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Floyd Landis loses CAS appeal

  • By VeloNews.com
  • Published Jun. 30, 2008
  • Updated Jul. 4, 2008 at 5:29 PM EDT

Landis: “I’m looking into my legal options”

The Court of Arbitration for Sport ruled that Landis’s “unbelievable” performance in stage 17 of the ’06 Tour was just that.

Photo: AFP (file photo)

Characterizing his defenses as “unfounded,” the International Court of Arbitration for Sport (CAS) on Monday issued a strongly worded dismissal of Floyd Landis’s appeal of his suspension for doping at the 2006 Tour de France.

In a 3-0 decision released on Monday, CAS confirmed the initial decision issued by a panel of the American Arbitration Association (AAA) on September 20, 2007.

“Consequently, Floyd Landis is disqualified from the Tour de France 2006 and is suspended for a period of two years starting from 30 January 2007. Floyd Landis has been ordered to pay the sum of $100,000 to the United States Anti-doping Agency (USADA) as a contribution towards its costs in the CAS arbitration.”

In a brief statement issued through his attorney’s office, Landis expressed disappointment with the outcome of the case that began nearly two years ago.

“I am saddened by today’s decision,” Landis said. “I am looking into my legal options and deciding on the best way to proceed.”

“We are very disappointed in the result,” said Landis attorney Maurice Suh. “The evidence strongly supports Floyd’s innocence. We maintain that the French laboratory’s work violated proper procedures and that these violations were not simply technical in nature. They resulted in the inaccurate findings at the heart of this case. CAS’s decision, which does not give credence to these violations, does little to require that laboratories and anti-doing agencies are held to the same high standards as are athletes.”

Travis Tygart, the head of the U.S. Anti-Doping Agency, said he was “satisfied with the decision.”

“We weren’t surprised by the outcome,” Tygart told VeloNews. “We did a full review of the evidence from the start. Before we brought charges in this case, every day we reviewed the evidence we had and asked the same question, ‘does this point to a doping violation?’ We were comfortable that we had the case when we started.”

“This sends a message that no one — no matter what resources they have at their disposal — can hide from the truth,” Tygart told VeloNews.

Michael Straubel, professor of law and director of the Valparaiso University sports law clinic said the decision represents an “overwhelming” win for USADA.

“There really isn’t anything the Landis side can walk away with in this one,” Straubel observed in an interview with VeloNews.”I’m really struck by the language and tone of this decision.”

Straubel, and the Valparaiso clinic, hold the distinction of mounting the only successful defense against a doping charge brought by USADA when they defended American track sprinter LaTasha Jenkins in 2007.

Landis was originally stripped of his 2006 Tour de France title last year after a majority of a three-member panel of the North American Arbitration Association found that the former Phonak rider had used exogenous testosterone on at least one occasion during the race.

In a public hearing at California’s Pepperdine Law School in May of 2007, Landis attorneys Howard Jacobs and Maurice Suh successfully attacked procedures used in the French national anti-doping laboratory in Châtenay-Malabry (LNDD) when it initially found the rider had an unusual testosterone/epitestosterone ratio during the Tour. While the panel’s two-member majority rejected the results of Landis’s initial T/E test, it accepted the results of a follow-up procedure — the Carbon Isotope Ratio test — designed to detect the presence of artificial testosterone and suspended the rider for two years.

“The first thing I noticed in the decision,” said Straubel, “is that (CAS) didn’t even go that far. In the initial decision, the first panel even gave the lab something of a warning. I didn’t see any of that here. This decision is an outright rejection of every part of Landis’s defense.”

The Landis case, a timeline

2006

July 19: Landis loses the Tour de France yellow jersey after stage 16. He falls more than eight minutes behind leader Oscar Pereiro.
July 20: Landis relaunches his bid for the yellow jersey, winning the 17th stage after a 130km attack. His stage win puts him 30 seconds behind Pereiro.
July 23: After seizing the yellow jersey in a time trial, Landis becomes the third US cyclist to win the Tour de France.
July 27: The International Cycling Union (UCI) announces an unidentified Tour de France rider tested positive for a performance-enhancing substance. Landis’ Phonak team confirms his “A” sample tested positive for an abnormal ratio of testosterone to epitestosterone.
July 27: Landis denies doping in a teleconference with US reporters.
Aug 5: The UCI says Landis’ “B” sample confirms the “A” result. Phonak sacks him. Tour de France officials say they no longer consider him the winner, although he can’t be stripped of the title until the appeal process is complete.
Aug 15: Phonak owner Andy Rihs disbands the team.
Sept 9: The US Anti-Doping Agency denies motion by Landis to dismiss the case.
Oct 12: Landis posts hundreds of pages of technical documents on his Web site, followed by public appearances drumming up support and funding for his defense.
December: USADA requests permission to test Landis’ seven backup samples from the 2006 Tour.

2007

Jan 12: The French Anti-Doping Agency summons Landis but agrees to delay its probe until after the USADA arbitration.
April: Arbitrators vote 2-1 to allow testing of Landis “B” samples at the French lab that conducted original Tour de France tests. L’Equipe quotes an anonymous source saying samples contained synthetic testosterone. Landis’ camp claims observers were denied access to testing and analysis.
May: Nine-day arbitration hearing before a three-person panel.
Sept 20: Arbitration decision announced, 2-1 against Landis.The UCI strips Landis of his Tour victory.
Oct 10: Landis announces he will appeal to the Court of Arbitration for Sport (CAS).

2008

March 19: Landis appeal is heard by a Court of Arbitration for Sport panel in New York.
June 30: CAS rejects Landis appeal.

Landis exercised his options under the World Anti-Doping Code and appealed that decision to CAS. The CAS panel — composed of New Zealander David Williams, French attorney Jan Paulsson and New York lawyer David Rivkin — heard Landis’s appeal in New York in March of this year and the resulting 58-page decision was issued Monday.

The panel rejected virtually all of the defenses Landis and his legal team raised in both the public hearing at Pepperdine in May, 2007, and in the appeals hearing in New York, in March. Indeed, from the tone of the decision, it appears that at least some members of the panel were offended by some of the legal strategies employed during the appeals process.

Landis had charged that laboratory staff at Châtenay-Malabry had engaged in outright fraud in testing and reviewing samples provided after Landis’s stage 17 victory at the Tour. In a closing brief, Landis attorneys alleged that “Mr. Landis’s search for the truth in this case has been obstructed – often with devastating results – by the presence of bias, inconsistent and false statements and fraudulent documents … The decision to include these arguments was not made lightly and only after deliberation and careful analysis of the record. Much of this evidence went completely unanswered at the CAS hearing. The search for the truth should end with the vindication of Mr. Landis, not in the affirmation of bad lab practices and poor oversight.”

The CAS panel, however, disagreed, noting that it had “found no evidence at all to sustain any of these. Moreover, the Panel is surprised that such serious allegations should be pursued in the closing brief when in must have been clear at the end of the hearing that there was no evidential basis from expert testimony or otherwise to support them.”

The panel reserved some of its strongest language for that portion of the decision in which it took the unprecedented step of charging an athlete a portion of the cost of prosecuting the case.

The panel found that despite Landis’s claims, there was “no evidence” of misconduct on the part USADA in prosecuting the case.

“On the contrary,” the panel concluded, “if there was any litigation misconduct it may be ascribed to the appellant.”

Noting that while Landis had the right to pursue a comprehensive appeal, “all of its multiple defenses have been rejected as unfounded. All the appellant has established after a wide-ranging attack on the LNDD is that there were some minor procedural imperfections. This was not surprising in view of the unprecedented scope and intensity of the technical challenges made against the LNDD by the appellant and his witnesses.”

The panel further faulted Landis’s legal team for intentionally driving the costs of the appeal higher when they “gave notice requiring a number of witnesses to be present in person for the cross-examination in New York, but then elected not to call them thus causing the respondent to incur significant and ultimately unnecessary cost.”

WADA chairman John Fahey had suggested in May that Landis be billed for an estimated $1.3 million in costs associated with the case. The panel, however, limited the figure to $100,000.

Tygart said the court’s unprecedented decision to order Landis to pay even a portion of the cost of the appeals process is due “in no small part to the fact that he set out to embarrass not only the French (national anti-doping) lab, but the entire anti-doping process. He intended to bankrupt WADA in the process. The decision to charge him for costs is a result of that.”

Straubel agreed that the panel’s decision to charge Landis at least some of the cost of the case “is evidence of their displeasure with the way he tried to defend himself. That’s one worry I do have here. I hope this doesn’t have a chilling effect on anyone else’s decision to mount a vigorous defense in the future.”

Tygart, however, said the CAS panel did not intend to discourage accused athletes from attempting to defend themselves.

“The message is not that you are not allowed to mount a vigorous defense,” he said “but if you abuse the system — with a stated goal of bringing down the entire anti-doping system with unfounded claims — then there is going to be a price. This was a costly case, but as far as I am concerned the price would have been a lot higher had a wealthy athlete been able to buy his way out of an offense.”

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