LRC “interviews” Shelby about burrito defense and doping

Sometimes they lend it to Jonathan

I said that the CAS is not a "court of law". All this talk about the law and legal principles is irrelevant, unless your point is that Arbitration is not illegal, and that all parties are also simultaneously subject civil and criminal laws at all times.

The Court of Arbitration's role is to settle disputes about rule interpretations between contract signatories. Its hands are tied by the rules it is tasked with interpreting.

You are conflating these different contexts and it is clouding your thinking.

I don't say the CAS needs to establish the source, but that anyone and everyone who wants to assert that the source is a banned exogenous norsteroid product would need to establish that that is the source.

I don't say I don't like presumptions, but just that they are strong enough to be able to draw any conclusions on their own, especially when lacking supporting facts. I am also free to start from a different set of presumptions, not being a WADA contract signatory. I presume athletes are innocent until proven guilty. In the interest of ensuring justice for all innocent athletes, it is time proven to be superior than the principles of "strict liability" (holding the athlete responsible for the acts and negligence of others), and "presumed intent" (guilty until proven innoncent).

If you want to talk about the "presumption of innocence" as applied in criminal courts, I remind you that the choice a jury makes is between "Guilty" and "Not Guilty". They don't presume innocence to conclude innocence. And before you dismiss this as "semantics", here is a legal review for you which says it is more than sematics: "Not Guilty and Innocent - The Problem Children of Reasonable Doubt".

"The legal distinction between not guilty and innocent is more than a semantic parlor game."

https://dc.law.mc.edu/cgi/viewcontent.cgi?article=1115&context=lawreview

You still can't understand a single sentence. The Court of Arbitration is a "court" - contrary to your continued misconceptions.

The Court didn't have to establish a source for the nandrolone because it was at levels that exceeded anything naturally produced by the body. It had to be introduced. Where exactly it came from was irrelevant - unless Houlihan could show it was accidental. She couldn't. Keep up with your version of the fake moon landings.

I haven't argued for 4 years that a court is wrong.

You have posted 2300 times in less than 3 months.
Now post again and reply to me. You have to.

AAH -- statistics. Often misunderstood.

To illustrate the pitfall, a similar approach shows the statistical likelihood of an athlete testing "positive" for the presence of nandrolone at all is "near-zero". According to WADA, in 2019, in all sports, out of 278,047 tests, 162 resulted in nandrolone AAFs, and 26 of these were consistent with exogenous origin. That is a probability of 0.058% and 0.0094%, respectively.

Does anyone ever argue or believe that this unlikely scenario of AAFs for nandrolone can never happen? Of course not. This possible but unlikely event happens every year.

While pork offal consumption is considered by WADA as an "unlikely origin of a 19-NA finding", this general likelihood argued and estimated by the AIU is only applicable when the athlete (and burrito) are independently chosen at random. In specific instances, where the athlete was non-randomly chosen on the basis of the presence of nandrolone exceeding a threshold, these general population likelihoods are no longer applicable and would need to be recalculated.

The statistician would first start by choosing a more representative population, e.g. the athletes producing the ~162 AAFs, or the ~26 consistent with exogenous AAFs, or even more narrowly, female endurance athletes producing low values less than 10 ng/ml with a pseudo-endogenous signature with delta-delta values and 19-NA/19-NE ratios greater than 3. Even this narrow starting point is too general, and not quite specific to the unique factors in Houlihan's case. Ideally, specific facts and evidence can be found that will significantly alter the likelihoods further while reducing the uncertainty. For example, if Houlihan never purchased nor consumed a norsteroid product from Amazon, the true likelihood of that "plausible" suggestion is exactly zero, making it even less than the estimated "far less than 1 in 10,000" near-zero probability from the AIU "expert witness". Or if she had preserved and tested the original uneaten portion burrito (and/or original batch of vitamins), and these detected the presence of nandrolone, this would alter the likelihoods.

The only thing this "near-zero" argument really shows is that Houlihan needed to find evidence to overcome a presumption.

It is you who fail to understand this single sentence: "Some of this might be true in real courts of law, but you keep conflating an arbitration based on rules as a court of law."

The CAS oversees arbitrations based on rules and is subservient to an artifically constructed context created by those rules.

I don't oblige the CAS to establish the source, as the artificially constructed context doesn't either. That burden would be on you and everyone else who wants to argue or presume the source.

Can you explain what "The origin of the urinary 19-NA may not be established by GC/C/IRMS analysis ..." means?

Did Ross Tucker explain it? The CAS? The AIU? Please quote the relevant explanations from these experts.

In paragraph 73 of the CAS report, the CAS provides Prof. Ayotte's explanation why the AAF, and not the ATF, is correct with four points (too long to quote it all): 1) what is plausible; 2) what is likely; 3) what is unlikely; and 4) comparison to literature on pig meat.

Can you point me to the relevant guidelines in any version of the WADA TD that permits a WADA Lab to consider plausibility, or likelihood, or unlikelihood, or pig meat literature, after the athlete invokes "the consumption of edible parts of intact pigs", before the Lab has reported the sample result as a Negative Finding or ATF or AAF?

As the Lab cannot use the GC/C/IRMS test to establish the origin, and they did not conduct the optional pharmacokinetics testing, how did the AIU meet its higher burden of establishing that an ADRV occurred?

But who said "strict liability" was the right system? "Strict liability" holds the athlete responsible for the acts and negligence of others, whether the athlete has knowledge of them or not. That establishes a great starting position for anti-doping organizations, creating a hurdle for the accused athletes, and is a disaster for innocent athletes wrongly charged.

In Houlihan's case, the question remains open whether "the ingredients of the offence (were) established", given the ambiguity was resolved by presumptions and not based on facts. Recall the CAS Panel couldn't agree on this point.

The question of "intent" is premature, if no offence occurred.

I can accept fact-based outcomes which avoid logical fallacies, but I remain skeptical of "judicial" outcomes necessarily based on presumptions rather than standing alone on supporting facts.

Not really important. Such things are generally accepted, see for example the number of athletes who got off after sending in an open, contaminated bottle of vitamins/meds (e.g. Martinez; except for Asinga, where the tampering was done too stupidly).

Also too risky to submit someone else's hair sample. Instead they excluded checking for the relevant prohormones (just like they tricked with the polygraph test).

See CAS 134:

and RE polygraph:

I also think asking whether someone on the team gave her "vitamins" - again see Asinga - would have been informative. That question was not asked either.

So you're confident that her team could have marked boxes for precursors but chose not to?

Sounds like you believe she was taking something else illegal that got contaminated during manufacturing?

Yes, Team Houlihan chose what to test for, and chose what questions to be asked of her in the polygraph test. One can learn a lot from that.

I believe she was taking something else illegal that, yes, either got coincidentally contaminated with nandrolone or, more likely, included nandrolone on purpose, normally but not that time in safe amounts.

If it included nandrolone precursors in useful amounts and deliberately, wouldn't she need advanced notice of when the USADA tests would be? To use throughout the pandemic. Or is that hard to quantify?

I believe that Dr. Kintz performed the correct test of the hair sample. He tested for nandrolone and for 19-norandrostenedione. The testimony of Ayotte is once again not accurate for the following reasons:

1. Dr. Kintz cannot possibly test for every nandrolone precursor on the market. Had he tested for nor-DHEA, Ayotte would have complained that he didn’t test for some other precursor that has been found on the market at some point in time.

2. If someone were to dope from a nandrolone precursor supplement, those chemicals are metabolized first - they don’t automatically jump from the tongue into the hair. That is why Dr. Kintz tested for both nandrolone and one of the main metabolites which is also a metabolite of nor-DHEA.

Just because a prosecution witness said something and 2 or 3 arbiters bought it, doesn’t make it accurate (as can be seen by the Lawson case).

It is too bad that the videoconference of the hearing isn’t online. A small number are online, but I don’t know what the criteria is.

You've restored my hope. My gut says she's not the type to cheat and continue denying, but I know people can be complicated.

Did you mean 19-nor-androsterone (19-NA) the metabolite?

Some scientists weren't thinking about clarity when saying 19-Nor-Andro means androstenedione and 19-NA means 19-norandrosterone.

I see you are having problems understanding the likelihood of a beef burrito turning into a pork offal burrito is zero (0). Requires no presumption

This presumes she received and ate a beef burrito.

What many fail to understand is that the relevant likelihood is not the presupposed factors that nandrolone is in a burrito, among all the burritos in the USA, but the likelihood that the burrito is more likely the source of the nandrolone, among all sources.

Unsurprising though, and further demonstrates the imbalance against the athlete in these cases. The athlete is burdened with doing all the "specific and concrete" investigative work, while there is no burden to pick and throw darts at it, armed with 20/20 hindsight. In any case, the hair and the polygraph always seemed to me like long shots, and seem to rarely be accepted or given much weight.

About the polygraph and hair, the CAS report says: "Irrespective of the above, the Panel also refers to the CAS case law in CAS 2011/A/2384, at paras. 233-243 (polygraph examination) and CAS 2017/A4954, at para. 128 (hair test)." Wondering what that means, as the CAS didn't explain how that influenced their decision, I looked for these cases:

CAS 2011/A/2384 (UCI v. Contador) paras. 233-243 explain why that CAS found the polygraph test admissible, giving it more weight than an athlete's declaration of innocence.

CAS 2017/A/4954 (World Anti-Doping Agency (WADA) v. Belarus Taekwondo Federation (BTF) and Arman-Marshall Silla) para. 128 is not about hair, but again about a polygraph test, where that Sole Arbitrator ruled that the polygraph test was inadmissible, and would be given no evidentiary weight.

This leaves me to wonder what case law they relied on for the hair test, if any.

Unrelated, but I found yet another CAS error: paragraph 80 gives a definition of "inconclusive" said to be found in 2.3.3 of the TD2019NA. In fact there is no section 2.3.3 in this TD2019NA. With a little digging, I found that this definition comes from the TD2019IRMS. However, this TD is explicitly inapplicable to nandrolone: "19-Norandrosterone (19-NA) and 19-noretiocholanolone (19-NE) are considered in a separate Technical Document, TD19NA [1], and the technical recommendations and requirements described herein shall not be applied to their analysis."

The CAS is applying a definition of "inconclusive" that shall not be applied to nandrolone analysis.

To recap, the TD2019NA instructs the WADA Lab to include "the demonstration, when required, that the 19-NA is not of endogenous origin [1]", i.e. including a demonstration that it is not from the "consumption of the offal of intact, non-castrated pigs". The TD2019NA also provides little guidance about how to exclude consumption of pig offal, what should be considered "inconclusive", and what is to be considered "exogenous", particularly when it says that -16 to -26 is in the "normal endogenous range", and especially considering the suggested "19-norsteroid preparations" also appear to be "endogenous" (-20 to -24), and "may not readily indicate its exogenous origin". Any suggestion that the origin is more likely the norsteroid preparation, rather than pork offal consumption, must be a consequence of the demonstration WADA instructs the WADA Labs to include.

Lacking such a demonstration, it is difficult to conclude the origin is "exogenous". The result is "inconclusive", as intact pig offal consumption has long been known to confound the GC/C/IRMS test, making the test unreliable in determining the origin, in these cases (as the TD2021NA makes explicit). The report should have said so, reporting the B-sample result as an ATF, and noting "any other factor preventing a reliable GC/C/IRMS measurement".