The AP's Eddie Pells has been working the story about the suit against USADA, and reported that the John Doe is the rumored Kayle Leogrande. This comes from "two people familiar with the case," but not acknowledged by name.
These same people say there are affidavits about Leogrande filed with USADA, as part of a case USADA is developing against him.
One of the key points of the suit is the "confidentiality" rules of such investigations, which is why the suit would be filed sealed. It would be important for all sides to avoid clearly identifying the John Doe, or confirm the identity. USADA doing it would violate its policy, and perhaps subject it to suit and remedy for that reason alone. The representation for Doe would not want to confirm it because it would scuttle their own case.
It is not clear to us how Suh/Jacobs would know about affidavits filed with USADA about the Leogrande as part of an investigation, suggesting leaks are not coming from that direction.
We also remain puzzled about some aspects of the A samples that have been floating around. The rumors, reported by Neil Rogers and Joe Lindsay, suggest that Leogrande was caught at Superweek. But somehow, no case was brought forward against him by USADA at the time.
There are time limits in the USADA protocol from the report of an A sample. This means one of the following must be true.
- There were no positives from Speedweek, as the reported suit implies.
- There were inconclusives from Speedweek, which the USADA rules and the WADA Code don't really address, but which probably ought to be treated as negatives as in scenario #1.
- There were positives from Speedweek that USADA did not pursue in a timely fashion. Were they overruled by the Review Board, or was there some exercise of previously denied prosecutorial discretion?
Using the loophole invented in the Landis case, it's plausible that USADA is using its effective ownership of the samples to do B tests that would support a non-analytical finding. USADA has never before, to our knowledge, attempted to use analytical evidence to support a non-AF, which have previously been from testimony.
It's our opinion that arbitrarily testing B samples for non-AF support makes a mockery of what few procedural safeguards are present in the WADA code. Also that the record of CAS-related arbitration rulings suggests that this backdoor approach would be acceptable within the WADA system.
Thus, it makes sense to us that the attorneys for Doe would attempt to get an injunction against USADA. They learned from Landis there was little hope with an arbitration panel or an ADRB. At present, we presume there is no panel on Doe's case, so there is no place inside the system to turn to stop the proposed testing and that consumption of the samples presents an irrepairable harm.
(Should an injunction be obtained, we suspect the next move by USADA in another case would be to just go ahead and test the B samples anyway, without informing the athlete. Since they can't be part of an AAF, why go to any of the AAF-related B sample protocol at all? Then they can ignore the notification that led to this law suit, and all pretense there is any protection in the B sample protocol.)
Scenario #3 is perhaps the most interesting, because lots of people would end up caught having presented shaded versions of the truth.
If there were positives, then the premise of the suit is in error, and we'd expect to hear about that pretty quickly.
But if there were positives that USADA did not pursue, it would leave many puzzled why USADA did not continue the case as they were obliged by their charter and the WADA rules to do.
Are there positives that are overruled by the ADRBs? How many? Under what circumstances does that happen?
Are there positives that are not pursued because of prosecutorial discretion, and why would that happen?
Under what criteria could a bust by UCLA of someone at Superweek have been discarded, while, for sake of argument, the controversial lab work done in the Landis case was pursued vigorously and at great expense?
Could politics rather than facts and policy be involved in these decisions?
We have wondered for a very long time (Sept-2006) why the number of reported AAFs from the labs do not correlate well to the number of cases that USADA pursues. Attempts to get an explanation from USADA (Sept-2006, Jan 2007) have been ignored, and there is no transparency in the statistics as reported.
When do the depositions begin?
This is going to be very interesting.