Nine days after Lance Armstrong’s lawyers filed a suit in a federal court in his hometown of Austin, Texas, seeking to prevent the US Anti-Doping Agency’s charges against him, the agency responded with a detailed rejection of the claims.
USADA made a filing to the court yesterday and responded to many of the objections raised by Armstrong’s legal team. The agency is seeking to impose a lifetime ban on the rider, as well as strip him of some or all of his seven Tour de France titles. Armstrong and five others were officially charged with serious doping offences on June 29th. Three of those, namely the doctors Michele Ferrari and Luis Garcia del Moral plus the coach Pepe Marti didn’t contest the charges and were given lifetime bans on July 11th.
Two others, Armstrong’s former team manager Johan Bruyneel and current RadioShack Nissan team doctor Pedro Celaya have said they will contest the charges before a USADA arbitration panel.
USADA said Armstrong can either opt for the latter or accept the charges; however he has taken a third option, specifically trying to overthrow the case via the federal court.
USADA has now responded to that case, asking the federal judge Sam Sparks to dismiss the lawsuit which he indicated he will hear on August 10th.
Previous case saw Armstrong’s then-legal team accept jurisdiction:
The agency’s 19 page motion tackles many of the arguments made, including Armstrong’s claim that USADA has no jurisdiction over him and that the UCI is the only authority that can bring charges.
The agency asserts that jurisdiction over athletes has been ‘repeatedly upheld by courts,” and asks that the Texas court “reject Armstrong's effort to create a new set of rules applicable only to him."
In addition, USADA points out that Armstrong’s then-legal team accepted the agency’s jurisdiction during his 2004-2006 battle against the insurance company SCA Promotions. The Texan was fighting SCA’s withholding of a large bonus payable to him after winning his sixth Tour in 2004. Part of the documents he filed to support him was an affidavit drawn up in agreement between his legal team and then-USADA general counsel Travis T. Tygart, attesting to the fact that Armstrong had failed no tests carried out by USADA up until that time.
That affidavit acknowledged and recognised USADA’s role, including its right to test Armstrong and its position as the testing authority for US sportspeople. “USADA is not subject to the control of the USOC [United States Olympic Committee – ed.] but has contracted with the USOC to administer its entire anti-doping program. The USOC has given USADA full authority to execute a comprehensive national anti-doping program encompassing testing, adjudication, education, and research, and to develop programs, policies, and procedures in each of those areas.”
It added, “all athletes in US Olympic sports, including athlete members of US national governing bodies such as USA Cycling, are subject to the programs of USADA. Because USA Cycling is the US national federation of the Union Cycliste Internationale (UCI), the sport of cycling’s international sanctioning body, all US cyclists including professional cyclists are subject to testing by USADA. To be recognised as a national federation by the UCI and the USCO, USA Cycling is legally required to follow the protocols of USADA.”
Further down, the affidavit asserted Armstrong’s position. “By being a licenced member of USA Cycling, like all licenced members, Mr. Lance Armstrong…has an obligation to participate in the drug testing programs of USADA. Further, since Mr. Armstrong competes internationally and is an elite US cyclist, he is in the USA Cycling/USADA OOC drug testing pool.”
It added that Armstrong was tested twelve times between November 20th 2001 and April 5 2005 and had not tested positive.
USADA’s argument now is that it is impossible for Armstrong’s current legal team to deny jurisdiction when the rider and lawyers representing him accepted it in 2005.
“Armstrong clearly understood he was subject to the USADA Protocol, including its results management and adjudication rules,” it said in yesterday’s motion.
Additional claims rejected:
The documents filed by USADA also tackle thirty arguments raised by Armstrong’s current legal team in its motion to dismiss the agency’s charges.
USADA deals with these one at a time, laying out what it terms ‘allegations’ and ‘corrections. Some of the points are:
3. Claim: ‘Throughout his twenty-plus year professional career, Mr. Armstrong has been subjected to 500 to 600 tests without a single positive test.’
Correction: ‘USADA has requested that Armstrong’s counsel provide USADA the factual basis for this claim and Armstrong’s counsel has, to date, refused.’
4. Claim: ‘These agencies have tested for substances professional athletes are banned from using, including erythropoietin (EPO), anabolic steroids and testosterone.’
Correction: ‘The vast majority of tests conducted on Mr. Armstrong are unlikely to have been tested for EPO or anabolic steroids. Most of the tests on Mr. Armstrong are blood testes which are not typically direct tests for the presence of prohibited substances. Moreover, EPO testing of urine samples requires move expensive special testing that is not performed on a majority of urine samples collected.’
6. Claim: ‘Prior to his retirement, Mr. Armstrong was eligible to compete in sanctioned cycling events through yearly international licences he obtained from the UCI.’
Correction: ‘The annual licence applications made by Armstrong were both submitted to USA Cycling and relied upon by both USA Cycling and the UCI.’
8. Claim: ‘Defendants have no agreement to arbitrate these disciplinary proceedings with Mr. Armstrong.’
Correction: ‘Mr. Armstrong has an obligation independent of the UCI ADR to arbitrate these disciplinary proceedings under the USA Cycling and USA Triathlon rules to which he agreed and which obligate him to the USADA Protocol and arbitration under the USADA Protocol. Mr. Armstrong has an obligation independent of the UCI ADR to arbitrate under the USOC National Anti-Doping Policies which obligate members and licensees of USA Cycling and USA Triathlon, and members of the USADA RTP to the USADA Protocol and arbitration under the USADA Protocol.
Mr Armstrong is also obligated to arbitrate with USADA under the USADA Protocol by the UCI ADR which provides that ‘if an anti-doping violation where no Sample collection is involved is discovered by another Anti-Doping Organisation, the anti-doping rules of that Anti-Doping Organisation shall apply.’
9. Claim: ‘Mr Armstrong’s licence agreements with UCI prior to 2004 made no reference to USADA’
Correction: ‘Mr Armstrong did not have licence agreements exclusively with UCI. Mr Armstrong’s licence applications were always made to USA Cycling and made him subject to USA Cycling rules. From at least 2001 USA Cycling rules referenced the obligations of USA Cycling members to USADA and the applicability of the USADA Protocol.
10. Claim: ‘The charges contravene USADA’s statute of limitations’
Correction: ‘As indicated in USADA’s letters to Mr Armstrong, the eight year statute of limitations found in the World Anti-Doping Code may be tolled by wrongful conduct such as fraudulent concealment and perjury. In any case, USADA has plainly alleged anti-doping rule violations within the eight year period since USADA’s letters.’
Many other claims and corrections are illustrated in the document, which can be found here. The 2005 affidavit between Tygart and Armstrong's-then lawyers are here, plus the case filed yesterday.
USADA CEO Tygart reiterated yesterday that the agency was determined to push on with its action. "No matter how famous or anonymous, we will treat each alleged offender the same,” he said. “Were we not to bring this case, we would be complicit in covering up evidence of doping, and failing to do our job.”
Judge Sparks will now consider USADA’s motion to dismiss.
If he does reject Armstrong’s lawsuit, USADA has said that Armstrong must inform the agency by August 13th whether he will contest the doping charges before an independent arbitration panel or if he will accept the sanctions.