Saturday, February 10, 2007

Landis is right

Floyd Landis responded yesterday to various news stories regarding requests by USADA that he approve testing of the B samples from the negative A sample tests from the Tour.

Cyclingnews reported:

USADA's request for further analysis of "B" samples is in clear violation the World Anti-Doping Agency (WADA) Code and Union Cyclist International (UCI) rules and is unprecedented in athlete anti-doping cases."

However, WADA legal director Olivier Niggli told L'Equipe that "The World Anti-Doping Code allows additional analysis on B samples only [as the A samples have already been used - ed.] when there is a need for it in the procedure."

So which is it? Can the B samples be used "when there is a need" as WADA claims or is the request a violation of the rules?

I looked through the WADA code and found no instances when WADA or USADA has the right to request testing of the B sample. In fact, section 7.2 clearly provides it is the athlete's right to request such testing and only if the A sample is positive.

This is about due process, one of the fundamental rights of a democratic society.

The WADA code recognizes this by placing the burden of proof of establishing that a doping violation has occurred on the agency. This standard of proof is:

greater then a mere balance of probability but less than proof beyond a reasonable doubt.

Well, what does that mean to non-lawyers? "Mere balance of probability" is basically more than 50% i.e. it is more likely than not that a violation occurred. It is the basic standard of proof in a civil case in the U.S.

"Beyond a reasonable doubt" is the legal standard for finding guilt in a criminal case in the U.S, i.e. a finder of fact (judge or jury) should be 99% sure of the finding.

So the standard of proof is somewhere in the middle. In the US this standard of proof is called "by clear and convincing evidence."

Some may argue that if Landis has nothing to hide, why not agree. Here's why. With this request from USADA Landis is in a no-win situation here. If he agrees to have the B samples tested and the Bs come back negative, he has gained nothing, as the corresponding As were already negative. Remember, a B sample is only used to confirm an A sample positive.

On the other hand, if the Bs test positive, everyone, will use it against him.

Landis is right. This request is a violation of at least the spirit, if not the letter of the WADA code. The athlete is innocent until proven guilty. Could this tactic by USADA reveal the true weakness in their case? That Landis is right, the tests on his positive A and B samples were bogus? Only time will tell.

You can view the WADA code at their website.

1 comment:

Peanut said...

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