The Armstrong case
Published 20 October 2012 By: Andrew Nixon
The United States Anti-Doping Agency (USADA) this week published its Reasoned Decision in the USADA v Lance Armstrong investigation. The decision, together with the supporting material, paints a damning picture of a systematic and widespread doping procedure that Lance Armstrong and his team are alleged to have carried through. The release of the decision follows the USADA's ruling in August imposing a lifelong ban on Armstrong and stripping him of his seven Tour de France titles.
Background and the jurisdiction debate
On 24 August 2012 the USADA announced that Armstrong had elected not to contest the evidence the agency had gathered and, as a result, the USADA imposed a ban from recognised competitive cycling and disqualification of his competitive results from 1998 onwards. The August decision was not supported by the USADA's reasoning or detailed evidence.
The central issue in August was whether or not the USADA had jurisdiction to impose a ban and strip Armstrong of his titles. It was argued by Armstrong that professional cycling's world governing body, the Union Cycliste International (UCI), was the only body with competent authority to impose sanction after full consideration of evidence in an arbitral setting. This argument was strengthened by the fact that the evidence obtained against Armstrong was not comprised of analytical, lab based findings but witness testimony obtained, according to Armstrong, unfairly through a campaign of 'plea bargaining' on the part of the USADA.
The USADA's argued that it did have jurisdiction because it is authorised by WADA and the UCI is a signatory to the World Anti-Doping Code. Furthermore, the USADA's position was that Armstrong was offered the chance to contest the charge in an arbitral setting (which most likely would have been the Court of Arbitration for Sport). In refusing to contest, the USADA argued that Armstrong had accepted their jurisdiction and, ultimately, the sanction.
The release of the reasoned decision
The release of the USADA's reasoned decision is a step taken by the USADA to justify its determination and its jurisdiction to make that determination. The strength of the evidence is compelling and if taken at full value (which it must, given Armstrong's decision not to challenge it) justifies Armstrong's lifetime ban from competitive cycling and a nullification of his successes.
Indeed, the evidence suggests that doping at the US Postal Service Pro Cycling Team was endemic, with Armstrong enforcing doping on all members of the team in order to ensure his own success in what is, effectively, a sport where individual successes are in part down to team efforts. Of the USPS Team's doping program the USADA stated in a press release accompanying the decision:
"The USPS Team doping conspiracy was professionally designed to groom and pressure athletes to use dangerous drugs, to evade detection, to ensure its secrecy and ultimately gain an unfair advantage through superior doping practices."
The decision is lengthy (some 202 pages) with the appendices and supporting information running to more than 1,000 pages with sworn testimony from 26 individuals, lab results, scientific data and email correspondence. The full decision can be viewed here.
The jurisdictional issue raised in the context of the USADA's decision is certainly an important one in terms of sporting governance. Ultimately, the conflict between the UCI and the USADA is unresolved and may well surface as an issue in any appeal that the UCI may decide to launch.
The writers' view is that whilst the international governing body governs the sport from a regulatory perspective, it is difficult to argue that the USADA lacks competent authority. Article 15.3 of the World Anti-Doping Code states that results management and hearings will be conducted pursuant to the regulations of the Anti-Doping Organization "which discovered the violation". Furthermore, the USADA, as a signatory to the World Anti-Doping Code has adopted the anti-doping rules from the code and there is no provision in the code that permits the international governing body to interfere.
As far as sport is concerned generally, and in particular professional cycling, the decision to release the evidence against Armstrong is on balance, a sensible one. For many it will be seen as a watershed for the sport. It also demonstrates the importance of anti-doping agencies issues of widespread doping are concerned and where the integrity of sport is at stake.
Thomas Barnard and Andrew Nixon
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Andrew Nixon is a Partner in the Sport Group at Sheridans. Referred to in this year's Legal 500 as a “very bright and talented sports lawyer” Andrew's practice focuses principally on regulatory, governance, disciplinary, arbitration and dispute resolution within the sport sector. Andrew's clients include governing bodies, sports clubs, sports agencies and individual athletes.