Tuesday, July 01, 2008

Larry: Stunned

In a comment at Rant, Larry wrote:

The opinion is a rout. In tennis, it’s a 6-love match in three sets. In Little League, they would have invoked the mercy rule. In boxing, the referee would have jumped between USADA and Landis to stop the bloodshed. Tiger Woods never won a major by this many strokes.

The opinion is sheer carnage. Reading the opinion, you’d conclude that Landis never called a credible witness or raised an argument worthy of serious thought.

Sure, a lot of us thought that Landis never had a chance … but this? This wasn’t just a defeat. USADA threw a no-hitter. They never had to punt. They took nothing but three point shots, and never missed. Bowled 300. Hit every fairway and holed every approach shot. Perfect 10s from every judge.

What the hell happened?

[MORE]


Here are my best answers, subject to revision as I regain my balance, my perspective and my temper:

1. As we’ve discussed, the system could not let Landis win. Too much was at stake: not just the reputation of the LNDD and USADA, but also the ability of the powers that be to bring the Tour de France back under international anti-doping regulation, and the legitimacy of every doping test to be conducted at this summer’s Olympic Games.

2. Landis’ case was perceived as a challenge to the ADAs that had to be sternly repelled. Landis was trying not just to prove his innocence, but in the language of the CAS decision, to make “a wide-ranging attack on LNDD” and (quoting Richard Young) “a frontal attack on the entire Anti-Doping system.” In other words, it was total war, and the powers that be decided that nothing less than a declaration of total victory would suffice to put down the rebellion.

3. The science of the case was beyond anything the CAS could handle. This case is and has always been a classic “battle of the experts” — USADA would call their experts, Landis would call his experts, and the judges would have to decide who to believe. The CAS worked without the benefit of a scientific expert like Dr. Botre, who helped the AAA arbitration panel sort through the pros and cons of the expert testimony in Malibu. The CAS panel members could not hope to be smarter than these experts, so they chose to believe the experts with the most experience doing drug testing for athletes. Unfortunately for Landis, these experts (most of whom have pledged never to testify in favor of an athlete, and all of whom would lose their livelihood if they spoke against the ADA system) all sided with USADA.

This is the clearest reason why Landis lost so badly. The CAS decided to base its decision on what the ADA experts had to say. All of these experts worked for USADA. None of these experts worked for Landis. Landis was shut out.

4. The Landis team somehow antagonized the CAS panel. This is difficult to explain, and difficult to understand, but there’s no way to read the CAS decision without concluding that the panel was, er, teed off. The panel clearly reacted badly to allegations made by the Landis team that the other side lied, forged documents, and otherwise engaged in fraudulent conduct. Like I said, it’s hard to believe that the CAS panel would have been so sensitive, given the fact that this battle has been dirty from the outset. But maybe the CAS is used to more genteel conduct.

5. I think that the CAS saw what’s coming next: Landis’ next move (if he decides not to quit this ugly business) is to challenge the ADA arbitration system in U.S. federal court. I think this is why Landis went to the CAS in the first place (the U.S. courts would not take his case until he’s exhausted his ADA remedies). In U.S. court, the battle gets nastier still: the focus will be on the fairness of the ADA arbitration system. Perhaps the CAS resented being used as a stepping stone to such a challenge. Perhaps the CAS sensed that they were dealing with a litigant whose next move will be to challenge the legitimacy of bodies like the CAS to decide the fates of athletes.

I don’t know if all this is enough to explain the rout at the CAS, but I’m tired too.

As far as whether any athlete can prove his innocence before a system like this … I don’t know. Maybe the cause is hopeless when the athlete’s defense is based solely on the science. Or maybe the athlete has to somehow get the support of a current ADA lab head (but how can you do that?).

I think that the only hope for the system is better science performed by better labs. Once the “A” sample tests were run and analyzed at LNDD, back in July of 2006, Landis was finished. Sadly, we didn’t know that then.


20 comments:

Timm said...

The only way CAS could have been antagonized by Floyd's lawyers was if they had a dog in this fight. From what I have read of the ruling, it looks pretty obvious they knew how this would end before they even heard the case. It is the same old same old. . . How dare you question the great and powerful OZ!!!

As for reform, it will never happen. The only way anything can change is if the riders stand up for their rights. As we will see next week, these strong men of cycling are basically wimps when it comes to their rights. Like a drug addict, they'll follow anyone who will give them a fix, regardless of the damage to their self respect and dignity.

Frankly, I won't be watching next weeks Tour de Farce. I have lost all respect for the riders and just can't get excited about watching people too stupid to know when they are being used and abused. I hope Floyd finds something better to do than racing. Maybe he should start a private racing league, ala Nascar, for cycling. Then they can tell the alphabet soup to go take a flying leap. That I could get excited about!

pensum said...

It appears last year's Tour is the gift that just keeps on giving, as apparently Rasmussen has just be slapped with a two year ban. NY Times article here: http://www.nytimes.com/reuters/sports/sports-cycling-rasmussen.html

Larry said...

TBV, thanks for posting me.

timm, good point about the dog in the fight. Yeah, it appears that somehow the CAS panel started taking this case personally. It's still hard for me to understand how or why this happened, but I don't accept your explanation that the CAS was antagonized because they knew how they wanted to rule from the beginning. Even if they were biased, they must still have expected Landis to raise a defense.

tycho said...

"USADA threw a no-hitter. They never had to punt. They took nothing but three point shots, and never missed. Bowled 300. Hit every fairway and holed every approach shot. Perfect 10s from every judge."

This was a competition USADA/WADA couldn't lose. The refs were bought, the game was fixed, the rules were ignored or twisted, the playing field was tilted, in short, the fix was in and the short odds were on Floyd.
The silver lining though is that the arbitration was so undeniably biased, ignoring LNDD's incompetence and the numerous ISL, ISO, SOP violations, that now Floyd can get out of the Star Chamber and into a real court of law and possibly have a chance at a fair hearing.
Unfortunately, it seems that his career as a cyclist is over (through no fault of his own), but this could be the catalyst to something better for Floyd than being a pawn in an unfair system.

jrdbutcher said...

I don’t know why I was surprised by the severity of the CAS panel?

The award reads with the appearance that it was tee’d up by Young, if not ghostwritten by him, or at least passed by him for his approval. Young significantly authored the WADA Code, was repeatedly allowed the latitude to include his own testimony and/or lead witnesses during witness questioning while acting as the prosecuting attorney in both the AAA & CAS hearings, and is a member of the CAS arbitrator pool (club).

When a guy from your club (CAS arbitrator pool) authors a worldwide code regulating certain aspects of sports and comes before you to prosecute a high profile athlete accused of violating said Code, and when said Code seeks to have the appearance of fairness, and when said athlete has publicly embarrassed an accredited lab tasked to test athlete samples by publicly pointing out the flaws in the labs testing & operating procedures that lead to faulty tests, and when said athlete also publicly points out the injustices inherent in the code, as written, then what do you do.

If you are in the club and you get appointed/chosen to be an arbitrator in a hearing involving said athlete, then I think we’ve seen what you do…….

Disappointment and anger just doesn't cover it.

beeble said...

I vaguely recall someone whom I can't remember just now making an offhand comment in an article maybe 1-2 months ago that the CAS had already rendered it's decision.

I just can't remember if it was an innocently incorrect statement by a reporter or someone who apparently may have known what was coming.

Anyone else remember that?

Maybe we should revisit that...

Larry said...

Tycho, jrd, I’m not merely talking about the fact that Landis lost. I expected that he’d lose. I’m talking about the fact that if the decision is to be taken at face value, Landis lost completely. You want some more sports metaphors for this, I’m full of them! Landis never took his bat off his shoulder. His entire team received red cards, fouled out, spent the game in the penalty box.

Contrast the decision of the AAA arbitration in Malibu. Yeah, Landis lost that decision too. But it was not so one-sided. The Malibu arbitrators decided some points in Landis’ favor. They found some lab departures from the ISL. At times, they were critical of the French lab. And they considered the arguments made by the Landis team. They took the time to refute these arguments. I did not agree with the reasoning of the AAA arbitrators on a number of points, and I did think that some of Landis’ best arguments were never properly addressed, but at least the opinion gave the appearance that the arbitrators were listening.

There’s nothing comparable going on in the CAS opinion. The opinion is wooden and formal. On each point of controversy, the opinion summarizes the Landis argument and the USADA argument, then states the position of the CAS panel. In nearly every case, the CAS position is identical to the USADA argument. The CAS position does not weigh the pros and cons of each argument. In most cases, the CAS simply states that it found the USADA witnesses to be more persuasive and more expert on the subject of ADA drug testing.

I will try to get to this down the road, but the CAS opinion is far more damning of athlete rights than was the opinion of the AAA arbitrators. Particularly disturbing is the weight given by the CAS panel to the accreditation of the LNDD. I need to analyze the opinion more carefully, but the opinion seems to state that any lab procedure reviewed as part of a lab accreditation is conclusively approved as being a scientifically proper procedure that fully satisfies the WADA rules and the International Standard for Laboratories (ISL). This directly contradicts the earlier ruling of the AAA arbitrators that lab accreditation does not by itself prove that a lab is acting in accordance with all of the WADA rules. How can an athlete prove that a lab departed from the ISL (which proof is required in order to mount a defense under the WADA rules) if the lab’s accreditation is seen as conclusive proof that the lab fully complies with the ISL?

The weight given by CAS to lab accreditation is particularly disturbing in light of some holes that the Landis team was able to poke in the LNDD’s accreditation. For example, the Landis team pointed out that the LNDD’s accreditation stated that the lab’s margin of error for performing these tests was 20%. It’s not clear how the LNDD was supposed to apply this margin of error, but despite the CAS panel’s naked statement to the contrary, the 20% margin of error could be applied in a way that would have wiped out the AAF and exonerated Landis completely. In response to this argument, USADA and LNDD went back to the French accreditation agency and obtained a letter to the effect that the 20% margin of error was mistakenly included in the lab’s accreditation. So, the labs can stand behind their accreditation as a complete shield, and if the accreditation is not what the lab needs it to be, the lab can go back to the accreditation agency (in the middle of the case!) to have the accreditation “corrected”.

That’s chilling, chilling stuff.

robo said...

Larry,

You are right that Landis lost completely at CAS, but not because he didn't try or because USADA has such great athletic prowess. He did try to swing the bat or shoot at the basket. It's just that everytime he did the "neutral" umpires/referees called a strike or a foul. And USADA never got called.

It is curious that even the Landis pick on the panel apparently just went along with every pro-USADA ruling without even a hint of dissent on any issue. The very one-sidedness of the decision is both chilling, as you say, but also very strange considering the complexity of the case.

At any rate, one question regarding the $100,000 "fine." If Landis returns to cycling, I assume the CAS award could be enforced as a condition for getting a license. But if he doesn't return, is there any way USADA can get the money out of him? If USADA likes to argue that US courts have no jurisdiction over CAS proceedings, how could it get a US court to enforce the monetary judgment? And if a US court did take jurisdiction of this, would that open the entire CAS decision to review by that court? Thanks.

gentryfunk said...

I really could not believe the tone and content of the CAS ruling. Regardless of Landis's guilt or innocence, the French lab made huge errors. HUGE errors. To allow such shoddy lab work rigs the system against riders.

jrdbutcher said...

larry,

I previously wrote about the CAS panel, in this case, practicing “suspension of reality” when rendering its decision. The example I cited was related to the panel’s criticism of the Landis side for producing witnesses that were more interested in being advocates than in the science involved. That is kind of hard to accept, given WADA has institutionalized that very practice with its “good neighbor policy”.

I think I understand your point with regard to the abject beating the CAS panel served to Floyd and his legal team. I think I understand Judge Hue’s views on the CAS panel serving its master. In this case, I think they also went further and served a primary writer of the “Master Plan” – the WADA Code.

That said, I’m disappointed that a skilled attorney from the United States is involved in writing a McCarthyesque code well after the time of the “Red Scare”. I’m disappointed that a world body, with a generally positive purpose, has not only accepted, but has embraced, such a one sided code. I’m disappointed WADA and the AAA/CAS arbitrators (save one) have been more interested in maintaining the status quo, or making the system more autocratic, than it is in improving the quality of the tests, testing, and testers. I’m disappointed there is little to no due process for the athletes. I’m disappointed the general public, and even a seeming majority of cycling enthusiasts, seems to think the system provides adequate protections for the athletes. I’m angry as hell that there are so many who can’t seem to learn from history and draw a correlation with what is happening here. I’m sure they wouldn’t happily accept such treatment for themselves. How can it be okay for Floyd and others???

wschart said...

JD:

You know that old thing about "First they came for . . ." which proceeds to name off a variety of minorities etc., and ends up with ". . . and when they came for me there was no one to stand up for me." I think we sort of have something like that here.

The vast majority of us here, and the general public will never have the "opportunity" to be subject to WADA testing and sanctions. Whether or not the WADA code and attending processes are fair, whether testing procedures are scientifically valid, etc. are just academic questions to us. True, some of us care a great deal about these, but many people do not.

When, year ago, an American swimmer was stripped of his Olympic medal because he had taken an adma medicine, which he had turned in the paperwork for a TUE, but the swim fed had failed to follow through on, the public basically said "Well, that's too bad" and did nothing. Same thing for the skeleton racer and his baldness medicine or the British skier and his Vicks inhaler. "Too bad, but that's the way things go." And in Floyd's case, this in reinforced by the prevailing belief that most, if not all, pro cyclists are dopers. So why worry if he got shoddy treatment from CAS, he probably had it coming to him. Or so they say.

pensum said...

Just a note to WSChart's previous comment: baldness medicine is commonly used as a masking agent (i forget the particular ingredient), so it's use is not necessarily as innocent as one might think and so it is on the list of banned substances for a reason. The Montreal Canadiens former goaltender (i believe it was Jose Theodore) was suspended by the NHL for using it, and it's not like the NHL has a stringent antidoping campaign.

Larry said...

Tycho, you’re making a good point that I hadn’t considered. Perhaps Suh et. al. WANTED to make this look like a rout, to better set up a federal court review of the fairness of the arbitration. I’ll have to think about that. It’s certainly a high-risk strategy. As a general rule, it’s just about impossible to challenge an arbitration decision in federal court and actually win the challenge.

Beeble, sorry, I don’t remember anything along the lines of the CAS decision actually being reached weeks or months ago. It wouldn’t surprise me, though. I would not consider it unusual for a court to reach a decision quickly after a trial or hearing, and then take its sweet time to write its decision.

Robo, I’m not sure what happens from here regarding the $100,000 fine. I haven’t done the research, but my guess is that USADA can enforce this portion of the CAS ruling in U.S. state or federal court. Would they do so, and perhaps invite court scrutiny of the CAS proceedings? I think so. As a rule, U.S. courts are not eager to review arbitration proceedings. The law discourages this kind of review.

jrd, I’m still at a loss to describe what happened to Landis, though I keep trying. I’ve read the Judge Hue analysis of serving masters. To be honest, my mind just doesn’t work like that. I’m a pretty cynical human being, anyone who knows me can tell you that. But I believe in process. I believe that any time you ask three people to sit down and resolve a dispute, there is a built-in potential for fairness and justice. The potential is not always realized – not even a jury of one’s peers is a guarantee of justice and fairness, but the potential is there. I find it impossible to believe that the AAA panel, and the CAS panel, were both constituted in such a way that it was impossible for Landis to win. I think that all six panelists were prepared under the right circumstances to vote for Landis.

So my focus turns in the direction you’re pointing, to the rules set up to govern these cases. The rules are set up so that, once the athlete is accused of a doping violation, the athlete will be convicted quickly, efficiently and quietly. You can add this to the reasons why the CAS panel was so teed off at Landis: Landis has fought this matter in a way that frustrated the system: the final result was a noisy, slow and expensive conviction.

I think I’ve made a mistake in thinking that this process was supposed to be something like a court proceeding, where Landis’ guilt or innocence would be decided. I don’t think that’s what these rules are for, and I don’t think that’s the way this process was designed. I think that Landis’ guilt was determined by USADA when it chose to prosecute the AAF. I think that the “hearings” in Malibu and NYC were literally just that: they were forums where Landis could be "heard", for whatever it might be worth. It’s not a matter of innocent until proven guilty, or even guilty until proven innocent, because the process is not designed to “prove” anything one way or the other.

To understand what I’ve driving at, please take a look at the Supreme Court case of Goss v. Lopez, which you can find on line (Goss case). In Goss, the court ruled that students could not be suspended from public high school without notice and an opportunity for a hearing. But if you read the case, you’ll get a picture of the kind of “hearing” the court had in mind – no lawyers, no right of the student to call witnesses, no cross-examination, with the decision to suspend being made by the school authorities. The Court was really requiring nothing more than giving the student the opportunity to give his or her side of the story. Under the circumstances, the Court ruled that this is “Due Process” under the 14th amendment to the Constitution. You can imagine how a typical Goss hearing would go: the kid would be dragged into the principal’s office, asked “do you have anything to say for yourself” and suspended on the spot. Still, there’s at least the possibility that in rare cases, the poor kid might actually find himself in front of a fair principal and be able to articulate some kind of defense. The Goss right to a hearing is not an empty right. And understand, this case represented a victory for the STUDENTS, not the school! A 5-4 decision, to boot. I’m not even sure it’s good law (subsequent cases have held that due process does not require a hearing where a student is dismissed for academic rather than disciplinary reasons).

What protection do students have that they’re not going to be suspended unfairly? Um … none, really. But having the opportunity to tell your side of the story in front of the powers that be is an important right ...

I’m bringing up the Goss case not because I think it’s directly on point – of course there are major differences in the rights involved in the Goss and Landis cases. Someone like Judge Hue will probably tear me to ribbons for even making this comparison. So please understand, I don’t mean to say that a Goss-style hearing is fair, right or just in a doping case. I bring up Goss because it illustrates that there can be varying reasons and purposes behind the requirement for a “hearing”.

I’m not sure that the WADA procedure comes down to anything more than the Goss procedure: it’s a chance for the athlete to tell his side of the story, and then hope for the best.

Timm said...

Larry,

I can see how the CAS arbitors could decide the way they did. They are actually part or the anti-doping establishment. I am sure just their being involved in the system shapes their views before the athlete ever has his say. They enter the case with pre-conceived ideas, regardless of who the athlete is or what they are accused of doing. For instance, they likely trust the labs far more than anyone else does as they are so familiar with them.

Now if they were three people pulled off the street at random, like a jury here in the US, then the athletes could possibly get a fair hearing. These jurors wouldn't be as likely to have a predetermined position vis-a-vis the athlete. They would likely be more swayed by the attorneys though. Frankly, I'd rather take my chances with three amateur judges than three insiders.

tycho said...

Let's look at the Olympic year politics; with the recent scandals involving MLB and track and field doping, USADA needed to make an example of someone, prove the system works, justify their existence, so the sacrificial lamb of a cyclist not represented by a powerful union (who won the Tour de who? France?) makes everybody look good, and keeps the multi billion dollar sporting industry chugging along.

As long as MLB, NBA and NFL is safe, everything is ok, (or is that snafu?).

Until cycling gets their act together you can expect more of the same.

-Tycho

pensum said...

Larry, Thanks for presenting the Goss decision, it's really quite unsettling isn't it? It's always important to remember that this is NOT a court of law, and is not governed by principles such "innocent until proven guilty" etc.

Judge Hue and i discussed the nature of these hearings back during the earlier one. I used the analogy of calling for a video review of a call in football (i know you like sports analogies): the linesman has made the original call, the penalized team throws down a flag asking for a video review, now the review panel look at the tape and must decide whether there is clear and compelling evidence to overturn the initial call. If the tapes don't clearly show evidence contrary to the linesman's call, the penalty stands. Judge Hue seemed to like the analogy.

So Landis' team must do more than simply cast doubt, or obscure the issue in order to overturn the original call. And to mix metaphors: a tie goes to the runner--in this case that's WADA.

Larry said...

pensum, I think the comparison to a video review of a call in football is a very good one. Thanks for pointing it out.

jrdbutcher said...

I kind of enjoy he instant replay analogy too.

I’m having a hard time working that analogy into the ever-changing story of how, and by which approved method, LNDD accomplished the carbon isotope testing on Floyd’s S17 samples. The stories from a variety of USADA witnesses didn’t match up. That usually results in discounting one or more of the prosecution’s witnesses, not the defense witnesses.

For the sake of argument, let’s assume the S17 sample, delivered to LNDD, was Floyd’s. The issue wrt CoC is what happened to it in the lab. Who handled it and why? Was it stored and/or handled properly? Was it contaminated in any way? Was it mistakenly switched with another sample along the way? Contemporaneous logs are standard in the industry for recording CoC. The contemporaneous requirement makes sense because it reduces the chances for mistakes due to faulty memory. The tests can often be complex. Do one thing at a time. Do it well. Move on to the next thing. Contemporaneous logs are a requirement for sound lab work. That’s what you learn in Chem 101 or earlier. It’s not okay to recopy a contemporaneous log, using one person’s handwriting, and offer it as evidence in a hearing that relates to a person’s livelihood. It stinks of fraud. The arbs accepting that kind of evidence is sort of like a teacher accepting the old “dog ate my homework” excuse. It might have happened. It’s just not damned likely.

The arbs denying that changing accounts about methodology employed by LNDD and serious CoC issues wrt Floyd’s samples didn’t flip the burden back to USADA is preposterous. To cry foul wrt Floyd’s witnesses being more interested in advocacy than science is sadly laughable, especially considering such practice has been institutionalized by WADA. As larry pointed out, being allowed to get the accreditation corrected in the middle of a hearing was chilling.

I’d hoped for better. I’d hoped for a rational and well-supported decision. It didn’t happen. The decision was pre-ordained. The 5 arbs (Cambell excepted), WADA, UCI, USADA, and LNDD didn’t do the jobs they were sworn to do. They were all frauds in this case, to varying degrees.

Ken said...

The video replay in football might be a good analogy. Especially with all the times I've seen the ref ignore the visual evidence. The panel may have actually decided there wasn't enough evidence to overturn LNDD's call. If that's the case I think I've seen them ref some football games as well, and they shouldn't be allowed to do it again.

I am thinking that the whole thing is set up as Bill has said to catch cheaters and not to make sure an athlete is given their rights. I like your idea Larry of the hearings are about the athlete being able to present their case. Their last words as it were. That seems to fit the way things have gone. "You've said your piece now sit down and shut up so will can tell you how you're going to pay."

I remember someone saying the decision has already been made. Maybe even a couple of people. But I don't think it was any actual firsthand knowledge, just an understanding of the system.

Ken

robo said...

Larry,

Thanks for the response. Regarding the $100,000, I'm not sure USADA would try to collect it through court order. First, it would be highly ironic for USADA, which takes the position that US courts have no business interfering in CAS decisions and in fact have no such jurisdiction, to try to enforce a CAS decision in a US court. Second, although you are right that courts rarely reopen arbitration decisions, you just never know. The federal judge in the Gatlin case, for instance, appeared all too eager to overturn the CAS decision if it weren't for the jurisdiction issue. Third, even if USADA went through the additional time and expense to get a court order, there's no guarantee it would get any money for its trouble. Landis might just file for bankruptcy, move to a state where there is greater protection of income/assets from judgments (e.g., OJ in Florida), or take some other action to forestall collection.