About ten days after the Court of Arbitration for Sport announced their decision in the Floyd Landis case, I had the chance to speak for almost an hour with Mike Straubel, the head of the Sports Law Clinic at the Valparaiso University Law School. Valpo’s Sports Law clinic is, to the best of my knowledge, the only clinic of its type in the United States, dedicated to representing athletes who need legal assistance but who don’t have the financial resources to hire an attorney. Among other things, their clients may be embroiled in defending themselves against doping allegations. Professor Straubel and his team of law students have represented a number of athletes, most notably LaTasha Jenkins. They are currently the only lawyers who have actually successfully defended an athlete (Jenkins) in a doping arbitration case prosecuted by the United States Anti-Doping Agency.
In this first part of the interview, Professor Straubel talks about the Landis case. In the the second part, to be published in the near future, Professor Straubel answers questions about other cases and about the how the current anti-doping adjudication system works, and how he would change the system. Given the timing of the interview — just days after this year’s eventful Tour began and all that’s come up before and during the Beijing Olympics — it’s taken me more time than I would have liked to post the interview. And so, we begin…
DR: When I first read the Landis decision, I thought, “Boy, this is a really strongly worded opinion.” It really seems like [the CAS panel are] taking Landis’ legal team to task.
MS: They certainly believed all of USADA’s/WADA’s experts and none of Landis’ experts. And it sounds as if not only the legal strategy and the way in which Landis’ lawyers made their arguments, but the way in which the experts … were aggressive [in their testimony and statements for Landis] backfired, too. I think there was one section of the opinion where the panel took the experts to task for being a little too partisan and a bit too much advocates rather than experts.
DR: It did seem that way. That didn’t seem like that was a typical response, so it left me wondering what, exactly, had gone on in the hearing room. Especially given that during the original hearings, the AAA panel didn’t take them to task for that. Or, at least, not as harshly as this panel did.
MS: No, in fact the first panel in a few key situations sided with Landis, and found some violations of international standards, characterized the lab’s work as sloppy, and this panel didn’t do any of that.
DR: That’s kind of what surprised me. I know that the reputation of Landis’ legal team is that they’re supposed to be some pretty good lawyers. So I would expect that, at the very least, they might land one or two punches. Maybe not significant blows, but I was stunned that really the only thing that they seemed to connect on was pushing back on USADA’s attempt to have the suspension start in September, rather than in January of last year.
MS: Right. It’s hard to tell, but one possibility is that these are American lawyers who sometimes are taught or find that being aggressive works. The arbitration panel has some Europeans, some non-Americans and they may not have taken so kindly to the more aggressive style of American lawyers.
DR: If I recall, Jan Paulsson is from France/Scandanavia and David Williams is from New Zealand.
MS: Right. I think David Rivkin was the other one.
DR: He was the American on the panel.
MS: Yes. I’ve done one arbitration hearing with him. And he was very, very careful, precise and cordial and gentlemanly in the way he conducted the hearing as the arbitrator. So, he may not have taken kindly to more aggressive tactics, also.
DR: So, one thing I’ve been thinking about since the verdict came down is that that Team Landis’ strategy didn’t connect well with the arbitrators. And the way the panel’s decision reads suggests that Landis’ lawyers may have made some rather large strategic errors in how they approached this case. Do you think that’s a fair characterization?
MS: Generally, yes. I guess it goes back to overall being aggressive and particularly asserting that there was some, outright asserting that there was fraud, conspiracy and attacking some of the witnesses – either directly or indirectly in that way. With non-American arbitrators you need to be a little more indirect in saying that, rather than fraud was committed, that, you know, some accidents, missteps took place that resulted in errors in the results. These kinds of simple ways of characterizing might have been more effective.
DR: So, they might have been better advised to have been a bit more diplomatic is what you’re telling me.
DR: And, it seems like that’s a fair point, because, unless you have actual proof of fraud, that’s a pretty serious charge to make.
MS: The panel said a couple of times that there was absolutely no evidence of wrongful doing or fraud or anything that is akin to intentionally doing that.
DR: Unless somebody came forward and said, “We fabricated this document, and we did it because USADA told us they needed a document that said ‘X’.” I don’t know how you’re actually going to prove fraud.
MS: No, you’re not. You know, the discovery and rules of evidence in these proceedings are pretty minimal. It’s not like the discovery that’s permitted in a US court.
DR: It seems like this is rather far removed from what us laypeople think of as justice.
MS: [laughs] Yeah, … the rules are softer, and there’s a lot more leeway in the way things can be done. But the arbitrators have a lot more control over the process than perhaps judges do in US courts.
DR: It seems to me, in reading how the CAS accepted the arguments from USADA, that they’ve really shut down the types of ISL violations that could be shown, on the athlete’s side, to overturn or to contradict an adverse analytical finding. In the case of LaTasha Jenkins, if I understood that case correctly, it was the same kind of thing as in Landaluce, where a person running some of the B sample tests had been involved in the A sample.
DR: And it seems like the only things an athlete is going to be able to use to refute a doping charge is something that obvious. They’re not going to be able to go in and say, “Look, you know, the ISL says you should run this particular test a certain way” because the sense that I got from the Landis decision is that the technical documents and the ISLs are a little squishy in that regard. They said something about, in terms of chain of custody, as long as long as they maintained or followed the concepts, rather than the actual written material, then that was OK.
MS: Yes. They said that the concepts in the technical document by WADA – if they follow the concepts and not the precise wording of it. That does allow for a fair amount of play. … That was troubling, because they said that as long as you followed the principles of chain of custody, that’s OK. And then they placed; they specifically placed the burden on the athlete, Landis in this situation, to show that the lab tech had actually tampered with the sample during any potential breach in the chain of custody.
Well, the purpose of the chain of custody rule is to sort of create an ironclad proof of integrity. And [problems with the chain of custody] – that’s [information that is] almost impossible for an athlete to obtain. You’re not going to find a lab tech who’s going to step forward and say, “Yeah, I tampered with it.”
The World Anti-Doping Code and the International Standards limit the amount of discovery and information that the athlete can obtain. We had a big battle in the Jenkins getting the standard operating procedures of the lab.
DR: From my reading of parts of the code, it appears that they aren’t required to give you that.
MS: No, they aren’t required to. We actually had to really make a strong, forceful argument in order to get the standard operating procedures in the Jenkins case. To their credit, the panel decided, even though the International Standards say they were not supposed to do this, they said they were going to [require the lab to produce their SOPs].
DR: That is to their credit, because if the panel goes the other way and says, “Look, the lab is not required to hand over the SOPs” that really shuts down a lot of avenues that the defense can go down to look for any possible breaches of conduct that might have caused an AAF.
MS: I can understand needing to make a decent showing of need for these documents, some grounds that they could be relevant. But to have an absolute ban on getting hold of the documents, limiting information that you can obtain on discovery, just makes it seem like a black box that you can’t look into.
DR: In looking at the Landis decision, one thing that struck me was that $100,000 penalty that they slapped him with. That could send a chilling message to potential litigants in the future, saying, “Look, you know, if you test positive and you challenge it, not only will we uphold the AAF but we may fine you, as well.” If I were an athlete looking at trying to defend myself in the future, I would seriously question whether I would want to put not only my legal fees at risk, but fees beyond that. Do you think that would have a chilling effect on people defending themselves?
MS: A little bit. I’m not as worried as I originally was, because I look at some of the types of arguments that were made here, and as we talked about earlier, the lack of, perhaps, diplomacy in making some of the arguments. I guess I’m willing to say that it’s a little bit of a unique situation. I would have to advise a client about this possibility and say a really aggressive defense could backfire.
DR: I think that’s kind of the message. You can defend yourself, but there’s a fine line between defending yourself and crossing over into being too aggressive about it.
MS: Right. And I’d have to advise a client, that’s what we’re talking about, how far to go with certain arguments. I think that in most of the cases it’s not going to be a problem. I think it’s going to be a problem in the higher profile cases, rather than just the standard cases.
DR: I saw one analysis of part of the Landis result on a blog called WADAWatch, and the author of that blog has some experience in drafting international treaties, and has a strong interest in the Landis case. One of the observations he made was that with this particular decision, it seems like the Quigley rule has been if not dismantled, kind of close to being dismantled by this panel of the CAS. Do CAS decisions carry the kind of precedent that say a Supreme Court precedent might carry, and do you think that the result in Landis could actually undo the Quigley rule?
MS: First off, as to precedent, if you talk to Matthieu Reeb, the [general secretary] of the CAS, he will deny and take the standard European approach and say, “No, we really don’t have precedents here.” But if you look at the practice, particularly in the US and I think growing out of the European decisions, they really are valuing precedent. So, whether you’re going to have a self-correcting precedent like you have in the Supreme Court, where their decision is going to be superior to or replace a previous decision, it’s going to take a little while for that absolutely to develop, but I think the system will recognize yes, precedent is important, precedent and the change and the evolution of precedent is going to happen in the system. I guess that’s the long answer to saying, yeah, I think precedent is at work in the system. I guess I have to ask for a little clarification from you what you mean about changing the Quigley rule.
DR: If I understand the Quigley rule correctly, I think that was the ruling about 14 years ago that basically said that the rules that athletes are subjected to have to be predictable, that these rules shouldn’t be made on the fly by judicial review. It seems like in USADA/WADA cases, a lot of rules are being made on the fly and interpreted by the arbitration panels. And that leaves the athletes in a situation where they don’t really know what the standards and what the rules are.
MS: OK. Now I understand what you mean by the Quigley rule, because the other rule that Quigley is cited for quite often is the basic foundation of the strict liability doctrine.
The idea of predictability and transparency… is what you’re talking about. A good precedent system does actually enhance predictability, because you can look at the cases and know how the panels are expected to interpret and apply the rules. So when it breaks down is when you first of all don’t have all the decisions available. And that’s the problem with the CAS system. Not all the decisions are available. For example, we recently won a CAS appeal and it’s not been published anywhere yet on CAS’ website or USADA’s website.
DR: I was going to ask you about that. I thought I hadn’t really seen the full-fledged decision on Jenkins yet.
MS: This is a different case. Eric Thompson, a track athlete. The decision hasn’t been published anywhere. We’ve got a copy of it, USADA’s got a copy, WADA’s got a copy, but the public doesn’t have a copy. [Note: About two weeks after this interview was conducted, the Thompson decision was posted on USADA’s web site.]
DR: That’s not much for transparency there.
MS: No. No, and when you have a system that I’ll call flat, where there’s all these arbitration panels rendering decisions, and none of them sits above all the rest and will correct any inconsistencies, then there is a problem, in fact, with predictability. The panel decisions that come out of CAS are all considered to be equal. There isn’t one Supreme Court like there is in the United States that’s going to decide any inconsistencies between them. And that creates a problem with consistency and predictability. So I think there needs to be a bit more of a pyramid structure to this. So, for example, if Landis lawyers looked at his case and then found that there’s rulings from another case that’s exactly to the opposite conclusion on the same exact issue, then you would have another level of court that would reconcile that difference.
DR: It seems like in these kinds of proceedings, once you get to the CAS level, if you don’t like their results, then according to the way I understand it, the next step is to go into the Swiss courts. And that’s only worked in one or two occasions. I think it was the Guillermo Cañas case, where it got sent back to the CAS panel, and they said, “Yeah, OK, so we’re going to decide the same way again.”
MS: The way arbitration is set up is that the government courts, the courts of law, will only review the process. If the process was done according to the basic principles of fairness, they won’t review the outcome. So, if Landis’ people want to challenge the decision in court, they’d have to show some violation of procedural rules or inability to make an argument or bias, extreme bias, by the arbitrators. – as opposed to the decision was wrong.
DR: It sounds like they would have a very high hurdle to go over in order to reverse this ruling.
DR: I’ve seen some talk that Landis’ team might go into the US courts, but it seems like Gatlin did that and he basically got turned away. Do you think that would happen to Landis if he went into the US courts?
MS: Yeah, I think so. He would have to find jurisdiction under the Federal Arbitration act and then argue that there was something just like we talked about, the arguments that would have to be made in the Swiss court – extreme bias of the arbitrators, or procedural irregularities that denied them the opportunity to make their arguments.
DR: Having reviewed the ruling, do you think that the arbitrators came to a fair ruling? Do you think it was the right ruling, or do you think that part of the reason for this ruling might have been their annoyance with the way that Landis’ lawyers had pursued the case?
MS: I guess I’d have to say, based on the rules, based on the way WADA and the Olympic Movement has drafted the World Anti-Doping Code, and the way the UCI set up its rules, that the decision was appropriate. The thing that I could never do is go in there and decide which of the experts is more credible. That, I think, was fundamental or pivotal to the decision. As long as their judgment on the experts was appropriate, then I think the decision was correct according to the law. I do have some concerns about the rules and the law that it’s based on. If [USADA’s] experts were credible, then the decision, based on the way the ISL and the World Anti-Doping Code are written, [then the panel’s decision] is appropriate. But I do, as I’ve said, have problems with the inability to attack the ISL and some of the burdens created by [the CAS panel’s] interpretations of the technical documents.
To be continued …