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
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.