Landis Demands Dismissal
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TrustButVerify

Redwood City, CA

#1 Sep 8, 2006
Posted on http://floydlandis.com

They got lab packs August 31, and appear to have so much ammunition they are asking USADA to dismiss before hearing. Formal response to be filed Monday,
answer from USADA in a week or so.

TBV http://trustbut.blogspot.com for Landis news, research and comment.
Will

Bowie, MD

#2 Sep 8, 2006
There's nothing new or unexpected here. Landis' team has had the B Sample Confirmation Results and whatever additional documentation they have requested for 8 days now. It's Friday and going into the weekend, Landis' team issued its "dismissal demand" in order to take advantage of the weekend news cycle -- folks will have the "dismissal demand" to speculate about. It's a good PR move but nothing more.

Did Landis publish any of this supposed "so much ammunition" from the documents that they've had for 8 days? Has the Landis team suggested specifically how this supposed "so much ammunition" INVALIDATES the AAFs, other than by means of finding irregularities in the testing documentation? They've given us NO SUBSTANCE, OTHER THAN TO ANNOUNCE ON A FRIDAY THAT THEY'LL BE MAKING A FORMAL PRESENTATION ON MONDAY -- SO WHY COULDN'T THEY JUST WAIT UNTIL MONDAY IN THE FIRST PLACE? This is just PR HYPE for the weekend.
TrustButVerify

Redwood City, CA

#3 Sep 8, 2006
I don't remember you predicting a dismissal motion before, but now it is predictable with hindsight.

For substance, I guess we'll need to see what he releases on monday with the filing. Are you still predicting selective disclosure?

TBV
Wayne

United States

#4 Sep 8, 2006
TrustButVerify wrote:
Posted on http://floydlandis.com
They got lab packs August 31, and appear to have so much ammunition they are asking USADA to dismiss before hearing.
NO, NO, this can't be right!!!

We don't want a quick resolution...We want to drag it out for another six months.

---Salem Oregon---
Robin Maguire

Sydney, Australia

#5 Sep 8, 2006
TrustButVerify wrote:
I don't remember you predicting a dismissal motion before, but now it is predictable with hindsight.
For substance, I guess we'll need to see what he releases on monday with the filing. Are you still predicting selective disclosure?
TBV
I doubt anything NEW will be released, just rehashed stuff we already know.
Good use of the weekend break, well timed!!!
Will

Middle River, MD

#6 Sep 8, 2006
TrustButVerify wrote:
I don't remember you predicting a dismissal motion before....
Nor is Landis filing a "dismissal motion" either, or if he does, he might as well file a Writ of Habeas Corpus too while he's at it, BECAUSE THERE IS NO PROVISION IN THE USADA PROTOCOL FOR EITHER! The carefully-worded article states it right: "LANDIS’ LAWYER TO SUBMIT FORMAL REQUEST RECOMMENDING DISMISSAL OF CASE...." -- it is simply a 'requested recommendation' directed to USADA, nothing more. There is NO MOTIONS PRACTICE before the USADA, is there? Motions are made PURSUANT TO A PROCEDURAL RULE OR SOME OTHER AUTHORITY; there is NO RULE OR AUTHORITY upon which to predicate a MOTION before USADA, is there? I could have predicted that Howard Jacobs would do the UNPREDICTABLE, and this PR dismissal "request" is just one example; another example was the "unprecedented" request for a public hearing of the arbitration case.
Will

Middle River, MD

#7 Sep 8, 2006
THE FOLLOWING IS THE USADA PROTOCOL PROCEDURE THAT APPLIES TO THIS CASE:
9. Results Management / Anti-Doping Review Board
When USADA receives a laboratory report confirming an adverse analytical finding, or when USADA has otherwise determined that an anti-doping rule violation may have occurred, such as admitted doping,
refusal to test, trafficking or other violation of Annex A, IF rules or the USOC ADP, then USADA shall address that case through the following results management procedures:
a. The USADA Anti-Doping Review Board ("Review Board")
shall be comprised of experts independent of USADA with medical, technical and legal knowledge of anti-doping matters. The Review Board members shall be appointed for two-year terms by the USADA Board of Directors. The Review Board shall review all sample test results reported by the laboratory as analytically positive or elevated in accordance with section 9(c)(i) below. Such review shall be undertaken by between three and five Review Board
members appointed in each case by USADA's Chief
Executive Officer and composed of at least one technical, one medical and one legal expert.
b. The Review Board shall also review all potential anti-doping rule violations, including violations of Annex A, IF rules or the USOC ADP, not based on adverse analytical findings, which are brought forward by USADA. Review of potential violations other than adverse analytical findings shall be
undertaken by three Review Board members appointed in
each case by USADA's Chief Executive Officer.
c. Upon USADA's receipt of a laboratory B sample report confirming an adverse analytical finding (or test result of the A sample when analysis of the B sample has been expressly waived by the athlete or other person), or when USADA determines that a potential violation of other applicable antidoping
rules has occurred, the following steps shall be taken:
i. USADA's Chief Executive Officer shall appoint a Review Board as provided in Section 9(a) or 9(b) above.
ii. The Review Board shall be provided the laboratory
documentation and any additional information which
USADA deems appropriate. Copies of this information
shall be provided simultaneously to the athlete or other person and the athlete or other person shall be entitled to file a response with the Review Board. The athlete's or other person's name will not be provided to the Review Board by USADA and will be redacted from any documents submitted to the Review Board by USADA.
iii. The athlete or other person shall be promptly notified that within ten (10) days of the date of notice he or she may submit to the Review Board, through USADA, any written materials for the Review Board's consideration. The athlete or other person shall also be provided the name, telephone number, email address and website URL of the Athlete Ombudsman.
iv. The Review Board shall be entitled to request additionalinformation from either USADA or the athlete or other person.
v. Notwithstanding the forgoing, the process before the Review Board shall not be considered a "hearing." The Review Board shall only consider written submittals. Submittals to the Review Board shall not be used in any further hearing or proceeding without the consent of the party making the submittal. No evidence concerning the proceeding before the Review Board, including but not limited to the composition of the Review Board, what evidence may or may have not been considered by it, its deliberative process or its recommendations shall be admissible in any further hearing or proceeding.
vi. The Review Board shall consider the written information submitted to it and shall, by majority vote, make a signed, written recommendation to USADA with a copy to the athlete or other person whether or not there is sufficient evidence of doping to proceed with the adjudication process.
vii. USADA shall also forward the Review Board's
recommendation to the USOC, the applicable NGB and IF and WADA.
Will

Middle River, MD

#8 Sep 8, 2006
...MORE OF THE USADA PROTOCOL PROCEDURE THAT APPLIES TO THIS CASE:
10. Results Management / Adjudication
a. Following receipt of the Review Board recommendation, USADA shall notify the athlete or other person in writing whether USADA considers
the matter closed or alternatively what specific charges or alleged violations will be adjudicated and what sanction, consistent with Annex A, IF rules or the USOC ADP, USADA is seeking to have imposed. The notice shall also include a copy of the Protocol and the American Arbitration Association Supplementary Procedures for Adjudication of Doping Disputes (the "Supplementary Procedures") attached as Annex E. Within ten (10) days following the date of such
notice, the athlete or other person must notify USADA in writing if he or she desires a hearing to contest the sanction sought by USADA. The athlete or other person shall be entitled to a five (5) day extension if requested within such ten (10) day period. If the sanction is not contested in writing within such ten (10) or fifteen (15) day period, then the sanction shall be communicated by USADA to the athlete or other person, USOC, the applicable NGB and IF and WADA and thereafter imposed by the NGB. Such sanction shall not be reopened or be subject to appeal unless the athlete or other person can demonstrate by a preponderance of the evidence in a subsequent appeal to CAS that he or she did not receive either actual or constructive notice of the opportunity to contest the sanction. The athlete or other person may also elect to avoid the necessity for hearing by accepting the sanction proposed by USADA. If the sanction is contested by the athlete or other person, then a hearing shall be conducted pursuant to the procedure set forth below.
b. The hearing will take place in the United States before the American Arbitration Association ("AAA") using the Supplementary Procedures. The parties will be USADA and the athlete or other person. USADA
shall also invite the applicable IF and WADA to participate either as a party or as an observer. The athlete or other person shall have the sole right to request that the hearing be open to the public subject to such limitations as may be imposed by the arbitrator(s). For their information only, notice of the hearing date shall also be sent to the USOC, the Athlete Ombudsman and the applicable NGB. If the athlete or other person requests, the Athlete Ombudsman shall be invited as an observer.
c. The final decision by the AAA/CAS arbitrator(s) may be appealed to the Court of Arbitration for Sport ("CAS") as set forth in Article 13 of Annex A. The appeal procedure set forth in Article 13 of Annex A shall apply to all appeals not just appeals by International-Level athletes or other persons. A CAS appeal shall be filed with the CAS Administrator, the CAS hearing will automatically take place in the U.S. and CAS shall conduct a de novo review of the matter on appeal which, among other things, shall specifically include the power to increase, decrease or void the sanctions imposed by the previous AAA/CAS Panel. Otherwise the regular CAS appellate rules apply. The decision of CAS shall be final and binding on all parties and shall not be subject to further review or appeal.
d. In all hearings conducted pursuant to the Protocol, the requirements set forth in the WADA Code shall apply. If no WADA Code requirement is applicable, then, subject to paragraph 3(f), the IF antidoping rules, the USOC ADP and the Protocol shall apply.
Will

Middle River, MD

#9 Sep 8, 2006
...MORE OF THE USADA PROTOCOL PROCEDURE THAT APPLIES TO THIS CASE:

e. All administrative costs of USADA relating to the testing and management of athletes' samples will be borne by USADA. Administrative costs of the USADA adjudication process (AAA filing fee, AAA administrative costs, AAA arbitrator fees and costs) will be borne by the USOC.
f. If the athlete or other person files an appeal with CAS, the CAS appeal fee will be paid by the athlete or other person and refunded to the athlete by the USOC should the athlete prevail on appeal.
g. The results of all hearings, including written decisions, shall be communicated by USADA to the athlete or other person, the USOC, the applicable NGB and IF and WADA. The NGB and/or USOC shall impose any sanction resulting from the adjudication process. The NGB and/or the USOC shall not impose any sanctions until after the athlete or other person has had the opportunity for a hearing pursuant to section 10(b).
TrustButVerify

Redwood City, CA

#10 Sep 8, 2006
Cool-- thank's for the process info. It appears this board gets to read submissions, and decide whether they want USADA to pursue it to hearing.

I guess we agree now there doesn't need to be a B sample test to go forward if the athlete waives it.

TBV
TrustButVerify

Redwood City, CA

#11 Sep 8, 2006
Is there a previous example of a request for an open hearing? The original reports from 3 weeks ago said there had never before been one, which would make the request unprecedented rather than "unprecedented".

Oh, you got me on the technical language about MOTIONS; I was trying to use terms most people more or less understood.

TBV
Will

Bowie, MD

#12 Sep 8, 2006
...a lot to pick through, I know, but what you WON'T find anywhere in this USADA Protocol provision regarding "Results Management"(the term for review of CONFIRMED AAF results) is a rule or other authority which allows for the "filing" of "motions", dismissal or otherwise.

What you WILL find is a procedure by which a Review Board of appropriate experts is set up, sort of like a a grand jury, to review the Lab confirmation documents, as well as any other documents the parties wish to submit or which the Board itself requests be submitted; THIS IS NOT A HEARING -- NO LIVE TESTIMONY OR ARGUMENT IS MADE AT THIS STAGE. The Board deliberates and decides WHETHER THERE IS SUFFICIENT EVIDENCE OF DOPING TO PROCEED WITH THE ADJUDICATION PROCESS. IF THE BOARD RECOMMENDS THAT THE PROCESS PROCEED, THE ATHLETE IS NOTIFIED OF THE PROPOSED SANCTION AND THAT HE/SHE HAS 10 DAYS IN ORDER TO REQUEST AN ARBITRATION HEARING TO HAVE THE MATTER REVIEWED FURTHER.

I don't expect USADA to be making public statements from this point on, unless to announce that Landis has accepted a proposed sanction or, possibly, to announce details of any public hearing; I DO expect lots of announcements from the Landis camp, as they continue their spin campaign through the media, "open letters" on their website, and revved-up blogging.
Will

Bowie, MD

#13 Sep 8, 2006
TrustButVerify wrote:
Is there a previous example of a request for an open hearing? The original reports from 3 weeks ago said there had never before been one, which would make the request unprecedented rather than "unprecedented".
Oh, you got me on the technical language about MOTIONS; I was trying to use terms most people more or less understood.
TBV
1) I was trying to cut down on using CAPS for emphasis, thus "unprecedented" instead of unprecedented;

2) You weren't concerned with "trying to use terms most people more or less understood" the other day when Robin Maguire called this review process an "appeal" and you told him that he was "incorrect", because at this stage in the process there was nothing to "appeal from"; well I say Robin is "more or less" correct, since most people DO understand this process as an appeal -- INCLUDING THE TdF, whose website lists Landis' win status as "contested, pending appeal". I'm sure you would think the TdF unjust beyond words if, by some miracle Landis' review IS dismissed before any hearing takes place, but the TdF continues to contest his win status on the grounds that no "appeal" ever took place!
Will

Bowie, MD

#14 Sep 8, 2006
CORRECTION: Strike the work "miracle" and replace with "calamity"...hehehe!
TrustButVerify

Redwood City, CA

#15 Sep 8, 2006
The grand jury analogy isn't right either; Bicycling's "Boulder Report" does it to. In a grand jury, there is testimony, and the defense doesn't exist. In the review board, there's no testimony, but the defense does get to answer the full collection of evidence in written submission.

In addition to the two choices Will notes,(a) take a proposed sanction without a fight and (b) schedule a hearing, there is also (c) decline to pursue, because they don't want to defend the evidence at a hearing based on their judgement of how it will hold up against the defense that was offered.

They have a lot of discretion. If they chose not to proceed, I think WADA and the UCI can complain and take it to CAS without a USADA hearing.

An interesting question is whether what would effectively be a dismissal at this stage would be taken by the public as a vindication to his reputation. I think that depends on the quality of the material he puts out next week. It it appears convincing on the merits, maybe it works. It its only "legal trickery" that doesn't address merits, maybe he's "off" but still tarnished.

TBV
Will

Bowie, MD

#16 Sep 8, 2006
TrustButVerify wrote:
Cool-- thank's for the process info. It appears this board gets to read submissions, and decide whether they want USADA to pursue it to hearing.....
...if they are going to roleplay as "decisionmakers" in this "open" and "transparent" process, why shouldn't they be REQUIRED to know and abide by the procedural rules, just like the REAL decisionmakers they pretend to want to be?
Will

Bowie, MD

#17 Sep 8, 2006
TrustButVerify wrote:
The grand jury analogy isn't right either; Bicycling's "Boulder Report" does it to.....
Well, as somebody you respect and admire once said: "I was trying to use terms most people more or less understood."
TrustButVerify

Redwood City, CA

#18 Sep 8, 2006
You tell me -- from your rule extracts, I don't see many procedural rules relevant to the Review Board. They get the materials, have a meeting, and take a majority vote whether to proceed or what sanction to recommend.

What seems non-transparent is (a) the vote; and (b) whether all the submissions are made available. It's up to Landis whether he want to make all the material available, I think. If he thinks there's a good chance he'll win here, then it's probably to his advantage to make everything public he can, so there will be no question what he was up against, and what he claimed was wrong with it. If the board agrees with his assesment and declines to pursue, it would be over unless there is appeal by WADA/UCI to CAS.

I'd agree that keeping the materials secret would be bad for his credibility, which is why I've been advocating full disclosure at every opportunity.

What more would you want him to do?

TBV http://trustbut.blogspot.com for Landis news, research, and comment.
TrustButVerify

Redwood City, CA

#19 Sep 8, 2006
Will wrote:
<quoted text>
Well, as somebody you respect and admire once said: "I was trying to use terms most people more or less understood."
"I resemble that remark!"
Gris

Aarhus, Denmark

#20 Sep 8, 2006
Throughtout the time I am been reading these fora (Floyd Landis) I´ve lost almost all confidence in americans. It is so utterly pathetic to read comments from people who mix up court procedure and ICU procedure - making their own "law".

I also realise why you where not walking the streets when your president where elected first and second time - weather you were pro or contra. How can you bring democracy to Irak? The war in Irak is based on lies.

Is it fair to mix sport and politics? No - but tell me: Do you have an independent press? Do you check media around the world? Do you see TV from other parts of the world? Are you being critical? How much effort do you put into finding the truth?

I do understand that you americans trust nobody when it come to facts served by the media - but not all media are corrupt. Just go ahead .....

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