Tuesday, December 30, 2008

The Winnowing: Dan Rosen

Dan Rosen's Rant Your Head Off predated us by a few days, but he was smart enough to avoid being daily, and to have a wider focus. The experience led to a book. The wisdom of being sporadic helped him avoid burnout, and the wider focus lets him evade the sell-by-date that came with our narrower interests.

You Can’t Fight City Hall

There’s a certain genre of Hollywood B movies and pulp fiction novels that have the following story line:

Corrupt City Hall official makes a decision that steps on the toes of a Little Guy. One who can’t afford to fight city hall, and even if he could, it’s a fight he’s destined to lose. But despite the obstacles, through perseverance and strength of character, the Little Guy mounts his quixotic quest for justice. Along the way, more bad things happen, life gets tougher, his friends desert him, and he’s driven to the brink of destruction and despair. Undeterred, he fights on. Eventually, his luck turns and the corrupt official’s bad dealings come to light. People rally to his cause and he eventually proves the old adage, “You can’t fight City Hall” wrong.


It’s a story line that we love. It’s a great idea to believe that you can take on the rich and powerful, have truth and justice on your side, and eventually prevail. But old sayings come from a certain amount of truth. Most people who are wronged by the powerful never get that sense of justice and satisfaction that our Little Guy does in those Hollywood movies.

In thinking about Floyd Landis’ case, it seems to me that we have been witnessing the same kind of underdog story. Unless you were a fan of professional cycling, you probably hadn’t heard Floyd’s name before July 2006. Or if you did, it was in passing. Those non-cycling fans who knew of him probably did because he’d been one of Lance Armstrong’s cadre for a few seasons during Big Tex’s remarkable seven-straight Tour victories. Lance’s feat is not likely to be repeated for a long, long time to come, and Floyd had a part in that.

Every American who’s won the Super Bowl of cycling has a story of overcoming adversity. Long-time cycling fans know Greg LeMond’s story. Almost bleeding to death after his brother-in-law accidentally shot him while they were turkey hunting the winter after winning his first of three Tour crowns. After two intervening years, he came back to win again, with perhaps the narrowest margin of victory ever. His is the original “American overcoming great obstacles to win the greatest bike race in the world” story. Virtually everyone knows Lance’s story – the comeback from a cancer that advanced and spread far enough in his body that it would probably have killed mere mortals. Like “The Terminator,” Armstrong has a steely determination to overcome all obstacles in his path. (If I were a pro cyclist, the words I’d dread hearing most would be the phrase “you’ve tested positive.” A close second would be Armstrong saying, “I’ll be back.” But that’s another story for another time.)

Just like the other two Americans to win the Tour, Landis overcame a pretty daunting obstacle to claim victory. Floyd had a bum hip, with necrosis and osteoarthritis so bad that he would eventually need a hip replacement – the after-effects of an injury suffered during a training accident in 2003. Landis also has the character and determination one needs to endure a great deal of pain and discomfort while performing as a top-flite pro cyclist.

There’s something about Floyd’s story that was different than the other two. Perhaps it was the background. The Mennonite roots. It’s hard to pinpoint what it is, exactly. But unlike the other his predecessors, Floyd Landis comes across as an Everyman who – through sheer force of will, grit and determination – made it to the pinnacle of his profession. I’m not quite sure why neither Greg nor Lance has that Everyman quality about them, but neither one strikes me as a guy you’d want to meet at the local pub for a brew. Not in the same way that it would be fun to hang out with the happy-go-lucky Mr. Landis. (And that’s not meant as a criticism of either.)

The euphoria of Landis’ victory and the inspiration of his example lasted but a short time before everything came crashing down. The positive anti-doping test results, leaked by none other than the head of the UCI because, as Pat McQuaid said, someone else would have leaked them, anyway. Landis, who was not used to the kind of media attention a Tour winner gets, was thoroughly unprepared for the media onslaught that came next.

McQuaid, he of the “worst-case scenario” leak, offered up some advice to Landis not long afterwards. You can’t beat City Hall, he told the 2006 Tour winner. Save your money. Serve out your suspension quietly. Cooperate with the anti-doping authorities and they won’t rip you a new one.

From the start, Landis maintained his innocence. Admitting to something he didn’t do would be abhorrent and out of character. He wanted to clear his name and restore his reputation. Perhaps it really was a quixotic quest, because once the news of his positive test results hit the fan, both his name and reputation were splattered with a type of muck which can’t easily – or ever – be washed away. Most people in his circumstances wouldn’t have had the resources to mount such a fight. Instead, they would be forced to swallow hard and accept the cruel handout that Fate dished up.

Losing the battle meant that Landis would become the first cyclist to be stripped of his Tour de France crown because of a doping violation. And he didn’t want to become that guy. (Landis, however, would not be the first maillot jaune to be disqualified. That would be Maurice Garin in 1904. Nor would he be the first cyclist who might have used testosterone on his way to victory– that honor likely belongs to Bernard Thevenet, who admitted to using testosterone in pursuit of at least one of his Tour victories in the 1970s.)

Landis would not just roll over and accept defeat. Over the last 28 months, he did everything he possibly could to right the wrong done to him. Though he didn’t succeed, he can look himself in the mirror secure in the knowledge that he did his best. He took on City Hall, but outwardly, it appears he didn’t win.

On the surface, the procedures of our current anti-doping system look fair. No doping charges are filed unless testing of a second portion of the original sample shows the same results as the original tests. In theory, this eliminates the possibility of lab errors. If the two test results don’t match, no case is filed. If doping charges are filed, the athlete has the right to appeal his or her case. And failing the initial appeal, the athlete has the right to appeal to the Court of Arbitration for Sport. Unless you dig deeper into how the actual system is structured and how it operates, it would be easy to assume that an athlete charged with a doping offense has a fair shot at proving his or her innocence – assuming he or she really is innocent.

City Hall – in this case, the World Anti-Doping Agency – has set things up differently, however. This is not your ordinary form of justice. There are limits on what evidence you’re allowed to have as an accused doper, while there are no limits on the evidence that the anti-doping agencies can produce to bolster their own cases. WADA has said that the only evidence that an accused athlete is entitled to is the material in the lab documentation package provided to the athlete. If it’s not in the materials provided, you’re not entitled to it. And yet, as the Landis case showed, the ADAs have an almost unlimited ability to bring other evidence into the hearings to prove their case. It begs the question: If this is how things work, can you beat City Hall?

In the system they’ve set up, you can’t argue that the science behind the testing is wrong. WADA deems that science is correct. What you can argue, however, is that the lab either didn’t interpret the results correctly, or they didn’t perform the tests correctly. Maybe there’s a shot at beating City Hall after all.

For the interpretation argument, you’ve got to find scientists who will explain to the satisfaction of the arbitrators why the results don’t mean what the prosecutors say they mean. That’s a classic battle of the experts, and almost always the prosecutor’s experts win. OK, then, so you can argue that the tests weren’t performed correctly. Except for one small detail: WADA says the labs don’t have to give you their standard operating procedures. Catch-22, anyone? Can you defeat City Hall?

Anti-doping appeals are heard by a panel of arbitrators, rather than by judges in a traditional court setting. Each side gets an equal amount of time to make their case. Sounds fair, doesn’t it? Except, in practice, that’s not the case. For the prosecution’s side, they merely have to prove that the results are accurate and they mean what they say they mean. For the defense, they need to overcome the huge advantage given to the prosecutors. In a complicated case, the time limitation works to the prosecutor’s advantage, because the defense needs much more time to overcome the prosecution’s advantages. Again, you can’t fight City Hall.

Landis’ case seemed simple enough. Either he used testosterone as the lab claims, or he didn’t. But to prove he didn’t involved complicated arguments over just how certain scientific instruments should be operated, how the data should be analyzed, and what the results mean.

For the prosecutors, it was enough to say, “These are the results and they mean what I say they mean.” For the defense, it was not so easy. They have to convince the arbitrators that their experts are more credible, that the experts’ knowledge of how to interpret results is more reliable, and they must do so in a way that the experts appear as disinterested observers who are merely trying to help the panel understand this incredibly complex scientific stuff.

And, of course, there’s the starting assumption of guilt. Justice systems can be built starting with the assumption of guilt or innocence, and as long as they give the defendant the opportunity to confront their accusers, challenge the prosecutors’ assumptions, and as long as the defendant is given full access to any potentially helpful evidence, the system can come to the right result more often than not. When one side is hamstrung by lack of access to such evidence, then the scales tip in favor of the other side. If the scales of justice are unbalanced, is it a fair fight?

A couple of cases have been thrown out by CAS panels on appeal, as it happens. Both Inigo Landaluce and LaTasha Jenkins managed to avoid suspensions, based on the same error in protocol. In both cases, a lab technician involved in the testing of each athlete’s A sample was also involved in the testing of the B samples, which is a clear violation of WADA’s rules. Maybe you can fight City Hall, but only if there is an egregious error by the lab.

The coup de grace in Floyd’s case was the CAS panel’s written decision. In that decision, they summarily threw out every argument Landis’ defense team made. The panel’s decision said that the scientists who served as Landis’ witnesses strayed into the territory of being advocates rather than dispassionate experts seeking to help the panel’s inquiry merely for altruistic motives. But if you’re taking the stance that the tests weren’t done correctly, or that the equipment wasn’t operated corrected, or that the data wasn’t analyzed correctly, exactly where is the line that can’t be crossed? Shouldn’t someone be allowed a vigorous defense? Or is one limited in how to strong a defense can be used to fight City Hall?

Landis’ attorneys’ behavior was so bad, according to what the CAS panel wrote, that they deserved to be sanctioned. And because some witnesses were made available by USADA so Landis’ defense team could question them, and because they weren’t called to testify (perhaps due to time constraints?), Landis’ was assessed a $100,000 penalty – ostensibly to cover USADA’s expenses. (The panel failed to note, however, that had they allowed those witnesses to be deposed ahead of time, the testimony could have been entered into the record with a minimal impact on the amount of time spent during the hearings and a minimal impact on the witnesses’ own lives.) Not only can’t you fight City Hall, but they’ll fine you if you do.

At least during the original arbitration hearings (which lasted approximately twice as long as the CAS appeal), the panel did find some points in favor of Landis’ arguments. In their decision, the original panel noted that certain problems in the lab’s conduct could, if not corrected, lead to cases being thrown out in the future. Maybe others might be able to beat City Hall in the future, even if Landis couldn’t?

The CAS panel, however, gave no credence at all to any arguments made by Landis’ defense. Except they didn’t extend his sanction further, as USADA requested.

We’ll probably never find out, but perhaps Landis got some satisfaction in the settlement of the lawsuit he filed in September, which sought to vacate the CAS panel’s decision, including the $100,000 penalty. Among his lawyers’ contentions was that there were numerous conflicts of interest among the CAS panel members who heard his case and at least one of USADA’s attorneys. A system where an arbitrator can sit in judgment of a case one day, while being the judge on a different case the next, and where the roles of judge and prosecutor may be reversed from time to time, and where these individuals may interact with each other in different roles on different cases at roughly the same time hardly favors the defense. Fight City Hall? Maybe it would be better to shut up and take the sanction – even if you know you’re innocent.

No official word has been spoken about that settlement, and given that confidentiality agreements are often part of the deal, it’s unlikely that whatever Landis did receive in the bargain will come out. In fact, I wouldn’t be surprised to learn that there is a confidentiality agreement about the confidentiality agreement. As in, “I can neither confirm nor deny that I can confirm or deny the existence of any such agreement – if such an agreement exists.” Could it be that, in private at least, Landis did beat City Hall? At least a bit?

In the end, it seems to me that the biggest lessons of the Landis case are these:
1. The anti-doping system is structured to give the appearance of fighting doping, to protect entrenched interests at a higher level. As Mark Felt, the FBI official who was known as “Deep Throat,” once advised two young Washington Post reporters to do, follow the money. Where the trail leads will show you whose interests are really being protected. It more a case of “Anti-Doping Theater” than a serious effort to confront the problem in a thoughtful and rational manner.
2. The basic structure of the anti-doping system has to be changed to better reflect the possible scenarios that may be encountered and to ensure greater fairness. Slapping all first-time offenders with the same harsh punishment has failed to diminish the number of athletes who use performance-enhancing drugs, while at the same time inflicting severe punishment on cases of unintentional exposure. This is the argument I’m putting forth in the “Towards A New Anti-Doping Approach” series on my own site.
3. The expense of fighting City Hall is so great that we’re unlikely to ever see a case like Floyd Landis’ again. Not because the tests are getting better, or that only guilty people are being charged with doping offenses. The former might be possible, but the latter almost certainly isn’t. In any system of justice, some innocent people will be put on trial. It’s the nature of the game.

Floyd Landis fought the good fight. He took on City Hall. And in doing so, he made us aware of how things really work in WADA-world. In that sense, his fight was a success. But as for clearing his name and his reputation, that didn’t happen. And given the nature of the system as it currently stands, the end result was probably a foregone conclusion. In that sense, the outcome of his case seems to illustrate the old adage. Sometimes, you really can’t fight City Hall and win.

It’s time to move on, even though it might be hard to do so. There are forces Floyd’s case set into motion that will continue on, though perhaps in a different form. Because of his openness in his struggle to clear his name, people are aware of the flaws in the current anti-doping system. Some of those people are thinking about and discussing ways to make the system more effective. At some point, perhaps those thoughts and discussions will percolate upwards. And maybe, just maybe, some day the system really will change for the better.

In the coming year, we will get to see Floyd Landis racing. Rather than arguing about his case, we will be able to Monday-morning quarterback about how well he’s doing. Many of us may even get to see him race in person, rather than on television. There will, however, be people who won’t be accepting of his return. That’s a shame. He’s spent his time in purgatory. It’s time for Floyd to get on with racing and with life.

We owe a debt of thanks to Floyd for making his case public. It’s been an education. Those of us who’ve spent our time researching, reading, and arguing about his case – on both sides – have certainly earned our own personal master’s degrees in doping studies by now – even if none of us have one from a formal academic institution. That’s the power of the web, and the power of blogs., especially this one. It’s been a place where we could all go to learn and explore this particular subject in depth, to our hearts content.

Many thanks to TBV and the whole TBV crew for bringing this valuable site to life. It’s been a pleasure to be associated with you all – even the folks I disagree with. I look forward to crossing paths (and sometimes crossing swords) with everyone I’ve met here in the future. Perhaps at Rant, or the impending Rant 2.0, or perhaps at some other site.


Mike Solberg said...

Nice reflection, Dan. Thanks.


strbuk said...

Dan, thank YOU for all you have done to shed much needed light on various aspects of this case. Your dedication through your writing has gone far in fostering a basic understanding of the intricacies of the Landis Saga.


daniel m (a/k/a Rant) said...

Mike and Paula,

Thanks, it's been a real pleasure to be associated with all of the staff and regulars here at TBV. I look forward to keeping in touch with you both in the future. And I hope the rest of the regulars check in at Rant from time to time.

Best wishes for a happy and healthy and wonderful New Year.

- Dan

Mike Solberg said...

I must say that if we are not building toward a nice final piece from Mr. TBV himself, and a final note from Mr. Landis, I am going to be disappointed!


Mike Solberg said...

And, of course, one from strbuk too!


racejunkie said...

Rant and All the Gang at TBV,

Between you, you're the be-all and end-all of antidoping analysis. Thanks for many hours of informative reading pleasure, and even if trustbut is sadly calling it a day, Rant, I hope at least you'll continue!



whareagle said...


Thanks as well. For everything.

daniel m (a/k/a Rant) said...


Thanks for the kind words, they're most appreciated. I'll be continuing on, and I'm slowly working on "Rant 2.0".

- Dan

Ali said...

I still, and always will, remain completely disatisfied with the results of the Floyd Landis case.

I resent all those who claim to be scientists (both officially in WADA labs and unofficially in forums like DPF) for their complete lack of realism. They seem blind to what is clear to me.

Good luck to Floyd in his career. That's all I have to say. That's the only reason I contributed. I recognised that an injustice had been done.