd Landis has been doing and thought better of it.

Ottawa Sun's "Letter of the Day" seems to think cycling's troubles began with Landis:

The 2007 Tour de France was plagued by drug cheaters and allegations of failed drug tests. It's been losing credibility since 2006 winner Floyd Landis tested positive.

Press Democrat Columnist writes of a previous high profile resident of Murietta -- Barry Bonds, who wintered there for four years.


Blogs

Rant writes about the right and wrong kind of creativity that can affect the outcomes of drug testing from various WADA labs. He also cites the above NZ Herald article.

Chuck the Cyclist writes that pro cycling will survive despite everything.

Beegcellent Baseball writes Bud Selig and tells him to take a page from cycling's book on catching drug cheats.

Racejunkie
givers us a tour through 80s music as themes for comment on many current cycling stories.

Pommi
explores the differences in doping offense sentences between baseball and cycling. Guess which one has the harsher penalties?


18 comments:

Larry said...

Anyone out here feel like engaging in some rank, irresponsible speculation on why the Landis arbitrators are taking so long to reach their decision … and what the delay might say about the upcoming arbitration decision?

Good! That’s what I thought.

I’m going to set forth a few basic conclusions here. I can try to back up these conclusions in case anyone’s interested.

1. Following the usual process, the arbitrators should have issued their decision by now. Something is delaying them.

2. The delay is a strong indicator that the panel is considering a decision in favor of Landis.

3. I’ve read posts on this blog to the effect that the arbitrators are taking the time to truly understand the science of the Landis case. I’ll respectfully disagree, and conclude that the delay has nothing to do with the science, or any effort to understand the science.

4. The most likely reason for the delay is a disagreement within the arbitration panel on the grounds to be relied upon in the majority opinion: should the decision be made on narrow grounds (i.e., Landis is not guilty, but there’s nothing essentially wrong with the current drug testing system), or broad grounds (Landis is not guilty, and there’s something inherently wrong with the drug testing system).

5. The arbitrators are probably not struggling to understand the case, or to figure out how they want to rule. They are struggling to craft a decision that will not be overturned on appeal, that will have a positive influence on the sport, and that will not have unforeseen negative effects. For example, it MUST have occurred to the arbitrators that if they decide in favor of Landis, then the ASO might retaliate by refusing to invite U.S. teams to ride in future Tours.

wschart said...

Larry:

I don't know how much the concept of precedence holds with regards to CAS, but I think some past decisions are perhaps indicative of how CAS might go in an appeal. In the the Landaluze and the Paul Hamm case (not drug related, but it bears on the point I am about to make), CAS' rulings seem to indicate that they are more concerned about the process used than the actual facts of the case. In the Landaluze case, it seems that it was pretty evident that he did use a banned substance, however it was thrown out because of the fact that the same technician was involved in both tests. Paul Hamm, for those who don't know or remember, was the American gymnast who won a gold medal after suffering what appeared to be a diasterous fall. The Korean who got the silver appealed on the basis that the wrong difficulty factor was used in calculating his score. This was true, but CAS threw his case out because they did not file a protest in a timely manner.

So it seems to me that if the arbs want to rule in Landis favor, and base their decision on the basis of the apparent failure of LNDD to follow correct procedures, they should be on pretty solid ground.

bostonlondon said...

To be honest here, I'm far more in favour of the arbitors taking more time than less time to assess the case - it would indicate that they are taking more care in thinking through and writing their decision. A quick decision would have left me FAR more concerned about the veracity of the outcome.

PEM said...

I have several hypotheses, but I hope this is the reason for the delay.

The arbiters will rule in favour of Landis.

Since the hearing was public and viewed under microscopes by the arbiters’ peers, media, and educated individuals that have a strong interest, the arbiters must cover all grounds for the favorable ruling. They do not have the luxury to give the easy popular ruling (guilty) without being scrutinized. They need to explain in clear language, the many flaws that were revealed in the system, including the arbitration process itself, so that the general population who believes he is cheated, will understand.

WADA and Tour officials made many strong statements before the hearing. A favorable ruling for Landis would contradict these comments. They need to word their decision for the officials to be able to save face.

The arbiters may also be providing recommendations and guidelines on what changes are needed. Campbell’s direct questioning about the flaws with the current system to one of the USADA lawyers suggest this.

Finally, the arbiters realize there may be appeals and the French organization will also conduct their own hearing. This arbitration decision needs to be bullet proof. If an appeal or the French hearings are contrary to their decision, it may seem that they are incompetent in making a ruling stick.

Their ruling will be a longer read than “Positively False”. I hope what I just wrote is not a fairytale.

Peter.

Spike said...

CRACKPOT DESPOT

In the above linked CyclingNews story about Richard Pound seeking information to malign Tour winner Alberto Contador, they once again use their favorite picture of Pound --

http://www.cyclingnews.com/photos.php?id=/photos/2007/features/nyt_pound_landis07/Hkg3354785


Spike

Larry said...

This blog is the best ever. I post on a Saturday, hoping to get a discussion going, I leave to have breakfast with my wife, come back, log in, and there are intelligent responses waiting for me! So cool.

Before engaging in further speculation, it’s important to emphasize that we ARE speculating. The delay in the Landis decision may be meaningless from the standpoint of guessing where the decision may be heading. For example, maybe one of the arbitrators has personal problems, or maybe somebody’s computer crashed.

Bostonlondon, agreed. The time being taken by the arbitration panel gives us reason to hope that they are THINKING. That would be a good thing here. Even if the decision goes against Landis, we might have the benefit of a thoughtful explanation of why the evidence presented by the Landis team was not found to be persuasive by this panel. We can hope that the panel is using its time wisely.

Wschart, until recently I was expecting the kind of decision that you seem to be expecting: something narrow, and technical, and easy to defend (that is, if the decision is in favor of Landis). The idea being, try to write a decision that would do justice to Landis (give him his Tour victory and allow him to keep racing), while not unduly upsetting the powers that be (the alphabet soup of LNDD, ASO, UCI, WADA, etc.), and giving the Landis team something simple to defend on appeal. If the thrust of the decision is, for example, that the LNDD needs to do its paperwork differently, then perhaps the powers that be could be persuaded to begrudgingly tolerate the decision. They might mutter how Landis got off on a technicality, how he “bought” the decision by hiring lawyers that were able to outgun and overwhelm the folks at USADA … they might even push for an appeal … but ultimately they might conclude that they could live with such a pro-Landis decision, as it would not disturb the status quo.

However, I now see the landscape here in a different way. I think that any decision in favor of Landis would create an uproar. First, Landis may use the decision as grounds for suing everyone in sight, over his lost year of cycling competitively, lost endorsements, etc. If this is the Landis plan, then ANY decision in favor of Landis (regardless of the grounds for the decision) will precipitate an all-out legal war. So in a sense, the arbitrators cannot hope in this case to “sneak under the radar” with a narrow and technical decision. If their decision precipitates legal action by Landis, then the decision is a major big deal and will be resisted with maximum effort by the powers that be.

Also … the folks at ASO and UCI have shown during this year’s Tour that they are hypersensitive to anything and everything that doesn’t go their way. Look at what happened with the Sinkewitz case – the ASO blamed the UCI for the fact that German authorities released the Sinkewitz positive finding during the Tour. That’s pretty paranoid stuff. And ANY ruling in favor of Landis, no matter how narrow and technical, would dwarf the magnitude of the Sinkewitz situation.

So … I no longer believe that a narrow and technical ruling will be any more acceptable to the ASO, or WADA, or the UCI, than a ruling that condemns the current drug testing system in the broadest and most sweeping terms.

Peter: I don’t see any public outcry for reform of the drug testing system, or for a careful and detailed ruling from the arbitrators sifting through the arguments made by USADA and the Landis team. I also see little evidence outside of this forum that many people are convinced of Landis’ innocence as a result of the arbitration hearing. I think that the panel could decide in favor of USADA and there would be hardly a whimper of protest outside of the Landis camp.

I’m happy to discuss all of these points further.

mdhills said...

So, if the panel does rule in Landis' favor on some number of procedural grounds... anyone want to guess how many officials from the alphabet soup orgs will pronounce "to me, he is still guilty, and not the winner"?

Larry said...
This comment has been removed by the author.
Larry said...

mdhills, if Landis wins the arbitration, we can expect an appeal will be brought to the Court of Arbitration for Sport in Lausanne. The list of parties that can bring such an appeal is impressive: USADA, UCI, even WADA. (There might also be an appeal by Landis if he loses.)

If no one appeals a pro-Landis decision, then the ability of the alphabet soup agencies to complain about the decision will be muted to an extent. Probably not to as large an extent as one might hope.

But yes, you can expect a great deal of posturing and nasty rhetoric if Landis wins. In fact, I think you can expect more than mere words. I think you can expect retaliation.

wschart said...

Larry:

The point I was trying to make and perhaps failed was that I think that a narrow, technically based decision for Landis would be likely to be upheld by CAS. But as I see it, that is basically the only way a decision could go for Landis. While of course he does proclaim innocence, the actual defense was that the testing procedures were flawed and cannot be relied on In short "while I can't prove I didn't dope, you can't prove that I did". Innocent unless proved guilty.

Such a narrow technical decision could give the alphabet soups some cover: our testing program is good, just a few low-level techs screwed up.

But again, this is largely speculation. Hopefully, the arbs are only considering the scientific evidence, not the potential consequences of a decision. Time will tell.

nahual said...

Larry said: But again, this is largely speculation. Hopefully, the arbs are only considering the scientific evidence, not the potential consequences of a decision.

Being a Son-of-a-Lawyer any condideration of "potential consequences" is clearly outside the realm of the arbitrators, and a thing professional conduct would not allow.

I'm hoping for a 3 to 0 in favor for Landis, but won't be surprised with a 2 - 1 for Landis because of future employment considerations for memebers of the panel.

In the mean time we should all send a thank you card to Floyd for his courage to have his arbitration in an open format. Send him the price of a double mocha brevā also to support his attempts to enlighten all to the workings of the anti doping machinations.

New request, someone want to please tell me how to delete one of my postings on this blog. Thanks, N.

Larry said...

nahual, you should see a little garbage can next to the time shown at the end of your posts. You should be able to click on the garbage can and delete the post.

nahual, if I had a son, he (like you) would be a Son-of-a-Lawyer. As the Landis arbitrators struggle to reach their decision, of course they will consider factors in addition to what is fair and just for Landis. They're only human and they can't help it. You mentioned the factor that the arbitrators may be concerned about "future employment considerations." True enough. They'll also be concerned (in advance) about the criticism they may receive, in the media, from their peers, etc. We all want to be loved, none of us want to be hated -- even those of us who went to law school!

The arbitrators will be concerned about the effect their decision may have on other U.S. cyclists -- they would not want to create the impression that the U.S. is a place where cyclists can dope and get away with it. They may not be able to avoid creating that impression if they side with Landis, but they'll nonetheless be concerned about creating that impression. They'll worry about whether their decision will have a positive or negative effect on the state of drug testing in cycling, and on cycling in general. The arbitrators are involved with sport, presumably love cycling as many of us do, and would not want to do anything to harm the sport.

And as wschart has pointed out, the arbitrators want to craft a decision that will be upheld on appeal. So ... among other things, the arbitrators doubtless feel some pressure to come to a unanimous decision if they can.

So ... we can hope that none of these considerations will affect whether the arbitrators find for Landis or against him. We can hope. But in my humble opinion, these considerations will affect the grounds for any decision reached in this case.

wschart ... up until a few weeks ago, I would have agreed with everything you've said. Yes, in a normal case, you might expect a narrow and technical decision to be upheld on appeal, and to be tolerated by the alphabet soup agencies. But after seeing the hysteria evident in this year's Tour, I've changed my mind.

IMHO, there will be no "cover" for anyone if the panel decides in favor of Landis. The ASO is determined to strip Landis of his 2006 maillot jaune -- any decision that prevents them from doing so will be seen as an affront to their honor, regardless of the grounds. WADA cannot save face if the decision is crafted narrowly -- they long ago pronounced Landis to be guilty as charged.

Consider the uproar over Sinkewitz ... and Rasmussen ... and Vinokourov. Multiply that uproar by about 50. That's what we'll see if Landis wins the arbitration.

With all that uproar, I think the arbitration panel is going to look foolish if they decide for Landis based on narrow and technical grounds. They're going to need to put forth a reason for their decision that justifies not only the decision itself, but also the impact the decision will have on the world of cycling, and probably on the larger world of organized sports. If the decision results in a final break between ASO and UCI ... or if ASO reacts to the decision by refusing to invite U.S. teams or U.S. riders to race in the 2008 Tour ... or if the French GOVERNMENT gets involved ... the panel may look silly if the decision is based on something relatively inconsequential, like a paperwork snafu.

Yes, I know, deciding a case on the most narrow ground available is usually the lawyerly and safe thing to do. wschart, if we'd had this conversation a month ago, I'd be agreeing with you 1000%. But this is one strange case.

PEM said...

Hello Larry:

Thank-you for your comments as well. I have company this weekend, so my time to write is limited.

I do have a few more thoughts.

As a lawyer, if you were one of the arbiters, would you not be concerned with how other lawyers would review your decision? Is this not a pivotal point in time on how doping controls could be in the future?

In 20 or 30 years from now, we could be looking back at this hearing and things have changed for the better and you were part of it. Or if you conform and make no change, but the system takes its toll and breaks down in 10 years and change finally occurs, we look back and see how this was a lost opportunity. You were an arbiter that could have made a change, but did not.

I would also be concerned that all the information is available for anyone at anytime to review, and we can judge you on your decision.

Peter.

nahual said...
This comment has been removed by the author.
nahual said...

Larry, thanks for the garbabe can tip, Now I'm interested to watch and see the time limit for the feature.
>HR>

Larry said...

Peter, really good points.

Yes, as a lawyer I am always concerned about how my peers view my work.

As an arbiter, of course my first concern would be to reach the right result. Secondarily ... yes, of course I'd like to influence change for the better. But my power is limited: I can only decide the case before me and explain why. Once my decision is rendered, I'm out of the picture. What happens after that, I cannot control.

Assume for the moment that you're an arbiter also. You've decided that USADA failed to prove its case against Landis, so you'll decide in Landis' favor. You also want to do everything you can to see that your decision is upheld by CAS ... that normally means that you write a tight, well reasoned opinion on the narrowest and most straightforward grounds available, like wschart has suggested.

But let's say that you ALSO come to the conclusion, based on the Landis case, that something is fundamentally wrong with the current drug testing system. You can't reform the system yourself -- you lack the power, you're just there to decide the Landis case. But do you try to do something that might cause the powers that be to instigate reform?

There are strong reasons for you as arbiter NOT to try to act as a reformer. Strictly speaking, you've heard the facts of just one case. You have not investigated how the system works generally. Maybe this is an unusual case. Now, you and I may strongly suspect that this is NOT an unusual case, but we cannot know for certain.

Another thing: as an arbiter, you have no continuing powers. Once you communicate your decision, your job is over and your power is gone. Even if you want to make changes, you can't do it. The power to make changes lies elsewhere, with the alphabet soup agencies that have the power to investigate, and fire people, and write new regulations.

All that being said ... the decision in the Landis case is going to have an impact. If the decision is against Landis, or for Landis ... there's going to be ramifications. A decision against Landis will make a statement that there's no point in athletes trying to fight a positive drug finding, at least without evidence of the clearest and most obvious kinds of error. A statement in favor of Landis will be seen as yet more evidence that the current system is a failure -- it will be like pouring gasoline on a fire, and will probably push WADA, UCI and ASO to take even more extreme positions than they've currently taken.

I don't envy the arbiters.

N.B.O.L. said...

Several times there has been mention of a decision that will stand up to appeal. It was my understanding that an appeal to CAS is a new trial, and not a review of the previous decision. What is needed is not a decision that will stand up to appeal, but a decision that is so straightforward in it's reasoning, that it discourages appeal.

jrdbutcher said...

I have little insight into what the arbitrators will actually rule.

While they may be concerned about the consequences of their ruling wrt the state of anti-doping in professional cycling, that is not their responsibility. Their responsibility is to rule on the facts of the case.

For what little it is worth, I have my own opinion regarding what the ruling should be.

What is certain is that regardless of the ruling, Floyd has already spent a huge sum of money to defend himself from a stacked system and he has already served a de facto 1+ year ban.