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, […]

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—USADA Has No Jurisdiction Armstrong claims that Defendants’ attempt to establish jurisdiction over him under UCI Anti-Doping Rules (UCI ADR) is improper because Defendants have no agreement to arbitrate under these disciplinary proceedings with Mr. Armstrong. Armstrong argues that prior to 2004 and the creation of USADA, his license agreements with UCI made no reference to USADA and contained no agreement conferring any authority on USADA. Nor did, UCI’s ADR confer any authority on USADA. After 2004, Armstrong asserts, UCI continued to retain jurisdiction over Doping Control relating to testing at international events and testing performed by UCI outside of competition. He argues, therefore, that the charges brought against him for a test conducted in 2001 at an international event, as well as testing done by UCI in 2009 and 2010, fall under UCI’s jurisdiction. Armstrong further contends that Defendants also lack jurisdiction to assert the charges against Mr. Armstrong because the charges were “discovered” within the meaning of the UCI ADR by UCI, not Defendants, by virtue of an e-mail from Floyd Landis (a UCI “License-Holder”) sent to USA Cycling (a member Federation of UCI). Finally, Armstrong claims Defendants do not have jurisdiction without a preliminary determination by the UCI that a doping violation has occurred. Armstrong asserts that UCI cannot, under the UCI ADR, delegate its authority until UCI has independently concluded that it is likely that a violation of the UCI ADR has occurred. In this case, Armstrong argues, none of the requirements for a delegation of authority have been satisfied: UCI has not determined for itself whether an anti-doping rule violation has taken place; asserted that an anti-doping rule violation has taken place; expressly requested that USA Cycling (much less USADA) initiate disciplinary proceedings against Mr. Armstrong; or given notice to Mr. Armstrong of such a request, as required by the rules. USADA’s Motion to Dismiss—USADA Has Jurisdiction Defendants argue that the Ted Stevens Olympic and Amateur Sports Act (The Sports Act), establishes arbitration as the exclusive forum for disputes relating to athlete eligibility in sports that are part of the Olympic movement, including cycling and triathlon. They contend that Congress gave the United States Olympic Committee (USOC) and National Governing Bodies (NGB)—like USA Cycling—exclusive jurisdiction over eligibility for competitions. Defendants claim therefore, by virtue of his membership in USA Cycling (whose regulations incorporated USADA Protocol, including AAA arbitration), his obtaining an annual license through USA Cycling, and his inclusion in the USADA Registered Testing Pool (RTP), Armstrong, agreed to be bound by the USADA Protocol making USADA’s jurisdiction proper. Defendants argue in the alternative that the court lacks subject matter jurisdiction because Plaintiff has failed to exhaust the available administrative remedies under the Sports Act and USADA Protocol. They argue that courts interpreting the Sports Act have consistently held that a plaintiff must exhaust administrative remedies before pursuing any court action against a NGB. Finally, Defendants contend that, in the alternative, under section 3 of the FAA, a trial court must grant a stay pending arbitration if the issues in a complaint are within the reach of an arbitration agreement. Defendants assert that since all of Armstrong’s challenges to arbitrability are clearly and unmistakably matters for the arbitrators to decide in the first instance under the AAA Rules, dismissal is appropriate. Related Posts: 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 […]

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—No Valid Arbitration Agreement with USADA Armstrong asked the court to declare that USADA may not compel or assert the right to arbitration because Armstrong has no valid, legal or enforceable arbitration agreement with USADA. Armstrong argues that the International License Applications he signed with Union Cycliste Internationale (UCI) (the sport’s international governing body) is the operative agreement in the case. He asserts that the agreement is a contract to which USADA is neither a signatory nor a party. Armstrong claims that he and USADA did not have a meeting of the minds on the alleged arbitration agreement. To the contrary, Armstrong’s agreement is with UCI, not USADA. He also contends that the alleged arbitration agreement is unconscionable and there is inadequate consideration for it. Response from USADA Motion to Dismiss—Armstrong Agreed to USADA Protocol Defendants allege that Armstrong agreed to be bound by the USADA Protocol by virtue of his membership in USA Cycling (whose regulations incorporated USADA Protocol, including AAA arbitration), his obtaining an annual license through USA Cycling, and his inclusion in the USADA Registered Testing Pool (RTP), Armstrong, More specifically, they argue that the Sports Act confirms the U.S. Olympic Committee’s (USOC) exclusive jurisdiction, directly or through its national governing bodies (NGB), to coordinate and oversee amateur athletic activity in the United States, including the procedures applicable to drug testing, results management and adjudication of doping matters. Defendants claim that when USADA was formed, the USOC adopted a bylaw requiring NGBs, including USA Cycling (the NGB for cycling and the U.S. member to UCI), to comply with the procedures pertaining to drug testing and adjudication of related doping offenses of USADA. The Defendants assert that USA Cycling thus adopted regulations incorporating the USADA Protocol for all USA Cycling members, including Armstrong. Related Posts: 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 Oscar Pistorius made history Saturday by becoming the first double-amputee to compete in the able-bodied Olympics. Pistorius is a South African sprinter who was born without a fibula in either leg, and had both legs amputated when he was only 11 months old. To participate in sporting activities, Pistorius uses two high-performance carbon-fiber prosthetics, known as the Cheetah Flex-Foot. Controversy regarding Mr. Pistorius’ use of these prosthetics arose in 2007, after he won second place in an international competition for abled-bodied athletes. Shortly after that race, the International Association of Athletics Federations (IAAF) decided to introduce an amendment to the IAAF competition Rule 144.2. The amendment banned the “(e) Use of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device.” After the adoption of this amendment, Mr. Pistorius’ track performances were monitored and tests were conducted to determine whether the Cheetah Flex-Foot gave Mr. Pistorius advantages over athletes without prosthetic limbs. Based on the results of those studies, on 14 January 2008, the IAAF ruled him ineligible for competitions conducted under its rules, including the 2008 Summer Olympics. Mr. Pistorius appealed to the Court of Arbitration (CAS) for Sport in February 2008. The CAS Panel considered the following issues: (1) Was the process leading to the IAAF Decision procedurally unsound? (2) Was the IAAF Decision unlawfully discriminatory? (3) Was the IAAF Decision wrong in determining that Mr. Pistorius’ use of the Cheetah Flex-Foot device contravenes IAAF Rule 144.2(e)? Ultimately, the Panel held overall there was no evidence that Pistorius had any net advantage over able-bodied athletes and revoked the IAAF decision. (Read the CAS opinion here) Pistorius was therefore eligible to compete in the Beijing 2008 Olympics, but failed to qualify for the South African team. This time around, however, Pistorius qualified for the 2012 Summer Olympics in March and Saturday achieved his dream of making it to the semifinals in the 400-meter sprint. He finished Saturday’s race second in his heat and 16th overall out of 47 runners with a time of 45.44 seconds. 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.