So much going on in the last month, it’s hard to know where to begin. Might as well dive right in and see where it all goes.
Shortly after I published the last post, Representative James Sensenbrenner (R-WI) sent a letter to the White House Office of National Drug Control Policy (ONDCP) inquiring about what kind of oversight they do of the United States Anti-Doping Agency. Interesting on a couple of counts. First, Sensenbrenner represents the district where I live. Back in late 2006 or early 2007, I wrote him a letter urging the congressman to look into the matter of how USADA pursues anti-doping cases, as I had some concerns arising out of their tactics in going after Floyd Landis, the first Tour de France winner to be stripped of his title for a doping offense, and who later admitted to doping during his career (though he still maintains that he didn’t use testosterone during the 2006 Tour de France).
Some time later, I got a short and polite response from Rep. Sensenbrenner, who basically told me that Congress had no real input into how the ONDCP’s money was spent, and that Congress wasn’t responsible for overseeing the use of those funds. So, naturally, I’m a bit curious as to why Sensenbrenner would suddenly take an interest in USADA. Of course, it has to do with Lance Armstrong, and perhaps the fact that one of his attorneys — Robert Luskin — is quite well connected in Republican Party circles, given that he’s also the attorney for Karl Rove.
And it probably doesn’t hurt that Trek, one of Armstrong’s long-time sponsors, is headquartered in an area that will become part of Sensenbrenner’s district, once the November elections are over and the new Congress convenes in January. But Trek went to pretty great pains to deny on Twitter that they had anything to do with Sensenbrenner’s inquiries. Maybe so. Maybe not. If the congressman holds a meeting with his constituents any time soon, I’ll be quite tempted to show up and ask who or what piqued his interest.
I’m inclined to believe that Trek may have less to do with Sensenbrenner’s letter than the connection to Luskin, though. Sensenbrenner’s letter read very much like some talking point put out by Armstrong’s attorneys over the previous weeks, and if those talking points weren’t his source, then someone in his office has been following the case very closely.
Much has been written about Armstrong’s legal case and USADA’s positions, including an analysis of the legal implications by a writer for Outside Magazine [hat tip to Larry for the link]. I have yet to see an article, however, that explains the standard of proof for a non-analytical positive. Most writers, and even Rep. Sensenbrenner, assume that these types of cases has the same standard of proof as a case where an athlete tests positive for some banned substance.
Not true. When the first non-analytical positive cases were pursued, in the early 2000s, the panels required a higher level of proof than the usual “comfortable satisfaction” standard for anti-doping cases. In fact, for those cases, the standard was much closer to “beyond a reasonable doubt.” And although precedent doesn’t officially exist in anti-doping adjudications, most — if not all — panels since then have hewed to the same standard for non-analytical positives.
So if the standard of proof is higher in a non-analytical positive case, will the outcome be — for lack of a better term — just? Maybe yes. Maybe no. It depends on the evidence. And here is where Team Armstrong has a very valid criticism of the system. Unlike a regular court, the rules of discovery in an anti-doping case don’t require the agency to show their cards to the accused. Which is exactly the way USADA has been playing the case to this point, ostensibly to prevent Armstrong from intimidating the witnesses. Although we’ve heard rumblings of who gave testimony to the agency, they are purposely withholding the names of their witnesses, along with most of the details of what they will testify to.
Given that there is no physical evidence that USADA can point to — at least no officially positive test results — the case boils down to who you believe — Armstrong or his accusers? For Armstrong’s side, their avenue of attack is the credibility of the witnesses, along with their possible motivations for testifying. Without knowing who will testify and what they will say, they have very little material on which to base their defense. As Lance, himself, once famously observed, it’s hard to prove a negative. Especially when you don’t know what negative you have to prove.
Armstong’s objections on the matter of the evidence seem warranted. But where should those objections be raised? In a federal court, or in an arbitration hearing? Given what we know of how anti-doping arbitration hearings go, Armstrong’s attempt to address his concerns in a federal court seem understandable. The rules there don’t necessarily favor him, but neither are they stacked against him as they are in anti-doping tribunals.
Problem is, there’s a good chance that the US courts don’t have jurisdiction in this case. Or perhaps better put, that the judge won’t take jurisdiction. Armstrong may have a point as far as whether USADA has the authority to investigate actions prior to 2004, when the UCI officially signed onto the WADA code. But that’s not guaranteed, either.
What it probably boils down to, though, is that Armstrong will have to fight this in arbitration first. Assuming he chooses to do so. A good case can be made for just letting it go and not challenging USADA. Much money could be saved, and if the case just vanishes into the fog of time, Armstrong’s brand and reputation may not suffer nearly as much damage as a long, protracted legal fight might inflict.
I don’t get the impression that it’s in Lance’s DNA to walk away from a fight. So no matter how Judge Sparks rules, I expect the case will continue on for some time to come.
Parting Shot
In other news, did you happen to notice that Nadzeya Ostapchuk from Belarus had to return her gold medal in the shot put after testing positive for metenolone? Interesting historical note, Belarus was part of the Soviet Union way back when. And the Soviets were the pioneers in the use of steroids for weightlifting and shot put way back in the 1950s. Old habits die hard, perhaps?
While fairness in any case USADA pursues should always be paramount, I can’t help but be a tiny bit bitter that people in the “right places” are paying heed NOW instead of in 2006. Oh well……
I’m disgusted by the fact that Armstrong can blatany use people he knows to try and squirm his way out of charges we all know are perfectly justified. This case should not be manipulated by Armstrong or his cronies. If he’s so ‘innocent’ then he should prove it beyond a doubt!
The possible Trek connection here is interesting. Certainly, a congressman might take an interest in a case where a constituent had some connection, I am not too sure that Trek is in a lot of danger here. My memory may be faulty, but I don’t recall that they have been accused of any wrong doing with respect to Armstrong; in fact, I recall there was some allegations that USPS sold off bikes provided by Trek to finance the alleged doping program in possible violation of the contract. Unless it is shown that Trek knew of, or should have known of, any doping (beyond the rumors), how much of a hit could Trek take I’d LA is convicted? Trek was an established brand prior to Armstrong and remains an established brand. I am sure their sales went up during the LA era; what has happened since then I don’t know, but I am sure they are doing as well as any similar company. There are people who are convinced that LA doped and who will not buy Trek because of that, there are people who are convinced LA doped and will buy Trek if there is a product that they are interested in, and there may be a few who are uncertain about LA and will decide to boycott Trek if LA is convicted. But a year or two after this all blows over, few will care one way or another. Quick now, what brand of bike did Landis ride in 2006 and would you avoid that brand because of Landis?
strbuk,
I understand that feeling.
Charliegirl,
Just so you know, I’m not suggesting that Lance is innocent. USADA clearly believes their evidence meets the standard needed to win their case, otherwise they wouldn’t have brought the charges. No argument that Armstrong is a bully who throws his weight around in the bike industry, either. He does.
The point is that for the process to be credible, Armstrong is entitled to defend himself. I get that he might well try to bully or intimidate the witnesses who supposedly are willing to testify against him. If not prior to a hearing, then certainly his lawyers would attack them and their credibility in the hearing, itself. Without knowing who is going to say what (or for that matter, where the evidence came from), Armstrong and his team have no way to even present a defense. That’s not fighting fair, either.
By the way, I don’t think that Lance could ever prove his innocence beyond any doubt. Certainly not in front of a jury that consists of cyclists and cycling fans.
William,
Floyd rode BMC bikes in 2006. And even though he’d already admitted to doping in his career by then, that didn’t stop me from buying one when a good deal presented itself at the local dealer in 2010. 😉
Trek is partly owned by Lance Armstrong. Trek sponsors the Luxembourg-based (tax haven) RadioShack Nissan Trek team, which is owned by Lance Armstrong and run by his co-conspirator in the USADA investigation, Johan Bruyneel. The RadioShack Nissan Trek team is sponsored by a cancer organization – yes, you guessed it, LiveStrong. Oh, and yes, the team includes proven dopers, one just caught in this year’s Tour de France, Frank Schleck. Is Senserbrenner complicit to an international doping conspiracy? What will USADA find?
LauraLyn,
I think you’re jumping the gun on calling Frank Schleck a proven doper. At this point, he’s accused of an anti-doping violation. Schleck’s case hasn’t gone through the full disciplinary procedure yet. If it does and he loses, you would be correct. However, athletes do sometimes win their cases. Rare, but it does happen. Until his case is decided, I’d stick to the term “accused doper.”
LauraLyn,
Livestrong is not a charity, that is a business company selling lies like 2 of its owners : Lance and Demand Media !
—
Lance is just trying to stop or to delay the inevitable : there is too much compelling evidences of his doping. Then he will have to return money to his insurance company, maybe to have to fight a parjury to that case.
More lawsuits should follow mike witnesses tampering, and more important the federal investigation could be reopen for corruption of UCI, at least.
Lance’s nightmare could become reality, that is why he is fighting USADA with the help of corrupted McQuaid, they are now on the same sinking ship.
We can debate whether Armstrong doped all we like. For the moment, the legal question is different: did Armstrong agree to USADA being able to bring a non-analytical positive arbitration case against him, in an instance where both UCI and USA Cycling opposes the bringing of the case? If so, this means that USADA might have the power to bring such a case against any member of the USA gold-medal winning men’s basketball team, or perhaps even any member of the last USA team in the World Baseball Classic. Could you imagine, if the Lakers were to lose the services of Kobe Bryant, or the Yankees were to lose the services of Derek Jeter, even without a failed drug test, and even where the NBA or MLB opposes the case, just because Travis Tygart wants to bring the case?
From a lawyer’s standpoint, the question here is one of contract law. From a sporting standpoint, this is a turf battle over who controls non-analytical positive cases. Sorry people. For the moment this has nothing to do with whether Armstrong doped.
Larry, having a back office desk at the Armstrong and LiveStrong PR and Lobby offices in some DC basement does not seem to have helped you understand law or jurisprudence, let alone Lance’s doping and the USADA.
You seem to suggest that every time someone smuggles heroin into our country or someone kills a cop, they only go to court because the prosecutor does it on some whim. There is no need for you to smear Kobe Bryant’s or Derek Jeter’s name to save Lance from his own wrongdoings, though indeed that is how Lance has operated.
More to the point of your unfathomable misunderstanding (more like more smoke from a kitchen of lies and deception), the USADA precisely has the role to oversee all athletes who compete in the Olympics or who are members of associations that send athletes to the Olympics, including UCI and USA Cycling. Talking about “non-analytic testing” might feel as snappy as the new Wallmart tie you put on this morning, but if you don’t understand it better you leave it alone.
Many many dopers have been convicted on the basis of non-analytic evidence alone. Most have later confessed to it. But that is not the point. The USADA has a barrage of evidence against Lance and his co-conspirators that includes both “analytic” and “non-analytic” tests. Armstrong and UCI and USA Cycling are fighting for their lives in trying to keep that evidence from seeing the light of day.
If you want to defend dopers and drug traffickers, you can find lots on the US-Mexican border to hang out with, and lots of them wear those dirty yellow bracelets as well. You might find it a more worthy cause than defending someone who is destroying our youth in sports.
Rant: you are right to an extent. The only thing proven now about Fränk Schleck is that he had an illegal doping substance, the diuretic Xipamid, in his body while riding this year’s Tour de France. Fränk has been able to give no reasonable explanation as to why the substance was in his body.
Of course, it is just a coincidence that he was riding on the Lance Armstrong owned RadioShack Nissan Trek team. Of course, it was just a coincidence that the one person he talked to the night he was informed and left the TdF, besides going to the French police station, was Johan Bruyneel – the Team Manager who just happened not to be with the team because of his own Lance-related doping charges.
The Luxembourg ant-doping agency (l’Agence Luxembourgeoise Antidopage [ALAD]) has sent the case to its disciplinary committee. Fränk Schleck could also face criminal charges in France.
Strange that UCI has not demanded to take the case away from the ALAD, as they have from the USADA. In fact, only in the case of Armstrong has the UCI ever interfered with a national doping agency. Of course, one of the aspects of the USADA case against Armstrong, Bruyneel and Co. is that they bribed the UCI.
Jean C,
In a sense, you and LauraLyn are both correct. LiveStrong is the new name of the Lance Armstrong Foundation, which was set up as a charity. Their web site is livestrong.org. LiveStrong has licensed their name to Demand Media for the web site livestrong.com, which is a profit making venture. Livestrong receives some sort of royalty payment for the use of their name, and presumably those payments are used for charitable purposes.
LauraLyn,
Just so you know, Larry is not some sort of Lance fanboy who believes in Armstrong’s total innocence. At least, he’s never come across that way to me. I think he’s pointing out that there are two issues in the USADA case. First, of course, is the case USADA is attempting to prosecute. The second issue is whether USADA has the jurisdiction to prosecute Armstrong. The second issue is the one before Judge Sparks.
The precedent that would determine whether USADA can prosecute Armstrong for a non-analytical positive would come from the original non-analytical positive cases that arose out of the BALCO scandal. If USADA pursued those cases and prosecuted those cases without being told to by USA Track and Field, then there would be a precedent for how they are approaching the Armstrong case. If USATF asked them to initiate the investigation and prosecution, Armstrong’s side might have a point regarding jurisdiction.
I don’t remember how those cases were initiated, but I’m going to go out on a limb and say that I believe USADA were the ones who initiated the investigations and prosecutions. That being the case, Armstrong will lose on this point eventually — whether in the US courts or at the CAS. Given that USA Cycling licenses state that the license holder agrees to be bound by USA Cycling, UCI and USADA rules, I suspect that Judge Sparks will rule against Armstrong, if he hasn’t already done so. That seems pretty clear to me.
As for USADA’s case against Armstrong, my hunch is that it must be pretty strong for them to even bother bringing it in the first place. If USADA were ruled not to have jurisdiction, it would be incumbent on USA Cycling and the UCI to pursue the case. That would put a number of people into an awkward position. If they didn’t pursue the case, that would pretty well confirm what a number of people already suspect regarding Lance and his power in certain circles.
Regarding Frank Schleck, his association with Bruyneel and Armstrong certainly are suggestive of a link to doping activities, but remember too that neither Frank nor Andy has seemed very happy with the merger of Leopard-Trek and RadioShack. What puzzles me is why he would be taking a diuretic in the middle of a stage race where hydration is more of a concern. Why make it even harder to stay hydrated? Also, as a short article in the Washington Post notes:
Perhaps there is an explanation, though as far as I know Schleck hasn’t offered one. Still, until the process concludes and an anti-doping tribunal makes its ruling, I’ll stick with “accused doper” when describing Schleck.
By the way, Larry actually is an attorney, although he doesn’t practice sports law.
LL, wow! Haven’t been slammed like that since back in the day. Takes me back …
I don’t see how I “smeared” anyone — if you thought I was suggesting that every prosecutor acts on capricious whim, then how could I also be suggesting that Bryant or Jeter have done anything wrong? But if there’s legitimate confusion, let me make it clear that I selected Bryant and Jeter merely because they have been subjected to WADA-supervised drug testing, and thus might come within the prosecutorial reach of USADA. There’s no evidence that these athletes have taken PEDs, and I never suggested any such thing. I simply indicated that if USADA can bring a case against a retired athlete who was subjected to drug testing back in the day, then I wonder what the limit might be on USADA’s prosecutorial reach.
My point went to the kind of authority we intend to confer on USADA. The “cop” and the “prosecutor” you mention in your drug-smuggling example both operate under the supervision and control of elected officials. In essence, they’re part of a system of checks and balances, and there are procedures in place to curb or strip their authority when necessary. In contrast, USADA is a private corporation, and it’s not clear what anyone could do if Travis Tygart goes too far.
One check on USADA is to make certain that it acts within the powers conferred to it under contract. If you review my earlier posts under Rant’s previous blog, you’ll find an argument that USADA does not have the power under contract to bring this case. Not that Armstrong’s lawyers pay any attention to me, but they’ve noted the same points I’ve noted in their court case, as have UCI and (evidently) USA Cycling.
I don’t fault you for taking the position that USADA should have the power to bring anti-doping cases whenever it thinks it has the evidence to do so. Your position is quite popular. It falls to me to state the obvious: it is an essential part of a democracy that our institutions act within the authority that they’ve been granted. This is the case even when these institutions act in a way that meets with your approval.
One thing you should note: this is not the typical sort of internet site where people routinely engage in personal attacks. You are new here, and new voices and takes are welcome here, but maybe you haven’t picked up on the fact that on this site we engage in a more civilized and respectful sort of dialog. I enjoyed your earlier comments, and I even liked some of the hyperbole you directed at me (Walmart tie!), so I’m inclined to ignore the nastier elements of your polemic. My guess is that if you hang around here long enough, you’ll figure out how to attack my arguments without at the same time attacking me.
I also think that if you listen to all the voices here, you’ll learn that the anti-doping scene is more nuanced and less black-and-white than you might think at present. The enemy of your enemy is not always your friend.
Larry,
Even if NADA could be see as private, if athletes are treated unfairly, then they can use Justice. As same in a private company, athlete agree to follow som rules and in case of a dispute to resolve it first by arbitration.
UCI of McQuaid and Verbruggen is in big trouble with corruption that would expose their 2 last President. They are in the same boat. Not a surprise that Mc Quaid is strongly supporting Lance now. Funny, Mc Quaid had stated that Lance’s case was not UCI case 2 months ago, and now he would want to investigate Lance because UCI claims ownership on Lance’s doping prooves… Why did they have wait to do it earlier? Better for them to look stupid now than to be caught for corruption.
BTW, we cannot list a single doping case that has been prosecuted by UCI. Why would they want do it now?
USAC old friends of Lance are trying to save him.
Now, if Lance could not be prosecuted by USADA according USA laws, that would be a breach of WADA resolution, excluding all US athletes of IOC competitions and competitions under WADA control like the cycling world championship.
Corruption has been a key factor of Lance doping, no surprise that the old guard is crying how unfair is Lance prosecution. Those kind of people disgust me, and I can only hope that they will have to pay for their forfaitures too.
Another point.
Last Olympics Games were not equitable for all athletes, athletes like NBA players should be tested all year long like other baskettball players submitted to WADA rules around the world.
Rant: It is the Lance Armstrong Foundation (LiveStrong) that sponsors RadioShack Nissan Trek in Luxembourg. Why do you provide an explanation that misleads the reader from the point? This is a so-called not-for-profit cancer organization that sponsors cancer in athletics. It is that simple.
You really should ask your hero and his myriad businesses and so-called not-for-profit to open their books and show how nastily they interweave doping and its results into bike shops, weekend bikathons, USA Cycling, youth in sport, UCI, Ironman, racing teams, racing events.
How one gets from Armstrong to BALCO is hard to fathom. Your guess that USA Track and Field did not start its own investigation until after USADA had already come up with the evidence is correct. Good guess, this time. The huge difference is that USA Track and Field were not directly implemented in the doping or the cover up, as are UCI and USA Cycling. Perhaps one point of interest is this again shows how weak the sports organizations are at policing their own sports and why it is expressly stated for all USA sports organizations that USADA is an independent authority whose Code must be followed. And why that Code legally trumps all other athletic codes regarding doping.
One could reasonably say that the Schleck brothers and Johan Bruyneel do not like each other. But that would be to say it too mildly. It goes back to differences in ideology about training and racing. Also Johan and Lance haven’t been issuing the Schleck brothers (and others on the team) with the paychecks as promised. So to think that Frank Schleck called Johan Bruyneel the evening he got busted for doping in the TdF makes it seem more like Frank was calling his dealer than his manager.
Of course it makes no sense to take a diuretic on a hot day in a mountain stage. No need to state the obvious. The ALAD has sent the Schleck doping finding o its Disciplinary Committee and we still need to see what the French police and prosecutor will do with it. Your response seems only to add more fuzz. Is there a reason?
Larry: Sometimes a tie is more telling than a diploma. You flatter yourself by thinking the response went deeper than the arguments. But as you yourself suggest, the arguments have the same value and smell as those of Lance’s overpaid PR & Lobby gang. They come out of a basement of human values that uses law and public fora to promote a smug catch-me-if-you-can mentality.
There is no single organization in our society that is not required to operate within the law and act within limitations. Cops and prosecutors are not special cases. Neither is USADA. You seem to argue that Lance and LiveStrong should be. You did suggest that USADA acts in a whimsical fashion in bringing charges, which is simply not true. And the innuendo from the basement, that is not so popular and so distorted, “if Travis Tygart goes too far” is frankly ludicrous. There is simply nothing as a basis for such a statement, for such a personal attack on someone who has repeatedly shown dedication to fair sports and the rights of athletes. More smoke from a kitchen of lies and deceit.
One might think the following statements were intended to insult one’s intelligence, but considering your high-brow civility, let’s just take them at their face value, hilarity: “I don’t fault you for taking the position that USADA should have the power to bring anti-doping cases whenever it thinks it has the evidence to do so. Your position is quite popular.” Obviously not your position or those who are involved in espousing this “vendetta” to get an American doping hero. Just imagine if everyone really did the job they were given, and did it half as well as the USADA.
And, please, it does not fall to you (or anyone) one would hope, to state the obvious – and then to get it wrong. Obviously the USADA is subject to checks and balances just as is every other human being and robot on the planet, public or private. It is more than obvious from this court case and many others in the past against USADA that the organization is subject to checks and balances. So why state the obvious and then state it so wrongly? More smoke from the bowels of PR people that parade as lawyers. One person who does not like checks and balances is Lance Armstrong (and LiveStrong = same thing). Other drug dealers don’t like checks and balances as well, but still most Americans think they too should be subject to them.
Who said Kobe Bryant was retired? Who said Lance Armstrong was retired from cycling? triathlon? influencing American sports with money and deceit? The retired argument is simply silly.
Of course, one can question due process and one can question jurisdiction. You can even question if water is wet or if the sun shines on a sunny day. The USADA has a long history of dopers and cheaters questioning if they really do get due process in a system designed for and by athletes for the protection of athletes rights and agreed to by the athletes (and so far only questioned by the athletes that get caught – or now by popular opinion because people say and write things based on money and influence and not truth). And when due process does not work, they do start the jurisdiction whine – it’s not the first time a doping cyclist has tried to play his/her home USADA against the UCI. It won’t be the last. Even Lance has played this game in the past in court, just the opposite way around that time.
A good read are the filings from this past Friday by Lance’s thugs and the USADA. Pat McQuaid is really no more than a school yard bully that has worked himself into a corner and now is telling his “friends” they’d better help him or else. USA Cycling is so deep in the Armstrong **** that it has to acquiesce to this Swiss-Irish bullying.
There appears to be little nuance to sticking a needle in your arm. There seems to be little nuance to having secret mobile phones for running drugs. There is little nuance in sending a package of dope through the US postal system from Texas to Spain. There is little nuance in driving across the Spanish and French borders with trunk loads of illegal drugs. There is little nuance in going to a French hotel room where all possible areas that might hold a camera have been taped off and lying on a bed with a bag of your own blood dripping into you. There is little nuance in telling young riders that they can only be on your team if they take drugs that cause cancer.
The nuance comes from the smoke and fuzz of lawyers that believe questioning the law and questioning the truth is more important than the lives of young American athletes.
You are right, most likely Lance Armstrong, Pat McQuaid, Shawn O-Farrell, Andrew Messick, and David Ulman are not to be the best of friends. They are not the kind of people that have genuine friendships. They do have a common enemy: Lance’s doping and their complicity in covering it up.
Indeed, one of the checks and balances of a private organization is that one can take them to court, which is exactly what Armstrong is doing here. Whether or not he has a case, and if indeed he has a case, whether he will prevail, I will leave up to the court to decide.
When passions get enflamed about such matters, we are often prone to ignore, or at least want to ignore the process. “He’s guilty, why waste time? Get a rope!” But whether or not Lance, or Floyd or whoever did dope or not, they are still entitled to the full process.
LauraLyn,
I’m puzzled how it is that you think I consider Armstrong a hero. I’ve never been a fan of his, to be honest. I think I’ve made that pretty clear over the years on this blog.
No intention to confuse the reader regarding which LiveStrong entity sponsors the RSNT team. Merely observing that there are both a charitable organization and a for-profit venture. Agreed, it is the LAF/LiveStrong that is their sponsor, not the for-profit company.
The point of these last few posts is not to support Armstrong, but rather to look at the issues his lawyers raise and to discuss whether their arguments hold up. So how does BALCO figure in all of this, then?
Regardless of whether Judge Sparks takes jurisdiction or whether the next step is arbitration, Armstrong’s attorneys are arguing that USADA doesn’t have the authority to bring the case. They will likely continue with that argument. Whether it is Judge Sparks, an arbitration panel or the CAS, the ruling will most likely be based on how similar cases have been handled in the past. That’s the concept of precedent. For non-analytical positives, WADA has no clearly written rules on how to proceed in such cases. But the precedent was set in the first cases, brought by USADA against several track athletes in the wake of the BALCO case. And in those cases USADA initiated the investigations and prosecutions. That wasn’t a lucky guess in my previous comment, as you appear to imply, I just didn’t feel like going back and re-reading the decisions and other research I did for that part of my book. So on the question of whether USADA can bring the case, my opinion is that Armstrong and his attorneys will lose, regardless of where they are making their argument.
Amstrong’s team could then argue that since much of USADA’s allegations occurred before 2004 when the UCI officially incorporated the WADA code into their rules, that USADA has no authority to pursue wrong-doing before then. I’m not sure that argument could be a winner for them, but they could try. Either way, USADA clearly has authority from 2004 onwards, and that time period is covered by the 8-year limitation that is part of WADA’s code. One way or another, Armstrong is most likely to be penalized for at least part of what he’s alleged to have done in the past. The only real question in my mind is whether USADA will get him for the whole time or just from 2004 onwards.
As far as this whole lawsuit goes, my opinion is that it’s a PR move, intended to paint Lance as a victim of a witch-hunt in the eyes of the general public in the US. The intention is to delay the case, or perhaps bully USADA into dropping the case. But USADA won’t likely back down. They’ve already gone too far to even consider that seriously. Armstrong stands to lose a whole lot financially if his reputation gets tarnished in the public eye. Millions of dollars in endorsement deals will go down the drain. So it’s no surprise that he’s fighting tooth and nail to beat back the allegations against him. I personally doubt he will succeed, but he is playing two games here. One is the anti-doping case, the other is public opinion. If he manages to win the public opinion war, he will salvage at least some of his reputation and maybe some of his endorsements.
Regarding Frank Scleck’s call to Johan: since none of us was listening in, it’s really a matter of speculation as to why he called and what he said. It could be as you suggest. It could also be that he called and said, “Johan, what the fuck was in those vitamins you gave me? I just tested positive!” And given that there is no love lost between the two, Bruyneel’s response might well have been, “That’s what you get for disobeying my instructions.” I have no idea why he called, but given Bruyneel is the team’s directeur sportif and Schleck was abandoning the Tour, he might want to let his boss know what was happening.
I’m not sure how my previous comment “adds to the fuzz.” I was just expressing my puzzlement why Schleck would have taken a diuretic, and noting that for this particular drug, it is possible there is an explanation, which would not have been the case if it were EPO or some other banned substances. Short of a confession, I don’t think we’ll ever know how or why that particular drug showed up in Schleck’s system.
LL, just as you are free to vent, I am free to review your comments and respond to anything you vent that I find cogent. Finding nothing, I move on.
JeanC, the current court case between Armstrong and USADA will provide us with a partial answer to the question whether USADA IS subject to checks and balances. The court may choose (a) to review the relevant documents and rule whether USADA has the jurisdiction to bring and prosecute this case in arbitration. Or the court may decide (b) that it does not have the power to rule on this matter at this time, but must wait until either the arbitration is complete or the arbitrators have ruled on the question of jurisdiction. Or the court may decide (c) that it has no power whatsoever in this matter, and that the question of jurisdiction is to be determined finally by the arbitrators themselves.
The distinction here is important. In the U.S., courts typically are reluctant to interfere with matters governed by arbitration — the arbitration process is greatly favored as a means to reduce the burden on courts to resolve private disputes. Moreover, the U.S. courts have typically deferred to the appeals process set up under the WADA Code, which sets up the CAS as the sole body to hear an appeal of a USADA arbitration, and the Swiss courts as the sole body to hear an appeal of a CAS decision. And as you know, the Swiss courts themselves take a narrow view of their power to review CAS decisions.
In this matter, U.S. law differs from EU law, where athletes can challenge anti-doping arbitration decisions based on human rights provisions in the EU Charter and EU laws governing fair competition and the right to make a living. See for example http://bit.ly/Na5ZPT. U.S. athletes have no comparable rights.
So I think it’s fair to say that Armstrong now has his best chance, and perhaps his only chance, to have his case heard by a U.S. court. As I pointed out, the current court case has nothing to do with whether Armstrong doped — its sole focus is on the power of USADA to bring cases.
We saw this close-up in the Landis case: the Landis team (and many of Landis’ defenders) hoped that the case could be decided or at least reviewed by a U.S. court. But no such review took place, in all likelihood because no such review was possible. Of course, the Landis case was triggered by a failed doping test, under circumstances where USADA jurisdiction was clear and obvious.
Jean C, your point about year-round testing of all Olympic athletes is a good one. But I’d ask that you explain your comment that it would be a breach of the WADA code if USADA is found not to have the power to prosecute Armstrong for a non-analytical positive. Armstrong’s argument here is based in considerable part on UCI’s anti-doping rules, so this argument is available to any cyclist in any country. Moreover, many (I think most) countries do not have a national agency like USADA — in the Contador case, we saw that the national prosecution (or more accurately, the national decision NOT to prosecute) was made by the Spanish cycling federation, and not by an independent body. If WADA tolerates the situation in Spain, what could it possibly say about the situation in the U.S.?
Larry,
Athletes who are registred to a sport federation are prosecuted by that federation if the offence is linked to that sport. For offence done without licence, NADA are in charge. That was the main lines of WADA rules. Now I don’t know if that has been well written within rules and laws.
According WADA rules, there is no difference between a positive test and non-analytical finding
More important, Lance Armstrong’ case is not only a doping charge, there is corruption of UCI (and probably USAC, even if it seems that USADA has yet avoided to mention it for the moment). So USAC or UCI cannot be judge and accused, that would be totaly stupid!
I would bet USADA didn’t use the last point to protect some of their witnesses.
Jean C, one of the problems we’re struggling with is that every agency seems to have its own set of rules, and the rules don’t agree in every particular. Worse, the rules are primarily focused on adverse analytical findings — if you look (for example) at WADA’s Model Rules for International Federations, you won’t find anything governing who has results management jurisdiction over a non-analytical case. So we have a difficult set of rules to interpret, plus we need to figure out what to do if the rules conflict. When we’re done with this analysis, we then have to ask whether the analysis indicates that Armstrong agreed to arbitrate these kinds of cases with USADA.
WADA has stated that USADA has jurisdiction to bring the case against Armstrong under Section 15.3 of the WADA Code. In cases involving “Sample collection”, Section 15.3 confers jurisdiction based on “the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection.” In cases NOT involving sample collection, then jurisdiction is based on the rules of “the organization which
discovered the violation”. But Section 15.3 itself anticipates that not every anti-doping organization will have the authority to conduct results management — in cases where the anti-doping organization cannot conduct results management, then “authority shall default to the applicable International
Federation.”
Even if we only look at WADA Code Section 15.3, we’re faced with a series of difficult issues. First, is this a case where “no Sample collection is involved”? USADA wants to use Armstrong’s TdF in-competition blood tests as proof he doped, and they may also try to reach back to TdF EPO tests on Armstrong samples dating back 10 years or more. It SOUNDS like Sample collection is involved in this case, so jurisdiction to conduct this case should be based on the rules of the Anti-Doping Organization that “initiated and directed” this Sample collection. But which organization directed doping testing at the TdF? I think this Anti-Doping Organization was UCI! It certainly wasn’t USADA.
If we decide that this is a case where “no Sample collection is involved”, then jurisdiction is supposed to be determined by the organization that discovered the violation. The attorneys appear to interpret this provision to refer to the organization that FIRST discovered the violation. Again, this organization appears to be UCI. Even WADA seems to recognize that UCI was first on this case, as WADA in its press release tries to distinguish between the ADA that “discovered the violation” (presumably, USADA) and the ADA that “discovered the first shred of evidence which then led to the discovery of violations” (presumably, UCI).
Note that the WADA Code does not automatically assign jurisdiction in these cases to a NADA, nor does the WADA Code appear to punish any country whose NADA lacks the jurisdiction to conduct results management in a given case.
I understand that you and others believe that UCI is a corrupt organization that cannot be trusted with the case against Armstrong. But there’s no legal principle that allows for the transfer of jurisdiction from one anti-doping organization to another based on the alleged corruption of one of the organizations. This is a case of determining the ADO that has been assigned results management under the many documents and codes applicable to international cycling — it is not the job of the courts to select the ADO it thinks is best capable of handling the case.
And in case it isn’t clear to some readers, the UCI IS classified as an anti-doping organization under the WADA rules.
LL,
Larry’s comments are not made in a vacuum — as a long time lurker both here, and originally on TBV (trustbut.blogspot.com which led me here several years ago)– you’ll see that Larry and Rant were writing voluminously on the legal issues surrounding ADA procedures and policies long before Lance was the subject of discussion.
Most of that (which is well worth the read) and the current discussion really boils down to the questions of:
1) What rights do athletes in WADA regulated sports in fact have, when faced with doping prosecution?
2) Are these rights sufficient, and especially in the case of US athletes, do they meet the burdens of due process enshrined in the constitution?
3) Is there a better (whether that emphasizes fairer, more effective, etc depending on ones point of view) framework to adjudicate doping in sport than the present effort, given that it’s been endemic throughout the modern Olympic era if not long before?
In my observation, especially after TBV finished up (and the Landis partisanship faded), the specific athlete and their circumstances has served more as a vehicle of discussion than a subject for blog-adjudication.
William: Due process is everyone’s right, though clearly in the US courts due process is something only the rich seem able to afford. Lance knows this and one of his moves (and abilities) is to bankrupt UCI in court. As you say, it is a question of entitlement: very few American athletes have the means of entitlement that Lance has.
Most of the public has indeed been calling for a rope, but not to lynch the criminal but to lynch the sheriff: “just because Travis Tygart wants to bring the case”; ” it’s not clear what anyone could do if Travis Tygart goes too far”.
Rant: The implication on guessing was yours. One was merely taking you at your word. Apologies. It is still not clear what BALCO has to do with this case from what you say. You seem to suggest that the cases are entirely different. So more fuzz.
“Conspiracy” is sufficient grounds for extending an investigation and findings beyond 8 years. It is not complicated.
Jean C is a voice of clarity and reason here.
The voice of civility, cogency, and true lawyerism appears happy to swim in the sea of nuances. Judge Sparks is about as likely to run his Texan eyes across WADA and UCI rules as a Texas rattlesnake is to let a backroom paper jockey pet it. No decent American cow tipper ever got his britches in a knot over the differences between international law and US law, let alone trying to figure out what Eurocrats eat on Tuesday’s in Brussels.
There are simply too many pegs for the USADA to hang its hat on regarding jurisdiction, even after you have had your morning squash game of bouncing Section 15.3 off of four walls.
Nico: Trolling can be a dangerous sport. Be careful to distinguish the lure from the prize fish. The one party that genuinely does care about fairness and due process in sports is the USADA. Lance Armstrong and his co-conspirators are a cancer to cycling and American sport. This is not a Floyd Landis or Tyler Hamilton case. This case involves deep and far-reaching corruption, conspiracy, and covering up that goes to the soul of international and national cycling. It involves the destruction of sporting careers, the destruction of families and lives, and the corruption of sports (both cycling and triathlon) at the American and international levels. It not only involves drug trafficking and administering drugs to young athletes, it involves the very structure of cycling and the huge amounts of sponsor and financing that play a role in its corruption.
In this case the questions of jurisdiction and due process are side shows. The nuances don’t justify the crimes or undo the wrongdoings. There are literally hundreds and thousands of victims of this cheating and lying. Playing legal aid in the fields of lies and deceits created by the Lance/LiveStrong DC PR and lobby people is wrong to the real victims and does the America people a disservice.
Rant: What will happen this week and after?
Judge Sparks will claim no jurisdiction, but leave open a small door on due process.
Lance & Co. will appeal to the Fifth Circuit Court. They will refuse to hear the case saying that Lance & Co. must first exhaust the arbitration process.
Then . . . this pathway is impossible. Even if in arbitration Lance & Johan & the two others not yet thrown under the bus by Lance decide for a closed door arbitration, there is too much evidence that will inevitably leak. There will be too many witnesses, and too many witnesses even more angry after confronting Lance and Johan.
This is also why UCI (and Lance) will never accept USADA’s proposal for one binding CAS arbitration – on US soil and with US rules (not in the secrecy of a Swiss arbitration process). Once the evidence is out in public, Lance & UCI & USA Cycling may not be able to recover, even if they have good nuance lawyers (which they don’t appear to have).
Frankly, it is sad for athletes, for cycling, for triathlon, for America, but there is too much wealth and power invested in this corruption for it ever to become public. We saw this with the Fed case and no matter how good a man Judge Sparks is or is not, the USADA will never be able to present its evidence.
Somewhere some nuance will win.
The most thinking, and the best lawyering, on cleaning up cycling in America and abroad has been done by Travis Tygaert: Cycling needs a Truth and Reconciliation Process. It is more than 100 years past due. Tygaert’s proposal to UCI was insightful and generous and even heroic.
The nuances, the gaming, the lying, the cheating . . . they have to stop. Even the blaming.
No one needs this more than Lance. It would also help Landis and Hamilton and so so many other cyclists who were caught or admitted to cheating. It would also help all the other athletes who were clean and lost podium places and money to the cheaters.
The athletes need it and the athletes would do it.
But UCI and ASO and USA Cycling . . . they could never allow it.
Lance is now indistinguishable from the powers that created him and keep him where he is. Only the eyes of his children can save him.
LauraLyn,
The only real point in mentioning BALCO is that those cases set the standards for how non-analytical cases are conducted. So any questions about jurisdiction, standard of proof (higher than for an analytical case), etc. can be answered by looking at them. One can find a few hints in the WADA code, but since these cases set the precedent, they are, in a sense, the gold standard on the mechanics of what kind of process Lance faces. I’m not sure how that adds fuzziness, but if I haven’t explained it clearly, my apologies.
You ask some good questions about the future. I agree with you that it’s unlikely that Judge Sparks will take jurisdiction or issue a permanent injunction. Lance and his lawyers may well appeal. But again, as you’ve said, I expect they will lose that, too. The only thing any of that accomplishes is to delay the inevitable, which is that the case will go to arbitration and then to the CAS (unless Armstrong choose not to fight at that point, which is unlikely but not impossible).
Because of the standard of proof in this case, I expect that USADA believes they have ample evidence to win. Even if the testimony of a few people (Landis and Hamilton, for instance) can be cast in doubt. However, if the rumors are correct, some of the people who will testify are unimpeachable, like George Hincapie. Some of the evidence may be debatable, like the meaning of the test results from Lance’s comeback, but I suspect that USADA has enough in total to overcome Lance’s legal assaults.
Given that they are alleging an ongoing conspiracy, if USADA proves their contention, I would expect the arbitrators and the CAS to allow the case to cover everything from the beginning of the conspiracy, even though that is well beyond the general 8-year WADA limitation.
I find Armstrong’s choice of attorneys puzzling, to be honest. As far as I know, Luskin has no experience in anti-doping cases. There are several more experienced anti-doping lawyers Armstrong could have hired, like Howard Jacobs, Maurice Suh, or Mike Straubel. Straubel and his team have actually won a case against USADA, so that would certainly be as good a recommendation as one could get.
So it seems to me as though Lance has something else in mind based on his selection of attorneys. I would be quite surprised if he can successfully quash this case. If he somehow manages, that may say more about his connections and what money can buy than it will about the merits of USADA’s case and their evidence. Perhaps when it comes time to actually go to arbitration he will select more experienced counsel. We’ll see, but I’m not holding my breath.
As I said previously, my hunch is that PR plays a bigger factor in the way Armstrong is approaching this case. From what I can see, he’s doing everything he can to protect his brands, which in turn helps protect his personal wealth and power.
No matter what legal twists and turns occur between now and the time that this comes to a final end, it’s sad to see. The only good that comes from this would be that people see that no one immune from being responsible and held accountable for their actions.
Regarding a Truth and Reconciliation Process, I’ve written about that in the past, and I’m in agreement. Better to get everything from the past out in the open and move forward. I have my doubts as to whether the current powers that be would allow such a thing to happen, but it would certainly be a huge step in putting the past where it belongs — in the past.
Rant: Agree about BALCO and also about me being slow to pick up on the obvious. Also agree about Straubel (though he’s too much of a Larry type for me).
Why a band of DC lawyers instead of hardworking nuance puzzlers like Straubel and Larry: PR = hubris. Lance and his co-conspirators (many many more than 6 persons), honestly believe they are the victims. Seven hugely framed yellow jerseys in his living room. In every one of those frames he can see his own reflection. Image is everything. These people “honestly” do not know the difference between self and image.
Lance, UCI, and USA Cycling need to bury the evidence. In a case like this, evidence begets evidence. But these are powerful powerful people. They will never allow this discussion to get near the evidence.
There will be no arbitration. It just ain’t gonna happen. And as we know from Pat McQuaid, CAS is a red herring. (It is like being second and goal on the one yard line at the end of the 1st quarter and wondering if you will be able to kick a field goal at the end of the fourth quarter to win the game.)
The athletes can do this. And only the athletes can do this.
Someone should drop a dime to Eddy Merckx and ask him if he would lead this with the support of WADA.
As predicted, Lance’s lawsuit has been dismissed.
https://twitter.com/theraceradio
There is a link with judge’s decision.
Larry is going to be so upset if someone else states the obvious. It is his prerogative and he has earned it.
The USADA is about six co-conspirators. Much to Lance’s chagrin it is not only about Lance (hard for him to imagine). But he has done a good job at convincing 99% of the world, even those who want to see him go down, that this is only and all about Lance.
The first thing Lance did was to throw three of his co-conspirators under the bus: Ferrari (smart move, he just got busted again in London), Celaya, and del Moral. Bruyneel and (for some reason) Marti were let in on the game. Ferrari and del Moral figured it out too late – Ferrari squealed but no one cares and del Moral was given a late pass to arbitration (which actually is good for USADA’s case against Armstrong and overall – if arbitration ever happens).
Bruyneel has been the most protected by Armstrong (Armstrong and Bruyneel are indeed friends, at least Bruyneel still believes that). Bruyneel, Marti, and del Morale all rely on Armstrong’s (and the UCI’s) case. And the UCI has made that evident: USADA cannot touch any of the six as far as UCI is concerned.
Of course, Armstrong would throw them all under the bus, even Bruyneel (whose son he is the the godfather of – now there’s a real Godfather). But Bruyneel and Marti and del Morale know that none of this can go to arbitration because they all share the same evidence and accusers as Lance.
The case in front of Judge Sparks involves not only Armstrong, but at least three other and (by extension) five other co-conspirators.
Interesting note: McQuaid’s hilarious call to order letter to USA Cycling of August 16 has Bruyneels name in a “subject line” though Bruyneel is not the focus of the letter. It is very strange. Somehow the letter was too hastily put together. (Not only for that reason.)
And again, apologies Larry: That McQuaid letter (and the wonderful USA Cycling letter to USADA of August 17) is bound to have shaken up the raisins in Judge Spark’s Saturday morning oatmeal.
Due process – without the nuances:
“We are pleased that the federal court in Austin, Texas has dismissed Lance Armstrong’s lawsuit and upheld the established rules which provide Congressionally-mandated due process for all athletes. The rules in place have protected the rights of athletes for over a decade in every case USADA has adjudicated and we look forward to a timely, public arbitration hearing in this case, should Mr. Armstrong choose, where the evidence can be presented, witness testimony will be given under oath and subject to cross examination, and an independent panel of arbitrators will determine the outcome of the case.”
USADA
Thanks Jean. 🙂
http://www.scribd.com/doc/103348425/show-temp
Wow. Judge Sparks did eat his Wheaties this morning.
Any nuances here to debate?
At this point, I’m only half-way through the document. Interesting reading.
From a VERY quick read of Judge Sparks’ decision: he has ruled that “the parties have agreed to arbitrate the question of arbitrability.” In other words, Judge Sparks acknowledges that under all the relevant contracts, USADA may or may not have the power to bring this case. But Judge Sparks believes that the scope of USADA’s power to bring this case must itself be decided under a USADA arbitration. This decision might then be reviewed in U.S. federal court.
Judge Sparks seems to imagine an arbitration hearing where USADA, Armstrong, UCI, USAC and who-knows-who-else will all argue the question of USADA’s jurisdiction over this case. I don’t think this is what USADA has in mind, however — I think USADA will want to try the entire Armstrong case, and have the arbitration panel decide all issues — including “arbitrability” — in one fell swoop. I’m not sure who will get their way. In the Landis case, certain preliminary issues WERE tried before and decided by the arbitration panel before the main case was argued.
In any event, Armstrong’s attorneys are sure to appeal Sparks’ decision to the Court of Appeals (5th Circuit), and to seek Supreme Court review if the appeal fails. They will also seek some kind of restraining order to postpone USADA’s prosecution while the appeals process is ongoing. This case was going to end up in the 5th Circuit no matter who won in District Court. I think what we’ve seen so far was just a skirmish — the big battle lies ahead.
Larry,
I have a hunch you’re right. Armstrong will most likely appeal, and bigger battles loom.
In reading through the full decision, Judge Sparks expresses some concerns about USADA and how they operate, but in making his decision it boils down to whether or not Armstrong agreed to arbitration. Since Armstrong did at some point agree to arbitration as a condition of his racing license, the Judge concludes Armstrong has to go through that whole process before resorting to the courts.
Sparks indicates that Armstrong is unlikely to win on appeal, which may or may not deter him from doing so. I’m guessing that despite the Judge’s comments, Armstrong will appeal all the way to the top before he submits to the arbitration process.
If I were Lance’s advisor, I would tell him to think long and hard before going to the appeals court. Getting the whole arbitration out of the way will either prove or disprove his fears about the process. If it proves his fears, Sparks seems to indicate that Armstrong could then go back to the courts. If not, no harm, no foul.
If Lance had just retired after the 2004 race and stayed retired, he might have saved himself a whole lot of grief. Or not. USADA may still have investigated his actions. But at least then he would have had a good argument that USADA had no power over him. Pride goeth before a fall. Or something like that.
Rant, as I’ve already indicated, I do not see Armstrong going through the arbitration process. Even if USADA’s entire case is based on the testimony of Landis and Hamilton, I think the arbitrators will vote to convict. If USADA has guys like Hincapie lined up to testify, then Armstrong’s reputation would be destroyed in the arbitration even if he somehow managed to win the case. I think Armstrong would be more damaged by a best-case result in arbitration than if he simply walked away from the whole thing.
Remember that in the Landis case, Landis’ attorneys were restricted in their ability to cross-examine Greg Lemond. Lemond’s attorney instructed Lemond not to answer a number of questions raised by Landis’ attorneys, and the arbitration panel was unable or unwilling to compel Lemond to answer those questions. Contrast that with the way Roger Clemens’ lawyers cross-examined Brian McNamee.
Rant, I understand your argument that Armstrong might have a better case if he first completed the arbitration process before going back to U.S. court. Certainly he might have something more specific to complain about! But the impediment Armstrong faces remains the same: U.S. law strongly encourages arbitration of private disputes, and U.S. courts are loathe to interfere with the arbitration process.
Practically speaking, if a court is going to side with Armstrong, it is going to happen NOW. A court decision NOW would appear to address only technical procedural jurisdictional matters. A court decision post-arbitration would effectively overturn a doping conviction — practically speaking, that’s a much harder thing to ask for.
Also … when you’re in a bad situation, as Armstrong most certainly is, it’s a great strategy to play for time.
So I expect that Armstrong will exhaust every conceivable remedy outside of arbitration. Goodbye, Judge Sparks (at least for the moment). Hello, Fifth Circuit!
Judge Sparks and Larry couldn’t seem to be further apart. If Larry really believes that any Federal court cleaning crew is going to listen to Lance, UCI, USA Cycling, WADA, and USADA in one room . . . well just straighten out your tie and keep reading the codes. Judge Sparks took my good advice and didn’t read them and made it clear that they will never be read in any Federal court, as well they shouldn’t be.
As I said, there would be a nod at due process, but that is only because Sparks doesn’t understand due process among sports associations, which he readily admits, and he doesn’t care to. He shows ample confidence in USADA and the legions of appeal processes open to Lance.
Lance will appeal to the 5th Circuit Court; it will be turned down again without being heard. US Supreme Court . . . now someone is dreaming.
The game now moves to UCI and USA Cycling vs. USADA and WADA. UCI will claim a US Federal Court ruling does not overrule Pat. USA Cycling will throw up its hands and play dumb. USADA will proceed. Lance & Co. will appear shocked: “Oh, but UCI has jurisdiction.”
The only thing one cannot yet see is how Lance, UCI, and USA Cycling will stop USADA from proceeding. It will not be through the Federal courts. It will be political.
Sorry Larry. The big legal battle has been played. You can nitpick and kick around 15.3 all you want. Judge Sparks didn’t listen. No US court ever will. That was just silliness.
It is now a game of pure money and what money can buy. Still USADA should be congratulated for its courage and professionalism. At least it got it this far.
Larry, you sound more and more like Lance’s DC PR and Lobby group. Check what you are being told in the basement. Lemond refused to answer questions about litigation with Armstrong when questioned by Landis’ nuancing lawyers. There are always limits to what can and cannot be asked of persons. In fact, during the Landis’ arbitration, USADA conceded a large amount of its own time to Landis’ nitpicking lawyers so they could overly question witnesses, including Lemond.
Keep playing the due process card for Lance. It is the whiner’s card. It is not based on fact.
“NOW” is past. The lawyering is finished.
Larry,
Here’s a simple question that probably has a complicated answer. Would Armstrong’s case have been bolstered if his attorneys had cited some of the issues that came up in Landis’ case regarding discovery, access to exculpatory information and other issues that arose during the actual hearings, and presented transcripts or other documentation for Judge Sparks to review? I’m thinking it probably wouldn’t have changed the outcome, but I’m curious as to your thoughts.
Kind of have to wonder if Lance is kicking himself this evening for not helping Floyd find a job for the 2010 season. What goes around comes around.
Rant, I answer “no” two times. No, I don’t think citing issues from the Landis case would have helped Armstrong. And no, I don’t think this is a complicated question.
The Sparks decision flows from the simple premise that U.S. law favors resolution of disputes in arbitration. The courts view an agreement to arbitrate as a matter of private contract. The process for such an arbitration is, in theory, also a matter for private contract. The process does not have to measure up to the standards applicable to a U.S. courtroom.
To be honest, I was surprised that Sparks paid as much attention as he did to Armstrong’s due process arguments. I can imagine a number of bases for Sparks’ concern: maybe he was willing to consider USADA to be a quasi-governmental agency and thus somehow subject to Fifth Amendment standards of due process. I haven’t read Sparks’ decision carefully enough to understand where his concern was coming from. But putting the legal arguments to one side, if Sparks ruled in favor of Armstrong on due process grounds, he’d in effect have found USADA’s entire arbitration process to be invalid. That wasn’t likely!
As for Armstrong employing Landis, I suppose it all depends on your point of view. Personally, I think that there’s no way to appease an extortionist. At some point Landis would have asked for something and Armstrong would have said no. There’s also Tyler Hamilton to consider.
Larry,
Good perspective. On further consideration, I think your point about appeasing extortionists is spot on.
Whether or not LA is guilty, I think he would have found himself in this situation sooner or later, Landis or no Landis. Someone with connections to him would want to “trade” information, true or not, for some consideration: a get out of jail card for a doping violation, or perhaps just for money to some journalist or whatever.
Sad. You folks behave as bad as Armstrong. And you have the audacity to pretend you care about the rights of athletes and due process.
Judge Sparks could not find a single point of value in Armstrong’s whining. He didn’t play the lawyer game you and Armstrong hoped for in all your hubris.
And no person of normal intelligence plays a “what if” game.
What is sad is that first you try to lynch the USADA and smear Travis Tygart with pretensions of nuances, then Larry suggests again the due process argument even after Judge Sparks has laughed it out of the basement, and now you are back to smearing Floyd Landis and Tyler Hamilton as “extortionists”.
You folks are absolutely shameless. This is worse than simply fuzz and smoke from a kitchen of lies and deceit. You are suggesting that anyone who tells the truth about people doping, trafficking in drugs, giving drugs to young athletes, lying about it, conspiring to do it and lie about it, creating sporting empires on the back of the cheating and selling gullible people fake cancer charities . . . that the people who tell the truth are now the villains.
Rant, just a small fact that doesn’t begin to address your wrongdoing here: Floyd Landis did not ask Lance for a job in 2010. What Armstrong did do, together with the help of Andrew Messick, now CEO of the World Triathlon Corporation (WTC) Ironman – that has multi-million dollar deals with Armstrong and (yes) Livestrong, is to prevent Landis from racing at all with any team.
The problem with your sense of athletes rights and due process is you only care about Lance Armstrong. You never think of the all the victims of his crimes, including (but not limited to) athletes. You do not think of the enormous deception to America’s youth and the message you send by supporting the person, the arguments, and the abuse of the American legal system.
The problem with this kind of discourse is that it believes that its own civility and cogency somehow justifies the misuse of law for criminal ends. Do you really believe that calling Floyd Landis or anyone who speaks the truth regarding Armstrong’s crimes an “extortionist” is acceptable practice by American lawyers? You are operating truly in the bowels of American jurisprudence.
There are a few legal questions of interest you could be asking, but the showmanship of lawyering is done for this case.
The most telling part of the hubris of this thread is Larry explaining to Jean C. the legal aspects of the case. What enormous pretense. Larry has been particularly sly in picking up other’s arguments from earlier in the discussion, pretending they were his, and then (of course, or should we say “obviously”) getting them wrong.
LauraLyn,
Thanks for your kind words about me.
And I totaly agree woth you about victims. We cannot seek for a perfect system of Justice or anti-doping, that would never happen.
The most expensive, close of perfection, system are often the less robust. While we would wait for a perfect cure or perfect Justice, victims will be multiplied making more unfairness.
That is sad that sometimes an innocent is unfairly treated, but for a global population, that means too that most of it has a better protection.
Would we want to die of a disease by refusing to take a medicine because that could kill us too?
Of course, that is a matter of probability.
To bring Lance in front of his accusers and to face his facts is much better for society than any other solutions.
Jean C, thank you. You make things so clear.
Lance has made the world believe this is all about Lance and only about Lance. Lance has this wonderful understanding of the American psyche: the only thing American’s love more than a hero is a victim. Now Lance wants to play the hero-victim.
By believing him and playing second flute to his legal shenanigans, people completely overlook or even dismiss all the damage he has done to so many lives. When “due process” only exists for Lance Armstrong, justice for so many individuals and the American people is corrupted.
Lance has destroyed the names and lives of others to keep his lie, to stare at his own reflection in the yellow jerseys framed on his living room wall. And he has not done it alone, sadly. On this blog people have deliberately been complicit in smearing Travis Tygart, Tyler Hamilton, and Floyd Landis. Lance has made it so easy for people to do this, and people continue in this behavior precisely because they believe their gaming is more important than the truth and the lives of others.
Lance should have to stand in front of his accusers and simply listen to what he has done to them. He may even challenge them, but he knows that any challenges will only lead to revelations of more and deeper injuries. Evidence begets evidence. Lance wants to ensure that not a single piece of evidence ever sees the light of day. But that is at the cost of the true victims.
Justice is not, and never has been, a game of nuances.
A Truth and Reconciliation Process is what is needed for cycling and, unfortunately now too, triathlon. It is not about getting Lance. It has never been about getting Lance. It is about making sport honest and safe. It is, more fundamentally, about the kind of society in which we wish to live.
Jean C. UCI has just backpedaled and said it will follow Judge Spark’s decision and allow the USADA arbitration.
This is now becoming scary for Lance. It also means that USA Cycling will leave him high and dry.
Without UCI support . . . it is just impossible to see any avenues open to Lance.
LauraLyn,
Wow. And here I thought we were finding some common ground and even agreeing on a few things. Wrongdoing? Really? I think all I’ve ever done here is express my opinion.
A little background for you about this site. This site has been largely supportive of both Floyd Landis and Tyler Hamilton. It came to life shortly after Floyd tested positive in 2006 and has been going ever since, though it would be fair to say that I don’t write posts nearly as frequently as I once did.
Many of the people here are still supportive of Floyd, even after he owned up to his past. Same for Tyler. There are, however, some folks who post here who do believe Floyd is a villain, but not for the reasons you think. Landis raised money for his defense by telling people he’d never doped. When he admitted to doing so, those people felt cheated. Some were outraged. And others (like me) accepted that we’d been played for fools by remembering the old expression “a fool and his money are soon parted.” I’m not angry at Floyd, though I do wish he had been more honest earlier on.
Consider this chronology, though:
At the end of 2009 or early 2010, Floyd and the OUCH (now UnitedHealthcare) team parted company. He began looking for a new team and reached out to a number of people for assistance, including Lance. Not to be on Lance’s team necessarily, but to put in a good word for him with other team owners.
In early 2010 — March, if I recall correctly — Landis secured a spot on the Bahati Foundation team, a small team based in California. Floyd and the Bahati team then tried to get a spot at the Tour of California, the race run by Andrew Messick’s company. He reached out to several sources to try to persuade Messick to let the team race, including Armstrong. Behind the scenes, however, Armstrong was not doing Floyd any favors. Neither was Steve Johnson, the head of USA Cycling and a friend/business associate of Armstrong’s. At least, that’s what I’ve heard from various sources. End result: The Bahati team didn’t race.
In April/early May 2010, Landis’ revelations hit the media, causing a sensation right about the same time as the Tour of California begins.
Lance could have helped Floyd. I understand that Landis is radioactive as far as any ProTour teams go. None of those teams will ever hire him, even if he could snap his fingers today and instantly be on form for racing at that level. But Lance is the 800-pound gorilla of the American cycling business. If he puts in a good word for someone with any of the US-based Pro Continental teams, chances are that rider will get hired. He could have done that for Floyd, but he didn’t.
I don’t know if Floyd put it to Lance, “If you don’t help me find a job on some team somewhere, I’m going to blow the whistle on what you’ve done.” It’s been a while since Floyd and I have talked or emailed or texted. So I haven’t had the chance to ask him on or off the record whether that was the case. But if he did say that, then calling it extortion would be justified. Since I don’t know, I’m going to withdraw the extortion comment.
The reason I asked Larry that “what-if” question is this: The judge didn’t make a blanket rejection of Armstrong’s claims. In some parts of the opinion, he seems to express concerns that run along the same lines as Armstrong’s complaints. But he did say that he couldn’t take hypothetical harm into account when arbitration hasn’t occurred.
USADA is far from perfect. In the past, they have been slow to provide information to the other side in anti-doping cases, even when instructed to do so by arbitration panels. Yes, as Bill Bock told Judge Sparks, they provide the information ahead of the hearing. But at times it has been provided not very far in advance. So my point in asking Larry the question was, would presenting that information to Judge Sparks have made a difference in his deliberations. I didn’t think it would, but I thought it was worth asking.
“Due process” is a tricky thing. It ought to be straight-forward, but it never seems to be. And concepts of due process differ in different countries and regions. But I think you would agree that even a guilty person deserves a fair trial. True?
The history of this blog is that it’s been a place where people have been concerned about the rights of athletes and due process, even if we disagree on what that means and how to get there. The current system isn’t perfect, and there never will be a perfect system. But if there are areas where it can be made better, what’s the harm in speaking up?
Larry is a lawyer, and his knowledge of how the legal system works is valuable to the discussion here. I don’t find his explanations pretentious. Jean C offers a point of view from outside North America, sometimes (often?) differing with others here, but also a valuable part of the discussion. I believe it’s good to get different opinions, and I value all who contribute here. But I also believe we can express our opinions without getting into personal attacks on each other. More to the point, personal attacks distract from the issues being discussed, rather than furthering the conversation.
I used to write much longer posts, covering a wider range of ideas and issues. But more than one person told me that it was hard to comment on those posts, because it seemed like there was more than one discussion going on and they didn’t know which one to respond to. So I adapted by staying focused on a single topic or several related aspects of a topic. And it seems to have worked much better since then.
There are a number of interesting issues Armstrong’s case brings up. If you want to change the discussion in the thread, feel free to pipe up and take the conversation in a different direction. Each post is merely meant to be the start of a conversation, not the conclusion.
Regarding Armstrong and what he’s done to various people: I think it would be better for the cycling world if he goes through a public arbitration so that the evidence against him, and his defense against those allegations, can be open to all. I don’t think that’s the best strategy for Armstrong, as it could destroy his image and his future earnings. But for the good of the sport, that would be the best approach.
I have my doubts that such a thing will happen, though. Armstrong, as you observed, is good at playing to the psyches of the American public. An open hearing might be too open to fit the narrative he seeks to create, which is as you said, the hero-victim. If he goes to arbitration, my guess is that it will be a closed hearing, in order to keep embarrassing revelations from being publicized in the media.
Also, as I said in a previous comment, I agree that a Truth and Reconciliation Process is a good idea. I’m realistic enough to understand that whenever big money and sports mix, some people will be tempted to cheat in order to achieve fame and glory, but I hope that at some point in the future, fewer athletes will choose to do so. The Truth and Reconciliation Process may well be the best way to get started moving in that direction.
A final footnote: With the UCI’s latest move, seeming to back off their demand for jurisdiction (at least for the moment, we’ll see how McQuaid and company behave as the case moves forward), things are certainly not going Lance’s way. I’m not sure his goose is fully cooked yet, but the temperature is certainly rising. I don’t see an easy or pretty way out of this for Armstrong, but maybe his lawyers will earn the huge amounts they are being paid and find a way of salvaging something.
If I remember correctly, the accused athlete has the option of requesting an open hearing, otherwise it is closed. Since Armstrong’s previous forays into court to defend his name have been closed, my guess is that he will not opt for an open hearing. But I will not myself read to much into either his previous closure of cases not any closure of this case.
I would like to see an open hearing and would hope that the matter is ultimately decided on the facts of the case, such as they are, rather than legal maneuvering. That being said, I do think that due process is important and even Armstrong is entitled to due process.
Rant: It was never personal. It is wrong to suggest that Landis or Hamilton are extortionists or that other who have or may testify against Armstrong are. The swipes here at Tygart that suggest he acts on whim are also not appropriate and deceptive.
Due process was never a serious argument in this case. So there was no sense going down that silly road. You need to give it up if you want to understand what is at play as well as what is at stake. If you listen to Armstrong’s basement, you will be misled.
This case will be settle by power, politics, money, and PR. Courts and lawyers are a side show.
Regarding UCI, it was not McQuaid who made the statement. But it is pretty unbelievable, in a genuine sense. Lance’s best move would have been to say “Oh, I can’t do a thing until UCI and USADA settle their dispute.” From what UCI has said it is not at all clear that things are settled. What is strange is that they take a very clear distance from Lance.
The role of Messick is now key. What is really going on behind the scenes between UCI and USA Cycling? What is Messick’s influence on USOC? That McQuaid would (and could) throw Armstrong under the bus to save his own rear, there is no doubt. Messick is an entirely different case.
Obviously Armstrong is increasingly becoming more and more of a liability and even he can feel the wheels of the bus not far down road. The question is how much does he hold in his hand regarding UCI, USA Cycling and Ironman? It is surely not a little. Is it a lot? Is it enough?
USADA could take down Armstrong. They are not strong enough to take down UCI, USA Cycling, and Ironman. Bruyneel and the others all depend (stupidly) on Armstrong.
There had been only one interesting conversation today on this case. That is the one between Messick and Armstrong.
WS, the Landis hearing was open because the Landis legal team discovered some provision of U.S. law that effectively gave Landis the option to choose an open hearing. Normally, all WADA hearings are closed. By my recollection, USADA was not happy about having to conduct the Landis arbitration in public, and there was some discussion about changing the rules to close all future arbitrations. I don’t know where this stands at present — I don’t recall any arbitration other than Landis’ that was open to the public, I don’t think that either Armstrong or USADA would want to arbitrate this case in public, and I don’t think there’s going to be an arbitration in any event.
This case will be go to arbitration.
I have no inside track, so it’s only my opinion. But if Armstrong loses his appeal in federal court, as I think he will, Armstrong will drop this case before taking it to arbitration. USADA will have their victory but not a trial. I say this because I see nothing that Armstrong can gain in arbitration. The testimony of Landis and Hamilton alone are enough to guarantee a USADA victory. I might think otherwise if Armstrong’s lawyers would be given the right to cross-examine USADA’s witnesses the way that Rusty Hardin was allowed to cross-examine Brian McNamee in the Clemens perjury trial. But I think that the cross-examination permitted in a USADA arbitration will not be like that.
The power of cross-examination is an amazing thing. We forget that Congress approved the Mitchell Report on doping in baseball in substantial reliance on the word of Brian McNamee. But once Hardin finished his cross-examination of McNamee, there was little left of McNamee’s former credibility in the eyes of most observers — including some observers who were pro-prosecution.
Another reason why Armstrong will probably avoid arbitration is that if he decided not to testify in arbitration, the arbitrators can view this as evidence against him. If Armstrong testifies, then unless he makes a full confession to USADA’s satisfaction, the arbitration will probably be followed by a perjury trial a la Clemens and Barry Bonds. Why take this risk when the arbitration offers no possible reward?
It is possible that Armstrong will seek a limited arbitration on technical legal questions, such as whether USADA has jurisdiction to bring this case. Of course, it’s not clear that Armstrong can limit arbitration in this way. My guess is that if Armstrong does seek some form of limited arbitration, he’ll do so at the level of the CAS, and not in the U.S.
I expect that once Armstrong abandons the arbitration, he’ll make some case in the “court of public opinion” — conduct a few interviews, create a new web site, then let the chips fall where they may. At that point, he’ll have no better option open to him.
Armstrong will go to arbitration. It will be on the USADA terms, and it will be on American soil according to American rules.
He will not be allowed to arbitrate the question of arbitration outside of agreeing to arbitrate the charges.
This much is clear.
I am not privy to any inside information, but it does seem decidedly un-Lancelike for him to fold. He always has been rather aggressive in his defense of his “honor”. But if he can cook up some sort of deal maybe I can see it. But just how far would USADA be willing to go in making a deal?
Some possibly ideas might be to stick to that 2004 cutoff date; Lance accepts sanction for all results after that date while leaving earlier things alone. Another possibility is to simply accept all sanctions while having a gag order put into effect so that seedy details don’t come out in public. But if USADA truly has the goods on him, they just may be in the driver’s seat and will proceed full steam ahead.
But all in all, I just don’t see Lance making any kind of confession or admission. It just isn’t in his character.
William,
I’m not sure whether USADA would agree to any sort of deal. But that’s certainly one possibility. I also have my doubts that Lance would fold his tent and walk away. It doesn’t seem to be in his nature. If he were going to do that, he could have just accepted the sanctions and moved on. My guess is he’s going to keep fighting. I’m just not sure whether he’ll try to keep his fight in the US courts or go to arbitration.
WS, I agree with your read of Armstrong’s character. It is not in his character to fold. But it’s also not in his character to lose.
How can Armstrong “win”? Certainly not by going through the arbitration. Can he “win” by denying he doped, declaring the arbitration process a sham, and allowing USADA to do its worst? Well … He’ll “win” by saving the time and money he would have spent in arbitration. He’ll “win” by avoiding giving testimony under oath that could cause him additional legal problems down the road. He’ll “win” (or perhaps feel some sense of “honor”) by relieving Hincapie and others from having to testify against him (also, against themselves). He’ll “win” by being in complete control of whatever spin or defense he chooses to make in the court of public opinion. He’ll “win” by getting the worst of it over as quickly as possible and turning as quickly as possible to damage control. He might even “win” by assuming the role of the victim and gaining some small amount of public sympathy.
It is possible that Armstrong will proceed to arbitration, that this is the only choice he can make given his pride and competitive nature. Perhaps his lawyers are telling him that they can do what Landis’ lawyers were unable to do, and what Hamilton’s lawyers were unable to do, and Armstrong will rely on this (almost certainly incorrect) advice. But I think Armstrong is smarter than that. I don’t think he’s going to enter an arbitration hearing with Tygart, any more than he’d enter a boxing ring with a Klitschko.
Armstrong has a hell of a lot to lose in this fight, and he’s certainly going to lose some of it no matter what he does. So I think this is about how to best limit the loss.
Larry:
Wouldn’t it be rather unethical for his lawyers to advise him that the could win when in fact they are highly unlikely to?
If he walks away and allows USADA to strip him of all his wins, he could perhaps play the victim. I am not sure how well he could pull that off. I sense that, at least in the cycling community, there is wide-spread belief that he is indeed a doper. How much this holds for the population in general that pays little attention to much of this, I don’t know. There may be some sentiment to separate this from his anti-cancer efforts, even if Jean C thinks that is a sham.
One question would be: would the potential witnesses USADA has lined up to testify against him keep quiet or would they, absent some sort of gag order, publicly discuss what they allege? Some, like Hincapie, might keep quiet out of some sense of loyalty, some might keep quiet as anything they say might involve admissions of their own culpability; but I suspect that there are some who are quite willing to talk. And if they do, I imagine LA will have something to say. So we might get a battle on tweeter or the like.
Well, of course we are just speculating here. Lance will do what Lance will do.
WS, it would be unethical for Armstrong’s lawyers to advise him that they could win if, indeed, they believe that Armstrong will lose. It might also be malpractice. But we’re talking about a judgment call here. Also, much depends on what Armstrong himself has asked his lawyers to do. If Armstrong has asked his lawyers to defend him to the nth degree, regardless of the odds and regardless of the cost … well, he wouldn’t be the first to do so, and it would not be unethical for Armstrong’s lawyers to conduct such a defense even if they thought he was guilty.
Understood, Larry. There’s perhaps a fine line between “here’s a way we might possibly win” and “we can win this”. And there’s no way we can know what his lawyers might be advising him, and what he may be asking them to do. Certainly a lawyer should do what his client requests, short of anything illegal or unethical.
Another thing I suppose could enter into the equation is what the lawyers themselves actually think. Were they to actually believe that they have some strategy, or legal maneuver, or know of some evidence that might get LA off, that might be one thing, whereas if they have a strong feeling that he is going down no matter what, but advise that they can win, that is clearly wrong.
That being said, while I know nothing about the lawyers that he has engaged, I suspect that they are not the type that advertise on TV, suggesting that they can solve all your problems if you just hire them. I would think they would fully advise LA not only of the various options available to him, but what are the likely outcomes of any course of action, leaving it up to him to make the final decision.
LauraLyn,
WOW. I mean, really. You don’t know much about ‘Star Chambers’, now, do you? You might follow up with Floyd and Tyler and even Roberto Heras, Kasechkin, and others. Quite literally, last decade, I wouldn’t trust the lab assistants or the bureaucrats to fill prescriptions at a Walgreens, or conduct eye exams at the DMV, then hand out CDL’s. Floyd was ‘busted’ for the ONE THING he didn’t take, which was Synthetic Testosterone, and Hamilton was ‘busted’ first for blood transfers which would’ve killed him (which means the lab in Switzerland accidentally tainted the samples – it happens, just ask your local Quest Diagnostics courier), therefore making it impossible to have happened, lest we all stand around in black suits at a wake, and later for a MOTE of a vague pixie-dust hippie anti-depressant, which was NOT on the label of the supplement he was taking. DSHEA as an act is a misnomer.
Both these athletes were not allowed to present their cases adequately, and both questioned the “Due Process” they were handed. I suggest you read up on the Latasha Jenkins Case, link here (http://digitalcommons.pepperdine.edu/drlj/vol10/iss1/5/), and then tell me you think that “Every Case on its’ own Merits” applies here.
I’m no fan of Lance. I worked at Tailwind in 2002, and it left me feeling that they were more interested in taking a bigger slice of a shrinking pie, rather than growing the diameter of the actual pie. But USADA is very much Michael Chiklis’ character in “The Shield” – in their attempt to be ‘good guys’, they break every law and rule that they are supposed to abide by, and end up more crooked than the criminals. You can’t sue USADA, and now people are starting to look in to their actions.
Finally, think about this quote from “A Man for All Seasons” – “If you were hunting the devil, and he was in the forest, what would you do?”
“I would chop down every tree in the pursuit of him!”
“And when you cut down the last tree…. where would you HIDE?!”
So think REAL HARD about what USADA is doing here, and think about how hard it is to defend yourself against a charge, and think about $$ and conscience and justice.
Richard, thanks. It was getting boring. Good writing, good thinking.
Question 1: What would “due process” be for Lance Armstrong today other than to follow the USADA procedures?
Question 2: After Lance & USADA finish their dance with the devil, what would you like to see happen in cycling, in sports, for the rights of athletes?
1) I believe the whole thing is a lot more crooked in Europe than I ever thought before. The NGB’s make the UCI look like fools, which they are. Start at the top – agree to an athlete union, an amnesty, a blood profile starting with every new license or renewal (gotta start somewhere), and get a profit-sharing system that allows this stuff to be funded. No one with money wants to give it up, but for the good of the sport, it’s a necessity to widen the bell curve of profits and responsibilities. I literally believe that the constrictions of funding have more to do with abuse of power at UCI and even at USOC/USAC levels, than they do with the perpetual struggle for title sponsorships. The funny thing is, that CS&E, Lance’s company, grew the sport, literally by accident. The fractional ownerships at Trek and Waffle and SRAM came much, much, much later. Head over to the wayback machine and dig up Rick Vosper’s comments about the bikebiz on Bike 2.0, a now-defunct blog from an ex-Specialized employee (and there are a LOT of ex-employees). Specialized was late to the faster game of bike and personality sales, and had some missteps along the way, but they’re now literally out-Trekking Trek.
2) Lance is damned if he do, Damned if he don’t, but as much as this leaves bile in my throat, he’s right to go after USADA in federal court. Floyd, Tyler, and crap, that kid from Colorado who tested positive for something he unknowingly took (DSHEA fails, yet again, to regulate the supplement industry, by putting the burden of proof on the feds, then stripping them of funding to actually test products and claims), and several others, were denied access to evidence, denied due process, and had their reputations sullied and careers destroyed because of USADA’s carte blanche constitution. It’s so lop-sided, that all it literally takes is the accusation, and you’re doomed.
And Ashendon? ASHENDON? The man should have his PhD removed. He’s a mouthpiece for enforcement via pure speculation. He looks at unverifiable ‘evidence’ that is leaked. He comments with knowledge of the issues, but not of the INDIVIDUAL’S issue. I’d much rather work with the now-retired Director of the Los Angeles lab, who was meticulous with his data collection, and its’ (lack of) dissemination of information, simply because he felt that athletes had the right to due process. It’s early, and I can’t remember the names of all the players, so forgive me, but I do know my s**t.
So that was a side rant. Sorry. Back to Due Process.
USADA’s rights need to be curbed, all information should be held in public forums, but NOT in the public media beforehand. Floyd was right to try and make arguments publicly at Pepperdine, but remember, a TON of his arguments about the lab, were NEVER ALLOWED in to testimony. HAD HE BEEN IN A REGULAR, US COURT, it would have been bounced immediately. So hold USADA, WADA, and CAS accountable, make them toe a line that is precise when it comes to evidence collection, sample protection and chain-of-custody, and if there’s a screwup, admit it, let the crook go, and vow to do better next time. This is NOT “The Untouchables”. These are $12k wonders trying to make a living RIDING A BIKE, and I’m probably one of the only ones who’s ever done it by NOT being a pro. In fact, Netflix ‘Pro’, and see how they really live. It sucks.
2) Probably already answered to some degree, but basically, start a biological profile system for everyone, establish thresholds, make it costly enough that people will think twice before starting or considering doping programs, test at lower levels of sport, allow for some TUE’s for ADD and ADHD and depression (Tyler was in a bipolar state when he left his meds in Boston, and the only option he had was to check in to an ER, in a state not his, for something he probably considered too minor to attempt, and ended up testing positive and getting a HARSH ban for a mOTE, and I mean a MOTE of DHEA. He was NOT guilty of doping in his second case. He was guilty of being a 35-year old with a medical condition, depressed from his lost decade, and trying to keep a position on a team with tenuous finances, because he was radioactive everywhere else). Harshen the obvious penalties, lessen the rest, make it all public after-the-fact, focus on PREVENTION and REHABILITATION, not on PUNISHMENT and REVENGE (they have to deal with that at the competitive level, anyway), and go after the ENABLERS, like the DS’s, the crooked coaches, the NGB’s (I think USAC is now clean, though the fact that a CTS Coach is now Director of Coaching at USAC leaves me a little nervous, but he’s new, and there’s time), allow the athletes access to their evidence, push the feds to clean up the supplement industry, educate the athletes and coaches about the risks of PED’s, the risks of an unregulated supplement industry, and…..
well, crap. I gotta go coach. I’ll finish this later. Posting now. Rant later.
Just remember –
Floyd DID NOT TAKE TESTOSTERONE in July of 2006.
He was found guilty of taking… TESTOSTERONE.
He later admitted to taking EPO and HGH, which…
The lab NEVER FOUND.
So —- who’s the F up? Floyd, the lab, the UCI, WADA, USADA, or all of them?
So with Lance, they can make all sorts of claims, but unless they have a bag of EPO or blood that says, “Property of Lance, inc. – TEST ME”, then their burden of proof falls below most courts’ levels of minimum. The sad part is, USADA isn’t a court, they’re a board of arbitration, and yet they get to ACT like a court.
Ask Tom Zirbel about fairness. He did NOTHING wrong, but because he ‘tested positive’ for something he unknowingly ingested, and it was a TRACE amount, similar to the amount of contaminants found in Contador’s system, and now, of course, Schleck’s system, the guy had to sit out just under two years.
You can’t cut a gentle, immature crop, with a scythe, you have to hand pick it, lest you ruin the whole thing, this season and seasons to come. It’s what led to the dust bowl, and it’s what is literally hurting the sport more than the doping itself.
USADA is no saint. We all knew Lance wasn’t either. All this makes me want to take up… Scrabble (read about the cheating scandal on Slate)… crap. Badminton (fixed matches)… Hmmm, Tennis (EPO and HGH. Damn.)… Table Tennis (you think pitchers with vaseline are corrupt? Try Table Tennis!)…. I guess you can’t cheat on TicTacToe but it’s kinda boring…..
Hell, I’ll settle for USAC officials cracking down on the whole ‘crossing the center line’ rule, more than the whackamole hunt for dopers.
Richard,
Remember, no one knows what Landis took :
– Landis could lie about it
– Landis could have taken Testosterone with other products like supplements and was unable to know it.
Don’t repeat you are not a fan of Lance, you have always acted like you were.
You are confusiong sport and business. Unfortunately sport has never been totaly fair and would never be, decisions should be often taken by judges on field without enough time and datas. Sport is like life, it’s not fair, people lose their job before they are allowed to go to federal court.
And for doping, we should not wait years before stopping dopers to destroy sport as we have seen with EPO.
Your proposal should reduce the number of victims if you are trying to protect athletes. Are you sure that your proposal will do it?
Maybe you should have said that sport journalists should ask the good question to presumnably dopers, like :
You pretend to use an hypoxic chamber during TDF, is it good for recovering?
How do you manage to increase or maintain your hematocrit level during TDF without doping?
What is your natural hct values? …
And for each answer to dig in science to debusk the stupid lies that we have sometimes heard. Unfortunately, reporters have a vasted interest to promote lies and myths as we have seen with Lance ! There is a lot of accomplices. It’s too easy to put the burden on people in charge of doping when they were alone with little power to fight it.
As improvement, power should be monitored and datas stored with biological datas.
I WILL REPEAT IT – I AM NO FAN OF LANCE. I admire his tenacity and accomplishments, doped or not, and the way they ran the business for a decade, but admiration and respect are different than fandom. I’m not a wheelsucker or a jersey-chaser. I got the gig because they were the only business model in the country, and they’d had success.
Your own questions are misleading -‘pretend’? C’mon. Admit that you work for that failed lab outside of Paris and get it over with. You hired the chick from Ivory Coast, and she was the one who screwed up. Heck, you’re probably the guy behind the hard drive wiping. You’re complicit in your own coverups from your side of the Atlantic. I have respect for your comments, but not for your methods or logic. That we disagree about much is an understatement.
Floyd did not lie to Ashendon in his most recent interview. If he took supplements that had synthetic T, it would have been a mistake, and he wouldn’t have merited a two-year suspension. That’s the problem – you want to cut the heads off of everyone accused. ‘J’accuse’ means more to you and your culture than it does to me.
Don’t accuse me of being a Lance Fanboy, and don’t accuse me of being a Floyd apologist. You’re more guilty of covering up your NGB and doping culture’s screwups than I ever will be, TUE’s and all.
Lance deserves to have the evidence that is being used against him, in a presentable way, with a time period that will allow for a preparation of defense. He deserves, LIKE ANYONE WHO IS ACCUSED, to have his own experts present testimony, and he deserves AN UNBIASED PANEL to read and review all material presented at the court/arbitration. This is the sticking point – you want to hold your own cards, and not play with a full deck against the accused. I find it reprehensible and indicative of a bureaucrat or official who himself is hiding some fact of malfeasance or ineptitude, which the ANTI DOPING CULTURE ITSELF IS RIFE WITH.
Jean,
Too many sports reporters around these parts are just not well-versed in the science of doping and anti-doping tests/techniques. Even without any vested interests, they don’t really know the right questions to ask, or have an interest in following up on things that may seem obvious to someone with a better understanding. Cycling, on this side of the pond, doesn’t get the attention that it does over in Europe and in other parts of the world, so there are few reporters at the larger papers and magazines who specialize in the sport. For many reporters, the sport is almost an afterthought. Doping in any sport is even more of an afterthought, only being covered when a scandal that can’t be ignored breaks out (Landis, BALCO, the current Armstrong story, a couple of baseball players testing positive for synthetic testosterone being prime examples).
I doubt that too many (though there probably are a few) are actual active accomplices in perpetuating the status quo, except perhaps through their ignorance they may be accomplices by omission.
Jean C, the odds are extremely low that Landis took synthetic testosterone accidentally. Landis not only claims that he used PEDs other than synthetic testosterone in 2006 — he also claims that he used synthetic testosterone in a number of other TdFs before 2006. Sure, the lab could have made a mistake, but Landis’ admission is powerful corroborating evidence for the lab’s findings. What are the odds that the lab made a mistake, and accused Landis of using just about the only PED he WASN’T using, during just about the only TdF when he WASN’T using that PED? Compare those odds to the odds that Landis (perhaps out of stubbornness, perhaps out of fear of liability for perjury) does not want to admit today that he lied through his teeth throughout the entire arbitration against him.
There’s also the matter of the spike in Landis’ T/E ratio during 2006 — if he was taking a supplement contaminated with synthetic testosterone, it would have taken one hell of a lot of contamination to produce that T/E ratio. Finally, there’s the fact that in the Landis sample that tested positive, only one testosterone metabolite failed the CIR test — the only explanation I’ve heard for this is that such a result is consistent with using a testosterone skin patch. He might have fallen asleep with the patch on (too much bourbon?) and taken a much larger dose of testosterone than he intended … but the USE of a testosterone skin patch could not have happened by accident.
Landis doped with T and datas showed that he blood doped too so he got his suspension.
He has not been spoiled, he deserved it. FACT.
Who had tried to derail the testing of the B sample?
Who had documents forgered?
Do you believe that has no weight? So it was not just one test that has made the result. Most of the evidences have pointed a sophisticated doping program.
But you can be unhappy with the process that has given the good result : a sanctionned doped athlete.
Please compare errors of Justice system with WADA results, and then talk. You have to face reality and to be pragmatic. Nothing will be perfect, just try to have the best results, that means a minimal number of victims. You can have look on internet about cheating, if system to stop is is not enough deterrent, cheating increases. So the right balance is to find : a “less fair” arbitration process probably means less doping !
Where and when did I have covered up something? Please, list them!
About the black chick, unfortunately, she didn’t screw up, she had just to answer to badly translated questions. No surprise that her answers looked bad too. You can verify it by yourself with someone speaking french. That was a failure of USADA on that point, they should have hired someone from a lab, with technical knowledge speaking french and english.
Rant,
In 1999, when Lance did his comeback, reporters had the good questions. Lance’s boys have accused them to spit in soup!
There is still good journalists, but of course owners of magazine prefer money to truth!
Do you believe that people commenting cycling on TV don’t know what is on? They just had to read Walsh’s books, and then to investigate to sort their truth.
Is’nt the job of journalism?
Larry,
Landis could have ingested T within PED, there is some PED that are a combination of different PED.
Maybe that is the combination of different PED (without T), that triggered the T test,
but as I said, only Landis (and his doping doctor) can assert that they didn’t use it voluntary.
So there is 3 solutions:
– lie of Landis
– mistake of lab
– accidental ingestion
Until Landis confess Testosterone use, we cannot point only one possibility.
Jean,
The commentators on TV may know what’s going on. Depends on the individual and how closely he or she wants to look at the sport. Back in 1999, reporters had good questions because a guy who had been on death’s doorstep came back and won the Tour, which is a pretty unexpected feat. So they would be skeptical of that achievement. Also, it followed on the heels of the Festina affair, so perhaps reporters were a bit more thorough in their questioning. After Armstrong won his first Tour, it’s my impression that a large number of reporters (over here, anyway) set that skepticism aside as he went on to win each successive Tour.
Definitely there are good journalists out there. Those who take an interest in the sport should have read or be familiar with the contents of David Walsh’s books. The job is definitely to know the subject and to ask the uncomfortable questions. I can’t speak to how well the sports journalists do their jobs in Europe, but in the States, it’s only those who specialize in cycling that do a particularly good job covering all aspects of the sport. I can think of 10 or so American journalists who do a good to excellent job covering the sport. Others, who only cover cycling occasionally, don’t have the real depth of knowledge to write about what’s going on in a well-informed manner. Which is a shame, actually.
Rant, as you know, in the PED era there are two kinds of athletes: those proven to have doped, and the ones we can’t be sure about. We have focused here on the possibility of false positive PED tests, but there’s also the problem of false negative test results. When an athlete passes a PED test, that does not prove the athlete is clean.
Any time an athlete fails a doping test, the reaction is “of course, I suspected this all along.” People said they suspected Landis because his good days were TOO good. But people also said that they suspected Armstrong because he was TOO consistent — he never seemed to have a bad day. I even remember French journalists in 2006 who said that Landis rode the way we’d expect a clean rider to ride: inconsistently, with bad days followed by good ones.
As Jean C says, no system is perfect. We can be critics of the current anti-doping system, yet on some level we have to accept the system as the best and fairest one we’ve come up with so far. It is certainly better than a “system” based on the conjecture of journalists, who will inevitably focus on one or two well-known athletes and will utilize whatever “methods” work best to make headlines.
At the end of the day, it is up to us. In the PED era, no athlete can ever prove that he/she is playing clean. Do we regard all of these athletes as suspicious? Do we do what I’ve seen in cycling, where those inside cycling team A think that anyone riding faster than their fastest rider must be doping? Do we suspect all those who live outside of our country of residence? Do we decide that “they’re all doping”? The only sensible response is to treat individuals as innocent until they’re proven guilty, and to accept proof only from the ADAs that (1) use (or at least try to use) good science to make their proof, or (2) make their non-analytical accusations formally, in a forum that provides adequate due process to permit the accused to mount a defense.
Larry,
Those are all good points. My comments about the sports writers and the quality of their work isn’t meant to suggest that we should adopt the approach of suspecting that everyone is doping. Or that there can’t be some incredible rides done by clean athletes — whether that’s through consistent results or a ride similar to Floyd’s ride to Morzine that fateful day.
We can’t really be sure what we’re seeing — whether the competition is clean or not. I don’t know anyone who is able to look at an event and accurately point to who’s cheating and who’s not. My point about sports writers is that too many do a superficial job of reporting what’s going on, and they don’t dig deep enough to get or provide a fuller understanding. Especially in a sport like cycling, which is more of a “second-tier” pro sport in the US, when compared to the football, basketball or baseball.
Agreed. We do need to treat athletes as innocent until proven guilty. But when rumors swirl around a particular athlete or team, sports writers need to examine all aspects thoroughly and provide their readers and viewers with as complete an understanding of the issues as is possible. Not to impugn the reputation of those who’ve been rumored about, but to help the public understand the issues fully. What I would like to see is sports writers who will dig deeply into a story, even if that means it’s a negative story about a popular athlete. I certainly wouldn’t want an anti-doping system that’s based on the suspicions of fans or journalists, because those suspicions may turn out to be biased or wrong. What we have as an anti-doping system is much better than that already, even if there are things that could be done better.
Jean,
She screwed up. She loaded a tainted blank in to the CRMS machine. You just failed to catch it. You’re part of the cover-up, and you wiped the hard drive. Congratulations. Now you’ll never admit your own truth.
Re-Read Baker’s comments, and the comments of the professor at the NCIS lab. Your girl was too cross-eyed, her manager was negligent, and your Director realized what a mess he had on his hands. Too bad you can’t FIRE ANYONE in France for incompetence. That’s what led to the Riots back at the beginning of the 2000’s…. REMEMBER?
Richard, I’ll ask you for a favor. You are making a series of good points. As I agree with much of what you write, I have a personal interest in your making your points most effectively. You will do so if you attack Jean C’s positions without attacking Jean C personally.
Jean C and I have been trading comments for years now, and while we don’t often agree, I respect his opinion. He has proven his integrity here.
As for France … when was the last time you visited? Last time I was in Paris, I noted not just the food and the wine but how well the public transit works, how the auto traffic is manageable, how you can pick up a bicycle at point A and leave it at point B. Their nuclear reactors do not blow up like ours did. We in the U.S. should be this competent. And as it turned out, their anti-doping lab was correct when they accused Landis of doping, even if they did make a number of mistakes along the way.