Sunday, December 07, 2008

Inquiring minds would like to know

Nobody, USADA or Landis, has said anything publicly about the settlement finalized last Friday, Dec 4th. If they aren't answering the calls that came from the press right away, neither is likely to talk to us on the record either.

If anyone starts answering questions, here are a few we'd like resolved.

  • Is there a confidentiality provision prohibiting comment, or are people just being quiet?
  • Is Landis free to race at the end of January?
  • Has Landis paid USADA the $100,000?
  • Is Landis going to be paying USADA the $100,000?

We still see no motivation for Landis to settle before seeing a USADA filing if the terms included him paying substantial money. Thus, we're inclined to think USADA made some concessions on the fine, but can't guess if there was any reciprocal gesture by Landis beyond agreeing to drop the action.

Some of the "Landis as antichrist" folks seem to think he gave up and paid, or will be paying the fine. This seems unlikely to us, but there's not yet proof one way or another. Should facts emerge, it'll be interesting to see what retractions and respin is done by whoever leapt to wrong conclusions.

5 comments:

Matthew Nelson said...

Settlements in high-profile cases frequently have confidentiality, even "no comment," clauses. Often, we have to infer from subsequent actions of the parties what some of the terms are. For instance, if Landis begins racing again soon . . . .

Matthew David Nelson, Esq.

Cheryl from Maryland said...

From today's Velo News:

The roster for OUCH:
returning Heath Net riders: ...

new riders:
Floyd Landis
Cameron Evans
Andrew Pinfold
Bradley White
Bobby Lea
Jonathan Chodroff

Not that a VeloNews article is definitive or anything.

("Eightzero") said...

OK, all you attorneys out there, here's a procedure question for you:

The parties agreed to dismissal with prejudice. Does this mean any action related to the same transaction or occurrance, cannot now be brought by either party in this court or any other?

IOW, can USADA bring suit, notwithstanding this order, for enforcement of a (for example) foreign arbitration award for costs?

Any citation to other law (case law or rules commentary) supporting an answer appreciated.

DR said...

Eightzero -
With regard to whether "any action related to the same transaction or occurrance, cannot now be brought by either party in this court or any other?"

I would venture to say that it's pretty clear that "in this court" the matter is done. That probably holds for any other U.S. Federal Court as well which would have essentially the same "subject matter" jurisdiction.

With regard to whether USADA could subsequently seek "enforcement" of an arbitration award, there are a slew of factors that come into play.
The first (and probably foremost) is just the basic nature of what may have been agreed to between Floyd and USADA. I would guess that a settlement agreement (assuming there is is one) would have addressed such issues by each party agreeing to not pursue further legal remedies (a contractual matter). So while a court might still have jurisdiction, that jurisdiction would only go so far as to let it throw the case out based upon the settlement agreement.

It is true that the time period for filing to "confirm" an arbitration award is typically longer (under Federal law or the Uniform Arbitration Act in many states) than that allowed for filing to vacate an award, and USADA is probably still within the allowable time for confirmation ("at any time within one year after the award" (9 USC §9).

However, 9 USC §9 also allows confirmation of an award only if "If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration... "

No such provision seems to appear in Floyd's license application, which is where the arbitration provision that created the whole mess exists.

I have no idea whether USADA could seek enforcement of the arbitration award in a foreign jurisdiction, but that would also seem to be a futile and expensive effort in the long run since Floyd is in the US and USADA would probably have to obtain a foreign judgment and then have it recognized in the US to be enforceable in any meaningful fashion.

It's easier (or was easier) for USDA to just say "You can't be reinstated until you pay us."

Someone else may be able to comment more accurately on this (or correct me entirely).

In the meantime, I expect Floyd accomplished at least a part of his goal. But we are left with little to actually discuss about the case.

("Eightzero") said...

We forget the obvious. Someone should ask the French Tabloid L'Equipe or Dick Pound what the settlement was.