USADA - Armstrong

[spetsa]

Sorry Susan, I replied to a post while caching up on the thread, before I came across your warning.

 

[Cimacoppi49]

Somewhere along the lines in this thread the "due process" claim seems to have been distilled to an issue of whether or not USADA is a state actor. That ignores 2/3 of the due process analysis. The Constitution guarantees U.S. Citizens (i.e., ONLY Lance in this case, none of the others charged, which is part of why a decision in Lance's case likely has no bearing on Bruyneel's case and likely one reason why Bruyneel and LA didn't file this jointly) the protection against a state actor depriving them of life, liberty or PROPERTY without due process.

This leads to three questions, all of which must be answered in the affirmative before the constitutional due process argument is a winning one:

(1) In prosecuting Lance Armstrong, will USADA be taking government action (this is the "government actor" question people have been saying is the critical issue).
(2) In prosecuting Armstrong, will USADA potentially be depriving Armstrong of Life, Liberty, or PROPERTY?
(3) If the answer to the above are both yes, is the process by which USADA intends to prosecute Armstrong sufficient in view of the right which they may eventually deprive him of?

The "government actor" question has been discussed at length. I'll leave my thoughts on that issue for another post. I haven't seen much discussion of the second or third points. Regarding the second point, clearly this is not a life or death issue, and USADA isn't threatening a prison sentence. So the question under the second prong is whether the sanctions that would be imposed amount to deprivation of a property right.

Although depriving an individual of any means of earning money can be considered deprivation of a property right, depriving an individual of a very specific means of earning money is not. Here, Armstrong is merely facing the possibility of not being able to compete in USADA sanctioned events. Nothing prevents him from competing in non-sanctioned events, from earning appearance fees for showing up to charity rides, from founding his own triathalon circuit outside the scope of USADA, etc., etc., etc. Considering that Armstrong makes most of his money from non-competition stuff . . . speaking fees, sponsorship, etc., it would be a very hard sell.

The only thing I can see that might gum up the works for USADA here is that in stripping him of TdF titles, they would also require he return prize money. I don't know enough about this area of law to know if that does amount to deprivation of a property interest. Normally, the government asking you to give them cash does amount to deprivation of property, but here the prize money was awarded as a prize for winning a race . . . its like the government saying to a federal employee "hey, we paid you for 40 hours of work last week, but you were only here for 30, so you need to pay us back." USADA isn't levying a fine on Armstrong, its merely requiring restitution.

Regarding "due process", its important to note that this is a moving target and depends on what the state is doing to the citizen. Think of it this way: "what process is due?" i.e., "what process is owed to insure the government isn't going overboard in taking this item from this individual?" In a criminal case, where the govt. is threatening to place a person in prison or to end his/her life, an enormous amount of process is due, because the harm if the govt. is making a mistake (or acting out of malice) is so great. However, the amount of process due for any deprivation is comensurate in scope with the govt's taking.

So even if USADA is found to be a government actor and is found to be attempting to deprive Lance of a constitutionally protected property interest, then Lance has to establish that the arbitration process does not provide sufficient process in view of what USADA intends to take from Armstrong. Importantly, just because there would be major fallout from a sanction by USADA re: endorsement opportunities, etc., that doesn't come into play because USADA isn't taking those away from Lance, just his right to compete in USADA sanctioned sport and his Tour titles. The arbitration process provides significant process. Way more process than is seen in most employer/employee dispute resolutions. Lance will have an opportunity to cross-examine any witnesses, to provide his own expert witnesses, to testify on his own behalf, etc. The arbitration panel is made up of three licensed arbitrators, one of which is selected by Lance's team, one of which is selected by USADA and the third of which is selected by those two arbitrators. Lance can appeal any decision to CAS. Lance can request that the arbitration be open to public scrutiny (HA!). That's a lot of process.

Consider this: in most govt. agencies, if you disagree with a penalty assessed, or a taking of property, your first potential action is to file an appeal -- that is handled WITHIN that agency by an administrative law judge that is employed BY THAT AGENCY. If your appeal is denied, you then have a right to appeal to a federal district court. But this is only a right to APPEAL, not retry the whole case. So the fed. court can review the facts that were presented to the agency and the administrative law judge and determine if they think the agency made the right decision. New facts can not be presented to the court, and it is not, therefore, a trial by jury because the facts are all hashed out at the agency. So the only real difference in the USADA proceeding is that (1) the arbitrators are less biased, because they are independent from USADA and USADA only gets to select one of the three and (2) the arbitration ruling can only be appealed to CAS, not a federal court.

One final, but very important, point: Lance is not asking for an alternative procedure to replace the USADA arbitration, he is simply asking that USADA's procedure be stopped because it allegedly does not provide due process. The important point, however, is that if he does get the USADA procedure stopped, there is no alternative procedure that can take its place. USADA has to follow its rules, they can't just make up a new process now that provides more procedural safeguards. If they were to make up a new process that provides more procedural safeguards (e.g., an alternative arbitration process or a right to trial in civil court), then Lance would definitely have legitimate contract-based claims against USADA, because the only process Lance ever agreed to was the one referred to when signing for his USA Cycling license.

So basically, Lance could be seen as saying "yes, I signed the contract, but only because I knew the process was unconstitutional and I never had any intention of abiding by it." Maybe he's more brilliant than we ever thought. Perhaps he had Bill Stapelton specifically formulate USADA rules that violate the Constitution so that he could dope all day long and then as soon as a proceeding was launched against him, he'd pull out the "#unconstitutional" card. USADA's hands would be tied to that one and only procedure that he planned from the beginning to fail a constitutionality test and he'd walk free

The arbitration proceeding is held pursuant to the rules of the American Arbitration Association. That process has been challenged in the courts on due process grounds over the years. As you can see, the AAA is still around; still hearing a wide variety of cases in which the parties have agreed to use AAA services to arbitrate. AAA procedures are fully compliant with the parties due process rights regarding PROPERTY.

Your theory about Stapleton's activities is interesting if delusional, IMMHO. I must say that I find all this ringing of hands by Armstrong, et al. regarding athletes' due process amusing. He never once attacked the process when his former teammates were being charged. I wonder if his attorneys are familiar with the legal concept of estoppel.

 

[Race Radio]

I am not sure if this has been posted yet but the official hearing date for the court order is 2pm, August 10th

 

[thehog]

I am not sure if this has been posted yet but the official hearing date for the court order is 2pm, August 10th

http://www.bouldercriminallawadvisor.com/files/2012/07/Lance-v.-USADA-Order.pdf

That's the Sparks USADA v LA hearing.

 

[serottasyclist]

Returning to the state actor question, Let me first note that I know little to nothing about this area of law, but it strikes me on its face as a twisted and contorted argument. This thread has focused on the role of USADA in the federal investigation of the USPS sports team and its owners for fraud. I'm not sure how that is relevant to the present case.

Presently, USADA is pressing specific doping charges against LANCE ARMSTRONG. Neither the U.S. govt., nor any state govt., ever acts in this capacity. Indeed, they can't because doping is not against any law in the U.S. So the act of prosecuting this case itself cannot be state action.

It appears that Lance is arguing that in investigating these charges, USADA was acting as a state actor. As the cyclismas blog noted earlier, private parties work alongside and/or receive information from gov't law enforcement agencies fairly regularly without becoming state actors: insurance companies work with police in car accidents, destruction by fire, etc., to obtain evidence that is then used in private arbitration.

Assuming, however, that there is a way to tie USADA's behavior in investigating the US Postal team owners to the present case being prosecuted, and that action undertaken during investigation alone can now make the prosecution itself state action, let's look at the facts:

My understanding is that none of the former teamates of Lance were "interviewed" by the Feds. Instead, they simply testified before a grand jury. I doubt very serioulsy that a USADA rep was allowed to sit in on the grand jury proceeding. Perhaps a USADA rep sat around outside the grand jury and took note of riders that appeared -- but that's something any citizen could do. USADA can't compel any of those riders to testify at this arbitration.

Additionally, the only coersion that might be leading to the testimony is coersion that the state could not possibly provide: USADA may have coerced the testimony by offerring lesser punishment for admitted doping offenses. But since the govt. can neither prosecute those doping offenses, nor determine the punishment for any sanction, that coersion cannot be govt. coersion. So whether the eyewitness testimony is "voluntary" or not (however you want to define that), none of the eyewitness testimony was obtained by USADA through state action.

The blood data was obtained presumably from the UCI or WADA. Did USADA have a right to this data on its own? If they did, then there is no way that their posession of it now is a result of it acting as the state. Wasn't USADA asking for this data all along? Isn't it likely that the UCI gave them this data without the compulsory power of the state interceding? Developing facts that the UCI gave USADA blood data only because of the coercive power of the state seems like a very, very difficult task.

If USADA intends to introduce bank records of Armstrong or Ferarri, then there may be an issue . . . not sure how they would've gotten their hands on those without help from the feds. But its entirely unclear whether USADA is even going to bother with that. Seems like eyewitness testimony + expert testimony + blood/urine data should be more than enough.

 

[serottasyclist]

The arbitration proceeding is held pursuant to the rules of the American Arbitration Association. That process has been challenged in the courts on due process grounds over the years. As you can see, the AAA is still around; still hearing a wide variety of cases in which the parties have agreed to use AAA services to arbitrate. AAA procedures are fully compliant with the parties due process rights regarding PROPERTY.

Your theory about Stapleton's activities is interesting if delusional, IMMHO. I must say that I find all this ringing of hands by Armstrong, et al. regarding athletes' due process amusing. He never once attacked the process when his former teammates were being charged. I wonder if his attorneys are familiar with the legal concept of estoppel.

Thanks. Great point. So even if USADA is a state actor, the due process claim is bunk.

Regarding the Stapleton activity, I made it with tongue planted firmly in cheek. That kind of thinking is as delusional as the kind that thinks Armstrong was dope-free.

 

[serottasyclist]

And one final point/question: Does anyone know what federation issued Bruyneel his licenses during the relevant time period? If it was not USA Cycling, then there is the othe reason why Bruyneel is not able to tack himself onto Armstrong's case: the contract-based jurisdictional claims of Armstrong will be entirely different than any claim Bruyneel might have re: jurisdiction and thus will/would be irrelevant re: Bruyneel.

Of course, now that Bruyneel has actively requested arbitration, all of that is moot anyway, as any jurisdictional claim he may have had has been flushed down the toilet.

 

[Race Radio]

I am looking forward to the increased exposure of political pressure from Wonderboy's political groupies.

This is going to be fun

 

[ggusta]

I am looking forward to the increased exposure of political pressure from Wonderboy's political groupies.

This is going to be fun

Watching them try and spin their own apologism is just another gift from the gift that keeps on giving. I like all the Lance support at slowtwitch. Try and put yourself in their hypocritical position as racers or competitors, which many of them seem to be, 'Yes, I came in 2nd to a cheater for years, and now I am going to try and justify why I do NOT want to hear the evidence of his cheating.' Really? I want to tell them, 'Please keep talking because this is just fun for me!'

 

[ChewbaccaD]

Somewhere along the lines in this thread the "due process" claim seems to have been distilled to an issue of whether or not USADA is a state actor. That ignores 2/3 of the due process analysis. The Constitution guarantees U.S. Citizens (i.e., ONLY Lance in this case, none of the others charged, which is part of why a decision in Lance's case likely has no bearing on Bruyneel's case and likely one reason why Bruyneel and LA didn't file this jointly) the protection against a state actor depriving them of life, liberty or PROPERTY without due process.

This leads to three questions, all of which must be answered in the affirmative before the constitutional due process argument is a winning one:

(1) In prosecuting Lance Armstrong, will USADA be taking government action (this is the "government actor" question people have been saying is the critical issue).
(2) In prosecuting Armstrong, will USADA potentially be depriving Armstrong of Life, Liberty, or PROPERTY?
(3) If the answer to the above are both yes, is the process by which USADA intends to prosecute Armstrong sufficient in view of the right which they may eventually deprive him of?

The "government actor" question has been discussed at length. I'll leave my thoughts on that issue for another post. I haven't seen much discussion of the second or third points. Regarding the second point, clearly this is not a life or death issue, and USADA isn't threatening a prison sentence. So the question under the second prong is whether the sanctions that would be imposed amount to deprivation of a property right.

Although depriving an individual of any means of earning money can be considered deprivation of a property right, depriving an individual of a very specific means of earning money is not. Here, Armstrong is merely facing the possibility of not being able to compete in USADA sanctioned events. Nothing prevents him from competing in non-sanctioned events, from earning appearance fees for showing up to charity rides, from founding his own triathalon circuit outside the scope of USADA, etc., etc., etc. Considering that Armstrong makes most of his money from non-competition stuff . . . speaking fees, sponsorship, etc., it would be a very hard sell.

The only thing I can see that might gum up the works for USADA here is that in stripping him of TdF titles, they would also require he return prize money. I don't know enough about this area of law to know if that does amount to deprivation of a property interest. Normally, the government asking you to give them cash does amount to deprivation of property, but here the prize money was awarded as a prize for winning a race . . . its like the government saying to a federal employee "hey, we paid you for 40 hours of work last week, but you were only here for 30, so you need to pay us back." USADA isn't levying a fine on Armstrong, its merely requiring restitution.

Regarding "due process", its important to note that this is a moving target and depends on what the state is doing to the citizen. Think of it this way: "what process is due?" i.e., "what process is owed to insure the government isn't going overboard in taking this item from this individual?" In a criminal case, where the govt. is threatening to place a person in prison or to end his/her life, an enormous amount of process is due, because the harm if the govt. is making a mistake (or acting out of malice) is so great. However, the amount of process due for any deprivation is comensurate in scope with the govt's taking.

So even if USADA is found to be a government actor and is found to be attempting to deprive Lance of a constitutionally protected property interest, then Lance has to establish that the arbitration process does not provide sufficient process in view of what USADA intends to take from Armstrong. Importantly, just because there would be major fallout from a sanction by USADA re: endorsement opportunities, etc., that doesn't come into play because USADA isn't taking those away from Lance, just his right to compete in USADA sanctioned sport and his Tour titles. The arbitration process provides significant process. Way more process than is seen in most employer/employee dispute resolutions. Lance will have an opportunity to cross-examine any witnesses, to provide his own expert witnesses, to testify on his own behalf, etc. The arbitration panel is made up of three licensed arbitrators, one of which is selected by Lance's team, one of which is selected by USADA and the third of which is selected by those two arbitrators. Lance can appeal any decision to CAS. Lance can request that the arbitration be open to public scrutiny (HA!). That's a lot of process.

Consider this: in most govt. agencies, if you disagree with a penalty assessed, or a taking of property, your first potential action is to file an appeal -- that is handled WITHIN that agency by an administrative law judge that is employed BY THAT AGENCY. If your appeal is denied, you then have a right to appeal to a federal district court. But this is only a right to APPEAL, not retry the whole case. So the fed. court can review the facts that were presented to the agency and the administrative law judge and determine if they think the agency made the right decision. New facts can not be presented to the court, and it is not, therefore, a trial by jury because the facts are all hashed out at the agency. So the only real difference in the USADA proceeding is that (1) the arbitrators are less biased, because they are independent from USADA and USADA only gets to select one of the three and (2) the arbitration ruling can only be appealed to CAS, not a federal court.

One final, but very important, point: Lance is not asking for an alternative procedure to replace the USADA arbitration, he is simply asking that USADA's procedure be stopped because it allegedly does not provide due process. The important point, however, is that if he does get the USADA procedure stopped, there is no alternative procedure that can take its place. USADA has to follow its rules, they can't just make up a new process now that provides more procedural safeguards. If they were to make up a new process that provides more procedural safeguards (e.g., an alternative arbitration process or a right to trial in civil court), then Lance would definitely have legitimate contract-based claims against USADA, because the only process Lance ever agreed to was the one referred to when signing for his USA Cycling license.

So basically, Lance could be seen as saying "yes, I signed the contract, but only because I knew the process was unconstitutional and I never had any intention of abiding by it." Maybe he's more brilliant than we ever thought. Perhaps he had Bill Stapelton specifically formulate USADA rules that violate the Constitution so that he could dope all day long and then as soon as a proceeding was launched against him, he'd pull out the "#unconstitutional" card. USADA's hands would be tied to that one and only procedure that he planned from the beginning to fail a constitutionality test and he'd walk free

Wow, lots of words. There are two problems with your little scenario:

1. He isn't being deprived of his property. The Tour was deprived of a legitimate winner because of his fraud. The titles were never legitimately his, therefore, he is not being deprived of legitimate property.

2. Arbitrations re-distribute property all the time and SCOTUS has never ruled arbitrations to be illegitimate.

Your long winded diatribe is irrelevant.

 

[Turner29]

I will defer to Senator John McCain on this matter who an authority in this matter:

"I fully support USADA and its right to undertake the investigation of, and bring charges against, Lance Armstrong. USADA is authorized by Congress and provides assurances to taxpayers, fans and competitors that sports in America are clean. USADA’s rules and processes, approved by America’s athletes, the United States Olympic Committee and all U.S. sport federations, apply to all athletes regardless of their public profile or success in sport. This process is the proper forum to decide matters concerning individual cases of alleged doping violations.”

 

[Turner29]

Equally important, I would like somebody to explain to me why the USADA process is unfair:

1) The Anti-Doping Review Board is a group of experts independent of USADA with medical, technical and legal knowledge of doping matters. These experts meet to recommend whether there is sufficient evidence of doping or other rule violations to proceed to a hearing.

2) After the Anti-Doping Review Board presents its recommendation to USADA, the USADA will notify the athlete or other person in writing whether USADA considers the matter closed or alternately what specific charges or alleged violations will be adjudicated and what sanction USADA is seeking to have imposed.

3) The athlete may elect to proceed to a hearing before the American Arbitration Association (AAA) using a single arbitrator (or a three-arbitrator panel, if requested by either of the parties) selected from a pool of the North American Court of Arbitration for Sport (CAS) arbitrators, who shall also be AAA arbitrators.

4) The American Arbitration Association Supplementary Procedures for Adjudication of Doping Disputes (the "AAA Supplementary Procedures") and the USADA Protocol apply to the hearing before AAA/CAS. The regular CAS Appellate rules apply to hearings held before CAS.

5) If the American Arbitration Association upholds the Anti-Doping Review Board's findings, the athlete may appeal to the Court of Arbitration for Sport for a final opinion.

Thus, after the USADA alleges violations, there are two appeal steps open to the athlete.

 

[serottasyclist]

Wow, lots of words. There are two problems with your little scenario:

1. He isn't being deprived of his property. The Tour was deprived of a legitimate winner because of his fraud. The titles were never legitimately his, therefore, he is not being deprived of legitimate property.

2. Arbitrations re-distribute property all the time and SCOTUS has never ruled arbitrations to be illegitimate.

Your long winded diatribe is irrelevant.

Regarding your second point, the question isn't whether arbitrations are legitimate (of course they are -- two private parties can contract to settle their disputes however they please), but whether (assuming USADA is a state actor AND the sanctions proposed amount to a property taking, both highly questionable) the specific arbitration proceeding in this instance would be considered sufficient process in view of the specific sanction proposed. That there is SCOTUS precedent that the AAA rules provide sufficient process for certain property takings by govt. actors is great, and will likely be sufficient to show that, if due process is required in this case (again, highly unlikely it is) the AAA process is sufficient in this case. But I thought one or two people might like to see why that is so, since folks on this thread seem to hold due process rights so dearly.

 

[serottasyclist]

Wow, lots of words. There are two problems with your little scenario:

1. He isn't being deprived of his property. The Tour was deprived of a legitimate winner because of his fraud. The titles were never legitimately his, therefore, he is not being deprived of legitimate property.

2. Arbitrations re-distribute property all the time and SCOTUS has never ruled arbitrations to be illegitimate.

Your long winded diatribe is irrelevant.

Regarding your first point, is there precedent on this issue? It seems that the arbitration itself will be determining the legitimacy of his victories. Thus, it is the process itself which is determining whether it is a property taking or whether its simply a matter of restitution. Its a strange issue, likely never to be addressed in this case since the Judge is likely to merely rule USADA is not a state actor.

 

[Muriel]

Can someone please clarify for me exactly which body would strip the TdF titles in the event of USADA sanctioning Armstrong?

I'd assumed that it wouldn't be USADA as they didn't award them so I figured ASO or UCI. People talk as if it's USADA. USADA's sanction may well start the process (or even require it) but I didn't think they actually did it. The distinction is important I feel.

 

[ultimobici]

If USADA ban Armstrong and are able to have the SOL lifted they could start the ban from 1999 or even earlier. Thus he would effectively be ineligible to have started any of those races and as such ineligible to be the winner.

 

[serottasyclist]

Can someone please clarify for me exactly which body would strip the TdF titles in the event of USADA sanctioning Armstrong?

I'd assumed that it wouldn't be USADA as they didn't award them so I figured ASO or UCI. People talk as if it's USADA. USADA's sanction may well start the process (or even require it) but I didn't think they actually did it. The distinction is important I feel.

Because the TdF is sanctioned by UCI, they have agreed to grant WADA (and thereby USADA) w/ power to invalidate results and require forfeiture of prizes won in the event.

 

[ChewbaccaD]

Regarding your first point, is there precedent on this issue? It seems that the arbitration itself will be determining the legitimacy of his victories. Thus, it is the process itself which is determining whether it is a property taking or whether its simply a matter of restitution. Its a strange issue, likely never to be addressed in this case since the Judge is likely to merely rule USADA is not a state actor.

No, it isn't a strange issue at all. Your post answers itself. If after the process, he is deemed to have cheated, he will not be deprived of property. He will have been found to have forfeited his right to anything when he stuck the needle in his vein. The property was never his in the first place. He will have been deprived of nothing. Hmmm...I wonder if you read something about this on another forum?

 

[ChewbaccaD]

Because the TdF is sanctioned by UCI, they have agreed to grant WADA (and thereby USADA) w/ power to invalidate results and require forfeiture of prizes won in the event.

Thank goodness, right??!!!

 

[serottasyclist]

No, it isn't a strange issue at all. Your post answers itself. If after the process, he is deemed to have cheated, he will not be deprived of property. He will have been found to have forfeited his right to anything when he stuck the needle in his vein. The property was never his in the first place. He will have been deprived of nothing. Hmmm...I wonder if you read something about this on another forum?

But IF USADA is a state actor (again, HIGHLY unlikely), shouldn't he then be afforded "due process" for the determination of whether a property interest exists or not? I don't think the issue is as cut and dry as you make it out to be. A poor analogy, but the only one I can come up with quickly, would be to say that a criminal is only entitled due process at the sentencing stage, not the guilty/innocence trial.

 

[ChewbaccaD]

But IF USADA is a state actor (again, HIGHLY unlikely), shouldn't he then be afforded "due process" for the determination of whether a property interest exists or not? I don't think the issue is as cut and dry as you make it out to be. A poor analogy, but the only one I can come up with quickly, would be to say that a criminal is only entitled due process at the sentencing stage, not the guilty/innocence trial.

I pointed out the first problem in bold. I would prefer to discuss things we know to be true. You know, like the fact that even the judge is disgusted by LA's PR war. Things like that.

And no, a burglar never had title to the property he stole. A shoplifter who made it out of the store never had legal possession of the property they took. The issue in their criminal case is not about whether they are being deprived of property that they stole. So yes, poor analogy indeed.

You seem to continue to miss the point. Deprivation of property refers to legally obtained property. If the property was never legally obtained, he is being deprived of nothing. Again, SCOTUS has continually found that arbitration is a perfectly fine venue for distributing property that was improperly obtained back to the rightful owner.

 

[serottasyclist]

I pointed out the first problem in bold. I would prefer to discuss things we know to be true. You know, like the fact that even the judge is disgusted by LA's PR war. Things like that.

And no, a burglar never had title to the property he stole. A shoplifter who made it out of the store never had legal possession of the property they took. The issue in their criminal case is not about whether they are being deprived of property that they stole. So yes, poor analogy indeed.

You seem to continue to miss the point. Deprivation of property refers to legally obtained property. If the property was never legally obtained, he is being deprived of nothing. Again, SCOTUS has continually found that arbitration is a perfectly fine venue for distributing property that was improperly obtained back to the rightful owner.

I understand and agree with your point -- any way you dice it, Armstrong's due process claim is bunk. I'm simply laying out the full due process analysis, which hasn't to my knowledge been laid out in this thread yet (though I confess to not having read all 500 some odd pages of posts). I think you're missing my point because you are viewing the entire analysis with the presumption that Armstrong doped.

A burglar only has to return the property he stole if he is found guilty of theft -- and he is afforded due process to determine whether or not he stole it. If we presume for the moment that USADA is a state actor, then the next question we have to ask under due process is "is USADA proposing a taking of property?" The answer to that question is "well, if he doped, no; if he didn't dope, then yes." So we can't really answer that question at all until some proceeding comes to a conclusion. That's why I think its a strange issue.

Again, the issue is likely completely unimportant because even if USADA is somehow a state actor, surely the arbitration is sufficient process for the proposed taking and so is sufficient for determining if Armstrong is the rightful owner of the winnings and/or taking those winnings from him.

 

[PedalPusher]

I understand and agree with your point -- any way you dice it, Armstrong's due process claim is bunk. I'm simply laying out the full due process analysis, which hasn't to my knowledge been laid out in this thread yet (though I confess to not having read all 500 some odd pages of posts). I think you're missing my point because you are viewing the entire analysis with the presumption that Armstrong doped.

A burglar only has to return the property he stole if he is found guilty of theft -- and he is afforded due process to determine whether or not he stole it. If we presume for the moment that USADA is a state actor, then the next question we have to ask under due process is "is USADA proposing a taking of property?" The answer to that question is "well, if he doped, no; if he didn't dope, then yes." So we can't really answer that question at all until some proceeding comes to a conclusion. That's why I think its a strange issue.

Again, the issue is likely completely unimportant because even if USADA is somehow a state actor, surely the arbitration is sufficient process for the proposed taking and so is sufficient for determining if Armstrong is the rightful owner of the winnings and/or taking those winnings from him.

It has been laid out earlier in this thread. YOU HAVE NO DUE PROCESS RIGHTS IN A PRIVATE ACTION, e.g. arbitration.

 

[serottasyclist]

What's interesting is, and why I think Lance besides aforementioned thoughts above is fighting, because it he is found guilty in arbitration, it could very well and most likely open the flood gates. Perjury in the SCA case, GJ could reconvene etc. The GJ never gave a bill of indictment, the Feds just ended the proceedings. So it could be re-opened if new information arises..aka findings of fact in an arbitration hearing and witness testimony.

Remember the case was about fraud, not doping in the fed case.

I'm not so sure this is going to open any floodgates.

Do we think USADA has MORE info than the feds?!? I doubt that. So the feds already have all the relevant facts in front of them. If (1) the feds failure to proceed earlier was based on an unwillingness to pursue Armstrong only because of who he is, not because of what they had discovered and (2) the USADA case dramatically alters public perception of Armstrong, then maybe, but otherwise, I don't see why this arbitration would change anything regarding federal investigation.

Additionally, I'm sure whatever settlement occurred between Armstrong and SCA was binding. So "new facts" developed in the arbitration won't be sufficient to reopen that case, right? An express finding of perjury by any of the witnesses in the SCA proceeding would give SCA an opening, because that would prove the prior proceeding was a sham. But I don't think simply having contradicting testimony brought up in an unrelated case will be anywhere near enough to overcome estoppel, even if that contradicting testimony is able to persuade the arbitrators. SCA could've deposed all of those teamates back when, etc.

 

[serottasyclist]

It has been laid out earlier in this thread. YOU HAVE NO DUE PROCESS RIGHTS IN A PRIVATE ACTION, e.g. arbitration.

Sure, but a lot of people in the thread countered that with "but, but, but...the feds, the feds!!! STATE ACTOR!!!" So why not finish the analysis? The result of that analysis is more damning:

(1) No due process rights b/c this is a private action.
(2) No due process b/c USADA is not depriving Lance of a constitutionally protected interest.
(3) Even if due process is required, the arbitration provides sufficeint process.