The Appeal
First up, Floyd Landis’ appeal to the CAS. By the time most people read this, it will be the 31st. That’s the day the legal briefs from both sides are due to the CAS panel who will hear the case and decide Landis’ ultimate fate. Will they uphold the AAA ruling, or will they reverse the ruling? For that, we all just have to wait and see.
In about 6 weeks’ time, the panel will conduct hearings in New York City (March 19 – 23, I believe). Those hearings will be behind closed doors, so not much is likely to trickle out to the public. Unless, that is, some media or bloggers are allowed on the inside to observe. I have my doubts about that.
Once the hearings are over, the waiting game begins again. If the CAS panel moves at twice the speed of the AAA panel, then we should know something by May. But that’s just a guess. It could be sooner, it could be later.
No matter who “wins” at the CAS, the reality is that everyone involved has lost. Certainly, the person who’s suffered the biggest loss — regardless of the case’s outcome — is Landis, himself. He may have soared for a brief moment, but everything came crashing down within days of his Tour victory. According to some rumblings I’ve heard recently, he is reviled by many in the cycling world right now. In large part, I suspect, for refusing to cop a plea and go quietly into the night.
But the whole anti-doping system has lost something from this whole debacle, too. And that’s the aura of invincibility. If nothing else has come from Landis’ public fight to clear his name, it’s been the attention that was drawn to a number of, shall we say, suboptimal practices in the land of the anti-doping agencies.
It seems to me that there’s a fault line within the cycling community. On one side are those who defend the anti-doping agencies, no matter what they do. Dopers cheat. They cheat all of us. But those who defend the agencies say that the agencies must behave the way they do, in order to drive doping out of sports.
On the other side, people point out that everyone must play by the same set of rules. It is not OK to allow the agencies to take short-cuts in order to convict someone that we all “know” must be doping. There’s a process to doing so. If the anti-doping agencies can’t catch someone within the current rules of how the game is supposed to be played, then they have to let the person go. It’s that simple. Not a pretty picture, because it’s not fair to others. But if the integrity of the overall system isn’t maintained, no one will trust the results of a doping case, ever.
Sports will never be free of cheaters. If doping no longer is the fast track to victory, some other method of cheating will come along. Those who are genuinely inclined to cheat will always find a way.
Everyone that I know — on both sides of the issue — feels that doping is wrong, and that we need to catch the cheats and dispense justice. The big issue is just how we should do so. There’s a middle ground that needs to be found, in which the anti-doping enforcement agencies can operate in a way that we can all be comfortable. Or at least, reasonably comfortable.
There have been a few positive results of the Landis case. Programs like those of the Agency for Cycling Ethics, for example, are an innovative way to preventing or discouraging doping. The UCI’s biological passport program — if properly implemented — could go a long way to shoring up cycling’s bad boy image. And so can the programs that Rasmus Damsgaard is overseeing.
But let’s not fool ourselves. There are going to be doping cases in the future. A few of them may involve innocent athletes, wrongly accused. Whatever happens, we need to ensure that those people face a system that will decide their cases fairly. That is a challenge to everyone who cares about cycling, and sports in general.
The Strange Case of One Mr. John Doe
Last week, news broke that Maurice Suh and Howard Jacobs filed a lawsuit against the US Anti-Doping Agency on behalf of a “John Doe.” The legal action seeks to prevent USADA from testing Doe’s B sample, where his original A sample had shown a negative result. The next day, Eddie Pells of the Associated Press identified the mystery cyclist as Kayle Leogrande of the Rock Racing team. Leogrande and Rock Racing owner Michael Ball deny that the cyclist tested positive, which lends support to Pells’ identification. But there’s another tidbit, over at VeloNews.com, that seems to contradict part of this saga.
Former Rock Racing team director Frankie Andreu told VeloNews that he had been “informed in November of an adverse analytical finding with Kayle’s test from Superweek” and that Leogrande was under USADA investigation.
“I then passed on that information to team management,” Andreu said. “But I honestly don’t know who filed that lawsuit against USADA.”
So, if Leogrande really did receive word of an adverse analytical finding in November, and if the original reports about the John Doe lawsuit are correct, then something doesn’t jive. According to the original story — before Pells identified Leogrande as Mr. Doe the following day — the mystery rider is being hounded by USADA even though his initial A sample came back negative. According to what Andreu told VeloNews, Leogrande is under investigation for an AAF from a test conducted during Superweek. So if both are true, then Leogrande isn’t John Doe.
One of the arguments that is said to be made in the lawsuit is that by informing others that Mr. Doe is under investigation, USADA is causing harm to his career. That’s an interesting point. The promoters of the Tour of California have announced an ambitious new program to (they hope) ensure that no one with a whiff of doping suspicion will participate in their event. The supreme irony, of course, would be for someone to get busted for EPO use at the ToC, given that Amgen (makers of recombinant EPO) at the title sponsor of the race.
Organizers don’t want to run that risk. And so, they are seeking to find out who is under investigation. Can’t fault them for trying. But under the current rules, USADA isn’t supposed to release that information. Notice how careful USADA’s lawyer, Bill Bock, is to avoid comment on such questions from reporters? He should be just as cautious with others, too. Including race promoters. Until you’ve got a conviction, the potential harm to a person’s career is pretty great, should that information become public.
I realize that some may say, “but the agencies need to inform race organizers which riders are under investigation to ensure that no one is cheated by a doper.” Well, right now it’s against the rules. They can change the rules, if they want, in the future, but they have to live within them right now. And the damage to someone who is not prosecuted or convicted is pretty high. Once allegations of doping become public, an athlete’s reputation is pretty well trashed — regardless of whether the allegations are true. If they are, that’s part of the price a doper must pay for his or her misdeeds. But no innocent person should be forced to pay that price, ever. (And all too often, even if the information about a current investigation is given to only a few people, it manages to find its way into wider distribution.)
It’s a tricky balancing act. There will never be a time when only the guilty are charged and convicted. Even if it’s a small fraction of those who are charged that are truly innocent, we need to be concerned about the effects on them. There are at least two ways to look at this balancing act. One way suggests that it’s better to let 10 guilty men go free, rather than have an innocent man punished. The other says it’s better to punish ten innocent men rather than let a guilty man go free.
To me, I’ll go with the former. As I’ve said before, it’s possible that a guilty person who goes free may be sufficiently scared by the process that he or she will change behavior. On the other hand, those who don’t will eventually get caught. And they will eventually get punished.
Getting back to our mysterious Mr. Doe. If it’s not Kayle Leogrande, who is it? And what could that person’s story be? At some point in the future, we will probably find out who he is. In the meantime, Maurice Suh and Howard Jacobs have a case that will be very interesting to follow. The results may well affect how future anti-doping investigations and prosecutions are conducted.
Rant,
Interestingly enough, I never considered that “doping cases” would lessen in number. Seems to me that this is not what this is really about, to get “less doping cases.” Perhaps, it is what is “hoped for” by many of the fan base. At this point, I cannot really say what the fans will want from this whole shebang.
I have been busy reading Larry’s opus on the “rules” — I think it’s brilliant and informative. But as Larry states right from the start — if we are hoping for “clarity” we may come away more annoyed then “satisfied.”
Personally, I have come to trust no one in the governing bodies; this includes every aspect of them. Call me naive — but the fact that the questions of “conflict of interest” remain unresolved in the Landis Case and the handling of — leaves me with a jaundiced view of the whole system.
I “hope” for “fair mindedness” in the CAS panel and whatever decision they come to — but — do I actually feel that I can “trust” whatever decisions they arrive at — I think this has turned into a mute point. If I am left with any sort of after taste following this whole circus — it is that “credibility” is impossible to be had.
To be honest — I hope Floyd “gets off” — I believe the guy got a “bum rap” and as things stand now — whether on purpose or through incompetence the state of cycling remains in the hands of people that should not be trusted.
As to the “John Doe” incident — “is Leogrande John Doe?” may not be the important question. Consider who Leogrande is riding for, RR, in my opinion — the “simplest way” to neutralize any ability of RR to do any cage rattling in the world of cycling — has now been dealt with.
You must differentiate between testing negative, testing positive and having an adverse analytical finding. Your ruling out Leogrande as John Doe based on deductive reasoning given from the information from Leogrande’s lawyers is not accurate. According to Andreu, Leogrande had an adverse analytical finding not a positive not a negative. There was, for example, a performance enhancing drug in his urine but not enough to constitue a positive. An example would be having a testosterone level of 3.9 but not the 4.0 deemed positive.
On another note, are we really expected to believe anything coming from Suh’s and Jacobs’ mouths?
Lizzie,
The same way – are we expected to “believe” everything that comes from the mouth of the “governing bodies?”
Lizzie,
From what I’ve always been told, an adverse analytical finding is only generated when an athlete’s test results show the presence in any amount of a non-threshold substance (like amphetamines), or the presence in excess of a threshold (such as the T/E ratio). With a T/E ratio of 3.9, no adverse finding would normally be reported. In excess of 4.0 it would only be reported if the IRMS studies confirmed that exogenous testosterone was present. But if no such finding was made, an adverse analytical finding would not be reported, even though the T/E ratio exceeded 4.0. If there was a performance enhancing drug in Leogrande’s results that did not constitute a positive, an adverse finding shouldn’t have been reported. At least, that’s what I’ve always understood from reading WADA’s rules.
Rant and Lizzie:
That certainly is how things should work for threshold substances: once you have set a limit, only those samples which exceed that limit should be considered as an AAF; if it is below than the athlete in question should be considered innocent. We can quibble about where the limit should be set, and how to apply the error interval in making the determination, but once those factors are set in the regulations, an athlete with a 3.9 where 4.0 is the limit should be presumed innocent and no action should be taken against him. This would include any public statements about his test results or that he is under suspicion.
I have no problem if UCI/WADA want to take a closer look at such an athlete and perhaps test him more often, as long as 1. this is kept strictly confidential, and 2. the athlete is question is not subject to any disciplinary action by either UCI/WADA or their national affiliates, and such additional attention is done strictly according to the rules and regulations and hopeful done in a spirit of trying to determine the truth and not to “nail” the athlete.
I have questions about the idea of barring certain athletes from competition who are merely under suspicion. Now, in my understanding, if there is an AAF, the athlete has to refrain from competition unless and until he is cleared. Fair enough. But should riders whose names appear in something like OP be barred while they are investigated or even worse, even if they are not being investigated? Consider the cryptic reference about Contador which was made public last year after the TdF: should he be barred from participation in any race because of this? I don’t think so.
Certainly any team could withhold one of its riders from a given race for whatever reason, including their suspicions about whether or not he is doping, just as they might withhold a rider for tactical reasons, or for discipline for non-doping related reasons, just as a football or baseball team might “bench” a player. Should the organizers of the race be allowed to veto a rider who is otherwise in good standing? I don’t think so. Think of the possibilities for a team or rider to sabotage a rival by making accusations.
William,
Well said.
William,
I am not certain that an athlete “under suspicion” should be banned. Isn’t that like what is happening right now?
I do not feel “comfortable with the idea.” As you point out – this “method” can be used aggressively against riders/players/teams.
I do not think that “mere suspicion” should give the governing bodies the right to stop an athlete from riding or competing – to me it smacks of – Salem.
Morgan:
I don’t think that one of the governing bodies (WADA and its dependents, UCI, national federations) should suspend a rider on mere suspicion. But I think that a team has the right to “bench” a rider for many reasons, including suspicion of doping. As I understand things, in general, a team does not enter all its riders in a given race since most races limit the number that can be on one team. So a team can pick and choose, based on many factors: how well a given rider could do in the race, what other plans the team has, maybe because the race is passing through the rider’s home town; a rider might be excluded because he is recovering from illness/injury, is not considered well-suited to the particular demands of a given race, maybe the boss doesn’t like the side the rider parts his hair on.
Now there are degrees of suspicion. Should a team hold out a rider because one of us posts on a blog “rider X must dope to the max”? Probably not. But it might be another thing if someone on the team comes forth and says “Boss, I saw X injecting himself with something”.
What I am talking about is not suspending a rider as in “turn in your license and go fishing for 2 years”, just “Fred, your going to sit out the Tour of East Dakota until we clear things up.” A team would use some judgement in deciding whether the nature/degree of the suspicion warranted such action or not.
William,
I see your points clearly. Still I would ask – “do we want such a state of affairs” as when one member of a team states that “I saw Joey doing a highball, coach.”
Understand, I am not against the team coach, director, whom ever is in the drivers seat, being able to say – “you are sitting this one out,” – what gets me worried is that the potential for giving a rival the “shaft” would be unavoidable.
Riders A&B are on the same team. Rider B is a better racer then rider A. The problem then arises when rider A goes to the coach and accuses rider B – saying “Hey coach, I was passing the locker room and I saw rider B shooting up…” YES – the coach is now in a real “delima” – there has been an “accusation made” – In essence on one hand – rider B is out of the races, the coach, if he is “accepting” accusations as a basis for “withholding” a rider – BUT – then we are again back to square one – A accuses B – A’s Word against B’s.
Take this to the next point – Team A and B are both pro teams, Team B is better. Team A goes to the governing bodies and makes an “unofficial” allegation of doping against B. If the governing bodies are “accepting” word of mouth “allegations” – then Team B is out “till the matter is cleared up.”
In both scenarios – we are left with having to decide if we are going to accept “mere allegations.” In my opinion – this turns into a complete fiasco of justice.
Now if rider A or Team A shows up and says- “Here, I have the syringe that was used to do the injecting and you will find blood traces of the user and traces of what was being injected plus finger prints,” Now this would be different.
I am not looking for making it “easier” for cheaters to cheat – I am uncomfortable with “mere accusations” having the power to take out an opponent, be it singular or as a team. An “accusation without proof” – should have no power what so ever. The potential for abuse is built in.
As I see it – if we “allow” suspicion to be “acceptable” as a means of keeping an athlete/team from competing – then we wind up EXACTLY where we are at this very moment. No one is safe and “everybody” can “point the finger” at anybody – and the rider/team is in essence “judged guilty” without having to have the chance to demand proof of guilt from the accuser.
Yes – people will cheat. Teams, will cheat. We are going to have to accept this fact. Therefore we have to make certain that the rules we play by are such that “accusations” can have no power – without proof. Otherwise we are no different then what happened in Salem during the witch trials.
Morgan:
I see your point. While I think that a team has the “right” (not sure this is quite the correct term) to hold any rider out of a competition for whatever reason, I do hope and wish that teams would use good judgement in doing so. If A and B are both competing for team leadership, you might look at A’s accusations with some NaCl. However, if A is a low-level domestique, you might look at it in a different light. And you might want to call B in for a heart-to-heart and get his side of the story. Maybe it turns out he is a diabetic, was keeping that secret for fears it would jeopardize his career if it was known, and what he was shooting up was insulin.
It is not uncommon for a coach in US sports (and probably in other countries) to suspend a player for “violating team rules” (and not specify what rule(s) the player broke. Point is, any team can hold out any of its members from any given race/game for whatever reason and doesn’t have to account itself to anybody. I don’t think that UCI or USAC has to power to say to a team “We see you are holding B out of the next race, please explain.”
It has been suggested that many teams have turned a blind eye to dope usage by team members, contributing to the problem. Maybe teams need to be more proactive, without turning things into a witch hunt.