Judging Floyd, Part II

This is Part II of a series looking at the Landis case from a legal and procedural point of view, as observed by a sitting trial judge.

In Part I of this series, we looked at the initial steps in the legal process used by USADA against Landis, up to the decision to proceed to arbitration. Here in Part II, we start arbitration, and get up to date with the current status as we write.

UPDATED 13:15 8-Mar-2007

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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 3^rd 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

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Thursday Roundup

News
The San Francisco Chronicle posts an AP article by Erica Bulman about the dark cloud that professional cycling finds itself under at the start of this year's competitive season:

UCI is planning to unveil a new anti-doping program for ProTour teams in Paris on Friday. The program reportedly could include blood volume testing and checking for human growth hormone. UCI refused to comment on the new plan.

The sport's credibility was hit by two major doping scandals in 2006 — Tour de France winner Floyd Landis' alleged positive test for testosterone; the "Operation Puerto" case in Spain led to the exclusion of Giro d'Italia champion Ivan Basso and 1997 Tour champion Jan Ullrich from the Tour de France.

The Boston Globe publishes the same piece.

The Houston Chronicle notes the temporary agreement between the UCI and the ASO to let the "games begin" at Paris Nice this weekend, and that the defending champion will not be present.

The VeloNews mailbag contains a letter from Don Cunningham who wonders why some cyclists get to race this year and others in similar states of disgrace don't. He is going to go out and just ride.

Blogs
Triple Crankset laments the exclusion of certain teams due to the Pro Tour ASO compromise, and looks to the past to remember what would have happened to some very well known riders if their teams had been excluded. He also mentions what did happen to one recent Tour de France winner when his team was not chosen.

Wilmette Life publicizes the FFF event to take place this Saturday in the Chicago suburb:

Floyd Landis, 2006 Tour de France bicycle race winner, will appear Saturday at a Wilmette Theatre fundraiser to fight efforts to revoke his trophy and right to compete.

Landis is fighting both American and French moves to ban him after he failed blood tests for his ratio of testosterone to epi-testosterone.
For a $35 admission, visitors will receive a box lunch, see a slide show about the issues and take part in a question-answer session with Landis.
The event is scheduled from 2:30-5:30 p.m. at the theater at 1122 Central Ave.

Pommi read Part 2 of "Judging Floyd" with interest expressing some concerns over the Landis camp's choice of arbitrator Christopher Campbell.

CrystelZENmud tells us about a series of caricatures of Floyd Landis that would each one qualify for snark of the day, but since there are four of them they might make snark of the month.

Mendacity thinks that Floyd Landis is being railroaded, and he feels badly about the evil of it.

PJ analyzes the tactics on S-17 and shows a human effort; a comment is skeptical because of the S-16 bonk.

Rant covers Paris-Nice accord, Spokesman, likes Judging Floyd, and pumps PJ's S-17 piece above.


Forums
Discussion of the moderation policies at the Daily Peloton Forums continues with thus far no satisfactory answers to the confusion coming from the "powers that be".

Thought for the Day

When the police break a rule, it turns out to be necessary so that they could protect us; when defense attorneys work within the system, and zealously defend their clients, it’s “getting off on a technicality.

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Wednesday Roundup

News
The Chicago Tribune's Phillip Hersh provides a short blurb on the upcoming FFF event in Wilmette,IL Saturday afternoon.

The Washington Post prints an AP piece by Eddie Pells on the end of Terry Madden's 7 year reign as head of USADA. Madden will be replaced by general counsel Travis Tygart:

Madden led a 39-person office in Colorado Springs that ran on a $12 million annual budget funded by the USOC and the federal government. The agency constantly seeks better science to stay ahead of the curve as the list of hard-to-detect performance-enhancing drugs expands.

Most recently, USADA has been at the forefront of high-profile cases against several elite athletes, including Tour de France winner Floyd Landis and Olympic champion sprinter Justin Gatlin.

The same piece is being reported in many outlets including The Sporting News.

The VeloNews posts a video taped interview with Neal Rogers and Floyd Landis from perhaps sometime during the ToC? In any case, this is very relaxed and honest and a must watch.


The Richmond Times Dispatch talks about the upcoming US Open Cycling Championship from Williamsburg to Richmond on April 7, 2007. Despite losing its director Tim MIller,who is being replaced by John Eustice, and having no title sponsor the 125 mile race will still be run. Floyd Landis is scheduled to make an appearance at the race.

Blogs
DCist informs us that there is an important fund raiser for the documentary film "Road to Roubaix" tonight at the Warehouse in Washington, DC. An art auction to raise money will include the full sized portrait of Floyd Landis that appears on the FFF fund raiser flyers.

The First 100 Miles' Sara Best seems to think that Floyd and Amber Landis might appreciate the "Inane Asylum". Who wouldn't appreciate an automatic beer launcher?

Tommy is very excited by his new team Jittery Joe, their new team kits, the ride up Palomar, and by being joined along the way by some dude named Floyd.

Crystelzenmud argues that under the "Pound Doctrine" Floyd should be freed.

I Don't Know Where the Angels Sleep is sick and tired of being lied to by athletes seeking an unfair advantage, and thinks that this lying is the end of our innocence. He believes that even those who MAY be innocent are still probably liars.

SciFiTwin gives repeats his believe that Floyd is innocent, but accepts it might not be so. He gives pointers to lots of places for people to become informed, flattering us in the process. That certainly earns a link.

The Sports Curmudgeon mixes in some snark from elsewhere to show current sentiment.

PowerTapGeek waxes on the benefits of racing with a power meter, using Landis at the TdF and stage 17 in particular as examples. TBV will attest to its value in mere group rides. It's sweet to pass stronger folks who went out too fast up the hill when they pop. When you know how much you can cook for how long -- an underwhelming 224w/30 min 187/60 min in my case -- it means you know not to start at 300+ even if you can do that for 3 minutes, because it's a 5 mile hill.

Forums

Over at The Daily Peloton Forums discussion continues about yesterday's web chat with LAT reporter Michael Hiltzik.

There is some superb detective work ongoing with the TE tests in terms of understanding which samples and which aliquots were worked on by whom, when, and what this implies for the consistency (or lack) of the reported results.

Odd things still seem to be happening with posts that don't please some moderators personal predilections. An attempt to determine if the community thought some moderators were behaving properly was silently deleted, and a follow up to that was moved into nowhere-land so it wouldn't show up to the casual reader. We'll report on what develops.


Thought for the Day

I occasionally hear about a criminal getting off on a technicality. While we’re at it, let’s make technicalities against the law. If we remove all the technicalities, then no criminal will get off on one.

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Tuesday Roundup

News
The LATimes has posted the complete transcript of today's chat with reporter Michale Hiltzik.

The FFF "Tour of Innocence" hits Denver on March 11, 3-6 pm at the Bicycle Village in Broomfield.

The LA Times posts news about the upcoming Floyd Fairness Fund event in Chicago on Saturday March 10, and provides some further information about recent FFF events:

Floyd Landis brings his barnstorming defense fund tour to the Chicago area on Saturday.
Landis, fighting the positive drug test that could cost him the 2006 Tour de France title, has taken his case to the public by posting evidence in the case on the Internet and appealing for help to raise $500,000 for his legal expenses.
This will be Landis' sixth such appearance. The events have raised $50,000 for the Floyd Fairness Fund, according to Landis' publicist, Michael Henson.

The Wisconsin State Journal prints a small mention of Landis, and thinks he may be due an apology.

BikeBiz gets some highlights from the Hiltzik chat session, and gives us a plug.

Web
LA Times reported Michael Hiltzik had a chat seesion today that many including us attended. Much of it was a rehash of the past few days conversation from DPF. One thing that stood out was confirmation the USADA hearings in May will be public, and that negotiations are now under way to determine how or whether they will be broadcast. Here's an official transcript of the chat, or you can go to one that ORG did the hard way.


Blogs
Velogal made it to the LAT chat with Michael Hiltzik this afternoon and thought that there was some info to be gleaned from the discourse.

Rant is bummed he couldn't get into the LAT chat, but has a link to ORG's transcript, and some questions he'd have liked to have asked. He also plugs us and the FFF Chicago event.

Swany posts that he has sympathized with Floyd's side since the very beginning, and briefly summarizes the case to date making reference to the FFF web site for further information.

The Figurehead does a climb as close as he can get at this time to Alpe D'Huez, and gets help from some famous climbers of the past.

Pommi generally appreciates yesterday's piece "Judging Floyd, Part 1" written by Judge William Hue and David Brower. He objects to some of the political references, and Hue explains in a comment. Steroid Nation also liked the piece very much and thinks it's a great place to start for those who are not familiar with the case.

Bicycle Races are Coming Your Way is VERY pleased to be selling many of his Free Floyd T-shirts, and wants to thank VS for re running the clip of Floyd receiving one of the shirts on last Sunday night's Cyclism Preview. A portion of the proceeds is being donated to the FFF. He kindly thinks that TbV could show people a thing or two when it comes to providing complete Landis coverage.

CaliRado Cyclist reflects that after a strange week in cycling it was rather easy to think of someone who has been as professionally destroyed by cycling as Jan Ullrich.

Medically Challenged writes of a talk by Brent Kay MD before a professional gathering that included a surprise walk-on by one F. Landis. He also objectively discusses what he knows of the case.


Austin King found himself next to Landis for part of a training ride, and got this exclusive interview:

Austin: So how’s the hip doing?
Floyd: The hip’s fine… everything else is fu@$%# though.

Forums
Heated discussion continues on DPF in anticipation of today's on line chat with LAT reporter Michael Hiltzik.

The DPF board has gotten crazy. Supposed "moderator" Rational Head is inflaming people with heavy handed moderation and editing of things he does not personally like, and has banned those who criticise his behavior. VaunTrevi is nowhere to be found, so this may take a while to get resolved. As an example, there is a thread accusing Michael Hiltzik of being a sock puppet, started by one of the loosest cannons on the site. Posts in that thread that criticise the concept, ask it to be merged with the other Hilzik thread, or lock it as inappropriate have been removed from the thread, and edited by third parties with and without acknowledgement. The thread itself remains open, and no one who has made one of the unsubstantiated accusations has been criticised by the moderation in any way.

This is not the first time Rational Head has engaged in unfair, agenda-driven moderation. If it was TBV's forum, his moderation privileges would be removed.

Elsewhere, an actual science discussion has broken out with Marco, Duckstrap, Jimmy and You3 looking at the TE ratio discrepancies between tests. You3 comes up with a new speculative theory about the low-E readings, "split peaks", which he begins investigating. Duckstrap disagree, and thinks it is more likely, "incomplete chromatographic separation in these samples." and wants data he knows that LNDD collected produced to show what happened. This is the same data deBoer asked for at the time of the B sample test.

Waaay over in rec.sports.cricket, some players having problems of their own invites snark about Landis and Mr. Pound, along with some other humor that must be cricket specific. (Cricket is about as easy to follow for beginners as stage racing.)

The legal matters will eventually take care of themselves but in this day and age of washing dirty laundry in public the voyeristic society must also be satisfied. So here are the ten steps to atonement

1. A canning administered by Peter Roebuck. After which at least he will forgive them.
2. An apology to Pakistani public, which may do nothing for the public, but will apparently satisfy Rameez Raja.
3. Never ever bowl a wicket taking delivery to Symonds and Hayden to cancel out the unfair advantage.
4. Stop going to Hakims.
5. Attend a lecture series from Barry Bonds on how to avoid detection, just in case, by using designer drugs.
6. Get Hair as an umpire on their end for the next five hundred overs bowled.
7. Dick Pound gets to nickname Shoaib and Asif like he did Floyd Landis calling him 'roid floyd.
8. Appear on the TV show "Cheaters" where the host shoves a copy of the drug tests in their face asking "Why did you do it?" The faces will be blurred to avoid identification.
9. Verbally carry and deliver Naseem Ashraf and Malcolm Speeds comments to each other.
10. Together with Warne open the, "Antidoping Education Academy for Young Cricketers". No canning will be allowed.

Thought for the Day

In 17th c. Japan, the legal system was more strict and cruel, but at the same time more free wheeling than in America. Execution and compulsory suicide were common punishments, often for trivial offenses. But there were no civil rights, no appeals, no lawyers, no getting off on a technicality—none of the things that complicate our legal system.

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Judging Floyd, Part I

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"

The industrial conglomerate IG Farben synthesized testosterone in the 1940’s. Supporting its patrons, the Nazi government, the first nefarious application was keeping prisoners at Auschwitz working harder and longer day after day, until they could work no more. Later, synthetic testosterone was used to enhance the performance of athletes so that they too, could train and compete longer and harder, day after day.

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When athletes give themselves an unfair competitive advantage by using artificial means, the principals of “fair play” are undermined. Doping became a large challenge facing the sporting world. Sporting authorities developed and instituted compulsory medical testing to detect the presence of substances deemed to subvert fair play.

Professional cyclist Floyd Landis shocked his rivals, the cycling world, and the public by rescuing his 2006 Tour de France championship with his epic and astonishing win at Stage 17 of that race. We were shocked again when Landis’ mandatory post stage urinalysis seemed to reveal an illegal ratio of testosterone to epitestosterone and the illegal presence of exogenous (synthetic) testosterone in his system.

Landis himself seemed shocked by the testing results. After a period of floundering, he gathered himself and his resources to launch his now famous “Wikipedia Defense” to the doping charges.

Landis’ fate will soon be decided in a judicial system created by the Olympic Movement (a body of international sport including the Olympic games and other international competitions like professional cycling). The rules used by the Olympic Movement are applied by a body called the Court of Arbitration for Sport (“CAS”). The process of resolving sports doping cases is an arbitration.

King Solomon was likely the first Arbitrator. Will the Arbitration panel for Landis’ case have Solomon’s wisdom? Will that wisdom require the baby to be cut in half? We’ll know the real answer after the hearing on May 14, 2007, but we should start getting some clues soon with rulings on pre-hearing motions expected shortly.

PRELIMINARY PROCESS

Floyd Landis is a professional cyclist licensed as by USA Cycling, the national governing body for bicycle racing in the in the United States of America. On being informed by the UCI that Landis’ tests indicated rules violations, USA Cycling, in standard practice, transferred the case to the United States Anti-Doping Agency (USADA), the national anti-doping organization for the Olympic movement in the United States.

At that point, per protocol, USADA’s Chief Executive Officer appointed a three person Review Board from a review panel with members serving two-year terms. Landis’ Review Board, like all others, was required to have medical, technical and legal knowledge of anti-doping matters so that it had the expertise to independently review the laboratory documentation and any additional information which USADA deemed appropriate along with Landis’ response. The review panel members are independent from USADA although they are selected by USADA’s Board of Directors and are paid for their services by USADA.

Despite acceptance of a response from the accused athlete, the process before the Review Board is not a "hearing” as most people would understand. It only considers the written submittals and has a limited mandate

Landis’ name was not provided to the Review Board by USADA and his identity was redacted from all documentation. He was allowed to protect his identity by responding anonymously through an Athlete Ombudsman.

Instead, Landis responded directly, and filed a 12 page response urging dismissal on September 11, 2006, calling the anonymity of the process a “charade” as the case was notorious and well known. The response asserted:

• The T/E charge is unsupported by a longitudinal study, required by the reporting protocol, so there is no T/E case to progress;
• The carbon isotope ratio test conducted on Landis’ stage 17 urine samples did not show a positive result according to the WADA protocols

At the time of the filing of the formal response, Landis also made a press release summarizing the points above, but absent much detail present in the filing.

Meeting by teleconference on September 18, 2006, the Review Board unanimously concluded that there “was sufficient evidence of doping to proceed with the adjudication process as set forth in USADA’s Protocol for Olympic Movement Testing”. That determination constituted USADA’s decision to prosecute Landis and set in motion the CAS procedure for adjudicating the issues in the case.

This decision of the Review Board did not include any reasoning, and in particular did not address any of the specifics in the Landis response. It seems incorrect to say they rejected his motion – it probably was not fully considered.

This experience brings to light confusing views about the purpose of the Review Board. Landis had hoped to have his case dismissed at this level, however, his hope seems to have over-reached the possibilities of the procedure at that point. One reading of the charter would hold the Review Board does have the scope to consider such motions on merit. The other view is that the board acts similar to an independent magistrate in U.S. criminal courts, assessing probable cause rather then weighing the merits of each side’s arguments or positions.

In the Landis case, we see the board acted according to the second interpretation, but we do not know if all boards act this way. The review board seems to be a buffer between the USADA and the prosecution of a case. Panels have a doctor, a lawyer, and a technician with knowledge of the anti-doping system. They don’t make policy nor carry it out. They look for probable cause and let the arbitrator judges resolve disputes of fact.

When should they act? Suppose there is an American licensed cyclist named Guido Trenti, and there is an Italian licensed cyclist with the same name. If the Italian’s results were sent to USADA and the American submitted proof of that fact or that the documentation numbers were mixed up, the Review Board could act to dismiss the case. Another way in which the Review board might dismiss a case at this stage might be to resolve a therapeutic use exemption (TUE), though it may have been dealt with previously. The Review Board is supposed to notice things like this and recommend dismissal.

We think that Landis’ motion to dismiss did not seriously dispute the sorts of things the Board is likely to address even in the most limited view of its role: That he was the athlete at issue, that his sample was the one analyzed by the lab, or that the alleged violations were actually prohibited.

Landis’ other arguments were and are legitimate, but they are for the arbitrators to decide, as they can interpret policy and facts. The Review Board probably shouldn’t do that. With that understanding, we think the Review Board should seldom stop a prosecution, because there must be some technical reasons present to justify that action.

This becomes curious when we see that the vast majority of "adverse analytical findings" (AAFs) do NOT leave with a recommendation to proceed. In 2005, the UCLA laboratory reported 528 AAFs, but only 31 became cases with USADA, so there must be some major filtering, somewhere. We do not know the criteria, even statistically, as cases closed at these levels are kept confidential. We don’t know where, or why they vanished. The only “filtering” place mentioned in the protocol is the Review Board, so it’s reasonable to wonder what accounts for the discrepancy.

Given the difference in numbers, it’s hard to blame Landis for trying to have the Review Board dismiss his case. Perhaps it may have done so with a less visible case, but under the actual circumstances, if they had, they would be seen too obviously expanding their role.

As the protocol explicitly says that the Review Board is NOT a hearing, it does not fall under the Commercial-Supplementary Procedure Rules utilized under CAS-AAA for arbitration hearing. Therefore, it did not need to make written findings as required by those rules.

The time and place to consider and respond to argument is at hearing (or trial in a judicial case), by the arbitration tribunal, as a fact finder and also as an arm of policy, whatever they determine policy to be, how they may emphasize policy and however they choose to apply it. For example, the panel selected to hear the Landis case is at least considering ordering additional testing performed on Landis’ “B” samples. To do so they must find some general authority through anti-doping policy or some explicit authority within the written Procedures, which we have been unable to find, thus far. One of the current panel members, Christopher Campbell, has asserted that certain requirements such as peer review and proof of the practical elimination of false positives must be required by the panel in order to find validity in medical testing. That view, to which no other panel member has ever joined, adopts a policy having no prior precedent. The Review Board has no such authority.

After the Review Board did not respond as hoped, Landis seized that moment to counter-attack. He began trying to turn the tide of public opinion, to that point very much against him, by highlighting facts calling into question the legitimacy of the laboratory’s conclusions.

On October 12, Landis publicly released the full Review Board submission, the 370 page Laboratory Documentation Package that had been provided to him, and a slide show attacking the credibility of the results. The slide show contained additional arguments not made in the ADRB submission, identifying other problems, such as mismatched sample numbers and inconsistencies in various numeric results. He also began discussing the case in media interviews, online publicly at the Daily Peloton Forums, and later in person at “Town Hall” meetings under the auspices of a defense fund set up in his behalf.

The war had begun in earnest.

Next time: The arbitrators are selected and the discovery process begins.

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

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Monday Roundup

News
The CyclingNews posts a summary of the Landis appearances at last weeks' ToC with modest amounts of snarky attitude. It mentions the fund raiser for Davis Phinney that Landis attended where a Tour de France bike of Landis's was donated. Landis did make several interesting comments at that event, a BMC function he attended with old friend and former Phonak team owner Andy Rihs :

Landis did concede that being at the race as a spectator was not easy for him. "I don't enjoy being at a bike race when I can't race! I'm a cycling fan but it is painful to not race. What matters is the system needs to be changed so that this doesn't happen again. I'm not saying that everyone in the past has been innocent or guilty, I don't know. But one thing is for sure, if the guy that wins the Tour can't come up with the resources to even fight the case then there is no chance for anybody."

Landis' presence at this event, which was primarily organised as a team presentation for the new BMC team, did make sense due to his long standing friendship with BMC owner Andy Rihs. However, there was a little speculation in the air of whether this was an indication of a team for Landis to make a return to professional cycling. "I have no plans right now," Landis chuckled. "Andy is my friend and has supported me from the beginning. He is wonderful for this sport and the way he was treated by the UCI was despicable. That friendship will never change and that is why I am here. Every day right now is focused on fixing the problem."

Sportingo runs a revised version of Rant's piece questioning the UCI's new anti-doping programme.

Blogs
Racejunkie writes about last evening's Cyclism Sunday Preview on VS. He mainly concentrates on what he perceives to be the shortcomings of Al Trautwig, but also appreciates what he calls the "Landis Propaganda Hour". To elaborate further, the Landis case was covered with a re run of his interview done for VS's ToC coverage. The interview had originally been done at the FFF event in Brooklyn. It contained a small amount of additional footage in which Floyd mentions the science of his case and its availability on the web. He also comments on his hip resurfacing, and his enthusiasm about getting back into competition. Other than Trautwig the hosts of the program included Bob Roll, Paul Sherwen, and Floyd's coach Robbie Ventura, who were then asked to comment on the Landis case. All of them expressed varying degrees of support for Landis, citing slightly different reasons for that support. In a separate piece later in the program Pat McQuaid comments on the impending UCI anti doping program. McQuaid notes its' expense to the organization and the fact that it will be the most extensive program of its kind in the world of sports making cycling the pioneer in the fight against PEDs. McQuaid also briefly touches on the UCI vs ASO dispute citing the fact that it's all about who gets the money.

Rant gently vents on those who attack the messenger, in this case those who are attempting to savage Michael Hiltzik on DPF.

Tyler at SmithFamilyWeb.org has at least six things to be happy about, one of them is Floyd Landis' innocence.

Learningtolovela thought that Floyd looked dapper at the last stage of the ToC last Sunday. She notices that the Peter Gunn theme is appropriately played while Floyd walked into her field of view with his "supervisors".

c'Dude went for a ride in the Wisconsin snow using Floyd Landis as a distraction to help with the really tough parts.

Amy's Running Life puts up the Landis at ToC pix she promised earlier.


Forums
On the Daily Peloton Forums discussion/analysis continues with Michael Hiltzik in anticipation of tomorrow's on line chat with the Pulitzer Prize winning reporter. He is being pretty brutally attacked by people who don't like what he is saying, and he's been quite competent at defending his facts and objectivity.

Thought for the Day

The first problem with defending or rejecting a judicial result based on a technicality is that “technicality” doesn’t have a very specific meaning. It’s sometimes used rhetorically to argue that one’s opponent is relying on the letter but not the spirit of the law, or that a theory advocates some result that appears to be outside the law’s purpose, even if it’s within the law’s mandate.

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Sunday Roundup

News
Scott Ostler of the San Francisco Chronicle thinks that Marie Curie may be spinning.


Blogs
Steroid Nation appreciates the support of Landis by Phil Liggett, especially considering the stance Liggett has taken against PEDs in cycling.

Competitive Cyclist at some point ran a loonnng piece about the Brooklyn FFF event that we haven't seen before. They think Landis has a future in politics. We rate a tiny mention all the way at the end.


Thought for the Day

[On] public grousing about defendants getting off on a technicality."Many times, this 'technicality' is the U.S. Constitution. Prosecutors charge people on technicalities all the time, but this word would never be used to describe their tactics."

link

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Saturday Roundup

News
The Sunday Herald prints an interesting look into genetically engineered muscle growth , drugs testing and how it can be fairly applied, and heroes with feet of clay:

Gene doping will only complicate matters further since it will not even be detectable. And if it all comes down to a question of ethics then is boosting muscle bulk or endurance through whatever means, really that far removed to an international archer having corrective eye surgery to improve their vision?

There are no easy answers, just uncomfortable debates. And while I'd love a world where all the column inches were dedicated to inspirational figures, such as Tanni Grey-Thompson, there are still many would-be heroes who prove to have feet of clay: Justin Gatlin, Dwain Chambers and Floyd Landis to name just a high-profile trio.

The AJC.com's Terence Moore writes about the recent steroid lab discovery, its' far reaching effects on many athletes, and the fact that athletes have been cheating for centuries. He includes Floyd Landis in that category.

Florida Today writer Peter Kerasotis got an award for columns including one about Landis, which appears to be "Thanks, Floyd, for robbing us of our 'natural' look at heros," beginning:

Floyd Landis, we hardly knew you. Unfortunately, though, we did. We knew you for one brief shining moment, a Tour de France win that now has a dark shadow of guilt cast over it. Your envelope addressed to glory has been stamped, "Return To Sender. Conscience Unknown." So we bid you goodbye and good riddance today. Don't let the revolving door of fame hit you on the way out. Just once, wouldn't...

Followed by a "BUY" button for the rest of the article. Thanks, but we'll pass.

Blogs
Rant discusses a new anti doping program that may be instituted by the UCI. Though there is no Landis content per se, if implemented it will impact Pro Tour riders and thus may effect Landis at some point pending the outcome of his hearing in May. This program has been cooked up in the dark by the UCI, without apparent participation by any of those affected -- riders, teams, or organizers.

Amy's Running Life tells us that Amy got to see the last stage of the ToC where she met Floyd. She wants to know about those sunglasses of his, and promises pictures later.

Steroid Nation appreciates yesterday's Independent UK article and cites some of the more pertinent features of the piece.

Herneweb applauds Phil Liggett's support of Floyd Landis.

My Mobile Blog posts that he will be riding with Floyd Landis tomorrow in the San Diego,CA area. He looks forward to meeting Floyd and getting to know him. This appears to bMatt Shriver at the Jittery Joe's training camp.

Forums
Over at the Daily Peloton Forums Michael Hiltzik of the LA Times announces an online Q&A chat scheduled for Tuesday March 6th from 10:00AM to 11:30AM Pacific time on the LAT web site:

As the LA Times reporter who has written extensively about the Landis case and USADA/WADA, and in the hope that I'm not violating a forum rule, I'd like to let everyone know that I'll be doing an online Q&A on the latimes.com website this Tuesday, March 6, from 10 am to 11:30 am Pacific time. I hope I can expand on and illuminate some of the issues and questions that have been aired in this forum, including the CIRMS issues and the USADA retesting request. All are welcome to participate. URL is chat.latimes.com, then navigate to Sports Chat. Hope to hear from you all.....

The announcement today has generated no small amount of discussion, so the chat itself should be a lively one.


Thought for the Day

My experience is that people & organizations tend to label facts they don’t like as “technicalities” so as to make those inconvenient facts seem insignificant and unimportant.

link

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On "A Technicality"

When I started this post, I did a search for "getting off on a technicality" in google. At the time, two of the top four entries were about the Landis case. It may not be that way now, but it won't take too many pages of results to find some references.

A comment here raised the relevant question.

I am quite perplexed by the continuous use of the word "technicality" to describe a potential outcome of Floyd's case. Any one of the current mistakes by the LNDD should have rendered the case over before it began. To trivialize these mistakes as being mere technicalities makes me wonder what isn't considered a technicality. As in, why bother creating the rules and procedures, if you are not going to follow them?

What is "a technicality?" Is it something meaningful, or meaningless?

It depends on who is using the word, and why.

[more]

Many people who are inclined to think he's guilty believe arguing about the process and science of the testing is a meaningless "technicality", and fret over the prospect that Landis could "get off" because of something like that. They know he's guilty, and he should be punished.

On the other hand, those who think him innocent are also wary of Landis "getting off on a technicality", even if it is an important one, because that will leave him unredeemed and smeared in the minds of those in the first group.

"Getting off on a technicality" is a code phrase in that usually means, "those guys have too many rights."

It isn't used when it is your guy who wins, you call it a "clear vindication." For a recent example of this, see SCA vs Armstrong.


Types of Technicalities

I haven't found a legal dictionary with a definition of "a technicality" because it's not a legal term, it just gets thrown around looking at legal processes and results.

As a guide, we're going to explore some different types.

One "technicality" is lack of a crime, as when a Perry Mason calls the "victim" to the stand, refuting the charge that his client murdered him. Or, in Landis' case, that there is no positive drug test, which is the major premise of the defense we've seen.

This is similar too, but different than an, identity problem, where the accused didn't do what is charged, demonstrated by Mason's extracting a confession from someone else at the trial. In Landis' case, this might be proving it wasn't his urine that was tested. While there have been questions raised about this, it is not yet clear how important this might be to the defense.

Another "technicality" is a substantive problem that raises questions about the correctness of some factual conclusion being used in evidence. TBV would say that things that affect test findings, such as details of how tests were carried out or interpreted are substantive technicalities.

If your worldview is that doping is a scourge, you are inclined to believe the specialists who run the labs, and disbelieve quibbling about "technicalities" that might call the substance of the results into question.

The last are procedural problems. These are issues where there was something in the process that either violate the rights of an accused in a prejudicial manner or raise question about the impartiality of the process in a prejudicial way. Depending on the legal system, the recourse to violation of a procedural problem varies. In American criminal law, among the remedies for a such a violation are exclusion of evidence, or dismissal of charges. These are the sorts of things that infuriate critics who believe criminals are escaping justice by, "getting off on a technicality"

If your worldview is based on ideas of equal protection, due process and individual rights, you are inclined to take these issues seriously. Here, there are also significant cultural issues between countries based on Common Law and those based on the Napoleonic Code.



The Landis case show how these problems mix together in various ways. The defense claim of no crime is based on what it presents as substantive problems.

The arguments for substantive problems include procedural problems. The issues of identity problems have not really been offered to say they aren't Landis's results, but to demonstrate procedural problems that may rise in aggregate to the level of a substantive problem in the reported test conclusions.

Many of Landis' arguments that there are substantive problems invalidating the claim there was a crime will appear to some viewers as trivial procedural problems, which are, to them, meaningless technicalities. To other viewers, these issues may completely impeach the credibility of the prosecution case.


Technicalities and Anti-Doping

The Anti-doping enforcement system is intentionally set up to seriously reduce the effect of procedural problems. It is aligned with the idea of a "harmless error", ignoring procedural problems unless they rises to the level of provably substantive problem. This is so frequent, it is news when procedural problems are not ignored.

A rare example of this is Landaluce, who "got off" because the same people worked on both the A and B sample tests. This was seen as clearly against the rules, and the defense did not need to show that this actually compromised the results. It was surprising because it was the sort of error that is often dismissed, even though it is like a student grading his own exam.


Substantive Problems and Anti-Doping

Substantive problems are also treated skeptically by the system. For example, the Landaluce defense made a number of substantive arguments which were dismissed by the panel, not because they were untrue, but because the panel was unwilling to consider them. For each issue, they decided there were conflicting experts, and unless the prosecution expert recanted his position, they were going to accept it no matter what the defense expert said.

In another case, the arbitrators blandly accepted an assertion that a sample left at room temperature 3 weeks trapped in customs would not have been degraded, and the results were valid.


Pursuit of many deep substantive problems is explicitly discouraged by the anti-doping rules. The athletes is denied the ability to seriously challenge the basis of the science underlying a test, or how the test is to be done. These methods are taken as correct, and not subject for review in the process of the case.

In simplified terms, you don't get to challenge whether a dunking determines if you are a witch.

You may be allowed to argue that the pivot point of your dunking stool was improperly greased, which is why you didn't sink.

It is not clear if you are allowed to argue that you were sinking, but the stool operator stopped the test and declared you were floating.

If the test protocol doesn't say how much grease there should be, or how long the test should take, or what constitutes "floating", it is possible for the process to say the methods were within the tester's discretion, and we trust him, so you're a witch.

These restrictions seriously hinder a defense, and oblige it to pursue paths that can make little sense to the public, and appear as "trivial technicalities." They want to hear you say, "there are no witches", or "dunking is an invalid method for determining if you are a witch". They don't expect you to be arguing about the amount of grease or how long you were given to sink. Thus, all these arguments come off as you sounding like someone with tricksy lawyers.

In balance, under the Anti-doping system one is more likely to be convicted on a procedural or substantive technicality than found innocent. The system itself realizes this, as demonstrated in the case of Zach Lund, where the ruling asserted he'd been badly served by the system, but banned him anyway, because the rules allowed no other outcome.

Nevertheless, with Landaluce we see the image of a "guilty" athlete "getting off on a technicality", which suits the agenda of the agencies.


The Point of Absurdity

One result of this system is that the procedural "technicality" that may win the case appears to the public to be nonsensical. We see with Landaluce that some procedural details can be considered important, and a defense may be wise to focus on them rather than rather than the truly substantive matters that can't be considered effectively by the process. Because the system is set up to ignore your substantive arguments anyway.

That is, it may be more effective to argue the Witchfinder said the wrong incantation, or had the holy book oriented in the wrong direction, than it is to say, "there are no witches, dunking doesn't prove anything, I sank anyway, even though the stool was wedged not to sink."

And should you be released on the "technicality" of incorrect incantation, many of your neighbors will think you're a witch anyway.

Since the system allows little opportunity to show the prosecution is, well, wrong, a defense is cornered into arguing "technicalities". Even if the athlete wins, the prosecution side can say he was "guilty" and leave the reputation damaged. The system has designed out the possibility of a true exoneration. The athlete is guilty when accused, and can only escape on a "technicality".

This is a system Franz Kafka could have designed.


Conclusion

Given the structure of the process, there are procedural arguments that have to be made by a defense. They may seem silly to Susie Soccer Mom and Joe Sixpack, but may turn the result one way or another. It would be legal malpractice not to make them. Observers should not interpret their presence in a defense argument as tricky lawyering or weaseling.

Yet everywhere we turn in the Landis case, subtle matters of interpretation appear, and each of these turns on a "technicality."

It would be so much easier for everyone if the meaning of "metabolite(s)" was not an issue. If all the test results were at clearly obvious levels one way or another, we'd be done by now. But that is not the case, we're in a "technical" area. Is finding out what "metabolite(s)" means an improper questioning of the test science? If the rule for evaluation is badly written and ambiguous, who should get the benefit of the doubt, the agency or the athlete?

When the outcome of a case depends so strongly on interpretations, and where the burden of proof lies, it is difficult to make a claim that any result will be clear and convincing. We may get a resolution, but no real answers.

It is possible the actual merits of Landis' guilt or innocence will not be determined by the process. The scientific, substantively gray areas may not be considered or satisfactorily resolved. This can happen if there are procedural problems on which the case may be decided, or if the evaluation of the substantive problems is short-circuited by a literal presumption of correctness to which challenges are not entertained.

If that is what happens, whichever side loses will have proponents that claim the reason was a "technicality", and not a matter of "substance", and that everyone else should imply exactly the opposite of the resolution.

All we can hope for is enough visibility into the arguments and process that the public will have the chance to make informed judgments about the quality and credibility of the result. The document releases Landis has given us a better view of the process, and an open hearing promises to give us even more. We should all be looking at the bigger picture of what the process and result will say about the current anti-doping system.

The "making it work" analysis we mentioned in For Legally Inclined Readers is a good starting point. We'll soon start our own series discussing issues raised in that paper as applied to the Landis case.

[end]

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Friday Roundup

News
The Independant (UK) has an excellent, long, story about the Landis case. Some snips:

Seven months ago Landis was hardly best placed to handle one of the sport's highest-profile doping cases. Compare him to Lance Armstrong, seven-times a Tour winner and a sharply spoken urbanite from downtown Dallas, who was subject to numerous accusations during his career. In Landis's place the Texan would have relished the struggle with the media sharks, while Landis had always given the impression of being a slightly goofy, amiable, kid from a rural backwater. And when his world caved in last July, he initially floundered.

Underneath his apparently bumbling exterior, however, lurks another creature altogether: stubborn, deter-mined to get his own way whatever the odds against him [ . . .]

Now Landis is fighting back again - and has achieved something not even Armstrong managed. Somehow, the Pennsylvania country boy has turned what looked like an open-and-shut case into a defence of athletes' rights against the anti-doping establishment. [ . . . ]

Regardless of the opinion of the man on the street, Landis' case highlights the urgent need for a united, coherent approach against drugs in sport. But the devil, for Landis, is in the detail. Or as he puts it: "Fighting doping is one of the most important fights going on in sports right now. Doping is cheating. But it's also too easy to look at the sport from the outside and say that everyone is cheating. That's a cop out. My concern for professional cycling is that the current approach to testing and enforcement isn't fair to athletes and, in their rush to catch accused dopers, the governing bodies and anti-doping organisations don't play by the rules." [. . .]

The cynical will say that half a million dollars, let alone two million, will buy you a very good smokescreen - and this could be all Landis is trying to create. How he can know that documents withheld by the USADA are "crucial" for clearing his name, for example, if his lawyers haven't seen them yet?

But by fighting the anti-doping authorities so hard and spreading the word that he is innocent so enthusiastically, Landis has managed something no other athlete has achieved. He has brought anti-doping procedures under the closest scrutiny to which they have yet been subjected, by the people they affect most closely: the athletes themselves. If he succeeds in clearing his name, that procedure will be in store for a major overhaul. For that reason, Landis deserves a fair hearing. Whether he will get one could be another story.

World Magazine Weekly News and Christian Views (subscription) posts that, while Landis is applying the same determination he exhibited during the Tour de France last summer in his fight for vindication from doping charges, he may still "get off on a technicality."

PezCycling News "What's Cool in Pro Cycling" mentions that some riders are adopting the "praying mantis" position for their time trialing. A lot of places are calling it the "mantis" now, when last year, they were all calling it the "Praying Landis." Did something happen to make the original name unfashionable?

Blogs
Rant summarizes the muddled state of the case, and notes whose opinion is going to matter: Arbitrator Patrice Brunet.

CrystalZenMud, briefly an attorney, does a three part review of parts of the WADA code compared to its predecessor from the IOC, and notes some flaws. We agree with many of his complaints, but think others are misguided -- some of the things he wishes were directly in The Code about laboratories are there by reference to the ISL (or SIL if you prefer) and the ISO 17025 accreditation. Don't start us on flaws in the ISL, but they are not flaws in The Code, per se.

Update: TBV has the power -- after bitching about the color scheme and font sizes here, much of it is fixed.

Pommi passes on that Sara Best of DP is doing a profile of Oscar Pereiro and wants to portray him a "Oscar the bike rider" . Included are conciliatory comments from Pereiro about Floyd Landis which are softer than some statements made in the past.

The Daily Rhythm is all "wikied out" but has enough energy left to make a couple of snarky comments about Floyd Landis.

Agent Moody doesn't know if he's guilty, but he is a nice guy.

Steel Kisses voices support and passes on the letter from Saris' Chris Fortune.

SciFiTwin thinks "irony" is fickle, but it might be more a "coincidence". Tom Fine can probably correct the usage.

Forums
At DPF, newcomer Don Sowell conducts a lengthy, if late, dissection of Tygart's DP interview, in which he makes many of the points we discuss in On "A Technicality" today. It must be spring, when a man's thoughts turn to the fairness of legal process. In outline form, with supporting citations omitted here, Sowell argues that Tygart demonstrates:

1) Those opposing the USADA's processes are all cheaters and evil
a. Failure to believe that reasonable people without ulterior motives could disagree with the USADA/WADA processes
b. Belief that litigating cases is an evil act that denies money to clean athletes

2) Disconnects from the realities
a. Disconnect in the search for truth and the winning streak and unjust punishments
b. "Free" process disconnect
c. The formation of the arbitrator pool

3) Absolutism
a. Failure to respect what athletes should fear
b. Zero concern for what a clean athlete would want in the process
c. Belief that the system is 100% right 100% of the time

Thought for the Day

Who knows how far Einstein could have gone if he hadn't been a dropout?
-bf-

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Thursday Roundup

Flashback of the Day

Quien es mas macho? Dale Earnhardt Jr. o Floyd Landis?

Floyd es mucho mas macho!

(link)


News
NY Times' George Vecsey puffs WADA/USADA in the steroid ring bust, doing it for the "young athletes whose names will never be in the headlies", not the millionaire celebrities like Bonds and Landis.

VeloNews passes on a press release that will give Landis a training goal for after Leadville: A Million dollar 3-stage race in November in Abu Dhabi, with a flat stage, a mountain bike stage, and an ITT. Taking that prize would put a dent in the pile of bills.

USAToday provides an interesting timeline on performance enhancing drug use and the athlete. In many cases the piece briefly mentions the consequences of the drug use.

Blogs
Pommi is amazed that TbV has located a Landis twin! And posts about recent (and future) FFF events.

Rant provides some short takes covering lots of ground on various topics, then touches on the new BALCO, Signature Pharmacy, with a pointer to Steroid Nation's coverage. TBV is not going to follow it further unless there is some specific Landis connection.

The Dougloid Papers think that the Landis case had been the cycling equivalent of the Salem Witch Trials.

The First 100 Miles posts a picture of DP's Cathy Mehl and a lucky unidentified fan.

Bitchkittie was in Disney World and missed the ToC , but she has some dreams coming true for some of her favorite cyclists (who have been given Disneyesque names).

Veloguy posts some of his pictures from the recently completed ToC and includes one of Floyd Landis.

Neo, now played by Floyd Landis, acquires a posse of fellow suit wearing Blackberry users at the Tour of California. We learn that the test suffers interference with the matrix, and the glitch goes unacknowledged by the agents. The public at large begins to suspect something strange is happening, leading to a showdown hearing. Trinity (Amber Basile) watches his back and provides love interest. Rated PG-13, release scheduled for May 14.

Mira Sweety posts that the test for synthetic testosterone is highly accurate, and summarizes some things gone over here in the past from the Landis case with a few of the usual suspects referenced. The original article is taken from bodyandhealthcanada.com; and is from August 3rd, when the test was "infallible" and before the complexities started to come out.

The PowerTapGeek pumps the PowerPoint.

Forums
DP forums had an outage, but is back. It had a "database error" message.

IPB WARNING [2] mysql_connect() [function.mysql-connect]: Too many connections (Line: 131 of /ips_kernel/class_db_mysql.php)

SQL error: Too many connections
SQL error code:
Date: Thursday 01st of March 2007 05:34:07 PM

Mysql shows true form.


Thought for the Day

I never made a mistake in my life; at least, never one that I couldn't explain away afterwards.

-rk-

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