Thursday, July 24, 2008

Fallout 25

News
One is struck by the very different tone being applied by the media to the reported positive on would-be Olympic Swimmer Jessica Hardy.

The Sydney Morning Herald takes the hard line one might expect on a non-US outlet: "
US team rocked as breaststroker Jessica Hardy tests positive"

The SF Chronicle, home of "there's always a local angle", says, "Ex-Cal swimmer could be out of Olympics". Author John Crumpacker notes that

Swimming is poised for unprecedented exposure in Beijing. NBC used its considerable clout as U.S. rights holder to have the swimming finals switched to morning in Beijing so they can be televised live in prime time in the U.S.

Might this have something to do with the lack of instant condemnation in yesterdays story by Alan Abrahamson at NBCOlympics.com? Let's see what he says today...

NBCOlympics/Abrahamson buries the story today in a brief blurb which doesn't mention Jacobs by name, doesn't condemn, but does identify the specific substance:
Jessica Hardy, 21, of Long Beach, Calif., was said Wednesday by her defense lawyer to have tested positive July 4 -- in a test administered at the Trials -- for the banned substance clenbuterol. Hardy was first at the Trials in the 100m breaststroke, second (behind Torres) in the 50m freestyle. It remains unclear whether she will be eligible to race at the Games; an expedited hearing process has been launched.

The AP says, "Swimmer Jessica Hardy. 's trip to the Beijing Olympics could be in jeopardy after she tested positive for a banned substance." Ya think?

RightFielders reports she's hired Howard Jacobs:
“Jessica denies that she has taken any prohibited substances,” he said. “We’re looking into explanations for the positive [tests].”

We await the condemnatory opinion pieces that say all dopers deny, deny, deny, hire expensive American lawyers, engage in legal tricks and try to get off on technicalities.

The Washington Post is more shocked, along with USA Swimming, and says
Clenbuterol has been abused in the bodybuilding community for years. It is considered a weight-loss aid, and bodybuilders take it to make themselves look cut. Baseball players David Segui and Jason Grimsley admitted using the stimulant, and pop star Britney Spears reportedly has used it.

Brittney connection!!! Our blog life is complete!

The Seattle Times is shocked at the test timing, it is so unfair:

The big question raised by this bit of extremely bad timing is about the testing process itself, particularly its timeline. Specifically: How can the USOC fail to allow time for doping questions to be raised and answered satisfactorily before names of Olympians must be submitted to the IOC? If Hardy is bounced and cannot be replaced, it's a blow to the U.S. swim team,

blah, blah, blah, jingoistic apologia. Now the media is concerned -- because it is American Olympic Medals at stake. How about Mayo, and Ricco, and Piepoli? How have their due-process rights been respected? Mayo is now years on an unconfirmed test; Ricco is bounced out of competition with just an A, not an A and B as Hardy has been found; and Piepoli is out of a job, and he has no positive test at all.

It's not like swimming is a known-to-be-clean sport. The difference is that it is a commercially important Olympic sport, and the kind of scandal that engulfs cycling is bad for the Olympic bottom line.

The international (particularly Australian) coverage is an interesting contrast, with little sympathy for the caught doper. "Tough noogies for the American team" is the sentiment elsewhere.

Let's be clear -- we have no opinion on the merits, or an axe to grind with Hardy.

But many people who are being sensitive to her plight are people who condemned Landis loud and long, and ridiculed his defense and his defense attorneys, including Jacobs. Now, because it is someone in a sport they care about, they are concerned about timeliness, and probably the fairness of the proceedings.

What will the US media say if the ADRB throws out the test results, FINA appeals, and the presumptions of WADA lab correctness result in a two-year ban?

Is USADA going to give Jacobs material to work with, or a thin LDP, starving him of information before an expedited hearing.

Should it matter if they "like" the athlete in question?

Having validated the bus by running over Landis with it, we ought to be throwing everyone under it, equally -- That would be reaping what we've sown with this process.


SportsStar (India) runs down Olympic dope enforcement skeptically, and paints everyone found positive as a dirty rotten doper.


Law.com talks to Adam Brezine, an HRO attorney who was briefly involved in the Landis case, pitching sports law. He notes that HRO is unlikely to take the athlete's side in any case.

Blogs
Lij got the same spot on L'Alpe she had in 2006, and laments the faded "Floyd, Floyd, Floyd, Floyd" painted on the road there.



14 comments:

Nancy Toby said...

Where are the commentators saying that swimming is DONE as a sport and fans are abandoning the sport in droves in their huge disappointment?

Larry said...

Swimming has fans?

;^)

dailbob said...

Larry,
The parents... ;-)

wschart said...

Speedo is a swim sponsor. Maybe these drug revelations will cause them to pull out, and take their suits with them. Then, you might get a whole bunch of fans at swim meets!

calfeegirl said...

But wait, isn't the new Speedo suit under WADA scrutiny for being a PED???? I'm waiting for all swimmers to be banned, or as wschart somewhat alludes, all swimsuits to be banned.

Larry said...

TBV –

I write this on the assumption that you continue to think about wrapping up this site. If that’s the case, and I can’t say that I blame you, then I think you owe it to yourself to consider what message you want to leave with us, and the tone you want to use as you ride your ten speed into the sunset.

I understand how you must feel to see the U.S. press express the kind of sympathy for Jessica Hardy that they never expressed for Floyd Landis, or for that matter, Mayo and Ricco and Piepoli. You are right, anyone who would shed tears for Jessica Hardy while heaping scorn on those accused of AAFs in cycling, are guilty of transparent, jingoistic and commercially motivated hypocrisy.

All that being said, I don’t want to see Jessica Hardy thrown under the bus with Floyd Landis.

I don’t know who you were two years ago, and whether you were savvy about WADA world. Me, I knew very little. At that point, I probably supported every AAF in sports history. Ben Johnson, Marco Pantani, David Millar, Roberto Heras – good riddance, the sports world was better off without them. Maybe I felt a little sympathy for Tyler Hamilton – he seemed like such a boy scout – but when his defense emerged (hidden twin?), I threw him under the bus with the rest of the dopers.

Why did I react differently to Floyd Landis? I’d love to tell you that my discerning mind and keen intellect sensed instantly that something was wrong … but I’d be lying. Floyd was different because he was a U.S. athlete in a sport I loved, and I’d spent the better part of two weeks cheering for him. (I was pulling for George Hincapie in week 1.) I can promise you, there was nothing more pure and noble in my initial reaction than in the reactions we both condemn to Jessica Hardy’s announced AAF.

As long as I’m in personal confession mode, I’ll state that even after the Landis case, I feel little sympathy for most people accused of AAFs or other less specific crimes against the anti-doping establishment – not Vinokourov, not Rasmussen, not Basso. Maybe I haven’t learned the lessons from the Landis case.

Why am I burdening you with my version of True Confessions? Because I think that the only way to get a person to see what an unholy mess we’re creating out of anti-doping is through the perspective of an accused athlete that the person actually cares about. I think we made small progress in the Roger Clemens case -- a few people actually started feeling a bit of sympathy for an accused athlete, at least before that accused athlete eliminated all possible sympathy with his decidedly unsympathetic behavior. Maybe Jessica Hardy will prove to be more sympathetic, and some swim nuts will start their own TBV site, and a few more people will come to understand this process.

There is no saving Floyd Landis. His AAF is all but final. I cannot imagine the resulting pain – to Floyd, to his family and to everyone close to him. If there’s anything good that can come out of this (and I’m far too gloomy a human being to believe that any good will come out of this), it might be if people like you and me repress our mutual desire to throw any more athletes under any more buses.

I’m not saying that I can succeed at this. But I have higher hopes for you. You’ve seen for quite a while that the only way to go in anti-doping is to treat doping like a sports offense, not like a violation of law or a breach of contract. Something worse than a 15 yard penalty, but not as bad as betting against your own team.

You’ve convinced me on this. The only way to go is for the ADAs to say to the accused athlete, “look, our tests aren’t perfect – what do you expect from an $85 test? – but it looks like you may have been doping. We could be wrong, and if we are wrong, gee, we’re sorry. We’d be happy to sit down with you soon (what does your schedule look like tomorrow?) and a representative of our WADA lab, and maybe a scientist or other person to represent you, and let’s go through the findings together. By the way, we don’t do that crazy arbitration thing anymore – it was costing us millions of dollars, and everyone just ended up so pissed off at each other, so at some point we said to ourselves, this is crazy! So we’ve toned this thing way down – if you can show us that you probably didn’t dope, great! It If it looks like you doped, that’s not the end of the world either. Yeah, doping is cheating, and no one should do it, but this is only a GAME, for God’s sake. Even if you did dope (and maybe you didn’t, we’re not perfect), it’s not like you robbed a bank or sold state secrets to the enemy! And please, try not to let this get you down. Yeah, you’re going to miss a competition or two, and that sucks, but you can come back next week, or next month, or next year, and there will be no hard feelings on this end. In the meantime, you have to take 10 hours of instruction about the health risks of doping – if you ARE doping, you should really stop doing that, you know?"

OK, it’s not a perfect plan, but it beats the hell out of the underside of a bus.

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

Larry,

I like that approach. Much more sane and much less confrontational. Wouldn't it be great if the powers that be actually went for such an idea?

wschart said...

Larry:

Great thoughts. Some time ago, I posed a question, I think over on Rant: "What is cheating" and the answer was something like "breaking the rules". However, I think it is more complicated than that, and the answer ties into your idea that PED use is not a criminal offense, or at least should not be.

All sports have rules. Some rules are, for lack of a better word, organizational: who is eligible to compete, etc., and some rules govern that actual competition. Break the rules of competition and, depending on the sport, you are assessed with a foul or penalty or violation. The sanction is game-related: a free kick or throw, loss of yardage, or whatever is appropriate to the competition. But those who commit fouls are not typically held to be cheaters; indeed, fouling is often an up-front tactic. In basketball, for example, a team behind in the score will foul late in the game to get the ball back. Probably the most famous example was NC State in the 1983 NCAA championship, but this is done at every level from Boys Club up to the NBA. Teams and the individuals involved are not considered to be cheaters. Hockey and to some extent soccer also make use of fouling for tactical purposes and while some teams and players are held to be "dirty" if they do this excessively, it is in general held to be part of the game.

Even someone like Gaylord Perry, well known to load up the ball, is giving admiration, perhaps grudgingly, for his ability to get away with this violation of baseball rules. If he was caught, he would be banned for a number of games, that is all.

Your suggested approach to doping is more alined with this type of thinking. We would change doping from being a "criminal" offense to merely a foul. Suspend the rider for a period of time, and if the doping was done during an event, wipe out the rider's result. Escalate the penalties for repeated violations.

Ken said...

Good posts Larry and wschart. I have felt that the chase to get the dopers is hurting the sports more than the dopers. Especially since it's always been in sports and always will be. A penalty that hurts, but is fair and doesn't make the athlete out as some terrible criminal.

This also makes me think of France's stupid sports fraud law. I don't know the details behind it, but I know of plenty of referees I think should be arrested for sports fraud. Plenty of bad and incorrect calls have hurt my enjoyment of sports. Lock them up so they can sit and think about the evil they have done. That's what I say.

Ken

Larry said...

Ken, ws, Rant, thanks, but if any praise is due it should go to TBV. This was his idea, and initially I argued against it, so I'm reluctant to take any credit.

ws, yes, you're pointing out a weakness in my argument, which is that most sports penalties are a part of the game. Your example of fouling in basketball is a good one -- the reason why Kansas and not Memphis State are the NCAA basketball champs is because Kansas fouled and Memphis State couldn't hit their foul shots. In hockey, it's morally acceptable to trip an opponent who's about to break away uncontested towards the goal. In football, it's morally acceptable to hold a charging lineman who would otherwise blindside your franchise quarterback. Obviously, doping is not in the category of these sorts of offenses.

Doping is more (as you said) like throwing a spitball in baseball, or throwing a pitch at a batter's head in baseball, or a red card in soccer, or an intentional foul in basketball, or a chop block in football -- it is a practice that you're simply never supposed to do, no excuses.

At the moment, doping is being put by the powers that be into a third category of sports offense, reserved for actions that threaten the health or even the existence of the sport itself. The only sports offense I can think of that's similar to doping is gambling. In baseball, given the history of the "Black Sox" scandal, betting offenses bring with them lifetime bans and possible criminal sanctions. We're seeing the same thing with basketball, and the charges brought against an NBA referee. And to be fair to those who advocate a hard line, it IS true that doping in cycling is like gambling in baseball and basketball: it is an offense that threatens the health and even the existence of the sport.

So why have I changed my mind and sided with TBV on this issue? In part, it's because IMHO the current anti-doping fervor in cycling is doing more to destroy the sport than doping ever could. But that's an opinion, impossible to prove and not likely to persuade any of the hard liners.

It's in part because IMHO the ADAs appear to catch so few dopers. Again, this is impossible to prove, since we don't know how many cyclists dope and get away with it.

It's in part because the ADAs seem to be following a policy where they hope to end doping by "making examples" of the few dopers they're able to catch. Meaning that the punishment for doping is not set at a level intended to "fit the crime" so much as it's designed to scare the hell out of everyone else. As a lawyer, I know that the law IS supposed to serve both of these purposes: provide justice to the law breaker, and a deterrent to others who might otherwise be tempted to break the law. But IMHO the deterrent thing doesn't seem to be working, as IMHO there's still a lot of doping going on out there.

It's in part because IMHO the powers in charge of cycling would not catch all of the dopers, even if they could. In recent years, the Tour de France has strained to retain credibility when confronted with a few in-race AAFs. What would happen if they actually CAUGHT all the dopers? If three AAFs stagger the race, what would happen if there were 6 AAFs, or 10, or 30, or 50? My suspicion is that no one involved in cycling wants to see what would happen. Better to try to scare the peloton straight, rather than actually catch the bad guys. (And I note FWIW the statements from Damsgaard in the BBC and elsewhere that the ADAs do not declare AAFs in most of the cases where they could conceivably do so).

And to be honest: it's the hypocrisy of the current anti-doping effort that has finally pushed me over to TBV's point of view. I have grown weary of hearing the powers that be pronounce that they have doping under control, that no doper can escape detection, and that the few dopers remaining are stupid to believe that they can get away with it. Especially since in recent memory these same people have taken the opposite line when it served their political purposes or helped them in their endless intra-sport organizational wars.

OK, the anecdotal evidence seems to be that there's not as much doping now as there used to be, so maybe the deterrent thing needs to be given a few more years (or 5, or 10) to work itself out. If that's the case, then have Fahey, Prudhomme et. al. give me a call in 10 years when the deterrent has done its job and they're all cycling clean. Because I personally do not want to spend my leisure time watching a sport whose business plan involves throwing a few cyclists under the bus every year in order to "scare straight" the many cyclists who dope and do not get caught. Pardon me if I seem squeamish, but the "rubber hose" is not my idea of entertainment.

("Eightzero") said...

For the record, I join Larry's opinion.

I also note with interest that apparently there was a recent change to the French Consitituion that put, in very broad terms, the right of French Citizens to bring forth a complaint if they have been wronged by the government. While this does make me want to shrug in very French fashion, I do wonder what can be done to keep The Master answerable for the damage it does.

While I agree with Larry that the disposition of Floyd's case as it relates to his 2006 TdF win may be over, his fight against that Master may not be. Some vindication can be had *if* he and others can expose the emperor's lack of clothes. I do not know what form that might take. At some point, the issue of the $100k costs awarded will have to come up, unless USADA decides to simply ignore it.

I have no idea how that final act will play out.

m said...

Larry,

Thoughtful comments.

"It IS true that doping in cycling is like gambling in baseball and basketball: it is an offense that threatens the health and even the existence of the sport."

I agree. Just as doping threatens the essence of track and field and even swimming among others. This is not just a case of committing a foul which is unavoidably a part of the game and it's rules as is a red card foul in football.

And I also agree that the current adjudication system can be ruinously expensive for all parties.

However, I don't see the doping stigma to be, as yet, as debilitating as you claim. Dopers have come back to compete again. So I don't see any need for drastically reducing the penalties as you imply.

Maybe a one year suspension in return for more simplified and speedy adjudication system. Perhaps, professional cycling could come out from under the WADA amateur and Olympic rules, and create it's own like American football or baseball. In the NFL, whose anti-drug policies have been labeled as a joke, you can fail three drug tests before even a one year suspension, but after your first positive you are tested 10-12 times a MONTH. The NFL performs 10-12 random tests per week per team. So weak penalties but a lot of tests. However, the NFL is one of the richest sports in the world.

I don't expect the testing regime to end doping. There will always be cheaters, although the degree of doping depends also on the cultural norms in the sport. What it can do is catch enough of them to keep the sport reasonably fair and competitive. In cycling the new testing regime is just starting, so I would give it more time. Maybe it can change the cultural norms in cycling which up to now has according to many tolerated if not encouraged doping to win.

I have to say I don't have a lot of sympathy for Floyd Landis, since I believed he most probably doped and therefore has been lying all this time and probably cynically has used his case to attack the testing regime that caught him. I do have some sympathy for those athletes who took some non approved supplement, or even those like Marion Jones who have been forced to admit that they doped and now must serve time in jail.

Larry said...

"M" -

Thanks for the nice words.

I am enjoying our new relationship, where we explore issues together and keep the arguing to a bare minimum. Obviously, I don't see the Landis case like you do, but I'm also trying to both learn from the Landis case and look beyond it.

As you once said, these ARE $85 tests. I was impressed by the way that Garmin-Chipotle handled the 49% hematocrit test on Millar at the end of the Giro, saying "that's gotta be wrong" and tossing the $85 test into the proverbial circular file. It made me think, damn, common sense! It beats the hell out of two years of arbitration.

I may be saying something pretty damning about how I've spent my free time over the past year! But I've come to the conclusion that it's crazy to spend millions of dollars in arbitration over the meaning of a single $85 doping test. If the determination of whether Landis doped is truly a multi-million dollar question, then to be certain, we could have gotten a better determination for those multi-millions. Maybe spending more than $85 per test would help, but instead, I'm arguing for a system where the consequences of failing the test are set up proportionally to the $85 we're spending on the test, and to the likelihood that tests are going to generate false positives.

In the world outside of anti-doping, we'd never make a multi-million dollar decision based on an $85 drug test. If I had an $85 medical test that indicated that I needed multi million dollars of medical treatment, GUARANTEED that they'd retest -- and consider all other available evidence. Chances are pretty good that my $85 test would end up in a circular file similar to the one that holds the Millar hematocrit test.

I can't see the sport spending more than the $85 per test, so instead I propose that we not draw multi-million dollar conclusions from the outcomes of these tests. It makes sense in the abstract; the devil, as they say, is in the details.

dailbob said...

Larry,
I don't know if this makes me a hardliner, but I find cheating so objectionable that, ideally, I'd still like to see stiff penalties. BUT, only if the adjudication system is changed to insure that a Floyd Landis case doesn't happen again (and I'm not talking about the fact that it cost millions of dollars). It's no secret to you that I've always thought the science was so poorly done that it wasn't possible for me to feel unequivocal about whether he doped. If he did dope, then I'm glad how it turned out, despite the poor science. But, if he didn't, the thought that he may have to live with this the rest of his life turns my stomach. Right now, I think I like M's idea of cycling coming out from under WADA and Olympic rules and creating their own. Hopefully, it won't be a Star Chamber.