USADA - Armstrong

[ChewbaccaD]

And prior to that, even the issue of whether the court has jurisdiction is in serious question, right?

No, if I remember my Civ Pro correctly, standing comes first...at least that is the way I think we had to order it on the exam.

 

[Ninety5rpm]

Here's how SI explains the state actor argument:

In Armstrong's view, although USADA is nominally a nongovernmental entity, it operates as a state actor, meaning it acts on behalf of the government. If USADA is a state actor, it would be required to provide athletes with constitutional safeguards. Armstrong has a point that the quasi-criminal nature of USADA's proceedings may command greater due process. USADA is a creation of the federal government, receives funding from the federal government and regulates athletes on behalf of the federal government. As Armstrong detailed in his complaint, USADA also investigated him with cooperation from the Justice Department and FBI. Logically, if USADA sounds like the government, talks like the government and gets funding from the government, there is a good argument that it is the government.

Read more: http://sportsillustrated.cnn.com/20...Armstrong-sues-USADA/index.html#ixzz20BLkYQx9

Okay, so if that is the basis of their argument, maybe they can claim something, but it still begs the standing question.

 

[Ninety5rpm]

No, if I remember my Civ Pro correctly, standing comes first...at least that is the way I think we had to order it on the exam.

Okay. I was just going by the order of the items the judge listed.

(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.

Read more: http://www.velonation.com/News/ID/1...-substantial-modifications.aspx#ixzz20BNLOzu2

 

[mewmewmew13]

Hilarious, I had the same reaction when I got back at 5pm. I didn't want to look, but then someone tweeted that the judge dismissed it, and it seemed like the world was a better place all of a sudden.

Me too.

 

[Race Radio]

That's hilarious. Loved it. But the credit goes to a guy on twitter called dimspace.

Absolutely, Dim is the Man.

 

[PedalPusher]

No, if I remember my Civ Pro correctly, standing comes first...at least that is the way I think we had to order it on the exam.

Jurisdiction is always first, if the court doesn't have it, it can't rule on standing.

 

[PedalPusher]

Here's how SI explains the state actor argument:



Read more: http://sportsillustrated.cnn.com/20...Armstrong-sues-USADA/index.html#ixzz20BLkYQx9

Okay, so if that is the basis of their argument, maybe they can claim something, but it still begs the standing question.

Tried before by others, and failed...

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1023&context=sportslaw

 

[Maxiton]

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.

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.

Skilled, experienced federal practice lawyers do not normally file garbage like this. This has more to do with PR and Fabiani than lawyering. There are six federal judges sitting in Austin. I'll bet any of them would have had much the same reaction. Armstrong's long time Austin attorney, Tim Herman, is a seasoned federal trial attorney practicing in Austin, and should have known better. This filing says more about Armstrong and Fabiani than anyone else. Look to see Armstrong's lawyers doing more to control their client from now on.

This judge made a clear warning. Make sure you have your facts straight, especially jurisdiction. I think Judge Sparks has made it very clear, either meet the criteria or don't file at all, and if you do file without making a concise argument for jurisdiction, harm incurred etc, don't be surprised when I sh*t can your motion.

There are a lot of fed district court judges that follow FRCP to the letter. Don't dare file a voluminous motion. State the facts, hit all your points of law or face the wrath of the court.


And to another point, whoever said it. Yes, courts love handing actions off to arbitration if they can. Dockets are backed up, some courts have mandatory arbitration now. The idea that this court will place an injunction on the arbitration process is beyond sane. Only if team Lance can REALLY prove some kind of malfeasance in the process or the arbitration process, which is governed by American Arbitration Association....not likely.

Then there is the Amateur Sports Act which clearly states arbitration must happen, and congress did not give any cause or remedy for private action.

Outside the technicality, my opinion still stands. MOTION DENIED, lack of subject matter jurisdiction. And failure to state a claim.

And I did say earlier this filing would p*ss off the court due to it's length and non specificity in claims of harm. Nothing more than using the court for PR. Not a smart move if they are serious with their motion.

Apparently Lance's paid liars have refiled. It will be interesting to read the abridged version as I suffer through the other 3 documents and found nothing that made any sense.

Lance agreed to play by USADA's rules. Multiple rulings over the years have found that not just USADA but also their various USOC entities, are not state actors.

What am I missing? Talking points are not a defense.

Imagine you're in LA's position and have no real basis, or only the thinnest, for an injunction. You can file for one, of course, but know before hand it will be denied. What to do?

Why not fill it with all the PR crap you can think of and then leak it online? If a miracle happens and the judge bites, great. If not, you've at least turned it into a vehicle for getting the message out.

Can anyone think of any other benefit, now or later, that might arise from this filing? Is it true they've already refiled?

VERY TALL....Texas sized, will need big balls clanking....oops, guess we know where this is heading!

What is the sound of one ball clanking?

 

[Race Radio]

Assuming you are right that his license was issued by USA Cycling (and wasn't it USCF back when Armstrong was racing, not USA Cycling, which is actually a different organization?), how can he have agreed to comply with USADA disciplinary and adjudicatory procedures when USADA didn't even exist for many of the years for which they are now going after him? I'm just asking, because if I am getting the gist of Armstrong's argument about compelling arbitration, it's not a matter of whether someone agrees to abide by, for example UCI's procedures, but whether there is actually an enforceable agreement that requires him to comply with USADA's adjudicatory process.

Here's a hypothetical: You are a widget manufactuer. You agree to supply me with widgets for a period of the next 10 years at a price and in quantities that we specify in our contract. Our contract expressly says that all widgets manufactured and sold by you are to be inspected by Company A for quality control purposes and that we both agree that Company A shall have the final decision on whether the widgets you sell me are or are not in compliance with the specifications called for under our contract.

We also insert a clause in our contract that requires you and me, as between us to arbitrate any disputes we may have that arise during the term of our contract. You and I sign the contract. Company A, however, is not a party to our contract and does not sign it.

Given these facts, is Company A required to arbitrate any disputes that may arise between it and either of us? Absent a separate agreement between you and me, on the one hand, and Company A, on the other hand, can Company A compel us to arbitrate any disputes that may arise between me and Company A, or you and Company A?

That's essentially the argument that I believe Armstrong has raised in his Motion for TRO, i.e., that he may have agreed to arbitrate and abide by UCI's procedures in applying for a UCI license, but he never signed anything that gave USADA power to adjudicate or press claims against him based on non-analytical claims.

Maybe you're right, and USADA's power is implicit based on some of the other documents that an athlete is required to give assent to in order to gain a licence, but that's really far different than saing one has actually agreed to such procedures in advance. Appreciate your thoughts on this, but I'm sure that someone in the 400+ pages which precede this may have already addressed the issue, and if so, I apologize in advance. I'm just trying to understand the framework which makes up the UCI, USA Cycling/USADA framework as it pertains to the claims prosecution and procedure, which seems anything but clear.

Early on it wasn't even USCF but USPro. I think they merged in 1995

Every year since 2004 Armstrong has signed the WADA code.

 

[Race Radio]

Here's how SI explains the state actor argument:



Read more: http://sportsillustrated.cnn.com/20...Armstrong-sues-USADA/index.html#ixzz20BLkYQx9

Okay, so if that is the basis of their argument, maybe they can claim something, but it still begs the standing question.

Many have tried this. Even as far back as USTF Vs. Slaney and also Butch Reynolds. They have all failed.

It also hurts that the Feds have yet to share any evidence. If USADA was indeed part of the state wouldn't the Feds follow the rules?

 

[DomesticDomestique]

I really appreciate how productive the clinic has been today with all the legitimate legal debate. I bailed on the first round because I was so enthralled with my new favorite judge. To get back to the legalese:

To those who read the entire Armstrong motion, was there any argument on the three tests of "state action" 1) Public Function, 2) Entanglement or 3) Entwinement? It would seem that if they want to make a state actor case, they would need to prove it on one of these grounds.

 

[PotentialPro]

Many have tried this. Even as far back as USTF Vs. Slaney and also Butch Reynolds. They have all failed.

It also hurts that the Feds have yet to share any evidence. If USADA was indeed part of the state wouldn't the Feds follow the rules?

I believe the next argument step is one akin to EPA or FCC that has their own adjudication system. USADA resembles that more in my mind. In that EPA or FCC model, their complaint system is specific to them.

 

[ggusta]

Marketing people at Anheuser Busch InBev are being sent substantial bonus checks for having the foresight to film and run Mich Ultra ads not featuring Lance.

 

[ChewbaccaD]

Jurisdiction is always first, if the court doesn't have it, it can't rule on standing.

Then I didn't remember correctly, but that makes sense now.

 

[Mshengu]

This is a big win for the sport of cycling.

 

[MarkvW]

Imagine you're in LA's position and have no real basis, or only the thinnest, for an injunction. You can file for one, of course, but know before hand it will be denied. What to do?

Why not fill it with all the PR crap you can think of and then leak it online? If a miracle happens and the judge bites, great. If not, you've at least turned it into a vehicle for getting the message out.

Can anyone think of any other benefit, now or later, that might arise from this filing? Is it true they've already refiled?



What is the sound of one ball clanking?

I think Lance craves the federal civil discovery process.

 

[PotentialPro]

I really appreciate how productive the clinic has been today with all the legitimate legal debate. I bailed on the first round because I was so enthralled with my new favorite judge. To get back to the legalese:

To those who read the entire Armstrong motion, was there any argument on the three tests of "state action" 1) Public Function, 2) Entanglement or 3) Entwinement? It would seem that if they want to make a state actor case, they would need to prove it on one of these grounds.

While trying to find rules on the three tests and how to apply I came across this: http://www.foulston.com/lib/article.cfm?id=430

And within there is an aspect stated: When this situation arises, the Court must "step through an analytical looking glass" to determine whether the state actor's compliance with the private party's rules turn the private party into a state actor. See National Collegiate Athletic Assoc. v. Tarkanian 488 U.S. 179, 193 (1988).

This stems from 42 U.S.C. 1983 litigation on proper application of state action. I don't see by reading this guide, although not specifically on point, how the USADA is not the proper adjudicator, and that this case should be heard in any other place. Specifically, the purchase of a racing license, from your NGB, and with it UCI designation, begins an agreement between the NGB, UCI, WADA and in this case USADA as the bodies the govern, enforce and create the rules. UCI has always been the top of the hierarchy. It has to start at the bottom and then go up. Violations begin on a local level.

 

[Random Direction]

I think Lance craves the federal civil discovery process.

Doesn't discovery cut both ways?

 

[Maxiton]

I think Lance craves the federal civil discovery process.

Yeah, sure, but that doesn't mean he'll get it. I mean, other than as a hail Mary pass, what is the purpose of trying to get an injunction you're almost certain to be denied? That's my question, but I suppose the answer is, it's all they've got.

 

[Racelap]

Marketing people at Anheuser Busch InBev are being sent substantial bonus checks for having the foresight to film and run Mich Ultra ads not featuring Lance.

Michelob Ultra, now EPO free.

 

[Oldman]

Doesn't discovery cut both ways?

Let it be the Scemitar of Truth...let the cutting begin.

 

[Jack Ruby]

http://www.liderendeportes.com/Noticias/Mas-Deportes/Demanda-de-Lance-Armstrong-no-camina.aspx

 

[MarkvW]

Doesn't discovery cut both ways?

Yes, but what useful stuff can USADA get from Lance that they don't already have. And discovery is very expensive. Flying on jets, lawyers, court reporters, expert witness fees . . . it all adds up. It's a wonderful tool for the richer opponent to exhaust the poorer one.

 

[ChewbaccaD]

Jurisdiction is always first, if the court doesn't have it, it can't rule on standing.

I just read some case law and standing is a jurisdictional issue. A court cannot have SMJ if the party who files doesn't have standing. In fact, I keep running into sentences like this:

"Standing is a jurisdictional matter antecedent to the right to relief."

"When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction."

"If a court determines a party lacks standing, it 'must dismiss the case because it does not have jurisdiction of the substantive issues presented.'"

"only a party who has standing may invoke the jurisdiction of a court"

So a court actually can rule on standing before it has jurisdiction because if it rules you don't have standing, the court never had jurisdiction. A court does not have to have jurisdiction to rule on standing at all.

 

[MarkvW]

Yeah, sure, but that doesn't mean he'll get it. I mean, other than as a hail Mary pass, what is the purpose of trying to get an injunction you're almost certain to be denied? That's my question, but I suppose the answer is, it's all they've got.

I think that's it. There's always a chance.