Why the CAS Decision on Shelby Houlihan Should be Thrown Out

Shelby is as GUILTY as Ben Johnson and Lance Armstrong.

But even if you want to take her word that it was from a burrito....SHE SHOULD NOT HAVE EATEN IT. She ordered carne asada. She should have spit out the first bite if she thought she actually received anything but carne asada. Athletes are responsible for what they put in their body.

The idea that she got raw pig stomach instead of carne asada, and that she she "f**k it" and ate the whole thing anyway is insane. She's a pro athlete and it would be 100% her fault if she ate an entire pig stomach burrito. (besides the report proved that a pig stomach burrito would not have produced her levels, and would have been a completely different type of nandrolone anyway).

GUILTY

She is a doper. Even if she didn't know she was investing an illegal substance strict liability says she is a doper.

I don't know why so many people are bending over backwards to try and make her anything else.

Dopers out.

I agree with Rekrunner, but it's interesting that the Media Release from which you are both quoting includes the "unanimous" qualifier, while the actual decision doesn't include the word anywhere. In any case, I tracked down the rule about whether members of the Panel can vote or dissent:

User-Guide-to-the-Court-of-Arbitration-for-Sports-Booklet.pdf (p.37):

"All arbitrators have a duty to participate in the deliberation; however, CAS does not recognise dissenting opinions and opinions expressed in deliberations are not considered to be part of the voting of the ultimate decision. Dissenting opinions are not notified to the parties, although the award can record that decision was taken on a majority basis, rather than unanimously."

This suggests that Casual Observer has a point. Even if it was 2-1 behind the scenes, it was a bit strong to word it that way, and I have changed the sentence to instead read, "September 1st, CAS released its 44-page decision in which the majority of the 3-person Panel found she had committed a doping violation."

To my chagrin, I have also fixed the units on the δ13C units from % to ‰. That obscure unit of measurement (on a negative axis), along with the term ' boar' make this case a hard nut for the public to crack.

Lmao, parts per mil is an "obscure" unit of measurement?

...perhaps make it less obvious when you're out of your analytical depth, chief.

High hopes wrote:

Nice that Jonathan Gault now has a name to use in his stories instead of Twoggle.

Hey Ken, how many clients have you had for your independent research and analysis? Just trying to establish what your expertise is and why anyone should take what you write seriously.

That would be great, I have a lot of respect Jonathan's reporting, but you are right that I have no special qualifications or affiliations that would convince anyone to trust me. It is for this reason that I have had to include a large number of linked references to back up my assertions, but one really shouldn't trust anyone based on their job title anyway. I would also suggest that this legal case is a multidisciplinary problem, and while I don't have the expertise of Ayotte in biochemistry, or McGlone in swine production, I do have experience growing up around farms and farmers, and a broad base of knowledge in all of the different facets of this case that probably equals theirs. At the very least, I am probably a better runner, or at least, a bigger running fan than both of them. ;-) In this country, we do not expect members of a jury to be experts, either, and in real trials, they are granted the power to be the ultimate arbiters in deciding the truth precisely because they lack the conflicts of interest that come with such positions.

Adam Smith, Communist wrote:

Lmao, parts per mil is an "obscure" unit of measurement?

...perhaps make it less obvious when you're out of your analytical depth, chief.

For the general public, this (Wikipedia explanation) is obscure:

"The standard established for carbon-13 work was the Pee Dee Belemnite (PDB) and was based on a Cretaceous marine fossil, Belemnitella americana, which was from the Peedee Formation in South Carolina. "

But I think what makes it hard for the average person to get right away is that -15‰ is a higher δ13C value than -23‰. which is why I added a parenthetical about it. And how the heck is anyone supposed to know how to pronounce δ13C? Clearly, the Panel struggled with this as well.

Adam Smith, Communist wrote:

Lmao, parts per mil is an "obscure" unit of measurement?

...perhaps make it less obvious when you're out of your analytical depth, chief.

One thing worse than a pedant is the pedant getting it wrong.

Percent and per mille are unitless.

The whole point of testing-based anti-doping and, even more so, biological passport is to establish metrics that turn doping into an offense with strict liability.

Before good tests you had to catch athletes with banned substances in their possession or the athletes in the act of doping.... both very rare events.

Now with good testing we have precisely defined tests for what constitutes a violation. Good organizations should empower athletes with everything necessary to avoid crossing these thresholds (intentionally or unintentionally ;) ).

I am in the "Houlihan was taking something contaminated with nandrolone" camp, but you'd think Nike would do more to prevent accidental ingestion.

Tygart has often expressed the concern of innocent athletes being railroaded into 4-year bans and treated as intentional cheats.

This has happened at least 27 times under USADA since 2015. There is no reason to think this is not happening outside of USADA, and that it did not happen to Houlihan.

Let's not fabricate a false issue of morality out of plain ignorance of the WADA code, or a counter-productive zero-tolerance mindset. There is nothing immoral with reducing sanctions, suspending consequences, or delaying or foregoing public announcements, in exchange for substantial assistance. Look at the case of whistle-blower Steve Magness, who clearly committed an ADRV under the scope of "strict liability", according to both the AAA Panel and the respective CAS panel. Did he serve a secret ban? Did he serve a ban? The public may never know. WADA encourages substantial assistance as a necessary tool for combatting anti-doping, and has codified exchanging some or all of the consequences of ADRVs to encourage whistleblowing -- throwing the small fish back in the water in exchange for bigger fish. Some excerpts in the latest code, section 10.7:

You seem unaware that the issue of boar taint in pig products has been far more developed in case law in the EU/EFTA countries than in the US, mainly due to strong enfickrcement of competition (anti trust) laws in these countries. The market varies hugely between countries which are not sensitive to boar taint and which therefore don't have a erm and for castrated pig meat, and those which are. The case law is very, very devekoped and any lawyer/judge at CAS will be aware of its intacies to a degree that a US based expert can only imagine.

And again, because the issue of boar taint is so well known amongst not only lawyers but coaches too, the liklihood of an athlete such as Shelby Houlihan and her teammates not having it explained to them by their coach/nutritionist that eating meat from a roadside stall is risky from a resting perspective is so low as to make the excuse itself suspicious. It's really implausible.

Also, can you address your lack of understanding of strict liability? Are you suggesting that (a) the burden of proof should be reversed in this case and on which grounds that should be don't or (b) the defendant has successfully proven, to the standard of proof required the case against her?

What elite athlete goes and ears a greasy takeaway immediately after training anyway, when your appetite is suppressed and knowing you will get tested?

For the latter, you need to price either new or unconsydered evidence crucial to the case, or serious abuse of due process. Not just rehash the existing evidence to suit your own, non legal, narrative.

This looks like a bunch of nonsense. Boar taint is not illegal and does not violate any anti-trust laws, even European ones.

Can we also stop with this nonsense that a "roadside stall" selling USDA legal food should have been or should be considered risky? Before Dec. 2020, no athlete should have expected that buying a burrito from a food truck carried any anti-doping risk. Many "fans" don't believe it now. Why do you expect that coaches and athletes should be well educated on this specific risk -- based on 20/20 hindsight?

Futhermore, when you read excerpts from Prof. McGlone describing how rare it would be for boar meat to enter public pork supply, getting past all the legal, visual, and smell tests, how do we explain the explicitly introduced changes from the WADA documents TD2019NA to TD2021NA, specifically adding ingestion of boar meat as a special confounder? If the probability were near ZERO, what was the trigger for updating the document? The issue of boar ingestion must have been something significant enough and well known for many years, for WADA to draft and approve changes to the process.

To answer your question about burden, the right approach in cases like this, where the quantities are low, where tests suggest oral ingestion (meaning highly filtered on first-pass before getting into the blood stream) and it's a one-off failure, we should not ask who is the right party to bear the near impossible burden of proving with certainty that which is uncertain based on existing data. There is a WADA approved path of declaring it an ATF, when "intact" pork consumption is "invoked by the athlete", and requiring further tests and intelligence based target testing.

This is like explaining things to children...

You are aware of something called the Single European Market/free movement of goods? Have you thought about what that means? It means that all products that go into that market have to do so under exactly the same terms, conditions, requirements, tarrifs etc between all of the member states and EFTA countries. If one country doesn't require pigs to be castrated in order to consume their pork products and other countries do, then its much cheaper for pig producers in (e.g. Denmark) not to castrate pigs intended for the first country. But that would mean that there is an effective trading advantage between the first country and Denmark which violates European competition law (which deals with an awful lot more than mergers and acquisitions). Its far more complicated than that but its unlikely you will comprehend the complexities.

If you think this is a "bunch of nonsense" then how can you possibly understand the complicated details of the the issue of boar taint in different markets and tainted samples? Some producers get round it by using skatot tests, others castrate later and some countries weren't even testing but simply smelling for boar taint. If you are seriously suggesting that lawyers for CAS in Switzerland aren't already experts in the issue of androstenone content of more than 0.5 μg/g in pig meat and that Nike or you think you have somehow reinvented the wheel when it has already taken the form of a far more advanced creation entirely, then you are both deluded.

You ask what the "trigger for updating the document" - literally everyone who deals with these sorts of issues is aware that there was a very contentious EU case on this very issue which required such changes to be made. Why haven't you done research on this? Its not as if there isn't loads of freely available information out there.

Then you go on to suggest that the burden of proof should be reversed (presumably retrospectively?) for this case, just because, well, it would be kind of convenient not to have the strict liability that applies to every other athlete. The onus of proof is on the athlete to prove an innocent reason for the high levels of nandrolone in the sample, not for the court to prove how it occurred. You are suggesting that strict liability be waived for one athlete, which would obviously give every other athlete convicted of doping a claim to have their case reversed and damages awarded and make it impossible to catch athletes with tainted samples unless they were actually caught physically doping or in possession of drugs. This is ridiculous and farcical and you are blinded by the notion that a fellow American can't possibly have doped or been caught doping.

Again, you ask why I think that coaches and athletes should be well educated on this specific risk? Why would you even ask this?- Its the fact that it would be so easy to consume a contaminated source of food unless you cook it yourself and buy it from a trusted source. Every professional athlete and coach knows this. Thats why they don't buy food from other than trusted sources,. Plenty of athletes are on record discussing how careful they are not to ingest anything they haven't cooked and prepared themselves or eaten from a trusted, reliable source. There have been enough doping bans blamed on contaminated drinks, supplements and food its farcical to suggest that Shelby Houlihan had never considered this.

Clearly this wasn't a trusted or reliable source, since Shelby Houlihan herself claims that it was the source of her failed samples and the boar taint excuse was the central part of her defence, so she clearly changed her mind about US products being free of boar taint and of high standards being ensured.

I don't think anyone seriously buys the excuse that a group of athletes devoted to maintaining low body fat all suddenly felt so hungry immediately after training that they decided to eat a fatty, greasy meal composed of meat! The excuse in itself is so implausible that it casts aspertions upon the guilt of those in that group who were involved.

Can I also suggest that if you want to make a serious argument, you don't use phrases like "bunch of nonsense" or "can we stop with" - you're not a kid in school.

The vast majority of those subject to testing are not professional and have coaches who have no clue what such as a related compound may or may not be.

It is preposterous that they should have to meet the requirements of checking food sources.

If someone bothers to read what the veterinary residues committee say about enhancers in food you would reasonably conclude that you could never safely determine reliable food sources.

The rules are draconian and are not compatible with the normal systems of justice in the west.

Target testing will be seen as breaching human rights laws as all who are subject to the rules must be treated the same.

rekrunner wrote:

Tygart has often expressed the concern of innocent athletes being railroaded into 4-year bans and treated as intentional cheats.

This has happened at least 27 times under USADA since 2015. There is no reason to think this is not happening outside of USADA, and that it did not happen to Houlihan.

LOL. What? Hahahaha.

First of all: what? 27 innocent athletes were " railroaded into 4-year bans and treated as intentional cheats" "at least 27 times under USADA since 2015"? Names? Evidence? Source?

Second, "no reason to think" "that it did not happen to Houlihan"? Seriously? "no reason to think" that Houlihan was not innocent? So much obvious trolling on your part, but I bite for the fun of it.

Going through the CAS report, one finds escalating improbabilities for the cascade of unlikely events for her to be innocent from:

1) "possible" (that the beef burrito was pork burrito)

2) to "possible but improbable" (that the pork came from a cryptorchid)

3) to "possible but improbable" (that the nandro amount would be that high EVEN IF it was a cryptorchid)

4) to "possible but highly improbable" (that the cryptorchid had such elevated androgen)

5) to not “consistent with the carbon isotope signature of commercial pork".

And yes, this includes considering the Covid situation, as also explicitly discussed in the CAS report.

Five reasons to think why Houlihan was guilty, right there straight from the CAS report. And that's not even considering her progression, and her 14:23 including the way that was run.

rekrunner wrote:

Futhermore, when you read excerpts from Prof. McGlone describing how rare it would be for boar meat to enter public pork supply, getting past all the legal, visual, and smell tests, how do we explain the explicitly introduced changes from the WADA documents TD2019NA to TD2021NA, specifically adding ingestion of boar meat as a special confounder? If the probability were near ZERO, what was the trigger for updating the document? The issue of boar ingestion must have been something significant enough and well known for many years, for WADA to draft and approve changes to the process.

We explain that by remembering that the WADA rules are for everyone, including for Germans eating wild boar, not just for Americans eating commercial pork. You know this, ergo, you are trolling again.

You should also add "uncastrated" or "intact" where applicable to avoid more obfuscation. Oh wait, your agenda, got it.

rekrunner wrote:

Adam Smith, Communist wrote:

Lmao, parts per mil is an "obscure" unit of measurement?

...perhaps make it less obvious when you're out of your analytical depth, chief.

One thing worse than a pedant is the pedant getting it wrong.

Percent and per mille are unitless.

Oh no, looks like another doping apologist is out of their analytical depth. Better read my post again and figure out why I used that term.

Also, drug cheat Shelby remains banned.

Also, to be pedantic, I would classify the better descriptor of my behavior as 'arrogant'.

Cheers, guys. Shelby is still banned.

What happened 27 times was “concern” for the athlete. They were not railroaded into a 4-year ban, thanks to USADA’s concern. The source is a quote from Tygart, which I must have posted in at least 5 threads recently, including this one:

“Secondly, the Code in certain cases, railroads innocent athletes into four year sanctions. At our last count, we recorded 27 cases where athletes did absolutely nothing wrong but were treated like intentional cheats.”

Your 5 reasons from the CAS report are the result of directly applying the Code which is the very thing accused by Tygart of railroading innocent athletes into 4 year bans.

In any case, these 5 reasons don’t really argue against “innocence”, since her “guilt” does not depend on identifying the likely or unlikely source.

rekrunner wrote:

What happened 27 times was “concern” for the athlete. They were not railroaded into a 4-year ban, thanks to USADA’s concern.

That's what I thought.

Then why did you write: "This has happened at least 27 times under USADA since 2015"? And your quote neither includes "since 2015" nor any evidence that there were really 27 athletes and that they were really innocent.

In any case, if true, it proves that the Code does not lead to "railroading innocent athletes into 4 year bans". Or are you saying that USADA broke the Code at least 27 times since 2015?