A Parable
Back around the time of Jesus, a great rabbi named Hillel lived in Jerusalem. One day, a person came to him and challenged the rabbi to summarize the whole of the Torah (the five books of Moses) in one sentence while standing on one foot.
So the rabbi obliged. “That which is hateful to you, do not do unto others,” he told the person. “The rest is commentary. Now go and study.”
That one sentence — a slightly different wording of what is known as “The Golden Rule” — is the core of two great religions: Judaism and Christianity. Strip away the theology and the ritual, and this is what it’s all about. Of course, I’m thinking about this because today is Yom Kippur, and it’s part of my heritage.
But I’m also thinking about this story after having read the majority opinion which found Floyd Landis guilty of doping in the 2006 Tour de France.
I have a lot to say about the majority’s opinion, though I won’t burden you all with everything right now. Even so, this does run a bit long.
Four Months? For This?
My first impression on reading the opinion (which I started Thursday night, but then sat down last night and re-read from the beginning) is this: We waited four months for this?! The overall opinion looks to me as if the majority took USADA’s proposed finding of fact, threw in a few concessions to the Landis side to make them feel they’d scored some valid points, and mixed in just a little bit of their own work to tie it all up in a neat little bow.
The Papp and LeMond testimony, though surely featured in USADA’s proposal as being evidence of guilty, was summarily tossed aside. No disrespect to either cyclist, but neither of their testimony was really germane to the central issue of the case — whether the lab work showed a positive result for Stage 17. I’ll give the majority credit for recognizing what was clearly not related to the central issue.
I’ll give them some points, too, for stating what had become obvious by the time the hearings closed — there was some sloppy lab work going on in this particular case. Sloppy in terms of documentation and sloppy in terms of proper lab practice.
Standards? Which Standards?
One other thing that strikes me as sloppy in this verdict is the majority’s logic regarding lab standards. Part of WADA’s certification process requires that these labs be ISO certified. ISO 17025 and ISO 9001, I believe. Having worked for a company that sought ISO 9001 certification (and automotive engineering company, not a lab), I can tell you that ISO certification requires careful documentation of processes and procedures.
The labs from which the Landis defense team assembled their experts are likely also ISO certified. Any company doing lab work for legal cases would almost have to be. A good lawyer for the other side could make a lot of hay out of a lab not certified properly, and ISO certification (while not the only certification out there) is pretty standard stuff.
The level of detail that ISO standards required for our company to be certified makes me believe that for labs to be certified their documentation would include a detailed chain of custody, as well as detailed records of all lab work performed.
That the WADA standards may not require careful chain of custody and thorough documentation could very easily come from the fact that ISO certification is a requirement for WADA certification. Therefore, all of the requirements for ISO certification — like for proper chain of custody records and proper documentation of each and every piece of work performed within the lab — are a part of the WADA standard.
If the WADA standard truly is a lesser standard than forensic labs, then this is a problem that must be rectified — and the November WADA conference would be a good time to do so. The results from WADA-certified labs have an impact on a person’s ability to earn his or her living. If someone’s job is on the line, they deserve to know that the labs performing their drug screenings are held to the highest standards. To discount the testimony of Landis’ experts on the grounds that their labs are held to a higher standard, and thus their input has no bearing on a WADA lab, is disingenuous at best.
The Curious Case Of A Witness Ignored
Chris Campbell, in discussing the credibility of all of the witnesses, notes that in his view Dr. John Amory was the most credible of the lot. Let’s take a look at his reasoning:
47. The one witness that stood out in my mind, really stood out, was Dr. John K. Amory. He has the experience, background and independence to assign great weight to his testimony. Dr. Amory is widely recognized as an expert in the field of Andrology. He has received the Young Andrologist Award from the American Society of Andrology.58 His work requires him to review the scientific research and articles in the area of endocrinology and andrology.59 Significantly, Dr. Amory is a member of USADA’s independent anti-doping review board.60 That fact is jaw dropping. He is one of USADA’s experts when it comes to viewing document packages related to doping offenses.
48. Dr. Amory was not a paid witness.61 He was testifying because he felt something was wrong. Dr. Amory testified the IRMS test results for the stages 11, 15, 19, 20 (the additional B samples tested) and stage 17, the stage in question in this case, are inconsistent with known science.
So, what did the majority think of Dr. Amory and his testimony? Apparently, not much. He’s only mentioned twice in the majority opinion, once in the list of witnesses, and once very briefly when some of his testimony (mentioned in paragraph 171, page 53 of the majority opinion) agreed with Dr. Brenna’s testimony. For the rest of the 84-page decision, no other mention of Dr. Amory or his testimony appears. This is quite a disconnect between Patrice Brunet and Richard McLaren on the one side, and Campbell on the other.
What was the main thrust of Dr. Amory’s testimony? As Campbell notes in his dissent, the IRMS data results were inconsistent with the known science. In other words: There is something wrong with the data, and it should not be used to convict Landis of a doping offense.
Was Dr. Amory the most credible witness? That’s a judgment call. I thought the other defense witnesses were credible, too. And what I heard in the testimony (and refreshed by reading the transcripts), as a whole, was that there are myriad problems with the data, with the lab’s conduct of the tests and with their understanding of even the basics of how to use their own equipment. Because of this the results cannot possibly be relied on to find against Landis.
To completely ignore testimony that calls into question the quality of the data and whether it’s been interpreted correctly without even addressing the testimony and saying why they discount its meaning and value, well, there’s a special term for that. Chutzpah.
Math? Who Needs That?
Paragraphs 182 through 188 of the majority opinion are interesting reading. Most of what’s said there addresses some technical specifications and what they mean and how they’re interpreted. I’ll leave that discussion for someone who’s better qualified than myself. What’s said there, however, gets to the heart of how the Landis decision was made. It’s not a pretty picture. There’s a paragraph in the middle of that, however, where the panel has clearly failed to understand the concepts they are trying to elucidate. Whether purposeful or not, by doing so, they are negating one of the defense witness’ testimony.
184. Dr. Brenna explained that in the case of the MS, the GC is connected directly to the MS and it detects the substance almost instantaneously. The RTs [retention times] from the MS therefore correspond essentially to the time that the analytes are emerging from the GC. This is not however, the case with the IRMS. The GC/IRMS as elaborated upon by Dr. Brenna is an entirely different system than the GC/MS. With GC/C/IRMS, the sample is processed first through the GC, as with GC/MS. The times therefore at the end of the GC should be the same as with the MS, as long as the same instrument is being used, but after that there is no instantaneous detection of the retention time. After the sample passes through the GC portion of the GC/C/IRMS system there is an additional length of plumbing in the GC/C/IRMS machine adding a significant amount of time to the total RT of the substance. This additional “plumbing” is where the combustion of the substance is taking place. From the earlier discussion of how the instruments work, the reader may recall that combustion involves turning the compounds into CO2 so that the IRMS can measure the amount of carbon 13 and carbon 12 in the CO2.
185. The additional time added to the RT of the analyte or standard in the IRMS will always be a constant time, regardless of the individual substances or compounds being measured. Consequently, the retention times of the compounds emerging from the GC/MS system cannot be the same as those coming from the GC/C/IRMS. Likewise, the RRTs will also be different. Taking the example used above, if the RT from the GC/MS is 10 min for the target analyte and 5 min for the internal standard, in the case of IRMS, we may be adding an additional 1 minute for the combustion of those compounds to take place. The reason that the additional time is the same for each substance/compound is that the substance or compound is no longer in its original form; they have been combusted completely to form CO2. As such, the RT for the target analyte at the end of the IRMS would be 11 min and the RT for the internal standard is 6 min. This results in a RRT of 11/6. Arithmetically speaking it is not possible for the RTs and the RRTs to be identical in the GC/MS and GC/IRMS systems nor can it be ensured that it will be within TD2003IDCR.
So, what are they saying? First, in paragraph 184, they’re describing how the instruments used to for gas chromatography/mass spectrometry (GC/MS) and gas chromatography/carbon isotope ratio mass spectrometry (GC/C/IRMS) differ.
In the next paragraph, they talk about comparing the retention times (how long it takes for a compound to pass through the apparatus) between the two systems. What they tell us is that the amount of time it takes for a compound to run through the GC/C/IRMS system differs from the GC/MS system. Not only that, it differs by a constant amount. So if compound X takes 10 minutes in the GC/MS system, it will take 11 minutes in a GC/C/IRMS system if the difference between the systems is 1 minute. If an internal standard takes 5 minutes in one, then it takes 6 minutes in the other.
Relative retention time, not explained in these paragraphs is the ratio of the time a sample compound takes to run through the system (X) to the time an internal standard takes to run through the system (S), or X/S. Got it?
Where the majority go astray is in talking about being unable to compare the results from the two systems because the relative retention times don’t match. Yes, as they’ve put the example, 10/5 is not the same as 11/6. But to adequately compare the systems, you need to subtract out the known constant time difference, in this case 1 minute. If you do that, you’ll find that the second system has a ratio of (11-1)/(6-1) or — magically — 10/5.
Apparently, the person who wrote this paragraph wasn’t very good at math or logic.
What’s extremely bothersome to me is that this is not simply a math error, it’s being used to impeach the testimony of Dr. Wolfram Meier-Augenstein, so as to cast doubt on his credibility and on the accuracy of his testimony. The error here is in the panel’s understanding of how to compare the two systems.
Fruit Of The Poisoned Tree
In law, I believe, there is a concept that says that if the authorities do something that is in violation of the law (for example, breaking into your home without a warrant, conducting a search and then using evidence gathered in this manner to charge you with a crime), whatever comes from that violation must be thrown out.
So, using the above example, say the police bust into your house in the middle of the night without a search warrant, search everywhere and find a small amount of a controlled substance for which you don’t have a prescription. Following this midnight raid, prosecutor charges you with drug possession. By not having a search warrant (and thus not having shown probable cause), the evidence against you should be thrown out, as it is “fruit of the poisoned tree.” Even if the evidence is correct — you had something you shouldn’t — under the law, you can’t be convicted. That’s because those who enforce the laws are also required to live within them.
From the majority opinion, we find out that no such protection exists in the anti-doping world. How so? In the ruling, the panel throws out the test results for the initial testosterone screening of Landis’ A sample from Stage 17. However, they tell us, that doesn’t matter, as the isotope ratio test, which is said to be more accurate, shows a violation occurred.
Generally speaking, the isotope ratio test is only performed if the screening test comes out with T/E ratio above 4:1. But the panel argues that the lab could just do the isotope ratio test without the screening, so the data has to stay in. This is a novel argument. According to the panel’s ruling, this argument has been used successfully in the past, so they accept it as valid.
The technical document that describes the WADA procedure for testosterone testing states that first the screening test shall be done, and it shall be confirmed by three other runs of the screening test if the result exceeds an established threshold (currently a T/E ratio of 4:1). If the T/E ratio exceeds the threshold, then the isotope ratio method is used to determine whether or not the testosterone is natural or synthetic.
So, taking WADA’s procedure at its word, if the panel finds that the screening test was faulty, then the reason for running the isotope ratio test was faulty. If we adhere to the “fruit of the poisoned tree” standard, shouldn’t the results of the isotope ratio test be thrown out? They were achieved through questionable means, therefore the results themselves are questionable.
More to the point, Chris Campbell asks in his dissent, if the lab can’t get a simpler test like the T/E screening test right, how can we have confidence that they can perform the more complicated isotope ratio tests? How, indeed.
You’re Not An Expert If You Aren’t A Member Of Our Club
While the panel does grant some points to Landis and his experts, on the points which are crucial to their decision, they consistently discount the testimony by the defense team’s expert witnesses. My impression from reading the majority’s opinion hews to the belief, often very carefully stated, that no scientist can understand the biology and chemistry behind the tests unless they’re a member of the anti-doping fraternity. But, of course, members of the anti-doping fraternity aren’t allowed to publicly question each other’s work. That might be holding the other person up to disrepute, and that’s not allowed.
What’s underlying this, however, is an element of unfairness in the system. If the only people who will be believed on the main points come from the anti-doping community, and if those people are prevented from testifying for the defense, then no athlete will ever be able to successfully challenge a lab’s findings unless he or she can prove such a radical departure (think Landaluze) that it can’t be ignored. Which leads me to my last point (for tonight) …
Just How High Is That Bar, Anyway?
One thing that kept sticking out in my mind while reading the majority opinion was this: Just how can an athlete rebut a charge against him/herself? Or even: Can an athlete ever rebut a charge? The evidence in the Landis case seemed strong enough to call into question the lab’s procedures, documentation and staff training, leaking of information to the media (even if not the original results, there’s no question that the results of the additional tests in April were leaked by the lab) and so on. The majority even cites such problems at points within their opinion, but rather than hold anyone’s feet to the fire, they simply slap LNDD on the wrist and say, “Next time, you might not be so lucky. Next time, we might throw out the case. So clean up your act.”
I’m left wondering if any athlete can ever get a fair hearing, and if any athlete can ever overturn an adverse analytical finding. Floyd Landis had a very strong case, but apparently not strong enough to win. It’s cost him 14 months and an unbelievable sum of money to try and defend himself. The message here from this panel seems to me to be, “If you’ve been accused, don’t bother to fight. Look what we did to Floyd Landis. We’ll do that to you, too.”
And that brings me back to where I started. Given the result, I wonder: At any point in these proceedings, did Floyd Landis ever really have a chance?
Was there ever a point in the hearings or the deliberations where the arbitrators were guided by what Rabbi Hillel said 2,000 years ago? Clearly, for Chris Campbell (who started his dissent with a quote from the New Testament), the answer is yes. But for Mssrs. Brunet and McLaren?
Thanks for wading through the opinion for us. I may pluck up the courage to do so however the two paragraphs you quoted had my eyes glazing over and tongue lolling in the back of my mouth. One question that comes to mind is, if the tests could be manipulated by shoddy lab work then why did the defense not take a sample from FL and run it throug a series of test to show how easily this could have been done? Surely the adverse analytical findings could be replicated. As you say, the defenses’ expert testimony was discounted but if an actual sample could have been shown to be easily manipulated, would this not have worked in their favour. Maybe you or one of the solicitors that visit this site can explain why this would or would not have been a good idea.
You are right in suggesting that a severe warning has been sent to all athletes. It states “Don’t mess with us. You ain’t gonna win. It’s our ball and we will make the rules the way we like.”
Just from a laymans’ take – under the conditions of the Landis trial – I would not be quick to give the prosecution anything that they may wind up using against me – the issue at hand was what conclusions and how these conclusions were come upon by the prosecutions people. To bring in a “sample” of Floyds’ blood or urine test would be opening the doors to attack from the prosecution and defeating what little the defense had to work with.
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Rant – thanks for taking all the trouble and explaining. I’m still mulling it over and looking at the original to know it better and perhaps gleen some understanding of how the language is used to communicate.
Rant: Can you clarify three things? First, do I understand you correctly that the GC/IMRS testing was the key point that convinced the majority of Floyd’s guilt? (you and TBV seem focused on para’s 180 – 190) Second, what stage samples were determined by the majority to be relevant: S17, the neg-A stage testing or both? Third, was the isoprime2 machine used to process any of the tests that were determined by the majority to be material to their decision? Sorry, I can’t bring myself to read the decision (yet).
Steve,
They convicted him based on the GC/IRMS tests, that’s correct. Stage 17 samples were the most relevant. I don’t recall discussion of needing the other tests for corroboration. I believe the Isoprime2 was used on the follow-up testing in April, but not on the original tests, however, I’ll have to go back and check.
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The decision needs to be read very carefully. What’s missing in the decision is very much direct quotation from testimony, and that’s important to know, because a number of statements the majority uses to back up their opinion are statements that have been taken out of the original context during testimony. Even just reading the decision, without going and consulting the original testimony is quite telling in how they rendered their opinion.
I am still coming to grips with how easy it was for the 2 arbitrators to dismiss the science of non-WADA experts, particulary Dr. M-A. How easy it was to just ignore the fact that the IRMS results are an exception to the ISL covered by the TD2003IDCR. They are writing new policy by saying that TD2003IDCR doesn’t cover two machines. I thought that is what relative retention time was all about. If two machines are not covered by the TD then the whole process is an exception to the ISL. Either play by the rules or call it an ISL.
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McLaren and Brunet would have tossed out the testimony of Dr. Goldberger on the same “his standards” are better than our standards presumptions, however Dr. G had that invitation to be become the head the UCLA WADA laboratory. That letter, I remember how the prosecution (I think this fits the USADA) wasn’t even going to allow Dr. G to read the letter in the hearing, changed everything. It made him one of the club. Suddenly his testimony counted.
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As we pick apart the science of the decision, I come back with the same theme, It’s not science, its politics.
Rant, a thought as I ramp up a reply. If you’d like to engage us in a discussion of the majority opinion (and I hope this is your plan), it might be clearer if you could organize things so that each topic has its own post. One post for “whatever happened to the witnesses”, one post for chain of custody, etc. It would be doubly great if we had easy and equal access to each of these posts. As you know, our discussions on Monday tend to die out very quickly if you’ve posted on Tuesday. Posts analyzing specific areas of the majority decision deserve to be kept active, even as you later add other posts addressing other areas of the opinion.
Rant, I am at such a loss from reading reviews like yours, that I am not even sure how to begin. I’m so far beyond stunned and dismayed. Science and due process was thrown out the window. What we see with the majority opinion should go down as professional fraud on the level of the prosecutor who was jailed the Duke lacrosse players case. Is there any recourse within the arbitration associations they belong to. They quite blatantly committed fraud.
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As was stated in the comments section of the TBV Sunday Roundup. Some one or some organization, that cares about human rights and justice, and has the financial capability to fund the Landis defense with the best of the best needs to step up to the plate and help fight this case until the current WADA system is brought down and Landis is redeemed. There is no doubt in my mind that the current WADA system completely denies athletes what should be the basic human rights afforded to the accused under any civilized country’s rules of law. Personally, I think WADA, USADA and LNDD should be forced to pay tens of millions of dollars in punitive damages for the way this case went down.
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Now do you want to know how I really feel?
For me it was not really about freeing Floyd, it has always been about revealing the problems at WADA (and LNDD) and doing everything possible to get them on track to becoming the truth-focused operations that they should have been all along.
What a lost opportunity.
I found Dr. Armory utterly compelling as he was clear that the numbers for two of the four metabolites are impossible in human physiology not only for the stage 17 B sample but for the other B samples. So the lab’s work was consistently wrong, and Dr. Armory butressed that with peer reviewed documents showing the proper behaviour of those two metabolites. USADA never addressed that the numbers were actually correct, and I haven’t read anything by the USADA apologists that convincingly explains how those numbers could be correct. Game to Floyd right there as far as I am concerned – with 50% of the metabolites behaving erratically, none of the numbers can be trusted.
Nevertheless, Dr. Armory’s testimony centered on two metabolites that, while they were scientifically abnormal, weren’t the basis for the positive finding. I think the majority arb opinion ignored Dr. Armory because his testimony did not directly discredit the -6 metabolite reading. Dr. Goldberger and Dr. M-A discredited the -6, but in a general way with retention times and the lack of specific mass spec data, and the arbs somehow found a way to reject their analysis.
I hope Mssrs. MacLaren and Brunet think about the responses from WADA, USADA, ASO, UCI and the head of LNDD. It’s pretty clear, especially from the remarks by the head of the LNDD about unnecessary attacks on the lab, that the arbs’ attempt to get them to improve standards are falling on deaf ears.
Hi Rant and others – I wanted to raise a few concerns over some of the reasoning that’s been going on here. First, there are alot of assumptions being made – mainly, that the arbitration process is supposed to mirror US legal procedings. This is simply not the case, whether one likes this fact or not. Landis entered into a private contract that has a particular set of checks and balances. Whether one finds this fair or not is not relevant to the case, but was relevant when Landis signed any contract. I agree that the system as it exists seems to be unduly bureaucratic, and seems to place atheletes on the defensive. This, however, wouldn’t be the case if there hadn’t been so many cases of legitimate doping.
Second, I think it is very easy for non-scientists to take a weekend or even a week to view documents and comment. The arbitors had months in which to do so, and have done this many times. What I seem to hear over and over again as a subtext is that there is a conspiracy, and the majority of arbitors more or less lied in order to create a decision. Again, this is an assumption that I find hard to swallow. This kind of assumptive thinking is used very unjustly, also. Landis himself had presented many reasons for why his tests results had come out the way that they had. This many many people ‘assume’ that he was lying, scared out of his wits, and trying to come up with anything possible to ‘right’ himself. He later said that these statements were made at the behest of his lawyers, although I still find it hard to believe that someone as outspoken and concerned for the truth as Landis is would ever submit to such a corporate and legalistic way of telling ‘the truth.’ He later apologised for such statements and recanted. And yet none of Landis’ supporters have ever taken him to task on such statements, and still denounce the lab for errors.
Landis has made errors, the lab has made errors (which the technitions had explained in the proceeding). I know that lab work is open to error especially when you’re doing very intricate work that involves human interpretation.
My point here is that the lab is held above any kind of possibility of error while Landis is not, and that is an unfair double standard. If you use the same theory applied to Landis, he lied to the public about why his tests came out as they had.
There are many human beings involved in this whole process, all falable as the rest of us. Just as some interpretation may seem inconprehensible, so may seem the incomprehension some of us feel when trying to understand Landis’ often bizarre disregard for propriety (his best friend and former manager’s actions on his behalf) and truth (his explanations.) It’s important to step back once in a while and see that this is a human process, not always a legal one.
icigatsu, you make a number of good points, but I think you’re missing the bigger picture.
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Agreed, the WADA procedure is binding on Landis as a matter of contract, because he signed on to be a UCI-licensed cyclist. However, it’s not like he had the ability to negotiate this contract, or that he had any real choice in the matter. If he wanted to be a professional cyclist, he had to sign this contract.
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You make a very brief statement that the WADA rules might be more fair “if there hadn’t been so many cases of legitimate doping.” By this, I assume you mean that the WADA rules could be relaxed if fewer athletes doped, or that the WADA rules must be skewed against athletes because so many of them dope. The obvious response is that, in theory at least, rules should always be fair regardless of the number of people who break the rules at any time. Yes, you’re right that systems of rules require a large degree of voluntary compliance — when you have a significant percentage of people breaking the rules, the rules themselves tend to break down and become difficult to enforce fairly. We can discuss this at length if anyone is interested. So if you’re saying that the rulebreakers are responsible in part for the rules being unfair, I agree with you. However, at the end of the day, rules have to be fair, and they have to be enforced fairly — we can acknowledge that this is a difficult job, but we have every right to expect that this job will be performed by the persons and agencies responsible for making and enforcing the rules.
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You next make what I think are very good points about the relative ease of making comments on a blog like this one versus serving as the persons responsible for the FL decision. Of course, we blog participants have a right, probably a responsibility, to comment, and to dissent if we disagree with the decision. But I think the arbitrators deserve some benefit of the doubt. It’s possible (even likely) that the decision was reached honestly, conscientiously, and without conspiracy. If we disagree with the decision, that does not mean that the decision was dishonest or is the result of a conspiracy.
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But ichigatsu, I think that many of us here are simply baffled by this decision. It’s a difficult decision to understand. The decision seems to discount much of the evidence presented by the Landis team without adequate explanation, and to simply ignore the remaining evidence in favor of FL. While a court cannot always adequately explain why it found one witness persuasive and another witness unpersuasive, this panel stated explicitly (and more than once) that it would favor the evidence of witnesses who worked within the WADA system. That’s a huge problem for most of us. The WADA code of conduct prevents people who work for WADA labs from testifying in favor of athletes. If these are the only witnesses that a WADA arbitration panel is going to find persuasive, then the system has been set up so that the athlete cannot win.
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Defenders of the WADA arbitration system have argued that while the WADA code of conduct may prevent WADA-lab personnel from testifying in favor of an athlete, it does not COMPEL WADA lab personnel to testify against an athlete. So, if a WADA lab person feels that an athlete has been falsely accused, the lab person can remain silent. Perhaps there were people at WADA labs who were asked to testify against Landis and refused to do so. We’ll never know. However, even if the vast majority of WADA lab personnel refused to testify in the Landis case, and only a few were willing to testify against Landis, that would have been enough to seal Landis’ fate — again, so long as the testimony of WADA lab people would always trump the testimony of people outside of the WADA system, which is pretty much what the majority in the Landis decision indicated would be the case.
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Yes, this is a human process, and there will be errors in every human process. If FL lost because people made mistakes, that’s too bad. But most of us think that FL lost not because of human error, but because the WADA system ensures that the athlete must lose.
Luc,
You propose an interesting way to counter the lab results. It is exactly the kind of thing that USADA did by having additional samples tested. Unfortunately, what you’ve suggested as a defense for Landis is a method that is barred his side. One of the issues in testing the additional B samples was that this was an avenue prohibited to the Landis side.
Mc,
I’m afraid there’s as much politics as science to this decision.
Larry,
Good point. I’ll break things up differently in the future to make it easier to discuss.
Ken,
I saw that comment earlier today. I hear you loud and clear.
Daner,
It is an opportunity lost. The deck is rigged, and the athletes can’t possibly defend themselves. That’s what bothers me more than anything.
Cheryl,
Thanks for pointing that out. I would have liked to see the arbitrators point that out, as well. But in reading their opinion, I found no mention of that.
ichigatsu,
What bothers me about the process isn’t that it’s arbitration. I have no problem with using arbitration rather than the courts. What bothers me is the rules that govern the arbitration, written by WADA. Their rules are pretty well stacked against the athlete, with some presumptions that I disagree with. First is the presumption that the science is correct and that the lab work has been performed correctly. This requires the athlete to prove that the lab didn’t perform their work correctly. OK. Not a problem, as long as the athlete is given the means to defend himself, but WADA’s rules block many, if not most, avenues in this regard. I think the rules need to be changed to provide more balance, and to provide the athlete a fair opportunity to present his case. It is too bureaucratic, to be sure. But I can envision other arbitration processes that could balance things better.
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As for a conspiracy, I can’t speak for others, but here’s my take: Unless you call rigging the rules in favor of the ADAs a conspiracy, I see no conspiracy in the Landis case. I can see many possible human motivations, like trying to cover one’s mistakes for fear of being fired, or the head of an institution feeling backed into a corner and having to defend a position he wouldn’t normally defend because of leaked information, or any of a host of other explanations. Some more cynical than others, I suppose.
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Your point about all of us being human is a good one. That said, I don’t think it’s unfair to hold the lab to high standards, as the work they do can have a huge impact on a person’s life and livelihood. When making decisions that may deprive someone of their ability to earn a living, or to work in a particular field, those decisions have to be made on rock-solid information and evidence. Sloppy lab work can lead to bad decisions that harm people. For that reason, I think it’s fair to expect the labs be held to a very high standard. The athletes are held to a higher one — strict liability. Meaning, if it’s in you, you’re guilty no matter how it got there. The labs have to be beyond reproach to ensure the credibility of the system, and to ensure that innocent people aren’t harmed. I’m not sure that the lab in this case has achieved that. But that’s just my opinion. People need to be accountable for their actions, too. Since you refer to Will, let me say this: Will did take responsibility for what he did. What he did was wrong, as I’ve said in this space a number of time, but taking responsibility for it was the right thing to do.
Should the labs and the athletes be held to the same standard, i.e. strict liability?
That is, if the labs make a “crucial” mistake they are given a two year suspension?
Should the fact that the US arbitration board found that the original T/E test was invalid mean that the lab should be found in violation of a strict liability provision and thereby disqualified?
What’s fair?
Rant, is there any way we can get started here a discussion of the science behind the mass spectroscopy used in the FL case? I confess to not really understanding it. Also, do you think we can invite someone more expert to participate? There are a few people on Daily Peloton who seem to know this stuff.
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I’m strugging to understand the basics. I get that somehow, you need the GC/MS to identify the compounds, and the GC/IRMS to measure the compounds. One of the many things I don’t understand is how or whether the GC/IRMS analysis depends on the GC/MS analysis. Given that the majority threw out the LNDD’s T/E analysis, which I understood to be based on the GC/MS testing, then was there enough validity in the GC/MS testing to provide the information necessary to do the GC/IRMS testing?
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I do not think that the majority opinion’s objection to relative retention times could possibly be as wrong-headed as you are making it out to be. In your example, there must be something more than subtracting out a minute from the numerator and denominator to allow computation of an accurate relative retention time. It’s not entirely clear to me WHY your analysis is wrong, but come on, it can’t possibly be the case that the majority could not manage a bit of simple algebra. Perhaps the problem here is that the additional time required to process the IRMS is a constant during any particular run of the machine, but can vary from one run of the machine to the other. Perhaps it takes a minute on a particular Sunday, but could be 55 seconds the next day.
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Mc, sorry, I don’t see anything in TD2003IDCR that talks about one machine or two machines, or that even mentions the concept of relative retention time. Am I missing something?
Larry,
Look for something on that in the coming days. I’ve got a “mystery Ranter” who will be providing an article that will address many of the questions I suspect you have. Including the one about the computation of relative retention times. As a preview (if I understand the article correctly, and it’s only in draft form right now): Yes, the majority’s opinion is pretty wrong-headed. How that came to be, I won’t speculate, but the person who’s writing the article is extremely knowledgeable on the subject.
Davis,
Good questions. If the athlete is held to a strict liability standard, what standard should the lab be held to? It seems, given the majority’s opinion, that Landis is held to that standard, but the lab is getting a slap on the wrist. Something about that doesn’t seem right — especially if, as the majority asserts, such errors could cause a case to be thrown out in the future. If it can somewhere down the line, why not today?
Rant –
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While I await the “mystery ranter” (who could it be?), let me address your other points.
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On “why did it take so long?” — reminds me of Woody Allen’s famous complaint about the bad restaurant – “The food is terrible … and such small portions!” Rant, if the majority had delivered a good opinion, we could speculate on why it took so long. I don’t see the point of trying to figure out why it takes a long time to produce an opinion we didn’t want in the first place.
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On lab standards … let’s remind ourselves of how the WADA rules work. LNDD had to prove the anti-doping violation. In making this proof, LNDD has the benefit of an assumption that they acted in accordance with the International Standard for laboratory analysis (ISL). FL could (and in a few instances, did) rebut this assumption by proving a violation of the ISL, in which case USADA was required to prove that the violation did not cause the Adverse Analytic Finding or the factual basis for the anti-doping rule violation. We need to commit these rules to memory. If we have a complaint about the FL case, but the complaint does not speak to these WADA rules, then the arbitrators were free (even required) to ignore our complaint.
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So from the standpoint of the arbitration, the ISO standards do not matter. All that matters are the ISLs. If the LNDD is failing to live up to this-or-that ISO standard, then maybe it won’t be able to obtain WADA certification the next time around, but in the meantime this failure is not going to affect the validity of the LNDD’s lab findings under the WADA rules.
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I’ve already commented on the question of ignored witnesses. As to whether the data makes sense on its face, whether the numbers are consistent with the known science … I suppose that goes to whether LNDD proved the doping violation. If the LNDD results are absurd on their face, then I guess they can be tossed out. Something like if the cop clocks you for speeding and measures your speed as faster than light, you could probably beat the speeding ticket. Did Dr. Amory’s testimony conclusively show that the results found by LNDD HAD to be in error, that these levels of testosterone could not occur in a human being (even with doping)? Maybe, but in all I’ve read about the case since the arbitration, I don’t remember that anyone picked up on this point. In any event … in the law, we give a lot of leeway to the finder of fact, whether in a court case or an arbitration. The arbitrators did not find Dr. Amory’s testimony to be persuasive, and we can’t say much more than that.
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Fruit of the poisonous tree? Wow … I haven’t heard that expression since law school. But sorry, I don’t think this doctrine applies to the FL case. Yes, it appears that FL’s stage 16 sample was incorrectly flagged for violating the 4:1 T/E ratio, and if the LNDD had correctly measured Landis’ T/E ratio in the first place, the subsequent tests (the ones that the majority relied upon to find against Landis) never would have been performed. But this is not a “fruit of the poisonous tree” kind of situation. This is more like if some guy’s tax return fails an IRS screen, and the guy is audited. If it turns out later that the IRS screwed up when it identified the guy for auditing, that does not invalidate the audit. There’s a difference between the police finding evidence as the result of a mistake, and the police finding evidence as a result of a violation of the accused’s constitutional rights.
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On “the member of the club” — yes, that’s one of my major problems with the majority opinion. If the majority is going to give wide preference to ADA witnesses, and if ADA witnesses will not testify for athletes, then the athlete is screwed.
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On “how high the bar” — I stated the rule above that to prove a doping violation, the prosecution must (1) show the adverse finding, and then (2) prove that any violation of the ISLs did not cause the adverse finding. It appears in practice that you can pretty much throw out (2). The majority was quick to conclude that none of the ISL violations proved by the Landis team contributed to the adverse finding. In fact, the majority itself seemed to take on the responsibility of showing why the ISL violations could be ignored.
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(Note: the rules state that if the athlete proves an ISL violation, then the ADA has the burden of proving that the violation did not cause the adverse finding. But do you remember USADA ever making ANY argument addressing the affect of any alleged ISL violation? Instead, it appears to me that the majority took this burden of proof on itself. If this is right, and if USADA never itself addressed the affect (or lack thereof) of these ISL violations, then I’d argue that USADA failed to meet its burden of proof under the WADA rules, and that the arbitrators could not dismiss these ISL violations on the basis of arguments that USADA itself failed to make. I think this itself is a ground for dismissal of the Landis case.)
Larry,
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I’ll ask this of you because you have been the toughest devils advocate I’ve seen participate in FL discussions here or elsewhere. Given everything we know, if Floyd Landis were to pursue this matter further, what would his best course of action be? How could he best bring down WADA’s house of cards and bring about positive change in regards to due process and fairness?
Larry, Rant: Thanks for addressing some of the points I raised – above all the noise from all sides of the Landis issue, I can understand your concerns very well. Regardless of where one sits with this case (and I confess that I honestly do not know where I sit,) I agree that the current system does not provide enough opportunity for ‘discovery’ on the part of the athelete. I am myself somewhat mystified by the amount of power that the WADA has.
As to the point of ‘tight rules because of legitimate dopers’ I was refering more to the fact that there seems to have been a massive cultural change in most of the world over the past 20 years – one in which spectators, sponsors, amateur atheletes, all involved, wanted to know that their sports heros weren’t using ‘drugs’ to enhance their ability to achieve greatness – I think it’s been a rather organic process – slowly, like a vine growing, more and more sports are in a position where accountability is more intense, therefore the pressures mount. I didn’t mean to imply that rules should be changed just because of the people they affect – rules should be rules, across the board.
But thanks again for the feedback, it makes some important points for me to consider.
Larry,
My point in asking what took so long is just to say that I expected a better product than what the panel delivered. Even if it had been the same result as what they delivered, I think the panel’s opinion is not as well written as it should be, and that it has too much important material left out.
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Regarding the ISL/ISO standards. My understanding is that the ISO requirements roll up into the ISL, so that a violation of an ISO standard is automatically a violation of the ISL, even if it’s not specifically written into the ISL. That being the case, problems of documentation, chain of custody, etc. would all be ISL violations. Could the other side argue, for example, “well, even though the documentation isn’t complete, it didn’t cause the AAF”? Sure, but with a doubt about where the sample was, who was working with it, and what was done to it, they might have a harder time making their burden of proof on that burden turn if that problem were addressed as an ISL violation. But then again, regarding whether the ISO requirements roll up into the ISL, I could be wrong.
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In regard to ignoring a witness’ testimony. My concern here is two-fold: Campbell finds Dr. Amory to be the most credible witness (which may shed an interesting bit of light on the discussions during deliberations). The others don’t even address his testimony. Cheryl points out a reason for why they might not have paid attention to Dr. Amory. I would have liked to see them clearly state why. They took pains to in other cases, but not his. I find this curious.
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Fruit of the poisonous tree: Yours is a better analogy. That said, I think Campbell’s point about whether staff who can’t get the T/E test right can be trusted to get a more complex test right is the most cogent argument here.
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Members of the club: That’s a huge concern for me. True science doesn’t play this game. Sure, I wouldn’t ask a physicist to critique a biology paper, but the Landis witnesses are every bit as credible as the USADA witnesses — they have similar knowledge and expertise. That the majority seems to automatically reject their testimony on the key points of this case gives me pause.
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And your point about who actually proved that the various violations didn’t cause the AAF is well taken. Except for some statements in closing arguments, perhaps, USADA didn’t seem to do much of that during the testimony. They may have done some, but not a lot — or at least, not a lot that jumped out at me while perusing the transcripts.
ichigatsu,
You just hit the nail on the head. I don’t know how old you are, but when I was a young pup in the 1960s, many people still assumed that the difference between amateurs and pros was that the pros did whatever it takes — including drugs — to perform at that level. Amateurs were somehow more pure, because they didn’t dope (well, that’s what people believed, anyway). Over time, people have come to expect that the pros compete without chemical assistance. It’s been a long gradual process, but the shift began somewhere around the time of Tommy Simpson’s death on Mont Ventoux.
Rant:
Actually, a member of the Danish TTT team died at the Rome Olympics in 1960 as result of doping, and there were a couple of riders in the Tour de l’Avenir, perhaps a year or so after Simpson died who got in serious medical condition from doping, but did survive. So amateurs were in fact doping back in the good ol’ days.
William,
Good point. What’s really interesting about the Knud Enemark Jensen affair is what the French minister of sport at the time said, (paraphrasing) “Professionals take these drugs as a matter of course, but we would never let one of our amateurs do so.” There were amateurs doping even back in the good ol’ days. But many people perceived the problem to be much more limited amongst the amateurs back then than they do today. And now, the pendulum has shifted and we hold the pros to the same standard — we expect them to compete clean. Not a bad shift, perhaps, but certainly a huge shift in perception and what we expect of our sports heroes. Jensen’s death got people talking (a bit) about drugs in sport. By the time Simpson died, many folks were demanding that something be done. And with the 1968 Olympics, anti-doping testing began to hit the big time (even though the UCI had started a couple of years before…) Interestingly, the first positive dope test (at the Summer Olympics in 1968) was for … are you ready? … alcohol.
Ken, the shortest and most accurate answer I can give to your question is, I don’t know.
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I’m on record indicating that the best hope for reform in cycling lies with the teams, especially teams like Slipstream that have attacked the doping issue head-on. All teams now have a strong motivation to ride clean — given that continuing sponsorship in cycling now depends on riding clean (or perhaps cynically, on not getting caught). It’s my hope that anti-doping programs like the Slipstream program are set up not only to catch dopers before WADA does, but also to defend riders who have been falsely accused of doping. I cannot tell you that this is the case – it may be, it may not be, I don’t know.
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But imagine that FL’s Phonak team had been monitoring its riders throughout 2006, and during the TDF. Imagine that Phonak had its own samples taken from FL after stage 16, and had done their own analyses at reputable labs. FL’s case would have been entirely different.
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In any event, if you’re hoping for system-wide reform, I think your hope lies with the teams, and not with some hoped-for result in the FL case. If FL continues to fight this case, he should do so for his own sake, for the sake of his place in cycling history, and for the truth’s sake.
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But what can FL do at this point? I’m not sure. As we’ve discussed, an “appeal” to the CAS is not really an “appeal” in the sense of having the proceeding of a trial court reviewed by a higher court. It’s set up more as a second trial. Apparently, anything and everything can be reconsidered. That’s good, in that the arbitration in Malibu did not end up going very well for FL. It’s bad, in that the appeal could be as (or more) expensive and time-consuming than the original hearing.
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The field of international sports law is not my area of expertise, but from the little bit I know, I don’t expect that FL would receive a more sympathetic hearing before the CAS than he received before USADA. I DO see clear errors in the way the majority decision applied the rules in the FL case, and as a lawyer I’d love to see these mistakes corrected, but I have no confidence in the WADA system and I’m not sure that anything constructive can be accomplished with an appeal within the WADA system.
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FL can continue with his Wiki defense, and make certain that the mistakes made by the arbitrators are clearly explained and made available to all. This will satisfy you, me and the handful of others like us. Maybe over a long time, FL will be able to clear his name.
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I don’t know, Ken. I kind of think FL should walk away and get on with his life. He knows the truth, and maybe that’s enough.
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As for me, I simply want to come to as clear as understanding as I can of the facts of the FL case, I want to try and understand the majority decision ON ITS OWN TERMS as best as I can, and I want to be able to clearly articulate (from the perspective of a lawyer who believes in the rule of law) what the majority (and for that matter, the dissent) should have said in this case.
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While I have your attention, Ken, I assume that you’ve reviewed the majority decision on chain of custody. IMO, this portion of the decision is dead wrong as a matter of law. But I have a question for you — you followed the arbitration hearing more closely than I did — do you remember any discussion or evidence concerning the content of LNDD’s chain of custody policy? Remember, the labs are supposed to have a policy that meets the minimum requirements set forth in the WADA rules. Only I’ve never seen any discussion of an LNDD CoC policy, just a discussion of the WADA requirements. Can you help me here?
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Rant, I’m looking at the ISL, and you may be right that it DOES incorporate SIO standards. The ISO appears to play a role in lab accreditation. More significantly, Section 5.1 of the ISL states that “any aspect of testing or management not specifically discussed in this document shall be governed by ISO/IEC 17025 and, where applicable, by ISO 9001.” There are also repeated references in the ISL to things that the lab must do “in accord with” the ISO standards. Unfortunately, the references in the SIL to chain of custody do not specifically reference any ISO.
Is there hope for Floyd to “clear” his name? Depends in part on what you mean. Chances of getting acquitted by CAS are problematic, but perhaps possible. There is always the Demaclean Sword of the French case, which was put on hold pending the arbitration. At present, that is largely mute, but if Landis does proceed to CAS and prevail there, the French might just re-open the case. And any decision from CAS for Landis will probably be perceived by some as “getting off on a technicality”.
The other possibility is “clearing” his name in the court of public opinion. My admittedly unscientific feeling is that he has made some progress here. The Pell article announcing the decision was rather balanced, summing up some of the defense positions and not simply taking the point of “another dirty doper busted”. There was another article in the local paper (Trib, Rant) which was similarly balanced, IMO. It carried no by-line, so I am not sure if it was local, or off a wire.
In some ways I think the best course for Landis to improve his public image would be to step away. He has to decide what to do with his life for the next couple of years, whether to take some job to tide him over until the ban expires and resume racing, or to search a totally new career. The later option will probably require some education/training, as I rather imagine his marketable skills outside of a cycling context are non-existent. The panel’s decision will undoubtedly continue to be debated for some time on-line in forums and blogs; hopefully a better understanding of not just the panel’s decision (and the Campbell dissent), but of the whole situation, including all evidence presented at the hearing, scientific explanations of the testing process and analysis of the data, etc., will come. Whether Landis is truly innocent we may never know, but we might come to have a firmer basis for believing that the evidence against him is flawed, and shouldn’t have been relied on. Or we may come to realize that the panel, despite the flaws in the procedure, got it right after all.
I won’t presume to advise him what to do. He has a lot to consider. I hope his lawyers provide good advice and don’t just press to appeal out of some macho lawyer feeling they have to battle to the bitter end.
To switch subjects, over a week since the Tom passed thru Columbia and there has yet to be any letters to the editor or Trib Talks expressing negative views. In fact, I don’t think there was anything after the final article appeared last Monday sunming up the race.