Mark,
Since you're a lawyer I was hoping for some more technical illumination upon the matter. Why is it, you think, that Mr Armstrong has not proceeded with contesting an administrative charge when he has so vigorously defended all charges in the past?

The USADA has failed to present any substantial evidence that Armstrong has taken banned substances. In all other jurisdictions the alleged offender would be a no brainer NOT GUILTY decision.

Jack,
USADA has failed to present the evidence to you. As you take no part in the administrative process, this is right. You, like me, will have to wait to see how this plays out and see what the evidence that USADA are holding close to their chest actually is. In the meantime perhaps we should not pole vault to conclusions that this is some grubby underhand process designed to lop off the head of some tall poppy. I'll remind you that Mr Armstrong was perfectly capable of contesting USADAs position but declined to do so. He is not guilty of anything, but he has declined to contest assertions of his guilt.

Hi Sean

You mentioned "...I'll remind you that Mr Armstrong was perfectly capable of contesting USADAs position but declined to do so. He is not guilty of anything, but he has declined to contest assertions of his guilt...."

While I agree with most of the points you have raised in this and other posts on the matter, I think it is presumptive for anyone to assume that an individual's decision to pursue or not pursue a case through the legal system is an indication of guilt or otherwise.

As elaborated in my other post, ultimately the cost-benefit of heading down a potentially lose-lose situation needs to be assessed. The public's (myself included) interest in knowing the facts from both perspective is unlikely to be a factor that sways either party (especially the defendant's) in the decision making process.

Moreover, one should consider that Armstrong has already retired from his sport, and as his press statement indicates, he is at present more concerned with his other philanthropic work and work with cancer survivors.

In my other post, I mentioned that the only real winner from this whole saga are the paparazzi, tabloids and media. I should also add that by proceeding to challenge this case in the courts, which will likely extend for many years through appeal on the losing side, the lawyers are another group that will (financially) benefit.

Armstrong would be (and is) wise in heeding the cautionary tale of other athletes: see for example -
http://www.usatoday.com/sports/olympics/summer/track/2007-06-25-marion-jones_N.htm

Whether Armstrong is guilty or not, I feel that it is a sad day for the sport of cycling, for the anti-doping movement (by seeding even greater division between athletes and anti-doping organisations), and also for millions of cancer sufferers/survivors who have used him as a motivational inspiration to fight their disease.

Sometimes it helps to step back from the academic debate on the details and look at the big picture. As per my suggestion for Armstrong's next book: It's Not About the Right - My Journey through the Strife

Ben, the crucial difference between the case you cited is that Marion Jones was guilty of cheating yet she fought the charges, Lance Armstrong, one of the fiercest competitors of all time, is self-confessedly innocent but he is not fighting the charges.

I cannot fault what you say in a technical and legal sense.

However IF I was innocent AND a group of my ex-team mates, for whatever reason, conspired to slander me and report me for cheating AND my stellar sporting record, my income and my reputation were dependent on this AND this were bound to have a significant impact on my current philanthropic and counselling work which I enjoy very much, then I would fight it tooth and nail. I understand the point made about the arduous, costly and time-consuming nature of contesting the charges, but I would feel I simply had no choice.

Whereas IF I were guilty, I would do exactly what Lance Armstrong is doing. I would cut my losses and vacate the field. This is the best possible outcome that I could hope for. It will be decided in my absence and the toss will always be argued because of my absence.

Of course it is conjecture and probability, and, now, it will always remain so.

Hi Doug,

Good points and all with merit. However, for the purpose of academic discourse here's my thoughts:

You mentioned "... IF I was innocent AND a group of my ex-team mates, for whatever reason, conspired to slander me and report me for cheating....[I will legally defend my case]"

In my opinion, I think the issue of asserting a right needs to be balanced against the cost-benefit of proceeding through the legal route.

Taking a different but equivalent context of defamation (paraphrased here for making my point): It is my understanding that under most western legal systems, defamation is defined as the publication of any false imputation concerning a person, by which
(a) the reputation of that person is likely to be injured or
(b) he is likely to be injured in his profession or trade or
(c) other persons are likely to be induced to shun, avoid, ridicule or despise him.

Publication of defamatory matter can be by
(a) spoken words or audible sound or
(b) words intended to be read by sight or touch or
(c) signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.

My understanding is that the problem is that if a person thinks that he has been defamed, he needs to take the publisher to court, and also need to prove that three of these things have happened:

(a) That the words were capable of a defamatory meaning as understood by ordinary members of society. Defamatory meaning could be anything which harms the person, in their reputation, their business or in the way other people treat them. The law does not say that the plaintiff must show actual proof of being harmed; it is enough that the false statement could have led to harm.

(b) That the words identify him as the person defamed. It is not necessary that he should have been specifically named. If he can show the court that a reasonable person would take the words to refer to him, he will probably have a good case.

(c) That the words or pictures have been published, that is heard or seen by a third person. There is no civil defamation if the words, however bad or untrue, are spoken or written only to the person about whom they are made.

But I feel that is just the theoretical basics and academic. In my opinion, the practical reality is that the financial costs involved in initiating a legal case is substantial, possibly running into half a million dollars in administrative/ legal costs for a simple case. Depending on the type of insurance an individual (athlete, professional) has, it may also not be covered by their insurance.

Once a case is filed, my understanding is that the plaintiff is also committed to seeing through the whole legal process to the end or risk incurring/paying costs of both parties and the courts for premature withdrawal. Also if the plaintiff loses the case, my understanding is that he risks being counter-sued for damages.

As I understand, the legal suit process can also be a lengthy one and has a severe emotional toll in addition to the financial one. That is why anecdotal experience suggests that many individuals choose to settle issues out of court and do not proceed with a defamation suit.

In my opinion, the legal system is not about moral right or wrong. I feel that sometimes it is also not about the facts (if it is a jury case) but rather on the delimited information provided and the framing of that information by the opposing parties.

I think that if the issue is onerous for the plaintiff in the civil system, it is probably even more difficult for athletes within the anti-doping context. The literature suggets that the lex sportiva is disadvantageous for athletes and they wear (in my opinion) an unnecessary burden of proof in any anti-doping case. The issues are also often complex with various limitations of jurisdiction for different aspect of sports and the law.

You mentioned "... AND my stellar sporting record, my income and my reputation were dependent on this AND this were bound to have a significant impact on my current philanthropic and counselling work which I enjoy very much, then I would fight it tooth and nail..."

No one has a crystal ball in predicting the impact on finance, social work, and reputation by proceeding or withdrawing from the legal defence. So yes, if the benefit for proceeding with a case outweighs the costs (financial, emotional, public goodwill, image, and otherwise) then it may be a reason to proceed (assuming that financial funds are not a limitation). No one except Armstrong himself would be best placed to weigh those costs. Bearing in mind the legal difficultly discussed above, the public goodwill, and his current retired/matyr status needs to be factored into consideration.

You finally mentioned "...I understand the point made about the arduous, costly and time-consuming nature of contesting the charges, but I would feel I simply had no choice..."

I think you may feel differently if you had personally experienced a situation whereby someone had defamed you and you sought (sensible) legal advice on how you should proceed. Indignation and pride must sometimes give way to practicality and costs. If someone slaps you on the cheek, sometimes it may just be prudent to simply walk away...

Hi Sean

Thank you for your comments.

You mentioned <... In respect to the question of presumptive guilt, USADA have made allegations against Armstrong of conspiracy and doping: essentially finding him guilty by doing so (via administrative process)...>

Yes that is the USADA perception and interpretation of the anti-doping Code based on the information they have. In court, both parties will be able to argue their interpretation of the Code from their own perspective and framing of the information they have.

In law, it is ultimately the judge (or jury) that decides which party's perspective to adopt. It is up to each party to provide their most convincing interpretation to the judge. But ultimately it is for the judge to decide.

Obviously, one party (the plaintiff) needs to have enough information to provide a "credible"/"reasonable" case to initiate/proceed in court or risk it being dismissed before trial.

In the end the legal system is still a subjective one based on interpretation. There will always be opposing perspective, and that is the nature of human social systems. There will also be different threshold when considering the opposing views: e.g. balance of probability versus beyond a reasonable doubt.

You mentioned "...It is not Armstrong's lack of contestation that determines his guilt [sic] it is USADA's decision based upon the evidence that they have gathered...".

I disagree. USADA's decision to proceed is based on their interpretation of the law/Code based on the information (not "evidence" or "fact" in the technical sense) they have. It is up to the courts to decide which information can be admitted as evidence. Evidence is also not Fact (truths that can be proven).

Guilty and innocence is also a judgment of the courts not by USADA, Armstrong or the public. Everyone can have an opinion. It is the courts that hears both side of the argument and determines which interpretation is accepted; and hence if a defendant is "innocent or guilty" by the strict interpretation of the law.

You mentioned "...Armstrong not contesting does not make the evidence go away..."
USADA not being able to contest Armstrong statements/ information provided in his press statement also does not make Armstrong's "evidence" go away. Until it is determined in the court, both sides of information are potentially equal and valid until proven otherwise.

You mentioned "...Just because we are not privy to the evidence does not mean that we can't infer guilt or otherwise, depending upon one's inclination..."

Yes, it is every individual's prerogative to judge another and infer innocence or guilt. Unfortunately that is the court of public opinion and not the law. For example it is the right for every Australian to judge a politician's guilt or innocence for human rights violation in treating the asylum boat people, but that does not make the politician guilty or innocent either way. Everyone has a right of perception and opinion, but that right does not override the right of another until the court says so. Until a judgement of the court is made, everything is just an opinion, educated or otherwise.

You mentioned "...In respect to Armstrong having retired, he has not. He was, up until USADAs findings, been racing as a professional triathlete..."
The comment was made in reference and context that since Armstrong has decided to retire, it would make less sense to proceed with the legal battle, all other factors considering (see also my further comments to Doug above).

In response to the comments "...and findings in respect to his earler career in cycling are germane to this sport, as they are covered by USADA also. What's more, the accusations of conspiracy go back to the 2000s, a serious charge that includes intimidation and coercion of witnesses - I would think certainly worth pursuing, particularly as the sport itself is implicated..."

The decision to proceed or withdraw in the Armstrong case is based on a cost-benefit analysis (not just financial costs) that can only be weighed in by Armstrong himself based on the (sensible) legal advice he has received. The larger battle of the cycling sport itself is beyond the scope of Armstrong's specific case.

You mentioned "...As to Mr Armstrong's cancer charity, this is an admirable and meritorious endeavour that is completely irrelevant to the subject in question..."

I disagree. It is my opinion that any decision that Armstrong makes in relation to whether to proceed or withdraw would presumably include, inter alia, his philanthropic/ cancer work. In Armstrong's own press statement, these non-cycling work was also cited as reasons factored into consideration. The primary question/theme in this forum is "Armstrong's decision to proceed/withdraw from the USADA case". All factors potentially relevant to that decision making process is therefore valid and credible.

Finally you ask "...As to your presumed title of Armstrong's next book: I'm baffled - are you inferring that 'the Right' does not matter in respect to mr Armstrong?..."

Yes.
Mind over Matter. If you don't mind, it don't matter.

Good points, I'm sure we'll continue to disagree... I'm still baffled by your last point- you give the impression that Armstrong is beyond Right, that is, he is beyond questions of right or wron.. I'm assuming that this is something you impute that he believes of himself, not something that it is to be thought about him by others....

Ben, I can't disagree with you about the trauma, emotional and financial, involved in being involved in a court action. Only a fool would embark on this course frivolously, needlessly and/or without advice. And it is a truism often observed that our legal system, while it adjudicates the law, it often serves justice less well.

However we are not talking about whether someone should pursue a court case against their neighbor who called them an idiot down at the pub. We are talking about a world class athlete, and household name, whose whole commercial, brand and emblematic worth post-sport is prefaced upon him not having cheated. Such an accusation, could cause him huge harm not only financially, but reputation-wise. It clearly satisfies all of the defamation criteria you have quoted above in terms of damage to reputation, injury to profession/trade, inviting the derision of others etc. If he is innocent, this should be a no-brainer and I can't imagine any lawyer and/or manager advising him otherwise.

If someone slaps you on the cheek it may indeed be prudent to walk away in certain circumstances. However if someone threatens to strip you of all the awards you have won over a sporting lifetime, cause very lucrative sponsorship deals to be withdrawn, blacken your reputation to such an extent that you are forever tarred as a drug cheat, and shred your worth as a symbol of sportsmanship and excellence (upon which your post-sports career is largely prefaced) then I feel that it significantly tilts the scale towards taking action and defending yourself. If you are innocent of course.

Now perhaps there are extenuating personal circumstances involved in Armstrong choosing not to defend the allegations against him. And he has simply chosen not to make them public. However, in every other way, to simply walk away from the devastation these allegations are bound to wreak on his sporting and personal heritage, and his post-sport career, is so incongruous with the fierce competitiveness and fighting spirit that has characterised Armstrong's career, that it beggars belief.

I am not inferring, or intend to give the impression, that Armstrong is beyond Right (or wrong). Everyone has the prerogative to question in favour or against Armstrong. It simply to show that right or wrong way not matter in the end.

In Armstrong's first book, he titled it "It's not about the Bike": The binding theme throughout the book was that Armstrong's determination was not about cycling or continuing to compete, rather that it was a practical and tangible goal that he knows how to achieve and where he has used as a motivation factor to beat the unseen and intangible disease of cancer. This is a well known psychological coping tool.

In the proposed title "It's not about the Right": it is a poetic play on the words of his first book; it is also to carry a more serious message and perspective that at the end of the day, the public and the press will believe what they may, rightly or wrongly, and the "facts" (or the framing and the portrayal of the information) may have nothing to do with that stance.

At the end of the day, each individual will have a perspective of the world, and perceives how the world sees him/her. Armstrong is no different. Differences of perspectives exists, but none is more "valid" than another, just more widely (or less widely) accepted.

Ben,
I see your what you meant, I do disagree fundamentally. I think this is an important time in sports. The 'right' does matter, especially in respect of a role model and a leader in the sport such as Armstrong. No-one expects our top athletes to be angels, we just want them to fight fair. Irrespective of whether this is just public opinion or contested as matters of fact in a court ethical behaviors do matter. This is now in doubt at the top levels of cycling.
Sure, this will go away and 'right or wrong way (sic) not matter in the end' but it does matter, otherwise this is just exporting the problem to next year or the year after. Athletes have to know that unethical behaviour will be sanctioned, regardless of when it occurred-ore wise why have the sport regulated at all?

When you refer to the "right" in what context are you referring to? If our terms of reference is in this forum and in the context of what Armstrong should or should not decide to do, then as per my earlier posts, what is right or wrong is a matter for Armstrong to decide for himself.

If as your latest post suggest, the terms of reference is the fundamental moral and technical issue of what is right or wrong in doping in sports, either by liberal or strict interpretation of the WADA code and/or various legislations, then I feel it is beyond the scope of the current discussion.

Even if we indulge on this broader scope and fundamental issue of doping itself, there are arguments against your stance. If we want a evidence-based academic discussion that extends beyond the moralistic, indignant, hyperbole, religious fervor, then one should look at the objective information. I will briefly elaborate below.

You mentioned "...I think this is an important time in sports. The 'right' does matter, especially in respect of a role model and a leader in the sport such as Armstrong. No-one expects our top athletes to be angels, we just want them to fight fair. Irrespective of whether this is just public opinion or contested as matters of fact in a court ethical behaviors do matter. This is now in doubt at the top levels of cycling....Athletes have to know that unethical behaviour will be sanctioned, regardless of when it occurred-ore wise why have the sport regulated at all..."

To address your points of "right", fair", and "ethical" and to distill the issue into operational fundamental factors, requires one to first look at the rules as governed by the WADA anti-doping Code ("Code"). I have addressed this in various other published papers and my thesis, but will summarise the few key issues below. In the interest of brevity, the discourse will necessarily be superficial here. Bibliographical reference are available on request.

The Code defines a substance or method as prohibited and considered doping if the WADA determines that the substance or method (WADA Code, 2009, pp. 32-33):

(a)- Medical or other scientific evidence, pharmacological effect, or experience that the substance or method has the potential to enhance or enhances sport performance.

(b)- Medical or other scientific evidence, pharmacological effect, or experience that the use of the substance or method represents an actual or potential health risk to the athlete.

(c)-Determination by the WADA that the use of the substance or method violates the Spirit of Sport

The Spirit of sport is defined as:
-ethics, fair play and honesty;
-health;
-excellence in performance;
-character and education;
-fun and joy;
-teamwork; dedication and commitment;
-respect for rules and laws;
-respect for self and other participants;
-courage;
-community and solidarity.

Health is not necessarily the goal in elite sport. Many athletes push their bodies to extremes, and many athletes compete through injuries.
And while the other factors like ethics, respect, dedication and the rest are probably good idealistic goals to strive for, the reality of it is that in modern day elite level sports, the only thing that probably matters in the spirit of sport is excellence in sporting performance.

No, Ben, to paraphrase you what matters in the business of sport is excellence in sporting performance alone. I disagree fundamentally on your lassaiz faire attitude towards performance enhancement. There are more things that matter in sport than excellence in sporting performance alone... I can't believe that you see no problem with surreptitious use of PEDs so I must have misinterpreted your post. Yes?

No.
It is not a lassaiz faire attitude. It just stating the hypocrisy and inconsistency of application of the Code with respect to PESM use. If we want to stick to the strict interpretation of the Code, be consistent. If pragmatism dictates that inconsistency (e.g. use of technology in sport) is a modern day reality, then at least be honest and true to that fact. Cherry picking what PESM to accept and/or reject satisfy neither camp.

Your post is opaque, are you objecting to technological advances? Training technologies? Nutrition! What are you stating is inconsistent or hypocritical?

I am not sure how you are defining being opaque or transparent.
My responses have merely sought to address the issues you have raised.
It seems your discussion seems to extend further and further away from the original terms of reference. It is hard to address a moving target.

Again, if the terms of reference is on what Armstrong should/should not do, then it is Armstrong's choice and no one else.

If the terms of reference is the rules in sport, then it is beyond the scope of this discussion. I have stated very clearly that this discourse is necessarily superficial in view of the in-depth nature of the topic. Again, the offer of the bibliographic reference is there. It would provide you with the necessary background information in order for a more productive discussion to be had.

With reference to your statement "...are you objecting to technological advances? Training technologies? Nutrition! What are you stating is inconsistent or hypocritical?..."

It would serve as a starting point for you to read up the history of doping in sport, the evolution of the international anti-doping movement, the various case history and legal precedents by the court of arbitartion and the European civil courts, and the biophysiological inconsistencies of some aspect of the Code.

A simple one to start is to look at how caffeine (as a supplement) was accepted, banned, then accepted again. Another one is Actovegin and the application of section M2 of the WADA code. There are numerous other concrete examples in relation to training technologies/techniques, nutrition etc. that shows the inconsistency as well as the case interpretation by the Court of arbitration and civil courts. I do not feel it helpful to respond to further tangential discussion on this as it is going way beyond the scope of the original forum. You are welcomed to a 200+ page discussion/explanation of the topic offline. There is also a draft comment on version 3 of the WADA code provided by various professionals in the field that seeks to address some of these inconsistencies as a way forward.

It's naive to think there will no no inconsistencies in applying the rules of sport- just as in criminal law. There's a difference between a recreational drug like caffeine, a slippery helmet or wetsuit and blood doping or EPO, which is the impression that I gained from your previous post. You are right this conversation is tangential, although apropos.

Lance Armstrong is not contesting the charge, he is denying himself procedural fairness. He is fully able to contest the charge and clear his name if he so wishes.

To state that he is guilty is technically incorrect (as you say, Mark) but stripping him of his victories is correct in the same way that entering no plea entitles a criminal court to convict upon reasonable evidence. The difference being that he is not undergoing a 'trial' of the evidence. But this is not a court of law, sufficient evidence may have been presented to USADA to make administrative judgement based upon their procedural rules. This evidence, and the rules whereby these judgements are made, are obscure. Personally, I agree with fahey and the author, I would like to see the evidence made public in order to clear the matter. However I am personally satisfied of his likely guilt, I cannot think of another reasonable explanation that explains the body of circumstantial and physiological evidence.

"...explains the body of circumstantial and physiological evidence" ?
"I would like to see the evidence made public..."
So would I but you appear to have been given an advance preview. No?

I guess pro cycling has only itself to blame for years of not policing drug use.

There has been plenty of online chatter (and a celebrated question asked at a Wiggins press conference) about the dominating performance of Wiggins and Froome in this year's TDF and other races. Froome it seems has come from nowhere whereas Wiggins at least has a track record of superb performances at the Olympics. Is this "circumstantial" evidence?

Perhaps this is the way it should be - that everyone in professional cycling is considered a drug cheat unless they can prove otherwise. But how do they prove otherwise?

Advance preview? There's this thing called the internet and Lance Armstrong's haematocrit results have been on his website for some months:

http://www.cyclingnews.com/features/analysis-armstrongs-tour-blood-levels-debated

Testimony from colleagues as widely reported in the media:

http://www.abc.net.au/news/2012-08-25/usada-confirms-armstrong-life-ban/4222288

This is what I meant by 'evidence'. What I meant by more evidence is the further physiological data collected from Mr Armstrong's test samples that have not been made available and also the exact testimony from the 12 or so persons who have made testimony against him. This would have been revealed in the arbitration should it have been contested. It doesn't take a genius to work out that this evidence was substantial.

The circumstantial evidence I referred to is the haematocrit results and the testimony of 12 or so colleagues. Circumstantial yes, substantial...yes.
It doesn't infer that cyclists are guilty until proven otherwise, it proves that there is sufficient evidence to state that Mr Armstrong has a case to answer, he has refused to answer.

You are really pissing into the wind Sean.
The ABC article quotes Floyd Landis - sorry Landis is not a credible witness. I watched his "unbelievable" stage 17 2006 TDF ride live on TV (when he was doped up on testosterone). You did not need to be from USADA to guess he was on something.
http://en.wikipedia.org/wiki/Floyd_Landis
You then quote a story which claims Armstrong was doping in 2009 - although "natural factors could possibly be an explanation". Why would he be doping in 2009? That was his come back ride.

USADA's claim to have testimony from former team mates of doping during the period when he was winning the TDF (and doping was widespread in the sport) has much more credibility - but that is the evidence that has not been released.

I understand that Bruyneel is still fighting his case so I would imagine that it will eventually all become public.

Thanks for the ad hom, not very inventive... Please do better next time.

Why would he dope in 2009? The same reasons he would dope at any year. To win.

Flandis' testimony is not likely to be more or less credible than any other, especially now that he has nothing to gain by lying. Which testimony form his previous teammates will you accept?

Sean, I can't agree. This is a difference between not entering a plea and having a court still deliberate, in an open transparent fashion, and what has happened here. If the USADA were to submitt their evidence to proper testing and argue their case to am impartical observer (or judge) who then made an assessment (with or without Mr Armstrongs testimony) I might have a different view. At the moment it appears to be allegation, prosection and conviction without any of the procedural fairness we normally associated with such matters

Oh dear, silly me ... and here's me thinking that the US, UK Australia & all other British based justice systems had a presumption of innocence until the offender is found guilty by a jury of their peers.

No evidence presented at a properly constituted court, so no charges are laid, so Armstrong is innocent until proven guilty ... QED

The USADA is running a witch hunt just like the Australian Carroll case where Queensland Police pursued an alleged offender (accused of murder) through the court system for about 25 years DESPITE 11/11 senior judges finding that the person was innocent.