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Hero Takes a Fall: Armstrong v. Tygart and United States Anti-Doping Agency

By Carter Anne McGowan

When, in February 2012, the U.S. Justice Department quietly ceased its investigation into whether Lance Armstrong and several other cyclists on the U.S. Postal Service cycling team had engaged in prohibited blood doping and steroid use while receiving U.S. government funds, one chapter in the ongoing saga of Armstrong's did-he-or-didn't-he doping scandal came to a close.

Yet that was far from the end of the story. The next chapter in the confused morality tale seemingly came to an abrupt and unexpected halt last week when Armstrong, after receiving an unfavorable ruling from U.S. District Judge Sam Sparks in the case of Armstrong v. Tygart and the United States Anti-Doping Agency, announced that he would no longer fight the U.S. Anti-Doping Agency (the "USADA") in its attempts to prove him a doper and strip him of his Tour de France victories and Olympic medal. At the same time, Armstrong maintained his innocence and decried what he called an "unconstitutional witch hunt" by the USADA.

Before discussing the specifics of Judge Sparks' decision, a brief description of the many different agencies involved in cycling at the national and international levels, and the role of various anti-doping agencies in the sport, may prove useful. As an Olympic sport, cycling is governed by national and international bodies. At the very top of the control pyramid for Olympic sports sits the International Olympic Committee (the "IOC"). The IOC recognizes the World Anti-Doping Agency ("WADA") and its World Anti-Doping Code ("WADC," which went into effect in 2004) as its chosen means of promoting harmonized rules prohibiting doping and regulating testing therefor across the Olympic movement.

Beneath the IOC sit the International Federations ("IF"). The IF for cycling is the International Cycling Union (known by its French acronym, "UCI"). The UCI maintains a set of anti-doping rules similar to those of WADC. Finally, each nation has a National Governing Body ("NGB") for each Olympic sport; in this case, USA Cycling, a member of UCI, controls competitive cycling. Under the Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. ยงยง22051-220529, U.S. NGBs, among other responsibilities, conduct competitions among eligible athletes and determine which athletes meet the sport's eligibility standards. The anti-doping rules set out by the USADA, the respondent in the Armstrong case, are incorporated by reference into USA Cycling's regulations, and the USADA is explicitly given authority for drug testing and test results in USA Cycling-controlled events.

The USADA first charged Armstrong and five other members of his team in June 2012 with blood doping and steroid use for the period dating back to 1998 and gave the charged parties the choice of admitting to the charges (and facing severe penalties) or going to arbitration to fight the charges. Three members of the team chose arbitration (those arbitrations have not yet taken place); two members chose not to fight the charges and received lifetime bans from the sport of cycling. Armstrong, understandably discontent with the choice of arbitration or banishment, brought a civil action against USADA alleging a violation of his due process rights and a lack of a valid agreement between himself and the USADA to arbitrate. Judge Sparks disagreed with Armstrong on both theories.

With regard to the due process claims - based on the comparative narrowness of discovery during the arbitral process, the lack of options available for judicial review, and the possibility of bias in the arbitrators - Judge Sparks followed significant Supreme Court precedent in rejecting due process challenges to arbitration. The charging document provided by USADA, however, did give Judge Sparks pause, as he described it as both deficient and "woefully inadequate." Despite these concerns, the court found that, even if the charging document as written did violate due process, the USADA could simply issue a more substantial document, and, furthermore, Armstrong was entitled to receive "more detailed disclosures regarding USADA's claims against him at a time reasonably before arbitration." Armstrong at 17. Therefore, Sparks found that Armstrong had received "all the process to which he was due" at the time of the lawsuit, but fired a shot across the USADA bow, warning that if it didn't follow through on providing additional information in a timely fashion, and Armstrong refiled suit, the "USADA is unlikely to appreciate the result."Armstrong at n. 26.

With regard to the additional jurisdictional and contractual claims, the court found that the Ted Stevens Sports Act and the USA Cycling licenses signed by Armstrong barred these claims. In his reliance on the Ted Stevens Sports Act, Sparks followed significant precedent tending to keep courts out of amateur sports. The court found that the Sports Act granted NGBs themselves the right to set procedures for determining eligibility. Therefore, the court found, "Congress intended for eligibility questions to be decided through arbitration, rather than federal lawsuits," unless the NGB acted with wanton disregard for its own rules.Armstrong at 20.

Finally, the court found that Armstrong, by agreeing to abide by the rules of USA Cycling in some of his cycling licenses (which rules incorporate USADA Protocols), agreed to that portion of the USADA Protocol which set out arbitration - including arbitration with regard to the arbitrability of the dispute - as the appropriate dispute resolution mechanism.

Despite ruling entirely against Armstrong, Judge Sparks indicated throughout his ruling that he was troubled by the USADA's behavior, which included consolidating Armstrong's case with those of several other athletes over whom neither USA Cycling nor the USOC had any jurisdiction and allegedly promising lesser penalties to other cyclists in return for their testimony against Armstrong. This sympathy, however, did nothing to change the fact that, once the decision was handed down, Armstrong had three days to elect arbitration or sanctions. By refusing to carry the fight to arbitration, Armstrong in effect accepted the sanctions...

...or so it seems. As Judge Sparks noted in his concluding words on the case, while the USADA was fierce in its determination to force Armstrong to arbitrate or accept sanctions, UCI desired that proceedings against Armstrong be discontinued. USA Cycling, breaking with its own anti-doping agency, sided with UCI. Therefore, although the USADA has now banned Armstrong for life and stated that he will be stripped of his titles, UCI - the actual keeper of the record books - has not yet agreed. Instead, UCI is requiring that USADA submit a "reasoned decision" explaining the actions it has taken, as Article 8.3 of WADC requires that when no hearing is held regarding a doping sanction, the anti-doping agency submit its decision to UCI, WADA, and the alleged wrongdoer before UCI will take any action. See Press Release: UCI's Statement on Lance Armstrong's Decision; http://www.uci.ch/Modules/ENews/ENewsDetails.asp?source=SiteSearch&id=ODYzOA&MenuId=MTI1ODA&CharValList=&CharTextList=&CharFromList=&CharToList=&txtSiteSearch=Lance+Armstrong&LangId=1

If the Floyd Landis case serves as precedent, UCI will accept USADA's decision and write Armstrong out of the record book. As of today however, there may yet be another chapter in the saga of Lance Armstrong.

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This page contains a single entry from the blog posted on August 29, 2012 5:17 PM.

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