USADA - Armstrong

[PedalPusher]

It been posted here before, but Michael McCann outlines the arguments for and against the state actor idea.
http://sportsillustrated.cnn.com/2012/writers/michael_mccann/07/09/Lance-Armstrong-sues-USADA/index.html

In Armstrong's view, although USADA is nominally a nongovernmental entity, it operates as a state actor, meaning it acts on behalf of the government. If USADA is a state actor, it would be required to provide athletes with constitutional safeguards. Armstrong has a point that the quasi-criminal nature of USADA's proceedings may command greater due process. USADA is a creation of the federal government, receives funding from the federal government and regulates athletes on behalf of the federal government. As Armstrong detailed in his complaint, USADA also investigated him with cooperation from the Justice Department and FBI. Logically, if USADA sounds like the government, talks like the government and gets funding from the government, there is a good argument that it is the government.

He also talk about the stakes for USADA if it is declared a state actor.

The problem is, the press suck at research in today's world. USADA gets PART of it's funding from a grant from the office of drug control policy, the rest of it's funding is from contracts for testing from sports bodies.

Armstrong says they investigated him, USADA said their evidence was not from the GJ investigation in their charging information. Sharing information with government and sanctioning bodies is not a state actor. They were not acting on behalf of the government. They were not acting in place of the government.

There is nothing quasi criminal about the proceedings, typical arbitration proceedings. He face no jail time.

It regulates doping on behalf of the USOC and the NGBs that fall under it. The Ted Stevens Act establishes USOC as the overseeing body. The Ted Stevens Olympic and Amateur Sports Act is a United States law (codified at 36 U.S.C. Sec. 220501 et seq. of the United States Code) that charters and grants monopoly status to the United States Olympic Committee, and specifies requirements for its member national governing bodies for individual sports.

Another clueless reporter carrying the water....

 

[MarkvW]

The problem with posters like College are that for example they are still going on about if USADA came to search my house yada yada. Debunkt and discredited already - too far behind the ball. College, it would probably be best for you to just walk away so others can have a rational discussion please. I am enjoying the discourse and you just throw a wrench in the works. Thanks to God that Polish is banned for now at least.

Thank you for not quoting college.

 

[Maxiton]

"I read Armstrong's new complaint and actually thought it had merit. It might have had more merit had it been submitted the first time, but still it makes some strong arguments.

I mean, as I read it he is stating essentially that USADA doesn't have jurisdiction for various reasons, and, further (this assertion notwithstanding), that he is being asked to submit his entire professional life, past, present, and future, as well as his livelihood, to an administrative procedure that was not designed for this purpose, but rather was designed for adjudicating positive doping tests."



The fact is the combination of laws in the US has resulted in the USOC and National Governing Bodies agreeing to an exclusive administrative law jurisdictional process to resolve doping issues, that has been approved by Congress. USOC recommended the creation of USADA and after it came into being contracted with USADA to not just deal with positive dope tests but to also investigate doping infractions. Therefore there does not have to be a positive test for USADA to iniate an investigation.

The rules used at such administrative hearings are ones formualted between the American Association of Arbitration and USADA. Those rules do address LA's complaints about getting disclosure, witness statements, subpoening witnesses etc. But they are discretionary rules and LA may have a good argument they do not fulfill the requirements of the Constitution.

It should make for an interesting case before the US courts for legal junkies, before we even get to an actual administrative hearing.

I don't think there is any chance at all of the court finding any merit in the state actor claim. It would open a flood gate of consequences for thousands of organizations that receive government funding. Every doper with a lawyer and money to burn has tried some version of this against anti-doping authorities who busted them.

Vino tried to claim that his sanctions for doping where a “a clear violation of human rights.”



I expect Armstrong will have about a much success as Vino.

I think Armstrong is resigned to the outcome and is just trying to spin it for the public that it was all an unfair witch hunt by a government bureaucrat. He needs to limit the damage to the brand so the cash machine doesn't implode. However he is used to being able to intimidate people in the cycling world and being able to have his way with corrupt UCI officials. He is way outside his bubble now. The courts are not having any patience for his antics.

Doesn't the state actor claim in this case go beyond mere government funding and formal ties. I mean, in how many other of its cases do people from USADA accompany agents from actual government agencies in deposing witnesses and examining evidence around the world?

An FBI agent, an IRS agent, and a USADA person walk into a bar . . . only, they're not there for a drink, but rather to interview a witness. How many such joint interviews have to take place, in how many locales and over what period of time, before the only non-government investigator in the group is said to be acting as a de facto government agent? How many meetings between USADA persons and government agents, prior to and subsequent to these various interviews and trips abroad, have to occur before USADA is thought to have so intertwined itself with the government in this case that it now effectively represents the government and its interests?

In view of the great likelihood that USADA action, if it prevails, will open Armstrong to criminal prosecution from the government; and in view of the fact that agents of the government have been party to much of the USADA investigation, and that in fact said investigation has been conducted jointly by various government actors, among which were persons from USADA; the only reasonable conclusion is that in this case USADA has been comporting itself as a government actor.

How does that sound?

 

[MarkvW]

The problem is, the press suck at research in today's world. USADA gets PART of it's funding from a grant from the office of drug control policy, the rest of it's funding is from contracts for testing from sports bodies.

Armstrong says they investigated him, USADA said their evidence was not from the GJ investigation in their charging information. Sharing information with government and sanctioning bodies is not a state actor. They were not acting on behalf of the government. They were not acting in place of the government.

There is nothing quasi criminal about the proceedings, typical arbitration proceedings. He face no jail time.

It regulates doping on behalf of the USOC and the NGBs that fall under it. The Ted Stevens Act establishes USOC as the overseeing body. The Ted Stevens Olympic and Amateur Sports Act is a United States law (codified at 36 U.S.C. Sec. 220501 et seq. of the United States Code) that charters and grants monopoly status to the United States Olympic Committee, and specifies requirements for its member national governing bodies for individual sports.

Another clueless reporter carrying the water....

I do not think that USADA regulates professional cycling that is unrelated to the olympic movement, under the authority of Ted Stevens.

As far as I can tell USADA regulates pro cycling that is unrelated to the Olympic Movement only pursuant to a contract between USADA and USA Cycling.

 

[Deagol]

I doubt he did in this case.

How much did he give Tommy D's ex-wife to keep her mouth shut?

Which brings up the point that TD probably knows something, and therefore could be one of the ten ?

 

[KingsMountain]

The problem is, the press suck at research in today's world. <snip>
Another clueless reporter carrying the water....

I recommend viewing McCann's resume, before calling him clueless or a "reporter".

 

[MacRoadie]

BOOM!

Here you go Paddie:

WADA statement on Mutual Recognition

In the case of members of the athlete entourage that can happen in a number of ways, as the IOC and other international federations have demonstrated in the past by withdrawing accreditation or permission to be involved in events, refusing team membership or participation, and removing the right to be part of a medical or coaching commission for itself or National Federations

Seems WADA has USADA's back...

 

[PedalPusher]

Doesn't the state actor claim in this case go beyond mere government funding and formal ties. I mean, in how many other of its cases do people from USADA accompany agents from actual government agencies in deposing witnesses and examining evidence around the world?

An FBI agent, an IRS agent, and a USADA person walk into a bar . . . only, they're not there for a drink, but rather to interview a witness. How many such joint interviews have to take place, in how many locales and over what period of time, before the only non-government investigator in the group is said to be acting as a de facto government agent? How many meetings between USADA persons and government agents, prior to and subsequent to these various interviews and trips abroad, have to occur before USADA is thought to have so intertwined itself with the government in this case that it now effectively represents the government and its interests?

In view of the great likelihood that USADA action, if it prevails, will open Armstrong to criminal prosecution from the government; and in view of the fact that agents of the government have been party to much of the USADA investigation, and that in fact said investigation has been conducted jointly by various government actors, among which were persons from USADA; the only reasonable conclusion is that in this case USADA has been comporting itself as a government actor.

How does that sound?

There are a number of situations where the United States Supreme Court has recognized the conduct of individuals or private organizations to be "state action," and therefore subject to provisions of the Constitution such as Equal Protection, Due Process, or the First Amendment. The Supreme Court has held the following:

1. Merely opening up a business to the public is not state action, but the performance of a "public function" (a function that has been traditionally and exclusively performed by the state) is state action (Marsh v. Alabama, 326 U.S. 501 (1946)

2. If an individual or organization merely enters into a contract or asserts a contractual right outside of court is it not state action, but if an individual or organization sues to judicially enforce a contractual right it is state action (Shelley v. Kraemer, 334 U.S. 1 (1948)

3. If the government merely acquiesces in the performance of an act by a private individual or organization it is not state action, but if the government coerces, influences, or encourages the performance of the act, it is state action (Rendall-Baker v. Kohn, 457 U.S. 830 (1982)

4. If the government merely enters into a contract with an individual or organization for the goods or services, the actions of the private party are not state action, but if the government and the private party enter into a “joint enterprise” or a “symbiotic relationship” with each other it is state action (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)

5. If government agencies are simply members of a private organization, the actions of the organization are not state action, but if the government is "pervasively entwined" with the leadership of the private organization, the acts of the organization are state action (Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971 (2002).

 

[BYOP88]

Which brings up the point that TD probably knows something, and therefore could be one of the ten ?

Didn't Lance want to pass the baton on to Tommy D. Remember the ToG in 2005, when Tommy D won the stage and Lance rolled in with Floyd and pointed to the clock.

 

[Kender]

USADA continues unless the federal judge stops it by court order. The complaint stops nothing. Look at the complaint as a ticket into the courtroom. The complaint gives you permission to ask the judge to order stuff. If your complaint gets dismissed, then you lose your ticket to ask for stuff. That is where USADA is going next. USADA wants the judge to revoke Lance's ticket into his court.

If USADA loses the motion to dismiss, then Lance gets to ask for orders. The judge decides if the facts warrant the issuance of the orders. If nobody is arguing about what the facts are, the judge just figures out whether the order should enter. It people are arguing about facts that matter in the case, then the judge has to have those facts figured out before he enters his order. In that case, sometimes the facts are determined by the judge; other times by a jury. When it comes to requests for injunctions (things like "Make 'em stop!"), usually the judge decides disputed factual questions, but not always.

oh right. so in all likelyhood if the complaint is upheld LA's lawyers will ask for a permanent injunction on USADA.

that would mean USADA would have to fight the injunction in ferderal court? (which kinda brings me back to my earlier comment on trial with jury, or at least a hearing where evidence is presented)

 

[college]

Which brings up the point that TD probably knows something, and therefore could be one of the ten ?

I think it is safe to speculate that one of the ten is Tommy.

Tommy and his business with his ex-wife are off limits for me, I would not like to dig up sore personal subjects but I am sure the echo chamber around here does not mind to bring it up.

In the end once the facts are known to the judge usada will be ruled as in fact acted as a state actor etc. That would be my opinion.

 

[Kender]

So...

with Celaya going to arbitration, and Armstrong having been granted his extention while he bounces around the federal courts looking for a pouch to hide in...

Will USADA either

a) press ahead with arbitration as soon as possible, or
b) wait until after the 30 extention before setting a date

 

[Ninety5rpm]

The problem with posters like College are that for example they are still going on about if USADA came to search my house yada yada. Debunkt and discredited already - too far behind the ball. College, it would probably be best for you to just walk away so others can have a rational discussion please. I am enjoying the discourse and you just throw a wrench in the works. Thanks to God that Polish is banned for now at least.

I don't think College ever brought up or discussed "if USADA came to search my house".

Generally, with very few exceptions, the worst of which he corrected, his posts have not been unreasonable. Most importantly, they represent what many others are thinking, so it's good to discuss that here.

 

[Maxiton]

There are a number of situations where the United States Supreme Court has recognized the conduct of individuals or private organizations to be "state action," and therefore subject to provisions of the Constitution such as Equal Protection, Due Process, or the First Amendment. The Supreme Court has held the following:

1. Merely opening up a business to the public is not state action, but the performance of a "public function" (a function that has been traditionally and exclusively performed by the state) is state action (Marsh v. Alabama, 326 U.S. 501 (1946)

2. If an individual or organization merely enters into a contract or asserts a contractual right outside of court is it not state action, but if an individual or organization sues to judicially enforce a contractual right it is state action (Shelley v. Kraemer, 334 U.S. 1 (1948)

3. If the government merely acquiesces in the performance of an act by a private individual or organization it is not state action, but if the government coerces, influences, or encourages the performance of the act, it is state action (Rendall-Baker v. Kohn, 457 U.S. 830 (1982)

4. If the government merely enters into a contract with an individual or organization for the goods or services, the actions of the private party are not state action, but if the government and the private party enter into a “joint enterprise” or a “symbiotic relationship” with each other it is state action (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)

5. If government agencies are simply members of a private organization, the actions of the organization are not state action, but if the government is "pervasively entwined" with the leadership of the private organization, the acts of the organization are state action (Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971 (2002).

Thank you for that. So there you go: As I read it, USADA is a state actor in this case under 3, 4, and 5 above.

"3. If the government merely acquiesces in the performance of an act by a private individual or organization it is not state action, but if the government coerces, influences, or encourages the performance of the act, it is state action (Rendall-Baker v. Kohn, 457 U.S. 830 (1982)"

The mere presence of government investigators in an interview, nevermind a trip abroad, would tend to encourage and passively influence USADA and its investigator(s).

"4. If the government merely enters into a contract with an individual or organization for the goods or services, the actions of the private party are not state action, but if the government and the private party enter into a “joint enterprise” or a “symbiotic relationship” with each other it is state action (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)"

It's hard to see how joint interviews and trips abroad would not constitute a "joint enterprise", even where one party was there merely as an observer, or how it would not create a "symbiotic relationship", where the parties had interests in common.

"5. If government agencies are simply members of a private organization, the actions of the organization are not state action, but if the government is "pervasively entwined" with the leadership of the private organization, the acts of the organization are state action (Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971 (2002)."

If Travis Tygart has been consulting with, or even merely observing on a regular basis, these various interviews, it should be pretty easy to make the case for "pervasively intertwined".

 

[Deagol]

Didn't Lance want to pass the baton on to Tommy D. Remember the ToG in 2005, when Tommy D won the stage and Lance rolled in with Floyd and pointed to the clock.

Yes, I remember watching that stage. Say what you will about Tom D, but he has never said anything negative (to my knowledge) against LA in public. Impossible to paint him as a bitter jealous ex-team mate. Heck, even Tyler didn't come across as bitter or jealous, just scared... scared of saying anything about Lance.

 

[patricknd]

Thank you for not quoting college.

shame that conflicting opinions pain you

 

[Deagol]

I don't think College ever brought up or discussed "if USADA came to search my house".
....

See post #4993,

If usada were to try and come into my house looking for information or evidence to incriminate a friend of mine then I would tell them to get lost. Maybe not in those specific words because I would use some other more appropriate curse words but I think it would get the point across.....

 

[ggusta]

Out of curiosity, and I ask this seriously, just how many witnesses saying the same thing would be enough? 20? 40?

He should've accepted a deal and folded a long time ago. As it is, he's painted himself into a corner with no way out. The dumbest thing he's done and will do is to try and fight all of this.

In Lance-world and his robotic groupies, the only witness that matters is Lance. He could say the sky is pink polka dots while 7 billion people say it's blue. As far as he's concerned, that's just 7 billion liars who hate him.

 

[Weapons of @ss Destruction]

BOOM!

Here you go Paddie:

WADA statement on Mutual Recognition

Seems WADA has USADA's back...

McQuaid and Armstrong seem to operate by the same playbook, which is to spout off about what they want, rather than what actually is. Armstrong is looking out for #1, obviously, but McQuaid seems to forget he is entrusted with a position of responsibility that goes beyond his personal whims. Nothing that hasn't been readily acknowledged around here since forever though.

 

[PedalPusher]

Thank you for that. So there you go: As I read it, USADA is a state actor in this case under 3, 4, and 5 above.

"3. If the government merely acquiesces in the performance of an act by a private individual or organization it is not state action, but if the government coerces, influences, or encourages the performance of the act, it is state action (Rendall-Baker v. Kohn, 457 U.S. 830 (1982)"

The mere presence of government investigators in an interview, nevermind a trip abroad, would tend to encourage and passively influence USADA and its investigator(s).

"4. If the government merely enters into a contract with an individual or organization for the goods or services, the actions of the private party are not state action, but if the government and the private party enter into a “joint enterprise” or a “symbiotic relationship” with each other it is state action (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)"

It's hard to see how joint interviews and trips abroad would not constitute a "joint enterprise", even where one party was there merely as an observer, or how it would not create a "symbiotic relationship", where the parties had interests in common.

"5. If government agencies are simply members of a private organization, the actions of the organization are not state action, but if the government is "pervasively entwined" with the leadership of the private organization, the acts of the organization are state action (Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971 (2002)."

If Travis Tygart has been consulting with, or even merely observing on a regular basis, these various interviews, it should be pretty easy to make the case for "pervasively intertwined".

Um, not quite, when I have time I will post the actual case law and opinions later when I have time...

 

[Weapons of @ss Destruction]

In the end once the facts are known to the judge usada will be ruled as in fact acted as a state actor etc. That would be my opinion.

Well geez, it's all settled then. We can tell the whole lot to shut down all the legal mumbo jumbo now. When Judge College speaks, we listen.

 

[Ninety5rpm]

See post #4993,

Okay, but that was just a reasonable response to Merckx index bringing up the issue.

I don't understand cathulu's complaint about College with respect to this. Cathulu wrote "Debunkt [sic] and discredited already"... but that applies to Merckx's post, not College's response.

 

[Jack Ruby]

So...

with Celaya going to arbitration, and Armstrong having been granted his extention while he bounces around the federal courts looking for a pouch to hide in...

Will USADA either

a) press ahead with arbitration as soon as possible, or
b) wait until after the 30 extention before setting a date

My understanding is if Armstrong had chosen arbitration it would have taken place in late October or November. Would expect the same for Celaya.

 

[MarkvW]

oh right. so in all likelyhood if the complaint is upheld LA's lawyers will ask for a permanent injunction on USADA.

that would mean USADA would have to fight the injunction in ferderal court? (which kinda brings me back to my earlier comment on trial with jury, or at least a hearing where evidence is presented)

Yeah, you've got it. Only a hearing with witnesses if facts are disputed. You can see why this might become a pandora's box for Lance.

If Lance is able to make an issue of the investigation in federal court (and USADA will fight this tooth and nail), then who knows what comes out...

 

[woodburn]

Interesting possibility with the extension. Will USADA delay the cases against Bruyneel and Celaya to coincide with Armstrong?

If not, then the witnesses (Tyler, Floyd, Levi, George, etc.) that likely would testify in those cases would become public before Armstrong's arbitration. Would give him the opportunity to do the kind of intimidation USADA seems to be worried out.