Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 1 of 108 1 1 a '> J 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 91 79 7^ 75 26 27 28 ROGER G. WORTHINGTON, ESQ. CA Bar No. 202147 LAW OFFICE OF ROGER G. WORTHINGTON. P.C. 273 W. 7* Street San Pedro, California 90731 Telephone: (310) 221-8090 Facsimile: (310)221-8095 nvorthington(§rgvvpc.com KAY GUNDERSON JREEVES, ESQ. TX Bar No 6815 Lakeshore Dr. Dallas, TX 75214 Telephone: (214) 824-7871 Facsimile: (214) 824-8677 kaygreeves@;yahoo.com Attorneys for Petitioner ...■■■^ *^. ^ 08620470 f » X ■■ IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CAJLIFORNIA EASTERN DI\T[SION 7 V rvSr:! :l i\i €% LANDIS Petitioner, CASE NO: / and S UNITED STATEI2J ANTI AGENCY MOTION ■ TO VACATE ARBITRATION AWARD DEMAND FOR JURY TRTAT Trial Date: Action Filed: Not yet assigned Respondent. //- 3' o^ [ I V i^-t r,3o p^ n v\^ /r Motion to Vacate .Arbitration Award / Q 11 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 2 of 108 1 Because the arbitrators considering Floyd Landis's anti-doping appeal failed 2 to disclose business dealings and relationships creating a powerfiil incentive to rule 3 in favor of his opponent the U.S. Anti-Doping Agency, Mr. Landis was denied a 4 fundamentally fair arbitral hearing in front of a panel of impartial arbitrators. 5 Wliat he received instead was a fundamentally unfair hearing in which the 6 statements of USADA's counsel were given evidentiary weight while record evidence was ignored, and a hearing in which both the law and the evidence were disregarded. This Court should exercise the authority granted by the Federal Arbitration Act, 9 U.S.C. A. §§10 and 12, and vacate the award issued in the 10 arbitral proceeding known as Floyd Landis v/USADA, CAS 2007/Ay 1 394.^ 12 I. PROCEDUMAL ISSUES 13 A. Jurisdiction and Venue ^' ^ h***^*— ^*^^^^H*M********«»»^-^w«*f«W*^^^ 14 Mr. Landis moves to vacate the arbitral award issued by the Court of 15 Arbitration for Sport ("CAS"), the body to which Mr. Landis appealed an adverse 16 arbitration decision issued by a U.S. panel pursuant to the protocol of the United 17 States .Anti-Doping Agency. USADA v. Floyd Landis, Case No. .AAA 30 190 IS 00847 06 ("the Appealed Case"). Thus, this motion to vacate arises under the '■ The CAS Panel's decision is attached to this Motion as Exhibit 1 . The Motion to Vacate Arbitration Decision -1- 7 J* / 11 12 IS Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 3 of 108 1 Federal Arbitration Act, 9 U.S.C. §10, §12. There is complete diversity of citizenship bet^^-een the parties, and the amount in controversy exceeds 575,000, so this Court has jurisdiction pursuant to 4 28 U.S.C. §1332(a). Because Mr. Landis moves to vacate the arbitration award based not only upon the statutory grounds articulated in the Federal Arbitration Act but also upon federal common law rules, a federal question is presented, and jurisdiction is proper 8 under28 U.S.C. §1331. 9 In the alternative, and out of an abundance of caution, Mr. Landis alleges that 10 this motion arises under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), 9 U.S.C. §§201-208, presenting a federal question that vests this Court with jurisdictior 13 under28 U.S.C. §1331. ^^ ^^nue is proper in the Central District of California under 9 U.S.C.A. §§9-11 15 and 28 U.S.C. §1391. The claims described herein arise out of a relationship 16 between the parties that was initiated in this district and performed in substantial 17 part in this district over a period of years. The contract binding Mr. Landis to arbitration with the Defendant was executed by him in this district, performance transcript of the hearing is attached as Exhibit 2. Motion to Vacate Arbitration Decision -7.- 1 1 3 A 11 17 IS Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 4 of 108 perfonnance of a substantial portion of his obligations occurred in this district, and F Defendant supen'ises U.S. athletes including Mr. Landis in this district on an ongoing and continuous basis. Enforcement of the S 1 00,000 penalty awarded bv the arbitrators in Defendant' s favor will occur in this district. The Defendant, through its agents, does business in this district, and its activities are continuous and substantial. Alternatively, venue is proper in this district under 9 U.S.C,§ 204. B. Parties 9 Petitioner FLOYD LANDIS , an elite road cyclist pronounced the winner of 10 the 2006 Tour de France, is an individual citizen of Riverside Count}', California. The UNITED STATES ANTI-DOPENG AGENCY, INC. ("USADA") i IS a 12 not-for-profit corporation with its principal place of business in Colorado Springs, 13 Colorado. In the United States, USADA is responsible for the management of 14 anti-doping testing and adjudication of enforcement actions arising under the Worid 15 Anti-Doping Code. ^^ C. Procedural Historv ^ "" ^ ' - . ._ On July 23, 2006, Floyd Landis placed first in the Tour de France and was pronounced its winner, marking the eighth year in a row that an American rider had 19 won road cycling's most prestigious staae race. Motion to Vacate Arbitration Decision -:>- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 5 of 108 1 -^ J 17 During the course of the race, Mr. Landis gave multiple urine samples as part of the race's anti-doping program, samples that were tested by the Laboratorie National de Depistage et du Dopage ("LNDD").^ Two days after the Tour ended. 4 the LNDD notified his international cycling federation, Union Cycliste 5 Internationale ("UCF') that the ratio of testosterone to epitestosterone [the "T/E 6 ratio"] in the "A" sample he provided after Stage 1 7 of the Tour exceeded the 7 permissible limits set by the World Anti-Doping Agency ("WAD A"), a result the 8 LNDD allegedly confirmed by perfomiing a Carbon Isotope Ratio C'CIR" test).^ 9 Upon Mr. Landis ' s request, LNDD performed T/E ratio and CIR tests on the "B " 10 portion of his sample on August 3-5, 2006, reporting that these results confiraied 11 the "A" on August 5. Based on the results of both the T/E ratio and the CIR tests. 12 the LNDD reported an "Adverse Analytical Finding" under the WADA Code, a 13 finding that was subject to enforcement in the United States by US AD A. ^^ U^d'^r the applicable UCI rules, adjudication of Mr. Landis's alleged dopinj 15 violation was to occur in the United States. Ex. 3, AAA Panel Decision at %5-6. 16 Though UCI rules charged his national federation, USA Cycling, with responsibility for conducting that proceeding, USA Cycling had contractuallv - Each sample given is divided into an "A" portion and a "B" portion ^ Also commonly referred to as an "IRMS" test. Motion to Vacate Arbitration Decision -4- 1 I o 14 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 6 of 108 delegated its enforcement responsibilities to USADA, which commenced an 2 anti-doping proceeding against Mr. Landis in September, 2006. In May, 2007, an 3 original arbitration hearing was held before a panel of the North American Court of 4 Arbitration for Sport of the .American Arbitration Association ("the AAA Panel"), a 5 proceeding governed by the USADA protocol and California procedural law. 6 The AAA Panel issued its decision on September 20, 2007, concludins that the T/E ratio test results did not support the doping violation because the LNDD had failed to perform that test (and some aspects of the CIR test) in compliance with the International Standard for Laboratories ("ISL"). However, a 2- 1 10 majority of the Panel voted to sustain the doping violation, concluding that LNDD's 11 failure to perform certain aspects of the CIR test in compliance with the ISL had not 12 caused an incoixect result. The AAA Panel suspended Mr. Landis for a two-year 13 period running from January 30, 2007 through January 29, 2009, imposing tremendous financial hardships on a man who had never made a living from any 15 activity other than cycling. Ex. 3, AAA Panel Decision at f 320(1), (6). ^" Mr. Landis appealed this decision to the appellate division of the Court of IS Arbitration for Sport ("CAS^O on October 8, 2007. Pursuant to CAS rules, he 19 made his arbitrator selection in November, 2007, choosina Mr. Jan Paulsson. Motion to Vacate Arbitration Decision -a- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 7 of 108 ] -> USADA selected New York lavvyer, K4r. David Rivkin and, upon information and belief, the president of CAS 's Appellate Division selected the panel president, Mr. 3 David Williams, after consulting with Mssrs. Paulsson and Rivkin. Ex. 4. , CAS 4 Rule R54. The panel selection process was completed by mid-November, 2007. 5 The Panel conducted a de novo appeal hearing from March 19-24, 2008 in 6 New York City in March, 2008, pursuant to USADA Protocol, f 10( c) and CAS 7 RuleR57. Ex. 4 and Ex. 5, USADA Protocol. Both parties to the appeal s were domiciled m the United States, the AAA decision appealed from was decided 9 under the procedural rules of the state of California, and on appeal, U.S. 10 substantive law was applicable since neither the parties nor the CAS panel made a 11 different choice in the manner provided by CAS rules. Ex. 4, CAS Rule R58. 12 During the appeal proceeding, CAS applied USADA and UCI protocols as well as 13 its own appellate procedural rules. 1' On June 30, 2008, the CAS Panel not only dismissed Mr. Landis's appeal, it A 15 imposed $ 1 00,000 in US ADA's litigation costs against him, even though UCI rules 16 do not provide for such an award, no evidence had been introduced to support such 17 an award, and the issue of costs was not among the list of issues submitted to the IS Panel for decision. That award will be enforced in the United States; indeed, both 19 USA Cycling and USADA have already informed Mr. Landis that they will not 6- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 8 of 108 1 issue him a USA Cycling license until he pays the penalty in fiill. Ex. 5, Letter to 2 Floyd Landis from Wilham Bock III, September 1 9, 2008. The $ 1 00,000 award 3 has effectively extended his tW'O-year suspension indefinitely, until such time as Mr. 4 Landis-who has never made his living apart from cycling-is able to come up with 5 the money. 6 Mr. Landis petitions this Court to invoke the authority granted to it under 7 the Federal Arbitration Act, 9 U.S.C. §10 and §12, and vacate the CAS panel's s appellate award. In the alternative and out of an abundance of caution. Mr. 9 Landis petitions this Court to invoke the authority granted to it under the New York 10 Convention, 9 U.S.C. §§201-208, and vacate the CAS panel's appellate award. 12 D. Grounds for Motion to Vacate the CAS Panel's A ward 13 21. The CAS panel award should be vacated because Mr. Landis was 14 denied a fimdamentally fair hearing for the following reasons; 15 16 a) the CAS arbitrator selection process institutionalizes a "repeat player" ^~ bias into the CAS appeal system, creating an unconscionable system in ^s which athletes are denied a chance at an impartial panel [9 U.S.C. 19 § 10(a)(2); New York Convention, Art. V, § 1 (a) and (d), Art. V, §2(b)]; -/- 1 9 4 / 8 10 11 12 13 14 15 16 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 9 of 108 §2(b)]; b) the CAS arbitrators exhibited evident partiality by failing to disclose dealings creating a reasonable impression of possible bias and partiality, and by acting with actual bias [9 U.S.C. § 10(a)(2); New York Convention, Art. V, §l(a) and (d), Art. V, §2(b)]; c) the arbitrators based their $ 1 00,000 cost award on unsworn statements made by USADA's lawyer after the close of the evidence, denying Mr. Landis a right to respond. In addition, the cost award was outside the scope of the arbitrators' power because the issue of costs had not been formally submitted for decison, and because such an award is not contemplated by the rules governing the proceeding. The cost award was made in manifest disregard of the law, and was unconscionable; [9 U.S.C. § 10(a)(3), § 10(a)(4); New York Convention, Art. V, §l(a), (b) ^7 ( c), §2(a) and(b)]; ^^ . ^) *e procedures and time limits adopted by the CAS panel during the -8- 1 1 / 10 n 13 16 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 1 of 1 08 appellate proceeding prohibited Mr. Landis from presenting his case [9 U.S.C. § 10(a)(3); New York Convention, Art. V, §l(b)]; e) the arbitrators failed to base their substantive decisions upon the evidence presented, but instead relied upon non-evidentiary statements made by counsel for USADA (and fellow CAS arbitrator), Mr. Richard Young [9 U.S.C. § 10(a)(3), (4); New York Convention, Art. V, §l(b), s §2(b)]; f) the arbitrators repeatedly refused to consider Mr. Landis 's evidence. mi tantamount to a refusal to hear pertinent evidence at all [9 U.S.C. A. 12 § 1 0(a)(3); New York Convention, Art. V, § 1 (b)]; 1^ g) the arbitrators acted in manifest disregard of the law and their own 15 rules: ^^ ^) The arbitration procedures as applied in Mr. Landis's case were 16 unconscionable. 19 II. ARGUMENT -9. 1 13 16 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 11 of 1 08 ^ A. The CAS appeal process denied Mr. Landis a fundaraentallv fair 3 hearing decided by impartial arbitrators 5 1. The CAS arbitrator selection process is hea\ily biased in 6 favor of the doping enforcement bodies, who nominate a 7 majoritj' of the arbitral pool, and who are in a far better 8 position to know which arbitrators are likely to share their 9 interests. ^° Only those cyclists holding a cycling license from their national federation 11 are eligible to compete in elite international road cycling events like the Tour de 12 France, and as a condition of being granted a license, each cyclist asrees to the jurisdiction of the Court of Arbitration for Sport. Ex. 6, Floyd Landis 's Cycling 14 License; Ex. 7, UCI Anti-Doping Rules at Parts L VIL DC, X, XI; Ex. 3, AAA Panel 15 Decision at «|4, IHlO-ll. The forai and terms of the cycling license, including the consent to the Court of Arbitration for Sport's jurisdiction are not subject to 17 negotiation; if the athlete wishes to compete, he must consent to the license terms. 18 As required by UCI rules and the US ADA Protocol, Mr. Landis 's submitted his initial arbitration to a panel of the North American Court of Arbitration for Sport; it -10- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 12 of 108 1 / .Arbitration for Sport; it is the appeal of that process that is the subject of this motion to vacate. 3 At first glance, the CAS appellate procedure presents the appearance of 4 balance. Each party selects one arbitrator, with the panel president selected by the 5 president ofCAS's Appellate Division. Ex. 4, CAS Rules 48, 53-54. However, 6 the CAS arbitral pool is heavily dominated by lawyers selected by the organizations charged with enforcing anti-doping regulations. Though CAS 's parent 8 organization, the International Council of Arbitration for Sport (ICAS) formally 9 selects the CAS arbitral pool, it chooses three-fifths of the pool members from lists 10 submitted by the International Olympic Committee (IOC), the national Olympic n committees in each member country, and international sports federations like UCI. 12 Ex. 4, CAS Rule SI 4. These are the entities that enforce anti-doping regulations 13 against athletes. While ICAS selects one-fifth of the CAS arbitration pool "after 14 appropriate consultation with a view to safeguarding the interests of the athletes," r * 15 organizations representing athletes are not provided an opportunity to submit lists 16 of candidates for appointment to the CAS arbitrator pool. Arbitrators in the pool 17 serve renewable four-year ternis. ^^ The IOC, the sports federations, and the national Olympic committees clearly 19 have the ability to stack the CAS pool with arbitrators representing their interests, -11- 1 n / Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 1 3 of 1 08 interests, while athletes and athlete organizations have no formal ability to influence the composition of the arbitral pool. Conversely, any arbitrator 3 nominated by one of these bodies has a reciprocal interest in advancing their agenda 4 thereby increasing the chances of renomination at the end of the four-year term. 5 As if this advantage were not significant enough, it is heightened by the fact that 6 these nominating bodies-and the entities like US AD A that share their interests-are in a position to know which arbitrators they proposed for inclusion in the CAS pool s (and to share that information with other anti-doping enforcement bodies like 9 US AD A), hi contrast to an individual athlete, each organization charged with 10 prosecuting anti-doping offenses certainly knows the identities of any lawyers it 11 nominates, and is in a position to gain access to the names of proposed arbitrators 12 submitted by the other federations or sports organizations because they all have an 13 interest in sharing this information amongst themselves, and with like-minded 14 enforcement agencies such as US ADA . By process of elimination, then, they can 15 identify those nominated by ICAS to reflect the athletes' interests. The athlete, by 16 contrast, is m no position to known how any particular arbitrator gained 17 admission to the pool, and in no position to make an informed choice. No • *■ 18 organization representing athletes nominates arbitrators, nor are the IOC, sports 19 federations or national Olympic committees likely to share their knowledge about -Js- ^*m Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 1 4 of 1 08 1 the CAS pool members with athletes charged with doping violations. The athlete 1 / alone is totally in the dark about the manner in which any particular arbitrator is 3 selected for inclusion into the CAS pool. 4 The sports federations and agencies not only dominate the pool selection 5 process and have a significant knowledge advantage over the athlete, but they also 6 gain an advantage because they appear before the CAS on a regular basis, in contrast to individual athletes. By virtue of their regular enforcement activities 8 ''repeat players'' like USADA are frequently in the position of selecting the 9 individual arbitrators who serve on particular appeal panels, while individual 10 athletes are unlikely to fmd themselves in this position. Any arbitrator interested in 11 being selected to serve on a regular basis has an incentive to curry favor with those 12 repeat players" by taking positions favorable to them. This repeat player bias is 13 well^recognized. Acorn v. Intern., Inc., 211 F.Supp,2d 1 160, 1 169-70 (N.D. Cal. 14 2 002) (advantages to repeat participants in the arbitration market are well-known); r 15 Ex. 8, Letter from Laurence Schultz, President, Public Investors Arbitration Bar 16 Association to Nancy Morris, Secretary, Securities and Exhange Commission, April 1^ 16, 2008 (describing repeat player bias), IS Any protection an athlete might gain from his right to select a single 19 arbitrator is undermined not only by the heavily-slanted pool selection process, but -13" Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 15 of 108 1 7 also by CAS Rule R59, which allows the president of a CAS appellate panel to 2 decide the case alone, in the absence of a majority. Ex. 4, CAS Rule R59. 3 Appellate panel presidents, including the Landis panel president, are chosen by 4 the President of the CAS Appellate Division, a position currently held by Mr. 5 Thomas Bach, who also serves as Vice-President of the IOC. Ex.4, CAS Rule 6 R53. Thus, in the unlikely event that an athlete is lucky enough to select an arbitrator included in the CAS pool to "safeguard.... the interests of athletes," that 8 arbitrator can be overruled completely by a panel president selected by the 9 Vice-President of the IOC. That is a particularly troubling prospect in Mr. 10 Landis 's case, because comments Mr. Bach made to the media the day his "B" 11 sample results were made public confirmed that Mr. Bach had prejudged his case. 12 Ex. 9-A, "Reacktionen auf den Fall Landis," comments of Thomas Bach, IOC 13 Vice-President, Samstag, August 5, 2006, http: //www.n-tv.de/696797.html 14 (Commenting that the fact that Landis could be suspended immediately furthered 15 the goals of the International Olympic Committee, of which he is Vice-President); 16 Ex.9-B, Declaration of Seth Davidson. 1^ Upon closer examination, the CAS system provides only illusory protections 18 to athletes, whose participation in the system is guaranteed by the adhesion 19 contracts they sign as a condition of eligibility. Ex. 6, Landis USA Cycling -14- 1 9 3 A D / 10 13 14 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 1 6 of 1 08 License. Athletes have no influence on the constitution of the pool no influence on the decision to renew a pool member's appointment, no access to information about how any particular arbitrator came to be a member of the pool, and, because they appear infrequently before CAS panels, cannot take advantage of the "repeat player" bias favoring anti-doping agencies like USADA. The system created is entirely one-sided, and institutionalizes bias in favor of the "repeat players;" as such the system is both procedurally and substantively unconscionable, justify in ' "^"'■■"•'o 10 reasonable impression of partiality or possible bias. Mr. Paulsson, Mr. Rivkin and 11 Mr. Williams should have disclosed that they represented parties before the CAS 12 and/or affirmatively solicited business to provide such representation, parties with 13 interests adverse to those of athletes seeking to prove their innocence. Mr. 14 Paulsson and Mr. Rivkin should have disclosed that Mr. Rivkin was sittins i j,m 15 judgment of Mr. Paulsson and his client, the IOC, in tliree pending cases at the very 16 time that both were selected to sit on the Landis panel. And Mr. Paulsson should 17 have disclosed his ongoing representation of the IOC, as well as the fact that he had 18 repeatedly appeared before Mr. Young and Mr. Rivkin, and could expect to do so in 19 the future. -30- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 32 of 108 1 4 Each of these arbitrators had a duty to investigate and disclose these facts. Schmitz, 20 F.3d at 1048. The failure to disclose at least the facts described above created a reasonable impression of potential bias, constituting "evident partiality" under the FAA. 9 U.S.C. §10(a)(2); New York Convention, Art. V., §§l(a) and (d), §2(b). It also prevented Mr. Landis from making an informed decision about whether to object to the composition of the panel. Because arbitrators are not isolated from each other, but instead hear and decide cases as a panel, after joint s discussion, debate and deliberation, each panel member has an opportunity to 9 persuade the others. Wheeler v. Si Joseph Hospital, 63 Cal. App. 3d 345, 133 Cal 10 Rptr. 775, 793 (Cal App. 1 976). Thus, a finding of evident partiality on the 11 part of one arbitrator warrants vacatur of an entire arbitration award. Schmitz, 12 20F.3dat 1049. / ^^ Where, as here, the party challenging an award demonstrates that an 14 arbitrator failed to disclose business dealings that would have created a reasonable 15 impression of potential bias had they been known, it is not necessary to demonstrate 16 that any member of the panel acted with actual bias by producing specific facts 17 indicating an improper motive. Woods v. Saturn Distrib. Corp., 78 F.3d 424, 427 18 {9^ Cir. 1996); Premo v. Marti?i, 119 F.3d 764, 771 (9* Cir. 1997). However, the 19 record facts in this case do provide a basis for concluding that the Panel deferred to -31 / 8 10 12 14 15 17 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 33 of 108 1 Panel deferred to fellow CAS arbitrator, Mr. Young, acts that could be attributable 2 to the presence of actual bias. Specifically, the panel treated Mr. Young's 3 statements as evidence on at least three occasions, deference afforded no other 4 lawyer in the case. 5 First, as described below in greater detail [see pages 39-43], the panel 6 accepted Mr. Young's statements as evidence in support of its decision to impose S 1 00,000 in "costs" against Mr. Landis. At the time the evidentiary hearing closed, there was no record evidence on the amount or reasonableness of any of USADA's litigation expenses, nor was the issue of costs submitted to the Panel for decision. Ex. 1 , CAS Decision at 19. However, USADA's post-hearing brief 11 contained Mr. Young's unsworn statements describing the extent and reasonableness of some of USADA's costs, statements the Panel relied upon in 13 assessing the $100,000 penalty aaainst Mr. Landis. Second, as again argued in detail below [see pages 50-66] the panel accepted Mr. Young's unsupported statement to resolve a key issue relating to 16 LNDD 's accreditation. On appeal, Mr. Landis challenged LNDD 's accreditation to perform the CIR method, arguing that the accreditation documents put in IS evidence by USADA confirmed that LNDD was only accredited to conduct the CIR test with a 20% measurement of uncertainty, not the 0.8%o uncertainty .'^'?_ 1 7 n D 4 7 10 11 -At ^M- 13 15 16 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 34 of 108 measurement it actually used, and that had the 20% measurement of uncertainty been used, his results could not have been declared positive. Apparently concerned that Mr. Landis was correct about the LNDD's accreditation status, the Panel sidestepped the issue by relying on a statement made by Mr. Younc^ i ^ JULjL cX footnote to his post-submission brief, a statement making the unsupported (and incorrect) assertion that had the 20% measurement of uncertainty been apphed, Mr. Landis 's sample results would still have been positive. Ex. 1 , CAS Decision at 148, Ex. 22 , Appellee's Post-Submission Brief, at 8, footaote 7. Finally, as also argued in detail below [see pages 76-84], the panel accepted Mr. Young's "common sense" explanation to reconcile important inconsistencies between a document USADA rehed heavily upon-a gas chromatography column maintenance log (ExJiibit T142)-and the sworn testimony of USADA's own witness, the LNDD technician who was supposed to have actually made the entries M on Exhibit! 142. Because arbitrators have a free rein to decide the law as well as the facts, and because their decisions are accorded a high degree of deference, the impartiality of those arbitrators must be scrupulously safeguarded. Commonwealth Coatings Coi'p. V. Continental Casualty Co., 393 U.S. 145, 149, 89 S.Ct. 337, 339, 21 L.Ed.2d 301 (1 968). In this case, no safeguards existed. The stacked arbitral 1 10 11 13 14 15 16 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 35 of 1 08 pool and the institutional bias favoring repeat players like USADA prejudiced Mr. Landis from the outset. This prejudice was compounded by the CAS^s willingness to allow its arbitrators to continue representing clients before CAS panels, and by the Landis panel arbitrators' failure to make any disclosures, leaving Mr. Landis with no opportunity to make an informed decision. As the above-described facts illustrate, the CAS system is an insider's club, favoring repeat players at the expense of athletes, a disadvantage that is only exacerbated when the arbitrators on 8 a particular panel continue to represent clients before the CAS or seek to do so. Because the arbitrators on Mr. Landis's panel failed to disclose business dealincrs and interests creating a reasonable impression of potential bias, vacatur is proper under FAA, 9 U.S.C.A. § 10(a)(2) and the New York Convention, Art. V(l)(a), (d) 12 Art. V (2)(b). B. The Panel's decision to impose a $100,000 penalty on Mr. Landis must be vacated because the decision was outside the scope of the arbitrators' power, was unsupported by any evidence, and was not permitted by clearly applicable law. Perhaps the strongest evidence that the Panel's decision-making was based upon actual bias was its decision ordering Mr. Landis, who has been unable to practice his profession since July, 2006, to pay $100,000 to USADA as -34- 1 / 16 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 36 of 108 reimbursement for its litigation costs. The decision was made even though neither 2 party had formally submitted the issue of costs to the Panel for decision and neither 3 party had introduced evidence as to the amount or reasonableness of costs to the 4 Panel. Instead, the Panel relied solely upon a request for costs made by fellow 5 CAS arbitrator (and US AD A' s lawyer), Richard Young in a post-hearing 6 submission to which Mr. Landis had no right of reply. Imposing such an onerous burden upon Mr. Landis-a burden that effectively extends his two-year sentence 8 indefmitely-without hearing evidence or providing a right of reply denied Mr. 9 Landis the basic due process right to a fundamentally fair hearing, and to a decision 10 based on the evidence, in clear violation of well-established public policy. 11 Further, the Panel erred in deciding an issue not submitted to it by the parties, and 12 in manifestly disregarding clearly applicable UCI rules directly on point. As such, 13 vacatur of the panel's cost decision is proper under FAA, § 1 0(a)(2), (3), and (4), 14 and with the New York Convention, Art. V (1 )(a), (b), ( c), and §2(b), and because * ■ 15 It is an unconscionable decision made in manifest disreeard of the law. ^^ 1 • The Panel's $100,000 cost award should be vacated because ^^ the issue of costs was not among the issues submitted to the 1^ Panel for decision. 11 JL -M— I 1 •^ Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 37 of 108 1 Prior to the hearing, the CAS Panel directed both parties to submit a list of 2 issues to be decided, which issues defined the scope of the arbitrators' mandate. Ex 3 1 , CAS Decision at ijl 9. The list of issues defined the matters that were to be 4 litigated in the hearing, as well as the matters to be addressed in closing arguments 5 and in the post-hearing briefing requested by the Panel. Ex. 2, Tr., 1494:15-1498:9. 6 The list of issues also defined the scope of the matters submitted to the arbitrators 7 for a decision within the meaning of 9 U.S.C. § 1 0(a)(4) and the New York s Convention, Article V(l)( c). Neither party submitted the issue of an appropriate 9 award of costs to the CAS Panel for decision. Ex. 1 , CAS Decision at 3-5. 10 11119-20." Mr. Landis was entitled to a fimdamentally fair hearing, including the right to have notice of the issues being litigated, and about which he would be compelled to put on evidence. Ficek v. Southern Pacific Co,, 338 F.2d 655, 657 (9''' Cir. 1964), 14 cert den'd, 380 U.S. 988 (1965). The CAS Panel directed the parties to define the 15 issues being submitted for determination, and directed them to limit their ^^ Although USADA's post-hearing brief contains a footnote implying that the issue of costs was USADA's "Issue #8" and Appellant's "Issue #1 L" that is incorrect. Ex. 22, Appellee's Post-Hearing Brief at 48, n. 45. The issues submitted for determination are set forth at pages 3-5 of the CAS Decision, in '}f«: it cn>imittf»rl n-nUj U-im (n-^A T,ai<-T^^-^ ^AA „„»J Mr CAS Decision, f 11 9-20. ■O Ex, L -36- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 38 of 108 1 limit their post-hearing briefing to the issues raised in that set of issues. Mr. ^ D Landis was entitled to rely upon the CAS Panel's direction, and confine his proffer and briefing to the issues actually submitted for decision, issues that did not include 4 costs. Because the Panel decided an issue not submited for decision, vacamr is 5 proper under 9 U.S.C.A. §10(a)(4) and New York Convention, Art. V, (1)( c). 7 2. In assessing $100,000 in USADA's litigation costs against Mr. 8 Landis, the CAS Panel manifestly disregarded clearly 9 applicable UCI rules, rules that do not permit the award of 10 such costs, j ustifying vacatur " Although the CAS Panel acknowledged that UCI Anti-Doping Rules 12 provided the rules of decision in the Landis appeal, it did not apply them. Ex. 1 , 13 CAS Decision at 6, ^22; Ex. 4, CAS Rule 58. Those rules expressly provide that 14 each party shall bear the costs of their own witnesses and experts. Ex. 7, UCI 15 Anti-Doping Rules 24 1 , 244. Rule 245 defines the only exceptions to this rule; it 16 permits a panel to award the costs of sample testing, results management and the 17 iiiitial hearing proceeding (that is, the 2007 AAA hearing), but only if those costs IS have been actually determined by the hearing panel. Ex. 7, at Rule 245. Not 19 only are these exceptions inapplicable here, but none of them permits the Panel to 1 7 T T- / 17 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 39 of 108 the award of the opposing party's litigation costs when deciding anti-doping cases. Further, since no costs were "actually determined" by the Panel, no possible 3 argument could be made that Rule 245 would have permitted the award of costs in ■ 4 Mr. Landis's case. The UCI rules are consistent with CAS Rules 65.1 and 65.2, which provide that panel awards shall be rendered without costs other than a court office fee not m dispute here. Similarly, CAS Rule 65 .3 provides that each party shall advance the s costs of its own experts and witnesses. Ex. 4, CAS Rule 65.3. 9 Despite the fact that the CAS Panel acknowledged that it was bound by the 10 UCI Anti-Doping Rules and its own procedural rules, see Ex. 1 , CAS Decision at 11 1122-27, it declined to follow them, imposing $ 1 00,000 in litigation costs. This 12 decision was made in manifest disregard of clearly applicable rules, justifying 13 vacatur. 14 3. Because the CAS Panel's $100,000 1^ cost award was not based on evidence, 1 1^ Mr. Landis was denied a fundamentally fair hearing, so vacatur is proper. ^^ Not only was the Panel's SI 00,000 cost award contrary to law and outside -38 1 9 3 4 / 8 10 11 13 14 15 16 1/ 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 40 of 108 the scope of the issues submitted to it for decision, it was not based upon the evidence, violating Mi. Landis's basic due process right to an arbitration based evidence. on It is indisputable that at the close of the evidentiary portion of the hearing, USADA had presented no documents, no testimony, and no argument detailing the extent and reasonableness of its alleged litigation costs. When the panel officially closed the record on March 24, 2008, it expressly prohibited the parties from submitting any further evidence, and prohibited them from filing any any additional pleadings with the exception of the post-appeal written submissions. Ex.2, Tr. 1502:17-23, 1503:23-25. And as stated above, that post-hearins brief was to be linked directly to the list of issues to be decided-a list that did not include 12 costs. Ex. 2, Tr. 1215:19-1217:24, 1493:1-1499:10. Not to be dissuaded, USADA decided to use the post-hearing brief to present Mr. Young's statements in support of the cost award. In that brief, Mr. Young alleged (without benefit of supporting bills, invoices or receipts) that USADA had incurred "out-of-pocket" expenses totaling at least $99,000-160.000 m costs for "transportation, hotel, and meals in New York City for nine witnesses whom Appellant demanded be present in person for cross-examination and then elected not to call," and $33,000 in expert witaess fees. Ex. 22, Appellee's -39- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 41 of 108 1 Post-Hearing Brief at 48. Mr. Young requested that the Panel assess these costs 2 against Mr. Landis as a penalty for his inability to cross-examine all of the French 3 fact witnesses, and for his insistence upon pursuing a full range of issues on his de 4 novo appeal. Id at 48-9. Mr. Young's statements were not sworn, verified, or 5 supported by any documentary evidence, nor were they subject to 6 cross-examination, and because the Panel had prohibited the filing of any additional / post-hearing brief (like a reply), Mr. Landis had no right of response. 8 Unable to anticipate Mr. Young' s argument and prohibited from filing a 9 reply, Mr. Landis had no opportunity to challenge the absence of evidence or the 10 substance of Mr. Young's statements. He had no opportunity to present the 11 record evidence demonstrating that his failure to call all of the French witnesses 12 was attributable solely to the severe time constraints imposed at the hearing, not to 13 any litigation misconduct [see argument at pages 43-49 below]. He had no 14 opportunity to produce evidence about the hardship such a penalty would impose 15 upon him since he had been prevented from making a living in cycling. And he had 16 no opportunity to argue that CAS precedent suggested that even if the facts were as 17 Mr. Young alleged, the "equitable" decision was to let each party bear its OM-n costs. IS Ex. 12, CAS Case Law, Landaluze v. Real Federacion Espanola de CicUsmo, 19 CAS 2006/Ayi 1 1 9 at f 120 (Paulsson, president)(where Panel concluded that sports -40- 1 n J / 10 11 12 13 14 15 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 42 of 108 that sports federation had lodged many "futile^' arguments, the "equitable" solution was to let each party pay its ow?i costs). Despite these inequities, the panel assessed $ 1 00,000 in costs against Mr. Landis based solely upon the statements 4 made by fellow CAS arbitrator, Mr. Youna 5 When it based its $ 1 00,000 cost award upon the unsworn statements of 6 fellow CAS arbitrator, Richard Young, while denying Mr. Landis any right of reply, the CAS Panel violated Mr. Landis's right to a fundamentally fair hearing, in which decisions are based upon evidence, not the statements of counsel, and in which both parties have notice and an equal right to be heard. Sunshine Mining Co. v. United Steelworkers of America, 823 F.2d 1289, 1295 (9th Cir.1987); Townley v. Heckler, 748 F.2d 109 (S.D.N.Y. 1984)(disability claimant's due process rights violated when the administrative law judge relied upon a post-hearing report as the primary evidence upon which disability benefits were denied). It denied him the right to present any case in opposition to Mr. Young's cost allegations, a denial of due process justifying vacatur under 9 U.S.C.A. § 1 0(a)(3) and New York were 16 Convention, Art. V, §(1 )(a) and (b) and §2(b). 1^ 4^SU]MMARY ^^^'^^^^^^t^t^'^^rm^^^^m^m^^m ^^^^HM^^HH The Panel's award must be vacated because the issue of costs was not among the issues submitted to the Panel for determination. As such, the Panel -41- 1 3 A 7 10 11 13 14 17 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 43 of 108 exceeded the powers granted to it and violated fundamental notions of due process, which emphasize the importance of notice and an opportunity to respond. Thus, a motion to vacate is proper under 9 U.S.C. § 10(a)(3) and (4) and the New York Convention, Art. V, §1( c) and §2(a). The panel's award must be vacated because imposing the litigation costs of the prevailing party upon the loser is contrary to UCI rules and is therefore a decision made in manifest disregard of the law, and in contravention of the FAA, 9 U.S.C. § 10(a)(3) and (4), and New York Convention, Art. V, §l(a). The panel's award must be vacated because it was a decision made with evident bias in favor of fellow-CAS arbitrator and US AD A lawyer, Richard Young, whose unsworn, unsupported and unchallenged statements provided the only basis 12 for the award. Further, the arbitrators ' evident partiality render all of its decisions subject to vacatur, including its cost award. Vacatur is therefore appropriate under the FAA, § 10(a)(1) and (2) and New York Convention, Art. V, §I(a) and §2(b). ^^ Finally, the panel's cost award should be vacated because it was not supported by evidence. The right to have decisions based upon evidence is a 18 fundamental due process right, and a necessary component of a ftindamentallv fair hearing. Ficek v. Southern Pacific Co., 338 F.2d 655, 657 (9* Cir. 1964), cert den'd, -42- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 44 of 1 08 1 7 D / den'd, 380 U.S. 988 (1965). As such, the decision is unconscionable, justifying vacatur. Vacatur is similarly justified under FAA, § 1 0(a)(3) and New York Convention, Art. V, §l(a) and (b) and §(l)(b) and §(2)(b). C. The hearing procedures adopted by the CAS Panel prevented Mr. Landis from presenting his case, justifying vacatur Just as the system for selecting the CAS arbitral pool and appellate panels has an appearance of balance, so the hearing procedures adopted by the Landis panel 8 had the appearance of fairness. In reality, those procedures placed Mr. Landis, 9 who bore a heavy burden of proof, at a distinct disadvantage because they 10 prevented him from presenting his evidence and cross-examining more than half of 11 US ADA'S nineteen witnesses. To add insult to injury, Mr. Landis 's inability to 12 fiilly present his case fonned the basis for imposing the $ 1 00,000 punitive cost 13 award against him. Ex. 1 , CAS Decision at ^289. Because the arbitrators 14 refused to hear all of Mr. Landis's evidence and prevented him from presenting his 15 complete case-a right not denied USADA-he was denied a fundamentally fair 16 hearing, and the CAS award should be vacated. 9 U.S. C. § 1 0(a)(3), (4); New 17 York Convention, Art. V §l(b). 1^ While arbitrators may not be bound by the rules of evidence, the FAA, the 19 New York Convention, and fimdamental notions of due process require that each -43- I y / 8 10 17 Case 2:08-cv-06330-PA-CW. Document 1 Filed 09/25/2008 Page 45 of 108 party to an arbitration be provided an adequate opportimity to present its evidence and arguments . Kiewit/A tkins on/Kenny v. International Brotherhood of Electrical Workers, 76 F.Supp.2d 77, 80-1 (D. Mass. 1999)(citing Hoteles Condado Beach, 4 and La Concha Convention Center v. Union de Tronquistas Local No. 901 76 '^ J F.2d 34, 39 (1'' Cir. 1985)). Mr. Landis was denied adequate time to present a highly technical scientific challenge to the LNDD's test results at both the AAA and CAS panel levels. His ability to present his case was substantially prejudiced by these time constraints, prejudice that was greatly enhanced by the procedures adopted by the CAS panel for the submission of witness testimony. At both the CAS appeal and the AAA hearing, the parties were placed on a 1 1 time clock," and both allocated an equal number of hours in which to present 12 their evidence. Ex. 23 , CAS Panel Procedural Memorandum, December 1 3 , 13 2007, Part 4, at 3-4; Ex. 24, Letter from Carmen Martinez Lopez to the Parties, 14 March 1 7, 2008 at 1 (parties allocated 14 hours). Because Mr. Landis bore a 15 heavy burden of proof, this equal allocation placed him at a distinct disadvantage ^^ Because CAS appeals proceed de novo, the disputed issues were no less complex than those addressed at the AAA hearing. Further, presentation of both IS parties' evidence would require time-consuming translation. Recalling his ■ 19 inability to call all of the relevant fact witnesses to testify at the nine-day AAA -44- 1 1 6 / 8 10 11 12 13 ■Ai tfh 15 17 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 46 of 108 hearing, Mr. Landis asked the CAS panel to give him five days to present his in chief at the appeal hearing. This request was rejected. Instead, the Panel allotted only five days hearing time total, with each party allocated 14 hours in which to present their case. Ex. 23, CAS Panel Procedural Memorandum. December 13, 2007, Part 4, at 3-4; Ex. 24, Letter from Cannen Martinez Lopez to the Parties, March 17, 2008 at 1 (parties allocated 14 hours). This severe limitation was made more onerous by the Panel's decision to receive direct witness testimony by written submission. Ex. 23 , CAS Panel Procedural Memorandum, December 13, 2007, 11114.7-4.8, at 4-5. This seemingly innocuous decision had disastrous and extremely prejudicial consequences for Mr. Landis because the Panel imposed no limit on the number of wimesses that could submit direct testimony. Since the submission of written direct testimony did not count against a party's time allocation, the Panel's procedural order created powerful strategic incentive for US ADA to increase the number of witnesses it would call, realizing that Mr. Landis would simply run out of time before case a 16 cross-examining all of them. This is precisely what happened. Mr. Landis, who bore the burden of proof, presented only five direct witness declarations -one fewer than at the AAA hearing- while USADA, which had called only nine witnesses at the nine-day -45- 1 7 10 12 14 Id 16 17 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 47 of 1 08 at AAA hearing [see Ex, 3, AAA Decision at ^100], submitted uTitten testimony from mneteeii witnesses. Ex. 25, US AD A Witness Designation, January 31, 2008: Ex. 26. USADA's Motion in Limine to Exclude Evidence in Violation of CAS Rule 56 4-5 (March 14, 2008)(adding as a witness submission the March 14, 2008 letter from COFRAC administrator, Robin LeGuy). The inequity was all the more egregious because US ADA-unlike Mr. Landis-had access to all of the LNDD fact witnesses, and could discover the facts known to them outside the hearing room 8 allowing US AD A to use its precious hearing time more efficiently. Denied 9 depositions, Mr. Landis was left to develop the crucial facts about what the LNDD staff actually did when they tested his Stage 17 sample through cross-examination 11 alone. There is simply no way that Mr. Landis could conduct meanin^fiil cross-examination of nineteen witnesses in fourteen hours of hearing time, and the 13 record clearly reflects this. ■ Despite having been allocated a few more hours hearing time, Mr. Landis was still compelled to waive his brief introductory direct examination [Ex. 2, Tr. 43:18-44:2], to abandon at least one issue in its entirety [Ex. 2, Tr. 22:12-17], and to relinquish his right to cross-examine ten of USADA's 19 witnesses [Ex. 2, Tr. 18 793:24-794:23, 805:18-806:14, 807:1-22, 810:15-20, 1218:20-25, 1221:2-11 1396:6-25, 1408:5-20]. He also had to circumscribe both his opening and closin or -46' 7 ^ J s 10 11 15 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 48 of 108 1 arguments because he ran out of time [Tr. 112:7-9, 128:12-22. 1385:4-13. 1424:13-18, 1433:7-1434:12]. His inability to cross-examine witnesses inflicted express prejudicial harm upon him because the CAS panel relied upon the 4 unchallenged testimony to support its conclusions. Ex. 2, CAS Decision at f 1 78 5 (CAS relies on testimony of "uncontro verted" chain of custody witnesses that Mr. 6 Landis "did not elect to examine" to resolve evidence in US ADA' s favor). 7 Not only was he prejudiced by his inability to cross-examine more than half of USADA's witnesses, he was penalized for that failure. Mr. Landis's inability to cross-examine all of the French lab witnesses was one of the key grounds offered in support of the Panel ' s decision to award $ 1 00,000 in costs : "The Appellant gave notice requiring a number of witnesses to be present in person for 12 cross-examination in New York but then elected not to call them thus causing the 13 Respondent to incur significant and ultimately unnecessary costs." Ex. 1 , CAS 14 Decision at 57, emphasis added. Mr. Landis did not elect not to call these witnesses; he had every incentive to cross-examine them, but simply ran out of time. 16 a fact unequivocally confirmed by the record. Ex. 2, Tr. 793 :24-794:23, 17 805:18-806:14, 807:1-22, 810:15-20, 1218:20-25, 1221:2-11, 1396:6-25. 18 1408:5-20. ^^ T^^ appellate procedures adopted by the CAS Panel denied Mr. Landis a -47- 10 12 13 14 15 16 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 49 of 108 1 meaningful opportunity to develop the factual record needed to establish the crucial 2 facts about the LNDD's analysis of his Stage 1 7 samples, and denied him any 3 opportunity to cross-examine more than half of the witnesses testifying against him, 4 a denial of due process. Willner v. Committee on Character and Fitness, 373 U.S. 5 96, 103, 83 S.Ct. 1175, 1180,10 L.Ed.2d 224 (1963). USADA suffered no 6 comparable harm. Because Mr. Landis was denied a fundamentally fair hearing 7 and was prevented firom presenting his case, the proceeding was unconscionable, so vacatur is appropriate. Vacatur is also proper under FAA, 9 U.S.C.§ 10(a)(3) and the New York Convention, Art. V, § 1 (b) and §2(b). D. The CAS Panel's repeated refusal to consider evidence supportive " of Mr. Landis's substantive arguments was tantamount to a refusal to hear evidence at all, justifying vacatur under 9 U.S.C.A. 10(a)(3) and New York Convention, Art. V, §l(b). The Panel's award was the product of a process slanted heavily in favor of the interests of "repeat player" anti-doping enforcement agencies like USADA, a process made even more onerous by procedural rulings made by Mr. Landis's particular panel. Although Mr. Landis contends that this resulted in a number of erroneous decisions in which the Panel either misapplied the law -48- 1 9 J. / 10 11 12 13 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 50 of 1 08 8 1. law or improperly weighed the facts, he is mindfiil of the scope of review under the FAA. As such, Mr. Landis challenges five substantive decisions made by the Panel, decisions marred by the Panel's refusal to credit evidence favorable to Mr. Landis's position, even when that evidence was contained in documents proffered by US AD A in support of its own case, and even when uncontroverted by other evidence. The Panel ignored USADA's own documentary eWdence in concluding that LNDD was actually accredited to perform the tests it used to analyze Mr. Landis's Stage 17 sample, crediting instead late-produced "evidence" from an incompetent witness Because the AAA Panel concluded in 2007 that the T/E ratio test could not be used to support the reported anti-doping violation, the CAS appeal focused on 14 the sole remainmg basis for that violation-the results of LNDD 's CIR test. This 15 test mpa<;iirpc tlnp. rofio r>f nr^yUr^^^- test measures the ratio of Carbon'^ atoms to Carbon^^ atoms in the testosterone 16 metabolites contained in a sample to determine if some of the testosterone m a person's body is of an exogenous nature. The centerpiece of Mr. Landis's appeal was that LNDD had neither used a reliable CIR method nor performed the method it didnsQ correctly, violating the ISL. Ex. 27, Appeal Brief of Floyd Landis, -49- / 11 13 14 15 16 17 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 51 of 108 1 passim; Ex, 28, Landis Closing Brief, passim. 2 A threshold issue in the analysis was whether the CIR method that LNDD used had ever been accredited by its national accreditation body, COFRAC. This determination was crucial because the answer to the accreditation question determined how the burden of proof was allocated between the parties, and whether US ADA would be permitted to avail itself of certain presumptions in the WAD A Anti-Doping Code. 8 Although the anti-doping agency bears an inital burden of proving the 9 anti-dopmg violation "to the comfortable satisfaction" of the Panel, that burden 10 satisfied by simply introducing the results of the lab's positive test if the lab is is accredited to perform the method it used. Ex. 29, WADA Code, Art. 3.1. 3.2. If 12 the lab used an accredited method, USADA is entitled to the benefit of a presumption that the lab performed that method correctly on the occasion in question. Ex. 29, WADA Code, Art. 3.2; Ex. 1, CAS Decision. 111128-33. However, if the lab did not use an accredited method, USADA had to prove that the method confonned to the "scientific community's practices and procedures," and that LNDD "satisfied itself as to the validity of the method before using it." Ex. 29, IS WADA Code, Art. 3.1., 3.2; Ex.7, UCI Anti-Dopins Rules, Art Case Law, USADA & UCI v. Tyler Hamilton, CAS 2005/Ay884, 1|1i47-54. -50- 1 9 3 7 9 n 13 u 15 16 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 52 of 1 08 Evidence of accreditation is clearly required and is part of USADA^s burden; otheredse, it could avail itself of the Code's powerfiil presumptions based upon an unsupported allegation of accreditation in every case. Ex. 29, WADA Code, Art. 3.1. Under CAS Rule R56, USADA was obliged to produce the arguments and evidence in support of accreditation or reliability (or both) in its answering brief, filed January 3 1 , 2008. And under the Panel's own scheduling orders, all witness testimony was to be filed by March 7, 2008. Ex. 30, Letter from Matthieu Reeb to s the parties, February 29, 2008. USADA's appeal brief, filed January 3 1 , 2008, contained a specific 10 accreditation argument discussing the importance to be assigned COFRAC accreditation and the weight to be accorded the work of the COFRAC auditors. 12 E.K. 31, Appellee's Brief at 14-15, 28-29. The brief also contained numerous assertions that the LNDD's CIR method was accredited. Id at 6, 15, 27-29, 49 57 (assertions that CIR/IRMS method was accredited). USADA presented several COFRAC accreditation documents to support its allegations, but designated no COFRAC witnesses to buttress that argument. Ex. 31, Appellee's Brief at 90 and Ex. 25, Appellee's Witness List (January 3 1 , 2008). Contrary to USADA's repeated assertions, however, the COFRAC accreditation documents established on their face that LNDD was ?wt accredited to perform the CIR method in the mamier -51- 1 4 7 8 10 11 V 13 14 16 17 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 53 of 108 in the maimer it used to analyze Mr. Landis's Stage 17 sample. Although it is undisputed that LNDD used a 0.8 %o measurement of 3 unc ertainty to declare that the CIR values it measured confirmed the presence of exogenous testosterone in Mr. Landis's sample, the COFRAC accreditation documents do not confirm that LNDD was accredited to conduct the CIR method at this level of precision. Instead, each and every COFRAC document introduced by US AD A indicated that at the time Mr. Landis's samples were analyzed, LNDD was only accredited to perform the CIR test with a 20% measurement of uncertainty , not the 0.8 %o the lab used to declare Mr. Landis's sample a positive.^- Ex. 32. Excerpt, USADA appeal exJiibit T026 at LNDD 0086 (COFRAC 's May 2006 accreditation document accrediting CIR method at 20% uncertainty level); LNDD 414 (LNDD's February 2006 audit, showing a 20% measurement of uncertainty accreditation and extending the September 2005 accreditation, also at 20%); LNDD 429 (showing a 20% measurement of uncertainty accreditation); LNDD 456 15 (undated validation study indicating LNDD uses a 0.8%o measurement of uncertainty); Ex. 3 1 , Appellee's Brief at 26-8 (LNDD uses a 0.8%o measurement of uncertainty and did so when interpreting Mr. Landis's results); Ex. 28, Landis Closing Brief at 7- 1 . Not only do these three documents expressly ' The CIR method, which is alternatively referred to as an "IRMS" test, is 1 1 4 S 10 n -Ai -4-iv- 13 17 IS Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 54 of 108 documents expressly state that as of May 2006, LNDD was only accredited to perfonn the CIR method at a 20% uncertainty level, but it appears that this had been the standard for quite some time; LNDD 414 is simply an updated version of an earlier accreditation document issue in September 2005, which also contained the 20% measurement uncertainty figure, as indicated by the date change noted at the bottom of the page. Ex. 32, Excerpt, USADA appeal exhibit T026 at LNDD 0414. e was It was not until December 15, 2006-months after Mr. Landis's sampl analyzed-that LNDD obtained COFRAC accreditation at the 0.8%o uncertainty level. Significantly, the document includes an express effective date of December 15, 2006, not an earlier date, contradicting any suggestion that the updated accreditation was intended to be retroactive. Ex. 32, Excerpt, USADA appeal exhibit T026 at LNDD 0097-98 ("Date de prise d'effet: 15/12/2006"/Date of effect: 14 12/15/06). ^^ COFRAC may have been reluctant to accredit LNDD at the 16 substantially-more precise 0.8%o measurement of uncertainty in lisht of the CIR/IRMS method deficiencies COFRAC noted at the February 2006 audit, and the six-month delay that LNDD requested in order to remedy those deficiencies. Ex. 32. method "EC 31" on LNDD's COFRAC accreditation documents. -53- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 55 of 108 1 Ex. 32 14 16 , Excerpt USADA appeal exhibit T026 at LNDD 41 8 (LNDD request for 2 renewal and extension of accreditation for various methods); LNDD 428 (LNDD 3 requests an extension for certain doping control procedures), LNDD 429 (ECS 1 4 [CIR test] listed among the processes for which an extension was sought); LNDD 5 414 (COFRAC accreditation document confirming that an extension had been 6 requested for EC3 1 ); LNDD 400 (recommending a six-month delay to address 7 IRMS deficiencies). Whatever the reason, it is indisputable that any potential s customer going to the LNDD in seach of CIR testing services between February 9 2006 and December 1 5, 2006 would have come away with one and only one 10 conclusion-that LNDD was accredited to perform CIR testing at only a 20% n measurement of uncertainty level. ^- Not only did USADA's brief fail to present evidence to resolve the crucial 13 deficiency in its own accreditation evidence-a deficiency which had been raised ir the AAA hearing almost a year earher [Ex.33, Excerpt, AAA Transcript at 878-9 15 (testimony of Dr. Christiane Ayotte), Ex. 28, Landis Closing Brief at 91-but USADA tendered no document and designated no witness (including, particulariy, 17 the COFRAC auditor) to rebut the unambiguous statements contained in the IS COFRAC accreditation documents, not even to rebut Mr. Landis 's expert. Dr. * 19 Goldberger, who discussed USADA's tender of accreditation documents in his -54- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 56 of 108 1 March 7 declaration. Instead, under the guise of a motion to strike the portions of 2 Dr. Goldberger's testimony discussing the accreditation issue, US AD A sought to 3 introduce an unverified letter from COFRAC administrator, Robin LeGuy, a letter 4 attached to its motion to strike. This occurred five days before the CAS appeal 5 commenced on March 1 9, and well after the deadline for submission of exhibits and 6 witness statements. Ex. 26, US AD A' s Motion in Limine to Exclude Evidence in 7 Violation of CAS Rule 56 at 4-5 (March 14, 2008) and attached March 14, 2008 8 letter from Robin LeGuy; Ex. 30: Ex. 4, Rule R56. In his letter, Mr. LeGuy-who 9 did not participate in the February 2006 audit at LNDD-stated that all of the 10 COFRAC documents stating a 20% measurement of uncertainty were mistaken, and 11 that the December 15, 2006 accreditation document should be considered 12 retroactive to May 1 , 2006, providing a neat resolution to USADA's accreditation 13 problem. Exhibit 26, March 1 4 letter of Robin LeGuy. ^* By preferring Mr. LeGuy' s "testimony" in the form of an unsworn letter 15 submitted after the deadline for briefing and both direct and rebuttal witness 16 declarations, USADA was able to deny Mr. Landis the oppormnity to marshal 17 evidence to counter that letter, something the CAS Rules are intended to prevent. 18 Ex. 4, CAS Rules R5 1 , R55, R56; Ex. 30, Letter from Matthieu Reeb to Maurice 19 Suh and Richard Young, February 29, 2008 (setting forth hearing schedulins order: 1 7 '1 4 / S 10 11 12 13 14 15 16 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 57 of 1 08 hereinafter ^CAS Schedulmg Order") . Despite USADA's failure to present its proof by the deadlines imposed by the PaneFs scheduling order, or by the deadlines imposed by Rule R56. the Panel admitted Mr. LeGuy 's unswom letter into evidence ostensibly in exchange for its decision not to strike the portions of Dr, Goldb erger s a to testimony discussing accreditation. Ex. 2, Tr. 23:3-15, 31:3-32:4, 40:5-13. The exchange" was not a fair one however; Mr. Landis did not need to rely upon Dr. Goldberger's testimony to make his point because USADA's accreditation problem was presented on the face of its own documentary evidence, documents it needed rely upon to prove that LKDD was accredited at all. Ex. 32, Exceipt, USABA appeal exhibit T026 at LNBD 0086. USADA, however, absolutely needed a COFRAC witness to "explain" that the three COFRAC accreditation documents executed by the absent COFRAC auditor did not mean what they said-that LNDD was only accredited to perform the CIR method at a 20% measure of uncertainty . The Panel not only admitted the letter, see Ex. 2, Tr. 19:7-19, 22:24-23:1 1. it relied upon it. Ex. 1 , CAS Decision, ^45-7. The Panel's decision to admit the March 14 LeGuy letter stands in stark contrast to its decision to exclude the portion of Dr. Goldberger's chain of custody testimony discussing LNDD's failure to provide complete documentation of the whereabouts of Mr. Landis's "B" sample on July 20, 2006. Though Mr. Landis had -56- 1 7 4 / S 10 11 12 13 14 16 17 IS Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 58 of 1 08 clearly launched a broad attack on LNDD's chain of custody in his appeal brief [see Ex. 27, Brief of Floyd Landis at 69, 73 (LNDD^s cham of custody documents ^^do not suffice to create a proper chain of custody/^ they "fail to record mtra^laboratoiy transfers/' and they fail to "record the location of the bottle durin. the time it was in the laboratory")], the CAS Panel excluded all of Dr. Goldberaer' testimony about breaches occurring on July 20 because such examples were not specifically enumerated in Mr. Landis's appeal brief. Ex. 2, Tr. 45:18-47:13 (decision); Tr. 24:15-38:10 (argument); Ex. 34, Landis Response to USADA's Motion in Limme at 6-7; Ex .26, USADA's Motion in Limine to Exclude Evidence m Violation of CAS Rule 56 at 2-3. As argued above, while it is not necessary for Mr. Landis to prove actual bias to establish that the Panel acted with evident partiality, the fact that the Panel excluded Dr. Goldberger^s testimony, which was, at a minimum, tmiely under the scheduling order, but admitted ]V4r. LeGuy's, which was not, suggests actual bias in favor of fellow CAS arbitrator, Mr. Youna. The Panel relied upon Mr.LeGuy's March 14 letter -"evidence" it considered unchallenged because Mr. Landis "elected" not to cross-examine Mr. LeGuy--in making the crucial determination that LNDD was accredited to perform 15 Mr. LeGuy was one of the ten witnesses Mr.Landis was unable to -d7* 1 7 ■I #illr I ■ / 12 16 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 59 of 108 perform the CIR method at the 0.8%o uncertainty level. CAS Decision. «|i^45-7. But that letter should not have been considered for the same reasons that Dr. Goldberger's chain of custody evidence was excluded- it was produced well after all relevant deadlines. Ex. 4, CAS Rule R56, Ex. 30, CAS Scheduling Order. The Panel disregarded its own rules in admitting this letter, a decision suggestive of actual bias because it failed to accord the parties equal treatment under Rule R56. Further, Mr. LeGuy's letter-like the unsupported statements of counsel- was 8 not evidence because he was not a competent witness. Mr. LeGuy lacked personal 9 knowledge of the facts because he was not one of the COFRAC auditors involved 10 in the February 2006 LNDD audit upon which the later accreditation was based. 11 Ex. 32, Excerpt, USADA appeal exhibit T026 at LNDD 383 (identifying COFRAC audit team members). Nor does his March 14, 2008 letter offer any other 13 foundational allegations that might explain how he gained personal knowledge of 14 the facts stated in the letter. Indeed, Mr. LeGuy's lack of familiarity with the 15 facts surrounding the audit is revealed by his statement that COFRAC received ''all appropriate information for the validation of method EC3 1 [CIR]." Ex. 26. 17 LeGuy March 14, 2008 letter, attached to USADA's Motion in Limine to Exclude 18 Evidence in Violation of CAS Rule 56. This statement is highly improbable, • ' ■ ■ ■ ' ' ' II cross-examine due to time constraints. Ex. 2. Tr. 1 396:6-25, -58- 1 7 / 8 10 11 12 13 17 IS Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 60 of 1 08 highly improbable, given that the LNDD's own staff testified that the critical -peak matching" component of the CIR test had never been reduced to writing in a Standard Operating Procedure (SOP), meaning that a document describing the method could not have been given to the COFRAC auditor. Ex. 2. Tr. 658:17-660:25, esp. 660:5-25 (testimony of LNDD staff, Cynthia Mongongu). Since he had not personally observed the accreditation activities and alleged no source from which he might have derived personal knowledge, Mr. LeGuy competent to testify about the precision with which LNDD was able to perform the CIR test during the COFRAC audit, or whether the actual COFRAC auditor, Bruno LeBizec, made a "mistake" by noting the 20% measurement uncertainty on at least tliree COFRAC accreditation documents. Mr. LeGuy simply did not know what happened at the COFRAC audit; his knowledge rested not on his own recollections was not and observations, but on his interpretation of COFRAC 's documents. And no existmg COFRAC audit document even hinted that COFRAC intended to accredit 15 LNDD's CIR method at a 0.8%o measurement of uncertainty prior to December 16 15,2006. Ex. 32, Excerpt, USADA appeal exhibit T026 at LNDD 86, LNDD 97-98, LNDD 414 and LNDD 429. Indeed, if such a document existed, it surely would have been mcluded in USADA's evidence, rendering Mr. LeGuy's March 14 19 letter unnecessary. -59- 1 4 I ■ / 12 14 15 17 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 61 of 1 0S The Panel's decision to admit and rely upon Mr. LeGuy's March 14. 2008 ^^-H/^^-f-:™.^ ^? testimony was made in manifest disregard of CAS Rule R56 and its own scheduling order. More significantly, however, relying on that letter to contradict COFRAC's own documents was tantamount to deciding the issue in the complete absence of evidence because Mr. LeGuy was not a competent witness. U.S. v. Beck, 418 F.3d 1008, 1015 (9'^ Cir. 2008)(iay witness testimony is rationally-based where it is founded upon personal recollection and observation of concrete facts). s While the rules of evidence do not strictly apply in an arbitration context a 9 fundamentally fair hearing requires that a decision be based upon evidence, not 10 unsupported statements by out-of-court "witnesses." Sunshine Mining Co. v. United 11 Steelworkers of America, 823 F.2d 1289, 1295 (9th Cir.1987); Ficek, 338 F.2d at 657. Relying upon COFRAC accreditation documents to find/or USADA-as it 13 did when deciding that the CIR method was accredited at all -but disregarding those clear and unequivocal documents when they supported Mr. Landis is suggestive of actual bias. Moreover, failure to consider competent documentary 16 evidence in favor of late-produced "evidence" contained in an unsworn. out-of-court statement made by a person lacking personal knowledge is tantamount to a refusal to consider the documentary evidence at all, making vacatur appropriate 19 under 9 U.S.C.A. 10(a)(2), (3) and New York Convention, Art. V§(l)(b) and -60- 1 7 *> a ^ / 10 11 12 13 14 15 16 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 62 of 1 08 Art.V§(l)(b)and§2(b), The Panel compounded this error by relieving USADA of its burden of proof. Apparently concluding that if it was wrong about the accreditation question, even ei WADA Code, Art. 3.2 would operate to shift the burden to USADA to prove that the LNDD's failure to apply the 20% uncertainty did not cause the positive result, the Panel went on to draw just such a conclusion on USADA's behalf : " applying a 20% uncertainty, the delta-delta value would still be over 3.0%, and the Appellant's test would still be positive." Ex. 1 ,CAS Decision, 1|48. Although USADA should have borne a heavy burden to prove this fact to the "comfortable satisfaction" of the Panel, see Ex. 29, WADA Code at 3.1, 3.2, the Panel appears to have done USADA's work for it without benefit of evidence, statinc^ its conclusion without a shadow of a reference to the record. In doing so, the Panel manifestly disregarded the applicable law by relieving USADA of its burden (a burden the panel clearly acloiowledged and understood see CAS Decision, 1Ilj29-33). and by making a decision not based upon any evidence tendered by any party. Not one of USADA's witnesses offered this testimony, nor did any document 17 include such a statement. It is not surprising that USADA's witnesses wouldn't testify to the conclusion the Panel reached-it is patently incorrect. The 20% is a ?neasiiremem -61- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 63 of 108 1 uncertainty assigned to bound the uncertainties created by inevitable measurement error. As such, it is applied to LNDD's measured isotopic values-the "delta" value- not the "delta-delta" value, which is simply a subtraction value the lab derives by subtracting the value it measured for an endogenous reference compound from the value it measured for the testosterone metabolite of interest. ^^ In fact. '= Applying the 20% uncertainty to the "delta" value (the difference between LNDD's measured isotopic value and a standard value) as opposed to the "delta-delta" value makes a significant difference, as can be seen by considerinc^ an example usmg the values LNDD derived for Mr. Landis's sample . See Ex 3 1 "^ Appellee's Brief, pages 27-8 for a table of both the delta values and the delta-delta values.^ The first table on page 27 presents the measured delta values for Mr. Landis's sample, the second table on page 27 presents the measured delta values for the endogenous reference compound, and the first table on page 28 presents the delta-delta values (the difference between the delta for the sample and the delta for the endogenous reference compound). To take but one example, consider LNDD LNDD •enea upon to report the positive test). Applying a ±20% measurement uncertainty to that measurement yields a range of values between -22. 1 8 and -33 .26. The ±20% measurement uncertainty must also be applied to the -21.58 delta value for the endogenous reference compound, pdiol, yielding a range of values between -1 7.26 and -25.9 on the "A" sample. LNDD declares a positive only if the value of the testosterone metabolite is more than 3.8 delta units more negative than the value of the endogenous reference compound to which it is bemg compared (-3.8). But if one calculates a delta-delta by selecting a 5-alpha value at the least negative end of the possible range (-22. 1 8) and a pdiol value at the most negative end of the range ( -25.9), the 5-alpha value is cleariy less negative than the pdiol, not more, yielding a delta-delta of +3.72. a result that could not be declared positive under LNDD's positivity criteria, which requires a delta-delta of -3.8. Similarly, a value of -24.00 falls within the range of possible values for both the 5-alpha and the pdiol, generating a delta-delta of zero. Again, not a positive. The same holds true for the "B" sample. Applying the ±20% measurement uncertainty to the measured value for 5-alpha (-27.43) yields a ranse -62- 1 7 8 10 n 12 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 64 of 108 In fact the statement that Mr. Landis's sample would still have been positive even if a 20% uncertainty measiirement had been applied is contained in only place-a footnote to USADA's post-hearing bnef written by its lawyer. one Ex.22 USADA's Post-Hearing Brief at 8, footnote 7. Though this footnote provides a reference to V-6 of Dr. Clinstianne Ayotte's witness declaration, her declaration contains no interpretation or application of the 20% measurement uncertainty. Ex. 35, Witness Declaration of Dr. Christianne Ayotte, March 7, 2008. the fazzy math can be credited to the briefs author, Richard Young, USADA's lawyer and fellow-CAS arbitrator. Had Mr. Landis been pemiitted a right of reply he could have pointed out that the statement was both unsupported and incorrect but just as the Panel's limitations on the post-hearing briefs denied him a right to reply to Mr. Young's assertions about litigation costs, it also prohibited him from Tcfrtatow to thet"™ "'h -'^ ^^ "'f '■ "'"'^ ='PP'^"S the same measurement uncertamty to the measured value for the endogenous reference compound ndiol delta-delta value by selecting a 5-alpha value at the least nesative end of the possible range (-2 1 .63) and a pdiol value at the most negative end of the i^nge { -0.26), one gets a delta-delta value of +3.63, which is not a result that can be ne^ahye than 3.8 (-3.8). Moreover, the value -24.00 is again within the ran<»e of agam, not a positive result under LNDD's criteria. Because application of the the have bin nf "r ' *' "^" °' *' "^" ^^""P'^' Mr- L^-^is's result could not have been declared a positive if the ±20% measurement uncertainty had been -63- 10 11 12 13 15 16 17 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 65 of 108 1 him from presenting any reply to footnote 7. Ex. 2, Tr. 1502: 1 7-23, 1503:23-25 2 This is yet another example of the deference that the CAS panel afforded to 3 Mr. Young, suggesting the existence of acmal bias. 4 In reaching the conclusion that Mr. Landis 's test would still have been 5 positive no matter what measurement uncertainty was applied, the Panel also 6 misapplied the burden of proof in at least two ways, manifestly disregarding the law 7 it acknowledged and coirectly articulated at the outset of it decision. Ex. 1 , CAS 8 Decision, 1)128-33. First, the Panel imposed upon Mr. Landis the burden of 9 disproving accreditation, a burden he does not bear under the Code. Havin^ made this mistake, the Panel then concluded that Mr. Landis was obligated to present his proof in his appeal brief, and that his "failure" to do so justified the decision to admit the late-produced letter of Mr. LeGuy. Ex. 1, CAS Decisional 11, n. 23. But proving or disproving accreditation was not part of Mr. Landis's burden under 14 the Code, it was USADA Art Case Law, Hamilton at 1If47-54. Once USADA made clear that it would rely accreditation-as it did in its own appeal brief, filed months after Mr. Landis's upon -US.^DA had the burden of establishing the fact of accreditation, which it did on January 3 1 , 2008 by submitting the COFRAC audit documents in its Exhibit T026. Tl vitnesses and documents, and disregarded clearly applicable law when it concluded that the LNDB's peak identification method complied with the ISL, justifying vacatur COFRAC may have been reluctant to accredit the LNDD's CIR method at the 0.8%o degree of precision because the lab failed to document the method used for a key step in the analysis-identification of the testosterone metabolite peaks in chromatographic data generated by the CIR instruments. This failure conceded by the lab, violated applicable WADA Technical documents and the ISL, which required that such methods be documented. Ex. 28, Landis Closins Brief at 16 10-15; Ex. 37, TD2003IDCR; Ex. 28, ISL, §5.4.4.3.1. As the Panel expressly 17 acknowledged, since Mr. Landis established that the LNDD failed to comply with 18 the ISL, the burden should have shifted to USADA to demonstrate that the violation establish that LNDD's CIR method was accredited at all 66- 1 4 / 8 10 11 12 14 15 16 1 / 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 68 of 108 that the violation did not cause the alleged doping violation, something USADA did not prove in the case below. Ex. 29, WADA Code, Art. 3.1, 3.2; Ex. 1, CAS Decision at 1It28-33. But because the Panel refused to acknowledge the uncontroverted evidence establishing the ISL violation-a decision it was able to reach only by disregarding this uncontroverted evidence-it deprived Mr. Landis of a finding that should have resulted in victory. Mr. Landis therefore asks this Court to vacate the Panel decision. The CIR (Carbon Isotope Ratio) test is intended to distinguish between naturally produced (endogenous) testosterone and synthetically produced (exogenous) testosterone contained in a urine sample. All testosterone metabolites are comprised of carbon, oxygen and hydrogen atoms, including the stable isotopes of carbon. Carbon '- and Carbon ''. Natural testosterone metabolites have both 13 Carbon " and Carbon '^ atoms, but the ratio between these atoms vanes amona individuals, influenced as it is by diet and other factors. Carbon '~ and Carbon ' are also present in synthetic testosterone metabolites, but because these products tend to be made from soy, which is Carbon ''-depleted, a person using synthetic testosterone products will have comparatively fewer Carbon '' atoms in their testosterone. Simply put, the theory underlying the test is that if the testosterone metabolites in an athlete's urine sample are more Carbon ''-depleted than normal 7 8 10 n 12 1 '^ 14 15 16 17 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 69 of 1 08 1 ^ -depleted than normal, that indicates administration of synthetic testosterone. Ex 1, CAS Decision, 111159-60; Ex. 27, Landis Appeal Brief at 23-30. The CIR test (also referred to as the "IKMS" test) uses a gas-chromatography combustion isotope ratio mass spectrometry (GC/C/IRMS) instrument to measure the Carbon '"/Carbon '' ratio of various compounds in a gas, and in turn compares this ratio to the Carbon '^/Carbon '^ ratio in an international standard; the difference between the measured testosterone metabolite value and the international standard is the "delta value." Ex. 1 , CAS Decision at 111159-60. To account for individual variation caused by diet and other factors, it is also necessary to derive the delta value for what is Icnown as an "endogenous reference compound"-a natural metabolite in the athlete's body not affected by synthetic testosterone. The Carbon ''/Carbon '' ratio of that compound is also compared to the international standard, yielding a delta value for the endogenous reference compound. The difference between the delta for the testosterone metabolite and the delta for the endogenous reference compound is referred to as the "delta delta." Under the LNDD's mterpretation of the WADA CIR positivity criteria, an athlete's sample should be declared positive for the presence of synthetic testosterone if the delta-delta of just one of the four testosterone metabolites is three delta units more negative from the international standard than the delta for the endosenous reference -68- 1 ■? 7 S 10 II 12 14 15 16 17 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 70 of 108 reference compound. Because the LNDD's measurement of uncertainty must be applied, samples at that lab are declared positive if the delta-delta i IS more nesative than 3.8 delta units (-3.8). CAS decision atfl59-60. The difficulty arises because the GC/C/IRMS instrument that measures and calculates the isotopic ratios of the chromatographic peaks generated as data cannot •'^^^^r^'^Htttt***^!^^^ also identify the compo u nd r epresented bv this p e^k The GC/C/IRMS chromatograms can tell the analyst what the isotopic values of a peak that elutes a a particular retention time are, but it cannot tell the analyst what compound that peak represents. Compound identification is accomplished with the other instrument used in the CIR analysis-the gas chromatography/mass spectrometry (GC/MS), which identifies the testosterone metabolites represented by the various peaks, metabolites that elute at different times (retention times) and in different 13 orders . Ex. 1 GC/MS the form of chromatograms, identifies the testosterone metabolites in a gas by both recording the time it takes the compounds to elute from a column and comparing those to a standard, and also by comparing the molecular fingerprint of the compound; both steps are necessary because different molecules can have the same retention times. So in the CIR method, two different sets of chromatograms generated: one from the GC/MS instrument (which identifies the testosterone are -69- 1 ? I ■ / 12 13 14 15 16 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 71 of 108 metabolites represented by the various peaks), and one from the GC/C/IRMS (which calculates the isotopic values of the peaks of interest). Ex. 1 , CAS Decision at 1f6 1 . See also Ex. 27, Landis Appeal Brief at 23-30. for a detailed description of the principles of the CIR/IRMS method. The dispute in this case centered around the method LNDD used to link the peaks generated in the GC/MS with the correct peak in the GC/C/IRMS in order to draw the conclusion that a particular testosterone metabolite has a particular Carbon 12//^_„v.„ 13 8 -/Carbon ' ratio. It is this step that allows the LNDD to derive the delta-delta, 9 and to conclude that one or more testosterone metabolites is positive for the 3 presence of exogenous testosterone under the lab 's positivity criteria. In order I to ensure that the isotopic ratio on a GC/C/IRMS chromatogram is assigned to the correct testosterone metabolite, it is necessary to compare the peaks on the two sets of chromatograms and apply a method for ascertaining which GC/MS peak (which is compound-identified) is associated with which GC/C/IRMS peak (which has a particular isotopic ratio). This is called peak identification. And it is this method that LNDD failed to document in a Standard Operating Procedure, in 17 violation of ISL, §5.4.4.3.1, which requires that LNDD "establish criteria for identification of a compound at least as strict as those stated in any relevant 19 Technical Document." The relevant WADA Technical -70- 1 9 15 17 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 72 of 108 Document-TD2003IDCR-requires that the Laboratory must establish criteria for identification of a compound, and that it "document appropriate analytical characteristics for a particular assay." Ex. 37, TD2003IDCR, emphasis added. LNDD staff admitted that the peak identification method used at the lab IS not documented-not in a a Standard Operating Procedure (SOP), and not i m a 6 written validation study . Ex. 2, Tr. 660:5-661 :20, 838:15-22; Ex. 28, Landis 7 Closing Brief at 1 1 . Although TD2003IDCR-a standard that the Panel expressly 8 acknowledged, see Ex. 1, CAS Decision, f1|105-7- requires documentation of the 9 method used to analyze peaks and there was no dispute that the LNDD' s peak 10 identification method was mt documented, the Panel simply declined to find a 11 violation of the standard, content that the method "as practiced" by LNDD was 12 sufficient. Ex. 1 , CAS Decision at %\ 05. The Panel could only have reached 13 this conclusion by refusing to consider pertinent compliance evidence, and by 14 manifestly disregarding both ISL§5.4.4.3.1 and TD2003IDCR. Therefore, vacatur is justified. 9 U.S.C.A. § 10(a)(3) and New York Convention, Art. V. 16 §l(b). Not only did the Panel disregard micontroverted evidence of an ISL violation 18 that should have changed the result in Mr. Landis 's case, but it determined that the 19 LNDD "practiced" a method that it had not, in fact, validated. -71- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 73 of 108 1 7 10 11 12 1 14 15 Because LNDD did not write down how its staff identified peaks in the GC/C/IRMS, Mr. Landis was never able to definitely determine exactly what method LNDD had used; he was simply unable to reconcile the statements of the various witnesses describing the lab's peak method. Ex. 28, Landis Closing Brief at 1 1-15. The Panel, however, was evidently satisfied that the LNDD staff had consistently described its unwritten peak identification method, which the Panel explained involved a two-step process. Ex. 1 , CAS Decision, ^jl 06. First, the s Panel concluded that the lab identified the compounds on the GC/MS 9 chroraatograms by comparing the retention times^* for the sample peaks with the retention times for known standards. Second, the Panel concluded that LNDD identified the testosterone metabohte peaks in the GC/C/IRMS (which can itself only measure isotopic values) by comparing the retention times for the sample peaks with the GC/C/IRMS retention times for peaks "known" to be the testosterone metabolites in the blank urine quality control. Ex. 1 , CAS Decision at %\06}' The LNDD uses the blank urine sample as both a "negative" quality ^ 16 control and as an "anchor" for its peak identification method, the theory beincr ■*'^^*''^*'*^^- ~ — « ^ ^« Agam, this is the time it takes particular compound to be processed through the instrument and exit the column. " The blank urine pool was used by LNDD as a "negative quality control" and retention time anchor; it was drawn from one individuafknown not to be takin^^ any prohibited substances. Ex. 22, USADA's Post-Submission Brief at 20. -72- 1 :> T J 7 10 11 12 13 15 16 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 74 of 1 08 that if one has definitively identified the testosterone metabohtes in the blank urine pool and determined their retention times, one can use that information to identify the compounds in an unknown sample simply by comparing the retention times of the unknown peaks with the retention times in the blank urine. Ex. 1 , CAS Decision at 1103. While the WABA Technical Document TD2003IDCR does permit a lab to identify peaks by comparing them to peaks in a "reference collection " the LNDD's 8 blank urine pool did not qualify as a reference collection as defined in the ISL. unne Reference collections must be comprised of a "collection of samples," not from one individual Ex. 38, ISL §5.4.6.2; Ex. 28, Landis Closing Brief at 14-5. And as USADA confimied, the blank urine pool used to identify peaks in Mr. Landis's sample was drawn from one individual. Ex. 22, USADA's Post-Hearing Bnef at 20 (blank urine pool drawn from a single volunteer). A vaUd reference 14 collection must also be drawn from persons who have been administered " an authentic and verifiable administration of a Prohibited Substance or Method." which did not happen to the single LNDD volunteer, who was known not to have 17 taken any prohibited substance. Id In order for this blank urine comparison method to work under any circumstances, the peaks in the blank urine pool must be identified in the first place; */3 1 7 '1 D / 8 10 11 12 13 14 15 16 17 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 75 of 1 08 place; they must be known. It is undisputed however, that USADA produced evidence demonstrating that LNDD eve?^ identified the peaks in its blank urim no pool While USADA did rely upon a document that identified some re characteristics of its blank urine pool (Ex. 32, Excerpt, USADA appeal exhibit T026 at LNDD 309-1 0), this document contained other types of information about the blank urine pool, including date of collection, pH, density, temperatu and isotopic values of the compounds of interest. LNDD 309-3 10 does not demonstrate that LNDD actually identified the testosterone metabolite peaks in that blank urine pool, or what their retention times were. Ex. 28, Landis Closina Brief *-■ -^ at 14, «]|(h). This is not disputed; USADA's expert, Dr. Brenna, readily admitted that this document does not indicate how LNDD identified the peak the blank urine in the first instance. Ex. 2, Tr. 1083:6-1084:8; Ex. 28, Landis Closing Brief .at 14. Not only does this document fail to establish how LNDD identified the peaks in the blank urine in the first instance, but LNDD technician, Cynthia Mongongu, testified that no document in the documentation package provided to Mr. Landis contained this information; in fact, she did not know if a document containing such information existed at all. Ex. 2,Tr. 698:6-699:24:Ex. s m 18 28, Landis Closing Brief at 14. In other words, USADA's own evidence -the only evidence available to the -74- 1 / 10 11 13 14 15 17 18 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 76 of 108 Panel to support the conclusion that the LNDD's unwritten peak identification method was valid-confirms that LNDD's unwritten method was based upon a comparison betxveen two sets of imknown peaks. Mr. Landis's peaks were not known, but neither were the peaks in the blank urine. Not one document estabhshes that LNDD ever definitively identified those blank urine peaks in the first instance. Thus, the linch-pin of the LNDD's unwritten peak identification method as found by the Panel was apparently based on assumptions, not a verified and validated method. Not only is the lab's method not written, as required by TD2003IDCR, but even "as practiced," it does not allow one to identify the peaks in a sample. Mr. Landis cleariy presented this argument in his closing brief, but the Panel declined to address it. Ex. 28, Landis Closing Brief at 14-15; Ex. 1 12 CAS Decision at 105-8. ISL §5.4.4.3.1 and WADA Technical Document TD2003IDCR require that peak identification criteria be established, and that the analytical characteristics be documented for each sample assay. The LNDD method was indisputably not Although the Panel aclcnowledged that these standards applied, the Panel simply declined to enforce them. Ex. 1, CAS Decision at 1|105-7. In the face of uncontroverted evidence, the Panel refiised to concede that Mr. Landis had established a violation of the ISL, a finding that should have shifted the burden 16 documented. -7d- 9 13 15 16 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 77 of 108 1 of to USADA to prove that the violation did not cause the doping violation. Ex. 1 . CAS Decision, p? (athlete rebuts presumption that method was performed in 3 compliance with the ISL by showing a departure). Further, it was a decision 4 reached only after ignoring the uncontroverted evidence, evidence in the form of 5 admissions by LNDD staff, that the unwritten method LNDD used could not be 6 considered reliable even in "practice" because it was based on an assumption about 7 the peaks in the blank urine pool. Ignoring evidence is tantamount to a reftisal to ■ s hear evidence at all, and a denial of Mr. Landis' s ability to present his case. 9 Vacatur is therefore proper under FAA, 9 U.S.C.A. § 1 0(a)(3) and New York 10 Convention, Art. V(l)(b). 11 3. The Panel ignored USABA's owe documentary evidence in ^- rejecting Mr. Landis 's claim that the LNDD violated the ISL and its own SOP by failing to install the proper gas chromatography ^* column on its CIR instruments. No matter what method LNDD used to test Mr. Landis's Stage 17 sample, it was imperative that the two instruments it used to conduct this testing (the GC/MS 17 and the GC/C/IRMS) were functioning properly. At the CAS hearing, however, Mr. IS Landis established, based upon LNDD's own documents, that the lab had used tw 19 dijferent gas chromatography columns on its GC/MS and GC/C/IRMS instruments. -76- 1 D ^^^ / 8 10 12 13 14 15 16 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 78 of 108 which is a violation of the lab's own SOP M-AN-52, constituting an ISL violation. Ex. 39, Excerpt USADA appeal exhibit T024, USADA 0124 (on July 24, 2006, GC/MS column was an Agilent 19091s-433); Ex. 40, Excerpt, USADA appeal exhibit T025, USADA 303 (on August 4, 2006, GC/MS column was an Agilent 19091S-433); Ex. 39, Excerpt, USADA appeal exhibit T024, USADA 0153 (SOP calls for use of an Agilent DB-1 7ms column); Ex. 40, Excerpt, USADA appeal exhibit T025, USADA 329 (same); Ex. 41, Excerpt, USADA appeal exhibit T084, LNDD 664 (same); Ex. 42, Written Declaration of Cynthia Mongongu at 4 (English Translation) (GC/C/IRMS column used to analyze Mr. Landis's sample was the DB-17ms); Ex. 27, Landis Appeal Brief at 37-41; Ex. 28, Landis Closing Brief at 11 24-26; Ex. 43, AAA Decision at f 224 (violation of SOP can constitute violation of ISL). The use of two different columns can change the order in which testosterone metabolites elute out of the column and are recorded as cliromatographic peaks on the CIR data files. Because LNDD relied upon a "peak matching" methodology that involved a visual comparison of the chromatographic peaks from the GC/MS with the GC/C/IRMS. 17 changing the order in which the testosterone metabolites eluted would have guaranteed that this method would not be accurate. Ex. 28, Landis Closing Brief at 24, «f|(d); Ex. 27, Appellant's Appeal Brief at 37; Ex. 43, Declaration of Dr. *77- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 79 of 108 1 7 / Declaration of Dr. Keith Goodman at ^^[93 -9 7. Faced with another ISL violation confirmed by its own documents, US AD A attempted to rebut those documents by proffering the written declaration of one Gerard LePetit, a maintenance contractor employed by LNDD to conduct routine maintenance on its CIR instruments. According to this declaration, Mr. LePetit performed a maintenance call on LNDD in April, 2006, removing the correct GC/MS column (the DB-17ms) and installing the Agilent 19091s-433(E) column 8 on LNDD 's GC/MS, making a written note of this installation in maintenance 9 report. Ex.44, Declaration of Gerard LePetit at ^^7- 1 2; Ex.45, US AD A appeal 10 exhibit T141 at LNDD 1899, 1903. But while Mr. LePetit declared that it was 11 "probable" that he simply forgot to make a similar notation when he removed the 12 Agilent 19091s-433 at the conclusion of his maintenance call and replaced the 13 DB-17ms, he had no independent recollection of having done so. Ex. 44. 14 Declaration of Gerard LePetit at ^1 3; Ex. 2, Tr. 720: 1-21 . LNDD technician. 15 Cynthia Mongongu, testified that she accompanied Mr. LePetit on his service call, 16 but added that the LNDD decided to install a new DB- 1 7ms at that time. However. 17 she could not recall watching anyone re-install the DB- 1 7ms column. Ex. 2. Tr. 18 729:7-730:4; Ex. 42, Declaration of C. Mongongu at 4 (EngHsh Translation). 19 Claire Frelat, the LNDD technician who was identified in US AD A Exhibit T142 as -78- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 80 of 1 08 1 ') 14 the teclmician who installed the new DB-17ms column after Mr. LePetit's service call, made no mention in her two sworn declarations of having made this column change, and ftirther testified that she could not recall having done so. Ex. 46 Declaration of Claire Frelat; Ex. 47, Rebuttal Declaration of Claire Frelat; Ex. 2, Tr. 818:9-820:6, 820:13-24. Neither Mr. LePetit nor the LNDD technicians had a personal recollection of the facts that would allow them to contradict USADA's documents showing that 8 t\\'o different columns were in place when Mr. Landis's samples were analyzed. 9 That being the case, US ADA resorted to Exhibit T142 (LNDD 2004-5), a document 10 770/ provided to Mr. Landis in the mandatory Laboratory Documentation Package. 11 LNDD 2005 indicates that a technician with Code Number 26 (Claire Frelat) made 12 a column change on April 27, 2006. Ex. 48, US ADA appeal exhibit Tl 42. As 13 such, the document appeared to corroborate-- in part- USADA's claim that the correct column had been re-installed before the lab tested Mr. Landis's samples in 15 July and August, 2006. However, it also contradicted Mr. LetPetit's claim that he 16 'must have" re-installed the correct column before the conclusion of his service call 17 on April 26 because Exhibit T142 indicates that it was Claire Frelat, Operator 26, 18 who made the column change. Ex. 48, USADA appeal exhibit T 1 42 at LNDD 19 2005; Ex.2, Tr. 719:19-720:9. -79' Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 81 of 108 1 As stated above, Claire Frelat never alleged that she had made the crucial 2 column change in either of her tw'o sworn declarations, though Mr. Landis clearly ■ 3 addressed the column issue in his November, 2007 appeal brief. Ex. 27, Landis 4 Appeal Brief at 38-41. This is consistent with Ms. Frelat's utter lack of memory + 5 about the event. Ex.1, Tr. 818:9-820:6, 820:13-24. Nor could Ms. Frelat 6 explain why a document she testified had been filled out contemporaneously-as 7 each event occurred-was out of date order, with the January 20, 2006 entry coming 8 after the January 30, 2006 entry. Ex. 48, USADA appeal exhibit T142, LNDD 9 2005; Ex. 2, Tr. 813:8-816:5, 816:18-817:4, 817:23-819:23. What is certain is that 10 if Ms. Frelat changed the column, Mr. LePetit did not, despite his assertions about 11 what he "must have done." Ex. 2, Tr. 719:19-720:9. 13 14 15 16 17 Not only is T 142 out of date order, it does not identify what type of column might have been installed on April 27, 2006. Ex. 48, USADA appeal exhibit T142. It does not indicate whether it was a DB-17ms or some other column, though the testimony was that the lab used a number of different columns on its various + instruments. Ex. 2, Tr. 728:20-729:6. In fact, the document never actually states 18 that a column change occurred; the French words for "column chan^Je" -80- Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 82 of 108 15 16 17 18 1 change" ["changement de colomie"] appear nowhere on the page^^o and since 2 Ms. Frelat could not remember the column change, she could not clarify matters 5 Ex. 2, Tr. 818:15-820:6. 4 Mr. Young, however, did have an explanation-one which contradicted Ms. 5 Frelat' s sworn testimony. In his closing, Mr. Young relied upon LNDD 2005 as 6 proof that the necessary column change had, in fact, occurred. He assured the 7 Panel that they need draw no conclusion from the fact that the entries on LNDD s 2005 were not in chronological order, as they should have been if they had truly 9 been filled out contemporaneously; his "commonsense understanding" lead him to believe that the document had either not been contemporaneously-completed, as Ms. 11 Frelat testified, or that the dates had been filled in incorrectly at the time. Ex. 2. 12 Tr. 1471:4-18, 1471:14-24. In other words, Mr. Young urged the Panel to rely upon 13 the dates recorded Exhibit T142/LNDD 2005 to "prove" that the correct column 14 W 'as re-installed before LNDD tested Mr. Landis's sample, but not to draw the conclusion that the document was inauthentic (as Mr. Landis alleged) because it was not in fact the contemporaneously-created document it was represented to be. Untroubled both by Mr. Young's "heads, I win-tails, you lose" analysis, and by the fact that Ms. Frelat-who completed the fonn-declined to testify that she had -° Inexplicably, the document says that the event occurring on April 27, 2006 -81- 1 7 11 12 13 14 15 16 17 18 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 83 of 108 testify that she had simply made a mistake even when offered a chance to do so on cross-examination, the Panel embraced Mr. Young's "common sense" explanation, and rehed on LNDD 2005 to conclude that the correct column had been re-installed before Mr. Landis's sample was tested. Ex. 1 , CAS Decision at fl 89. 6 Although the Panel relied on LNDD 2005 for the conclusion that a column 7 change occurred in April, 2006, it disregarded the fact that LNDD 2005 indicated 8 that it was Ms. Frelat who made the column change, choosing to believe instead 9 that Mr. LePetit had done it, as he said he "must have." Ex. 1 , CAS Decision at 10 f 1 89. In drawing this conclusion, however, the Panel declined to acknowledge two inconsistencies: 1 ) LNDD 2005-which it relied upon for proof of the column change-attributed the column change to Ms. Frelat not Mr. LePetit; and 2) Mr. LePetit could not have made the April 27 column change allegedly evidenced in LNDD 2005 because he finished his work at LNDD on April 26. Ex. 48, USADA appeal exhibit T142 at LNDD 2005; Ex. 44, Declaration of Mr. LePetit, ^7 (Mr. LePetit's service call occurred on April 24-26); Ex. 2, Tr. 785:13-789:6 (col change would have occuixed on April 27, after conditioning). Finally, the Panel simply ignored the fact that even accepting LNDD 2005 umn •-"-^n— "t — I mnnni \ was a "chat colonne," which translates as "cat column. ?? -82- 1 7 / 8 10 12 13 14 15 16 17 IS 19 Case 2:08-cv-06330-PA-CW Document 1 Filed 09/25/2008 Page 84 of 1 08 at face value, it still contained no indication that the correct column-^the DB-1 7ms^was installed on April 27, 2006. LNDD 2005 did not so state, nor did any other witness or document. Ex, 2, Tr. 720:2^19, 729:7^730:19; 785:13^787:17, 4 813:8-821:20. The Panel simply disregarded these gaps in USADA's evidence. Although not one document or witness witnessed, recalled, or attested to the fact that the DB-17ms column had actually been re-installed on the LNDD's GC/MS instrument before Mr. Landis's sample was analyzed, the Panel simply concluded that LNDD 2005 got USADA close enough. Ex. 1 , CAS Decision,