Paved With Good Intentions

I wrote a real fire-breathing rant last night. A doozy. Sparks flew from the keyboard as I tapped away. But I was tired and decided to wait until morning to finish. And in the cool light of morning, I decided to do a total re-write. But before I get started, I want to say that the opinions here (as always) are purely my own. And they should be in no way interpreted as trying to coerce legislators or interfere with the adjudication of the Landis case.

From the revelations of the last few days, I think it’s clear that Travis Tygart and his hired henchmen are completely out of control. Want an example? Read the USADA’s latest discovery request, over at TBV. When you do, you’ll see that it’s clear they are trying to impose unnecessary burdens on Landis in the weeks leading up to his May 14th hearing.

Specifically, they are asking Landis to provide a large volume of information, including information related to defense “strategies” they suspect that Landis will employ which appear to be based solely on comments made to the press in the early days of the case. But, to flip the coin over to the other side: What, do you suppose are the chances that the prosecutors have provided any information to the Landis defense team about their strategies? Slim to none? Sounds like a good guess to me.

A large amount of what they ask for is either frivolous (like the FFF donor list), or would invade Landis’ privacy (like requests for all his medical records) or is just plain weird (like the request for information on who has paid how much to Landis’ coaches and medical staff during his time at Phonak). None of this information has any bearing on whether Landis did or didn’t dope on Stage 17. The only conclusion one can reach is that USADA is going on a fishing expedition, hoping to find some small bit of information they might be able to contort into “evidence” that Floyd is, indeed, a witch and should be burned at the stake.

Perhaps they haven’t always been out of control. Perhaps Tygart and his goons have been whipped up into such a frenzy by the mushrooms on their last pizza (psilocybin, anyone?) that they’ve lost sight of what they’re supposed to be doing. Tygart, in a January interview over at the Daily Peloton Forum, had this to say about how they budget for their legal costs:

[W]e have to estimate what we will have to spend on each case to respond to the arguments raised by defense counsel, including any frivolous defenses or efforts to hide from the truth.

With these latest developements, however, it appears they also need to factor in how much it will cost to hire outside counsel to engage in frivolous efforts to distort the arbitration process. By the way, the last time I checked, Tygart was still the fulltime in-house counsel for USADA (he stands to become the head of the agency later this year — scary thought, that). And there aren’t that many major cases he needs to address right now.

So what the hell is he doing hiring outside counsel and spending large amounts of money to do so? It’s not as if those greenbacks he’s spending grow on trees. Someday soon, Daddy Megabucks in Washington may get fed up with USADA’s profligacy and cut off their trust fund.

And why does Tygart need the additional firepower, anyway? Isn’t he capable of handling this case on his own? If not, just how incompetent is he, and why should USADA be employing him?

In the Daily Peloton Interview, Tygart also said:

As I mentioned earlier, USADA was formed on behalf of clean athletes to ensure fair play and the integrity of the rules, plain and simple. No case is worth compromising the rules and impugning our integrity and credibility.

Really? Apparently Tygart has changed his mind on that, judging by the mockery he and his outside lawyers are making of the process right now. Apparently, it’s OK to demand that the athletes play clean, even if USADA won’t follow their own rules (or the rules of the WADA Code, to which they’re signatories).

Over the last few days, I’ve been thinking that there needs to be a change of focus at USADA. They claim to be trying to determine the truth and understand the facts, but at the time they should have been doing so in the Landis case, they plowed ahead with charges — before checking to be sure a case really existed.

The review panel in September may well have been just placed a rubber stamp to a plan of action that had already been predetermined. The fax informing Landis’ defense team that their request to drop the case had been denied was dated three days before the meeting to consider that request took place. Clerical mistake or foregone conclusion? You decide.

USADA’s refusal to provide discovery documents requested in October, and their stalling on providing those documents, even when ordered to do so by the arbitration panel, is another illustration of a process out of control. Maybe this isn’t the same as a criminal trial, but it has some of the same hallmarks. Including the fact that the process determines guilt (or not) and imposes punishments if found guilty. But by the way USADA plays the game, it appears the game is rigged.

USADA pretty much can do what it pleases as it prosecutes a case, and at the same time it can deny access to information that might help the defense. They can order up tests, which the arbitrators have now approved, that the defense couldn’t ask for or get approval for. Tests which may require that the lab performing them break various rules in the WADA code. It’s pretty clear: In this game, the house (USADA) always wins.

As Chris Campbell said in his dissent:

The admission of evidence obtained in clear violation of the WADA Code smacks of an uneven application of the rules. To allow such conduct strips this adjudication of the appearance of fairness.

This is not the kind of process Floyd Landis, or any athlete should be forced to endure. And it’s time the process changes. To begin, the process should really start from a presumption of innocence. Tygart may claim that it does, but as applied by USADA, WADA and others, it starts from a presumption of guilt.

Whatever the case may be in other countries, our justice system starts (in theory) with a presumption of innocence. And since USADA runs a quasi-judicial agency receiving Federal funds, they should be following the same process as our courts do.

The goal of an agency like USADA is good. To eliminate, or reduce, the use of performance-enhancing drugs in amateur and professional sports. The system that USADA has built is not so good. It’s a perfect illustration of the saying, “The road to Hell is paved with good intentions.”

The anti-doping “movement” in this country stands at a crossroads today. We can continue down the same path we are currently on and see athletes’ rights trampled by an agency that is out of control, or we can demand change.

Change can happen by reforming the current system, or by scrapping the current system and starting from scratch. My thought is that the current system needs to be shut down, and a new one, with an emphasis on providing the same protections to accused athletes that accused criminals receive, be implemented in its place.

That, I think is the best approach. Travis Tygart and his ilk, for all their good intentions, have crafted a system more in line with a fascist totalitarian dictatorship than a democracy. It certainly doesn’t have any resemblance to our justice system.

As long as USADA (or whoever replaces them) receives public funds, they must follow the same rules our Federal judiciary system follows. If you want Federal money, you have to be willing to accept some oversight, and you have to play by Federal rules. That means respecting athletes’ civil rights (and right to privacy), providing a system that ensures due process, and ensuring that the system does hew to the tradition of innocent until proven guilty.

If nothing else comes from the Landis case (although I still believe he will be exonerated), creating a new version of USADA more in sync with our judicial traditions or (failing that) changing USADA’s procedures to ensure fair treatment of athletes in the future would at least ensure that some good comes from this whole debacle.