On 3 August 2012, Lance Armstrong’s legal team filed a response to USADA’s 19 July 2012 Motion to Dismiss.
USADA’s substantive arguments:
- The Ted Stevens Olympic and Amateur Sports Act (“Sports Act”) (an Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empts Armstrong’s claims.
- Armstrong has failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
- Armstrong’s claims must be arbitrated (Lance, like all athletes, has regularly contracted to be bound by the arbitration process).
- Armstrong’s claims fail on the merits.
Armstrong’s key arguments in response:
1. UCI, not USADA, has jurisdiction under the UCI Anti-Doping Rules (on which USADA relies in its charging letter) because:
a. UCI collected the samples relied upon by USADA;
b. UCI “discovered” the claimed violation (WADA Code, Article 15.3: “results management and hearings are the responsibility of and shall be governed by the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection”).
c. UCI has jurisdiction over Lance, as retired cyclist, as the organisation having jurisdiction at the time of claimed violations (pre- 13 August 2004, UCI’s anti-doping rules provided that they alone apply to international events, the charging letter refers to violations between 1996 and 2005, no specific conduct alleged after 13 August 2004);
d. UCI asserts jurisdiction and has directed USADA not to proceed further. (In fact, UCI released a written statement on 7 August, following exhibiting its correspondence to USADA in this case on 6 August 2012 , confirming its direction to USADA, and publicly criticizing the due process aspects of USADA’s process in relation to Lance Armstrong and the 5 related respondents).
e. UCI also has exclusive jurisdiction under the WADA Code
f. USADA has no jurisdiction to bring a consolidated action against 6 people (There is no WADA Code violation for participating in an alleged doping conspiracy).
2. The Sports Act applies only to amateur athletes, not Lance.
3. Even if the Sports Act applied, it would not pre-empt this challenge, ie a common law and Fifth Amendment due process challenge (not an eligibility dispute).
4. Armstrong should not have to go through the arbitration process, where that arbitration process is the subject of challenge over jurisdiction.
5. Armstrong did not, in fact, agree to the arbitration process, saying:
a. USADA has the burden of proving any agreement to arbitrate;
b. USADA has not established any agreement to arbitrate (the USADA Protocol relied upon by USADA do not apply to Armstrong, his annual international licence are governed by the UCI Anti-Doping Rules);
c. Armstrong’s membership of USA Triathlon has no relationship to the matters alleged in the charging letter.
USADA argue that the courts have traditionally taken the view, in previous cases (eg Mary Decker Slaney’s case), that Congress has determined, in clear terms, that USOC and USA Cycling are the bodies best able to deal with such disputes. The court, in Mary Decker Slaney’s case, had, in fact, veered away from a review of the validity of a drug test: “an endeavour (a court) cannot partake in”). Armstrong, in response, refers to the Tonia Harding case, and other cases, where the court had concluded that judicial intervention was warranted : “where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm tp the plaintiff, and the plaintiff has exhausted all internal remedies”.
The USADA jurisdiction argument took a dramatic twist over the weekend. UCI released a statement on Saturday (7 August), disputing that USADA has jurisdiction, and directing USADA to refer its files to UCI. Surprisingly, UCI went beyond this and expressly condemned USADA’s processes, on the basis of due process, in particular:
- 3 respondents banned for life, because they did not respond to USADA charging letter;
- USADA refused to provide UCI with evidence that the 3 respondents had received the USADA charging letter;
- no neutral review of the evidence relied upon by USADA;
- the 3 respondents banned for life were not given the evidence relied upon by USADA;
- the 2 respondents due to file a defence by 15 August 2012 have not been given the evidence relied upon by USADA;
- according to the World Anti-Doping Code and UCI’s Anti-Doping Rules that USADA claims to apply, the UCI is the authority having results management for this case.
A copy of the UCI statement is attached. The most damning (for USADA) part of the UCI statement:
For the UCI it is clear that USADA claims an authority that it does not have and uses procedures that violate basic principles of due process.
This action is listed for hearing on 10 August 2012 (before the 30 day agreed USADA extension runs out). Judge Sparks, of course, may or may not prefer the long-held view argued by USADA. Either way, we can expect to see an appeal from the Judge’s ruling on this important legal argument, referred by whoever loses, in the Appeals Circuit.
6 August 2012