Malcolm Gladwell: Why Was the Decision in Shelby Houlihan’s Doping Case So Unsatisfying?

I understand that with 20-20 hindsight, keeping the burrito for testing would have made things much more certain, either for Houlihan, or against her.

But what you are suggesting is simply not a normal, reasonable expectation. No one, not even an Olympian in an Olympic year, would think that a rich greasy burrito wrapped in foil purchased from a public food truck represents any abnormal risk and should be kept just in case of anti-doping need or risk of E. coli.

gumpyrunner wrote:

Jarrion Lawson had a similiar story (beef contamination):

CAS:

To satisfy his burden the Athlete must provide the Tribunal “with actual evidenceas opposed to mere speculation” as to the origin of the substance …

Not sure what point you wanted to make here — I think everyone agrees that according to the existing WADA code, the athlete has the burden, and did not convince a panel on the balance of probabilities.

One of the questions raised is whether such a burden is always possible, in all cases of innocent athletes, when the athlete with the burden is only triggered one month after the fact. As we saw with the Swiss handball player, he cleared his name only by the luck of having one painkiller left to be tested.

rekrunner wrote:

gumpyrunner wrote:

Jarrion Lawson had a similiar story (beef contamination):

CAS:

To satisfy his burden the Athlete must provide the Tribunal “with actual evidenceas opposed to mere speculation” as to the origin of the substance …

Not sure what point you wanted to make here — I think everyone agrees that according to the existing WADA code, the athlete has the burden, and did not convince a panel on the balance of probabilities.

One of the questions raised is whether such a burden is always possible, in all cases of innocent athletes, when the athlete with the burden is only triggered one month after the fact. As we saw with the Swiss handball player, he cleared his name only by the luck of having one painkiller left to be tested.

The “month”that we refer to in this case will be functionally much longer.

The charge letter is a very serious document or series of them.

It would take many weeks for an athlete to begin to get a competent lawyer; get to grips with the many many thousands of potential costs etc etc.

I think some form of defence/response is needed quite quickly.

So the time to look backwards would be up to 8 wks.

In the UK UKAD turn up with the charge letter mob handed and write down what you say!

So more draconian the more you look at it.

Yes they turn up with the charge sheet and write down what you say and use it against you.

rekrunner wrote:But what you are suggesting is simply not a normal, reasonable expectation. No one, not even an Olympian in an Olympic year, would think that a rich greasy burrito wrapped in foil purchased from a public food truck represents any abnormal risk and should be kept just in case of anti-doping need or risk of E. coli.

Alas, the purpose of linking that similiar case with Jarrion Lawson was to illustrate the lengths and depths the accused went to attempting to trace the bad meat. I will paste that below, but first, on to the estagblishment of the origin of his ADRV.

CAS stated: For an athlete to satisfy his burden under Article 10.2.1 ADR, he must establish that it is more likely than not – in mathematical terms more than 50 percent – that the violation was not intentional. Where there is a range of possibilities canvassed, his preferred possibility must pass the same 50 percent threshold. That he can establish that his preferred possibility is more likely than others may be indicative that he can pass that threshold but is not dispositive (CAS 2017/A/5301 Errani v. ITF at para. 182). Even if – as in the present case – there are only two possibilities, the 50 percent plus test remains constant. For his purpose 50 percent will not suffice; 50.001 percent will. The Tribunal therefore disagrees with the “binary choice” proposition that in the present case it must choose between the Athlete’s version (i.e. an unintentional ADRV caused by ingestion of contaminated beef) or another version (i.e. that the ADRV was intentional). There is a third version – indeed the one actually advanced by the AIU, i.e. that the Athlete has not proved that his ADRV was unintentional.

Now, on to those exemplary measures he Lawson undertook:

The Athlete maintained, as he had put forth on 23 August 2018 in his application to lift his Provisional Suspension, that the likely source of the Epitrenbolone in his system was contaminated meat, which he had ingested in a Teriyaki Beef Bowl on June 1, 2018 at a lunch with Ms. Alexis McCain at a Restaurant in Fayetteville, Arkansas, USA (the “Restaurant”). To support his position, the Athlete provided, inter alia: (i) an affidavit, (ii) evidence that he ate the Teriyaki Beed Bowl on 1 June 2018 (e.g. a receipt from the Restaurant, text messages exchanged with Ms. McCain setting up the lunch, and a bank account statement confirming the purchase of the bowl), (iii) results of a hair analysis conducted by Dr. Pascal Kintz (“Dr. Kintz”), (iv) an expert report from Dr. Helmut Zarbl (“Dr. Zarbl”), (v) a picture of the packaged meat received by the Restaurant from National Beef Packing Co., and (vi) an affidavit from a co-owner of the Restaurant (“Restaurant Owner”) indicating that the meat contained in the Teriyaki Beef Bowl was New York Strip Steak sourced from the Performance Food Group (“PFG”).

This pre-dates Houlihan, who simply discarded her meat evidence. Nothing more from the Houlihan camp, inclusive of her attorney, Paul Greene.

You can determine at your own pace what's dissimilar to Lawson's attempt to solve for his ADRV. For me, it's the classic commercial with the old woman asking, "where's the beef?"

So, Lawson failed to stay out of trouble. He got punished for the two ADRVs.

(i) The period of Ineligibility cannot be reduced, because the Athlete has failed to prove by the balance of probabilities that the ADRVs were not intentional;

(ii) The Athlete has failed to prove how the substance entered his body; in particular, he failed to prove his “lightning strike” theory that the meat contained in the Teriyaki Beef Bowl ingested approximately 19 hours prior to his positive test on June 2, 2018 came from a muscle which had received a direct injection of Trenbolone;

(iii) It is inherently unlikely that a Trenbolone implant would have been placed directly into the muscle in contravention of strictly applied industry regulations, as confirmed by the expert witness Professor Johnson;

(iv) There is no evidence that residues of Trenbolone in US meat can lead (and have led to) adverse findings, as confirmed by the expert witness Professor Ayotte; and

(v)The Athlete’s “lightning strike” theory is implausible and not supported by evidence.

Seems this road isn't the one less traveled. Even the hair sampling: "Dr. Kintz analysed his hair and found no traces of Trenbolone (while admitting that this only eliminates the possibility that he used Trenbolone in repetitive high dosages)".

Honestly not getting why you are posting all that, and why you are posting it to me. I agree wholeheartedly that Lawson went to great lengths and depths and he failed, because the burden is too high. Potential accidental ingestion needs to be prosecuted differently, without a near impossible burden placed on the athlete to establish a lack of intent, not even to prove innocence, but only for the chance to reduce his sentence.

The cases look very similar. Lawson did not preserve his beef bowl for analysis, or risk of E. Coli, like you expected Houlihan to do. ​Houlihan also made similar efforts to find the source of the meat, including receipts, affidavits, hair sample, lie detector, statement from the truck owner, finding that the truck used frozen meat impacted by summer disruption due to the pandemic — you can find it all in the CAS report. Pretty much not “nothing more” from Houlihan or Greene as you describe.

Not finding all that many dissimilarities.

Even then, after such lengths and depths, the AIU wanted more from Lawson:

“Copies of all purchase orders, invoices, receipts, delivery notes/shipping information and any other documents that related to all New York Strip Steak ordered/purchased by the Restaurant in the period March 1, 2018 to June 1, 2018 including the relevant product codes and/or item ID’s and confirmation of the specific supplier”

“Confirmation of the inventory management platform/software used by the Restaurant and copies of all stock inventories/entries related to New York Strip Steak for the period March 1, 2018 to June 1, 2018”

“Copies of any refrigerator/storage records for all New York Strip Steak for the period March 1, 2018 to June 1, 2018.”

The restaurant did not have that information, and would not give it even if they did, unless there was a subpoena.

Lawson had the fortune of winning on appeal, because the AIU expert, Prof. Ayotte gave misleading information.

Houlihan will not have the chance to show any misleading information from Prof. Ayotte or Prof. McGlone, as she exhausted her chance at appeal (unless the Swiss courts agree to listen to it).

For me, the sum of all that was communicated rests on the following:

the Athlete has not proved that [their] ADRV was unintentional.

There's been great debate concerning intent.

gumpyrunner wrote:

For me, the sum of all that was communicated rests on the following:

the Athlete has not proved that [their] ADRV was unintentional.

There's been great debate concerning intent.

A Stromba positive with the same rejected defence would not have had the term intent attached to it.

The AIU statement said “ deemed”.

Thus there is some strange contortion of the words used in the rules that needs to be read and examined before the normal meaning of intent is taken.This follows from it being a specified substance and then all the flipping of burdens and standards of proof (what a mess).

You have to grasp that a Stromba positive would not have been termed intent. That must make the bright amongst you think and wonder and read the rules.

16 pages and no Bad Wiggins. Very interesting.

sanootage wrote:

gumpyrunner wrote:

For me, the sum of all that was communicated rests on the following:

the Athlete has not proved that [their] ADRV was unintentional.

There's been great debate concerning intent.

A Stromba positive with the same rejected defence would not have had the term intent attached to it.

The AIU statement said “ deemed”.

Thus there is some strange contortion of the words used in the rules that needs to be read and examined before the normal meaning of intent is taken.This follows from it being a specified substance and then all the flipping of burdens and standards of proof (what a mess).

You have to grasp that a Stromba positive would not have been termed intent. That must make the bright amongst you think and wonder and read the rules.

Due to unforeseen circumstances, Stromba had to exit class early and is deemed ineligible for the exam.

Time to more on folks. She’s banned because she cannot explain the PED in her body. No amount of scientifically illiterate speculation here will change this fact.

So, the show’s over now. Time to put this to bed.

/end

confounder wrote:

16 pages and no Bad Wiggins. Very interesting.

Malcolm G. has a listed height of 5'9". He may be a bit shorter. Bad Wiggins claims to be 6'1"

Malcolm G. floats between SE Canada and NE U.S. Bad Wiggins, by his posts either lives in Oregon or Washington state.

Both seem to be Libertarians.

Malcolm G. appears to write at a bit higher level but maybe that is due to Malcolm G. having a team of proof readers and editors on the payroll.

Bad Wiggins seems as if he does not like Malcolm G.

After so many pages, the outcome of the Houlihan case still remains very satisfying.