Wednesday, June 18, 2008

Wednesday Roundup

News
The CyclingNews quotes Robbie McEwen as saying the Swiss have him all wrong, he loves their country, as long as he's winning there he does anyway.

In other CyclingNews as we near the 2008 Tour de France, some riders have still not been paid by the ASO for last year's work. Maybe they should stage a sit down in protest. Elsewhere, Nathan O'Neill is satisfied with the 15 month suspension given him by the CAS which is obviously less than the 24 months given him by ASADA. The Australian anti-doping authorities will now review the case to determine any possible appeal of the decision. In more PED news, Italy's Ruggero Marzoli has been sanctioned by the Italian cycling federation (FCI) for six months for involvement in the Oil for Drugs investigation revolving around Doctor Carlo Santuccione. The FCI ruled that Marzoli is liable for his contact with Dr. Santuccione and is therefore considered guilty of "attempted use of prohibited substances and a sanction is imposed."

VeloNews' mailbag contains a few notes from readers who are just trying to get the Tom Boonen brouhaha straight.

Blogs
Rant borrows from Tom Petty as he points to the agony Floyd Landis has had to endure for the past two years. His headline aptly states "The Waiting is the Hardest Part". Indeed:

Twenty three months, give or take. That’s how long it’s been since the accusations against Floyd Landis first blew up in the media. Twenty three months, and still no final resolution. In just a short while (as I write this), it will be two months since lawyers for Landis and for USADA were supposed to file their final arguments or proposed findings of fact, following the CAS hearings held in New York City during the month of March.


Jon from Trail's Edge Racing Team posts some results from the Lumberjack 100 held this past weekend, apparently without Floyd Landis who was scheduled to participate. Jon notes that as there are no stats kept for "DNS", or "did not start" Landis received a "DNF". Pictures of the event are also included. The official results are now available on the Lumberjack website in a PDF file.

Racejunkie
wants "in denial mode, evildoer victim" Tom Boonen to know that we love him because of his "foibles" not despite them, and hey Robbie ever heard of Miss Manners?

25 comments:

("Eightzero") said...

The USADA-Landis arbitration hearing finished around 5/23/07, with an award announced on 9/20/07 - about 4 months later. With the CAS hearing finished around 3/19/08, by analogy we'd "expect" an award around mid July. That is if the CAS has the same rules, timelines, and ability to digest what should be the same information. Perhaps the timeline is impacted by a different result?

But of course, there is an important cycling event taking place mid July. Will the CAS arbs wish to make an announcement before, during or after that? Will the impact of their decision be relevant to them?

Mike said...

Didn't they say at the time of the CAS hearing that their decision should come in June? Then someone, was it Rant, said it would likely be July. So I don't know what is right, but if the CAS had adequate resources and if the whole system was based on a reasonable attempt at fairness, there is no way the decision should have taken more than two months. But I suppose that is too much to ask. I'm just getting impatient.

syi

("Eightzero") said...

The CAS press release said the decision was not expected before June.

I am unaware of any resources the CAS arbitrators would need, other than the ability to read. This was apparently beyond the capabilities of Brunet and McClaren.

Ali said...

No offence to any lawyers who may be present, but they aren't known for their speed. Let's remember that time is money (i.e. the more time they take, the more money they earn).

My limited experiences with the legal profession (after almost being killed on my bike by a mad driver), resulted in months of frustrating ... inactivity, I guess. I had to continually hound them before anything happened. All I wanted was money to replace the tangled mess that my bike had become.

Although, in fairness, I was glad to be rid of it. That bike was jinxed. When taking it for a test ride in Edinburgh, I was doing a u-turn on cobbles, when the tyre blew and I ended up on the deck. Then, when riding it home after buying it, the car in front did an emergency stop and I slid head-first into him, knocking myself out and ended up lying unconscious on the road in rush hour. The subsequent and final bike squashing, hospital inducing accident (which was only a few weeks later) was probably the best thing that could have happened to me. At least it stopped my steadily escalating accident portfolio. Like I said, that bike was jinxed.

OK, I admit, I'm biased by a bad experience. I'm sure lawyers aren't the money leeches I imagine them to be :-)

Just kidding, Larry ... honest. This waiting is starting to get on my nerves :-(

Larry said...

Ali, catch ME on a good day if you want to hear a steady stream of invective directed at the legal profession.

If we don't get a decision in the next few days, then I hope not to see a decision until August. IF the decision goes in Landis' favor, then there's NO WAY the CAS would release the decision during the time window when the TdF is in the public view. A decision for Landis would be embarassing for ASO; a decision for Landis announced during the TdF would be outright humiliating.

Even if the decision goes against Landis, the CAS might decide not to announce it at a time when the announcement would distract from the TdF.

8-0, you underestimate the resources required by the CAS. Be fair. In addition to reading, they also need to be able to write.

I don't share the impatience being expressed here. I'm not looking forward to this at all.

daniel m (a/k/a Rant) said...

Mike,

A source of mine seemed to think that July was the operative timeframe. Not entirely sure how he/she knows this, but that's what I was told.

Patience is a virtue, so I'm told. But sometimes virtue wears thin...

;-)

("Eightzero") said...

There are compelling reasons the CAS would want to issue a pro-Floyd award before the start of the TdF. If the CAS is interested in making a public policy statement that sloppy science, incomplete custody chains, violations of procedures, protocols, and the farcical “we just use experience to tell this indicates a doping infraction” are not to be tolerated, this would be well timed to occur before the FFC controlled TdF. It would say “we’re watching. Screw up and it will be even more humiliating than last time.” IMHO, this would be a *good thing* for the anti-doping movement. It would be good for sport. There would be no debate, only bona-fide scientific proof that someone cheated. That’s worth something. Cynics might point out this is contrary to the personal interests of the CAS arbitrators – the status quo ensures a constant stream of cases and billable hours. I suppose…
Agreed, the CAS does need to be able to write. But I’ll make it easy for them. Here is eightzero’s findings of fact and conclusions of law:
1. USADA’s testing procedures are unreliable.
2. No suspension is warranted.
3. Costs awarded to Landis.
4. We’re sorry.
To which I would add “get your ass back on a bike and go kick some butts.”

-eightzero (member: Washington, Alaska, and Texas State Bar Associations.)

wschart said...

Does anyone know for sure that the CAS arbitrators are paid per "billable hour"?

Larry said...

oh, I should not do this ... I must truly be a sick-o ... it's like throwing red meat to sharks ... but I cannot resist being the bearer of this particular piece of news:

Dr. Gary Wadler of WADA is waiting on the NY Times Olympics blog to answer YOUR questions about doping.

Wadler Awaits

daniel m (a/k/a Rant) said...

eightzero,

The only change I'd make to your list is that I'd modify your #1 to say "WADA/LNDD's testing procedures are unreliable." USADA didn't really do any of the testing in the Landis case, after all. They're just the prosecutors.

Larry,

That's truly sick. ;-)

For those who have the time to log in, enjoy.

- Rant

Mike said...

By "resources" I meant the money they would need to employ "judges" full time, so these arbs were not trying to fit this work in around their already packed schedules. I am sure I spent hundreds of hours working on understanding the science and many, many more working on understanding the controlling law (as much as the law can be understood in its current ambiguous state). To expect someone to fit in the time to master all the necessary knowledge and evidence in this case, while keeping a "day job" is unreasonable to me. No wonder the cases take forever to settle.

I could be dreaming, but it seems to me that CAS is a little removed from the political influence of WADA and I honestly don't think the TdeF will impact the timing of their decision. But what do I know?

Ali said...

Larry,

Thanks for your tolerance to my remarks. I know you've applied yourself to this case in spades. I was lapsing into deliberately provocative (and failing, as usual with you !)

Cheers, Ali

Mike said...

Larry, picking up on yesterday's comment thread, what exactly are "non-substantive indicators?" And why are they against Landis in this case?

syi

Larry said...

Mike -

Non-substantive factors that are against Landis? Let's see how many I can remember:

1. Affirmation is easy. The CAS is an appeals court (the "trial de novo" stuff notwithstanding), and their two basic choices are to affirm the 2007 decision or overturn it. All things being equal, it's easier to affirm. Overturning takes a lot more explaining. Think about the inspector on the assembly line for the widget manufacturer: if he rejects a widget coming down the line, he has to justify that decision. But if he just lets the widget pass ...

2. The two million dollar question. Landis spent more than anyone who came before him in an anti-doping case, and consequently was able to challenge the science behind his AAF in a way that is (I think) unprecedented. If Landis were to win, we could say that the money he spent had a lot to do with his winning. No one is going to be comfortable with the idea that you have to pay $2 million to get a fair decision out of the ADAs. A decision against Landis will be viewed as proof that rich and poor athletes are treated equally by the ADA system.

3. Cost-benefit analysis, part one. The "cost" of deciding for Landis is high: the CAS will be criticized unmercifully if they overturn the AAF. The French will scream. WADA will scream. USADA will scream. Most of the press will say that Landis got away with doping. It won't matter what the decision says, or how well-reasoned the decision might be, because there will be about 50 of us who will actually read the decision. Sure, any time one of the CAS judges runs into Landis (or you, or me) on the street, he'll get a pat on the back and an invitation for a beer at the local pub. But when the same judge is at an official CAS or ADA type function, he's going to get the cold shoulder. It would take guts to decide for Landis at this point.

4. Cost-benefit analysis, part deux: at this point, what good would it do to decide for Landis? He's already been excluded from the sport for 2 years.

5. The "whoops" Factor. This is related to point 4, but if the CAS decides for Landis, they're saying something more than that the original decision was wrong. They're also saying that the system completely failed, since the system was not able to correct its mistake until Landis had already received his full punishment. It's a little bit like deciding that a defendant was wrongly convicted for a capital offense ... the day after the defendant was executed. At that point, there are no heroes, and no way to right the wrong. Going back to point 1 above, it's always difficult for the "system" to admit it was wrong, but it's much harder for the system to admit wrong when it's too late to make it right.

6. Scorched earth. A decision in favor of Landis is going to lead to more litigation, as I think Landis will sue everyone in sight. It won't be pretty. If Landis succeeds, he'll at least have monetary compensation for his loss ... but ASO, WADA, USADA, UCI, FFC, LNDD et. al. will be poorer. The ongoing health of pro cycling, including "reform" efforts like the biological passport, require money. The Landis-Suh team will do to cycling what Sherman did to Georgia. The prospect of cycling left in ruins may not appeal to the folks at the CAS.

7. Reactions can be reactionary. The CAS might hope that a decision in favor of Landis would lead the ADAs to reform their bad practices. But life does not work that way. The ADAs will react by changing their rules to make sure that future Floyd Landises will lose. What good will come of that?

8. Civil War. Cycling is, arguably, coming apart at the seams. The TdF has broken away from the Pro Tour, the FFC is separated from the UCI, UCI is suing the past WADA president, and so forth. What impact would a pro-Landis decision have on this internal warfare? Well, one impact would be that the French owners of the TdF would be a lot less likely to have their doping testing scrutinized by panels in California and Switzerland. A pro-Landis decision would probably increase the infighting in cycling. Again, another reason why the CAS might not want to overturn the AAF.

9. Endless war. If the CAS decides for Landis, this may end one legal saga but it will begin another -- this time between the French cycling authorities (who will NOT accept the CAS decision) and the CAS. The CAS may not be up for such a fight.

10. Demi-maillot jaune. If Landis wins, then someone's got to decide what to do about the other "winner" of the 2006 TdF. If Landis loses, that's one problem the CAS does not have to confront.

I can probably come up with more reasons why Landis loses if the actual facts of his case can be put to one side ... but these ten should suffice.

Mike said...

Oh Larry, you're such a cynic. I see why you call them "non-substantive" indicators. As you know, not a single one of the things you mention should make one teeny speck of a difference in the decision of the CAS.

I don't know what these three will make of the evidence, but I actually believe that if they think the evidence is insufficient to show Landis guilty they will decide in his favor - to hell with "non-substantive" indicators. These guys have to live with themselves after this case is over. No one, not even lawyers (or, more generously, especially lawyers), want to live knowing they screwed a guy for political reasons.

Anyway, I can hope.

Without a "scientific advisor" who is bound to defend the lab's work chatting in their ear the whole time, I don't see any reason why they shouldn't be able to look at the science and see that it doesn't show what LNDD and USADA say it shows.

syi

Tim said...

To quote Larry, "I don't share the impatience being expressed here. I'm not looking forward to this at all."

I agree. The other sad thing is the list of 10+ non-substantive indicators. It's hard to argue with any of them.

I've been following this blog since 2006, and haven't posted in along time, but thanks to all who have. I have learned alot, and respect you all.

Strbk, when I get out your way, I will owe you a drink for all your hard work.

(Haven't totally figured out where all the rest of you live, other than TBV, or I know I will not be your way in a while)

Tim

Larry said...

Mike -

rant alert (and I use "rant" with a small "r", so as not to refer to that great blogger from the northwest).

I SAID these indicators were non-substantive. But I didn't say that they won't make a difference.

I personally adhere to what I think is an old-fashioned sense of jurisprudence: I think that the job of judges, juries and arbitrators is to find the applicable facts, figure out what the law is and then apply the law to the facts. I'm probably hopelessly idealistic, but I actually believe that this is the process in fact for 99% of the cases out there. The remaining 1% are the difficult cases, the highly publicized cases, the close cases, the cases that people care about with great passion, if not necessarily with a commensurate understanding of the facts. The Landis case belongs to the 1%, not the 99%.

You want to apply some facts to some law? Fine. Here's my "eightzero" version of what the CAS decision should say. (1) LNDD used white-out on lab documents, thus departing from the ISL. (2) USADA was required to prove that this departure did not cause the AAF. (3) USADA never met this burden of proof, as to do so they would have to prove what got whited-out. Maybe what got whited out was, "be careful not to switch the columns" or "sacre blue! Il est innocent!" (or maybe just the classic "J'accuse!"). (4) Ergo, Landis is innocent. (5) Drive home safely.

Given that I find the foregoing to be a completely satisfactory opinion in this case, then I can go on to make the following statement:

Every effort we've made on this forum to understand the Landis case has been based on the assumption that the mere application of the facts to the law would not do in this case.

One of the first things I learned on this forum was that no one was interested in deciding this case based on the white-out. No, the interest here was to decide the case based on Landis' true guilt or innocence, on whether the science showed he doped, on the Truth with a capital "T". You all are not alone in this: the folks on that other forum you frequent (well, at least the ones who are honest and intelligent) also shared a desire to see the case decided on the basis of the truth and the science.

With the perspective of time, you can see where this effort led us. We actually succeeded reasonably well: We uncovered a lot of information, and we've forged an understanding of some arcane science and technology in the process. We can converse intelligently about this case. And we can poke a few fair-sized holes in the case made by LNDD and USADA.

But we never uncovered the Truth. And the science as we discovered it never proved one way or the other that Landis was guilty or innocent.

So I go back to my earlier point: no one on this forum wanted to see the Landis case decided based on the white-out. And even with all we went through, trying and failing to get to the Truth, there's still no one on this forum (except me) who would decide this case based on the white-out. Why not?

The answer, my friend and comrade at arms, has to do with some "non-substantive" factor that you carry inside of you.

Perhaps you think that this case is "too important" to be decided on a "technicality". Or that it's not enough for Landis to overturn his AAF, it is also necessary for Landis to restore his reputation and public standing. Or maybe you're one of the "law haters" here who think that the case should be ruled by "science" because law is flawed and political, while "science" is pure and true.

As soon as you depart from a technical application of the facts to the law, you're on a slippery, "non-substantive" slope. Because the only substance that should matter here is applying the facts to the law.

Given our reluctance to limit our inquiry to the application of law to facts, we should not be terribly surprised if the CAS also considers extraneous factors in reaching its decision.

("Eightzero") said...

Larry, your non-substantive reasons are well written and insightful. They likely represent the realities of where we stand at this moment. Without taking up too much of TBV's bandwidth, and while I think a little more about these points, I have to point out, for the record each of these reasons have one thing in common:

They each are reasons for the CAS doing the wrong thing.

Should the CAS pick any one of them and say "we must find for USADA because [insert any of #1-#10]" there would be such an outrage that even the most jaded, cynical, and disinterested journalist would expose the lack of the emperor's clothes. The CAS itself would fall to disrepute, and the jig would be up.

They obviously can't. *Even if* in practicality they do any of the things you list, they will never admit it was a factor. Meaning we are all robbed of something important: due process. When even one person is deprived of this, it puts us all at risk. The vulnerable and powerless fall victim to the oppressors and powerful. Who will be next? Me? You? TBV? Judge Hue? They got to Floyd; they can get us too. And no one will be the wiser.

I apologize to all for being overly dramatic. Oddly, I find this issue compelling and important in an era when there is so much other strife and injustice in the world. I find myself a little consumed and obsessed with the injustice done to Floyd. To steal from a famous political figure, perhaps I think some see things as they are, and they wonder "why," when I think we'd all be better off seeing things that never were and wonder "why not?"

Could the CAS find for Floyd? Why not?

jrdbutcher said...

larry,

I'd be happy to join you on the white out issue. I accepted the rest of the exercise to get a more encompassing picture.

There are plenty of disqualifiers here. CoC, "we use our experience" and "because I say so", also come to mind.

I'm not sure which occured first? CoC problems or white out? Chicken or the egg?



Q. Why did the punk rocker cross the street.
A. Because the chicken was stapled to his ear.

tbv@trustbut.com said...

Here's one reason why a positive verdict for Landis is not a moot issue: The ProTour "double your punishment" clause. Without a CAS win, "ethical" protour teams would still be prohibited from hiring him for two more years.

TBV

Larry said...

8-0, well, yes, if my 10 reasons accurately describe the pressure on the CAS to decide against Landis, the CAS is not going to come out and admit it. For example, they're not going to say that they've decided for Landis so as not to upset the ASO and FFC.

But these factors exist in any high-profile and controversial legal case, and I think it's obvious that they will have an influence on the case. If the arbitrators see the facts and the law in this case as clearly favoring Landis, or clearly favoring USADA, then maybe these other factors decline in importance. But if the case is close, these factors become more important. If the arbitrators see the evidence 50.1% in favor of Landis ... but they also think that a pro-Landis decision would have substantial negative consequences, do you really think that the arbitrators would decide for Landis? Do you really think that even the most honest arbitrator would not redo his math and find that the evidence was only 49.9% in favor of Landis?

I expect judges, juries and arbitrators to have the courage of their convictions, but there are limits. For example: if the jurors on the OJ Simpson jury REALLY thought he was innocent, then I would expect them to find him innocent, regardless of all the yelling and screaming that followed the verdict. Because after all, that's all the OJ verdict produced: a bunch of yelling and screaming.

Contrast the Curt Flood case, which has been discussed here (I think) and on Rant's blog (I'm pretty sure). If the court decided against Flood (which it did), then Flood gets screwed, but nothing changes. If the court had decided for Flood, then the whole sport of baseball changes: free agency, higher salaries, competitive imbalance between rich and poor teams, and who knows what else. That is a completely different kind of courage, to let the chips fall where they may. Courts commonly lack this kind of courage.

In the U.S., we celebrate cases like Brown v. Board of Education, where racial segregation was outlawed in the public schools. Truth is, there are very few cases like Brown. The courts are not set up to be agents to effect sweeping changes, and they are uncomfortable in performing this role. Courts are essentially conservative institutions -- not "conservative" in a political sense of being more likely to vote for Republicans, but "conservative" in the sense that they exist to enforce existing rules and look to exercise restraint in the exercise of power.

So ... if the arbitrators on the CAS believe that a pro-Landis decision would rock the sports world and have a sweeping adverse impact on cycling ... and if they think that an anti-Landis decision will screw Landis but otherwise do nothing else to impact the status quo in a negative way ... I think this means that if the case is close, Landis will lose. I don't see how you can expect any other result.

(TBV, good point! Now, name the Pro Tour team whose relationship with the ASO is SO GOOD that they could afford to hire Landis now, or in two years, or ever.)

(JRD, I'll include you from now on in the list of TBV denizens who support the white-out argument. Of course, our club can have its meetings in a phone booth!)

Thomas A. Fine said...

It just surprises me really. I mean, the obvious answer of when this decision is going to be released is... right before the Tour starts. Anyone who's been following cycling for the past ten years knows that all big and potentially scandalous cycling stories break right before the Tour. How could it be otherwise?

As far as Floyd winning and racing again... don't forget about the ASO. I think I suggested this many moons ago on DPF, but Floyd will be radioactive. Any team that touches him similarly becomes radioactive, and will become one of those teams that is not welcome at any ASO event.

At which point, pro cycling basically collapses under the weight of ASO's angst.

tom

Mike said...

It would be pretty funny if we read the decision first in L'Equipe.

syi

("Eightzero") said...

I think it would be tragic to read about it in the French Tabloid L'Equipe first. Still, I think it very possible. TBV: can we post a poll on where we think we'll read about it first? I vote I'll hear about it right here on TBV.

I also suspect (and hope) Michael Ball and Floyd are discussing future options. Now that ASO is creating a rival cycling league, we'll see if sponsors put together an "A" team and a "B" team, one for the ASO events, and one for the UCI events. Given AFLD's legislative decree of no racing by Floyd in France, could he participate in the UCI only events without jeopardizing the ASO squad's standing? Now that ASO and the Tour of California are in bed together, would ToC bow to pressure from ASO to treat Floyd like they did Hamilton, Botero and Sevilla?

Thomas A. Fine said...

No, I'm betting money that if Floyd would be on the squad, ASO would block the squad with or without Floyd.

As far as where the news breaks first? If Floyd loses, L'Equipe is not a bad bet, but my guess would be McQuaid would try to beat them to it. He's likely to get the news very quickly in any case.

If Floyd wins? I was thinking there's a chance they might actually notify Floyd first. But then, no, even if Floyd wins, various entities would prefer to try to control the story by getting in the first spin.

I'll even wager the spin centers on him buying his way out, and that there will be comparisons to OJ.

tom