Tuesday, August 21, 2012

Back to Arbitration?

In a non-suprise of a result, as I opined here in "USADA in trouble on Armstrong?", that Hon. Sam Sparks would rule on procedure, and not on merits.

In his 30 page ruling, that is exactly what he did, and set up the case of the century on jurisdiction between the USADA and UCI, which is likely to wind up in CAS lap later this year.

One aspect that surprised the crap out of me was US Cycling seeming about face in agreeing that UCI should have jurisdiction on the matter, not USADA. This was filed as a late information to the case before Judge Sparks ruled on it August 20.

That said, there was plenty to go around in the ruling for both sides.

The Court indicated in its ruling that it did not want to interfere with an organization that Congress put in place for the express reason that it was acting on. Also any "irreparable harm" that Lance would have suffered as a part of the process was not proven to be there as USADA follows procedures similar to the American Arbitration Association.

The Court was clear this was enough to proceed without due process concerns.

I'll bet Lances' attorneys don't see it that way, particularly in light of the USADA record of 58 wins, 2 losses in arbitration. That's even with each side picking an arbitrator, and agreement on a third for the panel that decides the matter. Strong evidence, or slanted process ... these are the real results the USADA has.

It also does not take into account the very, very relaxed standards of evidence that exist in arbitration as opposed to that in a federal court. I say this knowing that Armstrong's team will at least get to see and cross examine evidence and witnesses in the matter. It is far from a court of law as far as what can be introduced.

Both sides certainly had a bunch to say after the ruling. The USADA heralded the decision as correct and thanked The Court for keeping the US Courts out of the mix, and forcing the matter to arbitration to the USADA, assuming Armstrong's team does not appeal the ruling from The Court, which I do not think it will do.

Armstrong's legal team picked up on a particular damning comment from The Court regarding the USADA promising lesser sanctions to other riders who allegedly doped for their testimony against Armstrong, saying:

"... 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 …"

The Court and I seem to agree on this one.

Even further:

"Despite its many misgivings about USADA's conduct leading up to and during this case, the Court is bound to honor Armstrong's agreement,"

Ouch. Misgivings about conduct?

Throw on top of that Sparks calling the USADA charging letters "woefully inadequate", and I till think the USADA is in deep crap in a court of law ... or CAS.

Now while his comments are not actionable per se, he took the time to make them part of the judicial record, and I would be very surprised if we did not see or hear them again from Armstrong's legal team in the future as part of a disclosure to CAS.

At the end of this, the USADA won the day no question in getting Armstrong to arbitration. I don't think he is going to appeal the ruling as the USADA has never, as in never ever, lost a jurisdictional fight.

If I had to guess, Armstrong's team is going to choose the USADA route, and may even first, seek CAS interference to get the UCI back in the mix so the matter won't even go that far. I am still shocked about US Cycling going with UCI.

I think both parties will fight to the end now. I don't see that either has a choice based on what he has done to date. Whomever loses at the USADA is going to go to CAS.

It's going to make for an interesting off season, that's for sure.

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