Tygart’s Gambit

In a recent interview with Ferren Christou of the Daily Peloton, Travis Tygart condemned what he called the unnecessary “fishing expeditions” of defense lawyers whose clients have been accused of doping offenses.

That is why you see more and more that defense counsel will inundated us with voluminous requests for documents outside of what has been set forth in the rules. These fishing expeditions are typically designed to introduce confusion into the process and create a smoke and mirrors defense in an effort to influence the public and create false sympathy for the athlete.

Tygart, however, seems to have gone on a fishing expedition of his own in the Landis case, according to an article in Cyclingnews.com, which says:

Meanwhile, French newspaper L’Equipe reported on Thursday that Landis refuses to let the American Anti-Doping Agency (USADA) carry out IRMS (detection of exogenous testosterone) tests on the remaining B samples that were taken from the rider at the Tour de France last year. Landis submitted urine samples six times during the 2006 Grand Tour, of which five came back negative for an elevated testosterone/epitestosterone ratio and were thus shelved. Now, the USADA asked Landis to approve the IRMS testing of these five B samples, which could be an important factor in the hearing in front of the Arbitration Commission currently scheduled for May 14, 2007.

“The World Anti-Doping Code allows additional analysis on B samples only [as the A samples have already been used – ed.] when there is a need for it in the procedure,” said WADA legal director Olivier Niggli. Although the testosterone/epitestosterone ratios found in the A samples of the rider all were below 4 and thus considered normal, any use of exogenous testosterone could only be proved – or proved wrong – using the IRMS testing method.

This story has already generated quite a buzz and discussion over at Trust But Verify and it is bound to break into other media and stir up the discussion groups for some time to come. The Boulder Report is weighing in on the buzz, and Steroid Nation has put together a thoughtful piece about the developments over the last 48 hours (thanks to reader ORG for providing the link in a comment).

So, let’s get this straight: Tygart wants to test additional B samples after having refused to provide the Landis defense team with the data for his A samples from those very same tests during the Tour. What’s going on? Why would USADA want to test Landis’ B samples taken at other times during the tour? And if they’re interested in this data, why are they refusing Landis’ request for the data from the A samples from those same dates?

Let’s start with the first two questions. Tygart is clearly on a fishing expedition, and what he’s fishing for are results from the other B samples to back up the B sample from Stage 17. And, he’s playing chess with the defense. Tygart has put the Landis camp in an awkward position, which is now blowing up for all to see.

If Landis refuses to go along with the tests (which Michael Hiltzik at the Los Angeles Times reports he has), some will interpret this as Landis having something to hide. And if he agrees to the tests and the results don’t go his way, then he’s made things worse for his own defense. And why would Landis agree to these tests, after being told he can’t have access to the original A sample data?

Under these circumstances, I can’t imagine that Howard Jacobs would advise his client to allow the tests to happen. But Tygart has succeeded in putting the Landis defense team in an awkward spot, especially in public relations terms.

And perhaps he’s put the Landis defense into an awkward spot as far as the arbitration goes, too. What happens if Tygart goes to the arbitration panel seeking to do these tests and the panel decides in his favor, even though Landis refuses permission to do so?

To start, let’s consider the samples currently stored at LNDD, the French anti-doping lab. Supposing that USADA requested or the arbitrators stipulated that another lab do the testing, LNDD may be very reluctant to give up the samples. After all, should the samples come out completely clean, it might cast an unfavorable light on their competence.

Apparently, however, USADA has not asked to have another lab test the other samples, they’ve asked LNDD to do so. Regular Rant reader Marc, who is currently in France, sends the following translation of an Agence France Presse story that ran on the radio station FranceInfo:

Besides, the role of the AFLD does not end with this temporary giving up of authority [over the case]. The laboratory at Châtenay-Malabry (LNDD), which is a division of the Agency and had processed the analyses of Landis’ A and B samples, is in close contact with the USADA–not only to clarify the positive test of last July 20, but equally to pursue possible examinations of other samples, as the newspaper L’Equipe revealed Thursday morning.

According to the sports daily, the USADA has asked the LNDD to apply a method for distinguishing exogenous testosterone from endogenous to some of Landis’ samples. In the face of Landis’ refusal, an arbitration commission would have to decide about it before the May 14 hearing.

Now, if the samples come back clean, they don’t really prove anything that wasn’t already known — that Landis tested clean every other time at the Tour. And, regardless of how they come back, they don’t shed any further light on the results of the B sample tests from Stage 17 and whether or not mistakes were made on those tests.

Perhaps Tygart is looking for a pattern of doping that somehow managed to keep the T/E ratio low enough to prevent detection on the screening tests performed on Landis’ A samples. It certainly seems to be a likely explanation for Tygart’s move, as far as lab data goes, that he’s looking for evidence of doping on the other stages.

One bit of information trickling out about the request is the report by Hiltzik that not all of the samples USADA wants to test are from the 2006 Tour. Of the eight samples USADA wants to test, he reports, six come from the 2006 Tour. What events would the other samples have come from? Paris-Nice? Other races Landis did in France? Samples from other years? We don’t know, but something fishy seems to be going on here.

Further, this maneuvering raises the question of who owns the samples. Are they the property of Floyd Landis, LNDD, the ASO, the UCI, WADA or USADA? If Landis has to give his consent for testing to occur, then at the very least it looks like he’s got some claim to them. And if testing these samples could somehow prove his innocence, it seems to me that his team would have already chosen to do so.

My hunch is that if Landis had requested the tests, USADA and its allies would have turned him down flat by saying the results aren’t relevant to the infraction under investigation. The same way they have refused to provide the existing data from Landis’ other tests at the 2006 Tour. So if that’s the case, exactly how are tests of the other B samples relevant, either?

Next, there’s the matter of cost and time. Testing these B samples will take time. Roughly three weeks is what I’ve heard from a couple of sources, which could further delay the process. And during those three weeks, an expert (presumably Dr. Douwe deBoer, who served as the observer previously) would have to be present watching over the process.

Whatever the cost would be for Dr. deBoer’s time, it represents an additional cost to the Landis defense. Just as sending a lawyer to Paris to read his request to postpone the AFLD hearings cost Landis. As has hiring lawyers in France to stay abreast of the process there. And we haven’t even begun to talk about who pays for the actual testing, itself.

Presumably, since Tygart asked for the tests, then Tygart and USADA will pay for the testing. Tygart has been one to bemoan the cost of these cases and how the money could be better used for research and education. And yet, here he is, dragging out the case and increasing the cost for all concerned.

Also, one has to wonder what Tygart’s motivation for this little fishing expedition is. After all, he told the Daily Peloton that the USADA side was ready to move forward. If that’s the case, why does he need this additional data? It strikes me that this may mean the case against Landis is not as strong as Tygart and company would like us to believe.

Tygart’s gambit is a dangerous game. It seems clearly calculated to put Landis and company on the defensive in the public relations war that this case has become. And yet, his own foot-dragging may ultimately cost him and USADA credibility among their anti-doping peers and among the public.

What it does expose, however, is that as much as Travis Tygart would have us believe that defense requests for additional documentation are the reason for delays, the prosecution certainly bears some reponsibility, too. And one has to wonder what other legal jousting is going on behind the scenes, and whether some of that jousting originates in Tygart’s office.

A number of reports over the last two days have contained comments that the AFLD’s Bordry, along with others, are growing very tired of the slow pace of the Landis case in the US. And they are directing some of their ire at Tygart and USADA. Correspondent Marc tells us that in the French media Bordry has made it quite plain that he is beside himself over how long the American proceedings are taking, and the reason the AFLD put the end of June as their time limit is to light a fire under USADA.

Perhaps it’s time Tygart follow his own advice about avoiding fishing expeditions. Now that the date for the hearing is set, he needs to quit playing games.