Tuesday, March 18, 2008

Eve of the Appeal Q and A

Q: You've been on this forever, and I can't make heads or tails. What gives?

All of our appeal specific coverage can be found here, which will identify many of the issues that will be discussed. We hope. Alternately, we have a bunch of gas-bag articles talking about legal aspects and scientific issues.

For a general rundown, we refer to Bill Hue's CAS Overview from October.

Q: Who are the parties?

Landis and USADA. Landis is being represented by Maurice Suh, and we don't know if Howard Jacobs is going to be directly involved. USADA is being represented by, we think, the same Holmes-Roberts-Owen group of Richard Young, Dan Dunn, and Matt Barnett, plus others.

Q: Is this an appeal or a new hearing?

Both. It's an appeal procedurally, but is de novo, which means the Panel can evaluate everything from scratch without being held to any findings of fact by the previous panel, and the parties are free to bring in new evidence and arguments.

In an "appeal" as most folks think about it, the parties only get to argue about mistakes in legal interpretation made by the panel of first instance, and not about the facts at all. They don't get to bring in any new evidence, or change the basic arguments made initially.

Not so limited here. If someone wants to bring in the Nazi Frogmen, or argue the blood-test results prove something, it would be allowed. If new arguments are inconsistent with those made earlier, there might be some explaining to do about why the previous claims are now inoperative, but you get to do it.

Q: Who are the arbiters?

We ran over this in November. The chair was selected by CAS, not the parties, and is David Williams QC from New Zealand. The USADA pick is David Rivkin, and the hearing will be held at his firm's offices in NYC. The Landis pick is Jan Paulsson, who was the chair of the Landaluce panel.

Q: Who is paying?

We don't know where Landis is getting his money, and this looks to be a low-budget expedition for him. Eddie Pells says that WADA is picking up most if not all of USADA's costs, and that WADA is not happy that the UCI is not chipping in.

CAS is apparently paying for the Arbs.

At the first hearing in Malibu, the Panel and facilities were paid for by the USOC, who is now out of the loop.

Bean counters or taxpayer rights advocates might wonder why USADA uses outside counsel instead of doing things in-house. USADA may be happier with the end-result compared to what might happen with in-house legal staff, but it has got to be a budget-busting practice. If USADA were less concerned about winning! then they could use less costly in-house prosecution, like a district attorney does. It's a rare prosecution (i.e., Boies in US v. Microsoft, also this.) where outside litigators are brought in by the charging side.

Q: Where is it being held?

The NY Offices of Baker Hostetler, on the 11th floor of 45 Rockefeller Plaza; [oops wrong David Rivkin!] NY Offices of Debevoise & Plimpton, 919 Third Ave, according to the CAS press release. Suh's Gibson-Dunn is at 200 Park Avenue, 11 short and 2 long blocks away. HRO doesn't have a NY office.

If USADA/HRO has been set up in the Debevoise & Plimpton offices in the run-up, one might raise an eyebrow, but it is probably reasonably expedient.

Q: What idiots scheduled it over Easter weekend in New York?

Not us! (We're not going.)

Q: Who is testifying?

Nobody is saying, publicly, yet. We expect most direct testimony to be done by declarations and/or affidavits, with cross examination during the hearing. Whether witnesses will be in NY is unclear; we expect many will be done via phone-call. Doing direct by declaration is fast, but cross-by-phone isn't.

Q: What is the scuttlebutt?

Very tight lipped. Suh is professing optimism according to Pells, but then again, he would. USADA has been following equally predictable posturing. That's why they hold the hearing.

Q: What are the changes in the case?

We don't expect too many Papp/LeMond like issues to be discussed. It'll probably be the dry science and procedure, the kind of stuff we've been discussing here. Probably also more chain of custody technicalities as well.

The main new issue is the "different columns" discovery, and how USADA will attempt to rebut it. USADA seems to face a dilemma with that one:

They can either admit the columns were different, and deal with scientific fallout; or claim they were the same columns and the documentation is "in error", but that "error" has nothing to do with the reported results.

The latter seems to say, "We can lie in the document packages and our other filings as much as we like with no consequences, as long as we claim it doesn't affect the test result. And it is too late, expensive, and otherwise impossible to find out the truth by the time these things are noticed, so we win by having lied. That's the WADA code in action. We know, we wrote it to be that way."

And,"Crikey!", USADA might be right about that, if the Panel accepts it as the way the rules should work.

Q: Where is the video feed?

Um, sorry, not this time.

With luck, we hope to eventually get the transcripts and the rulings. If Landis holds good on his "openness" pledge, we'll have plenty to catalog and archive later.

Q: Is there a confidentiality/gag order in place?

We don't know.


snake said...

what's become of the floyd fairness fund site ? i can't find it anymore.

i figure one of a few things: 1) it's there, i just can't find it; 2) it was shut down because contributions ran dry or 3) it was ordered to be shut down.

any insight ?

tbv@trustbut.com said...

Snake, as I understand it, the FFF site wasn't run by Landis, and the site lapsed when some contract ran out, probably after Henson took a paying job. I think this is a category (4), exhaustion.