By Holt Hackney and Jordan Kobritz, J.D.
The sports world is predicated on clear-cut answers, such as which team scored the most points or which runner recorded the fastest time.
That, in part, is why the legal battle between cycling legend Lance Armstrong and the United States Anti-Doping Agency (USADA), the organization charged with keeping amateur and Olympic sports free of performance-enhancing drugs, is so vexing.
USADA has charged Armstrong with doping violations dating back 14 years, a period that covers the cyclist’s seven Tour de France victories. USADA’s evidence is based on tests of Armstrong’s blood samples from 2009 and 2010 along with testimony from many of his teammates. While Armstrong vehemently disputes the charges, one of the most interesting aspects of the case is whether USADA even has jurisdiction to arbitrate the case.
Many observers in the sport of cycling – including two of cycling’s oversight organizations, the International Cycling Union (UCI) and USA Cycling – along with impartial legal observers see USADA’s actions as a witch-hunt, one that could set an alarming precedent. Armstrong’s camp agrees, which is why they challenged USADA’s jurisdictional authority in the federal courts.
Armstrong’s initial suit against USADA, filed in July, was thrown out by the U.S. District Court in Austin, Texas the same day it was filed for failure to comply with the Federal Rules of Civil Procedure. District Judge Sam Sparks suggested that Armstrong was more interested in currying favor with his adoring public than he (nee, his attorney) was in stating a claim upon which relief could be granted. Because the suit was dismissed without prejudice, Armstrong immediately re-filed his claim in the same court.
On August 20, Judge Sparks again dismissed Armstrong’s suit, a decision that unless it is appealed to the 5th Circuit Court of Appeals in New Orleans, will force Armstrong to defend himself in an arbitration proceeding before USADA. The odds are strongly tilted against Armstrong, as USADA has a 58-2 record against athletes. During a hearing before Sparks, Tim Herman, Armstrong’s attorney, made the comment that, “the Christians had a better record vs. the lions than the athletes have in arbitration.”
The Question of Jurisdiction
Mike Straubel, Associate Professor of Law and Director of the Sports Law Clinic at Valparaiso University, told Sports Litigation Alert that, “Who has jurisdiction over Lance and this case is a question that I have been wondering about for a while. In a typical positive test case, it would be pretty clear who would have jurisdiction: The testing organization would have jurisdiction for results management.
“But in a non-analytical, particularly one alleging violations over a 12 or so year span, the rules are a bit conflicting. There is the interpretation of the World Anti-Doping Code (WADC) and the International Cycling Union anti-doping rules approach, and then there is the contract-analysis approach. The WADC gives the international federation responsibility to promulgate rules for its members and supervise their enforcement generally. Many of the events during which (Armstrong’s) doping is alleged to have taken place were sanctioned by the UCI, and the UCI had results responsibility for them.
“On the other hand, WADC Article 15.3 gives results-management responsibility to the anti-doping organization that discovers the violation. Who discovered the violation here? Probably USADA, but others were involved as well.”
Contract analysis is another issue that impacts jurisdiction, suggests Straubel. “Who did Lance have a contract with? He certainly was a member of the UCI, but I don’t know if he was a member of USA Cycling. Arbitration can only take place when both sides have contracted to arbitration. USADA’s authority here is derivative in nature. Membership in a US NGB gives USADA authority. No one joins USADA. The USOC has jurisdiction over athletes in protected competitions and members of NGBs, probably no more. That’s what makes this a close question.”
Straubel favors the UCI’s proposal to send the dispute between USADA and the UCI to the Court of Arbitration in Sport in Switzerland. “It will delay things, but this is a really big case that needs to be done right,” said Straubel.
Maureen Weston, Associate Dean for Research/Professor of Law at Pepperdine University School of Law, told Sports Litigation Alert that the case is not yet “ripe” for a U.S. court and agreed that “the federation and CAS arbitration processes must be exhausted.”
“Even then, the U.S. courts may not have jurisdiction, assuming Lance is bound by an arbitration contract. I don’t know if USADA has moved to compel arbitration in the pending case so waiver may be an issue as well.”
Either way, added Weston, “it is unlikely that Armstrong will back down lightly.”
Meanwhile, USADA CEO Travis Tygart is hanging his hat on WADA’s belief that USADA has jurisdiction. He also assailed UCI and USA Cycling for their attempts to wrest jurisdiction from USADA.
“UCI’s attempt to control the outcome through pressuring USA Cycling is tellingly sad and is further evidence why USADA as an independent national anti-doping agency that exists solely to protect clean athletes and the integrity of sport is the proper body to handle the case,” he said in a statement.
In a letter supporting Armstrong’s court challenge to USADA’s jurisdiction, Stephan Hess, an attorney for USA Cycling, noted that, “there are substantial disagreements concerning whether USADA’s charges involve test results over which UCI has jurisdiction, or involve violations that were discovered by USADA.”
Judge Sparks acknowledged those disagreements in his decision. “Unfortunately, the appearance of conflict on the part of both organizations created doubt the charges against Armstrong would receive fair consideration in either forum,” wrote Sparks.
The jurisdictional question has been resolved, at least for now. What lies ahead for Armstrong is an uphill battle that may ultimately strip him of his athletic glory, literally and figuratively.
Hackney is the editor of Sports Litigation Alert. Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor and Chair of the Sport Management Department at SUNY Cortland.
