Top sports lawyers say USADA Lance Armstrong sanctions ignored anti-doping rules - urge WADA to appeal

Chief concerns surround non-application of eight-year statute of limitations

by Simon_MacMichael   November 2, 2012  

Lance Armstrong (pic courtesy Photosport International)

A number of experts in sports law have said that the United States Anti Doping Agency (USADA) went beyond its powers in banning Lance Armstrong for life and stripping him of results including his seven Tour de France titles and have urged the World Anti-Doping Agency (WADA) to appeal the decision to the Court of Arbitration for Sport (CAS). Meanwhile the International Olympic Committee (IOC) is reportedly set to strip Armstrong of the bronze medal he won in the time trial at Sydney in 2000.

[Update: WADA has subsequently confirmed that it will not appeal and said it took legal opinion that found that USADA's stance was correct.]

Criticism of USADA’s decision is focused around its insistence that the eight-year statute of limitations that applies under the World Anti-Doping Code (WADC) did not apply in the Armstrong case because of Armstrong’s “fraudulent concealment” of his activities.

One aspect of the criticism that may give USADA, WADA, and indeed Lance Armstrong pause for thought is that much of it comes from Swiss sports law specialists, at least one of whom has close ties to the Court for Arbitration in Sport (CAS) all basically accuse USADA of making up law on the hoof and trying Armstrong and his co-accussed in public, while the UCI gets it in the neck for putting the demands of politics before the law.

Antonio Rigozzi, a professor at the University of Neuchatel in Switzerland who specialises in doping law, told AFP: "The case is certainly unique in its scale but it's not a reason not to apply or even ignore the [anti-doping] rules, as we've seen.”

The academic also hit out at the UCI for what he said was a loss of credibility by "giving precedence to politics over law" – although it has to be said that the governing body would have been buried under an avalanche of criticism had it challenged some or all of USADA’s decision.

In its own decision outlining why it had decided to support USADA’s sanctions again Armstrong, the UCI expressed concerns about the national anti-doping agency’s stance, saying that the citation of domestic law to support its case was incompatible with the WADC and its harmonisation of global rules.

However, the UCI added that despite its misgivings, it did “not consider this as a sufficient ground for the UCI to appeal to CAS in this case.”

A sports lawyer based in Switzerland, Alexis Schloeb, commented: “We've not got a classic anti-doping procedure but an Armstrong procedure.

"We're focusing solely on him and we're accepting, in exchange for testimony favourable to the dossier, to have a number of other athletes spared by this tidal wave.

"A lot of former cyclists are currently owning up, like the head of the Garmin team, Jonathan Vaughters. In these cases, the eight-year limitation has been respected.

"For some, we're applying the rules and for Armstrong we're not. There a touch of double standards."

Schloeb urged WADA to take the Armstrong case to CAS, saying: "In its current state, there are too many grey areas. Debate about the case is nevertheless positive because it gives us a chance to shake things up and invites us to question the business of sport.

"In the case of Alberto Contador, the sports authorities, notably the UCI, didn't think twice about appealing [WADA was also an appellant in the case].

"In principle we should wait until the same procedure is launched to ensure the correct application of the rules, even when they're in favour of the athlete."

According to a French lawyer, Jean-Jacques Bertrand, a former judge at CAS, USADA’s publication "a very detailed, very robust report… practically made any appeal doomed to failure".

"No one dares criticise the USADA for fear of appearing to defend Armstrong. But we need to have dispassionate judges who apply the law as it stands," he added.

WADA has a 21-day period in which to lodge an appeal against USADA’s decision, starting on 31 October, which was the final date that other parties to the case were able to make their own appeals.

In a statement published last week after the UCI announced its own decision, WADA President John Fahey said that the agency was “encouraged by the fact that the biggest doping scandal in the history of sport is close to reaching a correct conclusion.”

That statement, plus the fact that WADA has expressed support for USADA throughout the Armstrong case, suggests that it is unlikely that the body will seek to challenge the ruling.

However, Rigozzi underlined that the way the Armstrong case had been handled did give rise to concerns in legal circles about the legitimacy of the process.

“What worries lawyers is to witness anti-doping agencies who don't seem to be ready to go to court when a rule has been broken and it favours the athlete," said Rigozzi.

"Their goal shouldn't be to have convictions at all costs but just decisions in keeping with the applicable rule.

"If WADA does not appeal, its legitimacy will suffer from it. Its role should be to investigate the case both for the prosecution and for the defence."

The IOC meanwhile is to decide next month whether to strip Armstrong of the bronze medal he won at the Sydney Olympics in 2000.

As it pointed out when taking away Tyler Hamilton's gold medal from Athens in 2004 this summer, ordinarily it does not review results beyond an eight-year limitation.

However it looks likely to do so in the Armstrong case, with the Texan disqualified from all results since August 1998, with that Sydney bronze medal going to Spain's Abraham Olano. Armstrong's former US Postal team mate Viatcheslav Ekimov won gold for Russia at Sydney, with Germany's Jan Ullrich clinching silver.

It was Ekimov himself, who had finished runner-up to Hamilton in Athens who was awarded the gold medal for the 2004 Olympics following the decision to remove the victory from the American.

 

 

11 user comments

Oldest firstNewest firstBest rated

hmmm - I've sat on the fence for a long time on this one - and frankly stopped reading most things out of exasperation

but if the rest of the evidence is *so* damning against Armstrong - a successful appeal based on a statute of limitations would do him no good whatsoever

posted by mad_scot_rider [536 posts]
2nd November 2012 - 14:13

like this
Like (1)

Lance Armstrong employs the sort of lawyers that will cut your face off and wear it as a mask. If USADA had done anything to deny him his rights under statute law OR sporting regulations they would have appealed.

posted by The Rumpo Kid [590 posts]
2nd November 2012 - 14:31

like this
Like (1)

It doesn't matter whether WADA do or don't appeal - it makes no difference to whether Lance had fair rights of appeal. Because Lance Armstrong himself had the right to contest the case, to have it referred to an independent arbitration panel and heard there. Lance Armstrong chose not to contest.

WADA and UCI are under no obligation at all to appeal cases on behalf of athletes. Ultimately it is the athlete who must look after their own interests. WADA and UCI have the right to appeal in *their own* interests (e.g. the interests of anti-doping, and the interests of the sport for UCI).

This is such obvious stuff you have to wonder about these sports lawyers.

posted by Paul J [553 posts]
2nd November 2012 - 15:08

like this
Like (1)

This is Contador's friend whom Contador chose for his CAS case.

Contador might be slightly worried about Bruyneel taking him down as well as others to get a reduced sentence or out of bitterness.

posted by Decster [246 posts]
2nd November 2012 - 15:16

like this
Like (1)

"The law is an ass"

As the previous post points out, reclaiming the titles under a legal precedent does not excuse the drug taking and would not really appear to be justice. Although it is difficult to appreciate the full tort of Armstrong's actions.

Given the extent and prevalence of drug taking by all competitors in this era the biggest victims are largely nameless. But to argue that no harm has been done, or that too much time has past does not stand up. We do not put a limit on the trial or murderers for their crimes so why is it any more fair to allow someone to escape justice. In fact it's precisely because Armstronf has benefitted so much that Armstrong needs to be sanctioned. If you show that cheaters do not prosper fewer will be tempted to try.

posted by Colin Peyresourde [1079 posts]
2nd November 2012 - 15:16

like this
Like (1)

Clutching at straws time, LA had the opportunity to have his case heard, he also has the right of appeal and to go to CAS, he is choosing not to, due to the evidence against him. In all likelyhood he would have to admit at some point that he doped, personally i think he will want it to blow over and in year or two he will launch another book and confess his sins.WADA wont appeal against this one as they have sided with the USADA on this and we now await the UCI internal investigation which won't be worth bothering about and hopefully Paul Kimmages successful lawsuit against the UCI. Can i have my law degree now please.

posted by theincrediblebike [41 posts]
2nd November 2012 - 15:23

like this
Like (0)

Lawyers in touting for business shocker.

Hamster's picture

posted by Hamster [72 posts]
2nd November 2012 - 15:27

like this
Like (1)

Hamster wrote:
Lawyers in touting for business shocker.

We need a 'like' option for comments - made me smile anyway

posted by mad_scot_rider [536 posts]
2nd November 2012 - 17:36

like this
Like (0)

Seen elsewhere.

The World Anti-Doping Agency (WADA) advises that it will not exercise its independent right of appeal following its review of the reasoned decision delivered by the United States Anti-Doping Agency (USADA) in the case against former cyclist Lance Armstrong.

So no work for the druggers briefs Devil

Paul W

posted by PaulVWatts [111 posts]
2nd November 2012 - 17:52

like this
Like (0)

Letting the likes of Vaughters off the hook is 'double standards' is it? The small case of x7 standards seems to out weigh the 8 year limitation in my mind.

Silly me. You're probably right....

MercuryOne's picture

posted by MercuryOne [1026 posts]
2nd November 2012 - 23:18

like this
Like (0)

I sort of agree with Colin. Lawyers have a way of splitting hairs, hell that is how they came up with the Doctrine of Stare Decisis. As for the rules governing statutory interpretation, the literal the golden and the mischief rules....it is proven beyond a doubt Lance was up to some mischief!! I can not help feel that these people are now only coming on board because of the importance we attribute to the unveiling of the scope of drug abuse within the pro tour teams and their apparent nonchalent attitude that they were perceived as invincible. The cover up was proven to be systemic through out the sport and we are now only realising how far widespread it really was. If one were to look at it another way, if a drug dealer(generic now) achieved massive wealth from being involved in an illegal activity. The law suggests when held accountable that an individual should not benefit from those ill gotten gains. I doubt there would be a statute of limitations on that. So it would not be unreasonable to see the approach that USADA chose. They are not suggesting that this is a contractual matter but one that is referenced in criminal law. Why the justice department did not pursue this matter when they had the opportunity is beyond me. Maybe they did not have such good investigators. And the dating of some of the testimony in the dossier suggests they were against the clock. No amount of skilled advocates will tell us that, what we patently see as black and white, is simply shades of grey. We have all seen the outfall of this reasoned document! Are the lawyers then to suggest to us that the premise of the document was without foundation. Thankfully we live in a society where it is not always the judges and the lawyers who make the final decisions but the jurors. We may have been empanelled in a public forum but if the defence offers no defence what are we to conclude? No point crying foul afterwards when you lost and then argue in retrospect taht you were denied due process when you should have taken the stand. Why would WADA appeal anything and get drawn into a black hole wherein we would then start to question their competency. They fight for the things we all fight for and that is a level playing field open to all prospective athletes. It is not simply who can pay the best lawyer. You see they were never part of the jury!! The only reason the UCI are 'concerned' by the UsADA approach is because they are embarrassed by the whole affair. The good law professor from Switzerland implies as so much.

If the whole doctrine of marketing in cycling is based on public perception, then the UCI failed miserably. For them to even consider going to Cas is tantamount to shooting themselves in the other foot!

posted by Seoige [104 posts]
3rd November 2012 - 10:10

like this
Like (0)