Friday, January 25, 2008

AP Says it is Kayle Leogrande

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.

  1. There were no positives from Speedweek, as the reported suit implies.
  2. 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.
  3. 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?
If there were no positives, (#1 above, and by extention, inconclusives #2) then there can be no AAF case under the WADA code. That is what the suit appears to be arguing.

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.

8 comments:

beeble said...

Re: #3...

Pardon my ignorance of the rules but what Review Board would/could shutdown the USADA from pursuing a positive?

clean bro said...

Give me a goddamn break. Whats been going on with KL has been common knowledge for a long time. You act like you don't give a shit about getting caught and they are gonna get you. Don't bitch when it happens.

Rock Racing is livin on borrowed time.

Mike Solberg said...

When does USADA's fiscal year begin? If it is the calendar year, maybe they are pursuing this now because they have some money again (having blown their wad on Landis last year)?

syi

("Eightzero") said...

You said it guys...this is going to be *very* interesting. AFLD did their thing in France, now the fun starts in the US judiciary.

beeble: the US federal courts have pretty broad powers.

tbv@trustbut.com said...

Mike, if I read you right, you're suggesting they let the case slide for budgetary reasons, and are now trying to "catch up" by using a new twist on the B sample gambit?

I guess a lot twists on whether they had a positive or not. If they did, are they be allowed to let it drop, because they have another case in the frying pan?

Well, maybe, it seems.

There don't appear to be many repurcussions in the WADA system for failure to act correctly on the part of the agencies.

TBV

tbv@trustbut.com said...

beeble,

In the USADA protocol for handling cases, the first step is to convene an "Anti-Doping Review Board" (ADRB), which appears to rubber stamp the charges and reccomend a sanction. This determination is what leads to the first hearing being called an "appeal", even though the "appeal" is really the hearing of first-impression.

It was to the ADRB that Landis made his first written response to the charges in August/Sep 2006. Their stamp of his case led to the initial document release in Oct 2006.

As we know, the hearing was not until April 2007.

There's more in the reference, timeline and summary pages.

TBV

Cal & Lorie said...

tbv,

I have a faint memory of Landis complaining that USADA was not pursuing other legitimate doping cases, because they were either too busy or poor with his case. Do you remember that complaint or did we ever hear other relevant facts concerning that complaint?

Cal

bill hue said...

I agree with TBV's analysis. By a vote of 2 to 1, the Landis Panel majority gave the go ahead to all ADAs to test any "B" samples, telling the ADA that they owned the "B" sample and could do whatever they wanted to with it, including testing it but that such a test couldn't consistute an adverse analytical, in and of itself.

That ruling certainly would embolden USADA to start testing "B"'s with impunity, as I suggested they would do as I analyzed tthat determination.

In this case, Pell indicates they also have two sworn statements from "reliable sources" against the rider. Bill Bock then amplifies that the brave new world of non-analytical positives is still viable as a prosecution technique.

Further, while indicating that testing the "B"'s was something the ADAs could do, the Panel majority further embolden the ADA's by accepting the results of the "B" testing into evidence in Landis' case. That was virtually unheard of and dare I say preposterous given the WADA Code provisions, previously.


Obviously, guilding the lily, the newest member of USADA's brain trust, Bill Bock, took the ball and ran with it, trying to mix the "B"'s from a non-negative "A" with his sworn statements to make a non-analytical positive case.


We'll see how that turns out for him.

I hear him whistling in the dark with his comments. He is one scared dude, for good reason. Maurice suh has had enough of this and found a way to get it into a court USADA doesn't own. He also gets to depose those guys now.

Katy bar the door. These USADA guys have no individul immunity for shenanagans like this. Hopefully Bock et al have done some planning because if they are liable, Maurice might take their house