BroDeal said:
It seems to me that either the UCI or the ASO will face problems with what the USADA has to submit to WADA and the UCI to explain Armstrong's sanction. Exceeding the statute of limitations has to be supported and that will lead back to one of the two, maybe both.
While people seem to be concentrating on the "cover-up" of a suspect Tour de Suisse sample, that looks shaky and inconclusive. It was certainly inappropriate for the UCI, and it is embarrassing. But it does not rise to what will be required for the SOL issue.
The best incident to use for SOL purposes is the backdated TUE. That is a clear and probably the best situation where Armstrong's doping should have been discovered and acted on by anti-doping authorities but the conspiracy's deception prevented it. It entailed creating a phony document. A team doctor signed it. Multiple people on the team had knowledge of the scheme. The ASO and/or the UCI accepted the phony document as though it had been filed earlier. That case is the smoking gun for why the SOL should not count, and it matches more closely with the existing precedent than acts of witness intimidation or lies outside an official anti-doping proceeding.
I don't think the SOL is going to be a very tough issue at this point. We've seen several ways around it, including the Hellebuyck approach, and no doubt that's what the USADA is going to use as a rationale, i.e., that all of this trafficking, use and possession was part of an ongoing and systematic conspiracy that extended back for a period, and that "but for" the continued cover-up, it would have been discovered prior to the SOL running, and that this affirmative misconduct essentially tolls the running of the SOL. Can UCI challenge the sanctions on that ground? I am not sure and will have to look at the WADA Code again on this subject.
Assuming there's nothing to the contrary in the WADA Code, I am not certain that UCI can even bring a CAS action or do anything else to try to challenge the sanctions that USADA will impose. Assuming the USADA Protocols are permitted to fill in gaps where the WADA Code is silent, and further assuming that the Protocols on this subject are also consistent with the expressed provisions of WADA Code, it would appear that UCI may not have any claim at all. Certainly Armstrong has no claim with CAS for any appeal, IMHO.
The USADA Protocols, at Section 11 (which governs cases that have been submitted first to the Review Board process) states, in part at Rule 11(e) that when USADA proposes to issue a sanction against an athlete as it has done here with Armstrong, and the sanction is not challenged by the athlete, the grounds for reversing it or further contesting the sanction are very limited:
. . . If the sanction is not contested in writing within such ten (10) or fifteen (15) day period, then the sanction shall be communicated by USADA to the Athlete or other Person, USOC, the applicable NGB, IF and WADA and thereafter imposed by the NGB [in this case that's USAC]. Such sanction shall not be reopened or be subject to appeal unless the Athlete or other Person can demonstrate by a preponderance of the evidence in a subsequent appeal to the Court of Arbitration for Sport (“CAS”) that he or she did not receive either actual or constructive notice of the opportunity to contest the sanction. The Athlete or other Person may also elect to
avoid the necessity for a hearing by accepting the sanction proposed by USADA. If the sanction is contested by the Athlete or other Person, then a hearing shall be conducted pursuant to the procedures set forth below in sections 14 and 15.
Clearly, in this instance, by not challenging the sanction proposed by USADA, and waiving the right to a hearing as Armstrong has done, the grounds for an appeal to CAS are limited to circumstances that clearly do not apply here. Armstrong and his counsel had notice of the sanctions and the proceedings, both actual and constructive ("constructive" in this instance would mean that they had sufficient notice other than the original charging letter to know about the proceedings and the sanctions proposed).
I know that there's been some suggestion, including in Tim Herman's letter of yesterday to William Bock (USADA's counsel) that Armstrong wasn't going to agree to the sanctions. I don't know if that letter which says Armstrong won't accept the sanction constitutes a "challenge", but perhaps that is the only thing left for him to argue. Even so, under the USADA Protocols if the Herman letter
is considered to be the athlete challenge, the Protocols require the hearings set forth in Sections 14 and 15 to occur (unless of course the athlete refuses to participate, in which case, we're back to square one again, i.e., is the athlete essentially agreeing to the sanction or is an athlete entitled to challenge but not participate in hearings and instead claim the process is rigged).
I think any way you slice this, Armstrong's ability to file anything with CAS, given the language of Rule 11(e), is nil. Thus, it seems clear that once the request to sanction has been transmitted and communicated to the NGB (USAC), as well as to WADA and the IOC, that Armstrong is a dead duck here in the U.S. and with respect to his Olympic medal.
The only potential light at the end of any tunnel for him-- and that light is pretty dim in my view-- is if UCI decides to once again try to take the position that USADA had no jurisdiction in the first instance and that the matters concerning results management should have first been referred to UCI for review and handling. Again, it's the jurisdictional battle between UCI on the one hand, which is now pretty much out there on their own, and USADA, WADA, the IOC, and despite Herman's take on it, USAC as well, all opposing the view of UCI that only UCI had jurisdiction. Frankly, from what I've seen, I don't think UCI has either the skill or the further inclination to take on the rest of the cycling and anti-doping authorities and they won't do anything.
This then leads to the final question: What is ASO going to do and what would be in ASO's best interests? And the answer to that is I think they will strike Armstrong's name from the list of TdF winners. Really, they will have no choice if they want the most famous event in the world of cycling to still be a sanctioned event. And I say that because if UCI doesn't have the resolve to fight USADA, they also will have to fall in line with the results that WADA, USADA and USAC are taking, because they don't want to run the risk of creating a fatal rift between themselves and the IOC.
So, unless something dramatically changes (or has dramatically changed this morning, since I've not had time to go back over the last 50 pages of this thread since I went to sleep last night), Armstrong's goose is cooked.
It was sort of fun in this thread to speculate and try to anticipate what his next legal move was going to be in litigation and arbitration, but at this point, I think he has only defensive options with regard to actions that may be brought against him to recover prize money and endorsement money that some sponsors may try to claw back. I am now 99% convinced that Armstrong's legal fight to address the sanctions isn't going anywhere, least of all to the CAS, and it surely also won't be going back to federal court, not now that he's failed at all-- and actually refused-- to exhaust the remedies that were potentially available to him in arbitration, no matter how "rigged" he thought the outcome. Nope, no federal court for him either.
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