Sunday, January 27, 2008

Bock's House

In a comment, Bill Hue thought through the "John Doe" case against USADA ...

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 constitute 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 that 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, gilding 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-positive "A" with his sworn statements to make a non-analytical positive case.

[The "non-positive" above was originally "non-negative" that I think was a typo. -TBV]

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


Larry said...

Bill -

I don't know whether the John Doe case is something you care to debate, or discuss.

I think I agree with what you've said here. Mostly. But the lawyer in me says that the interests of truth and justice require someone to argue the other side.

The most compelling argument on the other side is that your so-called "brave new world of non-analytical positives" looks to me to be the way a regular court would decide an anti-doping case. In other words, a "non-analytical positive" case would be a case stripped of the WADA presumption that all lab work is valid. It would be stripped of the WADA presumption of athlete "strict liability".

In a "non-analytical positive" case, the ADA would actually have to prove a case the way prosecutors prove cases: with witnesses, and with whatever tangible evidence they can find.

The Barry Bonds case is a non-analytical positive case. The case building against Roger Clemens is a non-analytical positive case. The case against Marion Jones is a case where she lied to the government, and where the lie was shown by non-analytical positive evidence.

The Barry Bonds case appears to be on point with the case that USADA is trying to build against John Doe. In the Bonds case, the government plans to introduce drug testing evidence against Bonds, notwithstanding that the evidence is flawed and could never serve as the basis of an AAF, not even under the WADA rules (which of course are not applicable to the Bonds case).

Moreover, the WADA rules have always allowed the ADAs to make a non-analytical positive doping case. World Anti-Doping Code Section 2 lists a number of ways that an ADA can prove an anti-doping violation. Section 2.1 is the traditional AAF. Section 2.2 is the athlete's use of a prohibited substance. Section 2.5 is tampering or attempting to tamper with doping control. Section 2.6 is possession of prohibited substances and methods. Section 2.7 is trafficking in prohibited substances. There's nothing "new" in any of these types of anti-doping violations.

As I said above, I think I agree with your argument in the John Doe case, but I think that the argument on the other side needed to be made as well.

bill hue said...

If the bizarre burden flips,the presumption of guilt, the absurd requirement that the athlete prove a negative and the convienient interpretation that ISL's are to be interpreted in favor of adverse findings and that any unwritten ISL allows labs to literally do whatever they want are removed from the provisions and intrpretations of the WADA Code, it is fair enough to proceed to prosecute non-positive analytical cases the way they would be pursued in European and North American civil courts.

The problem is combining the worst characteristics of a biased and corrupt system (and for those who chose to worship at the alter of the anti-doping religion, this does not mean I either condone or support doping in sport..... I support fair and just systems that provide dignity and due process to all participants) with theories of guilt in which no scientific basis exists for any presumption of guilt.

This combines traditional anti-doping science techniques which arguably support an initial presumption of guilt with others that do not and guilt is presumed nonetheless. Try proving you are not a doper when a sworn statement says you are and the presumption is guilt. You can't. Then, combine that with the permitted use of a single scientific testing "positive" when ISL and the WADA Code require two (for obvious reasons)to support the sworn affidavits etc. and you have a catestrophic injustice, in my opinion.

But that is how Bock and Tygart and Pound and McQuade want it. God forbid anyone be forced to "fight the power" when all vestiges of fairness and scientific reasons are abandoned in the pursuit of dopers.

You get more protection under employment law in many states as a guy watching and downloading pornography on company time using company computers and internet access supplied to facilitate business compared to that afoorded to a professional cyclist accused of doping. That simply isn't fair nor right.