Landis again making his case, this time before CAS
Floyd Landis' appeal of his positive doping test begins Wednesday morning in New York City before a three-man panel of the Court of Arbitration for Sport with none of the buildup or drama -- but the same significance, if not more -- as his initial, turbulent hearing last spring.
Landis, who has spent more than $2 million on his own defense, won the 2006 Tour de France on the road and lost it on paper more than a year later when an arbitration panel upheld the test results, prompting race organizers to strip him of his title.
Key participants in CAS appeal
• Jan Paulsson: Selected by Landis, Paulsson is a French lawyer of Swedish heritage and a partner in the Paris firm of Freshfields Bruckhaus Deringer. He is among the most experienced international arbitrators in the world, has handled a number of multinational commercial cases, and recently helped establish an arbitration center in Dubai. Paulsson chaired the CAS panel that overturned Spanish cyclist Inigo Landaluze's positive test for synthetic testosterone last year, citing procedural error in processing the sample.
• David W. Rivkin: Selected by USADA, Rivkin also has wide-ranging experience in international arbitrations. He is a partner at Debevoise & Plimpton, whose offices will host the hearing. Rivkin chaired the arbitration panel that stripped British alpine skier Alain Baxter of his 2002 Olympic bronze medal after he tested positive for a banned stimulant contained in a nasal inhaler. The panelists said they believed Baxter had no intent to cheat, but had to rule against him because of the strict liability standard.
• David A.R. Williams: The New Zealander, who will chair the panel, is a former judge who is steeped in the area of international arbitration.
USADA's Legal Team
• Richard Young: A veteran litigator in doping arbitrations, Young is with the Colorado Springs-based firm of Holme, Roberts & Owen and will again serve as USADA's lead lawyer.
• Matthew S. Barnett: Barnett, who cross-examined Landis at the last hearing, will assist Young. Barnett and his wife started their own law firm earlier this year, with a largely sports-oriented practice that includes advising various Olympic sports governing bodies and representing the Professional Rodeo Cowboys Association.
• Maurice Suh: From the Los Angeles office of Gibson, Dunn & Crutcher, Suh heads Landis' defense. Suh, a former L.A. deputy mayor, has taken on several other cases involving accused cyclists since he began representing Landis and is currently serving as a legal adviser to the Rock Racing team.
• Paul Scott: The scientific adviser is a research chemist who formerly worked at the World Anti-Doping Agency-accredited laboratory at UCLA. He recently resigned from the Agency for Cycling Ethics, an independent testing organization he co-founded, under pressure from his partners because of his involvement in the Landis case. Scott has contended he was entitled to express his candid opinion about the quality of lab work.
-- Bonnie D. Ford
At stake for Landis is possible vindication, or at least some relief in how much longer he will be banned from competition. At stake for the U.S. Anti-Doping Agency is a high-profile case that also has consumed an enormous amount of time and resources -- and a perfect record. CAS has never overturned the decision of a USADA-convened hearing panel.
The CAS hearing is scheduled to take five days and conclude Monday, with Easter Sunday off. Much the same legal cast that argued for and against Landis at a contentious nine-day arbitration hearing last spring is reassembling in the midtown Manhattan law offices of Debevoise & Plimpton, where one of the CAS arbitrators is a partner.
Most CAS arbitrations are heard at its headquarters in Lausanne, Switzerland, but both sides agreed on New York City as a compromise. Unlike the original hearing, held in a mock courtroom at the Pepperdine University School of Law in Malibu, Calif., this proceeding is closed to the public under CAS rules.
The CAS appeal is probably Landis' last chance to try to prove that tests showing the presence of synthetic testosterone in his urine after Stage 17 of the 2006 Tour de France were flawed. (Athletes rarely appeal to the court of last resort, the Swiss Federal Tribunal, because that body only hears cases that involve a possible violation of Swiss law.)
Landis' comeback on that demanding day in the Alps essentially clinched the 2006 Tour for the 32-year-old, who broke away from his Mennonite upbringing in southeastern Pennsylvania to pursue a career as a professional cyclist. But three days after Landis lifted the trophy in Paris, the victory began to unravel when a positive A sample test was revealed.
The rider and his legal team argued that his urine samples were mishandled and the test results badly misinterpreted by the Chatenay-Malabry laboratory outside Paris responsible for analysis of Tour samples. USADA maintained the process was correct and the results reliable. The three-man arbitration panel that heard the case last May voted 2-1 to uphold the lab's findings, but even the two arbitrators who voted in the majority scolded the lab for sloppy procedures.
USADA protocol enabled Landis to request an open hearing the first time around. Major U.S. and European media outlets, along with cycling trade publications, covered the case daily. Courtroom seating accommodated friends and other observers, and streaming video was available online. This time, no one will be privy to the testimony except the participants.
A gag order prohibited the arbitrators, lawyers, witnesses and Landis himself from commenting during the last hearing. No such rule is in place this time, but both sides have preferred to shield their cards.
Landis' chief attorney, Maurice Suh, did not return several messages and phone calls made by ESPN.com. Landis, who barnstormed the country soliciting money and support in the months leading up to the first hearing, also declined to respond. USADA's lead counsel Richard Young told ESPN.com he would not comment until after the hearing, if then.
The CAS hearing is what is known in legalese as a "de novo" hearing, meaning it literally starts from scratch. Either side can present new witnesses and evidence. If a previous witness were to substantially change his or her testimony, lawyers could use transcripts from the first hearing to impeach them.
This hearing should turn on the questions of what constitutes proper laboratory procedure and solid science without the distracting and lurid detour taken by the first hearing, triggered by the testimony of three-time Tour de France winner Greg LeMond. Arbitrators on the first panel said they did not give LeMond's testimony any weight, and he is not expected to testify at the appeal.
LeMond initially was to have testified about a phone conversation with Landis shortly after the 2006 Tour in which Landis allegedly implied he was guilty. But LeMond's appearance veered into the sensational when he revealed Landis' friend and then-business manager Will Geoghegan had phoned him the night before and referred to details of LeMond's childhood sexual abuse in an apparent attempt to intimidate him. Geoghegan was subsequently fired and entered rehab.
Landis' punishment also is open for argument at the appeal. Most doping suspensions begin on the date of the offense, which would be two years ago this July. However, the USADA panel dated the beginning of Landis' sanction in January 2007.
The dispute involves when Landis is said to have accepted a voluntary provisional suspension after his positive test, timing which is in turn entangled with charges brought by French anti-doping authorities.
Landis' legal team is expected to argue that if the panel chooses to uphold his test results, the cyclist's suspension should end this July. USADA, on the other hand, may counter by claiming that Landis -- now fully recovered from hip replacement surgery -- violated the terms of his suspension by competing in a mountain bike race in Colorado, the Leadville 100, last August.
The CAS panel could take weeks or months to issue a written ruling. The USADA arbitrators released their split decision last September, four months after the hearing.
Tour de France organizers stripped Landis of his title after the USADA panel ruled and awarded the symbolic overall leader's yellow jersey to Spanish cyclist Oscar Pereiro. It's unclear what action Landis could or would take to regain the title if he were to win the appeal, since Tour spokesmen have repeatedly said they "no longer consider him the champion."
Bonnie D. Ford covers tennis and Olympic sports for ESPN.com. E-mail her at firstname.lastname@example.org.
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