USADA - Armstrong

[MarkvW]

That's why smart folks must drop out: Sooner or later they'd find out Big*Gov not only taxes you to near death, but on top of that; All those losers who you've helped sustain, are only alive in order to make your sucessful life miserable, once they've gotten all your teardrops, sweat, and blood. Thanks God we still have Obbie to fix the mess left up!

When you take out big government, though, who is going to protect you from corporate "leaders" like Armstrong?

 

[red_flanders]

Let's move away from politics, thank you.

 

[Jeremiah]

Let's move away from politics, thank you.

Because it and Armstrong's connections have NOTHING to do with the sanctions (or lack of) he receives?

 

[thehog]

There are two possibilities: a) UCI covered up a suspicious passport; b) USADA is trying to make a case out of a suspicious passport that was already vetted by the expert panel. I think 2) is much more likely.

Roughly, there are three levels of passports: 1) a normal one that falls within the acceptable parameters; 2) a suspicious one that trips the algorithms; on a graph, this is observed as a plot that extends above or below the baseline plots; 3) a suspicious plot that is examined by experts in more detail, and concluded to indicate doping.

Most likely, LA’s blood values fell in the 2) range. Either UCI ignored it (a), or they passed them on to the expert panel, which concluded that they were not sanctionable (b). My understanding is that most suspicious passports are in fact rejected as evidence of doping by the panel, in an efforty to minimize false positives. Of course, experts may disagree, and USADA may have a panel of its own experts that has concluded LA’s values are sanctionable. This would be really interesting, but in that case the values would still most likely be supporting evidence, not standalone evidence of doping.



It wouldn’t be a protease, as the amino acid sequence of synthetic and natural are the same. It might be a sialidase, which selectively degrades the carbohydrate residues on synthetic, but I doubt very much that there is an enzyme that is selective for one and not the other. It could be an enzyme directed to one of the newer synthetic EPOs, though, that removes the residues specific to it.



Nothing suspicious about that. Many urine samples show no detectable levels of natural EPO.

McQuaid had stated very early on it took sometime before the first case was raised because he was worried about the appeals process. If the UCI acted too hastily at the first sign of abnormalities it could open them up for trouble. What he was really saying was the bigger name athletes could afford to take their cases through the Federation and then on to CAS because they could afford to do so. The lower ranked athletes probably don’t have this recourse. Armstrong was never going to be picked up on Passport alone. The UCI even if they wanted to would never win a case against him in that fashion.

What will get questioned is why didn’t they do with what they did with Dekker. The panel noted an abnormality. It wasn’t high enough to warrant a sanction but enough for them to go back and retest other samples from the time thus getting the “positive test”. That’s probably how they could have snared Armstrong in 09 and 2010. Test his Flanders samples and I think you’d have your positive.

One final statement; If the expert panel recommend a case for sanction who then makes the decision to proceed? The panel or the UCI?

 

[Oldman]

When you take out big government, though, who is going to protect you from corporate "leaders" like Armstrong?

The reality is USADA is part of the USOC's window dressing of enforcement. This sustains the image of the Olympics as the best and fairest representation of athletes from 'Merica. NBC Sports pays Billion$$, with a capital B to broadcast this show. While we may want to see extradorinary performances at the Games; the sponsors know that the image must be "clean" in appearance or their advertising dollars could be misspent. Witness how much success Michael Ball/Rock Racing had with his bad boyz team...
Anyway-that and what has been noted about major drug companies concern over cheap and dangerous imitations of their product. They can't afford to pull product from the shelves if someone gets poisoned as that costs Billion$$, with a B. That's more than Lance and Thom are willing to put up so USADA will be around to serve that need.

 

[Jeremiah]

The reality is USADA is part of the USOC's window dressing of enforcement. This sustains the image of the Olympics as the best and fairest representation of athletes from 'Merica. NBC Sports pays Billion$$, with a capital B to broadcast this show. While we may want to see extradorinary performances at the Games; the sponsors know that the image must be "clean" in appearance or their advertising dollars could be misspent. Witness how much success Michael Ball/Rock Racing had with his bad boyz team...
Anyway-that and what has been noted about major drug companies concern over cheap and dangerous imitations of their product. They can't afford to pull product from the shelves if someone gets poisoned as that costs Billion$$, with a B. That's more than Lance and Thom are willing to put up so USADA will be around to serve that need.

Good post. You have to admit though, LA has done a great job leveraging his icon status.

The powers are tied up in knots because LA has become an integral part of the fabric of the bs they're selling.

Armstrong could threaten to completely expose the sham that is sports like cycling and athletics and most other Olympic sports.

As for the drug companies, they should be proud of Armstrong as to the effectiveness of their products.

Should be a great show.

 

[MarkvW]

The reality is USADA is part of the USOC's window dressing of enforcement. This sustains the image of the Olympics as the best and fairest representation of athletes from 'Merica. NBC Sports pays Billion$$, with a capital B to broadcast this show. While we may want to see extradorinary performances at the Games; the sponsors know that the image must be "clean" in appearance or their advertising dollars could be misspent. Witness how much success Michael Ball/Rock Racing had with his bad boyz team...
Anyway-that and what has been noted about major drug companies concern over cheap and dangerous imitations of their product. They can't afford to pull product from the shelves if someone gets poisoned as that costs Billion$$, with a B. That's more than Lance and Thom are willing to put up so USADA will be around to serve that need.

Does USADA's involvement with USA Cycling have anything to do with the USOC? If so, what?

The reason that I'm asking is that if USADA is acting as an agent of the USOC in the Armstrong case, then the USOC has "exclusive" jurisdiction over antidoping/eligibility and the federal courts (the Trevor Graham case) and state courts (Mary Doper Slaney) have no jurisdiction. This makes the threat of a lawsuit all bs.

But I don't know if there is a USOC connection.

 

[MarkvW]

It appears from what I've read that USA Cycling is obligated to contract with USADA and apply the WADA Code because of a series of agreements that USA Cycling has with the USOC. That should spell doom for any chance for Lance to abort or circumvent the USADA process by filing a lawsuit. Nobody can challenge doping eligibility decisions of the USOC in court.

And if that's not enough, by signing his license Lance agreed that jurisdiction for antidoping was solely with the UCI.

I don't see how the hearing process gets derailed by a court.

And Lance does NOT want a hearing! Some reporters need to ask Lance that question:

"Lance, now that charges have brought, do you welcome an open hearing where you can present evidence to clear your name?"

I'd love to see him deal with that!

 

[TechnicalDescent]

And Lance does NOT want a hearing! Some reporters need to ask Lance that question:

"Lance, now that charges have brought, do you welcome an open hearing where you can present evidence to clear your name?"

I'd love to see him deal with that!

I tend to disagree. He doesn't actually have to present any evidence. He just has to deny the accusations. What a hearing will do is give a chance for his lawyers to cross examine the witnesses. It would be interesting to see how many of them take up the chance to throw their career's away now they can't be anonymous anymore. It's the least they should be required to do if they are going to send Armstrong down for the same thing.

 

[red_flanders]

I tend to disagree. He doesn't actually have to present any evidence. He just has to deny the accusations. What a hearing will do is give a chance for his lawyers to cross examine the witnesses. It would be interesting to see how many of them take up the chance to throw their career's away now they can't be anonymous anymore. It's the least they should be required to do if they are going to send Armstrong down for the same thing.

Could not disagree more. A public hearing will allow the massive details into the team's doping into the larger public consciousness, something he simply can't afford, it would end his brand. Deny is the only option, and keep the evidence as quiet as possible.

I would be stunned if he wanted this sordid mess made as public as it could be. There will be reams of financial evidence and witness after witness–It will be clear just how pervasive and large a doping program it was. It's not just Armstrong being investigated here, it is the entire support system.

The last thing he wants is a public outing of all the evidence.

 

[Merckx index]

This happened long before USADA was formed, but it may still have some relevance:

Butch Reynolds was suspended for two years by the IAAF for alleged illegal drug use in 1990. This was the start of a long legal fight, after which the US Supreme Court ordered the United States Olympic Committee to allow him to participate in the 1992 American Olympic trials, after finding the testing procedures were flawed from the beginning. This injunction brought American law and equity into conflict with the rules of International Olympic Committee (IOC) and International Association of Athletics Federations (IAAF), which prohibited suspended athletes from competing. In fact, the IAAF threatened to suspend any athlete that competed against Butch Reynolds. The American Olympic trial 400 metres heats were postponed for four days, but the IAAF finally backed down. Reynolds finished 5th in the trials, and qualified for a place as a substitute on the American 4 x 400 metres relay team. However, the IAAF (which had administered the flawed test) then banned him from competing in the 1992 Olympics.

That same year Reynolds also won a libel suit against the IAAF, and was awarded $27.3 million in damages. A federal appeals panel later overturned the verdict on jurisdictional grounds.

http://www.mastersathletics.net/Harry-Butch-Reynolds-400-metres-Dash-Tra.755.0.html

Last week, another poster put up a link to an interesting article arguing that USADA cannot be considered a “state actor”, roughly, a government agency. This seems to be the key issue that LA would have to confront if he wanted to challenge USADA right to proceed against him. If USADA is not a state actor, that it does not have to adhere to due process. This is basically the argument that if you freely decide to be licensed by a cycling organization, you agree to be subjected to testing and sanction by USADA, and you have to operate under their rules. This is different from due process, which basically views USADA and the defendant as equals in all respects, and subject only to rules that transcend either of them.

I found another article that tries to challenge this, i.e., to argue that USADA is a state actor:

http://law.wustl.edu/Journal/22/p645McCaffrey.pdf

One of the key USADA rules that this argument would undermine is the comfortable satisfaction criterion, as opposed to the criminal standard of beyond a reasonable doubt. Obviously, the latter standard would make it easier for some athletes to beat a doping charge. The author argues that a doping violation is treated in most respects like a criminal proceeding, and therefore should be held to the higher standard:

For due process protections to apply, the athlete must show that the USADA is a state actor, and that its proceedings are not merely private conduct.27 Despite a prior Supreme Court holding that the USOC is not a state actor,28 the premise of this Note is that current USADA doping adjudications using the “comfortable satisfaction” standard of proof may fairly be characterized as state action.

The loss of this particular procedural protection may strike the athlete as especially unfair, given the similarities between the criminal justice system and the USADA’s “Results Management.”100 Doping adjudications are part of an accusatorial system, with proscribed activities and punishments.101 A stigma attaches to an athlete accused of doping, similar to that endured by many criminal defendants.102 Many of the Sixth Amendment guarantees given to the accused in a criminal prosecution are also included in the USOC’s “Due Process Checklist.

He then examines some of the arguments used to conclude that USADA is not a state actor:

The USADA proclaims its independence from the USOC,47 but the nature of their relationship leads some commentators to cast doubt on this assertion.

He discusses the key case that serves as the precedent for non-analytical positives used currently against LA:

A major victory for the USADA came in December 2004 when sprinter Michelle Collins contested the imposition of sanctions based solely upon non-analytical positives and lost.76 Thus it appears that a positive sample, the “smoking gun” of doping cases, is no longer a prerequisite to a USADA prosecution.

Concludes:

the USADA undermines the integrity of its fight against doping by taking advantage of a nominally private character and an inadequate standard of proof.237 A level playing field will be achieved only when the USADA is classified as a state actor and held to the constitutional standards of due process.

While this appears to be a minority opinion in legal circles, I expect LA’s legal team will be pursuing it as one alternative strategy. If they could get a court to rule that USADA was a state actor, this would have major implications for all doping cases, not just LA’s.

Edit: Interesting parallels of Collins' case to LA's:

The panel determined she had participated in a doping conspiracy and used prohibited drugs including the steroid THG and the endurance-enhancing hormone EPO. USADA based its case on patterns observed from blood and urine tests Collins had in recent years, along with documents seized from BALCO by federal prosecutors and statements made by BALCO officials.

http://sports.espn.go.com/espn/wire?section=trackandfield&id=2063999

 

[thehog]

When you take out big government, though, who is going to protect you from corporate "leaders" like Armstrong?

The fact that Prop 29 failed a dismal death shows Armstrong's standing with Goverment is close to zero.

Also the public is against him. If you can't get a cigarette taxed passed in a health conscious state then everyone thinks you're a knob.

1m for Hati, 1.5m for Prop 29, 150k for planned parenthood.

It's fun to play with other peoples money.

 

[TechnicalDescent]

Could not disagree more. A public hearing will allow the massive details into the team's doping into the larger public consciousness, something he simply can't afford, it would end his brand. Deny is the only option, and keep the evidence as quiet as possible.

I would be stunned if he wanted this sordid mess made as public as it could be. There will be reams of financial evidence and witness after witness–It will be clear just how pervasive and large a doping program it was. It's not just Armstrong being investigated here, it is the entire support system.

The last thing he wants is a public outing of all the evidence.

But it already is out there in the shape of Landis and Hamilton, both of whom gave prime time confessions. If he calls the other witnesses there is a chance they may fold or at least give very apologetic accounts. That actually might help with the public. If a lot of people are saying we ALL did it, we volenteered, it's how cycling was, etc, then Armstrong doesn't look so bad.

 

[MarkvW]

Butch Reynolds's case is not very helpful to Lance. The Court of Appeals held that the feds were without jurisdiction to hear Reynolds' doping challenge because Reynolds had not exhausted his administrative remedies under the Amateur Sports Act.

IOW, you've gotta go through the USADA process before you can take your act into court.

The question is now not "Lance, did you dope?" but rather, "Lance, can the hearing be open?"

 

[MarkvW]

But it already is out there in the shape of Landis and Hamilton, both of whom gave prime time confessions. If he calls the other witnesses there is a chance they may fold or at least give very apologetic accounts. That actually might help with the public. If a lot of people are saying we ALL did it, we volenteered, it's how cycling was, etc, then Armstrong doesn't look so bad.

Yeah, like Boss Tweed doesn't look so bad because everybody in Tammany Hall was so bad!

 

[131313]

But it already is out there in the shape of Landis and Hamilton, both of whom gave prime time confessions.

Yes, but they're both previously-sanctioned athletes who have been painted as "bitter losers"; a bit tougher to do with those with no prior sanction.

If he calls the other witnesses there is a chance they may fold or at least give very apologetic accounts. That actually might help with the public. If a lot of people are saying we ALL did it, we volenteered, it's how cycling was, etc, then Armstrong doesn't look so bad.

-they may never call witnesses. Their testimony may just be submitted by affidavit. Remember, standard rules of evidence do not apply. One can claim this is "unfair", but these are the clearly-stated terms to which LA agreed, and have held up to court challenges in the past

-the argument that he "won't look to bad" would hold some water if he also admitted his own role. I imagine it'll be viewed a little differently if he continues to deny something to which everyone else has admitted. The "everyone was doing it" justification really only has a chance of working if you admit you were part of "everyone".

I don't see a public hearing being a particularly positive experience for Lance.

 

[Polish]

I don't see a public hearing being a particularly positive experience for Lance.

Not a positive experience for Lance agree.
Or a positive experience for cycling.
Not a positive experience for the USADA especially.

How is it going to look? Doper after doper after doper after doper after doper after doper after doper after doper after doper after doper + giving testimony of doping. And Lance denying.

And sweet deal after immunity after immunity after immunity after immunity after basement duty after immunity after sweet deal after book deal after immunity +.

So we have all these dopers who are not nearly as awesome as Lance testifying. Some still are recognized as olympic medalists.

What's that smell like?
Smells a lot like a Star Chamber. Wig Powder and Fancy Cologne.
Stinks actually. Stinks bad.

 

[MarkvW]

-they may never call witnesses. Their testimony may just be submitted by affidavit. Remember, standard rules of evidence do not apply. One can claim this is "unfair", but these are the clearly-stated terms to which LA agreed, and have held up to court challenges in the past

I doubt it will go that way. An. Affidavit is nowhere near as persuasive as a live person. USADA would be total fools to try this matter simply with written statements from the Posties. Maybe USADA could get away with it, but it would be stupid if they want to win.

If any tactical advantage were to be obtained by keeping the Posties out of the courtroom, then Lance would subpoena them and eliminate that advantage. If they won't show for Lance's subpoena, then their statements might not be considered.

I definitely expect live testimony.

 

[TourOfSardinia]

Not a positive experience for Lance agree.
Doper after doper after doper after doper after doper after doper after doper after doper after doper after doper + giving testimony of doping.

That's only ten Polish - surely the USADA have more than that

 

[DirtyWorks]

This is basically the argument that if you freely decide to be licensed by a cycling organization, you agree to be subjected to testing and sanction by USADA, and you have to operate under their rules.

Epic post! This agrees with my primitive, non-lawyer understanding of how USADA derives any authority. The rider essentially agrees they USADA are the authority and to abide by their processes.

I'm reminded of the old Warner Bros. cartoon where one of the characters is yelling about getting his "habeus corpuscle." It seems like that's about Wonderboy's quality of argument right now.

We had a Friday afternoon press release end the last one. Leave it up to lawyers to find some creative loophole..

 

[Microchip]

Time's a-wasting...

So is this correct?:

1. Charges are yet to be filed but may be very soon.
2. There will be a hearing in November.

November is a heckuva long time away. Too much time for LA's merry men to dig up this and that about those appointed to hear this thing. They really need to bring that date up by a couple months. Why is it so far anyway?

 

[ChewbaccaD]

But it already is out there in the shape of Landis and Hamilton, both of whom gave prime time confessions. If he calls the other witnesses there is a chance they may fold or at least give very apologetic accounts. That actually might help with the public. If a lot of people are saying we ALL did it, we volenteered, it's how cycling was, etc, then Armstrong doesn't look so bad.

And if the sanction handed down were "Lance Armstrong, you look bad" then your point would be minimally valid. However, that is not the favored sanction, so...

 

[Cal_Joe]

So is this correct?:

1. Charges are yet to be filed but may be very soon.
2. There will be a hearing in November.

November is a heckuva long time away. Too much time for LA's merry men to dig up this and that about those appointed to hear this thing. They really need to bring that date up by a couple months. Why is it so far anyway?

Actually, the USADA letter says "...you should anticipate a hearing date before November, 2012."

The USADA Protocol Annex D covers the arbitration process, including postponements.

 

[ChewbaccaD]

http://law.wustl.edu/Journal/22/p645McCaffrey.pdf

One of the key USADA rules that this argument would undermine is the comfortable satisfaction criterion, as opposed to the criminal standard of beyond a reasonable doubt. Obviously, the latter standard would make it easier for some athletes to beat a doping charge. The author argues that a doping violation is treated in most respects like a criminal proceeding, and therefore should be held to the higher standard:

He then examines some of the arguments used to conclude that USADA is not a state actor:

He discusses the key case that serves as the precedent for non-analytical positives used currently against LA:

Concludes:

While this appears to be a minority opinion in legal circles, I expect LA’s legal team will be pursuing it as one alternative strategy. If they could get a court to rule that USADA was a state actor, this would have major implications for all doping cases, not just LA’s.

First, this is an article from a law school journal. It carries about as much weight in court as toilet paper, but the author does make some interesting points. Law School Journals are excuses for professors to write.

Secondly, he addresses San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, but comes nowhere near overcoming the significant problems inherent in the argument that the USADA is a public actor within that definition, and really fumbles around the distinction in Brentwood Academy.

He opens his discussion on these points with this:

As noted earlier, an athlete’s due process suit against the USADA
is far from a guaranteed success. The law, if not directly opposed
to the athlete’s position, is at least so uncertain as to make the
outcome largely unforeseeable.

"if not directly opposed"...yea, under San Francisco Arts, it would be very hard to argue that it is anything but directly opposed. That is what he tries to argue, but he doesn't really do anything but gasp at thin reeds of arguments that have no precedent to back up his distinctions. He really flubs up the "State Compulsion Test" from SF in that he fails to recognize the fact that even if the Senate had done more than give "mere approval of or acquiescence in the initiatives", the USOC was not found to be a state actor under direct grant of rights from congress, which is NOT a feature of the USADA.

Then under Brentwood, he fails to even address the fact that the members of the TSSAA were private and PUBLIC SCHOOLS. He admits that Brentwood would not necessarily be favorable for an athlete, and I think he is being kind to his argument as the distinction between finding TSSAA to be a "state actor" and the USADA whose membership does not contain ANY governmental entity.

I wouldn't put much weight this being a good path to follow. Armstrong may try, but the battle will be significantly uphill, and as the author intimates, success is far from likely. But Lance's attorneys have to make an argument because that is what they are paid to do. But ultimately, they this argument is a loser.

 

[rhubroma]

Armstrong will win this, there are too many interests at stake.