Monday, November 12, 2007

Some legal questions from a reader

Maybe folks can answer these in comments:

What legal code will CAS be operating under? WADA "law" or Swiss law? Which one has precedence? If a question is not addressed by WADA law does Swiss law take over? Can this be exploited to allow discovery by the Landis team? Is Procedural Order 2 over, thereby allowing more discovery by the Landis team?

Can CAS set precedent? From a science perspective, there are significant and unresolvable problems with doing reliable data analysis on the LNDD chromatographs. TBV and Ali's extensive (impressive and very enjoyable) Idiot series takes one step by step through what a scientist should realize intuitively. Whether those problems are due to bad chemistry, system noise, obsolete/misused hardware or software, technician incompetence, or other factors would be interesting to know if one were a lab director looking to improve results and performance.

But from the appeal point of view, (it seems to me at least) it appears that USADA may be able to squirm out through the ambiguities of the WADA law. Larry and M's discussion on TD2003IDCR has laid bare the difficulty of nailing down WADA law. One thoughtful and unbiased (I'm assuming M is unbiased since most participants on this site obviously are;-) lawyer has confounded everyone's best efforts at finding the Holy Grail of ISL violations.

There is no technical requirement that data analysis can only be done on reliable data. There is no requirement that results must conform to scientific principles established through the peer-reviewed system.

Can CAS look at the perponderance of evidence and set precedence by saying that LNDD's results do not meet some minimum scientific requirement "inherent" in WADA law even if not explicitly stated by a WADA TD or ISL?

If not, then I'm afraid Landis' best hope is to get off on what the media would view as a "technicality" like COC issues.


m said...

Many of the reader's questions can be answered to some extent by a reading the CAS procedural rules posted here:

The proceeding before CAS is a trial de novo, where the panel is entitled to weigh evidence independently and is not bound by the findings of the arbitration panel below.

If I read the rules correctly, both parties have already designated what evidence and testimony in the record they will rely on and what witnesses they will call, if any, at the trial. The trial can be open if both parties agree.

It does not look like additional discovery is permitted. It possibly might be permitted under R56 "exceptional cirmcumstances", but that's not clear at all since R56 below seems only to speak of producing new evidence already in one's possession, not evidence yet to be discovered.

"R56 Appeal and Answer Complete

Unless the parties agree otherwise or the President of the Panel orders otherwise on the basis of exceptional circumstances, the parties shall not be authorized to supplement their argument, nor to produce new exhibits, nor to specify further evidence on which they intend to rely after the submission of the grounds for the appeal and of the answer."

As to choice of law, CAS is bound by the WADA rules where applicable, and possibly California/American (pretty broad) law where the WADA rules are silent."

"R58 Law Applicable

"The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision."

Larry said...

M has done a great job of answering questions here. I'll just add a few more thoughts.

While M is technically correct that the CAS proceeding is a trial de novo (new trial), I don't think it's going to work out that way in practice. I think it's going to be a much shorter proceeding that will rely heavily on the evidence produced at the arbitration in May. I'd expect maybe a few witnesses who would focus on clarifying points left over from the May arbitration.

Yes, CAS can set precedent. There were CAS cases cited in the FL majority opinion.

I personally believe that FL can win on appeal on a number of different grounds. That's what I've been trying to prove. M has been trying to prove me wrong. You'll have to read our arguments and decide for yourself. (It might help you if we didn't keep switching arguments and in my case, if I could actually get around to finishing the proof I've started.) Whether the CAS would really side with an athlete and against the ADAs in such a high-profile and emotionally charged case is another question. But we have reason to believe that the arbitrators appointed by the CAS are as good as the system has to offer.

I don't think the arbitrators will rule that there are principles of science inherent in mass spectroscopy that are so well accepted that they should be read into the ISL. I'm also not sure that there ARE any such principles of science.

m said...


"I think it's going to be a much shorter proceeding that will rely heavily on the evidence produced at the arbitration in May. I'd expect maybe a few witnesses who would focus on clarifying points left over from the May arbitration."

I agree, maybe no witnesses at all.