Floyd Landis has tested positive for synthetic testosterone.  Synthetic testosterone use conjures thoughts of oversized men in colorful briefs with even more colorful tans, but endurance athletes do not use testosterone to build muscle per se.  Instead, the hormone is used to help speed recovery of muscle depletion from stress and to increase mental and physical energy levels.  [2]  This allows the athlete to perform at peak levels for longer periods of time.  [3]  In the Tour de France, where day long cycling followed by day long cycling is the competition itself, increased recovery, mental focus and physical energy can set a champion apart from a second place finish, in this case merely 57 seconds [4].    

III. The established testing procedure aims for accuracy while protecting the athlete's rights

Simply because Landis tested positive is not to say that he is guilty of violating cycling anti-drug rules, because the process involves a second test to confirm the first.  [5]  This is the first main assurance of a reliable testing procedure, that each test is verified by splitting an athletes urine sample into two, an A sample and a B sample.  [6]  The A sample is tested.  [7]  If the A sample returns a positive result for any banned substance, then the B sample is tested to verify that result.  [8]  This procedure is followed to ensure the athlete’s rights are protected.  After all, the punishment for use of a banned substance carries a likley two year prohibition from international competition and forfeiture of any prize money, in this case 450,000 Euros, not to mention the damage to Landis' reputation.  [9]

The second second main testing procedure to ensure no foul play is that the athlete signs the seal of the vial which stores the sample and has the right to attend the B sample test to ensure that it is indeed this athlete's sample being tested.  [10]  A strict chain of custody is maintained to prevent tampering with the samples.  [11]  These testing procedures were adopted by the UCI of its own accord, and are consistent with the testing procedures of other international and national sports organizations.  [12]

Often athletes have contested the scientific basis of testing procedures.  [13]  As such, governing bodies should implement independent testing between the two samples to avoid the conflict of interest that exists for the laboratory verifying its own results.  In a field such as this, where the reliability of the science is highly debated [14], independent laboratory verification would give the athletes, the sport and the public further assurance of the reliability of testing.  It also would eliminate a grounds of attacking the reliability of the testing procedure which athletes have used in the past.  Athletes in the past have had positive test results overturned due to discrepencies in the testing procedure.  [15]  It appears that Landis will mimic this type of defense by putting Chatenay-Malabry lab, the lab in charge of completing tests of both samples, on trial as part of his defense.  [16]  An independent laboratory verifying the results of the A sample test could prevent errors in the testing procedure and also close this avenue of defense in future cases. 

III. The US is responsible for government its own athletes, even when the drug test was complete by a foreign body

In an international sporting competition, the international federation (IF) of that sport is the governing administrative body.  In the sport of cycling, that IF is the International Cycling Union (UCI).  [17]  IFs allow the home national governing body (NGB), in this case USA Cycling, to administer any disciplinary action against the athlete.  [18]  USA Cycling as well as the US NGB’s of other sports have passed on the duty of regulation to the independent agency the US Anti-Doping Agency (USADA).  [19]  The USADA acts on the recommendation of the USADA Review Board, which serves in a manner analogous to a grand jury, to see if there is a valid case.  [20]  This panel reviews the record as it stands: tests, USADA documents, the athlete’s written response and oral statements, but no oral in-court testimony is allowed.  [21]  The USADA then makes a charge and sanction on the recommendation of the board.  [22]  This serves as comparable to a final judgment from a trial court.  On September 13th, the USADA Review Board made a recommendation that Landis be sanctioned.  [23] 

At this point, an athlete does have appeals available to challenge the sanctions.  The athlete has two options, seemingly affording a channel of appeal as right, as is the case with the US judicial system.  First, the athlete can go to a panel of arbitrators in the US, the American Arbitration Association (AAA).  [24]  Then that decision can be appealed to the Court for Arbitration in Sport (CAS) in Sweden, which serves as a final decision.  [25]  In the alternative, the athlete can go straight to the CAS for a final decision.  [26]  It appears from initial reports that Landis will appeal the sanction in front of the AAA.  [27]  This will afford Landis two bites at the apple, so to speak. 

IV. Conclusion

UCI now leaves it to American agencies to regulate its own athletes, creating the potential for international backlash against American authorities if Landis wins his appeal.  It is a difficult position for the USADA.  The US has had a reputation in the international sporting community of PED abuse and poor regulation.  [28]  With pressure on US authorities to crack down on its athletes, a US body may be harsher on Landis than an international body.  It seems that Landis does not think so by deciding to forego the option of being heard in front of the CAS.  A hearing before the AAA affords two benefits: 1) lowered legal costs and 2) the ability to appeal yet again to the CAS.  Landis has decided these benefits outweigh the risks of a possibly harsher U.S. panel.  Only time will tell whether this is the most effective appellate strategy.  In this case the decision of the AAA is expected in early 2007; from there Landis will be able to appeal to the CAS if need be.  [29]   

[1].  AP, Landis sample shows high and synthetic testosterone (August 6, 2006),   http://sports.espn.go.com/oly/cycling/news/story?id=2539409.

[2].  ESPNews (ESPN television broadcast August 6, 2006).

[3].  Id.

[4].  AP, supra note 1.

[5].  U.S. Anti-Doping Agency: faq, http://www.usantidoping.org/resources/faqs.aspx (follow "Adjudication Process" hyperlink) (last visited September 30, 2006). 

[6].  Id.

[7].  Id.

[8].  Id.

[9].  AP, supra note 1.

[10].  U.S. Anti-Doping Agency: Doping Control Process, http://www.usantidoping.org/what/process/processing.html (follow "3" hyperlink) (last visited September 30, 2006). 

[11].  Id.

[12].  Sarah Baldwin, Comment, Performance Enhancing Drug Use: A Comparison of U.S. and Australian Approaches, 24 Loy. L.A. Int'l & Comp. L. Rev. 265, 278 (2002).

[13].  ESPNews, supra note 2.

[14].  Id.

[15].  Id.

[16].  AP, Board tells USADA to pursue Landis doping case, (September 23, 2006) http://sports.espn.go.com/oly/cycling/news/story?id=2599598.

[17].  AP, Landis test shows high and synthetic testosterone, supra note 1. 

[18].  Id. 

[19].  Travis T. Tygart, Winners Never Dope and Finally, Dopers Never Win: USADA Takes Over Drug-testing of U.S. Olympic Athletes, 1 DePaul J. Sports L. Contemp. Probs. 124, 131 (2003).

[20].  US Anti-Doping Agency: faq, supra note 5.

[21].  Id.

[22].  Id.

[23].  AP, Board tells USADA to pursue Landis doping case, supra note 16.

[24].  US Anti-Doping Agency: Doping Control Process, supra note 10.

[25].  Id. 

[26].  Id.

[27].  AP, Board tells USADA to pursue Landis doping case, supra note 16.

[28].  Sarah Baldwin, supra note 12. 

[29].  ESPNews, supra note 2.