Ok now. A 30-page written opinion. Well-reasoned and well-written decision supporting the dismissal. So what are Armstrong's options at this point?
1. He can accept the USADA's proposed sanctions (lifetime ban on competition at a minimum....does anyone really know whether USADA has said also that he be stripped of all wins and prize money, or is that just a potential sanction) and elect not to participate in any arbitration with USADA. I think it's unlikely he'd do this, but what do I know? (Clearly not much if you ask some of the other members of the Clinic).
2. He can elect to go to arbitration with USADA, in which case the USADA Protocol, the WADA Code and the FAA will govern and USADA will have to insure that it acts to provide Armstrong with proper and timely notice of the evidence and an opportunity to examine such evidence sufficiently in advance of the hearing so that constitutional due-process rights are not violated and he can prepare and present a meaningful defense on the merits (assuming he has one). Judge Sparks was very clear in his 30-page opinion that at this point any such claim by Armstrong that his rights are being violated by USADA is premature and, likewise, Judge Sparks also noted that there's no reason to believe USADA will act in a manner contrary to the way their attorneys represented it would during oral argument (which is that it will provide such adequate notice and an opportunity to review the evidence). But if USADA does not so act, Judge Sparks' decision clearly leaves open the door for further litigation on this subject, both expressly (in the body of his opinion where he says so) and by legal implication because the dismissal order of the lawsuit was made "without prejudice". The latter ("without prejudice") means, in law, that with respect to the underlying claims Armstrong attempted to assert, the decision is not considered to be one "on the merits" and the court is not making any ruling on those claims, but rather instead held that it did not have sufficient jurisdiction to reach the issue of whether or not the claims had merit or not. Judge Sparks made this determination based on three grounds: (a) the court had no subject matter jurisdiction to determine the claims and (b) in any event, most of the claims were pre-empted by the Stevens Act --and thus not subject to litigation in federal courts-- and (c) as to any of the claims that might be justiciable in federal court, Judge Sparks exercised his discretion to decline to exercise the court's equitable jurisdiction to consider such claims at this time. [Note ETA: MarkvW and I have both previously agreed that whatever Judge Sparks decided would likely be deemed to be a "pure" issue of law, but I think this last ground for the dismissal implicates a different standard of review on appeal, i.e., "abuse of discretion" in which the question for the appellate court would be different than whether the judge committed an error of law which can be addressed by the appellate court de novo....but that's a whole different discussion than the one I intended to raise here].
3. Some here have also said that Armstrong might elect not to arbitrate in order to keep the evidence from being disclosed. I think he could do that, but I don't see it as a likely course of action. What many forget, and what the USADA Protocols and WADA Code (as set forth in Judge Sparks' decision) make clear is that even if Armstrong does elect to arbitrate, the proceedings are closed and private unless Armstrong elects to make the proceedings public. So, he can still participate in arbitration and keep the evidence (including testimony offered by USADA) out of the public view, and not sustain an immediate sanction. Remember, his main goal is going to be to drag this out so that the details never become public and even if he's sanctioned, the public never really finds out the depth of his violations and/or deception. So why he would choose to not arbitrate makes no sense.
I also think the same confidentiality rules apply in the event either side determines to appeal to the CAS (but I'm not 100% sure), i.e., in other words, only the athlete as the right to "solely" elect to make the proceedings public. And assuming the CAS were to uphold a decision by USADA to ban/sanction Armstrong, I don't know if an appeal to the Swiss Courts (the court of last resort in this thing) would or wouldn't be a public hearing or whether the athlete could, just as with the arbitration, keep the matter confidential and the details private. If anyone knows the answer to this latter question, I'd be interested knowing.
4. Armstrong can also file an appeal from the order of dismissal with the 5th Circuit Court of Appeals in New Orleans, but as MarkvW has noted, and as others here have also suggested, an appeal from the dismissal order will do him little good at this point, since the Court of Appeals for the 5th Circuit is not likely to either grant any stay (and surely Judge Sparks will not do so either at this point), and even if the standard of review is for the most part "de novo", there's clearly enough "meat" in the opinion of Judge Sparks for any appellate court to hang its hat on if it decided to affirm, as a matter of law.
5. Another potential move at this point (not by Armstrong directly, but by proxy through the UCI)-- especially if the report in a message up-thread is accurate that Armstrong is making references in tweets to Race Radio about UCI ADR Rule 10(i)-- would be for UCI to file suit to enjoin USADA from proceeding forward, on the grounds that UCI has exclusive jurisdiction. If UCI were to do so, it would raise a whole host of problems for everyone, including as has been mentioned repeatedly here, USAC and UCI as well with respect to the IOC. It also raises a number of other questions, including where such a lawsuit would/should be filed (i.e., in the U.S., where USADA is based, or in Europe where UCI is based), and whether the dispute between the various governing bodies and agencies is even subject to being adjudicated judicially, or like the rest of this mess, would be subject to mandatory and binding arbitration (e.g., before the CAS) between the various governing bodies.
6. Clearly USADA is in the position of power now where it can proceed either with arbitration and/or sanctions, and it is not going to be enjoined unless it acts in a manner that is wholly inconsistent with the way it represented to Judge Sparks that it would. At least that much is now clear.
7. If Armstrong chooses not to participate in arbitration, then we might never know what the evidence against him was, at least not definitively. But IMO, he will elect to arbitrate and will opt to keep the arbitration proceedings confidential, because that's his right under the WADA Code and USADA Protocol. And if he does that, I don't believe anyone other than the participants are really going to know what the evidence is, perhaps ever, at least not until a final decision is reached, and perhaps not even then.
8. Others here have suggested that testimony and/or evidence could be leaked by USADA during an arbitration (or by some employee with access to the materials, acting as a "mole.") IMHO, if the testimony or evidence were to be leaked such that the athlete's rights of confidentiality under the WADA Code and USADA Protocol to keep the proceedings confidential are violated, this again would raise a number of other questions about what, if anything a federal court, and Judge Sparks in particular, might be willing to do, given some of the language in his 30-page decision), and it also raises questions about what the arbitrators could or might do with the arbitration in the event of a breach of confidentiality.
9. On the other hand, Armstrong just might decide to arbitrate and not keep the matter confidential or private, and simply let it all hang out there in full public view. I don't see any advantage to him, personally or professionally, in doing so, and as much as I think everyone here and in the public wants to know what the evidence is, who has provided testimony against him and what it consists of, if I were representing Armstrong and my client had the sole option to prevent these details from becoming public, it would be extremely foolish to advise the client to do anything else other than to keep it all as private and quiet as possible, if only to avoid the public relations disaster that will ensue as each detail comes out.
Anyway, onward and upward and let's see what happens next.
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