Sorry Jack, you're completely incorrect on all counts.

1. USADA's annual budget is less than Armstrong's personal worth, so he's more than able to combat them financially. His manager, Stapleton, and his attorney, Herman, were also involved in drawing up the rules by which USADA operates, rules which Armstrong explicitly agreed to every year as part of obtaining a racing licence.

2. CAS usually rules against athletes simply because anti-doping authorities only bring cases that they're almost certain of winning. For example, to get pinged by the biological passport your blood parameters have to differ from your norm by two standard deviations. And even then it's not guaranteed that a case will be opened against you.

3. The Armstrong criminal case was specifically looking at whether US Govt. money was used to buy drugs. It was not looking only at whether he doped. If Armstrong doped but didn't use US Govt. money, he would still have been found not guilty. Regardless, the case is widely believed to have been shut down due to political pressure. The investigators involved have leaked that they had mountains of evidence and were expecting charges to be laid.

Armstrong took all possible actions to avoid having to go to court, but when he had no choice, after being told by a Federal Judge that the proceedings did NOT interfere with his due process rights, he backed down. He knew he was beaten if he went to court, but this way he can play the PR game and try to win in the court of public opinion.

Donncha,

Might I respectfully recommend that you read two fabulous articles that addresses your points to Jack: Crincoli (2011) and Straubel (2009).

These articles explore in great detail, and in an objective manner with specific case examples, the issue of what athletes agree to with regards to the anti-doping rules, the unnecessary military-style judiciary burden imposed on athletes, and the inconsistencies of application of the WADA Code. Taken in that light, Armstrongs' decision, inter alia other factors unbeknownst to the public, seem prudent.

While your 3 points above seemed tacitly logical on cursory read, closer scrutiny and comparing with objective evidence would suggest that the perspective is flawed: albeit governed by the current mantra of the popular press.

I subscribe to the view that multiple perspectives is possible. However, something backed by logic and tangible evidence tend to be accepted over something based on anecdotal logic.

References:
Crincoli, S. M. (2011). You can only race if you can't win? The curious cases of Oscar Pistorius & Caster Semenya. Texas Review of Entertainment & Sports Law, 12(3), 133-188.
Straubel, M. S. (2009). Lessons from USADA v. Jenkins: You can't win when you beat a monopoly. Pepperdine Dispute Resolution Law Journal, 10, 119-649.

Craig

I feel that using the Hematocrit (or any other endogenous compound) with an artificial threshold is not the answer. This arbitrarily discriminates against individuals with naturally high levels of these endogenous substances (either their natural baseline level or in response to environmental factors e.g. altitude training; both of which naturally selects them to be good in their sport in the first place). The same argument was used for testosterone levels and discriminates against intersex athletes.

My view is that we should perhaps have two category per sport, much like in bodybuilding now: the "natural" sport where athletes adopt a personal code of ethics of being "natural" and relies on self/peer monitoring of conduct; and the "anything goes/ excellence" sport which allows athletes to use whatever means possible to break a record/goal/standard (this group could perhaps one day include Paralympic athletes with orthotics/ prosthetics/ artificial devices when technological advancement of such orthotics/ prosthetics/ artificial devices result in performance gains above the able-bodied athlete).

I couldn't agree with you more on the issue of arbitrary physiological discrimination here. There would surely be naturally blessed people who would almost lose some, or all, of that natural advantage. But that said, we're dealing with people. Much as I like your alternative suggestion -- ie. two categories of sport -- I find it a little unrealistic. There is sure to be someone (probably many more than one) who decide their best chance of winning is to compete in the "natural" category and cheat, and there is no telling how many athletes you could kill in the "anything goes'' category, as cycling demonstrated before the hematocrit.

Hi Kate,

Two questions to be asked of both doping and anti-doping advocates:

First:
"Should Marion Jones have lost her Olympic gold medals and lucrative sponsorships as a result of her doping admission?"

Anti-doping advocates would probably say yes, doping advocates would probably say no.

I would say yes, Marion Jones broke the rules and therefore should not be rewarded with Gold medals and lucrative sponsorships. Doping advocates may argue that everyone was doing it and she passed the test, so she shouldn't be punished.

Second:

"Should Marion Jones have been imprisoned for committing perjury?"

I think the divide between doping advocates and anti-doping advocates on this issue will be less clear.

I note however that the real threat of jail time is a compelling reason for a witness to tell the truth to the court. Marion Jones was aware that she risked jail time when she perjured herself, however her Olympic gold medals and lucrative sponsorships were at stake. She gambled, lost and the court imposed the penalty for perjury. The judge was particularly scathing of her conduct and investigated whether he could impose more time than the prosecution was seeking.

In any event her sentence certainly provided a deterrant factor. It is highly likely that the fate of Marion Jones played a part in the decision by cerrtain witnesses to disclose what they knew in the recent Armstrong investigation.

Hi Oliver,

I will attempt to provide my perspective to your questions to Kate.

With regards to the first question "Should Marion Jones have lost her Olympic gold medals and lucrative sponsorships as a result of her doping admission?"

Although I favour a more evidence-based, and more humanistic process to the issue of anti-doping and fairness in sports, as the current rules apply (and apply at the time of event), the strict interpretation of Jones' case would support the forfeiting of her achievements. Moreover, her admission of guilt complements that stance. The case, and other cases. may serve as learning lessons for future modification of the Code, but should not influence the Code as was applicable during the time of offense.

If Jones' did not agree to the actual application of the Code and the procedural fairness accorded to athletes in the anti-doping appeal process, then the course of action taken should have been different. This course is much like what Armstrong has taken at this stage.

With regards to the second question "Should Marion Jones have been imprisoned for committing perjury?"

The issue is a matter of [criminal] law of the land. This is separate to the original allegations and [potential] violation [of sporting Codes]. The applicable punishment for a violation of the [criminal] law would apply. The views of "doping advocates and anti-doping advocates on this issue" is irrelevant.

Kate,

Under the present provision of the Code (2009), Article 10.5.1 and 10.5.2 allows for mitigating circumstances and for a modification/ reduction of the sanction. This would be the tiered response built into the Code. The problem is the inconsistency (or politically motivated overreaction) of reinforcement. I am not sure how incentives in anti-doping would look like?

The problem with the present Code and anti-doping practice of reinforcement is that it operates on the basis of strict liability. The European courts have, however, recognised that, whilst draconian, is a necessary measure in sport to curb the administrative, financial, and legal costs if the standard of proof was much higher.

I do agree that the present funding and focus of anti-doping by the authorities seemed to bias towards surveillance and not enough on understanding the cause (and adopting evidence-based ameliorating measures stemming from that understanding). This may result in a disproportionate detection of inadvertent dopers. However, that is the present rules of the game and the modus operandi of anti-doping.

Thanks Ben, you have helped clarify my thinking and are certainly knowledgeble in this area.

Do you believe the USADA charges against Lance Armstrong?
If so, how do you think Lance Armstrong should be sanctioned (if at all)?

Hi Oliver

I prefer to reserve judgment on Armstrong until full evidence/ arguments from both sides are heard (in the CAS). To that end, any sanctions cannot be determined until a judgement is made. But both issues would not likely ever happen. Either way, it is sad say for sports and cycling.

Hi Ben,

That is a very prudent response. The current procedures must certainly be deficient if it results in this less than satisfactory outcome.

Assuming the USDA has compelling evidence to support the charges, how could the procedure be amended to ensure that the full evidence/arguments from both sides are heard in a timely fashion before judgment is made?

Hi Oliver,

Good question. But there is no easy answer.

Different countries and various national sports federations and anti-doping organisations have their own judicial process that they follow for alleged doping cases (although all are signatories of the WADA code and are "guided" by it). In part because the legal systems in different countries are different. In some countries, some forms of doping by athletes are criminal offenses and not just administrative/sports-specific offenses with localised consequences.

In addition, because of the international nature of sport (not just the nationality of the athlete, but also the geography of the competition held, and the home base of the sport's parent organisation, e.g. UCI in cycling, FINA for swimming), whether or not a court or organisation has authority or jurisdiction for certain sanctions, judgment and/or charges is also complex. So each case is specific and nuanced.

All this points to is a present (and future trajectory) situation that works against the essence of sport. The etymology of sport means a non-essential form of pleasure utilised by men and women to distract them from the hardships and serious side of daily life. The legal issues surrounding sport and doping is anything but a pleasurable distraction... unless of course the media circus is itself paradoxically THE pleasure and distraction from real life in question!

You may be interested in the on-going saga of the Armstrong case that supports the complexity of the whole issue:

http://www.velonation.com/News/ID/12904/UCI-court-action-sees-Kimmage-summoned-to-appear-before-Swiss-court-in-December.aspx

Hi Ben,

After giving it some thought, I came to the same conclusion. While it would be nice for us as spectators to demand a full trial, I don't see how you can force Lance Armstrong to participate if he doesn't want to. If he wasn't persuaded by the consequences of not defending himself (sanctions and an implicit admission of guilt), I don't think anything short of the threat of jail time would convince him to participate. I am not an advocate for making sports doping a specific criminal offence with associated jail time, let alone threatening jail time for an informed election not to contest charges!

I have come to the conclusion that the most important thing was that Lance Armstrong was given the opportunity to defend himself in a "fair" process. I know that Mr Armstrong has stated his belief that the process was not fair, however when he took that argument to an independent adjudicator (the US District Court in his home town of Austin), Justice Sam Sparks found it had no merit. The 30 page judgment can be found here - https://docs.google.com/file/d/0B92CyI7iP9pqYjNRWURXZ3RIaEk/edit?pli=1. Judge Sparks deals with the question of whether Mr Armstrong would be afforded due process in some detail, and decided that the proposed process was satisfactory.

It seems crazy to me that Lance Armstrong walked away from the opportunity to blast the USADA's arguments to pieces. He is notoriously aggressive and it would have been amazing to see him set loose his lawyers on the line of witnesses in the witness box. If they perjured themselves they would be be facing jail time, much like Marion Jones! Talk about an opportunity to clear your name!!!

Oh well, that will be something we will never get to see. What I bet we do see more of though is actions like the defamation case against Kimmage, moves by US politicians to rein in (or punish) the USADA (
http://www.nytimes.com/2012/09/22/sports/cycling/congressmen-seek-more-oversight-of-us-antidoping-agency.html?_r=0) and lots of press releases to sway the court of public opinion.

HI Oliver,

I think the terms of reference for "due process" as is legally applied in the case filed by Armstrong against USADA in the US District Court is limited with regards to the idea of "fairness" of the whole process of challenging of anti-doping claims. This is captured by Justice Sam Sparks concluding comments (paraphrased here; emphasis by this author):

"...As the Court has indicated, there are troubling aspects of this case, not least of which is USADA' s apparent single-minded determination to force Armstrong to arbitrate the charges against him, in direct conflict with UCI's equally evident desire not to proceed against him. Unfortunately, the appearance of conflict on the part of both organizations creates doubt the charges against Armstrong would receive fair consideration in either forum... As mystifying as USADA's election to proceed at this date and in this manner may be, it is equally perplexing that these three national and international bodies [USA Cycling, UCI, and USADA] apparently unable to work together to accomplish their shared goal - the regulation and promotion of cycling. However, if these bodies wish to damage the image of their sport through bitter infighting, they will have to do so without the involvement of the United States courts.

...For the foregoing reasons, the Court concludes Armstrong agreed to arbitrate with USADA, and its arbitration rules are sufficient, IF APPLIED REASONABLY, to satisfy due process. ...[BUT] whether the USADA arbitrators will apply the rules reasonably if the matter does proceed to arbitration, and whether Armstrong will actually receive a fair hearing, are questions that remain to be answered; but what is certain is that this Court cannot interfere..."

I think the "The Athlete Due Process Protection Act of 2012" submitted by two congressman recently is testament to the public perspective of lack of TRUE "due process" or fairness:
http://www.bloomberg.com/news/2012-09-22/bill-designed-to-strengthen-u-s-anti-doping-agency-s-fair-play.html

The problem in anti-doping cases is the unfair "rules" and unnecessary burden placed on athletes when challenging any claims by the anti-doping agency [See the reference Straubel (2009) provided in another thread of this post. The article can be retrieved from: http://law.pepperdine.edu/dispute-resolution-law-journal/issues/volume-ten/Straubel%20Article.pdf ]

Thanks Ben,

To finish your quote "....but what is certain is that this Court cannot interfere on the basis of speculative injury".

To me, Judge Sparks concluded that the rules are satisfactory.

However, he went on to imply (and I agree) that if (and I emphasise if) the USADA failed to play by those rules it would not be a reasonable process.

We would expect Lance Armstrong's very competent and very well resourced legal team to be all over this aspect of the case, as it would be the basis of any subsequent appeal and fodder for the PR machine.

The magnitude of resources at Mr Armstrong's disposal is one of the many differences to the facts of the Jenkins case. Mr Straubel's criticism of the handling of the Jenkins case included:

1. the length of the process (during which time LaTasha Jenkins was denied the ability to earn income from her participation in sport)
2. difficulty getting copies of laboratory protocols so that test reults could be challenged (discovery)
3. difficulty resourcing a defence
4. presumptions regarding lab results
5. CAS precendents not being readily available
6. lack of committment and/or impartiality of arbitrators
7. no obligation to disclose exculpatory evidence

Considering these criticims in light of the Armstrong proceeding, I think we can quickly knock out 1, 3 and 5 as being irrelevant (eg CAS precedents are now readily available online). 2 and 4 relate to lab results and testing procedures, a point on which the Jenkins case turned but which was of far lesser importance in the Armstrong proceeding. 6 may have been an issue, however I think the visibility of this case would have promoted the appointment of a competent, committed and objective panel. Point 7 Judge Sparks himself dismissed.

I wonder if the proposed bill will attempt to rectify the problem of doping in professional sport by applying a criminal burden of proof to what is, at the moment, essentially a civil matter. If so, I expect the result will be fewer proceedings and subsequently sanctions against athletes, more truthiness and ultimately more doping in contravention of the rules.

Oliver,

I think it is important to realise that there are two separate discussions here: the anti-doping process; Armstring's specific case. While both are obviously related, the first discussion is more a philosophical an academic one from a macro-perspective. The second discussion involves not just the case per se, but also the related issues surround the brand and person of "Lance Armstring". I will discuss this second first in replying to your post.

Lance Armstrong is now bigger than the man himself. Through his inspirational personal story of beating cancer, winning/completing the tour-de-France (with or without performance enhancing substances/methods notwithstanding), and philanthropic work with the anti-cancer charities/foundations, any decision he makes is as much judged by the court of public opinion, as is the court of arbitration (CAS). While winning the battle (of clearing his name at the CAS) is good, but at what cost? Would it ultimately make him lose the war? We do not have all the facts for the case with USADA, nor are we aware as mere voyeuristic public of his personal (e.g. may he have a cancer recurrence?) and business factors/circumstances surrounding his decision to not challenge this case.

I agree that Armstrong would likely be able to afford a very competent and very well resourced legal team (although the Judge Sparks case if read in detail would make one question if they are that competent if not for a potential strategic move, whatever that strategy may be). But that is not the only factor in determining whether to proceed/ not proceed with the case against USADA at the CAS. Nothing such cases, through various appeal processes and potential legal avenues, can be protracted and costly (financially, emotionally), and there may be no way of predicting the public response if things turn ugly during the stand-off. I am not sure if you are in Australia, but here is a local programme that takes a light-hearted look at the issue: http://www.abc.net.au/tv/gruenplanet/pages/s3583424.htm

While I do not disagree with the 7 points raised in the Straubel's article and your refuting comments. We must be clear that the discussion is on the philosophical and academic macro-perspective of the anti-doping case. We are not determining if it will or will not specifically apply to Armstrong's case per se.

The paraphrasing of Judge Sparks' comments is also to show that there are flaws in the process. As such, it is not strictly relevant IF an anti-doping agency will play by the rules, but that the agency CAN choose NOT to play by the rules. Besides, as Straubel has mentioned, the rules are written by anti-doping agencies, therefore anti-doping authorities serve as prosecutor, judge and jury (see also http://www.latimes.com/news/la-sp-doping10dec10,0,6713422,full.story ).

It is interesting that you raised the point of whether the problem of doping in professional sport is a criminal or civil matter.

Straubel addresses this point in noting:

"...The legal nature of doping charges is fundamental to determining the quantity and quality of procedural protections afforded defendants.
It is quite clear that doping charges are, at the least, disciplinary actions. Even a cursory comparison with other types of disciplinary actions—such as attorney discipline, medical discipline, military discipline, or educational discipline—shows that doping charges fall within the larger category of disciplinary law. Quite telling, the WADC has adopted a burden of proof in doping cases it describes as those used in professional discipline proceedings... All disciplinary actions are recognized as demanding more procedural protections than are accorded parties to a simple contract dispute. But the quantity and quality of those protections varies depending on the closeness of the discipline to criminal matters.

... In early CAS jurisprudence there was a debate over whether doping charges were quasi-criminal in nature...Unfortunately, during that short-lived debate, no tests or standards were adopted or created for determining whether doping charges were quasi-criminal..."

Hi Ben,

From a macro-perspective, I acknowledge the myriad problems imposed by the current anti-doping regime. Some of these problems are very significant - the financial cost, the draconian surveillance requirements imposed on athletes, the financial steamrolling of under-resourced suspects, the doubts of the science behind the testing, the personal costs to suspected dopers (an almost necessary obligation to deny at first instance) and the pervading suspicion that, in spite of it all, exceptional performers dope (in strength, speed and endurance events as well as skill based sports).

If we considerably temper the current enforcement regime, while retaining the anti-doping rules, I believe we will end up with even more (covert) doping but fewer headlines. Result : a shallow perception of "cleaner" and "fairer" sport but the continuing swirl of rumours and allegations. Every now and then law enforcement officials will pull another BALCO, Festina or Puerto (which they are sure to do every now and again), or will we see another 10 witnesses line up to testify against a high profile athlete. Athletes, administrators and spectators will have to live through these stories again and again and again.

An alternative may be to end the current enforcement regime by amending the anti-doping charter to remove the "fair play" and instead stress the "health" rationale for an anti-doping regime. Anti-doping efforts could then targeted at "encouraging" compliance for reasons of self-interest, rather than punishing athletes for non-compliance. This will of course have its own problems - e.g. the short, medium and long term health consequences of various doping methods is rife with uncertainty, many athletes will almost certainly push the limits of safety (we will see the consequences of that), the "pureness" of professional sport, if such a thing actually exists, will be seen by many to have been compromised, there will be more unsupervised and dangerous doping at amateur levels, and many will be turned off by the prospect of acknowledging the pharma and/or gene doping regime of their favourite sports stars.

Nevertheless, I confess it would be nice to see the hypocrisy, lies, corruption and collateral damage that comes with the current anti-doping regime removed. We might even see the rise of sports doctor stars, who can considerably boost performance while looking after an athletes health!!!

With regard to the second issue - I am satisfied that Lance Armstrong had the opportunity to defend himself against the USADA charges in a fair hearing. As you state, Lance Armstrong was perfectly entitled to forgo that opportunity. His reason for doing so may always be a subject of speculation, but the reasons he gave, on record, were that he believed the matter should be heard by the UCI and that if he proceeded to arbitrate through the USDA process, the proceeding would be unfair. He has, as you pointed out, decided to fight the battle in the court of public opinion - and with that decision comes the suspicion, rightly or wrongly, that the evidence presented in the trial would be convincing and damning.

At this point it is probably interesting to note, that in stark contrast to the image of the Lance Armstrong brand, the allegations being made against Lance Armstrong (both in the charging documents and in the media maelstrom) are probably the worst we will ever see in professional sport - in addition to the allegations of using, trafficking and participating in a doping ring, there are allegations he bullied clean competitors who spoke out against doping, he allegedly corrupted the governing body to turn a blind eye to (his) positive tests, and it is even alleged that he set UCI testers on to fellow riders he perceived to be a competitive threat. These allegations make him sound like the Pablo Escobar of doping in sport.

Fortunately for Mr Armstrong, as a result of his decision, the details of these allegations will remain, in most people minds, just that. Unless a flood of evidence against Mr Armstrong is released, I think he will come out pretty well!

It seems the floodgates have been released and the mob is baying for blood. It may be some time before an argument for a different approach to anti-doping (or doping) regulation will gain traction. USADA's seeming success against Mr Armstrong will, in all likelihood, only further entrench the current regime.

Hi Kate, thanks for the article about a month ago.

I am wondering what effect this Armstrong matter will have on the Australian Rugby League (ARL) premiership win by Manly in 2011.

In that matter the Manly coach was reported as infusing calves blood & own blood infusions for players as a modern coaching method. Rather, it appears to be similar to the above case.

Has an offence occurred? Only if that offence is proscribed, so it may just be speculation. Would enjoy your opinion on Manly.