USADA - Armstrong

[mewmewmew13]

Have I missed anything?
Is it time for us to put up our Travis avs??

 

[serottasyclist]

Yea, except for the fact that he didn't exhaust his administrative remedies in your scenario, you have a point...

He doesn't have to exhaust his administrative remedies under this scenario because its a separate action. If USADA truly had not jurisdiction, USADA had no jurisdiction, and he has a right to file a new action against anyone that is doing something to him based on the USADA ruling whether or not he appealed the original USADA decision or not.

If he doesn't think USADA has jurisdiction, what does he appeal to CAS following the USADA "verdict" but before anyone takes action on that "verdict"?

 

[LauraLyn]

He would be refusing to accpet that the arbitrators have the right to arbitrate on the scope of arbitration. Once starts on administrative remedies he is accepting this point.

He took this to US courts and they washed their hands. CAS is the only other game in town.

No arbitration, no CAS.

Choices, either go to arbitration or the blindside.

 

[MarkvW]

I think a smartest way of doing this would be not not respond to USADA at all, and only when the triathalon governing body officially strips him of his license and/or refuses to give him a license or whatever their response is, take up that action in court/CAS/wherever. His position would be "USADA had no jurisdiction, so you have no basis to deny me opportunity to compete" Then the only issue in that arbitration would be whether or not USADA had jurisdiction, and he would maintain a consistent position that he truly didn't believe he had any reason to deal with the USADA charging letter in any way since he didn't think they had jurisdiction. I don't see how CAS or any other governing body could fault Armstrong for "not exhausting process" if he takes this approach.

If Lance arbitrates with USADA then surely jurisdiction will be the first issue addressed, but the problem is that if Lance loses the jurisdiction issue there, then he has to finish the arbitration - i.e., address the merits.

If he just ignores USADA and then fights but loses the jurisdiction issue after the fact, he never has to face the merits of the case and can simply say "look, I didn't think they had jurisdiction and didn't think they'd give me a fair trial, so I wasn't going to play with them at all on their turf. I'm sorry CAS (or whoever) doesn't agree with me."

Seems the smartest approach to me in terms of avoiding having to deal with the merits but still putting on a straight face that USADA was a kangaroo court that he didn't want to submit to in any way.

That tactic won't work unless Lance has the necessary palms greased.

If Lance doesn't contest the sanction, USADA will report the result to the requisite governing bodies. The governing bodies will then take the required action. This is routine, and there is no place in this routine for Lance to intervene. His only hope would be in a US federal court.

He'd be right back in front of a federal judge, and he would be without any argument that the antidoping process was unfair--because he didn't participate. He would be even more doomed than he was in his first and second adventures in federal court.

Lance's best strategy has always been to hunker down, weather the storm, and deal with the aftermath.

 

[frenchfry]

He doesn't have to exhaust his administrative remedies under this scenario because its a separate action. If USADA truly had not jurisdiction, USADA had no jurisdiction, and he has a right to file a new action against anyone that is doing something to him based on the USADA ruling whether or not he appealed the original USADA decision or not.

If he doesn't think USADA has jurisdiction, what does he appeal to CAS following the USADA "verdict" but before anyone takes action on that "verdict"?

I would think the only way CAS would accept is if a specific request is made to go there directly, and maybe this would have to be made before todays decision deadline otherwise USADA would still have jurisdiction in CAS's view. Or go to arbitration and go to CAS on appeal.

If he waits until a sanction is imposed, then requests to go directly to CAS to fight wouldn't CAS simply say that USADA has jurisdiction and they won't hear anything until the case is heard by them. Of course by this time it will be too late.

 

[serottasyclist]

He'd be right back in front of a federal judge, and he would be without any argument that the antidoping process was unfair--because he didn't participate. He would be even more doomed than he was in his first and second adventures in federal court.

The procedural position would be wildly different, however, and the district court would surely have jurisdiction to hear the new case.

 

[cody_57]

I lurked for years before joining. As a newcomer to cycling the idea of posting here seemed rather intimidating, but there is lots to read and learn here.

I remember lots of things read over the previous years, so it is not surprising to me that others have similar stories.

Got to agree! The first time I dared to post, I got insulted by a "regular" for not having a gazillion posts and how dare I have an opinion that's different! I did post back in surprise at the vitriol heaped on me and one of the other senior gentlemen were kind enough to give me same basic guidelines to prevent any future flaming!

 

[MarkvW]

He doesn't have to exhaust his administrative remedies under this scenario because its a separate action. If USADA truly had not jurisdiction, USADA had no jurisdiction, and he has a right to file a new action against anyone that is doing something to him based on the USADA ruling whether or not he appealed the original USADA decision or not.

If he doesn't think USADA has jurisdiction, what does he appeal to CAS following the USADA "verdict" but before anyone takes action on that "verdict"?

This is a two track process. One track flows USOC-->USAC-->USADA. The other track flows UCI-->USAC-->USADA.

The "you don't have any jurisdiction" argument is nothing more than a "your judgment has no effect" argument. And the argument that USADA does not have any jurisdiction under the USOC track is an insanely stupid argument. Lance can make lots of arguments about the UCI track, and he has had some success in this regard, but he cannot make a dent in the USOC track. He has already denied any connection with the USOC in his pleadings.

And I assume that once USADA renders its decision and USOC accepts it, that everybody else is reciprocally bound to accept it--including the UCI.

 

[MarkvW]

The procedural position would be wildly different, however, and the district court would surely have jurisdiction to hear the new case.

"Surely?" What about the Amateur Sports Act?

 

[serottasyclist]

"Surely?" What about the Amateur Sports Act?

If the sanctioning body refuses to grant a license, can the athlete instigate the arbitration? In that case, yeah, ASA may apply and his case would be an arbitration rather than b/f Fed. Dist. court. But that changes little - he's still fighting a completely different case with the sole issue being whether USADA had jurisdiction, not the merits of USADA's case. What I'm trying to explore is how does he fight this on jurisdictional grounds only without running any risk of having to address the merits of the case -- I don't see how he appeals directly to CAS without someone trying to act on a USADA ruling. Procedurally, how do you think he woudl do this?

 

[LauraLyn]

This is a two track process. One track flows USOC-->USAC-->USADA. The other track flows UCI-->USAC-->USADA.

And I assume that once USADA renders its decision and USOC accepts it, that everybody else is reciprocally bound to accept it--including the UCI.

Correct. Once there is a USADA decision without arbitration there will be no avenues open to appeal.

 

[serottasyclist]

I would think the only way CAS would accept is if a specific request is made to go there directly, and maybe this would have to be made before todays decision deadline otherwise USADA would still have jurisdiction in CAS's view. Or go to arbitration and go to CAS on appeal.

If he waits until a sanction is imposed, then requests to go directly to CAS to fight wouldn't CAS simply say that USADA has jurisdiction and they won't hear anything until the case is heard by them. Of course by this time it will be too late.

I agree with this, and I don't see the options of appraoching CAS at this stage being all that great of a deal for Armstrong -- if the case as it stands goes to CAS directly, he still runs the risk of having to face the merits of the doping charges if his jurisdictional arguments fail.

This is why I think if he's going to rest his case on jurisdictional grounds only he would rather have that issue raised in a second proceeding -- i.e., once the triathalon governing body acts on the USADA sanction, or once ASO comes asking for prize money or something similar.

 

[MarkvW]

If the sanctioning body refuses to grant a license, can the athlete instigate the arbitration? In that case, yeah, ASA may apply and his case would be an arbitration rather than b/f Fed. Dist. court. But that changes little - he's still fighting a completely different case with the sole issue being whether USADA had jurisdiction, not the merits of USADA's case. What I'm trying to explore is how does he fight this on jurisdictional grounds only without running any risk of having to address the merits of the case -- I don't see how he appeals directly to CAS without someone trying to act on a USADA ruling. Procedurally, how do you think he woudl do this?

The issue isn't USADA "jurisdiction," then. The issue would be the validity of a sanction--the validity of a sanction that Lance did not contest.

You'd have to explain why every athlete couldn't use your theory to avoid doping. Could every athlete repudiate their federation and then sue?

 

[ChewbaccaD]

The procedural position would be wildly different, however, and the district court would surely have jurisdiction to hear the new case.

No, they wouldn't.

 

[MarkvW]

If the sanctioning body refuses to grant a license, can the athlete instigate the arbitration? In that case, yeah, ASA may apply and his case would be an arbitration rather than b/f Fed. Dist. court. But that changes little - he's still fighting a completely different case with the sole issue being whether USADA had jurisdiction, not the merits of USADA's case. What I'm trying to explore is how does he fight this on jurisdictional grounds only without running any risk of having to address the merits of the case -- I don't see how he appeals directly to CAS without someone trying to act on a USADA ruling. Procedurally, how do you think he woudl do this?

He can't. He's in the sporting playground. He has to play by their rules.

Sometimes an athlete wronged by the sporting playground's rules can sue, but he's got to be wronged first.

Lance can't say "I'm in the USOC--UCI--USAC--USADA jurisdiction for the TdF wins, but I'm out of their jurisdiction for the antidoping process."

 

[Page Mill Masochist]

Does Ashenden have credibility with the IOC? I ask because I keep hoping the IOC will weigh, very forcefully and publicly, on WADA/USADA's side. Now perhaps the IOC has flexed its muscles behind the scenes, and this explains why UCI has backtracked from McQuaid's comments. One hopes that is the case. But I would love to see it verified with a public statement.

 

[DirtyWorks]

That tactic won't work unless Lance has the necessary palms greased.

If Lance doesn't contest the sanction, USADA will report the result to the requisite governing bodies. The governing bodies will then take the required action. This is routine.....

Except this time it's Wonderboy and the rules don't apply and might makes right. ASO doesn't have to alter the standings. A triathlon federation outside the IOC can make stuff up too with no consequences.

The anti-doping code has holes in it for just this reason. What can the UCI dream up so as not to draw the ire of the IOC? I don't know. Pat and Hein are not that creative. Will they try? Probably.

The bottom line: There are a number of novel tactics to preserving the basic myth of being the guy with the most TdF wins and survive the USADA to earn appearance money another day. Ideally though, the USADA stuff still sets off the bonus rounds of litigation.

 

[Morbius]

So if he wants to fight on technicalities, it has to be something like

Go to arbirtration
Argue SOL, and try to get the number of charges reduced
Appeal this to CAS BEFORE any evidence hearings
Hope htat most of the charges and witnesses are somehow elimiated

 

[serottasyclist]

He can't. He's in the sporting playground. He has to play by their rules.

Sometimes an athlete wronged by the sporting playground's rules can sue, but he's got to be wronged first.

Lance can't say "I'm in the USOC--UCI--USAC--USADA jurisdiction for the TdF wins, but I'm out of their jurisdiction for the antidoping process."

I'm not saying he wins this argument, I'm just saying this is how he would go about fighting a USADA sanction without submitting to arbitration with USADA.

In other words, what you appear to be saying, and with which I agree, is that if a governing body refused to grant him a license based on the USADA sanction, he would have a right to sue in Fed. Dist. court (he having no arbitration contract with the body since they refused to grant him a license).

In that instance, the question would be "did the governing body wrongfully refuse to license Armstrong"? The issue in deciding that question would be "Did USADA have a right to sanction Armstrong?" (i.e., did they have jurisdiction to sanction him).

So this is how Armstrong could refuse to arbitrate with USADA, but still fight its sanction, and likely be able to do so in Fed. Dist. Court.

 

[DirtyWorks]

..I keep hoping the IOC will weigh, very forcefully and publicly, on WADA/USADA's side. Now perhaps the IOC has flexed its muscles behind the scenes....

The latter part of your reply is generally how the IOC works. It tends to accomplish things through proxy. For example, the IOC's recognized tennis federation banned a doctor that the USADA named and shamed. Unless this scandal somehow reaches into the IOC in a very public way that runs the risk of damaging the brand, there won't be anything public.

 

[Page Mill Masochist]

I'm not saying he wins this argument, I'm just saying this is how he would go about fighting a USADA sanction without submitting to arbitration with USADA.

In other words, what you appear to be saying, and with which I agree, is that if a governing body refused to grant him a license based on the USADA sanction, he would have a right to sue in Fed. Dist. court (he having no arbitration contract with the body since they refused to grant him a license).

In that instance, the question would be "did the governing body wrongfully refuse to license Armstrong"? The issue in deciding that question would be "Did USADA have a right to sanction Armstrong?" (i.e., did they have jurisdiction to sanction him).

So this is how Armstrong could refuse to arbitrate with USADA, but still fight its sanction, and likely be able to do so in Fed. Dist. Court.

If Armstrong tries that route with triathlons, then the triathlon governing bodies will have to decide whether embracing Armstrong or the Olympics is more important.

 

[BotanyBay]

Ashenden has an awesome Aussie sense of humor. He knows damn well that McQuaid is attempting to hide his involvement through the proactive use of Jedi Mind Tricks...

 

[fatandfast]

Correct. Once there is a USADA decision without arbitration there will be no avenues open to appeal.

This would be wrong under US labor laws. Lance needs to establish that he met all rules of employment. He was tested by races,sponsors and doctors treating him before during and after a life threating illness.

His employer and workplace established rules. That he not only complied with,but accelled at in every expectation. In any right to work environment Armstrong is the victim. He has to be able to work. If the boss says misuse a forklift.work thru lunch,or anything else illegal it is wrong but can hardly be his sole responsibility to air it.Even if he gained the most,million times more than everybody else,it's not his job to change the flow of the 100 year old river that is pro cycling.

We are just now seeing labor laws. In the US step in for NFL ,MLB and NBA players that went with the flow only to find out it led over Niagra Falls..
Armstrong wrong? Absolute. but he did not set up this system.

 

[BotanyBay]

Armstrong wrong? Absolute. but he did not set up this system.

Correct. That would be Bill Stapleton, Lance's agent. Bill sat on the committee that drafted the actual adjudication procedure that Lance is now claiming to be unjust.

And yes, Bill was his agent then (and now).

 

[Benotti69]

Correct. That would be Bill Stapleton, Lance's agent. Bill sat on the committee that drafted the actual adjudication procedure that Lance is now claiming is unjust.

Armstrong to sue Stapleton