USADA - Armstrong

[Merckx index]

Here is a list of points made in the latest brief from LA, along with responses to them, if any, previously made by USADA:

1. Court has authority over Sports Act to correct a breach of rules. No response to this AFAIK. USADA may have cited case law that is inconsistent with it.
2. If anti-doping action involves sample collection, then it falls under UCI authority even if it has non-analytical components.. No response AFAIK.
3. UCI license, not USAC license. USADA response: anti-doping authority delegated to USADA via USOC “Armstrong provides no legal theory by which a foreign entity such as UCI has unilateral power to limit or extinguish the USOC’s authority over U.S. athletes… As a direct result of Armstrong’s membership in USA Cycling: he agreed to be bound by the USADA Protocol for at least some doping violations, and all questions regarding the scope of arbitration under the Protocol must be resolved in arbitration.”
4. USADA has no authority over the five other named conspirators. USADA response: “a) Any Person who, without being a holder of a license, participates in a cycling Event in any capacity whatsoever, including, without limitation, as a rider, coach, trainer, manager, team director, team staff, agent, official, medical or para-medical personnel or parent and; b) Any Person who, without being a holder of a license, participates, in the framework of a club, trade team, national federation or any other structure participating in Races, in the preparation or support of riders for sports competitions[
5. Not required to participate in a proceeding if that proceeding is unlawful. USADA response: “USA Cycling’s regulations state, “Any investigation, prosecution, and hearings shall be the responsibility of [USADA],” and “[t]he USADA protocol is incorporated herein by reference and shall prevail over any USA Cycling Regulation to the contrary.”
6. Constitutional challenge. USADA response: has cited cases that dismiss this notion.
7. Various arguments why LA does not have to agree to arbitration. USADA response: “The federal policy favoring arbitration directs that “all doubts regarding the arbitrability of disputes be resolved in favor of arbitration,” even where this may result in “inefficient or duplicative proceedings.” Also: “The Court need not make this finding, however, to dismiss the Amended Complaint; it is sufficient, instead, to conclude that Armstrong cannot establish “with positive assurance that [the Protocol] is not susceptible of an interpretation which would cover the dispute at issue.”
8. USADA has no authority wrt samples, and at international events. No response AFAIK, except if UCI declines, but Pat has said UCI is not declining.
9. No authority to bring consolidation charges. USADA response: “Armstrong’s other arguments relating to procedural and evidentiary issues under the Protocol e.g., consolidation of actions, limitations period, adequacy of notice, and discovery) should be decided by the arbitrators pursuant to Rule R-7 of the AAA Supplementary Procedures and case law under the FAA.
10. No authority to bring charges against retired cyclist. USADA had a response to this, can’t find it right now.
11. USADA does not have concurrent authority. USADA response: “USADA has authority under its rules and pursuant to the authority conferred upon USADA in the USOC’s rules and in the rules of its members to prosecute Mr. Armstrong’s anti-doping rule violations.”
12. USADA has no authority to bring charges unless UCI directs it to do so. USADA response: this charge involves an interpretation of the rules that USADA contests.
13. Court cannot allow arbitrators to bring charges. USADA response: See no 7.
14. Sports Act not relevant. USADA response: “Under § 220501(b)(1), theAct defines “amateur athlete” as “an athlete who meets the eligibility standards established by the national governing body…for the sport in which the athlete competes”

 

[Weapons of @ss Destruction]

Good spot - I remember that now, as well as the rules UCI broke to let LA race TDU early.

I guess the UCI wasn't very worried about his "results management" even with the reduced period of time for re-entry to competition. Or perhaps were just very confident they could manage his results?

 

[Dr. Maserati]

You guys are so freaking optimistic. The judge does not know the history of UCI and USA Cycling corruption. The only thing he sees is cycling's governing bodies saying the USADA has gone rogue and cycling can handle this situation itself. The best thing about this might be that the situation is so convoluted that the judge might throw up his hands and say that he and hte federal courts want nothing to do with this mess; let CAS sort it out.



That has been in the back of my mind. It would be hilarious to add McQuaid and Verbruggen to the conspiracy.

Over the last week the USADA should have been talking with WADA, and WADA should have been talking to the IOC. The IOC has the power to tell the UCI to stop or else there won't be any cycling in the Olympics. That would be the end of McQuaid.

Judge Sparks has a pretty good idea what is going on - from his comments last week:

"There's something under the current when UCI says `This is our case, USADA step back,' and USADA says `Not on your life,'" Sparks said.

 

[Ney the Viking]

Yes - Bruyneel and Celaya, and Marti (after the sanctions were handed down and he changed his mind).

Thanks, can be hard to keep track of everything in this monster thread

 

[ChewbaccaD]

You guys are so freaking optimistic. The judge does not know the history of UCI and USA Cycling corruption. The only thing he sees is cycling's governing bodies saying the USADA has gone rogue and cycling can handle this situation itself. The best thing about this might be that the situation is so convoluted that the judge might throw up his hands and say that he and hte federal courts want nothing to do with this mess; let CAS sort it out.



That has been in the back of my mind. It would be hilarious to add McQuaid and Verbruggen to the conspiracy.

Over the last week the USADA should have been talking with WADA, and WADA should have been talking to the IOC. The IOC has the power to tell the UCI to stop or else there won't be any cycling in the Olympics. That would be the end of McQuaid.

This isn't about what the judge thinks of the arguments regarding who has the right to conduct an arbitration. This is about jurisdiction of the District Court to DECIDE ANYTHING in relation to this case, and as the USADA points out in their final paragraph, based on PRECEDENT, the answer to whether Sparks can get into that debate is this:

We believe that the foregoing demonstrates that this Court lacks subject matter or other jurisdiction because Mr. Armstrong has failed to exhaust his administrative remedies andbecause the Sports Act pre-empts his claims in favor of arbitration; in the alternative, the Courtlacks jurisdiction, and the case should be stayed or dismissed, under Section 3 of the FAA

Simply because Armstrong's attorneys decided to dance another dance and give up on the one that really mattered does not mean that new dance will be judged by this court.

 

[Ingenerius]

If UCI and the Lance camp(which apparently are the same) are correct in that UCI must instruct USADA to open a hearing before they can do so, I can see a scenario were this will be the ruling, and that USADA must hand over the evidence for the "independent" UCI panel to decide wether to open a case or not.

This would be incredibly annoying cause its then gonna take forever and ever, but with the massive evidence USADA has, I can't see how the outcome will not be the same. The public will absolutely not let UCI bury it(I hope) and when UCI does try to bury it, it will totally undermine them and it actually might be possible to remove fat pat and his like.

They will however likely be succesful in burying the 2001 TdS positive test part of the case, which might be UCI's main concern. That will be a shame.

So I'll not be to concerned if this goes against common sense, just incredibly annoyed. LA will get his.

 

[Dr. Maserati]

So then you concede that your earlier statement was wrong. All you had to say was you were wrong and not fluff it with your anti-lance rhetoric.

This would be to the "UCI have never interfered in a case like this" statement that you questioned?

When has the UCI ever written in to support a rider? In any case, in any country?

 

[WinterRider]

This is funny. Lance's buddies at the AP are looking for anything positive out of this

Quote:
"USAC believes that UCI has the power to express its interpretation of WADA's anti-doping code,"

USAC must have forgotten that WADA already said that the UCI "Interpretation" was completely incorrect

http://www.scribd.com/doc/102398382/WADA-Letter-to-UCI

What gives? When I read the story on ESPN you guys are talking about it does not match anything that is being said here. The link is:

http://espn.go.com/olympics/cycling/story/_/id/8278550/us-cycling-body-sides-lance-armstrong-usada

The title reads "Written Arguments Exchanged"

Furthermore, I can't find any quotes about USAC.

Did they revise the story? Or am I getting something else in Canada?

 

[Race Radio]

So then you concede that your earlier statement was wrong. All you had to say was you were wrong and not fluff it with your anti-lance rhetoric.

I have no idea what you are talking about.

Try to stay on topic, USADA and Lance. We already know your position on it

It's over and USADA is over as it relates to Lance and doping. Time for everyone to move on...

It is clearly not over. What will be Wonderboy's move when Sparks rules against him? Does he fold them and lose everything or keep going with the smoke and mirrors?

 

[the big ring]

What gives? When I read the story on ESPN you guys are talking about it does not match anything that is being said here. The link is:

http://espn.go.com/olympics/cycling/story/_/id/8278550/us-cycling-body-sides-lance-armstrong-usada

The title reads "Written Arguments Exchanged"

Furthermore, I can't find any quotes about USAC.

Did they revise the story? Or am I getting something else in Canada?

First part refers to AP story.

Second 2 parts refer to link below them, not the AP story.

Also, AP story info: Updated: August 17, 2012, 4:50 PM ET - Clearly they felt the original title (which the link above shows was different to what it is now) was a little to obvious... or something. el oh el.

 

[mewmewmew13]

can't type too well right now - eyes bleeding from reading that repetitive pile of cow manure, but seriously. Was there a shred of anything new in there, or was it entirely ssdd?

:d !!! :d !!! :d

 

[Race Radio]

What gives? When I read the story on ESPN you guys are talking about it does not match anything that is being said here. The link is:

http://espn.go.com/olympics/cycling/story/_/id/8278550/us-cycling-body-sides-lance-armstrong-usada

The title reads "Written Arguments Exchanged"

Furthermore, I can't find any quotes about USAC.

Did they revise the story? Or am I getting something else in Canada?

Ha, They changed the story because it was so misleading

 

[mewmewmew13]

Ha, They changed the story because it was so misleading

Wow
stuff is swirling....

 

[QuickStepper]

Here is a list of points made in the latest brief from LA, along with responses to them, if any, previously made by USADA:

1. Court has authority over Sports Act to correct a breach of rules. No response to this AFAIK. USADA may have cited case law that is inconsistent with it.
2. If anti-doping action involves sample collection, then it falls under UCI authority even if it has non-analytical components.. No response AFAIK.
3. UCI license, not USAC license. USADA response: anti-doping authority delegated to USADA via USOC “Armstrong provides no legal theory by which a foreign entity such as UCI has unilateral power to limit or extinguish the USOC’s authority over U.S. athletes… As a direct result of Armstrong’s membership in USA Cycling: he agreed to be bound by the USADA Protocol for at least some doping violations, and all questions regarding the scope of arbitration under the Protocol must be resolved in arbitration.”
4. USADA has no authority over the five other named conspirators. USADA response: “a) Any Person who, without being a holder of a license, participates in a cycling Event in any capacity whatsoever, including, without limitation, as a rider, coach, trainer, manager, team director, team staff, agent, official, medical or para-medical personnel or parent and; b) Any Person who, without being a holder of a license, participates, in the framework of a club, trade team, national federation or any other structure participating in Races, in the preparation or support of riders for sports competitions[
5. Not required to participate in a proceeding if that proceeding is unlawful. USADA response: “USA Cycling’s regulations state, “Any investigation, prosecution, and hearings shall be the responsibility of [USADA],” and “[t]he USADA protocol is incorporated herein by reference and shall prevail over any USA Cycling Regulation to the contrary.”
6. Constitutional challenge. USADA response: has cited cases that dismiss this notion.
7. Various arguments why LA does not have to agree to arbitration. USADA response: “The federal policy favoring arbitration directs that “all doubts regarding the arbitrability of disputes be resolved in favor of arbitration,” even where this may result in “inefficient or duplicative proceedings.” Also: “The Court need not make this finding, however, to dismiss the Amended Complaint; it is sufficient, instead, to conclude that Armstrong cannot establish “with positive assurance that [the Protocol] is not susceptible of an interpretation which would cover the dispute at issue.”
8. USADA has no authority wrt samples, and at international events. No response AFAIK, except if UCI declines, but Pat has said UCI is not declining.
9. No authority to bring consolidation charges. USADA response: “Armstrong’s other arguments relating to procedural and evidentiary issues under the Protocol e.g., consolidation of actions, limitations period, adequacy of notice, and discovery) should be decided by the arbitrators pursuant to Rule R-7 of the AAA Supplementary Procedures and case law under the FAA.
10. No authority to bring charges against retired cyclist. USADA had a response to this, can’t find it right now.
11. USADA does not have concurrent authority. USADA response: “USADA has authority under its rules and pursuant to the authority conferred upon USADA in the USOC’s rules and in the rules of its members to prosecute Mr. Armstrong’s anti-doping rule violations.”
12. USADA has no authority to bring charges unless UCI directs it to do so. USADA response: this charge involves an interpretation of the rules that USADA contests.
13. Court cannot allow arbitrators to bring charges. USADA response: See no 7.
14. Sports Act not relevant. USADA response: “Under § 220501(b)(1), theAct defines “amateur athlete” as “an athlete who meets the eligibility standards established by the national governing body…for the sport in which the athlete competes”

Thanks for going through this; it's the same exercise I was doing after I concluded reading the USADA letter brief submitted today. Frankly, I think your analysis is pretty much spot-on and I have nothing to add to it.

The bottom line for me is that the respective positions of Armstrong and USADA are irreconcilable and diametrically opposed on at least five or six key points which all affect and influence how Judge Sparks could/may decided the question of subject matter jurisdiction.

I do not envy him the decision he has to make. Either way he decides, there are going to be a lot of very unhappy people.

 

[Dr. Maserati]

What gives? When I read the story on ESPN you guys are talking about it does not match anything that is being said here. The link is:

http://espn.go.com/olympics/cycling/story/_/id/8278550/us-cycling-body-sides-lance-armstrong-usada

The title reads "Written Arguments Exchanged"

Furthermore, I can't find any quotes about USAC.

Did they revise the story? Or am I getting something else in Canada?

Looks as though people are revising their articles.
Under the headline - US cycling body sides withe Armstrong against USADA - Here is an AP one written over an hour ago:

NEW YORK (AP) — The American governing body for cycling says it must accept the jurisdiction of the sport’s international federation and side against the U.S. Anti-Doping Agency in the court fight to determine which has group has jurisdiction over the Lance Armstrong doping case.

USADA has charged the seven-time Tour de France winner with using performance-enhancing drugs. Armstrong sued in federal court in Austin, Texas, claiming USADA rules violate athletes’ constitutional right to a fair trial.

The International Cycling Union (UCI) then asserted jurisdiction in the case, saying USADA had no right to get involved. USADA says its power comes from the World Anti-Doping Agency.

Armstrong’s lawyers wrote a letter Friday to U.S. District Judge Sam Sparks, attaching a letter from Stephen Hess, a lawyer from USA Cycling.

“USAC believes that UCI has the power to express its interpretation of WADA’s anti-doping code,” Hess wrote.

 

[the big ring]

Ha, They changed the story because it was so misleading

Link and link title within the site still says

http://search.espn.go.com/armstrong/

U.S. cycling body sides with Lance Armstrong against USADA

but the title of the page itself is far less bold. Wonder if they're hedging their bets?

 

[the big ring]

Here is a list of points made in the latest brief from LA, along with responses to them, if any, previously made by USADA:

2. If anti-doping action involves sample collection, then it falls under UCI authority even if it has non-analytical components.. USADA today - samples are corroboration only.
6. Constitutional challenge. USADA response: has cited cases that dismiss this notion. No longer on the table. (???)
8. USADA has no authority wrt samples, and at international events. No response AFAIK, except if UCI declines, but Pat has said UCI is not declining. See number 2?

My take on the reply from USADA today.

 

[Deagol]

At this point in time, does it appear that no more documents will be filed (god, I hope so..) ?

 

[Tannerman]

Well, maybe just one more from the IOC...

"You're out."

(Long time lurker, enjoying the conversation)

 

[Fortyninefourteen]

My take on the reply from USADA today.

The sample collection thing might be a red herring....this is about sworn testimony provided to USADA along with anecdotal and biological evidence. Even if some bits may be 'ruled' inadmissable, the further this goes the more compelled the judge may feel to see through the jurisdictional smokescreen. Judges tend not to appreciate being fed crap by lawyers who know it to be crap. And while judges are bound to rule within the law regardless of whether they like or dislike the outcome, in this case, barring 'political intervention', it will be difficult for him to arrive at a ruling that is inconsistent with what he is charged to perform.

 

[luckyboy]

Does anyone else have a sinking feeling about this?

That latest McQuaid letter is so depressing to read. If this case ends up being thrown out then there is no hope for this sport.

 

[B Buckaroo]

I don't read the letter from US Cycling (Stephen Hess) to USADA (William Bock), dated 17 August, 2012, as being all that supportive to either the UCI or Lance Armstrong.

In the paragraph where US Cycling appears to be telling USADA to back off, the issue is characterized as "that esoteric legal issue". When I read that, it suggests to me that what follows is being stated because Mr. Hess has to state this, but he doesn't have his heart into it.

In the next paragraph, Mr. Hess goes on to state his understanding that the USADA is asserting its jurisdiction can be anchored outside to the UCI's rules, and that US Cycling has no problems with that.

 

[QuickStepper]

The sample collection thing might be a red herring....this is about sworn testimony provided to USADA along with anecdotal and biological evidence. Even if some bits may be 'ruled' inadmissable, the further this goes the more compelled the judge may feel to see through the jurisdictional smokescreen. Judges tend not to appreciate being fed crap by lawyers who know it to be crap. And while judges are bound to rule within the law regardless of whether they like or dislike the outcome, in this case, barring 'political intervention', it will be difficult for him to arrive at a ruling that is inconsistent with what he is charged to perform.

I know that this is going to be considered as "swimming against the tide" but having read, and re-read both side's briefs, I don't think anyone is feeding the judge a load of crap, nor do I think Armstrong's side doesn't believe the material that its submitted to the court has merit, any more than USADA doesn't fervently believe in the merit of its position. This is a difficult case, made all the more difficult because of the infighting and jockeying for position that has occurred between the various outside parties (e.g., WADA, UCI, USAC). As someone else noted, the only party not yet heard from is the IOC, and I have no idea what they could add to this mix that would clarify it, or muck it up further.

IMHO, if the decision about whether the court does or doesn't have subject matter jurisdiction was so easy, it would have been decided last week and without the need for any additional briefing (notwithstanding the fact that Judge Sparks might also want to appear to be as fair as possible by allowing everyone to submit whatever else they wish). Someone else noted that this is going to be a landmark case and there's no doubt about that in my mind.

 

[python]

usada's response was to the point and tough.

just addressing, where necessary repeating, the issues of concern to the judge

not one millimetre was conceded.

as i commented earlier, whilst armstrong's submittal failed to even mention the united stated olympic committee jurisdiction, the usada mentioned it quite liberally.

why no affidavit from usoc or another one from wada ? why no public position by the usoc either way ?

my read is they don't believe armstrong has a case and they perhaps considered transmitting their opinion privately over other channels sufficient.

 

[Deagol]

Does anyone else have a sinking feeling about this?

That latest McQuaid letter is so depressing to read. If this case ends up being thrown out then there is no hope for this sport.

Agreed. With UCI at the helm, cycling may deserve to be booted from the Olympics.