Wednesday, December 31, 2008

Bill Hue: The Bell Tolls

Final Thought on the Landis Case
Bill Hue

Perchance he for whom this bell tolls may be so ill, as that he knows not it tolls for him; and perchance I may think myself so much better than I am, as that they who are about me, and see my state, may have caused it to toll for me, and I know not that.
No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee

John Donne (1572-1631),
Devotions Upon Emergent Occasions, Meditation XVII:
Nunc Lento Sonitu Dicunt, Morieris

This will be my last post here at Trust But Verify and it is likely the last post I will make on this subject, anywhere. Like Floyd and many of you, I just want to put the matter behind me and ride my bike.

These are my thoughts about the case and its players. I can't prove many of these beliefs by facts or evidence and as such, this article is the antithesis of the more precise methods I have endeavored to employ throughout my time here.


For some time, I have suspected that Floyd Landis was targeted well prior to Stage 17 of the 2006 Tour de France as a cheater. Specifically, I believe the WADA folks were fairly certain Floyd was using Operation Puerto type blood transfusions to obtain a solid set of results throughout the 2006-racing season. Further, I believe they were confidant that Lance Armstrong had used similar methods to win many of his Tour de France titles.

The anti-doping, anti-Armstrong factions pretty much merged as one after Armstrong’s 1999 urine samples were retro-tested at the same Paris WADA accredited lab, with its connections to the owners of the Tour de France through their ownership of L’Equipe, the French newspaper often on the cutting edge of many significant doping related findings produced by that lab, through leaks and access to confidential lab data. EPO was purportedly found in 7 of Armstrong’s samples and L’Equipe carried the news including Armstrong’s identity shortly thereafter. Although an independent investigator later exonerated Armstrong, it became imperative that no other “cheater” was going to be allowed to win the Tour de France.

When less than rigorous scientific laboratory methods were used, coincidently, by the same lab that retro-tested Armstrong’s 1999 samples, to identify Landis as a steroid user after Stage 17, it was simply any port in the doping storm to those confidently smug in the knowledge that Landis was, in fact, a cheater. The method used to confirm the “fact” that Landis doped was not important, any more so than the bad “science” confirming that Armstrong doped in 1999, was. As long as there is “science” to support the conclusion, then “proof” exists, even if the foundation upon which said “results” rely is fatally flawed.

Even more egregious means were used to achieve the same end when another “cheater”, Michael Rasmussen, was targeted and then summarily eliminated after it became clear that he was going to win the 2007 Tour.

When “science” proved Landis’ guilt, another opportunity arose. Because Landis was once a lieutenant to Armstrong, he surely had information detrimental to Armstrong’s legacy. If Landis could be “turned”, say with a bit of arm-twisting, then the “big target”, Armstrong, could be bagged, once and for all.

The exposure of doping so rampant that it would require the disqualification of the Tour de France Champion for the first time in history, combined with the exposure of the doping’s role in the Lance Armstrong legacy would then be used to create a public outcry and that outcry would be used to fund and shape the anti-doping crusade for years to come.

When it became clear that Landis would not give up Armstrong, the guy they really wanted, or roll over on the case itself, USADA became determined to put away the guy they had on the case they had.

Landis’ case quickly passed USADA’s quality control mechanism, which would have had to dismantle the WADA system and its assumptions of laboratory accuracy in order to terminate the case in Landis’ favor, something it was never really designed to do, in structure.

USADA hired Richard Young to prosecute the case. Mr. Young was a savvy insider who had virtually written the WADA Code and he was the “father” of an “adjudicative” system that said all the right things about due process, justice and fairness but was purposely structured in such a way as to actually deny such things to athletes in practice.

Once subject to this system, Landis’ fate was sealed. At least we have seen that system for what it really is, thanks to Landis’ use of a little used clause within the USADA Rules that allowed him a public hearing, which contrasted nicely with the “secret” CAS hearing and its puzzling punitive conclusions.

In any event, given the bizarre assumptions and burden flips properly applied by both adjudicative bodies under the WADA Code and both Panel’s unwillingness to afford any close call to the athlete, given their anti-athlete make up and inherent conflicts of interest tolerated if not fostered by the structural make up of Young’s adjudicative system, Landis could not prevail as he very well may have had the case been tried to a judge or jury under European or United States civil law procedures.

The Landis matter was significantly carried out in public, so it is clear that throughout these last few years that both the professional peloton and cycling teams/sponsors watch but do nothing while the anti-doping landscape transforms constantly in ways detrimental to their interests.

In these last few years, anti-doping authorities have prosecuted cases where; “A” sample results have been subject to differing lab standards for declaration of non-negativity depending on the WADA certified lab doing the testing, “B” samples have been subject to multiple testing, in multiple WADA certified labs until they confirmed “A” sample non-negative declarations, “B” samples (as companions to “A” samples declared negative), have been “re-tested” to support non-negative findings, private athlete medical records have been subject to discovery while WADA lab test results have not been and any pre-hearing discovery favoring the athlete have been similarly and summarily rejected, violations of sample handling and chain of custody that would not be tolerated in any court in the world have not only been accepted but have, in fact, been celebrated by Arbitration Panels as long as the results, consistent with Young’s WADA Code, favors the prosecution and “conviction” of athletes and even when the foundations of science are so severely violated and where no justification for said violations is even is offered such that they are so compromised that Panels must find in an athlete’s favor, Panels virtually apologize for having to do dismiss cases.

Even when cycling teams attempt to address the doping problem by hiring independent contractors to monitor their athletes’ biology, commentators and authorities reject and ridicule those efforts as self-serving and ineffective, preferring that more authority and power be given to anti-doping authorities to monitor and potentially interfere with the athlete’s livelihood and right to medical privacy.

Non-analytical “positives” and “strict liability” criteria been expanded to further permit Panels whose make up can never benefit an athlete under Young’s WADA Code, to find that athletes have violated the Code.

Certain athletes and teams have become persona non grata and are not hired and race owners refuse to allow teams to compete in their races while other riders, equally or more guilty, find employment and other teams, equally or more guilty, are allowed to participate in races.

Knowing and seeing all of this, cyclists still will not unionize or otherwise seek to protect their interests. Teams simply leave the sport or subject their huge financial investment to ruin knowing that the current system is arbitrary at best and draconian at worse.

Having seen doping exposed and understanding its historical existence in the sport, racers still too often turn a blind eye to cheating. Similarly, understanding doping’s historical existence within the team structure, race organizers and others still seem to give a pass to team management, when cheating can’t possibly go on behind their backs.

Cycling has taken an unjust hit where doping is concerned while other sports get a pass from their organizations, media and public.

The public has seemed to divide into sometimes-extreme camps; one such extreme camp is turtle like in its denial and another is so cynical and dark that anyone who does not lockstep with anti-doping efforts has become the enemy.

In its current state, sport and cycling in particular is in peril. Unless and until real reform takes place, participants and the public will abandon them and they will cease to exist as businesses employing individuals who have talent to turn a pedal while allowing organizers, race owners and team sponsors to turn a profit.

The opportunity to transform the playing field in a fair and transparent manner is well upon us. I call on all of us to compel that result because we are all victims and at the same time, perpetrators in a corrupt system.

We have met the enemy. He is us.

The bell tolls.

Bill Hue is a Wisconsin Trial Court Judge. His thoughts and perspective are strictly his own.


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


Excellent post. Thanks for all you've contributed over the past two-plus years. We're all the richer for what you've written.

- Dan

whareagle said...

Judge, if only the arbiters were as honest and objective as you (originally).

I will miss this place.

I think I'll go rent "Fandango".

cleduc said...

As a fan of the Tour de France, I feel WADA and the governing bodies of the sport cheated me. I feel that WADA and these governing bodies should have concluded one of three things:
1) proven beyond reasonable doubt that Landis used performance enhancing drugs
2) proven beyond reasonable doubt that Landis didn't use performance enhancing drugs
3) unable to prove one way or the other whether Landis used performance enhancing drugs

I do not think the WADA process is fair. In fact, I think they're an embarrassment to the concept they pretend to represent. I do not think the WADA process proved anything except that it was unwilling to follow it's own rules, unwilling to acknowledge the flaws in it's own rules and procedures and unwilling reach an objective conclusion. How does one expect athletes to follow the rules when the body who administers them will not?

Whether Landis is innocent or guilty of using performance enhancing drugs, some good has come out of the bad. I credit both Landis and this site for that. The whole process got tremendous scrutiny and many of it's flaws exposed. I continue to hope, somewhat pessimistically, that the process will benefit from that.

Judge Hue and trust but verify blog, I enjoyed, learned from and appreciated your contributions very much. I'll never forget them. Thank you so much.