Lance Armstrong Seeks Day in Actual Court

Lance Armstrong Seeks Day in Actual Court
AP file photo of Lance Armstrong


Lance Armstrong’s lawyers were back in court yesterday, seeking an injunction against the US Anti Doping Agency.  At risk; Lance’s 7 Tour de France titles and the legacy of US bicycle racing.

Notice that allegations of a doping conspiracy are not being brought against Lance by the CAS, UCI, WADA, Tour de France, or any competing team during his championship reign from 1999 through 2005.  These charges are being brought by the USADA – a quasi-governmental agency tasked with drug testing US athletes.

According to the USADA’s CEO Travis Tygart “When USADA has information about the existence of a sophisticated, far-reaching doping conspiracy, it is our duty under the established rules to conduct a thorough, fair investigation to uncover the truth…”

It doesn’t matter that this “far-reaching doping conspiracy” allegedly took place over a decade ago.  It also doesn’t matter that a lack of physical evidence – a positive test result, a video, a taped phone conversation, or a seizure of illicit substances – has failed to result in any criminal charges being filed after an 18-month investigation by an actual law enforcement agency.

What appears to matter to the USADA is giving credence to a conspiracy theory.

There are basically two camps that exist among cycling fans; those that believe in Lance’s innocence and those that believe in his guilt.  This debate rages on regardless of the findings of any law enforcement agency or sport panel.  This debate will never be settled conclusively as long as doubt remains about the legitimacy of an agency’s authority and the nature of the evidence presented.

Here are three articles that explain what has already happened in the USADA’s investigation, what Armstrong is doing to stop the proceedings, and the specifics of his objections to the process.  To summarize, Lance doesn’t believe the USADA has jurisdiction to strip him of his 7 TDF titles 7 – 13 years after the fact without affording him full Due Process as defined in the US Constitution.

As much as I’ve gone on record despising cheating in bicycle racing and the conflation of doping with the activity of bicycling, I have to agree with Lance on this principle; he has a right to Due Process under the law.

Ordinarily, I am not one to buy into conspiracy theories.  In general, it doesn’t seem plausible that a number of individuals are capable of carrying out a complicated, clandestine plan without one loose cannon jeopardizing the entire illicit operation.  It’s analogous to our system of government in that there must be checks and balances in place to keep any one player from gaining the upper hand.  A conspiracy will fall apart when trust is violated.

In the court of public opinion, it certainly seems plausible that the teams of Johan Bruyneel could have executed a concerted effort to not only ingest banned substances, but to conceal their effects, as well.  After all, each party to the “conspiracy” had everything to gain – money and fame, mostly – and everything to lose – racing ban, fines, reputation – by participating.  The riders had to trust Bruyneel and the doctors that what they were doing would be safe, effective, and undetectable.  They also had to trust one another not to reveal their actions to anyone outside the group and not to ingest anything outside the program that would generate a positive drug test result.

If this were a movie, the plot would be predictable and ultimately, justice would be served.  The weakest links in the chain – Tyler Hamilton and Floyd Landis – get caught and take a bullet to protect their comrades.  Over time, however, the authorities wear them down, force them to turn on one another, recant, and plea bargain.  The authorities even manage to prevail upon the one, true, squeaky clean “lieutenant” whose character is beyond reproach.

Nine times out of ten, we can predict how this movie will end.  The bad guy gets caught and the just-as-guilty-but-gullible are vindicated.

This isn’t a movie.

The tenth scenario has it playing out in a TV courtroom with two savvy lawyers and a jury of his peers.  The defense would instruct the jury to ponder the evidence (or lack thereof) and adhere to the principle of reasonable doubt.  If that reasonable doubt is the credibility of the witnesses and their own immunity from prosecution in exchange for testimony against the defendant – which it most certainly is in this “investigation” – the defense has a strong case for not guilty.

If the arbitration panel disregards these basic tenets of American justice and renders a verdict based on hearsay without any physical evidence, the entire process is inherently unfair and the findings suspect.

One might argue that a professional athlete waives his US Constitutional Rights when he enters into a contract with an International agency like the UCI (cycling’s governing body).  The athlete must accept the terms and conditions laid out by the UCI and respect the role of agencies like USADA and WADA to enforce the contract.  Lance additionally argues that the USADA is NOT the enforcer of his contract with the UCI and certainly NOT an arbiter nor a judge like the CAS.

Again, I have to agree with Lance.

The UCI has not brought charges against Armstrong.  Lance has not failed a doping control mandated by the UCI.  The WADA (World Anti Doping Agency) has not initiated an investigation nor sought to arbitrate any allegations against him.

What is motivating the USADA to prosecute this investigation into Lance Armstrong?

I will conclude with this not-so-rhetorical question.

I believe that the USADA and its CEO, Travis Tygart, have lost their way.  We Americans rely on this “sanctioned” organization to drug test our athletes and certify to the world that each is entering a competition without the benefit of a performance enhancing substance.  If their tests reveal an illicit substance, we expect their process to be fair to the athlete and the athlete’s competition.

That’s where the mandate should end.  If the USADA follows the guidelines of the WADA and the procedures set forth by each sport’s governing body, the process should begin and end with the results of a specific drug test.  Prosecuting an athlete in the absence of a failed drug test years after a competition serves no useful purpose.

Personally, I’m skeptical of the agency’s motives.

What purpose will it serve to force Lance to give back his Tour Titles and rewrite the history of the last era of US bicycle racing?  Will the other nations that fielded competitive teams during this era do the same?  Will the second place finishers be subjected to the same after-the-fact scrutiny of their alleged activities?  Or do we just pretend that only the US riders were guilty of cheating?

There is no positive message to come out of this investigation despite Tygart’s statement to the contrary.  It may serve as a warning to amateur athletes vying for a position on a US Olympic team, but it won’t affect the determination of riders competing at the pro level.  Each will continue to do what is required and condoned within that realm of International competition.

If Tygart has his way, US professional bicycle racing will be forever tainted.  Worse still, the US public will form a negative opinion not only of bicycle racing, but bicycling in general.

The last thing cyclists need is more people who have no respect for bicyclists.

As individuals who choose bicycles for transportation, we have to fight each day for our right to share the road.  As cycling advocates, we continue to battle the “cars only” mentality when it comes to funding our transportation infrastructure.  Our nation is facing a health epidemic and a pending energy crisis.  Bicycles can help solve both, but not if they are continually demonized.

We need to defend bicycling.  Bicycling belongs to all of us.  It is bigger than each of us.

While we can’t click on a link and tell the USADA to consider the impact their witch hunt will have on bicycling, we can clarify the controversy to non-cyclists.  It’s not about the bike – it’s about alleged cheating in a bike race.

Keep riding and be safe!

UPDATE: 2:00pm CST from Cycling News:

Attorneys drop request for restraining order, aim to continue federal suit

The US Anti-Doping Agency (USADA) has granted Lance Armstrong a 30-day extension to decide whether he will accept the lifetime ban proposed for alleged doping and conspiracy charges or fight the case in an arbitration hearing, USADA has confirmed. The move allows time for a Texas judge to consider a federal lawsuit against USADA filed by Armstrong’s attorneys.”

Read full article here.

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  • Since Lance has gone all legal, the article indicates that the judge quickly threw out the first suit, but Lance refiled.

    Also not indicated whether Lance can state a claim with regard to which the federal court has jurisdiction. For a due process violation to occur, the defendant must be a federal or state agency. Calling it a quasi one doesn't make it so. According to its site "The U.S. Congress recognized USADA as 'the official anti-doping agency for Olympic, Pan American and Paralympic sport in the United States.'" That doesn't mean that it is a federal agency.

    I have the gut feeling that the judge was right that the "Judge ... dismissed the [prior] 80-page suit without ruling on the merits of the case, saying it seemed more of a public relations move than a court case." But you bought it.

    Other than that, a federal court certainly doesn't have jurisdiction to review the merits of the decision. All it could do is order that the group hold another hearing--that is, if the other barriers I mentioned could be overcome.

    I bet you won't report the upcoming second dismissal.

  • In reply to jack:

    Jack, if there is a second dismissal, I'll report that.

    If you notice, I'm taking a stance on the fairness of the USADA hearing process. If they have the authority to strip Lance of his titles without allowing him the opportunity to question the witnesses against him and present a proper defense, the result of their finding will always remain controversial.

    I call the agency "quasi" because they are funded by tax dollars and sanctioned by the federal government (as you pointed out). Since the TDF is not part of an Olympic, Paralympic, or Pan American competition, one could argue that this remains out of their jurisdiction entirely.

    The gist of my article is that the USADA has an agenda that has nothing to do with the task of properly drug testing athletes. Had Lance failed a drug test and this investigation was the result of the failed test this would be an entirely different story. But it's not - it's a witch hunt.

    If we seek justice - truth - beyond a reasonable doubt and without a statute of limitations, we should demand adherence to legal precedents and due process. Nothing should be off the table going back to treaties signed with Native Americans, the Iran-Contra hearing, the Iraq War, the housing meltdown, all the way up to the LIBOR scandal.

    But this is about bike racing. A professional sport. A single US-based team that did not represent the nation in the Olympics, but in an international competition against other privately-held teams that no doubt utilized similar tactics to achieve victory.

    Lance didn't fail a USADA implemented drug test at any time during the period in question. His saved samples haven't been retested with new technology based on a complaint from the UCI. There is no basis for an investigation, especially after a Federal investigation could find no evidence of breaking any laws.

    If anything, I would like a court to determine the extent of the USADA's authority. If it is simply to test and certify results, then no investigations should be initiated without a failed test. If its powers are deemed to be broader and it can open investigations based on hearsay and issue rulings without respect to due process, this can be addressed in another manner at another time.

    In the meantime, a man's career accomplishments and the legacy of US cycling are subject to the whim of another man with questionable authority. Stripping Lance of his titles won't reward the "next best" rider for racing clean if there is no way to determine that that racer was any more clean than Lance. No good can come of the USADA's ruling and it will prove nothing.

    Lance is seeking every remedy possible to avoid facing this kangaroo court. I don't blame him. Cycling is his co-defendant. It deserves better justice than this...

  • In reply to Brent Cohrs:

    "...we should demand adherence to legal precedents and due process"

    Well, just saying what you want a court to do has nothing to do with adherence to legal precedent.

    If you actually want adherence to legal precedent, post legal points and authorities supporting your assertions. The chicana couldn't do it, and I doubt you can either. Cite court cases dealing with the issues I cited above, including that the USADA is a federal agency for Fifth Amendment purposes.

    Otherwise, you are no different than Dennis Byrne bloviating that the Health Care Law is unconstitutional. Sorry, it was determined that it was not.

  • In reply to Brent Cohrs:

    I forgot to mention with regard to the last two paragraphs of your reply, look up the term "damnum absque injuria."

  • In reply to jack:

    Jack, thanks for imparting your legal expertise on this matter. The readers will appreciate this.

    Just to be clear, I think it's up to Lance's lawyers to argue this and I'll let them - it's not my area of expertise. I can express an opinion on fairness without being a legal expert. It will be interesting to see if Lance's lawyers can find any precedents to support their motion. Again, I'll try to report on that if a judge offers a ruling before Saturday.

    You must admit that this could become an interesting case in and of itself. Lance is essentially seeking a determination on the scope of powers of the USADA. I imagine if this does not bode well for him and he is forced to participate in arbitration, he'll appeal an unfavorable finding to the CAS. He may also ask the UCI to intervene on his behalf and set aside the USADA's decision (should it involve stripping his titles).

    At the end of the day, this is about whether or not he cheated to win 7 consecutive TDF titles. Ultimately, the UCI will have to determine if the runners-up should be awarded victories by his disqualification. I don't think they want to be placed in that position. This USADA determination could taint all of International cycling, as well.

    There is a lot at stake here. The UCI sets its own rules and procedures. If the doping agencies it relies on continually change the results of races - as in Spain's lack of enforcement in the Contador case and the USADA's backdated enforcement in Lance's case - the UCI may have to implement a new system or risk losing fans.

    It's just a sport - but a sport with a lot of money involved. It's up to the UCI to determine what's fair for the athletes, team owners, and fans.

    This controversy is far from over...

  • In reply to Brent Cohrs:

    "Forced to proceed to arbitration" is another indication that this court case is going nowhere. You can look up the Federal Arbitration Act on that, especially Section 3 on that the court is required to stay the proceedings pending arbitration if an arbitration agreement exists.

    It might be an interesting legal case, but not in court.

    You are right that it is up to Lance's lawyers to establish a case. I'm just pointing out that in most cases where counsel says there is a case, throwing around terms like "due process" without context means little.

  • Follow the Money Trail!!
    The recent doping allegations against Lance Armstrong and Johan Bruyneel as well as others may lead a person to question why this is coming up yet again?
    We as individuals think of bicycling as a sport. In reality when on a "Pro Level" it is big business. In business, money rules. The people who run these businesses see a person, any person, as a resource to be utilized as long as there is a value to be extracted. In this case, the scandal is enough to accomplish the goals regardless of the outcome or the damages done. They see a way to make a profit, they are going after it. “It's not personal, it’s just business”. They don't care if someone is guilty or not, or who gets hurt as long as they make a profit.
    This scandal will continue to damage the reputation of cycling. These “investigations” are supposed to be aimed at cleaning up the sport. In reality they are only dragging the sport thru the mud again. They provide fodder for headlines and tabloid like sensational stores. That only helps the media sell stories. These stories in turn support the Tour de France in the form of free advertising. There is little chance that a fair verdict could ever be reached. Almost everyone who has heard about this investigation has long ago made up their mind about these doping allegations.
    If you read the comments on many of the on line articles you will see it often stated that people don’t really care anymore. The point is that the average person is so over saturated with sports doping news that they quit caring about things like integrity. Not caring about it in sports then excuses themselves from having integrity in there lives. Many now believe that it does not matter. That “everyone dopes so it’s still a level playing field”. Judging by the comments a person may be lead to believe that the general public only follows the story to see who gets in what kind of trouble from it. People often like to see those who are successful be brought down.

    1: Deep pockets or influence
    A: Who in the world has the ways and means to keep digging up old news?
    • Amaury Sport Organisation (ASO) is part of the French media group, EPA (Éditions Philippe Amaury).
     Reminds people the race is coming up, generates interest, gets media coverage in most publications without having to pay for advertising.

    B: Who has enough influence to encourage USADA to look in to very old doping allegations?
    • Amaury Sport Organisation (ASO) is part of the French media group, EPA (Éditions Philippe Amaury).
     Stands to reap rewards of publicity.
     Stands to reap financial rewards.
    C: Who has something to gain from doping allegations?
    • Amaury Sport Organisation (ASO) is part of the French media group, EPA (Éditions Philippe Amaury).
     “Any news is good news…..All news sells papers.”
    The news media are, for the most part, the bringers of bad news... and it's not entirely the media's fault, bad news gets higher ratings and sells more papers than good news.
    Peter McWilliams

    D: Follow the money trail.
    • Amaury Sport Organisation (ASO) is part of the French media group, EPA (Éditions Philippe Amaury).
     Signed a TEN YEAR deal with NBC for television rights for the U.S. market.
     Financial terms of the agreement weren’t disclosed by NBC.
     France Television pays 24 million euros ($30 million) a year to show the Tour de France
     The U.S. market has the ability to become a much bigger viewer market share than the French market.
     Untapped resource, few Americans watch cycling today, less than when L.A. was winning. The young people who were teenagers when he was winning are young adults today and are a large market to be sought after.
     “We’ve noticed a continuing interest in cycling in the U.S. and the ratings for this event have been strong,” Miller said. “Our sponsors like it. We’re finding a real strong audience for this race and this sport.”
     Broadcast advertising for the race is 85 percent sold out, Adam Freifeld, a spokesman for NBC Sports Group said in a telephone interview. Advertisers include Anheuser-Busch InBev (BUD)NV, Radio Shack Corp. (RSH), Nissan Motor Co. (7201), General Motor Co. (GM)’s Cadillac brand, and McDonald’s Corp. (MCD), Freifeld said.

    E: L.A. sponsors who are standing behind him.
     Anheuser-Busch as Michelob Ultra
     Radio Shack
     Nissan

    F: Sponsors who are signed up for major TV advertising.
     Anheuser-Busch
     Radio Shack
     Nissan

    I find it very interesting that the sponsors who are standing behind Mr. Armstrong are the same ones who are buying up advertising time on the TV Broadcasting Company who has bought the U.S. market rights to the Tour de France.

    Only the highest quality people are doing the judging of another’s character but when those who are appointed to hear a case just admitted to a sex crime are they really in a position to judge if someone was a cheat. The report on the

    "Wow. (at)usantidoping can pick em. Here’s ... 1 of 3 Review Board members studying my case," Armstrong tweeted, linking to an online story about Griffith.
    Griffith entered an Alford plea on June 13. Under the plea, Griffith did not admit doing anything wrong but acknowledged prosecutors have enough evidence for a jury to convict him. A 24-year-old student reported Griffith unzipped his pants in front of her on a St. Paul street.
    Sentencing is scheduled for July 26. Griffith told the AP he’s innocent and entered the plea to avoid a trial that would embarrass his family.
    Griffith said Armstrong’s tweet was "an effort to get away from the issues that will be dealt with by an arbitration panel. OK? By smearing me, that does nothing. I’m innocent of that."

    "Greatness inspires envy, envy engenders spite, spite spawns lies." – Voldemort
    “Losers just can't stand a WINNER!!!!” - David Holman

    TV revenue
    For an event with a limited following, the Tour draws a sizable audience: In 2009, 44 million TV viewers tuned in for a single mountain stage, helping to make the Tour the 12th-most- popular televised sports event that year, according to Initiative, a London-based media-buying agency.
    Amid a booming market for TV sports rights, the Tour could be worth as much as $1 billion, says Conor O'Shea, a media analyst in Paris at Kepler Capital Markets.
    Amaury Sport runs the Tour and reaps revenue from broadcasters such as France Televisions and NBC. The Tour's commercial potential has attracted suitors in the past.
    Armstrong says that in 2006, he and about a dozen of his team's backers discussed buying the Tour while meeting in a private room at Spago restaurant in Palo Alto, Calif.
    He says he raised the subject again in March 2010 in Murcia, Spain, with Arnaud Lagardere, chief executive of media company Lagardere SCA, which owns 25 percent of Editions.
    Armstrong says the talks went nowhere because of the cost of a controlling stake in Editions, which he estimated at as much as $1 billion.
    "It would need a big number for the Amaury family to be interested in selling," Armstrong says…
    Amaury Sport is more profitable than the Amaury family's other interests, such as Le Parisien and L'Equipe newspapers and a 28 percent stake in B.E.S. SAS, the French unit of online betting company Bwin. Party Digital Entertainment.
    Amaury Sport had total revenue of 147 million euros in 2010. It recorded an average annual net income of 30 million euros in the six years through 2010, according to the unit's financial reports.
    The Amaury family owns 75 percent of Editions, which had sales of 671 million euros in 2011.

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