Lance Armstrong faces some tough options, now that Judge Sam Sparks has dismissed Armstrong’s lawsuit against the US Anti-Doping Agency. Should he:
- File an appeal in the US courts?
- File an appeal at the CAS regarding the issue of jurisdiction?
- Go to arbitration over USADA’s charges?
- Walk away from the fight?
While Judge Sparks decision did include some pointed comments about USADA, the charging letter they sent to Armstrong, and a few other topics, in the end the decision did not go Lance’s way. It was a victory for the anti-doping agency, though it came with some veiled and not-so-veiled warnings to USADA to be careful that Armstrong does receive due process, access to information in a timely manner, and a fair hearing.
Of all the options available to Armstrong, the one I doubt he will consider is the last one: walking away from the case. Despite the fact that he told an interviewer earlier this year that he was done fighting, Armstrong’s legal maneuvers since he received USADA’s charging letter leave little doubt that he will continue to fight.
Armstrong has less than 48 hours to either accept the charges and punishment that USADA wishes to impose, or to challenge their case in arbitration, or file an appeal to the Fifth Circuit Court of Appeals in New Orleans and hope that USADA’s timeline can again be put on hold. No pressure, mind you.
A while back, Armstrong told Josh Eells of Men’s Journal:
“In my mind, I’m truly done,” he says … “You can interpret that however you want. But no matter what happens, I’m finished. I’m done fighting. I’ve moved on. If there are other things that arise, I’m not contesting anything. Case closed.”
What about the Tours? Would he fight for those?
“It doesn’t matter anymore,” he says again. “I don’t run around bragging, feeling like I have to be a seven-time Tour de France champion. I worked hard for those, I won seven times, and that’s great. But it’s over.”
That was before USADA sent him and five others their letter charging them with a number of anti-doping rule violations, however. And we’ve seen how he’s fought the agency since then. So forgive me if I’m a bit skeptical about Armstrong’s truly being done.
Whatever calculations he and his attorneys are making, Lance Armstrong’s choices are limited. He could appeal Judge Sparks’ ruling. But the judge’s ruling appears to suggest that Armstrong would lose at the appellate level, too. He could try to go higher, but I doubt he would even get so much as a hearing. So going that route only buys him and his lawyers some time. Eventually, the choice boils down to a decision whether to arbitrate or to walk away.
Suppose, for the sake of argument, that Armstrong chooses arbitration. In this case, he could opt for either a public hearing or to proceed behind closed doors. In comments to the previous post, I suggested that if Armstrong goes to arbitration, a closed hearing would be his better choice from a PR point of view. Doing so avoids the public release of any messy details that could harm his image with the general public.
Then again, by asking for a public hearing, Armstrong would face the charges openly, and would have a chance to present his defense publicly, allowing him to try and contradict the evidence, and by extension, years of rumors about how he managed to win seven straight Tours. That would be a huge gamble. Based on the charging letter, it’s not clear exactly what evidence USADA has turned up. Unless Armstrong and his legal team have a greater insight into USADA’s case, they won’t know just how embarrassing a public trial might or might not be until they receive more information about the specific allegations.
Going with the public option would present Armstrong with the chance to publicly confront his accusers and to discredit their stories. And it could certainly play into a narrative that he and his team might want use to portray Lance as the victim of a witch-hunt.
A public hearing would be good for the cycling community, as all of the charges and rumors would be publicly addressed. Conspirators would be named. Those participants who testify against Lance could express their remorse.
The downside for Armstrong would be that if the evidence was overwhelming, his reputation and image would suffer some very extreme and likely permanent damage. And LiveStrong, his cancer foundation, could also suffer.
Or he could just walk away. Even if USADA strips him of his seven Tour wins, how likely are they to be able to force him to return any prize money (supposedly distributed to his teammates, to thank them for their efforts by most accounts)? And would he then be forced to return the money from SCA, which he fought hard for and won in arbitration following his record-breaking sixth Tour win?
Armstrong is reportedly worth much more than he might have to return, although it would certainly put a serious dent in his pocketbook. No easy choices on this particular test question. Each one is fraught with potential peril.
Still, sometime in the next day and a half, Lance Armstrong needs to make a choice.
Is he truly done fighting, as he told Josh Eells? Does he walk away from this battle with USADA and allow them to strip him of all seven Tour titles, or does he continue on, fighting in whatever venue he chooses? Hard to say what that choice will be. Stay tuned.
One Parting Thought
As much as Armstrong’s choice is of interest right now, perhaps a bigger outcome of this case will be whether anti-doping agencies will have the right to charge foreign nationals in future proceedings. Three individuals that USADA has charged have elected to either ignore USADA’s charging letter or told the agency they would accept the sanctions (it’s not clear which is the case, based on media reports). Johan Bruyneel and one other person have chosen to go to arbitration. Although Armstrong’s jurisdiction argument failed, will that be the case with the other two? If it turns out USADA can charge the others, will that open the door for other agencies to do the same in similar circumstances? And given that none of the other five were licensed by the UCI, at least as far as I know, can any sanctions USADA imposes actually be enforced outside of the US? This case will likely set the precedent for future cases of a similar nature, not that we need any more of those.
In the current context, the widely publication of evidences like those existing in Walsh’s books will damage Lance’s reputation.
So if we add the new testimonies, Lance’s 2009 blood values, and some other facts or evidences, Lance is toasted, even if he can save some of his titles for statute limitations or other technicalities.
His behaviour will make his future if they cannot prove the corruption of UCI.
Jean,
If there’s a hearing and evidence is presented that proves corruption at the UCI, I would imagine there would be a major shakeup at the highest levels of the sport. If Armstrong were to walk away from this fight, on the other hand, I’m not so sure anything would change.
Now, that’s just silly. The only entity that can change Tour records is the Société du Tour de France, and they have approximately zero interest in doing so. Par exemple, as part of its completely irrelevant decision earlier this year, CAS decided to remove Jan Ullrich from the podium of the 2005 Tour de France. And here is how well that worked out:
http://www.letour.fr/HISTO/us/TDF/2005/index.html
Liggett junkie,
Interesting. Maybe they just haven’t gotten around to changing things? For 2006, Floyd’s name appears with a red strike-through. For 2010, the year that Alberto came up positive for clenbuterol, his name doesn’t even appear. Andy Schleck’s name appears as the winner.
Rant, the next move is easy: 5th Circuit Court of Appeals. Armstrong had to know that even if he’d won before Judge Sparks, he’d still end up in the 5th Circuit, because USADA would have appealed. So I cannot imagine how Armstrong would have planned to take a U.S. court challenge to the District Court level but no further.
The 5th Circuit has a long-established reputation as a politically conservative court. I’m not sure if that helps or hurts Armstrong.
The big question is, what does Armstrong do if (probably, when) he loses at the 5th Circuit? He can take his case to the U.S. Supreme Court, but it’s unlikely that the Supreme Court will agree to hear the case. I still haven’t heard any argument about what Armstrong could possibly gain by going to arbitration — the argument seems to be that Armstrong is so stubborn and combative that he’ll proceed with arbitration regardless of whether this is the rational thing to do.
Larry,
If Armstrong is going to file an appeal, he’s got to do it quickly. If he doesn’t stop the clock before time runs out tomorrow and doesn’t tell USADA what his choice is, arbitration-wise, I’m inclined to believe USADA will declare victory. I agree that the appeal seems like the next move he will make, but he doesn’t have much time to do so. I also expect he will lose that appeal. So at some point he will still need to answer the question: To arbitrate or not to arbitrate?
Rant, you raise an option for Armstrong that I had not previously considered: he might let USADA declare victory while he pursues his options in U.S. Court.
If the 5th Circuit or the Supreme Court finds for Armstrong, then USADA’s victory declaration is moot.
The more interesting situation is, what if USADA declares victory while Armstrong pursues his federal case, and Armstrong loses in federal court? At that point, will USADA deny Armstrong the opportunity to go to arbitration? If so, USADA will hand Armstrong the perfect opportunity to save face: Armstrong can claim that USADA never gave him the opportunity to defend himself against the charges against him! If USADA responds by saying that Armstrong failed to elect arbitration within the time provided, Armstrong can respond that he had every right to first seek remedies in the U.S. courts, and he’ll accuse USADA of using the arbitration deadline as a means to keep athletes from exercising their constitutional right to seek protection from the courts.
Also, if Tygart declares victory, Armstrong will have a different posture in federal court. In his decision, Judge Sparks told Armstrong to try out the arbitration process, and to come back to court if the process turned out to be as unfair as Armstrong predicted. In effect, Sparks was telling Armstrong that his complaint was premature (lawyers sometimes refer to this situation as a dispute not being “ripe” for resolution). If Armstrong can claim that USADA declared victory by default while Armstrong was pursuing his remedies in court, then his case may appear to be “ripe” for adjudication by the courts.
We’re speculating. But my guess is that Tygart does not want to win this case by default. My guess is that he wants to win this case on its merits. My guess is that Armstrong may decide to take his sweet time to file an appeal, and that Tygart will ultimately grant Armstrong whatever extensions of time are needed — either to allow the arbitration to happen, or to make it clear to all that Armstrong walked away from this fight because he wanted nothing to do with a hearing on the merits.
Rant: you get a few facts wrong in your rant. That is no big deal. You need to try to understand what this case is about.
Jean C.: You are right. This will snowball on Lance if things move ahead as we understand they will (nothing to do with Sparks or any silly ripeness in courts – some people are really just too full of themselves to be reasonable). What we don’t know is if there is a last card Lance can play today.
Liggett junkie: Good someone can point to the obvious and not get it wrong. Still at this moment the Société du Tour de France is not a player (and will never be a significant player) in the future of Lance Armstrong.
Yellow jerseys and yellow bracelets are the least of Armstrong’s concerns today.
Given the timeline, I think his “I will fight no more” was directed more against those who accuse him in books, newspapers, magazines, blogs, etc., rather than against official charges. Another Walsh book is unlikely to change vary many minds about Armstrong, one way or the other. If Armstrong had decided not to fight an official charges, we would not be where we are today.
If he is planning on allowing USADA to win by default while pursuing the jurisdictional issue further in court, it seems to me this would best play out for him if he also loses in the 5th Circuit. Then he could well claim to be a victim of the process. I’d the circuit court were to decide in his favor, he then would have to face charges via whatever agency the court were to determine does have jurisdiction
Ligget,
Even if ASO has not changed the result on their website, the official results are in charge by sport regulation bodies.
Lance being stripped of his titles by USADA, USADA will release that information to WADA and UCI, and charge to UCI to correct the official results.
As we can see, ASO through their website, provides unofficial results! Maybe something to change.
LauraLyn,
In the interest of accuracy, I’d like to know what factual errors I’ve made. So if you’re inclined to point them out, please do so.
I’m not sure which case you’re referring to, as far as “understanding what this case is about” goes. There are two going on here.
One is Armstrong’s lawsuit against USADA. The point of this case is to prevent USADA from prosecuting him. Any arguments his attorneys make in this regard serve that goal. We can discuss why he wants to stop the prosecution, and I think we have done a fair amount of that on the last post. But at its core, that’s what Armstrong hoped/hopes to achieve with the lawsuit. If he continues with appeals, the goal will remain the same. But with Judge Sparks’ ruling, he should understand that to do so will only buy him time. He will ultimately lose his appeals, too. So on that score, his lawsuit is a failure, because he won’t prevent USADA from continuing, he may only delay the inevitable.
And it’s not clear to me that USADA will agree to delay the case if Armstrong does appeal. Up to now, they’ve done so, but there is no guarantee that they will continue to. Perhaps they will, perhaps they won’t. If they don’t agree to another delay, Armstrong has to make a choice. Fight the charges in arbitration, or don’t fight. If he doesn’t fight, he’s effectively admitting guilt, as far as USADA goes. Armstrong could try to spin his decision to walk away from the case another way for PR purposes, but for all intents and purposes that’s what it will mean.
The other case is USADA’s prosecution of Lance and the five others. I think the reasons behind that case are pretty clear. They have enough evidence that they believe they can prove that Armstrong doped, and that he participated in a conspiracy with others to cheat, evade doping controls, perhaps buy off certain officials, and distribute performance enhancing drugs. We could say that it’s about providing justice for those who were cheated out of winning various races, too. And about showing that no matter how famous or powerful, no one gets a free pass on the rules of sport.
One interesting option I’ve seen mentioned by a couple of sports writers is the possibility that Armstrong and USADA might reach some sort of deal, which is an option I didn’t discuss in the main post. I don’t think that’s a realistic option, more that it’s a case of writers looking at the USADA case and trying to fit it into a narrative similar to typical criminal and civil trials in the US. Not going to happen. Neither side has any real incentive to deal. For Lance, any deal will be bad — even though it might be less bad than what would happen in arbitration — because somewhere in the deal would be an admission of wrongdoing, and that will stain his public image. For USADA, a deal at this stage of the game would be pretty unprecedented. Armstrong would have to be able to provide info that would land a bigger fish to even have a hope of a deal, and who’s a bigger fish than Lance? Hein Verbruggen and Pat McQuaid might qualify, I suppose…
I’m not sure when you’ll see this response, or what may happen in the interim. At this point, Armstrong has about eight or nine hours to make his choice, whatever choice it will be. (Or about 16 hours, if USADA gives him until midnight.)
I’m guessing he’s going to file an appeal to the Fifth Circuit Court. No matter what, the answer to what Armstrong’s move will be will come pretty soon.
Jean C,
Irrelevant bureaucrats can publish whatever results they like. The problem for them is that few care. Wins on the road carry much more weight & importance. Not even many Spaniards considerer OP the 2006 TdF winner. Rivals raced Floyd, not OP. (Sure, you can pretend the gutsiest move in TdF history never happened in 2006, but it did) Schleck is less than forceful with any claim over AC in 2010. Perhaps just enough to avoid embarrassing his sponsors?
So the trick for the bureaucrats (in order to make themselves sort of relevant) is to figure out how to develop a system where the published results somehow reflect what actually happened in competition.
Jeff,
If in doping land, idiot wants to praise dopers that is irrelevant for me.
Why do you dislike bureaucrats and cherrish cheaters and dopers?
You missed the point.
I am for fair competition. Doping is not to be praised, even if it were the norm and necessary for the top level at various times. I find that to be mostly the fault of the bureaucrats. It was their watch.
In having any interest in a sport/race/event land, when you can’t tell who the winner is until several years later, that is irrelevant.
In competing athlete land, when you don’t know whom to race against because competitor x,y, and/or z is going to be disqualified sometime post race for doping, that’s at best confusing and an onerous variable to have in the equation.
WADA world runs a ship badly. Metaphorically blaming the crew for the poor running of a ship is kind of gutless.
USADA probably has the right guy for the right thing. As for anything that happened before their creation, they are the wrong entity. A private not for profit tax deductible organization funded mainly by tax dollars claiming quazi prosecutorial powers is troublesome to me. More importantly, for the foreign nationals charged who are not licensed in the USA, did not work in the USA, or did not practice in the USA, USADA is definitely the wrong entity. Their over reaching in this case opens Pandora’s box for ADO’s in competing nations to go after each others’ athletes. Not very bright policy.
I think it is a legitimate question as to how to deal with results when someone is DQ’ed for doping. I have no problem with Landis being stripped of his win, but should OP have been elevated ex post facto to first? Would OP have won had Landis not competed or at least rode clean? Who knows? And how meaningful would it be to elevate the #2 from 1999 to first at this time?
Maybe we should just vacate the wins and leave it at that.
William,
I don’t see any “legal” reason to deprive Perreiro of his wins. He would probably win his case if he filed a lawsuit. Maybe a sport law like : any convincted doper cannot benefit of any exclusion.
Of course, the race would have been different without Landis, but that is the same problem everywhere : cheating damages a lot of people.
I think the biggest problem after someone’s win(s) have been taken away for doping is deciding WHO then gets the win? When Lance gets his 7 TDF titles taken away (which looks to be inevitable), who will get them? The #2 guy for each race? What if that #2 guy was cheating, and the #3 guy, and so on? A simple glance at the TDF podiums for many years now is pretty much a who’s who of dopers (not necessarily including the last few years…. maybe).
So how on earth can you figure out years after the fact who wasn’t cheating? I mean, if the guys are/have been cheating as much as it appears (and obviously getting away with it), how on earth can you figure out who was clean?
It’s certainly a pandora’s box…how do you decide the podium of a tainted race well-after the fact by giving the win to someone who didn’t actually win (and that you really have no idea if that person wasn’t also cheating)?
No wonder cycling is having such a hard time finding sponsors. The ship is sinking I’m afraid….who wants to throw lots of $$ into a team sponsorship only to find out years later that your guy(s) cheated and you are associated? The stock market seems to have better odds of payback these days, which isn’t saying much.
Rant: Only one case now. Courts are closed. Only arbitration left open. (It has always been about 5 and never about just one. UCI and Lance understood that, so did USADA. So did the good judge.)
Jeff: you and USADA have a lot more in common than you think. What is your alternative? WADA is not gutless. Not in this case. (No one cares who gets or doesn’t get the TdF titles. That was a Lance line. Wake up.)
William: There is no USADA default route open. Again, no more courts to play in before arbitration. No arbitration, case closed.
Just a few more hours folks. Keep up the good discussion.
An interesting read over at Bicycling:
http://www.bicycling.com/garmin-insider/featured-stories/jonathan-vaughters-talks-doping-reform?page=0,0
Whatever you think of Vaughters and his admission, there is some interesting details in the full transcript.
USADA, for all its flaws and the stacked deck it is blessed with, is the appropriate agency to go after LA for analytical transgressions. WADA/USADA were not set up for, nor are they properly equipped to decide non analytical issues, unless the subject lays down and fesses up. The caveat being, USADA has no business being involved in issues that happened prior to its creation.
USADA certainly does not have any business issuing a ban to foreign doctors, doping docs or not, unless caught red handed on USA soil. This sort of over reaching lunacy clearly opens the door for competing nations, which occasionally have grudges, to go after one anthers athletes, coaches, managers, and doctors. Call it an extension of “Results Management” if you like. WADA, the home office, would put a stop to the international gerrymandering, if its leaders had the stones.
Jean C and I will probably need to once again agree to disagree. He seems to find fault primarily with the athletes for succumbing to doping. I find fault with the various alphabet soup organizations for creating a system where athletes often had to cheat to compete. When the the soup finally did decide to crack down (not in the interest of fair competition or for the health of the athletes btw, but rather to avoid bad press to save their own kingdom and bank accounts), they attacked the easy targets (athletes) and largely gave a pass to those who pressured, supplied, and later spit the athletes out. Further, many of their regulations, scoring, and qualifying systems encouraged doping.
(If you don’t get on a program like the other teams, we won’t win enough to gain points to be invited to the big races. No wins, no points, no big races, no sponsors, no team, no job. The team folds, your contract is worth the paper it’s printed on. Just ask Floyd, re: the Mercury debacle)
The bureaucracy will get a passing grade when the fans who are left gain confidence that wins on the road, field, track, pool, course…… are in fact wins. It’s an uphill battle. They could have helped themselves many years ago by providing a real incentive for doping athletes to come clean and compete clean rather than the scorched earth policy they chose to employ.
Back to LA, no idea how he’ll proceed. Several options. It would be interesting to know if LA has been provided with the documentation USADA was admonished for in Judge Sparks’ opinion?
Perhaps LauraLyn needs to wake up. There are more options for LA than she imagines.
Jeff: More than enough imagination to go around here. Reality is more interesting to me.
There is indeed more than one option:
1. Arbitrate (still the most likely possibility at this hour)
2. A confession (negotiated with USADA)
If you have another (real, not imaginary) option, please share.
The reality is you may have to eat your words.
Time will tell.
Another reality is you imagine yourself above your pay grade.
There are several posters here smarter and more informed than either you or me. Just saying…..
Jeff: Agree.
Perhaps just change “several posters” to “all posters” (and drop the “or me”).
Thank you for this true statement of reality.
Surprise, surprise: he folded.
http://espn.go.com/olympics/cycling/story/_/id/8298135/lance-armstrong-fight-usada-charges-used-performance-enhancing-drugs-unprecedented-cycling-career
Read into it what you will.
I find it amazing how far USADA has been allowed to reach with their charges, and no other ADA or sporting organization has pushed back. I think Jeff stated this all very well. The ramifications are huge.
LauraLyn, how long have you been honing your axe? A google search suggests you appear to have been of late a noticeably prolific (and IMO needlessly caustic) anti-Armstrong poster in multiple forums. What did Armstrong, or his associates, do to piss you off? Whatever it was, it seems the cut was deep and you’re still hurting. It’d suggest its time you considered getting past this and find a way to heal. Publishing all your pain out on the internet isn’t going to influence the course of events, or likely the way people feel about Armstrong. Just sayin’
While I’m neutral on this whole USADA-Armstrong affair (I find it interesting from a political, legal and process view-point), I don’t think Armstrong is done and out yet. I think he’ll be back in court sooner than you can say “Bob’s your uncle”.
And Rant, keep up the good work!
Somewhere in that little lone-star-state brain of his he knows he cheated. Armstrong is a fucking bully. The UCI and the USADA are in a legal fight using tax-paying money.
Scott Goldstein Windsor, Ontario, CANADA
Hamilton’s book is not a bunch of bullshit. Lance has lied too much and to too many people. He epo-ed his want to seven Tout titles and millions of dollars. He got a way with it. How he can sleep at night is a queation that has bedeviled me for years he tested positive for EPO at the Tour of Switzerland and had the results vanish after he and his powerful plalenx of friend put in a visit to the UCI. Using these drugs may make his cancer return one day–i hope to God it doesn’t.
Scott Goldstein