From Ken comes this new addition to the conversation:
In case this may have been lost in the shuffle, I would like to redirect EVERYONE’s attention to the law review article authored by Mike Straubel and linked from the Rant interview with him. [Rant: To give credit where credit is due, I first read the article through a link at Trust But Verify.]
The article, written in 2005, is essentially an anticipation of issues being presently raised by Floyd. It does not answer all questions but is as nearly as good as it gets with regard to “one-stop shopping” in a well compiled background in understanding Floyd’s present case.
Two other very basic things I would ask everyone to consider :
(1) Keep in mind that the CAS is neither a judicial nor legislative body. The fact that CAS (or one of its rules) says that CAS has the authority to do something is not conclusive of its authority to do that.
In fact while many courts (comment Bill?) will probably do almost anything to AVOID taking jurisdiction of a matter, the CAS view is probably just the opposite. “Sure we have the authority, just ask us.”
Arbitrators (or their organizations) typically do NOT have authority over things such as appeal or enforcement of an arbitration award, which are, by law, outside the scope of an arbitration agreement and require some recognizable external authority such as a court order or judgment.
(2) In his federal filing Floyd does NOT get to argue (and is not arguing) that the CAS decision was wrong.
GAME OVER, CASE CLOSED, MOVE ALONG – THERE”S NOTHING TO SEE HERE.
Yes, the CAS decision was probably sloppy and/or wrong. But, procedurally, we do not get to look back to correct those errors.
That contrasts the defined structure of legal decisions (typically trial, appeal, supreme court) with discussions in blogs or newsgroups, where some minute detail can take a few gaziillion exchanges to resolve (assuming that it is resolved).
What Floyd is now arguing is that the CAS cannot avoid an “appearance of partiality” and its award cannot stand.
Under this standard the Court does not (and cannot) look at the decision itself. But basically, it can say “there is an appearance of impropriety here that requires throwing this award out.”
If I had to provide a layman’s analogy it would be that of how a fastidious mother might deal with her infant dropping toast on the floor, “butter side down.” It may very well not be contaminated (“5 second rule” as recognized in the 9th Circuit), she does not (and cannot) test it for actual contamination, but because of the “appearance” of the possibility of contamination, she prudently throws it away.
Ken –
Agreed that the Straubel article is the best single piece available on the questions raised by the new Landis case.
As you may know, I am a practicing lawyer (not a litigator, not a sports law lawyer), so I’ve tried to help out here as I thought appropriate when legal matters were being discussed. However, I’ve backed away from this role of late. I was flabbergasted by the two arbitration decisions reached in the Landis case. These decisions were so surprising and (IMHO) so far removed from the requirements of the applicable WADA and UCI rules, that I felt that these cases were not being decided under the fundamental principles we lawyers use to “find the law”. I felt that in the first decision, the arbitration panel effectively ignored the applicable rules and went straight to their own quasi-scientific determination of whether Landis doped. I felt that in the second decision, the panel (1) decided the case strictly on the basis of the testimony of the ADA experts, and (2) punished Landis (primarily with the $100,000 fine) based on some notion that the Landis legal team was required to keep the stridency of its advocacy within some undefined limit.
But I digress.
This is not primarily a forum for discussion of law issues, so I think it is incumbent on us to write in a way that is not only understandable to non-lawyers, but that best puts legal issues into the proper perspective for non-lawyers. I think you’ve satisfied the first criteria, but I’m concerned about the way you’ve set up your discussion here. I think you’ve jumped too quickly into the substance of the Landis case.
Let’s take about three steps back and look at the big picture of the Landis case.
The AAF (the adverse analytical finding — the declaration by the anti-doping authorities that Landis doped) has been upheld in arbitration proceedings. Those arbitration proceedings are now final — there is nothing further that Landis can do in arbitration to challenge or appeal his AAF. The practical effect of the AAF is twofold: Landis was prohibited from racing professionally for 2 years, and he’s required under the terms of the CAS arbitration proceeding to pay $100,000 in legal costs to the U.S. Anti Doping Agency (USADA).
As you’ve pointed out, the CAS is a private agency, not a governmental body. Like any private body, the CAS lacks the power to enforce its own decisions. For example, Landis might decide to ignore the CAS order to pay $100,000 to USADA, and the CAS has no independent power to force Landis to pay. So, in order for a private arbitration decision to be binding, the arbitration system needs to be backed by governmental power. This is the essence of statutes like the Federal Arbitration Act, and international treaties like the New York Convention — under these statutes and treaties, the winning party in an arbitration proceeding can go to court and get the court to enforce the arbitration decision. These statutes and treaties are all conditioned on the arbitration decision meeting certain standards, as we don’t want the government to enforce arbitration decisions that are grossly unfair. But these standards for fairness are MINIMAL, as we also don’t want the courts to effectively be required to re-decide the arbitration case.
So … in my effort to put this case into greater perspective, this is the first point to note: in the new Landis case, the relevant arguments that Landis can make are limited by the Federal Arbitration Act and/or the New York Convention. I think that Landis may effectively be limited to the following arguments: (1) the composition of the CAS arbitration panel violated Swiss law, (2) the composition of the CAS arbitration panel violated the terms of the contracts signed by Landis that provided for the CAS arbitration process, (3) the CAS arbitration panel did not have the power to issue the arbitration ruling, and (4) the CAS decision violated fundamental rules of the public policy of the United States.
Let’s take a brief diversion and discuss what we mean here by “public policy”. For those who think that the Landis case was wrongly decided, it might seem that the Landis arbitration decision DID violate fundamental rules of public policy. For example, it might seem like fundamental public policy for the rights of someone like Landis to be decided by a truly neutral “judge” of the case. However, whenever the law refers to fundamental rules of public policy, the intent is to refer to the most basic and fundamental rules of society. The reference here to “public policy” is very similar to what we might think of as “basic human rights”. So as an obvious example, a U.S. court would not enforce an arbitration decision that would require a person to enter into involuntary servitude.
The problem with invoking “public policy” in the Landis case is that there are a number of public policies that support enforcement of the Landis arbitration decision. One of these policies is to support freedom of contract (at least where the bargaining positions of the parties to the contract are not grossly unequal). A second such policy (evidence by the Federal Arbitration Act and other acts of government) is to encourage arbitration as a means to resolve private disputes. So I don’t think Landis would succeed if he tried to get a court to review the CAS arbitration decision on public policy grounds.
OK. So hopefully, this is at least one piece of the “50,000 foot” view necessary to see the Landis case in the right perspective. The next topic for discussion, I think, is the question of jurisdiction: assuming for the moment that Landis’ argument falls within the very narrow grounds for review under the federal arbitration act or the NY Convention, does a U.S. federal court have the power to hear this case?
Ken, do you concur with my summary so far?
Larry – Dam!
Don’t take this the wrong way – but you be sexy when you talk like this! Thanks for “explaining” – for us non lawyers.
I find the last two interviews personally interesting – from the perspective of someone who is reading about something that is completely foreign to my own knowledge.
I really appreciate your efforts at putting “legalese” into everyman language – I really appreciate and marvel at the philosophical methodology behind the functioning of “creating law.”
You blow my mind at how subtle and delightfully clear your explanations are.
There is one small problem with the last two offerings Rant has given – They are “exclusive” to such a degree that most of us non lawyers are placed into non interactive mode – that of mere listeners.
My own personal hope is that Floyd gets some breaks – maybe actually runs into individuals – involved in these processes – with some sense of “fairness” – but I am not holding my breath. If I learned anything from actively watching the unfolding of the Landis case – it is that in the world of cycling – the participating athlete has no chance at getting a “fair hearing” – nor is there an actual judicial body that is involved in any of these proceedings.
Lest I may be giving the impression that I feel so frustrated and powerless that the only logical thing for me to do is “walk away” – let me clearly and directly state – they ain’t getting rid of me that easily! I may realize no fair play and justice – BUT the one thing they cannot take away from me is my “voice!”
Having said this – I look forward to the further discourse you and Ken seem to be having.
Morgan, thanks!
I’d love to see the courts tackle the substance of the Landis case. But I doubt it’s going to happen. Courts are conservative institutions — not conservative in a political sense, but conservative in that they’re not crazy about shaking up the status quo. They’re also conservative in that they’re not eager to claim new responsibilities, such as (for example) the responsibility to review anti-doping convictions of U.S. athletes.
I AM serious about the U.S. policy to encourage binding arbitration of private disputes. When I first started practicing law, it could take years to get a case heard in court, that’s how overcrowded the courts used to be. To cure this overcrowding, the government made a concerted effort to get parties to resolve disputes out of court, and private arbitration is a big part of this effort. Having succeeded in contracting their “business” to managable levels, I doubt that the courts are looking to crowd their dockets with disgruntled losers of arbitration proceedings.
To succeed here, Floyd has to show that he’s been obviously and aggregiously screwed in a way that’s unusual even for commercial arbitration. Floyd’s main argument here is that it’s unfair for CAS arbitration panels to consist of lawyers who also represent ADAs in CAS arbitration, and for USADA to have been represented by a lawyer who also serves on arbitration panels. This “rotation” is evidence of bias, and according to the Landis team, the arbitrators needed to disclose this potential for bias prior to serving on the arbitration panel. It’s a good argument. Unfortunately, this “rotation” seems to be typical in commercial arbitration. I doubt that a U.S. court would condemn this “rotation” and thus open up a ton of commercial arbitration to reconsideration.
I’m not an expert … but from what I’ve read, the kind of bias that might impress a U.S. court is where a lawyer-arbitrator has an existing or pre-existing relationship with one of the PARTIES to the dispute. So, for example, if one of the CAS arbitrators had previously represented USADA in a recent arbitration, the arbitrator would have to disclose that relationship. I did not see any such relationship alleged in the Landis court filing.
Anyway … I’ve skipped ahead a bit in my analysis, mostly to try to respond to Morgan’s interest in the substance of the case.
Like Morgan, I have rather been reduced to a lurking spectator here, as the legal niceties here are much beyond me. However, I have today had 2 thoughts which might have some relevance.
One: In the last few years there has been some discussion regarding treaties and other international agreements which might subject (primarily) US military to the laws and legal systems of countries they are serving in. There are those who feel this is a bad idea, as it could subject troops to legal action without the usual protections provides by the Constitution, for following legal orders. I bring this idea up, not to debate it, but because there are some similarities to the Landis case, in that he was perhaps “tried” by international organizations without protections provided by the US legal system. Larry, you mention the institutional conservatism of courts, but there are instances where courts have taken on new issues. Whether or not a court would be sufficiently “activist” to take this case on, I won’t judge.
Two: The idea of “public policy” has also been discussed, and as Larry discusses above, one public policy advanced has been the idea of using arbitration rather than the court system to resolve case as much as possible. If this policy is to be advanced, it seems to me that people need to see arbitration as an fair system and not one “stacked” against the little guy in favor of the big organizations.
Well, we will see what happens as this unfolds.
William, those are good points.
Regarding U.S. military personnel being made subject to local laws in the countries where they are located … remember that ordinary U.S. citizens are always subject to the jurisdition of local law when they travel outside of the U.S. This jurisdiction is based on a person’s physical presence in a particular country. (The rule exempting U.S. military personnel from such jurisdiction is an exception to the general rule.) In contrast, to the extent that the Landis case is governed by non-U.S. law, this is because of the terms of his USA Cycling license and not because of his having been physically present in other countries. We can discuss whether and under what circumstances two people can choose the law of a foreign country to govern a contract, but that choice is quite different from travelling in a foreign country and becoming subject to that country’s laws.
Your second point about the fairness of arbitration is a good one. To be certain, the law can set different standards for when an arbitration decision can be challenged in the courts. There IS such a standard set in the Federal Arbitration Act, and unfortunately for Floyd, it is not a strict standard. (There is a separate standard in the NY Convention — the treaty for enforcement of foreign arbitration awards — and arguably it is even less strict than the standard found in the Federal Arbitration Act.) Congress passed the Federal Arbitration Act, and if the standard is going to be changed, Congress is going to have to do it. All the courts can do is to interpret the standard passed by Congress — and of course if the standard is unconstitutional, then the courts can reject the standard.
The question of financial compensation was never arbitrated and yet somehow CAS believed that such a finding was necessary. Did the USADA submit any request for compensation, to include as part of the arbitration?
It seems funny to me that upon appeal, suddenly Landis was deemed responsible for a larger penalty than originally decided in the USADA arbitration hearing.
Is it normal for arbiters to create findings that exceed the argument being arbitrated?
Now I understand why contracts that I see often include mediation and exclude the option of arbitration.
Larry
Backing up to your summary –
I have entered this almost exactly the opposite way from you. I paid some attention during the earlier portion of the case and even watched portions of the AAA hearing, but in the interest of time, relied heavily on the analysis by others for my understanding.
But now that the case has shifted to issues controlled by precedential law, I am in a much better position to analyze and comment with what may be some degree of accuracy.
You said that I “jumped too quickly into the substance of the Landis case.”
No question, I jumped in fully and completely upon learning of the Landis filing.
Now if you are saying that others who have been previously discussing the case may have difficulty with this sudden change of the status (and focus) of the case, I understand, but I am beginning at the beginning for me.
I am the one who wrote the stuff starting with “Let me expound briefly on what I think I know about the arbitration procedures involved” published here with other interspersed comments resulting from an email exchange.
From the beginning it was my intent to keep things in “layman’s terms” as much as possible but without losing sight of significant factual and/or legal details.
For purposes of present discussion, the first hurdle is, as I wrote above, getting folks out of the “how does this wrong decision get corrected?” mindset.
For example I was asked to review the ‘Wiki Defense 2.0,” a request which I politely declined because, right or wrong, that has little relation to the the present status of the case.
Now back to your question. Yes I mostly agree with your summary. I would add a couple of things though. Arbitration is considered valuable for the reasons you cite, but not in the interest of valuing speed over fairness or accuracy. There is also a public policy concern related to all the others and acknowledged by the Supreme Court. Because arbitrators have completely free rein to decide the law as well as the facts and are not subject to appellate review, courts must scrupulously safeguard their impartiality.
I have set out at length (here and elsewhere) that I DO think the US court has jurisdiction to hear Floyd’s motion and the reasons why. I have looked at the statutes, Floyds motion, USADA protocol, UCI rules, CAS rules, and relevant
case law. That complication is unavoidable.
Yes, the issues Floyd can raise are limited. But he can (and has) raise anything allowed by the Federal Arbitration Act AND perhaps also raise any issues allowable under the CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS which I have typically shortened to NYC (for “New York Convention”)
There are others issues involved that are also worthy of discussion.
Can he get a jury trial? If he can, is it likely to be beneficial or detrimental?
If the award is vacated, what then?
Michael, I can’t point to the precise rule, but I know that the CAS arbitrators have the power to award costs to one party or the other. I think that BOTH parties asked for an award of costs in their briefs, though I also understand that this issue was not argued during the actual hearing.
DR, I will go along with Prof. Straubel’s discussion of the FAA and the NYC — he seems to consider the jurisdiction issue to be an open point.
I can see strong policy arguments for ruling that the FAA does NOT apply. If the FAA applies, this opens the door for multiple national courts (not just U.S. courts, but the courts in other countries) to each claim jurisdiction to vacate CAS awards. Granted, the U.S. federal courts have a strong factual basis on which to claim jurisdiction (parties are U.S. parties, and the CAS hearing was in the U.S.), but who is to say that (for example) the French courts might see an equally strong basis for French jurisdiction (the race was in France, Landis was present in France for the race, the testing was performed in France) and come to a different result than the U.S. courts?
The possibility that a CAS decision might be challenged in multiple national courts, with different outcomes on a country-by-country basis, is not an attractive scenario. If what we want is an international system of sports law, where anti-doping findings (as well as findings supporting the rights of an athlete) are respected across national boundaries, then we’d need to respect the CAS choice of Swiss law and agree to live with the more limited national rights provided under the NYC.
Moreover, if the primary basis for FAA jurisdiction over the Landis case is that the CAS hearing was held in New York “¦ well, it would be a shame if the CAS concluded that all such hearings need to take place in Switzerland from this point forward. That would simply make the process more costly and less convenient, and might prevent less wealthy athletes from bringing CAS appeals.
I will admit that, personally, the Landis court filing is not nearly as interesting to me as the original case. Even if the FAA DOES apply here, the issues that can be litigated are sharply limited. I think the case boils down to whether the arbitrators were required to disclose to Landis that they also argue cases before other CAS panels, and that Richard Young also serves in the same kind of dual role. The question goes to the issue of potential bias. I think that the argument is compelling, but is ultimately not a winning argument, as I think that this kind of “rotation” is common in commercial arbitration.
If you’ve read my stuff here or at TBV, you know that I have been very critical of the two arbitration decisions. But the arbitration is now over and done, and consequently the legal examination of the substance of the Landis case is complete, at least for the time being. What’s left to examine is the fairness of the arbitration process itself, not on the substance of the findings made there, but on procedural grounds. To be honest, this is not as interesting to me. It appears to me that from a procedural standpoint, the Landis arbitration was about as fair as you’d see on average in any commercial or consumer arbitration. I think it was incumbent on the Landis team to argue that the CAS arbitration fell far short of the standards of fairness that prevail in U.S. arbitration proceedings. Otherwise, the court cannot side with Landis without also challenging the fundamental fairness of commercial arbitration in general.
My best bet at this point is that the court will duck the FAA/NYC convention, and will grant summary judgment to USADA on the ground that the Landis filing fails as a matter of law under either the FAA or the NYC.
In any event “¦ I am enjoying your give-and-take with M over at TBV.
On the issue of Landis’ right to a jury trial “¦ oooh boy, I haven’t thought about this issue in a long time. Seventh Amendment? Distinctions between actions at law and in equity? Examination of whether an agreement to binding arbitration is effectively an agreement to waive a right to a trial by jury? There’s a law review article on line that seems to argue that the Seventh Amendment is inapplicable to disputes over arbitration clauses under the FAA, see http://www.accessmylibrary.com/coms2/summary_0286-17482311_ITM. This is a complicated issue that would require more legal research than I feel like performing! But I think that Landis would want a jury trial, since juries would be far less concerned than judges about whether a pro-Landis verdict could adversely affect the commercial arbitration system.
I have no clue what would happen if the CAS award is vacated. My best guess is that this question would be governed by the contract(s) that provided for binding arbitration in this case. My best guess is that we’d look at the contract(s) to see what would be the rule if the CAS appeal had not taken place. However, Landis had a contractual right to bring such an appeal, so probably we need to look at what the contract(s) would require in the event that Landis had requested the CAS appeal and the appeal had not yet taken place. This would mean that the parties could re-do the CAS appeal, if it is still timely to do so “¦ or perhaps Landis could claim that the USADA-CAS time to grant him this appeal has now expired, meaning that the AAA award should also be overturned. Beats the heck out of me, but my best guess is that if the CAS award is vacated, either the parties do the CAS thing all over again or else the AAA proceeding is overturned and Landis’ AAF is overturned as well.
Could not a court vacate the CAS decision and thus leave the Malibu decision in place? Maybe I am not using the correct legal terminology here, but hopefully you know what I mean. The court could say that the CAS proceedings were potentially biased. so they don’t count, but since (As I understand) the Malibu decision is not being challenged here, if the CAS decision is overturned, then things could revert back to the initial decision.
At any rate, there have been in effect, three penalties leveed against Landis: he has been DQ’ed from ther TdF win, banned from racing for a 2 year period, with perhaps an additional ban from whatever is the descendant of the Pro Tour, and now the $100k fine. Since to all intents and purposes, the 2 year ban will be up by the time the racing season starts in 2009, the only things Landis could stand to gain by overturning the case is reinstatement as winner, full access to all levels of racing in 2009 and/or cancel the fine. But I don’t think that a US court would have the power to enforce either the UCI and/or ASO to reinstate Landis and winner. The extra 2 year ban if sort of an ify thing, as we don’t know how or if this will be implemented in the absence of the Pro Tour. Canceling the fine would be the easiest action to take, and a US court certainly would have the authority to compel USAC to grant Landis a license, but again, if he wanted to race abroad, things could get sticky. Things could get sticky if UCI or ASO wanted to sanction riders who might compete against Landis in US races under such a scenario.
WS, I’m honestly not sure what happens if a court vacates the CAS decision. But given that Landis is entitled to a CAS appeal under the UCI rules, I don’t see how the original Malibu decision could be allowed to stand as the final word on the case. Either Landis gets another shot before the CAS, or USADA loses the case for failure to give Landis a fair hearing before the CAS.
If USADA loses the case, then Landis has an argument that he’s the 2006 TdF winner, and I can’t even begin to imagine what would happen next.
Great news: CIO will try to detect CERA in blood samples of Beijing. The Lausanne’s lab will do the testing.
More: http://ap.google.com/article/ALeqM5jIO_zxbrX-Wpy-_J3Tk_yvTOjq9wD93M9BBO
Jean,
Thanks for the info about the IOC testing for CERA. Unfortunately, when I tried that link, it gave me an error. However, this link I think pulls up the same story. One thing to note, however. My experience is that AP stories on Google eventually age out and won’t be displayed.
That being the case, here’s an alternate link to the Times Online, if the one above doesn’t work.
Rant,
Sorry a 4 was missing at the end of my link but you already have found the good link.
Finally, AFLD is doing a good job with their TDF testing. All was not possible to do in time but their work would be more deterrent than the usual.
Despite the lack of UCI biopassport information they have been able to catch more riders than was able to do UCI.
Larry
You wrote:
“WS, I’m honestly not sure what happens if a court vacates the CAS decision. But given that Landis is entitled to a CAS appeal under the UCI rules, I don’t see how the original Malibu decision could be allowed to stand as the final word on the case. ”
By analogy think “cert. denied.” I believe the result would be the same as when the Supreme Court decides to not hear a case from a lower appellate court. No Supreme Court ruling means the lower ruling stands, unaffected.
“Either Landis gets another shot before the CAS, or USADA loses the case for failure to give Landis a fair hearing before the CAS.”
I think the first option is a possibility, but not without potential problems.
For reasons stated above, I do not see how the second option would come into play.
“If USADA loses the case, then Landis has an argument that he’s the 2006 TdF winner, and I can’t even begin to imagine what would happen next.”
I don’t think a USADA loss extends nearly this far.
DR, I strongly disagree that vacating the CAS order would be like “cert. denied”. The Supreme Court has discretion in 99.9% of cases whether to choose to hear an appeal, and the Supreme Court’s decision not to hear an appeal (cert. denied) says nothing about the soundness of the decision being appealed.
In contrast, Landis and other athletes have a right under contract to a CAS appeal. If the CAS decision is vacated, I would read this as a ruling that USADA et. al. breached their contract obligation to provide Landis with the opportunity for a CAS appeal. That breach of contract cannot be allowed to stand without some remedy for Landis.
Look at it this way. Let’s say that Mr. Smith loses his case in U.S. District Court, and the U.S. Court of Appeals affirms the decision of the District Court in all respects, then the Supreme Court reverses the decision of the Court of Appeals. That does not reinstate the decision of the District Court.
I agree that a do-over before the CAS is problematic. Such an appeal would be costly, and would delay resolution of the case to a point that might be unreasonable. Plus, CAS would have a strong institutional tendency to decide the second case the same way it decided the first case. But if a CAS do-over is not an adequate remedy for Landis, what then? Money damages? I guess that monetary damages are possible, but it’s hard to see how such damages could be computed.
I agree, it’s not clear what would happen if Landis wins this case … what remedy do you think should come into play?
Well, as to money damages, I’d imagined it wouldn’t be too hard to come up with an estimate of lost wages and perhaps winnings for the 2 years he’s missed. I served on a civil case where an economics prof was brought in as an expert witness to do basically that (although since the case involved an oil field worker, the issue of winnings was not involved). You’d have to make some assumptions,and I’d expect perhaps a “battle of experts” with differing ideas on how Landis’ career might have played out over the last 2 years had all this not happened, with the judge or jury then figuring out things. You could also factor in perhaps some or all of what Landis has spent in legal fees.
William, quite true, the legal system is capable of figuring out money damages in unusual circumstances.
One question I failed to raise earlier is whether it is fair to make USADA pay money damages to Landis because the CAS arbitration is found to be unfair. What if the court looks at the CAS “revolving door” of arbitrators also arguing cases before the CAS, and determines that this creates an impermissible impression of bias? Is it fair to make USADA pay damages to Landis, because the CAS system has a built-in bias? The flaws in the CAS system are not the fault of USADA.
Larry –
Somehow an earlier version of this response seems to have not been posted.
I stand by my analogy of a case of cert. being denied by the Supreme Court. That was merely intended to show an example of a existing situation where an underlying decision remains in place when there is no action by the court above, nothing more.
But I do agree with most of what you have said and for for other reasons let me provide a “concurring opinion” with different reasoning.
If the present court vacates the CAS award I think the AAA decision in Floyd’s case could also be considered to be nullified.
Rather than viewing the extra-judicial situation as involving separate and/or independent events I think there is a more accurate approach. USADA and Floyd “agreed” to an arbitration “process.” That process provided for a AAA hearing and the option of “appeal” to the CAS. Both parties “agreed” to be bound by that process. The end result of that process is an award. If that award is vacated, then the whole process is essentially nullified, rather than just nullifying some portion of the process. And this is consistent with viewing the parties as having “abandoned” the AAA decision at the time the CAS proceeding was initiated.
I also like this view since it leaves fewer loose ends, although there is one and it is not insignificant.
OK, I’ll bite: what’s the loose end?
Larry –
Ah yes, thanks.
It’s really just analogous to the problem that would result in vacating the CAS award while leaving the AAA award in place.
Specifically, even if the whole arbitration “process” is “vacated,” there is still a USADA “finding,” although perhaps there is room for your argument (or something similar) that Floyd has been denied his right to challenge that finding.
Or maybe we do start over at the very beginning. And perhaps Floyd (or USADA for that matter) would seek an order from the present Court to compel arbitration.