Tuesday, August 21, 2012

Notes from Sparks Ruling on Armstrong vs. USADA

This week, a US District Court ruled against a lawsuit filed by Lance Armstrong against the US Anti-Doping Agency (ruling here in PDF). Armstrong was seeking to halt an arbitration proceeding against him on procedural grounds. The ruling, explained in 30 pages by Judge Sam Sparks, is an excellent read, especially in the context of my frequent ruminations on lex imperium vs. lex sportiva -- where the law of the land begins and the law of sport ends.

Below are a few excerpts from Sparks colorful ruling, along with my commentary.

Sparks does not shy away from commenting on the motivations that he suspects are behind USADA's pursuit of Armstrong:
The Court begins by recognizing the substantial private interest involved: it is no exaggeration to say the future of Armstrong's career, and maybe also its past, will likely be determined by the result of USADA's arbitration. Balanced against this, of course, is USADA's strong interest in fulfilling its mandate to root out doping in Olympic sports(fn19) -- an interest which is shared by other athletes, and the international sports community as a whole.
 Footnote 19 says:
19 As discussed further below, USADA's conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives. Ultimately, however, the subjective motivations of the parties cannot control the Court's due process analysis, or give this Court jurisdiction over claims Congress and Armstrong have decided should be resolved through arbitration.
Sparks also says in footnote 36:
36 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. 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.
Nonetheless, Sparks is quite clear that sporting organizations should be responsible for the adjudication of disputes which properly fall under their governance regimes:
The Court agrees with the reasoning of Slaney and Harding, that federal courts should not interfere with an amateur sports organization's disciplinary procedures unless the organization shows wanton disregard for its rules, to the immediate and irreparable harm of a plaintiff, where the plaintiff has no other available remedy. To hold otherwise would be to turn federal judges into referees for a game in which they have no place, and about which they know little.
The threshold of a "wanton disregard for its rules" shows up again with different language:
Armstrong's challenges to USADA's jurisdiction, and his arguments about which rules govern, can and should be made in arbitration. If the panel's resolution of those issues is manifestly unjust and devoid of any reasonable legal basis, Armstrong may have a judicial remedy; but this Court cannot act on the basis of a hypothetical injury.
The court is carefully explaining to Armstrong that he may yet have a judicial option,. but not yet. Sparks concerns about the special "targeting" of Armstrong may yet be the basis for such a future suit justified by a "wanton disregard for the rules."

Sparks levies some pretty strong charges against the various organizations involved, not quite calling them Keystone Cops, but coming close:
As the Court has indicated, there are troubling aspects of this case, not least of which is USADA' s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI's equally evident desire not to proceed against him. Unfortunately, the appearance of conflict on the part of both organizations creates doubt the charges against Armstrong would receive fair consideration in either forum. The issue is further complicated by USA Cycling's late-breaking show of support for UCI, and apparent opposition to USADA's proceedings--a wrinkle which does not change the Court's legal analysis, but only confirms that these matters should be resolved internally, by the parties most affected, rather than by edict of this Court.38

The events in USADA's charging letter date back fourteen years, span a multitude of international competitions, and involve not only five non-citizens of the United States who were never licensed in this country, but also one of the most well-known figures in the history of cycling. As mystifying as USADA's election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies are apparently unable to work together to accomplish their shared goalthe regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.
Footnote 38 from the passage above says:
38 Indeed, it is hard to imagine a situation more illustrative of Judge Posner's famous words, that "there can be few less suitable bodies than the federal courts for determining the eligibility, or the procedures for determining the eligibility, of athletes to participate in the Olympic Games." Michels v. US. Olympic Comm., 741 F.2d 155, 159 (7th Cir. 1984) (Posner, J., concurring). By the same token, this Court simply has no business telling national and international amateur athletic organizations how to regulate their respective sports.
So where does this leave sports jurisprudence and Lance Armstrong?
On the former, the Sparks decision reaffirms a sharp distinction between lex imperium and lex sportiva, while leaving that boundary permeable in certain exceptional circumstances. In other words, Sparks is saying, sporting associations should tend to their own business, unless and until that business violates the laws of the land. As that has not happened in this case, Sparks has tossed the issue back to USADA, as unsavory an outcome as that likely is to Armstrong.

For Armstrong, barring an appeal of the Sparks decision (which he'd likely lose), he now faces a decision to proceed with arbitration with USADA or accept their sanctions. The arbitration proceedings offer the prospects for an unseemly spectacle of various sports organizations (WADA, USADA, UCI, USA Cycling) arrayed on opposing sides of the dispute. Should an arbitration not turn out in Armstrong's favor then possible future stops for the dispute would include the Committee of Arbitration for Sport in Switzerland, and then perhaps Swiss Courts.

However, given the recent decisions of the CAS (e.g., FC Sion, bin Hamman) in support of sporting organizations and their due process standards, and the reluctance of Swiss Courts to revisit CAS decisions, Armstrong's legal teams may decide to seek recourse in the US. However, here as well Armstrong does not appear to have a firm basis for overturning an arbitrated decision against him. Perhaps such a calculus increases the chances of a deal being stuck to avoid arbitration altogether.

On this latter question, we'll know by Thursday. Stay tuned.


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