Tuesday, July 1, 2008

Denied!


So the International Court of Arbitration for Sport (CAS) has rendered its decision in the Floyd Landis case. Saying that his charges were “unfounded,” the court delivered a shocking rebuke to the Landis defense.

The 3-0 decision found no merit at all in Landis’ defense which is surprising given that even the American Arbitration Association (AAA) panel uniformly agreed that there were problems with the work performed by the French National Anti-Doping Laboratory at Chatenay-Malabry (LNDD), though ultimately they weren’t considered enough to exonerate him. You may recall that the panel found the LNDD had performed the initial test resulting the non-negative testosterone-epitestosterone result poorly enough to disallow the finding. It also stated that it might be difficult to find athletes guilty in the future should the LNDD continue to perform work in a manner other than specified by the World Anti-Doping Authority (WADA).

Bluntly put, CAS would not have thrown out the initial T:E result. The panel stated in its decision the lab was guilty of nothing more than "minor procedural imperfections." One could be forgiven for thinking of Mad Magazine’s Alfred E. Newman presiding over the proceedings with a “What, me worry?” bubble above his head.

The head of the U.S. Anti-Doping Agency (USADA), Travis Tygart, was quoted saying, “We did a full review of the evidence from the start. Before we brought charges in this case, every day we reviewed the evidence we had and asked the same question, ‘does this point to a doping violation?’ We were comfortable that we had the case when we started.”

This statement simply isn’t supported by the facts of the proceeding. Tygart never questioned the validity of the test results that lead to Landis’ prosecution; rather than mount an inquiry for the truth, Tygart and USADA worked to defend the LNDD.

I’ve read the full transcript of the AAA hearing at Pepperdine Law School in Malibu, California. More than 1000 pages. I don’t see how a reasonable, rational person who doesn’t have agenda can come to a conclusion other than Floyd Landis wasn’t caught doping. That doesn’t necessarily mean he was innocent, but if he was doing something, LNDD didn’t find it. That’s fundamentally the problem with the outcome; the truth got swept aside in the rush to get a conviction.

Landis’ next step (Surely you didn’t think the plus-size gal had had her moment on stage?) would be to challenge the outcome in U.S. federal court. Such a move has been hinted at in the past by Landis’ attorney, Maurice Suh. This move may be in doubt given that the panel took the extraordinary step of assessing Landis $100,000 of USADA’s defense costs as a penalty for “the unprecedented scope and intensity of the technical challenges" the defense raised despite the fact that they had been rejected in the first proceeding.

This is a punishment for style, not substance, and that goes against everything Americans understand the judicial process to be.

If athletes who appeal a conviction are punished for, in essence, appealing the conviction, this outcome will have a very chilling effect on any athlete attempting to defend him or herself against doping charges, whether or not the lab work was performed correctly.


Image courtesy John Pierce, Photosport International

30 comments:

Marshall Taylor said...

I agree. I poured over every bit of evidence publicly available in this case and can only concluded that the charging entities have adduced no credible evidence whatsoever that Landis doped.

To the contrary, looking at all the circumstances reported by the media, I cannot help but conclude that, after Landis charged back into the lead of the Tour after having lost it -- a very common occurrence in pre-doping days -- the Tour organizers concluded that Landis must be a doper -- which is counter-intuitive, as a doper would not have had the bad day in the first place -- and pressured the LAb for a positive result. The Lab, which first found nothing in Landis' blind sample, then targeted Landis' sample (no minor procedural irregularity) and prematurely announced a subjective positive result (which was recreated only after numerous subsequently) tries. Worst of all, the so-called positive simply wasn't -- not according to the standards of any other lab accredited by professional cycling.

So here we have it. Lance, who tested positive for using EPO in the '99 Tour (a point that the supposedly "exnoreating" report does not deny or cast serious doubt upon) is lauded as a hero and Landis, who has been railroad, is the goat. Apparently, Landis forgot to plead "cancer survivor" and wrap himself in the Star and Bars.

alex quesada said...

these are strong words, and a not unimportant point of view in the cycling world. black or white, no gray areas here.

as much as i enjoy bkw, i wonder as to the identities of who really are "padraig" and "radio freddy".
postings like these, should not be thrown about without attribution.

does anyone else know (or care to know?) the identities of these gentlemen? with important postings on a sport we all love, it would be nice to know who we are addressing, who's work we are reading.

Michael from Sydney said...

I’ll be upfront I think Landis is guilty. So you can stop reading now. I must also say as an Australian we collectively do not have a good record when it comes to doping. In swimming if someone else dopes they are cheats, if an Australian dopes it is an innocent mistake or the test is wrong.

I don't understand the logic of your blog. As I understand it, you point out at the beginning that the AAA found that the procedural problems in testing which were not enough to invalidate the finding of doping and CAS confirmed this result. My understanding from reading cyclingnew.com is that CAS merely confirmed the finding of the AAA.

It seem that after making this point you seem to ignore it totally and jump to a position based on your own understanding of the evidence which is that Landis is not only not guilty but also innocent.

So what you are really saying if I understand you correctly is that you know Landis is innocent and that the AAA and CAS got it wrong. So rather than say that you suggest that this is somehow about the truth because you have read the transcripts of the hearing.

What I would like to know is where is your expertise in analysis of evidence and your experience in adjudicating on doping charges that makes you so confident that of your assessment and dismissive of the AAA and CAS? Why should I trust you, I am not a scientific expert, why is your science more believable that the AAA or CAS?

I trust the AAA and CAS to consider the evidence in front of them and to get the correct result based on the evidence. The people on CAS are not novices at this; they know what they are doing and I assume that they would have no desire to support a doubtful decision by the AAA. To me CAS supporting the wrong decision by the AAA would only weaken CAS’s own creditability.

On the matter of trust except for one or two notable examples (e.g. David Miller) what doper has said ‘Yep, I did it’ at the time? The only person who really knows if he did it is Landis and I know what his position is, and from every profile on him that I have read since the TDF I find that the profilers don’t know if he is telling the truth or not. I don’t know.

I don't know about the law in the US but in Australia it is common practice in civil cases like this for those appealing a judgment to a higher court to pay cost if they loose. As I understand it US law is not too dissimilar in general to Australian law in that its roots are in English law. So I wonder if it is really fair to play the UN-AMERICAN card because Landis has to pay costs? If Landis had won and got cost and you thought that the AAA was right would you think it un-American?

The key point as I understand it from reading about Landis is that his case is that the whole process is unfair. Like all good conspiracy theories unless you are proven correct the conspiracy theory remains, it can never be disproven.

Jim said...

If mere press accounts of the procedural flaws in the case against Landis, Carsten Lundby's just-released study on cyclists and EPO, as well as the efficacy of certified dope testing labs will stop you in your tracks. At best the labs are unreliable. At worst, their results are simply a fabulist's false assurances that the tests can be trusted. The portion of Lundby's study dealing with the labs' reliability (admittedly a small sample) is shocking.

Articles in PresS. J Appl Physiol (June 26, 2008). doi:10.1152/japplphysiol.90529.2008

Landis has done us a favor by shining a light on the lack of due process given accused athletes. No US court would accept the blithe assurances of anti-doping officials that a botched chain of custody is insignificant. As Vrijman noted in his study of WADA's enforcement activities, there is a lack of procedural integrity that renders the effort untrustworthy.

The NBA is discovering this with the Tim Donaghy referee point-shaving scandal. He was involved in some of the most controversial games of the last decade, in which he made seemingly inexplicable foul calls. The NBA didn't deal with it well, and responds to criticisms of other refs making clearly erroneous and game changing calls with stonewalling. As a result, conspiracy theories about the NBA being rigged are now common.

The point of that is that for anti-doping initiatives to be effective, they must be credible. Adjudicating alleged infractions before a capricious kangaroo court whose judges are given to making ex cathedra comments revealing a strong presumption of guilt is not the way to do it.

By all means, let's get rid of the dopers. But let's find a way to do it that holds up to rational scrutiny. The present system isn't even good frontier justice - at least frontier justice is bold enough to be unashamed of its own summary judgments of the accused. The sketchy process now provided to athletes - which is extensive, but not effective at protecting anybody's rights - is merely a fig leaf for a timid form of frontier justice that is ashamed to admit that its purpose is to railroad the accused. It is sad to watch because each time an athlete is able to surface questionable testing methods, the anti-doping cause is undercut just a little bit more. Act capriciously, lose the authority we accord you. It's pretty simple, as long as you believe that the governed ought to have some say in the manner by which the governance body operates. I guess if you're comfortable with divine right monarchy or other forms of unaccountable oligarchy, you don't see anything wrong with the process and want to unmask and intimidate the critics. Fair enough.

Oh yeah, and for what it's worth, I'm personally convinced Floyd is guilty as sin, but still think that doesn't justify us forming a virtual lynch mob to take him down.

Bluenoser said...

I'm no lawyer but I do love our sport and feel bad when this keeps getting all the press.

Remember Ben Johnson? He seemed to start it all and cried innocent and then flip flopped and pointed fingers every which way. He cost us Canadian tax payers a lot of cash in investigations and commissions when we can't even send a cyclist coach to the Olympics with her.

I think it's Dick Pounds revenge for not making him the president like he thought he would be. Nothing like a bitter man with an axe to grind.

It doesn't matter to me who padraig or radio freddy are. So far we are still allowed to have our opinions and if I don't want to read them well no one is forcing me.

-B

Anonymous said...

This whole thing is the OJ Simpson case, set against a backdrop of cycling, instead of race, gender, and power.

Am I pretty damn sure he did it? Yep.

Am I equally certain the lab f'ed it up beyond all hope. Yep.

The whole thing is offensive to the American sense of fair play and justice.

But then, Tyler Hamilton and Lance both should have come clean too. But they never will.

Anonymous said...

I strongly suspect that Padraig is Patrick Brady, ex- of Bicycle Guide and Asphalt Magazine. Padraig has a similar writing style and has mentioned some of the same locations around Amherst, MA that Brady mentioned in Bicycle Guide.

Given that the subject here largely concerns honesty and integrity, it might be worth mentioning that my subscription dollars for the latter disappeared, along with those of many others.

Justin said...

Why should I care again ?

How is Landis testing positive or not going to change my life ? Is it going to make me a faster bike rider ? Is it going to make me love riding my bike anymore?

I can't believe you actually read 1000 pages of this report. Get a life! You should have spent that time instead doing something that would have actually brought meaning to your life.

Pro Cycling is dead. Dead to me. I stopped watching and caring years ago.

Bike riding is what you do, not what you watch.

It's Canada Day here. I am going to go and ride my bike.

ant1 said...

Marshall Taylor -
When exactly were the "pre-doping days"?

ant1 said...

Has anyone tried to deny the finding that Landis had exogeneous (if that is the term for non body produced) testosterone? You can say what you will about various anti doping tests, but a mass spectrophotometer is hard to argue with, and, as I understand it, that test found testosterone that wasn't his.

Anonymous said...

everybody's a fucking critic. you guys make an entertaining site that at its worst, invited folks to think about what they think... rather than to agree with what's written... and idiots stack on criticism like they have to be tickled just right for it to be valid.

you and freddy keep up the good work. i don't always agree with the pov, but i love having the chance to discover that for myself along the way.

keep it up. as for floyd... well... it is what it is. life is like that. the personal toll must be unbearable .. but you know, there is a whole life to be had away from this stupid perfect sport... and just like love, its timing. its a really shit era to be riding for a living.


noel.

Anonymous said...

I love BKW but it's time to acknowledge the facts. After reviewing expert testimony, two panels found, 5-1, that Landis doped. If the lab is so shoddy, or engaged in a conspiracy, where are the other false positives?

Time to move along.

roomservicetaco said...

Like this site and like Floyd (at least Floyd the rider). But, it's reckless to say that Floyd is being punished for appealing the conviction due to the $100k award against him.

I read the entire CAS ruling. In the part about the $100k award, the panel makes it very clear that they are charging him for intentionally acting in an petty, destructive way rather than in a way that would provide evidence to support his position. They site, for example, the fact that Floyd's team insisted that USADA bring 10 witnesses to New York for the procedings (as opposed to being available by conf call), yet did not not question any of them. It was clear from this action and his statements about trying to "bring down" the doping establishment that his tactics were to force USADA to spend a ton of money out of spite, not out of a desire to defend himself.

The USADA had counterclaimed to CAS for the entire legal cost of the CAS arbitration (over $1M). Floyd was aware of this counterclaim and the possibility that it or a portion of it would be awarded when he brought the action to CAS. The panel rejected the notion that Floyd should cover the USADA's cost of the CAS case, except for the most puntative actions that HE took designed to do nothing but drive up the costs to the USADA.

Whether you believe Landis or not, you have to say that his behavior and that of his team has been very poor. The CAS panel also cited his attorney, for example, for repeating the very serious charges of fraud and plagerism at the lab without any substantiation, even after the panel requested specific evidence and after Floyd's own expert witness backed off his statements of fraud. Throw in the unfair way he treated LeMond and it's not hard to see why there are those who would be unsympathetic to his cause.

Padraig said...

BKW is not about Padraig or Radio Freddy. That's precisely why we chose pseudonyms. BKW is about the sport we all love. We try to focus on the universality of the experience and the appeal of clean racing. We love it with all its bumps and bruises.

We look at these things the same as you, our readers. We are fans, not professional cyclists and we're entitled to have an opinion. While BKW is not "journalism" as such, we do hold ourselves to certain standards that we hope make the reading more worthwhile. We are not tied to obligations to sponsors or advertisers. We are guided by our mutual interest and respect for other cyclists. Nothing covert or "shrill" about it.

bikesgonewild said...

..."i disapprove of what you say, but i will defend to the death your right to say it"...voltaire...

...basically the disingenuous rips on & attempts at "outing" bkw's writers is pure, small minded tripe...an opinion was presented in regard to a real life situation...if you disagree, it doesn't make you right or wrong & neither does it make bkw right or wrong, it simply means there is in fact, a difference of opinion...

...if there were irrefutable evidence, the landis case would have been 'cut & dried' & resolved long ago...there are & always will remain questionable concerns & actions on the the part of literally everyone involved...

...face it, you will never know the truth, no matter what your opinion...

...the final "ruling" doesn't offer the much awaited truth, it simply offers just that, a final ruling...& one, that in my opinion was designed to "protect" the sport but does nothing to that end...

jza said...
This comment has been removed by the author.
jza said...

After all,
there is NOTHING more pro than a lengthy appeals process.

Anonymous said...

if you believe Floyd, does that mean you have to believe Tyler Hamilton?

especially now that the credibility of the EPO test has been questioned.

Padraig said...

Regarding innocence and believing: Despite the fact that I believe the problems illustrated in Landis’ AAA hearing at Pepperdine show that an adverse cannot be supported, I don’t believe that “proves” Landis innocent. Based on the evidence presented, I don’t think anyone can come to the conclusion that the LNDD found too great a T:E ratio or exogenous testosterone. That’s all. My personal feelings about Landis and whether or not he may or may not have doped aren’t relevant.

As to whether I or anyone else should “Believe Tyler,” that’s a personal decision. The science involved in determining whether or not a second blood population is contained within a sample is to testing for exogenous testosterone what Lincoln Logs are to skyscrapers. Anyone remember the Sesame Street game “One of these things is not like the other”? Not quite the same thing as evaluating individual ions.

Tyler’s argument was that there was no provision for a false positive, and in that he had a point. There’s a statistical chance that he’s innocent. There’s also a statistical chance that you’ll win the lottery and retire to Tahiti, but most folks haven’t put their house on the market just yet.

legfarm said...

re:
anon 3:27:00 PM EDT

EPO testing credibility

http://www.nytimes.com/2008/06/26/sports/olympics/26doping.html?em&ex=1214625600&en=4a78d8b1cc615065&ei=5087%0A

take it for what it says and if you wish to look for the background studies and form an opinion please do so.

in all of this remember that right or wrong this is sport. on a fundamental level sport is about entertainment and money. So, try to enjoy the parts that are meaningful to you and try to understand the process behind the ugly parts so that your enjoyment is of the sport and not the background.

as it has been said informally and often "hate the player, not the game"

ride well and enjoy the spectacle.

legfarm said...

that link didn't post in its entirety


http://www.nytimes.com/2008/06/26/
sports/olympics/26doping.html?
em&ex=1214625600&en=4a78d8b1cc615065
&ei=5087%0A

Erik said...

It is all very troubling. The simple facts are that cyclists are being held to a different standard than the labs. This is fact whether you think Landis doped or not. If, for you, the issue is: Did Landis dope? - then you have an answer. If the issue is the big problem of doping an ferreting it out, then you do not have resolution.

Frankly, the whole things make me sad.

andrew said...

The crusk of this biscuit is that the doping industry (those who invent, manipulate, propagate and then “market” these chemical products) are light years ahead of the testing labs and the like. Only now do we have the ability to test and find trace substances like EPO and the like, 10 -15 years after they were used almost carte blanche. Doesn’t that say something about the sophistication of the chemists/ industry who are developing these drugs?? They are likely to be developing permutation number 44446768 this week. Do we actually think that these chemicals are boiled up in a tiny outdoor laboratory and filtered down to athletes by a back yard outfit? These enhancers are not created by accident. They can research, develop and manipulate these chemicals because they have access to large amounts of money and reap rewards that make the risks acceptable to them.

Then some one who stands accused gets some well paid suits to take apart the custody chain/ procedures. So some lab rat in Paris left a sample un-covered in a lab whilst he/she had a toilet break or the likes and some dark sinister shadow came into the secured building and sprinkled fairy dust over the samples. “I have never tested positive to a known substance”, ho hum. Yeah I can believe that too. Get the guilty dopers to rat on the people who they got them from and chase the chain back to the people making them. Focus on the result and do not get lost on the distractions

roomservicetaco said...

It's pretty hard to believe anything Tyler says after seeing this and hearing his continual denials:

http://www.velonews.com/photo/35172

Kevin said...

Floyd Landis = guilty as charged. Anyone who watched the stage that day can't realistically deny that he was doped. Look at his actions after the stage. They were very bizarre....

Jim said...

and idiots stack on criticism like they have to be tickled just right for it to be valid.

Sure. I've been a white collar crimes cop, and as an attorney have prosecuted and defended criminal cases, including lab fraud cases, and litigated civil cases involving complex technical issues. What would I know about due process in in testing cases like Floyd's? Nothing, apparently, compared to anonymous guys on the internet.

I do recognize veiled threats and intimidation, however, and think it's pretty lame to do that, very sophomoric at best, though that's an insult to 15 year-olds.

hubert said...

As a biochemist with years of actual laboratory experience, I can, in my personal opinion, say that the results of Landis' alleged positive sample are totally inadmissable as far as carry scientific merit is concerned.

Working in the pharmaceutical industry, where patents are protected by procedure, protocol and documentation you gain a great appreciation for clear and concise notation and labeling, handling of samples, not cross-contaminating sample and most importantly handling biologicals in such a way that the integrity of the sample, and by extension, the intergrity of the data obtained from that sample is not called into question.

The only way this is possible is to work to the industry standard and it is obvious that the work done at the lab in question was either done by college freshmen or technicians who clearly didn't care about the integrity of the data they were generating.

From there, the case is over in my mind; if the data is, at best, inconclusive to vague, you can't proceed. Period.

My personal opinion on the matter, not withstanding the morality of doping etc, is that the Landis affair was a snow job. Not necessarily a tin-foil conspiracy but the execution of an agenda; WADA et al had something to cling to and they were going to prove a point; the fact that they railroaded standards of practice, the intended need for objectivity and the basic rules of procedure is simply something the couldn't be bothered with.

The addition 100K fine is exactly that, a punishment for appeal; since when has the execution of the innocent until proven guilty doctrine become an offense?

Anonymous said...

a question...I've actually forgot at this point.

Were the alleged technical problems with the A sample or the B sample or both?

oldFonzie said...

Patrick Brady was actually a pseudonym for Kurt Vonnegut. He liked to write about bikes, but wanted to keep it separate from his other works. Ever notice how you never saw the two of them together?

As for the identities of Pradaig and Radio Freddy, I have it on good authority that they are Tibetan monks from an obscure Buddhist sect that sees FVB as the incarnation of the seventh boddhisatva, Ultegra Gruppo. They are currently living in Mexico as asylum seekers petitioning entry into Belgium.

Who cares what their real world identity is? That's so 20th century. What matters is the identity forged online. And it's a solid one.

While I enjoy their analysis of the events surrounding Floyd, I am relieved. It used to be a rumor that the big stars weren't busted for doping because they had too much money to be stopped -- they'd be accused privately of doping (which is probably why the positive result was 'leaked'), their lawyers would threaten litigation and liable, feds would back down since they could barely afford to get high sniffing tire glue let alone a great legal team.

It's too bad that Floyd had to be the one to set the example. I still see him as one of the greatest cycling talents.

However, my money is on that he only blood doped with blood he had packed away over the winter to avoid explaining a chimera. Unfortunately, when he removed the blood he forgot he was boosting. So he tested positive for steroids he was using in the off season. It's happened before.

Matt said...

Great post - as always.

At the very least, no one can deny that Floyd gave us a peek behind the curtain at WADA, LNDD, and USADA, and what we saw isn't very pretty.