Wednesday, July 02, 2008

Case Closed?

Column in Swiss Die Weldwoche,

by Hanspeter Born

"This case is a further sad example of an athlete who cheated but persisted in denying," said John Fahey, "I hope that athletes who may be tempted to cheat will take this lesson to heart and that this case will serve as a strong deterrent." The president of the World Antodoping Agency was obviously pleaed with the decision of the Court of Arbitration for Sport to uphold the doping charges against Floyd Landis. As a result of the ruling by the three CAS arbitrators -- lawyers from New York, Paris, and Auckland, New Zealand --- the American cyclist remains stripped of his title as the Tour de France winner 2006.

The decision by the highest sports tribunal makes it official: Floyd Landis’ sensational ride in the 17^th stage which allowed him to win the race was achieved with the forbidden help of synthetic testosterone. Landis had spent 3 million dollars trying to whitewash himself, all in vain. On top of this Landis will have to pay $100,000 toward the legal fees of the U.S. Anti-Doping Agency, as a penalty for his aggressive defense, which was deemed a”frontal attack on the entire anti-doping system”. Landis' attorneys had charged that the French lab LNDD, (which detected the testosterone in the rider’s urine) had falsified documents, fabricated records and deleted important analytical data to support its findings. The CAS-arbitrators admitted that there were “some minor procedural imperfections”, but found "no evidence at all to sustain any of these serious allegations."

Travis Tygart, head of the US-Anti-Doping-Agency called upon Landis to admit to doping. "Maybe with finally being held accountable he might finally realise that the best thing for him to do is acknowledge his mistake to dope and try to come clean." It can be assumed that 90 if not 99% of all commentators and fans would agree with Tygart and urge the American rider to make a clean breast of it. Case closed. Or is it?

Floyd Landis has not intention of admitting any doping offence and maintains that he won the Tour de France fair and square. In an interview with the Los Angeles Times he said: "I refuse to accept that the world works this way. I don't buy it.”

There are a few other people who “don’t buy it.” Amongst them there some very reputable scientists who specialise in doping analysis and in the effects of testosterone on the human body. After the ruling was released Dr Wolfram Meier-Augenstein, Senior Lecturer in Stable Isotope Forensics at Queen’s University in Belfast, restated his view that the work of the French lab LNDD had been “attrociously bad.” He deems the CAS-ruling “a tragedy for the sports community and a travesty of science and justice” and sees it as “a victory of corporate ego and politics over justice.” Meier-Augenstein is so seriously disappointed with the unprofessional sloppy work of the LNDD that he plans to dedicate a whole chapter of his forthcoming textbook „Forensic Stable Isotope Analysis“ to the Landis case – under the heading “how not to do it”.

Not only science took a beating on Monday when the CAS-ruling was published but also the law. Bill Hue, a Wisconsin Circuit Court Judge, who has followed the Landis case closely from the beginning, speaks of a “sad day for justice” and has vowed to “deconstruct the fable that was Landis’ anti-doping prosecution”, For Bill Hue Floyd Landis remains a hero:

“ Floyd is not my hero because he is an American or because he won the Tour de France. Greg LeMond and/or Lance Armstrong are not my heroes and they won many more tours than Floyd has. Floyd is not my hero because of his epic ride on Stage 17 of the 2006 race. Without demeaning that ride, others in cycling have had similar epic single day rides throughout the years. Floyd is my hero because in the face of the biggest travesties of “justice” I have ever seen, he stood proud, determined, true to himself and his family and did not bow to those who define “the game” by making its rules, prosecuting those deemed to violate those rules and then stack the deck with those responsible to judge those “violations”.

The Anti-doping-establishment believes that it has won and that the Landis case will be conveniently forgotten. Cyclists and those that govern the sport may have been silenced, but it will be harder to shut up the /bona fide/ scientists and legal scholars, who are outraged by the treatment dished out to Landis and the mockery that the procedure made of scientists’ quest for the truth. The case is definitely not closed.


("Eightzero") said...

In an effort to understand "what's next" I've dug a little into the proceudres for enforcing or agreeing to arbitrate disputes. It is not clear to me that the Federal Arbitration Act does apply here (the contract between a pro cyclist and USA Cycling is less than completely clear) but I ran across some interesting verbiage from a Federal Appeals Court (the 4th circuit; and it is by no means clear exactly *where* an arbitration award can be reduced to a judgment or writ of execution in a case like Floyd's).

From Hooters of America, Inc. v Phillips 173 F.3d 933 (4th Cir., 1999): (sorry for the long cut and paste)
...Hooters materially breached the arbitration agreement by promulgating rules so egregiously unfair as to constitute a complete default of its contractual obligation to draft arbitration rules and to do so in good faith.

Hooters and Phillips agreed to settle any disputes between them not in a judicial forum, but in another neutral forum-- arbitration. Their agreement provided that Hooters was responsible for setting up such a forum by promulgating arbitration rules and procedures. To this end, Hooters instituted a set of rules in July 1996. 1 The Hooters rules when taken as a whole, however, are so one- sided that their only possible purpose is to undermine the neutrality of the proceeding. The rules require the employee to provide the com- pany notice of her claim at the outset, including"the nature of the Claim" and "the specific act(s) or omissions(s) which are the basis of the Claim." Rule 6-2(1), (2). Hooters, on the other hand, is not required to file any responsive pleadings or to notice its defenses. Additionally, at the time of filing this notice, the employee must pro- vide the company with a list of all fact witnesses with a brief sum- mary of the facts known to each. Rule 6-2(5). The company, however, is not required to reciprocate.

The Hooters rules also provide a mechanism for selecting a panel of three arbitrators that is crafted to ensure a biased decisionmaker. Rule 8. The employee and Hooters each select an arbitrator, and the two arbitrators in turn select a third. Good enough, except that the employee's arbitrator and the third arbitrator must be selected from a list of arbitrators created exclusively by Hooters. This gives Hooters control over the entire panel and places no limits whatsoever on whom Hooters can put on the list. Under the rules, Hooters is free to devise lists of partial arbitrators who have existing relationships, financial or familial, with Hooters and its management. In fact, the rules do not even prohibit Hooters from placing its managers them- selves on the list. Further, nothing in the rules restricts Hooters from punishing arbitrators who rule against the company by removing them from the list. Given the unrestricted control that one party (Hooters) has over the panel, the selection of an impartial decisionmaker would be a surprising result.

Nor is fairness to be found once the proceedings are begun. Although Hooters may expand the scope of arbitration to any matter, "whether related or not to the Employee's Claim," the employee can- not raise "any matter not included in the Notice of Claim." Rules 4- 2, 8-9. Similarly, Hooters is permitted to move for summary dismissal of employee claims before a hearing is held whereas the employee is not permitted to seek summary judgment. Rule 14-4. Hooters, but not the employee, may record the arbitration hearing"by audio or video taping or by verbatim transcription." Rule 18-1. The rules also grant Hooters the right to bring suit in court to vacate or modify an arbitral award when it can show, by a preponderance of the evidence, that the panel exceeded its authority. Rule 21-4. No such right is granted to the employee.

In addition, the rules provide that upon 30 days notice Hooters, but not the employee, may cancel the agreement to arbitrate. Rule 23-1. Moreover, Hooters reserves the right to modify the rules, "in whole or in part," whenever it wishes and "without notice" to the employee. Rule 24-1. Nothing in the rules even prohibits Hooters from changing the rules in the middle of an arbitration proceeding.

If by odd chance the unfairness of these rules were not apparent on their face, leading arbitration experts have decried their one- sidedness. George Friedman, senior vice president of the American Arbitration Association (AAA), testified that the system established by the Hooters rules so deviated from minimum due process standards that the Association would refuse to arbitrate under those rules. George Nicolau, former president of both the National Academy of Arbitrators and the International Society of Professionals in Dispute Resolution, attested that the Hooters rules "are inconsistent with the concept of fair and impartial arbitration." He also testified that he was "certain that reputable designating agencies, such as the AAA and Jams/Endispute, would refuse to administer a program so unfair and one-sided as this one." Additionally, Dennis Nolan, professor of labor law at the University of South Carolina, declared that the Hooters rules "do not satisfy the minimum requirements of a fair arbitration system." He found that the "most serious flaw" was that the "mecha- nism [for selecting arbitrators] violates the most fundamental aspect of justice, namely an impartial decision maker." Finally, Lewis Maltby, member of the Board of Directors of the AAA, testified that "This is without a doubt the most unfair arbitration program I have ever encountered."

In a similar vein, two major arbitration associations have filed amicus briefs with this court. The National Academy of Arbitrators stated that the Hooters rules "violate fundamental concepts of fairness . . . and the integrity of the arbitration process." Likewise, the Society of Professionals in Dispute Resolution noted that"[i]t would be hard to imagine a more unfair method of selecting a panel of arbitrators." It characterized the Hooters arbitration system as"deficient to the point of illegitimacy" and "so one sided, it is hard to believe that it was even intended to be fair."

We hold that the promulgation of so many biased rules -- espe- cially the scheme whereby one party to the proceeding so controls the arbitral panel -- breaches the contract entered into by the parties.

Sound familiar? said...

Familiar except the the AAA complaint about the Hooters rules. The AAA seems to be completely happy with the USADA/WADA rules for arbitration.

It would be interesting to know what is appreciably different between the rules that lets the AAA accept one and reject the other. Is is substantive, or is the way the that it is dressed up?


Larry said...

8-0, you're presently posting faster than I can respond. I will try to catch up later.

Do you have a law background? I hadn't thought so, but this is impressive work.

jbro said...


not to be cheap, but with Hooters, is not everything in the dressing? (read presentation) Sorry I could not resist.

jrdbutcher said...

Seems the arbitration rules crafted by USA Cycling/USADA meet the "minimum" standard accepted by AAA.

Good to see everyone is striving for excellence here.

Larry said...

While I struggle to catch up with 8-0, there's good information here at Loyola Law Journal on CAS.

("Eightzero") said...

Larry: WA/AK/TX bars. I tell my family I play piano in a New Orleans house of ill-repute so they'll have respect for me. ;-)

I would be very pleased to collaborate with you, Judge Hue, TBV or others offline if you prefer. I'm easy to find though my blogger profile.

TBV: I agree - the AAA tesified in Hooters they thought the rules sucked. And this is only the first case I've found - clearly there are distinctions that can be made. But has anyone *asked AAA directly* what they think of the farcical system athletes are subject to? Anything in the briefs, or otherwise?

And of course, what do we know about the CAS arbitration? It is closed to inspection. What "science" can take place behind closed doors?

Maybe Floyd should refuse to pay the $100k, and see if USADA makes a motion to compel. As my grandfather used to say "now we shall see."

I'd pay real money to be a fly on the wall in the meetings to come between Jacobs, Suh and Floyd. Floyd said "they will never get to the end of how much I can take."

Damn. I'm ready to see this. I've seen him turn pedals in anger. He's one tough bitch. I want to feed him water bottles on the road to come. Venga, baby.

Mike said...

That Hooters case is interesting. Of course that employment situation doesn't require much technical knowledge, so the bad process is easy to understand.

In Landis' case, a lot of the flawed/biased process doesn't come out until you see the process for treating the scientific evidence and the rules of discovery. The AAA may not really understand / have bothered to understand how the USADA process would really play out in "court."

The most hopeful bit from Hooters seems to be that Phillips (must have) agreed to the terms of arbitration upon becoming an employee, but then was not expected to simply roll over and give up when the rules were put into effect.

I wonder if Richard Young wrote the Hooters rules?


Russ said...

Besides the bar list, eightzero.

What a HOOT! I couldn't resist either, but the Hooters arbitration fiasco begs a twist on the phrase that includes their name!

and Larry,
The quote "George Friedman, senior vice president of the American Arbitration Association (AAA), testified that the system established by the Hooters rules so deviated from minimum due process standards that the Association would refuse to arbitrate under those rules."

Would suggest to me that our USADA and CAS panels might in fact, be ethically implicated by their involvement with such a system!!!

But I guess that is one of the details for you legal dogs to hound out.
Please, I say this with considerable respect :-).