Sign Of Things To Come?

In case you haven’t already heard, an interesting and disturbing story broke late last night in the Los Angeles Times and at NBCSports.com. A ruling by two of the arbitrators in the Floyd Landis case released on May 1st was written and issued without any consultation or input from Chris Campbell, the other arbitrator on the panel. The full panel is scheduled to hear the Floyd Landis anti-doping case starting on Monday at the Pepperdine University Law School in Malibu, California. (On-going coverage can be found at Trust But Verify, along with the email exchanges between the arbitrators and a copy of Campbell’s strongly-worded dissent.)

The ruling by the arbitrators is disturbing for a number of reasons:

As Michael Hiltzik points out in his LA Times article, the panel has more freedom to make it’s own rules. But a couple of experts Hiltzik spoke to found leaving the third arbitrator out to be unusual.

Experts in arbitration law said Tuesday that the exclusion of one party’s arbitrator from any deliberation is highly unusual and could raise doubts about the panel’s commitment to fairness. “It’s perplexing why the panel would not want to make sure every ounce of due process was afforded to Landis,” said Robert G. Bailey, an arbitration expert at the University of Missouri School of Law.

[…]

According to an e-mail to the parties made available to The Times, Brunet said he later informed Campbell that he had been excluded because Landis had merely asked the arbitrators to clarify their original order allowing the retests. Because Campbell did not join in the original order, Brunet argued, he had no right to participate.

Arbitration experts surveyed by The Times called that viewpoint novel but could not say whether it might lead a judge to invalidate any final ruling in the cyclist’s case. Courts tend to give arbitrators great leeway to make their own rules, they said.

Even if Brunet’s rationale were sound, said Stephen J. Ware, an arbitration expert at the University of Kansas, “best practices are that you should give the third arbitrator an opportunity to participate, just so you don’t have questions after the fact.”

In an ongoing discussion of these developments at the Daily Peloton Forums, several posters who have legal backgrounds appear to agree with the experts quoted by Hiltzik. This is an unusual move, and the reasoning behind it is unusual, too.

The comment above where Brunet claims that Team Landis was seeking a clarification of a previous ruling seems like an odd interpretation to me. What appears to have happened is that Landis’ attorneys filed a motion to block the “evidence” obtained from the additional B sample tests, citing not only the lack of an independent observer, but other aspects of proper testing protocol.

According to the article on NBCSports.com:

The May 1 order says, among other things, that the majority ruling permitting retesting did not say the B samples “were to be analyzed in the presence of the panel’s expert” — meaning, apparently, that the expert did not have to be on hand for the retesting procedures to be considered valid.

How, then, to assure validity? The panel-appointed expert will “advise whether the lab’s methodologies are flawed,” and that “represents an adequate protection” to Landis, according to the ruling.

What about the determination by the panel that Landis was entitled to the same privileges as in a normal B sample test? According to those rules, Landis has a right to have an observer present at all times. These privileges are independent of whether USADA had a representative there, or whether an independent observer was there. According to what Team Landis said last week, there were numerous occasions where their observers were denied the opportunity to view testing procedures and setup, and there were occasions where Team Landis’ observer was locked out — even though testing was continuing.

From my understanding, more was at issue than the presence or not of an independent observer. In their latest ruling, McLaren and Brunet find a novel way of excusing the lack of the independent observer. In essence, they say that the observer should be able to determine by the documentation whether or not things were done correctly. Call me a cynic, but if the independent observer wasn’t there in person, how can he or she be certain that the documentation is truthful? LNDD’s willingness to change documentation is one of the issues in the case. This smacks of the absurd to me.

The two arbitrators appeared to have denied Team Landis’ request to block this evidence by ruling narrowly on the issue of whether the independent observer needed to be present, not based on the questions and concerns that Team Landis brought to the table. Such narrow interpretations, without considering the entirety of Team Landis’ motion are troubling.

Could this be an indication of things to come? If Brunet and McLaren have already agreed on how the case will be decided, will they even listen to arguments made by Team Landis, and will they even listen to Chris Campbell when it comes time to determine their verdict? Will the two find a way of putting a veneer of “fairness” and “deliberation” on the final ruling to cover their tracks?

Patrice Brunet backed off a bit in his statement via email on the 3rd, saying:

As was previously explained to Mr Campbell, and which is offered to the Parties is the following:

(1) The Panel has always worked collaboratively, and intends to continue to work in this direction.

(2) All the decisions are taken after thorough consultation with other Panel members.

How do we really know that similar shenanigans won’t happen again? Take Brunet at his word? Color me skeptical.

Brunet and McLaren’s action shows the process up for the farce that it is. Given their behavior, it’s hard to imagine that they will be either fair or just in determining whether or not Landis committed a doping violation last year. Perhaps the glare of public scrutiny will shame them into doing the right thing, even though they may have already made up their minds, or someone might be trying to strong-arm them into a conviction.

It’s not everyday you get to see a kangaroo court in action. Stay tuned, we’ll see if shining the spotlight on the process will ensure justice is done.