USADA - Armstrong

[poupou]

Sure, but a lot of people in the thread countered that with "but, but, but...the feds, the feds!!! STATE ACTOR!!!" So why not finish the analysis? The result of that analysis is more damning:

(1) No due process rights b/c this is a private action.
(2) No due process b/c USADA is not depriving Lance of a constitutionally protected interest.
(3) Even if due process is required, the arbitration provides sufficeint process.

If Lance doen't want to play with WADA rules, no problem, that only means that he was not aprt of UCI races or he can chose an arbitration in another country maybe to be fair with others riders who accepted those rules.

There is few times he complained about that Federal Investigayion for facts that he said was not in USA, and now he wants not to be prosecuted as have been his fellow riders.
Lance is in disarray to try to grasp straws, we all know that he cheated and lied.

 

[PedalPusher]

Sure, but a lot of people in the thread countered that with "but, but, but...the feds, the feds!!! STATE ACTOR!!!" So why not finish the analysis? The result of that analysis is more damning:

(1) No due process rights b/c this is a private action.
(2) No due process b/c USADA is not depriving Lance of a constitutionally protected interest.
(3) Even if due process is required, the arbitration provides sufficeint process.

Well you're taking it past a point of relative simplicity. And really irrelevant.

It's very simple. Private action, no due process. If declared a state actor, the right to due process, i.e constitutional protections. The rest is immaterial if they are declared a state actor.

 

[serottasyclist]

If Lance doen't want to play with WADA rules, no problem, that only means that he was not aprt of UCI races or he can chose an arbitration in another country maybe to be fair with others riders who accepted those rules.

Lance can choose to accept sanctions (i.e., be no part of UCI races or WCT triathalons), but he can't choose to arbitrate this is a different country. The only thing he can do is try to shut down the current arbitration commenced by USADA. He cannot remove the proceeding to a federal court, or change venue in any other way.

If he succeeds in shutting down the USADA arbitration then USADA could provide their evidence to another anti-doping agency, but it is unlikely that any other anti-doping agency will receive the cooperation of the eye witnesses which is likely key to the case.

 

[serottasyclist]

Well you're taking it past a point of relative simplicity. And really irrelevant.

It's very simple. Private action, no due process. If declared a state actor, the right to due process, i.e constitutional protections. The rest is immaterial if they are declared a state actor.

I'm glad you think the issue is that simple. I don't. I think there is a signficant question as to whether he has a right to due process even if USADA is found to be a state actor in this instance.

I also think since USADA was cooperating with federal agents into matters closely related to this case that folks on this thread have rightly questioned whether the boiler plate position that USADA is not a state actor holds true in this case.

In fact, contrary to your point, the ridiculous amount of words I've typed above are ONLY relevant IF USADA is found to be a state actor.

Sorry if I bored you.

 

[Turner29]

Well you're taking it past a point of relative simplicity. And really irrelevant.

It's very simple. Private action, no due process. If declared a state actor, the right to due process, i.e constitutional protections. The rest is immaterial if they are declared a state actor.

Good point, which is why Armstrong wants this to become a criminal trial -- the burden of proof shifts from preponderance of evidence to reasonable doubt. In addition, he would have a jury trial and American juries are notoriously easily manipulated in high-profile cases, i.e., Roger Clemens. Have no fear, there is not a single Federal judge who will side with his legal nonsense as it is groundless.

The fact that the USADA took the unusual step of granting Armstrong a 30 day extension just to decide if he is going to accept findings or appeal to the AAA leads me to think the USADA has accumulated very, very strong evidence.

 

[serottasyclist]

Very good point which is why Armstrong wants this to become a criminal trial, as the burden of proof shifts from preponderance of evidence to reasonable doubt. In addition, he would have a jury trial and American juries are very, very easily manipulated in high-profile cases, i.e., Roger Clemens.

Have no fear, there is not a single Federal judge who will side with his legal nonsense. That fact that the USADA took the unusual step of granting Armstrong a 30 day extension just to decide if he is going to accept findings or appeal to the AAA leads me to think the USADA has accumulated very, very strong evidence.

How would Armstrong convert this into a criminal trial? He is trying to shut it down all together. If he wins before Judge Sparks, then the USADA arbitration is shut down. USADA will have no other venue to pursue the doping charges, and no other agency would have a right to pruse doping charges against him.

Put another way, Armstrong is not requesting Judge Sparks to require USADA to provide him with due process, he is saying USADA can't proceed because they don't provide due process.

 

[PedalPusher]

I'm not so sure this is going to open any floodgates.

Do we think USADA has MORE info than the feds?!? I doubt that. So the feds already have all the relevant facts in front of them. If (1) the feds failure to proceed earlier was based on an unwillingness to pursue Armstrong only because of who he is, not because of what they had discovered and (2) the USADA case dramatically alters public perception of Armstrong, then maybe, but otherwise, I don't see why this arbitration would change anything regarding federal investigation.

Additionally, I'm sure whatever settlement occurred between Armstrong and SCA was binding. So "new facts" developed in the arbitration won't be sufficient to reopen that case, right? An express finding of perjury by any of the witnesses in the SCA proceeding would give SCA an opening, because that would prove the prior proceeding was a sham. But I don't think simply having contradicting testimony brought up in an unrelated case will be anywhere near enough to overcome estoppel, even if that contradicting testimony is able to persuade the arbitrators. SCA could've deposed all of those teamates back when, etc.

Any new facts that seriously change the outcome of the arbitrators finding would be grounds to reopen. And it would be perjury if Lance came in to USADA and admitted to doping. You would have to read a few of the posts to understand the context. It does not matter if they could have deposed "all" those teammates back then.

You are not able to put it together. The Fed case was about fraud, they may have some of the same facts or more or less. Irrelevant. They are looking at RICO from what I put together. If there is finding of all the charges against Lance and Johan, they will be able to subpoena the hearing transcripts like they did with SCA. And then they will have RICO.

The doping was irrelevant to the FEDS, they could find out about the doping, but without key elements it was pointless. You need two or mo more of specific predicated crimes to happen during a ten year period. Based on the charging info from USADA, there are grounds to support RICO suit.

It will not just end with the USADA hearing.

 

[ChewbaccaD]

I understand and agree with your point -- any way you dice it, Armstrong's due process claim is bunk. I'm simply laying out the full due process analysis, which hasn't to my knowledge been laid out in this thread yet (though I confess to not having read all 500 some odd pages of posts). I think you're missing my point because you are viewing the entire analysis with the presumption that Armstrong doped.

A burglar only has to return the property he stole if he is found guilty of theft -- and he is afforded due process to determine whether or not he stole it. If we presume for the moment that USADA is a state actor, then the next question we have to ask under due process is "is USADA proposing a taking of property?" The answer to that question is "well, if he doped, no; if he didn't dope, then yes." So we can't really answer that question at all until some proceeding comes to a conclusion. That's why I think its a strange issue.

Again, the issue is likely completely unimportant because even if USADA is somehow a state actor, surely the arbitration is sufficient process for the proposed taking and so is sufficient for determining if Armstrong is the rightful owner of the winnings and/or taking those winnings from him.

The thing you seem to be missing is that the outcome of the process has nothing to do with property in either case. If he isn't guilty, he isn't deprived of property. If he is guilty, he isn't deprived of property because it was never his to possess. It is a fine nuance, but none the less, your question presumes something that is not factually correct, that being that Armstrong case is an effort to deprive him of property. His case is to determine if he doped. If he did indeed dope, the property was never his. If he didn't, the property is his and will not be taken. I don't say this to sound mean, but you don't seem to understand the distinctions here, and they are very important. Property is a possessory interest, it isn't a thing. If no possessory interest existed, the government is not depriving you of anything. Let me give an example of the difference here: If Lance is found guilty, they cannot take his car because he legally owns the car and nothing in the trial will alter that because his possessory interest was established by his taking of title. If Lance is found guilty, anything that he gained from that in relation to sport was never his. He is merely giving back something he never owned.

BTW, I am not going to explain this again. If you don't understand why your question is irrelevant, then you don't. I will simply leave you to your belief irrespective of its flaw. I don't have any more time or energy fighting issues that someone is unwilling to deviate from his line on. I spent over a day trying to get some people with an ignorance of a topic they insisted was absolutely vital to the continued existence of mankind to understand that their entire basis was one of supposition based on PR spin. I really don't care to spend any more time on such a thing. Have a nice day.

 

[PedalPusher]

How would Armstrong convert this into a criminal trial? He is trying to shut it down all together. If he wins before Judge Sparks, then the USADA arbitration is shut down. USADA will have no other venue to pursue the doping charges, and no other agency would have a right to pruse doping charges against him.

Put another way, Armstrong is not requesting Judge Sparks to require USADA to provide him with due process, he is saying USADA can't proceed because they don't provide due process.

It would not be criminal, it is still a civil action. If the judge was swayed by some argument, it would be moved into court, or court supervised arbitration. It has happened before.

 

[serottasyclist]

Any new facts that seriously change the outcome of the arbitrators finding would be grounds to reopen. And it would be perjury if Lance came in to USADA and admitted to doping. You would have to read a few of the posts to understand the context. It does not matter if they could have deposed "all" those teammates back then.

You are not able to put it together. The Fed case was about fraud, they may have some of the same facts or more or less. Irrelevant. They are looking at RICO from what I put together. If there is finding of all the charges against Lance and Johan, they will be able to subpoena the hearing transcripts like they did with SCA. And then they will have RICO.

The doping was irrelevant to the FEDS, they could find out about the doping, but without key elements it was pointless. You need two or mo more of specific predicated crimes to happen during a ten year period. Based on the charging info from USADA, there are grounds to support RICO suit.

It will not just end with the USADA hearing.

My understanding of the law of estoppel is that new facts are not sufficient to overcome a binding agreement. That's even more pressing when those facts were available at the time of the original proceeding (i.e., Hincapie et al. were known to be teamates of Lance and could've been deposed by SCA). Only if those facts were concealed through fraud in the prvious proceeding can they be grounds for reopening.

Regarding RICO claim, my only point is that I don't see how the feds would be relying on this arbitration to provide a factual basis for such a claim -- surely Hincapie et al. are not going to provide greater details in this arbitration than they did before the grand jury?

 

[PedalPusher]

I'm glad you think the issue is that simple. I don't. I think there is a signficant question as to whether he has a right to due process even if USADA is found to be a state actor in this instance.

I also think since USADA was cooperating with federal agents into matters closely related to this case that folks on this thread have rightly questioned whether the boiler plate position that USADA is not a state actor holds true in this case.

In fact, contrary to your point, the ridiculous amount of words I've typed above are ONLY relevant IF USADA is found to be a state actor.

Sorry if I bored you.

Ugh, You may think there is a significant question as to due process if they are declared a state actor, but the law and the courts disagree with you. If declared a state actor (which they won't be) then he is entitled due process. No argument, no counterpoint, fact of law. Simple. Get it? Or do you argue for the sake of arguing?

 

[serottasyclist]

It would not be criminal, it is still a civil action. If the judge was swayed by some argument, it would be moved into court, or court supervised arbitration. It has happened before.

Wouldn't Lance's contract/jurisdiction claim become significantly more relevant? He agreed to arbitrate with USADA according to AAA rules, nothing else. Upon further thought, perhaps USA Cycling could pursue a claim for breach of contract in civil court...but I don't see what basis USADA would have for pursuing a claim in civil court.

I can only see harm coming to Lance in moving this to civil court. Granted, he could potentially get an order sealing the case, but still...

 

[serottasyclist]

Ugh, You may think there is a significant question as to due process if they are declared a state actor, but the law and the courts disagree with you. If declared a state actor (which they won't be) then he is entitled due process. No argument, no counterpoint, fact of law. Simple. Get it? Or do you argue for the sake of arguing?

Why would he be automatically entitled to due process? Have the courts previously determined that forfeiture of prize money = property taking?

 

[PedalPusher]

My understanding of the law of estoppel is that new facts are not sufficient to overcome a binding agreement. That's even more pressing when those facts were available at the time of the original proceeding (i.e., Hincapie et al. were known to be teamates of Lance and could've been deposed by SCA). Only if those facts were concealed through fraud in the prvious proceeding can they be grounds for reopening.

Regarding RICO claim, my only point is that I don't see how the feds would be relying on this arbitration to provide a factual basis for such a claim -- surely Hincapie et al. are not going to provide greater details in this arbitration than they did before the grand jury?

Because doping is not a crime, look past the doping at the other charges, then read the predicate offenses for RICO. (hint: also look at the controlled substances act Schedule III)

 

[serottasyclist]

Because doping is not a crime, look past the doping at the other charges, then read the predicate offenses for RICO. (hint: also look at the controlled substances act Schedule III)

I completely understand that doping is not a crime. That's why I'm perplexed by why anything that happens (aside from perhaps perjury) in this case can be of benefit to the FEDS. Even if Lance gets on the stand and says "I never doped" and the arbitration finds a doping offense, that doesn't do the FEDS any good. A defendant in a criminal trial is not guilty of perjury for saying he didn't do it just because a jury finds he did.

So Hincapie et al. testify to criminal actions by LA -- you're telling me that they were never asked about those activities before the grand jury? (and didn't Hamilton say that he confessed to doping for the first time while on the stand?)

What additional facts are going to come out of this arbitration that help the FEDS in any way?

 

[PedalPusher]

Why would he be automatically entitled to due process? Have the courts previously determined that forfeiture of prize money = property taking?

No, the courts found it is a constitutional RIGHT to due process when the STATE takes action against you. IF DECLARED A STATE ACTOR, then he gets due process. Simple.

 

[PedalPusher]

I completely understand that doping is not a crime. That's why I'm perplexed by why anything that happens (aside from perhaps perjury) in this case can be of benefit to the FEDS. Even if Lance gets on the stand and says "I never doped" and the arbitration finds a doping offense, that doesn't do the FEDS any good. A defendant in a criminal trial is not guilty of perjury for saying he didn't do it just because a jury finds he did.

So Hincapie et al. testify to criminal actions by LA -- you're telling me that they were never asked about those activities before the grand jury? (and didn't Hamilton say that he confessed to doping for the first time while on the stand?)

What additional facts are going to come out of this arbitration that help the FEDS in any way?

You are looking to narrow...

 

[ChewbaccaD]

No, the courts found it is a constitutional RIGHT to due process when the STATE takes action against you. IF DECLARED A STATE ACTOR, then he gets due process. Simple.

PP, this person does not appear to be interested in discussing reality IMO. Maybe he is legitimate, but something smells here to me. I am going to ignore him from now on if he continues to keep making arguments irrespective of clear evidence that his premise is flawed. I fear I may have brought this on the forum. I won't go into details, but I get the feeling that this person posts in another place and because of some things that happened, decided to come here and be obtuse and frustrating.

 

[serottasyclist]

No, the courts found it is a constitutional RIGHT to due process when the STATE takes action against you. IF DECLARED A STATE ACTOR, then he gets due process. Simple.

Well, this argument has become circular. That is more than an oversimplication of our Constitutional rights. Its a mistatement of the law.

 

[serottasyclist]

You are looking to narrow...

...and if I am, I truly am interested in having someone show me the broader picture. Seriously.

 

[Turner29]

How would Armstrong convert this into a criminal trial? He is trying to shut it down all together. If he wins before Judge Sparks, then the USADA arbitration is shut down. USADA will have no other venue to pursue the doping charges, and no other agency would have a right to pruse doping charges against him.

Put another way, Armstrong is not requesting Judge Sparks to require USADA to provide him with due process, he is saying USADA can't proceed because they don't provide due process.

You do make a point regarding would the USADA have any course should a judge rule that the USADA is actually an agent of the US government. This seems to be the legal argument, while Armstrong's concern about "due process" are more public facing and part of his disinformation campaign.

I posted the USADA procedure and it does not lack due process. In fact, it very much parallels a typical criminal process and I will use Texas law in the following discussion:

1) The Anti-Doping Review Board is a group of experts independent of USADA with medical, technical and legal knowledge of doping matters. These experts meet to recommend whether there is sufficient evidence of doping or other rule violations to proceed to a hearing.

This is very similar to a Grand Jury.

"A Grand Jury is a panel that decides whether a felony should be indicted or not. The DA’s office can file misdemeanors on their own, however, to file felony charges a grand jury must agree there is probable cause.

Grand jury meetings are secretive and confidential. The public has no access to their deliberations...

A criminal defendant does not have the right to testify at the grand jury nor does a defense attorney have the right to be present. Because the proceedings are secretive the transcript, if any, is not available."

2) After the Anti-Doping Review Board presents its recommendation to USADA, USADA will notify the athlete or other person in writing whether USADA considers the matter closed or alternately what specific charges or alleged violations will be adjudicated and what sanction USADA is seeking to have imposed.

"Grand juries can do several things with cases they hear. They can issue a true bill which equals a felony indictment or they can issue a no-bill turning the case down. Occasionally they will charge a person with a misdemeanor instead of a felony through indictment. After a true bill is issued, the case gets assigned to a court and proceeds normally."


3) The athlete may elect to proceed to a hearing before the American Arbitration Association (AAA) using a single arbitrator (or a three-arbitrator panel, if requested by either of the parties) selected from a pool of the North American Court of Arbitration for Sport (CAS) arbitrators, who shall also be AAA arbitrators.

Just as a criminal defendant can choose between a judge or jury trial.

4) The American Arbitration Association Supplementary Procedures for Adjudication of Doping Disputes (the "AAA Supplementary Procedures") and the USADA Protocol apply to the hearing before AAA/CAS. The regular CAS Appellate rules apply to hearings held before CAS.

Herein, the defendant is entitled to examine all evidence, cross-examine witnesses and provide defense evidence and testimony.

5) If the American Arbitration Association upholds the Anti-Doping Review Board's findings, the athlete may appeal to the Court of Arbitration for Sport for a final opinion.

An appeal option if found guilty by the American Arbitration Association.

Somebody please show me lack of due process.

 

[Turner29]

Armstrong, as somebody noted, is grasping at legal straws.

 

[serottasyclist]

No, the courts found it is a constitutional RIGHT to due process when the STATE takes action against you. IF DECLARED A STATE ACTOR, then he gets due process. Simple.

As but one example, a state can decline my application for a driver's license, thereby acting against me. But I do not have a constitutional right to a driver's license, so I am not entitled to due process in that proceeding even if I can show it is really, really hard for me to earn a living without the ability to drive.

 

[PedalPusher]

Well, this argument has become circular. That is more than an oversimplication of our Constitutional rights. Its a mistatement of the law.

You are the only one arguing in circles. It is not a misstatement of law. If you are not versed enough of the facets of law, that is on you. I don't get paid to teach law. If you do not have the ability to read case precedent or the basic tenets of due process and how it applies to non-state and state actors, that is beyond me. It has been laid out before in this discussion. Most of this is 1L stuff.

What you fail to understand, is, he is claiming a procedural due process right is being violated, which does not require whether a liberty right or an economic right is at stake.

 

[MarkvW]

No, the courts found it is a constitutional RIGHT to due process when the STATE takes action against you. IF DECLARED A STATE ACTOR, then he gets due process. Simple.

If he gets due process, which entitity is obligated to provide it to him? If it is the United States, isn't the US a necessary party to the lawsuit. How can Armstrong get the relief he seeks (make the US stop) without serving and suing the US?