When Will Landis Get His Hearing And Will It Be Open?

(by James, 'JB')

The Nation has been paying particularly close attention to Floyd Landis' case.  We believe it to be the most important doping case since Ben Johnson in 1988.

First what is the current status of this case?  In a January 30 ESPN article about Floyd:

A three-member American Arbitration Association panel will hear the case. Each side picks one arbitrator, and those two choose the third. The panel selection was completed only recently, although the arbitrator's names have not been made public.

Floyd tested positive on July 28 and only now are the arbitrators empaneled.  Is this a long time?

We are aware of no such statistics, but it is believed that the typical hearing is six to seven months after the initial positive test.  February is seven months.  If the hearing were to happen this month, it would be an average length of time. 

However, it looks like the arbitrators agreeing to such a nearby date is unlikely. Landis' attorney, Howard Jacobs has the right to ask the arbitrators for more documents.  This appears to be a major focus of his defense as Landis has recently added new council.  It will take time to sort this out before the hearing can be scheduled.  Again, from the ESPN article:

The rules governing discovery in anti-doping arbitration cases are much more restrictive than they are in a U.S. criminal or civil court. Landis' lawyer Howard Jacobs, who has defended several high-profile athletes accused of doping including Olympic track star Marion Jones and cyclist Tyler Hamilton, requested a number of additional technical and scientific documents he argued were pertinent to the case last fall. His request was denied by USADA.

Los Angeles-based lawyer Maurice Suh of the Gibson, Dunn & Crutcher firm, a former U.S. attorney with experience in prosecuting public corruption and misconduct cases, formally joined the defense team in December. Suh and Jacobs are continuing "efforts to get evidence relevant to Floyd's defense," Henson said. "It's a real uphill battle for them to get basic pieces of information they need to conduct a fair hearing."

Landis was dope tested a total of nine times during last year's tour.  Seven times before his positive test (including one 48 hours before) and two times after (including 48 hours later).  Those other eight tests were negative.  He's hoping the data from these tests will enable him to construct a "longitudinal profile" that will prove his innocence.  (For instance their is some research that suggest the body does not clear synthetic testosterone within 48 hours so the test afterwards could reveal important clues.)

Landis has taken the unprecedented step of posting his defense on line.  And the website Trust by Verify (TBV) has done a yeoman's job of tracking it.  Floyd has not laid out his entire defense, but his friend, Dr. Arnie Baker, has offered this slide show of his opinions about the flaws in Floyd's laboratory tests.  Floyd has also asked for his hearing to be open.  Until we see Floyd's entire argument, we will refrain on commenting on it.

So, who benefits from a delay in the process?  The Blog Rant Your Head Off recently addressed this topic.  The catalyst for his comment was a note from the editor of TBV:

One of the strategies playing out now is the use of time. Landis has said that he’s written off the season, and he’s visibly raising money — whether it’s enough is unclear, but he’s getting some.

On the other hand, Le Tour may start without resolution, which is not to their advantage. It seems to me the agency side has lost whatever time pressure leverage it would normally have against an athlete.

Assuming his money holds out, time is working FOR Landis now, not against.

An interesting question to consider is what resolution could happen short of a hearing, which seems likely to be very painful for the agency side. Landis has nothing to lose, and is free to toss any bombs he can find, in public, should it come down to that. Le Tour would like a champion, sooner rather than later. If Landis’ case /is/ good in ways the public has not yet seen, how can the agencies give up and save face at the same time?

(Much good stuff after the jump!)

With respect to scheduling the hearing, the Nation agrees with Rant and TBV that things have now swung into Landis's favor.  Landis has said he doesn't expect to ride this year (ESPN article above) and raised $150,000 in the first month of his legal defense fund's operations.  Further Christian Prudhomme, director of the Tour, is frustrated with all the delays.  No doubt the thought of the Tour starting on July 7 in London without a clear winner of last year's tour is embarrassing.  We suspect he is twisting arms to get this wrapped up.

So, the pressure is on USADA to resolve this case quickly.  This is why the French doping agency the AFLD summoned Landis, or his representatives, to Paris this Thursday, February 8.  However, that hearing may not take place as Jean-Francois Lamour, head of the French sports ministry and heir apparent to Dick Pound chair as WADA chief, has called for the postponement of this week's hearing until the Landis has appeared before the USADA hearing.

What We Make of All of This?

The importance of this case cannot be understated.  The outcome will determine the direction of doping prosecutions for years to come.  Or, as Floyd himself put it on November 21 when writing on the Daily Peleton Forum:

However, I can point out that you are overlooking the height of the stakes in this game. The winner gets nothing and the loser loses everything. In that context do you think that overlooking any advantage and being nice will increase the odds of the other side playing fair.

So every step is being carefully thought out and argued upon.  In fact Floyd noted on November 24 that the arbitrators were picked in October and were only empaneled recently (we take this to mean in the last few weeks).  Why three months later?  Because both sides know this is the case in doping prosecutions and are proceeding cautiously. 

One of the biggest points of contention is to have the hearing open.  Landis wants it open, USADA does not and has done its best "Bill Clinton" by asking what the definition of "public" exactly means.  Like making sausage and legislation, apparently USADA does not believe we should watch the process of finding an athlete guilty of a doping infraction.

USADA offered to skip the USADA hearing and go straight to a CAS hearing if Landis drops his request for a public hearing.  This would save Landis both time and money.  (In doping cases, not only does the defendant have the right to appeal, but so does the prosecution.  In this case this means either USADA and/or WADA.  Appeals go to the Swiss based Court of Arbitration for Sports or CAS).  So far Landis has refused to close it as he believes a public hearing is critical to repairing his reputation. 

We believe USADA has been trying to coerce him to close the hearing by dragging out the process and bleeding him of money and motivation.  Now that Landis has shown the ability to fund himself (at least for a while) and written off the 2007's season, he has trumped USADA's gambit.  With USADA getting pressure from France to wrap this up, they might have to agree to open the hearing so they can get the stalled process moving again.

If we have this correct, score this an evolving win for Landis and everyone that is interested in the process of doping as we appear to be on our way to having the first ever open hearing.  Will Court TV, Versus and/or ESPN News cover it?  Word is Stadt 2, French state TV, and the Spanish channel TVE are planning on doing so.

And, if USADA's was indeed trying to force Landis to drop his request for an open hearing through such strong armed tactics, we again have to ask again if they are more interested in the truth or wins. 

Comments

[Ferren]

Eh, I don't see how USADA is trying to wait Floyd out. If anyone's bleeding him of money it's Howard Jacobs and crew. USADA's goal is to have the hearing four months after the B sample positive (see USADA's "Annex F Time Line"). In my interview with Travis Tygart, he states the aim is to get the athlete back competing as soon as possible. It's also plausible that Floyd's hip surgery would have kept him from competing any time soon anyway.

Remember, all the info you are going on comes from Floyd's PR campaign. It's telling that Floyd's people were so public about the process last fall but have clammed up recently. Makes you think they are working the process for their own reasons, and keeping the developments private for their reasons as well.

Personally, I think the delay is a function of the bureaucracy his defense team has become.

[Andrew]

If you can recall the Tyler Hamilton Hearing and Appeal it dragged on for months. Hamilton was complaining about the delay. When the facts emerged after the Appeal award it was Hamilton (and no doubt Howard Jacobs)who were solely responsible for both long delays.
A lawyer would love a public subscribed defense fund. Hamilton had one and Landis is building his fund. Delays mean more justification to hit the fund with lawyer's bills.
Landis now claims his lawyer's bills are running at $10,000 per month. Say, at $500 per hour that is 200 hours of chargeable time per month or 50 hours per week. Believable?

[Andrew]

Errata: $10,000 per month should be $100,000 per month

[Softie]

Unlikely that every one of Landis's lawyers gets $500/hour. He's paying for Jacobs, the new criminal guy, associates, paralegals, staff support, etc. 200-300 hrs per month amongst all of these folks for what amounts to a scorched-earth binding arbitration hearing is perfectly within the realm of possibility.

Interesting that Floyd's defense is entirely within the Code and the International Standard (TD2004EAAS) though. Still a tough fight to overcome a rebuttable presumption in an arbitration hearing, but more realistic than the Tyler challenge-the-test defense.

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