Thursday, December 20, 2007

Thursday Roundup

The CyclingNews makes small note of the AFLD ban imposed on Floyd Landis yesterday. Meanwhile Bjorn Leukemans' "B" sample for exogenous testosterone tested positive, which Leukemans continues to protest, and finally Iban Mayo's "B" sample result, retested by the LNDD and leaked by L'Equipe, came back positive:

Mayo's attorney José Rodríguez, who is the ex-president of the Association of Professional Cyclists (CPA), insisted the counter-analysis by the Chatenay-Malabry lab was illegal. "We continue insisting that this analysis is a totally illegal control because it is not provided in the norms of the UCI, and so, this can not be valid when it comes to any sanction," said affirmed Rodríguez according to Marca

The Colorado Springs Independent places the Floyd Landis story as the #6 sports scandal this year, and says that his guilt has been "proven",hold on there not so fast.

The VeloNews notes changes in the WADA code that could affect cycling. Perhaps the most pertinent is this:

Proof - Tougher Burden on Athletes
The new Code will make it more difficult for cyclists and other athletes to challenge positive test results by arguing, as Floyd Landis did, that the lab did not follow International Standards for Laboratories (ISL).

Under the current Code, if an anti-doping agency introduces enough evidence to prove a violation, the athlete can show that the laboratory did not follow ISL. The burden then shifts back to the anti-doping agency to prove that the ISL violation did not cause the positive test result. Under the new Code, the initial burden remains with the anti-doping agency. However, the athlete will need to show that the lab departed from ISL, and that the departure was serious enough to have caused the positive result. Only then will the burden of proof shift back to the anti-doping agency.

This amendment brings to mind the case Euskatel-Euskadi rider Iñigo Landaluze, who argued that the lab violated ISL because a lab technician was involved in analyzing both the A and B samples. Landaluze won despite not presenting any evidence that this ISL violation actually caused his positive test result. His win came largely because the prosecution - in his case the UCI - was required to show that the error did not cause the result.

Attorneys for the UCI, however, simply stated that the error had no impact, but failed to provide evidence to support that assertion. Reviewing the decision, it's clear that the Court of Arbitration for Sport felt that because the UCI failed to meet its burden it had no choice but to rule in Landaluze's favor.

Early drafts of the Code amendments show that WADA was going to increase the burden of proof on the athletes to show a "significant" departure from ISL. The Landaluze case may have prompted WADA to clarify what "significant" means. That will leave the burden on the athlete to show that the departure from procedure is what could have caused the positive result.

The VeloNews concludes that this will make it more likely that athletes will cop to whatever they are accused to have used since fighting any charge will be a more difficult proposition. But, IF athletes have been unfairly accused this will only make due process more improbable. This also does nothing to address what is an obvious issue and that is the assurance of laboratory regulation and competency.

The VeloNews Wednesday Mailbag has a couple of leftovers on the Michael Ball controversy, and a picture of a nice pair of found sunglasses that could be yours.

Rant thinks that the AFLD decision that bans Floyd Landis from competing in France in any way until late January 2009 may have been a foregone conclusion. Rant is also shocked, shocked that the LNDD found Iban Mayo's "B" sample positive.

Racejunkie "rejoices" that Christmas miracles can still happen, like the Iban Mayo positive "B" sample retest at the LNDD which was discovered without the use of science. Of course Floyd Landis got his Christmas present too, from the AFLD, and RJ thinks there are now few in the world who have not "dopeslapped" poor Floyd:

The French cycling fed has undertaken the pointless exercise of smacking him around yet again, this time by making sure to ban him from non-UCI races in the rather unlikely event that Christian Prudhomme drops to his knee like a proposing swain and begs Landis to ride a non-UCI Tour de France next year. Now, if I recall correctly, the Landis-lovin' organizers over at ASO not only have spent the last year and a half calling Floyd a cheating testosterone whore, but also kindly introduced the route of the 2007 Tour de France with a video of Landis' head shattering, so I'm fairly sure--and this may be too speculative, I know--they're not exactly planning to rip the maillot jaune off Oscar Pereiro's back and joyously bear Floyd on their shoulders down the Champs-Elysees next year. But you go right ahead defending the unimpeachable Tour's virtue from the filthy likes of Floyd Landis folks!

BTW, thanks for the plug RJ.

WADAwatch remains skeptical about the transparency and fairness shown by WADA in dealing with athletes, and he also notes the AFLD decision on Floyd Landis. Ww waits for details.

The Age of Fallibility discusses the marketing of brain scans which would be used to uncover and understand subjective human behaviors. He snarks that an illustrative photo of "cheating champion" of the TdF Floyd Landis appears on the FKF website above a blurb about the applicability of brain scans in determining motivations behind decision making. Its a pretty interesting choice by FKF to use that picture, being the moment of the break-away to Morzine. Do they think people will understand the significance of that instant? Do they think people will recognize Landis? Do they think it is about bike race tactics, or PED use, or deciding to risk PED detection by trying for a win with inevitable testing?

Dink and Flika
give out "The Floyd Landis Award", whatever in the world that is, to a commenter on their blog.

DrunkCyclist japes at the AFLD ban, with mixed reaction in comments.

Get Outdoors thinks the "nefarious" French hate the superior Floyd Landis.


bill hue said...

WADA adds new layer to its already torured burden flip provision, as reported in VeloNews, here;

Attorney Gallegos, reporter for VeloNews, observes;

"Under the current Code, if an anti-doping agency introduces enough evidence to prove a violation, the athlete can show that the laboratory did not follow ISL. The burden then shifts back to the anti-doping agency to prove that the ISL violation did not cause the positive test result. Under the new Code, the initial burden remains with the anti-doping agency. However, the athlete will need to show that the lab departed from ISL, and that the departure was serious enough to have caused the positive result. Only then will the burden of proof shift back to the anti-doping agency."

That adopts m's position that the Technicalities" that form the foundation of science can simply be ignored in WADA approved labs so as not to get in the way of the prosecution of dopers.

The WADA system, already corrupt, has become a parody of itself.

ZENmud productions said...

Bill's right...

I wrote on that after returning from the WADA WORLD FAIR in Madrid...

Part TWO: WADA laboratory to standardize...

Legally speaking, it is quite a farther leap in the legal arts, to prove that an apparent departure 'caused' an AAF, than to prove that the apparent departure 'undermined the validity'. In choosing this variation, WADA and its Signatories appear to be distancing themselves from conceding a possibility of laboratory incompetence.

As one example, a severely flawed Chain of Custody document could seriously impact the validity of an AAF result, but unless the Athlete can PROVE that the flawed document concealed a laboratory's replacement of his or her sample with that of another competitor (negligently or through... sabotage?) there is little chance to prove that it 'caused' the AAF.


Larry said...

The 2007 revisions to the WADA code, to take effect in 2009, are available here (redlined to show changes): Revised WADA Code.

I've only given a quick read. Clearly, the revised code makes it even more difficult for an athlete to defend himself or herself in arbitration. But the new code does not appear to be quite as slanted as reported by Attorney Gallegos.

Under the existing WADA code, the athlete is required to show an ISL departure that "might" have caused the adverse analytical finding. Under the revised code, the athlete must show an ISL departure that "could reasonably" have caused the adverse analytical finding. (See revised rule 3.2.1)

Two things to note here: first, the WADA rules never allowed an athlete to get off on a pure technicality - the athlete always had to show that the ISL departure might have caused the adverse analytical finding. So, for example, it's never mattered if a lab departed from the ISL by, say, not having the right management structure in place. In this sense, Attorney Gallegos' report is not correct -- the rule has always required something more than a mere ISL departure.

Second, the revised standard does not require the athlete to prove that the ISL departure caused the adverse finding. It says that the ISL departure must be serious enough so that it "could reasonably have caused" the adverse finding. True enough, the change in the rule is intended to toughen the standard, but it's not THAT much tougher a standard! Try to imagine for the moment an ISL departure that "might" have caused an adverse analytical finding, but that "could not reasonably have caused" the adverse finding. I would say that every ISL issue we've encountered on this forum could reasonably have caused an analytical finding.

As a lawyer, I'm not troubled by the requirement for the athlete's case to be based on a "reasonable" ground. The requirement for reasonable-ness is pretty much implied anyway, in most every legal context. Judges and juries don't go for unreasonable arguments. Even under the existing code, I can't imagine that an athlete could argue for dismissal of an adverse analytical finding, based on an ISL departure that did not have some reasonable connection to the finding.

Nevertheless, the revised rule DOES present a tougher standard. It's one thing to say that athletes were always required to make reasonable arguments, and another to say that the athlete must now PROVE that his or her argument is reasonable. The burden IS higher under the new rule - if the athlete's argument had to be reasonable before, now it must be demonstrably reasonable.

The new requirement must also be seen in conjunction with the WADA rules restricting the athlete's ability to obtain documents, take depositions and otherwise access the information in the possession of the prosecuting lab and ADA. Under the WADA system, the lab and ADA has significantly better access to the information relevant to the athlete's case. Under such a system, it makes sense to allocate the burden of proof to the side with better access to the information needed to make the proof. To shift additional burden of proof to the athlete is unfair, unless the playing field is leveled and the athlete is given equal access to the information available to the labs and the ADAs.

Judge Hue, I can pretty much imagine your objections to what I've written here. But if the system is already hopelessly biased and slanted against the athlete, then the rules don't matter anyway. A "corrupt" system is going to reach bad results regardless of the rules.

At the moment, I'm more concerned about two OTHER changes in the rules that are mentioned in the Gallegos article. One change seems to codify guilt by association, and the other seems to codify selective prosecution. If the article is correct, then IMO these two changes are MUCH more serious (and offensive to standards of justice and fairness) than the switch from "might" to "could reasonably".

bill hue said...

The new burden flip rule will be used by the initial arbitration panel to find athlete's "guilty" and to expidite the process in doing so. so, it concerns me greatly. That kind of thing will not be "overturned" by the CAS.

The other two rule changes directly impact the kind of things the CAS WILL get involved with: penalty review when one is guilty by association or selectively prosecuted (the CAS will readily review guilt by association and selective prosecution the same way they are willing to involve themselves in "trafficing" issues).

All three issues make it easier to convict "dopers" by altering (to a lesser degree) what would otherwise be necessary for a prosecuting party to prove guilt in any other due process system.

So, even more "guilty" findings at "trial" level are compelled by these "reforms" designed to be "fixed" as to penalty by the CAS much later.

Arbitrators who know their role, like McLaren will know this is the way the system works and fulfill their roles by finding "guilt" at the "trial" level and then "showing constraint" in the "doper's" penalty phase when serving on the CAS a year or so later, if the facts require that and they are so inclined.

It is a dirty little scheme.


bill hue said...

Nazi Frogmen Visit Leukemans

From CyclingNews, here,

Leukemans' positive due to doctor failure?
By Susan Westemeyer

Björn Leukemans' positive test for testosterone was due to a product mistakenly prescribed by a team Predictor-Lotto doctor, according to the Belgian newspaper De Morgen, which further reported that the team has fired the doctor. It was, however, unclear as to why the rider was given the product in the first place.

The newspaper claimed that the doctor, whose name is not given, gave Leukemans the product Prasteron, which contains the steroid DHEA (Dehydroepiandrosterone). DHEA is similar to testosterone and is on the forbidden list.

"It is terrible thing from a young, dedicated doctor with an impeccable record," an unnamed team source told the newspaper. "However, it was an enormous mistake."

For all you DPFers that endless ridicule athletes who literally grasp at straws to explain how/why a substance they didn't know was in their body came to be in their body(because they didn't put it there themselves), consider Dick Pound's Nazi frogman, who turns out to be a Predictor-Lotto doctor in this case.

Whatever, enjoy your two years off Bjorn. The WADA Code has spoken.

atown, tx. said...

Ok, I haven't been following that closely lately. So I apologize if this has been covered. But, Has the Floyd Fairness Fund folded? I tried to go to the website and it was showing a blank page.

the Dragon said...

Judge Hue,

Does the athlete have the right to "demand" a portion of the sample and to have a representative present so chain of custody can be maintained?


bill hue said...

The WADA Code does not permit an athlete to have any part of his/her urine sample at any time for any purpose.

The WADA Code does not permit an athlete to enter the lab for any reason except to witness the testing of a "B" sample. said...

Here's an idea for "the union" to do. Collect a "C" sample at the time of the WADA/UCI sample, and keep it elsewhere in escrow storage with a separate chain of custody. It can be made available to the athlete's defense team, with WADA observation.

The problem is that it is sometimes hard to get much volume for such a sample, but much may not be needed it it is just to challenge one of the many tests that are normally done.


the Dragon said...

Judge Hue & TBV,

Your responses show what happens with ambiguous questions.

The intent of my question was pointed in the direction which TBV asked/answered, yet after reading Judge Hue's response, and re-reading my question, his response was the most logical to the question actually asked.

Thanks to both of you.