Multiple Jeopardy, Revisited

Last week, I talked about multiple jeopardy, which Floyd Landis faces in the on-going cases brought against him. One is the USADA/WADA case, for which there will be an arbitration hearing sometime, but we don’t know exactly when.

The other is the case being pursued in France by the AFLD, France’s anti-doping agency. Regular reader Marc and TBV have compiled some interesting information about the AFLD proceedings Landis faces. But first, before we get into the process, they offer up this information as to why and how the AFLD could take jursidiction in this case to begin with:

The only reason the AFLD has been able to move against FL is that the USADA did not come to a primary decision within 10 weeks (or an appeals decision within 4 months) of the supposed infraction. Right of first decision lies with the national federations, but AFLD’s mandate from the French government allows it to move after those deadlines.

Now, as TBV and Marc note, if Floyd had merely accepted the sanction, AFLD would not have been able to act. But, given that Landis maintains his innocence, the timeline that allows the AFLD to act pretty much rules out waiting for an accused athlete to put on a defense. AFLD, in essence, has the power to act when an athlete refuses to roll over and take it. So multiple jeopardy is definitely in play.

One interesting thing to note about the timing: I recall reading an article some time ago where Pierre Bordry, head of AFLD, was quoted as saying that they had filed a case against Landis in early or mid-September. Now, if you count 10 weeks from when the alleged violation was discovered, you’ll find that early October would be roughly when 10 weeks had passed.

But October was the month when AFLD’s predecessor agency ceased to exist and AFLD came into existence. I don’t know what the rules were prior, but the timing of the original filing seems odd. Perhaps AFLD’s predecessor, the CPLD, had more leeway to file cases immediately, or perhaps they jumped the gun to get a case filed, so that the case would carry over to the new agency. In that way, the thinking might go, Landis’ lawyers couldn’t argue that the AFLD had no standing to carry out proceedings against Landis, as it didn’t exist (officially) when the supposed violation occurred.

Also interesting it the idea behind the timelines. Ten weeks for the first hearing to occur and four months for the appeal to be decided. Otherwise, AFLD can step in. While I’m all in favor of speedy justice, these timelines seem way too short, given the amount of time anti-doping cases take to be decided. With the timelines that were established for AFLD intervention, it all but guarantees that anti-doping cases arising from athletic competition in France will wind up in front of the AFLD, especially for high profile cases like Floyd Landis, where so many individuals are so hot and bothered that they need some form of satisfaction.

Another interesting item to note is the following about AFLD’s jurisdiction:

“The admission of the case to AFLD jurisdiction is suspensive of a sanction pronounced by the federation.”

Does that mean that in fact this AFLD hearing will be the only one FL will get? No, probably not, since everyone wants him to be suspended and to lose the TdF win, and the AFLD admits it doesn’t have the authority to do that. So the USADA will have to meet if they want to get that accomplished. Butwe’re not clear on what the force of this line is

It’s pretty clear that the AFLD proceeding really can’t accomplish what anti-doping officials in France, Montreal and the US would like: To strip Floyd Landis of the 2006 Tour win, as well as ban Landis from the Tour. Perhaps the AFLD will wind up banning Landis from competition in France. But only the USADA/WADA proceedings will be able to do strip Landis of his Tour title and ban him from competition internationally.

So it seems that the purpose of this proceeding must be to guarantee that Landis suffers a ban at the very least from racing in France. And to give Christian Prudhomme and the ASO cover for keeping him out, should he be cleared, as noted in this AP article.

The question of whether the AFLD proceeding could even result in a ban in France is rather murky. Landis would have recourse to the Court of Arbitration for Sport, but it appears by TBV/Marc’s analysis that it may be possible that Landis would also have access to the French courts to contest the AFLD outcome. And depending on the meaning of “interested parties,” others might be able to appeal the outcome, too.

“Any interested party can make a full legal appeal of AFLD disciplinary decisions to the Council of State within two months of their notification.”

A bit earlier in Marc and TBV’s analysis is the notation that “interested parties” means defendants. The skeptic in me wonders who else might be included. And this could mean even more groups might be able to drag this process out for even greater lengths of time, at the cost of Landis’ ability to earn a living, not to mention the additional legal expenses. What would all that accomplish? In my mind, the upshot of a protracted fight in France, combined with a protracted fight here, would be greater damage to the credibility of the anti-doping system.

One has to wonder if the reason things are taking so long is that USADA and WADA know they have a weak case, and they’re trying to punish Landis for defending himself by keeping him out of competition for as long as they can. Perhaps as long as if he were found guilty. And AFLD is getting into the act to make sure that some sort of punishment is doled out — and soon — while waiting for USADA and WADA to proceed.

Except in the case that Floyd Landis is found not guilty — or better yet, innocent — the real crime committed would be the way the whole process has treated him. Whatever the outcome of the AFLD case is, it hardly seems fair (or sporting) for an accused athlete to be subjected to so many different avenues of attack. The system should be simple, straight-forward and clearly delineated. Agencies like the AFLD should not have the power to intervene in the middle of an on-going case being handled by other authorities.