Armstrong US Postal Service case analysis: WADA, USADA and USA Cycling comment prior to Federal hearing
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Thursday, August 9, 2012

Armstrong US Postal Service case analysis: WADA, USADA and USA Cycling comment prior to Federal hearing

by Shane Stokes at 11:30 AM EST   comments
Categories: Pro Cycling, Doping
‘UCI is sadly destroying the credibility it has slowly been regaining’ - Howman

WADAWorld Anti Doping Agency Director General David Howman has issued a warning to UCI president Pat McQuaid that its actions in relation to the Lance Armstrong/US Postal Service doping investigation are causing serious harm to the federation’s standing and reputation, as well as possibly breaking the WADA Code.

The rebuke comes in an email letter sent by Howman to McQuaid on Tuesday, which was published on the website yesterday. It was part of the US Anti Doping Agency’s reply brief sent to the Texas federal court (click here to read) which will soon rule in terms of jurisdiction of disciplinary action.

“…UCI’s refusal to cooperate with USADA appear to me to be against article 23.2.3 of the Code,” warns Howman at the end of the five page letter.

“We therefore urge you to reconsider your position and to provide all support to USADA in the conduct of this case, including all documents required by them.” The sting comes in the final line: “By adopting its current position UCI is sadly destroying the credibility it has slowly been regaining in the past years in the fight against doping,” he warned.

The Texas federal court of Sam Sparks is currently studying a large number of documents relating to the case, and is expected to hear both sides’ arguments in his court tomorrow. If he sides with USADA and agrees that the case should go to arbitration, Armstrong could face a potential life ban and the loss of up to all seven of his Tour titles.

If he agrees with Armstrong and rules in his favour, that will complicate things for USADA and force it to appeal.

Given that WADA Anti-Doping Code is recognised by most international federations as being the prime set of rules in this area, Howman’s statements are an important backing for USADA. Will they help convince Sparks that USADA has jurisdiction? That will become clear in the next few days.

USADA’s arguments:

USADAUSADA’s filing yesterday comprised a 57 page reply brief requesting the judge to either ‘dismiss for lack of subject matter jurisdiction or, in the alternative, motion to dismiss or stay under the federal arbitration act.’

It included ten pages of legal argument by USADA, as well as various attached exhibits including Howman’s aforementioned letter, a communication between USADA counsel William Bock and McQuaid, the transcript of a video interview between Belgian media Sporza and McQuaid on July 11th, a copy of Tuesday’s International Tennis Federation’s statement of support for USADA and the agreement for arbitration announced yesterday between USADA and former USPS coach Pepe Marti. All can be viewed here, while the Sporza video is here.

Looking at USADA’s legal argument first, it lays out its reasoning why it believes Judge Sparks should find in the agency’s favour. It led off by stating that in being a member of USA Cycling, that Armstrong was under the authority of the USOC; it added that the latter’s jurisdiction over US riders is ‘separate and independent from any jurisdiction asserted by UCI,’ that it means they are bound by the USADA Protocol, and then argues that Armstrong and his legal team ‘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.’

USADA adds that in the past, Armstrong agreed to comply with and be bound by anti-doping regulations, as foreseen by it, provided such regulations comply with the World Anti-Doping Code.

It also claims that Armstrong, ‘admittedly agreed to arbitrate some disputes under the USADA protocol, and that whether the scope of the arbitration agreement extends to the claims in this case is a matter for the arbitrators themselves to decide.

Other points:

To summarise the rest of that document, the following arguments are amongst those which have been advanced.

* USADA cites a previous Louis Dreyfus Corp. case, saying the court can dismiss Armstrong’s complaint because it states that he ‘cannot establish “with positive assurance that [the Protocol] is not susceptible of an interpretation which would cover the dispute at issue.”’

* It argues that the UCI’s claims of discovery based on the receipt of an email of doping allegations from Floyd Landis is not sufficient to give the UCI jurisdiction under Article 15.3 of the WADA Code. It also states that the Code doesn't enable the UCI to assume greater jurisdiction, ‘while diminishing the jurisdiction of an athlete’s National Olympic Committee (in this case, the USOC) or other anti-doping organization.’

* USADA addresses Armstrong’s rejection of the Sports Act, dismissing his claims that he was a professional athlete competing in professional competition. The agency states that the Act’s own definition of the ‘amateur athlete’ term applies as it states it relates to:

“an athlete who meets the eligibility standards established by the national governing body ... for the sport in which the athlete competes.”

It continues thus: ‘In order to compete in international competitions such as the Tour de France, Armstrong was required to meet (and did meet) the eligibility standards for membership in USA Cycling, the organization recognized by the USOC as the NGB for the sport of cycling. Armstrong remained a member of USA Cycling throughout the relevant time periods. As a result, Armstrong is an “amateur athlete” under the Sports Act.10’

Throughout the document, various previous cases are cited in support of its reasoning. Armstrong’s legal team also backed their claims in the same way in earlier submissions.

Letter to McQuaid:

Pat McQuaidFurther details and arguments are visible in the letter sent to McQuaid yesterday, August 8th. USADA’s counsel William Bock argues that the WADA Code takes precedence over the rule of international federations and national sport bodies, and that any UCI rules which clash with the WADA Code cannot be enforced.

He adds that he considers McQuaid’s August 3rd letter as an attempt to obstruct USADA’s case and that such efforts jar with the WADA Code, where cooperation is required. He said that the UCI’s actions were “offensive to clean sport and clean athlete’s rights and repugnant to the Code and in direct conflict with UCI’s duties under the Code.’

Bock raises issue with the claim of ‘discovery’, saying that the UCI has come into conflict with the WADA Code by modified the wording of article 15.3 in order to try to ensure that it can take jurisdiction from others in this area. As regards the UCI’s related claim that an email sent by Floyd Landis on April 30th 2010 marked the point of discovery, Bock said that this was far from the first point of contact USADA had with the former US Postal Service rider.

“I can share with you that a USADA representative met with an individual close to Mr. Landis (an individual who has incidentally never been a UCI license holder or official) weeks before the April 30 email was sent and in that meeting USADA received much of the same information from this intermediary that was subsequently contained in the email,” he wrote. “USADA also met with Mr. Landis about ten days before the email was sent. Before the email was sent USADA had met with several others with relevant information.”

He adds that the UCI had displayed an ‘utter lack of investigation into the facts,’ and, rather than taking Landis’ claims seriously at the time, dismissed the allegations and subsequently started legal proceedings against him.

“The UCI, an entity which knows nothing about what Mr. Landis or any of USADA’s many witnesses observed, an entity which never met with any witness and never conducted any investigation, is claiming to have “discovered the violation” and yet at the same time the UCI is, as you said in your July 13, letter, unable to determine “whether or not an anti-doping violation has occurred.” So, in your own words UCI claims both to have “discovered” a violation and to not know whether a violation occurred. This is exactly the sort of “Never, Never Land” created by the UCI’s nonsensical discovery rule and it well illustrates why that rule cannot possibly be enforceable under the Code,” he blasted.

Bock states that the UCI and McQuaid have done a complete about-turn in relation to their approach to the case. He refers to McQuaid’s video interview with Sporza on Jury 11th, which is transcribed in full. As mentioned previously on VeloNation, that interview included quotes from McQuaid saying that USADA rather than the UCI was in a position to investigate the case.

“The position of the UCI is that we are not involved in this…it is a USADA investigation, they are doing all the process in the United States,” he stated then. “It is nothing to do with the UCI and we will wait and see what the eventual outcome is.”

The excerpt quoted by Bock refers to McQuaid’s acknowledgement in the same interview that USADA’s case is not based on sample collection, “This is actually outside of that because you’re looking at witness testimonies, et cetera, et cetera, which is not within our responsibility,” the president said.

“We can’t – we cannot be questioning riders no more and we don’t have the authority, nor the judicial authority to question riders and ask them what goes on here, what goes on there.”

One of the most notable points in the letter is a stated willingness to avoid the previously-proposed arbitration altogether and to instead proceed to ‘a single, final and binding CAS hearing with Mr. Armstrong.’ Bock states the conditions would be that this would be held ‘under U.S. law and the USADA Protocol and held in the U.S. but with international CAS arbitrators in which the issues would be whether Mr. Armstrong committed anti-doping rule violations and, if so, the appropriate sanctions.

“If the parties are truly interested in an efficient, fair and just result based on the evidence, as USADA is, then this proposal would immediately place the case in the hands of neutral CAS arbitrators who could quickly decide it.”

Note: It is worth noting the difference in arbitration held in front of the CAS panel in Switzerland and a panel sitting in the US. VeloNation understands that a Swiss hearing would mean that US citizens are not required to take the stand and thus speak under oath, making it more difficult to establish the full picture under such a scenario.

The letter ends by saying that while McQuaid stated in the Sporza interview that the UCI and others were working together to ‘present a platform to the world of a very credible, professional, well-organized, and very attractive sport,’ that the international federation’s actions did not fit with this. “Through UCI’s attempt to obstruct USADA’s cases, through its hasty and ill considered decisions to adopt positions inconsistent with the Code that are supportive of Mr. Armstrong’s legal positions, and through its failure to date to provide documents requested by USADA, the UCI has taken unfortunate and misguided steps away from your stated goals,” he said.

Howman critical of UCI:

As stated at the outset, WADA director general David Howman also communicated with McQuaid this week and this letter was also critical of the UCI. He makes clear that WADA considers USADA to be the authority with jurisdiction in the matter.

“With respect to your statements that the UCI has results management authority in connection with the USPS Cases you have misinterpreted the Code,” he said “Code Article 15.3 is quite clear that where anti-doping rule violations are not premised upon a specific Sample, that results management and hearings are governed by the procedural rules of the Anti- Doping Organization (ADO) ‘which discovered the violation.’

“In this case, and based on the fact known to us at this stage, there seems to be no question that the ADO which discovered the violations is USADA. Therefore, USADA’s results management procedure (i.e., the “USADA Protocol”) is controlling.”

Howman said that WADA understood that Landis had been in contact with USADA ‘several weeks’ before sending the email on April 30th.

He added that the modifications to the Code seen in the UCI’s own rules ‘cannot and should not be enforced’ as federations must be code compliant.

In addition to the discovery issue, Howman states that USADA’s rules are applicable to Armstrong because of his ‘membership in the USADA Registered Testing Pool, his former membership in USA Cycling and his current membership in USA Triathlon.’

Howman described the UCI’s efforts to deny USADA’s results management authority as being ‘frankly incomprehensible,’ and was also critical that while the UCI relied upon USADA to handle both the American Arbitration Association (AAA) hearings and the CAS appeals for the Floyd Landis and Tyler Hamilton,

“We have never previously heard any complaint from you or anyone associated with the UCI in relation to the due process given in USADA proceedings which have to date been exemplary in terms of the process given to athletes and take place in front of reputable arbitration institutions.”

Two more damaging statements follow near the end of the email. Howman notes that the UCI only raised due process and results management arguments after Lance Armstrong’s legal team did so, perhaps implying collaboration.

He also said that he was aware that the UCI had been given more information about USADA’s process than it had claimed in its recent press statement. The implication was that the UCI was being deliberately misleading in order to advance its case.

Armstrong’s legal team’s filing:

Lawyers acting for Lance Armstrong also submitted legal documents yesterday, albeit shorter in length. The main filing was the affidavit of Shawn O’Farrell, USA Cycling technical director since 2003, which included several points which seemed to echoed or bolster those made by Armstrong’s legal team.

He laid out various scenarios where he said that the UCI anti-doping regulations are the exclusive ones, and said licence holders are bound by its rules.

O’Farrell also included a statement saying that Armstrong’s teams raced in events such as the Tour de France, the Tour de Suisse and others, and that these were not amateur athletic competitions, nor part of the Olympics, Paralympic or Pan-American Games. This appears to pertain to the Sports Act mentioned above, and comes to the opposite conclusion to USADA.

The filing also included copies of Armstrong’s past licences from 2002 and 2010, as well as blank copies of licence applications from other years; O’Farrell stated that USA Cycling has not been able to find the original applications as yet.

However the licence application signed January 3rd 2011 includes a stipulation inches above Armstrong’s signature which may actually aid USADA’s arguments rather than his own. In signing it, Armstrong agreed to abide by relevant rules; these appear to hand priority to WADA.

‘I agree to submit to drug testing and to comply with and be bound by the UCI anti-doping regulations, the world anti doping code, or the US Anti Doping Agency (USADA), providing such regulations comply with the World Anti-Doping Code,” it stated.

That backs the WADA and USADA arguments that the Code takes precedence over all other regulations.

Both sides are due to lay out their arguments in the Federal court tomorrow. Sparks will weigh up the points and then make a ruling. Historically Federal courts have tended to recognise that such matters should be settled first by arbitration, prior to any further court action; Armstrong, USADA, the UCI, WADA and others will soon learn if Sparks will follow suit or make an alternative decision.

Either way, that ruling is unlikely to represent the Champs Elysees finish of this battle; with appeals and arbitration hearings possible, it’s still too early to predict the final result.

Also see:

USADA’s complete August 8th filing, including David Howman’s letter to Pat McQuaid
Sporza video interview with Pat McQuaid, July 11th 2012
Affidavit of Shawn O’Farrell, USA Cycling technical director, August 8th


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