In U.S. federal court motion, Landis claims arbitrators had conflicts of interest
Suspended cyclist Floyd Landis has taken the unusual step of challenging the decision to uphold his positive doping test, stepping outside the anti-doping adjudication system to try to prove in U.S. federal court that his case was not fairly heard by a sports arbitration panel.
Lawyers from firms in California and Texas filed a motion late Thursday in U.S. District Court in Los Angeles to vacate the June arbitrators' award in Landis' appeal to the Court of Arbitration for Sport. That award left Landis suspended for two years and caused him to forfeit the 2006 Tour de France title.
The lawyers filed the motion on the grounds that the three men on the panel -- including the arbitrator Landis chose -- should have disclosed conflicts of interest that could have led to bias in their decision.
The core of Landis' argument this time is that the three CAS arbitrators who heard his case come from a limited pool of candidates who often switch roles, sometimes serving as panelists, sometimes serving as lawyers representing clients in front of those panels -- thus giving them an incentive to rule favorably for each other.
Jan Paulsson, the high-profile Swedish lawyer chosen by Landis as a panelist, and Richard Young, the U.S. Anti-Doping Agency's lead counsel in the case who also serves as an arbitrator, are cited as prime examples.
The motion also contends that the arbitrators are inclined to rule for the anti-doping agencies in order to continue getting work. In addition, according to the motion, the arbitrators have served in the same rotating roles in high-stakes, non-sports cases.
If Landis were to be successful in the long-shot appeal, he said Friday, "I think I'd have some sense of exoneration -- maybe not what I had hoped for.''
In the short term, Landis said his goal is to get the federal court to vacate the $100,000 fine for reimbursement of legal costs that was levied against him by the CAS panel. His racing suspension ends Jan. 29, but Landis said he has been informed by the USADA that he will not be able to race until he pays the fine, which he argues was arbitrarily imposed and not supported by any evidence.
Young was traveling Friday and said he had not seen the motion, which also asks for a jury trial, and could not comment on specifics. He said he would be surprised if the federal court had jurisdiction over the case, and referred to the recent example of sprinter Justin Gatlin, who was unable to persuade a U.S. Court of Appeals judge to block a CAS-imposed ban on Gatlin's eligibility to compete in the Olympic trials last summer.
"Because CAS is a Swiss body [headquartered in Lausanne, Switzerland], if you want to attack a CAS award, the vehicle is the Swiss Federal Tribunal," Young said. "As far as I know, everyone who has gone outside of that has been unsuccessful."
Young, a veteran litigator based in the Colorado Springs, Colo., office of the Holme, Roberts and Owen law firm, said he has abided by a CAS rule that prohibits arbitrators from serving on panels while they are representing clients in cases pending before CAS."The arbitrators based their $100,000 cost award on unsworn statements by USADA's lawyer after the close of the evidence, denying Mr. Landis a right to respond," the motion stated. "In addition, the cost award was outside the scope of the arbitrators' power because the issue of costs had not been formally submitted for decision, and because such an award is not contemplated by the rules governing the proceeding."
The arguments concerning the arbitrators' alleged conflict of interest were made possible only after CAS recently posted archival information -- most of it pre-2003 -- about past cases on its Web site, according to the motion. Prior to that, it had been hard to determine the identities of arbitrators and lawyers involved in specific hearings.
Calling USADA a "repeat player" that frequently brings cases before CAS, Landis' lawyers argued that arbitrators have a "powerful incentive" to rule against athletes in order to secure future assignments. The motion singled out six cases brought against athletes in which Paulsson had represented the International Olympic Committee before panels that included Young as a member.
In addition, the motion stated, Paulsson's firm of Freshfields, Bruckhaus, Derringer represented the city of London during its successful bid process for the 2012 Olympics, which was decided in 2005 by a vote of the IOC members. "Thus, members of the Freshfields firm, particularly Mr. Paulsson, have a significant economic incentive to espouse positions favorable to the IOC and little interest in embracing positions taken by an athlete with adverse interests.''
Bonnie D. Ford is a senior writer for ESPN.com.