Weather-wise, today is a good day in my neck of the woods. Partly cloudy skies. Temperature in the low 70s. Cool breeze. In short, a perfect day for a lunch-time bike ride. And since I’ve had the luxury of working out of my home since April, I took advantage of the opportunity for a ride.
It’s always a good way to clear the head. But before I went out, it had been a pretty calm day. No great worries, other than that persistent wondering when the Landis verdict would be announced. Little did I know that as I was doing hill sprints, word of the verdict was spreading like wildfire.
As soon as I got home and changed, I headed back up to my perch/office on the second floor of our house, woke my computers up and found that indeed, the verdict was out, and it was not a good verdict for Floyd Landis. My heart goes out to him and his family. This episode/nightmare just keeps on going.
Over at Trust But Verify, Bill Hue and TBV are working towards analyzing the meaning of it all. I’ve got copies of the decision and the dissent, too. A total of 110 pages of reading to wade through. Eighty four pages of majority opinion, along with 26 pages of Chris Campbell’s dissent.
I hate to say it, but the vote doesn’t surprise me terribly much, thinking back to earlier decisions by the panel on motions Team Landis made. Many, if not all, of those decisions were 2-1, with the same players lining up the same way as the final vote.
There’s much to digest in the ruling. But one thing sticks out in my mind right now. In his dissent, Chris Campbell speaks to an important issue: If LNDD could not get the relatively simple T/E tests right (the majority ruling threw those results out), how can they be trusted to get a more complicated procedure correct?
And in making their ruling, the majority warn that the kinds of errors LNDD made could, in the future, be grounds for tossing a case. If that’s true, then how come this case wasn’t tossed to begin with? To begin with, from the majority opinion:
290. The Panel does, however note that the forensic corrections of the Lab reflect sloppy practice on its [LNDD’s] part. If such practises continue it may well be that in the future an error like this could result in the dismissal of an AAF finding by the Lab.
And further on in the majority’s opinion:
311. In response to these assertions the Panel finds that the practises of the Lab in training its employees appears to lack the vigor the Panel would expect in the circumstances given the enormous consequences to athletes of an AAF. Furthermore, the other matters introduced in evidence and referred to in this section do give some cause for concern. Nevertheless, like other parts of the evidence in this matter there are no ISL Rule violations that might result in the Panel accepting the Respondent’s allegations as affecting the AAF in this case.
I guess this all means that the majority is saying to LNDD, “Look, we’ll give you one more chance to clean up your act. But next time …” LNDD doesn’t need one more chance. If the panel says that sloppy practices would be a cause for dismissal, they should have flat-out dismissed the case. If they have concerns over the staff’s training, they should find against the lab.
There’s much to read, and much to ponder. For now, I’ll leave it at this. I’ll be back with more, later.
Right now, I feel like I’ve been sucker punched. Just like I did 14 months ago, when the first hints of the Landis story were being leaked to the media.
Floyd Landis won the 2006 Tour de France. No matter how you slice it, that’s what happened. The powers that be may be able to pull a fast one and bestow that title on Oscar Pereiro, but the truth is Pereiro didn’t win, and Floyd did.The winning yellow jersey sits somewhere about 1700 miles west of Casa Rant, in a town called Murrieta. Where it deserved to be on July 23rd, 2006. And where it deserves to remain.
Rant –
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You have some nice things to say about the Campbell dissent. IMHO, much of this dissent is incoherent. It’s poorly argued for the most part, and its organization is meandering and confusing. Not to mention the typos. It presents a few good sound bites. Otherwise, I’m pretty disappointed.
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Campbell’s main argument is that you can’t trust LNDD, so Landis wins. Actually, that’s probably how I feel too, bottom line. However, that argument was not going to win the day in Malibu (and it won’t fly in Switzerland, if FL is crazy enough to consider an appeal).
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To win, FL had two possibilities: he either had to (1) rebut USADA’s attempt to prove that an anti-doping violation occurred, or (2) prove that LNDD violated the international standard for laboratory analysis, then rebut any effort by USADA to show that the violation did not cause the finding of an anti-doping violation. In all of this, LNDD (as a WADA-accredited lab) is presumed to have conducted their tests in accordance with the international standard.
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So, Campbell’s argument that “you can’t trust LNDD” fails on its face. So long as WADA accredits a lab, you have to trust them. They’re presumed to be doing their job correctly, except in those specific instances where you can prove that they did NOT do their job correctly. And if you can prove that they screwed up in the performance of test 1, they’re STILL presumed to have performed tests 2, 3, 4 and 5 correctly. Them’s the rules.
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The majority opinion you cited from paragraph 290 addresses, I think, the rule that a violation of the international lab standards clears the athlete only where the violation relates to the adverse finding. This is not a terrible rule. It has its parallel in the “harmless error” rule used in U.S. criminal law, where a relatively inconsequential error in a trial court proceeding can be ignored on appeal.
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So, I read paragraph 290 to state that LNDD’s improper “forensic correction” practice did not cause the adverse finding against Landis, but might be seen as causing adverse findings in other cases, so LNDD should clean up its act. You may or may not agree that the error in this case was “harmless”, but it’s not necessarily a bad thing to try and distinguish between consequential and inconsequential lab errors.
Larry,
My hunch is that the majority decision was written long ago. Maybe Campbell didn’t write his dissent until after the last meeting with Botre and Botre didn’t have much to tell him for the effort (see his footnote 13). That would explain the “sloppiness”. The entire decision is a great dissappointment to me. I would not have signed on to either decision in this “final” form.
The winning party is happy but the costs outweigh the results considerably.
Larry,
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I won’t argue with the logic of your post. What it shows is just how wrong the system is. Would you want to be a top level (e.g. Olympic bound) athlete who was subject to the WADA system? After seeing what you saw today, how would you feel if tomorrow you were to compete in an athletic event where LNDD was conducting the testing? Would you be more nervous about the competition or would you be more nervous about the drug testing procedures?
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The system is unjust and innocent athletes who are wrongly accused do not stand a chance.
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In regards to Campbell’s dissent, I loved his opening. I haven’t had much time yet to read everything but I thought his opening statement summed everything up nicely.
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Bill, I read a comment from Landis’ attorney Maurice Suh that they were considering taking this to U.S. Federal Court. What are your thoughts on this?
Bill –
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I’m a lawyer of the old school, and I defer to judges. So … please read “y’honor” between any two words of what follows, as appropriate!
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Personally, I’m disappointed in the results. I think it would have been a great day if LNDD, WADA, ASO et. al. had been forced to eat some humble pie. The system needs reform, and IMHO the Landis decision validates the status quo (notwithstanding the criticisms of LNDD woven through the majority opinion).
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All that being said, I don’t think the majority opinion is a terrible piece of work (I’ve read through most of it now). I can more or less understand it. I think it gives us a reasonable starting point to understand the basis for the decision, and to critique the decision if that’s our inclination. Also, it does not entirely steamroll over the position argued by the Landis team. If you want to draw an analogy to a 15 round championship fight, then Landis lost the decision by a wide margin, but the judges DID award him a couple of rounds.
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I have the impression that the arbitrators had this case decided a long time ago, but the opinion does not feel entirely “canned” to me. I wonder why you think it was written long ago?
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Yes, I agree, Campbell does not appear to have had the benefit of Dr. Botre’s expert services in the preparation of his dissent. Still, I am very unhappy with the quality of the dissent. A good dissent should be a document that could be adopted by an appeals court when they overturn a lower court decision … I think the Campbell dissent fails this test by a wide margin. I will read through the dissent more carefully a second time, but in my first reading, half the time I could not figure out what he was talking about.
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On the majority opinion … my main frustration point is that the arbitrators seemed (to me) to be all too willing to conclude that violations of the ISL were inconsequential. In my post to Rant, I defended the “harmless error” doctrine, but I DO have some major issues with how the doctrine was applied in this case. It seems to me that the arbitrators were way too quick to find that violations of the ISL did not affect the positive result.
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For example, the failure to test the machines for linearity every 30 days was found to be a harmless violation because the tests on Landis’ samples were performed within 30 days of a linearity test. That’s an interesting argument. But it was USADA’s burden to prove that this ISL violation did not contribute to the adverse finding, and I don’t know if USADA made this argument or if the arbitrators invented it for USADA. Did the Landis team have the opportunity to rebut the argument? I don’t know if the reason for testing the machines for linearity every 30 days is because they tend to go out of linearity after 30 days, or because this is part of what’s necessary to keep the machine generally in good repair. If I’m supposed to change the oil on my car every 5,000 miles, and I wait 50,000 miles for the first oil change, that doesn’t mean my car will be in perfect shape between mile 50,001 and mile 55,000.
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I also think that the testimony of Dr. Brenna seems to have been accepted without question. That was frustrating.
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I look forward to more analysis from you.
Larry,
I wouldn’t call the majority “canned”, I’d call it the end result of a scientific conclusion rendered by an “independent” expert who happens to be employed by WADA, an entity that had a huge stake in the litigation. I think Campbell wrote his decision this week. I think the majority wrote their decision over a pretty long period of time. I have been involved in Appeals Court Panels by special assignment and the decision lacks the collegiality and even lacks the usual “give and take” a majority and minority opinion usually has.
Campbell immediately writes he is one of the 15% of the Panel pool representing the athlete and thus writes with that in mind. That isn’t compelling, although I have agreed with his conclusions about the system’s unfairness since I first attempted to understand the system many months ago. Does he believe what he writes or is he making a point advocating for the athlete? I’d prefer him to believe his position.
On the other hand, the majority writes in such science-speak that I can’t understand much of the nuance. The athlete isn’t a scientist. The public are not scientists. Dr Botre can write something conclusive supporting the “science” that they can adapt or even adopt to their decision, but the best decisions are the ones a lay person could explain to their neighbor. While we like to think we are the smartest people in the world, much of law and science can be explained in a form everyone understands.
Next week, I’ll be writing a lengthy essay at TBV about both opinions. It probably will take me that long to break the majority opinion down to something I can explain to lay-people. That is a shame.
And I can take disagreement so no need for protocol. What I can’t take is a lack of the kind of basic respect everyone should have toward one another . That is why i left Daily Peloton Forums. I’m pleased to engage in a healthy and mutually respectful give and take here or elsewhwere.
I find Campbell’s arguments much easier to read and understand than the majority’s opinion. While reading I got the impression the majority was attempting to hide their weak arguments in an overabundance of words.
I notice that the Professional Golfer’s Association today announced their drug testing program. They chose to bypass WADA. They accomplished this by excluding 2 drugs that WADA includes on their list of disallowed substances.
Campbell tries to protect the athlete. The majority is trying to protect the system.
Why doesn’t the arbitration system choose 3 independent and random arbitrators who have no known connection to either party?
I hope Floyd is somehow able to extract himself from this morass.
“Whoever is dishonest with very little will also be dishonest with much. . . So
if you have not been trustworthy in handling worldly wealth, who will trust
you with true riches . .” Luke 16:10.
*
What a nice way to open the dissent. The guy’s got class. This says it in a nutshell.
I have to admit, it may take me a few days before I can even bring myself to read any more about this. It makes me sick.
The simple questions that have been lost in all this: Did Floyd Landis somehow obtain an unfair advantage (emphasis necessary) in order to win the TDF? Did WADA/USADA prove that he had this unfair advantage?
The first question has not been answered (in fact, it seems that most people have avoided addressing it in any meaningful, and intelligent way). The second question remains obfuscated behind all this legal wrangling, the AAA decision not withstanding.
I am sick of all this political mumbo-jumbo.
I saw Floyd win. No one has satisfactorily proven to me that what I saw was artificial.
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I would like to thank Bill H, jbsmp, Rant, and everyone else for all their time and effort. It’s been enlightening.
Most of all I would like to thank Floyd for burning so bright last year and then burning the house down behind him. What a wild ride it’s been. In some ways I hope it’s just beginning.
Judge Hue,I work in a lab regulated by the FDA that operates under cGMPs. While this does not make me an expert in IRMS, I know enough science to get most of what I read in the majority opinion. Bottom line: they held that Landis’ expert witnesses gave scientifically baseless testimony, because the retention times between the two different types of machines would never be the same, because the the overall length of the procedure is different. Without the testimony of these two witnesses, most of his scientific case was gone (curious the majority did not mention the testimony of Dr. John Amory). They could then only rely on the people that told them the “eyeball” method was okay. That left the defense with nothing but lessor forensic/procedural arguments. Becuase the WADA rules do not require WADA labs to adhere to a level of forensics/procedure that criminal labs do, Landis’ argument that they didn’t (while true) didn’t have legal bearing. At that stage, he was done.
I wanted to say thanks for all your commentary during all of this, and I look forward to your summaries.
Ken, it’s very difficult to get a federal court to review a private arbitration decision. I’m not expert here, but you have to prove something like an “unconscionable result” or “manifest disregard for the law”. The whole reason you have arbitration is to avoid having to go to court, so of course the system is designed to make it as difficult as possible to get court review of an arbitration.
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Bill, I agree that the majority and dissent seem to lack the back-and-forth I’m used to seeing in court decisions. I’d prefer it if each opinion more specifically addressed the arguments raised by the opposing opinion.
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Bill, also agree that the best legal opinions do a better job of explaining the technical details of the case in terms we can all understand. Still, the majority opinion does spend a lot of time trying to explain the science. It’s not the easiest science in the world to understand! Yes, the science-speak is very heavy in the majority opinion, it is off-putting and one might argue that the science-speak is there to intimidate us non-science types who might nonetheless have the temerity to question the result reached by the majority. However, this IS a science case, we all WANTED the case decided on the science (and not on the basis of the Papp-Lemond irrelevancies), and now we’re forced to wade through the muck of the science to figure out if the panel’s decision is truly based on GOOD science.
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Will and JBSMP, here’s a quote from the Campbell dissent that I think is representative of what I’ve been complaining about (from his paragraph 7):
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“Cherry picking data from different sequences is exactly what has occurred in the IRMS tests in this case. In its document package, the LNDD submitted a sequence for Mr. Landis’ A sample that have the results from steps taken is a different sequence. We don’t know which sequence because that evidence has been destroyed. This fact represents a violation of ISL 5.4.4.4.1.4.11. LNDD also did this for Landis’ B sample.”
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What is Campbell talking about? Does anyone have any idea? As support, he cites a Proposed Finding of Fact and Conclusion of Law, probably the one submitted by the Landis team, but I have no idea where to find this document (does anyone know?). “Cherry picking” usually means selecting and piecing together the nuggets of evidence that support your position, while ignoring the vast bulk of evidence against your position, but I don’t think this is what Campbell means by “cherry picking”. Leading up to Campbell’s accusation about “cherry picking” is a vague discussion that quality control steps need to be performed in the right order, and that you can’t insert the results from a later step in the quality control sequence to mask a flaw in an earlier step in the sequence. In this case, what flaws in what sequence does Campbell claim are being masked by what evidence drawn from what steps performed in what other sequence? Campbell claims that he can’t answer this question because “that evidence has been destroyed.” But if the evidence was destroyed, then how does he know that this “cherry picking” took place?
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Campbell’s decision is vague, badly reasoned and largely useless to any effort we might make to refute the majority decision. IMHO. If you want more examples, I’ll be happy to provide them.
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Michael, it doesn’t matter if FL could have obtained any advantage from doing any of the things he’s been accused of doing. Athletes have to obey the rules, and if they don’t, they face disqualification regardless of whether they obtained any advantage from cheating. I have no problem with that.