The Explainer: What’s due and to whom?
Thank you for doing the Live Update Guy during the Vuelta a España. I followed several stages with you when I had no television access, and found your coverage very enjoyable.
I have followed cycle racing since Greg LeMond raced the Tour, which also means that I’ve had to follow a lot of doping scandals, as well.
One thing that has bothered me has been the disregard of due process for the athletes involved and lack of rigorous scientific methods in the testing and identification of performance enhancing drugs carried out by WADA, and the national ADA’s.
It is very apparent to me in the Lance Armstrong case. No evidence has been presented by USADA, and statements from them lead me to believe that the evidence is under court seal of the grand jury investigation.
My question is what consequences are there for releasing evidence under court seal or the use of it in a court proceeding. I seem to recall that journalists have been jailed for publishing leaked grand jury testimony. I wouldn’t be surprised if this comes up soon.
First, thank you for your kind words regarding the Live Update Guy coverage of the Vuelta this year. We – Patrick O’Grady and I – had a lot of fun and I am surprised that 1) I was able to do all three grand tours and my day job without my head exploding at some point along the way and 2) that the response was generally positive and folks kept coming back to check in. We’ll see if we can do the same next year. No promises yet, though.
Let’s start with your assertion that USADA has demonstrated a disregard for due process rights in its treatment of athletes alleged to have doped. The World Anti-Doping Code has specific procedure outlined as to how an athlete is to be charged, what burden of proof is required to make a charge stick and how that athlete may defend himself or herself against those charges. That includes the option to appeal the original ruling to the Court of Arbitration for Sport.
In other words, the Code has within its rules the classic definition of procedural due process: “A course of formal proceedings carried out regularly and in accordance with established rules and principles.”
No, these are not the same as those afforded a criminal defendant charged in the United States. We’re looking at a set of rules designed to enforce a private agreement between parties – namely you get a license to race and you have to agree to follow the rules – and, frankly, they are rather extensive when you compare them to the procedural options available to others in similar situations.
Armstrong raised those very due process concerns in a federal lawsuit, filed in the Western District of Texas. In his suit, Armstrong asserted that USADA lacked jurisdiction and that the entire arbitration process violated his constitutional due process rights.
In dismissing the suit, Federal Judge Sam Sparks disagreed and said that USADA’s procedures and “arbitration rules, which largely follow those of the American Arbitration Association, are sufficiently robust to satisfy the requirements of due process. This court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render a conscientious decision based on the evidence before it. Further, Armstrong has ample appellate avenues open to him.”
The Olympic sports world’s final arbiter of disputes is the International Court of Arbitration for Sport in Lausanne. There are 25 years’ worth of case law to review since CAS issued its first decision in 1987. As Sparks noted, there are “robust” means by which an initial decision is subject to review. History shows that most national federations’ initial rulings are upheld at CAS, but there are some noteworthy exceptions. Most recently, CAS overturned the life-time ban of Mohamed bin Hammam, noting that soccer’s international governing body, FIFA, had presented insufficient evidence to support claims that he had bribed NGB officials in his bid to become president of the organization.
In cycling, the case of Iñigo Landaluze is worthy of note. Landaluze won the 2005 Dauphiné Libéré, but was suspended after lab results showed an elevated testosterone/epitesterone level in his urine. Despite concluding that Landaluze “probably” committed a doping violation, CAS over-turned his suspension based on the UCI’s failure to meet its burden of proof in the case, by ignoring a series of lab errors that occurred during testing. Of course, WADA subsequently opened itself up to harsh – and quite justified – criticism when it revised the WADA Code to preclude further challenges based on the legal theory used by Landaluze’s attorneys. (Landaluze, by the way, was later suspended again after testing positive for CERA.)
Of course, governing bodies and doping, too, have the option to appeal national federations’ decisions with which they don’t agree. The Contador case is a good example of that.
Whether he’s sick of the fight, or just not willing to lose it, Armstrong opted to forego those procedural steps and simply walked away, declaring the whole process to be flawed and inherently biased against him. That was his choice.
He raises an interesting question or two, though.
For one thing, it may be time to clarify USADA’s role. It has long claimed that it’s not a “state actor” (the police, for example, are state actors, working under the authority of the government), although a significant portion of its funding comes from public sources and much of its authority through both U.S. statute and international treaty. Were it to be defined as a state actor, in essence a law-enforcement agency, USADA would be subject to a much stricter constitutional requirements. I personally don’t believe that an agency enforcing what are essentially private contract provisions (you can ride, but you can’t cheat) qualifies as a state actor, but it would interesting to see how the courts take on that question. They may, however, be reluctant to get involved.
Sparks certainly felt it inappropriate to involve the courts in a dispute involving sports’ governing bodies and athletes. Sparks turned to another famous case, Harding v. U.S. Figure Skating Association, quoting that “courts should rightly hesitate before intervening in disciplinary hearings held by private associations. . . . Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all internal remedies.” (My emphasis added. – CP)
Obviously, in choosing to walk away from the fight, Armstrong won’t come close to having “exhausted all internal remedies,” so if the courts ever do tackle the question, it’s unlikely to be because of the Armstrong case.
For his part, Sparks did raise some constitutional concerns based on what he characterized as deficiencies in USADA’s original charging document. Sparks noted that the June 12 letter wouldn’t meet the requirements of a charging document issued in a criminal case because it wasn’t detailed enough. In other words, like you, Sparks noted that USADA didn’t include enough detail about its evidence to allow Armstrong to prepare an adequate defense.
“Indeed, but for two facts, the court might be inclined to find USADA’s charging letter was a violation of due process and to enjoin USADA from proceeding thereunder,” he said. “First, it would likely be of no practical effect: USADA could easily issue a more detailed charging letter, at which point Armstrong would presumably once again file suit, and the parties would be back in this exact position some time later, only poorer for their legal fees. Second, and more important, USADA’s counsel represented to the court that Armstrong will, in fact, receive detailed disclosures regarding USADA’s claims against him at a time reasonably before arbitration.”
Had Armstrong decided to put up a fight and USADA not provided sufficient pre-hearing discovery, Sparks said he could easily re-open the case and “USADA is unlikely to appreciate the result.”
But Armstrong’s options on that front, too, evaporated when he chose not to take the case to arbitration. Tygart has, on more than one occasion, suggested that it’s because Armstrong already knew of the strength of the case against him and didn’t want it made public. But it very likely will make its way into the public sphere. Tygart says there is nothing in the rules to prevent that.
Grand jury secrecy
But what is USADA going to release when it does make some or all of that evidence public?
You are correct in noting that the disclosure of matters occurring before a grand jury is generally barred by the Federal Rules of Criminal Procedure, specifically Rule 6(e). The rule prohibits grand jurors and staff – court reporters, interpreters and government attorneys – from revealing the nature of testimony and evidence presented to a grand jury.
There are exceptions, chief of which is that witnesses are not barred from publicly discussing their testimony. In the Armstrong case, the best example of that, of course, is Tyler Hamilton’s interview with “60 Minutes” and his recent release of “The Secret Race.”
The other big exceptions include the sharing of information with other grand juries, other attorneys for the government in their efforts to enforce federal laws and, by petition, “any other person whom the court may designate.”
That petition process may have been what USADA CEO Travis Tygart may have been considering when he issued the following statement on the day the Armstrong grand jury shut down its investigation.
“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws,” Tygart said. “Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation.”
There is no indication at this point that Tygart and USADA have gained access to the evidence presented to the Armstrong grand jury. That’s not to say that Tygart has operated in complete isolation from the grand jury or those investigating the case. You might, for example, recall that in November of 2010 Tygart, U.S. Food and Drug Administration Agent Jeff Novitzky, and Assistant U.S. Attorney Doug Miller, were spotted in Lyon, France, apparently meeting with investigators at Interpol.
Tygart was at least peripherally involved in the Armstrong investigation. He may have been able to convince Miller and other prosecutors that they should include a requirement to cooperate with USADA whenever offering any immunity deals to athletes in exchange for their grand jury testimony.
Tygart has, however, managed to gain access to evidence and documents presented to at least one other grand jury in the past. In the Bay Area Laboratory Cooperative (BALCO) case, Tygart enlisted the help of Senate Commerce Committee chairman, John McCain, to do so. The Senate committee, which has jurisdiction over the U.S. Olympic Committee, subpoenaed BALCO documents under the Rule 6 exceptions and then shared that information with USADA.
Positives from outside the laboratory
But even absent access to grand jury case, USADA says it has substantial evidence to support the claims outlined in the original charging document sent to Armstrong, Johann Bruyneel and four other respondents on June 12, 2012.
The bulk of that evidence, according to USADA, is based on witness testimony. You might note in the charging document, that in virtually every one of the evidentiary summaries, USADA uses the phrase “numerous riders will testify ….”
Early on in the letter, Tygart notes that “with the exception of Mr. Armstrong, every other rider contacted by USADA regarding doping in cycling agreed to meet with USADA and to truthfully and fully describe their involvement in doping and all doping by others of which they were aware.”
Tygart has declined to release the names of those riders who testified, but we can pretty much put together a preliminary list based solely on media reports. Obviously, Hamilton and Floyd Landis have offered testimony. It was, after all, Landis’ revelations that triggered the grand jury investigation in the first place. Others reported – although not confirmed – to have offered testimony include former Postal riders, Frankie Andreu, Jonathan Vaughters, Christian Vande Velde, Dave Zabriskie, Tom Danielson and George Hincapie.
USADA has implied that there are more. What USADA has built is a largely non-analytical case, meaning that most of the evidence is based on things other than lab results. Yeah, we’ve all heard that Armstrong was “the most tested athlete in the world,” (a title that, quite unfortunately, Marion Jones once proudly claimed for herself), but the absence of a positive isn’t proof that didn’t occur. I, for example, haven’t received a speeding ticket since 2005. That’s not necessarily proof that I haven’t driven faster than 75mph on I-80 in the intervening seven years.
There is, according to the charging document, some medical evidence that would have been presented had this case gone to a hearing. USADA seemed prepared to raise the specter of those six Armstrong urine samples from the 1999 Tour de France, which subsequently showed signs of being positive for EPO. These were among a number of samples retested in 2005. Because the urine tested was composed solely of “B samples” (because the A samples had been destroyed when they were tested for other substances in 1999), they couldn’t be used to support an allegation of doping on their own. The question that would have come up, had Armstrong chosen to fight the case, was whether those results could have been used to support a largely non-analytical case.
My bet is that the Armstrong legal team would have successfully kept the 1999 EPO results from being admitted into evidence. There were enough chain-of-custody issues raised about those samples in 2005 to make it quite tough to use their results now. However, would the successful suppression of that evidence have made a difference? Probably not with that much witness testimony and other evidence available for the arbitration panel to consider.
Lab results are not the only way to prove a case of doping. Certainly, they are among the most direct means available to anti-doping agencies, but they are not the only means by which one can prove a case. Indeed, to support the aggravating circumstances surrounding the Armstrong charges – namely, trafficking, assisting, encouraging, aiding, abetting and covering up – a charging party would have to produce much more than lab results to show it. That would almost invariably have to include the testimony of witnesses and USADA says it has many of those. Add to that USADA’s claim that it has Biological Passport evidence from 2009 and, if they have what they say they have, the agency has a pretty solid case.
Know when to fold ‘em
At this point, it’s moot. Armstrong, for whatever reason, has decided not to contest the charges. He may have been holding out hope that the UCI would challenge USADA’s authority to impose the sanctions it did, but from all indications the world governing body is not planning to do that … and the clock is ticking down on that option in a few days.
The UCI has asked USADA to provide it with all of its evidence and sources say that the entire case file has been presented to officials at the agency and, to quote, “it’s overwhelming.”
Amid allegations that Armstrong sought, and received, special treatment from the UCI on at least one occasion (the 1999 Tour de France positive for corticosteroids), the world governing body may just sit back and hope the whole thing goes away.
Overwhelming or not, if the evidence remains unchallenged it has the net effect of leading one to the inevitable conclusion that Lance Armstrong was a doper. Not challenging it, however, will not keep that evidence out of the public sphere.
If former Postal team manager Johan Bruyneel follows through with his plan to challenge the case, a lot of the evidence will come to light. Indeed, even if he doesn’t, USADA isn’t obligated to keep its evidence secret once the full adjudication process in the six cases is complete. They can – and quite likely will – release information, if for no other reason than to counter claims that the case was fundamentally flawed.
And, quite frankly, it should come out. Armstrong built his very public reputation on a compelling story line. If that story is based on an ongoing pattern of fraud and deception, the revelation of that fraud should be just as public.
I, for one, look forward to seeing the evidence in detail. Maybe at that point, we can all sit down, review the evidence to our own satisfaction, reach a conclusion and then finally move-the-@#$*-on.
Isn’t about time we put the whole sordid chapter behind us?
P.S. – Let’s get this column on track with topics other than doping, okay? Feel free to send your questions and comments to Charles@Pelkey.com. I’ll do my best to answer your question … or try to hunt down someone who can. – Charles
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.