Some people have suggested that with the now infamous statement that “enough is enough” by Lance Armstrong on 23rd August 2012, that that statement represents a final conclusion to a long-running saga. In reality though, it may be more accurate to view this as a change of ends, or the start of the fourth quarter. As the implications of the various statements and cases are analysed, it is likely that any future legal entanglement will focus on the role of USADA and the legality of their sanctioning process. In a sense, this challenge has the very real potential to become Round 3 of the CAS eligibility rules debate, an exciting prospect given the previous knock-out victories in the earlier cases:
- Round 1 was between USOC v. IOC (the Osaka Rule)
- Round 2 was between BOA v. WADA (the Bye-Law))
- Will Round 3 be between UCI / WADA v. USADA?
So what do Lance Armstrong, the US Anti-Doping Agency (USADA) and Quantum Mechanics have in common? The answer comes in the form of a thought experiment by Erwin Schrodinger. Schrodinger postulated that the fate of a cat (sealed in a lead box with a flask of poison and a radioactive object) would be unknown until its contents could be observed. Until somebody could actually open the box and confirm its state, the cat would theroretically be both alive and dead. Ironically, the respective statements by Lance Armstrong and Travis Tygart (CEO of USADA) have now set-up a modern day version of this thought-experiment. It would seem from the public documents and court cases that the USADA case is based not on a positive sample (Armstrong has never tested positive for a performance enhancing drug), but rather on secondary evidence produced from statements, testimonies and samples that may be ‘consistent with doping’ that together form a non-analytical violation (see an excellent overview of this area by Richard McLaren in Marquette Sports Law Review). By refuting these charges but not continuing to engage in any future defence, Lance Armstrong has created a state where he is simultaneously innocent (the lack of any killer evidence of a positive sample violation) and guilty (the USADA non-analytical violation) depending on the observation point.
So what are the implications of this position for the USADA and WADA? To understand that, we need to examine the charges against him,
The USADA Letter
On 12th June 2012, USADA notified six people:
- Lance Armstrong [charges 1-6]
- Johan Bruyneel (Team Manager: USPS / Discovery/ Astana / Radio Shack teams) [charges 2-6]
- Dr Pedro Celaya (Team Doctor: USPS / Discovery / Radio Shack teams) [charges 2-6]
- Dr Luis Garcia del Moral (Team Doctor: USPS team) [charges 2-6]
- Dr Michele Ferrari (Consultant Doctor to USPS and Discovery Channel Teams) [charges 2-6]
- Pepe Marti (Team Trainer USPS / Discovery / Astana / Radio Shack teams) [charges 2-6]
that it was opening formal action against them for their alleged roles in a wide-ranging doping conspiracy involving the United States Postal Service (USPS) (1996-2004), Discovery Channel (2005-2007), Astana (2009) and Radio Shack (2010) teams, specifically relating to six charges:
- Use and/or attempted use of prohibited substances and/or methods including EPO, blood transfusions, testosterone, corticosteroids and/or saline, plasma or glycerol infusions
- Possession of prohibited substances and/or methods including EPO, blood transfusions and related equipment (such as needles, blood bags, storage containers and other transfusion equipment and blood parameters measuring devices), testosterone, corticosteroids and/or saline, plasma or glycerol infusions
- Trafficking and/or attempted trafficking of EPO, testosterone, and/or corticosteroids.
- Administration and/or attempted administration to others of EPO, testosterone, and/or cortisone.
- Assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.
- Aggravating circumstances justifying a period of ineligibility greater than the standard sanction.
USADA alleged conspirators gave false testimony and statements under oath and in legal proceedings [Page 12, USADA Letter), which may be the reason why media groups may be reconsidering earlier Court defeats: see for example Armstrong v. Times Newspapers Ltd  EWHC 1614 (QB). As of yet though, USADA has not elaborated on what and when the false statements were.
Armstrong challenged the USADA accusations with his own letter and subsequently through the US District Court system (see below). The Court document describes the USADA evidence against Armstrong [page 8]:
- Testimonies from numerous riders, team personnel and others (based on personal knowledge or apparent admissions from Armstrong to them) that he had used EPO, blood transfusions, and cortisone from 1998 to 2005; and EPO, testosterone and HGH until 1996.
- Numerous riders will also testify that Lance Armstrong gave to them / encouraged to use and/or assisted them in using doping products and/or methods (including EPO, blood transfusions, testosterone and cortisone) between 1999-2005.
- Evidence from the Director of the Lausanne Anti-Doping Laboratory (Dr Martial Saugy) that Armstrong’s urine sample from the 2001 Tour of Switzerland was indicative of EPO use which confirmed other witness testimony that a positive test result in 2001 was covered up. (As Lance Armstrong’s counsel later identifies though, this sample no longer exists and in 2011, Dr Saugy was reported as saying that the sample did not constitute a positive test).
- Data from UCI blood collections in 2009 and 2010 which is fully consistent with blood manipulation including EPO use and/or blood transfusions.
The letter from Robert Luskin (Lance Armstrong’s legal team) also put forward a number of interesting questions:
- Why has only one rider (Armstrong) from the four teams been charged?
- How can Armstrong (and effectively the public) overcome concerns over the reliability of the witness evidence? Armstrong perhaps says it best 2/3 down his own statement: “……perverts the system and creates a process where any begrudged ex-teammate can open a USADA case out of spite or for personal gain or a cheating cyclist can cut a sweetheart deal for themselves. It’s an unfair approach, applied selectively, in opposition to all the rules. It’s just not right.”
The WADA Code, Comment to Article 10.5.3 notes that:
“If a portion of the period of Ineligibility is suspended, the decision shall explain the basis for concluding the information provided was credible and was important to discovering or proving the anti-doping rule violation or other offense.”
It will therefore be interesting to see if any ‘reduction in sentences have been applied to previous drug cheats, and if so who.
US Texas District Court (20th August 2012)
Armstrong’s team most recently brought an ultimately unsuccessful challenge to the USADA letter before the District Court. Essentially, the challenges can be summarised into three main themes:
- USADA lack of authority
- Violation of his due process rights
- The USADA process itself
The first theme that USADA lacked authority to bring such charges against him was because of a statute of limitations (8yr), jurisdictional conflict with the UCI (international cycling union), and a failure of any valid arbitration agreement with USADA.
The statute of limitations can be suspended if there is evidence of a cover-up, but USADA has failed to make public any specific documentation or evidence to support this. By contrast, the latter two challenges are comparatively easier to resolve. Essentially USADA Anti-Doping rules (USADA Protocol for Olympic Movement Testing) effectively govern the implementation of anti-doping policies in USOC national governing bodies (of which USA Cycling implements the UCI rules). As a member of both USA Cycling, and an athlete included within the USADA registered testing pool, Lance Armstrong agreed to be bound by this protocol [Page 26].
Armstrong also alleged that USADA’s charging and arbitration procedures violated his due process rights, specifically:
- Failure to provide an adequate charging document (see below)
- No right to cross-examine or confront witnesses against him
- No right to disclosure of exculpatory evidence
- No right to disclosure of cooperation agreements or inducements provided by USADA
- No right to obtain investigative witness statements
- No right to obtain full disclosure of laboratory analyses or an impartial assessment of their accuracy
Many of these points relate to the inherent distinction between discovery rules in (civil) arbitration proceedings as opposed to criminal proceedings and the Court rightly commented [Page 17] that the reliability of these results and testimony can and should be challenged by any arbitration panel. While that coupled with a valid arbitration agreement should have been enough to dismiss the case, the Court noted that the high-stakes nature of the arbitration (Armstrong’s career and reputation vs the credibility of the USADA’s anti-doping framework) and the risk of further substantial costs, meant that it was important to fully evaluate Armstrong’s case. Further to McLaren’s comments in his article (see earlier), these findings on the gravity of the case could be used to suggest that the arbitration evidential standard of comfortable satisfaction “could move to a very high standard that can become indistinguishable from beyond a reasonable doubt.” (page 211)
The District Court was also scathing about the USADA in places, suggesting their “woefully inadequate charging letter” [Page 17] was:
“so vague and unhelpful that it would not pass muster in any court in the United States. The Court is assured, however, that Armstrong will be given adequate notice of the specific allegations against him in a timely fashion prior to arbitration, and proceeds under the assumption this will actually occur.” [page 9] and it was “of serious constitutional concern”[Page 17].
At [Page 14] that:
“USADA’s conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives.”
And later in footnote 36, [Page 27] that:
“Among the Court’s concerns is the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including incredibly–several over whom USA Cycling and USOC apparently have no authority whatsoever. Further, if Armstrong’s allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC.”
Indeed, the Court noted it was only the practical realities of the time and money having to rehear the same case once the USADA had sent Armstrong a more detailed charging letter that ensured that this suit was not struck out.
Armstrong finally challenged the process itself, complaining of a potential lack of impartiality, no guarantee of an arbitration hearing, and no right to pursue a judicial review by a US court [IV]. These challenges in particular seem to display either an ignorance of sporting regulation, attempts to muddy the waters or a shotgun approach to law. Indeed, the speculation that a potential CAS Panel would be biased seems quite insulting.
Ultimately, the Court agreed with the USADA (and I must say that I do too) that the best mechanism for resolving these allegations is to test them in arbitration and exhaust these internal remedies first [Page 23].
The ineligibility rule in this case came from the sanctions imposed by USADA, but have they the authority to do so? As Rounds 1 (USOC) and 2 (BOA) have shown, the WADA Code is absolute and any incompatibility and inconsistency with the Code renders that respective rule void. Indeed, for the purposes of anti-doping, it is irrelevant whether USADA is sovereign in the USA as it effectively surrendered this sovereignty to WADA.
So what does the Code say?
[Comment to 2.2] – “Use or Attempted use may also be established by other reliable means such as admissions by the athlete, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “presence” of a prohibited sample under Article 2.1”
The fact that USADA did not feel able to charge Armstrong with article 2.1 (Presence) only echoes the ‘non-analytical’ nature of the violation. The problem however with this approach is what constitutes reliable? As Robert Luskin’s letter notes, there is an obvious discrepancy between USADA holding that the UCI blood data in the 2009-10 seasons supports doping and the UCI’s own experts that took a contrary view? This area will need much more explanation from USADA.
Perhaps the most telling quote comes from the Texas judgment at [Page 29]:
“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 [USADA, USA Cycling & UCI] 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.”
While strictly speaking, Lance Armstrong can be declared guilty of a doping violation in absentia:
Under Article 8.3: “the right to a hearing may be waived…expressly…by the Athlete’s or other Person’s failure to challenge an Anti-Doping Organization’s assertion that an anti-doping rule violation has occurred within the specific time period provided in the Anti-Doping Organization’s rules.”
The decision does leave a somewhat bad taste in the mouth, particularly since the USADA has not gone through a full hearing process. In particular, it is difficult to reconcile the feeling that the Texas Court had that the USADA charges were inadequate and an hour after the statement, suddenly they are sufficient for a lifetime ban!
Indeed, it is perhaps worth reiterating the most ominous part of the Texas Court’s judgment contained in footnote 27 on [Page 18]:
“….If it should come to pass that Armstrong does not actually receive adequate notice sufficiently in advance of the arbitration hearing, and it is brought to this Court’s attention in an appropriate manner, USADA is unlikely to appreciate the result.”
USADA have subsequently suggested that they will reveal evidence against him, but do not wish to do so for fear of prejudicing on-going cases against Bruyneel, Celaya and Marti. The problem I have is that this also works both ways. What if the cases against all 3 defendants were thrown out, does that mean that just as Lance Armstrong was declared guilty in absentia, so he can also be declared innocent?
Perhaps the most important question for any legal challenge though, is that assuming the statute of limitations is not activated, what should Armstrong and the others actually be charged and sanctioned with?
10.2: Ineligibility for Presence, Use or Possession (1st offence) – 2yrs
10.3.2: Ineligibility for Trafficking or Administration (1st offence) – 4yrs to lifetime
10.6: For Aggravating circumstances, other than Trafficking or Administration violations, the maximum period of ineligibility to be applied for a standard sanction is 4yrs.
10.7.4: Second anti-violations: “For purposes of imposing sanctions under Article 10.7, an anti-doping rule violation will only be considered a second violation if the Anti-Doping Organization can establish that the Athlete or other Person committed the second antidoping rule violation after the Athlete or other Person received notice pursuant to Article 7 (Results Management), or after the Anti-Doping Organization made reasonable efforts to give notice, of the first anti-doping rule violation; if the Anti-Doping Organization cannot establish this, the violations shall be considered together as one single first violation, and the sanction imposed shall be based on the violation that carries the more severe sanction; however, the occurrence of multiple violations may be considered as a factor in determining aggravating circumstances (Article 10.6).”
It is therefore critical that USADA prove not just the substance (excuse the pun) of some of the doping violations, but that Armstrong was guilty of Administration or Trafficking charges. At present there is only one vague accusation that he distributed EPO to other riders (p.3 USADA Letter), and administration of olive oil and testosterone mix to other riders (p.4 USADA Letter). If these offences cannot be proved, then under 10.7.4, all the other violations should be taken together and his maximum ban should be capped at 4yrs rather than life.
Let’s hope that the UCI and/or WADA challenge the USADA decision, not because I believe that Lance Armstrong is innocent, but because the deficiencies in the USADA process and their lack of any public, credible underpinning evidence for their charges means that at the moment Armstrong is both innocent and guilty. Schrodinger would be turning in his lead box….