http://rant-your-head-off.com/WordPress/?p=360 Always select Genuine Rant™ Brand. Everything else is just words. Tue, 07 Sep 2010 21:27:08 -0400 hourly 1 http://wordpress.org/?v=3.0.1 http://rant-your-head-off.com/WordPress/?p=360#comment-11872 Cycling Beat » You Can’t Beat Cycling Blogs Mon, 27 Aug 2007 01:18:06 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11872 [...] The Floyd Landis (non-)ruling has been occupying the thoughts and blog over at Rant Your Head Off with the impatience palpable last Thursday as a decision is awaited. By Saturday that impatience was tempered in another Rant by the reasoning that it would be better to get a fair verdict rather than a fast one, as difficult as waiting for it might be. Hear, hear. I’ve got to say, though…and perhaps it’s because I’m not American, but I can’t say that I’ve given the whole Floyd Landis situation very much thought at all (unlike Oscar Pereiro, I’m sure). A spirited discussion just the same in both posts and well worth the reading. [...] http://rant-your-head-off.com/WordPress/?p=360#comment-11848 William Schart Sun, 26 Aug 2007 01:29:12 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11848 Larry: Thanks, you're right, it was Fonda, not Tracy, his courtroom drama was "Inherit the Wind". I see what you mean about perhaps the panel would like to speak with some degree of cohesion, if possible. I guess we will never know exactly what went on; as I doubt that they are going to say "well, we went on vacation for a month, then we spent a couple of weeks catching up on our other work before getting back to this" (or whatever is the reason for the long time). Of course, there may be entirely legitimate reasons things are taking so long; one can only hope so.
Thanks, you’re right, it was Fonda, not Tracy, his courtroom drama was “Inherit the Wind”.

I see what you mean about perhaps the panel would like to speak with some degree of cohesion, if possible. I guess we will never know exactly what went on; as I doubt that they are going to say “well, we went on vacation for a month, then we spent a couple of weeks catching up on our other work before getting back to this” (or whatever is the reason for the long time). Of course, there may be entirely legitimate reasons things are taking so long; one can only hope so.]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11845 Larry Sat, 25 Aug 2007 21:04:41 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11845 William, yes, the panel can certainly move forward with a 2-1 decision. However, in a case like this, a 3-0 decision is preferred if it can be reached. If all 3 arbitrators saw the case the same way, it gives the decision added weight -- it might discourage an appeal, or at least give the appeals court something to think about. Also, even if the decision goes 2-1, the majority will want to agree on a single opinion. A 2-1 decision is even weaker if it is accompanied by 3 opinions. So ... there are dynamics at play here, in terms of trying to get 2 or 3 arbitrators on the same page, that may be delaying the decision. ... William, "12 Angry Men" starred Henry Fonda, though I think Spencer Tracy would have been a great choice, too. The 3-person arbitration panel is pretty common in the U.S. -- it's probably preferable to the single arbitrator that decided the jellotrip case, but agreed that the dynamics of any threesome tends to leave one person out in the cold. I've never heard of an arbitration with more than three arbitrators. ... William, completely agree on when you'd want to release the decision. I expect a Friday release regardless of the decision (in the afternoon, California time, so it's evening in New York and Saturday in Europe). There is so much heat and controversy in cycling right now, I think the arbitrators will want to do all that they can to keep things calm and quiet. ... jellotrip, if memory serves the Landis arbitrators did extend the length of the hearing by a day or two. But you're right, it may well be the case that a couple more days of testimony might have cleared up some issues. I DID feel that the Landis team's case was a bit rushed. ... Morgan, agreed. There will be no winners here. …
William, “12 Angry Men” starred Henry Fonda, though I think Spencer Tracy would have been a great choice, too. The 3-person arbitration panel is pretty common in the U.S. — it’s probably preferable to the single arbitrator that decided the jellotrip case, but agreed that the dynamics of any threesome tends to leave one person out in the cold. I’ve never heard of an arbitration with more than three arbitrators.
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William, completely agree on when you’d want to release the decision. I expect a Friday release regardless of the decision (in the afternoon, California time, so it’s evening in New York and Saturday in Europe). There is so much heat and controversy in cycling right now, I think the arbitrators will want to do all that they can to keep things calm and quiet.
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jellotrip, if memory serves the Landis arbitrators did extend the length of the hearing by a day or two. But you’re right, it may well be the case that a couple more days of testimony might have cleared up some issues. I DID feel that the Landis team’s case was a bit rushed.
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Morgan, agreed. There will be no winners here.]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11844 Morgan Hunter Sat, 25 Aug 2007 20:26:21 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11844 Jello - I believe we are as frustrated as you - with the "waiting game" play going on. - William, Larry - I understand your presentation - it is, under ideal situation the correct course of action. It is also a hope in most every one - that the Arbs are actually treating the case with the dignity it should be considered under. - For any defendant - this time does feel just too long. After all - for pro racers - it is basically an inability to earn a living, his/her status goes from amongst the highest to the lowest. His/her self image is completely called into question, his worth as a human being is being publicly questioned, not as theory - but rather as a complete redefinition of who he/she has "gained" through his /her work...The person is not really able to feel that they have a means of "fighting" back. - The athlete - as Jello has presented to us, feels at the mercy of people and institutions who he/she cannot, as he is used to compete/fight against to "win" - we have to recognize that the pro athlete is not a group type individual - he/she tends to have a strong self reliant personality - so when he/she is taken to litigation - his sense of "helplessness" skyrockets, his/her winning relies on someone else, he must remain passive.. He/she cannot fight/compete as he is most used to in dealing with situations in life. - As Rant points out to us - for an athlete to be out of compatition for 2 years, means pretty much the game is over...Perhaps the only time this would not be the case is if the defendant is "busted" early on and is not in the peak of their athletic life span. But this "advantage can only be on the physical side - no guarantees that the accused/punished athlete will survive the punishment mentally. - The topic comes up regularly - does Floyd win if he actually gets a "win" from the Arbs? - the reality seems to indicate that there is no way to Win, once being forced to go through the process that leads to having an arbitration hearing. The groups and individuals involved, "plead" the case in the public media, presenting their stance with the sole intent of winning. - This has nothing to do with justice or fair play. It is about "winning" - to win their stance, the individuals or groups simply destroy the individual under attack. The accrued worth of the individual is completely ignored. It is nothing less then finding yourself running from a lynch mob who is not willing to listen that you may not be the one who is "guilty". - So we can in theory expect calm and patience from defendants - but it is certainly not very realistic. -
William, Larry – I understand your presentation – it is, under ideal situation the correct course of action. It is also a hope in most every one – that the Arbs are actually treating the case with the dignity it should be considered under.
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For any defendant – this time does feel just too long. After all – for pro racers – it is basically an inability to earn a living, his/her status goes from amongst the highest to the lowest. His/her self image is completely called into question, his worth as a human being is being publicly questioned, not as theory – but rather as a complete redefinition of who he/she has “gained” through his /her work…The person is not really able to feel that they have a means of “fighting” back.
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The athlete – as Jello has presented to us, feels at the mercy of people and institutions who he/she cannot, as he is used to compete/fight against to “win” – we have to recognize that the pro athlete is not a group type individual – he/she tends to have a strong self reliant personality – so when he/she is taken to litigation – his sense of “helplessness” skyrockets, his/her winning relies on someone else, he must remain passive.. He/she cannot fight/compete as he is most used to in dealing with situations in life.
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As Rant points out to us – for an athlete to be out of compatition for 2 years, means pretty much the game is over…Perhaps the only time this would not be the case is if the defendant is “busted” early on and is not in the peak of their athletic life span.
But this “advantage can only be on the physical side – no guarantees that the accused/punished athlete will survive the punishment mentally.
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The topic comes up regularly – does Floyd win if he actually gets a “win” from the Arbs? – the reality seems to indicate that there is no way to Win, once being forced to go through the process that leads to having an arbitration hearing. The groups and individuals involved, “plead” the case in the public media, presenting their stance with the sole intent of winning.
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This has nothing to do with justice or fair play. It is about “winning” – to win their stance, the individuals or groups simply destroy the individual under attack. The accrued worth of the individual is completely ignored. It is nothing less then finding yourself running from a lynch mob who is not willing to listen that you may not be the one who is “guilty”.
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So we can in theory expect calm and patience from defendants – but it is certainly not very realistic.]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11843 jellotrip Sat, 25 Aug 2007 18:53:42 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11843 "would you really want to force their hands at this point, announce "TIME'S UP!" and force them to decide? " ... Isn't that essentially what the arbs did to the folks presenting the case by putting a time limit on submissions during the hearing? Now that they've taken three months, would an extra day or two of hearing time have helped......did not giving those extra couple of days have a negative effect....would a few more days in the hearing have reduced the time they needed to make a decision? ... How does that saing go......Good for the goose, sauce for the gander? ... They held the public release of my decision for four days - from Thursday to Monday, and the only reason for them to have done that was media bang.
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Isn’t that essentially what the arbs did to the folks presenting the case by putting a time limit on submissions during the hearing? Now that they’ve taken three months, would an extra day or two of hearing time have helped……did not giving those extra couple of days have a negative effect….would a few more days in the hearing have reduced the time they needed to make a decision?

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How does that saing go……Good for the goose, sauce for the gander?

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They held the public release of my decision for four days – from Thursday to Monday, and the only reason for them to have done that was media bang.]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11842 William Schart Sat, 25 Aug 2007 18:36:25 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11842 Larry: My point on the issue of deadlock is that any decision voted on must of necessity have at least a 2-1 majority, which is all that is legally required. Can they legally require a unanimous decision? Or, if they hold themselves to that level when legally all that is needed is a majority, could the losing side use that in an appeal? Perhaps not in CAS, where it simply is a new hearing from the beginning, but could the losing side perhaps take the issue to the California court system? Breech of contract? But anyway, the fact remains that any time 2 of the panel members agree, then that can be the formal decision of the panel. They could even overrule any previous agreement for unamiminity. Ever see the movie "12 Angry Men"? It's pretty old, although I seem to recall a recent remake. The basic plot is a jury retires for deliberations in a murder case. At first they are 11-1 for conviction, and the 11 are pretty miffed at the holdout (Spencer Tracy, as I recall). But he forces them to more carefully weigh the evidence and 1 by 1 wins them over. Eventually they reach a not guilty verdict, and this is indeed the just and true verdict. Now this is one problem I see with the arbitration setup. Sure, a 3 member panel with only a majority requirement can make for a speedy result, or at least faster than if only a 3-0 vote was accepted. But it also allows for an easy tyranny of the majority, something we saw a hint of in some of the pre-hearing motion decisions, where 2 members made decisions apparently without even consulting the third member. No chance for a Spencer Tracy to argue for his POV and win the others over. This is why I hope that they are actually physically meeting for deliberations, or at least teleconferencing. A lot harder to ignore someone in person rather than just skim through a written argument and continue with you already formed conclusion. Now, to change the subject slightly. We have been speculating about when the decision might come, but what about the day of the week it will come. On a Monday, or on a Friday, or what? I have read things where it is said, if you want to release something and sort of hide it, do it late on Friday, so as to miss the news cycle of the press and network news. People pay less attention to news on the weekend. If you really want to bury it, announce it over the weekend. But if you want as many people to know about it, then release the news Monday morning, so it can be in the news all week long. Any thoughts here?
My point on the issue of deadlock is that any decision voted on must of necessity have at least a 2-1 majority, which is all that is legally required. Can they legally require a unanimous decision? Or, if they hold themselves to that level when legally all that is needed is a majority, could the losing side use that in an appeal? Perhaps not in CAS, where it simply is a new hearing from the beginning, but could the losing side perhaps take the issue to the California court system? Breech of contract? But anyway, the fact remains that any time 2 of the panel members agree, then that can be the formal decision of the panel. They could even overrule any previous agreement for unamiminity.

Ever see the movie “12 Angry Men”? It’s pretty old, although I seem to recall a recent remake. The basic plot is a jury retires for deliberations in a murder case. At first they are 11-1 for conviction, and the 11 are pretty miffed at the holdout (Spencer Tracy, as I recall). But he forces them to more carefully weigh the evidence and 1 by 1 wins them over. Eventually they reach a not guilty verdict, and this is indeed the just and true verdict.

Now this is one problem I see with the arbitration setup. Sure, a 3 member panel with only a majority requirement can make for a speedy result, or at least faster than if only a 3-0 vote was accepted. But it also allows for an easy tyranny of the majority, something we saw a hint of in some of the pre-hearing motion decisions, where 2 members made decisions apparently without even consulting the third member. No chance for a Spencer Tracy to argue for his POV and win the others over.

This is why I hope that they are actually physically meeting for deliberations, or at least teleconferencing. A lot harder to ignore someone in person rather than just skim through a written argument and continue with you already formed conclusion.

Now, to change the subject slightly. We have been speculating about when the decision might come, but what about the day of the week it will come. On a Monday, or on a Friday, or what? I have read things where it is said, if you want to release something and sort of hide it, do it late on Friday, so as to miss the news cycle of the press and network news. People pay less attention to news on the weekend. If you really want to bury it, announce it over the weekend. But if you want as many people to know about it, then release the news Monday morning, so it can be in the news all week long. Any thoughts here?]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11838 Larry Sat, 25 Aug 2007 15:16:14 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11838 William, you're right that a 3-person panel cannot "deadlock", but they can disagree in ways that might delay a decision. For example, the panel might have decided that it's important to issue a unanimous decision, but they've been unable to agree on the grounds of the decision. ... You draw an analogy to juries. Yes, you're right, I think that the average jury deliberation in a criminal case would be measured in hours, not days (I did some fast research, and there was a 4-month jury deliberation in a California case. But that's very unusual, probably a State record, if the State kept records of such things). But an arbitration panel is more like a panel of judges than a jury, and panels of judges often take months to reach their decisions. As with a panel of judges, the arbitration panel is probably NOT working on the Landis case full time. ... While I speculate a great deal on the meaning for the delay, you're right to suggest that maybe there is no particular meaning. It's summer, and the reason for the delay may be conflicting vacation schedules. I suspected that the panel might not want to issue an opinion during the racing of the Tour de France, or soon after the end of the Tour, but obviously that's not a factor any longer. ... Mike, maybe it's because I'm a lawyer, but I see things differently. It is unfortunately the case that ANY false accusation of ANY of us in ANY walk of life creates injury and distress that cannot be fully redressed. I've said it here before, even when a person wins in litigation, the person loses -- he loses time and peace of mind in all cases, and probably loses money and reputation in most cases. Landis' case impacts his career as a pro cyclist, which is by nature a short career, so any loss of time hurts Landis more than the average person ... still, it's a fact that some people caught up in the legal system have less time to lose than others. ... Yes, we're all impatient for a decision. But if waiting is required to get to the RIGHT decision ... then presumably we'd all be willing to wait. To be sure, if the panel (natually inclined as are most panels to side with the prosecution) is wavering, if the pro-Landis arguments are slowly working their way through their brains, creating growing doubts ... would you really want to force their hands at this point, announce "TIME'S UP!" and force them to decide? …
You draw an analogy to juries. Yes, you’re right, I think that the average jury deliberation in a criminal case would be measured in hours, not days (I did some fast research, and there was a 4-month jury deliberation in a California case. But that’s very unusual, probably a State record, if the State kept records of such things). But an arbitration panel is more like a panel of judges than a jury, and panels of judges often take months to reach their decisions. As with a panel of judges, the arbitration panel is probably NOT working on the Landis case full time.
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While I speculate a great deal on the meaning for the delay, you’re right to suggest that maybe there is no particular meaning. It’s summer, and the reason for the delay may be conflicting vacation schedules. I suspected that the panel might not want to issue an opinion during the racing of the Tour de France, or soon after the end of the Tour, but obviously that’s not a factor any longer.
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Mike, maybe it’s because I’m a lawyer, but I see things differently. It is unfortunately the case that ANY false accusation of ANY of us in ANY walk of life creates injury and distress that cannot be fully redressed. I’ve said it here before, even when a person wins in litigation, the person loses — he loses time and peace of mind in all cases, and probably loses money and reputation in most cases. Landis’ case impacts his career as a pro cyclist, which is by nature a short career, so any loss of time hurts Landis more than the average person … still, it’s a fact that some people caught up in the legal system have less time to lose than others.
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Yes, we’re all impatient for a decision. But if waiting is required to get to the RIGHT decision … then presumably we’d all be willing to wait. To be sure, if the panel (natually inclined as are most panels to side with the prosecution) is wavering, if the pro-Landis arguments are slowly working their way through their brains, creating growing doubts … would you really want to force their hands at this point, announce “TIME’S UP!” and force them to decide?]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11836 Larry Sat, 25 Aug 2007 06:00:36 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11836 jellotrip, as I stated earlier, the authorities should have dropped your case, or if they had no discretion whether to prosecute, they should have given you a slap on the wrist ("jellotrip, I order you to give lectures to schoolchildren on the dangers of talking to strange people in bars"). If they had to prosecute, and if there was no discretion available in the penalty, then they should have lost the case on purpose. There was no possible purpose served in what they've done to you. ... In my earlier post, I probably should not have focused on the circumstances around your ingestion of a prohibited substance. On further review, it appears relevant only to a possible explanation of a possible contaminant that might have been present in the catheter you used in the in-competition test. But there's no way to know at this point whether the catheter in question WAS contaminated -- either it WAS contaminated, or there were prohibited substances present in your system at the time of the test (or someone screwed up the test -- for the moment at least, I'll ignore that possibility). ... Given the possibility that the catheter was contaminated, I think the next question would be, who was responsible for the fact that you did not use a sterile catheter? That's a tougher question. I've read the materials you've posted, and I've quickly read the arbitration decision in your case. Not an easy call. From a common sense standpoint, you bear some responsibility (you were the only person who had reason to know that the catheter could have been contaminated with a banned substance). I think on balance, the drug testing authorities bear the higher responsibility: they were required to inspect, and did not inspect; they did not have a sterile catheter on hand, even if you had asked for one. ... If I follow this conclusion to its logical end, it appears that the use of a potentially contaminated catheter would (in the absence of some effort by the drug testers to substitute a sterile catheter, or at least to inspect the used catheter) effectively make an athlete immune from sanctions. That's not exactly a comfortable conclusion to reach, but the conclusion appears sound to me. ... The more sound conclusion is that the authorities should have exercised prosecutorial discretion, and dropped your case into the "circular file". …
In my earlier post, I probably should not have focused on the circumstances around your ingestion of a prohibited substance. On further review, it appears relevant only to a possible explanation of a possible contaminant that might have been present in the catheter you used in the in-competition test. But there’s no way to know at this point whether the catheter in question WAS contaminated — either it WAS contaminated, or there were prohibited substances present in your system at the time of the test (or someone screwed up the test — for the moment at least, I’ll ignore that possibility).
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Given the possibility that the catheter was contaminated, I think the next question would be, who was responsible for the fact that you did not use a sterile catheter? That’s a tougher question. I’ve read the materials you’ve posted, and I’ve quickly read the arbitration decision in your case. Not an easy call. From a common sense standpoint, you bear some responsibility (you were the only person who had reason to know that the catheter could have been contaminated with a banned substance). I think on balance, the drug testing authorities bear the higher responsibility: they were required to inspect, and did not inspect; they did not have a sterile catheter on hand, even if you had asked for one.
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If I follow this conclusion to its logical end, it appears that the use of a potentially contaminated catheter would (in the absence of some effort by the drug testers to substitute a sterile catheter, or at least to inspect the used catheter) effectively make an athlete immune from sanctions. That’s not exactly a comfortable conclusion to reach, but the conclusion appears sound to me.
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The more sound conclusion is that the authorities should have exercised prosecutorial discretion, and dropped your case into the “circular file”.]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11832 Rant Sat, 25 Aug 2007 03:36:12 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11832 Hey everyone, Interesting discussion going on here. It's giving me a few ideas for future posts. - Rant
Interesting discussion going on here. It’s giving me a few ideas for future posts.

- Rant]]> http://rant-your-head-off.com/WordPress/?p=360#comment-11829 Mike Mercadante Sat, 25 Aug 2007 01:33:31 +0000 http://rant-your-head-off.com/WordPress/?p=360#comment-11829 I enjoyed your article! Whatever the outcome the process is horribly broken. Simply a man's career has been damaged by acquistation without reasonable resolution. If Floyd is guilty it's taken too long and the process has not demostrated convincing evidence and has lost support of the sporting world. If Floyd is not guilty, this is an injustice which can't be redressed. The process is faulty, the 'organization' smeared his reputation and put him on trial in the public forum. In either cast the data present was weak, collected by a faulty process, evidence has been deleted, and 'justice' can never be served by an organization with these critical flaws. It's time that the oversight organizations undergo the same review as the participants, they should be held accountable for their actions.
Whatever the outcome the process is horribly broken. Simply a man’s career has been damaged by acquistation without reasonable resolution.

If Floyd is guilty it’s taken too long and the process has not demostrated convincing evidence and has lost support of the sporting world.

If Floyd is not guilty, this is an injustice which can’t be redressed. The process is faulty, the ‘organization’ smeared his reputation and put him on trial in the public forum.

In either cast the data present was weak, collected by a faulty process, evidence has been deleted, and ‘justice’ can never be served by an organization with these critical flaws.

It’s time that the oversight organizations undergo the same review as the participants, they should be held accountable for their actions.]]>