In a sign of a widening split on the arbitration panel overseeing the doping case against cyclist Floyd Landis, two of the arbitrators, including the one representing the prosecutors in the case, excluded Landis’ arbitrator from their deliberations in a key ruling last week.
The excluded arbitrator, Bay Area attorney Christopher L. Campbell, vehemently protested in a written dissent that the others had not informed him they intended to confer on the matter before they issued the ruling May 1.
The “unprecedented and entirely inappropriate” action, Campbell wrote, “sends a clear message that the majority is unwilling to hear and consider valid arguments regarding a dispute.”
Experts in arbitration law said Tuesday that the exclusion of one party’s arbitrator from any deliberation is highly unusual and could raise doubts about the panel’s commitment to fairness. “It’s perplexing why the panel would not want to make sure every ounce of due process was afforded to Landis,” said Robert G. Bailey, an arbitration expert at the University of Missouri School of Law.
But it is unclear whether that would be enough to persuade a civil court to review the case if the panel’s ultimate decision goes against Landis.
Landis, the winner of the 2006 Tour de France, was charged with doping when a urine sample he provided during the race tested positive for the illicit administration of testosterone. He faces a two-year suspension and the loss of his Tour title if the charge is upheld by the arbitration panel and after an appeal.
The case is being prosecuted by the United States Anti-Doping Agency under the authority of the World Anti-Doping Agency. Besides Campbell, the arbitrators are Richard McLaren, a Montreal attorney appointed by USADA, and Patrice Brunet, a London, Canada, attorney who was selected by McLaren and Campbell as the neutral arbitrator. None of the three would comment.
The dispute in the high-profile case has erupted as the panel prepares to take testimony at a hearing starting May 14. And it comes as Landis’ attorneys step up their public attack on the integrity and competence of the Paris anti-doping lab that tested the sample underlying the doping charge. The core of the cyclist’s defense is that the lab, known as LNDD, mishandled his sample and misinterpreted his test results.
Documents provided to Landis by USADA indicate that LNDD was forced to reverse itself in at least one other case in 2006 because it had mishandled an innocent athlete’s sample.
According to the documents, the lab withdrew its finding that a competitive swimmer had doped with the steroid mesterolone after it discovered that the athlete’s sample had been contaminated by steroids in another sample tested the same day. WADA rebuked the lab, demanding that it take corrective action.
The documents provided to Landis’ attorneys appear to be identical to several that were made public last year by an anonymous source who had allegedly hacked into the lab’s computers. USADA’s delivery of the documents in the swimmer’s case indicates that those, at least, are genuine.
At issue in the arbitrators’ dispute are the results of tests of seven samples of Landis’ urine taken at various points during the 2006 Tour de France. Unlike the sample that is the basis for the doping charge, these initially tested clean. USADA had asked the arbitrators’ permission to test the samples again at the French lab.
Although Landis objected, the arbitrators ruled 2 to 1, with Campbell dissenting, to allow the further testing. But they also ruled that Landis could send his own experts to witness the procedure. Landis says USADA officials routinely prevented his experts from witnessing all facets of the retesting last month, however. Accordingly, his lawyers asked the arbitrators to rule the results inadmissible as evidence. The arbitrators instructed both sides to submit written briefs by May 1.
Campbell says that within hours of receiving the final brief, McLaren and Brunet privately drafted a ruling rejecting Landis’ motion “without notice to me, my knowledge, or inclusion.” He said he received the ruling by e-mail, as did the attorneys for Landis and USADA.
According to an e-mail to the parties made available to The Times, Brunet said he later informed Campbell that he had been excluded because Landis had merely asked the arbitrators to clarify their original order allowing the retests. Because Campbell did not join in the original order, Brunet argued, he had no right to participate.
Arbitration experts surveyed by The Times called that viewpoint novel but could not say whether it might lead a judge to invalidate any final ruling in the cyclist’s case. Courts tend to give arbitrators great leeway to make their own rules, they said.
Even if Brunet’s rationale were sound, said Stephen J. Ware, an arbitration expert at the University of Kansas, “best practices are that you should give the third arbitrator an opportunity to participate, just so you don’t have questions after the fact.”