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Armstrong's Coda Through a Legal Prism

Written by: Kelly Burns Gallagher
Date: Fri Aug 24 2012

As all the world now knows, after having his legal arguments against arbitration dismissed by Judge Sam Sparks in the Western District of Texas (who verbally spanked both parties for their behavior), Lance Armstrong has decided to forgo a USADA anti-doping hearing and accept sanctions, which will include a life time ban and forfeiture of his seven Tour de France titles.  I think a commenter on my FaceBook feed sums up the currently prevailing sentiment nicely:
"Not sure how I feel about this. On one hand, he has been possibly the most tested athlete in the World and passed all of those test[s], but yet he gives up the fight. I understand wanting to move on, but I also know that if I were innocent, I would fight this to my death. It is hard for me to believe that someone as competitive as him would give up, unless there is something to it. It is sad no matter how you look at it or what you believe."
I know Armstrong felt the arbitration process and subsequent appeals process to the Committee on Arbitration for Sport (CAS) was unfair and unconstitutional (contrary to these assertions, Judge Sparks ruled that USADA arbitration met constitutional and common law due process requirements) but Armstrong has a fantastic legal team and USADA would still have several legal hurdles to overcome.  I'm a little floored that Armstrong folded while he still had outs—specifically, the eight year statute of limitations in the World Anti-Doping Agency (WADA) Code.  Article 17 of the WADA Code states:
No action may be commenced against an Athlete or other Person for an anti-doping rule violation contained in the Code unless such action is commenced within eight (8) years from the date the violation is asserted to have occurred.
A plain reading of Article 17 would prevent USADA from bringing an action, even in arbitration, against Armstrong for the period of 1999 through 2004.  In fact Armstrong makes reference to the eight year statute of limitations in his statement of August 23, 2012 , "I am a retired cyclist, yet USADA has lodged charges over 17 years old despite its own 8-year limitation."  There is one, and only one, arbitration decision that permitted USADA to toll (to delay, suspend or hold off the effect of a statute) the statute of limitation in Article 17.  In the case of Eddy Hellebuyck (you can see a more in depth discussion of the case here), the arbitration panel determined that in cases in which "fraudulent concealment" such as perjury exists, the USADA can toll the statute of limitations.  With the Hellebuyck case, Hellebuyck admitted that he lied to an arbitration panel in 2004 and also admitted that he had in fact doped, contrary to the assertions in his prior testimony.  With Armstrong, USADA would have to argue that the arbitration panel should follow the Hellebuyck decision (the decision of a different arbitration panel is advisory, it does not create precedent or stare decisis) and would have to prove that committed fraudulent concealment that prevented USADA from discovering his alleged violations until now.
In addition, Armstrong's decision is confusing because it states that "[w]e have a lot of work to do and I'm looking forward to an end to this pointless distraction," yet arbitration hearings will go forward and evidence will be presented even with Armstrong's decision to forgo arbitration.  On July 14, 2012, Johan Bruyneel, former US Postal and Discovery directeur sportif when Armstrong won his seven Tour de France titles,  informed USADA that he would go forward with the arbitration process.  The allegations against Bruyneel, including conspiracy to promote doping, are very similar to the allegations against Armstrong and will likely involve the same evidence and the same testimony from the same witnesses.  While Armstrong will not be participating in the arbitration proceedings, he will likely continue to be the center of attention in Bruyneel's hearing.  Armstrong's decision to accept USADA's sanctions without an arbitration hearing will not end the media circus, it only creates additional speculation.  Given Armstrong and Bruyneel's close relationship, it will be interesting to see if Bruyneel continues to pursue arbitration or is he also agrees to accept a life time ban.

  

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