Wednesday, May 14, 2008

Wednesday Roundup

The NY Times reports that federal prosecutors "cured" their original indictments against Barry Bond and refiled the case yesterday charging him with 14 counts of making false statements under oath that he did not use PEDS.

ESPN says that former Olympics skier Hans Knauss sued and then recieved a settlement from Ultimate Nutrition Inc for selling supplements tainted with illegal steroids which ultimately caused him to miss the 2006 Olympics. At the time the International Ski Federation had reduced his suspension, but the CAS had turned down his appeal. He was represented by former Landis lawyer Howard Jacobs.

At Rant, Bill Hue points out the CAS rule relevant to expenses:

WADA’s request for “contribution”, should it prevail, derives from the CAS Code as follows:
“R64.5 The arbitral award shall determine which party shall bear the arbitration costs or in which proportion the parties shall share them. As a general rule, the award shall grant the prevailing party a contribution towards its legal fees and other expenses incurred in connection with the proceedings and, in particular, the costs of witnesses and interpreters. When granting such contribution, the Panel shall take into account the outcome of the proceedings, as well as the conduct and the financial resources of the parties.”

Outcome: we'll see, maybe a foregone conclusion; Conduct: Misstatements and changing story by USADA over the entire course vs. bombast by Landis. No clear winner there. Financial resources: International agencies vs. near bankrupt individual. We unconfidently predict parties to bear their own costs.

Just a couple of additional notes from Bill Hue, in case anyone is interested. Here is a link (you can cut and paste or click on) to a case where a CAS arbitrator went through CAS Rule 64.5 and awarded an athlete prevailing in a CAS Appeal $9500 in attorney fees from the Guam Olympic Committee. This opinion is an outstanding example of the method a judicial officer utilizes in analyzing a rule, researching/citing precedent and applying a specific fact set to the rule resulting in a reasoned conclusion concerning application of "law" to "fact" explaining his reasoning and decision in a way any reader can understand. It is quite elegant, in my opinion.

Here is CAS R59 as it relates to awards not being subject to further appeal absent domicile in Switzerland, the methodology of "announcing" and "publishing" the award and an articulated 4 month limitation from the date of Appeal filing for the Panel to render its award. Landis filed his appeal on or about November 21, 2007.

"R59 Award The award shall be rendered by a majority decision, or in the absence of a majority, by the President alone. It shall be written, dated and signed. The award shall state brief reasons. The signature of the President shall suffice. Before the award is signed, it shall be transmitted to the CAS Secretary General who may make rectifications of pure form and may also draw the attention of the Panel to fundamental issues of principle.The Panel may decide to communicate the operative part of the award to the parties, prior to the reasons. The award shall be enforceable from such written communication.

The award, notified by the CAS Court Office, shall be final and binding upon the parties. It may not be challenged by way of an action for setting aside to the extent that the parties have no domicile, habitual residence, or business establishment in Switzerland and that they have expressly excluded all setting aside proceedings in the arbitration agreement or in an agreement entered into subsequently, in particular at the outset of the arbitration.

The operative part of the award shall be communicated to the parties within four months after the filing of the statement of appeal. Such time limit may be extended by the President of the Appeals Arbitration Division upon a reasoned request from the President of the Panel.The award, a summary and/or a press release setting forth the results of the proceedings shall be made public by the CAS, unless both parties agree that they should remain confidential."

WADAwatch argues

WADA is bankrupting (In our opinion, at least morally, if not financially) itself, NOT to prove Landis doped.

It is draining its litigation account (the legality of which remains to be determined, as WADAwatch argued in its Revised Amicus Brief from early April) for one simple reason:

WADA is fighting to prove itself NOT GUILTY - in our neutral opinion, of permitting tortious laboratory malfeasance, of committing gross ethics violations by itself (through former president Dick Pound) and its French laboratory, and of submitting and enforcing: incredibly, poorly, Machiavellianly, its biased drafting (not once but twice) of the WADA CODE.

WW goes on:

WADA has, through its CODE redrafting exercise, offered NO legitimate assurance (as of yet) to these Athletes, OVER NINETY-FIVE (95) per cent of which have never failed a doping control (when the evidence is sourced from a WADA-accredited laboratory), that the proper test was properly performed at EVERY WADA lab, with a standardized methodology, harmonized criteria, and, penultimately: uniform and ETHICAL results management.

And goes back to the "Quigly Rule", which appears to be getting lost:

Time and again, WADA expounds its preferences for 'judicial interpretation' (this means that any private Arbitration panel can 'add' to what a WADA CODE Article stands for; it betrays the faith in its Signatory IFs who pay WADA their contributions in the belief that WADA stands for the words in its FUNDAMENTAL RATIONALE) rather than proper, strict and FAIR drafting of an Universal CODE that provides a basis to stop bad Science from distortions of the truth regarding the infinite variables found in the physiologies of extremely hard-pushing Athletes.

"Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years by a small group of insiders." [Ww: emphasis added] (CAS: USA Shooting & Quigley v. UIT, 1995 (CAS 94/129))


This is exactly what WADA HAS ACHIEVED.

In conclusion, WW prays for relief:

CAS, one hopes, will rise to this occasion and return a verdict of not-guilty against Landis, castigate WADA severely for its financial intervention of the USADA appeal, introduce a ruling that forces WADA to redraft its CODE in an emergency session prior to July 31st, and suspend the French Laboratory LNDD prior to the running of this year's Tour de France.

We will not hold our breath. There is too much invested in preserving the status-quo through The Games in August.


Laura Challoner, DVM said...
This comment has been removed by the author.
Eightzero said...

There's a farily Machiavellian twist here as well. The real question may be whether or not WADA can have its cake and eat it too. WADA's latest whining about cost might indicate that it is willing to make FL the sacrifical lamb: "Look at how much it cost us to do this. We need moe funding so this doesn't happen again. See how easy it is for someone to get off on a technicality when WADA labs aren't properly funded?"

Ww might be on to something. It's indeed The Games, but it's The Money that The Games are about. WADA is hedging its bet here to make sure they win even if they lose at the CAS. The real status quo to preserve is about Money.

Rosemary said...

My husband's coworker is looking to buy a home for 1.3 million (not that impressive since we're in SoCal). He keeps thinking about it and says... "1.3 million" and I respond... "Poor Floyd. The nerve of WADA!!!"

At some point, my husband is going to stop saying "1.3 million" out loud and I'm going to realize he's talking about something else. But really..."Some nerve!"