Can an athlete simply elect to go direct to CAS? I thought that was only an option once the lower level arbitration had been exhausted.
No, the rules allow for this. And as I noted earlier, since the loser of any arbitration is virtually certain to appeal to CAS, both sides might figure they might as well go there directly. USADA, I believe, does not have that option, but then they would be perfectly content to go to regular arbitration if LA wants to take that route.
No, it does not. The data can be below the "positive" threshold, even well below it, and still be valuable as corroborative evidence to buttress witness testimony.
They can certainly be below the positive criterion and be corroborative, I wouldn’t say they could be well below, not if they are going to be of much use. If they triggered the criteria and were sent to an expert panel, which judged them negative, then, yes, they would be very good as corroborative evidence. In fact, though, in that case they might well be real positives. Ashenden claimed in a recent interview that the reason many of these suspicious passport profiles aren’t ruled as positive is because the scientists evaluating them appreciate how difficult it is to explain their conclusions to arbiters on panels, who generally are not particularly familiar with the science. Ashenden was implying, IOW, that LA’s passport data could have definitely indicated a positive, that a panel judging it might have recognized it as such, yet still have ruled it negative because they thought they wouldn’t be able to convince a panel at a hearing. If this is the case, then those data alone would be very important, and certainly would strengthen any witness testimony.
But it may be that LA’s passport data did not trigger the criteria, and were never sent to a panel. If that’s the situation, they wouldn’t be very useful in building a case.
A third intriguing possibility is that the data triggered the criteria, but were not sent to the panel for further evaluation. This would be direct evidence of a coverup on the part of UCI. Since USADA has apparently seen the data, they know which of these three possibilities is in play.
Using "non-negative" passport data combined witness testimony would be build a much stronger case than passport data that was considered positive. In the postive scenario, USADA experts would have to theorize what caused variations while Armstrong's experts put forth reasons for the variations or go for the jugular by questioning the science behind a passport that relies on a few samples taken at irregular intervals. In the non-negative scenario, the USADA's experts only have to show that the the passport data is consistent with the witness testimony.
I don’t agree at all with this. If the data are ruled positive, given all the scientific hoops they have to pass through, LA’s team would have a very difficult time arguing against it. It’s a little late in the game to be arguing against the science of the passport. It has been thoroughly vetted, and even more than the usual substance test, relies on criteria that allow many false negatives just to protect against false positives. When an expert panel concludes that doping occurred, it’s pretty hard to argue against them. Of course having witness testimony strengthens the case, but that is a given here, so the only variable here is the strength of the passport data. The stronger they are, the stronger the case against LA.
Perhaps you are referring to a hypothetical case of a positive passport vs. witness testimony + suggestive passport. That would depend on the strength of the testimony, but since positive passports have been used to sanction riders, I think it would be difficult to argue that the latter would support a stronger case than the former.
OTOH, if the passport were just consistent with doping, LA could reasonably point out that lots of riders have profiles that might be consistent with doping, and that doesn’t mean much. This would certainly be the case if it didn’t trigger the criteria. Then it all hinges on the testimony.
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