Among the documents you can find at the Floyd Fairness Fund site is one written by Arnie Baker called, “Improving Fairness.” In it, you can find a number of proposals for improving the anti-doping system so that it is more fair to athletes accused of doping violations. And more than that, so that the system has greater transparency. Transparency is always a good thing, in my view.
Take a few moments to read the document, or you can see a summary of the points Baker makes over at Trust But Verify. Everything that Baker suggests seems reasonable to me. And everything he suggests would go a long way to making the system more open, and less prone to secrecy, cover-ups or abuse.
Anticipating what I’d be writing about tonight, reader Randy, in his comment on Shot Heard `Round The World, had this to say about the arbitration process:
There’s the USADA hearing, that may go to an appeal at Lausannne at the CAS, then there is some parallel double jeopardy thing in France. Good grief! And they can’t even schedule the Pepperdine [USADA] hearing…
Good grief, indeed. But it can (and might) be even more convoluted than what Randy describes. As Arnie Baker notes:
If an athlete prevails at almost any point in the adjudication, that decision may be appealed by multiple bodies: International and National sports Federations, National and World ADA, National & International Olympic committees.
One athlete versus six possible governing bodies/agencies/committees.
In Floyd’s case, there is also unresolved jurisdiction with a parallel case being prosecuted against him by another organization in France.
Imagine, for the US proceedings alone, the following organizations could appeal a finding in Landis’ favor, should the first round of arbitration go his way:
- USADA
- WADA
- USACycling
- The UCI
- US Olympic Committee
- International Olympic Committee
And we haven’t even begun to discuss the parallel proceedings in France, yet! It seems to me that one against six is the kind of fight only Superman could win.
There’s a better way. First, let’s give WADA credit for an idea that seems pretty fair. According to their process, if a suspected doping violation occurs then the information is passed along to the governing body for the athlete’s sport in his/her home country. They then refer the case to their Anti-Doping Agency, who decide whether or not to pursue the case.
If they pursue the case and it goes into arbitration, then the ADA acts as the prosecutor in front of the arbitration panel. Forgetting how the rules are skewed in favor of the ADAs, at least at this point the process sounds much like something that would happen in the judicial system of most countries.
It’s the questions of jurisdiction and who has the right to appeal the arbitration panel’s decision that get muddied up in the current anti-doping system. If the process is such that the home country’s sporting organizations are responsible for prosecuting anti-doping cases, then how can a case be started in another country?
Regardless of whether it’s the country where the offense allegedly took place, if the system is set up as I understand it, how is it possible that we can have two parallel prosecutions going in the Landis case? That pretty well seems like double-jeopardy to me.
Perhaps the French authorities, if they are convinced of the fairness of the North American proceedings, will have the good sense to drop their case. They truly have nothing to gain as far as I can see by continuing to pursue this case — other than to help bleed Floyd Landis dry.
Assume the ultimate judgment goes against him at the CAS. Even if he’s found innocent in the French proceedings, Floyd Landis will be banned from competition for 2 years. That would include competition in France, I assume, since he’s not a French citizen (and probably even if he were).
Assume the ultimate judgment is in Landis’ favor at the CAS. You can bet that a guilty finding in the French proceedings would be appealed to the CAS, and although it may take more time, I think it would be safe to assume Landis would prevail. No guarantees, but more likely than not. So in either case, the French proceedings will have no real effect on the outcome.
Except in the second scenario, they may be able to keep him out of the Tour for an extra year, depending on how fast the CAS would decide on the appeal of the French case.
So, for the sake of fairness, the question of jurisdiction should be spelled out in full, and cases that are brought outside that jurisdiction should be summarily tossed.
Next is the question of who has the right to appeal. It seems to me that only the prosecuting agency should have the right to appeal. Now, the other organizations may be “interested parties” in the proceedings, but at some point they have to stand back and let the system do its work.
I can see an appeal by the ADA responsible for the prosecution, challenging various grounds for first arbitration panel’s decision, but I can’t see any reason that an organization that wasn’t part of the original proceedings should have the right to launch an appeal.
That would be like the Goldman or Brown families having the right to launch an appeal of the criminal proceedings against OJ Simpson after the jury in his murder trial found him not guilty. While I have a strong feeling that Simpson was guilty, the prosecution didn’t do enough to convince the jury that he committed the crime. It would be up to them to appeal — assuming grounds for appeal existed.
Or consider the Landaluce case. The Spanish authorities crafted a very reasonable solution to the anti-doping charges against him, only to have their decision appealed by the UCI. Now, the UCI wasn’t the original prosecutor. They just didn’t like the punishment doled out. They felt that regardless of the circumstance, Landaluce deserved a two-year “vacation” from bicycle racing. So they went to the CAS and they won.
In upholding (very) strict liability, the CAS arbitrators seemed to ignore those portions of the World Anti-Doping Code that allowed for reduced punishment when circumstances warranted. Or perhaps they meant to say that there are really no circumstances that warrant anything less than punishment “by the book.”
Whatever the case may be, it seems unfair that an organization that did not act in a prosecutorial capacity in the original hearings should be allowed to appeal the judgment rendered. Had the Spanish authorities appealed, and had the CAS ruled as they did, that would have been a different matter. I still would question the outcome, but the fairness of the system (at least, from a procedural point of view) would not be in doubt.
That’s the kind of reform that the current anti-doping system needs. Changes that increase transparency and improve the fairness of the system. No multiple jeopardy, no multiple jurisdictions. One system. Simple. Straight-forward. Fair.
