USADA - Armstrong

[Turner29]

So here are the possibilities next week as I understand them. Hope some lawyers weigh in:

A) Judge rules against LA, case dismissed
1) LA appeals – will USADA grant him another extension?
2) LA goes to arbitration – still on for November?
3) LA accepts sanctions and starts campaign to convince followers of USADA’s illegitimacy – will UCI help him here?
4) anything else he could do?

B) Judge rules against USADA - I’m a little unclear what happens or can happen in this situation, but another poster says they can’t appeal
1) If Judge rules UCI has jurisdiction, does this mean USADA must either drop the case or turn it over to UCI, wait for their decision before appealing it?
2) Can the Judge rule that USADA has jurisdiction, but is a state actor and must provide due process and other benefits in the same way a normal legal procedure would?
3) what other possible outcomes could there be associated with a ruling against USADA?

Are there other possible outcomes than a clear ruling for one party and against the other?

A) Any appeal by Armstrong will almost certainly be coupled with an injunction motion that would probably be granted.

My guess is that you are correct with 3) and that Armstrong will never accept the USADA's legitimacy; therefore, no arbitration and fight on elsewhere.

This approach may make some sense (from Armstrong's view) regarding SCA Promotions. Now, here is my question for the lawyers:

SCA Promotion has already lost a legal battle regarding paying insurance money to Tailwind Sports. Since SCA Promotions appears to be the largest single aggrieved party from a monetary perspective, save for perhaps the US Postal Service, if practical they would be most likely to go after Armstrong again.

1) What is the practicality of SCA Promotions again taking legal action against Armstrong, given that they already have lost?

2) By accepting the USADA's charges without arbitration, no real evidence is presented by the USADA. Could USADA evidence by subpoenaed by SCA Promotions?

 

[MarkvW]

So here are the possibilities next week as I understand them. Hope some lawyers weigh in:

A) Judge rules against LA, case dismissed
1) LA appeals – will USADA grant him another extension?
2) LA goes to arbitration – still on for November?
3) LA accepts sanctions and starts campaign to convince followers of USADA’s illegitimacy – will UCI help him here?
4) anything else he could do?

B) Judge rules against USADA - I’m a little unclear what happens or can happen in this situation, but another poster says they can’t appeal
1) If Judge rules UCI has jurisdiction, does this mean USADA must either drop the case or turn it over to UCI, wait for their decision before appealing it?
2) Can the Judge rule that USADA has jurisdiction, but is a state actor and must provide due process and other benefits in the same way a normal legal procedure would?
3) what other possible outcomes could there be associated with a ruling against USADA?

Are there other possible outcomes than a clear ruling for one party and against the other?

I'm with you. There's lots of questions. But one thing seems pretty clear to me. Lance cannot keep the evidence suppressed without an ally (and even then it will be tough). Either Weasel or Pat Heinie are going to have to come through in the clutch for Lance--with more than just letters or useless affidavits.

 

[thehog]

The judge is reading up on high cadance... it will be pivotal in his decision.

 

[mewmewmew13]

I'm with you. There's lots of questions. But one thing seems pretty clear to me. Lance cannot keep the evidence suppressed without an ally (and even then it will be tough). Either Weasel or Pat Heinie are going to have to come through in the clutch for Lance--with more than just letters or useless affidavits.

I'm not sure how much Weasel will or can stick his neck out there for Armstrong?
He needs to appear somewhat detached at the very least --a show of impropriety would be not his choice. He may not be able to lurk under the radar for much longer though....

 

[Race Radio]

Judge Sparks: "Where do I have jurisdiction in this case when you can litigate this in the arbitration process?"

 

[Velodude]

I truly can't believe he said this. gift wrapped one major PR talking point to the LA team. we will see this time and time again

He is going through the expected conduct of an extremely rattled man.

The consequences to him of not contributing to stop USADA v Lance Edward Armstrong must be dire.

 

[MarkvW]

I'm not sure how much Weasel will or can stick his neck out there for Armstrong?
He needs to appear somewhat detached at the very least --a show of impropriety would be not his choice. He may not be able to lurk under the radar for much longer though....

It seems to me that Lance is making plans, then ripping them up and making new plans as he goes.

The first plan was not to contest anything and then stay aloof.

Then, Lance got all hot and decided that, by gum he's gonna fight (probably because the charges were so awesome). Only problem was, none of his buddies were tuned into his plan (because there was no plan and he was making it up on the fly).

Once he'd crossed the Rubicon, Lance was in scrambling mode--trying to get Weasel and Pat Heinie to support him and fighting a delaying action in federal court.

Now, the federal lawsuit is seriously on the ropes and Pat Heinie doesn't have the juice to stop the USADA process. It is all on Team Weasel now.

Does that theory make sense?

 

[QuickStepper]

Judge Sparks: "Where do I have jurisdiction in this case when you can litigate this in the arbitration process?"

The question, standing alone, doesn't indicate anything to me, one way or the other, but I'm sure others here will either be thrilled that the judge asked the question, and others will be downcast. But to me, it's not at all a surprising question, considering that the entire gist of a 12(b) ( 1) motion that seeks to dismiss an action is based on the assertion that the court lacks subject matter jurisdiction. As an attorney who has practiced in federal courts for more than 30 years, its been my experience that the real issue is not the question that was asked by the judge, but the answers given to that question by the lawyers to whom it was addressed, and ultimately how the judge will consider those arguments and the points raised in rendering his decision.

Since you were there listening to the arguments, Race Radio, did you get any real sense for how the judge might ultimately rule on the issue of jurisdiction, and if so, what specifically can you point to that would support your analysis?.

 

[mewmewmew13]

Judge Sparks: "Where do I have jurisdiction in this case when you can litigate this in the arbitration process?"

A concise and efficient man.

 

[Race Radio]

The question, standing alone, doesn't indicate anything to me, one way or the other, but I'm sure others here will either be thrilled that the judge asked the question, and others will be downcast. But to me, it's not at all a surprising question, considering that the entire gist of a 12(b) ( 1) motion that seeks to dismiss an action is based on the assertion that the court lacks subject matter jurisdiction. As an attorney who has practiced in federal courts for more than 30 years, its been my experience that the real issue is not the question that was asked by the judge, but the answers given to that question by the lawyers to whom it was addressed, and ultimately how the judge will consider those arguments and the points raised in rendering his decision.

Since you were there listening to the arguments, Race Radio, did you get any real sense for how the judge might ultimately rule on the issue of jurisdiction, and if so, what specifically can you point to that would support your analysis?.

I would be inclined to say he will support USADA. He said multiple times that Armstrong had signed an contract agreeing to arbitration. I assume he knows that the 5th has consistently upheld these type of agreements and if he went against it that his decision would be tossed out on appeal

 

[python]

since there is almost no information on what went on in the court room, there's nothing new to base another speculation on.

an extension by one week is well within the usada's 23d of august deadline, so no, MI, i don't see usada granting another extension. but this is just my personal opinion. however, had i been in usada Nikis, i'd grant as many extensions as would be required by he tactical considerations to sail through the federal court including any required by an appeal process (i dont think i qualify as armstrong sympathizer..)

my expectation is that within the next 7 days some new and stronger positions/affidaits will be filed.

wada has to come up with another strong rebuke of the uci which in my book is a spent pistol...i would not be surprised to have the us olympic politicos finally chipping in. in fact, i suspect sparks had few questions tonight about usoc, the only american body so far with the jurisdiction that has not spoken yet (officially).

i saw earlier a link to a twitter (of an abc journo ?) that said that the judge appeared tough on both sides and asked many questions.

 

[BroDeal]

My expectation is that the USADA will alleviate the judge's concern about lack of detail in the charging document by filing something that we here will have a field day with.

Start googling now for the best "party time" images.

 

[QuickStepper]

I would be inclined to say he will support USADA. He said multiple times that Armstrong had signed an contract agreeing to arbitration. I assume he knows that the 5th has consistently upheld these type of agreements and if he went against it that his decision would be tossed out on appeal

The 5th Circuit isn't as inflexible or consistent as you might imagine. Take a look at Carey vs. 24 Hour Fitness, where the Court determined that an arbitration agreement was NOT enforceable, but was illusory. See, http://www.ca5.uscourts.gov/opinions/pub/10/10-20845-cv0.wpd.pdf. I'm not suggesting that the facts of Carey are at all similar to Armstrong vs. USADA & Tygart (clearly the latter is not an employee vs. employer suit), but I would suggest that there are many subtleties and twists and turns that can and will no doubt influence how this decision is ultimately rendered, and the 5th Circuit has been known in the past to reject arbitration agreements for a variety of reasons.

I suppose, RR, the question I was asking was whether you got the sense, either from the judge's facial expressions, demeanor, tone of voice, or anything else you observed or perceived, that he was likely to rule one way or the other, or whether he was really just probing and testing to see what the lawyers would say in response to questions that may, at first blush, seem to suggest that the judge has already decided an issue. Often I find that in oral argument when a judge poses a question, over and over again and seems to indicate a bent one way or the other, that the court is likely to decide in exactly the opposite way.

 

[thehog]

The 5th Circuit isn't as inflexible or consistent as you might imagine. Take a look at Carey vs. 24 Hour Fitness, where the Court determined that an arbitration agreement was NOT enforceable, but was illusory. See, http://www.ca5.uscourts.gov/opinions/pub/10/10-20845-cv0.wpd.pdf. I'm not suggesting that the facts of Carey are at all similar to Armstrong vs. USADA & Tygart (clearly the latter is not an employee vs. employer suit), but I would suggest that there are many subtleties and twists and turns that can and will no doubt influence how this decision is ultimately rendered, and the 5th Circuit has been known in the past to reject arbitration agreements for a variety of reasons.

I suppose, RR, the question I was asking was whether you got the sense, either from the judge's facial expressions, demeanor, tone of voice, or anything else you observed or perceived, that he was likely to rule one way or the other, or whether he was really just probing and testing to see what the lawyers would say in response to questions that may, at first blush, seem to suggest that the judge has already decided an issue. Often I find that in oral argument when a judge poses a question, over and over again and seems to indicate a bent one way or the other, that the court is likely to decide in exactly the opposite way.

The judge wasn't wearing trousers if that helps?

 

[mewmewmew13]

The judge wasn't wearing trousers if that helps?

Conjures up images of Groucho Marx.

 

[Fausto's Schnauzer]

Conjures up images of Groucho Marx.

I filed a writ in my pajamas.
How it got in my pajamas I'll never know.

 

[ChewbaccaD]

The question, standing alone, doesn't indicate anything to me, one way or the other, but I'm sure others here will either be thrilled that the judge asked the question, and others will be downcast. But to me, it's not at all a surprising question, considering that the entire gist of a 12(b) ( 1) motion that seeks to dismiss an action is based on the assertion that the court lacks subject matter jurisdiction. As an attorney who has practiced in federal courts for more than 30 years, its been my experience that the real issue is not the question that was asked by the judge, but the answers given to that question by the lawyers to whom it was addressed, and ultimately how the judge will consider those arguments and the points raised in rendering his decision.

Since you were there listening to the arguments, Race Radio, did you get any real sense for how the judge might ultimately rule on the issue of jurisdiction, and if so, what specifically can you point to that would support your analysis?.

What is interesting is that Sparks made the specific request that they clearly argue why he has jurisdiction when he allowed the extension for the reply to the motion to dismiss. He also made clear when he dismissed the original motion that he wanted to have specific reasoning for why HE has jurisdiction. This is the third time that he has specifically referenced this, once at the beginning, once a week ago, and once today. I would suggest that the question had a bit more weight than you are suggesting, but I have never tried a case in federal court, so obviously I could be wrong.

Interestingly, I have read the filings by Armstrong's attorneys, and I haven't read where they have ever really answered his question. They keep referring to whether or not the UCI has jurisdiction, but that is not what the judge is asking...and they keep avoiding his question. If you read the USADA's reply to Armstrong's reply to their motion to dismiss, they were VERY clear as to why they had jurisdiction, and the case law cited was pretty solid.

 

[krinaman]

http://espn.go.com/olympics/cycling/story/_/id/8254727/judge-questions-usada-lance-armstrong-lawyers

"Sparks gave no indication how he would rule, but he was clearly troubled by the vagueness of USADA's charging letter to Armstrong and the agency's decision to withhold key information, including the names of witnesses and what they told investigators at this stage.

"No case filed in this court or any court in the United States would go to trial," under similar circumstances, Sparks said.

http://www.usatoday.com/sports/cycling/story/2012-08-10/lance-armstrong-doping-usada/56949006/1

Sparks also questioned USADA about the lack of specifics and sweeping scope of its charges against Armstrong and the five others dating back to the 1990s.

"I couldn't find anything but conclusions (in the charges)," Sparks said. "Not one name, not one event, not one date."

Sparks suggested that wasn't fair to Armstrong because it doesn't provide him with enough information to mount an adequate defense.

I can't say I'm surprised. I questioned the USADA decision to withhold this information awhile ago and still do today.

Like I said before, release the evidence and the due process argument goes away. Otherwise you are just feeding ammo to Lance to use in court.

 

[ChewbaccaD]

http://espn.go.com/olympics/cycling/story/_/id/8254727/judge-questions-usada-lance-armstrong-lawyers




http://www.usatoday.com/sports/cycling/story/2012-08-10/lance-armstrong-doping-usada/56949006/1



I can't say I'm surprised. I questioned the USADA decision to withhold this information awhile ago and still do today.

Like I said before, release the evidence and the due process argument goes away. Otherwise you are just feeding ammo to Lance to use in court.

I think at this point, that is what we all want.

 

[python]

the latest on what went on in the court room
http://www.washingtonpost.com/sport...be86dc-e2be-11e1-89f7-76e23a982d06_story.html

No case filed in this court or any court in the United States would go to trial,” under similar circumstances, Sparks said.

USADA general counsel Bill Bock countered that Armstrong’s case isn’t a matter for the legal courts, but is subject to the established rules of sports doping violations and arbitration

a contrarian in the body of this python says, if the judge did not know the answer to this question and has not already decided, he'd never ask the question.

There’s something under the current when UCI says ‘This is our case, USADA step back,’ and USADA says ‘Not on your life,’” Sparks said.

 

[MarkvW]

Might as well lay out all the evidence, exactly. Tell the world exactly what Armstrong did and how you think you can prove it.

McQuaid and Armstrong are begging for it. Why not?

 

[Somerville Horror]

Phil Halpern?

 

[mewmewmew13]

I filed a writ in my pajamas.
How it got in my pajamas I'll never know.

A child of five would understand this. Send someone to fetch a child of five.

 

[ChewbaccaD]

Might as well lay out all the evidence, exactly. Tell the world exactly what Armstrong did and how you think you can prove it.

McQuaid and Armstrong are begging for it. Why not?

Yea, of course they will then howl about how unfair it is that the USADA is now trying to convict him in the court of public opinion, etc, etc, etc...

 

[Microchip]

I hope there's going to be a transcript of this entire thing. Articles that say "the judge was troubled" by so-and-so make me raise an eyebrow or two. The journalist is interpreting the judge's demeanour for the reader, which I think is not appropriate for an article. He could be right, but he could be wrong, And putting it down in the article as if it's a fact the judge was indeed "troubled" isn't proper. Not in my books.

Nonetheless, it was an informative article. And bravo to Cycling News on that piece today on McQuaid.