On June 30th, cyclist Floyd Landis lost his final climb -- an attempt to retake his Tour de France title. Not only was not he not exonerated, but the three member panel rendered a ruling that at times, bordered on the hostile. [The 58-page opinion is found here]
After winning the most famous of all cycling events in 2006, he tested positive for performance-enhancing substances. He sought arbitration, according to the rules of USADA and the panel upheld the first determination despite that conclusion that the initial screening test violated WADA rules. In a 2-1 ruling, the majority of the panel (composed from arbitration from the American Arbitration Association) concluded that although the initial test from the French drug testing lab was flawed, subsequent tests --known as carbon-isotope ration analysis (IRMS), performed after the initial test, were "accurate." One arbitrator dissented.
Landis made his feeling known in a very public way, lambasting the testing process. Given the CAS's conclusion, I think that his approach did not win him any friends among the drug testing community, not on the CAS panel. He wanted the CAS hearings public, publicized his plight on the Web, and spent a ton of money (reported to be about $4 million) on both the USADA and CAS arbitrations.
It apparently was for naught. I read through the ruling (I do not claim expertise on the pathology and testing issues), but a few things struck me. First, the standard of proof, known as "comfortable satisfaction," a term I am not familiar with, but is defined under Article 3.1 of the WADA code as "somewhere between a mere balance of probability and less than proof beyond a reasonable doubt." Is that preponderance of the evidence? Somewhat less or somewhat more? Mere rationality or middle-level scrutiny (on a more constitutional law vein)?
Figuring that it is some middle ground, then a second issue involves the admissibility of the "accurate" evidence. Many of remember the "fruit of the poisonous tree" doctrine in criminal procedure that precludes evidence that flows from the taint of the first. The panel did not have to address that question specifically, but it would be interesting if they did.
The last point is the nastiness of portions of the ruling. The arbitrators were clearly irritated by some of the contentions raised by Landis's attorney, notably claims of "bias/fraud, forgery and cover-up." Yes, there may have been shoddy lab work, the panel noted, but that did not reach to the level of fraud. Also, the panel accused Landis's representatives of making these claims when there was no evidence to back them up. Notably, the arbitrators rejected the argument that the evidence could have been tampered as "fanciful."
Possibly, they may have been angered by Landis's insistence on a public hearing not only to prove his innocence, but to shine a spotlight on USADA and the rules it enforces and also establish a pattern of incompetence at the French lab where his urine was tested. As a parting shot, they ordered him to pay $100,000 in legal fees to USADA, an amount that has no rhyme or reason, since USADA spent a great deal more than that. It seemed more as spanking a wayward child than anything else.
I am bothered by several aspects of all of this. First, WADA at the very least should standardize procedures at its labs to avoid issues of sloppiness. Second, the use of witnesses should be akin to a trial. One report noted that a witness for Landis, a lab employee, testified by phone with a child screaming in the background. Hardly a conducive atmosphere. On the other hand, Landis raised the decibels to make the case a crusade against the drug testing regimen. The fact is, this is what we have. It's hardly perfect, it should (and must) be improved, but we cannot throw it out right now. [For a good analysis, check out Bonnie Ford's piece in ESPN.com)
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