Seven Paragraphs

Panel and WADA "experts" bend truth to convict Landis

The decisive part of the Landis arbitration was the reliability of the IRMS tests. In the critical seven paragraphs of the award, the majority contradicted itself and presented outright lies as their justification for conviction. In saying the arguments of the Landis experts were "unsound and without any reasonable scientific basis", they have shown the dishonesty and duplicity that the WADA/CAS community will go to to protect their own interests to convict an athlete.

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We will refer to paragraphs 182-189 of the Panel's majority award.

182. As required by TD2003IDCR, every time the RT of the target analyte is measured and the internal standard is measured it should be within 0.2 minutes as such the relative retention times should also be the same. However, it must be noted, that TD2003IDCR does not apply to RRTs between two different and separate instruments that are not of the same type. Therefore, Dr. Meier-Augenstein misdirected himself in his testimony before the Panel by comparing RRTs not between two GC/MS or two GC/C/IRMS instruments, but instead between one GC/MS and one GC/C/IRM

The lies begin in the second sentence, "However, it must be noted, that TD2003IDCR does not apply to RRTs between two different and separate instruments that are not of the same type."

Nowhere is that qualification present in TD2003IDCR. The matching of RTs and RRT is the very purpose of the identification being described by the document. This claim by the panel is both legally and scientifically absurd. It is also contradicted by the testimony of all the WADA witnesses, who said the match between the GCMS and IRMS peaks was done by retention time or relative retention time.

Nowhere in the testimony or briefs was there a claim that TD2003IDCR did not apply between the GCMS and the IRMS. This idea could only have come in deliberation from an attempt by the Majority to find a legal loophole, or via Dr. Botre's "independant" and unreviewable expert advice to the Panel.

Notably absent from the Panel's award is the actual text of TD2003IDCR, an omission striking because so much other fluff (chromatograms from irrelevant fractions) was included. We can see why, because it doesn't admit the interpretation the Panel has tried to apply:
.

Chromatographic separation
For capillary gas chromatography, the retention time (RT) of the analyte shall not differ by more than one (1) percent or ±0.2 minutes (whichever is smaller) from that of the same substance in a spiked urine sample, Reference Collection sample, or Reference Material analyzed contemporaneously.

In absence of the use of identification per TD2003IDCR's use of retention times and relative retention times, there is no way to identify the peaks. But let us proceed with the deception.

183. Dr. Brenna testified, that it cannot be expected that the RTs for a GC/MS instrument will correspond with the RTs for the GC/C/IRMS instrument.

This was Brenna's testimony in rebuttal, after he'd heard the problems with the retention time matching -- which he had testified earlier was the method for identifying peaks. Then Brenna contradicted himself in testimony, and the panel chose cite only the version that let them accept the test result. This is duplicitous by the panel, which should have taken the contradiction as an impeachment of Brenna's testimony on the subject. This was, in fact, clearly identified in the cross-examination of the rebuttal testimony. On page 1964, Suh is asking Brenna about earlier testimony, where he said the matches between the GCMS and the GC IRMS were done based on retention times. Suh is reading the earlier testimony:

17 Q. Question: "What are the three peaks
18 of interest here?"
19 Answer: "Same three."
20 Question: "And how would I know?"
21 Answer: "5-alpha, 5-beta."
22 Question: "How would I know which
23 is -- which is because they just have numbers at
24 the top?"
25 Answer: "Well, they have retention
Page 1965
1 times that match on previous -- with the
2 previous GC/MS and the GC/MS delivers structural
3 information, like aliquots, and so forth, which
4 tell us which is which."
5 Question: "By the numbers at the
6 top, can you identify those for us, like which
7 is the 5 beta."
8 Answer: "This one. 5-beta,
9 5-alpha, pdiol. Is that what you are asking
10 me?"

14 Q. And at the time you were describing
15 the importance of the retention time, you were
16 describing it in relation to the peak
17 identification between the GC/MS phase and the
18 GC IRMS phase; is that right?
19 A. Yes.
20 Q. But you didn't talk about that
21 today, did you?
22 A. I talked about whether retention
23 times should coincide between the two, and
24 relative retention times --
25 Q. Between the two what?
1 MR. BARNETT: Let him finish.
2 A. I talked about whether relative
3 retention times should coincide between rel- --
4 retention times and relative retention times
5 should coincide between the two techniques.

Later, realizing that use of retention times is fatal to the USADA case, Brenna gives the panel what it wants to hear, contradicting both versions of his earlier testimony:

Page 1970
15 A. Let me clarify my comments. It is
16 not the case that one would see identical
17 retention times or relative retention times
18 between GC/MS and GC combustion IRMS. I think
19 you are asking me whether the interface between
20 the GC and the IRMS could cause a four-minute
21 delay, and the answer is no. It wouldn't cause
22 a four-minute delay. If everything was matched,
23 it wouldn't cause a four-minute delay.
24 But it also would not be expected
25 that the retention times would match within some

Page 1971
1 sort of predetermined specification, and so I
2 would not use a matching of retention times from
3 a predetermined specification to match up peaks.
4 Q. That's why you use relative
5 retention time, correct?
6 A. You can't use relative retention
7 times. I explained why this morning. Would you
8 like to know what to use? I can explain it. We
9 have the chromatograms up there.
10 Q. No, that's all right.
11 A. Okay.
12 Q. Actually, no, why don't you go ahead
13 and explain it. Go ahead.
14 A. Well, on the GC/MS side, we see a
15 pattern, so we can see peak heights. And so --
16 and we want to look at the overall pattern is
17 what -- an intermediate-sized peak; a small
18 peak; this is one of the strong peaks; and then
19 a large one. And then we move over a bit, and
20 we find a large peak, an intermediate peak, a
21 smaller peak. And then we move to the end, and
22 we see a large peak.
23 And if you look, you see the same
24 pattern here. In fact, I would -- I would say,
25 you see a number of peaks here, a number of
1 peaks here, a number of peaks here, and they
2 have approximately the same -- same look from
3 this distance.

There we have it, Brenna's attempt to introduce an approximate, visual match as an adequate substitute for the quantitative methods identified in TD2003IDCR as mandatory for proper identification.

Let us proceed.

184. Dr. Brenna explained that in the case of the MS, the GC is connected directly to the MS and it detects the substance almost instantaneously. The RTs from the MS therefore correspond essentially to the time that the analytes are emerging from the GC. This is not however, the case with the IRMS. The GC/IRMS as elaborated upon by Dr. Brenna is an entirely different system than the GC/MS. With GC/C/IRMS, the sample is processed first through the GC, as with GC/MS. The times therefore at the end of the GC should be the same as with the MS, as long as the same instrument is being used, but after that there is no instantaneous detection of the retention time. After the sample passes through the GC portion of the GC/C/IRMS system there is an additional length of plumbing in the GC/C/IRMS machine adding a significant amount of time to the total RT of the substance. This additional "plumbing" is where the combustion of the substance is taking place. From the earlier discussion of how the instruments work, the reader may recall that combustion involves turning the compounds into CO2 so that the IRMS can measure the amount of carbon 13 and carbon 12 in the CO2.

True enough, and not in dispute, but here in the next paragraph, we either have a profound misunderstanding, lies, or misrepresentation by an expert.

185. The additional time added to the RT of the analyte or standard in the IRMS will always be a constant time, regardless of the individual substances or compounds being measured. Consequently, the retention times of the compounds emerging from the GC/MS system cannot be the same as those coming from the GC/C/IRMS. Likewise, the RRTs will also be different. Taking the example used above, if the RT from the GC/MS is 10 min for the target analyte and 5 min for the internal standard, in the case of IRMS, we may be adding an additional 1 minute for the combustion of those compounds to take place. The reason that the additional time is the same for each substance/compound is that the substance or compound is no longer in its original form; they have been combusted completely to form CO2. As such, the RT for the target analyte at the end of the IRMS would be 11 min and the RT for the internal standard is 6 min. This results in a RRT of 11/6. Arithmetically speaking it is not possible for the RTs and the RRTs to be identical in the GC/MS and GC/IRMS systems nor can it be ensured that it will be within TD2003IDCR.

This is mathematically incorrect, incoherent, and completely misses the scientific purpose of the use of relative retention time, which should have been explained by the panel's expert. The relative retention time is used because the absolute times will not match; that is its very purpose! The constant factor of the one minute delay should have been subtracted, and then one would indeed have matching relative retention times, exactly as described by Meier-Augenstein. To be specific, the correct computation is (11 - 1) / (6 - 1), which is 10/5, which is 2. After locating the "anchor" in each chromatogram, the relative retention time for each peak in the GCMS should be completely comparable to those in the IRMS.

186. Dr. Brenna's testimony specified that it could still be possible that the retention times might be proportional to one another (and within TD2003IDCR), but it won't always work out in that way. Instead, the lab compares the peaks and the sequence of the peaks from the GC/MS and GC/C/IRMS to identify the metabolites and the endogenous reference compounds. Specifically, to identify the substances in question, one would compare the pattern of peak heights and retention times in the GC/C/IRMS chromatograms, anchored by the internal standard with a known RT, with the pattern of peaks heights and RTs in the GC/MS chromatograms obtained from the same aliquot of the sample.

Yes, Brenna did testify to that. Unfortunately for truth, it contradicted his earlier testimony that RRTs were the method used. He here created, on the fly, an approximate visual identification standard that is not present in TD2003IDCR, and only exists in the record to salvage this case for USADA. (We will see later even this does not help.) The majority does not mention the contradiction in his testimony. It attaches itself only to the part that it wishes to hear.

187. Furthermore, as Dr. Meier-Augenstein attested, the RTs measured for the GC/MS instrument and the GC/C/IRMS instrument separately are within the 1% criteria. There is no dispute on this point between the parties. Dr. Meier-Augenstein also conceded in his testimony that when you are dealing with two separate machines one would not compare retention times but did claim that one would use relative retention times.

"The moment you run on two different instruments, in order to have comparison, to safeguard against such fluctuations that that are beyond your control, this is why you use relative retention times."

Which was not a concesssion, but a statement of the obvious about the absolute retention times. The use of "concession" and "claim" above are reflective of the biased shading present in the majority opinion.

188. The point must be conceded because the chromatographic conditions are different. The GC column is, of course, the same in both instruments. However, the thermal ramp {that is the variation of the temperature of the compartment containing the GC column as function of time} is different. That is evident from the fact that the total time for analysis is 25 minutes for GC/MS and 45 minutes for GC/C/IRMS. This difference in the experimental conditions would itself be enough to consider totally worthless a comparison of the retention times (or relative retention times) between GC/MS and GC/C/IRMS. Thus, the proposition of the Athlete as put by his scientific experts was unsound and without any reasonable scientific basis.

This is a scientifically incoherent statement reflecting either dishonesty or a deep lack of understanding. Since the panel had their expert to explain matters, it should not have been lack of understanding. The point of relative retention times is exactly to compare retention across instruments, and is what TD2003IDCR requires since it is clear that absolute times are of no help. It is also completely inconsistent with USADA's briefs and Brenna's testimony before he learned that the retention times didn't line up correctly. Both the briefs and Brenna said that relative retention times were the method in use, and that was what ensured the correctness. Only when they learned that the retention times did not match was the the story changed.

189. The Panel concludes that the Respondent's interpretation of TD2003IDCR is a complete misapplication of the document. The conclusions of the Respondent, based upon the evidence given by both Dr. Meier-Augenstein and Dr. Davis are scientifically totally unacceptable and fundamentally flawed. The Technical Document does not contemplate the comparison of retention times or relative retention time between two separate instruments. Therefore, the Respondent has failed to rebut the presumption that the LNDD departed from the ISL as outlined in WADA TD2003IDCR. This branch of the Respondent’s case and argument is dismissed as a matter of the expert testimony and as a matter of the proper legal interpretation of the Technical Document.

This conclusion turns the plain language of TD2003IDCR on its head. What is scientifically, legally, and morally unacceptable is turning a reviewed, published, numerically quantitative requirement into a "approximate visual identification" at the last minute to salvage a conviction.

Let's be clear. The panel says there are two machines with retention times of 25, and 45 minutes so you can't use absolute numbers. Correct. So under WADA TD2003IDCR then relative retention times need to be within 1% difference. Now the Panel is inventing a distinction that when there are two machines you can't use relative retention times either, leaving no quantitative method for identification . There is nothing in TD2003IDCR that says it applies only to one machine.

Now, the question naturally arises, "was it possible for LNDD to have achieved unimpeachably correct peak identification with the equipment at their disposal?"

Why yes, in fact, it was, if LNDD knew how to use what they had.

As Dr. Meier-Augenstein explained, if they had run the in-stock calibration mixture with all the analytes in question, they would have unequivocally identified the peaks in question as seen on the GC IRMS. But LNDD did not do this, and their relative retention times don't match, and their temperature programs were different and their flow rates were different, so really, they can't show they've done much of anything correctly.

The LNDD had at least three methods available to make the identification of the peaks in the IRMS compliant with the TD2003IDCR, and chose to do none of them:

1. It could have used a cal mix in the IRMS that had all the analytes of interest, and matched RT and/or RRTs on the same instrument. The LNDD chose not to do this.
   
2. It could have used nearly identical chromatographic conditions between the two instruments to make comparisons easier. The LNDD chose not to do this.
3. It could have used cal mixes on each instrument with a known peak after the last peak of interest, and computed Kovat's indexes for all the peaks in between the anchors at each end. The LNDD chose not to do this.
   

The LNDD did none of these things to put itself in compliance with TD2003IDCR, and the panel concluded therefore, that TD2003IDCR does not apply. This is like saying a motorist who has an inoperative speedometer cannot be given a citation for speeding because he didn't know how fast he was going. It is his responsibility to know. It was the LNDD's responsibility to produce an identification that met TD2003IDCR, and it did not do so by any reading of the standard.

The reasons why conformant identifications were not provided are excuses for not doing objective laboratory work. This is a "no liability" reading of the ISL compared to the strict liability of the Code as applied to athletes. If an athlete doesn't know what is in a supplement and tests positive for a banned substance, no excuse is good enough. If a lab doesn't know how to meet the ISL for peak identification, any excuse is accepted, and the athlete is still "deemed" to be guilty.

These seven paragraphs of the award do not present reasoned conclusions based on science or law, and are the heart of the ruling against Landis. Without them, there is no case.

They are a desperate attempt to prevent the finding of a legal conclusion there was an ISL violation that would lead to a burden flip. The burden flip that should have occured would have obliged the Panel to consider evidence that was dismissed off-handedly in absence of the flip. The arguments made by Amory the values were contradictory to known patterns, and the arguments of integration and linearity were blown off because there was no burden flip to require their refutation by USADA.

We see here all we need to know about the legitimacy of the inbred, unaccountable WADA apparatus.