Why the CAS Decision on Shelby Houlihan Should be Thrown Out

rekrunner wrote:

The CAS didn’t actually decide what Houlihan really ate.

Neither did Houlihan which is one of the bigger hurdles she had to overcome and never did.

Well...

0/10

Right — how do adults refer to a post that is full of nonsense?

As one adult to another, it is your burden to provide support for your claims, not mine.

You claimed that there was established European case law.

You claimed that CAS lawyers would be well aware of European case law.

I have no obligation to research whether your claims are valid.

You claimed boar taint was an issue.

You claimed that most coaches are also aware of the issue of boar taint.

I am aware of the European Single Market, but not aware of any disputes regarding boar taint.

It’s not even clear to me you know what boar taint is. Boar taint is not contamination of pig products.

But, assuming that I’m wrong and it is not nonsense, as an intellectual adult, can you support any of your claims?

Can you refer me to some of this case law on “boar taint in pig products”?

Can you refer me to the European laws on boar taint?

Can you show me any evidence that lawyers from CAS are aware of this alleged “boar taint case law”?

Can you show me that “boar taint” is an issue that most coaches are aware of, and that most athletes like Houlihan should be aware of?

Can you explain how CAS lawyer’s awareness of European case law on the issue of boar taint changes anything — they are heavily constrained to rule according to the framework of regulations in the WADA code, based strictly on the evidence before them.

Some quick investigation shows that European countries like Ireland, Netherlands, Spain, Portugal and the UK (now with a free-trade agreement), mostly, if not completely, raise intact boars, while Denmark routinely castrates their boars. About 20% of boars in France, and Germany are intact. I see that many groups in France wants to stop castrating their boars, and that Europe had a goal in 2018 to eliminate routine boar castration.

I did not suggest reversing the burden of proof. I suggested following the path outlined in the TD2021NA that would report this as an ATF, and implement further tests to make what is uncertain more certain, rather than assigning an unfair or near impossible burden to either party.

I am not struggling with a notion “that a fellow American can't possibly have doped or been caught doping”, but with a system that does not and cannot distinguish intentional cheats from innocent athletes who simply cannot prove no intent, because the primary evidence is consumed or disposed of, and would treat Houlihan with the same ban as CJ Hunter. My concern is not limited to Americans. I have also expressed this same concern with respect to the 49 nandrolone positives reported in a study on Kenyan doping between the years of 2004-2018.

Adam Smith, Communist wrote:

rekrunner wrote:

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.

Oh, that is clever — calling me a doping apologist.

I’ll concede that you are not the pedant who got that wrong, and agree that “per mil” is not an “obscure” unit of measurement — because it is unitless.

While Shelby remains banned, it would be premature to call her a “drug cheat”.

casual obsever wrote:

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?

Why did I write that? Let’s review what I wrote.

I wrote that Tygart “has often expressed … concern” and then I wrote that “this” happened 27 times.

I guess taken literally that means he “Tygart expressed concern” each time, for a total of 27 times, which is not exactly what I meant. Thanks for the opportunity to correct the record.

It is true that Tygart said he counted 27 cases, and the head of the adjudicating body said these athletes did absolutely nothing wrong, and he did not provide the evidence and details of these 27 cases in a one sentence quote. Good point.

The source for 2015 comes from the year that the WADA code changed, by shifting the high burden of showing “no intent” onto the athlete. Before that, the burden was on the “ADA” or “ADO” to extend the default 2-year ban by proving “aggravating circumstances”.

I’m not following your proof. Tygart didn’t claim (nor did I) that it railroads all innocent athletes in every case. As the adjudicating body, USADA “found” that they were persuaded of “no intent” or “no fault” on the balance of probabilities, and within the rules of the Code, reduced the sanction appropriately. It’s unlikely USADA broke the code 27 times and that WADA did not exercise their right of appeal.

Your last sentence sums a position up very well.

This still sits with a correct guilty verdict.

Given the contorted rules which depend upon presence we can only take a personal view of her being a cheat.

I make an analogy with a no jump; breach of the rules but not a cheat.

I would be happy if the rules did look to intent and unambiguously ruled on such.

On the more technical matters I do worry about wada labs and heads reinforcing each other at hearing and depending on there own research funded by Wada.

I worry about a discredited witness being allowed to give expert opinion on her own work..

I am minded that in the not too distance past wada got convictions on the statements that Nandrolone never occurred naturally.What will they have to revise in the future.

I can’t see how the above can be referred to a Doping Apologising.

Ah I see. Your point is that before 2015, innocent athletes were railroaded into a 2 year ban (no example given), and since 2015, into a 4 year ban (no example given). Got it. But then you keep bringing up allegedly (no evidence) 27 allegedly (no evidence) innocent athletes (post 2015, or not?) that were allegedly (no evidence) not railroaded at all. So do you have a point?

That is exactly my point. No railroading of these innocent athletes despite the Code (whether post 2015 or not). So what's the point in showing that following the WADA code, innocent athletes did not get railroaded, while complaining that innocent athletes get railroaded because of the WADA code, without showing any examples, let alone 27?

I think you are just seeing what you want.

I didn’t say athletes before 2015 were railroaded, but you do bring up a good point. We recently saw a Duke Law publication describing as far back as 1996, how “the system simply rolls over you”, if you don’t have the resources to put up a robust legal and medical defense.

Tygart’s summary statement of USADA’s recent prosecution history into athletes is firsthand evidence. It stands unrebutted.

The point is that the WADA code is broken, and in need of reform, in order to better protect innocent athletes by design. This is part of WADA’s core values:

“We protect the rights of all athletes in relation to anti-doping, contributing to the integrity in sport.”

“We develop policies, procedures and practices that reflect justice, equity and integrity.”

“We listen to athletes’ voices, as the stakeholders that are most impacted by anti-doping policies and activities.”

“We strive to be diverse and inclusive to ensure that everyone has equal opportunities to be represented.”

Again, put your emotions about Houlihan’s failure to identify the source of the nandrolone aside, and look at the proven case of Simon Getzmann, Swiss handball athlete.

Only by luck, he had one painkiller left, that could be tested, and after a more than 1-year suspension, was cleared of all charges and declared innocent. Had he taken all of the painkillers, or discarded them, he would be in the same position as Houlihan, because the WADA code is broken.

Simon Getzmann was innocent and he proved it. Yet it still cost him more than 10,000 Euros and more than 1 year of suspension, through no-fault of his own. For this innocent athlete, who could prove himself innocent, the WADA code is broken. Strict liability failed to protect him, and put him on the defense, at great personal financial cost.

If he had the bad luck of no more painkillers, this innocent athlete would be unable to prove it, and the penalty would be 10,000 Euros and 4 years of sanction, and all the scorn that Houlihan is getting. For this innocent athlete, the WADA code is broken.

Now look at just one country, Kenya, at 49 nandrolone doping positives, in a country that doesn’t castrate pigs, and ask yourself if they are able to mount a robust legal defense against the IAAF or the AIU. Which Kenyan has 10,000 Euros?

They weren’t railroaded, but the risk is always there, because the WADA code is broken.

What I showed you is a leading anti-doping expert expressing concern with the ability of the WADA code to protect clean athletes, expressing the need for reform. The principle of “strict liability”, and shifting the burden to the athlete to prove “no intent”, and the presumption that the WADA labs acts correctly, and the presumption of intent until proven otherwise, all shifts the balance of justice against the athlete. This ensures that WADA catches more intentional cheats, but also catches more unintentional cheats (while presuming intent, as more broadly defined by the WADA code).

Again, Simon Getzmann — the best outcome possible was still more than 10,000 Euros and more than 1-year suspension. He wasn’t railroaded, but still painfully shafted. How many athletes can afford a 10,000 Euro defense, while losing sponsorship, and the right to compete and earn money? How many athletes would not have that last pain-killer, that last supplement from the same batch, some leftover teriyaki bowl, or 1/4th of a greasy pork burrito?

Elsewhere I also showed you that NADO’s estimate 5-15% of AAFs are unintentional, with a US Ombudsmen estimating much more: 40-60% of AAFs are unintentional.

Another part of the problem is the ambiguity of interpreting the WADA code:

- Look at the recent Salazar decision. The CAS panel, with the same evidence, reversed two out of three of the AAA Panel decisions, finding that USADA failed to show the email was “attempted tampering”, and that USADA failed to show that supplying the testosterone to his sons was “trafficking”. They also reversed another AAA Panel finding, and found that “possessing” testosterone for the experiment was a violation, something the AAA Panel found USADA failed to prove.

- Look at the Houlihan decision and the TD2021NA guidelines, and how the CAS panel was split on interpretation. On the one hand, the document says “The origin of the urinary 19-NA may not be established by GC/C/IRMS analysis”, and yet the WADA lab used GC/C/IRMS analysis to establish the origin, and the CAS panel accepted that the WADA lab followed the 2021 document, while a minority disagreed. A different panel could have decided “ATF” and their is no suspension, sanction, subsequent need for finding the source of the AAF, no announcement, and no Houlihan threads.

The WADA code is a system that is subjective, interpreting a code that is in some parts ambiguous.

The only real evidence against Houlihan is a one-off positive test with low values.

As I said above, there was some debate and disagreement among the panelists about whether this should be reported as an ATF or an AAF. No AAF, no ADRV.

The rest of the case described by CAS is a list of general statistics, some based on subjective interpretations of partial expert testimony.

For example, there was no dispute among experts that pigs (castrated or not) were fed soy during the pandemic, but the CAS subjectively decided that commercial pork was probably corn-fed.

Another example was the expert focus on cryptorchids, while neglecting to mention other paths for intact boars to make it past USDA inspectors’ sniff test, into the meat supply with USDA approval.

Another example is Prof. Ayotte’s testimony of values from castrated boar meat-consumption, from two studies with small sample sizes, in a case that was about potential castrated boar offal consumption, while ignoring her own study on castrated boar offal consumption leading to much higher values.

The CAS was persuaded to accept the lower meat-consumption values, perhaps oblivious that Prof. Ayotte was once again being selective about which truths she told.

rekrunner wrote:

Tygart’s summary statement of USADA’s recent prosecution history into athletes is firsthand evidence. .

Strongly disagreed. It is without value. Tygart made a comment in an interview, with no evidence presented whatsoever. Plus, USADA just got officially scolded again by CAS, this time for the way they presented and in part abandoned their evidence, among other things. And now you want to use their "statement" as "firsthand evidence"? This is not even funny anymore.

rekrunner wrote:

The point is that the WADA code is broken, and in need of reform, in order to better protect innocent athletes by design.

Strongly disagreed. In any case, as you know, the Code is constantly being reformed, as we move along. So, no worries.

rekrunner wrote:

No AAF, no ADRV.

No. ATF instead of AAF: maybe ADRV, maybe not, depending on the follow-up investigation. In any case, it was an AAF.

Drug Cheats Out!

This is why I believe Shelby. She grew up in a place that has real American values.

Donald Trump, Republican incumbent: Lyon County, 5,703 votes (83.17 percent); O’Brien County, 5,857 votes (77.73 percent); Osceola County, 2,688 votes (80.84 percent); Sioux County, 15,669 votes (82.72 percent).

Joe Biden, Democratic former vice president: Lyon County, 1,065 votes (15.53 percent); O’Brien County, 1,567 votes (20.80 percent); Osceola County, 600 votes (18.05 percent); Sioux County, 3,017 votes (15.93 percent).

purity wrote:

Again, if her Carne burrito was 100% tainted pork burrito, to get to her level, she would have had to eat 10 burritos and she didn't even finish the one

We know this; please add original thought!

I take what Usada say as important.

They are hardly softies on the matter.

This sort of comment is how we build up knowledge.

Not definitive but indicative.

As for” Drug Cheats Out!”

I fully agree, but the system is not there to determine intent…… is it?

I am curious how WADA will react to all the recent regulation in Europe forbidding swine castration. My understanding is a lot of it is done via immuno-castration, so in theory the intact pigs shouldn't be causing too many false positives, but with countries like Spain, Portugal and Ireland leading the way with 100% intact male pigs, I'll be watching athletes from those countries carefully to see how they fare.

It is worth pointing out that Switzerland is not in the EU, but like most European countries, it has a civil law system, rather than a common law system based on case law. Of course, lawyers there still look at what has happened in previous cases, but they are not precedent-setting like they are in England or the US. Regardless, I doubt there have been many cases in their legal system having specifically to do with athletes and nandrolone and pigs, since CAS has had a monopoly on such adjudication over the last 30 years. Like I wrote, CAS is not a real court, thus the Panelists need care only about CAS / WADA regulations.

You were probably talking to Rekrunner but of course I do not believe strict liability is a useful standard, and that of course someone accused of cheating should be innocent until proven guilty beyond a reasonable doubt. Are we not civilized? The idea that the Panel's hands are tied because "rules are rules" is ridiculous. CAS and all the organizations which use it are private entities and could simply direct the Panel to exercise human judgment on an ad hoc basis, or simply have a group of athletes decide what should happen in each case. There is no need to be consistent; this isn't a government service and every country has different cultures and expectations. Sports at this level is entertainment and right now there is very little audience outside of dedicated runners and other participants (except Japan and a few other places).

So, you're conflating something Tygart said about other (unspecified) athletes and Houlihan's case, about which he has said precisely nothing. Furthermore, USADA declined to make any intervention in the case, as the CAS judgement stated. In other words, they could see no merit in intervening.

And yes, reduced sanctions are fine for whistleblowers but serving a ban in secret is not. Being allowed to compete while awaiting sanction is not either. What has come from Eliud Ngetich's whistleblowing? Zero to date.

The people who put Tygart on a pedestal as some sort of crusader only interested in the truth and justice are naïve. He's a politician. His principal aim is to increase USADA influence in WADA under the arrogant belief that USADA is somehow morally superior to other NADOs. All of his actions make more sense when viewed in that context.

That's ridiculous. Any system of justice strives for consistency in decision making. Without that, justice is arbitrary and you might as well just pull the verdict out of a hat rather than present a case. Sport isn't just entertainment, it is competition and a profession. People lose money and careers when dopers are allowed to continue competing which is why Houlihan's case, and the case of any doper, is not just about the accused, it's about protecting clean athletes as well.

I also don't see the problem with strict liability in doping cases. If an athlete is found to have a performance enhancing drug in their system it's reasonable to assume it was used to enhance performance and the burden should be on the athlete to prove otherwise. Tbh, even if they removed strict liability, on the balance of probabilities, a panel will likely conclude that a PED was in an athlete's system to enhance performance rather than for any other reason. So this whole debate about strict liability is a red herring.

You often speak in terms of how it amuses or entertains you, and then stop when you get bored. LOL.

Of course you would disagree. This is noted, but as strongly as your want to express your disagreement, it is also without value.

You are very selective at what constitutes evidence, seemingly based on your prejudices. Results in a leaked spreadsheet which did not lead to a sanction count as evidence, but adjudicated cases by USADA do not. Look up what “firsthand” means. Not sure what the CAS scolding has to do with this, but discussing the priority of sanctions that appears to have had no impact on any athlete, or any competition is another topic.

Tygart has given many statements in many interviews. I only selected one.

Interviews are not the place to give the supporting evidence you seem to think is standard, but nevertheless the evidence is public. Some other examples:

When Jamie Brown’s case result was announced:

"We have now had 26 of these tragic no-fault cases since 2016, and the injustice keeps happening.

"How many more athletes will suffer and resources will be wasted before we, as a World Anti-Doping Agency (WADA) community, reform the system to be more fair, effective, and efficient?"

When Brady Ellison’s case result was announced:

“We have now had more than 25 of these tragic no-fault cases since 2016, and the injustice keeps happening. On behalf of athletes, USADA will continue to urge WADA to reform the system to be more fair, effective, and efficient.”

When Brenda Martinez’s case result was announced:

“This is our sixth no-fault case in just one year, meaning that yet another athlete has been unjustly charged with a violation and publicly recognized for ingesting a prohibited substance from a completely innocent source …”

There were many other high profile cases like Ajee Wilson, Will Claye, Gil Roberts, …

Do you need all 27 examples to be convinced, or to weaken your strong disagreement?

For a pre-2015 example, Gabrielle Lemos Garcia.

Each of these statements in interviews are backed up by the ruling of a disciplinary tribunal, after examining all the evidence and applying mitigations available in the WADA code. WADA has the right of appeal in each and every case, and let the rulings stand unchallenged and unrebutted, signalling implicit and tacit approval.

Of course you would.

In 2015 it was reformed in a direction against athletes committing both intentional and unintentional violations. This was the cause of some big worries, for at least 27 athletes, and many more outside USADA’s jurisdiction, like the example of the lucky, yet unlucky, Swiss handball athlete Simon Getzmann.

But there can be no doubt that “strict liability” works against innocent and guilty athletes alike.

There can be no doubt that “intention” is something not proven, but “presumed” — lacking the “evidence” you say is missing from statements describing the case results of athletes who did “prove” “no intent”.

There is no doubt that WADA redefines “doping” to include acts like sending an email, or failing to fill out a form on an app.

There is no doubt that WADA redefines “intent” to include a broad range of actions, and that the CAS can declare an ADRV intentional without providing the “evidence” or even which act was considered, that meets the new definition.

+1

No doubt — drug cheats out.

We just need the system that can distinguish drug cheats from innocent athletes who have done nothing wrong.

High hopes wrote:

So, you're conflating something Tygart said about other (unspecified) athletes and Houlihan's case, about which he has said precisely nothing. Furthermore, USADA declined to make any intervention in the case, as the CAS judgement stated. In other words, they could see no merit in intervening.

And yes, reduced sanctions are fine for whistleblowers but serving a ban in secret is not. Being allowed to compete while awaiting sanction is not either. What has come from Eliud Ngetich's whistleblowing? Zero to date.

The people who put Tygart on a pedestal as some sort of crusader only interested in the truth and justice are naïve. He's a politician. His principal aim is to increase USADA influence in WADA under the arrogant belief that USADA is somehow morally superior to other NADOs. All of his actions make more sense when viewed in that context.

There is no reason not to conflate these — all of the same issues and concerns apply without exception, because it is the WADA code itself, that places a high, often impossible, burden on innocent and guilty athletes alike. No one can argue with evidence that Houlihan was not railroaded into a 4-year sanction, for being unable to prove events as she lacked the primary piece of evidence. The standard required of the AIU and the CAS does not rise to the level of proving any element of Houlihan’s defense false in the real world.

Although USADA declined to get involved, it would be presumptuous and incorrect to conclude USADA saw no merit in intervening.

Serving a ban in secret, and being allowed to compete while awaiting sanction are two “carrots” permitted by the WADA code — contrary to your statements, these are both fine depending on the value of the substantial assistance. It is also not required to make it public what has come from Ngetich’s whistleblowing. “Zero to date” may not be nice for the public, but from WADA’s point of view, is also OK.

Whatever you may think of Tygart the politician, his criticisms of the revised standards imposed on athletes remain valid on their merits. The concerns of injustice are there, regardless of whether someone like Tygart says it. Centuries and millenia of judicial experience tells us what we can expect from “innocent until proven guilty” versus “guilty unless you can prove innocence”.

Houlihan was guilty of presence of a banned substance in one urine sample (A+B) from an unknown source, and guilty of being unable to prove this was unintentional.

There is no evidence or proof of intent, just a codified presumption based on not being able to prove no intent.

The test result is consistent with synthetic doping, and consistent with soy-fed uncastrated boar offal consumption.

There is not sufficient evidence that allows us to choose one possibility over the other.

The CAS findings are a result of a WADA code that does not require choosing and proving the most likely possibility.

The WADA code doesn’t require making, and cannot make, that distinction.

So it is not warranted for fans to presume that it has.

That’s kind of the whole issue — justice under the 2015 WADA code is arbitrary, because much of the burden for prosecutors has been removed.

Again — forget the ambiguities in the Houlihan case and look at the proven case of Simon Getzmann, who proved himself innocent, but only by luck, and it still cost him more than 10,000 Euros and more than 1 year suspension, for the act of taking a prescribed painkiller contaminated with a substance not written on its label.

Exactly how was the clean athlete Simon Getzmann protected?

Whether a substance is performance enhancing is also a red herring — as the WADA code doesn’t require proving a substance enhances performance, to put it on the banned substance list, and doesn’t require that performance was enhanced, in order to ban. Like many things in the WADA code, the relaxed guideline is “potential to enhance performance”. While we might think that the steroid nandrolone surely enhances performance for a woman, there is some doubt about (including, IIRC some studies in 2002) whether a one time oral ingestion leading to such a small quantity in her urine, provided any significant or measurable performance enhancement benefit.