Tuesday, July 10, 2012

Complaining Lance Armstrong v2.0

Too tired to read the amended complaint by Lance Armstrong in his civil suit seeking injunctive relief and a declaratory judgment against the USADA? Look no further.

Finally, the Lance Armstrong Legal Team has taken away drafting privileges from all of the law student interns and actually found a real lawyer to write the new complaint.

Well that was a snooze-fest, which is actually a huge relief because that is exactly what a complaint should read like – boring and repetitive. Fear not, I’ve been drinking coffee all day long.

First let it be noted that in the “Comprehensive Drug Testing of Mr. Armstrong” section, the complaint asserted the “500-600 drug tests without a single positive result,” some of which were conducted by the USADA. (Paragraph 16, Page 5) But note what it didn’t say.  No reference was made to “banned methods,” such as blood doping or blood manipulation.

Reasons why the federal civil court should prevent the USADA’s anti-doping proceedings against Lance Armstrong:

1: There is no valid, legal or enforceable arbitration agreement with the USADA.

Prepare for legal tap-dancing.

The allegations span from 1996 to 2012. “Under the UCI’s Anti-Doping Rules, because Mr. Armstrong retired from cycling (February 2011) before Defendants initiated charges against him (June 2012), the organization that had jurisdiction over him during the time of the alleged violations has jurisdiction to determine whether to proceed against Mr. Armstrong. That organization is the UCI, not USADA.” (Paragraph 25, Page 7-8)

The UCI had jurisdiction because Mr. Armstrong filed an annual international license application with the UCI that constituted a binding contract, however, that contract was not signed by the USADA and the UCI never delegated its authority to the USADA.

Or basically what they’re saying is that even though the USADA has spent more than a decade conducting arbitration proceedings for doping violations against American athletes, many of whom hold international licenses, two of whom –Floyd Landis and Tyler Hamilton were also cyclists with UCI licenses, the USADA never actually had the authority to enforce its written procedures for charging athletes with anti-doping violations. Wow, I bet that right now Mr. Landis and Mr. Hamilton are preparing malpractice complaints against their former attorneys for failing to make that argument.

Is there any other way in which Lance Armstrong could’ve consented to an arbitration agreement with the USADA? Yes, there’s more than one way to create a contract.

First, there’s USACycling (USAC), which very clearly states that anyone holding a domestic racing license also consents to be governed by the USADA, UCI, and WADA. http://www.usacycling.org/health-anti-doping.htm

If Lance Armstrong held a USAC license, or applied for his international UCI license through USAC, then he contracted to be governed by the rules of the USADA, including consent to arbitration. I couldn’t find any information on applying for a UCI license on the UCI website. However, I did find a ton of information on how to apply for a “UCI” international license on the USAC’s website, which leads me to believe that the application process for the UCI license is initiated through USAC.

Second, I found a list of USAC’s race results for one LanceArmstrong#1917, which seems to prove that Mr. Armstrong had a domestic USAC license and that means he directly consented to arbitration with the USADA.

It’s worth noting that I don’t know the specific language of the contracts, nor do I know what changes have been made to the wording over the years. I’m just assuming that USAC isn’t going to misrepresent the authority of the USADA, UCI, and WADA in the general summary of the anti-doping rules that apply to license holders. Even if the language wasn’t specified, that doesn’t exclude the possibility that Mr. Armstrong consented to the USADA’s arbitration process.

Contracts can be created through actions. If both parties behave as though they share a binding agreement, then the court will find an implied contract, however, the terms of the contract will be very limited. For example, you move into an apartment and start writing a check to the property owner once a month for $250. The property owner cashes the checks. You have a month-to-month rental agreement even though no one ever signed anything or even explicitly verbally agreed to a rental contract.

Did Lance Armstrong behave as though the USADA had authority over his cycling activities? Yes.

Did Lance Armstrong routinely provide the USADA with his out-of-competition whereabouts as required or did he disappear as soon as the race ended because he didn’t think he needed to report to anyone?

When the USADA anti-doping agent showed up at his home for an unannounced drug test, did Lance Armstrong slam the door in his face or pee in the cup?

When the initial investigation letter showed up on his doorstep, did Lance Armstrong rip it to shreds because he didn’t believe the USADA had any authority to investigate him or did he ask his lawyers to prepare a fancy response letter highlighting Mr. Armstrong’s determined interest to participate in the arbitration process?

Did Lance Armstrong consent to arbitration with the USADA? You tell me.

2: USADA’s charges were brought in violation of its own rules.

Even if the USADA has jurisdiction, the statute of limitations bars all claims prior to June 28, 2004, eight years prior to the formal charge. The Lance Armstrong Legal Team alleges that witnesses have been “provided improper inducements” in violation of WADA which prohibits reducing an athlete’s punishment until after charges have been brought and punishment has been determined. (Paragraph 30b, Page 9)

This is my one major sticking point with this entire allegation. The statute of limitations is eight years; however, the time limit can be tolled in the event of a conspiracy. My assumption is that this is in recognition of the fact that a group of people working in concert to conceal evidence makes it substantially harder to identify and prove doping violations, hence the time extension. I think the crux of the USADA’s argument is that they allege they can prove doping violations and conspiracy activities occurred in 2004, 2009, and 2010, which are within the natural statute of limitations, and because there was a conspiracy, some other rules give them authority to strip titles backwards for as long as the conspiracy can be proved to exist.

Next comes the doozy that, if true, makes me wonder why the United States Attorney hasn’t been fired, disbarred, and criminally prosecuted for corruption and abuse of power. The witnesses’ testimony was obtained by “offering inducements” in violation of federal criminal bribery laws. Really? The Lance Armstrong Legal Team is claiming the United States Attorney and agents of the Department of Justice and FBI violated federal witness bribery laws, i.e. major crimes for which they would all lose their jobs and possibly face criminal liability, just to obtain testimony for the now-defunct criminal investigation? The mere fact that there hasn’t been a massive exposé detailing federal government corruption that’s resulted in hundreds of arrests and indictments within the named federal government agencies leads me to believe that maybe, just maybe, the US Attorney, DOJ, and FBI, followed the law while conducting the witness interviews.

Do we even know if any of the anonymous witnesses have been or will be charged with doping violations and have been or will be offered reduced punishments in exchange for their testimony? Is there any confirmation of that anywhere? Wow. I am flabbergasted that someone thought it wise to include this accusation in a completely unrelated complaint.

And then lastly, the USADA hand-picked the Review Board members and, therefore, the charges were not meaningfully considered by the Review Board. Doesn’t the USADA also have the authority to select their own Review Board? At some point you have to trust that the fancy professional on the other side of the table can be impartial.

3: USADA brought charges against Mr. Armstrong under color of the state and its conduct, as applied to Mr. Armstrong, is unconstitutional.

Brief summary: USADA was created by Congress, largely funded with federal grants, worked in concert with the United States Attorney’s Office, FBI, and FDA during the Department of Justice’s criminal investigation of Lance Armstrong and, therefore, the USADA is a state actor.

This section doesn’t actually explain why the USADA’s conduct as a “state actor” was unconstitutional. It states a lot of facts supporting the claim that the USADA could be deemed a “state actor” (a.k.a. federal government agency), but it doesn’t actually say why its conduct is unconstitutional.

4: USADA’s procedures in this matter do not comport with due process.

This is the “if all else fails” argument that concludes with it’s in the “public interest that USADA be required to follow the rules governing its jurisdiction and conduct… granting the relief requested by Armstrong will result in no harm to the public interest.” (Paragraph 52, Page 16)

Seriously? The public interest will not be harmed by prohibiting the USADA from pursuing anti-doping charges against Mr. Armstrong? Where’s my violin?

The Lance Armstrong Legal Team claims that the USADA’s arbitration process was “primarily designed for handling cases involving positive test results, which does not afford requisite due process for a situation like this one, which there is no positive test result, and where Defendants have worked in concert with the United States government to investigate the athlete.” (Paragraph 40, Page 12)

I don’t understand why the fact that there is no positive test result means that the USADA’s arbitration proceeding cannot provide adequate due process. Would someone like to explain to me why it is that the arbitration proceeding is ill-equipped to make a determination of a “non-analytical positive”?

Oh, there it is. The complaint goes on to state every single difference between the discovery process and procedures of a criminal case versus an arbitration proceeding. (Paragraphs 42-45, Pages 13-14) In fact, it kind of looks like someone copied and pasted the “cons” list from the Wikipedia definition of arbitration.

I was starting to appreciate the value of their point – an “analytical non-positive” requires a lot of witness testimony, not just a mere presentation of laboratory results, and the defendant needs a full and fair opportunity to interview the witnesses. Then the complaint launched into the stratosphere and started enumerating all of the procedural rights Mr. Armstrong would’ve had if the Department of Justice had filed criminal charges in federal criminal court. (Paragraphs 46-48, Page 14) Hey guess what? This is not a criminal proceeding. This is completely irrelevant. Furthermore, I find it a little disconcerting that all three of these points are supported with statutory or case law, but the vast and overwhelming majority of the complaint cites absolutely no law or even specific language from the relevant UCI, USADA, and WADA rule books. Where’s the support?

The complaint continues with the demands for injunctive relief and a declaratory judgment, which basically boil down to a demand that the court grant Lance Armstrong immunity from any doping charges ever being filed against him in the United States of America.

In my opinion, at issue isn’t the allegation of inadequate due process of the USADA’s arbitration proceeding, but the jurisdiction of the USADA to oversee the arbitration proceeding in the first place. The fact is that if Mr. Armstrong consented to arbitration, then he consented to both the advantages and disadvantages of bypassing the judicial system to resolve conflicts between him and the USADA.

I don’t think there’s enough substantive evidence to prove that the USADA has breached its own rules to the extent that a civil court judge will find that Mr. Armstrong’s due process rights are being violated. Furthermore, a civil judge is likely to require an actual showing of harm in addition to a genuine violation of due process rights before making any determination on the pleading. The judicial system doesn’t exist to make legal conclusions based on hypothetical injuries.

The Lance Armstrong Legal Team has also requested a temporary restraining order that, if granted, would prohibit the USADA from continuing their arbitration proceeding against him until after the court declares whether the USADA has jurisdiction over Lance Armstrong and whether their proceeding violates his due process laws. A TRO is not a legal determination; it’s “stop work” order designed to prevent imminent and irreparable harm to the plaintiff while the judge determines the legality of the defendant’s right to engage in that behavior.

Here’s a classic TRO case: A developer bought a 150-year-old mansion and intends to tear it down. The historic preservation society was in the process of having the city declare the mansion a historic monument that would prohibit demolition of the building. The historic preservation society would seek a TRO preventing the developer from destroying the house until after the city has made a determination of whether the house meets preservation qualifications. Obviously, once the developer starts demolition, it can’t be rebuilt. That’s the type of imminent “irreparable harm” the court needs to issue a TRO before making a determination on the merits of the claim.

I don’t think Lance Armstrong will receive the relief he is seeking, provided that I am correct in my assertion that the USADA has jurisdiction and he consented to arbitration, because what’s really at issue is the “freedom to contract.” This means that people have a right to enter into highly specific contracts, including those in which one or both of the parties sign away some of their fundamental rights, namely the right to settle disputes in the judicial system. You cannot contract for things that are illegal, but the court has a long history of upholding stupid contracts so long as they are not abusive or illegal. It is your responsibility to read what you sign and to know what you consent to; it’s not the court’s responsibility to resolve disputes that arise between parties who subsequently decide they don’t like the way the contract is being enforced against them.

If you don’t want to be subject to the anti-doping procedures, then don’t be an athlete. Attorneys don’t get to pick and choose which parts of the legal ethics code to follow. Doctors and dentists don’t get to decide to only follow the Hippocratic Oath when it’s convenient. Architects and engineers don’t get to build houses that violate building codes just because they're prettier or cheaper. There are restrictions on every profession. Our rights aren’t unfettered. Get over it.


  1. The "state actor" is the more important issue. Because if USADA is not a state actor, any claims about #unconstitutional or due process have absolutely no basis - Lance is just a guy with a contract with the UCI that clearly says that he agrees to be bound by USADA's processes.

    And despite long-winded articles in Outside Magazine, and lots of junk in their "brief", I don't think USADA will be ruled a state actor. First, it's been tried before a few times, unsuccessfully. But more to the point, most of the arguments are basically that it looks like a court system. So what? That's just the process USADA decided to use, which Lance agreed to in his contract. USADA could as easily have chosen a system of sacrificing chickens that looks nothing like a court system, and they wouldn't be any less or more a state actor for it.

    I think the meat of the "state actor" issue is that even though USADA's procedures might seem similar to a law enforcement activity, they DO NOT ENFORCE ANY LAWS. So it doesn't matter what they look like. They are not serving any government law enforcement function. Or any other government function. Even if they do work closely with actual law enforcement people. As someone on twitter mentioned, insurance agents usually work pretty closely with law enforcement officials, they have arbitrations, they can effectively assign penalties, and yet no one is claiming that insurance companies are state actors.

    If they're not state actors, then this is just a contract dispute. The arguments about the constitution and due process and jurisdiction all simply vanish.


  2. Hi Anna,
    Lance clearly hired the wrong suits, he would have been much better off if they had of hires you to brew the coffee and sharpen pencils like you offered a few weeks ago.

    Only two very brief points:
    1) Where can I get an apartment for $250 per month!!
    2) "Architects and engineers don’t get to build houses that violate building codes just because their prettier or cheaper" - how are the non-structural beams and illegal plumbing going lol

    Adrian aka sitting_bison

  3. So much for "I'm done." they can do whatever they want.

    It is interesting to me that LA and his cadre of cheaters, particularly JB, do not appear to be coordinating their actions. I am not clear what JB has done, but guess we will know on Saturday. But, I can't believe that JB will go down without a fight.

    And of course, UCI is noticeably quiet. One might say disturbingly quiet.

    On the bright side, we might be seeing the last of LA on those Michelob commercials.

    For all of the ups and downs and psychological wonders that this case will generate, ultimately, we can only hope that it proves crime does not pay, whoops, they chose not to prosecute him, but it will prove that cheaters get caught!

    We can only hope that LA will get nailed for perjury in the insurance case to get his $5M bonus.

    All of the clean riders deserve at least that.

  4. The only thing worse than doping cyclists are lawyers trying to stop said riders from facing the music. They deserve each other.

  5. Actually, USADA is a bit of 'Star Chamber'. Read up on 'Rant Your Head Off' for more information, but the fact is that they get to make the rules, and change them, when they want. I'm not saying Lance is innocent - far from it. Here's a link to the one case that USADA lost... It speaks volumes. http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1045&context=drlj

    And remember - Floyd did NOT take Synthetic Testosterone, which the labs claim they found in his system. Furthermore, he later admitted to taking everything BUT Testosterone, and they failed to catch those PED's. Personally, I wouldn't hire the lab techs in Europe to fill prescriptions at a Walgreen's, for fear of my life, but their word is golden in the ADA world.

  6. Put yourself in Lance's shoes. You have a huge reputation based on winning the TdF 7 times and you've built a huge organisation, and income, round that reputation. Now assume those wins were fuelled by doping and you've lied about it for years (this is all hypothetical as I have no idea if Lance has doped or not). You stand to lose a huge amount if you're found out and the lies are exposed so wouldn't you do everything you possibly could to prevent that happening?

  7. It appears that the judge has set a hearing date of August 10th.

    From the judge's order:

    "However, because this case is unlikely to have been resolved by that date, the agreed extension is likely only to postpone the question of whether this Court should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses."