Thursday, October 16, 2008

Updates in Fed Case

In Landis v USADA, CV 08-06330 PA (CWx), the Pacer report of the Docket has a few more items, and a change to the schedule.

The first hearing now appears to be on November 24th.

Item 17 is the properly formatted and amended complaint, and item 18 is the supporting documents.

Both are now in the archive and available for free.

UPDATE: exhibits now added back as item 19, but not (yet) archived. As before, if anyone can correlated the entries to the pre-existing archives so that we don't have redundant copies, that would be great.

10/16/200815 NOTICE Notice of Refiling of Amended Motion to Vacate Arbitral Award and Supporting Documents, and Request to Exceed Page Limits filed by Petitioner Floyd Landis. (Worthington, Roger) (Entered: 10/16/2008)
10/16/200816 NOTICE OF LODGING filed re Notice (Other) 15 (Attachments: # 1 Proposed Order Order Granting Request to Exceed Page Limists)(Worthington, Roger) (Entered: 10/16/2008)
10/16/200817 Amendment to MOTION to Vacate 1 Amended Motion to Vacate Arbitration Award filed by Petitioner Floyd Landis. (Worthington, Roger) (Entered: 10/16/2008)

Free copy in the archive.
10/16/200818 MEMORANDUM in Support of Document Number 17-Amended Motion to Vacate Arbitration Award filed on 10.16.08 filed by Petitioner Floyd Landis. (Worthington, Roger) (Entered: 10/16/2008)

Free copy in the archive

Exhibit A is the "New York Convention", and Exhibit B is the argument made by USOC in Gatlin that the NYC applies to sports arbitration.
10/16/200819 EXHIBIT Exhibits 1-62 to MOTION to Vacate 1 Exhibits 1-62 to Amended Motion to Vacate -10.16.08 filed by Petitioner Floyd Landis. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 - 1of16, # 3 Exhibit 2-2of16, # 4 Exhibit 3-3of16, # 5 Exhibit 2-4of16, # 6 Exhibit 2-5of16, # 7 Exhibit 2-6of16, # 8 Exhibit 2-7of16, # 9 Exhibit 2-8of16, # 10 Exhibit 2-9of16, # 11 Exhibit 2-10of16, # 12 Exhibit 2-11of16, # 13 Exhibit 2-12of16, # 14 Exhibit 2-13of16, # 15 Exhibit 2-14of16, # 16 Exhibit 2-15of16, # 17 Exhibit 2-16of16, # 18 Exhibit 3-1of2, # 19 Exhibit 3-2of2, # 20 Exhibit 4, # 21 Exhibit 5, # 22 Exhibit 6, # 23 Exhibit 7-1of4, # 24 Exhibit 7-2of4, # 25 Exhibit 7-3of4, # 26 Exhibit 7-4of4, # 27 Exhibit 8, # 28 Exhibit 9, # 29 Exhibit 10, # 30 Exhibit 11, # 31 Exhibit 12-1of3, # 32 Exhibit 12-2of3, # 33 Exhibit 12-3of3, # 34 Exhibit 13, # 35 Exhibit 14, # 36 Exhibit 15, # 37 Exhibit 16, # 38 Exhibit 17, # 39 Exhibit 18, # 40 Exhibit 19, # 41 Exhibit 20, # 42 Exhibit 21, # 43 Exhibit 22, # 44 Exhibit 23, # 45 Exhibit 24, # 46 Exhibit 25, # 47 Exhibit 26, # 48 Exhibit 27, # 49 Exhibit 28, # 50 Exhibit 29, # 51 Exhibit 30, # 52 Exhibit 31, # 53 Exhibit 32, # 54 Exhibit 33, # 55 Exhibit 34, # 56 Exhibit 35, # 57 Exhibit 36, # 58 Exhibit 37, # 59 Exhibit 38, # 60 Exhibit 39, # 61 Exhibit 40, # 62 Exhibit 41, # 63 Exhibit 42, # 64 Exhibit 43, # 65 Exhibit 44, # 66 Exhibit 45, # 67 Exhibit 46, # 68 Exhibit 47, # 69 Exhibit 48, # 70 Exhibit 49, # 71 Exhibit 50, # 72 Exhibit 51, # 73 Exhibit 52, # 74 Exhibit 53-1of2, # 75 Exhibit 53-2of2, # 76 Exhibit 54, # 77 Exhibit 55, # 78 Exhibit 56, # 79 Exhibit 57, # 80 Exhibit 58, # 81 Exhibit 59, # 82 Exhibit 60, # 83 Exhibit 61, # 84 Exhibit 62)(Worthington, Roger) (Entered: 10/16/2008)

Here are the previous docket items .

Also see the Consolidated Docket.


DR said...

Well so much for page limits!
In any case, the newly tailored motion and supporting memorandum are interesting to say the least.

But since Floyd can do it - I hereby move that TBV accept my overlength submission

(-Technical Alert and Snooze Warning-)

But I am going to back up. There is something that really sticks in my craw from the "Behr" case (87 F.3d 844) I was discussing with M relating to the provisions of the NYC, FAA. I previously pointed out that I thought Behr was limited to its particular fact situation. While that may be true, and Behr has even been distinguished by the Court that decided it, I think the underlying holding in Behr is ripe for being either thrown out or being further construed to severely limit its application.

Here's the problem (and I touched on this before). Behr suggests that an action to vacate an award under the NYC is limited to the very specific and limited bases for vacating* spelled out by the NYC. Therefore, under the NYC the corresponding provisions of the FAA are unavailable because they "conflict" with the NYC. This was found even though the FAA is otherwise expressly considered to be incorporated into the NYC by sec. 208

The Behr finding of a "conflict" is more than troubling. That suggests no possibility of operating in harmony.


Under the NYC, one of the grounds for refusing to enforce an arbitration award is if "it would be contrary to the public policy" of the enforcing jurisdiction.

OK ...

The concept of what constitutes "Public Policy" has been dealt with in numerous legal decisions, many not dealing with arbitration.

The general standard has been that public policy can be satisfactorily demonstrated only "'by reference to the laws and legal precedents'" and could not be the product of the parties' or the courts' "'general considerations of supposed public interests'." 886 F.2d 1200 (9th Cir 1989)

In other words it is not sufficient to merely argue that, "It's a REALLY good idea."

One of the factors looked at to determine public policy is whether the legislative bodies of the jurisdiction have spoken with regard to a particular issue. Like, um, let’s see - are there standards for vacating arbitration awards under federal law in the US? Why, yes, there are! It’s called the Federal Arbitration Act. So it seems particularly absurd to find that “public policy” in the US, as set out in the FAA, is “in conflict” with the NYC when the NYC is invoked in the US.

In any case, the California Courts and the 9th Circuit Court of Appeals are not bound by the 6th Circuit decision in Behr. But that also means that Floyd could win and still make it to the Supreme Court which might be asked to decide this minor issue once and for all.

Ultimately I do not think this issue will be the focus of the case but it will probably receive some attention. In the Gatlin case the NYC was mentioned in some assumptions, but it was not really raised as an issue nor disputed.

* (I am trying hard to avoid using the term "vacation")

DBrower said...

I have also been about to write "vacation" many times, and have developed appreciation for the jargon (latin) "vacatur".


Unknown said...

What's really going on? I mean, Floyd's suspension is just about up. He's been screwed several times by the parties involved. Not to mention, did anyone notice that one of the recent cases of doping suspensions started the day of the finding, not 6 months after the fact.... hmmm.....

Anyways, back to my point. Floyd doesn't really have any reason to keep going to court. Now he has new lawyers working for him. Why are they doing this? Is this their chance to make a name for themselves? Do they see an injustice and want to fix it? I mean, i can't imagine Floyd paying for all this at this point.

Or is this going to be Floyd's legacy - fighting USADA, US Cycling to the end? Any other opinions?

DR said... asked:
What's really going on? I mean, Floyd's suspension is just about up.

I won't attempt to speak to any of Floyd's other motivations, but there is the very real issue that, as USADA presently views it, his suspension does not end until he pays them $100,000.

DBrower said...

Yes, it appears the $100k really puts him over the edge -- other than that, he might have just eaten the loss and moved on.

Making that monetary award might be the "bridge too far" in the smackdown that CAS gave Landis. If it had not been made, and he walked away, the victory would have been tidy. In motivating him to carry on, there's a chance it might be found improper, which then calls the entire award into question.

It is still a high hurdle to get the matter into Federal Court and heard on merits, but there is a possibility... and that might not have happened had Mr. Young and the Panel not chosen to rub it in.


Unknown said...

if this gets into federal court, will the arbs have to stand 'trial' and be called as witness'?

DBrower said...

It seems unlikely to me any arbs would be called. There is not much for them to testify to -- it's all facts in the record that are at issue.

More interesting is whether Mr. Young will turn up as a counsel representing USADA, since he is among the people at issue. He would, in effect, be defending himself, and you know the saying about that.


Unknown said...

TbV is on target. Seems the $100K CAS imposed was a blunder if they wanted a tidy end to the issue, and I'm guessing they did.

The consequence is more probing of a corrupt system, regardless of the court's decision on jurisdiction. (if jurisdiction is affirmed, then even more probing) That is the consequence of greed and un-checked authority.

Floyd was not going to shrink quietly away from a kangaroo court's eye poke. As Amber said, he's one tough bi*%h.