Three To Go

When I used to race, it always seemed like things heated up in crits at about three laps to go. And then, in the last lap, things would go absolutely bananas. Well, we’re now at three weeks to go before the Floyd Landis arbitration hearings start. Before this morning, things were quiet — too quiet.

And with the revelations (in the previous post and also at TBV) that there is no independent observer at the testing of Floyd Landis’ B samples at LNDD, and that Landis’ observers were denied full access to the testing (despite full access for USADA’s observers and lawyer), and that Landis’ observers have been denied further access to the lab, developments in the case appear to be taking an even stranger turn. USADA’s observers are even directing LNDD staff in how to perform the testing.

With the barring of Landis’ observers from LNDD, the testing process at LNDD is now clearly revealed for what it truly is: a sham, cooked up to create the kind of evidence that USADA wants so that they can achieve the result they want — which is to find Floyd Landis guilty.

Given that neither the arbitration panel nor Landis is now represented at the testing facility, I can’t imagine how the arbitrators can allow any of the cooked-up “evidence” this testing will produce to be admitted at the time of the hearing. If it wasn’t clear before, USADA’s desire to win at all costs — including by breaking the rules and the rulings of the arbitrators — is on display for all to see.

If this were a true judicial proceeding, wouldn’t USADA’s lawyers be facing sanctions right now? Or a contempt citation? This development highlights just why the current adjudication process needs to be changed. As a quasi-judicial body, USADA should be held to judicial rules. They clearly feel bound by nothing in their quest to crucify Floyd Landis.

All this makes the letter I wrote this morning (just before the Landis press release came out) to Senator Herb Kohl (D-Wisconsin), who sits on the Senate Appropriations Committee (and specifically on its Commerce-Justice-State subcommittee) all the more timely. For those who wish to write their own Senators or Representatives, here’s what I wrote. Feel free to modify it for your own use.

Dear Senator Kohl,

I’m writing to you to express my concern about the United States Anti-Doping Agency (USADA) and the manner in which it enforces the World Anti-Doping Code in our country. As an agency which receives approximately 70% of its funding from the Federal government, I believe it is appropriate that our government exercise oversight into how our public money is spent.

And as a member of the Senate Appropriations Committee, and the Commerce-Justice-State subcommittee, I believe you would be in a position look into USADA’s programs and behavior prior to authorizing the next Federal budget.

My concerns stem from how they have handled the case against Floyd Landis. However, in reading articles published in the Los Angeles Times and other major media outlets, it’s clear that the approach used in the Landis case is USADA’s standard operating procedure, and stems from how the World Anti-Doping Code was written.

For instance, in our judicial system, a person accused of a crime has the presumption of innocence on his or her side. It is then up to the prosecution to prove that the accused actually committed the crime. In USADA’s system, it is the reverse. An athlete accused of doping must prove he or she is innocent. The anti-doping agency does not bear the burden of proof. An accusation is as good as guilt under the World Anti-Doping Agency (WADA)/USADA system.

In our judicial system, one is punished after being found guilty of a crime, not before. In the WADA/USADA system, one’s punishment starts the moment one is accused of doping. From that point until the end of their case, the accused athlete is not allowed to compete, which deprives innocent athletes of an opportunity to continue earning their living, among other things.

The WADA/USADA system of “justice” is based on arbitration, which does not allow the same discovery rights and processes, or the same guarantees as our judicial system. And though the arbitrators surely try to be as balanced as possible, the only arbitrators allowed to hear anti-doping cases are those approved by the World Anti-Doping Agency, which creates a potential conflict of interest from the start.

The system is built upon the idea that the science behind the anti-doping tests is infallible. An accused athlete is not allowed to challenge the science, only the interpretation of the results. And yet, many of these tests are created in a small, insular community, without the kinds of approval process that a simple medical test would have to meet in order for that test to be used in the marketplace. There are many ways in which the USADA/WADA system stacks the cards in favor of the anti-doping agencies, all but ensuring that once accused, an athlete will be found guilty — regardless of the truth of the matter.

The cost to fight an allegation of doping is prohibitive. Floyd Landis, last year’s Tour de France winner, has had to spend upwards of $1 million in his attempt to clear his name. And it is far from guaranteed that he will do so. He has had to resort to public fund-raising in order to continue his fight. Athletes of lesser means are unable to fight the system, and it is quite possible that some who were innocent have been pronounced guilty not because they were, but because they lacked the funds to clear their names.

USADA, in the Landis case (at the very least), has shown they are willing to hire expensive outside lawyers in order to prosecute cases, causing further delays and further expense, as these outside counsel have sought to gain tactical advantage, rather than seeking the truth and an understanding of the facts. USADA, however, have staff lawyers fully capable of adjudicating these cases, including Travis Tygart, USADA’s general counsel.

In the Landis case, they have chosen to use a greater portion of their limited funds to pursue the case. This seems to me the same as if our Justice Department decided that in a particularly notorious criminal case it would hire outside counsel to prosecute the accused. It’s simply not done, nor would it be allowed in our justice system.

Given that USADA’s budget is not infinite, and that they are funded by taxpayers, I think it’s reasonable to expect that our money be spent wisely. I happen to believe that using USADA funds to hire outside lawyers, when USADA has lawyers capable of trying cases, is a misuse of Federal monies.

Given that USADA is a Federally-funded agency, I think it’s reasonable to expect that in their quasi-judicial capacity, they act in accordance with our expected standards of justice, rather than perverting justice to their own ends.

While no one argues that athletes who dope shouldn’t be punished, the system must be built in such a way as to protect the rights of the accused. Floyd Landis’ case is a perfect illustration of how an athlete’s rights are trampled by USADA in their desire to win at all cost.

It’s my hope that when the appropriation granting money to the US Anti-Doping Agency comes before your subcommittee and the full appropriations committee, that you and your colleagues will take the time to look into how the agency functions and carefully consider whether it should be funded by public money in the future. Given the way USADA currently operates, if no changes are made, then I am against any and all future funding to this agency. If the agency is willing to come more in line with standard judicial practice and can demonstrate how they will do that, then — and only then — do I believe that they are worthy of Federal funding.

If any good can come from what Floyd Landis has had to endure in the last 9 months, perhaps it’s that the anti-doping system can be changed to ensure that no future athletes will be treated in the same manner as Landis has.

I hope you will take the time to look into this matter. I am happy to speak with you directly if you have any questions.

Thank you for your time and consideration,

It’s time for this madness to stop. The arbitrators should take a close look at USADA’s behavior and without any further consideration they should throw out the case. It’s clear what USADA’s up to, and what it’s up to is no good.