LRC “interviews” Shelby about burrito defense and doping

Armstronglivs wrote:

This may surprise you but nothing that includes "court" in its title isn't a court. The Court of Arbitration is a "real" court like other civil courts; it follows rules and its decisions have legal force, without which they could not be binding on the parties. It is not a tribunal, which is a lower level judicial body, as shown by the fact that it does not have "tribunal" in its title. It is required to follow legal procedures and evidentiary principles and principles of natural justice. These are principles of law. Its decisions can be appealed if it fails to do that. It is not a merely organisational body that decides issues amongst its members that have consensual but no legal effect.

The Court did not need to know the source of the banned drug in order for there to be a violation; it is sufficient that it was found in the athlete's body and that she had no justifiable defence. Anything else you argue about that is speculation that didn't meet the standard of the balance of probabilities. It is no coincidence: you never meet that test - with anything. It's always a warehouse in Arizona with you.

rekrunner wrote:

twoggle wrote:

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.

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.

rekrunner wrote:

Armstronglivs wrote:

This may surprise you but nothing that includes "court" in its title isn't a court. The Court of Arbitration is a "real" court like other civil courts; it follows rules and its decisions have legal force, without which they could not be binding on the parties. It is not a tribunal, which is a lower level judicial body, as shown by the fact that it does not have "tribunal" in its title. It is required to follow legal procedures and evidentiary principles and principles of natural justice. These are principles of law. Its decisions can be appealed if it fails to do that. It is not a merely organisational body that decides issues amongst its members that have consensual but no legal effect.

The Court did not need to know the source of the banned drug in order for there to be a violation; it is sufficient that it was found in the athlete's body and that she had no justifiable defence. Anything else you argue about that is speculation that didn't meet the standard of the balance of probabilities. It is no coincidence: you never meet that test - with anything. It's always a warehouse in Arizona with you.

So it's enough to have "court" in the name to be a "real court of law"? How about a food court? A basketball court? A tennis/squash/racquetball court? The Marriot Courtyard? The court of public opinion? Are these also "real courts of law" because there is "court" in the title?

According to WIPO, arbitration is "a private dispute resolution procedure instead of going to court." They make it sound like arbitration is an alternative to courts.

I don't oblige the CAS to know the source -- again another red herring. My point is that they don't know the source, like everyone else. As such, we cannot divine the source from a finding of rule violations deemed intentional using a process that does not need to know, and did not determine, the source.

Since you pretend to know the law, maybe you can share your opinion of Swiss Civil Code? I found these paragraphs in the "UCI vs. Contador" CAS proceeding highly relevant to cases like Houlihan's:

CAS 2011/A/2384 wrote:

7. Under Art. 8 of the Swiss Civil Code (CC), unless the law provides otherwise, each
party must prove the facts upon which it is relying to invoke a right, thereby implying
that the case must be decided against the party that fails to adduce such evidence. A
valid contestation of facts needs to be specific, i.e. it must be directed and attributable
to an individual fact submitted by the party bearing the burden of proof. According to
the doctrine, the threshold for meeting such an obligation to specify the contestation
is – under normal circumstances – rather low, since it must be avoided that the
prerequisites for contesting an allegation result in a reversal of the burden of proof.
Nevertheless, there are exceptions to this low threshold. The exceptions concern cases
in which a party is faced with a serious difficulty in discharging its burden of proof
(“état de nécessité en matière de preuve”, “Beweisnotstand”. This is the case
whenever a party needs to prove “negative facts”. In this respect, the Swiss Federal
Tribunal makes it clear that difficulties in proving “negative facts” result in a duty of
cooperation of the contesting party who must cooperate in the investigation and
clarification of the facts of the case. However, the above difficulties do not lead to a re-
allocation of the risk if a specific fact cannot be established. Instead, this risk will
always remain with the party having the burden of proof.

8. The athlete can only succeed in discharging his burden of proof by proving that (1) in
his particular case meat contamination was possible and that (2) other sources from
which the Prohibited Substance may have entered his body either do not exist or are
less likely. The latter involve a form of negative fact that is difficult to prove for the
athlete and which requires the cooperation of the Appellants. Thus, it is only if the
theory put forward by the Athlete is deemed the most likely to have occurred among
several scenarios, or if it is the only possible scenario, that the Athlete shall be
considered to have established on a balance of probability how the substance entered
his system, since in such situations the scenario he is invoking will have met the
necessary 51% chance of it having occurred.

Maybe Houlihan had more opportunities to appeal under Swiss Law.

Here, Contador's CAS speaks of a "duty of cooperation of the contesting party" under the Swiss Civil Code, to help the party who is burdened with proving "negative facts", and again a "negative fact ... which requires the cooperation of the Appellants".

USADA Chief Travis Tygart says the same thing -- that ADAs and ADOs have an ethical duty to work just as hard for helping innocent athletes as for convicting the guilty ones.

Reading the CAS report, it seems that the WA/AIU and its "expert witnesses" clearly failed in this duty.

I also see that "A valid contestation of facts needs to be specific, i.e. it must be directed and attributable to an individual fact submitted by the party bearing the burden of proof." Looking again critically at the "near-zero presupposed cascade of improbabilities" discussion, it doesn't seem to meet this criteria, being too general, rather than specific.

Armstronglivs wrote:

So a "Court" of Arbitration is as much a "court" as a "food court" to you, or the "court of public opinion"? You are an unbelievable moron. It is quite obvious the term is being used in respect of a judicial body, which if it has "court" in its title is a court, not a tribunal or any other quasi-judicial body. It isn't called a "Panel of Arbitration in Sport" for that reason: it is a court - a "real" court. Its role is to make decisions between contending parties, which is what it did, as a civil court does.

As a court it is able to make a decision that is NOT an agreement between the parties - there was no room for agreement between WA and Houlihan. That is what courts do.

So here's a basic intelligence test for you: if it isn't a court what bound Houlihan to its decision, that included a finding of intentional doping and a 4 year ban? Why didn't she just say - "I don't agree, I don't accept your findings, I'm going to keep competing". What bound WA to accept its decision? It didn't accept the decision because it agreed with it - that had no bearing on it - whether WA agreed with CAS was irrelevant - but because the decision bound both parties.

rekrunner wrote:

Armstronglivs wrote:

So a "Court" of Arbitration is as much a "court" as a "food court" to you, or the "court of public opinion"? You are an unbelievable moron. It is quite obvious the term is being used in respect of a judicial body, which if it has "court" in its title is a court, not a tribunal or any other quasi-judicial body. It isn't called a "Panel of Arbitration in Sport" for that reason: it is a court - a "real" court. Its role is to make decisions between contending parties, which is what it did, as a civil court does.

As a court it is able to make a decision that is NOT an agreement between the parties - there was no room for agreement between WA and Houlihan. That is what courts do.

So here's a basic intelligence test for you: if it isn't a court what bound Houlihan to its decision, that included a finding of intentional doping and a 4 year ban? Why didn't she just say - "I don't agree, I don't accept your findings, I'm going to keep competing". What bound WA to accept its decision? It didn't accept the decision because it agreed with it - that had no bearing on it - whether WA agreed with CAS was irrelevant - but because the decision bound both parties.

But I thought you told me that "nothing that includes "court" in its title isn't a court". Now you're telling me that is moronic? Regardless, whether these courts are courts or not, none of these courts are "courts of law". Apparently you must agree since you haven't yet disputed my original point.

To answer your question, WADA signatories agree to settle disputes with arbitration instead of going to court, and they agree to be bound by these decisions. Notably athletes found to violate sports rules are generally not found to have broken any laws. Sometimes athletes are referred to real law enforcement authorities, to start a legal process that may eventually end up in a court of law.

Here's a basic law intelligence test for you: what did you think of the Swiss Civil Code, and the duty of both parties to cooperate to help establish "negative facts"? Do you think that describe the AIU and their "expert witnesses"?

Armstronglivs wrote:

Keep doubling down on your stupidity. The subject was judicial bodies - nothing else - and any judicial body that has "court" in its title is a court. Your use of it in an informal or metaphorical sense or in the vernacular - such as "courting" disaster - only shows your wilful stupidity.

The arbitration process that WADA signatories agree to is still a legal process. If it wasn't it could be rejected or appealed against for failing to conform to that process. It isn't a criminal process so no breaches of "the law" of that kind were involved, but it did involve areas of civil law that apply to sports law. This is chiefly the agreement to a Code of Rules that bind the parties while preserving their rights, with an agreed adjudicative process in the event of disputes. Because you are pig-ignorant of the law you don't know that adminstrative codes of practice are also "law" and subject to law. The most telling demonstration of this is that Houlihan was unable to appeal because the Court of Arbitration had properly applied the principles of law involved, such as determination of the facts, the interpretation and application of the antidoping rules, and observing the rights of the parties - which of course includes Houlihan.

This place is not a "court" but there are laws that govern how it works and it could be subject to the adjudication of a court if legal actions were to arise from its operation. It is the same with sports. The adjudication in this case was from the Court of Arbitration in Sport, which has the power to impose binding decisions on the parties, as "real" courts do.