As I write this, it’s the day before the arbitration panel that heard the USADA vs. Floyd Landis case will hold their final meeting with their science adviser, Dr. Francesco Botré. Dr. Botré also happens to head up the WADA-certified anti-doping lab in Rome, which is more than a bit problematic from my point of view.
Other observers have read all the rules governing how these arbitration hearings are supposed to be conducted and found that there’s nothing in the rules that grants the arbitrators the authority to appoint such an adviser. But they did so, under the guise of protecting the athlete’s rights, at the same time they said they had no authority to stop USADA’s requests to test additional B samples from last year’s Tour (along with one or two out of competition samples, as well).
That was a puzzling thing to me. On the one hand, where they had authority to intervene, they refused to do so. And on the other hand, where they had no authority to do something, they did anyway. Bothersome — and seemingly contradictory, to say the least.
I fail to see how appointing someone beholden to the WADA anti-doping system, and WADA’s own 11 Commandment (also known as the WADA Omerta: “Thou shalt not speak ill of another WADA-certified lab”) protects Landis’ rights. It might, however, protect the other side’s “right” to railroad someone based on shaky (or non-existent) “evidence.”
Be that as it may, Dr. Botré is a part of this process now, and the arbitrators are supposedly holding their final meeting with him on Wednesday. Landis’ hearings could be officially closed as early as tomorrow, which would mean that the 10-day verdict clock would then begin to tick. Depending on how the arbitrators interpret the meaning of “10 days,” the decision would be due on the 22nd or the 26th — 10 calendar days vs. 10 working days.
My understanding of the rules is that it should be 10 calendar days, but when the decision gets announced might depend on how the three men deciding the case interpret the rules.
Of course, tomorrow’s meeting could also go like this:
Patrice Brunet: Dr. Botré, have you had a chance to review our conclusions?
Dr. Botré: Yes.
Brunet: Are we correct in our statements regarding the science?
Dr. Botré (flipping through the pages): Yes … yes … yes … off the record, no, but on the record, yes … yes … yes … yes … yes … off the record, no …
Brunet: Anything that needs to be clarified?
Dr. Botré: No, Mr. Brunet, it looks clear as mud to me. That’s how you wanted it, no?
Brunet: Yes.
Richard McLaren: Right, then. Shall we make our announcement?
Brunet: Mr. Campbell?
Chris Campbell: Hang on, I haven’t quite finished. One second … (Campbell presses the Save button to finish his part of the ruling) OK. I’m ready.
Brunet: All right, gentlemen, the email is ready to go. All in favor of closing the hearing?
Brunet, Campbell, McLaren, Dr. Botré: Aye.
Brunet: All in favor of announcing our decision?
Brunet, Campbell, McLaren, Dr. Botré: Aye.
Brunet: Right then, here goes …
Brunet presses Send, and the email announcement goes out to the lawyers for both sides, who in turn broadcast the decision far and wide.
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All that’s to say that we could even get the decision tomorrow, if this meeting with Dr. Botré is more of a formality than a substantive event. On the other hand, the arbitrators could decide that they need even more time, and leave the hearings open until some future date, as yet unknown.
Meanwhile, In Kansas City …
The Tour of Missouri kicked off today, with a road race that started and ended at Country Club Plaza in Kansas City . Cuban-born Ivan Dominguez broke out of the field with about 300 meters to go to take the sprint finish. Dominguez, the former Cuban national champion who defected to the United States nine years ago, scored his 13th win of the season. Among his palmares this year are two stage wins at the Tour of Georgia. Zach Bell, of Canada, and Kyle Wamsley of the United States rounded out the podium. Tomorrow’s stage will head south from Clinton, MO to Springfield, MO.
Rant, does anyone know how many previous times Dr. Botre may have met with the arb panel (if at all)? Thanks
str
Rant – thanks for the “newsflash” from the Tour of Missouri – (;-))
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Rant I am really hoping that you are wrong – although, from past events, I am afraid that you are right, concerning the arbs and Botre – this is becoming a most absurd and obscene instance of “USDA – WADA” “justice…
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As a human being, I am in shock that there is not a real “mensch” in the whole bunch of those rascals…
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You know what the hardest thing to do is when you are in a serious fight, Rant? The hardest thing is the “waiting” for the other guy/s to make their move – you see, once they make their move, they “show” what their intent is – I think, we are all just going to have to accept that the best move on our part is to simply wait, stay alert, and watch – as you have stated earlier – this “fight” is not over with the arbs decision – it should be – but we know it isn’t going to be.
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Floyd, if he “wins” stays open to attack from “da bastids” because if Floyd wins – they have almost everything to lose.
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If Floyd loses – he can’t afford not to continue to fight them. Although – next time – I am wondering if it would not be smarter to get a change of venue so he is not “fighting” in a “fixed” court…
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You know – I never felt as tense and nervous when I would get behind the starting line as I feel now waiting for this damned arb decision – I’ve got so much adrenalin going, if I were tested – I am certain I would get busted for some kind of doping – and I don’t believe, I am the only one feeling this way…so, my plan: Keep breathing deeply, no “panting” breath – but nice and steady and deep – BRING IT ON baby – lets rock and roll – THIS AIN’T OVER YET!!!
Strbuk,
I don’t know exactly how many times the panel has met with Dr. Botre prior to tomorrow’s meeting. I suspect that there’s been some back and forth between the arbs and the good doctor over the last few months. Given the gag order, and the fact that the panel’s meetings amongst themselves occur without either side’s lawyers present, I wonder if we’ll ever know just how much advice or how much influence Dr. Botre may have on the eventual outcome.
Morgan,
I really hope I’m wrong about that scenario. It would bode better for Floyd if that were the case. As for what you said about mensches, it’s a damn shame that there hasn’t been a single one on the ADA side (at least not one publicly evident, nor one who was particularly influential if one did exist). The lack of critical thinking bothers me, too. ASADA has set a good example on how to properly deal with cases like this in their handling of the Thorpe accusations. One can only hope that other agencies might learn from ASADA’s good example.
Rant, Something wrong with your scenario. You forgot to include the inevitable leak to L’equipe quoting UCI’s Pat McQuaid and Dick Pound some 2 days before the official announcement.
Luc,
Sacré bleu! I knew something was missing. Of course, today’s meeting can’t be a mere formality, because L’Equipe hasn’t gotten the leak, yet. And the two terrors (er, I mean tenors) haven’t started “singing,” either. 😉
Rant, sorry for my absence — technical difficulties while on vacation. Great stuff posted here while I was gone, particularly the Papp interview.
But I’m not following you on this post. Yes, we’re all impatient for a ruling at this point. But why the objection to Botre? Yes, Botre may have a bias, being part of the WADA system. But I don’t think there’s any such thing as a bias-free expert. The people who know this system best are insiders. One of our primary objections to the WADA system is that insiders like Botre (and Catlin at UCLA) are prevented from testifying as expert witnesses in favor of athletes. If we believe that insiders are incapable of providing unbiased testimony, then why would we want them available as witnesses?
As for the frequent meetings between the arbitrators and Botre — isn’t this what we want? A decision based on the science?
I’m not ready to argue with you yet! (back from vacation, feeling rather agreeable for the moment) Just seeking clarification.
Larry,
I hope you had a good vacation, wherever you were. I realize that there’s no such thing as a completely bias-free expert. What I’m concerned about is whether Dr. Botre will hew to the WADA Omerta or not. If he hews to the Omerta and summarily brushes aside what appear to me to be valid criticisms of the lab and how they did their work, how they interpreted the data and so forth, then I don’t think he’s the kind of “independent” expert the panel needs to make a balanced and just determination.
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I do believe that when placed under oath, both Dr. Catlin and Dr. Botre would give honest answers to any questions asked, but this isn’t that kind of situation. Certainly, insiders know best how a system works — regardless of what system we’re talking about. There are, however, a number of scientists outside the anti-doping system who look at how the “science” is practiced in the anti-doping world and scratch their heads in wonder. One of the arguments that some of the insiders make boil down to, “If you’re not part of our club, you don’t know what we’re doing.” True science isn’t like that, it stands up to scrutiny. Sure, a physicist wouldn’t be the right person to critique a microbiologist’s work, but someone who works in the same field would be able to — regardless of his or her lab affiliation.
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I’d be more comfortable with someone who has no stake in the anti-doping system taking a detailed look at how LNDD performed their work, and making a determination as to what’s right and wrong. Dr. Botre has a stake in the system. That’s not to say he couldn’t come back and say, “Yes, well, LNDD made some misktakes.” He could. But he might be jeopardizing his, and his lab’s, future within the system to do so publicly. And what concerns me is whether he’s willing to take that risk. To do his job for the panel well, I think he’s going to have to criticize LNDD regardless of the panel’s decision. Some of what their staff admitted to was just plain sloppy lab work. And that sloppiness affects how the data was interpreted and whether or not there’s really a positive test result.
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Definitely, I want to see a decision based on valid science. Frequent meetings with their adviser would be an excellent way for the panel to come to such a conclusion. I’m hoping that Dr. Botre will rise to the occasion. We’ll just have to wait and see how all of this turns out — and even then, we may never know.
I don’t think it’s legitimate to describe the decision to test the B-samples as unfair. It was in the interest of discovering the truth about this doping case. Unless there is real evidence of active conspiracy by the LNDD against Floyd then testing the B samples will only help clear up the matter and put the science in perspective.
Rant – I’ve been following TBV’s blog and have hopped over here once in a while. I’m somewhat confused about your latest reporting. You seem to be working on an assumption that the arbitration panel is stuck between choosing ‘with their hearts’ or ‘for political reasons’ – shouldn’t we assume (as it should be done with Floyd) that they, too, are innocent first? I’m unclear as to why you consistently write as though it’s a him-against-them situation? If you back that up simply with statistics, that doesn’t make sense, either – what someone has done in the past shouldn’t be a gauge of what he will do – just the same as Landis suggesting that Jack Daniels affected his levels. I just feel that your take on the subject is highly editorialized and skewed – can we assume that perhaps a good decision will be made, fairly?
Rant –
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OK, got it.
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One positive in the choice of Dr. Botre is that he DOES come from a lab with a good reputation. So, he’d be in a position to say that the work at the LNDD does not meet the standards followed at other WADA labs. On this forum (and others like it), folks have speculated that Landis would have fared better if some other lab had performed the drug testing. Someone like Botre is in a good position to address this speculation.
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Agreed, if what you were hoping for is a stinging, across-the-board indictment of the science behind the entire drug testing system, you’re probably not going to get this from an insider like Botre. But, it’s not realistic to hope for such an indictment, and I’m not sure that an arbitration case considering the testing done in a single case for a single athlete is the right forum to consider what should be done to improve the situation system-wide.
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Perhaps the ideal expert would be some university professor type, without a connection to WADA, who understood all of the relevant science. In my limited experience, such ideal experts do not exist (or else why didn’t Landis’ legal team hire such experts to testify for Landis?). You’re often better off with people who work in the “real world”, even though such people tend to absorb the biases prevelant in the area of the “real world” where they spend their time.
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I think your primary concern may be that Dr. Botre has a vested interest in defending the status quo. That is a legitimate concern. You’ve stated that Dr. Botre could jeopardize his status in the drug testing world if he cricizes LNDD. I don’t think that Dr. Botre (as the expert for the arbitrators) is PERSONALLY required to say anything about the Landis case or LNDD, but I still see your point. The crowd at WADA seems to be to have a vindictive streak — I suppose they’re not above going after anyone or anything for any reason.
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Still, it is my humble opinion that it’s OK for Dr. Botre to have a bias, so long as he’s willing and able to honestly and accurately answer the questions posed to him by the arbitrators, and so long as the arbitrators are asking the same kinds of questions that we’re asking about this case. Let’s use baseball as an analogy. I might be of the opinion that the Yankees are a better baseball team this year than the Red Sox. That would reflect some amount of bias on my part. If you hire me as your baseball expert and ask me which team is better, I’ll give you my biased opinion. Hopefully, you’ll ask me more questions. Under questioning I might have to admit that the Red Sox have a better record and have better pitching. Under further questioning, I might have to admit that “good pitching beats good hitting.” So while I might continue to hold to my general opinion, you could use the facts I have provided to come to a different opinion.
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I’ve seen this sort of thing happen with expert advisors. I worked once on a standard to improve the safety of miniature Christmas Tree lights. (This was 30 years ago, so much has changed since then!) Our expert advisor was from Underwriter’s Laboratory (UL) — a good source of expertise, but they were biased in favor of a particular approach to electrical safety (thicker wire gauge, more expensive materials and manufacture in the U.S. or other locations within easy reach). Our committee could have simply adopted the UL safety standard … but instead we asked a lot of questions, to our expert and to others. From these questions, we adopted a different approach focusing more specifically on the danger we’d been asked to address (accidental fires) that would be simpler to enforce. So we ended up recommending the incorporation of simple fuse devices. Our recommendation was NOT the UL recommendation by any means! But we were able (successfully, I think) to utilize the UL expertise without at the same time adopting the UL approach.
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So … if drug testing is anything like baseball and mini Christmas lights, and if the arbitrators ask good questions of Dr. Botre, all may be OK at the end!
Ludwig – the only thing that I have against LNDD is that it doesn’t do its job in such a way that the results can be repeated – you say: “then testing the B samples will only help clear up the matter and put the science in perspective” – there is only one problem with this – is LNDD going to be doing the testing? This conveniently ignores what the arbs hearing has come to show – they are not competent.
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Who says that people think there is a “conspiracy” by LNDD against Floyd? What I tend to believe is that LNDD is not up to parr and whatever they are doing is done to get out from under this – The issue is not “conspiracy” it is rather that the system is unfair – as it is being applied and used today. If anything, this is what the Landis case has brought out to the public.
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ichigatsu – it is a question of “him-against-them” – Floyd is on one side and “them” is on the other – Floyd did not set up this situation – “them” did…Naturally, I would like to “believe” that Dr Botre will counsel “fairly” – but considering that Botre is part of the inner circle of the “them” side – don’t judge me too harshly for being skeptical…especially since Botre as he is being “consulted” appears to be another member of the arbs committee – and since Floyds’ side has no access to these consultations – how else is one to look at this situation?
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NO I DO NOT THINK WE CAN “ASSUME THAT A GOOD DECISION WILL BE MADE FAIRLY” – not under these questionable circumstances…
ludwig,
Actually, according to the rules, the only thing that the arbitration should be looking into is the test from Stage 17. Landis’ side is/was limited to that, except that by allowing the additional tests, the arbitration panel opened up those results to question, too. But here’s where it’s unfair: Had the Landis side asked for those tests to bolster their defense, then by the rules, they would have been turned down flat. That’s what their objections to the tests amounted to. In essence, “Hey, we aren’t allowed access to that. How come they are?” Now, in actuality, allowing those tests may have backfired on those who originally requested them (USADA). It gave the Landis observers a much better chance to see LNDD in action, and to add some ammunition to their defense. The end result may be OK, but the rules need to allow both sides access to the same things. It did put some things in perspective, however. In some ways it would have been better for a different lab to do the tests. In others (like the ability to observe LNDD’s staff in action), it may have been for the best that the French lab did them.
ichigatsu,
What I was pointing out in this post is not that the arbs have to choose between their hearts and politics, but that their decision may be affected by the quality of the advice from Dr. Botre. If he speaks openly and honestly to the panel, I have no doubt that they can come to a fair decision. I don’t mean to suggest that it’s Floyd against the arbitrators, by the way. It is, however, Floyd versus USADA, et. al. That’s just the nature of the arbitration beast.
Larry,
I actually do think that the Landis side had an expert who might have been a better choice than Dr. Botre, in some respects (though, what you point out at the beginning of your comment is true). That would be Dr. Wolfram Meier-Augenstein. He seemed to be well versed in the science and not tied to the WADA system. You’re right, I am concerned that Dr. Botre has a vested interest in defending the status quo. I appreciate your stories about the Christmas lights and baseball, those are good illustrations that a biased expert can still help a panel come to a conclusion that doesn’t agree with his own biases. Thanks for pointing that out.
Larry,
You said: “Perhaps the ideal expert would be some university professor type, without a connection to WADA, who understood all of the relevant science. In my limited experience, such ideal experts do not exist (or else why didn’t Landis’ legal team hire such experts to testify for Landis?). You’re often better off with people who work in the “real world”, even though such people tend to absorb the biases prevelant in the area of the “real world” where they spend their time.”
Did you not pay attention to the arbitration hearing? Landis’ experts understood the relevant science and equipment, much more than the LNDD technicians performing and analyzing the tests.
They definitely exist and Landis found them.
Mike –
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I did pay attention to the hearing, at least a little bit, but I think you’re right to point out that the Landis team’s experts were a strong group. I probably needed to make my point a bit more clearly. Let me try again.
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I am responding to Rant’s concern that Dr. Botre is probably biased towards USADA and against Landis. I acknowledge this bias, but argue that most experts are biased based on where they work, the clients they serve and the things they’ve experienced.
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I then tried to describe the kind of expert who might not have a bias, and I admit, I did not do a good job of this (probably because no such person exists). I was trying to conjure up an “ivory tower” university type, who would spend all of his or her time focused on science issues and who would not be tainted by real-world connections to clients or commercial interests. This person would also have to be an acknowledged and unquestioned expert in all aspects of sports drug testing. I suggested that no such person exists, or else the Landis team would have hired such a person as a witness.
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No argument that the Landis team had a strong set of experts. But these experts were knowledgeable in particular areas relevant to the case. For example, Dr. Meier-Augenstein is an expert in mass spectrometry. That’s an important area when it comes to the Landis case, but it’s by no means the ONLY area of importance. Also, Dr. Meier-Augenstein runs a lab (or at least helps to run a lab) and will have a bias in favor of his procedures and the interests of the clients he represents. Finally, and I could be wrong here, I don’t think Dr. Meier-Augenstein has a lot of experience with sports drug testing.
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If I’m looking for a person to serve as a scientific expert to a sports arbitration panel, I want someone with expertise in all matters relevant to the case. That person does not necessarily have to be the world’s leading expert in all of these matters, but should possess enough smarts and experience to answer my science questions as they come up. For example, I may want to focus less on mass spectrometry and more on a more mundane area, like chain of custody. For some areas of focus, it may be important for me to understand not only the theory, but also the common practice. For example, much was made of how often LNDD did and did not recalibrate their machines. I might want to better understand why recalibration is important … and I might also want a feel for how often other labs recalibrate their machines.
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Hope this makes my point a bit more clear.
Larry, you said:
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I then tried to describe the kind of expert who might not have a bias, and I admit, I did not do a good job of this (probably because no such person exists). I was trying to conjure up an “ivory tower” university type, who would spend all of his or her time focused on science issues and who would not be tainted by real-world connections to clients or commercial interests. This person would also have to be an acknowledged and unquestioned expert in all aspects of sports drug testing. I suggested that no such person exists, or else the Landis team would have hired such a person as a witness.
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At my academic, ivory tower science university, most of our bandwidth disappears in July as investigators try to follow real time motorcycle-generated video from the Tour.
But I get your point..
I don’t think it’s a question of whether or not Botre or any expert hired to advise the panel is simply biased, but rather it’s a question of being biased towards one of the parties. Experts brought in to testify at the hearing, having been called by one side or the other are presumed to have some bias, at least for the point(s) that side were trying to bring out, but they also were subject to cross-examination by the opposing side, giving a chance to counter the bias. Witnesses were also under oath and presumably subject to perjury if they knowingly provided false testimony.
Botre’s presence in the panel’s deliberations is more troubling. He can be presumed to be biased by his position in the WADA system – if he were a potential juror in a trial arising from this case he could be excluded during voir dire because of this. Since whatever role he takes is in effect secret and not subject to oath or review in any manner, he can tell the panel anything, true or false, if he was so inclined. Now, he may vary well be an honorable person and provide good and true advise, we don’t know.
They may not be an expert who is not biased in some way, but there are likely to be experts who do not have any connection with either WADA or Landis. It is my understanding that neither the tests administered nor the equipment used are particular to WADA or sports anti-doping in general. I am sure that there are any number of people in the academic or medical fields who could advise of the science of the case, but do not, as the saying goes, have a dog in this fight.
To change subject: for those interested, the Tour of Missouri can be viewed on
justin.tv/avflive
There were some technical problems on Tuesday. I was out of town today, so I didn’t get to watch, but hopefully they have to problems ironed out.
William, the arbitration panel should not be using Dr. Botre as an expert witness. In theory, Dr. Botre should serve merely to help the arbitrators understand the expert witness testimony provided by USADA and the Landis team.
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Of course, where a panel utilizes the services of an expert like Dr. Botre, it may be difficult to draw a clear line between having the expert interpret the testimony of witnesses, and having the expert provide his own opinion.
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Still, I think that the benefits of utilizing an expert like Dr. Botre outweigh the potential dangers. As a general matter, juries and judges are not in a position to evaluate conflicting sets of expert testimony. The experts are, well, EXPERT — judges and juries are not. It is one thing to ask non-experts to understand the testimony of a particular expert — this is difficult, but do-able. It is another thing to ask non-experts to evaluate testimony given by multiple experts who do not agree with each other, particularly if the non-expert is required to decide which expert to believe. In effect, this requires the non-expert to be smarter than the experts.
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So where there’s dueling expert testimony, as in the Landis case, there’s a tendency for each side’s expert testimony to cancel out the testimony on the other side, and for the case to be decided on other grounds.
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If we want the Landis case to be decided on the science, then we need to give the arbitrators the tools necessary to understand the science and evaluate the testimony. In effect, the arbitrators need an expert of their own.
Larry:
There is some truth to what you say re laymen trying to understand expert testimony and evaluate conflicting expert testimony. However, this is exactly what juries are required to do. A jury is not supposed to consider anything but what was presented as evidence in court. They would not be allowed to have an expert in the jury room. Heck, when I served on a jury, we were not even allowed to take any notes during testimony, although I understand that now there are some jurisdictions which allow juries to take notes. Any expert could have some ax to grind, where it is some stake in the case itself, or maybe some more general theoretical bias against the other side’s science, or the brand of equipment used, or maybe just some personal gripe against the other expert.
The problem here is not having an expert helping the panel, but in having an expert doing whatever in secret, with no chance for Landis to cross examine or for anyone to determine what role he is in fact playing. He might be simply explaining things, or he could be taking some inappropriate role. Who knows?
Look at what has been going on here, at TbV, and various forums, both before, during and after the hearing. Some people have asked for explanations of various technical issues. other people have provided advice or commentary, and still other people have in turn commented on the “expert advice”. If someone makes an incorrect or misleading statement, someone else will jump in and correct it. Now, suppose yesterday, the panel asked Botre to explain something and he gave incorrect information. No one to correct him. And he is part of the WADA system, and hence can be assumed to have some degree of bias.
And let us not forget, unlike a jury, the arbitrators are not just ordinary citizens, but in fact well educated and with some experience in these matters. Botre was present during the hearing to explain things to them, and I believe that they could ask questions of the witnesses themselves. If they found the technical details confusing, they could have asked for clarification at that time.
Some questions have been raised about how much variations with what we in the US believe should be due process are do to the fact that WADA is based in a foreign country where a different legal system is in effect. Well, the hearing was held here in the US, supposedly under the auspices of the American Arbitration Association. Has everything been done strictly according to Hoyle? I don’t think so.
William, great post! You’ve done a terrific job of making the case against the use of an expert by the arbitrators, and I agree with the points you’ve made. I still think that the potential advantages outweigh the disadvantages, but I agree that the disadvantages are large enough to give one pause.
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