Lots of stuff happening over the last few days. Or, at least, it feels that way. In this post, I’ll take a look at the latest Landis news. In another post (if I’m not too tired after this one), I’ll dig into the latest in the saga of Michael Rasmussen.
CAS Panel Appointed For Landis Appeal
Approximately four weeks after Floyd Landis and his defense team informed the Court of Arbitration for Sport that Landis would appeal the September ruling against him, the CAS panel who will hear his case has been chosen. That’s about one-quarter of the time it took to get the panel finalized for the first go-round, which is good news in terms of how quickly the appeal could progress through the system.
Over at Trust But Verify, TBV gives a run-down of who the panelists are, along with links to information about the panelists and some important decisions they’ve been involved with. As TBV tells us, the three arbitrators to hear Landis’ appeal will be Jan Paulsson, David Rivkin, and David Williams. Paulsson was chosen by the Landis side and served on the Landaluce panel, Rivkin was chosen by USADA and served on the Baxter panel (the Vicks inhaler case) and some others, and Williams was chosen to be the chair of the panel. Williams’ resume includes actual experience as a judge in his home country of New Zealand.
Read TBV’s article to get the links and further details.
Every Doper Must Get [Be?] Stoned
Floyd Landis and Patrice Brunet actually agree on something? Amazing, but true. Brunet recently published an editorial in Pedal magazine and several other publications, addressing the need to bring Canada’s federal government into the anti-doping wars by criminalizing doping in sports. This is not a new idea, as World Anti-Doping Agency has been lobbying to get their code adopted into law around the world.
It’s an interesting idea, because with criminalization also comes the full protections of the legal system. And an accused athlete would have his/her full legal rights when it comes to discovery, due process and so forth.
There are pros and cons to such an approach. One thing that concerns me would be the extent of punishment for a doping offense. Would it be the equivalent of a misdemeanor or a felony? Would there be significant jail time, or would the punishment be more along the lines of a stiff fine and probation and community service. If there was jail time, would it be in a place like “Club Fed,” where the white-collar criminals go, or would it be in Leavenworth or Sing-Sing?
The idea that an athlete would be afforded all their constitutional rights appeals to me, were such an approach tried here. But the idea of an athlete doing hard time with a bunch of murderers, rapists and other assorted low-lifes gives me pause.
In his response to Brunet’s article, Landis points out how much better served he might have been if his case had been prosecuted within our justice system, rather than through the current arbitration model. Interestingly, Landis agrees with Brunet that perhaps doping laws should be enforced by the government, rather than the anti-doping agencies.
The thing that comes as the biggest surprise to me, however, is not that Landis and Brunet agree on that point. What surprises me more is that Brunet published his editorial in the first place. Now, don’t get me wrong, I’m not saying he’s not entitled to his opinions. But I do have some questions about the propriety of his speaking out publicly on issues related to anti-doping adjudication.
Here’s why: Patrice Brunet, as a member of the American Arbitration Association, hears anti-doping cases and must decide whether an athlete is guilty or innocent of the charges against him or her. That’s a heavy responsibility, and not to be taken lightly. And I’m sure that Mr. Brunet doesn’t do so.
But by speaking out publicly in favor of strong anti-doping laws that would be enforced by the government, has he compromised his ability to fairly judge a case brought before him? A part of me thinks, after reading his editorial, that if I were an accused athlete and he was on the panel judging me that Mr. Brunet’s vote would be a foregone conclusion against me. I don’t see much fairness in that. I’d like to believe that the people judging these cases can objectively review the facts and come to a fair conclusion. (I know, just look at the Landis decision and we can see how that didn’t necessarily happen.)
There are times when various officials are limited in what they can and cannot comment on publicly. When my father was working at the Department of Energy (as a civilian employee, not a political appointee), he was required by the department’s policy not to speak publicly about certain issues. It seemed rather harsh to me, but I understood why he was barred from doing so. By the same token, it seems that those who currently serve as arbitrators judging athletes accused of anti-doping violations should, for at least the sake of propriety, keep their opinions on doping issues private.
After reading both articles (which I recommend everyone take the time to do), I find myself agreeing with Landis, when he concludes his piece by saying:
In Mr. Brunet’s words, “Doping must be punished with the full force of our collective disapproval.” We can stone the dopers. We can stone everyone in sports. But until WADA holds up to the same standard expected of athletes, stone-throwing will solve nothing.
Indeed, if WADA and the anti-doping system expect athletes to live up to high standards of conduct, they need to be willing to do the same. From what I’ve seen, WADA hasn’t gotten there — yet. I’m hoping that under Mr. Fahey’s leadership, they can come closer to the mark.
Rant –
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First and foremost, I’m blown away by the piece written by Floyd Landis. My emotions about his piece are so mixed. It’s impossible to describe them. He’s evidently changed from the rider I perceived him to be (to be honest, kind of goofy and happy-go-lucky), to a man who speaks with great force and intelligence. I feel at once proud of Floyd, and terribly sorry he’s had to endure the kind of experience that would change a man in this way.
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I’ll try to write something later about the Brunet proposal and the Landis response. Maybe tomorrow. Tonight I look at my words and they just feel inadequate.
Larry,
From great trials and tribulations comes great strength. I feel terrible that Floyd has had to endure such things, but he’s certainly proving the truth depth of his character by the way he’s dealt with the lot life has handed him.
Floyd is a good man. I am most glad that he is letting the public know his thoughts on matters. Letting us get to know him. Thanks Floyd. We believe in you.
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I am most glad that You Rant make it possible to have this forum. Anyone who reads it cannot come away with mere suppositions – we need this kind of oppertunity. Lots of very intelligent people out there. It makes me hopeful – a heck of alot more hopeful then if I was just reading the general media.
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As to Mr Brunet – perhaps Larry he doesn’t understand exactly the seriousness of his position. Like being on trail and the judge speaks in such fashion – THAT would make anybody mistrust the system.
Rant:
It is very common, if not almost universal, for employees in private business as well as governmental employment to be subject to “gag orders” as SOP. Part of this is because often employees deal with confidential information:personal information about clients as well as information about the business of your employer. But also, and more to your point about Brunet, when someone known or identified as an employee speaks, it can be perceived to be an official pronouncement of the employer.
I can’t believe anyone thinks that it is reasonable to bring the governments of all the various nations represented in cycling into the adjudication of a doping offense. This is insane. Let me count the ways . . . Sorry for those of you not familiar with what it means to come from a federated group of states – the United States legal system is unique.
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In the United States who would perform the testing? The police? Or the FBI? Who else would have the legal standing to do so? Now that it is a criminal case who would produce evidence?
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Who would bring the charges? A Federal DA? How could someone interpret the Constitution to make this a Federal offense? That would be some wild legal gymnastics that should be seriously fought purely on libertarian grounds. So if it is not a Federal offense, then each state would need to write their own laws. That’s crazy. Dead on arrival.
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Anybody who thinks that each jurisdiction in the United States would just listen to the likes of Brunet, Pound and their ilk and say “gee you guys are right we need to adopt the WADA regulations AS LAW for the health of our college athletes,” are just delusional. Maybe New York, Massachusetts, and California (the great nanny states), but never Texas or New Hampshire.
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So if the United States doesn’t go along, are all races in the States then deemed un-sanctionable? Or does the UCI keep a freaky amalgamation of laws in France for French races, Canadian laws for Canadian races, and WADA regulations for all countries that actually still have perspective about cheating in sport (versus real criminal activities)? Wouldn’t this be the ultimate failure of the WADA system?
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Let’s just forget about the possibility of a Euro rider being convicted at the Tour of Langkawi or the Tour of Qatar. Imagine Rasmussen in one of those jails.
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The UCI is supposed to be the governing body for cycling. Even if they have a propensity for making bazaar rulings. Ever since Willie Hamilton set the first altitude Hour Record in 1898, and was originally disqualified by the precursor to the UCI because he let himself be paced by a dot of light, projected from the infield onto the track in front of him. Now the cycling authority has devolved into the Hatfield and McCoys (http://en.wikipedia.org/wiki/Hatfield-McCoy_feud); the UCI versus the United Nations of sports, the IOC. And these clowns want to let governments take over the enforcement of the rules. Wow.
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I’m just stupefied.
Michael,
You make some good points. The idea of a cyclist rotting in some jail cell in the middle of the desert is enough to make me think that criminalizing doping needs a whole lot more thought and study before it could ever begin to be a viable option. And as you point out, the differences in law and judicial practice between countries is enough that there would be a wide disparity between how doping cases are handled throughout the world (not to mention each of the 50 states).
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Good analogy to the Hatfields and McCoys. The internal battles between the various interest groups is highly reminiscent of their famous feud.
The domestic governments ARE involved, both at the international level and within their own jurisdictions – there was huge debate in Torino about the illegality of doping, because in Italy, it is a national law and the offence is puniched by jail. The IOC was seeking, right up until the last minute a kind of diplomatic immunity for the athletes…..almost got hung on their own petards, because the NSO’s were losing their minds about the possibility of their stars ending up in jail in Italy.
The governments are also already involved to the extent that they are the authors of the policies that enable the anti-doping movement to function.
The UNESCO convention is a legally binding document, which joins governments to the anti-doping authorities, giving the governments and ado’s equal roles AND responsibilities.
The governments are trying to, but can’t have it both ways – direct policy, influence anti-doping rules and regs, get the positive pr as being involved in eliminating the scourge of doping, but circumnavigate constitutional protections that are guaranteed to citizens in most democratic societies when there is goverment involvement.
Sorry to keep going to Canadian examples, but it’s what I know best – the parallels are pretty clear from the Canadian mechnisms to the US ones.
The way it goes in Canada is that the Government binds itself through the Canadian Strategy on Ethical Conduct in Sport domestically, and UNESCO internationally, then it participates in the drafting of anti-doping regulations under the arch of the Canadian Policy Against Doping in Sport, from which flows the Canadian Anti-Doping Policy. Then they create (at their behest and with their money) a “private corporation”, the CCES. (And provide a General Counsel to them on an executive interchange from the Federal dept. of Justice)
Then they crate by statute an adjudicative body, the Alternative Dispute Resolution Center of Canada.
Then they claim that their only involvement is through funding, and so the actions of the CCES or the ADR Center are sheltered from constitutional scrutiny.
The same thing is happening in the US – there have been house committees, senate debate, government leadership and direction, and tons of public money that has been flowed to the anti-doping regime. All of this bespeaks government action, and makes rules that conflict with the bill of rights or other constitutionally entrenched principles unacceptable in the pursuit of anti-doping goals, including testing, adjudication, and tracking of people.
The USADA and the CCES expect to be shielded from having to live up to constitutional scrutiny – my question is why?
The horse is out of the barn on government action – what they should do is bring the Code in line with the rights that citizens have – it looks like they’re moving in the opposite direction at the world anti-doping conference (where there are over 80 government representatives).
jellotrip,
I think you’ve done a good job of describing just how politicians can do an end-run around our legal protections. Any time politicians try to pull of such a stunt, we should cry, “Foul!.” (As well as try to find a way to block or correct such actions.)
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I agree completely, why would USADA and the CCES expect to be shielded from constitutional scrutiny? What are they trying to hide? Or hide from?
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And I agree that at this point, the best thing to do would be to ensure that athletes are afforded the same rights during anti-doping cases as normal citizens would have in a judicial setting. We can create quasi-judicial bodies outside of the normal systems to handle specific types of cases, but when they are beyond the reach or normal law and decide matters which may deprive individuals of their professions, or their right to compete in athletics, or whatever, I believe those bodies should be held to the same standards as our “standard” judicial system.
Thanks Jello.
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You see it more clearly than me.
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I thought I was pointing out a future problem with a quasi-governmental system espoused by Brunet, but what I was actually touching upon were the short comings of the current system (which is only becoming worse).
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We have private institutions using the government’s power and money to bring to bear against athletes whom they suspect of cheating, without having the restrictions one would usually expect to be imposed on government institutions.
Isn’t it a crime to take a prescription drug that was not prescribed for you? I would believe that at least some of the drugs used as PEDs are illegal unless prescribed by a MD. Of course, you do have unscrupulous doctors who prescribe all sorts of stuff to various people, including athletes, but I sort of think that maybe this would be illegal too.
William, this is not an area where I’m expert. I know that if you’re in possession of steroids without a prescription, that’s a federal crime in the U.S. and a crime under the laws of most states. Don’t know about EPO or the other drugs. Not all prescription drugs are treated the same way.