However the NFLPA’s alleged threat to file suit against Yahoo  and the decision in their favor (Gridiron.com, Inc. v. Nat’l Football League, Player’s Ass’n, Inc., 106 F. Supp. 2d 1309, (S.D. Fla. 2000)) made me realize the issue was far from established. Similarly Yahoo’s decision to file in Minnesota (far away from it’s Sunnyvale headquarters) is now obvious as well. The court in Minnesota has already decided a similar case in CBS Interactive Inc., v. NFLPA, Inc.

Unfortunately I don’t have hours and hours to dissect the courts’ differing decisions. However a quick review of both decisions revealed the following:

In CBS the MN court found that the 8th circuit court’s precedent in CBC v. MLBPA applied to the facts of the case.* The NFLPA fought the summary judgment motion on a number of procedural ground but no substantive grounds. Thus after finding none of the procedural grounds persuasive the court granted CBS’ summary judgment motion with little analysis. The court did note that:

The printouts of CBS Interactive’s website fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made.

Put simply since the player’s information in connection with the fantasy football website is not an endorsement.

In Gridiron.com the court made the opposite conclusion:

Plaintiff uses these players to promote their websites in order to solicit third party advertisements. The websites, in and of themselves, are products, based on certain comments made by Plaintiff, the interpretation of the GLA by the NFLPA and the NFL Players, and by the plain meaning of the term describing the aggregation of the Players’ sites and the fantasy football game. The cases cited by Plaintiff do not stand for the proposition that a website is not a product.

Thus the court in Gridiron found the player’s information on the websites an endorsement. Additionally the court found that Gridiron’s use was not protected by the first amendment.

MLB Ad Parody

Plaintiff seeks to utilize the players it contracts with to use their images and have them perform functions that go way beyond merely conveying the news...Plaintiff actively sought out and obtained over 150 NFL Player’s publicity rights, and now argues that the information the websites produce are entitled to Free Speech protection. Plaintiff’s argument is not persuasive.

So what do you think? Are fantasy sports sites’ use of players’ statistics, biographical information, and images endorsements or relevant factual information?

One final note in CBS the NFLPA argued that “it is not clear whether the public’s interest in football statistics is equal in degree to the interest in baseball statistics, and, therefore, ‘there may be . . . weaker First Amendment interests at stake in this case.’” I would love to see MLB try and turn this into an advertising campaign. Even the NFLPA thinks baseball is better ….

* For a detailed analysis of CBC v. MLBPA see 121 Harv. L. Rev. 1439

In March, Lance was training out of a home he rented in France. On the 17th he and Johan Bruyneel returned from a training ride to find an individual outside who claimed to be a tester for the AFLD. From here the story varies slightly, but the general idea is that Armstrong and Bruyneel were unsure of the man’s credentials and the unusual solo visit. Long story short, Lance went inside to shower while the tester remained outside and Bruyneel made phone calls confirming the man’s identity and authorization. Ten to twenty minutes later Lance returned and had a urine, blood, and hair sample collected. All samples are reported to have tested negative.

The dispute revolves around the fact that Lance left the tester’s observation between the initial notification of the testing and the collection of the samples.

The internet has been a buzz with theories of who did what wrong and when, so being the legal geek that I am I downloaded the World Anti-Doping Code International Standard for Testing.

Having read the code it appears both parties committed a number of mistakes:

Lance’s proponents have suggested he is under no obligation to remain with the tester until the identification and credentials have been established. However the code refers to “when initial contact is made” (5.4.1) and “when contact is made, the [tester] shall … until the … end of his Sample Collection Session, keep the Athlete under observation at all times.” (5.4.2) The code seems extremely clear. Initial contact is the point at which responsibilities begin. This makes a lot of sense too. Otherwise athletes could violate every rule in the book under a theory that the test had yet to begin.

Furthermore Lance has suggested that the he asked for permission to go inside and shower and it was granted. In a common sense world this makes perfect sense. However in the world of athlete testing regulations there are very particular rules. While the tester “may at their discretion consider any reasonable … request by the Athlete for permission to delay” the tester “may grant such permission if the Athlete can be continuously chaperoned and kept under direct observation during the delay and if the request relates to the following activities:

For Out-of-Competition Testing:
a) Locating a representative;
b) Completing a training session;
c) Receiving necessary medical treatment;
d) Obtaining photo identification;
e) Any other exceptional circumstances which can be justified, and which shall be documented. (5.4.4)

Being smelly from a long ride does not seem to qualify as an exceptional circumstance. Furthermore Lance was definitely not kept under direct observation during the delay. Therefore it seems that Lance violated the rules. However the story doesn’t end there:

Section 5.4.1 (h) states that the Sample provided by the Athlete to the Sample Collection Personnel should be the first urine passed by the Athlete subsequent to notification, i.e., he/she should not pass urine in the shower or otherwise prior to providing a Sample to the Sample Collection Personnel.

This seems to imply that showering between notification and testing is not only possible but anticipated by the WADA. While this section seems in direct conflict with section 5.4.4’s reason for delay, section 5.4.4 uses may not may only thereby implying that there are other possible scenarios during which the tester may grant permission. Therefore it seems that if Lance did receive permission to go inside and shower he could have been within the rules. However,Section 7.3.5 requires if the [tester] gives approval for the Athlete to leave … the [tester] shall agree with the Athlete on the following conditions of leave:

a) The purpose of the Athlete leaving the Doping Control Station; and
b) The time of return (or return upon completion of an agreed activity); and
c) That the Athlete must remain under observation at all times; and
d) That the Athlete shall not pass urine until he/she gets back to the Doping Control Station; and the DCO shall document the actual time of the Athlete’s departure and return.

While, Lance and the tester may have agreed that he could shower (the purpose) and the time of return, there is no indication that they agreed that Lance was to remain under observation (since he wasn’t) and that he didn’t pee (no information has been reported one way or the other.) End result: the testing does not appear to comply with the rules as written.

Whose fault is this? The code seems to indicate both individuals:
The tester’s obligations:

5.4.1 When initial contact is made, the [tester], shall ensure that the Athlete … is informed …(e) Of the Athlete’s responsibilities, including the requirement to i. Remain within direct observation … at all times from the point of notification … until the completion of the Sample collection procedure; (iii) … be advised of the possible consequences of Failure to Comply); and report immediately for a test, unless there are valid reasons for a delay, as determined in accordance with Clause 5.4.4.
5.4.2 When contact is made, the DCO/Chaperone shall a) From this time until the Athlete leaves the Doping Control Station at the end of his/her Sample Collection Session, keep the Athlete under observation at all times.
5.4.3 The Chaperone/DCO shall then have the Athlete sign an appropriate form to acknowledge and accept the notification.
5.4.6 A DCO/Chaperone shall reject a request for delay from an Athlete if it will not be possible for the Athlete to be continuously chaperoned.
A.3.3 Sample Collection Personnel are responsible for: a) Informing the Athlete or other party of the consequences of a possible Failure to Comply.

Lance’s

7.3.4 The Athlete shall only leave … under continuous observation … and with the approval of the [tester].

Additionally, Lance has indicated that the tester wrote “no” on the section of the official paperwork that asks if there was anything irregular about the test. Again the code is clear:

7.4.2 Any behaviour by the Athlete and/or persons associated with the Athlete or anomalies with potential to compromise the Sample collection shall be recorded in detail by the DCO. If appropriate, the ADO shall institute Annex A – Investigating a possible Failure to Comply.
7.4.5 In conducting the Sample Collection Session the following information shall be recorded as a minimum: o) Any irregularities in procedures;
7.4.6 At the conclusion of the Sample Collection Session the Athlete and DCO shall sign appropriate documentation to indicate their satisfaction that the documentation accurately reflects the details of the Athlete’s Sample Collection Session, including any concerns recorded by the Athlete.
7.4.7 The DCO shall provide the Athlete with a copy of the records of the Sample Collection Session that have been signed by the Athlete.
Annex A
A. 3.2 The DCO is responsible for:
a) Informing the Athlete or other party of the consequences of a possible Failure to Comply.
c) Providing a detailed written report of any possible Failure to Comply.

This seems to be the oddest part of the whole thing. If the tester was aware that he was supposed to keep Lance in his sights at all times and he didn’t do that, then why wasn’t it marked on the appropriate form?

What does it all mean? The tester didn’t do what he was supposed. Lance left the tester’s sight which he wasn’t supposed to. While the tester is supposed to inform Lance of his rights and regulations you have to assume someone who has been tested as much as Lance would have known the rules. Regardless of how badly Lance smelled, he should have waited in the sight of the tester while Bruyneel verified the tester’s credentials and identity. On the other side the tester doesn’t appear to have fulfilled his responsibilities. He didn’t inform Lance of the rules, didn’t keep him in his sight, didn’t inform Lance that going to shower might be a failure to comply, and didn’t mark down anything that occurred as unusual.

What should happen? In my opinion nothing. Lance passed all three tests. If someone can explain to me what Lance could have done in 10 to 20 minutes that would have changed the results of his blood and hair tests then I might reconsider. This seems like a case where the AFLD has overruled the tester (who either was acting rationally or was setting up Lance) and made a mountain out of a mole hill.

What will happen? In the anti-doping world athletes are guilty until proven innocent. Since Lance clearly violated one of the requirements of testing he will be found guilty, regardless of the fact that the tester is also clearly in the wrong. As a result the AFLD will likely ban him from the Tour (no other drug organization will punish him because of the ridiculousness of the situation.) Then sponsors and fans will react negatively and the Tour will either reinstate Lance or suffer a financial backlash.