Monday, June 30, 2008

Quick Read of the Award

Reading the award, we make the following quick observations.

First, it is annoying that CAS publishes them in a PDF format that precludes text search. A kind reader has produced a searchable version that may be of use to many people. We'll mirror it when possible.

  • The award makes a point of the political aspects of the case by quoting Mr. Young castigating Landis' "frontal attack on the entire anti-doping system." (para 21)
  • The award does not appear to address the "changing story" offered by USADA at all.
  • Unlike many "battles of experts", whenever there was a dispute, the award completely accepted the USADA position. While USADA witnesses are believed despite contradictions, some of Landis' witnesses are called out in detail.
  • Not a single ISL violation is found, and had there been, none would have affected the AAF.
  • Generally, key points are dismissed briefly with little discussion, while browbeating goes on at length.
Details:
  • Because visual matching isn't prohibited by the ISL, it is accepted; and COFRAC didn't complain, so it is OK. (paragraphs 107/108)
  • A test can have matrix interference and be valid; the method should avoid it, an individual test need not. (para 131)
  • USADA arguments about reprocessed data accepted completely (para 162)
  • ISL only requires compliance with "concepts" of chain of custody, not literal compliance. (para 178) Same conclusion on whiteout (para 215.)
  • Testimony is OK to correct documentation problems; the column issue is dismissed by testimony. (para 189)
  • The lack of validation of the single metabolite standard is briefly held (a) not to be an ISL violation; and (b) could not have caused the AAF!? (para 195)
  • Manual integration with no records is OK, "as long as it is clear what parameters were set". (para 209)
  • Amory's metabolism arguments dismissed briefly (para 232).
  • Landis is thrown a single bone: DeBoer's presence at the B sample isn't a waiver. (para 239).
  • But it is taken back: DeBoer should not have been polite. (paras 238 and 240).
  • Alternate samples not considered, as unnecessary for decision. It seems they might have been have it been necessary, but made moot (para 241)
  • There is "no evidence" to support any of Landis' malfeasence arguments. (para 257).
Perhaps the key paragraph:
259. There is a clear distinction between administrative deficiencies, bad laboratory practice, procedural error, or other honest inadequacy on the one hand and dishonesty or bad faith on the other. Some of the Appellant's expert witnesses appeared insufficiently aware of this distinction.

  • Davis excoriated at length, and USADA's complaints held valid. (paras 260-264)
  • Landis first clear voluntary suspension was the AFLD letter of Jan 30 2007, so that starts the suspension. Leadville doesn't count as a problem. (paras 282, 283).
  • If there was any litigation misconduct, it was by Landis. (para 289)

The above is a collection of key facts about the appeal, not our opinion and analysis, which will follow. It appears to us to be a very political document. As we said long ago in, It's the Olympics, Stupid:

Landis has a hard task trying to climb this Olympus. The gods up top are trying to smite him for suggesting they are imperfect, because that is bad for business.

Landis has been smote. No imperfections were found. Business (Beijing) proceeds as usual.



58 comments:

PEM said...

As you say, quick read:

$100,000 fine for Landis?

Where is the deterrence for WADA to not continue their shoddy work? Not even a subtle message from CAS to WADA that they need to clean up their act.

brian said...

Kangaroo Court


Message from CAS:

Dont anyone ever even think of defending themselves or we'll penalize you.

Has anyone ever heard of a similar ruling in an EU or US non-civil court?

snake said...

sadly, we'll certainly be hearing something repugnant from greggie shortly. the road burn is fresh. soon will come salt for the wound.

is it too much to ask reporters NOT to seek out his opinion ?

Thomas A. Fine said...

Wow.

I remember a long long time ago when we got involved in this there was a question of burden of proof, and how it applies here.

Reading this, point-by-point, I get the impression that Floyd was required to prove any argument he made beyond any and all doubt, while USADA was merely required to offer any plausible explanation, with no evidence to back it up at all.

For instance, they don't say why they believed the "forged" documents to be genuine, they merely say that Floyd didn't prove they were forged. One wonders if anything short of a videotape of the forgery process would be sufficient.

And on the issue of steroid metabolism, it doesn't matter that USADA couldn't prove Floyd's profile meant that he doped. It only mattered that Floyd could not prove beyond all doubt that his profile meant he did not dope.

And then there's the brilliant circular logic in the standard used to reach the AAF. It doesn't matter that the lone-metabolism criteria has never been validated. Apparently, the fact that a lone metabolite generated this AAF proves that lone metabolites can lead to AAFs.

tom

brian said...

Can CAS make a monatary enforcement without being a true "court of law"?

Also if they have the authority to enforce a monatary judgement should they be held ccountable to the standards and practices of the country of which government the CAS is using to collect their money?

Will a US or EU based court system uphold a CAS ruling that dose not comply with their legal standards/rules?

Julie said...

I am stunned by how completely they find for WADA. Labs need only comply with "concepts". Only the method need be documented, not the test.

Landis also seems to be penalized for requesting his B sample testing and requesting dismissal of the case by the review board by the finding that his suspension should begin at the Jan date.

This is a clear message to other athletes. Don't bother.

howard said...

I wonder how much WADA/USADA had to "pay" for that award??

jrdbutcher said...

If you don’t believe the CAS panel had to practice “suspension of reality” in order to come to their conclusion, you need look no further. See this from Fox Sports:
http://msn.foxsports.com/other/story/8299002?MSNHPHMA
“The CAS panel, noting the harsh nature of much of the Landis testimony, agreed with USADA's contention that Landis' witnesses "crossed the line, acting for the most part as advocates for the Appelant's cause, and not as scientists objectively assisting the Panel in the search for truth."

It is the WADA system, which is closed, that does not permit the Directors or Staff from its accredited labs (bad joke) to render any assistance (By written WADA Code) to accused athletes. It doesn’t make any exception as to the guilt/innocence of the athlete or whether testing is conducted correctly/incorrectly on athlete samples. This is a case of the pot calling the kettle black. WADA has institutionalized the concept and practice of being advocates and not objective scientists. And the CAS panel has the stones to call out Floyd’s witnesses, with a much smaller ax to grind, on the issue????????????????????????????????????????????????????

Makes it kind of pointless to argue any fairness on the part of this CAS panel. This is the kind of mindset that blames the victim. And so it has…………………………………………………………………………

Carlton said...

Sickened, but not even slightly surprised by the CAS award.

I'm totally with Bill on this being a travesty of justice but this was never about evidence it was about keeping the anti-doping system alive.

With the Olympics coming up, a finding for Floyd would have put the anti-doping world into tail spin and would never be allowed.

jrdbutcher said...

Edit to my previous post:
It is a case of the pot calling the kettle black, when the kettle is, in fact, grey.

jrdbutcher said...

The above referenece from the Fox Sports Article is para. 262 of the award.

pensum said...

Just a technical point to help you out: it is possible to do text searches in PDF documents, at least if you have an updated Adobe Reader, just hit ctrl+F and a little box will appear where you can type your term. I have v.8 and it works fine.

pensum said...

oh and another way to get the Find function is to go to View-Toolbars and then click on Find. that will display the search function.

jr said...

No matter how many times I hit ctrl+F I can't find any thing in this thing that makes any sense. Oops, forgot to turn off the logic function in my brain. Now if I can just find the justice switch....

Steve said...

The "frontal assault" business begins on page 7. I OCR'd the document and placed a searchable PDF at http://sgrathwohl.googlepages.com/AwardFinalLandis2008.06.30.pdf.

tbv@trustbut.com said...

Pensum, with my copies of acrobat reader, no text searches or selections work on CAS documents. I think they format them as images or some other opaque format so you can't see them as text, or manipulate them as text.

TBV

calfeegirl said...

Quoting from JRD's post:

“The CAS panel, noting the harsh nature of much of the Landis testimony, agreed with USADA's contention that Landis' witnesses "crossed the line, acting for the most part as advocates for the Appelant's cause, and not as scientists objectively assisting the Panel in the search for truth."

Wait, the Appelant's cause was truth and justice, right? What other cause did Floyd have...clearing his name, retaining his title, because that would have been the truth and justice would then have been served.

His witnesses crossed the line by bringing out the truth about the system as it stands???

Just what "truth" was the panel looking for???

The witnesses were using their scientific knowledge to show the truth..

The panel is blind.

And if I were one of the witnesses in this case, I would be going after the CAS for defamation of character and whatever legalize is for smearing one's reputation among one's peers.

Lonnie Renda said...

First, I wish this would have turned out differently, but it did not. I cannot state with certainty, but it seems all three arbitrators sided against Landis at CAS. That makes five out of six arbitrators, that have heard evidence think he is guilty.

Second, this arbitration has not just soured one champion in my eyes, but two. LeMond is no longer a man to be admired in my eyes, so this saddens me that we have lost two champions because of this mess.

Third, as far as the fine, my guess is that CAS, nor the USADA can force Landis to pay this money; however, if he wants to race in any sanctioned event (either UCI or USA Cycling) again, he will have to pay it. It is the rules Landis agreed to by being a sanctioned cyclist and using the arbitration process.

howard said...

The panel had no choice but to find as they did. To do otherwise would have called into question the results of every cyclists/athlete that was accused of doping but who insisted they were innocent. There is no way that WADA/USADA could EVER let that happen.

Larry said...

I am hoping that Judge Hue will comment quickly on the idea that the Landis witnesses somehow "crossed the line". I'm not a courtroom attorney, but I don't recall ever seeing a legal decision before this one complaining of anything remotely like this.

Also, I'm hoping that TBV and Ali will comment on the fact (made available to us for the first time yesterday) that the LNDD SOP for its CIR testing specified a 20% margin of error. 20% of WHAT, do you figure? Depending on how you apply the 20%, the entire AAF can disappear (as Arnie Baker shows in his new wiki defense).

Black acrid smoke continue to pour from my ears. I am so angry at this moment I can barely type.

bill hue said...

The hundred grand they awarded "Poor Richard" and his rightious crew was for Richard' s expenditure of $60,000 for 9 witnesses Maurice wasn't allowed to depose ahead of time because the Rules didn't compel depositions and the Panel didn't Order them. That's $1666.66 per person/per day plus $40,000 to offset the expense to bring WADA's "in house" neutrals to testify as to the "truth" WADA labs are presumed to apply.

Although it was said that I had a "man crush" on Richard Young when I was expressing facination and awe with his ability to totally violate many Rules of Evidence in Malibu and not only get away with it but be treated by the Panel as if he carried a couple stone pillars from on high , in hindsight I think all should see by now what I clearly saw then...... The guy OWNS the process. He wrote the Code. He knows a Code violation when he sees one because, of course, he wrote the Code. He knows how to apply the Code and he was willing and allowed to actually create evidence through leading direct exam to nail the case down in Malibu. I could barely believe my eyes or ears in actual witness of that. Once Botre cleared out and his fellow Panel members needed a road map delivered to them so that the matter might be suitably concluded, he wrote their Findings and Conclusions for them. Compare USADA's post hearing brief to the decision itself. There are striking similarities. It is a rare lawyer that can hit all points with exactly the argument and rational adopted by the trier of fact. Here, there are SO many complex issues that Young hit out of the park. In fact, he got his bat on and swatted out every single one of them except maybe that Leadville 100 issue and that thing was probably Matt Barnett's baby.

Now, I know enough about the real world of American Jurisprudence Richard sometimes has to practice in to know he'd have to change his M.O. considerably to pull any of this off in a real Court of Law. But if Travis, WADA, AAA-CAS, CAS and American Sport Federations keep sliding him cases, he might just squeak out a living without having to bother.

pensum said...

I stand corrected. Very odd (read: "foolish") indeed that CAS would release a non-searchable document. Many thanks to whoever is created and provided one.

A C said...

Any pretension of fairness by the posters on this board is pathetic. The underlying assumption coursing through all the posts is that the selected arbitrators have an "agenda" to protect faulty lab work and to destroy Mr. Landis' career. This notion is offensive to the lawyers who make up the Panel, lawyers and judges everywhere, as well as followers of this blog who actually thought the authors and participants are something other than paranoid, conspiracy-believing, social misfits. Judges do not call out lawyers and litigants for sharp practices, unless they have good reason to, especially a three person panel. Regardless of how many times Mr. Landis protested his innocence or Mr. Suh made his client's case, two, yes two IMPARTIAL panels found otherwise, by a score of 5-1. Indeed the CAS, as result of a closed door hearing, sharply rebuked Mr. Landis' for failing to have a good faith basis for contesting certain factual points. In other words, not only did they reject the defense, they thought a good portion of it was baseless! How much more fairness can open minded observers expect than a system that allows a litigant two cracks at the facts, with two separate three person panels, and complete de novo review? For those of you complaining of bias and injustice, it is time to look in the mirror. AD

tbv@trustbut.com said...

AC,

Thanks for offering the alternative view.

Clearly, the majority agrees with you, and nothing that came out of this case will cause any change, because the system worked exactly as it was intended to.

TBV

bruce said...

Re: "This notion is offensive to the lawyers who make up the Panel, lawyers and judges everywhere...Judges do not call out lawyers and litigants for sharp practices, unless they have good reason to, especially a three person panel."

Umm, you do know that one of the founders of this blog is Judge Bill Hue, right? You know, the guy calling BS two posts above yours...

ilsanjo said...

Does Landis have 30 days to appeal to the Swiss Federal Court? Has anyone prevailed with a CAS appeal? CAS appears to be endorsing/protecting the WADA "status quo", no matter what the evidence shows.

bill hue said...

AC or AD,

You certainly have the right to express your opinion as do we ours. The anti-doping disciplinary system as devised is a private system. Those lawyers and ex-judges who are involved with it carry no assumption of authority other than WADA's self proclaimed expertise in the joy of sport and the "complex" world of anti-doping.

Long ago, here, we discussed how and why the US Courts were denied jurisdiction over anti-doping matters in sport and resurrected that discussion in our Gatlin analysis. Oddly or perhaps not so, the Federal Judge in Gatlin expressed how and why the anti-doping system failed to protect some real basic rights US citizen's normally have.Whether sharp practices exist or do not or is allowed to exist in this system ought to widely debated. You appear to want us all to afford this sytem some respect but it is not respect the system has earned.

A lone Justice since defeated in an election in our State stood firm in his insistence that the Doctrine of Forfeiture did not waive the accused's Right to Confront. He stood alone on a 6 to 1 vote and then his position was adopted by the US Supreme Court. Were you to simply count up the votes, the position would not be the Law of the land. However, one man standing up for what he believed right and just ended up ultimately vindicted.

I look in the mirror every morning and I try to do justice. I know a just system when I see it and I do not see one here.

You disagree. That is why debate is a wonderful thing.

pensum said...

I'm with AC on this one (though i'm sympathetic to those who are slanted however heavily in Floyd's favour). Having looked over the bios of the gentlemen who comprised this appeal panel I find it difficult to see any conspiracy or even an overwhelming bias.

And reading through the report, I am not under the impression it was their mandate to criticize WADA or the labs procedures (and i agree the lab certainly has a few flaws it needs to iron out), but rather to review all the data pertinent to the appellant's arguments and come to a decision. The result being they still concluded Landis had artificial testosterone in his body. Whatever else might be the case, that is the relevant fact here that neither Landis nor his legal team and experts have been unable to overcome. Their spirited and determined defense, pushing the process to the limit should be applauded both for showing inadequacies in the system which must be improved upon, as well as proving beyond doubt the stripping Landis of the title was the correct action; however disappointing that might be to our own dreams and fantasies.

bill hue said...

Yeah, Bruce,

I think AC/AD was talking right to me. I'm just trying to figure out what sharp practices I was accusing any participant of. Arnie Baker does that in his new Wiki book. It does not mean I have endorsed Arnie's position, though.I just express my own opinions on this private arbitration matter as the Executive Director of the Wisconson Judicial Commission has permitted me to do.

Whether I should just keep my opinions to myself is something AC/AD has asserted I should do. That is his right to assert and I respect it.

Thomas A. Fine said...

a c

I don't think the arbitraitors went into this with any kind of intent to railroad Floyd. I just think they are working within a system which is designed to railroad Floyd. By design, everything presented by USADA is deemed to be true, and Floyd has to PROVE that it is not. There's no true balancing of one expert's opinion versus another. If opposing experts disagree, USADA wins. If Floyd offers compelling and troubling evidence, but without proof, USADA wins.

The arbitraitors are just doing the job as it has been laid out for them.

tom

bill hue said...

Pensum,
Are you not concerned that Richrd Young is a member of the CAS Arbitration Panel and that he was an advocate on behalf of USADA in a hearing before his collegues?

Are you not concerned that the Panel is selected on a 5 to 1 ratio or there abouts against the interest of the Athletes and that athletes select 1 arbitrator on a 3 person Panel, always?

CAS's chair signed the order as called for by CAS rules. Although there are no other signitures but also no indication that there is a disent, are we sure? And if there is a disent is 4 to 2 as added up any less compelling than 5 to 1?

Or, are we giving some real credence to the fact that Jann Paulson apparantly voted with the majority? That may be a very compelling argument worth some debate were the argument not couched by AD/AC a mathmatical way.

that's why we are here and to me, well worth the effort.

bruce said...

Reading the award is almost Kafkaesque at times, like Para 223-224, regarding whether having the same analyst, Ms. Frelat, test both A and B samples is consistent with the ISL. And what does that second sentence of P. 224 have to do with this question?:

223. ISL Article 5.2.4.3.2.2 states that:
"The "B" Sample confirmation shall be performed in the same Laboratory as the "A" Sample confirmation. A different analyst(s) shall perform those parts of the "B" analytical procedure during which the Sample or Aliquot is open and accessible. . . "

224. There was no violation ofthe ISL by Ms. Frelat in analyzing the B Sample. The fact that a laboratory technician's work is verified by his or her superior and the laboratory director is not contrary to the ISL.

Ken said...

AC, AD;

In the words of Inigo Montoya, "You keep using that word. I do not think it means what you think it means."

im·par·tial
Pronunciation: \(ˌ)im-ˈpär-shəl\
Function: adjective
Date: 1587
: not partial or biased : treating or affecting all equally
synonyms see fair

I do not know the members of the panel. I do not know that there is a conspiracy. I do know that the athletes and the labs are not treated equally and that is very evident in this case.

Which leads me to pensum, you're welcome to your opinion but, "proving beyond doubt the stripping Landis of the title was the correct action;" is not one that I share. I have doubts. WADA, USADA, and LNDD have not convinced me that Floyd isn't the winner of the 06 tour.

pensum said...

Hey Bill, i just want to say that i fully appreciate your knowledgeable input all throughout the process. I've learned a lot and cut through a lot of BS thanks to you. So i'm looking forward to hearing your views on the decision and process, together with the most fundamental question: whatever else the appeal panel concluded, whatever faults there are in the system, with all the information that now sits on the table do you think think that Landis is guilty of elevated testosterone levels and/or the presence of articial testosterone in his system? In my opinion (and please correct me if i'm mistaken on this) all the arguments and the criticisms of lab procedures, WADA etc. raised by Landis' team are merely to cast sufficient doubt onto BOTH of these facts, either one being sufficient to impose a ban.
Keep up the great work, i enjoy the dialogue (though not the tone of some of the comments) and again many thanks.

Carach said...

Here is my main complaint about this whole case, and it isn't so much that they declared Floyd "guilty", but more an underlying issue. From the summary above:

259. There is a clear distinction between administrative deficiencies, bad laboratory practice, procedural error, or other honest inadequacy on the one hand and dishonesty or bad faith on the other. Some of the Appellant's exper witnesses appeared insufficiently aware of this distinction.

To me this seems to be pretty much saying that the lab made mistakes, the paperworks was poorly kept and normal procedures were not followed (and who knows what else could be covered under "honest inadaquecy"), but that they were "honest" mistakes and as such they shouldn't be held against the anti-doping agencies involved.

If this reasoning were applied to athletes as well as to the anti-doping agencies, then I don't believe I'd have much of an issue with this.

The problem is, of course, that they aren't. Instead, what we have are cases where athletes have been suspended for such things as a manufacturer contaminating their product with a banned substance (I forget the female swimmer's name in this case but CAS agreed that she wasn't at fault but suspended her anyway) or because someones usual medication contains a different ingredient in the US than in Britain (I forget the name again of the athlete that was stripped of his medal because of this). Hardly seems "fair" to apply the "hey, it was an honest mistake" to one side yet use a "yep, you aren't at fault, but you are still guilty" to the athelte.

Regards.

pensum said...

Just to clarify my personal position, i agree with Bill and most of the rest of you: the system and it's procedures seem horribly flawed and certainly demand a serious review and overhaul (i believe our legal mind Bill has previously outlined a sound legal framework to this end). But even considering these reservations, and after watching the original hearing, reading most of the relevant documents and Judge Bill and others' learned opinions, i have unfortunately still concluded that Landis had artificial testosterone in his system--and i seriously wish this weren't the case. The source and how it got there are unknown, but not seeing adequate refutation that it was there leaves no choice but to strip him of his title and impose a ban.

Larry said...

Bill, are you sure that the Stevens Act is applicable? From a quick read, it only seems to apply to the USOC.

A C said...

Judge Hue: In your example, you would not call out the other Judges who ruled that the forfeiture was lawful as being intellectually dishonest (that is -intentionally so)or criminally corrupt. Judges and lawyers enjoy a presumption that they treated their tasks with honesty and intellectual rigor, as they have sworn to do. This presumption seems absurdly absent from the board (although I see that cooler heads are speaking up.) As for Landis' waiver of certain due process rights, you know full well he can lawfully do so. The UCI is hardly a patsy and presumably passed on the arbitration structure (along with the other federations), before letting their members be subjected to the process. As unfortunate as some people may think, to have 6 Judges passing on questions of fact in two separate, de novo hearings is far better than most criminal defendants receive in our own country. Regards, AC

bill hue said...

Pensum,

I'll do an odd thing given the WADA Code and presume Landis did not have exogenius testosterone in his system before during or after Stage 17.Once that is assumed, if we assign a burden of proof that requires USADA to prove he did by a preponderence of the evidence, it is close enough but I would rule in Landis' favor upon evidence I saw and heard live, in Malibu. At Malibu, they definately did not proove him guilty by either clear and convincing evidence or beyond a reasonable doubt.

I didn't see or hear the witnesses in New York.

Now, let's use the WADA Code as our guide since it is the law we actually apply. Once two witnesses I found to be absolutely incredible (and despite AD/AC's notion, I respect those who would conclude otherwise) determined Landis had exogenius testosterone in his system, Landis was presumed guilty. The Code requires that.

Landis must then prove an ISL violation. Since both Panels' concluded that the only violations were "technical in nature" such as "sloppy lab work" or "white out use" or whatever else the Panel deemed insignificant and because, in particular, a single metabolite method used in France but not used in other WADA Labs was used here to make an exogenious testosterone finding and the use of 1 rather than 2 meabolites is not covered in the ISL, Landis had a difficult time proving his innocence.

All he could do was to identify holes in the case against him (He is not afforded discovery nor the right to the entire lab package nor the right to do "independent" experiments or analysis of the sample under the Code) and try to point them out. USADA then produced documents and witnesses based on those arguments, some of which certainly modified if not reversed USADA's earlier position on such matters.

Given the presumption of guilt, the lack of clarity of ISL requirements and Landis' denied access to ALL information concerning the evaluation of his sample, the result was inevitable, once the athlete is further impeded by math from ensuring complete Panel impartiality.

He's "guilty" because the system is set up that way. He was destined to be found "guilty" from the moment Claire Frelot and Cythia Mongongu declared him to be and the closed rank system enveloped the case.

What I think about the case doesn't matter. The result was preordained by the system. I give Young a hard time because he set the system up this way. But he knew what he was doing and he knew how to achieve WADA's goals. He won. To the victor go the spoils.

Cheryl from Maryland said...

Just to repeat from spouse -- a lawyer for the FDA -- if a drug company submitted the same testing results to the FDA, with the same documentation and the same number of times running the sample, all would fall down laughing.

It is called testing towards compliance, and it is allowed in sports because of politics.

bill hue said...

AC
Are you Andrew?
Have we had similar discussions in other places? If so, welcome to a more civilized debate, I hope.

If not, there is a person with very similar views to your that I have a lot of respect for.

Intellectually dishonest? How so? The Code stands the presentation of "evidence" on its head by its presumptions. Just because I don't believein the Code's requirements doesn't mean those who do are intellectually dishonest. Criminal corruption? That would be fraud or worse and I don't see anywhere that I accused anyone of doing that.

You might check that oath you talk about AC. We have examined it here before. It connects the Panel's task to the requirements of the Code's provisions. It requires impartiality in a task that has guilt as a presumption. to deviate from that presumption would, in fact, violate the oath.

Landis waived his rights by taking a license, no doubt. I'll bet he regrets not becomming a lawyer instead.

Larry,
I think you are correct about the Stevens Act. I can't put my finger on the jurisdiction aspects of bringing the matter into Federal Court in some way. There is so much to try to cover today but maybe we can work on that after awhile.

pensum said...

You make one helluva an argument there, enough so to cause me to doubt my own conclusions. But the point that really stands out in my mind as reprehensible in a procedure that can have such obviously devastating consequences to the individual involved (or individuals as in the case of members, including those innocent, of relay teams) is: "He is not afforded discovery nor the right to the entire lab package nor the right to do 'independent' experiments or analysis of the sample" I suspect that an argument might be made for not allowing independent analysis (though all weighed i certainly feel one should allow it), nonetheless that lack of discovery and access to the entire lab package appears to be unjustifiable even by the crudest legal standards. Sickening really.

Larry said...

Judge Hue, once my blood pressure returns to normal, I'd be happy to work together on some legal research.

To all, as this is a day full of talking points, consider that the accreditation paperwork entered into evidence at CAS showed that the LNDD's IRMS procedures were accredited with a margin of error of 20%. 20% might be one heck of a margin of error.

To illustrate for your friends who are wondering why you doubt the lab's findings in this case, consider what a 20% error rate might mean. Imagine that you've gone to the doctor for a checkup, and the doctor tells you, "by our measurements, you're six feet tall. Of course we have a 20% margin of error. You might actually be 7 feet 2 inches tall, or 4 feet 10 inches tall. Would you trust the doctor?

tbv@trustbut.com said...

Larry,

To work on that point alone, the counter-argument is: We're not trying to get an exact measurement. We're trying to determine if he's a dwarf. By our criteria, at 4-6, he's not a dwarf. So he's not a dwarf at a measured 6-0. It doesn't matter if it's off 20% or 8%, he's still not a dwarf.

I'll have transcripts up tonight.

TBV

Larry said...

TBV, agreed. 20% is a kind of accuracy. So to stretch (and shrink) the point, when our 6 foot tall friend goes into LNDD to be measured, LNDD can say "we're confident that you're not Verne Troyer (of Austin Powers "Mini Me" fame). But you might be Shaquille O'Neal."

A C said...

Judge Hue: You have to admit that Mr. Suh made a fundamental tactical error. As a lawyer, you never accuse an opponent of forgery and perjury, unless you have have them dead to rights; otherwise, most Judges will give you exactly the treatment Mr. Suh received. Lab technicians are hardly all that is evil with this world. If you read the last portion of the opinion, the Panel is fuming that he failed to deliver on his oft repeated theme, but yet did not have the "honor" and tactical sense to withdraw the accusations. The Panel was offended, and one cannot help but wonder if Mr. Suh's self righteousness did not get in the way of his client's best legal arguments. Arbitration decisions, including the $100,000 sanction, are fully enforceable in state and federal courts.

mwbyrd_70@yahoo.com said...

AC,

Landis' lawyers stuck to their guns with their defense regarding fraud and perjury. Heck, even Arnie's book details USADA's witness' changing their stories.

Why would the Panel care what Landis' defense was. Aren't they allowed to defend their client in the best way they know how?

Why did the Panel take it PERSONALLY? I thought they were supposed to be unbiased?

mwbyrd_70@yahoo.com said...

Can someone explain to me how the Panel totally whitewashed Landis' witnesses. They never asked USADA to prove that they were right.

They didn't give a damn about Landis!

I would hate to be an professional athlete right now. I think we all know why athletes (specifically cyclists) never defend another cyclist. They know the score and they know they'll be next to go down.

Hell, Boonen may have done coke, but it wasn't against the rules and he's been suspended from the Tour. What a crock!

The guys running cycling have known about doping for ever and now they act like the cyclists are evil. The only thing evil about cycling right now are the people running it...including USACYCLING!!!

N.B.O.L. said...

The issue I would most like to see additional information on is the "Different Columns" issue. That was the one argument I thought had a chance to have traction in the process. I look forward to seeing what the testimony was on that issue.

bill hue said...

AC
Real Judges are actually taught to have a thick skin. If a lawyers so offends a judge such as the judge cannot be fair, particularly to a lawyer's client, then the judge MUST self disqualify .... a concept in particular circumstance that is foreign to the CAS Procedures. You won't find self disqualification AFTER hearing in the CAS rules, only before the Panel is officially named.

That is a big difference between a private arbitration Panel and a person subject to the Judicial Code.

Larry said...

AC, you have a point. Reading through the opinion, you have the distinct impression that Landis made no friends at the CAS. I can't find a single Landis witness that the CAS found persuasive, or a single argument that the CAS found creditworthy.

With Wimbledon going on, let's try a tennis analogy. The language and reasoning of the CAS decision is the equivalent of a USADA three set victory at love ... followed by the umpire climbing down from his chair, hitting Landis over the head with USADA's tennis racquet and fining Landis $100,000 for arguing line calls.

I'm getting tired and cranky ... but can anyone find anything in the CAS decision to indicate that the CAS gave even the slightest credence to any point raised by the Landis team?

I didn't like the first decision reached by the AAA majority after the hearings in Malibu, but that decision is FAR more balanced and much better reasoned than the CAS decision.

Mike said...

Nice to see comments from so many infrequent posters. Nice to know there are so many lurkers.

I haven't read the decision yet, and from what you all are saying I am not sure there is much reason to do so.

I do have one question for you who are quick readers: did any additional information come out about the complete mass spec data for the IRMS? USADA claimed they presented the complete mass spec data in Exhibit 26 at the AAA hearing. Was that data at issue at all in this CAS hearing?

syi

A C said...

Judge Hue: As I read the last five pages, the Panel is distinguishing between an argument accusing the lab of getting the test wrong and an argument affirmatively accusing the lab of using forged documents and perjury to make its case - the former being completely fair argument and the latter being an extremely serious crime. To illustrate its disgust with Mr. Suh's tactics, the Panel makes the point that Mr. Suh accused one lab witness of perjury (in her sworn statement) for the first time in closing argument; yet never called her on cross examination to establish the perjury claim, but nonetheless required her to be available at trial. This kind of character attacks is frowned upon more seriously in other western legal systems than in the US, but I assure your readers plenty of judges here would do the exact same thing as the Panel, even if you would not. Mr. Suh's been called out for what is known in the business as a "sharp" practice, and his client is paying a $100,000 price. Make no mistake, the $100,000 is a sanction to deter parties from abusing the arbitration process by making frivolous and unsubstantiated personal attacks, which, most importantly, do not further cause of the defendant - that is that the lab made a mistake (not that it intentionally tried to frame Mr. Landis). AC

Larry said...

Mike, if you want to know what's in this opinion, you'll have to read it just like the rest of us. I recommend rubber hip-high boots worn over a standard haz mat body suit.

Oh ... I'm such a old push over ...

Paragraph 103 of the opinion assures us that as part of the GC/MS peak analysis performed by the lab, the "technicians analyse the mass spectra of each of those peaks to establish their purity." Knowing that the lab analyzes with an "s" instead of a "z" gives one comfort, doncha think? Also, during the B sample testing, we're told that Landis representative Dr. de Boer "asked for the mass spectra of the GC/MS".

I wish I could say that all of the issues in the Landis case were analyzed (or analysed) this carefully ... but at least we can sleep tonight knowing that the sleep of the CAS panel will not be disturbed by second thoughts regarding peak contamination.

Larry said...

AC, I truly hope you stick around here. I like the stuff you have to say, and I even find myself agreeing with you on occasion.

I think you'll find that this is an extremely fair and reasonable group of people. This has been a difficult day for many of us. You're not exactly seeing us at our most nice and congenial.

You have a point that Suh appears to have antagonized the CAS panel. But Judge Hue also has a point: it's hard to explain why the panel became antagonized. Yes, Suh et. al. had some harsh things to say about LNDD's lab technicians and USADA's witnesses. So what? Do you think that judges throw the book at every defendant who accuses a cop of brutality, or a eyewitness of bias, or a police lab of bungling a test, or an expert witness of being a hired gun, or a coroner of misplacing a body, or a D.A. of hiding evidence? This is standard fare in the courtroom.

Remember what the powers that be have said about Landis: nasty, nasty stuff. This dispute got ugly a long time ago. Remember that before a single lab document was released, before Landis had even hired an attorney, Landis was pronounced guilty by the president of the World Anti-Doping Association. You know, Dick Pound, the guy whose later pre-arbitration statements were not only scientific nonsense (testosterone could not have enabled Lands to power his way up mountains "like he's on a goddamn Harley") but personally insulting ("you'd think he'd be violating every virgin within 100 miles").

Explain to me why the CAS was antagonized by Suh's remarks, but no arbitrator ever seemed troubled by the remarks of Dick Pound. Explain why Pound is categorized as some kind of colorful curmudgeon while Suh is portrayed as being needlessly provocative. It’s hard to avoid the conclusion that Pound is forgiven for being a bit too zealous in the prosecution of dopers, while Suh is condemned for being a bit too zealous in the defense of dopers. What does this tell you about the system?

And remember, Landis lost points at the CAS because his B sample representative, Dr. de Boer, was too polite. Sometimes you can't win.

By the way, when I say that sometimes you can't win, I mean that literally.

wschart said...

Larry and others here in the legal profession:

Aren't lawyers supposed to defend their clients vigourously, whatever the case is? Suh was doing this, he gets dinged for it and so does Landis.

Imagine a criminal defendant who is found guilty, and the judge tacks on an extra 5 years because he does like the lawyer and/or defense witnesses.

Larry said...

wschart, the short answer to your question is "yes". Longer answers can be found in some of Judge Hue's posts here, in my response to AC above, and in the "Stunned" discussion at RYHO.

Maybe a better short answer is that I have not completely figured out what the Landis team did that so teed off the CAS panel.

whareagle said...

AC, just go through Arnie's book, page by page. I think you'll be enlightened...