Monday, January 21, 2013

Integrity Trumps Tragedy: Why USADA Should Seek a Deal With Lance Armstrong

Writing in the weekend FT, Christopher Caldwell had this to say about the Lance Armstrong affair:
[B]efore the cyclist Lance Armstrong admitted in an interview with Oprah Winfrey that he had used performance-enhancing drugs, the wildest rumours and discussions were circulating in US daily newspapers. According to these accounts Mr Armstrong was angling for a lifting of his lifetime ban from competition. In exchange, the 41-year-old would give testimony against teammates, financial backers or figures in the International Cycling Union.

It is too early to estimate the legal fallout of Mr Armstrong’s mea culpa. But this sort of plea bargain makes no sense. Why would any prosecutor, or any custodian of the good name of the sport of cycling, want to get to the people “behind” Mr Armstrong? This is like promising immunity to a wayward chief executive on the condition that he spill the beans about two interns in the mailroom.
I really enjoy Caldwell's columns, but on this one, he has things exactly backwards. I'll explain, but first, I'll offer some background on the broader context of sports governance and its complexities.

Cycling, like all Olympic sports, is governed through nongovernmental organizations. Prohibitions against doping -- the use of performance enhancing drugs -- has come to be widely accepted as part of the rules of the various Olympic games, and institutions have been created to enforce those rules. The sports covered by these rules, called the WADA Code, include those which take place at the Olympics, but not the major US professional sports leagues or the NCAA. Among those agencies are the World Anti-Doping Agency (WADA), a Swiss private law foundation headquartered in Montreal, and the US Anti-Doping Agency (USADA), a non-profit organization incorporated in Colorado, and headquartered in Colorado Springs.

The governance issues are very complex and still evolving. For instance, both WADA and USADA receive significant government support. Half of WADA's $26 million budget comes from governments which participate in the Olympics and the other half comes from the Olympic organizations within those countries, which may also come from government sources (see 2013 budget here in PDF, the US contributes about $2 million annually). USADA gets about $10 million in funding from the US government each year, about 70% of its budget (see this CBO report in PDF), and is recognized in law as the organization responsible for supporting the US Olympic organizations on issues related to doping (law here in PDF)

USADA is also the organization, designated by the US government, responsible for fulfilling the US obligations under the United Nations International Convention Against Doping in Sport, which was ratified by the US Senate in 2005 and stands as one of the most widely-adopted international treaties on any issue. USADA is independent from but works with the US Olympic Committee, which was established as a private federal corporation in 1950 and given further responsibilities under the Amateur Sports Act of 1978. There is a debate among experts as to whether USADA should be considered a "state actor" under the US Constitution, and thus subject to the same rules of government agencies. There is a case for (here) and against (here in PDF). (Side note- This is a fascinating issue of lex sportiva vs. lex imperium that I will be returning to). In practice, USADA is considered a non-state actor, an outcome that has been established via the courts in several cases.

Issues are made even more complex because there is an overlap between the WADA Code and US law on certain prohibitions (like anabolic steroids) but not others (human growth hormone). This distinction allows one to understand why Lance Armstrong was being investigated independently by the US Department of Justice and USADA. The DOJ dropped its investigation one year ago, and as well all know USADA continued its own investigation. USADA has no interest or jurisdiction in determining if an athlete violated US law. USADA's jurisdiction is with respect to the WADA Code, and ultimately an athletes participation in events that take place under that code. Similarly, US government officials have no jurisdiction over who is determined to be eligible for participation in events which are held under the provisions of the WADA Code.

Now with some context, let's get back to Caldwell's column and think about this in the abstract for a moment. Imagine if instead of Lance Armstrong we were discussing a case of an athlete fixing the outcome of a competition to aid gamblers. Set aside any legal considerations implicated by the fix and focus on the integrity of the sport. Imagine further that we learn that the referees and player's financial sponsors were in on the fix. Most everyone would agree that the athlete in this case deserves sanctions from the sporting organizations, and I'd guess that most would also agree that the referee and financial sponsors bear some culpability and deserve sanctions. We might go further and suggest reform to the institutions to make such occurrences less likely in the future. Think about it -- simply sanctioning the player would likely allow the fixing to continue without rooting out the rot in the system.

This is where Caldwell's column helps us to understand that Armstrong may not have been the kingpin. He might merely have been the opportunist exploiting a flawed and perhaps corrupt system. Either way -- flawed or corrupt (or both) -- it is incumbent upon USADA (and WADA, UCI, IOC, etc.) to find out for sure and to reform as necessary. Hence, the ongoing investigations are of critical importance to the future integrity of cycling and other sports.

In the Armstrong affair, it is easy to conflate the Greek drama aspects of the case with the far less dramatic issues of governance. But insofar as integrity of sport is concerned it is these governance issues that matter most for the future of competition. If Armstrong is willing to testify about assistance he received from the International Cycling Union, his financial sponsors, government officials or others, then it is a deal that the USADA should take willingly.

The integrity of sport is far more important than any athlete, not matter how far he has fallen or how egregious his failings.

1 comment:

  1. The integrity of sport? What? Long before the pre-Oprah rumors were circulating, USADA previously sought a deal with Lance Armstrong, very much the same deal that was given to his colleagues. However, Lance Armstrong chose not to take it - twice. If the 6-month or 2-yr ban was what he really wanted he should have taken those when offered. But no, Lance Armstrong was too heavily invested in (whatever) to do it. Yes, he's special! This posting just looks silly after that limited Doprah confession. UCI's structural problem (promoter and enforcer) is obvious. Did L.A. milk it? Quite likely. Did he ever want to fess up on it to USADA? Not likely. Especially since they couldn't swing blanket immunity for him.