Landis, The Last 48 Hours

(By James)

Since we last commented on Landis case, a lot has happened and some of it is very significant and telling.  For those new, we regard Landis' doping case to be the most important case since Ben Johnson in 1988.  Win or lose this case will influence prosecutions of doping cases for years to come.  Therefore, we believe a detailed analysis is warranted.

Landis' Hearing

Yesterday representatives of the Floyd Fairness Fund held a teleconference in New York City.  It was disclosed that the arbitration hearing will be held on May 14.  The location was not disclosed but has long been rumored to be the Pepperdine Law School.

Today Michael Hiltzik of the LA Times disclosed the names of the arbitrators.

That appeal hearing is scheduled to open on May 14 before a panel of three arbitrators. They are Christopher Campbell, a San Francisco lawyer and former Olympic wrestler, who was selected by Landis; Richard McLaren, a London, Ontario, lawyer selected by USADA, and Patrice Brunet, a Montreal lawyer chosen as the panel's chairman by the other two arbitrators.

Comments

Back on November 24 Floyd wrote about the arbitrators

It appears that the timetable to which you refer is a grey area which can be manipulated at will by the ADAs' since we picked an arbitrator more than a month ago as did USADA, and now the two have decided on a third and it appears that we will have one American, chosen by us, and two Canadians.

So, it appears that the arbitrators were selected over three months ago yet the hearing was only recently scheduled and disclosed yesterday.  Why such a long period of time?  Our thoughts on this are below.  But first about the arbitrators

Landis said he chose the one American, Christopher Campbell.  What do we know about him?

Only three times has an arbitrator in a U.S. case even filed a dissent. All three were by the same arbitrator: San Francisco lawyer Christopher L. Campbell, a former Olympic wrestler often selected as an arbitrator by athletes.

Given that Campbell is the only arbitrator to vote with an athlete, it makes sense why Landis' counsel chose him.

Our guess is USADA chose Richard McLaren, a London, Ontario, lawyer and professor at the University of Western Ontario School of Law.  What do we know about him?  His resume and bio.  McLaren expertise is in controlling law and has often been involved in cases where the laws of many different parties are involved.  For instance he's was an on-site arbitrator for the Court for Arbitration for Sport (CAS) at the 2004 Olympics.  Given all the different agencies and country's involved in this case, it easy to see why USADA picked someone with his expertise.

This means McLaren and Campbell chose Patrice Brunet, a Montreal lawyer as the independent arbitrator and head of the panel. His bio.  He was the Canadian athlete advocate at the 1996 summer and 2002 winter games.  The advocate has the responsibility of assisting Canadian athletes in resolving any issue or dispute that may arise for them during the games, regardless of whether the issue is of an internal team nature or involving external parties.

Outside of sports law, his practice is heavily involved in "progressive" immigration issues as president of the Quebec Immigration Lawyers Association and was described as a "political analyst" on Neil Cavuto's Fox TV show Your World in 2005 where he defended Neil Young's recent anti-American album.

Interestingly in the Tyler Hamilton case, Howard Jacobs was Hamilton's lead attorney and Campbell and McLaren were two of the three arbitrators.  All should be very familiar with one another.

While Campbell and McLaren have long history, and have written extensively about the science of doping, we found no such writings for Brunet.  Therefore, his expertise in technical matters regarding issues like contamination and positivity criteria are uncertain.  If we had to speculate, we would look for him to more follow the letter of the code than the intent.  Some expertise is required for those that attempt to interpret intent.

If one takes a cynical point of view and expects Landis' choice (Campbell) to vote with him and USADA's choice (our guess is McLaren) to vote with USADA, then this case is effectively in Brunet's hands.

Are Discovery Issues Stalling This Case?

In the teleconference yesterday, Brian Rafferty the chairman of the Floyd Fairness Fund, said Floyd's legal expenses have totaled $400,000 so far and the fund raised $150,000 to date.   He also said that most of Floyd's legal expenses have gone toward discovery. This means Floyd is spending a huge some of money to get the results of his six other negative a-samples from the tour.  He must believe that constructing a "longitudinal profile" from this data will help prove his innocence. (For instance their is some research that suggest the body does not clear synthetic testosterone within 48 hours so the test done 48 hours afterwords could reveal important clues.)

As we wrote earlier this week about these tests:

Our reading of these documents suggests USADA's position changed right after Landis’ public disclosure. Whether coincidence or by intention, one can see how it at least looks like USADA was punishing Landis for the public disclosure by denying him the requested data. They forced him to make his request through the arbitrators eating up more money and time.

Now comes the unprecedented request from USADA as reported by cycling news:

French newspaper L'Equipe reported on Thursday that Landis refuses to let the American Anti-Doping Agency (USADA) carry out IRMS (detection of exogenous testosterone) tests on the remaining B samples that were taken from the rider at the Tour de France last year. Landis submitted urine samples six times during the 2006 Grand Tour, of which five came back negative for an elevated testosterone/epitestosterone ratio and were thus shelved. Now, the USADA asked Landis to approve the IRMS testing of these five B samples, which could be an important factor in the hearing in front of the Arbitration Commission currently scheduled for May 14, 2007.

"The World Anti-Doping Code allows additional analysis on B samples only [as the A samples have already been used - ed.] when there is a need for it in the procedure," said WADA legal director Olivier Niggli. Although the testosterone/epitestosterone ratios found in the A samples of the rider all were below 4 and thus considered normal, any use of exogenous testosterone could only be proved - or proved wrong - using the IRMS testing method.

Michael Hiltzik of the LA Times adds:

Meanwhile, sources confirmed Thursday that Landis had rejected a request by USADA to retest eight of his urine samples, including six from the 2006 Tour, that had previously been ruled negative for doping. A report of the request appeared in L'Equipe, a French sports journal.

The sources say USADA proposed that eight backup samples be subjected to a carbon isotope ratio test at the Paris anti-doping lab that conducted the original tests on Landis' Tour de France samples. Landis' defense, however, has questioned the lab's conduct of the isotope test on those samples and challenged its interpretation of the results.

USADA did not respond to questions Thursday about its rationale for the request.

Finally before we comment on this development, let us remind you what Travis Tygart, General Counsel of USADA said on January 30:

Ferren: What is the procedure for providing an athlete who has had an adverse analytical finding documentation about his or her case? I understand the documentation originally provided is strictly outlined by the International Standard for Laboratories. And that the athlete can petition the arbitration panel for more documentation. Could you lead me through the process? Could you give me an idea of how often the athlete is given more documentation?

Travis: The USADA Protocol and the WADA International Standard sets the documents that are provided to an athlete who tests positive.  Also, our rules allow the athlete to have an expert or experts of their choice be at the B sample analysis.  This effectively affords the opportunity to view the entire B sample opening and analysis process.  This is a right not afforded in comparable circumstances such as employee drug testing or other forensic testing.

Defense attorneys would have you believe that USADA unilaterally decided what documents should be given to athletes.  That is absolutely not true.  Instead, the set of documents provided by USADA was developed with substantial input from defense counsel and the USOC Athlete Ombudsman and is a comprehensive set of documents that directly relates to the analysis of the positive test.  Significantly, this set of documents is far broader than most employee-employer drug testing schemes and is broader than comparative professional league collective bargaining policies.  This set of documents, which is provided free to the athlete, is comprehensive enough that if there were a flaw in the testing it would be immediately apparent. 

Where the system runs into conflict is when athletes who know that they committed the doping offense are grasping at straws and hoping to find a technicality in order to escape the consequences of doping.  That is why you see more and more that defense counsel will inundated us with voluminous requests for documents outside of what has been set forth in the rules.  These fishing expeditions are typically designed to introduce confusion into the process and create a smoke and mirrors defense in an effort to influence the public and create false sympathy for the athlete.

In terms of logistics, we carefully consider every document request that we receive.  If we decide that the athlete has raised a legitimate issue and adequately justified the need for more documents we will act on that request.  In the event, that we do not feel that the request is justified, then by rule the athlete is entitled to go to the arbitrators and ask for documents to be produced.  Ultimately, it is the arbitrators, not USADA, who decide the validity of the request.

Comment

Their are a lot of assumption are being made here:

• We don't know if Landis rejected these requests outright or had provisions.  One such provision might have been to have these tests performed at another Lab (such as Australia or UCLA).  If USADA rejected this and instead offered to have the LNDD perform these tests, as the LA times says, then press reports of Landis saying "no" are technically correct but misleading.  Something tells us their is much more to this angle.
• We don't know if the b-samples still exist.  Labs have storage constraints and often discard the b-samples after the a-sample turn up negative.  If the USADA proposal is to thaw previously tested and handled a-samples after seven months, it raises a host of degradation and contamination issues that WADA's code was not designed to handle.
• Remember Landis has spent hundreds of thousands of dollars to get results of his negative a-samples to no avail.  USADA will not give him these results and now wants to re-test them?  Landis has nothing to gain by allowing these "clean" samples to be tested again.  If they all come back negative, his position from a legal and PR standpoint is unchanged.  It's hardly a story when the headline is "negative samples report back as negative again."
• Landis' defense is the LNDD made mistake with their July 28 test.  If you believe this, why allow them to test eight more samples?
• USADA's job is to prosecute one "adverse analytic finding" (AAF).  Travis Tygart has said USADA has been ready to go for months. How could USADA possibly want this for any other reason than a PR campaign? 
• USADA re-testing proposal includes two non-tour samples.  Presumably these are from the March 2006 Paris/Nice race. Why stop there? Let's dust off his Tour of California and Georgia tests and re-do them.  Landis says he was tested 31 times in 2006, why not test all of them?  What about 2005?  What about all the other riders? When does this stop?

We have been critical of USADA for appearing to want wins more than the truth.  This "stunt" (word chosen carefully) only cements our opinion of USADA.  In the interview above Tygart was critical of athlete's attorneys engaging in fishing expeditions.  What is this request if not a fishing expedition?

This is not about prosecuting a positive test.  Its about PR and trying to make Landis "look bad."

The AFLD Tries To Bail Out The ASO

Ironically, the big news of the day might be the least important.  That is, Floyd agreed to not race in France in 2007 and the AFLD agreed to postpone their hearing until after the USADA hearing. (The AFLD only has the authority to bar Landis from racing in France).  This wasn't going to happen anyway as Floyd is currently barred from racing and is not currently a member of any team.

Blogger Martin Drugard, who knows all the players, involved wrote this:

Landis, by the way, told me the other night that he'd definitely be in the car with Austin and I for at least a few days at the Tour. I'm still wrapping my mind around this Tour de France/Amazing Race documentary the Legend wants to film. Not sure how we're going to pull it off, but it sure doesn't hurt to have Floyd in the car. If nothing else, we're guaranteed the best insider commentary of anyone at the Tour. On that note, I was poking around a little, and there's a quiet battle shaping up between the UCI/Pro Tour and ASO, the company that owns the Tour de France. The conflict is well known, but the doping aspect of it is not. There's every indication that the French and the Tour are softening their position on Floyd Landis (it's killing them with sponsors not to have a champion), while the UCI is cheek by jowl with WADA and USADA. In a nutshell, the battle for Floyd's future runs a whole lot deeper than we've been led to believe.

We view this as a PR move by the AFLD to help the image of the tour, and its owner the ASO.  Sponsoring the tour is a high dollar (or should we say "Euro") proposition.  The sponsors expect certain things, like a champion!  Many have "meet-and-greet" provisions in their sponsorship and often schedule retail openings or other big corporate events so they can have the tour champion on hand.  So, who is "meeting and greeting" at these sponsor events?  Answer, no one. 

The pressure to get past this mess must be unbearable for the sponsors and the tour owner, the ASO.  We see today's AFLD hearing as an attempt to help the Tour image and attempt to satisfy the sponsors.  Most Frenchmen think Landis is guilty and this gives the appearance of punishment.  It's not much but what else can they do until the USADA hearing is ruled upon?

Sorry about the length, but as we said, a lot has happened in the last 48 hours.

Comments

[Debby]

Thanks for the excellent summary. Do you have an opinion on Brunet?

Not really, I can only find two cases he arb'ed and one wasn't a soping case (the other was a missed out of competition sample).

He's an unknown.

[Daniel M]

James,

Excellent summary.

- Rant

James Said - Thanks