By the Hon. William Hue and David Brower
Copyright 2007 by William Hue and David Brower. All rights reserved. Reproduction in whole or in part is allowed when accompanied with a clearly legible attribution before the reproduction using the words, “Courtesy of Trust But Verify, http://trustbut.com"
ARBITRATION BEGINS, SLOWLY
After the Review Board issued its decision that sufficient evidence of doping existed to proceed with the adjudication process, USADA made an administrative decision to prosecute Landis. He was notified of that decision by fax and the arbitration process commenced. The North American office of the CAS is the American Arbitration Association (CAS-AAA) and it is within the auspices of that entity that anti-doping arbitrations are held.
USADA contacted the CAS-AAA to begin the mechanics, which include selecting arbiters, location, scheduling etc. In November, we republished some of the early correspondence between USADA, Landis, and the CAS-AAA at this stage, as the depth of the disconnects between the parties became more apparent.
The most important part of this early process is selecting the arbitrators, as much as doing "venue shopping" in a court case, and jury selection once in court. The result of the arbitration process is very sensitive to the individual arbitrators. They work with little review, as there is no opportunity for remand -- a case cannot be sent back for reconsideration because of error. They also have limited obligation to conform to precedent, making the result more unpredictable than might be expected.
PICKING THE ARBITRATORS
It took a lot of time to empanel the arbitrators in the Landis case, hinting at the intensity of the underlying struggle. On its face, the process appears to be fairly simple.
Floyd Landis and USADA were presented with a master list of arbitrators for the Ordinary (trial) Division of CAS-AAA. That master list consists of potential arbiters compiled by the International Council for Arbitration in Sport. Three fifths of the list is nominated by the International Olympic Committee, International Federations and the National Olympic Committees -- one interesting name on the master list for some period of time from that group is Dick Pound. Another fifth is selected as a result of their independence from the first nominating groups, and the last fifth is selected with an eye toward protecting the interests of the athletes. There are about 50 names on the master list but an examination of the published decisions since 2002, reveals that about 15 or 16 of them are "active" in hearings.
The CAS code requires that the arbiters have legal training, and many of them are practicing lawyers or professional arbitrators. They must have a certification of competence in either sports law or international arbitration and must be knowledgeable of sports, in general. They must speak either English or French. Each arbitrator serves a renewable 4 year term, takes an oath of objectivity and independence and must disclose any issue that might taint their objectivity or independence on any particular case or in general. We'll get back to this later.
Landis and USADA had a choice to have their dispute decided by a single arbiter or a panel of three. They agreed to have the case decided by a panel of three. Each party picked one arbitrator from the list, with USADA selecting first. USADA then informed Landis of the identity of the arbitrator it chose and then Landis had five days to select the arbitrator of his choice. Then, these two arbitrators were required to work together to select the third, to serve as the Panel's President.
The two selected arbitrators did not agree on the third.
At some point, the logjam fell into the "default" method for selecting the third arbitrator. Under this scheme, Landis and USADA each would strike up to one third of the list of arbitrators, and then rank the remaining arbitrators. The parties are then invited to "accept" the third arbitrator from their combined preference list based on those commonly ranked. If they were unable to agree, the CAS-AAA would have picked the third arbitrator for them, but that wasn't necessary.
During the hearing, while the other two arbitrators are permitted to communicate with the parties during the hearing, the president is not; and, as set forth above, he was not selected unilaterally by either of them.
This is a very interesting system design. The arbitrator selected by each party is permitted to talk to them and to serve as a conduit to the process for them, while the "neutral" is expected to be absolutely independent with no contact with the parties beyond the filings and testimony at the hearing.
We can reasonably presume that the selected arbitrators were picked by their party because of their reliability. Neither party has the right to challenge the partiality or move to disqualify the other party's selection under the rules. This makes the President or Chair especially powerful, as he is likely to be the deciding vote on all contested issues. Where there is anything but unanimity, the President has the vote that counts.
Each party did have the opportunity to raise any issue of the partiality of the Panel's chair and have that issue resolved by the CAS-AAA. Among the issues in the selection process was acquiring information about the potential chair, from which to consider issues that might have been raised.
Once the arbitrators were chosen, their independence was certified and the appointments confirmed and by the President of the Ordinary Division of the CAS-AAA.
WHO THEY ARE
Landis's choice to serve on the panel was Christopher Campbell. We know that the 3rd arbitrator and Panel president is Patrice Brunet. So, by logic, USADA must have selected Richard McLaren. Brunet is the "neutral arbitrator" and is a very powerful figure on this panel.
Christopher Campbell, Landis' choice, has previously been picked by a number of athletes to serve on their arbitration panel and as a result has perhaps served on more CAS Panel's than any other arbiter. He is an NCAA Division 1 Titlist (University of Iowa 1976, 1977), former World Champion (1981, Skopje), World Champion silver medalist (1991, Tokyo), and Olympic bronze medalist (1992, Barcelona), in freestyle wrestling. He was the oldest U.S. Olympic wrestling medalist, at age 37, and his bronze medal performance there is considered to be one of the most impressive individual performances in American wrestling history. He is now a corporate attorney and lives in Fairfax, California.
He is the author of the only three dissents ever written in the United States by a CAS-AAA arbitrator, in the cases of Neben, Ina, and not least, Tyler Hamilton.
Campbell has also decided against athletes numerous times, once as the Chair.
In Tim Montgomery, the principle of the non-analytic sanction was pioneered, with the athlete getting a two-year ban without a positive test. This was a BALCO case. Also guilty: Fuentes, Sbeih (with McLaren as chair), Cannas (appeal panel upheld finding but reduced penalty), Jovanovich, Vencill (contaminated supplement), Gatlin I, Cherry, Price, McEwen, Jeanson, Hollenbuyck, Youngquist, Harris, and Hartman (Chair).
It is obviously incorrect to say that Campbell "always" sides with the athlete. The tally above is 15-3 in favor of guilt.
Richard McLaren, USADA's pick, is a University of Western Ontario Law School professor. He currently resides in Canada. He was one of the18 arbitrators at the Athens Olympics for the CAS. He ruled on eligibility disputes that arose at the Games and was also on the final board of appeal for any athlete who disputed the outcome of arbitration, there. He has 25 years of arbitration and mediation experience as a third party neutral in labor and commercial matters. He has served as a salary arbiter for the National Hockey League and has been an arbitrator in nine CAS Panels issuing written decisions, once as Chair. All nine of the decisions went against the athlete:
The first three are cited at McLaren's website: Baxter v IOC, Muehlegg v IOC, and Poll v FINA. The remainder are from USADA's press release site: Blackwelder, Monniger (Chair), Harrison, Bergman, Sbeih, Hellebucyk (Appeal).
UPDATE:
We've also found and been forwarded the following cases for McLaren: Perry, French, and Pobyedonostsev, all of which favored the athlete.
Perry was a tennis player who was given the wrong inhaler at a match.
French was a cyclist being accused of a non-analytic positive with a flawed chain of custody.
Pobyedonostsev was a hockey player who was given steroids while unconscious in the emergency room.
That appears to leave McLaren 9-3 convictions/releases.
Patrice Brunet, selected with the default mutual ranking method as the neutral Chair, served on the Tribunal for the 2003 Pan American Games with Prof. McLaren. He serves on the Sport Dispute Resolution Centre of Canada as an arbitrator/mediator in Quebec. Richard Pound is also a mediator in that province. Richard McLaren serves that entity in Ontario. He is the founder of Brunet Lawyers and graduated from the University of Montreal Law School. He was admitted to the Quebec Bar in 1992. He has developed an expertise in sport law, particularly as a certified arbitrator with the Court of Arbitration for Sport (Switzerland), with the Sport Dispute Resolution Center of Canada and the United States Anti-Doping Agency. He has participated in 3 Panels, each ruling against the athlete: Thomas, Hainline, and Mortenson.
Brunet's participation in the Thomas case indicates that he and the other two panel members carefully considered the athlete's claim of chain of custody and multiple technician handling of both the "A" and "B" samples by thoroughly examining the facts and making firm findings, upon those facts that the claims had no merit.
The Hainline case was pro forma in that the athlete admitted to both taking a banned substance and refusing the medical test after competition.
The Mortenson case involved an athlete who timely filed and complied with all out of competition location requirements until he decided to retire. There after, he did not file the forms and was not home when an out of competition test was scheduled for him. Subsequently, he decided to "un-retire" and signed onto a team with sponsors and wished to be forgiven for missing his "retirement" tests, offering full cooperation in the future. But there was no exception in the rules to cover his transgressions.
FIRST STEPS
Once empanelled, the arbitrators need to resolve any procedural issues that could not be settled by the parties beforehand, and from the November correspondence, this was just about everything. This includes final scheduling, hearing rules, controlling law, protective orders, and last, but not least, discovery.
The Panel utilizes the provisions of the Code to resolve disputes where they can and may be able to assert authority consistent with anti-doping policies to expand their own authority, perhaps as we have previously discussed, and will discuss later in the series.
One very interesting issue that we will discuss in future installments is which controlling law they might select. In order to protect the integrity of the hearing, the Panel might issue protective orders although confidentiality may run afoul of whatever definition they give to the "public" part of the "public hearing" CAS-AAA permits the athlete to have. We will comment on that later as well.
DISCOVERY PROCESS
The Code allows the parties to ask the arbitrators for some types of pre-hearing discovery. This includes asking for production of documents and being allowed to question witnesses. The appear to have be two rounds of discovery in the Landis case -- some preliminary ruling rights off the bat, and a later one backed by more extensive motions.
In the first, we believe USADA was ordered to turn over the A sample results from the Tour de France, and Landis was told to turn over the different copy of the LDP that he had received from the AFLD.
In the second round, as yet undecided, Landis has asked for additional documentation from USADA a along the lines of the request that was rejected by USADA earlier. It probably includes data files from instruments, and information about calibration and procedures. We haven't seen the motion in detail, and presume it is similar to the earlier one. Further, the LA Times has reported he asked to be able to interview laboratory technicians involved (or not) with the analysis of his Stage 17 "A" and "B" samples.
USADA appears to be asking to test the B samples of the non-stage 17 tests, apparently arguing that they are extensions of the positive A test on stage 17 so it is not necessary for them to have positive A tests. This is a novel theory, and Landis is said to be arguing it would mean there is no practical limit to the amount of testing USADA can do, and the obligations to the athlete to provide observers at his own expense.
It will be interesting to see if the Panel permits Landis' discovery requests, which fall squarely within the explicit terms of the Code, or if they will reject them as being irrelevant to their inquiry. Even more interesting is whether the Panel will find policy supporting USADA's additional testing, even though there is no explicit provision in the code for such a request, or will limit USADA to the terms of the Code and deny the tests.
The decision is expected perhaps this week and we will comment on it when we have the decision.
Next time: Part III, The hearing and its procedures, burden of proof and burden shifts as well as the underlying policies of the anti-doping arbitration proceedings.
[Back to Part I]
THE AUTHORS
William Hue is a Wisconsin State Circuit Court Judge (Branch 2 of the Jefferson County Circuit Court). His views are strictly his own.
David Brower is the publisher of Trust But Verify, http://trustbut.com
