In linking to my post “Can Floyd Win?“, Trust But Verify summed up my comments as “Optimism remains, but pissed at process.” Too bad I didn’t think of that, it would have been a better headline for the rant.
TBV is right about how I see things. There is still hope that Floyd can overcome this scandal, but the process is less than … shall we say? … sporting. From where I see it, this is not a fair process, by any stretch of the imagination.
As someone who comes from a culture where legal matters are based on English Common Law (I’m a citizen of both the US and UK so I get a double-shot of this, I guess), I believe that one is innocent until proven guilty. (With a nod to one of my closest friends, an attorney, who observes that in our legal system no one is ever found “innocent,” they’re found “not guilty.” It’s a subtle distinction, but important.)
In other parts of the world, justice is served by the idea that one is guilty until proven innocent. I believe the term for that is “Napoleonic” justice.
So, to put it another way, if you’re called for jury duty in the US and you say to the judge, “But Your Honor, the cops wouldn’t have arrested the defendant if he wasn’t guilty” you may get excused from jury duty. You might also get yourself a contempt of court citation, as that line shows either a lack of understanding or wholesale contempt for the American legal process.
If you said the same thing while being screened for jury duty in — let’s say France — you might actually wind up sitting on the jury for a trial. Different approach to justice, different assumptions about guilt and innocence.
No surprise then that I believe that Floyd Landis is entitled to the presumption of innocence, and that he is entitled to see the “evidence” against him and confront his accusers.
Regardless of whether you live in a country that dispenses justice based on English Common Law, or a country that dispenses Napoleonic justice, as long as you can confront your accusers, challenge their witnesses and challenge the facts of the case, you have an equal shot at prevailing.
But the anti-doping process doesn’t quite work that way. You see, when Floyd and his legal/medical team appear before USADA, the “prosecution” (that would be the UCI and WADA, et. al.) will present the lab results as facts. To give the devil his due, I suppose they are. The results are what the lab found — rightly or wrongly, with bad technique or incorrect test interpretation or poor science — those were their results.
Landis and his defense team have a number of avenues they can pursue. But some avenues (and they’re important ones) are out of bounds. First, they can’t challenge the facts. OK, they can perhaps challenge whether the tests were performed correctly, but if they can’t prove that the tests weren’t done by the book then they’re stuck in the position of explaining the result and why Landis is still innocent in spite of what the numbers say. (And as you may have seen in my first post, numbers — like statistics — can lie unless they are placed in the proper context.)
Other areas out of bounds are the science of the tests and the validity of the tests. The science is deemed to be correct, and the tests are deemed to be valid.
As readers who’ve seen Tom Fine’s article on the carbon isotope test, or other good surveys of that subject, these tests aren’t perfect. Landis’ team can’t challenge the validity of the tests, either. That is, whether the specificity and sensitivity of these tests are such that the results are, as the head of the Châtenay-Malabry lab says, “fool-proof.”
Now, I could spend a lot of time arguing that these tests aren’t fool-proof. Especially when it comes to hormones that occur naturally in one’s body. It’s one thing to test for a certain level of caffeine and say that any presence above some threshold concentration is proof of doping. The body doesn’t produce caffeine, so it’s presence at or above that level indicates that the person did ingest caffeine — whether in pill form or by drinking a hell of a lot of espresso (I’ve been told that to test positive, you need to drink in excess of 6 shots of espresso just prior to starting a race).
Naturally occuring hormones are another matter. The human body is an amazing thing, but unfortunately we don’t all work exactly the same. Our hormone levels vary, and even when a normal range for a hormone is established, there’s a few statistical outliers who may have radically different normal levels of that hormone.
In terms of athletic performance, all the riders at the Tour de France are statistical outliers. They are but a tiny fraction of the overall number of people who race bicycles throughout the world. Perhaps it follows that their bodies and how they function might be statistical outliers, too?
So, I think the process is flawed. But that’s the process that Floyd is stuck with. I hope that the USADA has the good sense to look at all the facts and find that either: A) he didn’t dope, or B) he didn’t do it knowingly. None of the lab results address the issue of whether he purposely doped, or whether someone slipped him a mickey. And if you can’t prove it was done consciously, to me you haven’t proved your case. But I’m not the one deciding this matter.
Regardless of the outcome of this case, this whole mess illustrates that the anti-doping system needs another overhaul. There is nothing sporting in making someone appear before a tribunal, but not giving them the right to challenge the “facts” or the process that produced those “facts.” That would be like two knights jousting where one knight isn’t allowed to use his lance. The outcome is fairly predictable, unless the one with the lance has bad aim.
So here’s what I think the new system should look like:
Athletes shouldn’t have to ask for the B sample to be tested if there’s an “adverse analytical finding” on the A test, the B sample should be tested automatically.
When an athlete is accused of doping based on both a positive A and B test, he or she should have the right to delve into the science behind the tests, the accuracy of the tests, the validity of the tests, the qualifications of the people performing the tests and how the tests were performed.
More to the point, since the athlete’s reputation and livelihood is at stake, the athlete should be accorded the same rights and standards of justice as in a civil or criminal court case.
And, as is one of the underlying principles in the American legal system, when there is doubt as to the person’s guilt, the process should err in favor of the accused rather than the accuser. Although the American system is far from perfect, the ideal is that it is better to let a guilty man go free than to allow an innocent man to languish in prison. That should apply here, too.
To do any less is not sporting. And the present system (or perhaps it’s just the personalities who run the present system) does as much to tarnish the image of sport as do the athletes who cheat.
Landis and his team still have some defenses available to them. It’s just that they’re not going to be able to raise some of the issues many of us have raised out here in the blogosphere. If Floyd Landis’ team are careful and play their cards right, they may yet prevail — but they’re going to have to work very hard to navigate the current process in order to do so.
