By the time most people read this it will be the day before Floyd Landis’ appeal to the Court of Arbitration for Sport will begin in New York. As most everyone who’s followed his case knows, the CAS hearings are his last-ditch effort to clear his name and reclaim his 2006 Tour de France victory. Because the hearings will be behind closed doors, with no media present (that I’m aware of), we won’t get a whole heck of a lot of news about what’s transpiring as both sides present their cases.
I don’t expect that any earth-shattering new evidence will be revealed by either side. As TBV noted, it’s more likely that each side has honed its arguments over the last six months. There is an issue we can discuss, however, that does have some bearing on the case.
Disclaimer: Any similarities to real individuals are entirely coincidental. The following scenario is not based on any real individuals or events. It is merely for the sake of discussion.
Let’s consider a parallel case, of sorts. A cyclist from humble roots in the Midwest named Ralf Schmedlap attains his life-long dream to become a professional bike racer. After years of training throughout central Indiana, and racing throughout the Midwest, he gets picked up by one of the top teams in the world. Let’s call the team he races for Kanof. Now, unbeknownst to Ralf, the team he’s joined is infamous for doping. But Ralf is just a kid from West Lafayette, Indiana, and he doesn’t know anything other than riding bikes, which he’s done since he was knee-high to a grasshopper.
Ralf races clean. In fact, Ralf is so squeaky clean, he doesn’t even drink beer or any alcohol. He’s never smoked (tobacco or wacky tabacky). Doesn’t drink coffee (not even instant). For him, sports nutrition consists of the occasional banana or fig newton consumed on a long ride, often washed down with Gatorade. Lemon-lime, diluted with an equal amount of water. Sometimes, however, he just drinks good-old dependable Coca-Cola.
Ralf’s idea of carbo-loading is throwing 100-pound sacks of potatoes in the back of his pickup truck. Ralf is so clean that he is the butt of any number of practical jokes by his teammates. Anyway, you get the idea.
Now, there’s another team in the peloton, a European-based outfit known for being very intolerant of any doping or dopers. On this team is a cyclist named Z’ev Mevedev, who hails from the steppes of Central Asia. This team is sponsored by a certain brand of lemon barley water from the UK. In the peloton, they’re known by the nickname Team Lemonade.
What you need to know about Z’ev is that he didn’t get to the top of cycling by being a nice guy. In fact, he’s probably the furthest thing from a nice guy. He’s a fierce competitor who will do anything to get ahead. That includes causing his competitors to crash (a favorite move is to jerk on his opponent’s handlebars as they round a corner at high speed). It also includes using various, ahem, “supplements” (many of them not allowed in competition) to increase his performance.
One day, at a major three-week race somewhere in Europe, both Z’ev and Ralf get called to doping control at the end of that day’s stage. By an entirely bizarre quirk of fate, the control numbers on their urine specimens are so close that merely transposing two of the digits in the ID number will change it to the other person’s number.
Now, the anti-doping lab where the tests are performed usually has a sterling reputation. But there’s a couple of technicians on staff who occasionally take a few shortcuts, and who play a little fast and loose with procedures. Guess who are analyzing Z’ev’s and Ralf’s samples?
Somewhere along the way, one of the cyclists tests positive for nandrostanozotestoamphetopoietin. It’s a new drug that combines all of the benefits of various steroids with the stimulation of amphetamines and the bloodboosting properties of EPO. In the peloton it goes by the name “Rocket Fuel,” because that’s pretty much what it is. One hit of NanStan, as it’s called, and it’s like cutting in the afterburners on an F16. Gene doping can’t hold a candle to NanStan. In fact, nothing can.
Word of the positive result hits the major European sports papers and the usual feeding frenzy ensues. In the midst of all this, a certain head of the UCI lets drop the identity of the person who tested positive: Ralf. Except, it wasn’t really Ralf who tested positive. A mix-up in the lab occurred, and it was really Z’ev’s sample that tested positive. But nobody knows that, not even the lab technicians (well, if they had been paying attention they would, but they were pretty sloppy in their work that day due to being short-staffed).
In all the paperwork (which is marginal, at best) the evidence is linked to Ralf. But Ralf really is innocent. He’s completely caught by surprise and doesn’t know what to do. He holds a press conference, but never having had to face the press before, he’s so nervous that the press conference is a complete disaster. He eventually hires a good defense team, but the anti-doping agencies and the lab stonewall any requests for documents that might shed light on the results. Things like lab records for chain of custody, detailed notes about procedures followed, standard operating procedures, the whole megillah.
Given the reputation of Ralf’s team, most people who hear about his positive result automatically assume he’s guilty. On the other hand, given Team Lemonade’s public and very aggressive stance against doping, nobody even suspects that Z’ev might actually be the guilty party.
Under the existing WADA rules, the lab provides a bare-bones documentation package which is missing some key information that Ralf and his defense team need to exonerate him. Now, here’s where you, my faithful readers, come in. Using the existing WADA code, knowing that WADA-affiliated lab scientists and staff cannot speak ill of another lab or their staff, knowing that the science behind the tests is deemed to be correct, and with the restriction that the lab technicians are not available to be deposed prior to the arbitration hearings, taking everything you know about the current anti-doping system, how do you prove — both to the arbitration panel and to the general public — that Ralf is innocent.
Ralf and his defense team have encountered all of the same roadblocks as a certain, more prominent case. How do you proceed? Can Ralf be exonerated, or is he likely to be convicted, despite his protests of innocence.
One final note: The point of this exercise isn’t to debate the positives and negatives of the current WADA code. It’s to see if a realistic way can be found to get Ralf out of the predicament he faces, under the rules and procedures currently in place. Even if you normally argue the side of the anti-doping agencies, in this case your task is to take a look from the athlete’s point of view and try to find a way out of this mess. Having the lab techs confess to the errors of their ways has been ruled out by the judges, as has Z’ev’s experiencing a sudden attack of conscience. Z’ev, as good a cyclist as he is, has no conscience.
Good luck.
Are we precluded from testing the urine sample against Ralf’s DNA?
Larry,
Good question. Unfortunately, the judges will need to take that under advisement. The ADA’s lawyers argue that only information directly related to the case can be contested, and they claim that the chain of custody is clear enough to prove the sample is Ralf’s.
While the Landis case set a kind of precedent for an ADA testing additional samples, the judges will need to consider whether or not WADA’s rules will allow such testing by the defense. A decision will be announced sometime later today.
Also to be determined is whether enough of Ralf’s sample exists for such testing to occur.
I’ve been away and off net for almost 2 weeks, but I am alive and well.
Rant, you’re hitting here on a point I have brought up: it is impossible for an athlete to prove he is innocent. No matter what evidence is made available, no matter who is allowed to testify in his behalf, no matter what. In many criminal cases, one could prove innocence with an alibi, but the “crime” of PED usage is not specific enough as to time and place to be alibiable (to coin a term).
In your hypothetical situation, the lab could confess to having mixed up the numbers, but unless it was a deliberate action, even the guilty tech may not actually know he or she switched the digits. But let’s assume for a moment it was a deliberate action, and the tech involved gets an attack of conscience and ‘fesses up: does this prove that our good Ralf is innocent or does it merely makes the test results in question not usable against him? Hopefully, even under the current system, such an admission would get Ralf off of any official sanction, but what about the court of public opinion, and also, what about ASO? That’s a hard call: there are some who’d probably condemn Ralf anyway, by association with his team.
But suppose the error was simply a human mistake? We’ve all done the same at one time or another, swapped digits when copying down a phone number or the like. Could this error be detectable by reconstructing the paper trail? Especially if the lab and/or the tech is trying to CYA. I would guess that a system designed to prevent and reveal such an error could do so, but the fact that such an error is allowed to go the the stage in the scenario would indict that the paper trail here is not sufficient to be of use to Ralf.
Your scenario doesn’t seem to mention B sample results. B sample testing, carefully done to avoid sample number mistakes might get Ralf off, again officially, with again CoPO results perhaps different. Testing backups however doesn’t really prove that one is innocent, just that the results can’t be repeated. Then there is the potential problem that if the original mistake was deliberate, the lab might be tempted to do the same with the B sample. Maybe Ralf’s representative at the B tests would discover the new switch, maybe not. Maybe the switch would be done before or after the testing, when the rep was not around.
If Larry’s idea of using DNA to match the samples in question was used, if again could get Ralf off, except in the public opinion area.
Ultimately, I don’t think it is possible for an athlete, once accused, to actually prove he is innocent. Look at Lance, never tested positive, yet many believe he is the poster boy for PED usage. Best to hope for is that one can show any particular test result is not reliable enough to base a sanction on.
Joshua: “A strange game. The only winning move is not to play.”
Wargames
William, nice to see you back! My reading of Rant’s hypothetical is that the chain of custody documentation is not good enough to allow the parties to spot the lab’s error and determine that the positive sample is not Ralf’s.
Bill, good point, but Ralf is already committed to the game.
Rant, I await the decision of the judges. I hope that my “plan A” works. If I can’t get the DNA testing, my “plan B” is kind of drastic.
You don’t. Ralf is dead meat. Hope he has a trade other than racing to fall back on.
I fully expect CAS to drop kick Floyd back into semi-retirement. The mood of the cycling community is one of its back is against the wall. Is the future of the sport as a pro circuit at stake? Sure is! If nothing else, Floyd will continue to be the sacrificial lamb led to slaughter to satiate the fears and anxieties of the peleton. Letting him off the hook at this time FOR ANY REASON would be sending the signal that doping is acceptable behaviour and all you have to do is hire a fine legal team. And I write this KNOWING that Floyd did NOT dope.
Rant – is there an email address where I can write to you directly about something? Thanks
Susie B,
Check the email address you use with your comments, and you’ll see a message from me.
BSMB, Bill, you can’t just say that Ralf’s situation is hopeless. Rant has asked you how you would advise Ralf to proceed. Would you tell Ralf that you can do nothing to help him? Would you hang up the phone on him?
Judge, you’re a practicing lawyer on this one. Welcome to my world! A world where the client may be screwed, but you have to try and help him or her anyway.
He should never have signed his license. He is in the wrong profession for due process. Sometimes you have to tell the client his situation is hopeless where it is currently venued. Get the case venued somewhere else, where due process exists, and you have something to work with. But because he signed his license, he is stuck where he is. Because he is stuck where he is, he is toast.
My advice is to spill the beans on Lance, whether or not there are actually beans to spill (They care very little for the truth anyway), take the 3 month suspension offered (the shortest in history), kick butt in the next TDF and save yourself 2 years of your life and your life savings.
I’d further advise him not to sign any affidavits (Papp didn’t and Lemond didn’t and USADA won’t require them). Lance’s lawyer’s won’t be allowed to depose the client, so no worry there. USADA will protect and support the client’s testimony. I would never suborn perjury at arbitration, even though Brunet believes the Panel has no power to enforce oaths or other “usual” rules of civil procedure, absent stipulation. I’d leave the issue of testimony to Mr Young, who will leave it up to Matt Barnett. I’m sure Mr. Barnett will protect his star witness.
My client would be a hero to Ludwig and Jean C. They will also love him at DPF and on the road side. Jonathon Vaughters might want to cut him in on a share of Slipstream and all will be well with the world.
I’d be interested to see if any of the lawyers here would do better for the client.
Bill, as a lawyer here, I’m still waiting for the ruling from Judge Rant on the DNA evidence. Unfortunately, if that ruling goes against me, I’m kinda short on options, and my advice is going to be pretty close to yours.
But I’m not going to advise my client to commit perjury, so the finger-pointing at Lance is out of the question. I have my attorney’s license to protect.
Also, I’m going to be as nice as I can be to Jean C, all throughout this process. First, I like Jean C. I think he’s a good guy. Second, while I don’t exactly remember, I think I owe Jean C a drink the next time I’m in Paris. I’m ALWAYS nice to my creditors. (naturellement, the dollar being what it is, Jean C may have to wait a long time for that drink!) Third, Jean C knows people like Jalabert who think they can tell whether a rider is doping, just by watching him ride. I sort of doubt that anyone can do this in real life, but maybe Jalabert will testify in favor of Ralf at the arbitration.
This is all hypothetical, of course. The hardest part may be to get the client, God Bless him, to actually believe
(before he has to experience it himself) how unfair the system will be to him, given all he has come to expect from adjudicative bodies he has experience with.
I”ll assume there is nothing left of the A sample, being disposed or consumed. The hypothetical doesn’t say anything about the B sample. Ralf should have a copy of his form, and the code on the B should match, unless the mixup occurred at the time of sample collection and he and the other guy swapped bottles.
In any event, there is no protocol for use of DNA to confirm identity in the WADA code, nor, to my knowledge, any ability for an athlete to get any additional test done with any remaining sample. USADA got Landis’ B’s tested because the UCI/USACycling owned the samples, according to the Panel; so the athlete has no control or ability to do anything at all, as far as I can see.
Assume the B hasn’t been tested: if the codes match Ralf’s form, he’s going to have a hard time saying it isn’t his. He has no ability to ask for DNA testing; the test for rocket fuel will consume all the B that exists. If it is positive, it is presumptively his.
What identity error could have occurred between the B opening with Ralf’s observer present and the declaration of positive?
Well, if it is accidental, there are unlikely to be bottles of Zev’s lying around to switch.
If it is intentional, then all bets are off.
If it is a subtle test, then it’s possible for Ralf’s B to be interpreted in a way that “confirms” the analysis of Y’evs A.
Ralf’s case would need to hinge on differences between what is in the reports on the A and B to make the arguments that the B was incorrectly reported positive, and that it is different in significant ways that make it appear a sample switch is possible. Proving the incorrect positive declaration depends on finding ISL violations in the execution of the rocketfuel test, and if that can be proven, maybe it isn’t necessary legally to prove a possible switch in the A.
If Ralf could get his other B’s tested, he’d have more arguments to make, but I don’t think he can.
TBV
TBV, terrific response.
Since Rant’s hypothetical case has already proceeded to Ralf’s hiring of a defense team, I had assumed that the “B” samples had been tested and confirmed the “A” sample results. That may not be a correct assumption, given some of the delays we’ve been seeing in the testing of “B” samples, but that was my assumption. We can ask Rant to clarify.
If my assumption is correct, then whatever the mixup at the lab between Ralf’s and Z’ev’s samples, it evidently affected both the “A” and “B” samples.
I’ve raised the question of DNA analysis, because it’s the only way I can think of for Ralf to prove that the lab misidentified the samples. I fully understand that Ralf has no absolute right to this DNA evidence, but the arbitrators have some discretion to require evidence in addition to that mandated under the WADA rules, so the request for DNA is not groundless.
If the request for DNA evidence doesn’t work, we’ll have to get busy examining the chain of custody documentation. However, since Rant has written that “In all the paperwork (which is marginal, at best) the evidence is linked to Ralf” and that the lab has stonewalled requests for additional chain of custody documentation, our examination of the chain of custody documents is probably not going to help any. Besides, we saw in the Landis case that while Landis was able to show major deficiencies in the chain of custody, this proof got him nowhere with the arbitrators.
TBV, even if Ralf has other “B” samples and can get them tested, that won’t help his case. It will only serve to prove that perhaps Ralf was not continually using NanStan during the course of the race. Or that Ralf WAS continually using NanStan, but he combined this use with the use of a masking agent, and the masking agent was successful for the other “B” tests but failed for the positive test. Or that Ralf was continually using NanStan, but did so below the detection limits for NanStan for the other “B” tests. William is right, there’s no way for an athlete to prove that he did not dope.
If both the samples A and B have been tested, there’s nothing left for DNA analysis, and we’re left with only CoC documention and a stonewall. We also need to understand how and where the same mistake could have been made.
Was it at the lab, or in sample collection and transport? If it was at the lab, how could the same mistake have been done on the A and B, if the B was opened in the presence of observation? At the time of the B, was there any of the ostensible Z’ev sample around for a switch? If not, what was it switched with?
One of the things the hypothetical also does not provide is a statement of the underlying truth! We’re given reasons to think Ralf is clean and Z’ev is the dirty doper, but Rant doesn’t actually say; nor does he say how the switch did get actually made, he only provides some ways it might have happened.
The argument the other B’s could not assist Ralf is what USADA argued, and may or may not be true, I’m not sure. It’s plausible to me that *some* indication might be so significantly different in Ralf’s other B’s that it calls the sample identity into question. That is perhaps all I could hope for.
It’s also possibly the case there are no other B’s because Ralf was a one-day wonder in this event, and it was the only time he was tested in a month either direction.
TBV
Larry,
I’d let Matt Barnett worry about how he presents his case if it comes to that. The assumption I made and that you make, is that neither of us would suborn perjury. We might even instruct our client not to answer once USADA calls him and Brunet would then let him go, concluding that the Panel has no authority to compel an answer (the way Lemond’s testimony went down). That would serve them right. But Travis is smarter than that, we might be racing but we would have no paperwork until AFTER we testify.
Moreover, it isn’t likely that USADA would need direct evidence anyway. Young could lead and testify himself as to “facts” he thinks lead to whatever conclusion he is pitching. He wouldn’t trust Barnett to do that. He’d do it himself and history tells us he’d get away with it. Or, Barnett could create some some theory to use our client to ruin Lance’s reputation; “Yes, I saw him with one of the Olsen twins while Cheryl Crow hemmed his black socks in their room” or some other irrelevant junk Brunet would allow to be heard.
Don’t be so quick to assume USADA needs your client to directly testify that Lance did anything. That goes, in fact, to the complete contrary of their modus operandi.
TBV, ISL Section 5.2.2.6 requires a WADA lab to retain the A and B samples for a minimum of 3 months after publishing the final AAF report. ISL Section 5.2.2.7 requires the samples to be retained until the completion of any challenge by the athlete. So unless the lab used up the entirety of the A and B samples during testing (something that would not seem to be the norm, given the quoted ISL sections) it’s not necessarily the case that there will be nothing left for DNA analysis (sorry for the double negative).
TBV, the sections of the ISL I quoted above are from the old version of the ISL. Version 5.0, effective this year, contain more extensive provisions on sample handling. These provisions are, to put it mildly, bizarre. There is a whole sequence of rules under new ISL 5.2.2.12 requiring the labs to preserve portions of samples that have tested negative, “for future re-testing”. There are no mirro-image requirements for preservation of sample portions where the sample has tested positive. Obviously, WADA is preparing the way to order labs to retest samples that have initially tested negative. Nice.
Still … new ISL 5.2.2.8 retains the old language of former ISL 5.2.2.7, and requires the lab to retain samples during the course of an athlete’s challenge. So I think the gist of my above post still holds true under the new rules.
This hypothetical makes me uncomfortable because of the examples being used–we have a virtuous MidWestern boy being set up against some evil rider from the steppes. Surely you can come up with a hypothetical that doesn’t rely on stereotypes and suggestions of anti-American conspiracies.
But really it’s hard to imagine a simple DNA test couldn’t clear this up pronto. Once the A sample comes back positive the athlete would have plenty of time to request a DNA test on the B sample. In short, it’s a hypothetical without relation to any actual case.
Finally, it’s also very hard to believe that a simple analysis of another B sample wouldn’t show that the data from the other sample was falsely labeled.
Give me a break.
Another reason this hypothetical is absurd is simple to determine–if “Ralf” was really clean and virtuous, wouldn’t there be an outcry in the peloton demanding a 2nd look and eventually a DNA test that would admonish him? It’s just absurd to think that the peloton would sit back and do nothing while a innocent man was wrongly accused and convicted. And this is one of the circumstantial factors that is quite damning re. the Landis case. If Landis was really as clean as he claims in his book, where is the outrage in the peloton over the smearing of such a virtuous guy? Is it really realistic that the peloton has so little solidarity or ethical feelings? They are prepared to let him rot just because that’s one less rider they have to compete against?
Ludwig,
It may not be the most creative of stories, I’ll grant you that. There’s no intention here to rely on stereotypes or suggestions of anti-American conspiracies. It’s merely to explore how a truly innocent athlete could defend himself, once he’s caught in the jaws of the anti-doping system.
A DNA test could clear up the example — assuming, of course, that there is sufficient material in the urine to extract DNA. Most of the things found in urine don’t contain much — if any — DNA. When there are things that do (like blood cells, for example), it’s usually a sign that something is pretty wrong with the donor.
Also, the athlete and his defense team might not think to ask for a DNA test on the B until after the B sample tests were complete. In fact, I think it’s highly likely that they wouldn’t ask for DNA tests until such a time. Before that, they’re just trying to figure out what the heck happened. And, as TBV pointed out, the track record for an athlete asking for tests outside the normal ADA lab tests isn’t so good.
Simple analysis of another B sample might not solve the problem, either. Look at the results of Landis’ B samples done last April. Some came back confirming the Stage 17 results, some didn’t.
The point of the hypothetical is to figure out whether an athlete has enough access, through the rules and procedures, that someone who really is innocent can prove it. I was hoping you’d participate. Maybe you still will.
Ludwig, an athlete has no right to a DNA test under the WADA rules. I’m asking Judge Rant to grant Ralf a DNA test, I did so first thing last night, but there’s no guarantee he’ll listen. And as TBV correctly pointed out, there’s no guarantee at this point that there’s any DNA left to test.
I don’t have to tell you the reason why the peloton won’t speak out for Ralf. It’s “omerta”. If the peloton speaks out for Ralf, that’s a public admission that they know who is doping and who is not. It’s an implicit condemnation of every cyclist who was ever accused of doping when the peloton said nothing. That is assuming, of course, that the peloton knows the doping status of every member of every team.
I didn’t read any anti-American conspiracy into Rant’s facts, only that Ralf (as an American) would have the same rights and legal access as Landis did, and Rant wants us to access what we’ve learned through the Landis case. But point well taken, it would have been less stereotypical if the doping rider was also an American.
I suspect that if I were more skilled at these things, I’d find a bunch of puns, palindromes, anagrams and other word play in Rant’s hypothetical, which I think drove Rant’s seletion of Z’ev’s nationality. So far, all I can find is that “Kanof” is sort of “Phonak” spelled backwards.
Well, I certainly wouldn’t say Rant consciously meant to suggest anything, but rather that his choice of examples is unfortunate.
But seriously, what I dislike the most about this hypothetical is the assumption that the LNDD takes their responsibilities so lightly that something like this is considered a reasonable scenario. It’s just absurd. I don’t know exactly what their lab procedures are, but one would think that before they permanently mar an athlete’s reputation, they would take a quick look at the other samples to make sure there wouldn’t be a mix-up. I mean, if something like this was commonplace or at all possible, then cycling authorities (rather than the lawyers representing the cyclists) would have legitimate cause for complaint. Indeed, they would have legitimate cause to take their business elsewhere.
In practice, of course, for the 2006 Tour the LNDD only identified one positive. And that was Landis.
What I’m getting at is making sure that lab practices are fair and transparent ought to be the job of the authorities representing the teams and athletes, rather than the lawyers representing an accused athlete in an arbritration. Certainly, an arbitration offers an opportunity to identify and debate faults in the system. But ultimately cycling authorities have to agree to trust the labs they entrust with this work and accept the results. If the process is flawed, they can take their business elsewhere. Speaking for myself, I would take the arguments that the LNDD is incompetent much more seriously if they were being brought up by authorities representing the cyclists as a collective body, rather than via the legal and PR team of one athlete who has looked guilty all along. To each his own I guess.
As for “omerta” being the reason cyclists wouldn’t speak out in the case of a false positive–that doesn’t seem likely. Far more likely is that the peloton recognizes that dope testing, however flawed, does play a role in ensuring a more fair competition and protecting the health of the athletes. But if the (seemingly few) clean riders are being wrongly accused by that system, then the system is doing the opposite of what it is supposed to be doing. Face it, if Landis didn’t dope during the 2006 Tour, this is a MASSIVE injustice. It doesn’t make any sense that riders would sit back and take it when the same thing could happen to them.
“It doesn’t make any sense that riders would sit back and take it when the same thing could happen to them.”
Do they have any other options? It isn’t like the delay to the start of the race in protest over the guy that was being tested while he planned his son’s funeral actually did any good.
Ludwig, that’s a terrific post. As you would expect, I disagree with much of it. But it’s honest, well put, well reasoned, and just an overall good post. I’ll give it the ultimate compliment, and I won’t argue with it. I’ll just let it stand. For now, anyway! ;^)
Rant –
If you can’t test the urine sample for DNA, then Ralf is pretty well screwed.
Ralf can’t try to prove that he has never been anywhere near a banned substance. Strict liability, dick pound’s “nazi frogmen” and all that.
The documentary evidence of the lab’s chain of custody is not going to prove that the urine sample is not Ralf’s. I think that’s a given from the facts you’ve provided for us. Ralf won’t even discover that his doping control ID was similar to Z’ev’s.
Ralf could quickly provide a urine sample to an independent lab, right after he’s accused of doping. But too much time will have passed since the date of the fateful doping control. Enough time for NanStan to pass out of a doper’s system.
Ralf might consider having his hair analyzed, a la Martina Hingis. A person’s hair can indicate doping over a long time period. But a negative result on Ralf’s hair would not prove that the positive urine result was invalid. In fact, the lab can retest the offending urine sample over and over under the supervision of a hundred scientists, and it’s always going to test positive. Urine trumps hair.
If Ralf rode for a team using an independent lab testing program, like the ones run by ACE and Damsgaard, then there might be an available urine sample for Ralf for the same day as the one taken by doping control. Or maybe not. ACE does not take daily samples. Besides, you didn’t say anything about ACE or Damsgaard in your description of the facts.
So, Ralf has only two options. He can try to prove that the lab got the test results wrong, like Landis tried to do. That’s going to be a hard job, since the lab in the Ralf case analyzed the urine correctly. It analyzed the wrong urine, but it did the analysis correctly. Still, Ralf can throw the kitchen sink at the lab, and hope that the lab screwed up in some way. This is not a great option, of course. It’s going to be difficult to prove that the lab screwed up when it didn’t screw up. Not impossible, but very difficult.
The second option open to Ralf is the better one:
Ralf could confess.
He should talk about how he caved into the pressure. How he purchased the drugs from a dealer back home, who always wore a mask and never identified himself (so Ralf is sorry, but he can’t name anyone who should be prosecuted).
And Ralf should say he’s sorry, and deeply ashamed for what he’s done. He’ll gladly serve the 2 year suspension, no need for USADA to spend any money prosecuting his case. Ralf should announce that he’ll spend the next two years touring schools around the U.S. on his own dime, lecturing kids on the evils of doping. He should offer to donate his current year’s winnings to a charity that fights drug abuse.
Let’s be honest, this option is not a great one for Ralf. Not only does he have to swallow his pride and confess to something he didn’t do … but he’s going to have to lie about it, and as you’ve described Ralf, having to lie might be worse punishment than even a two year suspension. Worse, he’s going to have to make his lie believable and convincing. Because if it ever comes out that his lie was a lie, the public and the ADAs will assume that Ralf is both a liar AND a doper, and the strategy of contrition will come to nothing.
Not that we’re talking about Floyd Landis, but my read of Landis is that he could NEVER have pulled off the strategy I’m recommending. My read of Landis is that he’s innocent and he knows it. No way that Landis could back down from a fight against the ADAs. No way that Landis could have retreated to a position of strategic and convenient lies.
But if Ralf could pull off this strategy, then he might be accepted back into cycling after his two year ban. Something like David Millar, who by all accounts is well liked and respected (and probably deservedly so — I mean no criticism of Millar here).
I’m not intentionally trying to be cynical. Ralf’s choice is to come out of the process like Millar did, or like Floyd Landis is doing. Millar is the better choice.
Oh, and one last thing. I can’t advise that Ralf lie to the authorities. He’s going to have to figure out this strategy on his own, or with somebody else’s help.
Point of clarification, in case it wasn’t clear. I’m not saying that Millar lied. I’m saying that he told the truth.
Larry,
To make it clear as mud, I’m not saying it’s impossible to get DNA out of the urine. That’s not true. It’s dependent on what’s in there. There may actually be some to find, but it’s a shot in the dark, and not a guaranteed winner.
I think you’ve outlined Ralf’s options pretty well. He’s stuck between a rock and a hard place. Where he goes from here is a tricky call, because in one case, he might have to lie in order to minimize the damage to himself. Except, as you point out, if the lie is ever detected, he’ll be damaged way more than if he’d fought the charges vigorously.
Now, with our drug NanStan, being as it’s a combination of nandrolone, stanozolol, testosterone, amphetamine and EPO,the testing is pretty tricky. There’s a molecular biochemist and physicist named Dr. Mayer Tungsten-Wolfenstein, who works at the University of East Sussex in Hastings, UK, who developed the testing protocol.
If Ralf’s defense team wishes to contest the case, they can consult with Dr. TW and see if they can find any flaws in how the tests were performed. His analysis would certainly tell you just how strong a case the ADAs have in either event.
(And, yes, there is some wordplay going on here. In addition, this scenario is actually a composite of a number of different cases, with a few modifications.)
As you might guess, the panel ruled against any DNA testing, due to the fact that WADA rules do not require such tests to be conducted. One panel member did, in fact, vote for the testing. But he was overruled by the other two members.
Ludwig,
You raise some good points in your last comment. I agree that it’s the job of WADA, the ISO/other accreditation authorities and the cycling authorities to make sure that labs are living up to the quality of work required of a medical lab in general and an anti-doping lab in particular.
I wasn’t trying to suggest that LNDD (or any other lab) takes their responsibilities lightly. But mistakes do happen, and sometimes they go undetected. That’s the real point here, not to assign blame on any individuals. In the labs that I’ve been around, I’ve seen even very good people take shortcuts when the workload was very heavy. I’m not saying it’s right or good to do that, just that it happens.
I much prefer that the proper authorities make sure the labs are meeting the appropriate quality standards. You’re absolutely right, that’s the way it ought to work.
And I’d much rather that athletes not find themselves in a position to need a lawyer. But attorneys are a last line of defense for someone who’s accused. Now, granted, many may well be guilty and may be trying to escape punishment. But it’s an interesting exercise to see if a truly innocent person’s case can actually reach the proper conclusion. How such a case ends — even a hypothetical one — can be very instructive as to where things are working, and where they aren’t.
People fail to get involved in things, even though logically we would expect them to. The Kitty Genovese case in the 1960s is a classic example of people not rushing out to help someone — even when the need is dire and immediate. To be fair, however, anti-doping cases are a much different animal than the Genovese case.
What’s interesting is that the pros now actually seem to be pulling together. Even though it may not be terribly effective in changing the vampires’ behavior, the protest over Van Impe’s testing made a big statement about a diverse group of riders coming together. Over time we’ll see if this is more than a just a single occurrence.
I’m not sure how much they would do for someone like our Ralf, however. I don’t know how tapped in everyone is to the who’s doping and who’s not, regardless of what level they race at.
When I was racing in Michigan (I’m a Cat 3, by the way, no great shakes), certain riders were known for certain things. Like the handlebar trick, which I witnessed on more than one occasion. I’m pretty sure that within the group of Cat 3’s, if someone had been accused of doing something inappropriate or against the rules, a lot of us would not have known for certain what to believe — unless we knew the individual or knew someone who did.
At the pro level, I suspect that some of that comes into play, too. Certain teams are well-known for suspicious programs. But does everyone on those teams dope? Maybe. Maybe not. And certain teams are outspoken about not doping, and yet Moreni from Cofidis, and Sinkewitz from T-Mobile both got busted for doping. Appearances are deceiving, that’s for certain.
I’m certainly encouraged to see riders pulling together. But just how far they would go, I’m not so sure yet. Would there be a general uproar if a clean athlete got busted, or would many just sit back and keep quiet, out of fear that they might be perceived as supporting a cheater? I’d like to believe that there would be a general uproar. The cynic in me has some doubts.
Assuming there are, in fact, clean riders in the pro peleton, how many other riders know for a fact they are clean? We know that there are riders who passed many tests and later have either been caught or confessed a la Riis. Other riders are suspected by many despite passing tests and professions of innocent. There simply is no way to be sure that any rider is in fact clean. So I kind of doubt that the peloton would rise up in arms over Ralf’s fate. Riders would just figure Ralf had been putting on an act. How do we know that any rider, from the top rated pro down to a first-time cat 5 racer is clean? We don’t.
William,
Welcome back. Hope you had a good trip, wherever you vanished to. I’m afraid you’re right. Even those who loudly announce their cleanliness (ala Bradley Wiggins) may not be clean, for all we know. I’m willing to give Wiggins the benefit of the doubt, but it would certainly be a surreal event if he should ever test positive. Other than loudly proclaiming one is clean and defending oneself aggressively against suggestions that go counter to that claim, I’m not sure what a rider can do to prove to the world that he or she is, in fact, riding “unassisted.”
Programs like ACE’s and Damsgaard’s are a step in the right direction, but even the best programs may not detect all cheaters. The only way to completely rule out doping would be to test on a daily basis. Short of that, random tests (which I understand is something that ACE has either gone to, or will be at some point in the near future) can do a lot to mitigate the risk that someone who’s doping will slip by. But there’s always at least a little risk that such a thing could happen.
Rant, I guess I’m jaded and cynical. Do you really see that riders protest as a “big statement?” I remeber a few other protests where they delayed the start and I don’t know that it has ever done them a lick of good. Unless they choose en masse not to race at all, I don’t think it matters a whit to the organizing bodies or even the teams. Until they refuse to ride completely and actually shut down a race, any symbolic gesture is much ado about nothing.
It requires all of the pro riders to put long term interests of the many against a short term paycheck, and nobody has done that yet, because their careers are so short.
AJ
Thanks to my greatest fan Larry.
It’s was bit long to read.
How Ralf could have been influenced by an retired and rich team leader whose reputation has been tarnished earlier by the same lab?
BannaOj,
Well, maybe saying it was a big statement was overstating things a bit. It’s a bigger collective statement than they’ve made in the recent past. But you’re right about long-term interests versus short term paychecks. Delaying the start of a race shows some displeasure, just like the protest at last year’s Tour did. I’m not sure that anything will really come of it.
It would be good if it did, but we’ll have to wait and see.
This hypothetical situation takes me back a few months when we were bored and discussing improvements over at TBV’s site.
If the system was set up where a third sample is possible and is under the care and control of the athlete or his team, then he has a means to defend himself.
The third sample should be taped closed to prevent tampering, then signed by the doping control witness who collected the A and B. The sample should be immediately couriered to a controlled storage depot that neither the athlete nor WADA have access to. Should there be controversy, then it is accessible for the athlete to do what ever to prove his innocence.
The doping control witness should have all the sampling, storage and shipping material with him. He seals the C sample and shipping package and leaves it with the athlete to ship to the controlled storage are. The control storage depot could inspect the package for evidence of tampering.
These are hypothetical situations, so I am allowed to dream up anything.
DNA matches are extremely difficult from a urine sample. I wouldn’t rely on it. And if WADA were in charge they might prove that it were urine from a flamingo. Then the rider would be disqualified for actually being a bird.
Gotta go after the lab and the chain of custody.
I have to snicker to think that the riders would rise up in protest. You mean like in ’98 when Festina was pulled? Ho, Ho. They definitely rose up in defense of clean riding that time.
Pem has an interesting idea. But I still think that somehow the ACE program has to become the rider’s last line of defense.
Jean,
Well, in this scenario, there is no rich, retired former captain who keeps his domestiques and former domestiques toeing the company line. Even if the story does resemble certain events that have happened in the past two years. 😉
Pem,
Agreed that a C sample would be a good bit of protection for athletes.
Michael,
I certainly wouldn’t recommend relying on a DNA match from urine, either. Lab and chain of custody — especially the chain of custody — seem like the logical place to start. Assuming that one can get enough information to make a credible case.
I also think that a program like the ACE program will become more and more the last line of defense for athletes. For many reasons, which I’ll go into another time.
Rant,
It seems pretty obvious that the Ace program and the Damsgaard program were started by the teams as a means to “fight” the alphabet soups “testing procedures and findings.” This is the only logical solution to such an untenable problem that the teams and riders are facing. I cannot believe that the “teams” had not realized just how vulnerable they had become to the “practices” of the governing bodies.
Now I realise that some may see this as a means to “avoid” the alphabet soup rules – but I believe this is just the way the supporters of that system wish to paint the teams’ “self-testing.” Not that the self testing is bulletproof and cannot be manipulated. As I see it – the ONLY way anyone could “fight” the present doping control system is to establish a non-aligned set of testers – which is what the ACE and Damsgaard systems seem to be aiming for.
Lets face it – the way things stand today – the alphabet soup has managed to “establish” its control over the cycling community with rules that have little to do with “fairness” rather everything to do with having the power to “take out” any individual or group of riders without fear of having to “prove” anything in a real court of law. This worked for them quiet well – until Floyd Landis gave public access to their procedures.
Now people are actually “looking” at their rules and methodology – and as it was bound to happen – the shortcomings and unfairness are becoming evident to the general population. Think what one will of the “teams” and cyclists – they are not stupid. Their “actions” or non-actions as we get to know them publicly are always presented in the light of what ever circumstances are being presented in the media.
One should not lose sight of the fact that the “teams” have aimed directly for a means to combat their vulnerable positions. Ergo – the ACE and Damsgaard programs.
After all – what does one do when faced with a closed system – one changes the situation where a “publicly accepted and recognized legitimate” test is held up to prove the riders state of “chemical or non chemical well being.” In essence – what is this? Simply put – the “non-aligned” testing opens up the closed system. Publicly the alphabet soup tauted its own “blood passport” program – that is until it became clear to them that they would need to establish their version of a non biased non aligned board of “interpreters.” Which left them realizing that the increasing public awareness of their methodology might not very well be accepted.
The “public knows too much.” In my opinion – we the public are learning how the “inside” functions in the pro racing system. It is becoming obvious even to the densest amongst us that the system is slanted and unfair and too easily prone to manipulation towards individual ends.
The one thing that everybody should be able to figure out is that in your scenario the Ralph Schmedlap character is “cooked.” He has no way of proving his innocents because it is not in the system for him to do so. Why? Because the alphabet soup did not put it in – because it is not a fair system – it is however a means to nail individuals in such a way that once the alphabet soup points its finger – the victim is screwed, old Ralph is screwed.
Now – I think we should ask ourselves – after almost 2 years of digging into this garbage and finding all these “inconsistencies” out about the alphabet soups methods – why has no change occurred? Why is it – that Landis is now back to square one – behind “closed doors” being tried again? Without even an attempt at “transparency?” And we all seem to “accept” this situation? Why? Because we are told that this is how it is done……right…sure, ah – but isn’t this the exact situation that we have been flexing our brains to stop from happening?
No matter what the CAS results are – Floyd Landis is screwed – because we are “tamely” accepting rules and regulations and bureaucratic behavior merely because it has always been done this way! Pardon me – but isn’t this exactly what everyone for the past 2 years been commenting on?
“He has no way of proving his innocents because it is not in the system for him to do so.”
Given the fact that, no mattert what the system is, it is really impossible for anyone to prove that they are innocent, in order to be fair there needs to be a strong dose of “innocent until proven guilty beyond . . .”, well perhaps not necessarily beyond a reasonable doubt, but at least some hign level. However, as practiced today, the system is more “guilty unless proven innocent” and is getting more so.
Ralf’s only hope is to attack the CoC; he would need access to the full range of documentation in order to do so. But chances are that this would not be made available to him; even if it was, there would be a good chance that critical documentation either never existed or had been destroyed. And the “alphabets” would take to position that unless you could prove the samples were switched (now impossible due to the gap in documentation), the sanctions would stand.
Hey folks – you should check this out:#
http://www.radsport-news.com/sport/sportnews_48741.htm
It is in German but you all can get a machine translation – basically it rehashes the T-mobile issue and that Mr. “Teflon” Zabel had doped in the Tour of Switzerland – blah – blah… which was just before the Tour…
Considering that Mr Teflon was a senior founder of the team that was to be known as T-Mobile – it is interesting to note that he is still able to ride – even today – Helps if you got “friends” in the right places…
See – Floyd – your problem is – you ain’t connected! Free Floyd – TdeF 2006 Champion!
been a while, Rant…
And I have to run soon enough…
DNA: It’s the perfect double-edged sword, non?
If (and I hate to say this) Floyd absolutely knows he’s as clean as ‘we’ are, then he would have pushed any button to get it used. (and the opposite we dare not say?)
The ‘white-out’ on forms question:
it simply points to the basic injustice of the system: when white-out is allowed, it excuses faulty lab-ISL compliance, when missing peaks are allowed, they excuse ‘faulty evidence’, and yet the Athlete has the ‘strict liability’ standard, as a sword of Damocles, over their head.
Any Athlete, by definition, whose case is to the point of arguing the CODE 3.2.1 burden (as was Floyd), who cannot show that their IF or ADO **already** had implemented CODE 7.1 and 7.2 (now viciously tightened), to question the ‘departures’ (and the language in the CODE as to the effect of those), should be able to walk.
The ADO must stand up to the LAB, and say ‘we cannot prosecute the Athlete because your procedures clearly departed from ISL and CODE regulations’, and the Athlete should merely have to ensure that the ARB panel understands that the ADO has the FIRST burden/hurdle to defend *in the interests* of the Athlete, and only thereafter, turn from *prosecuting the lab*, and turn towards prosecuting the Athlete.
BTW:
WADA may be illegal (if the CODE means what it does) in funding USADA.
This CAS Floyd case has another defendant in the docks:
RICHARD YOUNG.
His CODE, his USADA prosecution.
I wrote another long one on that…
WADA: CASE, SET and MATCH
http://wadawatch.blogspot.com/2008/03/wada-case-set-and-match.html
BON weekend, les gars!
ZENmud
Is it possible that USADA and Pat (the UCI) have decided not to pull the cart for WADA and the ASO in the prosecution of Floyd? Hanging WADA and ASO out if they don’t pay to prosecute. . . Why else would they decide not to pay the bills for the CAS hearing? Maybe they just decided that he wasn’t worth the effort? Letting him off would really stick a finger in the eye of ASO, the French federation, and WADA. But alas, WADA came to the rescue. Their paying to prosecute the appeal does strike me as illegal if not against the rules – but I am a legal neophyte.
The moral corruption in WADA and cycling is truly breathtaking. Makes me long for management by the United Nations (yikes).
I don’t think the UCI or USADA have any desire to let Landis slip away; I suspect more that each has financial limitations, and when given an opportunity to let someone else hold the bag, is happy to do so.
USADA’s whining about cost rings hollow when one realizes it was their call to run the additional B sample tests, after saying their case was ready to go. Either the case wasn’t ready, and they felt it had weaknesses, or they wanted to hang Landis out to dry on time and finances. Otherwise there was no need to do it.
If it was because the case had weaknesses that became apparent because Landis was actually defending himself, it’s disingenous to claim that the case is/was a slam dunk, or that he was wasting their time and resources.
Even steam rollers run into big rocks they can’t flatten in one pass.
TBV
I’m curious – how much pressure is on the USADA from WADA to win this appeal? Are they really under the gun?
Tygart’s comments, as always, belie an assumption of guilt. A big part of the problem, I think, is that the prosecutors are judged by their “wins”, not by their fairness or judgment. People have gone to the chair for this “convict at all costs” mentality. Of course, one could counter that the defense comes with an “acquit at all costs” approach that balances – but that only works if the initial playing field is even. You’ve all pointed out that it may not be.
Also, the integrity of the chain of custody and the exactitude of the testing methods are not just important – they’re everything. If white-out is used to correct a wrong number in direct contradiction to stated policy or phantom peaks are not properly identified, the case is best thrown out and everyone is left to learn from the experience. You can bet the LA forensic lab learned a lesson from the OJ experience.
Legally, USADA is under no pressure from WADA, as long at it pursues the case with reasonable diligence.
USADA is under a lot of perceived mutual interest pressure — “omerta” if you will — to protect the credibility of The System. Once The System moved against Landis, they have perceived no way to back down without losing credibility, to the wagons were drawn into a circle.
Things often develop into mirrors of that which they are opposed.
I don’t know that the players involved realize there may (and ought to) be differences between USADAs interests and those of WADA.
TBV