Corruption and Incompetency?

In the irregular report, we found this temptation:

The sections in the brief that show almost outright corruption and egregious incompetency and Rules violations are on pages 24-26, 32-33, and 61-64.

Inquiring minds will want to know what they say. First, mid page 24:

The CAS Case List also reveals the many occasions on which Mr. Young (USADA’s lawyer), has served on CAS arbitration panels before which Mr. Paulsson appeared for the IOC. The list confirms that during 1994-2003, Mr. Young served as a CAS arbitrator eleven times, and in six of these proceedings,

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Mr. Paulsson appeared before him representing the IOC. This confirms that Mr. Young sat in judgment of Mr. Paulsson’s client on more than half of the occasions in which he was appointed as a CAS arbitrator, while Mr. Paulsson appeared before Mr. Young more than half of the times that he appeared before CAS representing the IOC.

Mr. Landis had no way of knowing all of the above-recited facts when he selected Mr. Paulsson to serve as arbitrator on his CAS appeal panel in November, 2007. Mr. Landis also did not know that in November, 2007, Mr. Paulsson was actively representing the IOC in three high-stakes cases pending before a CAS panel to which Mr. Rivkin (the USADA-selected arbitrator) had been appointed president. Ex. 12, CAS Case Law, 2007/A/1286, Johannes Eder v. IOC; 2007/A/1288, Martin Tauber v/IOC; 2007/A/1289, Jurgen Pinter v/IOC (decided January 4, 2008). Upon information and belief, the stakes were particularly high for Mr. Paulsson and his client in these cases because they were the first in which the IOC had disqualified athletes for anti-doping violations in the absence of a positive test, and the first cases in which the IOC sought a life-time ban.

Although no available evidence indicates that Mr. Paulsson or Mr. Rivkin

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acted improperly, a clear appearance of bias exists. CAS Rule R59 gave Mr. Rivkin the sole power to decide the fate of Mr. Paulsson’s client, so persuading Mr. Rivkin was clearly crucial to Mr. Paulsson’s success in these cases. The appointment of both Mr. Paulsson and Mr. Rivkin to the Landis appeal panel presented a timely opportunity for Mr. Paulsson to discuss the facts of his high-profile IOC cases with Mr. Rivkin. It also created an unfortunate incentive to trade votes, with Mr. Paulsson agreeing to exchange a vote on the Landis appeal for favorable treatment from Mr. Rivkin in the cases of the three Austrians.

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... However, the record facts in this case do provide a basis for concluding that the Panel deferred to

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Panel deferred to fellow CAS arbitrator, Mr. Young, acts that could be attributable to the presence of actual bias. Specifically, the panel treated Mr. Young’s statements as evidence on at least three occasions, deference afforded no other lawyer in the case.

First, as described below in greater detail [see pages 39-43], the panel accepted Mr. Young’s statements as evidence in support of its decision to impose $100,000 in “costs” against Mr. Landis. At the time the evidentiary hearing closed, there was no record evidence on the amount or reasonableness of any of USADA’s litigation expenses, nor was the issue of costs submitted to the Panel for decision. Ex. 1, CAS Decision at 19. However, USADA’s post-hearing brief contained Mr. Young’s unsworn statements describing the extent and reasonableness of some of USADA’s costs, statements the Panel relied upon in assessing the $100,000 penalty against Mr. Landis.

Second, as again argued in detail below [see pages 50-66] the panel accepted Mr. Young’s unsupported statement to resolve a key issue relating to LNDD’s accreditation. On appeal, Mr. Landis challenged LNDD’s accreditation to perform the CIR method, arguing that the accreditation documents put in evidence by USADA confirmed that LNDD was only accredited to conduct the CIR test with a 20% measurement of uncertainty, not the 0.8‰ uncertainty

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measurement it actually used, and that had the 20% measurement of uncertainty been used, his results could not have been declared positive. Apparently concerned that Mr. Landis was correct about the LNDD’s accreditation status, the Panel sidestepped the issue by relying on a statement made by Mr. Young in a footnote to his post-submission brief, a statement making the unsupported (and incorrect) assertion that had the 20% measurement of uncertainty been applied, Mr. Landis’s sample results would still have been positive. Ex. 1, CAS Decision at ¶48, Ex. 22 , Appellee’s Post-Submission Brief, at 8, footnote 7.

Finally, as also argued in detail below [see pages 76-84], the panel accepted Mr. Young’s “common sense” explanation to reconcile important inconsistencies between a document USADA relied heavily upon–a gas chromatography column maintenance log (Exhibit T142)--and the sworn testimony of USADA’s own witness, the LNDD technician who was supposed to have actually made the entries on Exhibit T142.

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The Panel compounded this error by relieving USADA of its burden of proof. Apparently concluding that if it was wrong about the accreditation question, WADA Code, Art. 3.2 would operate to shift the burden to USADA to prove that the LNDD’s failure to apply the 20% uncertainty did not cause the positive result, the Panel went on to draw just such a conclusion on USADA’s behalf : “even applying a 20% uncertainty, the delta-delta value would still be over 3.0%, and the Appellant’s test would still be positive.” Ex. 1 ,CAS Decision, ¶48. Although USADA should have borne a heavy burden to prove this fact to the “comfortable satisfaction” of the Panel, see Ex. 29, WADA Code at 3.1, 3.2, the Panel appears to have done USADA’s work for it without benefit of evidence, stating its conclusion without a shadow of a reference to the record. In doing so, the Panel manifestly disregarded the applicable law by relieving USADA of its burden (a burden the panel clearly acknowledged and understood see CAS Decision, ¶¶29-33), and by making a decision not based upon any evidence tendered by any party. Not one of USADA’s witnesses offered this testimony, nor did any document include such a statement.

It is not surprising that USADA’s witnesses wouldn’t testify to the conclusion the Panel reached–it is patently incorrect. The 20% is a measurement

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uncertainty assigned to bound the uncertainties created by inevitable measurement error. As such, it is applied to LNDD’s measured isotopic values–the “delta” value-- not the “delta-delta” value, which is simply a subtraction value the lab derives by subtracting the value it measured for an endogenous reference compound from the value it measured for the testosterone metabolite of interest.

[note omitted]

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In fact, the statement that Mr. Landis’s sample would still have been positive even if a 20% uncertainty measurement had been applied is contained in only one place–a footnote to USADA’s post-hearing brief written by its lawyer. Ex. 22, USADA’s Post-Hearing Brief at 8, footnote 7. Though this footnote provides a reference to ¶26 of Dr. Christianne Ayotte’s witness declaration, her declaration contains no interpretation or application of the 20% measurement uncertainty. Ex. 35, Witness Declaration of Dr. Christianne Ayotte, March 7, 2008. Instead, the fuzzy math can be credited to the brief’s author, Richard Young, USADA’s lawyer and fellow-CAS arbitrator. Had Mr. Landis been permitted a right of reply, he could have pointed out that the statement was both unsupported and incorrect, but just as the Panel’s limitations on the post-hearing briefs denied him a right to reply to Mr. Young’s assertions about litigation costs, it also prohibited him from

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him from presenting any reply to footnote 7. Ex. 2, Tr. 1502:17-23, 1503:23-25. This is yet another example of the deference that the CAS panel afforded to Mr.Young, suggesting the existence of actual bias.

In reaching the conclusion that Mr. Landis’s test would still have been positive no matter what measurement uncertainty was applied, the Panel also misapplied the burden of proof in at least two ways, manifestly disregarding the law it acknowledged and correctly articulated at the outset of it decision. Ex. 1, CAS Decision, ¶¶28-33. First, the Panel imposed upon Mr. Landis the burden of disproving accreditation, a burden he does not bear under the Code. Having made this mistake, the Panel then concluded that Mr. Landis was obligated to present his proof in his appeal brief, and that his “failure” to do so justified the decision to admit the late-produced letter of Mr. LeGuy. Ex. 1, CAS Decision at 11, n. 23. But proving or disproving accreditation was not part of Mr. Landis’s burden under the Code, it was USADA’s. Ex. 29, WADA Code, Art. 3.1, 3.2; Ex. 12, CAS Case Law, Hamilton at ¶¶47-54. Once USADA made clear that it would rely upon
accreditation–as it did in its own appeal brief, filed months after Mr. Landis’s –USADA had the burden of establishing the fact of accreditation, which it did on January 31, 2008 by submitting the COFRAC audit documents in its Exhibit T026.