When I started this blog, I never really imagined how long it would go, or how many posts I would write. This is post number 500. Hard to believe I’ve Rant™ed on for so long. Anyway, on to today’s topics.
Coming Home to Roost
With all the hubbub over the Floyd Landis decision, it would be easy to miss other doings in the world of doping. But in what seems to be the traditional scandal week that precedes the Tour de France, there is also news of the curious character known as “Kyllingen” or “The Chicken”. Michael Rasmussen, the Danish cyclist who woulda/coulda/shoulda won last year’s Tour de France has gotten both bad and good news in the last couple of days. Yesterday, he was handed a two-year suspension by the Monaco Cycling Federation for a series of missed doping tests in the runup to the 2007 Tour.
Today, he was awarded €665,000 (about $1 million US) by a Dutch court in its decision on a lawsuit Rasmussen filed against Rabobank for wrongful termination of his contract. He had sought €5.4 million ($8.5 million US). The judge’s award included the bonus that the Danish climbing specialist would have received had he completed and won last year’s Tour. However, the ruling also said that Rabobank was right to sack Rasmussen. As the Telegraph reports:
While Utrecht civil judge J Sap said Rabobank was entitled to fire Rasmussen for lying to cycling authorities but also ruled that they should have given him two months’ notice because Rabobank “could have or should have” known weeks before firing him that he had lied about his whereabouts.
The moral of the story: It’s bad to evade the vampires. If you do, you’re gonna pay. But if your team knows you’re hiding out elsewhere avoiding them, and they humiliate you and publicly fire you after a scandal blows up, they bear some responsibility, too.
Rasmussen’s ban runs until July 25, 2009. Given his current age, and the UCI ProTour ethics rules that will leave him ineligible to ride for a ProTour team until the 2011 Tour de France is more or less over, it’s unlikely that Rasmussen will ever be seen competing in the Grand Boucle ever again.
Those are the chickens coming home to roost during the now annual pre-Tour scandal week (which is a tradition I’d like to see discontinued).
Rules, Standards and the Law of Unintended Consequences
There’s something lurking in the Landis decision that I suspect the CAS panel didn’t mean to write (or copy and paste). Or if they did, they didn’t think it through. Because the precedent they’ve set has some far-reaching consequences and implications that have a huge impact on anti-doping enforcement in the future.
What’s caught my eye in the panel’s ruling? It’s the idea that the anti-doping labs don’t have to comply with written standards, they merely have to comply with the “concepts” in those written standards. Here’s what the panel wrote:
175. According to the Respondent, the ISL requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody.
…
178. The Panel finds that there was no ISL violation:
• The ISL requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody, not literal compliance with the WADA Technical Documents on chain of custody. In addition, pursuant to the WADA Technical Document on chain of custody, testimony may be used to establish chain of custody;• The Respondent’s evidence and witness statements established that it complied with the “concepts” found in the WADA Technical Documents, such as LNDD 2014, 2015 (the laboratory plan);69 USADA0024 (transfer of bottles from one operator to another).70 The Tribunal accepts the evidence of Dr. Ayotte71 that there is no requirement of a single document, and that so long as each staff person in possession of the bottle is identified, a chain of custody is established;72
…
215. The Panel considers that there is insufficient evidence to establish an ISL violation:
• Pursuant to WADA TD2003LCOC (chain of custody):
“Any forensic corrections that need to be done to the document should be done with a single line though and the change should be initialed and dated by the individual making the change. No white out or erasure that obliterates the original entry is acceptable. ”
• The ISL generally requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody, not literal compliance with the WADA Technical Documents on chain of custody;
• The corrections in the document do not obscure or confuse the identity of the sample nor cover up laboratory errors.
For those who need a refresher, ISL stands for International Standards for Laboratories. Standards are basically written rules that say, “this is the way it’s done.” True?
Imagine, if ISO 17025 (which is one of the accreditations an anti-doping lab must have) says, “On the subject of chain of custody, thou shalt keep exact records and thou shalt do it thusly …”, and if an ISO auditor discovers that a lab doesn’t keep records in the required manner, and in fact the lab is a bit lackadaisical about keeping chain of custody records at all, the lab could lose its ISO accreditation. A defense of “well, we followed the ‘concepts’ in the ISO standard” probably isn’t going to wash if the chain of custody isn’t documented properly. That’s a standard.
Now, on the idea of following the concepts in the standard. That’s tricky, who’s to judge that a lab followed the “concepts” correctly? You’re getting into some rather murky waters when the “rules” become subject to this kind of interpretation. How does one judge whether or not the lab has understood a document’s “concepts”?
In my career, such as it is, I’ve developed training programs for various corporations (among other things). When doing so, you write objectives for what will be presented. An objective that says “the learner will understand the concept of chain of custody” is a bad objective. Why? Because it’s difficult to measure a person’s understanding. Now, an objective that says, “the student will demonstrate mastery of chain of custody record keeping by creating and maintaining correct records as specified in technical document ABC” that’s something that can be measured. You have the requirements in the technical document. You have the records maintained by the student. Comparing the student’s efforts to the standards shows whether or not he or she can perform the task.
Same is true for evaluating a lab’s work. You can’t effectively measure their understanding of a concept. But you can measure how well they’ve followed a specific set of requirements. That’s what the ISL is. A specific set of requirements. Not a set of concepts to be implemented in whatever manner or fashion each individual lab sees fit.
Let’s step back a bit. Remember that WADA was formed, in part, because anti-doping practices around the world were not standardized. Some countries (East Germany before reunification) even used their anti-doping programs as research institutes to determine how to best avoid testing positive for drugs. Others (the US, for one) were said to be too lenient in their application of anti-doping rules. Each sports federation had its own sets of rules and standards and generally speaking, the state of anti-doping enforcement via the IOC and its affiliates was a huge mess, as illustrated by the number of scandals that rocked the sports world in 1998 (Festina was just one of many).
What’s WADA’s main reason for being? To standardize (they use the word “harmonise”) anti-doping practices throughout the sporting world. How do they do that? By establishing the WADA code, the ISL and setting up rules/standards on how the various tests are supposed to be carried out and interpreted.
So, in the example above, the lab might be complying with the “concepts” of the standard while not actually complying with the standard. Imagine technicians who keep track of the chain of custody by making notes on scraps of paper that they then put together when needed to show what’s been where when. Yes, they keep records. No, it’s not as thoroughly or properly documented as the standard requires, and it’s not kept in a single, organized, contemporaneous log or document. And, as an added bonus, some of those scraps of paper could be lost, meaning that some of the chain of custody records have vanished. No problem, as long as someone remembers where things were. Right? Wrong. Our memories aren’t always as accurate as we think they are. According to the panel’s ruling, if a lab kept records on scraps of paper, that would be OK, because they were following the concepts of the rule.
So what’s the big deal, you ask. It’s only chain of custody, it’s not as if this ruling applies to other standards. Well, the camel has gotten its nose in the tent in this case. It’s only a matter of time before the whole camel is inside. It’s not so far a stretch for a future ADA lawyer to argue that, well, the rules in a technical document covering a particular test aren’t to be followed literally, it’s OK to merely follow the “concepts.” Having set the precedent, it’s really only a matter of time before such an argument is used again — assuming that anyone fights a future case, which isn’t a given.
The Landis ruling is a clear shot across the bow for any athlete who may challenge a positive doping test. Follow this route, the panel is saying, and it will not only cost you your own attorneys fees, you’ll be paying a penalty to the anti-doping agency, too, for the “privilege” of being beaten.
Ultimately, this part of the panel’s ruling appears to mean that the rules aren’t rules, they’re merely suggestions. Which means that there are no standards, really. Which brings us all the way back to the situation in 1998. There are no consistent standards, no consistent rules, and anti-doping cases can and will be decided based on differing interpretations of what the “standards” for say, declaring a positive test, are. Or differing interpretations on how to actually perform a test. There is, and will be, no uniformity in how anti-doping practices and prosecutions are carried out throughout the world. We are right back to where we started.
It’s funny, in a dark humor sort of way. Richard Young, in representing USADA and WADA, has completely decimated WADA’s main reason for being. He’s also destroyed any requirement that labs follow specific, written rules and standards. In effect, they no longer exist. An ADA attorney merely needs to convince an arbitration panel that the labs followed the “concepts” or “spirit” or “idea behind” whatever the supposed rules and standards are. Actual adherence to the standards, however, is optional.
Or put another way, with this ruling, the CAS is saying that WADA has utterly failed in its mission to provide clear, uniform practices throughout the anti-doping world. Ironic, given the whole reason WADA came into existence in the first place.
Somehow, I don’t think that the CAS panel considered the implications of allowing labs to comply with the “concepts” rather than the written rules. In successfully arguing that only the “concepts” matter, Richard Young, in his own tenacious pursuit of victory, may have sacrificed WADA’s main mission in order to bring down one athlete.
My guess is that if and when this issue ever arises in another case, it will be interpreted in such a manner as to always favor the WADA desired outcome. If a lab, by merely following the “concepts”, reaches the conclusion that an athlete doped, that will be fine. But if an athlete merely follows the “concepts” he will get dinged for being so sloppy.
In fact, we have seen this. Remember the swimmer some years back with asthma? He filed with the US swim federation for a TUE, but the fed dropped the ball and didn’t pass the paperwork on, so when he tested positive for his meds, he lost his medal. One could also argue the British skier with the inhaler (US version of same brand has trace amounts of a banned substance) was following the “concepts”, yet he still lost his medal.
It seems to me that Richard Young has crafted the rules in such a manner as to leave a lot of wiggle room in them, and then arbitration panels can interpret them however necessary so as to work to WADA’s favor.
This leads me to something I have been pondering the last few days in light of the Landis decision: the “Blood Passport” system. Now I will admit that I am ignorant of the technical details, but it seems to me that this is a pretty vague sort of thing. Unlike the system of the past, where with some substances a certain threshold needed to be reached, the idea with the passport system seems to be that trends over time will be interpreted to determine if a rider doped. Now this is fine for one of the team run programs; if the trends for a rider seem to be suspicious, they can call the rider in for additional testing, talk to him to find out if there is a good reason, even “bench” him until things return to normal, with little to no damage done. But if UCI/WADA sanctions a rider under such circumstances, how will the rider challenge this. There is not one specific test to challenge. It would be difficult to back up the results by additional testing (or to overturn them) because by the time the determination was made there was a problem, whatever PED the rider might have used could have cleared his system, so a negative test some days after a hypothetical S17 would be meaningless. And if there is a problem with tests, the problem might not lie in the test that triggered the doping charges, but with earlier tests used to establish a baseline or trend.
Thus, the NGB or whatever it is that sets and reviews ISL standards should use this case (and some others) to yank the certification. Might this be a possible legal challenge for someone who wishes to be vindicated?
“The Landis ruling is a clear shot across the bow for any athlete who may challenge a positive doping test. Follow this route, the panel is saying, and it will not only cost you your own attorneys fees, you’ll be paying a penalty to the anti-doping agency, too, for the “privilege” of being beaten.”
I think you got this wrong, and you should look at the reasoning behind the award. Your reasoning seems to be completely biased by your professed support of Landis. Perhaps a little more objectivity is needed when reading legal decisions? Your praise for Maurice Suh and the Landis legal team was misguided.
Rasmussen’s award MAY just cover his legal fees….
As for the rest, I think you have a point (regarding the standard and the impossibility of fighting USADA under the current rules).
You know, at some point during this decision someone must’ve said:
“It doesn’t matter what we write, no one of consequence will read it anyway.”
And if we can’t get traction on this outside of this site and TBV, they’ll be right.
tom
Oscar,
Perhaps I should have said, “follow this particular route” or “follow the route that Team Landis took”, instead. I’m still wading through the hearing transcripts. The panel’s treatment of Suh and company in the ruling is pretty harsh. Their decision certainly offers a starting point, with their criticism of they way Landis’ case was presented. At the same time, he is entitled to a present a vigorous defense. But exactly when does it cross over into being too vigorous? I suspect there are some major lessons to be learned here. Trying a similar case in the same way in the future, without learning from this experience, would be a huge mistake.
As for Rasmussen’s expenses, you could be right. I’ve no idea how much his lawyers cost, but I imagine they weren’t cheap.
Tom,
All too true, I’m afraid.
The system is unjust. No kidding.
The lab pack doesn’t prove anything. CAS doesn’t even address this. The eyeball method is good enough because the lab says so. The incomplete lab pack is good enough because the lab says so. The invalid A-test doesn’t matter because the lab says so. The lack of a clear chain of custody is ok because the lab says so. Shoot were becoming redundant.
And there is nobody in charge at ASO or the UCI willing to stand up and say that WADA has no clothes on. Just because we can see that WADA is naked means little to cycling or to public opinion.
There is a very tangled web here. The UCI had to submit to WADA jurisdiction in order to remain part of the Olympics. There are many who hold that the Olympics represent the ultimate athletic competition. Certainly many sports that otherwise are relatively minor (at least in some parts of the world) receive a significant exposure from the Olympics. I think that UCI is reluctant to give up this publicity, especially given their avowed goal of spreading cycling to parts of the world where there is little or no cycling competition. And the fact that cycling is widely perceived as a drug-infested sport figures in here. If the UCI were to tell WADA to take a hike, it would be seen by many as a way of continuing the drug culture.
WADA is interested in continuing in business, so it must talk up the “threat” of drugs to sport and the idea that the international federations have failed to adequately address this threat to justify their existence. The general public sees some of the “scandals” in sports, cycling in particular (in part because cycling is more open about it than other sports) and are willing to believe WADA.
ASO figures in here too, although I am not sure what exactly they are after. Do they think that UCI and WADA have dropped the ball, leading to the events in 06 and 07 or are they simply out for power? It will be interesting to see what, if anything, happens on the PED front in this year’s Tour. If the peleton was as drug-ridden during the Armstrong era as some think, it seems unlikely that the events of the last 2 years would have completely turned things around. So, will a rider or 2 come up with positive tests or will everything come up clean?
ASO may not have been out for power, but they certainly have wound up with it.
It is a little creepy how incestuous all the organizations are and how thoroughly they have destroyed the UCI. Although I concede that it is very easy to blame the UCI for their own downfall. The Pro-Tour, as implemented, was lunacy – and that was obvious before they even forced it on everyone. Their management of the sport has been abysmal. But it is hard to conceive how the UCI would have fallen so far if it weren’t for the sefl-serving actions of WADA and the IOC. I readily admit that ASO should act in self interest, but I can’t see how their actions over the last few years have helped cycling gain market share.
If the peleton were as drug ridden as some think then what is the point of all this? Clearly WADA and the labs are not up to the task. And Floyd has virtually proven that the system is not set up to provide a clean product. So why all this angst? It is nearly a certainty that a few guys will get tossed. Just the statistics regarding false positives make it a near certainty. Even if the peleton were clean (and how can that be?). And WADA’s system does not have provisions for tossing a false positive (especially now that the requirement for a B-sample have been booted).
So this weekend I am going to the local crit series. Screw the Tour.
The “concepts” language comes right from the ISL, not CAS judges
ISL 5.2.2.2
The Laboratory shall have Laboratory Internal Chain of Custody
procedures to maintain control of and accountability for Samples from
receipt through final disposition of the Samples. The procedures must
incorporate the concepts presented in the WADA Technical Document for
Laboratory Internal Chain of Custody (Annex C).
Michael,
To me, it seems that all the angst in certain quarters (WADA and IOC, for example) has more to do with not being exposed for what they really are. Power hungry, machiavellian politicos who care more about their own self-interests than they do about real change and creating a system that truly addresses the problem of doping in sports.
ANO,
Thanks for that. That’s actually worse, in a way, than the CAS judges just allowing such an interpretation. That kind of language means that there are no set standards that everyone has to comply with, as long as they can prove they incorporate the concepts of the various technical documents such language refers to. And, except for some pretty obvious violations (ala Jenkins and Landaluce), it means the ISL can’t be argued in an appeal. Which further diminishes any defense an athlete can put on. I’d hate to be caught up in a case, there’s an infinitesimally small chance an athlete could actually prevail. Thanks for looking that up. I should have done so before I started my post last night. Most appreciated.
ANO, look again at 5.2.2.2. You’re right, the lab is required to promulgate chain of custody procedures that are consistent (“incorporate the concepts”) with the WADA technical document (TD2003LCOC). Then, the lab must comply with its chain of custody procedures. How can the athlete determine whether the lab has complied with its chain of custody procedures? He can’t, because the lab is not required to disclose the procedures to the athlete.
Can the athlete go back to TD2003LCOC and argue that the lab’s chain of custody procedures violate TD2003LCOC? Not exactly. The lab is not REQUIRED to keep a chain of custody that complies with TD2003LCOC. The lab IS required to develop chain of custody procedures that incorporate the concepts of TD2003LCOC, and then comply with those procedures.
So, the athlete is forced to argue as follows: “I don’t know what the lab’s procedures are for chain of custody, because the lab won’t tell me. But I DO know that the procedures have to be consistent with TD2003LCOC. And when the lab did X, Y and Z, then that MUST have violated the lab’s chain of custody procedures, because it would have been IMPOSSIBLE to write a set of chain of custody procedures in a manner that is consistent with TD2003LCOC, unless those chain of custody procedures PROHIBITED the lab from doing X, Y and Z. This is the kind of argument that the rules forced Floyd Landis to make.
Yes, this is a tortured and indirect way to have to make an argument. Not only that, but certain arguments are precluded altogether.
Imagine for the moment that you work for a large company, and the company requires the office manager for each of its offices to write a rule that the office employees must follow to guard against the office being robbed at night. You find out that your Denver office was robbed, and your boss asks you to investigate. The Denver office won’t tell you the rule they adopted to protect the office from being robbed, but they assure you that they followed the rule. Is there any way you can tell if they broke their rule? You investigate, and you find out that the office personnel never locked the office, that they employed no security guard, that they left the windows open, that they’d hire just about anybody to clean up at night, and so forth. Even with all of this, you can’t prove to your boss that the Denver office broke its rule. There are just too many possible rules that the Denver office might have had in place to protect the office, and you can never prove to your boss that you’ve considered every one of these possible rules.
The situation regarding lab chain of custody under the WADA rules works something like the above example. The WADA rules tell athletes that in order to challenge a doping test, the athlete has to show that the lab broke its rules. Then the WADA rules prohibit the labs from showing their internal rules to the athlete. Then the WADA rules PRESUME that the labs have obeyed their rules. It’s a Catch-22 worthy of Joseph Heller.
Now ANO, we KNEW all of this prior to the CAS decision. Here’s how the CAS decision has made things even worse.
If you look through TD2003LCOC, you’ll notice that there are some guidelines for lab chain of custody rules that a lab could conceivably implement in a number of different ways. But other guidelines are specific. For example, TD2003LCOC sets forth guidelines for how a lab is supposed to correct mistakes it finds in lab documents, and states that “No white out or erasure that obliterates the original entry is acceptable.” So on this point the rule is clear and there’s no wiggle room: when the lab creates its binding guidelines for chain of custody, they have to prohibit white out and erasures that obliterate the original entry. You cannot “incorporate the concept” of prohibiting white out by allowing white out. Right?
Even the AAA arbitrators in the Landis case agreed with Landis on this point. The French lab used white out to correct its documents. The AAA arbitrators said no, you can’t do that, that’s a departure from the International Standard for Laboratories (ISL), and now you have to show us that this departure did not cause the finding against Landis.
The CAS decision disagrees on this point, not just with me and Landis, but also with the AAA decision. The CAS quoted the provision I cited above from TD2003LCOC, but then went on to say the following:
“The ISL generally requires laboratories to comply with “concepts” found in the WADA Technical Documents on chain of custody, not literal compliance with the WADA Technical Documents on chain of custody … the corrections in the document do not obscure or confuse the identity of the sample nor cover up laboratory error.”
In other words, the CAS is stating that it doesn’t matter whether the lab violates the rules, so long as it complies with “concepts” found in the rules. This is disturbing in so many ways, it’s hard to describe. Since when is it OK to break the rules, so long as you arguable comply with concepts found in the rules? It would be as if I ran a red light, and could defend myself by saying that I tried to slow down and then took care not to hit anything as I careened through the intersection.
Remember, the athlete doesn’t get this defense — he’s not exonerated if he follows “concepts” in the anti-doping rules. If there’s dope in the athlete’s system, the athlete is guilty, regardless of how it got there and notwithstanding all of anti-doping “concepts” that the athlete might have followed. In fact, NO ONE has the right to break the law and expect to get away with it by obeying “concepts” in the law.
ANO, forgive the lengthy explanation. Hopefully you can see why the CAS decision is so radical on this point.
Larry,
That’s a fine piece of writing there. I sit at your feet.
ooooh, you don’t want to sit down there
Larry (or anyone),
The question then becomes, how did Landaluze ever win his case? It was a testosterone case. And it w as won on the chain of custody, right?
tom
I don’t think defects in chain of custody in the typical case are likely to lead to a wrong test result or false positive. I can’t see invalidating a test result because someone used whiteout or used a number instead of their initials. In this case there was no doubt the sample was Landis. So I don’t think that the difficulty in challenging chain of custody compliance is that critical.
The Landaluze case was not a chain of custody case, but involved the requirement that the same lab tech cannot conduct the A and B test.
I believe an underlying issue is whether or not an ISL violation on something like chain of custody, or whiteout can be used to establish a burden flip, making it the ADA’s problem to prove mistakes didn’t cause the AAF.
I observe both panels ducked this question by refusing to declare an ISL violation, perhaps out of fear where doing so would lead.
In all cases, the concluded first, there was no ISL violation, then second, “but if there were” it would not have caused the AAF. However, the burdgen of proof for the second part was left to Landis to prove, since no ISL violation had been declared.
I think this is a fascinating sleight of hand. The panel is allowed to say the purported violation didn’t cause the AAF, because it’s under the presumed-correct set of rules because there wasn’t an ISL violation.
I suspect one pressure to create the hard line of rulings in the case was because of not wanting to ever get to a flipped burden of proof in the case. Working from “there will be no burden flip”, they can’t allow a single ISL violation anywhere, and don’t.
TBV
So, where does this leave us? The contortions the CAS went though seem to me to subvert the very principles of the anti-doping movement. If any legal entity, USADA or USA Cycling wanted to seek judgment on this award, it seems to me that this lack of standards put real doubt into whether an actual “arbitration” has taken place.
Here’s what the application for an international license says – how USA Cycling gets power over the athlete, in part: “…I agree to submit to drug testing and to comply with and to be bound by the UCI anti-doping regulations, the World Anti-Doping Code and its International Standards to which the UCI anti-doping regulations refer as well as the anti-doping regulations of other competent instances as foreseen by the UCI Regulations, the World Anti-Doping Code, or the U.S. Anti-Doping Agency (USADA), provided such regulations comply with the World Anti-Doping Code….” Seems to me that reference to “International Standards” is kinda important. The final proviso seems pretty relevant too. While the Code means what WADA says it means, shouldn’t the plain meaning of the words be important too? Shouldn’t the Code be construed, for purposes of this contract, to harmonize and clarify the various rules?
I am also thinking that this action, if ultimately enforced by USA Cycling, is an administrative action by the Federal Government. USA Cycling is an NGB, acting under federal statute, so this seems like state action. Would enforcing such an award through their internal regulations be enforceable if it exceeded the Chevron-deference “arbitrary and capricious” standard?
Damn. I really, really want to see a real court construe this Code.
I seem to recall that the first panel found that whiteout and some other clerical mistakes constituted a violation of this ISL, but that they related to the TE ratio test which was thrown out anyway, and so couldn’t have caused the doping finding AFF based on the IRMS. In doing so, they assumed that USADA had the burden to prove the violations didn’t cause the AFF.
Defects in documenting chain of custody per se may not cause a false positive, but such defects can cause doubt, either that the sample in question was not subject to tampering, inadvertent degradation, or that perhaps it is the wrong sample. I personally would be very suspicious of someone trying to say “Trust us, we didn’t screw up” if the documentation was poor. In addition, if the lab in question cannot maintain proper COC documentation, it casts some doubt on its other abilities.
Now it may be in this particular case, none of the above applies, and LNDD is able to prove in a satisfactory manner that the sample was Landis and the was no opportunity for tampering or degradation. But COC issues should not be dismissed out of hand as mere technicalities.
To pick up William’s point, a well-documented chain of custody might shed some light on an inadvertent mistake — like leaving a sample at room temperature overnight when it should have been refrigerated — that could lead to sample spoilage, which could, conceivable cause an AAF. But other than that, or that the sample is in an unguarded location where it might be tampered with, I’m not sure CoC documentation will prove much. Poor CoC documentation could also leave such issues open, too, if there are large gaps in time that can’t be accounted for.
One thing to note, Arnie Baker found that by WADA’s own measure for spoilage (free T or free E in the sample, by percentage), Landis’ sample exceeded WADA’s standard and should not have been analyzed further. Such a thing could happen by a sample not being stored correctly. Whether that could cause the AAF has been a matter of debate elsewhere, but by WADA’s own rules, if the sample shouldn’t have been tested, one could argue that testing it caused the AAF. Proper CoC documentation could show that such an event occurred. Poor documentation might leave such an event as a possibility, but with no definitive answer, especially if testimony more than a year and a half later is allowed to substitute for written documentation. What we remember versus what we might document contemporaneously could be two different things (memory has a way of playing tricks on the human mind).
All that said, I’d much rather that Landis or any athlete be able to prove innocence based on other means than an ISL violation related to CoC. If the case were thrown out because of CoC violations, many who believe Landis guilty would have just said, “Oh, he got off on a technicality. He was guilty, but the lab screwed up.”
I would like to have seen Landis been able to prove that he really was clean on the date in question. But given the various obsticles placed, both by the nature of the alleged offense (an alibi is not possible, for example) as well as by the WADA system, one has to employ whatever means are availble.
I recall that it seemed that at least one of the errors made with ID numbers matched another rider’s sample number. This does at least raise the possibility that the wrong sample may have been tested, or that the test results were mis=matched. Perhaps that issue has been dealt with adaquately, but this is another area were proper record-keeping helps to clarify things.
And I’d bet that all those who complain about people getting off on “technicalities” would not hesitate to use them if they ever were on trial.
Technically, it was legal to own another human being 232 years ago today. Technically, our government was chosen by the People “according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Technically, until the early 1960s, the police could take you in a back room and beat a confession out of you . Technically, the state can’t establish a religion, but “in God We Trust.” Technically, you have a “penumbra” of federal rights of privacy, but there are certain things a woman can’t talk about with her doctor.
And technically, there are only three lawyer jokes. The others are true stories.
8-0, so a guy gets a bill from his lawyer, and he’s thinking, I haven’t consulted my lawyer for anything in months. He opens the bill, and it’s for $90 for 15 minutes time. The bill reads “Crossed the street to speak to you, but it turned out you were someone else.”
8-0, so an engineer dies and goes to hell. The engineer is greeted personally by the Devil, who says, “Mr. Engineer, we are SO happy to see you! We’ve never had an engineer down here before.” And the Devil proceeds to put the engineer to work on a few projects.
A week later, St. Peter goes down to hell for his monthly meeting with the Devil. St. Peter can’t believe the changes in hell since his last visit! The whole place is air conditioned. Everyone is driving around in electric cars on brand new roads. St. Peter meets the Devil in the Devil’s brand new offices, equipped with high speed internet and all the latest conveniences.
St. Peter gets straight to the point. “Last week you received an engineer down here. That was a mistake. You need to release him to me to go to Heaven.”
“No way!” replies the Devil. “Just take a look around here, at all the improvements. And the engineer has only been at this a week. Can you imagine how much better things are going to get down here?”
St. Peter is livid at this. “Devil! All engineers go to heaven! You know the rules.”
But the Devil just grins at St. Peter.
“Devil!” sputters St. Peter. “If you don’t return the engineer to me THIS INSTANT, then I’m going to go back to heaven and . . .”
“And WHAT?” sneers the Devil. “Sue me? I don’t think so. Where will you find a lawyer?”
TBV, the AAA panel DID declare an ISL violation based on the white out and other non-forensic changes. See paragraph 285 of the majority opinion. However, the AAA majority concluded that USADA met its burden of proving that the violation did not cause the AAF. See paragraph 289.
Ano, I can understand your position that chain of custody problems should not invalidate an adverse analytical finding against an athlete. Few people believe in elevating form over substance. We don’t want to see the guilty escape punishment because the authorities screwed up the paperwork. And I think it’s safe to say that a fair number of the Landis supporters (here and on TBV, for example) would agree with you. They have always focused their efforts on the substantive rules, on trying to prove from the science that Landis did not dope (or that the science failed to prove that Landis doped).
But there’s a problem in focusing exclusively on “substance” in a case like this and ignoring form. None of us were present in France when these tests were conducted. Even the Landis witnesses to the tests of the “B” samples, who were present at the lab, were limited in terms of what they could observe, in the questions they could ask, etc. We can’t get hold of the Landis urine samples and test them ourselves. We can’t play around with the LNDD test equipment to see if it works properly.
All we have to go on, all we have to evaluate, is the paper record produced by the French lab.
We can derive some amount of comfort if the paper record is produced with due care, in accordance with recognized international standards. If the paper record is sloppy, if there are missing pieces, if (in the words of the AAA arbitration panel) there are “non-forensic changes”, then we have reason to worry.
You might say, let’s ignore problems with the “form” of the lab paperwork, and only focus on problems of “substance”. But the distinction between form and substance is not always clear. Let’s take as one example the “column switch” argued by the Landis team at the CAS. One of the key parts of the lab’s equipment is a “column”, a long thin tube through which the sample must pass before the sample is analyzed. According to the lab’s paperwork, the lab used the wrong kind of column for its analysis. At the CAS, USADA claimed that this portion of the paperwork was mistaken, and that they really used a different column to perform the analysis. Are we dealing here with a problem of “form”, or “substance”? Obviously, the parties did not agree on the significance of this error in the paperwork.
But the “column switch” issue points to a problem that goes beyond the issue of the column itself: it goes to whether the lab’s paperwork can be trusted. The lab’s paperwork is documenting countless pieces of information: internal lab policies, machine settings, data points and the like. Even under the best of circumstances, it would be impossible for an athlete like Landis to independently verify (and if necessary, correct) all of this information. All that a person in Landis’ position can do is to perform a LIMITED investigation of the accuracy of the lab’s paperwork, and then ask us to make an OVERALL determination based on this limited investigation whether the lab’s paperwork can be trusted.
Think about this from the standpoint of what you’d do in your own life if confronted with a situation like this. Let’s say that a friend received a lab report indicating that she needed a dangerous and expensive medical procedure, and (because you hang around sites like this one!) she asks you to take a look at the report. Well, you’re not a leading medical expert, it’s hard for you to evaluate the “substance” of the report. But you notice that the date on the report is wrong. Your friend’s name is spelled incorrectly. Key information on the report is crossed out and written over. Hell, there’s a MUSTARD stain on the report. What would you advise your friend to do?
Maybe get a second opinion?
Normally, science offers us the ultimate protection of independent verification: if a scientist reports a significant new finding in a journal, other scientists will read the report and try to repeat the first scientist’s results. In other words, everyone is checking everybody else’s work. In medicine, we usually have a similar protection, the ability to seek a second opinion. We don’t have very much like that in athlete drug testing: for the most part, the lab needs to get the test right the first time. This makes it even more important for the lab to follow good form as well as good substance, from the beginning. Because for an athlete like Floyd Landis, there is no ability to ask for a second opinion.
So, Ano, I would argue the following: drug testing cases turn on the question of whether the lab can be trusted. We don’t have the ability to verify and test what the lab has done, or even to verify everything written in their paperwork. If the athlete can find enough errors in the lab’s paperwork, EVEN IF THESE ARE ERRORS OF FORM AND NOT SUBSTANCE, then the lab’s right to be trusted is lost.
8-0, I’ve pretty much determined that Landis cannot have his arbitration case reviewed in federal court — the only court with jurisdiction to hear his case is in Switzerland (where the ADAs have never lost). In other words, the Federal Arbitration Act is not applicable here. I’m not saying that it’s difficult to get a federal court to review these arbitrations, I’m saying that no federal review is possible.
The reason for this is that these doping cases are adjudicated under a special set of AAA rules. I will try to document this more formally when I can, but I think these special rules cut the federal courts out of the picture altogether, treating these arbitrations as if they were foreign (Swiss) in origin.
If Landis is to have his day in federal court, he’s going to have to do something other than challenge the arbitration decision itself. He’ll need to follow a route something like Gatlin plans to do (I think Gatlin’s case will be based on ADA violations of the Americans with Disabilities Act), and find some set of applicable federal rules that were broken by the ADAs. I’d probably start with the two Olympic-type statutes I’m aware of (Amateur Sports Act of 1978 and the Ted Stevens Olympic and Amateur Sports Act of 1998), and also consider the legal obligations imposed on an organization like USADA that receives federal funding.
I bet that the creative minds in Suh’s office are considering a lot of possibilities that I have not thought of.
By the way, the case law I’ve seen indicates that USADA and USA Cycling are not considered to be governmental agencies for constitutional purposes, so the 5th and 14th Amendment guarantees of due process do not apply to them.
This legal review process is depressing. I’m not seeing any terrific options for Landis. On the other hand, I think that the Suh legal team has been thinking for a long time about how to get the federal courts to review what the ADAs do, and it will be interesting to see what they come up with.
Thanks Larry. I do think there will need to be some action to have a foreign arbitral award made valid in the US. I would expect the awardee, USADA, to request judgment on a court pleading of arbitration and award IF they think they REALLY want the $100k. I’m not sure you can take an award document from Swtizerland into a sheriffs office and ask for them to execute on property of the defendant. Someone, somewhere, is going to need a writ of execution.
Some further process is required. And when that happens, there will be the opportunity to oppose in a US court. The grounds will be narrow indeed, but I do think the FAA applies here (as well as perhaps a thing recently pointed out to me, the “New York Convention” – 9 USC s 201 – A UN treaty on the recognition of foreign arbitral awards.) Floyd’s team will have to show that the very essence of arbitration – fairness and impartiality – were absent. A tough road to climb. But it isn’t insurmountable, and I have real questions about what really happened at the CAS in this regard.
Can you share with me the cases that say USADA and USA Cycling aren’t state actors? I think this is import – I’m thinking 42 USC 1983 and/or a Bivens action are worth consideration by Suh and company.
Know why lawyers don’t get bitten by sharks? Professional courtesy.
8-0, I’ve also seen reference to the New York Convention. You’re right that if USADA tries to enforce the CAS award in the US, they probably have to go to court (not sure if it’s state, federal or USADA’s choice of court), opening up perhaps the tiniest possible avenue to challenge the arbitration. It’s possible that USADA will not go to court, but will have USA Cycling refuse to grant Landis permission to do anything until the debt is repaid.
The closest case I’ve seen on state actors is San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522 (1987), where the Supreme Court held that the USOC is not a government actor to which the Fifth Amendment applies. The court held that it didn’t matter that Congress granted USOC its corporate charter or provided USOC with funding. But note that on this point the court split 5-4, and you might find something useful in the dissent. I’ve seen nothing to indicate the status of USA Cycling or USADA in this regard.
Also see the law review article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1150863, concluding that USADA is not normally a state actor. The same author has an earlier article on the same general topic at http://www.stjohns.edu/media/3/cc4383052b744c119b6f6e5f222c56d4.pdf.
You might also see Jacobs v. USA Track & Field, 374 F. 3d 85 (2d Cir. 2004). This case holds that the applicable set of arbitration rules for USADA cases are the AAA “Supplementary Procedures” and not the usual AAA commercial rules.
I haven’t done anything more than Google research. I’m lazy lazy lazy.
*Thank you* Larry. You may wish to peruse Mary Decker Slaney v. The International Amateur Athletic Federation and the USOC, 244 F. 3rd (7th Cir, 2001). Posner joined the opinion, but didn’t write it. I will pull up your cites as well (and thank you also for the previous CAS Law Review article.)
I also noted the reference Judge Hue pointed us to in USADA’s brief regarding award of costs. It is here:
R65.3 The costs of the parties, witnesses, experts and interpreters shall be advanced by the parties. In the award, the Panel shall decide which party shall bear them or in what proportion the parties shall share them, taking into account the outcome of the
proceedings, as well as the conduct and financial resources of the parties.
I’m guessing it was the conduct part the CAS objects to. I’m really afraid someone suggested Caesar’s Wife has been Up To Something. Hence, the “smite” button from CAS.
I can’t afford a Lexis or Westlaw account. Poor poor poor. 🙁
Larry,
For a guy who’s “lazy lazy lazy” you’ve been writing some pretty darn good posts today. You and eightzero are doing some very interesting work. I’m looking forward to seeing the end result.
On the issue of documentation:
I work in the Medical Records Profession and we have two sayings that might be appropriate for this situation. “If it isn’t documented, it wasn’t done,” and, “In God We Trust, all others must document.” Basically the same principle outlined by others already, memory is faulty.
Adam, it is apparent you do not work at LNDD or a WADA lab. We’ve just been told that is IS ok at those places (apparently a Medical Records Profession”al enterprise) to not write things down, and memory is sufficient.
And here’s some fuel for the Next Rant: USA Cycling’s application for an international license contains this boilerplate:
I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY USA CYCLING, INC. (USAC), ITS ASSOCIATIONS (THE UNITED STATES CYCLING FEDERATION (USCF), NATIONAL OFF ROAD BICYCLE ASSOCIATION (NORBA), NATIONAL COLLEGIATE CYCLING ASSOCIATION (NCCA), U.S. PROFESSIONAL RACING ASSOCIATION (USPRO), AND BMX ASSOCIATION (BMXA)), AND USA CYCLING DEVELOPMENT FOUNDATION (USACDF), AND THEIR RESPECTIVE
AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY “RELEASEES”), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS DOCUMENT IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I
UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
Sorry for the all caps, but disclaimers like this have to be “conspicuous.” Assumption of risk, indemnification, and release of liability all have interesting consequences in law. (And before anyone asks, yes, sometimes this kind of release is effective, and some times it is not. *For sure* it is effective in discouraging litigation.)
But the application warns signers that they are “giving up substantial legal rights.” All fine and good, but there are some rights you can’t give up. While the courts and the law generally prefers arbitration and settlement of disputes extra-judicially, there are instances this is just not appropriate.
On the other hand, next time you’re curious, go take a peek at the consumer credit agreement you signed when you accepted a credit card. Credit is a highly regulated convenience at the state and federal level. But each and every one of us has given up our right to litigate a dispute with the credit card issuer – they all have arbitration clauses in them. AFAIK, they are valid.
Remember what that proceeding at Pepperdine looked like? That could be you next. Imagine VISA saying “well, we have a picture of the creditor using his card from a security cam. It’s him. But we really can’t explain how we know it’s him.”
Go forth, try to rent a car without a credit card. Then tell a lawyer joke to the clerk when you get the keys. *sigh*
Hi Rant:
500? Makes me feel de-Viagra’d (JOKE: Never ever needed a ‘pill’… heh heh)
Brother, I wrote this and posted it yesterday, and I’d like to think you’d ‘join the bandwagon’ and help get these Agencies to post their ‘legal expenditures against Landis’…
“WADAwatch calls upon WADA, as an organization whose budget comes from contributions, to reflect long and hard on its own need to modify its homemade system, whose foundation presents such excessive doubts,
***and to render to the public an accounting of its legal expenses used to affirm the USADA Decision against Landis. USADA also, should reveal how it spent what was published in l’Equipe as between three and four million USD.*** ”
Spread the word,
Ww aka ZENmud
(good call on the ‘concepts’ part, I had enough highlighted, and Part THREE should be online by Friday…)