In UCI v Alex Rasmussenvar linkvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .location = link.getAttribute(‘href’);} &ampvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} ; Denmark NOC &SF, the Court of Arbitration for Sport wasvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} reviewing the Demark NOC and Sports Federation’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, duringvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 3^rd quarter 2010, and (this was a disputed breach) on 28 April 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that

a departure from the IST can invalidate the finding of an anti-doping rule violation only invar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} the event that the particular anti-doping rule violation had been caused by the departure itself. Thevar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} Tribunal reduced thevar linkvar link = documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.

In UCI v Alex Rasmussenvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} & Denmark NOC &SF, the Court of Arbitration for Sport was reviewing the Demark NOC and Sports Federation’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, duringvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 3^rd quarter 2010, and (this was a disputed breach) on 28 April 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that

a departure from the IST can invalidate the finding of an anti-doping rule violation only invar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} the event that the particular anti-doping rule violation had been caused by the departure itself. Thevar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} Tribunal reduced thevar linkvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.

Middleton J Dismisses the Applications

Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority; James Albert Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019

On 19 September 2014, Federal Court Justice Middleton dismissed the EFC and Hird applications for  a declaration that “ the investigation conducted by ASADA … which was referred to as part of “Operation Cobia” … was ultra vires “,  and injunctions restraining ASADA from issuing any notice or relying on information obtained in the investigation, and a permanent injunction restraining ASADA from using any information from the investigation for any purpose under its Act. The joint investigation was, according to ASADA, was part of a wider investigation by ASADA under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (‘the Act’) and Sch 1 (‘the NAD Scheme’) of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) (‘the Regulations’). EFC and Hird said that ASADA had no power to conduct the investigation in the way it was conducted (involving the use by ASADA of AFL “compulsory powers” and unauthorised disclosure of information), that the investigation was undertaken for improper purposes, and that ASADA breached its confidentiality obligations during the course of the investigation and in the provision to the AFL of an interim report.

See attached file titled “Middleton J Dismisses the Applications” for full analysis.

In the US Federal Court , Texas Judge Sam Sparks has given Lance Armstrong’s lawyers 20 days to amend the Complaint  seeking a temporary restraining order against USADA, filed in Federal Court on 8 July 2012. The Judge, in accordance with the Federal Court Rules which require the Complaint to provide a “short and plain statement”, noted that the original Complaint was lengthy, 80 pages, and included “allegations” that were wholly irrelevant to Armstrong’s claims”.

(Original Complaint attached).

Lance Armstrong’s lawyers have re-filed an (amended) Complaint  seeking a temporary restraining order against USADA. The Judge had previously rejected the form of the Complaint (too long, 80 pages, containing “allegations” that were wholly irrelevant to Armstrong’s claims”), because it was not in accordance with the Federal Court Rules which require the Complaint to provide a “short and plain statement”. In substance Lance is trying to halt the process which requires him, next, to file an response to the USADA charges, leading to an initial hearing before a 3 member panel from the American Arbitration Association.

(The Amended Complaint will be attached when available.)

On 10 July 2012, Lance Armstrong’s lawyers re-filed the  (Amended) Complaint  seeking Orders as follows:

a.       An injunction staying the USADA requirement that by 14 July 2012 Lance elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow this Federal Court proceeding to be determined).

b.       A permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter.

c.        Declarations that USADA lacks jurisdiction to bring the charges asserted in the USADA charging letter.

d.       Damages against USADA.

e.        Costs.

The Amended Compliant is attached below.

Lance’s team makes multiple arguments in the Complaint, including:

1. USADA’s procedures, designed primarily for cases where there have been positive results, do not afford Armstrong due process.
2. Armstrong has not had a charging document that fairly tells him the claims that he must defend (not even when they occurred, which rules apply?).
3. Armstrong has no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
4. Armstrong has no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
5. Armstrong has no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
10. Under USADA’s procedures, Armstrong has no right of review by a USA court.
11. The charges are outside the 8 year limitation period.
12. USADA improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges are brought and a period of ineligibility has been determined). Further, the offering of inducements violates federal law in relation to offering inducements for sworn testimony.
13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
14. USADA is using information collected I the grand jury process.
15. Lance having retired, USADA does not have jurisdiction, UCI does.

The key argument, it seems to me, is that USADA’s processes would deny Lance his right to due process under the Fifth Amendment, particularly relevant given that Lance is substantially (massively) affected by the outcome, and is in the extra-prone to injustice category of the “non-analytical positives” (athletes charged albeit that they have not had a positive test result against them.

Noting that USADA has not yet been required to respond, the arguments look (to me) strong in favour of Lance’s request for interim court intervention. If this assessment is right, we can expect a temporary stay, and Orders giving USADA the chance to respond, sometime before 12 August 2012 (within the 30 days agreed extension between Lance and USADA).

Lance v USADA – The Legal Arguments

In June 2012, USADA sent charging to Lance Armstrong (and others). Those letters were the first formal step in the anti-doping prosecution by USADA. This process raises big legal issues, partly, due to the athlete involved, but equally, this will be the most important case yet of the “non-analytical positives” (prosecution of an anti-doping violation in the absence of a failed test).

Background to the “Non-Analytical Positive” Cases:

Since the BALCO cases commencing in September 2004, the WADA Code, and all sports codes, have provided for the prosecution of athletes in the absence of an analytical positive test result. Michelle Collins was suspended for 8 years (USADA had sought a life ban) based on email evidence and blood and urine test results that evidenced a pattern of doping. Michelle Collins had never failed a drug test, and denied doping.

Interestingly, Michelle Collins had relied on her Fifth Amendment (due process) right against self-incrimination. The CAS Tribunal, however, agreed with USADA that this right did not apply outside criminal cases, and that it was open to CAS to draw an adverse inference against her. CAS repeated this approach for Chryste Gaines and Tim Montgomery.

CAS suspended Michelle Collins for 8 years, on the rationale that that BALCO athletes who admitted guilt, and cooperated by giving evidence against others, such as Kelli White, had been suspended for 2 years, BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others, such as Alvin Harrison and Regina Jacobs, had been suspended for 4 years, Michelle Collins had not been shown by USADA to have “trafficked” or encouraged others, so a lifetime ban was not warranted, Michelle Collins’ failure to plead guilty warranted double the suspension of BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others.

There have followed, in the USA, Chryste Gaines (2 years), Tim Montgomery (2 years), in Australia, Mark French (cyclist) and Sevi Marinov (weightlifting national coach) (drugs found in their rooms, both suspended at the initial 1 member CAS hearing, both then successful on appeal to the 3 member CAS), Olga Yegoreva and others (7 Russian athletes with manipulated samples) and Boevski  and others (3 Bulgarian weightlifter with manipulated samples) (all suspended where samples were manipulated, albeit no evidence that they had done the manipulating themselves), and others.

The key legal question has always been whether these non-analytical positive athletes should be entitled or not to the same Fifth Amendment due process protections afforded to any criminal defendant? or something less on the basis that they are contractually bound to the processes decided by the sports federations to which they belong?

Lance Armstrong is the latest in this line. He is looking like a defendant who may take the argument further than ever before.

Lance’s Federal Court Action

Lance, like always, was invited by USADA to put material before the USADA Review Board (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing), contesting whether there was sufficient in the USADA charging letter to charge Lance. Lance’s response was that USADA had failed to disclose the proposed witnesses or their evidence, he was unable to know/answer the charges made against him, that USADA was treating the review board as a rubber stamp, effectively seeking to deny him the protection of that review board process, that USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process, that the only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director had since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which showed no abnormality and had been published on Armstrong’s own website at the time as proof of the opposite) had no merit. In addition, Lance said, most of the material was outside the 8 year limitation period. USADA, conversely, said, in response, that it had ten-plus witnesses (without naming them, or setting out what they would say), who would say that Armstrong doped, trafficked, and participated in a conspiracy. The USADA Review Board decided in favour of USADA.

On 10 July 2012, Lance Armstrong’s lawyers filed an (Amended) Complaint before Judge Sam Sparks in the Federal Court, Texas Division, seeking an injunction staying the USADA requirement that Lance, within 3 days, elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow the Federal Court proceeding to be determined), a permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter, declarations that USADA lacked jurisdiction to bring the charges asserted in the USADA charging letter, plus damages against USADA and costs.

Lance’s team makes multiple arguments in the action:

1. USADA’s procedures, designed primarily for cases where there have been positive results, do not afford Armstrong due process.
2. Armstrong has not had a charging document that fairly tells him the claims that he must defend (not even when they occurred, which rules apply?).
3. Armstrong has no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
4. Armstrong has no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
5. Armstrong has no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
10. Under USADA’s procedures, Armstrong has no right of review by a USA court.
11. The charges are outside the 8 year limitation period.
12. USADA improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges are brought and a period of ineligibility has been determined). Further, the offering of inducements violates federal law in relation to offering inducements for sworn testimony.
13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
14. USADA is using information collected from the grand jury process.
15. Lance having retired, USADA does not have jurisdiction, UCI does.

The substantive complaint by Lance Armstrong is that USADA’s processes deny him his Fifth Amendment right to due process. This argument has usually failed. But the circumstances here militate towards that due process right, maybe more so than in previous instances.

On 19 July 2012, USADA filed a Notice of Motion to Dismiss Lance Armstrong’s Action seeking an injunction to restrain the USADA anti-doping violation process. USADA’s key grounds:

1. The Ted Stevens Olympic and Amateur Sports Act (“Sports  Act”) (a federal Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empts Armstrong’s claims.
2. Armstrong has failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
3. Armstrong’s claims must be arbitrated (Lance, like all athletes, has regularly contracted to be bound by the arbitration process).
4. Armstrong’s claims fail on the merits.

The USADA argument, on its face, is the traditional view, adopted by the courts in previous cases, (eg Mary Decker Slaney’s case), ie that Congress has determined, in clear terms, that USOC and USA Cycling are the bodies best able to deal with such disputes. Further, the courts have, consistently, required a person to exhaust their administrative remedies before seeking court intervention in relation to those processes. On this basis, USADA says, the Federal Court must dismiss, or at least stay, the court action pending the arbitration process.

The Federal Court action will be hard fought. Both sides raise valid arguments. Judge Sparks may or may not prefer the long-held view argued by USADA. Either way, we can expect to see the Judge’s ruling on this important legal argument, before 12 August 2012 (when the 30 day agreed USADA extension runs out), referred, by whoever loses, in the Appeals Circuit.

On balance, the due process argument seems to be at least worthy of better court examination, not to be dismissed simply because, right or wrong, that is what courts have always done previously. The difference, here, might be the enormous stature of Lance (not merely as an athlete, but as a cancer messiah), and the overdue court examination of the unusual position of the athletes charged on circumstantial evidence rather than a failed test.

John McMullan

26 July 2012

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:

1. 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.
2. Armstrong has failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
3. Armstrong’s claims must be arbitrated (Lance, like all athletes, has regularly contracted to be bound by the arbitration process).
4. 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:

1. 3 respondents banned for life, because they did not respond to USADA charging letter;
2. USADA refused to provide UCI with evidence that the 3 respondents had received the USADA charging letter;
3. no neutral review of the evidence relied upon by USADA;
4. the 3 respondents banned for life were not given the evidence relied upon by USADA;
5. the 2 respondents due to file a defence by 15 August 2012 have not been given the evidence relied upon by USADA;
6. 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.

John McMullan

6 August 2012

Essendon FC v ASADA : James Hird v ASADA

 Australian Federal Court Challenge mirrors Lance Armstrong’s Challenge in the USA Courts:

On 27 June 2014, Justice John Middleton in the Australian Federal Court will set out a timetable to a hearing in the legal challenges by Essendon FC and James Hird against ASADA’s legal process. Essendon FC and James Hird ask for a declaration that “ the investigation conducted by ASADA … which was referred to as part of “Operation Cobia” … was ultra vires “,  and injunctions restraining ASADA from issuing any notice or relying on information obtained in the investigation, and a permanent injunction restraining ASADA from using any information from the investigation for any purpose under its Act.

The show cause letters sent by ASADA last week to Essendon FC players are the first formal step in the anti-doping prosecution by ASADA. The process will be, potentially, the most important Australian sports drug case to date due to  the athletes involved, but equally, the most important case to date in Australia of a “non-analytical positive” (prosecution of an anti-doping violation in the absence of a failed test).

We recently saw a very similar legal challenge ahead of the review board process reference by Lance Armstrong. Lance’s response to USADA’s charging letter to him, (the initial USA step prior to the review board process, as in Australia, an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing) had been generally as follows:
1. USADA had failed to disclose the proposed witnesses or their evidence, Armstrong was unable to know/answer the charges made against him. USADA is treating the review board as a rubber stamp, effectively seeking to deny Armstrong the protection of that review board process.
2. USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process.
3. The only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director has since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which show no abnormality and which were published on Armstrong’s own website at the time as proof of the opposite) have no merit.
4. Most of the material was outside the 8 year limitation period.

USADA, conversely, had said that it had ten-plus witnesses, all who would say that Armstrong doped, trafficked, and participated in a conspiracy.

Lance’s legal challenge ultimately failed, not because, as USADA had argued, such cases are never to be reviewed by the courts, but rather because, in Lance’s case, his claims of unfairness were premature.

The Essendon/Hird challenges, equally, ask the Australian Federal Court to stop the process, saying that the investigation is not in accordance with the ASADA legislation. Unlike Lance, however, their challenge is attacking an existing process, not a future one.

This is getting interesting.

Background to the “Non-Analytical Positive” Cases:

Since the BALCO cases commencing in September 2004, the WADA Code, and all sports codes, have provided for the prosecution of athletes in the absence of an analytical positive test result. Michelle Collins was suspended for 8 years (USADA had sought a life ban) based on email evidence and blood and urine test results that evidenced a pattern of doping. Michelle Collins had never failed a drug test, and denied doping.

Interestingly, Michelle Collins had relied on her Fifth Amendment (due process) right against self-incrimination. The CAS Tribunal, however, agreed with USADA that this right did not apply outside criminal cases, and that it was open to CAS to draw an adverse inference against her. CAS repeated this approach for Chryste Gaines and Tim Montgomery.

CAS suspended Michelle Collins for 8 years, on the rationale that that BALCO athletes who admitted guilt, and cooperated by giving evidence against others, such as Kelli White, had been suspended for 2 years, BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others, such as Alvin Harrison and Regina Jacobs, had been suspended for 4 years, Michelle Collins had not been shown by USADA to have “trafficked” or encouraged others, so a lifetime ban was not warranted, Michelle Collins’ failure to plead guilty warranted double the suspension of BALCO athletes who admitted guilt, but would not cooperate by giving evidence against others.

There have followed, in the USA, Chryste Gaines (2 years), Tim Montgomery (2 years), in Australia, Mark French (cyclist) and Sevi Marinov (weightlifting national coach) (drugs found in their rooms, both suspended at the initial 1 member CAS hearing, both then successful on appeal to the 3 member CAS), Olga Yegoreva and others (7 Russian athletes with manipulated samples) and Boevski  and others (3 Bulgarian weightlifter with manipulated samples) (all suspended where samples were manipulated, albeit no evidence that they had done the manipulating themselves), and others.

The key legal question has always been whether these non-analytical positive athletes should be entitled or not to the same Fifth Amendment due process protections afforded to any criminal defendant? or something less on the basis that they are contractually bound to the processes decided by the sports federations to which they belong?

Lance Armstrong was the latest in that line. He was looking like a defendant who might have taken the argument further than ever before. As it turned out, Lance decided against continuing. But the USA Federal Court did not rule out intervening if the right circumstances ever came along.

Lance’s USA Federal Court Action

Lance, like always, was invited by USADA to put material before the USADA Review Board (an athlete protection mechanism designed to require USADA to establish a sufficient basis for the process to proceed to a hearing), contesting whether there was sufficient in the USADA charging letter to charge Lance. Lance’s response was that USADA had failed to disclose the proposed witnesses or their evidence, he was unable to know/answer the charges made against him, that USADA was treating the review board as a rubber stamp, effectively seeking to deny him the protection of that review board process, that USADA had obtained evidence wrongly, in trading concessions/reduced penalties, etc, (the “jailhouse snitch” argument), for evidence, and in obtaining evidence leaked from the now-discontinued grand jury process, that the only 2 identifiable claims against Armstrong (the Swiss lab tests from 2001 where the lab director had since denied the tests were sufficient to found a violation, and USADA providing, raw data only, no expert analysis, 2009/2010 blood test results, which showed no abnormality and had been published on Armstrong’s own website at the time as proof of the opposite) had no merit. In addition, Lance said, most of the material was outside the 8 year limitation period. USADA, conversely, said, in response, that it had ten-plus witnesses (without naming them, or setting out what they would say), who would say that Armstrong doped, trafficked, and participated in a conspiracy. The USADA Review Board decided in favour of USADA.

On 10 July 2012, Lance Armstrong’s lawyers filed an (Amended) Complaint before Judge Sam Sparks in the Federal Court, Texas Division, seeking an injunction staying the USADA requirement that Lance, within 3 days, elect to go to AAA arbitration or accept sanctions (this date was later extended, by agreement with USADA, for 30 days, to allow the Federal Court proceeding to be determined), a permanent injunction staying USADA from imposing sanctions (including disqualification of previous results) on the basis of the facts in the USADA charging letter, declarations that USADA lacked jurisdiction to bring the charges asserted in the USADA charging letter, plus damages against USADA and costs.

Lance’s team made multiple arguments in the action:

1. USADA’s procedures, designed primarily for cases where there have been positive results, did not afford Armstrong due process.
2. Armstrong had not had a charging document that fairly told him the claims that he must defend (not even when they occurred, which rules apply?).
3. Armstrong had no guarantee of a hearing by the Tribunal with final say (the AAA panel is appealable to CAS, which need not decide to hold a hearing).
4. Armstrong had no right to cross-examine his accusers (citing the Greg Lemond example, where Floyd Landis was refused the right to cross-examine, yet the Lemond statement was accepted).
5. Armstrong had no right to an impartial arbitration panel (CAS members all appointed, limited term, paid, by USOC, incentivised therefore to side with USADA, very limited examples of athletes succeeding).
6. Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
7. Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
8. Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
9. Armstrong would have no right to obtain full disclosure by USADA of laboratory analyses, nor impartial assessment whether the laboratory procedures are accurate (and the panel can be comfortably satisfied that any improper procedure did not cause an adverse finding).
10. Under USADA’s procedures, Armstrong had no right of review by a USA court.
11. The charges were outside the 8 year limitation period.
12. USADA had improperly induced witnesses, in violation of the WADA Code provisions (requiring reduction in ineligibility periods on this ground only after charges were brought and a period of ineligibility had been determined). Further, the offering of inducements violated federal law in relation to offering inducements for sworn testimony.
13. The Review Board process, meant to be a check on abusive charging decisions, was circumvented, in USADA hand-picking the neutral experts, not providing the evidence supporting the charges to the Review Board, and having ex parte communications with the Review Board. The Review Board did not issue a considered evaluation. Armstrong was not given adequate notice of the charges or opportunity to respond.
14. USADA was using information collected from the grand jury process.
15. Lance having retired, USADA did not have jurisdiction, UCI did. 

The substantive complaint by Lance Armstrong was that USADA’s processes denied him his Fifth Amendment right to due process. This argument had usually failed. But the circumstances here militated towards that due process right, maybe more so than in previous instances.

On 19 July 2012, USADA filed a Notice of Motion to Dismiss Lance Armstrong’s Action seeking an injunction to restrain the USADA anti-doping violation process. USADA’s key grounds:

1. The Ted Stevens Olympic and Amateur Sports Act (“Sports  Act”) (a federal Act establishing arbitration as the exclusive forum for eligibility disputes in sports) pre-empted Armstrong’s claims.
2. Armstrong had failed to exhaust his administrative remedies (a strong historical, factor relevant to the court’s discretion, against granting an injunction).
3. Armstrong’s claims must be arbitrated (Lance, like all athletes, had regularly contracted to be bound by the arbitration process).
4. Armstrong’s claims failed on the merits. 

The USADA argument, on its face, was the traditional view, adopted by the USA courts in previous cases, (eg Mary Decker Slaney’s case), ie that Congress had determined, in clear terms, that USOC and USA Cycling were the bodies best able to deal with such disputes. Further, the courts had, consistently, required a person to exhaust their administrative remedies before seeking court intervention in relation to those processes. On this basis, USADA said, the Federal Court must dismiss, or at least stay, the court action pending the arbitration process.

It seemed, then, that the Federal Court action would be hard fought. Both sides raised valid arguments. On balance, the due process argument seemed to be at least worthy of better court examination, not to be dismissed simply because, right or wrong, that is what USA courts had always done previously. The difference, here, seemed, possibly, the enormous stature of Lance (not merely as an athlete, but as a cancer messiah), and the overdue court examination of the unusual position of the athletes charged on circumstantial evidence rather than a failed test.

 The USA Federal Court – Judge Sam Sparks

 On 23 August 2012, Judge Sam Sparks dismissed Lance Armstrong’s suit in the US District Court Western District of Texas (Austin) of the Federal Court, asking for an injunction to restrain USADA from proceeding against him . (The judgment is on this website.)

  The Judge found:

1. Armstrong’s due process claims lacked merit.
2. The court lacked jurisdiction over Armstrong’s remaining claims, or alternatively declined to grant equitable relief.

 The key issue for the Judge in finding the due process complaints lacked merit was that Lance’s challenges are anticipating unfairness rather than being subject to them now. Lance’s challenges were all based on speculation of bias (rather than actual bias).

  Judge Sparks said: “Like the Supreme Court, this Court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render conscientious decision based on the evidence before it. ….  Further, Armstrong has ample appellate avenues open to him, first to the Court of Arbitration for Sport … where he is entitled to de novo review, and then to the  courts of Switzerland, if he so elects.”

 The Judge, however, dismissed the suit without prejudice, ie Lance could come back if things develop. Further, Judge Sparks expressed some judicial (and welcome) views on the USADA processes. His Honour was critical of USADA’s process:

 “As the Court stated at the hearing, ….. the deficiency of USADA’s charging document is of serious constitutional concern. 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. First, it would likely 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 same 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, in accordance with routine procedure. The Court takes counsel at his word. With the understanding that Armstrong has received all the process he is due at this time, and will receive adequate notification of the charges against him in time to prepare a defense, the Court rejects Armstrong’s …. challenge. …… ”

 Judge Sparks then concluded that the Federal Court had no jurisdiction. The Sports Act had (“whether or not this was a good choice is, of course, debatable”) determined that sports eligibility questions would be decided through arbitration rather than federal lawsuits.

 His Honour referred to the Mary Decker Slaney case, noting that the court had said: “… when it comes to challenging the eligibility determination of the USOC, only a very specific claim will avoid the impediment to subject matter jurisdiction that (the Sports Act) poses”.

 The Slaney court had quoted the Tonia Harding case, in the Oregon District Court as follows:

 “There the court cautioned 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 remedies.’ Yet, while carving out this limited exception to the pre-emption created by the Amateur Sports Act, the opinion forewarned that while examining whether internal rules had been complied with, the courts ‘should not intervene in the merits of the underlying dispute.’ ”

 Judge Sparks held, ultimately, that:

1. Armstrong was not in danger of irreparable harm. The USADA jurisdiction issue, itself, was to be determined by the arbitrators. Further, any finding by the arbitration panel might, itself, be overturned by CAS. “In short,  any harm Armstrong might suffer is, at this point, entirely speculative.”
2. Armstrong had not exhausted his internal remedies, namely the arbitration procedures in the USADA Protocol. Judge Sparks: “If the panel’s resolution is manifestly unjust and devoid of any reasonable legal basis, Armstrong may have a judicial remedy; but this court cannot act on the basis of a hypothetical injury.”
3. Armstrong’s agreement with USOC bound him contractually to submit his due process concerns, themselves, to the arbitration process. Finally, His Honour determined that, even apart from his decision on jurisdiction, if he did have such jurisdiction he would decline an equitable remedy, firstly because, for the above reasons, Armstrong was not in danger of irreparable harm, and secondly because , as a matter of international comity, the court declined to: “circumvent the longstanding system of international arbitration in Olympic sports by unilaterally enjoining that system’s operation”.

     Judge Sparks finished with a comment for USADA:

    “…. there are troubling aspects of this case, not least of which is USADA’s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI’s equally evident desire not to proceed against him….

    The events in USADA’s charging letter date back fourteen years, span a multitude of international competitions, and involve not only five non-citizens of the United States who were never licensed in this country, but also one of the most well-known figures in the history of cycling. As mystifying as USADA’s election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies are apparently unable to work together …..  

The Australian Federal Court – Justice John Middleton

So now we wait for Essendon FC and James Hird, to take on ASADA, before Justice John Middleton in the Australian Federal Court.

The process is likely, in my view, to showcase the critical justice issues that are thrown up in this key area of “non-analytical positives”. The likelihood is that Essendon FC and James Hird will challenge, in the Australian courts, the level of acceptable proof against an athlete charged on the basis of evidence, not including a failed test, and the ASADA/Court of Arbitration for Sport regime generally.

About time.

 John McMullan

Is there an Out for Sharapova? TBC….

She said she had been taking meldonium on medical grounds since 2006 and that she was unaware that it was placed on WADA’s Prohibited List in January 2016. The media recently speculated that Maria Sharapova may plead a range of mitigating circumstances, including a retrospective application of the Therapeutic Use Exemption (TUE). A TUE allows an athlete to use, for therapeutic purposes only, an otherwise prohibited substance.

– A Belleville, LL.B., LL.M

The Court of Arbitration for Sport has decided that Alberto Contador Velasco, 3 time winner of the Tour de France, is guilty of an anti-doping violation, stripped him of a number of results, including the 2010 Tour de France victory, and given him a 2 year ban, back dated to August 2010.

On 21 July 2010, at the 2010 Tour de France, Mr Contador tested positive for a tiny amount of clenbuterol (a prohibited substance under the 2010 WADA Prohibited Substances List, listed as “Other Anabolic Agent”) from a urine test following a rest day after stage 16. Mr Contador believed that he may have eaten contaminated meat, leading to the result.

The process was submitted to the Comite Nacional de Competicion y Disciplina Deportive (CNCDD) of Real Federacion Espanola de Ciclismo (RFEC). In January 2011, the Spanish examining judge of the RFEC considering the anti-doping violation proposed, rejected by Mr Contador, a 1 year ban, (reducing the 2 year ban to 1 year on the basis of no significant fault or negligence). Subsequently, on 14 February 2011, the CNCDD acquitted Mr Contador, concluding:

1. It was most probable that the result was due to eating contaminated meat. The low controls on meat production in Spain, plus the very low concentration of clenbuterol in Mr Contador’s body, suggested no voluntary doping. Mr Contador, in eating meat, even exercising maximum prudence, did not know/suspect that he was eating meat contaminated with a prohibited substance. This was not negligent behaviour.
2. The extremely small amount of clenbuterol had not enhanced the athlete’s performance.

The UCI and WADA each appealed the RFEC decision to the Court of Arbitration for Sport (CAS). The appeals were consolidated and heard on 21-24 November 2011.

The UCI and WADA, separately, argued as follows:

1. UCI met its burden of proof by establishing to “more than comfortable satisfaction” that Mr Contador had committed an anti-doping violation as the A and B samples presented a prohibited substance.
2. Mr Contador is responsible for ensuring no prohibited substance enters his body. Mr Contador has the burden of proof to establish how a prohibited substance was in his body, and that he bears no fault or negligence (to avoid any sanction), or that he bears no significant fault or negligence (to reduce the sanction).
3. Mr Contador must establish, on the balance of probabilities, that the contaminated meat was the source of the clenbuterol. UCI says he has not met this burden in this instance.
4. The evidence, here, was more consistent with the clenbuterol being a result of a blood (doping) transfusion, and/or food supplements. The evidence suggests that the contaminated meat was not the source of the clenbuterol, rather it was more to be a result of doping practices.

Mr Contador argued as follows:

1. On the balance of probabilities, the prohibited substance came from contaminated meat. Accordingly, Mr Contador bore no fault or negligence.
2. The UCI and WADA theories re blood transfusion, and/or food supplements, should be rejected.
3. If CAS disagrees with this view, then Mr Contador’s results following the 14 February 2011 RFED decision should not be set aside.

The CAS Panel advised the parties that it would hear from the many experts in expert’s’ conferences, where all experts dealing with the same issue were present.

The issues to be decided by the CAS Panel were:

1. Did Mr Contador establish, to the required standard of proof, how the prohibited substance entered his system?
2. If Mr Contador could establish, to the required standard of proof, how the prohibited substance entered his system, does he, in those circumstances, bear no fault or negligence or no significant fault or negligence?
3. If required, what sanction should be imposed (how long a suspension? when should that start? which results would be disqualified? …. ).

The Panel concluded that the athlete bears the burden of proof to establish how the prohibited substance entered his system, and that he bears no fault or negligence or no significant fault or negligence, on the balance of probabilities.

In relation to the meat contamination theory, though satisfied that Mr Contador ate meat at the relevant time, and that it was a possibility that the meat was contaminated, the Panel was not prepared to conclude from a mere possibility that the meat was contaminated that an actual contamination had occurred.

In relation to the blood transfusion theory, the panel gave no weight to the “tainted environment”, or “in bad company” argument (ie that athletes in his team had, in the past, been involved in doping). On the basis of the evidence, the Panel concluded that the athlete’s blood parameters could not establish a blood transfusion. The Panel looked at a number of technical parameters, and ultimately concluded that although the blood transfusion theory is a possible explanation for the clenbuterol test result, in light of all the evidence, it was unlikely to have occurred.

The panel concluded, from the material before them, including that Mr Contador took supplements in considerable amounts, that athletes had frequently tested positive because of contaminated supplements, then the food supplement theory was a more likely possibility. Ultimately, however, the Panel did not conclude that this had occurred on the balance of probabilities.

The panel confirmed that, albeit that there were theories before it as to the cause of the clenbuterol test result, the burden of proof to establish how the prohibited substance entered his system, and that he bears no fault or negligence or no significant fault or negligence did not shift from the athlete. Accordingly, it found that Mr Contador has committed an anti-doping violation.

As there was no basis to reduce the usual penalty, Mr Contador was suspended for a period of 2 years.

As to the start date for the suspension, the Panel applied the discretion available where there had been substantial delays in the hearing process not attributable to the athlete, and concluded that Mr Contador’s suspension should be back dated to August 2010 on the following factors in particular:

1. the failure by UCI and WADA to put material before RFEC;
2. the CAS proceedings lasting over 9 months;
3. the CAS proceedings being extended due to the athlete having to answer complex submissions in relation to the blood doping theory;
4. the provisional suspension between August 2010 and Mr Contador’s acquittal on 14 February 2011.

The Panel, however, against Mr Contador’s submissions, concluded that Mr Contador’s results from the 2010 Tour de France and after were thereby disqualified

In Cielo & ors v CBDA (the Brazilian National Swimming Federation), the Court of Arbitration for Sport was again considering the penalty to be applied in relation to athletes who registered positive anti-doping test results, where the cause was found to be an inadvertent ingesting of prohibited substances, from taking of contaminated supplements.

4 Brazilian swimmers had positive test results for Furosemide (a diuretic, on the prohibited list as a masking agent) at a Brazilian national swimming event (Maria Lenk) in May 2011. Each athlete accepted the A Test and waived the B sample analysis. The athletes had taken caffeine tablets, with the benefit of medical advice (caffeine is not a prohibited substance under the FINA Rules.) There was evidence from Mr Cielo (undisputed) that about 90% of elite male freestyle swimmers take caffeine at swimming events. The athletes, and team doctor, had taken extreme care in relation to the pharmacy, and taking of the caffeine tablets, without problem, for some months. At the Maria Lenk, in May 2011, however, all 4 had positive results. Ultimately, it was determined that the cause of the adverse test results was the contamination of the caffeine capsules by Furosemide. (There was evidence of an unusual, one-off, error, at the pharmacy.)

FINA agreed that the 2 pre-conditions for reduced penalty had been met:

1. that the athletes had established how the Specified Substance entered their bodies;
2. that the athletes had shown that the Specified Substance was not intended to enhance performance or mask the use of a performance enhancing substance.

The Tribunal concluded:

1. The taking of caffeine was to be treated as a “supplement” rather than a “medication”.
2. The degree of “fault” in this case was at the very lowest end of the spectrum contemplated by the FINA Rules/WADC. (It was difficult, the Tribunal concluded: “to see what, if anything,  else the athletes could have done reasonably or practically to avoid the positive test results”.)
3. Under the FINA Rules/WADC, however, the defence of No Fault or Negligence was not available (see the detailed discussion of the relevant rules applying to this case).
4. Accordingly, the Tribunal concluded the appropriate sanction to be a Warning.
5. (In relation to 1 athlete, a previous sanction had been imposed. Rejecting an argument that a principle of proportionality ought to apply, the Tribunal imposed the minimum sanction of 1 year, and then, having regard to his waiving the B sample, exercised its discretion to start the 1 year from the date of his sample collection.)

In Cielo & ors v CBDA (the Brazilian National Swimming Federation), the Court of Arbitration for Sport was again considering the penalty to be applied in relation to athletes who registered positive anti-doping test results, where the cause was found to be an inadvertent ingesting of prohibited substances, from taking of contaminated supplements.

4 Brazilian swimmers had positive test results for Furosemide (a diuretic, on the prohibited list as a masking agent) at a Brazilian national swimming event (Maria Lenk) in May 2011. Each athlete accepted the A Test and waived the B sample analysis. The athletes had taken caffeine tablets, with the benefit of medical advice (caffeine is not a prohibited substance under the FINA Rules.) There was evidence from Mr Cielo (undisputed) that about 90% of elite male freestyle swimmers take caffeine at swimming events. The athletes, and team doctor, had taken extreme care in relation to the pharmacy, and taking of the caffeine tablets, without problem, for some months. At the Maria Lenk, in May 2011, however, all 4 had positive results. Ultimately, it was determined that the cause of the adverse test results was the contamination of the caffeine capsules by Furosemide. (There was evidence of an unusual, one-off, error, at the pharmacy.)

FINA agreed that the 2 pre-conditions for reduced penalty had been met:

1. that the athletes had established how the Specified Substance entered their bodies;
2. that the athletes had shown that the Specified Substance was not intended to enhance performance or mask the use of a performance enhancing substance.

The Tribunal concluded:

1. The taking of caffeine was to be treated as a “supplement” rather than a “medication”.
2. The degree of “fault” in this case was at the very lowest end of the spectrum contemplated by the FINA Rules/WADC. (It was difficult, the Tribunal concluded: “to see what, if anything,  else the athletes could have done reasonably or practically to avoid the positive test results”.)
3. Under the FINA Rules/WADC, however, the defence of No Fault or Negligence was not available (see the detailed discussion of the relevant rules applying to this case).
4. Accordingly, the Tribunal concluded the appropriate sanction to be a Warning.
5. (In relation to 1 athlete, a previous sanction had been imposed. Rejecting an argument that a principle of proportionality ought to apply, the Tribunal imposed the minimum sanction of 1 year, and then, having regard to his waiving the B sample, exercised its discretion to start the 1 year from the date of his sample collection.)