Monday, July 9, 2012

Weighing Lance Armstrong


Zooooooooooooom!



What was that?! That was the sound of Bradley Wiggins and Chris Froome of Team Sky crushing my beloved Fabian Cancellara on the time trial course of the Tour de France today. Oh, wait, no it wasn’t. That was the sound of Lance Armstrong’s lawsuit against the USADA being dismissed by a federal civil court judge less than eight hours after filing the case this morning.



Today started with the #unconstitutional kitteh sheriff coughing up undigested bits of this morning’s rat onto the deck. Tasty. I should modify her name to be ominous foreshadowing #unconstitutional kitteh. Sorry for that image, but it disrupted my Tour de France viewing, which I actually woke up early for, and that put me in quite the foul mood.



Then news of the Lance Armstrong lawsuit against the USADA broke. Within a couple hours, I had the full 111 pages in front of me and I couldn’t resist the temptation to read the complaint in its entirety. So if you’re too lazy to read the complaint for yourself, here’s the “Anna Notes.”



<Ok this is where I would normally link the full complaint, except I downloaded the .pdf to my computer and now I can’t find the internet link because there’s too many news stories.>



In a nutshell, if there can be one for a complaint the size of best-selling novel that no one reads, Mr. Armstrong wants the court to 1) prohibit the USADA from pursing any charges against him (a.k.a. the injunction), 2) declare the USADA has no authority to even pursue doping charges against him and require the USADA to openly admit to their #unconstitutional non-existent due process vendetta witch-hunt (a.k.a. the declaratory judgment), or basically declare Mr. Armstrong innocent of all charges without actually making that determination on the evidence. Oh and he wants a jury trial.



Holy moly I ain’t never seen a 111-page complaint in my life. There is some poor law student doing a summer clerkship for the District Court in Western Texas that spent the entire day cursing those fancy Washington D.C. lawyers who decided to submit an epic novel instead of a concise legal complaint. I don’t know what these lawyers learned in law school, but as far as I’m concerned, there is only one strategy for writing a complaint: state your claim with enough specificity to establish all the relevant laws and facts and then shut the fuck up. It’s called Federal Rules of Civil Procedure Rule 8 General Rules of Pleading, often abbreviated as “short and plain statement” requirement.






The entire thing reads like it is intended to be quoted in the media, noting that the “Mr. Armstrong Foundation” (when has anyone ever called the Lance Armstrong Foundation the Mr. Armstrong Foundation) has collected more than $500 million for the fight against charity and, of course, highlighting that Mr. Armstrong is the largest individual donor having contributed $6.5 million of his personal funds, absolutely none of which is at issue. The plaintiff is Lance Armstrong, not the Lance Armstrong Foundation, not LIVESTRONG, and not the 28 million people living with cancer worldwide, which the complaint did make note of, just in case a federal district judge residing in Austin, Texas was unaware of Lance Armstrong’s involvement in the global fight against cancer, blah-blah-blah irrelevant.



The complaint goes on to enumerate Mr. Armstrong’s many notable athletic achievements, including his first triathlon victory at age 12 as proof of his naturally superior athleticism, which is again, not at issue.  It also provided a detailed day-by-day rehashing of the drama between Mr. Armstrong and Mr. Pound, then president of WADA that began as early as 2004 as though it were the script of a daytime soap operate called “Les Jours de Le Monde.” And it even included a list of list of all the inconvenient times when anti-doping dropped by unannounced, including the time when his wife was in labor. Hold on, let my find the world’s tiniest violin. Honestly, I’m surprised Cheryl Crow didn’t make the cut of notable personal associations and a little disappointed the complaint didn’t include a photo of Mr. Armstrong dressed in a dashing black tuxedo at a high-powered cancer awareness fundraising event. It would make a lovely cover for the book, especially if he were wearing, you guessed it, a yellow bowtie.



Other notable irrelevancies included a dissertation on the creation of the USADA, the usual regurgitation of Floyd Landis, the only-credible-when-we-need-him-to-be, convicted doper/accuser/victim, and Lance Armstrong, super-hero defender of the pro-peloton in the fight against the #unconstitutional UCI, WADA, USADA, and CAS on behalf of all those other poor little cyclists who’ve been victimized by the big nasty governing bodies of the sport, not to mention a list of every rule change the USADA has ever made over the last 12 years. Blah-blah-blah still irrelevant. Where is that book-deal contract?



What was notably absent? The accusations against the United States Attorney and the Department of Justice for illegally providing the USADA with secret grand jury witness lists and testimony. Maybe someone realized that accusing the highest level attorney in the country of major crimes and abuses of power might not be the best way to butter up a judge. The ad nauseum repetition that the anonymous witnesses who are all known liars were all coerced by the USADA to conspire against Lance Armstrong combined in nearly the same sentence as a complaint that the USADA has refused to provide Mr. Armstrong with a list of said anonymous-known-liar-coerced-victim witnesses. Make no mistake, he complained about not being able to fully examine the evidence and witnesses testifying against him with the same intensity and transparency as though he were being tried for first-degree murder in a case without a body – because if there’s no body, then there can’t be a murder. Right. Btw, I’m not implying Mr. Armstrong is a murderer.



Like always, the complaint went on in great detail about the lack of positive tests. Mr. Armstrong is now “the most drug tested athlete in sports history.” (Paragraph 41, Page 15). Mr. Armstrong has now been “subjected to 500 to 600 drug tests without a single positive test. In the time period from the fall of 2008 to March of 2009 alone, Mr. Armstrong was required to submit to 24 unannounced out-of-competition drug tests by anti-doping authorities. Each test was negative for performance enhancing drugs.” (Paragraph 42, Page 15). Again, this is all well and good but completely irrelevant to the cause of action.



Furthermore, lawyers don’t get paid to be creative. Lawyers get paid to state their claim with specificity, even if that means a seemingly redundant use of certain words and phrases.  Often times what isn’t said is as important as what is said. Here’s what I mean. Not all “prohibited substances” are “performance enhancing drugs.” What is and isn’t prohibited is objective; it’s either on the list or it’s not. Whether a prohibited substance is also performance enhancing is up for subjective discussion.



If you can make an argument that a prohibited substance isn’t performance enhancing, then can you say that a positive test result for a prohibited, but arguably non-performance enhancing, drug came back as negative for performance enhancing drugs? See the trick yet? Stating that each test was “negative for performance enhancing drugs” may sound stronger, but in fact it’s weaker because it describes a smaller group of results. It doesn’t exclude the possibility testing positive for “prohibited substances” that are deemed “non-performance enhancing,” nor does it address “banned methods” that don’t involve any substances or drugs. I appreciate that this is a semantics argument that most people will probably roll their eyes at, however, this is the type of language that wins or loses cases.



Notice what also wasn’t mentioned: prohibited methods including blood doping or blood manipulation. The USADA is claiming Mr. Armstrong’s blood passport values show signs of blood manipulation, a prohibited method, i.e. not using performance enhancing drugs and not something that will trigger a positive for a drug test. Blood doping is NOT a performance enhancing drug and it is NOT a positive drug test. Saying that Mr. Armstrong “never tested positive for performance enhancing drugs” doesn’t even address whether he ever tested positive for prohibited/banned methods and it’s negligent to exclude those from the defense. Oh wait, what am I talking about? This isn’t a defense; this is a complaint so his test results aren’t even relevant.



Continuing to Paragraph 49 on Page 17, “Mr. Armstrong’s primary physician has stated that the measurements he saw from January 1997-October 2001 were within normal ranges and were simply not consistent with the use of EPO by Mr. Armstrong during that time period.” Again, notice what isn’t said. One, there are many other performance enhancing drugs and performance enhancing procedures besides EPO; the doctor didn’t say that he didn’t see evidence of any other type of drug use or any type of prohibited method. Two, this is a very specific time window and this statement does not say whether Mr. Armstrong’s primary physician observed possible EPO or other prohibited substances, performance enhancing drugs, and prohibited methods before 1997 or after 2001.



The complaint seems to reference “banned/prohibited substances or methods” when discussing UCI-related results only, but otherwise uses performance enhancing drugs. Honestly, they really need to pick the most solid ground to stand on and that is never tested positive for any “banned/prohibited substances or methods.” Except I wonder if the reason they aren’t saying that is because they can’t say that. Again and like always, I don’t know if Lance Armstrong doped; I wasn’t there. This is just my legal analysis of the complaint. I expected a lot more from the $500 per hour crowd.



So for the fifteen millionth time, Mr. Armstrong has never tested positive for a performance enhancing substance and the only way to prove doping is in a laboratory through a positive test, right? Wrong. In paragraph 58 on Page 22, the complaint even acknowledges that it’s entirely possible to receive a doping violation without a positive test “if UCI’s experts conclude that the athlete’s profile cannot be explained other than by the athlete having used a prohibited substance or a prohibited method.” Note the use of the full language of the UCI: “prohibited substance and prohibited method.” Arguably, use of the second “prohibited” is redundant even by legal standards, but it leaves not a shadow of a doubt in your mind that both prohibited substances and prohibited methods can contribute to blood values that are deemed inexplicable enough to justify a doping violation.



This is the downside with the 111-page complaint: too much information, too many opportunities to explore creative license and use the wrong magic phrases. I may be arguing semantics with myself in noting the remarkable absence of the phrase “prohibited/banned methods” with respect to Mr. Armstrong’s test results. But the simple fact is that this court doesn’t give a shit about making a determination of whether Mr. Armstrong doped or not. Thus far, the Lance Armstrong Legal Team has spent a fortune narrating the life story of Mr. Armstrong and his cycling saga without actually stating any legal cause of action supported by facts.   



What was notably new? An attack on the accuracy of the testing laboratories in reporting false positives, to which begs the question, if these tests and labs produce false positives with alleged frequency, can’t they just as easily produce false negatives? Attacking the lab’s handling procedures and testing methods goes both ways. Maybe some of those 500-600 negatives were false negatives but because no on retests unless there’s a positive, there’s no way of identifying an escaped false negative?



Much of the new actual legal theory centered around the argument that the USADA doesn’t have jurisdiction to decide a doping charge against Mr. Armstrong because the two parties never formally entered into a contract. Instead, Mr. Armstrong’s license was held through the UCI and the UCI code specifically states that the USADA doesn’t have jurisdiction to pursue a doping allegation until after the UCI declares that a doping violation has occurred. Since the UCI has never cited Mr. Armstrong for a doping violation, the USADA therefore doesn’t have jurisdiction. Holy shit, do I spy an actual legal argument? Why is the first time we’re hearing this argument? I think its weak, but this is a matter a civil court could actually grant a declaratory judgment on – does the USADA have jurisdiction to decide Mr. Armstrong’s fate? Why is this little gem buried underneath a heaping pile of cow dung?



What is also of critical importance, Mr. Armstrong requested his legal fees be paid by the USADA. Even if Mr. Armstrong receives everything he asks for upon re-filing a proper complaint, I doubt any judge will award him the $500/hour to write this everything-but-the-cover storybook.



In about as much time as it took to read the 111-page whopper, 7.5 hours, the judge dismissed the case stating, “This court is not inclined to indulge Armstrong’s desire for publicity, self-aggrandizement, or vilification of the Defendants by sifting through 80 mostly unnecessary pages in search of the few kernels of factual material.” Owned.



And in a footnote: “Contrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism. All parties, and their lawyers, are expected to comply with the rules of this Court, and face potential sanctions if they do not.”



Is it me or did Judge Sparks just call Lance Armstrong a troll?  






Lance Armstrong may re-file the complaint within 20 days or the case will be closed and dismissed for failure to prosecute and for failure to comply with the court's orders.

4 comments:

  1. You are a million watts of awesome.

    Best regards,
    Mike Anderson

    ReplyDelete
  2. I think Lance definitely doped but there is a side of me that wants him to win vs. USADA. I think if he loses all those titles something in him will most likely die or the cancer will return. Terminally determined. It's unfortunate mostly for all the other cyclists that were clean and couldn't beat him. If he loses the case don't you think the sport like boxing takes another step toward the grave?

    we like your writing style...we right fiction!@rostercompany

    ReplyDelete
  3. Hi Anna,
    thanks for another awesome post %).
    I believe these were the nuggets in the steaming pile, three issues the $500ph brigade tries to introduce were (1)jurisdiction of USADA to conduct doping investigations, (2) USADA is a state actor aka government body therefore bound by rules of jurisprudence, AND (3) They say the entire case is built on Floyd going to UCI with his allegations against Lance, therefore UCI, not USADA, has to determine whether to act on those allegations.
    1) Lance raced every year under a new USA Professional Cycling license, agreeing to know and abide by the applicable rules and regulations of USA Cycling and the UCI, including the anti-doping rules and procedures as set forth by USADA, the UCI or WADA and agreeing to submit to any drug test organized under the rules by the UCI, USA Cycling, USADA, or the official anti-doping authority of a foreign country where competing. He also submitted to the jurisdiction of the USADA when he gave samples.
    2) It has been clearly determined by the Courts through numerous attempts by prior (ultimately convicted) dopers that USADA is NOT a state actor. Therefore criminal jurisprudence procedures do not apply, and Lance must abide by the USADA rules that ironically his personal manager, Bill Stapleton, helped draft when he was a board member of the U.S. Olympic Committee and served as the chairman of the athletes' advisory council, and that every IOC athlete in USA has agreed to.
    3) Floyd did NOT complain to UCI - in fact he accused them of being corrupt and protected Lance numerous times. Floyds email was sent to Steve Johnson, USA Cycling and not the UCI. The UCI only ended up with it after the leak.

    So yes, although there appeared to be some nuggets in the pile, it transpires the 111 pages is actually all fools gold as first suspected, and alluded to by Judge Sparks summary.

    cheers
    Adrian aka @sitting_bison

    ReplyDelete
  4. ---the complaint even acknowledges that it’s entirely possible to receive a doping violation without a positive test “if UCI’s experts conclude that the athlete’s profile cannot be explained other than by the athlete having used a prohibited substance or a prohibited method.”---


    To me, the key here is specifically naming the UCI and not USADA. This is what he's going to argue, that the UCI didn't find his blood values suspicious so USADA has no right to say they are. And I believe the filing claimed the UCI disposed of the '09-10 samples that lead to the irregularities even though they are supposed to keep them for eight years. No wonder Landis and others believe the UCI was in Armstrong's lycra shorts for years. No wonder both Hamilton and Landis testified that Armstrong failed a urine test but had someone at the UCI take care of it. No wonder Armstrong is the only athlete on record of having given large sums of money to the people that run his sport.

    I don't know how USADA is going to beat Armstrong and cycling's governing body at the same time.


    Oh, and this is another informative piece. Thanks.

    ReplyDelete