Absent Due Process, Lance Armstrong Ends His Fight With the USADA

  On June 12, 2012, the U.S. Anti-Doping Agency (USADA) notified Lance Armstrong that it had opened a formal action against him for violating anti-doping rules from 1998 through the present.  This notification followed the Department of Justice’s decision to drop its federal investigation against Armstrong in February.  To the surprise of his fans worldwide, Armstrong conceded his guilt.

In response, the USADA reported that it would strip Armstrong of his seven Tour de France titles and impose a lifetime ban from any sport that recognizes the World Anti-Doping Code.  In a recent statement to Newsweek, Armstrong explained that for the sake of his own mental health, his family, his foundation, and the sport of cycling, he could not continue to battle the charges that had been brought against him.  These charges included conspiracy to commit multiple alleged doping offenses over a 14-year period.

Many are disappointed in Armstrong’s decision not to submit to arbitration.  Others, like me, cannot blame Armstrong for wanting to move forward.  On August 24, 2012, Forbes quoted Lance Armstrong as saying, “If I thought for one moment that by participating in USADA’s process, I could confront these allegations in a fair setting and – once and for all – put these charges to rest, I would jump at the chance.  But I refuse to participate in a process that is so one-sided and unfair.”

Although Lance Armstrong is willing to relinquish his Tour de France titles, The International Cycling Union (UCI), pro cycling’s international governing body, is not ready to strip Armstrong of his titles just yet.  The UCI has demanded a reasoned decision from the USADA before it comments further.

Regardless of Armstrong’s concession to the USADA and the ultimate outcome in the investigations, Americans will forever revere him for his courage in battling and surviving testicular cancer and for establishing the Lance Armstrong Foundation, known for its powerful brand LIVESTRONG.

Armstrong makes a memorable cameo appearance in the movie Dodgeball: A True Underdog Story.  Armstrong approaches Vince Vaughn’s character, Peter LaFleur, after he has decided not to compete in the dodge ball championship game.  Armstrong remarks, “Quit?  You know once I was thinking about quitting when I was diagnosed with brain, lung, and testicular cancer all at the same time, but with the love and support of my friends and family, I got back on the bike, and I won the Tour de France 7 times in a row, but I’m sure you have a good reason to quit . . . Well I guess if a person never quit when the going got tough, they wouldn’t have anything to regret for the rest of their life.”

Armstrong’s role in the film is how one imagines he would be in reality—down-to-earth, amiable, and inspirational to fellow athletes.  Although we may never really know if Armstrong used performance-enhancing drugs, his guilt or innocence hardly matters because he remains an American hero.  Despite his concession of guilt, Armstrong is not a quitter.  He has simply articulated that his health and happiness are more important than fighting the USADA charges.  Buzz Bissinger at Newsweek stated, “I still believe in Lance Armstrong.  I believe his decision had nothing to do with fear of being found guilty in a public setting before an arbitration panel, but the emotional and mental toll of years and years of fighting charges that have never been officially substantiated—despite stemming all the way back to 1999.”

Over Armstrong’s career, he has been tested over 500 times, but has never failed a drug test.  Nevertheless, the USADA opened the formal action against him, basing its allegations solely on witness testimony.  The fact that the USADA uses its own special arbitration procedures is even more concerning than the action having been opened in the first place.

Many aspects of arbitration work to the detriment of accused athletes.  At the arbitration hearing, witnesses can refuse to be cross-examined and are not required to testify in person.  If Armstrong submitted to USADA arbitration, he would have the burden of rebutting testimony by witnesses that he could not even cross-examine.  The USADA never revealed the identity of its witnesses, and Armstrong was never able to view the evidence against him.

Another detriment to athletes is that arbitrators are not chosen pursuant to election procedures provided by the Federal Arbitration Act, which works to ensure neutral arbitration.  Therefore, the arbitration hearing could be skewed against Armstrong before the hearing even begins.  If the hearing resulted in a ruling against Armstrong, the only judicial review permitted would be in Switzerland rather than the United States.

To say that these procedures are less than ideal for accused athletes would be an understatement.  Journalists and politicians have made comments reflecting their bewilderment at the absence of due process throughout USADA arbitration.  In speaking about the action against Armstrong, Rick Reilly at ESPN commented, “It might as well have been a firing squad.  It was that one-sided.”  Michael Hiltzik, columnist at the Los Angeles Times, remarked, “the anti-doping system claiming its highest-profile quarry ever is the most thoroughly one-sided and dishonest legal regime anywhere in the world this side of Beijing.”

Congressman Jim Sensenbrenner (R-WI) has also spoken up regarding his concerns in holding the USADA accountable.  On July 12, 2012, Sensenbrenner wrote the director of the Office of National Drug Control Policy (ONDCP), requesting responses to several questions including, “As the primary coordinator of drug testing and control within the administration, were you briefed on DOJ’s investigation of Lance Armstrong?  If so, do you believe it was a complete, unbiased investigation?” and “Do you approve or condone USADA conducting a follow-up investigation of the same issues that DOJ has already investigated?”

Director R. Gil Kerlikowske’s responded, “[I]t would be inappropriate for ONDCP to render an opinion regarding USADA’s conduct of a particular individual’s case.”  Congressman Sensenbrenner subsequently released the following statement: “I believe Congress has an interest in ensuring our athletes face clear rules and a fair and straightforward system of testing, and that our taxpayer dollars are used efficiently and appropriately.  I will continue to follow USADA’s activities with interest.”

At this point, we can only hope the USADA will be forced to change its arbitration procedures, and in the future athletes facing charges by the USADA will be able to participate in a fair system, whether at arbitration or at trial.



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About Jaclyn Murphy, Senior Staff Writer (13 Articles)
Jaclyn Murphy served as a Senior Staff Writer for the Campbell Law Observer. She received her Bachelor of Arts degree in Economics from the University of Virginia in 2008. Before pursuing law school, Jaclyn worked as a paralegal for The Lex Group in Richmond, Virginia. During law school, Jaclyn worked as a Research Assistant for Professor Patrick Hetrick, as an intern in the Medicaid and Social Services Division of the Virginia Attorney General's Office, as the pro bono extern at Everett Gaskins Hancock LLP and as an intern at Gordon, Dodson, Gordon & Rowlett in Chesterfield, Virginia. She graduated from Campbell Law School in May 2014.
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