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Floyd Landis verdict update: still waiting and waiting and waiting...

By Kenneth Barbalace
[Friday, August 17, 2007]

At the end of May and beginning of June we wrote a series of three articles on the Floyd Landis vs. USADA arbitration hearings related to accusations that he had doped on his way to winning the 2006 Tour de France. Our first article was written by my mother Roberta Barbalace. It was an initial look at what we saw to be a seriously broken chain of custody and bad testing procedures by the French testing lab LNDD - who was responsible for conducting the tests that accused Floyd Landis of doping. The second article was by me and decried most of the mainstream media for being suckered into the soap opera distractions of the hearings and not doing a good job of reporting on the science of the hearings, which was what really mattered. Our third article, which was again written by Roberta, came two or three weeks after the hearings were over and took a harder look at the chain of custody issues and relied on the just released official transcripts from the hearings rather than the "play by play" accounts posted by the blog "Trust but Verify", which was the de facto official source for all things related to the hearings. It was our conclusion then and still is that the testing procedures and chain of custody at the testing lab LNDD where so flawed and so incompetent that not only was their testing completely unreliable in Floyd's case, but that the integrity of ALL testing ever conducted at the lab was completely suspect. In short, we felt and still feel that the entire case against Floyd Landis should be thrown out and Floyd Landis exonerated. In our opinion, what was presented as scientific proof that Floyd Landis had doped was nothing short of scientific fraud perpetrated by the testing lab LNDD.

It is now the middle of August and I have been on a daily verdict watch for over two months. So far, there hasn't even been a hint of when a verdict is coming. Right near the beginning of this year's Tour de France some European reporters made predictions as to when we were going to hear the verdict but those predictions turned out to be unfounded. It seems to me that even the Supreme Court of the United States could reach a verdict in a more timely fashion.

I am really nothing more than a spectator to the proceedings and have found the wait for a verdict to have become a tedious experience. I can't even begin to imagine how frustrating it is for Floyd Landis and his family. The blog "Rant Your Head Off", which is one of the best written blogs I have found any where on the Internet, has also been on this verdict watch and unlike me has had an opportunity to meet and actually ride with Floyd Landis. In their latest blog post "Being Floyd Landis" Rant expresses the frustration I share with how poorly the media has covered this issue with a few exceptions. They also review a really long article in the New York Times by Sara Corbett entitled "The Outcast" (subscription may be required). As "Rant" points out, Sara Corbett is one of rare exceptions to the poor reporting by the mainstream media (Michael Hiltzik, of the LA Times is another), and "The Outcast" is an excellent view into Floyd Landis the person and just how it must be for him to have to wait for so long for a verdict to be rendered.

For spectators like myself the final verdict will have no impact on our lives other than a momentary feeling of satisfaction in feeling that justice had been served or feeling of outrage that the system is broken. As Sara Corbett points out in her article, however, for Floyd Landis and his family the wait must be an excruciatingly long and frustrating purgatory. Their lives are in limbo and they can not make plans for the future. For the good of the sport of cycling and out of fairness for Floyd Landis, I hope the final verdict is a unanimous decision that is solidly based on the science of his case not the soap opera drama. At the same time, I hope that the opinions written by the arbiters are exceedingly well crafted so that we can all feel confident that justice was served. I also hope for the sake of Floyd Landis and his family the wait for a verdict is not too much longer.

At this rate, once all of the appeals have been exhausted and there is every reason to believe the verdict will be appealed regardless of outcome, the final adjudicating of this case and Floyd Landis' ineligibility to compete while his case is being heard will be as long or longer than if he had just rolled over and accepted a suspension from the get go. This is not justice. Athletes should have a right to thorough, fair and speedy hearings if they decide to contest doping allegations. It should not take longer than a year simply to get through the primary arbitration process and athletes should not need to spend over two million dollars (as Floyd Landis has done) to mount a defense. If an athlete is guilty of doping, they need to be exposed and suspended from their sport with their sporting records stripped (this includes baseball by the way). Any system, however, that is designed to catch athletes who dope will on an occasion wrongly accuse innocent athletes, and innocent athletes deserve the right to speedy hearings which clear their names. In the quest to rid sports of doping, innocent athletes should not have their lives destroyed by a system designed to railroad athletes or be left in purgatory for an eternity when they contest their cases.



Anonymous said...

Good job with the Landis column. You're right -- there has been very little original reporting.

I have never read, anywhere, about the procedure that was used for collecting samples and getting them to the lab. Who was in charge? What were the safeguards? Has the procedures been changed for this Tour? If, so, why? What would that tell us?

Also, gambling on the Tour is big. Try Googling it. Some stood to make big money by discrediting Landis, if their money was on another rider. Would it have been so hard to do? If I were on the Herald Tribune staff, or if I were a French investigator, I'd look into who (from collection to the lab) has been spending money beyond their means since last summer.

Take note that a former high-ranking Mafiosa is speaking before American tennis organizations on how to spot and deal with gambling. If you'd like to read the article, I'll send it to you.

Ken (EnvironmentalChemistry.com) said...

There has never been any questioning of the integrity of the chain of custody from when the samples were donated after the TDF stages until they reached the LNDD testing lab. All of the breakdown of CoC took place within the testing lab itself. Up until the seals were broken for testing, the CoC remained intact and appears to have been handled properly. It was when actual testing started that things started to break down.

Gambling could be an interesting angle to this story, but it really seems from reading the hearing transcripts that this is really a case of incompetence at LNDD, not malice.

Jim said...

Amazing column sir! For the past two months, I have had a Google News Alert running to capture any news of a verdict. During that time, I have become more and more infuriated with the lack of research being done by reporters. I have seen several instances where people have mentioned how Landis had his title stripped.

The absolute worst "article" was written by Dave Mckenna from the Washington City Paper. When I personally called him out on his inaccuracies, he dismissed them because he is "not paid by the word." He even resorted to petty attacks against other people commenting.

Thank you for being the exception to the rule.

Jim Urbine

Larry said...

Ken, we'd all like to see doping allegations resolved quickly, fairly and cheaply. However, you cannot maximize all of these qualities at the same time. A quick process is rarely fair, and a fair process is rarely cheap.

You work on the science side of things, you can probably express how each of three factors can run in inverse proportion to the other two.

Ken (EnvironmentalChemistry.com) said...

Larry you do have a point, but there was also a lot of obstructionism from WADA/USADA in the Landis case that prevented a proper discovery and significantly dragged out his case. If it was spelled out from the get go that the athlete has the right to full discovery (as would be normal in a criminal case) a lot less time and money would have been wasted on this part of his case.

Of course if WADA held their labs to the absolutely highest standards of accountability (along the lines of the UCLA lab) Landis probably wouldn't be sitting in the situation he is today. Really, this is the root problem. If the labs were held to the highest standards and their testing work completely transparent, there would be little room left for arguing over the science of the case. Problems with the work at LNDD have been known since long before Landis' case and the problems we have seen in Landis' case could have been avoided.

Larry said...

Ken, I understand where you are coming from.

The most expensive and time-consuming aspect of conventional litigation is discovery. If you've ever been on the other side of a discovery request (and maybe you have!), you'll know what I mean. The side making the request can only vaguely describe what they're looking for, and to some extent, they're probably "fishing" for information. Since "asking" is cheap and you don't want to miss anything, you tend to ask for a lot. The side receiving the information has to figure out what information it has (this is a daunting task in and of itself at most organizations) and what portions of the available information fairly fit within the parameters of the request.

In short, the "full discovery" you describe is time consuming and expensive. To whatever extent you can say that money can be "wasted" in a legal process, much of that waste takes place in discovery. So I can't agree that USADA's effort to limit discovery was necessarily wasteful -- there might have been even more waste if USADA had placed no limits on the discovery process.

It's not uncommon to set up a legal decision-making process (for example, a government administrative proceeding or a private arbitration system) that limits discovery. If you're looking at things from a more abstract perspective, placing a limit on discovery can be a good thing. These limits can speed the decision-making process, and hopefully keep the costs down to something more affordable.

So while you and I might not be happy with the information provided by USADA and LNDD in the Landis case, I'm not sure that "full discovery" is a better alternative. I don't think that "full discovery" would have helped Landis. Assuming for the moment that there are facts "out there" that would prove Landis innocent, I don't think these facts are spelled out on a piece of paper sitting in a locked drawer at LNDD. My suspicion is that these facts were never properly documented in the first place ... and thus cannot be unearthed by discovery of documents.

I think you're on the nose when you discuss lax supervision of LNDD by WADA. I'm not an expert on cycling, but I grow increasingly appalled by the existing state of affairs in this sport. The system of governing pro cycling is broken and dysfunctional. Sorry to say, but within this system, justice is impossible.

Ken, forget "full discovery." What's needed is "full reform", from top to bottom. From this perspective, Landis is a hero, regardless of whether he was falsely accused, because he's fought relentlessly against a bad system.

Ken (EnvironmentalChemistry.com) said...

Larry, I understand what you are saying about "full discovery" but Landis' legal team wasn't even allowed to take depositions of the testing lab personnel responsible for conducting the tests. How much of the interpreting mess we saw in the hearing room could have been avoided by this step alone? Also a lot of the delays in Landis case came about because of USADA/WADA fighting against any and every disclosure request. Landis should have been afforded the same rights of disclosure as would have been permitted a defendant in a criminal case. It might not have lowered the costs of this case any, but it would have gone a long way towards due process. Many of the requests that USADA fought against were not vague requests. They were very specific and should have been obligatory to honor without prehearing legal wrangling. Some of the stuff USADA/WADA sat on for months before giving to Landis' legal team. For instance why did it take so long to get untranslated copies of the lab reports? Why couldn't Landis' team get complete mirror images (copies) of the hard drive containing the testing files as requested? What about the raw data resulting from the processing of Landis' samples? Landis' team should have been given electronic copies of all of this data immediately and without requesting it. If you are going to accuse someone of something, give them access to the evidence you are going to use. This is basic legal procedure.

Larry you are very right about the state of affairs in the sport of cycling. The TLAs (three letter acronyms) which are UCI, ASO and WADA are at war with each other for control of power and the sport of cycling, the athletes and the fans are suffering as a result of this. Team Discovery disbanding at the end of this season after having riders take 1st, 3rd & 8th as well as winning the best young rider and best team trophies in the Tour de France is a tragedy. Arguably the best team to ever compete in cycling is simply walking away from the sport after having their best year ever. Think about it, how many teams in history can say they won the most coveted trophy for their sport eight of the ten times they competed for it? Not only that, they even won the most coveted competition in their sport (the TDF) seven years in a row.

Larry I agree with you about Landis being a hero. I am more impressed by him from how tirelessly he has fought against the bad system than I am by what he accomplished on a bicycle.

He has utterly convinced me that he is innocent because I just can't see how anyone who was guilty could keep up a charade of innocence through everything he has gone through. Somewhere along the way a guilty person would have either broken down and given up or been utterly and irrefutably exposed by their own actions or their "inner circle".

Virtually every ounce of evidence brought against him was laid open for the world to see. Can you think of a single legal case where the "defendant" so willingly exposed everything to public scrutiny?

Can you think of any other case where so much of the legal and scientific community dissected every little bit of a case to the finest detail? Simply think about the caliber of the commentators "Trust but Verify" had during the hearings -- Bill Hue is a circuit court judge after all.

It wasn't just a bunch of rabid cycling fans declaring the innocence of their sporting idol. Many members of the public who were taking such a keen interest of this case are highly intelligent people who are extremely well qualified in fields related to this case. For many their interest in this case was purely academic because they knew they might never get an opportunity to look at a case and its evidence in such detail ever again.

The real tragedy of the way the much mainstream media reported this case is that they treated it as just another sporting scandal when there was such a bigger and much more compelling story to be told.

Larry said...

Well ... there's no way for us to know whether Landis doped. But you're right Ken, guilty people don't tend to act like Landis has acted. (I don't mean to sound snarky, but guilty people tend to act the way Ullrich has acted.)

I don't argue with anything you've said about the conduct of USADA and LNDD in this case. I don't expect people to behave nicely in litigation, and I expect that a certain amount of gamesmanship is inevitable in the process of discovery. Why hand the other side a valuable piece of evidence if it can be avoided?

I guess what disappoints me is that USADA never presented the kind of case that someone like me could understand. I would have liked a much more transparent explanation of how LNDD operated, how the tests were performed and what they mean. The case as presented almost seemed to acknowledge the weaknesses of the LNDD procedures, and to ask us to decide that the failings of LNDD did not matter. It's an old legal doctrine of "harmless error", and it's not one of my favorite doctrines.

I didn't think that the defense case was all that transparent, either, but (outside of "Perry Mason") it's not the job of the defense to make sense of what happened. It's the job of the defense to poke as many holes as it can in the prosecution's case.

You (and others) seem to think that the science all lines up with the Landis defense. It's not all that clear to me. It's not that I'm incapable of understanding a cogent scientific explanation, and I've read much of what's been written (on TBV and elsewhere) summarizing the Landis team's view of the science. But the prosecution has some able defenders on the DPF. For most of us non-scientists, the science melts down into a battle of dueling experts, and I for one cannot reconcile the expert opinion on both sides.

In any event ... you've set forth some good thoughts about the WADA process, so I don't want to get too far afield. Just thought I'd say that I get what you're saying and agree with most of it. Only wanted to throw a little doubt on the idea that the best way to fix a bad process is to add more process to it.

Mike Schwab said...

One thing I am wondering about. They said they performed 19 tests of his testosterone level and kept the last one that had the high levels.

Should one of their procedures been to test standard samples to calibrate thier equipment and procedures? And to shake the sample before testing to make sure the contents were evenly distributed? Does the testosterone settle to the bottom? If they took care to not disturb the sample, and took just a little off the top each time, would the level in each sample slowly increased? And when they got to the last 1/19th part of the sample, the reading shot way up? Could someone else's sample be tested like this to confirm this? Would a centrifuge produce a similar concentration profile from top to bottom?

Anonymous said...

Amen Jim!

Anonymous said...

“Justice delayed is justice denied.” William E. Gladstone (British Statesman and Prime Minister (1868-1894)).

Anonymous said...

Ken, in response to your first comment, the CoC before the samples arrived at the lab was indeed in question. Typical of the rest of the CoC, the transportaion sheet for the samples that were taken from the stage to the lab does not contain the number that Floyd signed for. This was pointed out in Arnie Bakers powerpoint on FloydFairnessFund.org.

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