In a comment on my previous post, reader Luc asks one of the most incisive questions about the whole sad Marion Jones saga:
[H]ow do we trust an athlete that says he is clean?
That’s an excellent question, which I’ll leave everyone to think about for a day or so. In the meantime, there’s another story from the past which contains some parallels to one of the big sports stories of current times. The question raised by both stories is, “Why fight ‘the system’ if you’re almost certainly going to lose?”
Back in 1969, Curtis Flood challenged baseball’s reserve clause, a standard part of the contract between each player and his team that pretty much allowed the team to hold onto players even once that contract had technically expired. It did so by allowing the team to renew the contract at its current terms for one year. Owners used the power of this clause to hold onto players for as long as they wanted by constantly renewing the previous contract, or to trade the players to other teams on terms dictated by the two teams. Players, once signed to a contract, had little or no control over their professional future.
Flood, who had been a stand-out player for the St. Louis Cardinals, was traded to the Philadelphia Phillies organization and did not want to go. At first, Flood decided to retire from baseball rather than go to Philadelphia, a place he once described as the “northernmost Southern city” in terms of race relations.
Marian Jorgensen, a close friend of Flood’s, talked him into taking a different approach: Suing the Major Leagues to stop the trade, claiming it violated his Constitutional rights. After some discussions back and forth with the Players Association, the union decided to back Flood. Shortly thereafter, former Supreme Court justice Arthur J. Goldberg took Flood’s case.
Over at the site “Blasphemy! Curt Flood’s Suit of Baseball” is a well-written description of Flood’s life and times, along with information about the lawsuit, itself. Pat Brady, the site’s author, quotes a comment from Ken Burns’ movie Baseball, where Flood says:
I’d often wondered what would I do if I were ever traded, because it happened many, many times. It was ‘part of the game,’ and then suddenly it happened to me. I was leaving probably one of the greatest organizations in the world at that time for what was probably one of the least … and, by God, this is America. I’m a human being I’m not a piece of property. I am not a consignment of goods.
Brady goes on to say:
On Christmas Eve, 1969, Flood sent a letter to Baseball Commissioner Bowie Kuhn. Refusing to be treated as “a piece of property,” Flood informed Kuhn of his perceived unconstitutionality of the reserve clause and his desire to play for other clubs the next season (Flood 194). Kuhn quickly dismissed Flood’s claim of slavery, stating that he failed to see “its applicability to the situation at hand” (Kuhn 83). The sides were clearly drawn, and neither would budge. For the third time in history, baseball headed toward the Supreme Court.
As Flood’s case continued through the system baseball writers and owners seemed particularly baffled by just why it was happening. To many Americans, it simply made no sense that a $90,000-a-year star would seek to risk his career for a principle. [Note: modified to remove underlining in the original]
When the case reached the Supreme Court, the Court decided to leave things as they were, with the reserve clause intact. Flood lost, and after having sat out the entire 1970 season, in 1971 he played briefly for the Philadelphia Phillies before retiring from the sport. By standing up for what he believed in, Flood changed the tone of the discussion and opened the door, a little bit, to the possibility of change.
A mere four years later, in 1975, the reserve clause would effectively be struck down by an arbitration decision in a case involving players Andy Messersmith and Dave McNally. In the decision, arbitrator Peter Seitz ruled that the pitchers, who worked for one season without a contract, would become free agents able to sell their services to the highest bidder. Seitz’s decision paved the way for the mega-million-dollar contracts for star baseball players of the modern era.
Curt Flood never benefited from the change, however. Yet he never wavered from his choice to bring the case against the reserve clause, despite the damage it did to his own baseball career. In one of Flood’s final interviews (quoted here), with Joan Ryan of the San Francisco Chronicle, Flood summed up his experiences this way:
I lost money, coaching jobs, a shot at the Hall of Fame. But when you weigh that against all the things that are really and truly important, things that are deep inside you, then I think I’ve succeeded. People try to make a Greek tragedy of my life, and they can’t do it. I’m too happy. Remember when I told you about the American dream? That if you worked hard enough and tried hard enough and kicked yourself in the butt, you’d succeed? Well, I think I did, I think I did.
The Baseball Reliquary adds this:
Former executive director of the Major League Players Association, Marvin Miller, said, “At the time Curt Flood decided to challenge baseball’s reserve clause, he was perhaps the sport’s premier center fielder. And yet he chose to fight an injustice, knowing that even if by some miracle he won, his career as a professional player would be over. At no time did he waver in his commitment and determination. He had experienced something that was inherently unfair and was determined to right the wrong, not so much for himself, but for those who would come after him. Few praised him for this, then or now. There is no Hall of Fame for people like Curt.”
The parallel to the Floyd Landis case is striking. Landis, in choosing to fight the doping charge against him, has opened our eyes to the larger problems within the anti-doping system. Given the way the system is structured, and the rules under which arbitration occurs in anti-doping cases, Landis may well have been destined to lose from the start — regardless of innocence or guilt.
Whether he will appeal his case, and how that appeal might eventually turn out is unknown. But even if Floyd Landis chooses not to appeal, by standing up for what he believes in, and by standing up for his rights, he may become the Curt Flood of cycling: The man who opened our eyes to the inherent unfairness of how things currently are in the anti-doping system, and set in motion forces that may ultimately lead to change.
There are times when a person must stand up and fight for what he or she believes is right. Floyd Landis has done so, and in doing so, he has inspired others to speak up and demand change. For that change to happen, the momentum needs to build and continue. And in that, we can all play a part.
It is a shame that the Supreme Court did not rule in Curt Flood’s favor. It seems unconscionable the baseball players were treated in his day. It would also be nice to see a crack that would allow challenges to the forced mediation system of the UCI and WADA on constitutional grounds. There must be some way found to hold UCI, WADA and USADA accountable to the principles of due process and fairness.
An interesting potential parallel you lay out here. Whatever the ultimate outcome of Landis’ case, I there has been a lot of attention put on the anti-doping system. Not only the particulars of the case itself have been widely discussed here, at TbV, Daily Peleton etc., but also a lot of discussion of how the system operates, from how testing is done to the obstacles a athlete faces in challenging the system. In part because of this, we have also focused more than we would have otherwise on other doping related situations, often seeing and pointing out perceived flaws, such as how the Rasmussen affair was handled, the delay with the Mayo B tests, the post-Tour allegations against Contador, to name a few. (BTW, has the Contador accusation simply been allowed to die, or is there going to be some statement forthcoming? Or did I miss something?) These discussions are quite likely to continue in the future, as there are surely going to be more incidents. Can such discussions lead to changes? I don’t know, but certainly it can help raise awareness.
The irony here is that the COURTS turned away Curt Flood, and the position advocated by Flood won the day in ARBITRATION. The arbitration process does not have to be unfair or anti-athlete, and you can’t always count on the courts to do the right thing.
Major League Baseball has been held to be exempt from anti-trust law, by act of Congress I believe. Whether or not this had any legal implications on the Flood situation, I would strongly suspect that is was indicative of the attitude held at that time: that baseball was “special” and hence normal rules of conduct did not apply. Many people were afraid that free agency would destroy the sport, as the rich teams (read Yankees, Dodgers, and a few others) would buy up all the best players and the smaller market teams would not have a chance. To some extent this has happened, but not in total; there have been some small market teams with “budget” rosters who have been successful, and the pinstripes have not always come out on top.
This makes one parallel to the anti-doping sitation: WADA et al would have use believe that any change to the current system tomake it more respectful of athletes rights would destroy sports by encouraging dopers. This I don’t buy. A solid testing system, backed by the best science available and with labs held to proper standards, coupled with a system of non-analytical sanctions, when based on solid evidence, not just mere accusation or suspicion; and an appeals process which corrects the problems such as the Hon. Hue points out over at TbV should do a good job of getting those who truly dope, while allowing those who did not dope the ability to meaningfully fight false accusations and flawed test results.
A most appropriate parallel to bring out Rant — And while some may state that this is not true, because the issue is not about “racism” in sports or a case of a “controlling ” group having the ability to do what it likes — wait a minute! This counter argument wouldn’t work, would it?
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In reality, Riders — HAVE NO REPRESENTATION in todays’ cycling scene — In reality, the only supposed group – holding to “riders’ interests, the UCI has turns out to be nothing but a misnomer, since from their “other activities” we find that they are themselves not very different from ASO, IOC and all other Race Promoters — EXCEPT that they can have “direct access” to ALL TESTING being done for “doping” — not only that, a rider can’t “work” unless he signs himself into becoming a “member” of the so called “governing body” of cycling that also happens to be a race promoter — A rider can’t race if he/she doesn’t have a UCI license, can he? – TAKE AWAY their “individual titles” — our present day promoters are nothing but “owners” — who, like in the time of Curt Flood had the will and the discipline to bull through a “democratic system” their 100 year monopoly.
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Instead of using the “sanctity of baseball” SPIN — todays OWNERS use “the terror of doping” – to make their cause “sacrosanct!” publicly. So that no “close” looking is done at their activities, Oh and let us not forget — there is also the small matter of what they like to refer to as “keeping it in the family” — naturally, to “protect the riders.” How very convenient this is!
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Don’t misunderstand me please — I am in no way standing up for doping — I am against doping and or cheating – But I do resent the “whip” that the “majority/owners” like to flick in the direction of anyone or group that doesn’t accept that their word and interpretations are written as law! I do not react with submission to whipping! I guarantee you, I see no fun aspect to it at all!
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Thanks Rant — for reminding us of another historical little moment — when the individual rights of the athlete were being stepped on — let us hope that this time — we don’t let a century pass — before we put a stop to it.
People, we can draw lessons from the Curt Flood case that run directly opposite to the points of view taken by many of us (me included) in the Landis case.
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Let’s start by looking at the Curt Flood case as decided by the Supreme Court. The case is a bit bizarre, even from the perspective of a lawyer like me (with a high tolerance for the bizarre). But the case DID turn on some important principles of law. First, as a general matter, the courts are reluctant to intervene in sports cases. The courts figure that a sport is a special area of life, with its own rules, governing structure and so forth. Second, the courts are reluctant to rule in an area that they think was addressed by Congress — even if they think that Congress addressed the area by deciding not to do anything about it.
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Courts are essentially conservative institutions. Cases like Brown v. Board of Education (where the Supreme Court struck down school segregation) are rare. The courts are particularly reluctant to make rulings where the required remedy (as with school desegregation) requires relatively complex actions by the parties involved and ongoing supervision by the courts.
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So, if the FL case was presented to the courts, the courts would be tempted to punt on any number of grounds: that the U.S. has its own governing body responsible for anti-doping activities (USADA), that this agency was created by Congress and is acting under laws established by Congress, that if Congress would have changed the law if it did not like the way USADA acted, etc., etc. There is also the international component of cycling, the interplay between USADA, WADA and UCI. The courts would not want to act in a way that would effectively separate U.S. cycling from the rest of the world.
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The point I’m trying to make here goes beyond the substantive points raised by the FL case. I’m saying something more than this is a difficult area of law. I’m saying that in areas of law like this one, the courts don’t like to get involved. Period. They did not want to get involved in the Curt Flood case, where the issues were clear cut and the law was very much on the side of Mr. Flood. The Landis case is a more difficult case for court action than was the Flood case.
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One area where the Curt Flood case is different from the Floyd Landis case: in the Flood case, Mr. Flood asked the courts to do something that courts are good at doing: he asked them to rule that the reserve clause was unenforceable. That’s a relatively easy remedy for a court to grant. The court says, that particular clause in the contract, you can’t enforce it in court. What remedy are we looking for the court to provide in the Landis case? Do we want them to strike down the entire system of USADA arbitration? To say that anti-doping cases can no longer be decided in arbitration? That’s pretty sweeping, and it would also be unprecedented to my knowledge. Are we asking the courts to say (in legalese) that the existing system of USADA arbitration is unfair and must be reworked? That’s a very complex kind of remedy — it will take some time to accomplish, and who is going to “judge” whether the reworked system is good enough? And what happens to anti-doping cases in the meantime?
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Your chances of winning in court are a whole lot better if you ask the court to do something that it knows how to do, and that it can do with one stroke of the pen (or these days, one click of the SEND button).
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In contrast, note that baseball’s reserve clause was struck down in a baseball arbitration. The fact that the arbitration was conducted INSIDE of organized baseball allowed the arbitrator to act more boldly than the courts had been willing to act.
Larry:
You raise some good points here. We in the US are so used to the idea of taking something to court, and hear so much about some of the cases where the court system does take some action, we forget or overlook the many situations where court action is either not possible, or does not result in some change. The international ramifications of the Landis case are significant, because I don’t see that the US court system is in any position to force WADA, UCI, and/or ASO to take, or not take, any particular action. If even the Supreme Court was to hear an appeal (however that might take place), and were to decide that Landis was not guilty and was in fact the winner of the 2006 TdF, those above mentioned agencies could very well tell the Supremes to take a flying leap and suffer no consequences. Conceivably they could send the case back for a new hearing, and even tell USADA to conduct things differently, but even in that case, international organizations could still say “As far as were concerned, the hearing of May 2007 was the proper one, and we still accept its verdict”.
Since Congress does control a large part of the USADA budget, they could use that approach to force the USADA to adopt measures more in line with what we here perceive as justice, but again that could run afoul of the international system. What would happen, for example, if the USADA were to adopt a rule that ADA lab personnel could testify in behalf of an athlete? Would WADA “punish” USADA in some way? Would UCI ban US riders?
This is not really a situation where any arm US government, either at the Federal or state level is in any position to fix, whether we are just interested in a more favorable outcome for Landis in particular, or a change in the entire system. In reality, Landis’ only hope is to appeal to CAS, and the only way the system will change for the better is through the system itself.
The other possible course of action would be for Landis to sue for damages. That could be tricky, as there is that pesky verdict from last month, but the OJ case shows it is possible to get a judgement in a civil case that contradicts a verdict in a criminal case (not that the arbitration hearing was a criminal case). If Landis were to pursue this course and prevail, the court system would be well within its perview to enforce a monetary judgement against USADA. Whether Landis could prevail is another question and of course a third (or perhaps actually the first question) is whether he would take that course of action.
He still has a couple of weeks to decide whether or not to appeal to CAS, and I have no idea which way he might go.
Hi Larry — as usual — you present the viewpoint of the lawyer succinctly and clearly, one that as a non-lawyer I don’t even come near feeling I could discuss let alone argue with you against. I have great respect for your thoughts Larry — my problem is that it appears to me to avoid the human element of the argument. (Give me a moment to clarify — I am not attacking you or criticizing.)
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Larry — using language that seems less convoluted — (in my opinion) — the issue in the Flood case was a question of unfair labor practices by a national sized “business” — the fact that it had got itself “classed” as a “special” institution — while legally pertinent — avoids looking at it as a “company or companies that abuse their laborers” – in my way of thinking this is nothing more then what “special interest groups” manage to get stuff into laws, by slipping them in to bills in congress”¦(I know — I’m not anywhere clearly stating it)
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But — “special interest” is not something I find I like very much — sorry. Whether it is made “special” by Congress or special interest groups.
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You are right — The courts tend to be “conservative” institutions — Usually conservative for the time they are active — but it does not mean that they should be — Since the people “expect” that the courts are the body of government that interprets the “law” FAIRLY — not conservative; liberal or centrist. If you say that they are “conservative” – then to me what you are saying is that the court is biased. What if my problem is something that is not in the conservative frame of thinking? I’m out of luck.
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The fact that the Supreme Court is capable of ignoring the Flood Case and throwing it out — only shows that the Supreme Court is nothing more then political appointments and therefore has nothing to do with maintaining “justice” as the people think of justice. The fact that they are referred to as the Supreme Court is therefore convenient only to the Views of the political group that put them in the judges’ position.
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When I think of LAW and the COURTS, Judges and Lawyers are the officers of the court who are supposed to help me express myself in the legal language that has grown out of LAW — the judges and the lawyers do not OWN The LAW. Maybe it is completely idealistic to think that LAWS are made to have a “level playing field” in society — but even you have stated that rules and laws should be set to level out the playing field.
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If I am to consider myself a “free man” — then I should have the “right to work where I choose to work” — that as a “free man — I am not hindered in getting a “fair wage” for my skills — as a “free man — I can expect in a land that presents itself as the land of the free to EXPECT to get a fair trial.
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Floyd got a trial in name only — since his freedoms seem to have been “acceptably curtailed” because a special interest group can get away with — and the excuse you present me is that — this is legal. Well — it may be “legal” in terms of the accepted mode of conservative behavior — it is certainly not fair.
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Larry — Everything I just stated is not a criticism of you — but I do think that it puts into “layman” terms how I and other people feel about this situation. Otherwise Larry — if I cannot trust the laws and the courts to “stand up for me” — WHAT USE ARE THEY? What use are they to Floyd?
William, I agree with most of what you wrote. The U.S. courts have a responsibility to protect the rights of its citizens, at least to the extent that these rights are impacted by actions taken within the United States. I think the courts do have some degree of oversight over arbitration proceedings within the United States — I wrote some general stuff on how this works in the Marion Jones post. The issue of whether a U.S. court could enforce an order against WADA and UCI is complicated. The point I was trying to make is that the USADA system fits into a more complicated international system, and the courts generally like to avoid those kinds of complications. It’s hard to know what is the right thing to do when all you have in front of you is a piece of a larger puzzle.
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Absolutely right, Congress could pretty much condition USADA funding on anything and everything. I question whether they’d WANT to do so, but they could. It’s potentially a very effective route for change, assuming of course that there’s a political consensus. I think the average guy on the street thinks that FL is guilty, so I’m not sure you could muster much political pressure to change the USADA system.
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I was very concerned about what WADA, UCI, ASO et. al. would do if FL was not found guilty. That is a real concern.
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I’m not sure that CAS is FL’s only hope, but it IS his next step if he wants to go on fighting. The courts will expect FL to exhaust his arbitration remedies before the arbitration could be reviewed in court. I actually DO see some hope for a review of FL’s case in arbitration, it’s just a very difficult path.
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I don’t see FL suing for damages unless or until he wins his doping case. I’m pretty sure FL would have sued for damages if he’d WON his case — he might try to recover his lost endorsement revenue, etc. But remember, a suit for damages is based on some kind of theory that someone did you wrong, and unless FL can win his case, how can anyone say that the ADAs did him wrong? If the ADAs had a winning case against FL, then how can they be sued for having brought it?
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(Morgan, I’ll get to you in my next post)
Morgan –
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I admire your righteous indignation. But you’re asking an awful lot of the legal system. You ask, what use are the laws? Sometimes they save a widow or an orphan from being evicted by a greedy landlord. Most times, not.
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I feel bad for FL. But I feel worse for the amateur athlete, whose sport is not televised except maybe during the Olympics, who’s worked his whole life for one shot at a gold medal, who wakes up at 4 a.m. every day to squeeze 3 hours of training in before working his shift at the WalMart, and who’s dinged by an ADA for some trace amount of a banned substance that someone added to his cold medicine. That athlete is not going to get any publicity, is not going to be able to raise money with a fairness fund, cannot afford a dream team of lawyers. And we don’t blog about him.
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The law is at its absolute worst when it comes to addressing economic inequality.
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FL’s situation is different. I’m sorry to say this, but whatever you think of the system that heard FL’s case, the truth is that FL signed up for that system. Yeah, I know, they didn’t exactly give him the opportunity to negotiate the terms of the contract. Still, he signed the contract, and lots of us have to sign contracts we don’t like. No, let’s be more accurate. Lots of us sign contracts that we wouldn’t like if we’d bothered to read the contract, and we don’t read the contract and we don’t think about it. That’s what we typically do, and that’s what FL did too.
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It’s not fair to pin this all on FL. Let’s pin this on every other UCI rider instead. FL has pointed out the flaws in the existing system, for everyone to see. You and I blog about the FL case and the changes that need to be made to the ADA system. And the riders in the peleton say nothing. No, that’s not entirely true. Oscar Periero says, “yay, I won, and I’m pissed I missed my day on the top of the podium.” Levi Leipheimer said something to the effect of, “I’m glad it’s over, maybe we can talk about something else.” Morgan, we’re not talking about widows and orphans here. These cyclists make a very good living and can afford legal help. They’re not doing anything I can see to reform the system. In fact, the only riders I see complaining about this rotten system are the riders who have been convicted for doping. But they’re not in a good position to complain. As I learned when my daughter was in public school, if she has a terrible teacher, the time to complain is BEFORE the teacher gives my daughter a D- on her math test.
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So, as I see it, you expect the law to step in and save a group of wealthy but apathetic cyclists from a system they voluntarily signed up for and don’t seem to care about, in the absence of any signficant public outcry for change. You ask a lot, my friend.
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Not that “asking for a lot” is a bad thing. In my experience, “asking for a lot” can be a good thing, so long as you understand how much you are asking for, and you’re willing to take the steps necessary to get there.
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IMHO the first step is not to attack the system. The first step is to attack the decision. Why is the decision wrong? My advice is not to jump to the easy reason, which is that the decision is the product of an unfair system. Focus for the moment on the decision itself. Where did the arbitrators go wrong? Did they misinterpret the WADA rules? If you can’t show why the decision is wrong, then it’s hard to use the decision as a reason why the system should be changed.
I would like to comment on the idea that Landis and other cyclists signed on to the system as is and hence do not have any basis for complaining about it.
First of all, whether or not Landis read the fine print, we don’t know. However, consider this: if, at the time he took out his first pro license, and also at the time he took out his 2006 license, he was “clean”, he probably did not think much about the anti-doping regulations and the to enforce them. “Why bother, I’m clean.” How much do you know and care about the drug policy where you work. Assuming you do not abuse drugs, you probably don’t give it much though.
Secondly, as pointed out many times, anyone considering a career as a pro cyclist has no choice. Either “agree” to the system, or no career. Walmart, here I come.
Thirdly, anyone who works should have the right to bring to the attention of whoever they fell they should any problems within the system. Unions frequently address perceived problems with working conditions/rules. While we may question the particulars, I doubt that anyone would question the right of a union (or for that matter, any employee, whether union or not) to address the conditions he or she works under. Otherwise, we’d all still be working 12 hour days, 6 days a week, 52 weeks a year.
So, IMO, Landis has every right to bring this situation to our attention.
William, I APPLAUD the fact that FL has brought this situation to our attention. In this respect, he’s very much like Curt Flood.
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I’m simply raising what seems to me to be a very reasonable point. FL signed the contract. The best time to complain about the contract terms is before you sign. After you sign, the law is limited in what it can do to help you.
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Yes, I get the fact that if FL wanted to be a professional rider, he had to sign the contract. I said to Morgan, I understand that he was not given an opportunity to negotiate the terms of this contract. He had the choice whether or not to sign (maybe that’s not much of a choice if your whole life is dedicated to tour cycling), and that’s the only choice he had. But sorry William, that’s the way a lot of contracts work. If you want a computer operating system, neither Apple nor Microsoft is going to negotiate with you. (I guess Linux is kind of the equivalent of riding non-UCI sanctioned events as a cycling career.)
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If you have a credit card, or a brokerage account, you’ve probably agreed to submit to arbitration that’s similar to the USADA system. And yes, you didn’t have a choice, unless you’re going to pay cash all your life and invest in stamps and coins. And yes, as a practical matter, you’re not going to care very much about this until such time as your broker invests your life savings in penny stocks, and you’re forced to bring your claim in front of a panel of arbitrators approved by the national association of securities dealers. But that doesn’t change the fact that you signed a contract.
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The law has rules designed to help get you out of unfair contracts that you were compelled to sign without a choice. If the contract is grossly unfair to one of the parties, and if the other party had obviously superior bargaining power, then the contract may be deemed “unconscionable” and thus unenforceable. But the doctrine of unconscionability is not supposed to be used routinely. The system will bog down completely if the courts have to review every contract we make to determine if it was really fair. In a free society, we’re free (to an extent, at least) to make a bad deal.
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As far as the right to complain, to organize, to unionize, great! No problems there. Let the riders get together and fix this situation. That would be great.
Larry:
I just got back from a short ride, during which I had occasion to ponder some. You raise the question “Where did the arbiters go wrong?” There are several levels involved here, and it seems to me a lot of the discussion going on back and forth here is that different people are perhaps addressing different levels.
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At one level is the ultimate question of what is the truth. I doubt we’ll ever know, unless one side or the other confesses.
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A second level is, given the totality of evidence we are aware of, whether or not it was presented at the hearing, what can we conclude? Of course, the panel cannot be held responsible for evidence not presented (unless through their rulings, it was not available to one side or the other).
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Third level, similar to above, is given the evidence actually presented, did the panel reach the right decision. There has been some debate over at TbV re retention times, which seems to be the issue the panel hung its decision on. It seems that from what was presented there that perhaps they did not, buy then I’m not an expert. Along these lines, one can also perhaps question whether or not the panel (specifically the 2 members who voted for conviction} acted in good faith. Barring some revelations from Campbell (which I doubt are forthcoming) we can only guess, hence that is probably a closed door.
Fourth level: Did the panel play “fair” according to the rules in place, both ADA rules, as well as AAA rules. We know they made some decisions for which there are no specific rules empowering them to make such decisions. I don’t know if there is any sort of review/appeal process through AAA that Landis might pursue, but I rather guess not, else it probably would have come to light already.
Fifth level: Is this a fair process based on our understanding of fair from to point of view of a US citizen. Probably not, but this is an issue that doesn’t have much if any traction for Landis, although it is certainly one that Congress could address when it comes time to fund USADA. But, as pointed out, at this time there is probably not enough concern amongst the general population for Congress to take action.
If Landis does appeal to CAS, given that it will be a totally new proceeding, he will have to deal with this from the evidence. He might have an issue about excluding the extra B sample tests with negative A samples (although the panel did not seem to pay much attention to these), he might be able to get CAS to compel USADA?LNDD to turn over additional documents (although I’d bet that if there were any that could have helped him, they have been altered or destrouyed). He perhaps could argue that, since the panel threw out the S17 A test, the B test should not count. But his best bet would be to put on much the same case as before, while addressing the points raised in the panel’s decision.
Larry — I won’t deny that I was awaiting your response to my comments — and even 24 hours later — I thank you for your efforts.
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I do not feel that my questions were answered — but that is not due to any fault on your part — rather — I find that upon rereading what I asked — my questions — as you point out were from the “righteous indignation” point of view — or at the least, they may very well be interpreted as having come from this stance. I had hoped to make myself clearer — but obviously, I’ve failed miserably.
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I have come to understand that when you “respond” to a given question — as a lawyer responds to direct questioning — within very well defined borders. Unfortunately — as I see it — my questions were too philosophical and adventurous in nature. I promise you — in the future I shall endeavor to correct this.
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I did not call into question the necessity of following a “contract” that is signed. I take for granted that adults who sign contracts — understand what they are doing. Having admitted to this — I come to my problem.
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If I want to work and in order to do so — I have to sign a contract, maybe knowing or not knowing that the contract is not in my best interest — BUT I have to sign it to work — THEN WHAT RECOURSE DO I HAVE? According to your interpretation — I have the option to NOT WORK. You are right — this does make me feel indignant.
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You are also correct Larry — I DO EXPECT THE LAW TO BE GREATER THEN THE INDIVIDUAL PARTS OF THE SOCIETY IT IS TRYING TO GOVERN. I expect it to be FAIR.
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My questions are not posed to “pin” anything on anybody — my questions are an attempt to first identify the problem, second, identify clearly the players and third, to find out what one can do to correct the situation.
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I am a bit taken aback that you would express yourself in this manner — “”¦you expect the law to step in and save a group of wealthy but apathetic cyclists from a system they voluntarily signed up for and don’t seem to care about, in the absence of any significant public outcry for change”¦” In my opinion — the question of wealth or lack there of an individual or a group — should not be a matter when questioning an imbalance in the use of law. To me — this way of thinking is very wrong. Fair laws and rules MUST BE FAIR to every one — no matter the conditions of their bank accounts.
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William Schart presents a response to your statement that mirrors my own thinking. As to the question of “asking a lot” — take my word for it Larry — I do know what I am asking and I am willing to go the distance. I think ALL of the people on the Rant line feel similarly — otherwise, why would any one bother keeping at it — day after day, month after month. If the law or rule is unjust — then I want it to be changed.
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If I/WE want “clean” cycling” then we have to have rules and laws that EVERYBODY respects, knows them to be fair and equal. That it represents ALL the “players” involved, riders, sponsors, teams and promoters. — I realize that this will be complex, since it is a question of mixing different societies, different rules, different takes on everything — BUT — it still must be done.
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WADA, the UCI, the IOC, USADA ad-infinitum, PRESENT themselves as providing just such an across the board set of rules — well, what the Landis case has brought to the forefront is simply – THAT THIS ISN’T SO.
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My responses in this blog are trying to address this very situation. So do not underestimate me or my “indignation” — I simply find no answers when I ask a question and the “lawyer” answers with — “well — that is the law or the rule, and there is nothing you can do about it.” — The “answer” may be true in one respect — but my question was — “what can I do to change it?”
William, quick note: I liked your post. No, we’ll never know the truth. And yes, there’s probably great evidence lying around somewhere (or carefully hidden somewhere) that never saw the light of day in this case. That’s your levels one and two.
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Level three is the science, and while I am making very public efforts to understand the science, I think it comes down to the fact that the arbitrators’ science is not clearly wrong. (Yes, the LNDD screwed up these tests, I’m reasonably certain of that, but for the moment I’m talking about the science that the arbitrators used to interpret the stuff they got from LNDD.) We can debate retention times and interference and all that, but given the very public nature of this proceeding, if the arbitrators were “off the scale” in their use of the science, we’d all know that by now. I reserve the right to change my mind about this as I learn more.
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Level four is where I focus a lot of my attention. I don’t think the arbitrators applied their own rules correctly. In particular, I think the arbitrators did not properly rule on the question of whether the ISL violations proven by the Landis team were sufficient to force a ruling in Landis’ favor. I’ve also got a major concern that the arbitrators’ decision (in critical places) relies on “evidence” that was not presented by the parties. I think the arbitrators acted (to an extent) as investigators, and I have a real problem with that (particularly when they investigated matters that, as a matter of the WADA rules, must be proven by USADA).
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Officially, I don’t get to level five until I’ve exhaused levels three and four. Besides, Judge Hue has done such a good job pointing out the flaws in the ADA arbitration system. I think we need to focus hard on who gets to serve as an arbitrator. Also, I think that if a lab screws up as much as LNDD screws up, they should lose the presumption in arbitration that they performed in accordance with the ISLs. These would be good starting places.
Morgan, remember! I’m on YOUR side.
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Did you take offense at my comment on “righteous indignation”? If so, I apologize. I meant it as a compliment.
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I discussed the doctrine of “unconscionability” in my last post. It fits your discussion about employment contracts. You gotta work to eat. If all of your potential employers require you to sign the same unfair contract, you have a pretty good case on unconscionability grounds. (Actually, if you’re part of the working poor, you’re probably working without a written contract and you can probably be fired at the will of your employer, but that’s a discussion for another day.)
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If you’re arguing unconscionability, then wealth DOES matter. This is one area of the law where we’re trying to protect the little guy. When Alex Rodriguez negotiates his next employment contract, he’s in a very different position from the guy with a family of four who’s applying for the job at WalMart. Same for the widow or the orphan who’s signing the lease for the one room walkup in a terrible part of town. We figure that when it comes to contracts, the rich can take care of themselves, and the poor need help. There are ways for rich people to get out of contracts, too, and there are plenty of lawyers ready to help them do it. I don’t have a problem discriminating in favor of poor people every now and then.
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You want to change the law? As a general matter, you’d go to the people who make the laws and ask for a change. The courts cannot make changes in the law merely for the sake of improving the law, even where the law is unfair. The courts would have to find that the law conflicts with some other law on an equal or higher level, like the constitution.
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To be honest, I care more about FL’s situation on an individual level than I do about athletes as a whole and the system as a whole. If the pro cyclists care, they have the power to change their situation. They should organize and unionize and demand fair treatment. They should start on the team level, by making certain that the teams do their own drug testing and that the teams agree to defend their riders when the riders get in trouble. If they do this, and if we fans support them, then the system will be reformed.
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I have no such hope for FL. FL got screwed. And I’m not sure he can do anything about it. He’s got his right to appeal to the CAS, and he’s got a right (after exhausting his arbitration remedies) to try and get a court to review the arbitrators’ decision, and I’m not sure that either of these rights are going to get him very far.
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Curt Flood lost too. Sorry. Sometimes all you can do is fight the good fight.
Larry:
I think you’re right, the teams are going to have to step up here. It remains to be seen how well teams like Slipstream actually work their program. I have a sneaky feeling that this is more for the team to CYA, by proactively suspending/firing riders who they catch before WADA/UCI get them. It remains to be seen if they will have the cajones to stand up for a rider if their test results conflict with the official tests.
Greetings everyone,
The “day job” is keeping me kind of busy these days. Interesting discussion going here.
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William, you’re right, we can’t be exactly sure what the “clean” teams will do.
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The primary job the teams have is to protect the interests of the sponsors. The interest of the sponsors used to be, give us the most publicity you can give us. That translated to, win at all costs. That’s one reason why doping took hold. Now the interests of the sponsors are, give us good publicity if you can, but PLEASE avoid scandal. That’s CYA, to be sure, but not all CYA is bad.
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The sponsors now want clean cycling. They do not want to be blind-sided by every doping charge that comes down the pike. They also want a predictable, rational system for the governance of cycling, where they know that their teams will get to race. They want cycling to grow in popularity. They don’t want their riders sitting on the sidelines (like Contador in 2006). When you come down to it, that’s what we fans want, too. The sponsors probably do a better job of representing the interests of cycling fans than anyone else in this crazy system.
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Plus, the sponsors have power.
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This is why I place so much hope in team-sponsored reform in cycling.
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There is the open question of what one of these “clean” teams will do if one of their riders is accused of doping. The teams might conclude that the ADA testing is ahead of their own testing, and conclude that the rider is a doper even though the rider passed all the team’s tests. But I kind of doubt this. The little I know about the team’s testing is that their testing is probably better than the ADA testing.
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Then you have to ask, what’s better for the team’s image? To dump the rider as quickly as they can? To be sure, that’s pretty much the extent of most teams’ “clean” programs to date — if a rider fails a test, he’s dumped like day-old fish. However, those teams take a hit to their image — look at what t-mobile’s commitment to clean cycling looked like at the end of this year’s tour (they nearly cancelled their sponsorship). Or does the team say, we’re going to go to arbitration and defend the “clean” reputation of our team? Remember, that reputation is valuable. This would not be an easy choice for a team to make.
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Focusing on the t-mobile situation for a moment … my impression is that, during the course of the 2007 tour, the t-mobile team lost confidence in its own anti-doping program. They looked at riders like Sinkewitz, and said, how good could our anti-doping program really be? But these programs are getting much better — as I said, they’re probably doing more sophisticated testing than the ADA labs. In a year or two, if a t-mobile rider is accused of doping, the team’s first reaction will probably be “what the hell? that can’t be right!”
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OK William, now add to this equation a more activist and educated group of cyclists, determined to protect themselves against the whims of the current ADA system. Perhaps a deal could be struck here. The riders could say yes to a stringent team anti-doping program, where they’re peeing into cups and donating blood 52 weeks a year … provided that so long as the rider is on the team’s dope testing honor roll, the team agrees to defend the rider against the ADAs.
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(By the way, consider whether the LNDDs of the world would have been so quick to accuse a rider like FL if they knew that FL had a team like Slipsteam on his side. Maybe not.)
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If you’re looking for systemic reform, this is where I see the greatest hope. (Are you listening, Morgan? See? I CAN make constructive suggestions!)
Larry:
I think it’s great that teams are stepping up here. However, it will take a while to see how effective this all is. There may be some stumbling along the way. Again, my naturally cynical nature suggests that a team will defend a rider only as far as necessary to protect the team’s interest. Time will tell.
Great discussion here. I have to say that I agree almost completely with Larry’s legal analysis, and note that I’ve been trying to keep my indignation to a usefully cool fury.
I do think the Majority Award fumbled the science in obvious ways, and the reasons we haven’t heard about it are (a) it’s complicated most people won’t even look at it; (b) most of the people who do understand it have well known pre-established positions that call their judgements into reasonable question. For example, my claims the science is fumbled are no more valid in a debate than those of some luminaries at DPF that the case was proven just fine, and “visual gestalt” is a good enough standard for identification. I might claim that those who go looking without pre-conceptions seem to be appalled at the level of science, but they get instantly dismissed at “Landis apologists”. This is reflective of the general polarization of political debate, and the rise of “truthiness” that reinforces what you want to believe anyway.
All things considered, I think the Flood analogy is quite apt. He was right, but got screwed anyway. He might have been a role model for Mr. Bonds in the nice guy department, which got him very little sympathy. Landis’ loose lips are endearing to some, but poison to the ears of others.
I will say, repeating an older observation of mendacity, that just about every word out of Mr. Young’s mouth sounds to me like a lie, including “and” and “the”.
TBV
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