Lance Armstrong, the UCI and USADA: Catch-22?
Does the UCI Decision and USADA boss Travis Tygart's response to it reveal the contradiction at the heart of the Armstrong scandal?
The fall-out continues from the Lance Armstrong doping scandal. Yesterday the cycling's world governing body - the UCI -ratified the sanctions imposed on Armstrong by the United States Anti-Doping Agency… with certain caveats in its own UCI Decision. Last night USADA's head Travis Tygart responded, and he wasn't happy about those caveats.
And well he might not be. The UCI's Decision has the tone of a playground bully who's just come up against a bigger bully but is determined to wheedle away at its tormentor, landing the odd blow even as it is forced to give in. Like all proper playground bullies the UCI knows how to deliver a sly kick in the balls.
Essentially the UCI's position is that it accepts the penalties imposed by USADA primarily because Armstrong chose not to defend the charge - which meant the matter became purely disciplinary - the UCI already accepts USADA's jurisdiction in disciplinary proceedings regarding US cyclists.
However the UCi Decision then goes on to add:
"…there should be no doubt that if USADA had provided UCI with the case file – which USADA refused to do – for results management purposes, UCI would have come to the conclusion that Mr Armstrong had a case to answer indeed and that UCI would have asked USA Cycling to open disciplinary proceedings against Mr Armstrong. Then USA Cycling, under its own rules, would have referred the case to USADA to deal with the disciplinary proceedings. If then, as he did now, Mr Armstrong would also have decided not to proceed to an arbitration hearing, USADA would have taken a decision in the same way as it has done on 10 October 2012.
Therefore there is for UCI no issue of jurisdiction when it comes to decide at this stage whether to appeal to CAS or not."
On the question of why USADA refused to hand over its files to the UCI Tygart told the Guardian:
"We set forth our position on why they were conflicted in this case on many different grounds," said Tygart, "They accepted money from him [Armstrong], they accused us of a witch-hunt (without seeing any evidence), they sued the chief whistleblower, they discouraged witnesses from participating."
Tygart obviously believes that neither the UCI nor USA Cycling could be trusted to handle such a potentially explosive case in the right way .
"All in all, given what was at stake for the sport," said Tygart, "I was very doubtful this day would ever come". Which on the face of it seems to miss the UCI's point that once it had instructed USA Cycling to start proceedings it would have handed the files back to USADA as the body with disciplinary jurisdiction over US licence holding cyclists. Unless of course Tygart doesn't believe that this is what would have happened in reality. He may have a point.
It is what the UCI Decision has to say regarding USADA's decision that the eight year statute of limitation laid down in the World Anti-Doping Code (WADC) didn't apply in the Armstrong case that really riles Tygart in his comments to the Guardian.
The UCI accepts that Armstrong forfeited his right to appeal against USADA's removal of the statute of limitations by his failure to contest the charges when he knew what the sanctions would be. But…
"If UCI would have taken the decision at the end of results management, it would have limited disciplinary proceedings to violations asserted to have occurred during the eight years preceding the opening of such proceedings."
If the UCI had limited the case against Armstrong to 'results management' - the area in which it claims jurisdiction - both the positive and suspicious results USADA cites in its evidence would have been inadmissible under the statute of limitations. Given that the UCI doesn't accept that Armstrong doped on his comeback… because there are no results to back up that claim. On one reading of this the logical conclusion has to be that the UCI would have found there was no case to answer.
No wonder USADA didn't want to hand the files over.
But there's more, the UCI Decision goes on to question the basis on which USADA set aside the statute of limitations:
"The UCI is of the opinion that the Code is very clear in this respect:
No action may be commenced against an Athlete or other Person for an anti-doping rule violation contained in the Code unless such action is commenced within eight (8) years from the date the violation is asserted to have occurred.
"The Code does not provide for any possibility for an anti-doping organization to take away from the athlete or other person the benefit of this clause.
"It is UCI’s view that USADA’s reference to national law is not appropriate."
The UCI goes on to urge WADA to appeal the decision.
"…the statute of limitations is a fundamental rule of the World Anti- Doping Code. It is WADA’s role and responsibility to ensure compliance with the Code and to appeal to CAS in order to warrant, as is the mission of WADA, that the Code is applied in a uniform way worldwide and that all athletes are treated equally."
Yesterday in our piece about WADA's response to the UCI's Decision - we quoted the head of WADA, John Fahey, pointing out that his organisation does indeed have the power to appeal and has 21 days to do so from the 31st of October - although it seems unlikely it will.
Perhaps unsurprisingly Travis Tygart comes out swinging in response:
"Armstrong denied himself the benefit of any statute because he lied under oath and many other forums, swearing that he did not dope, in addition to bullying witnesses into silence," Tygart responded. "If he had not done this, he might have benefited from the statute of limitation. To raise this now, only further shows their reluctance to do the right thing for the sport going forward."
However it is an uncomfortable truth that there is nothing in the WADC that gives USADA the right to set aside the statute of limitations for Armstrong even if he did bully and intimidate witnesses.
Furthermore the UCI does seem to hit a nerve when it insinuates that some of the evidence gathered against Armstrong was given under duress.
"[This is] another example of the UCI attempting to escape responsibility for their failures and it is quite sad they would continue to resort to such underhanded tactics at this time," said Tygart. "This is absolutely fiction, made up by them to justify their ineptness at failing to prevent this 'great heist' in their sport," says Tygart
That may well be true, but it is also possible to on an objective reading some of the rider affidavits given against Armstrong from the likes of George Hincapie and Levi Leipheimer to get they impression they were not given given particularly willingly. Furthermore USADA has already been criticised by a judge over aspects its case against Armstrong.
In August while throwing out Armstrong's attempt to have the USADA action against him halted, Texas District Judge Sam Sparks had some withering things to say in his written decision about USADA and its prosecution of its case against Armstrong:
"Among the Court's concerns is the fact that USADA has targeted Armstrong for prosecution many years after his alleged doping violations occurred, and intends to consolidate his case with those of several other alleged offenders, including - incredibly - several over whom USA Cycling and USOC apparently have no authority whatsoever,” he wrote.
“Further, if Armstrong's allegations are true, and USADA is promising lesser sanctions against other allegedly offending riders in exchange for their testimony against Armstrong, it is difficult to avoid the conclusion that USADA is motivated more by politics and a desire for media attention than faithful adherence to its obligations to USOC."
The UCI's Decision and Travis Tygart's response to it reveals the Catch-22 at the heart of the Armstrong scandal.
If the rules had been applied as they were meant to be the greatest cheat not only in the history of cycling but in any major sport would probably never have been caught, while to catch him there is at least the suspicion that USADA put the result before the rules… just like Lance Armstrong did.