D-Queued said:
1. Cannot speak to your thousands of commercial arbitration cases, but this is a sports doping arbitration case.
2. We have a very high profile precedent in a recent sports doping case that was promoted to provide fundamental legal precedents.
3. Those attorneys weren't idiots. They didn't make even a fraction of the mistakes that Armstrong legal parade has committed.
4. Once arbitration began, all of that nonsense about legal precedent went out the window.
Armstrong's lawyers would be idiots, IMHO, to argue base issues in arbitration about things like the applicability of the WADA code. Please remember that it is inconceivable the arbitrators will not have previous experience arbitrating cases under The Code.
You could be right, but precedent is on my side. Not yours.
They have behaved like idiots.
Just like Lance's sociopathic traits, past precedent is good grounds for future actions. If they pull what you are suggesting, they will again behave like idiots. Many of us expect them to continue wasting their client's money.
YMMV
Dave.
Dave:
Let's not argue the competence of the attorneys any further, ok? Let's just say we disagree.
Second, I wrote I have participated in "hundreds" of commercial arbitrations, not "thousands."
Third, I'm not sure what other case you're referring to.
Fourth, and finally, when it comes to the rules that will govern this "sports doping" case, your attempt to distinguish this case from a "commercial arbitration" is to note a distinction without a difference. Sure the evidence and the subject matter of the claims here will be different than the ordinary commercial contract dispute. But the basic rules governing the procedure to be followed by the arbitrators are the same.
Follow me here: Can we at least agree that the arbitration in this case will be governed by rules, and that the arbitrators and the parties can't just do whatever they want, whenever they want? That the arbitrators get to run the show and that there is an order to things that is to be followed? So far, so good then.
So what are the rules that will govern this arbitration? They are found in three separate places: 1) First, a set of applicable rules is found in the WADA Code. Simply put, these are the "big picture" rules that govern all doping arbitrations worldwide, not just USADA. WADA Rules do not, however, govern all of the details for USADA arbitrations. There is other material that is found in 2) the USADA Protocols. The Protocols provide yet more detailed rules that have to be adhered to by USADA, but importantly, the Protocols do not describe all of the procedures. Wisely, the drafters of the Protocols recognized that the American Arbitration Association already has a whole slew of rules and procedures for use in private arbitrations.
So, in cases that are brought by USADA against an athlete in arbitration the Protocols expressly state that the Rules of the American Arbitration Association for "Commercial Arbitrations" shall govern. The reference which incorporates those AAA Commercial Arb rules is found in "Appendix D" of the Protocols.
Thus, the rules that will apply, and which will govern this "sports doping" arbitration are the rules that are found not only in the Protocols, but also the American Aribtration Association's Commercial Arbitration Rules. And those AAA Rules provide for procedures for the litigants to select a panel of arbitrators and how those arbitrators are to act, i.e., what they can do, their powers in general and certain procedural steps.
These AAA rules provide for several different conferences to be held prior to the actual start of the actual hearings: 1) First-- and this is optional--there is an "administrative conference" that can be held at the request of any party at which will cover ". . . such issues as arbitrator selection, potential mediation of the dispute, potential exchange of information, a timetable for hearings and any other administrative matters. (See Rule R-9). 2) Second, the AAA Commercial Rules also provide for a "Preliminary Conference" (Rule R-20). That rule expressly states: "During the preliminary hearing, the parties and the arbitrator should discuss the future conduct of the case,
including clarification of the issues and claims, a schedule for the hearings and
any other preliminary matters.
As I mentioned previously, in the many arbitrations that I've participated in under these rules, the arbitrators and parties have uniformly considered the preliminary conference as the time and place where issues like impact and effect of the statute of limitations, or general jurisdictional issues are raised. The arbitrators will and can, if they feel it is necessary, set up briefing schedules so that such issues can be fully presented to the panel, and if necessary one or more separate hearings can be held on such preliminary and threshold matters. The arbitrators also have the power under these rules to bifurcate the proceedings (See, Rule R-30 (B)) and to order the presentation of evidence in any way that they believe will be fair, given the issues and the interests of the parties to the arbitration.
We can argue all day about whether Armstrong's attorneys are idiots. But if you have been reading the Court's decision in the civil suit brought by Armstrong, then you know that one of the major issues was whether some or all of the issues raised by Armstrong should instead be raised in the context of the arbitratilon and not in court. So the other point that I was making in the post to which you responded is that the conduct of the arbitration is going to be governed by arbitrators who will act under the AAA Commercial Arbitration Rules and those rules leave plenty of opportunity for the "idiot" attorneys to raise the "legal" portions of their defense to the USADA's charges, and those legal defenses will be heard and determined by the arbitrators even before the first witness is sworn and takes the stand.
Indeed, the legal defense issues have to be heard first and determined because their determination and application will directly affect the outcome and length of the hearings. If, for example, the arbitrators rule that the 8-year SOL applies and rejects the USADA's effort to use the Hellebuyck-exception, the case is going to be potentially vastly different.
In short, all I was saying is that there will still be plenty of legal manuevering on the same threshold issues, including issues of jurisdiction which Judge Sparks's opinion noted was itself an abitrable issue. Indeed, that's the primary practical effect of the court's ruling that effected the dismissal of Armstrong's civil litigation: Most, if not all of the issues that Armstrong attempted to raise in that case were, according to the judge, issues that themselves are subject to arbitration, and should be determined there, not in court.
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