Confirmed test results: A new uphill battle for American cyclist Floyd Landis

I. Introduction

It goes by
many different headlines: doping, steroids, performance enhancing drugs
(PEDs).  It is an issue that rears its head in competitive sports time
and time again.  A controversy has been building for years and is
currently unfolding: allegations of a champion American cyclist having
used PEDs during the Tour de France.  But the American cyclist that the
French accused for so long is retired, and his former teammate now sits
opposed to the pointing finger of the cycling world.  This time the
cycling world has some evidence to support its claims.  [1] 
This article analyzes the charges that the current Tour de France
champion cyclist Floyd Landis faces and the course of appealing those
charges. 

II. The alleged doping is the type that enhances the athlete's recovery and energy levels

Floyd Landis has tested positive for synthetic testosterone. 
Synthetic testosterone use conjures thoughts of oversized men in
colorful briefs with even more colorful tans, but endurance athletes do
not use testosterone to build muscle per se.  Instead, the hormone is
used to help speed recovery of muscle depletion from stress and to
increase mental and physical energy levels.  [2]  This allows the athlete to perform at peak levels for longer periods of time.  [3] 
In the Tour de France, where day long cycling followed by day long
cycling is the competition itself, increased recovery, mental focus and
physical energy can set a champion apart from a second place finish, in
this case merely 57 seconds [4].    

III. The established testing procedure aims for accuracy while protecting the athlete's rights

Simply because Landis tested positive is not to say that he is
guilty of violating cycling anti-drug rules, because the process
involves a second test to confirm the first.  [5]  This
is the first main assurance of a reliable testing procedure, that each
test is verified by splitting an athletes urine sample into two, an A
sample and a B sample.  [6]  The A sample is tested.  [7]  If the A sample returns a positive result for any banned substance, then the B sample is tested to verify that result.  [8]  This
procedure is followed to ensure the athlete’s rights are protected. 
After all, the punishment for use of a banned substance carries a
likley two year prohibition from international competition and
forfeiture of any prize money, in this case 450,000 Euros, not to
mention the damage to Landis' reputation.  [9]

The second second main testing procedure to ensure no foul play is
that the athlete signs the seal of the vial which stores the sample and
has the right to attend the B sample test to ensure that it is indeed
this athlete's sample being tested.  [10]  A strict chain of custody is maintained to prevent tampering with the samples.  [11]  These
testing procedures were adopted by the UCI of its own accord, and are
consistent with the testing procedures of other international and
national sports organizations.  [12]

Often athletes have contested the scientific basis of testing procedures.  [13] 
As such, governing bodies should implement independent testing between
the two samples to avoid the conflict of interest that exists for the
laboratory verifying its own results.  In a field such as this, where
the reliability of the science is highly debated [14],
independent laboratory verification would give the athletes, the sport
and the public further assurance of the reliability of testing.  It
also would eliminate a grounds of attacking the reliability of the
testing procedure which athletes have used in the past.  Athletes in
the past have had positive test results overturned due to discrepencies
in the testing procedure.  [15]  It appears that
Landis will mimic this type of defense by putting Chatenay-Malabry lab,
the lab in charge of completing tests of both samples, on trial as part
of his defense.  [16]  An independent laboratory
verifying the results of the A sample test could prevent errors in the
testing procedure and also close this avenue of defense in future
cases. 

III. The US is responsible for government its own athletes, even when the drug test was complete by a foreign body

In an international sporting competition, the international
federation (IF) of that sport is the governing administrative body.  In
the sport of cycling, that IF is the International Cycling Union
(UCI).  [17]  IFs allow the home national governing
body (NGB), in this case USA Cycling, to administer any disciplinary
action against the athlete.  [18]  USA Cycling as
well as the US NGB’s of other sports have passed on the duty of
regulation to the independent agency the US Anti-Doping Agency
(USADA).  [19]  The USADA acts on the recommendation
of the USADA Review Board, which serves in a manner analogous to a
grand jury, to see if there is a valid case.  [20] 
This panel reviews the record as it stands: tests, USADA documents, the
athlete’s written response and oral statements, but no oral in-court
testimony is allowed.  [21]  The USADA then makes a charge and sanction on the recommendation of the board.  [22]  This
serves as comparable to a final judgment from a trial court.  On
September 13th, the USADA Review Board made a recommendation that
Landis be sanctioned.  [23] 

At this point, an athlete does have appeals available to challenge
the sanctions.  The athlete has two options, seemingly affording a
channel of appeal as right, as is the case with the US judicial
system.  First, the athlete can go to a panel of arbitrators in the US,
the American Arbitration Association (AAA).  [24]  Then that decision can be appealed to the Court for Arbitration in Sport (CAS) in Sweden, which serves as a final decision.  [25]  In the alternative, the athlete can go straight to the CAS for a final decision.  [26]  It appears from initial reports that Landis will appeal the sanction in front of the AAA.  [27]  This will afford Landis two bites at the apple, so to speak. 

IV. Conclusion

UCI now leaves it to American agencies to regulate its own athletes,
creating the potential for international backlash against American
authorities if Landis wins his appeal.  It is a difficult position for
the USADA.  The US has had a reputation in the international sporting
community of PED abuse and poor regulation.  [28]  With
pressure on US authorities to crack down on its athletes, a US body may
be harsher on Landis than an international body.  It seems that Landis
does not think so by deciding to forego the option of being heard in
front of the CAS.  A hearing before the AAA affords two benefits: 1)
lowered legal costs and 2) the ability to appeal yet again to the CAS. 
Landis has decided these benefits outweigh the risks of a possibly
harsher U.S. panel.  Only time will tell whether this is the most
effective appellate strategy.  In this case the decision of the AAA is
expected in early 2007; from there Landis will be able to appeal to the
CAS if need be.  [29]   


[1].  AP, Landis sample shows high and synthetic testosterone (August 6, 2006),   http://sports.espn.go.com/oly/cycling/news/story?id=2539409.

[2].  ESPNews (ESPN television broadcast August 6, 2006).

[3].  Id.

[4].  AP, supra note 1.

[5].  U.S. Anti-Doping Agency: faq, http://www.usantidoping.org/resources/faqs.aspx (follow "Adjudication Process" hyperlink) (last visited September 30, 2006). 

[6].  Id.

[7].  Id.

[8].  Id.

[9].  AP, supra note 1.

[10].  U.S. Anti-Doping Agency: Doping Control Process, http://www.usantidoping.org/what/process/processing.html (follow "3" hyperlink) (last visited September 30, 2006). 

[11].  Id.

[12].  Sarah Baldwin, Comment, Performance Enhancing Drug Use: A Comparison of U.S. and Australian Approaches, 24 Loy. L.A. Int'l & Comp. L. Rev. 265, 278 (2002).

[13].  ESPNews, supra note 2.

[14].  Id.

[15].  Id.

[16].  AP, Board tells USADA to pursue Landis doping case, (September 23, 2006) http://sports.espn.go.com/oly/cycling/news/story?id=2599598.

[17].  AP, Landis test shows high and synthetic testosterone, supra note 1. 

[18].  Id. 

[19].  Travis T. Tygart, Winners Never Dope and Finally, Dopers Never Win: USADA Takes Over Drug-testing of U.S. Olympic Athletes, 1 DePaul J. Sports L. Contemp. Probs. 124, 131 (2003).

[20].  US Anti-Doping Agency: faq, supra note 5.

[21].  Id.

[22].  Id.

[23].  AP, Board tells USADA to pursue Landis doping case, supra note 16.

[24].  US Anti-Doping Agency: Doping Control Process, supra note 10.

[25].  Id

[26].  Id.

[27].  AP, Board tells USADA to pursue Landis doping case, supra note 16.

[28].  Sarah Baldwin, supra note 12. 

[29].  ESPNews, supra note 2.