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:
- USADA’s procedures, designed primarily for cases where there have been positive results, do not afford Armstrong due process.
- 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?).
- 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).
- 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).
- 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).
- Armstrong would have no right to exculpatory evidence, contrary to the legal position in a criminal trial.
- Armstrong would have no right to disclosure by USADA of witness agreements, contrary to the legal position in a criminal trial.
- Armstrong would have no right to disclosure by USADA of investigative witness statements, contrary to the legal position in a criminal trial.
- 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).
- Under USADA’s procedures, Armstrong has no right of review by a USA court.
- The charges are outside the 8 year limitation period.
- 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.
- 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.
- USADA is using information collected I the grand jury process.
- 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).