Hearing set to begin in Landis doping case

Updated: May 14, 2007, 5:30 PM ET
By Bonnie DeSimone | Special to ESPN.com

After months of rancorous, largely unprecedented public debate, the curtains will part Monday on one of the costliest and most contentious doping cases in sports history.

Tour de France winner Floyd Landis and his legal team will try to dismantle the evidence amassed by anti-doping authorities in France and the United States and persuade a three-man arbitration panel that he did not use testosterone to boost his performance. His hearing at Pepperdine University School of Law in Malibu, Calif., will be open to reporters and spectators in a first of its kind.

Landis' reputation has been on the line since his positive tests for an elevated testosterone level and the presence of a synthetic form of the hormone were reported within days of the trophy ceremony in Paris last July. Since then, the case against him has taken more serpentine turns than any mountain road along the Tour route.

Floyd Landis
STADE 2/AFP/Getty ImagesLandis appeared on French television last November to answer questions.
The cyclist floundered initially as he offered various explanations for the test results. Then he collected himself. He hired a team of lawyers and public relations specialists and lashed back by attacking the science, procedures, politics and morality underpinning the testing and sanctioning system established under the World Anti-Doping Agency code. He has spent more than $1 million in the effort to clear his name and challenge the anti-doping infrastructure.

"I think the stakes are high on both ends," he told ESPN.com this week. "The way the system is now, it can't go on. I think there's a good chance that when everything is brought out into the light, the system is going to have lost all credibility. The ethics of the system need to be at least as good as the ethics they're trying to impose on other people."

Officials from the Colorado Springs-based U.S. Anti-Doping Agency, barred from talking about details of the Landis case by their own rules, maintain they pursued it because they have absolute confidence it is watertight. When USADA doesn't have the goods, according to general counsel Travis Tygart, the agency doesn't prosecute. Of 8,400 tests conducted in the U.S. last year, 44 resulted in cases being brought against U.S. athletes.

Tygart conceded he's found it difficult to be muzzled in the face of constant allegations of impropriety leveled at a higher volume than any in the agency's six-year history, but he downplayed the notion that the Landis case represents a milestone.

"The entity's credibility is at stake in every case," said Tygart, who will become USADA's chief executive officer this fall. "No one case is bigger than the system. We've never had anything to hide. We're thrilled to finally have the opportunity to show we followed the evidence. It's not easy bringing cases against American heroes, but we're asked and obligated to follow the evidence."

The hearing that will unfold over an estimated 10 days against the backdrop of the pristine hills and beaches of the famous southern California enclave has some theatrical overtones.

Rhetoric from both sides, in public and private, has often been strident and personal. On the sidelines, legions of cycling fans and interested observers have weighed in with opinions and research on Internet message boards, forums and blogs. Much of the discussion has been difficult to parse, both because of its complexity and because many people contributing to the online conversation have kept their identities, and therefore their credentials, to themselves.

"No matter how the hearing comes out, I think it'll be like the Kennedy assassination. There'll always be an alternative explanation for what happened, and the majority of folks will hear what they want to hear."
-- David L. Black, president of a private Nashville-based forensic and drug-testing laboratory

Yet those who expect courtroom drama, confessions and closure in Malibu may be disappointed. Each side is expected to call a minimum of a dozen witnesses whose testimony regarding Landis' test results, for the most part, will be numbingly, grindingly technical -- a trench war between dueling experts, directors of WADA-accredited laboratories, lab staff and independent scientists hired to monitor or interpret the tests.

Landis is scheduled to testify on his own behalf. Other witnesses could include family members, physicians and athletes.

Will following the case help people decide whether Landis cheated or not? David L. Black, the president of a private Nashville-based forensic and drug-testing laboratory who has testified for numerous athletes accused of doping, isn't terribly optimistic.

"The fundamental issues will come down to the science," Black said. "Some of this is going to be very boring to the lay audience, and probably to the hearing panel.

"No matter how the hearing comes out, I think it'll be like the Kennedy assassination. There'll always be an alternative explanation for what happened, and the majority of folks will hear what they want to hear."

Black has seen both sides of the equation. In the early '90s, he testified on behalf of Olympic sprinter and world-record holder Butch Reynolds, asserting that Reynolds' positive test for steroids was completely mishandled and his sample was probably switched with that of another athlete. Reynolds eventually won back his right to compete.

There has been "substantial improvement" in testing and adjudication procedures since then, Black said. He isn't very sympathetic to Landis' case, saying he trusts the reliability of the carbon-isotope ratio test that allegedly revealed the presence of synthetic testosterone in Landis' urine sample.

"I've witnessed this test," Black said. "Many people have tried to attack the credibility of this test, and it's a very elegant answer. The science is elegant and the way it's carried out is elegant. Unless there's gross negligence on the part of the French lab, I'm very confident in the results."

Gross negligence and outright sloppiness are precisely what Landis' lawyers hope to prove with regard to a lab whose work has been assailed by other athletes, most notably Landis' former teammate Lance Armstrong. However, USADA's Tygart and Larry Bowers, an analytical chemist who is the agency's senior managing director for technical and information resources, say they have no reason to doubt the French lab and its methodology.

In online and in-person presentations to supporters, Landis and his team have charged that the Laboratoire National du Depistage de Dopage (LNDD) outside Paris violated international standards in everything from paperwork to detecting possible sample contamination to interpretation of results to calibration of testing machinery to safekeeping of electronic data files related to the test results.

The defense team also said documents it received through an evidentiary request verified the authenticity of paperwork concerning the case of a swimmer whose test results, processed shortly before Landis' last July, were invalidated because of contaminated equipment. The paperwork was first sent to reporters and anti-doping officials by an unknown source last fall.

Defense efforts initially focused on discrediting Landis' test results after Stage 17 of the Tour de France, where his solo breakaway in the Alps vaulted him back into race contention after a shocking collapse the day before.

Floyd Landis
PASCAL GUYOT/AFP/Getty ImagesLandis still claims his ride to a 2006 Tour de France win was a clean one.
But in April, in the first significant ruling made by the panel, the arbitrators voted 2-1 to allow USADA to have the French lab analyze seven "B" samples, or backup samples left over from "A" samples Landis provided during the Tour that originally tested negative. USADA justified the rare request for testing outside of the normal protocol by saying the results could provide collaborating evidence of doping.

The Landis camp unsuccessfully fought the request and maintained that at a minimum, the samples should have been tested at a neutral lab with no vested interest in confirming its own results. The UCLA lab, Landis' first choice, could not do the testing because needed equipment was under repair, according to former lab chief Don Catlin, who is expected to testify for USADA.

Yet in a sense, the greater number of results gives both sides in the hearing a broader target.

In a story that did not cite its source, the French sports newspaper L'Equipe reported that several of the "B" samples showed the presence of synthetic testosterone. The near instantaneous leak was the latest in a steady drip to L'Equipe concerning Landis and other athletes, a trend that troubles many inside and outside the anti-doping establishment.

"It seems it's always the same reporter having access, or being privy to information which he should not have," professor Christiane Ayotte, director of the WADA-accredited laboratory in Montreal, told ESPN.com in a phone message. "For me, that is a concern. It casts a doubt on the confidentiality of the entire system. If a reporter can have direct access to results, it can be used to prove that we in the labs are biased or not considering seriously the confidentiality issue."

Neither side has verified the L'Equipe story, but it's safe to say that USADA will introduce the "B" sample results if they bolster its case. Should that happen, Landis' lawyers will attack that data with the same arguments they're using to try to undermine the Stage 17 test result -- and more.

The "B" sample testing last month gave rise to yet another serious dispute in the case. Landis' lawyers claimed his independent monitor was not allowed proper access during testing. When they moved to have the evidence gathered in the "B" testing suppressed, panel chairman Patrice Brunet and USADA-selected arbitrator Richard McLaren issued an order denying the motion without consulting Christopher Campbell, the panel member selected by Landis.

Campbell, a former Olympic wrestler who has frequently been a maverick in the small world of anti-doping arbitration, issued a stinging written rebuke to his colleagues. The last sentence is a frontal assault on the panel's integrity: "This violates the notion of fundamental fairness and should give the party who has experienced such unfair treatment cause for concern."

Brunet's e-mailed response to his fellow arbitrators and lawyers from both sides was that Campbell dissented on the original order to allow USADA to test the "B" samples and thus wasn't required to be part of any elaborations on that order. The motion is now being reviewed again by the full panel.

Arbitration experts contacted by ESPN.com agreed that Brunet and McLaren acted improperly.

"I consider this a flagrant breach," said professor George Bermann, who teaches alternative dispute resolution at Columbia University Law School and serves as an arbitrator in commercial cases. "There is no logical or principled reason for excluding [Campbell] from opining on the question."

Bermann said any conversation about the case -- whether it concerned the merits or a procedural matter -- without the full panel present would be inappropriate.

Marquette Law School professor Jay Grenig said excluding Campbell "creates a bad impression. … This case has been all about fairness, fairness of the process, fairness of testing, fairness of release of information. We generally expect that the whole panel would be involved in any decision that is made."

Inflammatory as the revelation about the panel's conduct appeared, it likely won't affect the case in the short term. Landis' lawyers did not comment on the flap and have said they are confident about the evidence they've collected. Any formal challenge to the panel's objectivity would be made after its final ruling -- expected three to four weeks after the hearing -- if at all.

However, Judge William Hue, a Wisconsin circuit judge whose intellectual interest in the case prompted him to publish several lengthy essays at a Landis-centric Web site, www.trustbut.com, said he considers the selection of arbitrators to be one of the weak links in the anti-doping system.

Hue said the pool of 38 arbitrators available for hearings in North America is too small, individual arbitrators' philosophical tendencies too well known and potential conflicts of interest too great given the arbitrators' participation in other aspects of international sports, such as serving on boards or commissions. "It's a political selection process," said Hue, who plans to travel to Los Angeles to attend the hearing.

The larger context for the Landis case is indisputably political. He has taken on a system that is in transition after being critiqued by athletes and leaders of some sports organizations who question its rigidity and due process, and say its net is catching small fish and letting big ones get away.

WADA code revisions currently under consideration include more flexibility in sanctions, a step back from the absolute liability standard that held athletes uniformly accountable for what was found in their test samples, no matter how it got there.

Another proposed change would allow anti-doping officials to speak more freely about cases when criticized by athletes, although Tygart said he envisions responding largely to scientific or technical issues rather than getting into name-calling.

"Do we like it when [WADA chief] Dick Pound or anyone else criticizes an athlete before a case is resolved? No," Tygart said. "It gives the impression that the process is less than fair and objective. We're not going to hold press conferences and defend our position. But we think [the proposed change] would substantially blunt the attacks."

Another proposed revision to the WADA code would rank the use of performance-enhancing drugs such as steroids, hormones and amphetamines as more serious and worthy of greater sanctions than other substances that have tripped up athletes which can be found in everything from Vicks VapoRub to hair-growing tonic to nutritional supplements.

Those changes wouldn't have affected Landis' case, and he definitely qualifies as a big fish. However, it rankles USADA's Tygart when people suggest the agency is overly invested in nailing a major scalp to the wall and preserving its perfect conviction record.

"No one here thinks of it as winning and losing," Tygart said. "It's never a win. [A doping conviction] means our prevention and education failed."

The open nature of the Landis case has been an education unto itself, a radical departure for a process traditionally conducted in secret, with little or no information for the public to digest between the test result and the punishment.

That opportunity is welcomed by many, including former elite distance swimmer Jessica Foschi, whose positive test for steroids when she was a teenager was overturned by international arbitrators in the pre-WADA era. Foschi, who graduated from Duke University School of Law this week, has written academic papers on the subject of doping and the justice system.

When Landis decided to go public with his arguments and hearing, prompting a wider examination of the system in the media and the blogosphere, "I thought it was great," Foschi said. "Finally, here's this side of the story, instead of perpetuating the idea that everyone who tests positive is guilty.

"Without commenting on what happened in [Landis'] case, I can completely understand his tactic," she said. "I remember feeling like [sports organizations] were completely in control of what the press was getting in my case. … Now the benefit is that people will understand who the different players are and the way the system is structured."

Landis, who has already served nearly half of his potential two-year suspension, said he's gratified that so many people have taken an interest in his case and hopes public scrutiny results in the fairest possible hearing. He hasn't thought much beyond that. Wednesday, he went for a 35-mile bike ride, knowing he'll have little time for recreation over the next couple of weeks.

Almost a year after his last competition, "I have some wonderful memories of racing and now some not-so-wonderful memories," Landis said. "Whether I race again after this, I'm going to have to evaluate as it comes."

Bonnie DeSimone is a freelancer and frequent contributor to ESPN.com.