Landis Decision Expected By Late September

by Rant on August 31, 2007 · 19 comments

in Doping in Sports, Floyd Landis, Tour de France

According to an article at ESPN, the arbitration panel considering the Floyd Landis case will reach its decision by late September. The article, written by Bonnie D. Ford, states that ESPN has a copy of a memo from Patrice Brunet to the lawyers for both sides, which states that the panel plans to hold their last meetings with its scientific adviser, Dr. Francesco Botre, on September 12. Botre, the director of Italy’s WADA-accredited anti-doping lab in Rome, attended the hearings in May to assist the panel with the scientific issues surrounding the case. Brunet’s letter apparently tells the attorneys that once the September 12 meeting is concluded, the arbitrators will formally close the hearing.

According to the rules which govern anti-doping arbitration cases, the 10-day decision clock will start ticking once the hearings are closed. If the hearings are formally closed on September 12, then the decision must be announced by September 22. It could also come at any time between the 12th and the 22nd, as the panel is not required to take 10 days to reach their decision, but they are required to reach a decision within 10 days. The hearing could be a formality, to answer any lingering questions, and the decision could be largely written before then.

All of this is to say that some time after September 12, it appears we will hear the arbitration panel’s verdict. Why has the decision taken so long? According to ESPN:

The memo offered no real clues as to why the panel has taken three months to reach a decision in the case, in which the 2006 Tour de France winner is disputing his positive test for synthetic testosterone in the crucial Stage 17 of that year’s race.

“The panel remains acutely mindful of the timing issues in connection with this case; however, the Panel also needs to verify an important volume of technical information, which is at the very core of this arbitration,” the memo stated.

The transcripts of the hearing run to 1800 pages, with much of the testimony centering on scientific issues. Apparently, the panel has needed time to sift through all the testimony in order to make its decision. But, as Ford’s article notes, no other real clues are offered why it will have taken four months to reach a decision, should the arbitrators’ verdict come out in September.

Is this good news or bad news for Team Landis? That’s hard to say. A quick decision would likely have been bad news, because that would have suggested that the defense didn’t make a strong enough case to win. (Of course, one could argue that a quick decision could also indicate how overwhelming the defense’s case was.)

The lengthy deliberation may well reflect the panel’s awareness that the case it is deciding is a potential watershed anti-doping decision. As ESPN also notes:

Whatever the decision in the Landis case, the ruling could be a landmark one for cycling, anti-doping authorities and accused athletes in any sport because of the high profile and costliness of the case and the issues it raised about the fairness and accuracy of the system.

The technical issues underpinning the case could, if the arbitrators find strongly in favor of Landis, send the labs and scientists back to the drawing board. Or, the decision could castigate WADA for failing to come up with a “harmonised” system, with consistent standards applicable at all labs. Or, it could hang France’s anti-doping laboratory (LNDD) out to dry and say the system, itself, is all good. And, of course, the decision could go against Landis and say that the evidence against him was not refuted by the defense.

While this is speculation, the one thing we can count on is that the panel’s opinion (or opinions, if it’s a 2-1 decision) will be carefully worded to make its desired interpretation of the judgment abundantly clear. Sometime between September 12 and September 22 we may find out who wins this round of the Floyd Landis case. Stay tuned.

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just bitch slap me please August 31, 2007 at 5:53 am

The aussies’s are certainly faster:
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http://news.bbc.co.uk/2/hi/asia-pacific/6971712.stm
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My prediction is Landis gets off. If this had been 2 to 1 to convict it would have been announced months ago. I think either 2-1 or 3-0 to let him off and a few bricks to be thrown through the WADA front window. Anybody want to put $10 on the line?

Dumas August 31, 2007 at 7:44 am

I´m not sure. From my point of view it´s easy to make a decision, there were so many violations of the ISL/ISO, you just have to pick one, that´s enough.
Why is Botré coming again? And why do they need a WADA-Lab-Director, arrested in WADA´s Omerta, to help them?
I´m scared about that. So, we have a four instead of three arbitrator panel.

Rant August 31, 2007 at 7:56 am

JBSMP,

I was just wondering what became of the Thorpe scandal. Thanks for the link.

Dumas,

Welcome back. I agree that the evidence of all the ISL/ISO violations ought to be enough. My own guess is that they’re wrapped up in writing the legal opinion, rather than the scientific one. But, as you note, why do they need further consultations with Dr. Botré? And you’re right to raise the issue of the WADA Omerta. If I’d been a part of the panel, I would have wanted a truly independent scientific expert, not one affiliated with the anti-doping system. You’re right to be scared. The panel’s final judgment could well be influenced by what Botré can or can’t say without violating WADA’s Omerta.

– Rant

James Dixson August 31, 2007 at 9:53 am

I would like to think that they are asking Botré some very difficult questions. I would also hope that he is answering them truthfully with the disclaimer that he isn’t quoted directly and thus upholds the Omerta.

I believe they’ve been working on crafting a decision in such a way that it leaves no question as to why they decided the way they did. Can it go both ways, sure… Does the length of time they’re taking to consider it lean more towards the Landis side? I think so. I agree that if it were against Landis they probably wouldn’t have to much explaining to do. The panel could simply state the evidence, while riddled with holes, still points to a positive and that would be that.

To make the right decision (in my opinion) and take the high road has serious ramifications. They know that their ruling will be scrutinized by WADA and may ultimately used to determine whether or not the move forward with the CAS. I believe the arbs may be working to craft their decision document to read, “this guy was clean, or based on LNDD’s finding it’s impossible to know for sure…just drop it”

Wishful thinking, perhaps…but I am an optimist.

William Schart August 31, 2007 at 11:30 am

Reading between the lines I find some indications of how the panel actually worked. Spetember 12 is going to be the last meeting with Botre. I think this indicates thath the panel worked by holding meetings at intevals throughout the summer. How many and how often? Who knows. But I suspect an outline might be something like this:

After the hearing, once transcripts were available, they might have said to each other “take so long to read through the transcripts, then let’s get together and discuss things.” Maybe then at a meeting, they decided there were issues they would like input from Botre, perhaps in a physical meeting so they could Q&A him. After a meeting, they probably went home, back to their day jobs, while spending some time reviewing materials from the case, perhaps looking at other cases for precedents, etc.

I also suspect that by now they have pretty much made up their minds. The meeting with Botre is probably just to clear things up so that what they say in the written decision is scientifically accurate and justifiable, rather than to get information to use to determine the outcome.

I see the the 12th is a Sunday, and the 22nd is a Wednesday. If the panel wanted to maximize the impact, I’d say a release on Monday the 20th is called for. If they wanted to lay as low as possible, then Saturday the 18th.

Mike Byrd August 31, 2007 at 1:55 pm

So much for a speedy resolution as stated in the WADA rules (as someone posted on TBV i think).

The ‘power’ that the arbs hold right now is incredible. Think about it for a second, if they find for Landis, how does that make the UCI look especially considering they just blasted Valverde for holding him out of the World Championships (while allowing him to ride the Tour). Not Good.

What about WADA? They’ve stated repeatidly that the testing is sound and that LNDD was/is a great lab. But if the arbs find for Landis….oopss, sorry Floyd. By the way, that remark about a damn Harley and violating Virgins…that was just a joke…

Hmm…ASO?? What are they going to say…Sorry Floyd, we thought the labs were always right, but it’s the UCI’s fault!

Oh yeah, what about our good ‘ol USADA? The tried to take the high road and state that their case was a search for the truth and made Landis out to be a bad guy ‘phishing’ for anything that would make them look bad. And then they bring in LeMond and Papp and attack Landis’ character (they got REAL Lucky on that one because of Will’s call). Was that a search for the truth? Not to me. Why did the Arbs even allow it. And the fact that they tested Landis’ other samples yet it have very little if anything to do with their case proved they were the ones ‘phishing’. What’s Tygart’s excuse going to be? Uh, well, we should have hired a better law firm???????

I think the ARBS are shaking in their boots. They are holding the whole anti-doping system in their palms right now. Landis didn’t allow them to hide behind private hearings. He exposed the system to the public, how it’s ‘against’ the athlete and doesn’t really provide a fair system. The fallout could be tremendous either way. If they find for Landis, the anti-doping system will take a huge hit. If they find for USADA, athletes will now that no matter what, at any time, their livelihoods and reputations could be taken away on nothing more than speculation. Who’s really going to want to put themselves in that position?

(This post is written with the understanding that I think Floyd got screwed so I’m a little biased)

Morgan Hunter September 1, 2007 at 12:48 am

An old “curse” used to go: “May you live in interesting times!” – Well I believe we are living in interesting times. Mike – the overall perspective take of yours – that is a beautifully outlined piece of work.

As to naming yourself “biased” for Floyd – I don’t know about that. I think Floyd got screwed – but I don’t think I’m being biased for holding this view. To come to understand a situation doesn’t make me automatically biased…quiet the opposite I would think.

The “arb’s” – always have this power – in any arbitration situation. That is why we the public must believe that their rulings are absolutely unbiased/fair. Any questioning of the “fairness” of these rulings immediately puts into question the rulings themselves.

So yeah – I think Floyd’s Arbitrators are really in a tight squeeze. As you point out, Floyd took it out from behind closed doors – now – EVERYBODY IS GOING TO ACTUALLY KNOW WHAT AND HOW THEY DECIDED…and they have no choice but to be as “unbiased” as an arbs panel portends to be…

The fan-public has gotten involved – and from the duration so far – they are not losing “interest” – I am betting that WADA, UCI, USDA, the IOC – are not happy with how this is turning out…the public spotlight is on them…they have come to understand that they will not be able to do “as is convenient for them” anymore. That their biased towards keeping them in authority rules are actually not fair, and they are given warning that they had better change them. That the fan-public is watching.

So here’s to hoping that Floyd gets a fair decision – this being that the lab doing the testing is inept at the time of the testing and therefore Floyd should have never been done to as he was. – I am sorry to say – that we cannot undo what has been done…

Either way though – Floyd is a hero. He took on the system, fought hard and honestly. His cause inspired many of us to take it seriously. So much more knowledge is out there now then when Floyd was accused – if there are no real changes made in cycling it will be no ones fault but our own. Floyd is a hero for just having done this. I for one can only be thankful to him for creating the reality that has made this possible. Any individual that brings attention to the fan-public is doing his duty to the fullest. This makes Floyd a hero. Floyd is also the Tour Winner, for some this makes him a hero…both are legitimate heroes – accept maybe we come to realize that Floyd as social awareness hero is even bigger than the Athletic hero.

In my opinion – Floyd stays a respected hero – whatever the Arbs decision turns out to be. Now – this thinking may very well be biased – (°L°) – but it is my view.

PJ September 1, 2007 at 6:02 am

I’ve just finished reading Floyd’s book, Positively False, and think I now understand the issues involved in his fight better. I have felt all along that the accusations against riders and the subsequent fallout before there is any definitive evidence, is horrendously unjust—it is a return to McArthyism—- An accusation of any sort, by anyone, has more weight than truth. I appreciate the intelligent and thoughtful entries on this blog. Keep up the good work.

Morgan Hunter September 1, 2007 at 6:44 am

McCarthyism – not a pretty picture is it PJ. You know there are lots of people who used to think the guy had a good idea…I guess people didn’t have computers back those few short years ago – it would seem, it makes a difference. You could read a book and talk about it to the whole world in the next hour…that is something.

So William, James, Mike, Jbsmp – Rant — what are we gonna do when the decision comes down from on high? – You know this ain’t going to be over – even if Floyd gets 3-0…and an apology – although I’ve never actually seen anyone make an opology deposit in their account…

Just wondering…(°L°)

Luc September 1, 2007 at 7:18 am

Wow! Another news agency other then l’Equipe got the leak first.
I have a lot of problem with the fact that Botre, who has already made it clear what side of the fence he is on, will be giving the technical advice. It again illustrates one of the flaws in this WADA system. Why not get an independent expert. Or is there such a thing? One can only hope that the reason that the panel has taken this long to reach a decision is that they really have studied the data and have now become experts in their own right. This will give them the ammo to ask some incisive questions and they will not stand for the BS that was so clearly evident in some of the WADA testimony. So the problem is, what will the ramnifications be if they rule in Landis’ favour. They have taken over a year out of his life and cost him his reputation and multi millions in legal fees and potential earnings and endorsements. I would guess that a ruling in his favour has to somehow exonerate the LNDD lab. So maybe they can say that LNDD somehow followed the spirit of the guidelines as laid out by WADA but because it lacked uniformity with what other labs would have declared as a positive finding then FL walks free.
Rant, I just read in a newspaper that Thorpe was cleared. A little jet lagged so don’t recall which paper it was in.
PJ, I finished FL’s book while on vacation and found it quite enjoyable. He certainly has a proper work ethic.

Jean Culeasec September 1, 2007 at 7:19 am

William,
If my reading was good you said that the domestic are the one who have the most reasons to dope. But what about: Heras, Hamilton, Basso, Virenque, Ullrich, Vino, Kaschesking, Zulle, Riis, VandenBroucke, De Vlaeminck, Millar, Zabel, Brochard, Chiotti, Adjouaparov, Honchar, Rumsas, Zoetemelk, Pollentier, Maertens,… All of them had won at least one major race and I forget a lot of other top riders like Pantani, Museeuw, Jaschke, Kessler…! And all recent GT winners are, at least, linked with some suspicions on dopage, or have been caught.
Maybe you have to learn the stories of Chiotti, Manzano, Mentheour, and other people who confessed
Morgan,
I have not understand your point. Landis’ case is not America’s case or Ami’s case… it’s just a cycling case, even if it’s the case of your heroe! My opinion is that he doped like at least the top 10 ! “Innocent until proven gulty” are for governement bodies, and our opinions are free.

Morgan Hunter September 1, 2007 at 9:20 am

I disagree Jean – “Innocent until proven guilty” is the law of my land.

My opinions are free – just like yours – and as it has been said: “opinions can be had by the dozens” – everybody has one…but opinions are not formed by truth.

If you really have studied the reason so many people are upset with the LNDD lab you would see that there are facts to back them up. Not mere opinions. As to my hero Floyd – yeah – the guys a hero – he put all his money and the money of a lot of people who believed him into making what is “normally” a behind closed door session – public.

He didn’t have to do that – I’m certain it would have cost him less to put in less work in his defense of himself as a person and a guy who won the Tour de France, if he didn’t go public.

You have stated in the past that it is your feeling that Floyd was “coning” uninformed Americans to get out of the doping charge. You and Greg LeMond must follow the same philosophy – “if an athlete does something extraordinary, he’s doped! if a guy wins a stage, he’s got to be doping…and my “favorite” you can tell by just looking at them, who’s doping.” – Well, maybe he is or maybe he’s just a damned good athlete. But I’m certainly not going to take “opinions” like the three mentioned above as facts.

IF he is ACCUSED of doping – then the athlete has the right to DEFEND him/herself.

IF THE ATHLETE CHOOSES TO fight HIS ACCUSERS – THIS DOES not automatically MAKE HIM MORE SUSPICIOUS as a doper.

If athletes are going to be tested – then they also have a right to be tested in a fare across the board manner.

Where rules and regulations are followed, where the chain of custody rulings are followed to the letter.

Since no one is saying that doping is something we should consider. At least not in any degree of belief – we can all agree that doping “is” – so if we have anti-doping tests – they must be bullet proof – absolutely trust worthy.

Following procedure does not cost a penny more then what it cost now – all the labs have to do is follow the damned rules that they should be doing on their own if they are claiming to be an “accredited” lab.

Floyds’ case proved somethings that we, the general public don’t like to be going on. A one sided situation is not a fair situation. The UCI, WADA, USDA, IOC and every other unit of sports have got to know that we are not “happy” with their choice of “justice” – the fact is – we don’t consider it justice. But it is something. And as we keep unwrapping it – it just STINKS up the room more and more.

So whatever the outcome of the Floyd Landis case – this ain’t over by a long shot Jean. My hope is – Floyd gets his butt back on a bike – but we ain’t happy with how biking is running itself Jean.

Although, I can say for myself – the Tour is the Tour and nothing else can compare. I am also one who hopes that the Tour is now big enough that mere “opinions” are not able to control it. That I can get back to watching the worlds best racing for 3 weeks – every year. With a good Riders Union – the UCI and ASO can work out how to put on the best show – no more “sacrificing riders” no more “playing politics” with the lives of athletes – no more power to deprive a man from earning a livelihood. And if ASO and the UCI have a “personal” problem with each other – They better fix it and never feel safe again to what these people have been doing to now!

William Schart September 1, 2007 at 9:59 am

Jean:

I think we perhaps failing to fully understand one another. I am not trying to say that no top-level riders have ever doped, merely that there is perhaps more incentive for the lower-level riders to dope, given the fact that they are less likely to be tested under the current scheme, and also from the idea that their job security is a lot lower than a top rider. I’d imagine that any one who finishes top 10 or even 20 or so in the TdF is very likely to have a place on a team next year. Such a rider might think “if I dope, I might improve from 15th to 10th, but I might get caught if I were to win a stage along the way, or hold the Yellow Jersey for a day.” Such reasoning might convince a rider to lay off the dope.

Current statistics from WADA, the Tour, etc., have only a small percentage of riders tested coming up positive. Your list of names goes back at least over 10 years ago (Riis 1996); consider the total number of pro riders who were active at some point during that period.

Of course, there are those who are willing to cheat, no matter what the circumstances. There are NCAA coaches here in the US who play fast and loose with recruiting rules, academic standards, and the like in order to field a more competitive team, despite the fact that sooner or later, such violations tend to come out and sanctions get applied.

And I still stand by my original point, that at this point in time there is no good evidence to support a statement that most if not all riders dope. That may be true, but we don’t really know.

Morgan:

I don’t know what will happen when the decision comes down. You know, another principle of our legal system is no double jeopardy: once someone is found not guilty it is over, period. But here, if Landis is cleared by the arbitration panel he could be hauled in front of CAS again. One would hope, is the decision is in Landis’ favor, that WADA or UCI or whoever will take a good look at the decision and reasoning behind it and whether it was in the best interest of justice to pursue the case farther. But it seems to me that they are out to get Landis for having the cajones to take them on in a public hearing instead of just rolling over.

Luc September 1, 2007 at 10:45 am

William,
It is interesting that you suggest that they are out to get FL for having the cajones to take them on. When i was reading his book, FL referred to not getting paid by his former pro team, Mercury. All pro teams are required to submit a bank guarantee in the event that the team folds and can’t meet their obligation to pay the riders. The UCI then uses this bank guarantee to pay the riders wages. This normally should be done in a timely fashion once the team folds. FL had his solicitor write to Verbruggen of the UCI to request his salary as per UCI rules. Verbruggen and the UCI took great offence to the tone of his letter and as a result Floyd did not receive his wages until some 3 years later, well outside the UCI’s rules. The implication was (and Lance Armstrong even told FL) don’t mess with the big boys or we will screw you. I am not one to subscribe to conspiracy theories but when i read this section of his book i just could help thinking that someone was getting back at him for f***ing with them.

Morgan Hunter September 1, 2007 at 10:45 am

I think so too William – I think so much of this “junk-law posturing” going on with the parties involved in prosecution that they have painted themselves in a corner. And it is because Floyd made them go “public” – I see these guys as having no choice but to keep on attacking – and since its their rules – they get to make them as it suits them – enforce them or not when they think it serves them…all under the very “pious sounding” Anti-doping efforts…Anti doping seems to be run by people who think that they can only win if the “deamonize” the “doper”…I don’t think these guys will change their spots, William.

Mike Byrd September 1, 2007 at 5:38 pm

Luc,

Funny thing, I thought the exact same thing when I found out about the Mercury deal while reading Floyd’s book.

Mike

Morgan Hunter September 2, 2007 at 9:28 pm

Hey William – straying away from this subject for a moment – you say: “You know, another principle of our legal system is no double jeopardy: once someone is found not guilty it is over, period.” – Not discussing “is or isn’t he” – How do you explain what is going on with OJ Simpson? – He was found not guilty – no?

William Schart September 3, 2007 at 4:56 am

Morgan:

Yes, OJ was found not guilty. I assume perhaps you are referring to the wrongful death suit filed by the Goldmans’. Civil matters are different from criminal matters, hence there is no legal conflict between a not guilty verdict in the criminal case, and a verdict for the plantiffs’ in a civil case. However, OJ could hold a press conference, tell the whole world “I really did it” and there is nothing anyone could do (legally). Also, all the fuss over whether or not he can publish his book has nothing to do with criminal guilt. The original decision not to publish was taken by the publisher due to the adverse publicity. I believe now that Goldmans’ have been awarded rights to the book as part of the settlement of their suit.

It is possible, that in a few cases, the double jeopardy could be overturned. If someone were to prove that the OJ jury had been bribed, maybe, on the theory he never was in jeopardy.

This principle pretty much found in work situations, as best I know. At least any place I ever worked, if you were going to be fired and appealed this to the next level of management and won, that case was over. I don’t know how much this is due to companies following the constitution voluntarily, vs. being required, but it perhaps a closer situation to the Landis case.

The reasoning behind this principle is that the government is prohibited from in effect punishing an innocent person by repeated or continual prosecution, even thought that person had been found innocent. Sort of like the possibility that, even if ultimately absolved by CAS, Landis being subject to a de facto 2 year ban.

Morgan Hunter September 3, 2007 at 7:22 am

Thanks William – I had thought as much but just wanted to go to the source just to be sure – Again – Thank you.

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