Thursday, August 16, 2012

USADA in some trouble on Armstrong?

Judge questions USADA, Armstrong lawyers

AUSTIN, Texas (AP) - A federal judge had tough questions for U.S. anti-doping officials about the fairness of their effort to prove seven-time Tour de France winner Lance Armstrong cheated, grilling them at length in a hearing Friday.

But U.S. District Judge Sam Sparks also asked attorneys for the cyclist why the federal court should step into an arbitration process already set up to handle doping cases in sports.

In a 2 1/2-hour session, Sparks criticized USADA about the vagueness of its charges and wondered whether Armstrong would get a legitimate chance to defend himself against allegations that he used performance-enhancing drugs throughout his career.

Sparks also questioned USADA officials about why they don't turn their evidence over to the International Cycling Union, which has tried to wrest control of the Armstrong case from USADA in recent days. ...

See the whole article here, courtesy of Sports Illustrated.

Kicking Back Comments: Reading between the lines, this is not great news for the USADA. In particular when a judge starts asking questions about vague evidence, or turning over evidence or jurisdiction to another, there are some serious procedural questions in play.

Justice Sparks is said he will rule before the 23rd. If I had to guess, he will push the matter to arbitration as all the other options would seem less tenable legally.

I found the prepared remarks from the USADA amusing. From the article:

"Mr. Armstrong agreed to play by the same rules that apply to every other athlete and we believe he should not be allowed to create a new set of rules that apply only to him,'' Travis Tygart, chief executive of USADA said in a prepared statement. "From the beginning our investigation has been about ridding sport from anyone in the system that uses their power or influence to encourage or assist athletes in using dangerous performance-enhancing drugs.''

Hope Solo; 1 positive test; public reprimand; competed in 2012 Olympics.

Lance Armstrong; 0 positive tests; state, federal, and international tribunals; DQ'd from IronMan and faces a lifetime ban from sport.

Ahab needs to get his Whale.


  1. Another yellow bracelet groupie. How many tests? Did Lance really say in court documents "500-600"? Did Lance really say (and you believe, lol) 0 positives?

    The USADA has the support of the international sports community and honest Americans that want dopers and drug traffickers out of sport.

    Americans don't cheat to win. Americans don't do illegal drugs, traffic in drugs, or give them to younger athletes saying 'otherwise you can't be on my team'.

    We are all interested to see how far Lance Armstrong's corruption reaches. Let's just wait now to see what Judge Sparks says.

    1. Wow ... glad I hit a nerve Anon. I was getting worried no one was reading.

      Read my stuff closely.

      While I am a Lance fan ... and I am ... like I said, I don't know if he doped. He may have, and if so that would change my opinion.

      As far as the number of tests and positive tests, I cite the USADA's own data on the topic, so please access the link for the relevant information.

      Regarding Americans don't cheat to win ... please don't be so naive. I don't think you actually believe that, so please be honest in your comments.

      Where we agree is we are both interested in what Judge Sparks will rule. Again my opinion is that it will not be on the merits, only the procedure.

      Thanks for reading.

    2. Doping in sports is literally deadly. Attacking the USADA is attacking the only American democratically chosen institution that is dedicated to cleaning up this cancer in sports. The USADA is supported by all the leading professional and amateur sports organizations in the US. And this is not done lightly. The USADA Code is also supported and embraced by American athletes, especially the clean ones.

      The USADA statement that you find amusing is precisely true: Lance Armstrong is asking for a new procedure to be created just to judge his crimes: not a criminal procedure, not a civil procedure, not a sports association procedure (which he repeatedly agreed to throughout his career and specifically the USADA procedure he agreed to), but a new procedure that has yet to be invented. This is precisely too what UCI asked for when they intervened to prevent the USADA evidence from becoming public and insisted to have a new "Lance procedure" that would bury the evidence and ensure there was never a follow-up.

      Your blog only mentions the questions Judge Sparks asked of one party in the dispute, the USADA. You do not give any indication of the very pointed and challenging questions Judge Sparks raised to Armstrong's filing - indeed, the question of procedure was asked to the Armstrong side, not the USADA side (which was more a question of merits).

    3. Lance Armstrong and the Lance Armstrong Foundation (LiveStrong) have spent literally millions in their campaign to sway public opinion. It is really horrendous that people donated their hard earned dollars to a supposed not-for-profit cancer organization that has then spent that money on lobbying congress to prevent doping controls in sports. Doping in sports causes cancer. Just for one case in point: Look at Lance Armstrong's own public testosterone levels prior to his getting cancer (levels that by today's rules would give him a lifetime ban) and his own witnessed admission to his doctor that he doped.

      Lance Armstrong never attacked the USADA until it went after him. In fact, he claimed that the USADA was the place for doping control and not the UCI, and he asked for and received such a letter from the USADA to win a huge lawsuit from sponsors for his personal enrichment. He also volunteered to testify against Floyd Landis during the USADA case against Landis.

      The kind of irresponsible hero worship you portray threatens the core of our society. Yes, taking illegal drugs is something that Americans do. But most Americans condemn that. Trafficking (domestically and internationally) in drugs is something that Americans do, but again, most Americans condemn. Influencing and coercing younger athletes to take deadly drugs is . . . simply horrible. And the hubris of "catch-me-if-you-can" is the worse kind of heroism for our youth.

      One of the co-conspirators named in the USADA case against Armstrong is Dr. Ferrarri. This doctor was already previously banned by the "Italian USADA" (probably you think they had a "vendetta" and they are "corrupt" like the USADA). Dr. Ferrarri sent a doped up athlete to this year's 2012 Olympics. Another co-conspirator, Armstrong's longtime sidekick, Johan Bruyneel, manages a Luxembourg pro team now, today, with a rider kicked out of this year's Tour de France, for doping. The rider is still on the team with the full support of Bruyneel and!!! the team's owner (yes, the same Lance Armstrong) and the team's sponsor (yes, LiveStrong - how is this possible?).

      As a fan of Lance Armstrong, if not for your own sake, then for the sake of your children, should you not be asking him the obvious questions? Why Lance did you give hundreds of thousands of dollars to Dr. Ferrarri? Why Lance did you give hundreds of thousands of dollars to the UCI, then both you and the UCI denied it, and the later when the evidence was shown you admitted it? Why Lance do you have a vendatta against so many riders that became clean? Why have you participated in the destruction of your former teammates lives? Why do you continue to own and sponsor (through your so-called "not-for-profit cancer organization") teams and individuals that dope and cause cancer?

      PK, perhaps you should first investigate the USADA's record and see what it has achieved in helping to clean up American sports from the cancer of doping. Perhaps you should see what it has done and is doing for America's youth in sport. Perhaps just read its record first before repeating the inanities of the Armstrong Washington PR machine. And perhaps you should ask LiveStrong to open its own books on where US tax dollars and individual citizen's hard earned donations are now going.

      In my humble opinion Judge Sparks will rule on merit and decide on procedure. At least that is how he should judge. Let us see how much courage and independence a Federal judge in Austin can have when surrounded by Lance's millions and his fan club.

      Thanks for reading.

    4. Anon,

      Excellent comments. Truly. You are clearly well read and are up to date on this stuff as well as very passionate.

      Hat tip for that.

      We agree on most of what you wrote.

      Doping is bad, and I don't condone it, at all, ever. You cite the kids involved, and we agree too that the USADA serves the very legitimate function of keeping drugs out of the hands of these kids that can hurt them for their life.

      That said, and where we start to depart, I think, it that if someone has the free will (like Lance) to take drugs that they know can hurt them, that's on them. Not saying its right, but its on them. Lance (and others) are not accused of making others take drugs.

      I know Tyler (and maybe Levi, George DZ ...) may have had other things to say regarding that, and it changes my tone immensely if true ... but (to be very course) Lance is not sticking needle into people, they are choosing to do that on their own.

      Here's where Ferrarri got his just desserts if all he was accused of is true (and I'll deal with that in a sec), he was indeed pushing these drugs into kids by acquiring them, distributing them, setting up schedules for them, and (of some of the reports are true) literally assisting to inject them.

      This is far worse then what Lance (again from the reports) has done.


    5. Also, and you picked up on this earlier in one of my tags, this is where "fundamental fairness" comes in. I meant it in the legal context where everyone comes to the table with the same evidence, both sides get to look, and the trier of fact (a jury) decides. Right now the USADA is conducting interviews in private, and has not shared evidence with anyone ... federal courts inclusive ... about the matter. This is troubling from a legal procedure point.

      Again we agree that if Lance did what he is accused of, lose the 7 TdF, ban him from IronMan and give him a lifetime ban, and if it meets the statute, re-open the criminal case. The USADA has not shared any evidence to support these claims yet, so how can we legitimately take action on Lance, or anyone, without that evidence?

      An interesting analog is the Zimmerman case where based on what was known at the onset of the case, he tragically killed a young man. Some said self defense, some did not. Now as the evidence is coming out ... the actual evidence as required by state law via the Sunshine Act ... the outcome is changing, and is less clear.

      This is where the USADA I would think wants to go. If they have a "smoking gun" as it has been described with some testimony from George, Levi, DZ ... bring it forward and lets see what shakes out. My problem with the USADA procedurally is they don't share evidence, at all, and goes against a "fundamental fairness" precept in American law. These punishments are so steep for Lance in this case that to just follow the USADA edict based on a panel they compose is hopelessly slanted.

      Another analog is on arbitration where most medical companies require you to go into binding arbitration rather than straight to court. Part of this is for cost yes, but part is the fact that the medical companies hire the arbitrators, and as the stats line up, the companies win much more than lose (it's in the 80% range). Now that does not mean that the companies case did not have merit, it just means that the deck can potentially stacked in their favor.

      I think it is reasonable to at least consider this is the case for the USADA, and with so much at stake, being trained in the law, I would certainly advise Lance of he were my client to do what he is doing ... again from a procedure standpoint. ...

    6. Again, Anon, I think we agree more than we don't on the topic in general. The USADA does serve a legitimate function. Where I take issue with it is less about Lance ... yes I am a fan ... more of a Popo fan though with Jensie a close second ... and more about the procedure of the USADA and how they intersect with the law. Similar to Judge Sparks (who I too hope will be unflappable, but I think will punt on the merits), I would like to see the USADA evidence before rushing to judgement.

      Also, and this was my initial point some posts ago, as it relates to soccer officiating, the USADA seems inconsistent about how it is metering out punishment for similar offenses. Again (and intentionally inflammatory) was the comparison of Hope Solo with her positive test, to Lance who has not publicly tested positive, and was the basis for my "amusing" comment. I do concede the point on the more "trending over time" testing as that is far less clear to me.

      Finally, a point lost in the shuffle too is, when does a right correct a wrong? Let's say he did it, all of it ... does his work after the fact mitigate his earlier sins? Some say no right out of the gate, some say yes, my jury is out.

      I personally have a hard time getting over his Stage 4 cancer survival, comeback, and work after the fact. We agree that proceeds are used to defend Lance, they are, but it is legitimate (i.e. legal) use of those funds ... while somewhat distasteful ... it is not illegal.

      At the end of the day Lance may be trying to repent for his cycling sins with Livestrong, and some may be letting him. I don't know when too much in "unforgivable." IMHO Ted Kennedy may have some answers there.

      So at the end of the day, I think we largely agree, at least on the big points, and we both eagerly wait for Judge Sparks to rule.

      Excellent comments, and I welcome your reaction to Judge Sparks ruling next week. Please feel free to reach out at the email address in my profile as I would like to have you post your reaction and help answer the question if rights can right a wrong, and how seriously should a decision making body, like the USADA be consistent in their decision making?

      Thanks for reading and taking the time for a thoughtful reply.

    7. Agree. Too much passion here. Too many kids have been drug to compete in sports, some willingly, some even unknowingly. Some have died.

      We agree on the major points: fairness, truth, justice. Most Americans don't agree with you about free will and doping up. In fact, it is illegal to stick a needle in your arm with illegal drugs, even if you do it on a Saturday afternoon all alone at home in front of Fox News. And right it should be illegal.

      When people dope to have an unfair advantage in sport, it is not only illegal (as it is in France and other places Lance rode in Europe), it is also enormously insidious. It cheats sponsors. It cheats fans. And it cheats the fellow athletes that compete on the basis of fair play, hard work, and natural talent. Lance not only cheated his fellow athletes, he even ruined the lives of teammates to keep his lie.

      You need to read again the USADA charges against Lance and his co-conspirators, and stop just listening to what Lance writes in his court briefs - which are full of untruths and distortions as the USADA has shown. Lance is being charged with giving drugs to younger athletes. And as we know, you couldn't ride on his team without doping.

      "Sticking needles in someone else's arm . . . " You cannot dope in sports alone. All athletes know that. You cannot beat the system without good science and "good" doctors. And if you go it alone, you are likely to die. The USADA understands this. You should understand their case better. It is not just against Lance: it is the first major expose of how athletes actually dope and pass tests.

      Justice is not a point system. If you go to court for shooting a cop, no one is going to be interested in how much money you gave to LiveStrong or how many times you helped an old lady cross the street. Armstrong is not being investigated for what he did right in life, he is being investigated for a myriad of things he did wrong. You can still be a fan of the guy if you want, but you should at least know what he is so desperate to hide.

      One does question if LiveStrong spending huge sums of money to stop the USADA from doing its work is legal. Why did they not do it in broad daylight? And why did they try to hide it? In any event, it is certainly hugely unethical. People don't give their money to a cancer organization for them to promote cancer. The USADA has welcomed the challenge by Congressman Sensorbrenner to open its books. Are Lance Armstrong and the Lance Armstrong Foundation (LiveStrong) also willing to do so? Can we see all the payments made to Ferrarri, Bruyneel, Washington PR people and lobbyists, USA Cycling, UCI, Ironman?

    8. With regard to "fundamental fairness". If I was Armstrong's lawyer I would advise him to begin telling the truth now. I would not recommend the course of action he is going down. Lying to a sports association is one thing; lying in federal court is something else.

      You also need to distinguish the rules and procedures of an association from civil and criminal rules and procedures. You repeat all of Armstrong's arguments, but you seem not to have read the USADA arguments or thought about what this means for athletes generally.

      USADA is investigating based on the rules Armstrong repeatedly agreed to and even openly supported. Floyd Landis made the same arguments as Armstrong about due process, disclosure, evidence, etc. Neither you or any other Armstrong fan ever questioned the USADA procedures then. And you pretend along with Armstrong that he will not be able to see the evidence, present his own evidence, respond to the evidence, examine and question witnesses. This is simply not the case and it is a big smoke screen Armstrong has given to the public - same as what Landis tried.

      Again, Armstrong needs to play by the rules he agreed to, he wanted to see imposed on other athletes, and he even praised. (Don't forget, it was Armstrong's own coach who helped to write the rules.) If you are charged with running a red light, you either pay the ticket or challenge it in court. But you will not see the evidence before making the challenge.

      What you fail to recognize is that Armstrong and a lot of others don't want this evidence ever to see the light of day. That is why they challenge the USADA and have carried out character assaults on so many people in the last few weeks.

      Again I advise you to read the USADA and WADA rules. Read too if you want UCI and USA Cycling rules. And the look at how USADA has applied the rules in the past. USADA bends over backwards to give athletes a fair hearing. Examine the Landis case to see how they gave their own time during the arbitration so Landis could have more time to cross-examine (in futility) witnesses. Or even here with Lance Armstrong. The USADA has responded to his "legal team"'s (they appear to be horrible lawyers) request for evidence, they have allowed Armstrong's legal team more time to file affidavits (more enormous incompetence based on hubris), and they have allowed Morale to accept arbitration after failing to respond on time. And there are many more examples of USADA's fairness.

      The look at what Lance Armstrong considers to be "fundamental fairness" to his past teammates.

      All this "goodness" you speak of Lance Armstrong who has made himself filthy rich through doping simple escapes common sense. How do you possibly explain an American cancer organization sponsoring a Luxembourg professional cycling team with a doper on it and manged by a known doper? And the fact that that team is owned by Lance Armstrong . . . does that make it better?

    9. Finally, the attacks on USADA to save one corrupt athlete will eventually hurt all American athletes. The selfishness of Lance's case and arguments are enormous. Only a very very rich athlete could afford to do what he is doing and, even more, what he proposes is just.

      If the USADA is destroyed and Lance has his way that civil and criminal courts will be used to decide cheating and doping, then other athletes will simply (1) never be able to afford to challenge the findings, and (2) never see an end to years and years of court time. And the cost for the American citizen will be enormous. The end result will be that doping is more rampant, sports less believable, and responsible parents will want their children to be musicians or bankers or scientists - anything but athletics which is likely to get them killed.

      If the UCI (and USA Cycling) has its way for the service of Lance, the US will be kicked out of the Olympics (all US athletes) and many international competitions. Most professional and amateur cyclist know how corrupt the UCI is and hopefully cycling now has a chance to get rid of its own cancer.

      Being a fan of Armstrong and attacking the USADA for doing its job is supporting a huge trail of destruction for one cheater and a bogus cancer organization.

      You should take seriously and try to appreciate the USADA statement. It is not simply anti-Armstrong & Co. It is pro cleanness and "fundamental fairness" in American sports.

    10. Anon,

      A spirited and well thought rebuttal.

      Again, we seem to agree largely in most areas. Like you, I don't like cheaters, and certainly don't want to see anyone hurt.

      I believe we see "free will" differently though. We both agree doing drugs (performance enhancing or not) is illegal, but illegal or not does not stop folks. It's up to the individual to determine not if they are going to break the law, but more importantly do something that is bad (or deadly) for them. Laws don't stop people generally, people stop themselves.

      Regarding cheating sponsors ... I'm not so sure either. I agree with you that if an athlete has a "squeaky clean" reputation, and a sponsor backs that, there is some damage there, but eventually the corporation won't care if the athlete is successful and frankly making them money. Tiger Woods is a good example. Take a look at the landscape of athletes today who have been caught in some scandal, generally (there are always exceptions) things go "back to normal" for them at some point in time after.

      I think I get where your coming from about a sport being pure, and I espouse that theory to a large degree, but there is too much money going around and too much influence for it to be practically true ... sadly.

      I have also thought at times about parallel leagues, one pure, and one "juiced" league. Let them do whatever ... no testing ... no limits. Let them hit the ball to Mars, or go 70MPH uphill ... again they do so on their own accord.

      I have read the allegations, and the USADA is as trumped in one way as Lance is in the other, I think they are equally self serving and they both have to be as the truth lies in the middle somewhere. I understand the conspiratorial nature of the allegations and whom was involved and if proven true they are serious. We agree there. Right now with the procedural issues raised, I am not ready to pass a sentence. But will change opinion based on evidence.

      We agree the the courts are not the most efficient place to deal with this stuff, but I still believe it is the best. Arbitration is slanted, and government is fairly useless. I reflect on the Mitchell report and that whole mess with baseball ... which did nothing for anyone.

      I reflect further on Roger Clemens hearings and how after the testimony he signed autographs for the tribunal ... people have short memories and are more concerned about fame than what's right.

      Right now, to me, the USADA in focusing on Lance is the same. Again, lets say he did it ... what then? Like Lance, the USADA and Mr. Tygart have an agenda that goes beyond cleaning up the world. So again while I applaud the efforts of the USADA to protect young athletes, I don't believe that is the whole deal, and to a degree, IMHO, Mr. Tygart is trading on Lance's fame by making such an effort with this. I mean really, the house is burning down with all the doping going on, and he is trying to put out the shed with a squirt gun.


    11. Granted this would lift the USADA and may result in more funding ... which is a necessary end game for this I believe. I also personally believe that like all of us Mr. Tygart has ambitions beyond the USADA (Congress?) and this particular case is a way to help that happen. Is it for the right reasons, yes, if prosecuted in just fashion, and for me that is in a court of law, not an arbitration.

      Your point about Lance accepting the set of procedures he signed to is particularly good, and jurisdictional issues are a problem for him no doubt, at least with the USADA and US Cycling. UCI is another matter altogether and agree they should not hear the matter. This too was part of the judges line of questioning the other day, and again why I think he will rule on procedure (what system will hear the matter) not the substance. He needs to play by those rules I agree. That said, with sanctions so steep (lifetime ban) it is not unreasonable to seek redress in legitimate venues.

      Your point about the law not being a point system I do directly disagree with. In fact this one shocked me when I went to law school. I figured it was a black/white, you're guilty, you do the punishment. It's not, and I say that even beyond the plea deal that happen in 98% of cases (real stat) so they don't make it to the courts. It is because "the system" is run by people, their emotions, and human foibles. In a twist on you hypothetical, a person enters a home, and is shot by the owner intentionally thinking it is an invader. It turns out to be the owners spouse.

      Murder? Probably not. Manslaughter? Almost certainly. A crime that is prosecuted? Almost never. Why? It is human nature to feel for the person.

      I think the same will be true here.

      Yes, Lance is filthy rich (that's not a crime). Yes, he has used some portion of funds for his defense. But Livestrong serves a legitimate good purpose. To say it does not, I think is throwing out the baby with the bathwater.

      I'd bet if we ask 10 people who have a Livestrong bracelet, or were served by that charity what they thought on the controversy, a majority would have a neutral or positive comment.

      Not saying its right, or that those folks or right, or Lance is innocent, just that's how people may feel.

      Again, I am waiting for the ruling, to see what the next steps are, if any. My salient points are Mr. Tygart stands to gain something here too, and would seem to be spending a disproportionate amount of time on the matter, and (an d I think we agree here) I would like to get past the allegations on both sides, and see the actual evidence.

      That said ... I'm going for a ride.

      Thanks for the comment,

  2. So you can spew this garbage and no one can disagree with you.

    A real Lance fanboy.

    1. All are welcome to disagree and will be posted here if civil Anon.

      And yes, I am a Lance fan particularly for the work he is doing after his cycling career.

      I don't think I am alone in that.

      Thanks for reading,

  3. Ok Peter Kololski, let's play "fundamental fairness".

    If you don't want to post disagreements with your blog, then there will other postings on you.

    You background is a matter of public record. Time to allow the public to make its own decisions.

    1. Post away Anon. Would not be the first time. Please feel free to have the courage to share your identity with us to allow us teh same pleasure.

      You will be happy to note however, I have not doped during my time in MLS or WUSA.

      I often joke about my biological passport being revoked however in my amateur cycling career. Draw your own conclusions.

      Disagree away with what I wrote, understanding that it is opinion, and nothing more.

      Regarding the timing, you clearly have more than me to post stuff at all hours of the day. Sadly as I don't, I will get to the civil comments when I can.

      All others will be treated in kind.


  4. “In this world, shipmates, sin that pays its way can travel freely and without a passport; whereas Virtue, if a pauper, is stopped at all frontiers.”

    ― Herman Melville, "Moby Dick"