Friday, November 09, 2007

Friday Roundup

News
A CyclingNews Special Feature focuses on a panel discussion about the legal issues of doping in sports which was held Tuesday and hosted by the sports law committee of the Chicago Bar Association. Moderated by ESPN sports writer Lester Muson, the panel consisted of Bill Bock, general counsel for USADA, Steven J. Thompson, a frequent defense counsel to athletes in drug testing cases, and Greg Lemond. The seminar, entitled "Legal and Ethical Issues of Testing for Performance Enhancing Drugs in Sport", covered many aspects of doping enforcement with discussions by the panelists coming from both the enforcement and the defense sides of the issue. Steven Thompson began by reading Christopher Campbell's dissent from the USADA vs Landis hearings and he was critical of the process under which athletes now must defend themselves against what they consider to be unfair doping charges. Greg Lemond responded:


In regards to what Thompson said about the lack of fairness inherent in the current system, Lemond disagreed. "I want fairness - I don't want a an athlete to be falsely accused," he outlined. "But within the sport of cycling I don't know of one false positive that was not, years later, that it was positive. Unlike the defense attorneys, I think the process is skewed [in favor of] the athletes. The governing bodies have to live to a higher standard than even our criminal justice system. The criminal lab's standards are so low relative to scientific labs. And circumstantial evidence still does matter."

In short, Lemond reiterated his stance on anti-doping to an audience not made-up of cycling enthusiasts, putting it this way. "I see these athletes like Floyd Landis and Tyler Hamilton - they're not bad people, but they get in a situation where the tests aren't reliable or not testing and they feel that they have to keep up and compete."


The CyclingNews' first update of the day refers back to yesterday's Michael Rasmussen news conference, and sends along more doping fall out items. Specifically, sponsors are bailing left and right over the Sinkewitz interview.
The CyclingNews Letters feature contains a couple of notes about the competence, or lack of competence, of the LNDD.
In this afternoon's CyclingNews dopinng update Anne Gripper of the UCI says it's highly likely that Michael Rasmussen will face a 2 year suspension for breaking the rule concerning the failure to disclose his whereabouts last spring. In more Rasmussen news, blood values which were released yesterday, seem suspicious to a noted doping expert.

The VeloNews provides more analysis and detail of the Michael Rasmussen news conference yesterday and suggests that Rasmussen will likely seek damages from Rabobank for illegally firing him last summer.
The VeloNews Friday Mailbag has a few mostly incredulous notes about the Kashechkin lawsuit.

The Boulder Report
is full of sin and sinners today with Joe Lindsey noting the recent doping news/court proceedings. He writes at length about the Andrey Kashechkin "human rights" case's potential to impact PED testing in the sport, and perhaps on sports in general.

The Onion reports that, in response to Sylvester Stallone's conviction for illegal PED use, there is an urgent recall of all VHS and DVD copies of movies where Rocky wins a sanctioned fight.

Blogs
Rant writes about Michael Rasmussen's public confession that he misled the UCI about his whereabouts last spring, but that his team knew where he was at all times. We'll see what Rabobank has to say early next week.

Go Faster Jim
is very clear about disclosing his whereabouts to us, it's good to know he will not face UCI sanctions, on that issue at least. He also thinks if we want to know about the "fairness" of the anit-doping system we should ask Floyd Landis.

Better to get a Flat than to get Shot notes the doping conference held in Chicago this week and is glad Greg LeMond spoke out.

59 comments:

Mike Solberg said...

Wow, those are disgusting comments from LeMond. Simply wrong and perhaps even intentionally so, just to serve his purpose. Even the majority decision recognized that the standards in criminal labs are higher than the standards in these WADA testing labs. All previous opinions of LeMond aside, just based on that one comment in this situation, what a jerk.

syi

strbuk said...

LOVE the Onion, I'm selling my 8-track of the "Rocky" soundtrack on ebay in protest!

str

m said...

Mike,

"Even the majority decision recognized that the standards in criminal labs are higher than the standards in these WADA testing labs."

Don't believe everything you read in an arbitration decision.

There are plenty of examples of shoddy practices by criminal labs. Unlike the Landis case where he gets suspended for 2 years and can return to cycling like many other dopers, those criminal lab errors result in long years of incarceration and even execution.

Thompson the defense atty said this too:

"Despite his criticisms, Thompson did speak favorably about USADA and is generally satisfied with the work that is does. "I've learned that USADA is not unreasonable," he said. "They take no special pleasure in catching athletes. My experience in working with them is positive." "

He pointed out how difficult it was for poor amateur athletes to mount a defense. But conceded this doesn't apply to rich pros like Landis (who allegedly has spent the monumental sum of $2 million challenging the findings).

jrdbutcher said...

The more important issue wrt the anit-doping movement is not whether criminal labs do a better job or WADA approved labs do a better job with there testing and testing procedures.

It's fairly easy to cite examples of shoddy work in both.

The more important issue is what kind of testing is allowed in a hearing, court or arbitration. Is it based on sound science, did it follow proper chain of custody to ensure authentisity of the sample(s), was proper storage provided, and was the process documented to a sufficiently rigorous standard?

LeMond is out of his depth. Pfft.

m said...

JRD,

"The more important issue is what kind of testing is allowed in a hearing, court or arbitration."

I think that Lemond was actually commenting on that to some extent. What he was referring to was the fact that the tests used return very many more false negatives, and thus let a lot of dopers get away. Therefore they are tempted to cheat. He was also referring to the hit and miss nature of the testing regime in general.

He is probably quite knowledgeable about those issues.

And I have to say those issues are probably much more important to stopping doping than how good or bad a test was conducted in any particular athlete's case.

bill hue said...

The presumption of guilt does not skew WADA's star chamber in favor of the athlete. The strange burden flips do not skew the proceedings in favor of the athletes. The lack of discovery, procedural impediments and selective supervisory powers inherent in the system and/or adopted by the arbitrators do not skew the system toward the athlete. A 2 to 1 majority of a panel of three in favor of the ADA mandated by the rules is not favorable to the athlete.

The selection of tests and the blessing of those tests by WADA does not skew the system in favor of the athletes. The deprivation of fundamental liberties and procedural protection mandated by the system does not skew the system in favor of the athletes.

The wilfull destruction of evidence permitted by the system does not skew the system in favor of the athletes.

What does? The adoption by the entity that makes the rules, prosecutes them and judges them of tests producing false negatives? The ineffectiveness of the bloated, money hungry buraucracy in enforcing its own rules? The moral bankruptcy of its leaders?

Those things skew the system in favor of the athletes? No. These things skew the system against justice.

Lemond is wrong in his weak and unfounded conclusions comparing the criminal justice system to WADA's Anti-doping Disciplinary Code. There is no reclaiming what was once seemingly solid ground. He has lost all credibility as it relates to his judgment once it is shown his judgment is fundamentaly flawed and on this one he is 100% wrong.

jrdbutcher said...

M,

LeMond has said he is not directly knowledgable about those issues. He's been quoted as saying he didn't personally witness any doping himself, but knows it went on and knows it goes on. I have not ever heard of LeMond stating exactly how he knows? That makes him about as knowledgable as the average person that follows doping/anti-doping.

I'll agree crap testing can be an incentive to dope. I won't agree, without better evidence, that LeMond knows anything about Hamilton or Landis wrt their problems with drug testing. LeMond took a cheap shot. Hope it made him feel good?

The kind of testing that was allowed in at the Landis hearing was found to be substandard. WADA rules allow sloppy testing to be entered into evidence in their (USADA's by extension) disaplinary heraings. The standard of testing done @ LNDD on the Landis samples wouldn't pass muster for paternity tests, blood typing, or drug testing in my local courts.

It seems you and LeMond are saying testing on professional cyclists have been wildly slanted to the false negative. Unfortunately, that may very well prove to be the problem of some cyclists that come back with false positives? That make take a while to prove. The system seems biased toward ensuring convictions rather than seeking the truth or learning from any mistakes that may be inherent to the system.

Best Option - Get the tests 100% right. Unobtainable.

Next Best Option - Get the tests as close to accurate as possible. Bias enough to false negatives so as to eliminate false positives.

Current Option? - The tests are not accurate enough to catch the cheaters. Move the bias or false negative/false positive to catch more cheaters. If a few innocent riders get snagged and have their lives and livlihood turn upside down, then that is the price of doing business and catching the cheaters. We won't have our testing peer reviewed. We won't adhear to high ethical standards(leaks) and scientific standards (they are excused-example, burden flips). We won't be compelled to turn over our SOPs (labs-LNDD) to accused athletes and there will be not penalty for failing to do so. That will make for a nice catch-22 wrt establishing evidence for a burden shift. While we are at it, we'll force the athlete to submit to a stacked deck arbitration with pro WADA (connected)/USADA arbs on our side with the fix in. As soon as we can, we're going to close that "public hearing" loophole. Makes it difficult to cover our a@@es when our mistakes are found out.

Floyd's shined $2 million worth of light onto this process and what he, and we, have gotten is a good view of stacked pile of manure.

......................................................................

jrdbutcher said...

Judge Hue got a response in earlier and wrote more eloquently than I ever could on the subject.

Larry said...

Bill -

When I first saw you refer to the ADA proceedings as a "star chamber", I objected. I think I said you were guilty of a gross exaggeration.

This seems to me to be a good time to retract and apologize. On further reflection and study, I now think that your characterization is a slight exaggeration.

If the accused athlete's only defense is to prove an ISL departure by the lab in question ... and if most of the ISL refers to criteria that the lab is supposed to adopt to determine if doping took place ... so the only way for the athlete to prove his innocense is to show that the lab departed from its own criteria ... and if the rules prevent the athlete from seeing the criteria ... that's pretty nasty stuff, jurisprudentially speaking.

I think this is more "catch-22" than star chamber. But if you're more inclined to history and less to literature, then star chamber will serve.

Sorry, Bill. You were right.

JRD, Lemond is being coached. He's towing the ADA line. In that regard, he's no better or worse than most of the people involved with this system. The ADAs want you to believe that their hands are tied, that the system is biased in favor of the athletes, with the result that they can catch only a few of the many athletes who are cheating. Lemond's statements are not nearly as bad as the recent statements of Saugy (head of the Lausanne lab) who said that over 80% of the TdF peloton were doping, that they had proof of the doping, but that they could do nothing because of the high level of proof required by the ADA rules.

strbuk said...

Thanks Bill, as always you hit the proverbial nail on the head.

str

BustinBilly said...

A court case that provides live, streaming video is not a star chamber.

Greg Lemond is correct. Only 12% of crime labs in the United States carry an international accreditation.

PEM said...

From wikipedia:

… legal or administrative bodies with strict, arbitrary rulings and secretive proceedings are sometimes called, metaphorically or poetically, star chambers.

... "Catch-22" is common idiomatic usage meaning "a no-win situation".

The closed door proceedings for the CAS appeal seems rather star-chamber-like to me, and more so than a catch-22.

Okay, back to the other room to study those graphs.

bill hue said...

So, Bustin'

Why don't you show us the WADA regulation that provides for all athletes to receive open hearings and grants them live streaming video of WADA anti-doping disciplinary proceedings?? I'll wait.

You want to give WADA credit for what Landis alone is responsible for in terms of openess. The facts don't even support a favorable view on the subject on WADA's behalf.


WADA labs are accredited 100% by WADA.

Lemond isn't even close to being right and your observations don't help or support his inaccurate observations that disagree with every lawyer's view on that seminar panel. At least Bock IV was honest about it.

m said...

"JRD, Lemond is being coached. He's towing the ADA line."

With all due respect, I think that is dead wrong. Lemond has consistently spoken about doping and clearly feels that this has tainted the sport. It is the reason he has given for quitting the sport. He is the genuine article.

Which is more than you can say for Landis, with his early equivocations and his later ruthless threats.

Which is more than you can say for all the other pro cyclists who have remained silent, unless caught. So we have the latest, Sinkewitz revealing an organized blood doping campaign on the teams he road on, Rasmussen admitting he lied to avoid testing and claiming his team knew all about it. The list goes on.

Only a few have consistently spoken out against it, and Lemond is one of those.

Bill Hue,

You have purported to speak out on behalf of the little guy. Like you I'm all for the leftist legislation introduced by Senator Feingold to protect those with weak bargaining power from compulsory arbitration.

But let's be clear Landis is no standard bearer for that cause. He is a rich athlete who has hired the best lawyers. He is as much a standard bearer for that cause as OJ was for the poor black criminal defendants who are sent away everyday in the courts of America.

m said...

JRD,

"The standard of testing done @ LNDD on the Landis samples wouldn't pass muster for paternity tests, blood typing, or drug testing in my local courts."

People claim this, but I would like to see some evidence. Can you refer me to some cases where a test was thrown out because of poor lab work, as opposed to outright falsification and fraud. Something besides the whistle blower fraud testimony that discredited the Houston police and FBI labs. I'd like to take a look at the standard of evidence used in such cases for comparison to this one.

Larry said...

BB, I'm not saying that ADA procedures ARE a star chamber. For one thing, FL was not imprisoned in the Tower of London. But an important feature of the star chamber is that the prosecution had great flexibility to define offenses, meaning that defendants didn't know the nature of their alleged crimes, or what evidence they would need to defend themselves.

Obviously, FL was accused of having done something specific. The analogy to the star chamber comes in the fact that the ADA procedures deny the defendant much of the information required to prepare a defense. The defendant cannot argue that he did not dope, because of WADA's so-called "strict liability" rule. Plus, WADA's rule contains a presumption that everything the lab did was valid. The defendant's only defense is that the lab departed from the ISL. However, as I pointed out above, the ISL turns on the lab's internal procedures -- if you don't have those procedures, then you can't tell if the procedures were violated. You have to guess what the procedures might have been. And the WADA rules say that the defendant cannot see the procedures.

Let's see if I can boil this down: at the star chamber, only the prosecution knew the nature of the crime you allegedly committed. At the ADA, only the prosecution knew the information you'd need to prepare a defense. OK, it's not a perfect analogy. I SAID there was a slight exaggeration involved here, and this was more like a catch-22 situation.

Besides, "star chamber" has come to stand as a metaphor for an unfair proceeding hopelessly stacked against the defendant. When we say that a defendant is facing a "star chamber", we don't really mean a court system used as a political weapon to suppress sedition. Think of "star chamber" as a metaphor, like you might refer to an unfair police investigation as a kind of "spanish inquisition", even if the investigation had nothing to do with heresy.

BustinBilly said...

Bill - All Wada laboratories are accredited by the International Standards Organization. The American Society of Crime Laboratory Directors have begun to do the same. Both organizations also require supplementary standards. At this time only 12% of United States crime laboratories have the accreditation of Wada laboratories. Wada is far ahead in laboratory standards. 100% of Wada labs carry the international accreditation.

http://www.ascld-lab.org/legacy/aslablegacylaboratories.html

bill hue said...

Bustin
That's great. Once our labs get Internationally accredited no mistakes of any relavance will be made.... Just like the WADA lab results!!! We can then also dispense with pesky little things like presuming innocence and laying a foundation for the admission of scientific evidence. We won't need trials like they don't need them in WADA cases once scientific tests take place.

All men accused of being fathers can start paying child support immediately once those internationally certified lab results come in, drunk drivers can go right to prison once the machine gives us the results, speeders can forfeit their licenses after a number appears on the radar LED, people accused of felonies can just go to the gas chamber because the fingerprints or blood test results are known. I can hardly wait for the day that our criminal justice system can be more like the WADA Code...... not.

Larry said...

M -

I apologize if my comments on Lemond sounded snarky or offensive. That was not my intent. I'm not crazy for everything he's done lately, but he was a great cyclist and deserves all the respect I can give him, plus any possible benefit of the doubt.

What I meant to say is, you can't be an ADA spokesperson unless you speak the ADA line. I probably should not have said that Lemond was coached, because maybe he really and sincerely believes the ADA line. However, IMO anyone who wants to work with the ADAs, wants to represent the ADAs, wants to get money from the ADAs, has to walk and talk the ADA line.

I won't speak further about this business of the "ADA line" unless that's something you want to discuss. I don't want one of my typical "sagas" about the ADA line
to obscure the message here, which that I meant no disrespect to Lemond, or offense to you.

I think that my comments provoked your comments about FL, and for that reason I'll ignore those comments, for the time being at least. If you want to discuss FL, we can, but I think our time is better served elsewhere.

OK?

bill hue said...

m said:

"Bill Hue,

You have purported to speak out on behalf of the little guy. Like you I'm all for the leftist legislation introduced by Senator Feingold to protect those with weak bargaining power from compulsory arbitration.

But let's be clear Landis is no standard bearer for that cause. He is a rich athlete who has hired the best lawyers. He is as much a standard bearer for that cause as OJ was for the poor black criminal defendants who are sent away everyday in the courts of America."

M,

I don't just purport to speak, I do. I speak with full disclosure of my identity. I speak my view. I am what and who I am.

In your view, Landis is rich. Amber is likely to disagree. Even if he was, your world view is interesting. There are entities like the government and WADA that are more powerful than any single person, even one that has some money. To exclude people with resources from consumer rights or the right to jury simply because they have money is wrong. Money is not evil. Power isn't necessarily evil. The use of power to take fundamental rights from any person is evil.

("Eightzero") said...

"Money is not evil. Power isn't necessarily evil. The use of power to take fundamental rights from any person is evil." -Bill Hue

I want this on a t-shirt. You made my day, Your Honor.

jrdbutcher said...

M said:
"People claim this, but I would like to see some evidence. Can you refer me to some cases where a test was thrown out because of poor lab work, as opposed to outright falsification and fraud. Something besides the whistle blower fraud testimony that discredited the Houston police and FBI labs. I'd like to take a look at the standard of evidence used in such cases for comparison to this one."

My advise on this from several reputable lawyers is that it doesn't meet standard to even come in to trial.

If you want, take a study course for just about any bar exam in the U.S., and you'll have your answer. I'm not going to do the leg work for you on this one.

Attorneys here are welcomed to comment on the subject.

Larry said...

jrd -

I DO happen to agree with you and not with M on this particular point, but M's credentials here are very strong. You can click on the following link and read his brief supporting the majority opinion. It is well-reasoned, thorough and honest. That's both my personal and my legal opinion. m's brief.

jrdbutcher said...

I've read M's brief. He's done good work.

I don't agree with him on the standard of evidence allowed in.

I also disagree with him about LeMond. I'll agree LeMond was the real thing as a racer. Since then, he seems to have soured on any U.S. rider that approaches or excedes his success. He imposed himself on the Landis hearing, where even the Majority Award noted he didn't have anything of substance to add.

If he is going to be credible to anyone but his ardent fans (I used to admire him myself, and still do, but as a racer, not the man he's grown to be), he's going to need to offer more than he has. Perhaps some specifics about what he knows or doesn't know about doping when he raced. Inuendo is not productive, nor is it proof. That seems to be all he's offering.

m said...

Bill,

"To exclude people with resources from consumer rights or the right to jury simply because they have money is wrong. Money is not evil. Power isn't necessarily evil. The use of power to take fundamental rights from any person is evil."

Who claims money is evil. Not I. Money confers bargaining powe thought.

There is a fundamental difference between the aims of the Feingold bill and the Landis situation. Feingold is attempting to protect consumers and employees with little bargaining power or knowledge from having protective rights given to them by law and statute eroded by contractually flimsy arbitration rights imposed upon them by much more powerful entities. He wants those statutory rights to get a legal full hearing.

Landis is not seeking to assert any statutory or constitutional rights here. Landis is employed by a group of private businesses who give him the opportunity to earn lots of money. But they have said that in order to make that money he has to compete "fairly", otherwise they can't market this business/sport/entertainment successfully. So he can't dope and they will define how doping is defined and when he can challenge it. If he doesn't like it he can seek employment elsewhere. There are no governmentally conferred statutory rights here that have not been adequately protected. There are no fundamental constitutional rights here.

Landis as the top rider on his Phonak team was probably making close to a million dollars. He has a coterie of advisers. Sinkewitz a middle-high rider on T-Mobile was making $600,000 dollars or Euros if I remember correctly. The procedural rights Landis is afforded are greater than those afforded 95% of all employees in this country where most employees can be fired for no reason.

You speak of "fundamental rights". That is a legal term of art as you well know and typically refers to constitutionally protected fundamental rights under the 5th and 14th Amendments. What fundamental rights are you claiming for Landis here?

bill hue said...

The fundamental right I am referring to is the right to a jury trial. That is the 5th Amendment, in conjunction with the 14th for all you scoring at home. We can fold the 6th Amendment due process stuff through the 14th that way too. All that is pretty basic, and applies to civil matters as well as criminal ones. The rights guaranteed by the 5th/6th/14th Amendments certainly apply when your employer fires you and you believe they had no right to do so. I'm not going to be drawn into some long analysis of "right to work" states and "employment at will". Such distinctions do not interest me. It also applies if your employer violates your rights in some other way. The employer is not immune from a lawsuit.

Unless you are covered by a collective bargaining agreement calling for some alternative method of dispute resolution, every employee has recourse to the courts. Collective bargaining agreements are the product of negotiation between two parties of equal bargaining power.

In contrast, Landis and ANY individual is forced to reliquish any access to the Courts and consequently any right to a jury trail and is compelled into arbitration through the simple act of taking a license from Cycling USA, a prerequisit for any individual rider to be permitted to ride in any sanctioned race or to ride professionally.

I can point you, again,in the direction of commentary, which makes it clear any such "agreement" prior to any controversy would not be enforceable under the Feingold bill.

"MacCleery said Feingolds bill would not just apply to credit card companies but to all binding mandatory arbitration contracts."

All means all and the USA Cycling license requirement mandates binding arbitration. So that requirement would be rendered unenforceable by the bill.

Now, should US riders form a union under the NLRA and that union negotiates an alternative, then there would be equal bargaining power, probably permitted under the proposed law. Moreover, should a controversy arise and a rider and USADA agree to litigate in arbitration, that would also be permitted.

You assert that the UCI/WADA construct afforded Landis greater rights and rewards than 95% of American workers. I guess working for the mafia also has its rewards but the downside can be pretty drastic and final.

Larry said...

jrd, a few points here. First, my take on LeMond's comments differs a bit from Judge Hue's. He's a bigger picture guy than I am! I don't focus as much on the forum, or the presence or absence of a jury, I focus more on the WADA rules.

If you want to draw a bright line distinguishing a WADA proceeding from a criminal court proceeding, I'd focus on the presumption under the WADA rules that all WADA lab procedures comply with the ISL. You're not going to see anything like that in a criminal proceeding. If you can show a pattern of lab screw-ups, at some point the judge and jury will come to the conclusion that the lab cannot be believed.

As for Lemond ... you might want to venture over to the Rant Your Head Off blog, where that's the current topic of conversation.

("Eightzero") said...

When I first read Vino's "this is a violation of human rights" tirade, I was stunned. Turns out the terminology isn't very clear. What apparently is meant by "human rights" or "fundamental rights" in a European/EU law context is very much like our "innocent until proven guilty" concept in the US. This constitutional presumption only applies to criminal matters - the constitution has *nothing to say* about the acts of private parties.

In civil matters, liability attaches once once a plaintiff has met the requisite burden of proof (generally a preponderance) but then subject to various defenses. From what I know, the WADA code and the associated contractual obligations undertaken by the athletes attach liability not if the athlete doped, but if the tests indicates a certain result. The defenses are narrow to the point of being non-existent. Are these "adhesion contracts?" Perhaps. But the European courts seem to address this process differently.

Landis' case is not the one to watch now. It is Kashekin's. I beleive Floyd and support him. I hope he prevails. But Kashekin's challenge, if successful, will do more to reform this insane Keystone Cops routine LNDD/ASO/UCI has subjected us to.

m said...

Bill,

Leaving aside our disagreements about the deprivation of Landis' legal rights;

I took a look at the Feingold Bill language, and I'm not sure it applies to Landis. It applies to "employment contracts".

(b) No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of--

(1) an employment, consumer, or franchise dispute; or

(2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power."
....................

"(3) 'employment dispute', as herein defined, means a dispute between an employer and employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act;"

I don't think Landis's licensing agreement with USADA would fall under the definition of an employment contract. But I haven't researched it.

bill hue said...

m,

I'll email your analysis to Russ' office.

m said...

bill,

You should put "analysis" is quotes! LOL!

bill hue said...

You just might be surprised if your contribution causes proposed language to be modified. He's going to be interested, seriously.

m said...

EightZero,

That's not how I've read the commentary re Kashekin's claim.

He is claiming that under European Human Rights laws no private organization has the legal power to interfere in the "private" life of a citizen, only the government has that power. For example, in the U.S. some employers are forcing employees to quit smoking in their private lives or risk being fired. This would allegedly violate European law.

He claims that the out of competition drug test by the anti-doping folks (who he claims are a private/non-governmental organization) was during his "private" time and thus violate this law.


If successful his challenge might prevent all out of competition testing, unless authorized by a new European law.

Larry said...

Bill, do you seriously think that Sen. Feingold contemplates that his legislation would impact USADA? I think we should keep this possibility a secret. If anyone in D.C. gets wind that they're about to legislate USADA arbitration out of existence, someone's going to draft a USADA exception into the legislation tout de suite.

the Dragon said...

M,

I think your reading is correct.

I hope he wins.

Then there can either be an International Treaty which gives the athletes a modest level of rights, and more importantly will include sanctionable actionable responsibilities to Sports Governing Bodies. This is what citizens of the US and Europe expect in all their everyday activities. Granted those rights are not perfect, yet under the IOC and WADA the athlete has NO useful rights. Their rights are in word, not deed.

Regards,

bill hue said...

I think Sen Feingold is interested in Landis' case. I think he will be interested in M's analysis.

I'm pursuing this.

Bill

m said...

Bill,

Sen Feingold is one of my favorite Senators.

But professional athletes advised by agents and others are not the weak and disadvantaged that he is seeking to protect here.

Maybe, the amateur athletes are disadvantaged, but that defense atty had the best suggestion: provide some representation like the public defender for those athletes who don't have any money. If you don't do that, then your vaunted jury trial rights will only be available for the rich athletes.

And we are not even dealing with how a sport is supposed to regulate itself in an affordable manner if any of its decisions are subject to the cost and delay of a lawsuit.

There is a reason why Americans are the most litigious people on earth.

tbv@trustbut.com said...

M, please check your email...

TBV

Larry said...

Bill and M, the impact of having doping cases decided in courts will be limited, if the courts are going to be stuck enforcing the WADA contract.

Just because the Feingold bill passes, that doesn't mean that athlete doping cases are going to come before courts charged with the task of figuring out, on the basis of a preponderance of all available evidence, whether the athlete doped. Unless the Feingold bill goes a lot further than I think it goes, we might see an improvement in the forum, but the cases will be decided under the same old rules, including "strict liability" and the presumption that the labs followed the ISLs.

I'm not sure whether the WADA restrictions on discovery would be enforceable in a court. That's an interesting question.

I think this is all moot in any event. If you're right and the Feingold bill is adopted with a prohibition on the WADA-style arbitration, then WADA and the UCI will act in some way to preserve their existing system. For example, they might move jurisdiction over these cases outside of the U.S. With the result that U.S. cyclists will argue their doping cases before European arbitration panels.

I also think that as soon as someone in Congress steps up and argues that the Feingold bill could endanger the ability of U.S. athletes to appear in international sporting events, the lawmakers will add in an exception for USADA proceedings.

However, at this point I've reached a level of frustration with this system that is so high, I think that anything that might shake up this system is a good thing.

jrdbutcher said...

If the Feingold bill and/or any action taken by the EU helps WADA/USADA re-think and move to an equitable system, then that would be positive. Even though I’m a fairly vocal critic of WADA, I support their core mission. It’s just that key WADA officials(and key officials associated with much of the rest of the alphabet soup) have managed to get themselves well past drunk on the (near absolute) power they have carved out for themselves. A system of adequate checks and balances is sorely lacking in the current system. That’s my complaint.

If they can enact checks and balances (to include peer reviewed science, equitable discovery for accused athletes, serious sanctions for officials that break rules that cause harm to athletes, and a system of adjudication that doesn’t stack the deck with pro WADA decision makers………..) then the notion needing courts to decide high profile cases, such a the Landis case, would largely become moot.

The reason we are debating this issue is because so many concerned individuals are of the opinion that the current system is f%&k*d up, wildly skewed against accused athletes, and is sorely in need of oversight that is not now built into the system. If WADA can fix that, we won’t be talking about the need for courts to intervene.

tbv@trustbut.com said...

Not to be accused of being a WADA apologist or anything, but much of the inequity we're seeing derives from a simple obvious reason: lack of money. The system is designed to be a slam dunk because they can't afford, fiscally, to open the doors for discovery, and to do all the research, or to be fair. They have the mindset of troops in a war, performing summary executions on the battlefield, for lack of what they believe to be viable options.

For similar reasons, we seem in anti-doping to approach, metaphorically, the equity of the Gitmo legal proceedings. I would not suggest that imprisonment and "enhance interrogation" is the same as suspension from competing in sport; however, lack of ability to defend, inability to get evidence, and rules of procedure that seem to change arbitrarily to get a desired result bring about a sense of deja vu.

There are dirty dopers, and there are bad people in Gitmo. But is what we're doing right by anyone who may just be caught up in the net? Can we, and are we interested in determining the difference?

TBV

m said...

Larry,

Great comment. You have fingered some of the key legal and political issues that arise were the Feingold Bill be applicable to Landis.

The words "no predispute arbitration agreement shall be valid" could be read narrowly to knock out arbitration requirement only, or broadly to knock out all the presumptions in favor of the labs. The broad interpretation is consistent with some of the statements of legislative purpose.

If the latter then a full on preponderance of the evidence trial with dueling biased expert witnesses. I think USADA might have just as good a chance in such a trial, since a doping finding could not be thrown out on a technicality. On the other hand how could a jury or even a judge possibly understand the scientific evidence: flip a coin or "I hate the French".

The cost and length of the discovery process and the trial could be huge.

m said...

TBV,

I agree with you about the lack of money.

Your parallel to GITMO was thought provoking, since there are plausible parallels which can be drawn with respect to some of the procedural and evidenciary impediments. I won't call the comparison hyperbole, since I haven't thought it through, but on a percent scale I would put Gitmo at 99% and WADA vs Landis at 10-15% on the unfairness scale.

And the stakes are not comparable at all, nor is the resource disparity. As I keep arguing, $ 2 million dollars will buy you a lot of justice even with the procedural and evidence impediments.

jrdbutcher said...

While I appreciate the argument that WADA may be fiscally lacking to do the job correctly and has thus decided to cut corners, I can’t fully buy into it, or excuse it, considering some of the proposals for updating the code and testing.

Many of the proposals, if enacted would only make the system more draconian. Seeking to remove the option for an athlete to have a public hearing at the ADA level is one example.

Biological Passports are similar to the longitudinal sort of testing currently done by teams such as CSC, Slipstream, and T-Mobile. WADA/UCI were initially quite skeptical about the teams doing their own testing, being suspicious that it may be used as a vehicle for sophisticated doping or sophisticated undermining of the official controls, or in other words, to get around the controls. While WADA/UCI looked t CSC’s testing with the most jaundiced eye, it should have probably asked more questions of T-Mobile and the Freiberg Clinic docs who previously engaged in systematic doping for an earlier iteration of the team. While some still argue the in-house team testing (with independent oversight) is a vehicle for sophisticated doping and detection avoidance, I don’t share their view. These teams have been transparent with their programs in a way I wish WADA could/would be.

When longitudinal testing was first seriously proposed, the early pessimistic commentary was that a system of Biological Passports would be too expensive to administer and it would take several years of preparation to implement, if it were to happen at all.

CSC, Slipstream, and T-Mobile showed it could be done and showed they could fund it, despite drug testing not being a racing team’s core mission. It is WADA’s core mission and is near the top for UCI as it is key to “fair competition”. If the will is there, they can also figure out a way to fund it.

Longitudinal testing/Biological Passports is/are widely purported to be a more accurate means of detecting doping than current methods. With statements from WADA lab directors that 80% of the peloton showed signs of doping in the 2007 TdF, if true, then the current testing is a gigantic waste of money, time, and effort. If the 80% statement is anywhere near true, then the current system is capricious to the maximum. We may just as well draw numbers for sanctioning athletes.

WADA/UCI/ASO seem determined to quickly implement a system of Biological Passports in top level road cycling in 2008. Previous statements of taking much time to prepare/implement and it being too expensive not withstanding.

Given their track record, it’s predictable that they will cut corners with biological passports. I’d argue that whatever they do, they need to strive to do it right. We’ll have to wait and see if the new WADA President is better able to lead the organization to better meet its core mission.

If not, let’s just call it what it is and agree to draw numbers.

strbuk said...

Having enjoyed these discussions and the various routes they have taken, I realize that one thing keeps coming to me as I reflect on all that has been said. All of the scientific theories and legal conjecturing aside, this is about justice. One can argue vociferously in favor of or against the rights of the athletes within the AD system, but for me this will always be about one person's public struggle. And whatever the final outcome of the CAS hearings are, Floyd Landis' life has been reduced to a ruin. This is then not merely about scientific and legal rhetoric, this is ultimately about a person who may very well have been unjustly accused, tried, and professionally buried within the system.

str

Larry said...

TBV, viewing the expedited WADA procedures in the most favorable light possible, one can say that these procedures are designed to set up an expedited and efficient procedure to get drug cases resolved predictably and quickly, before an expert panel familiar with the rules and the science. So, saving money is a part of the story, but not the entire story.

Full disclosure: I'm a business lawyer, not a litigator. My involvement in litigation is always second-hand, and I avoid courtrooms. I think it's my job to keep my clients out of court. All that being said ...

As an attorney, when I draft a contract that provides for binding arbitration, my main motivation is to provide for quick case resolution, and sometimes, to avail my clients of the service of an expert arbitration panel. Despite the impression you may have of arbitration from the FL case, I think (speaking generally) that most lawyers view it favorably. (To be certain, we can question how arbitration is used in particular contexts, particularly where it's imposed under contracts where one party -- the consumer, the employee, the bank or brokerage customer -- has no ability to negotiate.)

I've seen contracts with arbitration provisions that restrict discovery, but these restrictions are not commonly used in the areas of law where I practice. I'd be reluctant to restrict the parties' right of discovery by contract, because to be blunt, I could never be sure whether my client might need those rights in a particular case. In any event, I've always thought of discovery as a money SAVER. Whatever work lawyers can do outside of the courtroom is cheaper than the work they do inside of the courtroom. Also, I've always thought that discovery leads to resolution of disputes out-of-court, which is a money saver.

I doubt that the WADA rules restricting discovery are saving anyone any money. Yes, it's cheaper for the labs to provide a standard document package than to respond to a detailed discovery request. But if the athlete is well-represented, then the athlete's attorneys are going to do whatever they can to get at the relevant facts of the case. If the facts are not made available prior to trial, then the trial will be spent trying to get to these relevant facts. So in the FL case, we spent how many days examining witnesses like Mongongu and Frelat, with numbers of attorneys (not to mention expert witnesses) having to sit through the whole thing (in French followed by the tortured translations) at x hundred dollars an hour each. Imagine how much more efficient it would have been if FL could have sent an attorney to Paris to take their depositions. There might have been no need to have Frelat (for example) present in Malibu. That would have saved the LNDD quite a bit of money, and USADA would not have had to pay for its entire team to sit through all that testimony.

Of course, I'm not pretending that lawyers use discovery solely to achieve an efficient process and to save time and money. No. Litigation is a battle, and discovery is a weapon in the battle. A big firm (like FL's law firm) can use discovery to overwhelm a small firm. And each party will battle over the breadth and relevance of the discovery requests made by the other party. It's not pretty. But at the end of the day, I think that it's more efficient (not to mention more fair) to engage in discovery than to wait for trial to uncover the relevant facts.

So ... even if you look at the WADA arbitration proceedings in the most favorable possible light, I don't think that the restrictions on discovery are designed to save money. I think they are designed to control the process, to limit the issues being considered, to protect the labs from scrutiny and ultimately to provide for a process that's likely to confirm the doping finding.

jrdbutcher said...

I’m not going to try to argue with that well thought out assessment (imho) Larry.

Quick point: USADA also hired a big gun. This was big firm vs. big firm in Malibu.

m said...

Larry,

Re: arbitration discovery

It was my understanding that in most arbitration clauses the right to pretrial discovery is much more limited than in a civil action. That's the whole point of using arbitration, it's more informal and less costly. While the parties may contractually agree to full discovery rights this is not that commmon. Moreover there is the question whether an arbitrator has the legal power to enforce a discovery order against a third party such as the LNND lab here. My understanding is that the answer is often no.

Finally, in the Landis arbitration, under the rules of the American Arbitration Association, the panel appeared to have the power to order more discovery, including possibly the inherent power to order production of additional SOP's despite what the ISL said, at least that was what was being argued by Landis. The panel chose not to. While I didn't dig through the discovery motions like you did, I wonder if Landis could have shown a specific need for a document whether the panel was not authorized to order it's production.

Some quotes from articles I've located.

http://library.findlaw.com
/1999/Sep/1/131224.html#10


"Discovery in arbitration generally is designed to be minimal and informal, and is far less extensive than discovery under traditional litigation.7 Discovery in arbitration is limited because the object of arbitration is to foster final disposition of disputes in an easier, faster, and more economical manner than by litigation.8 Illinois courts have noted that parties willingly accept the absence of procedures employed in the justice system in return for the benefits of a quick, less expensive resolution of their dispute.9 The distinction has also been state that "[a]n arbitration hearing is not a court of law . . .When contracting parties stipulate that disputes will be submitted to arbitration, they relinquish the right to certain procedural niceties which are normally associated with a formal trial, such as the right to pretrial discovery . . ."10"

"Although provisions allowing for pre-hearing discovery may bind parties, such provisions cannot bind nonparties.14 Absent a statute, parties to an arbitration have no right or power to contract to impose discovery obligations on nonparties."

Business's often obtain protective orders preventing discovery of their trade secrets and proprietary business processes. I wonder if the Labs have a similar interest in preventing discovery of certain of their SOP's and procedures.




As an aside, I would note that many if not most of the witnessses had to come from Europe or the Eastern U.S., yet the arbitration was held in Malibu. I never bothered to check why. It sure seemed that the travel burden was imposed on the other parties here, not Landis. I assumed that they came voluntarily. I wonder if a court could have compelled them to attend.

Larry said...

M -

Per usual, great points.

This is what I get for venturing outside of my fields of expertise ... like IRMS peak identification! ;^)

I did not mean to imply that parties to arbitration have the same rights to discovery as parties in a court case. I only meant to state that as a lawyer, I would not generally want to further restrict the rights of the parties in arbitration to get discovery ... and that as a general matter, I regard discovery as a time saver and a money saver.

Yes, the arbitrators in the FL case acknowledged that they had the right to order additional discovery. They determined, notwithstanding this right and in spite of the arguments raised by the FL team, that they would not order the LNDD to produce additional documents.

I have not thought about the ability of an arbitration panel to order third parties to produce documents and to testify. That's a good point, they probably do not have that power. But I don't think that the LNDD would be considered to be a third party here. It's likely that as a result of the WADA rules, the WADA labs have effectively bound themselves to provide testimony and documents at ADA arbitrations. I don't know if the ADAs can use legal process to compel the labs to do anything, but I doubt there'd be much left of a doping case if the relevant lab refused to cooperate with the arbitration panel.

Again from what I've read, in the U.S. at least, it's important that arbitrators be given discretion to order additional discovery to meet the needs of justice. A contract provision requiring binding arbitration can be tossed out if discovery is limited and the arbitrators have no way to expand discovery as needed to meet the needs of a given case.

And yes ... I think one argument advanced by USADA against broad discovery in the FL case was that LNDD's SOPs were protected trade secrets. I have a few issues with this -- at least the SOPs tied directly to the ISL should not be secret. But there would have been ways to protect these trade secrets from disclosure, such as the use of nondisclosure agreements. I'm not an expert on this, but I think that trade secrets get some amount of protection in discovery in a court proceeding as well.

tbv@trustbut.com said...

Wow, trade secrets now as well. Sounds like paragraph 8 of the WADA party line you have going over at Rant.

(8) Test protocols should not be revealed to accused athletes, because they represent trade secrets of our accredited laboratories. If the details became known, Dirty Dopers could exploit this knowledge of the technique. For similar reasons, in the future, all research on ADA testing methods will be published in ways only accessible to WADA accredited scientists, and reviewed only by accredited scientists. This is for your own good.

TBV

jrdbutcher said...

Pehaps the "Trade Secret" (not so secret) here is that the LNDD test has not been fully vetted and does not meet standards for reliability. Of course, it's good enough for WADA because they "say so". (Oblique reference to Dr, Ayotte)

m said...

TBV,

I don't post at Rant, and generally don't read him since he is such a biased commentator.

I raised the trade secrets possibility because it is used by businesses all the time to prevent discovery. If USADA also advanced it, then either "great minds" think alike, or more likely it's an obvious consideration in this case, with the Balco's of the world lurking out there designing undetectable steroids to avoid the drug tests.

strbuk said...

M, perhaps you should take a look at Rant, there is some excellent commentary there, and not all pro Landis. Plus it might not be a bad thing to see the other side once and a while, I read material that is against Floyd almost as much as I read that which is for him.

str

daniel m (a/k/a Rant) said...
This comment has been removed by the author.
bostonlondontokyo said...

I'd have to agree with M about Rant: I am really not certain of Rant's intentions. He is clearly biased, which is fine (everyone can be 'king' or 'queen' on the web, as it should be,) but I think his blog is far more about his editorialising the current news than it is about discussion. I've viewed his threads and the comments, and his reactions to comments almost always serve to further his instruction of the non-believer. It's rare that he will actually be swayed by comments from other readers. Tbv is a more balanced forum, despite the biases that make themselves known during conversation.

Not a rant against rant, I just find his tone far too preachy and pious; and when I have commented about viewing from another angle, I've just been ganged-up-on and told how my thinking is wrong (not in so many words, but clearly through suggestion.)

m said...

Strbuck,

"perhaps you should take a look at Rant,"

Perhaps I will, but there are only so many hours in the day.

I'm more into fact or evidence based commentary, and it seems to me his "rants" are often fact free or very selective about the evidence. But I'll give it a shot.

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

BLT,

Sorry you had that experience. I would hope that the discussion at RYHO can be an open and free exchange of ideas. I guess it doesn't always come off that way. I'll certainly take what you have to say into account in the future.

As for my intentions, it's merely to write about what interests me (doping in sports, with the Landis case a particular focus -- especially since that's what got me riled up to begin with) and get a discussion going. I certainly strive for making the site welcome to all points of view. If you think of TBV as the clearinghouse for all information on the Landis case, I'm just one guy writing an editorial column that gets featured here on a fairly regular basis. Not enough time to do a lot of straight news, as my day job interferes with my writing. If I were able to earn a living at this full-time, then the story might well be different.

M,

Give it a shot, you may find yourself pleasantly surprised. At least, I hope so. On a slightly different note: Even though I don't think you and I are on the same side of the fence regarding the Landis decision, I've certainly enjoyed reading what you've contributed over here. It's been most illuminating.

Larry said...

M, I don't think anyone should post anywhere they don't want to post. It took me a while to get comfortable posting at RYHO, a longer time to get comfortable posting here, and I may never get comfortable posting at DPF.
...
But if you ever decide to post over there, my bet is that your welcome there will be at least as nice as your welcome here. I'd do all I could to make that so.

Larry said...

BLT, sorry, LOL! I did not scroll the screen high enough. Everything I said to M goes for you too!