bicycle.net -- cycling news, product reviews, original essays, podcasts & video :: tour de france 2008

What I Would Say To The CAS Panel, If I Were In Maurice Suh’s Shoes

By: Larry Behrendt

Did you ever watch someone give an important speech – a State of the Union Address, an acceptance speech at the Academy Awards – and ask yourself what you would say if the microphone were in your hands?

In a few weeks, the Court for Arbitration of Sport (CAS) will hear Floyd Landis’ appeal of his doping case from the 2006 Tour de France. Landis’ lead attorney, Maurice Suh, will address the CAS panel at the outset of the hearing. The hearing will take place behind closed doors, so we won’t have the opportunity to hear what Suh has to say.

Suh is an outstanding trial attorney, and does not need assistance from me. But that doesn’t stop me from thinking about what I would say to the CAS panel, if I were in Suh’s shoes.

I’d probably say something like this:

Ladies and Gentlemen. Have you ever heard the expression, “the elephant in the room”? It’s an idiomatic expression for an obvious truth that is being ignored. The elephant represents a truth we’d rather not confront, so we pretend that the elephant isn’t there. But we all know that he’s there.

Ladies and gentlemen, there’s an elephant in this room. Let’s acknowledge his presence.

On August 9, the Ottawa Citizen published an editorial by Richard Pound, the then-President of WADA, the World Anti-Doping Association. Pound referred to the Landis case as “the customary flow of denials”. He stated that unless Landis confessed to doping, he would be consigned “to a life of ridicule and obscurity.”

As time went on, Mr. Pound became even more blunt. His most infamous statements were made to the New York Times in early January, 2007. This is when he described my client’s cycling as “going up mountains like he’s on a goddamn Harley”, and my client as so doped on testosterone that “you’d think he’d be violating every virgin within 100 miles.”

Put aside the offensive nature of Mr. Pound’s comments. Mr. Pound, President of WADA, declared my client WADA guilty of doping only days after the adverse test results were announced by the French anti-doping lab, before anyone outside of the French lab had seen the evidence.

WADA wrote the anti-doping rules that are the basis of this case. They wrote the rules that the French lab had to follow in testing my client’s urine samples, and they provided the lab with its accreditation. They wrote the procedural rules used in the arbitration hearing last May, the rules we’ll use here in this appeal. WADA granted CAS the authority to hear this appeal. And WADA has pronounced my client guilty of doping.

It’s hard to imagine anything like this taking place outside of cycling. Could you imagine what would happen if, say, the President of the United States pronounced a criminal defendant guilty, before there’d been a jury trial? There would be an uproar. Even the President of the United States can’t get away with that kind of behavior. But the President of the world anti-doping effort can pronounce my client guilty months before his trial, and scarcely anyone blinks an eye.

Is this the elephant in the room? Well, in part it is. But it’s not the whole story. Mr. Pound may be unusually blunt, and more than unusually crude, but his Mr. Pound is just willing to say out loud what the powers that be in cycling are thinking privately, and whispering to each other.

Nearly everyone in cycling with a position of authority – whether they’re at WADA, or the national ADAs like USADA, or the race organizers, or the International Cycling Union, or the members of the press – nearly everyone in cycling concluded a long time ago that my client is guilty. They did so before the arbitration hearing, and without looking at the evidence. They did so based on the assumption that nearly all cyclists are dopers, that any winner of a prestigious cycling event must be a doper, that any cyclist who improves on a previous year’s performance is a doper … and that any cyclist who fails a doping test is an egregious doper.

Obviously, not everyone in cycling is willing to say this sort of thing out loud. But a few do, like Mr. Pound, and Martial Saugy, head of the anti-doping lab in Lausanne. This November, M. Saugy announced that 47 riders in the 2007 Tour de France raced on blood transfusions or EPO, and that 80 percent of the peloton was taking human growth hormone. This was a remarkable statement! Only a handful of riders flunked anti-doping tests during the 2007 Tour, yet M. Saugy knew that another 150 riders were doping. This was a particularly wondrous piece of analysis by M. Saugy, given that he runs a lab in Switzerland, and the Tour de France testing was performed near Paris.

Yet to my knowledge, no one has questioned the statements of M. Saugy. Why question M. Saugy, when he’s just saying what everyone else believes to be true?

My client was found guilty before he was ever tried, regardless of the evidence that says he’s not. During the arbitration, we showed that USADA’s evidence was based on shoddy science, that the lab violated its own rules, that it could not maintain a chain of custody, that it could not identify the presence of exogenous testosterone in my client’s samples, that it did not understand how to operate its machinery, that it did not bother to preserve crucial data, that it could not perform measurements within its own margins of error. The arbitrators listened to the evidence, and then tossed it aside, certain as they were that my client must be guilty, because … well, because everyone knew he was guilty. As the old joke goes, “don’t confuse me with the facts, my mind is made up.”

You gentlemen know that you are expected to uphold the anti-doping sanctions against my client, that your failure to do so will hold you up to the ridicule that Mr. Pound promised my client, way back in August of 2006. You know that a decision in favor of my client will provoke an angry reaction from the cycling authorities in France. You know that you’ll be accused of many things: of falling under the sway of Landis’ high-priced lawyers, of elevating form over substance, of frustrating the world-wide effort to combat doping. You know that regardless of what we do and say in this room over the next few days, no one outside of this room will experience a change of heart. The people in charge of cycling, the people who run the organizations that give this panel the power to hear this case, will remain convinced that my client doped.

It’s not going to be easy for you to give my client a fair hearing. In order for achieve justice here, we will somehow have to overcome the obstacles that have been placed before us. Yes, in an ideal world, these obstacles should not exist. But we do not live in an ideal world. It does not serve the interests of justice to pretend that these obstacles do not exist. They are as obvious as … an elephant in the room.

Share/Bookmark:
Categories: Features
Tags: attorney maurice suh floyd landis, floyd landis cas, floyd landis trial