Fairly Distributed?

With arbitration hearings in the Floyd Landis case slated to begin tomorrow, now is a good time to look at how the cases will actually be presented. A couple of days ago, Trust But Verify published the details of how each day’s arbitration hearings would be conducted. According to the United States Olympic Committee’s order:

3. After Opening Statements, USADA will put on evidence in support of its case in chief. Following USADA’s completion of its case in chief, Mr. Landis will put on evidence in support of his case. If necessary, USADA will then present its rebuttal case.

Although this may sound very much like a typical court case, something about the structure strikes me as a bit off. What bothers me is that last sentence. USADA gets a chance to put on a rebuttal case, but Landis doesn’t. That struck me as an odd arrangement, as it allows USADA the first and last word on the evidence. This is definitely not the way we think of court cases being run.

And USADA can pretty much say anything they want in the rebuttal, regardless of its veracity, because they know the only way Landis’ lawyers can respond is to use time out of their closing arguments.

It certainly doesn’t seem like a balanced system, but then again, what else is new? I had a hunch that this deviates from the way a court case would be handled, so I asked an expert: Judge William Hue. His response confirmed my suspicion. What he told me was this: In a real court case, one side has the burden of proving the case. Each side gets to present whatever evidence they want, and then the judge or jury decides.

But the arbitration setup is unbalanced. [Note: Edited to make corrections, per a comment from Judge Hue.] In the arbitration, there are three “burden turns.” That is, a change in whose burden it is to prove their case. The final burden turn goes to USADA, to show that violations of International Standards did not “cause” the lab’s results that led to their conclusion that Floyd Landis doped. And the standard of proof is not our usual beyond a reasonable doubt, it’s “to the panel’s comfortable satisfaction,” which is a pretty vague and nebulous idea.

In a court case, the party that has the burden of proof gets to go first and last. So when USADA goes first and last, that much is standard. What’s not standard is idea of burden turns and that in the final burden turn, Landis will not be permitted to respond to whatever evidence or claims USADA makes. Landis doesn’t get any shot at rebuttal on the final turn. [End edit.]

Even though the USOC’s order also states that each side will get equal time to present their cases, Landis will not have a chance to respond to any evidence presented or allegations made during USADA’s final burden turn. Which sounds an awful lot like not getting equal time. Rebuttals take time, after all. Will the extra time they get in presenting evidence at the final turn be deducted from the amount of time USADA can use on other parts of their case? If not, the two sides don’t get equal time, USADA gets more.

This is yet another way that the system, itself, is stack against the athlete. In a fair fight, both sides get an equal shot at proving their case. In these hearings, however, the Landis side does not get an equal shot.

So Team Landis are going to need a laser-like focus and precision and a much stronger argument, just to get past the natural advantage that USADA has. One can hope that USADA won’t use their rebuttal opportunities, thus giving Landis a fair shot. But that’s unrealistic. USADA and their henchmen have already shown, through their pre-hearing maneuvering, that they are willing to take advantage of every advantage they’ve got.

If this whole exercise is meant to be a search for the truth, how is it that the anti-doping agency has such a huge advantage? Even the rules of the arbitration hearings are stacked against the athlete.

As pointed out at TBV yesterday, The Dougloid Papers has this to say about arbitration:

As a sometime litigator myself, it is my considered opinion that the conduct of arbitration and its alleged impartiality, cost effectiveness and utility is the biggest fraud ever perpetrated on a gullible and unsuspecting populace of yokels since the Cardiff Giant.

The only reason people like Dr. Gary Wadler of the WADA think arbitration is fair is because people who want to play judge, jury and executioner always say that. To admit that arbitration offends fundamental notions of fairness, transparency and minimal due process would be to admit that the entire process is morally and ethically bankrupt, without a fig leaf of credibility to hide its nakedness, an asylum being run by the inmates. Thus is it ever when neanderthals take the law unto themselves instead of leaving it to those who know it, and the system that was created thereby.

The purveyors of this quack remedy are the only ones impressed with themselves.

Pretty strong words. But the author has a certain amount of experience to draw on. He’s certainly gotten a better view than most of the rest of us. He goes on to offer some language he uses in response to consumer arbitration cases:

Consumer arbitration of the “take it or leave it” adhesion contract variety is fundamentally so unfair and biased as to eliminate any chance that a consumer in a debt collection case has any meaningful rights or the ability to present them in an economical manner. See, Deborah Schneider and Michael Quirk, Mandatory Arbitration of Consumer Rights Cases, Wisconsin Lawyer, September 2002 (and sources cited therein). Data disclosed by First USA in a case challenging mandatory arbitration revealed that the National Arbitration Forum found for the bank 99.6 per cent of the time. See, Carolyn E. Mayer, Win Some, Lose Rarely? Arbitration Forum’s Rulings Called One Sided, Washington Post, Mar. 1, 2000.

Perhaps some arbitration systems are fair. But it’s beginning to look like fairness is not really a requirement. Some arbitrators may take that into account, like Chris Campbell, but others may only think of fairness only in terms of whether they will be fairly compensated for their time. And whether there’s a fairly good chance of getting more of this highly-compensated work.

Keep all of this in mind as the hearings unfold. How effective will USADA’s rebuttals be — both in the court of public opinion, and with the arbitrators? And how fair will this process really be? We may not know the answer to that second question until weeks after the hearings end and the panel’s decision is announced.

Let’s hope that being under the public microscope has a moderating effect on the panel’s behavior and decision-making. Also, despite the advantages in favor of USADA, let’s hope the panel will decide the case based on the actual facts presented by both sides. But if not, then at least the panel’s behavior will out in the open for all to see.