Monday, August 20, 2012

Armstrong Loses First Battle

A Texas judge threw out Lance Armstrong's lawsuit against USADA (thanks, Moonax).  The dismissal can hardly be referred to as a "win" for USADA in as much as it's simply not a "loss."  The judge's dismissal says very little on the merits of the case, and it does nothing to ultimately settle whether UCI or USADA gets jurisdiction.

The following are some of the judge's more frustrated comments:

“There are troubling aspects of this case, not least of which is USADA’ s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI’s equally evident desire not to proceed against him.”

“As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies are apparently unable to work together to accomplish their shared goal — the regulation and promotion of cycling.”

“However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.”

The brief excursion into a judicial forum served as a rational respite from the bickering going on between Tygart and McQuaid, like this letter from McQuaid.

As Judge Sparks seems well aware, the determining factor in this case likely rests with jurisdiction.  If UCI is granted jurisdiction, it will likely fail to continue with any charges.  If USADA is granted jurisdiction, the charges will go forward with unwavering focus.

The issue of jurisdiction will revolve largely around the language of Article 15.3 in the WADA Code:

Except as provided in Article 15.3.1 below, results
management and hearings shall be the responsibility
of and shall be governed by the procedural rules of
the Anti-Doping Organization that initiated and
directed Sample collection (or, if no Sample
collection is involved, the organization which
discovered the violation).

There appear to be at least two main arguments to be resolved around jurisdiction:

1.)  UCI disputes that USADA was the original "discoverer" of the violation.  The argument goes something like, the "violation" can't really be discovered in a concrete sense until guilt is found in arbitration.  Therefore, UCI wants the issue to be about discovering the "evidence" that ultimately led to the conclusion that a violation was committed, even though UCI did not originally believe that the evidence it had was related to a violation.  This argument rests on UCI's position that it has yet to accept that USADA has evidence of the doping prior to the email that Landis sent to USA Cycling (which would presumably vest jurisdiction in UCI).

USADA simply claims that it was the original "discoverer" of the "violation" or "evidence," and so it should have jurisdiction.  USADA claims to have evidence which surfaced prior to the Landis email to USA Cycling.

2.)  In the alternative to a finding that UCI was the "discoverer," UCI seeks to fall back on claiming jurisdiction due to a belief that "sample collection is involved" in the case.  USADA apparently aims to use longitudinal tests as part of its case against Armstrong.  A very literal reading of the above section of code leaves one to conclude that whoever initiated sample collection (UCI) would have jurisdiction.  A separate battle will ensue between UCI and USADA as to how literal that section should be read.

As is evident from the heated battle over jurisdiction, both sides are well aware that the decision around jurisdiction may ultimately determine how many victories Lance gets to keep before the "actual" case has even begun.

14 comments:

  1. What people have to remember is that Landis went to USADA because he had no faith in either US cycling or the UCI. So he 'told' the USADA so the USADA 'discovered' the violation first.

    Central to Landis's accusations are that the UCI and US cycling covered up and protected Armstrong. Implicated are the likes of Chris Carmichael who has been involved in US Olympic cycling and others.

    My reading is that USADA is playing its cards regarding its case very close to its chest because they know that Armstrong has a lot of friends in the media. They have seen how the likes of Landis, the Andreu's etc have been lied about by Armstrong's press flunkys and astroturfers.

    Why make your case public and see the credibility of the accusers destroyed in the eyes of the public.

    If Armstrong falls then there will be a huge fallout and so a lot of people within cycling are going to be looking over their shoulders.

    USADA is taking a hardline stance because they know that the UCI is corrupt, they know that US cycling is corrupt.

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    1. I've read through all the documents so far, and I was just summarizing each side's arguments with regards to jurisdiction in my bottom two points. I don't know which way it will come out, but I think it will ultimately be determined by how they define the phrase "if no sample collection is involved." Sample collection is undoubtedly involved in USADA's case (from what we've heard so far) in a generic sense of the word. It will depend on how it's defined in a legal sense. As USADA, I would argue that the Code didn't anticipate situations where samples would be merely ancillary evidence when the section was drafted. As such, a narrow definition should be given to "involved" so that it includes only situations where the samples are the primary evidence. I personally think that section (as well as other parts of the Code) is poorly worded, especially considering that it now applies to situations involving the Biological Passport.

      As far as the actual doping case on its merits, I think it's completely irrelevant for now. USADA will have to win this case twice. It will have to win jurisdiction, and then it will have to win on the merits. UCI and Armstrong can go one for two and come out on top.

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    2. The main takeaway I wanted to stress is that I don't see jurisdiction to be a slam dunk for USADA, regardless of what they're keeping to themselves.

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    3. No worries. I was just trying to flesh out some of the history and explain why USADA want to keep this case for themselves and why they are being so coy about the information. The media is very bad when it comes to the detail in cases like this.

      I think that the more we learn about this case the more in blows holes in the arguments by the likes of Richard Ings that all the authorities are convinced anti-dopers and that they are all working together to rid sports of doping.

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    4. No doubt about the politics. There's no doubt that if USADA doesn't get to keep the case, then the case against Armstrong is completely lost.

      This case fascinates me as a lawyer, because the arguments are so complex and yet so simple at the same time. Those are the cases that are the most fun to analyze. The arguments are easy to state, but you can keep peeling back the layers.

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    5. On a side note, you're absolutely right about USADA not wanting to give anything away. As to your point about everybody being incapable of working together, I think that mere fact speaks volumes. Not only can they not work together, USADA is afraid to provide any information to UCI in the public forum, because it's afraid UCI will skew that information to make the USADA case look weak. That's about as far from working together as you can be. When you couple that with Cabrera making up websites, I think our fear that these matters are subject to corruption in the absence of transparency is justified. They seem to be subject to corruption in the presence of transparency, for that matter.

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    6. Moonax,

      I wasn't trying to be a tool above. I hope you didn't think I was giving you a hard time. I just wanted to make it abundantly clear that I wasn't siding with UCI but merely providing the legal arguments. Sometimes "tone" can be lost in exchanges, and I'm not sure how it came across. Thanks for the contributions.

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    7. No, I never saw it as giving me a hard time. It is a complex case not just at the scientific level but also the political and cultural level with the 'cult of Armstrong'. Also, as this is a tennis discussion blog I wasn't sure how familiar people are with the various backstories.

      One thing I will say about the 'discovery' - as far as I am aware the debate is about who discovered it. I don't think that there is a positive sample involved in the conventional sense. My understanding is that USADA say that they 'discovered' the violation when Landis blew the whistle, so although the UCI holds the samples that contain the EPO they did not 'discover' that they held EPO.

      This is a case that dates back to around 1996/7.

      It will be interesting because we've seen how hard it is to punish the top names in sports for doping. The Bonds and Clemens cases in point. The big stars have many many contacts in the media willing to put a friendly spin on any development for them, so that the Feds or the anti-doping agencies always lose the battle for the court of public opinion.

      I suspect that if Armstrong is convicted then the current UCI leadership may fall. (I suspect McQuaid will try to brazen it out as he always does), then we may well see one of two responses - anti-doping efforts get emboldened and we see real efforts to nail the big names, we may also see reform of the sporting authorities.

      The alternative outcome and this I suspect is more likely is that the sporting authorities will slam the door on anti-doping because of their vested interests, and will protect with even more vigour their top stars.

      What I'd really like to see (if Armstrong is convicted) is a mea culpa from the media. There is a group of people who never admit to being wrong about anything and never accept any responsibility for the rampant doping in sports.

      There are a number of good forums out there where the issue is discussed for anyone who wants more discussion - the cyclingnews forum is rubbish because of the trolls and crappy moderation, mainstream news forums like Yahoo tend to be populated by astroturfers, knuckledraggers and hillbillies. The BBC is completely afraid of Armstrong. http://justcycling.myfastforum.org/forum1.php is pretty good.

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    8. I completely agree with everything you said except for parts of the second paragraph. The way the Code is written, it doesn't necessarily say there has to be a "positive sample" involved in the case, just a "sample." Here is a letter from McQuaid where UCI tries to make that argument (in the first page of the letter).

      http://www.scribd.com/doc/102482467/Fat-Pat-Letter-to-Howman

      On the issue of "discovery" by itself, USADA probably wins (if it actually has evidence that precedes the April 30 email that Landis sent to USA Cycling).

      On the issue of whether a "sample" is "involved" in the case, I think the situation around jurisdiction is murkier. A finding for UCI on the issue of "discovery" or on the issue of whether a sample is involved would result in a finding for UCI.

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    9. That makes sense. I found the UCI's argument to be nothing more than an attempt at obfuscation and a smokescreen designed to get the case back under their control. It never seemed like a very strong argument. Really it only mattered because the UCI wants to protect Armstrong so they are using all the technical language they can to bring it back under their control.

      It is a bit like Contador's tainted beef, Hamilton's invisible twin etc etc. It seems the gamekeepers have learnt from the poachers.

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    10. There's no doubt the argument about jurisdiction is a "smokescreen," but I don't think it's a "smokescreen" that has no merit legally. They have a "colorable" argument from a legal standpoint, and I wonder if USADA anticipated this much pre-trial drama. I hope that they did.

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    11. I think that they totally expected these kind of legal games. It is clear that they don't trust the UCI and I am sure that they expected that Armstrong and the UCI would try everything in their power to prevent it from happening. They've seen how Armstrong has handled everything from the SCA case, to the 1999 samples, they've seen how the UCI functions so I have no doubt that they were prepared.

      They may not however, have been prepared for this specific argument.

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  2. Does this mean that the UCI is refusing to recognize the bans already handed down by USADA for del Moral, Ferrari and Marti? I thought the bans were implemented and all three refrained from "participation" in the TDF. How could USADA have jurisdiction for three of the named defendants but not all of them? If UCI is found to have jurisdiction then I suppose the bans will be vacated?

    As Moonax points out the bulk of their case isn't even about samples or doping control. It's about testimony.

    I'm also not sure why this has to be either/or. It seems to me he is actually under the jurisdiction of both at the same time, as well as being under jurisdiction of WADA and CAS. Even though he's under UCI's jurisdiction at the time of testing the USADA can subsequently be made aware of/find out about the test results. Let's say for example UCI identified a dirty sample and actually prosecuted a member of US Cycling. Further assume UCI successfully prosecutes said rider. I'm pretty sure USADA can then hand down its own penalties, or agree to acknowledge the penalties, even though they didn't "collect" the sample. And vice-versa.

    If the Swiss test Federer under their guidelines and and he fails the test he's also subject to ITF/ATP/WADA sanctions as well. At least I think so.

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    1. The UCI wants to control the process to cover it up. If you recall the samples from the 1999 TDF were retested and Armstrong's tested positive for EPO. The UCI convened an investigation which was nothing more than a cover up.

      The feeling is that if this was handed back over to the UCI then they would cover it up again.

      Pat McQuaid is in trouble because one of the main allegations is that Armstrong tested positive in 2001 in the Tour of Switzerland. The UCI and the Race Organizers, in return for a donation of $250,000 the positive test was covered up. The UCI claims that this was an 'anti-doping' donation by Armstrong.

      I believe that Valverde was charged by CONI in Italy rather than in Spain because the Spanish authorities would do nothing about him. As he was riding in Italy when the sample was taken the Italians prosecuted him - although I think the Spanish were unhappy about it.

      In cycling the prosecution normally falls on the national federation. I am not entirely clear but it might depend on who you have your racing license with. I know that Michael Rasmussen was riding on a Mexican license and others have been riding on Monaco licenses as a way to avoid their home federations.

      The Federer example could be better reworked as: Nadal tests positive at Wimbledon/USO/FO. I suppose it depends on who does the testing so I would assume that if it were an ITF test then it would be the ITF + the Spanish Fed who would investigate/prosecute. If he were to test positive in a test carried out by USADA/UKADA/AFLD then I would assume that they would - which is again why organizations like the ITF and UCI are so keen to keep USADA/UKADA and AFLD away from their tournaments and races.

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