Sunday, July 20, 2008

Larry: New CERA test, looking at Hamilton's HBT

Hamilton v. USADA & UCI,

And What It Tells Us About The CERA Anti-Doping Cases



We've seen a lot of discussion over the last few days on the anti-doping testing being performed at this year's Tour de France (TdF) to detect a new drug, a third-generation form of EPO called CERA. Up until a few days ago, most of us had no idea that there WAS a third generation form of EPO, let alone that it might be used by cyclists as a performance-enhancing drug (PED). Many experts, who were well aware of CERA and its potential as a PED, were unaware that any anti-doping lab claimed to have the ability to detect this drug. After all, there had been no published discussion of any such test. The World Anti-Doping Agency (WADA) had published no rules on how such a test should be conducted, or interpreted. To my knowledge, there has not even been a discussion in the scientific literature on the detection of CERA.

[MORE]


Then all of a sudden, we had last week's explosion of news: the adverse analytical findings (AAFs) announced by the French anti-doping lab (AFLD) against cyclists allegedly using CERA, together with the revelation that the AFLD had in its arsenal a previously undisclosed test for the detection of CERA.

The TdF news concerning the detection of CERA has raised a lot of questions, including legal questions. How is it that AFLD can use a "secret" test, one that is not referenced in any of the WADA rules? How can we know that the lab's test is valid? If there are no WADA rules for the test, how can the lab determine that the results of the test are sufficient to prove an AAF?

I'm not going to try to answer all of these questions.

But I do think it would be valuable at this point to look at the CAS decision in the Tyler Hamilton case. The Hamilton decision provides guidance on how the ADAs may try to prove an AAF in these CERA cases.

(For those of you who'd like to read the Hamilton decision, you can find it here.)

The Hamilton case arose during the 2004 Vuelta de Espana (Tour of Spain). Hamilton won a stage in that race, and underwent a specific kind of blood test (called a HBT test) performed by the WADA-accredited lab in Switzerland. According to the Swiss lab, the HBT test revealed that Hamilton had undergone a homologous blood transfusion in violation of the WADA rules. A homologous blood transfusion is a transfusion of someone else's blood into the athlete’s system (as opposed to an autologous transfusion, which is a transfusion of the athlete's own blood). Such a transfusion, when used to improve an athlete's performance, is commonly called "blood doping".

The main issue in the Hamilton case was this: the HBT test was a new test at the time it was used in the Hamilton case. When the Swiss lab performed this test, it did not have specific accreditation to do so -- not from its ISO 17025 inspector, and not from WADA. Without such accreditation, was the test valid?

Let's detour for a moment and discuss the issue of lab method accreditation. The primary set of WADA rules governing labs is WADA’s International Standard for Laboratories (ISL). Incorporated within the ISL is ISO 17025 (sometimes called ISO/IEC 17025), issued by the International Organization for Standardization. ISO 17025 provides operating rules governing testing labs world-wide; the ISL provides specific rules for the field of doping control. The ISL provides that all WADA laboratories are required to be accredited by a national accreditation body and periodically audited according to ISO 17025 (see ISL Rules 4.1.1 and 6.4.7.2), and that all WADA lab methods and procedures must eventually be included in the scope of these periodic audits. See ISL Rule 4.2.2. In addition, all WADA labs are separately accredited by WADA. See ISL Rule 4.1.

We have considered these rules in our discussion of the Landis case. The lab methods in the Landis case were all accredited under ISO 17025 and the ISL (whether these methods were PROPERLY accredited is an open question in my mind). Since these methods were accredited, the lab in the Landis case (LNDD) received an important benefit under WADA Code 3.2.1: the lab was presumed to have conducted its analysis in accordance with the ISL. This is a powerful presumption that is difficult for an athlete to overcome, and had much to do with the decision made against Landis.

In the Hamilton case, it was clear that blood doping was a violation of the WADA Code. However, the WADA code did not address how a lab was to prove that an athlete had blood doped. Moreover, the HBT test had not been accredited at the time it was performed in the Hamilton case. So, the validity of the HBT test was probably the key issue in the Hamilton case.

The panel noted that under WADA Code Section 3.2, the "facts relating to anti-doping violations may be established by any reliable means." From this, the panel concluded that it is not necessary for WADA to approve a lab method before the method can be used to prove an AAF.

The panel also ruled that a WADA lab CAN use an unaccredited test method to prove an AAF, so long as the lab can prove two things. First, the lab must prove that the unaccredited test method was conducted "in accordance with the scientific community's practices and procedures." Second, the lab must prove that it "satisfied itself as to the validity of the [unaccredited] method before using it." If the lab can satisfy this two-pronged burden of proof, then (according to the Hamilton decision) the lab gets the benefit of the presumption under WADA Code 3.2.1. If the lab cannot satisfy this burden, then the lab method in question cannot be used, and the AAF against the athlete must be dismissed.

The reasoning in the Hamilton case was based on the panel's assumption that sometimes WADA labs must use unaccredited test methods. New forms of doping arise all the time, but the formal lab accreditation process is relatively slow (the method at issue in the Hamilton case was not formally validated until more than a year after the lab's finding of the Hamilton AAF). If labs are going to detect new performance-enhancing drugs (PEDs), they may have to do so with new (and thus unaccredited) test methods. But since accreditation is an important step in making sure that test methods are "fit for purpose", the panel reasoned that the validity of unaccredited test methods must be defended by the lab and ultimately ruled upon by the arbitration panel.

There is, of course, an argument against the rule in the Hamilton case, which is that review of a lab method in arbitration is no substitute for ISO and ISL accreditation. It is unlikely that a few arbitrators, meeting in a location distant from the lab, can review a lab method in a manner comparable to experts in ISO and ISL requirements, who are present at the lab itself.

The ultimate question in cases like the Hamilton case is: can we give up the confidence that comes with formal lab method accreditation, in exchange for the ability to use a new lab method to catch doping that would otherwise go undetected? This is not an easy question to answer. In essence, the court tried to balance two competing interests: effective anti-doping testing versus the benefits of formal method accreditation. Whether the Hamilton decision struck the right balance is a matter for debate.

Turning back to the Hamilton decision: the CAS panel in the Hamilton case had no difficulty finding that the lab method in question was sufficiently reliable to support the AAF against Hamilton. The CAS panel based this finding on the following:

1. The HBT test was performed using a machine called a "flow cytometer", which has been used for a long time to analyze blood characteristics. So while the TEST was new, much of the technology involved in the test was established and well-accepted.

2. The panel in Hamilton found that the HBT test was similar to tests in common use to precisely match a donor's blood to a recipient's blood. In most cases, a patient can receive a blood transfusion based only on major blood type (A, B, O and Rh(D)), but in some cases (such as bone marrow transplants) it is necessary to match minor blood markers as well. The panel noted that flow cytometry is commonly used for this purpose.

3. The panel noted that the HBT test was based on research work supported by financial grants from WADA and USADA, and that the results of the research had been reported in peer-reviewed scientific publications. Moreover, the test in question was tentatively approved at a scientific meeting held prior to the 2004 Olympic Games to determine the drug testing that would be performed at these Games.

4. The HBT test was reviewed and "validated" at three different WADA labs prior to its use in the Hamilton case.

5. WADA had adopted "positivity criteria" for the HBT test prior to the 2004 Olympic Games, addressing what the HBT test would have to show in order for a particular test result to prove an AAF for blood doping.

6. The Swiss lab's HBT test method WAS eventually accredited by WADA and the ISO inspector.

Hamilton's legal team argued against the validity of the HBT test, on grounds that are familiar to us from the Landis case. Hamilton argued (among other things) that there had been inadequate control studies to support the HBT method, and that there had been no proper study of false positives or measure of uncertainty determined for this lab method. The CAS panel was not persuaded by these arguments, and (as you probably know) upheld the AAF against Hamilton. At least they did not require Hamilton to pay USADA's costs.

What can the Hamilton case tell us about the validity of the AFLD's method to test for CERA, and about the likelihood that the CAS will uphold AAFs based on this method? Not very much! We know nothing about the AFLD's method for CERA testing or how it might have been validated prior to this year's Tour de France. But the Hamilton case is a good guide to what the AFLD will need to do to prove its cases against Beltran, Duenas, Ricco and any others accused of using CERA in this year's Tour. The AFLD may not have to do everything that the Swiss lab did in the Hamilton case, but the AFLD will at least have to show that its CERA test is scientifically accepted and that it took proper steps to validate the test. This is, of course, a lot more than the LNDD had to do in the Landis case.


27 comments:

wschart said...

I wonder how the fact that the Tour is being run this year without UCI sanction could affect how any potential appeals would run?

1. Since the Tour is being run with UCI sanction, to what extent do WADA rules apply? Has ASO or FFC specifically incorported all WADA rules, incorporated a subset of WADA rules or what?

2. Even if they have incorporated WADA rules into the rules of this year's Tour, is the Tour officially under WADA jurisdiction? I could, for example, form a new football league and adapt NFL rules; but it wouldn't mean that a team or player could appeal a decision to the NFL.

3. Even if the Tour is deemed to be under WADA rules, to what extent could ASO create their own rules that override WADA rules? Would they be able to argue that even though the CERA test in question isn't (yet) approved by WADA, ASO or FFC approves it for use during the Tour?

4. If it is established that the CERA test does not meet WADA standards, would any bans imposed by ASO or FFC have any validity outside of France?

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

Wschart,

In answer to your fourth question, I think we've seen from the Landis case that a ban issued by the AFLD/FFC would only apply to competition (interestingly, in any sport and not just cycling) in France. A related question, however, is since the UCI is not involved in this race, even if WADA recognizes the AFLD/FFC sanction and adopts it as their own, who would enforce it elsewhere? The UCI? The different national federations? If so, under what agreements/authority would they do so?

Thomas A. Fine said...

Larry, I know I've become more cynical, but after Landis, doesn't it seem more like these CAS decisions are backfilling?

In other words, whatever validation criteria were successfully filled in a particular testing process, just declare those criteria to be sufficient.

tom

Larry said...

ws, I don't know enough about the AFLD and the FFC (French cycling federation) to know for sure ... but my guess is that the FFC rules incorporate the WADA Code in a way similar to UCI's incorporation of the code. So, my guess is that the WADA Code fully applies to this year's TdF. To be certain, everyone involved (including WADA) is acting as if this is the case.

I don't think it's correct to say that any race is run under WADA jurisdiction. WADA provides a framework for anti-doping, with a set of rules and approved labs, but they're not in charge of anti-doping at any event. At prior TdFs, it was UCI who was in charge. At this event, FFC is in charge. I'm not 100% sure of how AFLD comes into the picture, but I assume that FFC has delegated anti-doping responsibilities to AFLD, the same way that USA Cycling has delegated these responsibilities to USADA.

ASO has no official role to play in anti-doping at this year's Tour. In future TdFs, ASO may have a large role to play.

I disagree with Rant about the scope of a ban arising from an AAF in this year's Tour. I think that the ban would be world-wide. I can't tell you exactly why this is the case, but as a general rule, sports federations respect and enforce the decisions of other sports federations. Also, while this year's TdF is being run under FFC's authority, FFC is still a member of UCI (even if that membership is not exactly in good standing these days!). Think in terms of USA Cycling, which runs some road races without direct UCI involvement (I think) -- if a rider gets an AAF in a race run under USA Cycling authority, the rider's ban is (I think) world-wide.

Obviously, I haven't done a complete anlysis of this. But my best understanding is, the only real difference between the anti-doping rules in this year's TdF versus last year's TdF will be in the arbitration of cases involving AAFs. I don't think that the home country ADA for the accused rider will necessarily be the prosecuting entity (like USADA was in the Landis case). I don't think that the initial arbitration will necessarily be held in the rider's home country (like the Malibu arbitration in the Landis case). In fact, it is possible that the initial arbitration will be before the CAS.

To do the analysis required to answer your questions, someone would have to analyze the FFC regulations. That would be the logical starting point. I don't have the patience or ability to read the FFC regulations, even if I knew where to find them.

Anyone who wants to weigh in on these questions, feel free.

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

Larry,

The question becomes, if the UCI doesn't recognize the FFC's authority to sanction the Tour (and from Patty McQuaid's statements, he certainly is miffed by the whole affair), then is a sanction for and AAF enforceable anywhere else? Supposing that the other national federations respect the French ruling, that would amount to a worldwide ban. But I seem to recall that in the AFLD case against Floyd Landis, the ruling specifically banned him from athletic competition on French soil and not anywhere else.

Assuming that would be the case for Beltran, Duenas and Ricco, I can easily imagine other federations saying, "Well, that's nice, but we're going to let him compete here." Unless the UCI recognizes the AAF and the sanction, I don't think any of the other member federations would be obligated to enforce a sanction from the AFLD/FFC. What's problematic for the UCI is that they've been shut out of the TdF. So, another question would be, could they even pursue a case arising from any of these AAFs? I'd be curious to see what a CAS ruling on something like that would be. It could set a very interesting precedent.

Larry said...

Tom, you're raising questions that I've been asking myself.

We have to avoid black-and-white kind of thinking; there are always shades of gray. CAS has not been a complete rubber stamp of the ADAs. Valverde won there, as did Landaluce.

I don't know the Hamilton case as well as I know the Landis case. The CAS decision in Hamilton is a well-reasoned opinion on its face. I remember reading the dissent (pretty sure Campbell wrote it) in Hamilton's U.S. arbitration case, so I know that Hamilton had at least a decent argument that the HBT test had not been sufficiently validated. Obviously, there's a judgment call involved. Sorry for the double negative, but I do not think that the Hamilton decision is obviously a wrong decision. I DO think that the Landis decision is wrong, and obviously so.

So, we have shades of gray. On occasion, I can applaud the CAS (for example, in the Landaluce case). Sometimes, I think they screwed up (Landis). Sometimes, they seem to do a pretty decent job in a difficult case (Hamilton), even if I don't necessarily agree with the decision.

But I'm a lawyer, and I'm trained to think this way. From a different perspective, you can say that athletes rarely win at the CAS. From this perspective, you could say that the legal decisions issued by the CAS may vary in quality, but there's not much variation in the result.

What can I say? I'm a lawyer, I'm trained in legal analysis, it's my primary job to explain the rules to people. There are times when people ask me to forget the rules and predict who's going to win or lose the case. My advice there is, if you want to bet on an athlete to win one of these cases, get good odds, and don't bet the rent money.

m said...

WSchart,

Good questions. More generally, is any doping finding of the AFLD, even if it complies with WADA rules, enforceable outside of France?


I think a national sports federation only has the power to regulate it's own events and sanction it's own athletes. So the French Federation and Doping Agency can kick someone out of the Tour, but cannot impose suspension sanctions except on French riders (2 to 6 years under French anti-doping law).

An order of suspension must come from the riders own Federation, which can then be appealed etc.

Presumably, under the Hamilton ruling, Spain or Italy for example are permitted to use the AFF findings and positivity criteria of the AFLD as a basis for seeking suspension, and if they meet the Hamilton criteria the suspension will be upheld by CAS.

But are they required to seek an order of suspension?

1. If this had been a UCI sanctioned race would they be required to do so, and does the fact that the race is sanctioned only by the French federation change this answer? I suspect that UCI requires all member federations to enforce. So the fact that UCI is not sanctioning may change this requirement.

2. If the AFLD used a more liberal positivity criteria than WADA, as some are speculating, does this change the answer of whether they are required to suspend? I don't know.

Thomas A. Fine said...

Larry, the Landluce case has bothered me. I don't know enough details but on the surface, it seems like it's literally impossible to reconcile Landis and Landluce.

Maybe you could do a nice detailed comparison of the two cases, and see if there's any possible consistent legal interpretation.

tom

m said...

Larry,

Thanks for the very good analysis of Hamilton.

I wonder where you think the ISL sections with respect to new methods fits in to the Hamilton logic and why they weren't mentioned.

e.g this from a prior post


"Compare ISL section 5.2.4.2.2 that requires a "WADA accepted validation method" in screening tests only, with ISL section 5.4.4.1 which states the lab shall develop methods and validate them, and ISL section 6.4.3 which says that the lab can add methods and analytes so long as they are approved in the next ISO audit. Note also that the language is "accepted" by WADA, not "validated" by WADA. Depending on what was done to "validate" this test, I think arguments can be made that any resulting AFF is entitled to the presumption under the WADA rules and ISL."

Larry said...

"M", you're welcome.

I also want to thank you for the terrific job you've been doing here, providing us with great information and links, and generally giving us strong and well-reasoned analysis.

I will try to consider your questions later in the day, as well as the questions raised by Rant. I will also reconsider the wschart questions, based in part on the fact that you've answered them differently than I did initially.

Tom, are you looking for a general Landis - Landaluce comparison, or just a comparison on the issue of A and B tests performed by the same analyst? I'm not sure I'm up for either analysis ... and we'd have to bring in the Jenkins case as well, but I want to know what you want to know.

The stuff I'd like to focus on next is: what the heck is Damsgaard saying, why is he saying it, why is he saying it now, what basis does he have for saying it, and what is his saying it have to say about the future of private program team doping testing? Then, an analysis of how LNDD determined the margin of error for its CIR testing in the Landis case, and whether this determination was kosher under the ISL.

It could easily take me a month to complete each of these projects, if I work diligently on them, which I probably won't.

("Eightzero") said...

Larry, I second Thomas' request. The deeper question I have is to what extent the principle of stare decisis applies to CAS awards. Can an arbitration panel simply "overrule" a previous decision? And if there is such a thing as precident, does the CAS have a document rule how to implement it? How would we even find it? Is there such a thing as the "CAS Reporter?" (Never seen West Publishing offer such a thing...)

Any idea what the specific rules are for appeal of a CAS award to a swiss court are?

I've been sort of laying off the keyboard for a while. Floyd told us to watch le tour, and I'm taking his advice to heart. This 2008 edition is playing out...in a very, very interesting way. Lots of questions; I'm not sure I'll know where to start.

wschart said...

M:

Good point about national federations. What I see the system was in prior years for the Tour was: LNDD did the testing, AAFs were reported to the rider's national federation, who then handled the sanction. I am not sure to what extent a NF had the obligation to pursue a case if they felt it was dicey or wanted to whitewash their own riders, but I think in general if they got an AAF they followed through. Of course, if the NF thought the rider was getting jobbed, they could always tank the case, but they would probably have to expect some pretty harsh words directed their way, at the least.

But I think in some ways the crucial link here is UCI. It is true that UCI is not directly involved in every local crit or whatever, but if sanctioned by a NF, they are operating under color of UCI. Or at least were until FFC thumbed their noses at UCI. The Tour this year is very pointedly not being run under color of UCI, even if it is sanctioned by FFC and even if FFC is still a member of UCI (and FFC's status is not clear at this time). ASO/FFC are violating some UCU rules, or at least UCI desires, by excluding Pro Tour teams in good standing. And the question is being raised as to whether or not the 3 AAFs to date are in accordance with UCI/WADA rules.

Depending on how UCI wants to play this out, several things could happen. UCI could say the AAFs don't meet the proper standards and any ban that the French seek to impose would only have effect on French soil. Doing so might risk a PR hit as being soft of dopers, but could serve as a stick to other NFs: "Play ball with us or we won't honor your disciplinary sanctions". Or they could hand off to the NFs involved "you figure this out". Or they could say "good enough for us, you're totally banned". But I think they will have to say something at some point, at least if one of the riders chooses contest the AAF.

There are some grass-root level organizations that run some sort of competitive cycling programs outside of US Cycling jurisdiction. If one of them were to ban a rider for some infraction during one of their races, would that rider be banned from signing up with USC and racing under its jurisdiction? Would USC even know about the ban?

Thomas A. Fine said...

Larry,

I'm looking for something general, along the lines of what eightzero was saying. It seems to me these decisions are inconsistent, in this case, procedure matters, in that case, assumed trust trumps any and all procedural problems. Am I wrong? Or is it simply that they don't have to be consistent, because CAS can do as they please?

But please, go or a ride instead. Play with your kids if you have any. Ignore me. I'm not kidding. I thought this was important work when I thought there was a chance of effecting change. Now it's all just intellectual curiosity.

tom

Larry said...

8-0, YOU'RE asking ME to do legal analysis? What can I do that YOU couldn't do? ;^)

I remember reading something that stare decisis (the principle that a court is supposed to follow the precedent set by previous cases) is not a doctrine recognized by the CAS. This is perhaps because the CAS is based in a civil law country where this doctrine is not generally applicable. However, it's clear that recent CAS decisions DO cite prior decisions as precedent, so maybe the doctrine is creeping its way into the culture at CAS.

As for there being a "CAS Reporter", in the manner of the West system, I'm pretty sure that there's no such thing. In fact, I think there's a warning somewhere on the WADA or USADA web site to the effect that if you see a CAS decision that you think is important, save a copy, because the decision won't remain forever available on the CAS web site.

("Eightzero") said...

Hehe! Well, gee Larry....one thing is sure - one of us is smart, and I'm pretty sure it's not me. :-)

I'm still really baffled by the CAS. Even looking at their "rules" on their web site, it looks to me like the definition of Kangaroo Court. Even Judge Judy looks better than this.

"Contract of adhesion" maybe? But the 7th Circuit didn't seem to have problems when Mary Decker Slaney when head-to-head with The Master. *shrug* Everytime I try to do some sort of legal analysis, I stop mid thought and think "these guys need a union...." But hey, they're willing to work for $1.38/mile. What's not to like?

Larry said...

Tom, 8-0, I looked quickly at Landaluce today, and TBH I don't see much to talk about there.

The essence of the Landaluce holding is (based on rule 5.2.4.3.2.2 of the ISL) that you cannot have a single analyst touch or manipulate both the A and B samples. In Landaluce the B sample analyst transferred the A sample to a vial, evalporated it, redissolved it and did the GC-MS injection. Even the LNDD admitted that it violated the ISL on this one! (LNDD's argument in Landaluce was that this ISL violationwas not the origin of the AAF.)

There's nothing like this overlap of analyst work in the Landis case. In its post-hearing brief for the CAS, the Landis team argued that LNDD had violated the spirit of the Landaluce rule, by having the B sample supervised by the same analyst (Mongongu) who performed the work on the A sample. Given that Mongongu was also the superior of the B sample analyst (Frelat), the Landis team argued that Frelat had no real choice but to confirm her boss' work. While this is an interesting argument, it's not the argument that won the day in Landaluce.

If you read Arnie Baker's Wiki Defense, Dr. Baker makes his primary Landaluce argument based on the work performed on both the A and B samples by a THIRD analyst, Esther Cerpolini. Even Dr. Baker acknowledges that this is not his strongest argument -- he states that Landis would be "getting off on a technicality" if he won on this basis.

I understand the importance we all place on B sample testing, but the ISL rules do not guarantee a truly independent B sample review. Dr. Baker argues that B samples should be tested at different labs than A samples, and many here have argued the same thing.

In any event ... this is only a quick look at Landaluce. If you guys think I'm missing something, please let me know.

Thomas A. Fine said...

My interpretation of the essence of the Landis decision was that, even if they had violated the ISL, it wouldn't have mattered, because it wouldn't have altered the results. The labs are trusted implicitly.

So in Landaluce, why didn't they rule that, sure the ISL was violated, but since the labs are trusted implicitly there's really no expectation that the results were affected, so the AAF should stand.

That's what I see as inconsistent. But maybe I'm being too shallow.

tom

Larry said...

Still working on answers to wschart's questions. But while I work, you might want to check out Rule 306 of the UCI Anti-Doping Rules. If this were a more normal case of a race run under the auspices of a national cycling federation, I think that this rule would insure that the federation's anti-doping decisions would be respected by other federations.

Fortunately or unfortunately, the Tour may not be just a normal national federation sanctioned race.

m said...

Thomas Fine,

"So in Landaluce, why didn't they rule that, sure the ISL was violated, but since the labs are trusted implicitly there's really no expectation that the results were affected, so the AAF should stand."

Whether the results were "affected", or more specifically whether under the WADA code an ISL violation "caused" the AFF, is a causal question of fact.

In Landis, some whiteout on a custody document can't be said to have caused the AFF, regardless of whether it was an ISL violation or not.

In Landaluce, the CAS panel assumed that the same lab person performing the B sample test (which returned an AFF) could have "caused" that AFF. Under the WADA code, the burden then shifted to the Lab to show that the fact that the same person performed the B test "didn't cause" the B positive. Unclear what would have been required by CAS. Did the lab have to prove a positive by some other evidence than the B test, i.e. throw out the B test, or could they prove from other expert testimony that the B test was performed accurately without bias. But the Lab presented NO evidence in rebuttal and Landaluce in my view got off on a technicality.

Not having read Landaluce for awhile, it's possible that Landaluce left open the question of whether any and all violations of an ISL (even one only tenuously connected to causing an AFF) causes a burden shift, since they assumed the one in question (same person performing B test) was causally connected. Some of the language in the 2 Landis decisions might imply that we can ignore possible violations of an ISL, and don't have to deal with a burden shift, if the violation is only tenuously related to the AFF. But other language specifically states that even if we hypotheticall assume a burden shift the lab met the burden of showing no causal connection as in the whiteout example.

Thomas A. Fine said...

It still seems inconsistent.

Landis argued a lot more than whiteout; there were several substantive procedural problems, any one of which could have influenced the result. It seems that it just came down to who they believed.

Or are you saying that WADA/USADA proved that any possible procedural problems did not influence the results? I don't see that at all.

Or, put another way in Landaluce all they had to do was bring the lab tech to the stand and say "did you alter results", and the lab tech says no, and they believe him. That would be consistent with the Landis decision.

tom

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

Tom,

In a way, it is. Not to give away too much of an article that I'm currently working on, but one expert I interviewed a couple of weeks back notes that there are inconsistent (and sometimes even conflicting) judgments within the CAS system. It's the nature of the current beast, unfortunately. This person also offered up a few suggestions on how to fix/improve (depending on your perspective) the current system. I haven't finished transcribing the interview. When I do, it will be posted on Rant.

Larry said...

Tom, you should take a look at Landaluce. Just skim forward to the part of the analysis that talks about the lab techs doing the A and B tests (p. 21). The CAS found that the same analyst had handled the A and B testing, and there was a violation of the ISL. Even the LNDD admitted as much.

By proving the ISL, Landaluce set up what we've called the "burden flip" -- UCI then had to prove that the AAF did not result from the ISL departure. And the UCI didn't do so. It's not that they tried to prove this and failed, it's more that they didn't try at all. In its brief, the UCI argued that this ISL departure "couldn't have led to the adverse analytical finding, unless it is established that [the analyst] committed an error." Of course, that argument misconstrues the burden flip -- it was up to UCI to prove that the ISL departure DID NOT cause the AAF, and not to expect Landaluce to prove that the departure DID cause the AAF. During the hearing, UCI argued that the ISL departure was "not significant" and "not at the origin of the result." That's just stating a conclusion, and not meeting a burden of proof.

(Amazingly, one of the CAS panel members in Landaluce actually dissented from this opinion. We don't know if the dissenter disagreed that there had been an ISL departure, or disagreed that UCI had met the burden of proving that the departure did not cause the AAF.)

In the Landis AAA decision (the first one, from the Malibu arbitration), the panel also found a number of ISL departures, but also found that USADA met its burden of proving that these departures did not cause the AAF against Landis. I personally had a lot of trouble buying the panel's reasoning on this point, as I did not think USADA had done much more in the Landis case than UCI had done in the Landaluce case to meet this burden. However, the majority of the Landis AAA panel clearly disagreed with me. And if you read through the first Landis opinion, you can find the arguments relied upon the panel that proved to the satisfaction of the panel that USADA had met its burden. I'm not sure that these arguments are correct, or even that USADA MADE all of these arguments ... but the two cases can be read consistently.

Then Landis went to the CAS, where NO ISL departures were found.

m said...

Tom,

Re: the alleged conflict in CAS panel rulings.

In Landis, the CAS panel found that the lab errors or irregularities didn't rise to the level of an ISL violation, and even if they had violated an ISL, found that USADA had met it's burden to show such error didn't cause the AFF.

You seem to think this was somehow inconsistent with the CAS decision in Landaluce. One thing to note is that Paulsson, the president of the CAS panel in Landaluce was also on the Landis panel. If he thought there was anything importantly inconsistent with the Landaluce decision, he probably would have spoken up or made sure that the Landis decision was written so as not to conflict with the Landaluce decision.

Finally, wrt to your statement regarding whose witnesses the CAS panel credited. Its pretty clear that they believed the USADA witnesses over the Landis witnesses. Its part of the reason why they imposed costs on the Landis side. In this respect they were more skeptical of the Landis case than the AAA panel.

Larry said...

For those of you (like me) still trying to figure out how the AAFs from this year's Tour will be prosecuted, this word that CONI - the Italian Olympic Committee - has set hearings in the Ricco and Piepoli cases.

didn't see that coming. How does the Italian authority have first jurisdiction in this case? Or is this "hearing" something less than a proceeding to determine an AAF?

tbv@trustbut.com said...

If they have italian licenses, then the italian federation has probably delegated enforcement of alleged doping infractions to CONI.

Whether CONI is going to uphold infractions raised by this testing is to be determined, but presumably they are going to apply The Code as they understand it, and there's the route of appeal to CAS.

In retrospect, this seems obvious, doesn't it?

TBV

Larry said...

TBV, it didn't seem obvious to me! And I've been working on a piece over the last few days that was coming to a different conclusion as to how this would work.

This is a complicated situation. I've been trying to figure out what happens in a "normal" case where a rider from country A races in a race on the national calendar of country B and gets accused of an AAF by country B's lab. There are UCI rules that speak to this, but I'm not sure yet how they work. Of course, it's possible that the UCI rules have no application to this year's Tour, because of the ASO-FFC-UCI rift and the fact that UCI regulations prohibit pro tour teams from racing in national calendar events. There are also private contracts involved, including the contracts signed by the teams with the ASO and a reported agreement between the ASO and an association of national ADAs.

Maybe it's my lawyer brain getting in the way of my common sense, but nothing seems obvious to me from this jumble of facts.

Larry said...

TBV -

Let’s say that I go to France, rent a car and get a speeding ticket. What’s going to happen? Pretty obvious. If I want to contest the speeding ticket, I’ll have to do it in France, before a French court or other body in France charged with hearing these sorts of cases. If I skip out of France without paying the ticket, the French authorities might put out a warrant for my arrest should I ever come back to France.

What if the French assume that I could not be lured back into their country to face punishment? They might see if someone else with jurisdiction over me might punish me. They might, for example, ask the California DMV to suspend my driver’s license. Maybe France and the United States have a treaty covering this sort of thing (hopefully I wouldn’t be extradited!), or maybe there’s a law in California requiring the DMV to act, and the California DMV would have to do what France requested (hopefully I’d at least get a hearing). But unless the California authorities had previously agreed to take action in these cases, the French would be stuck.

OK, it’s possible that the California DMV might hear about the speeding ticket and call me in for a hearing. They might say something to the effect that when I signed up for my driver’s license, I promised to be a safe driver and never to driver faster than the posted limits. (I don’t think they would do this, just to make it clear, but in theory they COULD do this, if they could get around my right to due process and a few other legal niceties.) So maybe they’d suspend my driver’s license and even fine me and put me in jail. But this would be a voluntary act on the part of the DMV, and absent any agreement between France and the California DMV, I see no way for the French to compel the DMV to act. Moreover, strictly speaking, the act of the DMV would NOT be an act enforcing my conviction in France – the DMV would be acting independently of the French, and enforcing the DMV’s agreement with me that I drive within the speed limit (the distinction might escape me as I served my jail sentence, but it would exist nonetheless, as I might discover if I ever got out of jail, went to France and got arrested THERE for my earlier speeding infraction).

Now, note what would NOT happen. The French police would not pull me over, look at my California driver’s license and then ask the California authorities to issue the speeding ticket based on the French evidence that I had been speeding. The State of California would properly say that this was beyond their jurisdiction: this was a case on a French road, where the law being broken was French law. Ergo, a French matter. The Californians might help the French enforce their punishment against me, but that’s as far as it would go.

THIS is what I would expect to take place with an AAF arising out of this year’s Tour de France. This year, the race is being run on the French national calendar, under the authority of the French cycling federation, with anti-doping handled by the French AFLD under French anti-doping law. On this basis, I would assume that the French would handle the initial prosecution, and would turn to the cycling federations of the various countries to help them enforce the attendant punishment. On this basis, I assume that whatever it is that CONI is doing, it is not acting on behalf of the French authorities.

One last point: I also assume that the riders can appeal to CAS, but if the UCI rules do not apply to this race, I’m not 100% sure that this is the case.