by Renée Kolar This week, in anticipation of today’s hearing in front of the U.S. District Court for the Western District of Texas, Austin Division, we’ve been summarizing the legal issues raised in Lance Armstrong’s Amended Complaint and USADA and Tygart’s responses in their motion to dismiss. Today, the District Court will decide whether or not it should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses. The current legal dispute arose when the U.S. Anti Doping Agency (USADA) notified Armstrong and other members of the team on June 12, 2012 of its opening of a formal action alleging anti-doping rule violations. (read the notification here). On June 29, the Anti-Doping Review Board made a unanimous recommendation to move forward with Armstrong’s adjudication process. The USADA then announced that three members of Armstrong’s team received lifetime periods of ineligibility as the result of their anti-doping rule violations in the United States Postal Service (USPS) Cycling Team Doping Conspiracy. (read more here) On July 9, Armstrong filed a lawsuit and a motion for a Temporary Restraining Order (TRO) in the Western District of Texas attempting to shut down the USADA case. (read the Complaint and TRO). However, the Court promptly dismissed (without prejudice) Armstrong’s suit in a strongly worded Order. (read the Order here). Armstrong was allowed to re-file an amended complaint within 20 days of the Court’s order which he did the next day. Armstrong v. Tygart et al. , No. A-12-CA-606-SS. (read the July 10th Amended Complaint here). On July 11, the USADA granted Armstrong an extension of up to 30 days (the original deadline was July 14) to contest drug charges. Should the court decide today not to enjoin USADA and stay the arbitration deadline, the deadline for Armstrong to choose arbitration expires on August 13th. If Armstrong doesn’t respond to the USADA doping charges prior to the end of the extension period and ask for an arbitration hearing to face the allegations, a lifetime ban will go into place and he could face the loss of his Tour de France titles. Related Posts: Armstrong v. Tygart | Lance Armstrong Responds to USADA’s Motion to Dismiss, Disputing, August 8, 2012 Armstrong v. Tygart | Fairness of Arbitration Procedure, Disputing, August 8, 2012 Armstrong v. Tygart | Jurisdiction, Disputing, August 7, 2012 Armstrong v. Tygart | Existence of Agreement to Arbitrate, Disputing, August 6, 2012 The International Convention Against Doping in Sport of 2005, Disputing, August 2, 2012 USADA Case against Lance Armstrong | USADA’s Successful Arbitration Track Record, Disputing, August 1, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part VI | Right to Appeal to the Court of Arbitration for Sport (CAS), Disputing, July 30, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012 Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012 Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.  

by Renée Kolar Tomorrow, August 10th 2012, the U.S. District Court for the Western District of Texas, Austin Division, will have to decide whether or not it should enjoin Defendants from enforcing an arbitration deadline against Lance Armstrong while the lawsuit progresses. In anticipation of the hearing, this week we’ve been summarizing Armstrong’s complaints and Tygart and USADA’s responses in their motion for summary judgment. Today we summarize Armstrong’s final complaint. Background The U.S. Anti Doping Agency (USADA) notified Armstrong and other members of the team on June 12, 2012 of its opening of a formal action alleging anti-doping rule violations. (read the notification here). On June 29, the Anti-Doping Review Board made a unanimous recommendation to move forward with Armstrong’s adjudication process. Soon after, the USADA announced that three members of Armstrong’s team have all received lifetime periods of ineligibility as the result of their anti-doping rule violations in the United States Postal Service (USPS) Cycling Team Doping Conspiracy. (read more here) On July 9, Armstrong filed a lawsuit and a motion for a Temporary Restraining Order (TRO) in the Western District of Texas in an attempt to shut down the USADA case. (read the Complaint and TRO). However, six hours later, the Court dismissed (without prejudice) Armstrong’s suit in a strongly worded Order. (read the Order here). Armstrong was allowed to re-file an amended complaint within 20 days of the Court’s order which he did the next day. Armstrong v. Tygart et al. , No. A-12-CA-606-SS. (read the July 10th Amended Complaint here). On July 11, the USADA granted Armstrong an extension of up to 30 days (the original deadline was July 14) to contest drug charges while he challenges the case in federal court. If Armstrong doesn’t respond to the USADA doping charges prior to the end of the extension period and ask for an arbitration hearing to face the allegations, a lifetime ban will go into place and he could face the loss of his Tour de France titles. In the meantime, the U.S. District Court for the Western District of Texas, Austin Division, set the date for tomorrow’s hearing to decide whether the Court should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses. Read the Order here. Amended Complaint—Tortious Interference Mr. Armstrong claims that his contract with UCI should govern the matters at issue. He contends that this contractual relationship includes: (1) UCI’s control over results management, (2) UCI’s exclusive jurisdiction over alleged doping violations by Mr. Armstrong prior to 2005; (3) its exclusive jurisdiction over the drug tests upon which USADA relies including tests in 2001 and 2009–10; (4) its authority to delegate disciplinary responsibility to USA Cycling; (5) its duty to review proposed disciplinary proceedings against its license-holders; (6) its obligation to review the evidence and determine whether it constitutes reliable means of proving an anti-doping violation before any anti-doping charge is brought against Mr. Armstrong; (7) UCI’s exclusive jurisdiction and obligation to determine whether to authorize any disciplinary proceedings against Mr. Armstrong; and (8) UCI’s obligation to abide by the eight-year statute of limitations applicable to any alleged charge against Mr. Armstrong. Armstrong argues that by proceeding with its charges in contravention of the UCI rules, USADA has tortiously interfered with UCI’s performance of its obligations. The result, he alleges, has caused UCI to be in breach of its obligations to Mr. Armstrong. Armstrong contends that USADA had actual knowledge of Mr. Armstrong’s contract and business relationship with UCI and that USADA’s interference with this relationship was willful and intentional. Armstrong claims that USADA’s willful and intentional acts have proximately caused him damage and, unless enjoined, will continue to cause him irreparable harm for which there is no adequate remedy at law. USADA’s Motion to Dismiss Defendants assert that arbitration is the proper forum and the court therefore does not have jurisdiction over Armstrong’s claims. They do not respond to Armstrong’s claim of tortious interference in their motion to dismiss. Related Posts: Armstrong v. Tygart | Lance Armstrong Responds to USADA’s Motion to Dismiss, Disputing, August 8, 2012 Armstrong v. Tygart | Fairness of Arbitration Procedure, Disputing, August 8, 2012 Armstrong v. Tygart | Jurisdiction, Disputing, August 7, 2012 Armstrong v. Tygart | Existence of Agreement to Arbitrate, Disputing, August 6, 2012 The International Convention Against Doping in Sport of 2005, Disputing, August 2, 2012 USADA Case against Lance Armstrong | USADA’s Successful Arbitration Track Record, Disputing, August 1, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part VI | Right to Appeal to the Court of Arbitration for Sport (CAS), Disputing, July 30, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012 Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012 Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.  

by Renée Kolar On Friday, August 3, 2012 Lance Armstrong filed a Memorandum in Opposition arguing that the court has jurisdiction to enjoin the U.S. Anti-Doping Agency’s (USADA) proceeding and requesting that Defendants’ Motion to Dismiss be denied. In his Memorandum, he asserts that Union Cycliste Internationale (UCI) has exclusive jurisdiction over the matters in USADA’s charging letters and has not authorized USADA to pursue disciplinary action against him. Armstrong then proceeds to argue that (1) the Sports Act does not apply to his claims; (2) even if the Sports Act did apply, it would not preempt his claims; (3) he is not required to exhaust administrative remedies; and (4) he did not agree to arbitrate his claims against USADA. Below is a summary of his arguments. UCI has jurisdiction, not USADA Armstrong asserts that the court has jurisdiction to enjoin USADA’s arbitration proceeding against him and to require USADA to respect its obligation to abide by UCI’s decisions and governing rules. He contends that UCI has exclusive jurisdiction to determine whether to pursue charges against Armstrong and it has specifically asked USADA not to proceed with its charges against him. Armstrong claims UCI has exclusion jurisdiction under the World Anti-Doping Code (WADC) because (1) the charges involve samples collected by UCI; (2) alternatively, because UCI “discovered” the alleged violation; and (3) as a final alternative, because Armstrong is retired from cycling and UCI is the anti-doping authority that had results management authority at the time the athlete allegedly committed the violation. Armstrong also claims UCI’s exclusive jurisdiction based on the fact that UCI has not authorized USADA to proceed with disciplinary action. The Sports Act Does Not Apply to Armstrong’s Claims Armstrong asserts that the language of the Sports Act clearly indicates that it only applies to amateur athletes and certain amateur competitions. He claims that the Sports Act does not apply to his claims for three reasons. First, he argues that the professional cycling competitions that he competed in are not the Olympic Games, the Paralympic Games, the Pan-American Games, world championship competition, or other amateur competition covered by the Act. Next, he contends that he is not an amateur athlete and that under UCI and USA Cycling rules, he was a professional cyclist and a member of professional cycling teams. Finally, he argues that the Act only requires arbitration with National Governing Bodies (NGBs) and makes no reference to USADA or national anti-doping agencies. Even If the Sports Act Applied, It Would Not Preempt Armstrong’s Claims In the event the court finds the Sports Act does apply to the dispute, Armstrong contends the Act only preempts claims concerning eligibility to compete in certain competitions. He argues that since he is bringing common law and Fifth Amendment due process challenges, and not claims regarding his eligibility to compete, his claims should not be preempted by the Act. He further asserts that his claims should not be preempted because federal courts may prevent private entities from “violating governing rules or imposing arbitrary and unreasonable disciplinary procedures when valuable property interests are at stake.” Armstrong alleges that USADA has violated its own rules and brought charges that are clearly outside its jurisdiction and that UCI has not authorized USADA to pursue. Armstrong argues that the court has jurisdiction to review USADA’s conduct in order to ensure that it follows the applicable rules. Finally, Armstrong argues that USADA’s preemption argument should be rejected because his claims cannot be preempted under Article III of the Constitution. He contends that generally, Congress may not, without violating Article III, “withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law.” Armstrong asserts therefore that his common law due process and tortious interference claims must be adjudicated by an Article III court. He adds further, that the Sports Act does not reflect a clear intent to preclude judicial review of a constitutional due process challenge. Armstrong Is Not Required to Exhaust Administrative Remedies Armstrong argues that because the Sports Act does not apply, he does not have to exhaust administrative remedies. However, if the Sports Act does apply, Armstrong asserts that the court has jurisdiction to preclude private entities from violating governing rules or imposing arbitrary and unreasonable disciplinary procedures. Finally, Armstrong contends he is not required to participate in a proceeding over which USADA lacks authority before the Court can address USADA’s jurisdiction. Armstrong claims he is not required to exhaust administrative remedies before seeking judicial intervention because he would open himself up to the argument that he waived his rights to challenge USADA’s jurisdiction, because he is challenging the constitutionality of those very proceedings, and because he will suffer irreparable injury if the Court does not enjoin USADA from proceeding. Armstrong Did Not Agree to Arbitrate His Claims Against USADA Armstrong contends that Defendants have the burden of proving an agreement to arbitrate exists. He asserts that his USA Cycling licenses or his inclusion in the USADA RTP do not establish that the USADA Protocol applies in this case. While USA Cycling did adopt the USADA Protocol, Armstrong claims that both USA Cycling and USADA are required to abide by the UCI rules and decisions and the WADC. He contends that by applying for an international cycling license after 2004 and the creation of USADA, he only agreed to the USADA Protocol to the extent that it is consistent with the governing UCI Anti-Doping Rules and the WADC, which take precedence over the Protocol. According to Armstrong, under the governing rules, UCI has exclusive jurisdiction over this matter, the UCI Anti-Doping Rules apply, USADA has not been given authority to proceed, and UCI has twice directed USADA not to proceed, making the USADA Protocol and AAA Rules inapplicable to his case. Armstrong argues that if the AAA Rules do not apply then there is no contractual requirement that he arbitrate arbitrability. Armstrong argues that he never contractually agreed to arbitrate his claims against USADA. […]

by Renée Kolar This coming Friday, August 10th 2012, the U.S. District Court for the Western District of Texas, Austin Division, will have to decide whether or not it should enjoin Defendants from enforcing an arbitration deadline against Lance Armstrong while the lawsuit progresses. In anticipation of the hearing, this week we will be summarizing Armstrong’s complaints and Tygart and USADA’s responses in their motion for summary judgment. Background The U.S. Anti Doping Agency (USADA) notified Armstrong and other members of the team on June 12, 2012 of its opening of a formal action alleging anti-doping rule violations. (read the notification here). On June 29, the Anti-Doping Review Board made a unanimous recommendation to move forward with Armstrong’s adjudication process. Soon after, the USADA announced that three members of Armstrong’s team have all received lifetime periods of ineligibility as the result of their anti-doping rule violations in the United States Postal Service (USPS) Cycling Team Doping Conspiracy. (read more here) On July 9, Armstrong filed a lawsuit and a motion for a Temporary Restraining Order (TRO) in the Western District of Texas in an attempt to shut down the USADA case. (read the Complaint and TRO). However, six hours later, the Court dismissed (without prejudice) Armstrong’s suit in a strongly worded Order. (read the Order here). Armstrong was allowed to re-file an amended complaint within 20 days of the Court’s order which he did the next day. Armstrong v. Tygart et al. , No. A-12-CA-606-SS. (read the July 10th Amended Complaint here). On July 11, the USADA granted Armstrong an extension of up to 30 days (the original deadline was July 14) to contest drug charges while he challenges the case in federal court. If Armstrong doesn’t respond to the USADA doping charges prior to the end of the extension period and ask for an arbitration hearing to face the allegations, a lifetime ban will go into place and he could face the loss of his Tour de France titles. In the meantime, the U.S. District Court for the Western District of Texas, Austin Division, set the date for this Friday’s hearing to decide whether the Court should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses. Read the Order here. Amended Complaint—Arbitration is Unfair Armstrong contends that the USADA arbitration process violates Fifth Amendment due process and principles of common law due process. According to Armstrong, the rights afforded him in the Fifth Amendment of the U.S. Constitution, protecting against abuse of government authority in a legal procedure, have been violated. Armstrong alleges the infirmities of USADA’s arbitration procedures are in violation of the Fifth Amendment’s procedural due process. In particular, he identifies (1) the lack of a charging document that fairly informs Mr. Armstrong of the charges against which he must defend, (2) the absence of a right to cross-examine and confront his accusers, (3) the failure to produce exculpatory evidence, (4) the failure to disclose cooperation agreements or inducements provided by Defendants to witnesses, (5) the failure to provide investigative witness statements, (6) the failure to provide full disclosure of laboratory analysis, (7) the lack of impartial assessment of the accuracy of laboratory testing procedures, (8) the lack of an impartial arbitration panel, and (9) the absence of a right to a hearing upon appeal to CAS. Armstrong claims that Defendants have also violated common law principles of due process by their conduct in violation of the UCI’s rules and USADA’s own rules. More specifically, Armstrong argues that UCI has not delegated any disciplinary proceedings to USADA in connection with any such alleged violations. He claims furthermore that the UCI’s rules do not authorize Defendants’ conspiracy charges against Mr. Armstrong nor the bringing of a consolidated action against six respondents, including other respondents as to whom USADA lacks jurisdiction. Armstrong contends that USADA’s charges against him also violate the WADA Code and USADA’s own rules (USADA’s Rules, Protocol for Olympic and Paralympic Movement Testing, (www.usada.org/files/pdfs/usada-protocol.pdf), including, the statute of limitations, the Review Board process, procurement of unreliable evidence from witnesses by improper means, and agreements as to disciplinary actions relating to witnesses. Motion to Dismiss—Arbitration Is Fair Defendants briefly address Armstrong’s complaints of lack of due process in the AAA procedure. They assert that this “mistrust of the arbitral process” has been “undermined by [the Supreme Court’s] recent arbitration decisions” and that these claims must be arbitrated and the suit dismissed. They contend that courts have “declined to indulge the presumption” that an arbitral institution will be unable to retain competent, conscientious and impartial arbitrators. Regarding Armstrong’s complaint that discovery will be limited in arbitration, Defendants argue that courts have recognized that a party “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” And finally, in response to Armstrong’s allegations that the USADA Protocol does not allow full judicial review, and the available review is by a Swiss court, Defendants assert that “Courts repeatedly admonish that ‘severely limited’ judicial review is an essential, and inherent, feature of contractually agreed binding arbitration, necessary to avoid undermining the ‘twin goals of arbitration . . . settling disputes efficiently and avoiding long and expensive litigation.’” Related Posts: Armstrong v. Tygart | Jurisdiction, Disputing, August 7, 2012 Armstrong v. Tygart | Existence of Agreement to Arbitrate, Disputing, August 6, 2012 The International Convention Against Doping in Sport of 2005, Disputing, August 2, 2012 USADA Case against Lance Armstrong | USADA’s Successful Arbitration Track Record, Disputing, August 1, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part VI | Right to Appeal to the Court of Arbitration for Sport (CAS), Disputing, July 30, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, […]