Bouncing Back

by Rant on September 28, 2008 · 24 comments

in Floyd Landis

To continue the saga of TBV, there’s a post that he put up that gives the story of his accident (with an amusing quote from Monty Python and the Holy Grail). By the sounds of things, he’s one very lucky dude to be alive. TBV’s story is quite scary. I’ve had some crashes in my time, but never anything quite like that. No excessively close encounters of the automotive kind for me. Some quick thinking and good bike handling kept TBV from suffering greater injuries. Planning ahead and understanding how to react in an emergency, coupled with knowing how to handle your bike can be real life savers.

And speaking of bouncing back, attorneys for Floyd Landis filed a lawsuit in the US District Court in Los Angeles on Friday, seeking to throw out the CAS panel’s ruling in his case. Bonnie Ford has a very detailed story, posted over at ESPN.com. Among the many interesting tidbits to the story is that USA Cycling and USADA are holding Landis’ racing licence hostage until he pays the $100,000 fine imposed by the CAS.  As she tells us:

The lawyers filed the motion on the grounds that the three men on the panel — including the arbitrator Landis chose — should have disclosed conflicts of interest that could have led to bias in their decision.

[…]

The core of Landis’ argument this time is that the three CAS arbitrators who heard his case come from a limited pool of candidates who often switch roles, sometimes serving as panelists, sometimes serving as lawyers representing clients in front of those panels — thus giving them an incentive to rule favorably for each other.

Richard Young, the attorney who prosecuted the Landis case for the US Anti-Doping Agency told Bonnie Ford:

“Because CAS is a Swiss body [headquartered in Lausanne, Switzerland], if you want to attack a CAS award, the vehicle is the Swiss Federal Tribunal,” Young said. “As far as I know, everyone who has gone outside of that has been unsuccessful.”

I’m not sure how many athletes have ever tried to challenge a CAS award outside of the Swiss courts, but one recent example would be Justin Gatlin, who tried to have the suspension imposed on him for testing positive for synthetic testoserone (sound familiar?) reduced earlier this year, so that he could attempt to qualify for (and perhaps compete in) the Beijing Olympics. The US court that Gatlin appealed to decided that they had no jursidiction in the case, which means that the original suspension imposed on Gatlin still applies.

Before the courts consider any of the arguments about whether the Landis ruling should be thrown out, the court will have to determine whether there is any legal authority for them to do so. Clearly, Landis’ lawyers feel that there must be some grounds to do so. Otherwise, filing the lawsuit would be a waste of time and money.

At this point, no copies of the paperwork filed on Friday have surfaced for public consumption. Once the document(s) are available to the public, we will be able to see just how strong an argument the Landis legal team has. Bonnie Ford apparently has seen the document, as she quotes several brief passages in her article.

If Landis’ lawyers can make a compelling argument as to why the US courts would have jurisdiction to hear and decide on his complaint, we may well be in for a new chapter in this tragedy. I certainly hope that the ongoing battle will have no ill effect on Floyd’s ability to sign with a team for 2009, and on his ability to actually race. If he’s not able to have the $100,000 fine thrown out, he’s going to need a good contract, with a certain amount up front, just so he could get his racing licence.

Exactly when the US District Court might act on Landis’ case has not been announced. Update: Although it’s not clear when the US District Court will issue a ruling, an update at Trust But Verify notes that initial appearances by attorneys representing each side in the case are scheduled for 1:30 p.m. on November 3rd. TBV also notes that the case has been assigned to District Judge Percy Anderson and Magistrate Judge Carla Woehrle.

This is definitely adding a new chapter to what is already shaping up to be a very interesting year in the world of professional cycling. If Landis wins, or if he at least gets the $100,000 penalty thrown out, it may be a measure of vindication.

“I think I’d have some sense of exoneration — maybe not what I had hoped for,” he told Bonnie Ford on Friday. Indeed. It wouldn’t be what he’d hoped for, but at least it would be something.

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William Schart September 28, 2008 at 9:46 pm

Assume for the moment that the US court decides it has jurisdiction and hears the case and finds in Landis favor. The would still be the problem of enforcing this judgement outside of the US. US Cycling could be compelled to issue a license, but forcing UCI to do so is a horse of a different color. And then ASO is a totally different species entirely.

Of course, his plan may be simply to get the case into the US system, where different rules prevail and he may be able to force the various parties for produce documents that they have been able to keep secret up to this point. And then hope that said documents provide something which will vidicate Landis. But at this point, I am not sure what remains available in the way of documentation (and other evidence) that hasn’t come up in one or the other hearing; then there always is the potential for documents to disappear or “never exisited”.

Hopefully, this is not just Landis making a hopeless, last-ditch effort to redeem himself and the legal team has a viable strategy.

Rant September 28, 2008 at 10:03 pm

Remember, too, that the team rumored to be on the verge of offering Floyd a contract is Health Net-Maxxis, owned by Momentum Sports Group. They haven’t done races outside North America, or at least, not many(with new sponsorship, that could change, of course).
I’m not sure if this is part of a greater overall strategy, or whether the main goal here is to relieve Floyd of the $100K obligation to USADA. I guess we’ll see how that plays out over time.

Luc September 29, 2008 at 1:15 am

Rant,

Do you not think it’s about time that Floyd gives up on this and concentrate on riding? I can only see him doing more damage to himself. Like you said, the team he is signing with is only racing in North America and by raising this issue again all means of road blocks will be put in front of him to prevent him racing in Europe. I may disagree with the judgement against him but the best way at this point to get back at the establishment is to get back on his bike and win.

On a related note, why are there still ‘leaks’ coming out of the Operation Puerto damaging cycling? Many athletes were implicated in that scandal and yet it is only cycling that mud is being slung at and at measured intervals, Schleck being the most recent. Something strange about that whole situation. Either they open the dossier with all the names brought to the forefront or they bury it once and for all.

Jean C September 29, 2008 at 4:00 am

I think that Floyd is only trying to avoid the $100.000 fine.

Soon he will be available to race but no GT because of the 4 year ban.

if eventualy US court breaks the USADA decision probably the WADA decision would stay outside US! If not, Floyd should have at least a french hearing which was probably delayed then canceled with USADA and CAS decisions!

Rant September 29, 2008 at 7:18 am

Luc,
Beats me why there are still leaks coming out about Operacion Puerto. And likewise why the only stories seem to focus on cyclists, when other sports were said to be represented, as well.
I don’t know what will be accomplished by this latest twist, other than perhaps having the $100,000 fine lifted, and perhaps exposing exactly how much the lawyers and arbitrators in the CAS system work in different capacities with each other on different cases. It does present the appearance of being unfairly stacked against the athletes, though from what I’m told, the lawsuit doesn’t make any specific allegations of wrong-doing by any of the arbitrator/lawyers involved Landis’ CAS hearing. Perhaps that’s the biggest part of the story. Landis’ lawyers were only recently able to determine the history (because the CAS only recently made such information available) and find extensive links between a number of arbitrators who were working in different capacities on a number of cases — including during the time that the Landis case was going forward to the CAS. That discovery appears to have raised a fundamental question in their minds.
It’s interesting to note that from the news stories, it appears Floyd may have a different legal team for this challenge. And my sources tell me that the lawsuit takes on a whole different tone and approach compared to how his CAS case has been characterized.
But there is a time to know when to say enough and just get on with things. And I wonder just how much the lawsuit will cost versus how much it will cost to simply take a deep breath and pay the (in my opinion excessive and unfair) fine.
Jean,
Avoiding the $100,000 fine is certainly a big part of this. But I’m confused about the French hearing you’re referring to. In November 2007, the AFLD conducted the hearing they’d postponed earlier in the year. And they imposed a ban on competition in France until January 29, 2009. Which, as you pointed out to me at the time, meant a ban from all sporting activity and not just road cycling. (No mountain biking, no marathons, etc.) So is there another proceeding that was put on hold? As I said, I’m not sure what you’re referring to.

Jean C September 29, 2008 at 9:58 am

Rant,

Sorry to be unclear.

Landis’ case happened under 2 sets of rules: WADA and the “old” french AD system.

The french AD system was satisfied with the results of WADA system so they give up their procedures.
But if the current WADA decision is canceled (indirectly by USADA) by a US justice action so probably the french AD will reopen the Landis case, it would be probably the same with WADA.
So potentially more trouble for Landis who could be barred to race in case of being part of a PT or Continental teams which not allow rider with unsettled doping case to race.

I hope to be clearer.

Rant September 29, 2008 at 10:25 am

Jean,
I think I understand your point now. From what I’ve read and been told, the lawsuit seeks to overturn only the CAS decision. But that result would not overturn the original AAA decision. One possible result would be that the CAS would have to hear the case over again. Or that just the $100,000 fine is thrown out. Either way, the AAA judgment from the May 2007 hearings would still stand (as would the suspension up to January 29, 2009). So I don’t think that any new case in France or by WADA would be necessary. Depending on how fast the US District Court rules, this could go on up to and beyond the end date of Landis’ current suspension.

snake September 29, 2008 at 11:33 am

Was there any precedent for handing out an added fine at the conclusion of CAS arbitration ? Or was Floyd the first lucky recipient of such a treat ?

Rant September 29, 2008 at 11:40 am

Snake,
From my understanding, Floyd was the “first lucky recipient” of such an award. There is precedent for requiring one or the other side to pay all or part of an opponent’s fees. Given that fees were not among the issues that the panel was originally chartered to decide (neither side listed fees as part of the issues they wanted a decision on in their initial filings), this seems to fall outside that precedent.

Michael September 29, 2008 at 3:23 pm

Another turn of the screw.

Why did WADA release the information regarding the arbiters and the cases that they served on? Apparently, Landis’ case is based upon the information that WADA released, showing what we all already knew: the arbiter pool is grossly incestuous with people working and getting paid by both sides of the system.

Very odd of WADA to display a moment of transparency.

William Schart September 29, 2008 at 8:35 pm

Maybe the strategy is to simply: overturn the CAS decision and resultant $100k fine, revert to the Malibu decision and resume racing when the ban imposed then runs out. Given what I can glean about Landis’ personality from what I read (perhaps a risky endeavor), I wouldn’t put it past him to decide “I can live with the guilty verdict but the fine was piling on and I’d be willing to invest even more than the fine to do away with that.” Unless someone in ponying up the bucks. Maybe this new legal team is working pro bono because they figure they have some winning angle and the resultant publicity if the win will be good.

But, much as I’d like to see Landis vindicated, I think that probably it is time for him to cut his losses and get on with his life.

One of Jean’s points raises to me a question: if the Pro Tour is dead, what is the status of any ban on participating in Pro Tour events, or is it a ban on riding for a Pro Tour team?

Rant September 29, 2008 at 9:28 pm

Michael,
Actually, it wasn’t WADA releasing the information, it was the CAS from what I understand. They’re slowly making past decision accessible to the public. In doing so, a number of the connections between the various players are coming into focus, at least for those who (like attorneys and their staff) are willing to put in the research time. BTW, sorry your comment got caught in limbo.
William,
That is an interesting question. I think the ProTour is like a character in Monty Python and the Holy Grail. Remember the scene where everyone are putting their dead into the street and one person who’s being put out says, “I’m not dead, yet.”? The ProTour isn’t completely dead. And so, the ProTour’s code of ethics isn’t completely dead, either. The ban is on ProTour teams from hiring a “convicted doper” for an additional two years after he/she has served a suspension.
Though I haven’t seen it written anywhere, I suspect that any Pro Continental teams employing such an athlete would not be invited to participate in ProTour events. If you’re not employed by a ProTour team, or not on a Pro Continental team invited to ProTour events, you won’t get to ride. Now, if the ProTour does go the way of the dinosaurs, one could presume it’s code of ethics would, too. And if that were the case, someone like Floyd could come back into the pro ranks and compete in ProTour events immediately.
All of this begs the question: Just how is it that David Millar was back in the fold so quickly? Did the code of ethics come after his bust (I think that was the case), or did he get some sort of special deal?

Matt September 30, 2008 at 8:53 am

Rant, I was wondering the same thing (about David Millar)…seems HE was able to quickly jump back into the peleton after ONLY the 2 year ban. It seems the Pro Tour has added the additional 2 year penalty with no due process (ok, you got a 2 year ban from WADA, thats good enough for us…we’ll add 2 more years on the end of that). Seems hardly fair…as it is effectivly a 4 year ban, which for most athletes is pretty much a lifetime ban due to the rather short timespan one can maintain in the pro ranks.

And how is it that Ricco only got 20 months? What the hay? I thought WADA only had a 2 year ban? (and this after he repeatedly cried his innocence, before FINALLY admitting his guilt under grueling questioning by police). The sentencing sure is a mystery…I think they (WADA) secretly spin a great wheel of fortune in some backroom to decide an athletes penalty. A lot seems to have to do with whether you bow-down to the system. David Millar accepted his penalty and ‘saw the light’, and is now a great anti-doping advocate. Whereas Floyd is still fighting the (good?) fight. But I don’t see much chance of him making it back into the pro ranks till he admits guilt and gracefully accepts his penalty (which I just don’t EVER see happening). I sure hope Floyd’s new strategy yields some positive outcome, as I’d sure like to see him back in the peleton as the man with something to prove. But I won’t be holdling my breath.

Jean C September 30, 2008 at 10:48 am

Millar was caught before the agreement on the 4 year PT ban.

Ricco got 20 months because he has collaborated with WADA.

Many athletes are in favour of a lifetime ban in case of “strong” doping. Maybe Rant could meet Carolina Klüft and have a nice interview on that subject. Working and great pleasure of eyes are not incompatible!
http://newsimg.bbc.co.uk/media/images/41117000/jpg/_41117560_5kluft-getty416.jpg

Rant September 30, 2008 at 11:31 am

Jean,
Thanks. I thought that Millar may have been caught before the additional PT ban. I’m always open to interviewing people. Maybe the next time I’m in Europe, such an interview could take place.

Luc October 1, 2008 at 7:55 am

Hi Rant,
Matt mentions Ricco’s 20 month ban. I am also a little disturbed that he is trying to get a reduced ban (not sure if he has been given one yet) after his denials and, as far as I can see,not fully cooperating. After all, his room mate Piepoli was also implicated. Now that we are on the subject of the Italian riders, did anyone else raise an eyebrow at their performances at the world road race. 3 italians out of the top 4. Hmmmm. Sella and another caught doping in the Gyro after superior rides in the mountains. Ricco and Piepoli caught in the Tour after phenomenal mountain rides. And then first, second and fourth in the world championships. Not to mention how the tifosi push there compatriots up the mountain. Maybe I am becoming too much of a cynic. And Lance wants to ride the Gyro?

Michael October 1, 2008 at 9:46 am

Luc, you are too much of a cynic.

But you might be correct.

Jean C October 1, 2008 at 5:17 pm

AFLD by Bodry has offered to Lance the possibility to test his 6 samples of 1999 to clean his name. He can even test its in an another lab.
What will do Lance after promoting transparency about his return?

Luc October 2, 2008 at 12:44 am

Looks like the trolls are back. http://sports.yahoo.com/sc/news?slug=ap-armstrong-doping&prov=ap&type=lgns.
Jean C, the point Lance makes is that the past stuff is dead and gone. It’s the past. The transparency that he is referring to is the present. Comparing apples to apples, oranges to oranges. What purpose would it serve to show that he did dope at this stage. Strip him of the 99 title and give it to the second place winner. Oh yeah he doped too. As a matter of fact most everyone in that era according to one source (was it you) doped. So I get what LA is doing now and he basically is saying if you (TdF) can guarantee that everyone else is clean with your blood passports etc, then I will show my blood for all to see and will win the Tour at 37 years old. Apples to apples.

Morgan Hunter October 2, 2008 at 7:41 am

—>In the interest of maintaining a “fair spin” – Let us look at the article Luc points us to:

AP – Oct 1, 4:37 pm EDT

French anti-doping chief challenges Armstrong

Hours after the French anti-doping authority challenged the seven-time Tour de France champion to agree to retest his 1999 urine samples to see whether a French newspaper was right when it reported they contained a banned substance.

The agency proposed the rider “prove his good faith” by agreeing to retesting of his samples from the 1999 Tour, the first in Armstrong’s record string of seven wins.

Bordry told L’Equipe he wanted to act as “a referee” between the newspaper and Armstrong.

But Bordry seemed to already have an opinion, speaking to the newspaper of samples “which contain erythropoietin (EPO).”

The proposal renewed debate about one of the most contested questions surrounding Armstrong: whether he was clean when he won.

Armstrong has always insisted that he was, and his new team, Astana, is hiring a drug-testing expert, who will post Armstrong’s drug testing results on the Internet, to try to silence doubters

The French agency said it was acting in the interests “of objectivity and of justice and to allow the cyclist Lance Armstrong to cut short the rumors concerning him, if they are unfounded.”

But only “remains” from six “B” samples have been kept from Armstrong’s 1999 Tour, the French agency said.

So even if the “B” samples came back positive in new testing, there are no “A” samples left against which to compare results.

Armstrong rejected the notion, lashing out at the agency’s leader, Pierre Bordry.
“Two years ago I agreed to have all of these issues aired and decided by that tribunal, but WADA and the French Ministry refused,” Armstrong said.

“If Mr. Bordry would now like to re-examine the past, he must start with presenting the issues of the misconduct of the French laboratory, the French Ministry, and WADA before a proper tribunal.”

“That research was the subject of an independent investigation, and the conclusions of the investigation were that the 1998 and 1999 Tour de France samples have not been maintained properly, have been compromised in many ways, and even three years ago could not be tested to provide any meaningful results.

—>It would appear that perhaps if Mr Bordry would like to “offer himself up” as a referee – then it would be best to START BY ADDRESSING the actions of ALL involved.

—>It appears to this reader that Mr Armstrong was more then willing to “prove his innocence” TWO YEARS AGO!

—>IS MR BORDRY also ready referee the misconduct of the French laboratory, the French Ministry, and WADA before a proper tribunal?

One small point – this reader would very much like to know – when parts of this “article was first written – we may know and accept that IT ways placed in its present form by AP – Oct 1, 4:37 pm EDT.

William Schart October 2, 2008 at 1:57 pm

There is no way any rider can prove he is riding clean, or rode clean in the past. If Armstrong was to agree to have his 1999 samples tested and the results did not indicate any PED use, there are those who would say “Well, he just had such a good doping scheme he is able to avoid detection” and others would say “The samples are so old the results are meaningless” and perhaps there is something in the latter thought. And of course, unless the testing is very open and transparent, there is always a possibility that the testing/results would be manipulated to produce a desired result. If the tests are done by some lab of Armstrong’s choice, they will accuse him of buying off the lab.

This strikes me as sort of a publicity stunt. Challenge Lance, knowing full well he will not agree, then use that to cast aspersions on him. A situation which would be difficult for Armstrong to win.

While his claims of having been the “most tested rider” is perhaps a bit of hype, is certainly is true that he was tested many times as either the stage winner or GC leader, and perhaps the add “random” test too, as well as any OoC tests and testing at other events he rode in. If he did dope, they had there chance to get him, and maybe he was clean, despite all the innuendo that has bandied about. These races are over and done with and it does absolutely nothing for the sport to devote so much energy in attempt to nail Armstrong, or indeed any other rider.

Also, isn’t there a 7 year statute of limitations in effect that prevents taking official action against riders after that time period has elapsed? If so, 1999 is officially out of reach.

Cub October 2, 2008 at 3:41 pm

Didn’t the TdF organizers say that Astana would get in to the 2009 race unless they have a scandal before then? If Lance’s 1999 urine samples were re-tested and declared positive or even simply suspicious, that would probably be a big enough scandal to keep him and maybe the whole Astana team out of next year’s race.

Seems to me the one and only point of re-testing those samples would be to keep Lance from racing in France again. But maybe I’m stating the obvious, as usual.

William Schart October 2, 2008 at 9:22 pm

Cub raises an interesting point in passing – what if Armstrong’s test result(s) are merely “suspicious” and not actually positive. Note that there is no official standard for “suspicious” so it is easy for anyone, official or otherwise, to say that any given result is “suspicious”. And it would be correspondingly hard to refute any such charge.

Morgan Hunter October 3, 2008 at 1:49 am

William, Cub,

(tic)- I am shocked! Shocked I say – that you both would think that Prudhomme and the rest of the “governing bodies” would” lower themselves to such underhanded techniques – as to “create” a “controversy” concerning Lance and Team Astana – with the future intent to “keep them out!”

William – you said it in a nutshell – “There is no way any rider can prove he is riding clean, or rode clean in the past.”

Lets face it – it is merely a not so subtle variation on the “concept” of proving yourself “innocent” when you are accused. Apparently a QUIRK of French law.

As far as I’m concerned – IF SOMEONE ACCUSES ANOTHER OF ANYTHING – it must be also the Accuser’s job to show proof of guilt! – The last time I voted on anything – I did not vote to live under this loaded form of pseudo law. I pity the French – for buying into this loaded nonsense.

Cub – (gg) – Would those ASO’s do anything so underhanded?

I especially “loved” how this “new” piece of “news” is how LeEquipe is being presented as a legitimate non-partisan player in all this – ESPECIALLY since LeEquipe is OWNED BY ASO……..But that shouldn’t concern anyone….right?

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