Of Floyd Landis, Virgins & Procedural Justice

During an interview just after World War II, an Italian journalist asked the great Italian cycling champion, Fausto Coppi, if he ever used performance enhancing drugs (in that time Amphetamines). He answered that he only used them when it was necessary. “When is it necessary?” the journalist asked next.

“All the time,” he answered.

Drugs in cycling are ubiquitous. They always have been. So, the fact that Floyd Landis has exhausted his appeals of a positive doping test after Stage 17 of the 2006 Tour de France shouldn’t surprise us – he doped. They all dope. And USPS doped better than anyone else (according to members of the team who have come clean). USPS was a machine that would never allow something like a positive drug test to occur. How Landis let this one get away from him we will never know, but it probably has to do with his new team not being quite as good at it.

Now, after a ruling by the Court of Arbitration for Sport (CAS) upholding the test for synthetic testosterone conducted after an initial botched test of Landis’ A sample, WADA (World Anti-Doping Agency) and USADA (United States Anti-Doping Agency) are happy that they got their man. According to Travis Tygart (CEO of USADA), Landis “was not able to escape the consequences of his doping or his effort to attack those who protect the rights of clean athletes.” CAS castigated Landis’ efforts to discredit the French Laboratory responsible for conducting tests of athletes. The Tour director is happy that this is finally behind him and the 2008 Tour de France can go on without distraction (for about 5 minutes until the first doping violation emerges immediately after the prologue time trial).

This is an interesting area of international law. While developing international conventions with the goal of establishing uniform standards in testing across various sports, WADA raises questions of bureaucratic regulations and interpretations of rules promulgated by a veritable maze of international organizing bodies for sport. Here is WADA’s own description of itself:

WADA was set up as a foundation under the initiative of the IOC with the support and participation of intergovernmental organizations, governments, public authorities, and other public and private bodies fighting against doping in sport. The agency consists of equal representatives from the Olympic Movement and public authorities.

The maze is complicated by the fact that procedural protections for athletes that are commonly provided for criminally accused in United States courts are simply not there. Several examples are simply confounding, mostly because no one seems to care! The most recent is the statement from WADA today:

As with any athlete whose sample analysis resulted in an adverse analytical finding, Mr Landis had every opportunity to present his case to hearing panels at different stages of the process. He did so and chose in addition to mount an aggressive campaign against the anti-doping movement, spreading an unprecedented amount of misinformation in the public domain to attempt to derail the attention from the core of the case.

What this statement does not address is the finding by both the original panel and the CAS that the French laboratory followed questionable practices. Both determined that the original test (when properly conducted and interpreted) did not justify the second test for the presence of synthetic testosterone. Yet, such procedural violations were not grounds to overturn the positive doping test, return Landis’ Tour title, or overturn his two year ban from cycling. Furthermore, the statement simply continues the policy of criticizing Landis in the press for mounting a public campaign to fund his defense, and for making portions of his case available to the public.

Another example of how athletes lack basic procedural protections is the lip service paid to the innocent until proven guilty standard. WADA, USADA, and other international anti-doping institutions seem hell-bent on discrediting those accused of doping even before any hearing takes place. This is precisely the same kind of behavior that got Mike Nifong in trouble. Dick Pound, former president of WADA said this about Landis after his initial positive test (which, you might keep in mind, was botched, and should not have provided a basis for conducting a further test):

"I mean, it was 11 to 1!" (referring to the testosterone-to-epitestosterone level). "You’d think he’d be violating every virgin within 100 miles. How does he even get on his bicycle?"

He doesn't seem to understand that this isn't the point. And, I'm beginning to understand much more clearly why it is we love Rule of Law here in the United States. Generally speaking, prosecutors here keep their damn mouths shut until they are within the proper venue. WADA, USADA and heads of other agencies have used their positions as bully pulpits, and its an embarrassment.

The anti-doping system requires revision . . . because there is no good guy here. Floyd Landis used banned substances to recover from a massive “bonk” during stage 16, in which he cracked on one of the difficult climbs and fell out of the top ten leaders of the Tour. A guy like that should get the hell out of my sport. But, the procedural safeguards for athletes are inadequate. As much as I hate watching cycling on TV these days (robots on steroids on bicycles), it seems to me that WADA has been given authority to prejudice hearings, determine guilt ad hoc, announce this to the public, and complain when athletes defend themselves. God forbid that we should do what CAS says should be done – seek the truth in the matter.