Friday, January 11, 2008

CONI OP Hearing Forum Shopping?

We thought this topic was worth its own post.

If CONI has the power to determine that non-Italian athletes violated its Doping Code in a country other than Italy, then one wonders if there are any limitations (such as the concept of double jeopardy) on how many country’s Anti-Doping Agencies and Olympic or individual sport Federations can conduct simultaneous or successive hearings regarding a single alleged doping incident.


The concept of double jeopardy arose to avoid multiple criminal prosecutions through “forum shopping” in order to obtain a conviction someplace....somewhere in the US. In civil cases in the US, successive lawsuits are similarly prohibited by a concept known as judicial estoppel. Multiple hearings in venues with concurrent jurisdiction are often resolved by motion to have them them heard in a single forum as most if not all litigants want to litigate one place and one time, due to the time and expense associated with complex litigation.


However, history tells us that the Anti-Doping Crusade isn’t going to be impeded by these kinds of procedural rules. Recently, Floyd Landis was forced to litigate in France (in absentia, essentially) and with USADA simultaniously, concerning his alleged use of a PED in the 2006 Tour de France.


France simply ruled him ineligible to compete on French soil regardless of whether CAS affirms or overrules the initial AAA arbitration decision. Landis' strategic decision to voluntarily acquiese to the French ban so he could tend to the USADA litigation was used against him by the majority of the Panel when they inexplicably started his 2 year suspension on the date in late January when he voluntarily agreed not to race in France, rather than from the date late the previous July when he voluntarily stopped racing or even from the date the Panel rendered its decision. In the interim, French authorities simply banned him regardless of the ultimate outcome and he appears to have no recourse. Fortunately, the French ban appears to limit him only from riding in France in 2008 and that is probably within the time frame of the initial AAA arbitration suspension pending any CAS decision which might reverse the initial AAA award.


We have also seen OP "investigations" occur at the UCI level and "independently” in Germany, Spain and now Italy as well as to some extent, France. What is very interesting here is that this year’s Tour de France terminates on Italian soil on one stage. Since CONI only has the power to ban a non-Italian rider from Italian soil and cannot otherwise affect their career (for example by subjecting them to a 1 or 2 year or even a lifetime ban) similar to the French ban on Landis which only affects his ability to ride on French soil, any determination it makes (this time subject to CAS appeal because CONI is an Olympic entity whose decisions are subject to that recourse) against Valverde, Contador, Perierro, Menchov, Flecha, Paulinho, Davis and perhaps, Sastre, will effectively preclude them from riding in the Tour de France this year and in "banned" years if the Tour takes place anywhere in Italy as well as in any race in Italy for the same periods of time.


Brace yourself for another round, here. 3, 4, 5 or more years of continuous prosecutions and inquiries, arising from new law or interpretation of rules/authority may result and those "investigations" may remove some or all of these guys from the sport in one or more countries or in total for some period of time or forever.

4 comments:

("Eightzero") said...

This is very, very fine analysis. It also underscores the important difference bwteen the anti-doping movement and associated "enforcement" as opposed to civil litigation. Floyd has often used the term "if this was a normal case in a court of law...." Well, his, and many other similar cases, aren't. That's what you give up when you agree to the terms of a USAC (or other federation) license.

Thank you, Judge Hue.

wschart said...

I, for one, do not think one should be forced to give up one's rights simply to be employed. OK, well maybe for something like the military or the CIA, but come on!! for just a racing license.

Then there is the question of whether or not such a surrendering is legal. I'll leave that question for the legal eagles here.

Ali said...

wschart,

I completely agree with those sentiments.

And even entertaining the idea that their movements should electronically tracked. Was that ever a serious suggestion ?

Madness.

Ali

Larry said...

Bill -

Terrific analysis, thank you for posting this. Strange to imagine that the Tour de France is now under the jurisdiction of the anti-doping authorities of any nation on the Tour route!

I was thinking that if Italy could ban Spanish riders because the Tour is passing through Italy, perhaps Spain would retaliate when the Tour passes through Spain. Only ... the Tour is NOT passing through Spain this year. Isn't THAT interesting! I'm not a Tour historian, but I can't remember a year that the Tour did not cross into Spain.

It's probably just a coincidence.

Good think the Tour of California is not racing past MY home this year! Otherwise I might have to impose a few requirements of my own. (I have nothing particular in mind at the moment, I just don't want to feel left out.)