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Why Lance Armstrong Should Refuse to Play USADA's Game
If Lance Armstrong LOSES his case against the USADA, his critics will vilify him, his supporters will stand by him, he’ll be out several million dollars in attorney’s fees, he’ll be forever banned from professional sport, and his records may be stripped from him.
If Lance Armstrong WINS his case against the USADA, his critics won’t be convinced and will vilify him, his supporters will continue to stand by him, he’ll be out several million dollars in attorney’s fees, he’ll be too old to be competitive as a professional triathlete, and his records will be questioned by many.
Latasha Jenkins was the first athlete to ever win a contested case against the United States Anti-Doping Agency. After losing to Latasha, the USADA was 36-1. Her story illustrates the fact that the prosecutorial powers at the USADA are so overreaching, every athlete they pursue really loses.
In July 2006, LaTasha, a promising American track athlete, was training in preparation for the Olympic Games in Beijing. Her future looked bright. Her life-long dream of being an Olympian for the United States finally seemed possible.
Then in August 2006, her world came crashing down. The USADA’s cold-blooded, 20 month investigation into a botched drug test killed her dreams. With the help of volunteer law students, she fought back and became the first athlete to ever win against the USADA. However, for Latasha, this was no victory. In the twenty months it took for her to get justice, she lost her sponsors, lost her prize money, and lost almost two peak years to train for her Olympic dreams. Emotionally exhausted and devastated, she retired from track, and decided to never speak publicly about the worst years of her life again. (Go read USADA v. Jenkins: You Can’t Win When you Beat a Monopoly) for the full story.
What Latasha’s story reveals about the ongoing Investigation of Armstrong
Latasha’s story illustrates that the USADA protocol for investigating athletes is ripe for abuse. Yet, somehow, the USADA and its CEO Travis Tygart repeatedly fail to meet the shockingly low standards they have set for themselves. It won’t get better; the organization literally has no accountability. They receive ten million a year in federal tax dollars, so they’ll never run out of money. We are only thirty days into the investigation, but the lack of safeguards protecting an athlete from the type of prosecutorial overreach being exerted by Mr. Tygart are mindboggling. The USADA rules were written in such a way, that if Lance wins his case, he’ll lose in real life.
Armstrong has until Saturday, July 14th to inform USADA if he plans to challenge the charges they’ve brought against him, before a three member arbitration panel. Here are some reasons Armstrong should refuse to keep playing.
FIRST, the USADA rules allow witnesses to testify using a written statement, so their credibility can’t be questioned. (Supp. Proc. R-29) After comments recently made by Tygart, it appears he might interpret this rule to let the accusers testify anonymously as well. This means Lance might never be able to ask the witnesses that testify against him these two basic questions:
1) Were you offered immunity in exchange for your testimony against me?
2) Is it true that you previously said “Lance never doped” hundreds of times before you changed your story to protect your own interests.
How does one attack the credibility of an accuser they never face?
SECOND, the USADA’s time limit for bringing charges is eight years, so USADA should be limited to violations that date back to 2004.
Almost all of the alleged violations in this case would have happened before 2004. In Tygart’s obsessive pursuit of Lance, he’s trying to side step his own governing rules. A source close to the investigation, said Mr. Tygart and friends at the World Anti-doping Agency are now vigorously working to retroactively change the statute of limitations to 14 years. Actions such as these support Armstrong’s claims that, “the USADA is well known to move the goal line on you.”
THIRD, the USADA has no duty to share evidence with Armstrong that would help prove his innocence. At the end of Latasha’s case, the agencies involved implied that they had evidence in their possession, that would completely disprove the claims against her. She never got to see it. John Ruger, a respected statesman in this arena, recently said: “I do not think that I have ever seen USADA, in ten years, come forward and say, ‘Here is some evidence that might help your client and we are just going to give this to you.” Actions such as these make one question whether the USADA is really protecting the integrity of sport.
FINALLY, if Armstrong wins at arbitration it’s NOT over. The rules allow Tygart to start over and bring the exact same charges, with the exact same witnesses again. If the second panel finds against Armstrong the verdict is final, and never appealable to any other court. You read that correctly, if Travis Tygart, doesn’t like the first verdict, the USADA have written their rules so the case can be retried De Novo (from scratch) in front of three new people at the Court of Arbitration for Sport. Armstrong’s youngest child, who is still in diapers, might be driving before this investigation is finally over.
Robert D. Lunskin, Armstrong’s lawyer recently claimed: “The anti-doping agency has followed ‘North Korean Rules’ and is trampling Armstrong’s right for procedural due process.” I believe that if the people of North Korea had the right of free speech, they would express offense at the notion that their own laws are as malevolent and as one-sided as the USADA’s Tygarthian style of prosecution.
My Advice to Lance:
REFUSE TO PLAY A GAME NO ONE CAN WIN
If you beat the USADA, you’ll be out a few million dollars in attorney’s fees. If you beat the USADA, it will take so long, you’ll likely be past your prime as a competitive triathlete. If you beat the USADA, they’ll have found a number of people to drag your name through the mud. If you beat the USADA, it will never be enough to prove to the haters and critics that you never doped. If you beat the USADA, sadly you’ll still lose.
Option 1. Level the playing field. Ask a Federal Judge to declare that this process is actually #unconstitutional. I believe Armstrong has a number of legal remedies to fight the abusive processes of the USADA. I suspect Travis Tygart and his agency will be facing a lawsuit for their antics in this matter in the very near future. Tygart might not seem as confident, if he is required to play in system where he doesn’t write the rules.
Option 2: Refuse to play entirely. Let the USADA put an asterisk beside your titles. Let them ban you from sports they govern. The people that matter in your life will always know you’re a champion. There is absolutely nothing you can ever do to silence the critics. Go watch your five kids grow up, and teach them how to ride a bike. Go back to having a life. Go win every triathlon not governed by the WTC, and make them regret it. Go raise another $500 million dollars to help people fight and beat cancer like you did. Go do whatever the heck you feel like other than spending another minute giving a crap about the Travis Tygart’s of the world. Go Livestrong!
* Fellow attorneys, the legal matters in this case have been summarized to help make them understandable to the average reader. At some points, specificity had to be sacrificed for accessibility. If you are prefer to read the primary materials see:
1. American Arbitration Association Supplementary Procedures for the Arbitration of Olympic Sport Doping Disputes, Generally and R-28,R-29, and R-45 specifically.
2. USADA v. Jenkins: You Can’t Win when you Beat a Monopoly, Michael S. Straubel, 2008.
3. From the Trenches: The Landscape of Sports Dispute Resolution and Athlete Representation, John Ruger, 2009.
4. An overview of Non-Analytical Positive & Circumstantial Evidence in Sports, Richard H. McLaren, 2006.
5. Dopers Are Not Duped: USADA’s Assistance to Federal Prosecutions Ultimately Protecting Clean Athletes IS Not State Action, Sarah L. Horvitz and Travis Tygart. 2008.
Update: Lance Armstrong filed a lawsuit today asking a Federal Judge to block the USADA’s continued prosecution.
The lawsuit filed in the U.S. District Court in the Western District of Texas, accuses the USADA and Travis Tygart specifically, of violating Armstrong’s constitutional rights. It also claims that the USADA lacks jurisdiction in the matter, arguing the International Cycling Union decisions not to proceed with the charges should be final. Lastly, the lawsuit argues the USADA should be considered a state actor. After all, for the past two years, Tygart has worked hand in hand with federal investigators to do what neither could do alone.
Jeff Novitsky, and other Federal prosecutors used the long arm of the federal government to collect evidence, that apparently was either inadmissible in Federal Court, or insufficient to meet its “beyond a reasonable doubt” burden of proof. Novitsky, handed this information off to the USADA where there is a lower burden of proof; where the USADA decides what evidence is admissible; and where Armstrong’s constitutional rights are no longer protected. This argument has failed before, but there has never been a case where USADA and Federal prosecutors have worked so closely together. I think the Federal Judge in Texas; will look closely at this one.