The US Anti-Doping Agency has come out with a strong response to a letter from twenty-three California state senators calling for a comprehensive review of the agency, the anti-doping organisation saying that it provides full rights of due process and pointing to a recent federal court decision verifying that point.
On Tuesday the two dozen state senators asked US senators Dianne Feinstein and Barbara Boxer to push for an examination of USADA. The letter doesn’t name Lance Armstrong but is almost certainly referring to him, in that it speaks of ‘USADA's unilateral changes in rules for dealing with athletes who have never failed a drug test.’
Armstrong used this claim throughout the US Postal Service investigation, with his PR and legal teams insisting he had passed 500 tests without failing one.
USADA has however queried this number with his lawyers. In addition, the American tested positive for a corticosteroid in 1999, but was not punished due to a doctor’s exemption, later claimed to be backdated. [Editor’s note: retroactive tests carried out in 2005 appeared to show EPO use had occurred in 1999, but the UCI ruled no action could be taken as it said normal testing procedures had not been followed. The USADA case against Armstrong also includes allegations a 2001 positive for EPO was covered up.]
The letter begins by requesting the two senators to ‘call upon the Office of National Drug Control Policy and the appropriate oversight committees of the United States Congress to conduct a comprehensive review of the organisation.’
It continues thus:
The USADA, which receives a majority of its funding from taxpayer dollars through the Office of National Drug Control Policy at the White House, claims to have the power to discipline athletes from all over the world and revoke athletic championships won both in the United States and internationally. Without the authorization of the United States Congress, the USADA has unilaterally changed the rules by which athletes who have never failed a test are prosecuted. Additionally, USADA’s new, self-imposed rules do not provide athletes appropriate due process rights which all other Americans enjoy.
The United States was founded under the fundamental premise that everyone has the due process right to be presumed innocent until proven guilty in a court of law. To that end, we respectfully request that you call upon The Office of National Drug Control Policy and the appropriate oversight committees of the United States Congress to develop appropriate constitutional protections and conduct a comprehensive review of USADA's operations and finances, with special attention to USADA's unilateral changes in rules for dealing with athletes who have never failed a drug test.
It concludes by arguing that:
Rules governing the USADA should be modelled after the United States Constitution, which would never permit a prosecutor to be judge and jury. Additionally, no punitive action of any kind should be taken by USADA unless clear and convincing evidence determines guilt and the athlete is afforded his or her due process rights.
The due process claim is central to the complaint but is one which appears difficult to uphold: in early July Armstrong appealed to a Texas federal courts on these same grounds, but the final ruling there was clear that his argument was not valid.
“On balance, the Court finds the USADA arbitration rules, which largely follow those of the American Arbitration Association, are sufficiently robust to satisfy the requirements of due process,” said Judge Sam Sparks in his final ruling on August 20th. He added that having the right to appeal to the Court of Arbitration for Sport and then the Swiss courts gave ample opportunity for further consideration.
As regards the argument that ‘no punitive action of any kind should be taken by USADA unless clear and convincing evidence determines guilt,’ the petition to the two senators doesn’t acknowledge that Armstrong himself waived the right to a hearing, thus stopping that process right in its tracks.
Ironically Tim Herman, one of Armstrong’s own lawyers, worked on the USADA rules when they were being drawn up. The agency is a signatory to the WADA code and follows those guidelines.
Response to letter:
Contacted today by VeloNation, USADA insisted that the complaint against it didn’t stack up. “We look forward to answering any question these state representatives have about the Congressionally-mandated process that was approved by athletes, the United States Olympic Committee and all U.S. sport federations,” said its CEO Travis Tygart. “[It] has protected the rights of clean athletes for over a decade, has been used in approximately four hundred cases – twenty percent of which have not involved a traditional positive test -- and which the federal judge, after rejecting Mr. Armstrong's complaints, confirmed provides full Constitutional Due Process to all athletes accused of doping violations."
Armstrong surprised many when on August 23rd he announced he would not fight USADA’s charges against him. It had been made clear to him beforehand that he would face full sanctions if he did not go to arbitration, but he walked away. The following day USADA handed him a lifetime ban and stripped his results from August 1st 1998 onwards.
Both the UCI and WADA have requested a reasoned decision [details of the evidence and the judgement] from USADA, and have a right of appeal to the Court of Arbitration for Sport. The dossier is currently being compiled and will be presented in the next one to two weeks.
Evidence will also be made public at that time.
As regards the senatorial push, it remains to be seen if it will gain traction or peter out, particularly when the full evidence is released.
Political elements in defence:
Armstrong’s legal team includes several people with political connections, including Bill Clinton’s former White House lawyer Mark Fabiani. He and others came on board when Armstrong was being investigated by federal agents, including BALCO chief investigator Jeff Novitsky.
In February that enquiry was dropped by US Attorney André Birotte Jr. The move stunned federal investigators, who felt they had a strong case and who were given just fifteen minutes’ notice.
USADA then started its own investigation, with different procedures and regulations tied into that. Doping is not currently illegal under US federal law but is banned under the WADA Code and USADA regulations.
In July a spokesman for the New York Democrat José Serrano said that his office was visited by a Livestrong lobbyist, who complained about USADA and the fairness of the process.
Serrano sits on the House Appropriations Committee, which is partly responsible controlling the budget of the Office of National Drug Control Policy, which in turn supplies approximately two thirds of USADA’s annual $15 million budget.
Earlier that month, Wisconsin Republican Jim Sensenbrenner protested USADA’s case to the same Office of National Drug Control Policy. His office insisted that it was acting independently of Armstrong’s legal team, although the language of his complaint closely mirrored that used by Armstrong’s legal team in previous documents.
One day later, Republican senator and former presidential candidate John McCain declared his support for USADA, saying that the process was the proper forum to decide matters concerning individual cases of alleged doping violations.
“USADA’s rules and processes, approved by America’s athletes, the United States Olympic Committee and all U.S. sport federations, apply to all athletes regardless of their public profile or success in sport,” he stated.