Wednesday, July 02, 2008

Larry: When a "hearing" isn't

In a comment yesterday, Larry remembered something apropos...

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.

And apparently the attitude you bring to your "hearing" affects the result you get. Just like that trip to the Principal who may not be your "pal".


bk said...

Larry and the lawyers,

A request: I would enjoy reading a discussion of the appeal process into the court system. What could be appealed, the basis for appeal, governing statues, which courts have jurisdiction, and the extent of jurisdiction.

Thank-you for all you've done and written.

Mike said...

Larry you are doing some excellent "processing" of this decision. So are a lot of other people. To whatever degree we frequent readers of TBV are a "community," I feel like a bum, not having contributed anything. I have just been too busy, and haven't even been able to read the stupid thing yet. And now am leaving on an internet free vacation for two weeks, so I won't be able to contribute anything for a while.

Also, honestly, this decision just makes me sad - sad for Floyd and Amber, and all those whose lives this really affects directly, and newly angry - angry that this type of system was allowed to be created in the first place without most people realizing how one sided the process really is. I suppose I'll get to the point of "processing" it, but I'm just not there yet.

So, my first dumb reaction stands: bummer, this sucks.


Dan Brekke said...

Great post. Re: Goss: In 1971 or so, another student at my suburban Chicago high school reported to the principal that I had used a Carlin-ite profanity in referring to the school attendance officer. I was already skating on thin ice because of my short temper and tendency to tell teachers off. On this occasion, though, I had been upset but hadn't cursed. At the end of the school day, the principal collared me and told me that he had heard about what I had said and that I was subject to expulsion for it. He told me to tell my parents to be at the school at 7 p.m. that very night to discuss the matter. They did, and they were told I would, indeed, by expelled. My parents, who were not confrontational people and believed me when I told them that I hadn't said what I was accused of saying, prevailed upon the principal and assistant principal to ask other students and one adult employee who had been present -- not a friend of mine among them -- if they had heard the offensive utterance. The school agreed to do that and told us to be back at 9 the next morning.

When we arrived in the principal's conference room, the face of the assistant principal (and chief prosecutor) was red. He had talked to the half-dozen people who had been in the office. Half of them didn't even remember me being there. Of the remainder, only my accuser remembered me saying anything at all, much less cursing anyone. So: the expulsion was tabled, and I was given a "suspended" two-day suspension instead and told to go to class.

So you're right: the hearing itself can be important, even if the cards are dealt funny sometimes. But the process is only really meaningful if someone is open to weighing evidence with an open mind and actually does that.

("Eightzero") said...

I am really struggling with the jurisdictional issues, and want to explore that a little more. From what I can tell, the first piece of that is the original contract athletes are generally required to enter into with their NGB. In the case of pro cycling, this USA Cycling. It seems cyclists are then "subject to this farcical system" from that point on.

But are there other statutes involved? Perhaps international treaties? Contracts have various defenses, and some are simply void as against public policy. I'd really like to start the analysis for what Floyd's legal team might be weighing as options.

Of course, these are separate from Floyd's personal options.

I support Floyd and his family's choices on that matter unconditionally. To those ends, I sure would like to know how to help. I'll make a donation toward that $100k foolishness, and grind my teeth knowing it eventually goes in the pocket of Richard Young and USADA. But Floyd stood up for me as an athlete, and I'd like to somehow say thank you.

This is separate from the pending legal analysis. Larry, Judge Hue (and others); where do we start? I want a real court to weigh in on the use of science in the anti-doping movement. The ethical mis-treatment of vulnerable, human athletes is not something we can turn a blind eye to.

Larry: as to the substantive issues of due process, that issue (as you know!) will be very interesting and very complex. Goss predates Matthews v. Eldridge (that cites Goldberg v Kelly). This is horribly complex. Plus, it is possible the state action link here is tenuous - is USA Cycling really "the state?" I'm not sure. Could a court that was asked to enter judgment on the arbitration award be asked to review the contract as against public policy as overreaching? As a contract of adhesion? Or a myriad of other contract defenses?

Now I know what those guys feel when they line up for Stage 1. Man, this road looks long....but if the team can launch someone on a break...and no one chases....

robo said...


I'd argue that students (and their parents) have many more rights (or at least avenues of recourse) in dealing with an unfair decision than athletes under WADA jurisdiction. The power of the school principal is checked to some degree by others on his/her staff, the PTA, the school board, the state department of education, local politicians, the media, and the community at large. Any of these can be petitioned to bring pressure on the principal to reverse a decision. If the principal's decision involves a violation of some basic civil right, such as racial discrimination, there is the option of a court suit. There might be the opportunity for the student to have his/her side of the story inserted into the academic record. Finally, if a choice of schools is available, one can simply leave the school and enroll in another with a fairer principal.

But WADA athletes just don't have these same options. There aren't many checks on WADA's power. There's no opportunity to pick up and leave for a rival athletic league not under WADA's control. So WADA does what it wants and gets away with it.

You write that you "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." I'd reply that in WADA arbitration and CAS cases this is true only when the issue is very simple, the ISL violation obvious, and the overturning or mitigation of the sanction does not undermine in any way WADA's labs, its image, or the fundamentals of its code. It also helps if the case involves a lesser known, low profile athlete. Anything more than this and the hearing become a formality with the outcome preordained from the beginning.

Thanks for your analysis on this and all the other topics you've covered. I appreciate reading your views.