Lance Armstrong: Victim?

The embattled cyclist says USADA is out to get him—using powers that it really shouldn’t have. Brian Alexander says he’s right.

Lance Armstrong racing in the 2010 Cancer Council Hotline Classic in Adelaide.     Photo: PoweriPics

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As you may have noticed, Lance Armstrong and the United States Anti-Doping Agency (USADA) are in the early stages of a King Kong versus Godzilla death match. It started on June 12, when USADA announced that it intends to strip Armstrong of the seven Tour de France titles he won between 1999 and 2005, on the grounds that he and several others—including the notorious Italian physician Dr. Michele Ferrari—engaged in a massive doping conspiracy during Armstrong’s years as lead rider for the U.S. Postal Service team.

Yesterday, Armstrong’s legal team fired back with a lengthy complaint to the federal district court in Austin, Texas, asking a judge to prevent USADA from pursuing its case or punishing Armstrong in any way. Hours later, Judge Sam Sparks dismissed the suit, citing its length and argumentative style, but said Armstrong could refile within 20 days and try again. However this battle plays out, the stakes are immense because Armstrong is challenging foundational principles that USADA relies on as it tries to punish athletes who it believes have broken the rules.

USADA’s recent actions are an attempt to pick up the pieces left behind last winter, after a long-running investigation conducted by the FDA, the FBI, and the Justice Department ended with a fizzle. The U.S. Attorney in Los Angeles dropped the case without bringing any charges against Armstrong, and many of his detractors were enraged: Once again, it seemed, Teflon Lance was going to escape sporting justice. For 15 years, suspicion had swirled around him, but he’d never been held to account.

Many of these same people have been cheering USADA as it waves its sword, but I’ve been appalled by the recent outpouring of glee. This doesn’t mean I’m an Armstrong fan or that I think he’s innocent. I’ve covered sports doping for years, and I was convinced long ago that he cheated, even before former Postal riders Floyd Landis and Tyler Hamilton gave extensive and credible statements about how the team’s doping program worked.

But it’s not the what of this case that bothers me, it’s the how. Ends do not always justify means, and sometimes, in order to preserve higher values, you have to let guilty parties walk. In this instance, I’m less concerned about proving that Lance’s yellow jerseys are smudged than with the fact that USADA keeps mutating into what looks like a law-enforcement body, which it isn’t.

USADA, which participated in the federal investigation, isn’t part of the U.S. government and isn’t a judicial body. Newspaper stories tend to shorthand it as a “quasi-governmental” entity, but that’s not accurate. USADA is a private non-profit corporation hired to manage the anti-doping program for American athletes who hope to participate in the Olympics as well as various local, regional, national, and international competitions. And it’s gotten out of control.

Among other things, USADA runs the adjudication process when athletes fail a drug test, and it’s here where things become murky. Armstrong never failed a test that we know of, but relying on language written into the World Anti-Doping Code, the governing rules used by the World Anti-Doping Agency (WADA) and all national affiliates like USADA, the corporation is pursuing Armstrong on the basis of a so-called “non-analytical positive”—which means evidence, such as testimony and documents, that he doped. Using this material, USADA convinced a review board to formally charge Armstrong on June 30.

It’s this cluster of murkily defined powers that should trouble not just sports fans, but any citizen. It’s also what angers Armstrong’s lawyers, and their complaints can’t be laughed off. In a letter sent on June 22 by Armstrong’s legal team to the USADA Review Board, his lawyers accused USADA of criminal conduct, abuse of power, “arrogant disregard of federal law,” “acting outside the scope of its jurisdiction,” and “concealing information.” In the federal court filing, Armstrong accused USADA of believing itself “above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules.”

Many see that as a typical blast of Armstrong hot air, but as some independent legal experts will tell you, he and his lawyers have a point. Mike Straubel, the director of the Valparaiso University School of Law sports law clinic, believes that what we saw yesterday may be the opening skirmish in a valid long-term strategy: challenging USADA’s legitimacy in federal court while trying to establish that, if it’s going to behave like a law-enforcement agency, it should be held to the same standards as one. In legal parlance that turned up in yesterday’s drop-kicked complaint, Armstrong’s lawyers are trying to show that USADA is a “state actor”—the same as a court, federal investigative agency, or Congressional committee. Establishing this would give Armstrong’s side much more leverage in determining what USADA knows, how it found out, who its witnesses are, and what it can do to punish Armstrong.

Lawyers like Straubel see a bigger picture in this dispute. They worry that, in our current national zeal to quash doping in sports, legitimate concerns about how the campaign is being carried out are getting shoved aside.

“This doesn’t seem to be the purpose of USADA, to get involved in criminal investigations,” says Maureen Weston, a Pepperdine University law professor and an expert on arbitration and sports law. “The feds went through an extensive investigation and it was dropped. The concern I have now is the use of that evidence in this action.” She describes USADA’s relationship to the federal government as “Orwellian,” because USADA acts like government, works with government, has harnessed the powers of government, and yet it’s a private corporation.

USADA says it has direct authority over thousands of citizens, with the ability to deprive them of property rights, ruin their reputations, and even conduct warrantless searches and seizures. It argues that it can use the courts to compel people who have nothing to do with sports to testify in its private proceedings under threat of perjury, to surrender evidence or other documents, and to name names. It insists that it doesn’t have to follow the usual rules of justice guaranteed by the Constitution. What’s more, it has been actively expanding its powers.

Yet, when a few people have objected, anti-doping officials have acted as if they’re traitors to the cause. “For all the folks wondering who the bad guys are, it is easy,” former WADA chief Dick Pound told me once. “They are the ones complaining.”

Asking questions isn’t complaining. It’s a fundamental act of citizenship. Below, I ask and try to answer the most important queries to consider as this case moves forward.

When did USADA come into existence, and how can it claim all these powers?
USADA’s origins date back to the 1970s, when the Soviet Union dominated the Olympics and the U.S. government wanted something done in response. At the time, the Amateur Athletic Union (AAU), a widely disliked umbrella outfit, claimed to govern athlete eligibility for the Olympics. But the AAU sometimes found itself embroiled in court cases in which athletes disputed its rulings—or the rulings of organizations governing individual sports like swimming or track and field—about who got to compete.

In an attempt to untangle this mess, Congress passed the Amateur Sports Act (ASA) in 1978. It was a little queasy about doing so, since Americans have traditionally resisted the idea of government intruding into sports—that, after all, was what the Russians and East Germans did. During this process, Congress had to deal with a few tricky philosophical questions. What are sports for, anyway? Are they games operating as metaphors for human ideals? Wars conducted by proxy? Or are they a form of commercial entertainment—an industry like country music or Hollywood?

Congress rejected the entertainment concept and straddled the line between the other two views. It designated a new, private, non-governmental outfit called the United States Olympic Committee (USOC) as the monopoly authority over athletes’ eligibility. U.S. courts have mostly recognized this authority and declined to intervene in disputes that have occurred as the old amateur ideal steadily gave way to professionalization. (Back then, Olympic athletes couldn’t be paid to perform.) Each sport’s federation, answerable to the USOC, would handle doping-control duties going forward.

By the 1990s, the Olympics had indeed become professional sports entertainment, and many U.S. athletes had a well-earned reputation as dopers. There were accusations that the USOC, and officials in sports like track and field, were covering up positive tests. Meanwhile, the 1998 Tour de France was nearly called off because of the Festina affair, a massive doping scandal that started when French police found EPO vials in a car driven by a team masseur. (Before it was over, nine riders were detained by the cops and other teams using other drugs were roped in. Festina was booted from the event.) The IOC, fearing damage to the credibility of its business, decided to separate itself from doping control as a way to avoid conflicts of interest, though the degree of that separation was and is debatable. So it created WADA in 1999 to administer anti-doping rules worldwide. USADA was created by the USOC, with leadership from the White House’s Office of National Drug Control Policy, as part of the nation’s war on drugs, in 2000.

Then, in 2003, WADA and the IOC spearheaded the drafting of the Copenhagen Declaration. This called for governments to get involved in anti-doping efforts and to recognize the World Anti-Doping Code as actual domestic law—not just a set of sports rules—in each country. This morphed into the International Convention Against Doping in Sport, a legally binding treaty adopted by the U.S. Congress in 2008.

The USOC contracted with USADA to oversee doping enforcement. (In 2010, it paid USADA $3.45 million for its services.) For the purposes of the treaty, USADA was designated by Congress as the country’s official anti-doping agency. Therefore, USADA’s claimed authority flows mainly from the USOC, which in turn derives its authority to control athlete eligibility from the ASA, free from judicial oversight. USADA also follows the lead of WADA, the controller of the anti-doping code. Individual sports bodies—USA Cycling, for example—are in charge of doping control for their athletes, but they must adhere to USADA/WADA protocols and the code if they want to remain a recognized federation eligible to participate in the Olympics.

Other than being complicated, what’s wrong with this system?
Mission creep. By the time the treaty came before the U.S. Senate, doping had become a huge issue—the BALCO scandal broke in 2003, eventually implicating superstar athletes such as Barry Bonds and Marion Jones—and politicians stumbled over themselves issuing condemnations. President George W. Bush even mentioned sports doping as a national problem in his 2004 State of the Union speech.

Still, legislators didn’t want to incur big costs or embroil the government too deeply in doping control or sports regulation. They saw USADA and the treaty as easy ways to get tough on doping without actually having to do anything. Senators, Straubel recalls, “wanted to believe” that ratifying the treaty had few implications. “Nobody wanted to raise red flags,” he says. “Nobody wanted to think the treaty imposed more of an obligation than to do what we were already doing. We were not really undertaking any serious obligations. These were just political obligations.”

In fact, as Straubel has argued in legal writings, the potential implications were vast. For example, taken literally, the treaty would apply to professional sports leagues like the NFL and Major League Baseball, possibly even the NCAA and high school sports, because the wording of the treaty encompasses all sports and all athletes. (Other countries, like Australia, have interpreted it this way.) Both USADA and WADA have openly declared that pro sports should fall under their control, which could abrogate union contracts with team owners. What’s more, Straubel suggests, the treaty and the code could set dangerous legal precedents for everybody.

How could rules that apply to athletes affect everybody?
Doping cases employ a system of arbitration derived from commercial rules used by parties who negotiate a contract, agreeing to settle disputes outside the courts. One important difference, however, is that people who earn a living in sports governed by the code have no power to negotiate terms. If you want to work, you have to agree to the code. And by agreeing to the code and USADA’s authority, you tacitly agree to waive certain rights promised to you under the Constitution, like the fourth amendment (which spells out your right to be secure in your person and to be protected from searches and seizures without probable cause) and the sixth (your right to be confronted with witnesses and have access to evidence used against you).

As Armstrong’s lawyers point out, USADA has refused to share the evidence it has against him. It doesn’t have to, because the normal rules of discovery don’t apply to USADA. Therefore, Armstrong’s lawyers can’t depose witnesses or dispute documents, and the people charging him are not necessarily impartial.

The “review board” to which Armstrong’s lawyers sent that June 22 letter was picked by USADA CEO Travis Tygart, whose actions strongly indicate a belief that Armstrong is guilty. If Armstrong is found guilty, he stands to lose property—not just titles, but money, too, to say nothing of reputation. The standard of proof in arbitration hearings is not “beyond reasonable doubt” but “comfortable satisfaction.” There are also persistent accusations that the arbitrators are too clubby with USADA and WADA. But USADA argues that athletes can’t challenge this system in U.S. courts because of the ASA, and because they are assumed to have waived their rights.

So Armstrong’s side has used controversial methods that are sure to make the whole thing look like mud wrestling. His lawyers have already gone after the credibility of the review board by attacking board member Clark Calvin Griffith (son of a former owner of the Minnesota Twins). Earlier this year, Griffith was charged with indecent exposure, and on June 13 he entered a plea that didn’t admit guilt, but did acknowledge prosecutors had enough evidence to convict him. Armstrong’s team brought this to light.

But this is about doping in sports. Hasn’t USADA been granted its powers to go after athletes who dope?
Right. And so, if one is willing to overlook the waiver-of-rights issue, then USADA is doing exactly what the USOC, and, by extension, Congress wanted it to do.

But when the treaty was ratified and the anti-doping system set up, the idea was to provide a forum for arguing about the results of drug tests: period. Armstrong, famously, has never failed a test. (Ignore USADA’s statement that one of his tests was “consistent” with doping. That’s scientifically meaningless: a test is either positive or it’s not.) His case centers on the aforementioned “non-analytical positive.”

USADA and WADA both have aggressively pushed this kind of case because they know it’s possible (though more difficult than it used to be) to beat some of the standard drug tests. But in order to prosecute a non-analytical positive, you have to conduct what is essentially a criminal investigation.

The Senate never imagined such a thing and USADA faces a problem doing it. As a private non-profit, it cannot issue a subpoena to force anybody to talk. It cannot ask a court for a search warrant or make arrests.

Recent revisions to the code try to account for this problem by, among other tactics, rewarding snitches. If you’re a cheating athlete and you confess or point the finger at others, you can get reduced suspensions for your misdeeds, something Armstrong’s camp is accusing USADA of doing for other riders who’ll testify against him. (If you refuse to talk, your suspension could be lengthened.) Armstrong’s lawyers suggest that this amounts to illegal bribery. As they point out, Floyd Landis—in his 2007 book Positively False: The Real Story of How I Won the Tour de France—claimed that Tygart phoned his attorney hoping to induce Landis into accusing Armstrong. “If he’s willing to do that, we can make him a great deal,” Landis quotes Tygart as saying.

Isn’t this how cases get made?
Yes, but USADA claims it can lean on you, too. Tygart has told Outside that he can force anybody to give testimony or produce evidence to an arbitration panel, even if that person has no relationship to sports. According to Weston and other experts, Tygart could try to convince the arbitrators that your evidence is crucial to a case. The panel can then ask a court to issue a subpoena. You would be sworn in and, if you lie, you could be charged with felony perjury.

This has never been tested in a doping proceeding. So it’s possible you could put up a fight and win. But nobody’s going to pay your lawyer bills.

How has USADA avoided being seen as a “state actor”?
Basically—and I’m not joking—by saying it isn’t. So far, the law seems to agree and courts have deferred to the ASA, which is why Armstrong’s plea to the federal court seems like a long shot to some. He’s not the first to try. When track star Butch Reynolds tried to sue the International Amateur Athletic Federation (IAAF) after it suspended him for doping in the 1990s, the case went all the way to the U.S. Supreme Court, which refused to hear it, handing Reynolds a loss and setting an important precedent. In 2006, when sprinter Justin Gatlin was suspended for doping, he tried to appeal to a federal judge. Gatlin argued that a 2001 offense for taking a drug prescribed for Attention Deficit Disorder was unfair and in violation of the Americans with Disabilities Act, so it should have been stricken from his record, which would have shortened his suspension for what was his second offense. The judge actually agreed, but decided he was powerless to enforce the disabilities law, stating that, with this case, “the United States Courts have no power to right the wrong perpetrated upon one of its citizens.”

Still, the arguments for concluding that USADA is a state actor are mounting as USADA has morphed. Two-thirds of USADA’s revenue, $10 million in 2010, comes from grants issued by the Office of National Drug Control Policy.

But don’t many people and organizations get government funding without “becoming” the government?
Yes, and USADA points that out when the state-actor argument is raised. But most of these other recipients are not the instrument used to help fulfill America’s international treaty obligations, or to carry out the country’s anti-drug policies.

And remember, both the government and USADA have acted as if USADA is indeed part of the government. When USADA wanted to charge athletes with non-analytical positives during BALCO, it asked the Justice Department for access to grand jury testimony and documents. The department refused. So USADA went to a U.S. Senate committee, which subpoenaed the information and then handed it over to USADA. (Travis Tygart literally transported the relevant information from Washington, D.C., to Colorado Springs in a carry-on duffel bag.) In other words, one branch of government obtained secret evidence from another and supplied it to what’s supposed to be a private corporation.

Is that how USADA got the evidence against Armstrong this time—from the federal investigation?
Nobody really knows. Tygart has stated that USADA’s case doesn’t rely on any evidence from that investigation. Experts, though, tend to laugh when they hear that, and, after the federal investigation ended, Tygart was quoted as saying he looked forward to getting the evidence gathered. Weston says it’s pretty obvious to her that the government and USADA are intertwined. As Outside has reported, Tygart and USADA were deeply involved with the investigation of Armstrong, even sitting in on some witness interviews.

Nothing gives USADA this power other than the discretion of investigators. In effect, a private corporation, regulated only by a foreign-based agency (WADA), has harnessed the power of the U.S. government to do what the corporation cannot legally do itself.

This is troubling because a bedrock principle of American justice is that grand jury testimony is secret. After all, a grand jury, using its subpoena powers and threat of perjury charges, might investigate somebody, find out all kinds of nasty things, and still not issue an indictment. If it doesn’t, the person investigated shouldn’t have to see his dirty laundry—obtained through government power—aired in public.

USADA may be able to “lawyer” an explanation around this close cooperation. It may claim, for example, that FDA agent Jeff Novitzky strongly urged a witness to speak to USADA and nothing more, or that documents wound up in USADA’s hands through a third party. Witnesses, possibly at the urging of Novitzky or others, may have agreed to USADA’s presence so that the witness was speaking to both entities at once.

But imagine that this isn’t about Armstrong, or even about athletes. Suppose your homeowners’ association suspects somebody in the development is dealing drugs. It can’t search the house or demand that somebody talk. So it calls in the police. The cops get a search warrant, and though they don’t turn up any actual marijuana, they find a couple of grow lights. That’s no crime but it’s suspicious. The cops see that this information gets back to the association. The cops tell you it sure would be in your best interests—hint—to tell all to the association board. So the association can claim it’s not the police, but it benefits from police powers. The reverse form of intertwinement—a private body serving as a “stalking horse” for federal law enforcement—is also problematic. Because athletes are assumed to have waived important rights, anti-doping agencies can conduct body searches like urine or blood testing, and then feed the information to the FBI or police. The anti-doping code encourages this.

On the international level, this exchange network has been made explicit. For example, WADA has agreements for information-sharing with Interpol, the multinational policing cooperative.

Think about that for a moment. The current anti-doping superstructure started out as an effort to prevent cheating in privately run games. Now we’re talking about Interpol and international treaties and fudging American legal principles.

That’s why, if experts are correct—and Armstrong’s lawyers are setting up an attack on USADA’s methods and authority—we could be in for a big and very important battle. Even if you are a Lance hater, and it pains you to think that he doped and might get away with it, you might want to pull for him this time.

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