As the 2012 Tour de France moves into the rest day, 7-time champion Lance Armstrong is facing his biggest battle to date – excluding his fight to survive life-threatening cancer. After years of defending himself against doping allegations from a variety of sources and winning every lawsuit those accusations generated, Armstrong must finally answer to the United States Anti-Doping Agency (USADA). Formally charged with doping during at least some of his grand tour wins, Armstrong has fired back with a lawsuit against the federally-funded agency, claiming that the agency’s process violates his civil rights.
First, a few basics:
1. I have no idea if Lance Armstrong has ever taken performance-enhancing drugs.
2. In the USA, individuals are innocent until proven guilty in criminal cases. In civil cases, however, this is not always the case.
3. Lance Armstrong has never tested positive for doping. And as he often claims, he is the most tested athlete in the world. Even now, when he is competing in Ironman triathlons and marathons to raise cancer awareness, he is still held to those standards.
It was 2 years ago that Food & Drug Administration special agent Jeff Novitzky began investigating Armstrong based on testimony from disgraced cyclist Floyd Landis, a self-admitted liar and convicted doper who was stripped of his 2006 Tour de France title. Landis also had an axe to grind with his old teammate Armstrong, who declined to hire Landis when his suspension ended. Landis had accepted $1 million in donations from fans to support his defense against his own doping charges and even published a book, “Positively False”, proclaiming his innocence, before eventually losing his appeals and later confessing. Also jumping on the accusation bandwagon was Tyler Hamilton, another cyclist convicted of doping after spending years and fans’ donations to assert his innocence. Eventually, the federal investigation was closed with no charges being filed against Armstrong. Yet another victory for Lance.
Even with the feds failing to prove their case after spending countless tax dollars in a 2-year investigation, the USADA took up the challenge. Travis Tygart, the chief executive, was convinced that he could prove his case against Armstrong:
“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws,” Tygart said in a statement. “Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation.”
Picking up where the feds left off, Tygart focused on testimony from cyclists who raced with Lance and were still competing. He seems more interested in weaving a believable tale and less in proving the facts of the case. Four days ago, Dutch newspaper De Telegraaf reported that prior Armstrong teammates George Hincapie, Levi Leipheimer, Dave Zabriskie, and Christian Vande Velde, as well as Garmin Slipstream director Jonathan Vaughters, have agreed to testify against Armstrong. The four cyclists allegedly withdrew their names from consideration for the 2012 Olympic cycling team in anticipation of a 6-month suspension which will begin, conveniently, after the Tour de France and the Vuelta d’Espagna. None of the cyclists have been willing to comment on this report. Vaughters denied that he or any cyclists on his team were facing any discipline. If this turns out to be true, it creates a challenge for Armstrong; Hincapie will make a far more believable witness than Landis or Hamilton, even if he is trading testimony for immunity and a shorter punishment.
Today Armstrong and his attorney submitted a lawsuit in US Federal Court in Texas, seeking to block the USADA from pursuing the case against Armstrong. Accompanied by a 111-page brief, the lawsuit argued that the USADA violated an athlete’s right to a fair trial.
Eight hours later, Judge Sam Sparks dismissed Armstrong’s lawsuit…but not based on merit. The judge took issue with what he perceived to be a bid to incite public opinion and criticized the extensive editorial content, comparing it to an internet blog. He left Armstong the opportunity to refile his suit within 20 days. Armstrong’s attorney Tim Herman acknowledged the judge’s opinion and stated that they would revise their suit to address their complaints more directly and succinctly.
It’s a tricky situation. The USADA is federally funded, giving credence to Armstrong’s argument that the agency should follow constitutional law, allowing his team access to all testimony and evidence. The agency is not, however, a direct branch of the federal government; rather, it is an agent of the US Olympic committee designed to monitor athletes’ performance and promote clean and fair competition. As such, the USADA has significant leeway to create their own rules, putting the athlete defending himself at a severe disadvantage.
In the cases of Landis and Hamilton, they failed routine doping tests during races, and their defense teams had all the relevent documentation. The case against Armstrong is built on the testimony of athletes already convicted of doping and possibly others who were pressured to confess, but no hard evidence exists. The USADA currently claims that blood tests of Armstrong’s from 2009 and 2010 are “suggestive” of a doping pattern. At the time of competition, however, these tests were considered to be negative by the UCI, the International Cycling Union.
Armstrong has the option to accept the USADA’s charges and any penalties that they choose, which will likely mean a lifetime ban from racing at a minimum, or challenge the charges. He has until Saturday to make that choice, unless he prevails in his lawsuit once he refiles it. In it, he states:
“Defendants have charged Mr. Armstrong with unspecified doping violations and seek to try him through USADA’s self-created, self-regulated and self-operated process that it has rigged to ensure that it cannot lose,” the lawsuit says. “USADA’s kangaroo court proceeding would violate due process even if USADA had jurisdiction to pursue its charges against Mr. Armstrong.”
The USADA’s case is a fairly hypothetical prosecution, unless the agency has more than they’re acknowledging. And if that’s the case, Armstrong deserves an opportunity to defend himself. In an arbitration, which is his only option, he will not be permitted to subpoena witnesses and cannot demand access to the prosecution’s evidence. It’s an uphill battle, to be sure. Thus, Armstrong strives to prevent to the matter from getting to that point. Michael McCann, a law professor, summarizes the complicated legal issues here.