Today, if memory serves me, is three months since the end of the Floyd Landis hearings at Pepperdine University School of Law, in Malibu, California. Still no word on if, or when, a decision will be announced. The masses seem to be getting more and more restless. Certainly, judging by the comments I’ve been noticing recently, almost everyone (including one of the witnesses) seems to be wondering: Just when will we hear?
For those of us following the case closely, that is certainly the question. Over at Endless Cycle, Peloton Jim keeps a watch on the chimney, wondering when the smoke will turn from black to white. And the crew at Trust But Verify keep daily tabs on all news Landis, while we’re all waiting to hear.
I even had an email today from someone who was wondering if, perhaps, like the original details of Landis’ test results, the decision had been sent to the UCI and they were holding off on announcing the results because Landis had been exonerated.
I don’t think so. While the case was moving forward to the hearings, when one side or the other made a motion, the panel’s decision would (eventually) be communicated to both sides at the same time. So, it stands to reason that this is how the decision will come down, too. Furthermore, other than playing the part of an interested bystander, the UCI wasn’t part of the prosecution — at least, not in an official sense.
USADA played the part of the prosecution, and the arbitration case is a matter between USADA and the Landis defense team. So, for the arbitrators to send the decision to the UCI would be a strange turn of events. Nothing’s impossible, but I’m guessing that it’s about as likely as my winning the Powerball on Saturday night. (Of course, if I’m going to win, I need to go out an purchase a ticket, eh?)
I still haven’t heard any word that the hearings have been closed. Three months on and the 10-day shot clock has yet to start ticking. So much for speedy justice.
As long as this is taking, it makes me wonder whether the arbitrators are working on the case full time, or whether they are balancing this work against other obligations. Granted, the amount of evidence they have to wade through is quite voluminous, but couldn’t they have hired some clerks to help them? They’ve got Dr. Botre as their science adviser. The arbitrators aren’t all enrolled in a series of chemistry and biology and microbiology courses trying to learn enough so that they can understand all the intricacies of the testimony — are they?
Then again, perhaps the weight of the decision the arbitrators have to make is heavy upon their shoulders. The decision may well be as big a turning point in the anti-doping world as the U.S. Supreme Court’s Roe v. Wade decision back in 1973 was vis-a-vis abortion rights in this country. If that’s the case, the panel must be diligently weighing every nuance of the case, and working very hard to write their opinion in such a way that the panel’s intent will be clear — if not to us “casual” observers, then at least to those who enforce the rules and those who defend the accused.
I have no doubt that the eventual outcome of this case will play a significant role in the future direction of the anti-doping system. Perhaps it already is. I’ve seen reference to Iban Mayo’s B sample being tested at a different lab than performed the A tests. Before the Landis case, such a move would have been unheard of.
At least one major event (the French Open Tennis Tournament) switched anti-doping labs. From one a few kilometers from where the matches are played to the anti-doping lab in Montreal. Given the convenience of LNDD, the switch was surprising, to say the least. Sure, the official announcement said something about lower costs in Montreal, but that sounds like a skillfully spun story, rather than a solidly convincing reason.
A Landis victory could be like a magnitude 8 earthquake for the anti-doping world. The entire landscape could be reshaped overnight. I can’t imagine that the arbitrators haven’t at least taken a straw poll amongst themselves to see how the votes will fall. And if they know which way the decision is going to go, they will be trying to craft the text of their opinion to make it clear how they want the ruling interpreted.
So one way it might go is that they would say, “Well, the lab screwed up in the way they documented their work, ran their protocols and maintained their equipment. So, even though we’re holding our noses at the outcome (nudge, nudge, wink, wink, say no more), we find in favor of the defense.” Which is to say, the system’s fine, the lab screwed up, he’s free to go.
Or, if they really think the system is broken, the decision could be a scathing assault on those aspects that the panel feels are most in need of repair. I doubt this is how it will play out, but it’s always possible.
Those two outcomes would have much different effects on the system, as we know it today. In the first case, there would be little pressure for any change. In the second, due to the publicity and notoriety, there could well be a groundswell as the public rises up to demand action.
And, of course, there is the possibility that the panel will find Landis guilty. In which case they must be poring over the evidence very carefully, and consulting their science adviser at length to make certain that the decision speaks very clearly to why the believe Landis is guilty. If the verdict is guilty, then the impact will be to strengthen the anti-doping authorities’ already strong hand. And if that’s the case, the implications are truly frightening to anyone who cares about having a system that respects the rights of the accused.
I wonder: When do the arbitrators get paid? As they work? Or only after a decision is announced? If it’s the latter, that would be incentive to wrap things up. If it’s the former, then they could rack up all the billable hours they want. I hope their deal with the USOC — the folks who pay for the arbitrators’ expenses — don’t pay until a verdict is rendered. No verdict. No pay.
All of this, of course, is speculation. A parlor game on a rainy Thursday night. At some point we’ll find out. It’s just that none of us have any idea when. And those who do know — the arbitrators — aren’t saying. Time will tell. And the clock keeps ticking … except for the 10-day clock to reach a decision. That one hasn’t been plugged in. Yet.
Rant, I’ve been playing this particular “parlor game” for a while now. I’ll post some thoughts about the delay in the ruling here, what I think it might mean, and so forth … when I have a minute, hopefully tomorrow.
But on the topic of when the arbitrators get paid … I don’t know for sure, but it’s common for arbitrators to be paid a flat fee in advance. I doubt that they’re being paid by the hour — that would defeat one of the purposes of arbitration, which is to lower the cost of resolving disputes.
How is the decision to start the 10 day clock made? Do all 3 arbitrators have to agree?
And then there is the appeal….
You know Rant – what with all this weather changes going on around the world…could it be that Malibu is having a black out? sorry – lackadaisical joke – I can do better.
–
What really burns my britches – Floyd is so screwed. My hope is that Floyd keeps up and just keeps riding. The bastards took away his means of livelihood!!! And the other thing is – it seems impossible to make them pay for this injustice! You know – as Americans, we have a real issue with such unfairness…I submit the “tea party in Boston”…I hate feeling in a “lynching-mood”!!!
–
We have got to get such low life out of power in the cycling world…in the world in general.
–
One thing I know that works – shinning a light on such life forms really wipes them out – or it at least makes them scramble under the rocks where they belong.
–
You got any Rant-Lighting Lightning on line yet?
(°L°)
Larry,
Looking forward to hearing your thoughts.
Will,
I don’t think all three have to agree, but they do have to decide to close the hearing. That could even be a 2-1 decision, I suppose. But once the hearing is formally closed, the shot clock starts…
Morgan,
Shining a bright light on the process is certainly what it takes. The more people who pay attention, and the more bloggers and journalists who keep up the pressure, the more likely some good could come of this.
– Rant
Speaking of shining a light, it is too bad there is no way of shining a light on the arbitrators. Consider a jury trial: although the jury’s proceedings are conducted in secret, at least we know if and when they are deliberating, and often get some hints about what is going on when they ask questions of the judge via written notes. But with the panel, we have no idea of what is going on. For all we know, they decided to take the summer off and go surfing or play golf or whatever. A jury works full time on their deliberations, we have no idea how much time the arbs are working on the decision. Do we even know how the process works? I mean, do the 3 physically get together to discuss things, with perhaps some or all of them trying to convince the others to a particular point of view? Do they teleconference? Or just communicate back and forth via email? This could be critical. Suppose that, following the hearing, they took a quick straw vote, with a 2-1 outcome either way. Now it seems to me that that one arb on the short end of the vote would have much great chance of winning one of the majority over to his POV if he could argue his case in person.
One could speculate about Machiavellian motives here. Keeping the case open could allow the USADA more time to submit additional briefs supporting it point of view, a USADA could enlist WADA’s help and get key personnel from many labs to submit papers supporting the work at LNDD. Or they could be dragging things out, knowing that any decision is likely to be appealed, such that even if the case ultimately goes Landis’ way, he will have served a de facto 2 year ban.
Of course, they could be working diligently on their decision, taking time to carefully weigh the evidence and to craft the written statement(s).
It’s funny that the arbitrators are stretching the rules to make it easier for themselves to do the work.
There is a rule that says they have ten days from the close of the hearing. The loophole is that they’re the ones who decide when the hearing closes. What is the point of having the ten day rule?
McLaren was the arbitrator in my anti-doping arbitration schemozzle, and requested from us an unlimited time to make his decision instead of the deadline that the rules gave him. We allowed it to him of course, because what the hell else are you going to say to the guy deciding on your life? He took 45 days to decide my case, and was deliberating on it as he listened to Floyd deal in Cali.
One of the reasons for the ten day rule is that athletes are supposed to not have to suffer undue delay in waiting for decisions – another justification that WADA puts forward for the private arbitration system.
My case has gone to the CAS on appeal, but it’s taken over 6 weeks for them to strike the tribunal. Just like Floyd and every other athlete out there who fights, by the time this thing is over, I’ll have sat my whole sanction anyway.
None of these guys are worried about getting paid – they’re all established lawyers, and are in it only because they enjoy it – makes them feel like big fellas.
You know, I understand that it’s hard for them to do their job and not break any of the timeline rules. It’s also hard to be an athlete and do that job without breaking any of the rules that we have.
jellotrip, I don’t know what to say. I mean that quite literally.
…
I think it would be callous and quite besides the point for me to speculate on the Landis case, now that I have the facts of your case in front of me. It feels wrong to me, and it’s hard to explain why exactly. Maybe I think it would be disrespectful to you, for me to ruminate abstractly about notions of justice and injustice, and to speculate on an arbitration process that I can glimpse only from a distance.
…
However, I don’t know if you want to discuss your case, or if you want to use your case as a way to illuminate what’s going on with the Landis case, or if you’d prefer to retain some degree of anonymity.
…
Also, this is not my blog.
…
All I think I can say at this point is, I’m so sorry for what you’ve had to go through. In case this is our only point of contact, I wish you the very best of luck, and my thoughts and best wishes go with you.
Larry,
jellotrip’s case has been discussed here, very eloquently i might add. to start you off, check out this post: http://rant-your-head-off.com/WordPress/?p=305
there are a few more, but after the first you will know how to properly search. be prepared — your blood will boil!
cam, I’m going to be very circumspect in my comments here, please don’t read anything into that. I’m doing the research on jellotrip’s case as time permits. A question for you, because maybe you know. I’d thought that a 2-year ban was the maximum penalty for a doping infraction, but that the authorities and arbitrators had the discretion to impose a lesser ban. Am I wrong here?
Jellotrip,
You case is a shining example of how the system needs to be changed to take athletes’ rights into account. It’s unconscionable that your case is taking so long. I hope things get resolved before you wind up sitting out for two years.
Larry,
Two years is the “standard” penalty for a first-time doping offense. In theory, the arbitrators have the discretion to give lesser sanctions if the situation warrants. In practice, the exercise of that discretion is spotty. Sometimes (like the Baxter case) they’re willing to cut the athlete some slack. Other times, they throw their hands in the air and say, “Well, we’d like to give you a lesser sanction, but the rules say two years, so two years it is.”
*
In other words it’s a consistent inconsistency in the system.
– Rant
Rant and others, we all want “fairer and faster”. And of course, “justice delayed is justice denied.” However, when it comes to legal process, the sad truth is that faster processes are inherently less fair. The things we talk about to make drug testing a more fair process – discovery, juries, appeals – are all time consuming. They’re also expensive. My own personal point of view is that when it comes to drug testing in sport, we need to stress the speed of the legal process even at the cost of some measure of fairness.
…
Which brings us to the case of Jellotrip. I’m going to speak cautiously here, as I don’t have all the facts. IMHO, there are at least two aspects of the jellotrip case that are patently unfair, and again IMHO we have to accept one of these aspects and not the other. The first of these aspects is the application of the “strict liability” standard to the Jellotrip case. Under “strict liability”, we don’t care how a prohibited drug gets into the system of an athlete. If the drug is in the athlete’s system, then it’s there, and the athlete is guilty. It doesn’t matter if the drug was taken knowingly and voluntarily (Joe Papp), or unknowingly but voluntarily (i.e., Kicker Vencil and the contaminated vitamins), or knowingly but involuntarily (jellotrip), or even unknowingly and involuntarily.
…
I don’t like strict liability, but I think it’s probably necessary in order to make the drug testing process faster and less expensive. If the doping prosecutors need to prove not only (1) the presence of a prohibited substance in the system of an athlete, but (2) how the substance was ingested or injected and (3) the intent of the athlete involved, then the system will bog down completely. The drug testing authorities will need to conduct investigations that go beyond the science — they’d need to act more like police.
…
The arguments against strict liability are compelling, especially in the jellotrip case. If we assume that jellotrip’s story is accurate (I have no reason to question it), then jellotrip is going to lose his funding and two years of his career because he involuntarily ingested a banned substance. What is an athlete supposed to do? Send all his food and drink to a drug lab? The answer, I guess, is that this is a risk of being a professional athlete (at least in certain sports) in today’s environment. You have to be careful where you go, and with whom you associate, and with regard to the medical equipment you use. And if you screw up, you’d better come clean before they catch you. It’s a tall order, especially considering that we’re human and that screw-ups are inevitable. (Please understand, I do not blame jellotrip for how the substance got into his system.)
…
Based on all of this, I think that imposition of strict liability in the jellotrip case is defensible. (I’m not going to go into the other aspects of the finding against jellotrip, at least not in this post, but I DO understand that more is involved than strictly a determination of whether the doctrine of strict liability should be applied to the case.)
…
The part of the jellotrip case that stuns me is the imposition of the maximum penalty. I don’t get it. IMHO, it seems so patently absurd that I’m certain I must be missing something.
Larry,
I really appreciate the time that anyone takes to take a look at not only my case, but any of the cases that the anti-doping regime has handled/is handling. Part of the problem is that until Floyd opened his case to the public, all of these cases were (and mostly are) held in camera, which causes misinformation, and that’s certainly the situation in my case.
…
You’re a little of the mark in your analysis – the issue in my case was not the strict liability of my ingestion. Ingesting cocaine out-of-competition is not an anti-doping offence. The circumstances surrounding the ingestion didn’t make any difference in my case – how it came to be in my system mattered not in the context of the anti-doping regime.
…
Having said that, absolute liability is illegal in most jurisdictions for penal infractions, be they private or not, and we’re going to argue on appeal (and did argue in the arbitration) that the “strict liability” of the WADA regime is actually absolute liability, because there is no defence to the offence itself, just an opportunity to have the sanction reduced.
…
Regardless, my case really didn’t have anything to do with the strict liability of the ingestion of a substance, because athletes are allowed to ingest it out of competition – it’s only prohibited in-competition. (more on that below)
…
The case really came down to the novel idea that “presence in sample” in my case didn’t equate to “presence in system”, which in the cases of able-bodied athletes with no intervening piece of contaminated equipment, just never comes up.
..
My basic argument was that the substance was not in my system at the time of the test – it was in a contaminated piece of equipment.
…
The case was turned into a question of whether or not the doping control authorities are required to provide sterile catheters to athletes with disabilities or not, but the Arbitrator completely ignored the evidence that there were substantive departures from the rules as they exist regarding what should happen if an athlete arrives at doping control with his or her own catheter.
…
Essentially, by allowing me to use a previously used catheter, the validity of the test was compromised by allowing the use of a previously used piece of equipment – in exactly the same way that it would be compromised by allowing the use of any other previously used piece of equipment.
…
The Director of the CCES actually testified that even if they knew that an athlete was about to use a contaminated catheter, that they wouldn’t stop them.
From the transcript:
Question by Tim Danson:
“If a DCO sees an athlete using a catheter and is concerned that it could be potentially contaminated, do they not have an obligation to note that and/or attempt to prevent the athlete from using the catheter?”
Answer by Joseph DePencier:
“Well, again, I don’t think a doping control authority is going to prevent someone from using a catheter that’s contaminated with a prohibited substance because we’re in the business of discovering the use or presence of prohibited substances.”
…
Some people have told me that they think this is an example of pure evil, and we will ask the CAS tribunal to consider if this is essentially entrapment.
…
The issue comes to a fine point inthe context that there are some drugs that are prohibited at all times, and others that are only prohibited in-competition.
…
Cocaine is only prohibited in-competition, so ingesting it out-of-competition isn’t an offence – having the metabolites remain in your system in-competition is an offence though, so if someone ingests cocaine a day before a competition (regardless of how they ingest it under strict liability), and the metabolites remain in their system the next day when they compete, they have committed an anti-doping infraction. If someone ingests cocaine a week before a competition, and the substance and the metabolites are out of their system by the time they compete, there is no anti-doping infraction.
…
It’s the same as if the substance was cold medication that is only prohibited in-competition. So the issue of strict liability is not with regard to the ingestion – it’s with regard to the metabolites showing up in my sample, and if I am stricly liable for the contamination of my catheter with urine that was produced out-of-competition, when it was not against the rules for me to have the metabolites in my system.
…
In my case, the Arbitrator decided that if I was telling the truth, that scientifically, there was no way that the substance could have remained in my system. The CCES expert, Christianne Ayotte testified that 2 drops of residual urine in my catheter would have produced the results that they got, in the amounts they got.
…
The Arbitrator said that my version of events “strained credulity” even though I had two independent eye-witnesses, and my testimony was “unshaken” in cross examination.
…
In deciding to sanction me, he was unclear about what “strained his credulity” – he either thought that I had ingested cocaine in the days leading up to the competition (knowing that I would be tested, and that if I took cocaine in the one or two days prior to the race that I would undoubtably test positive), or decided that I had the entire burden of ensuing that my equipment was sterile.
…
The Canadian Anti”Doping Code (CADP) rule 6C.5 states:
“The DCO shall ensure that the Athlete is offered a choice of appropriate equipment for collecting the Sample. If the nature of an Athlete’s disability requires that he/she must use additional or other equipment as provided for in Annex 6B: Modifications for Athletes with Disabilities, the DCO shall inspect that equipment to ensure that it will not affect the identity or integrity of the Sample.”
…
The glossary of the CADP defines Sample Collection Equipment as:
“Containers or apparatus used to directly collect or hold the Athlete’s Sample at any time during the Sample collection process.”
…
In her testimony, the CCES expert witness, Dr. Christianne Ayotte said that a clean catheter is “a must”, and the CCES acknowledged that they neither offered me a choice of catheters, nor did they inspect the one that I brought and used.
…
If a catheter falls within the definition of “apparatus used to directly collect or hold the Athlete’s Sample at any time”, or within the definition of “additional or other equipment as provided for in Annex 6B”, then rule 6C.5 is triggered, and the DCO must at the very least inspect the equipment.
…
If a catheter is open and has been previously used, then it always affects the integrity of the sample, in the same way as any piece of equipment that was open and had been previously used would.
…
There is more information on my web site – adamsmania.com
…
We’re also arguing that the anti-doping authorities are Government actors, which brings Constitutional protections to the athletes that are subject to the drug testing regime.
…
This case has huge legs, and when I win, it will force the Canadian anti-doping authorities to respect the principles of the Canadian Charter of Rights and Freedoms – this may well be the crack in the dam to bring Amendment Rights to the US process and whateverthehell kind of rights the Euros might have to them.
…
(just kidding, all you Swiss arbitrators reading this)
…
If it does, it’ll make the insane legal bills worth it.
Jello.
chapeau, jellotrip, chapeau!
Hey – jellotrip – welcome – Thanks for testifying – A very clearly stated mind blowing indictment that we have an illegal sub group who’s actions are illegal , as our society considers illegal – running their show in full contempt of the law…—…Why does not the social justice system not step in? –
–
Jellotrip – your experience just blows my mind. Did you perhaps have the chance to test the waters of all the people involved – would seem that some of them were deaf and dumb…or are they so inept at doing their job – words clearly and succinctly stated; they are able to completely ignore! Will somebody explain to me how that is possible that this was allowed to happen..?
jellotrip, lost my reply to you in a computer crash, sorry.
…
Your case should never have been prosecuted.
…
I DO get the distinction you’re drawing between out of competition use of a banned substance and in-competition presence of the substance in an athlete’s system.
…
Will try to write more later. Good luck, guy.
I always thought the strict liability rule was in place to avoid the situation where a coach or trainer gives an athlete something, saying “take this, it will help you” but doesn’t say what it is. But the idea of speeding things up by avoiding having to delve into issues of intent and the like makes sense too.
I think what many of us are finding frustrating about the length of time is that maybe it really shouldn’t take all this long to reach a decision, once all the facts are in. I don’t know about any “records” but I think that most juries in criminal cases do not take months to reach a verdict or determine that they are hopelessly deadlocked. Since it is impossible for the panel to deadlock, that is not an issue here.
Granting a reasonable pre-hearing period for the two sides to prepare their cases, a suitable amount of time in the hearing itself, and again a reasonable amount of time post hearing for further submissions is fine. Devoting enough time to weigh the evidence is fine. But is that all that is going on here? I am guessing that, since the arbs do have day jobs, they haven’t been putting in 40 hour workweeks devoted exclusively to the Landis case. Perhaps they have indicated to both sides when they intend to “close” things and Landis/USADA must keep quiet because of the gag order. But I doubt that; I am sure that one side or the other would find some way to tip things off without actually violating the gag order.
Maybe there is good reason for the delay. Maybe we will find out once the decision is published. But I suspect we will never know.
I enjoyed your article!
Whatever the outcome the process is horribly broken. Simply a man’s career has been damaged by acquistation without reasonable resolution.
If Floyd is guilty it’s taken too long and the process has not demostrated convincing evidence and has lost support of the sporting world.
If Floyd is not guilty, this is an injustice which can’t be redressed. The process is faulty, the ‘organization’ smeared his reputation and put him on trial in the public forum.
In either cast the data present was weak, collected by a faulty process, evidence has been deleted, and ‘justice’ can never be served by an organization with these critical flaws.
It’s time that the oversight organizations undergo the same review as the participants, they should be held accountable for their actions.
Hey everyone,
Interesting discussion going on here. It’s giving me a few ideas for future posts.
– Rant
jellotrip, as I stated earlier, the authorities should have dropped your case, or if they had no discretion whether to prosecute, they should have given you a slap on the wrist (“jellotrip, I order you to give lectures to schoolchildren on the dangers of talking to strange people in bars”). If they had to prosecute, and if there was no discretion available in the penalty, then they should have lost the case on purpose. There was no possible purpose served in what they’ve done to you.
…
In my earlier post, I probably should not have focused on the circumstances around your ingestion of a prohibited substance. On further review, it appears relevant only to a possible explanation of a possible contaminant that might have been present in the catheter you used in the in-competition test. But there’s no way to know at this point whether the catheter in question WAS contaminated — either it WAS contaminated, or there were prohibited substances present in your system at the time of the test (or someone screwed up the test — for the moment at least, I’ll ignore that possibility).
…
Given the possibility that the catheter was contaminated, I think the next question would be, who was responsible for the fact that you did not use a sterile catheter? That’s a tougher question. I’ve read the materials you’ve posted, and I’ve quickly read the arbitration decision in your case. Not an easy call. From a common sense standpoint, you bear some responsibility (you were the only person who had reason to know that the catheter could have been contaminated with a banned substance). I think on balance, the drug testing authorities bear the higher responsibility: they were required to inspect, and did not inspect; they did not have a sterile catheter on hand, even if you had asked for one.
…
If I follow this conclusion to its logical end, it appears that the use of a potentially contaminated catheter would (in the absence of some effort by the drug testers to substitute a sterile catheter, or at least to inspect the used catheter) effectively make an athlete immune from sanctions. That’s not exactly a comfortable conclusion to reach, but the conclusion appears sound to me.
…
The more sound conclusion is that the authorities should have exercised prosecutorial discretion, and dropped your case into the “circular file”.
William, you’re right that a 3-person panel cannot “deadlock”, but they can disagree in ways that might delay a decision. For example, the panel might have decided that it’s important to issue a unanimous decision, but they’ve been unable to agree on the grounds of the decision.
…
You draw an analogy to juries. Yes, you’re right, I think that the average jury deliberation in a criminal case would be measured in hours, not days (I did some fast research, and there was a 4-month jury deliberation in a California case. But that’s very unusual, probably a State record, if the State kept records of such things). But an arbitration panel is more like a panel of judges than a jury, and panels of judges often take months to reach their decisions. As with a panel of judges, the arbitration panel is probably NOT working on the Landis case full time.
…
While I speculate a great deal on the meaning for the delay, you’re right to suggest that maybe there is no particular meaning. It’s summer, and the reason for the delay may be conflicting vacation schedules. I suspected that the panel might not want to issue an opinion during the racing of the Tour de France, or soon after the end of the Tour, but obviously that’s not a factor any longer.
…
Mike, maybe it’s because I’m a lawyer, but I see things differently. It is unfortunately the case that ANY false accusation of ANY of us in ANY walk of life creates injury and distress that cannot be fully redressed. I’ve said it here before, even when a person wins in litigation, the person loses — he loses time and peace of mind in all cases, and probably loses money and reputation in most cases. Landis’ case impacts his career as a pro cyclist, which is by nature a short career, so any loss of time hurts Landis more than the average person … still, it’s a fact that some people caught up in the legal system have less time to lose than others.
…
Yes, we’re all impatient for a decision. But if waiting is required to get to the RIGHT decision … then presumably we’d all be willing to wait. To be sure, if the panel (natually inclined as are most panels to side with the prosecution) is wavering, if the pro-Landis arguments are slowly working their way through their brains, creating growing doubts … would you really want to force their hands at this point, announce “TIME’S UP!” and force them to decide?
Larry:
My point on the issue of deadlock is that any decision voted on must of necessity have at least a 2-1 majority, which is all that is legally required. Can they legally require a unanimous decision? Or, if they hold themselves to that level when legally all that is needed is a majority, could the losing side use that in an appeal? Perhaps not in CAS, where it simply is a new hearing from the beginning, but could the losing side perhaps take the issue to the California court system? Breech of contract? But anyway, the fact remains that any time 2 of the panel members agree, then that can be the formal decision of the panel. They could even overrule any previous agreement for unamiminity.
Ever see the movie “12 Angry Men”? It’s pretty old, although I seem to recall a recent remake. The basic plot is a jury retires for deliberations in a murder case. At first they are 11-1 for conviction, and the 11 are pretty miffed at the holdout (Spencer Tracy, as I recall). But he forces them to more carefully weigh the evidence and 1 by 1 wins them over. Eventually they reach a not guilty verdict, and this is indeed the just and true verdict.
Now this is one problem I see with the arbitration setup. Sure, a 3 member panel with only a majority requirement can make for a speedy result, or at least faster than if only a 3-0 vote was accepted. But it also allows for an easy tyranny of the majority, something we saw a hint of in some of the pre-hearing motion decisions, where 2 members made decisions apparently without even consulting the third member. No chance for a Spencer Tracy to argue for his POV and win the others over.
This is why I hope that they are actually physically meeting for deliberations, or at least teleconferencing. A lot harder to ignore someone in person rather than just skim through a written argument and continue with you already formed conclusion.
Now, to change the subject slightly. We have been speculating about when the decision might come, but what about the day of the week it will come. On a Monday, or on a Friday, or what? I have read things where it is said, if you want to release something and sort of hide it, do it late on Friday, so as to miss the news cycle of the press and network news. People pay less attention to news on the weekend. If you really want to bury it, announce it over the weekend. But if you want as many people to know about it, then release the news Monday morning, so it can be in the news all week long. Any thoughts here?
“would you really want to force their hands at this point, announce “TIME’S UP!” and force them to decide? ”
…
Isn’t that essentially what the arbs did to the folks presenting the case by putting a time limit on submissions during the hearing? Now that they’ve taken three months, would an extra day or two of hearing time have helped……did not giving those extra couple of days have a negative effect….would a few more days in the hearing have reduced the time they needed to make a decision?
…
How does that saing go……Good for the goose, sauce for the gander?
…
They held the public release of my decision for four days – from Thursday to Monday, and the only reason for them to have done that was media bang.
Jello – I believe we are as frustrated as you – with the “waiting game” play going on.
–
William, Larry – I understand your presentation – it is, under ideal situation the correct course of action. It is also a hope in most every one – that the Arbs are actually treating the case with the dignity it should be considered under.
–
For any defendant – this time does feel just too long. After all – for pro racers – it is basically an inability to earn a living, his/her status goes from amongst the highest to the lowest. His/her self image is completely called into question, his worth as a human being is being publicly questioned, not as theory – but rather as a complete redefinition of who he/she has “gained” through his /her work…The person is not really able to feel that they have a means of “fighting” back.
–
The athlete – as Jello has presented to us, feels at the mercy of people and institutions who he/she cannot, as he is used to compete/fight against to “win” – we have to recognize that the pro athlete is not a group type individual – he/she tends to have a strong self reliant personality – so when he/she is taken to litigation – his sense of “helplessness” skyrockets, his/her winning relies on someone else, he must remain passive.. He/she cannot fight/compete as he is most used to in dealing with situations in life.
–
As Rant points out to us – for an athlete to be out of compatition for 2 years, means pretty much the game is over…Perhaps the only time this would not be the case is if the defendant is “busted” early on and is not in the peak of their athletic life span.
But this “advantage can only be on the physical side – no guarantees that the accused/punished athlete will survive the punishment mentally.
–
The topic comes up regularly – does Floyd win if he actually gets a “win” from the Arbs? – the reality seems to indicate that there is no way to Win, once being forced to go through the process that leads to having an arbitration hearing. The groups and individuals involved, “plead” the case in the public media, presenting their stance with the sole intent of winning.
–
This has nothing to do with justice or fair play. It is about “winning” – to win their stance, the individuals or groups simply destroy the individual under attack. The accrued worth of the individual is completely ignored. It is nothing less then finding yourself running from a lynch mob who is not willing to listen that you may not be the one who is “guilty”.
–
So we can in theory expect calm and patience from defendants – but it is certainly not very realistic.
William, yes, the panel can certainly move forward with a 2-1 decision. However, in a case like this, a 3-0 decision is preferred if it can be reached. If all 3 arbitrators saw the case the same way, it gives the decision added weight — it might discourage an appeal, or at least give the appeals court something to think about. Also, even if the decision goes 2-1, the majority will want to agree on a single opinion. A 2-1 decision is even weaker if it is accompanied by 3 opinions. So … there are dynamics at play here, in terms of trying to get 2 or 3 arbitrators on the same page, that may be delaying the decision.
…
William, “12 Angry Men” starred Henry Fonda, though I think Spencer Tracy would have been a great choice, too. The 3-person arbitration panel is pretty common in the U.S. — it’s probably preferable to the single arbitrator that decided the jellotrip case, but agreed that the dynamics of any threesome tends to leave one person out in the cold. I’ve never heard of an arbitration with more than three arbitrators.
…
William, completely agree on when you’d want to release the decision. I expect a Friday release regardless of the decision (in the afternoon, California time, so it’s evening in New York and Saturday in Europe). There is so much heat and controversy in cycling right now, I think the arbitrators will want to do all that they can to keep things calm and quiet.
…
jellotrip, if memory serves the Landis arbitrators did extend the length of the hearing by a day or two. But you’re right, it may well be the case that a couple more days of testimony might have cleared up some issues. I DID feel that the Landis team’s case was a bit rushed.
…
Morgan, agreed. There will be no winners here.
Larry:
Thanks, you’re right, it was Fonda, not Tracy, his courtroom drama was “Inherit the Wind”.
I see what you mean about perhaps the panel would like to speak with some degree of cohesion, if possible. I guess we will never know exactly what went on; as I doubt that they are going to say “well, we went on vacation for a month, then we spent a couple of weeks catching up on our other work before getting back to this” (or whatever is the reason for the long time). Of course, there may be entirely legitimate reasons things are taking so long; one can only hope so.
{ 1 trackback }