USADA - Armstrong

[Merckx index]

I went through the whole complaint, and it's easy to see why the judge was so ****ed. It is just an extended diatribe, never missing a chance to slam WADA/USADA. If you could visualize WADA as a person rather than an organization, it sounds almost like a divorce pleading, where they say everything bad about the other person that they can imagine.

There is a great deal in it about how WADA has changed the rules to make it easier to get convictions. E.g., they have a gem in there about how poor Chris Campbell filed a dissent in a hearing, and after that WADA changed the rules so that an arb that disagrees with the majority cannot publish a separate opinion. What makes it so rich is that Campbell was the dissenting vote in both the Landis and Hamilton cases, two riders who later admitted doping, and who LA's team says have no credibility.

The one nugget I did take from it was their claim about jurisdiction. They say FL went to UCI with his allegations against LA, therefore UCI, not USADA, has to determine whether to act on those allegations. They claim that it all started with that.

 

[Zam_Olyas]

Suzanne Halliburton ‏@suzhalliburton
Attorney for @lancearmstrong just told me motion will be refiled by Wednesday at latest

 

[ManInFull]

The best part: "This Court is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement or vilification of Defendants, by sifting through eighty mostly unnecessary pages in search of the few kernels of factual material relevant to his claims,'' Sparks wrote.

 

[QuickStepper]

SNIP

Mr. Armstrong is now in a rather difficult position with this judge. Assuming USADA does not grant another extension to Armstrong, if Armstrong files his case again in Federal court, the judge might well sit on a decision until after Armstrong has to unload or get off the can with USADA. If Armstrong elects to go to arbitration, the judge could dismiss his complaint as being premature; could decide that no colorable claim had been made to support federal jurisdiction at this time. And if Armstrong does nothing, his case is effectively dismissed with prejudice twenty one days from now.

SNIP

You raise an interesting point, i.e., could the judge just sit on the TRO Application until after the 14th of July (assuming the complaint is timely re-filed)? The answer is "yes" the judge could do that, but I dont' think it's something that any federal judge would do, no matter who the defendant and plaintiff are if there is a real, live justiciable controversy and the harm that will be sustained is truly imminent and will cause irreparable damage to someone.

But I suppose it's within the realm of the possible, and like petitioning an appellate court for a writ of mandate (which isn't automatic by any stretch of the imagination), sometimes courts just don't act in a timely fashion for all sorts of reasons that mere laymen will ever really know or be able to discern.

 

[Deagol]

Right. It will take Armstrong's team a day to cut and paste everything they need, and then re submit it.

Wouldn't call it good news necessarily, but news that encourages that an end result will come sooner than later; the judge will not wait around for bull****.

Does anyone really believe there was any real content in there in the first place? People who follow this are getting used to Armstrong's tactics, one of which is obfuscation. It is conceivable that their entire filing was pure PR bull$%^&* with no actual merit whatsoever... i.e. plenty to cut, but nothing to paste into a new document.

Edit: I see some have read the whole complaint. Interesting to get their opinion

 

[Cimacoppi49]

Was there any doubt that he would refile the complaint? I would anticipate that it will be re-filed tomorrow or by Wednesday at the latest, in order to allow Judge Sparks (and his law clerks) sufficient time to research the claims and if the Judge is so inclined, to set a hearing on the TRO application for sometime before the 14th of July deadline. Alternatively, Sparks could simply issue a TRO and set it for hearing on whether or not a Preliminary Injunction should issue, pendente lite (i.e., for the duration of the litigation) until after the trial and judgment are entered.Or, he could once again determine that there's not enough meat there and simply dismiss it outright for many of the reasons that some people upthread have suggested (i.e., no subject matter jurisdiction, no state action, etc.).

I am still somewhat surprised after reading the entirety of the complaint, that Judge Sparks did what he did, but then again, it's Texas and they do what they want sometimes in Texas. Had this been filed in a California U.S. District Court (there'd be no basis for venue of course, so this is just a rhetorical example. . . but I'm just saying), based on my own more than 30 years of practice in federal courts here, I cannot think of any federal judge before whom I've appeared that would have dismissed this complaint on the basis that it contains too much information, since Rule 8 dismissals are usually reserved where there is a failure to allege enough. But upon re-reading the complaint in this instance, it's certainly not a model of clarity, and I can fully appreciate Judge Sparks' frustrations with it, because it refers to "Defendants" in the plural and yet none of the causes of action (denominated "Counts") identifies which defendant in particular is the subject of the three claims that are set out. There is roughly 70 pages of "Introductory" and "factual" allegations that precede the 3 counts contained in the complaint, and as the Order notes, much of it could be greatly condensed.

Those guys at Patton Boggs are going to be busy tonight re-editing the document to comply. Should be interesting to see what gets re-filed.

From what I've been told by an attorney friend in Houston, this is not at all surprising from Judge Sparks. He doesn't suffer fools.

 

[Cimacoppi49]

Suzanne Halliburton ‏@suzhalliburton
Attorney for @lancearmstrong just told me motion will be refiled by Wednesday at latest

And it will be interesting to see if the judge decides the motion for a TRO before next week, if he doesn't just deny it outright.

 

[ManInFull]

The one nugget I did take from it was their claim about jurisdiction. They say FL went to UCI with his allegations against LA, therefore UCI, not USADA, has to determine whether to act on those allegations. They claim that it all started with that.

Hmmmm...Do you think that the judge will bite on that nugget? Really slick to try to move it to an organization that LA owns.

 

[Cimacoppi49]

You raise an interesting point, i.e., could the judge just sit on the TRO Application until after the 14th of July (assuming the complaint is timely re-filed)? The answer is "yes" the judge could do that, but I dont' think it's something that any federal judge would do, no matter who the defendant and plaintiff are if there is a real, live justiciable controversy and the harm that will be sustained is truly imminent and will cause irreparable damage to someone.

But I suppose it's within the realm of the possible, and like petitioning an appellate court for a writ of mandate (which isn't automatic by any stretch of the imagination), sometimes courts just don't act in a timely fashion for all sorts of reasons that mere laymen will ever really know or be able to discern.

Federal judges do this kind of thing all the time, especially where delaying a decision will lead to a dismissal for reasons of a claim not being ripe for consideration. The claim is then dismissed w/o prejudice to refiling post-arbitration. Sparks could also order a hearing, which would require a sufficient period of time for USADA to prepare. Armstrong will ask for a decision/hearing by Friday. But, he's already got 1+ strikes against him in this court.

BTW, the harm is hardly imminent when the arbitration hearing is unlikely to to begin until November. I predict Judge Sparks will have this matter off his docket by Friday or Monday at the latest.

 

[Anonymous]

Does anyone really believe there was any real content in there in the first place? People who follow this are getting used to Armstrong's tactics, one of which is obfuscation. It is conceivable that their entire filing was pure PR bull$%^&* with no actual merit whatsoever... i.e. plenty to cut, but nothing to paste into a new document.

Edit: I see some have read the whole complaint. Interesting to get their opinion

Sure. The double jeopardy argument

 

[thehog]

And it will be interesting to see if the judge decides the motion for a TRO before next week, if he doesn't just deny it outright.

Surprising he hasn't tweeted the filing. The judge will be ****ed all that the filing in full was released to the media. They would have went against him. If I was Armstromg I'd think hard about the refille. Luskin should think hard about it it will probably effect him in terms of reputation than Armstrong.

Still can't see how a judge would even review it until its played out in arbritration.

 

[Kender]

The one nugget I did take from it was their claim about jurisdiction. They say FL went to UCI with his allegations against LA, therefore UCI, not USADA, has to determine whether to act on those allegations. They claim that it all started with that.

interesting...

Especially since the email was sent to Steve Johnson, USA Cycling and not the UCI. The UCI only ended up with it after the leak

Why the hell would Landis go to the UCI when he also implicated them with corruption

 

[Jeremiah]

He has nothing.

Does anyone really believe there was any real content in there in the first place? People who follow this are getting used to Armstrong's tactics, one of which is obfuscation. It is conceivable that their entire filing was pure PR bull$%^&* with no actual merit whatsoever... i.e. plenty to cut, but nothing to paste into a new document.

Edit: I see some have read the whole complaint. Interesting to get their opinion

The Court grants leave to amend, provided Armstrong can limit his pleadings to: (1) the basis for this Court's jurisdiction; (2) the legal claims he is asserting; (3) against which Defendants each claim is being made; (4) the factual allegations supporting each claim; (5) a brief statement of why such facts give rise to the claim; (6) a statement of the relief sought; and (7) why his claims entitle him to such relief.


How long can it take to fill in those blanks? He has no legal claims to stop USADA whatsoever. From doing what? What Stapleton and committee authorized/empowered USADA to do? It's ridiculous... All bs.

 

[Cimacoppi49]

Sure. The double jeopardy argument

That's cold. Very cold.

 

[thehog]

interesting...

Especially since the email was sent to Steve Johnson, USA Cycling and not the UCI. The UCI only ended up with it after the leak

Why the hell would Landis go to the UCI when he also implicated them with corruption

More to the point this is not about Floyd Landis. It's USADA taking action against Lamce Armstrong based on the rules agreed by both parties.

 

[Cimacoppi49]

More to the point this is not about Floyd Landis. It's USADA taking action against Lamce Armstrong based on the rules agreed by both parties.

That's one of the biggest hurdles Armstrong has to get over. He will also have his laudatory statement about USADA and their vindicating him (made a year or so ago?) thrown in his face. That's the kind of mealy mouth stuff that tends to po judges.

 

[spetsa]

Looks like the judge was not an LA fanboy.

 

[Armanius]

Federal Judge has dismissed it. Sorry if posted already.

Ouch! What a beat down by Judge Sparks!!

 

[QuickStepper]

More to the point this is not about Floyd Landis. It's USADA taking action against Lamce Armstrong based on the rules agreed by both parties.

Hog,

I have seen repeated references to the claim that "the parties both agreed" to the "rules" that USADA now asserts it is following (in terms of procedures). And yet reading Armstrong's Motion for TRO and the Memo of P's and A's in support thereof, the claim is made as follows:

1. Compelling a party to participate in an arbitration is a matter of contract law;

2. Without a contract signed by the party who is being compelled to participate that contains an enforceable arbitration clause, USADA lacks power to compel such a process.

3. Armstrong, if I'm reading the filing correctly, asserts that he only agreed to UCI's contract when he signed his license, and that as such, he only agreed to the UCI's ADR procedures, and that these procedures, at the time he signed his license application(s) did not include any reference to empowering USADA to adjudicate anything.

4. Since he's not party to any contract with USADA, he can't be compelled to participate in the USADA arbitration process, and hence, the court should enjoin USADA from proceeding forward.

My question to you is that I've seen many people claim here that UCI's documents either expressly or implicitly require any athlete to also participate in ADR with that athletes own NGB. Do you have any specific citation to any document that us mere laymen might look at in order to determine whether Armstrong's claim has any merit?

 

[MacRoadie]

Finally, someone outside The Clinic makes the connection:

In a twist, Armstrong is arguing against rules that his personal manager, Bill Stapleton, helped draft when he was a board member of the U.S. Olympic Committee and served as the chairman of the athletes' advisory council.

ESPN - Lance Armstrong can refile in 20 days

 

[MarkvW]

I don't feel that. I think LA hires only Fanboy lawyers who say what he needs to hear. Who else would have come up with 80 pages of crap like that? Tell Armstrong he has no case? You're gone!

I also disagree with those who think the judge implied there was something of merit in what was filed, and LA just needs to cut out the crap.

The judge definitely said LA needs to cut out the crap, because that's required to see if there is anything of merit in what is being filed.

No, Chew is right. Armstrong has hired very skilled lawyers. They filed that complaint to make it difficult for USADA to sort it all out and answer it. In some courts that would work. They just misread their judge. The guy who pointed out the pro hac vice status deserves a gold star for that one! If Lance had just one local lawyer on the team, they would have been told that stuff doesn't play with that judge.

Sometimes lawyers forget that the judge is a human being who actually has to read what they write.

 

[knewcleardaze]

Here's a link to Armstrong's pleading.

http://www.scribd.com/doc/99598039/Lance-Armstrong-Sues-to-Stop-Doping-Case

 

[Mr.DNA]

I absolutely love the judge's smack down! Hopefully, the judge will do the same again if Lance actually refiles.

Just between you and me, I agree. It was worth whatever it cost. Every time I see LA's mug from now on I'll think "self-aggrandizement"...

 

[MarkvW]

Hog,

I have seen repeated references to the claim that "the parties both agreed" to the "rules" that USADA now asserts it is following (in terms of procedures). And yet reading Armstrong's Motion for TRO and the Memo of P's and A's in support thereof, the claim is made as follows:

1. Compelling a party to participate in an arbitration is a matter of contract law;

2. Without a contract signed by the party who is being compelled to participate that contains an enforceable arbitration clause, USADA lacks power to compel such a process.

3. Armstrong, if I'm reading the filing correctly, asserts that he only agreed to UCI's contract when he signed his license, and that as such, he only agreed to the UCI's ADR procedures, and that these procedures, at the time he signed his license application(s) did not include any reference to empowering USADA to adjudicate anything.

4. Since he's not party to any contract with USADA, he can't be compelled to participate in the USADA arbitration process, and hence, the court should enjoin USADA from proceeding forward.

My question to you is that I've seen many people claim here that UCI's documents either expressly or implicitly require any athlete to also participate in ADR with that athletes own NGB. Do you have any specific citation to any document that us mere laymen might look at in order to determine whether Armstrong's claim has any merit?

This is a weird argument. If USADA is not the UCI's ADR process for USA Cycling's members, then what is Lance's gripe? That some citizens who have nothing to do with him are about to make a decision that does not affect him? Seems kinda goofy to me.

 

[Ninety5rpm]

No, Chew is right. Armstrong has hired very skilled lawyers. They filed that complaint to make it difficult for USADA to sort it all out and answer it. In some courts that would work. They just misread their judge. The guy who pointed out the pro hac vice status deserves a gold star for that one! If Lance had just one local lawyer on the team, they would have been told that stuff doesn't play with that judge.

Sometimes lawyers forget that the judge is a human being who actually has to read what they write.

The importance of which is known to anyone who has watched a few episodes of Law & Order.

I expect a fanboy lawyer to flub on such a point, but not very skilled legal expert. They should have at least read his wiki page. My guess is that LA has hired only Kool-Aid drinkers, because he can only tolerate Kool-Aid drinkers.

Or maybe I've watched too many episodes of L&O Criminal Intent.