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.

by Alan Scott Rau BP Exploration Libya Limited v. ExxonMobil Libya Limited, et al, No. 11-20547 (5th Cir. July 30, 2012) is a little case that illustrates perfectly the muddle that frequently arises when linked agreements bind multiple parties to resolve through arbitration disputes arising out of related transactions. It is at least clear here, unlike some cases, that there has to be “one arbitration”—this is in fact what the agreements seem to provide for. The court concludes that for any dispute in which Noble was a party, all three parties “agreed to arbitrate before three arbitrators appointed in accordance with the rules of the [Nigerian] Arbitration and Conciliation Act 1990.” This does not, surprisingly, mean that the arbitration was to take place in Nigeria under Nigerian law—-in which case it would seem completely inappropriate in the first place for a U.S. court to intervene at all by appointing arbitrators—for the contract, in a section that the court does not even bother to quote, requires the arbitration to take place in Houston. So the U.S. is the “seat,” or “primary jurisdiction.” Since this case falls under the New York Convention, I suppose that the court would be permitted to appoint arbitrators under section 206 of Chapter Two of the FAA. A necessary move (implicit in the opinion but also never made explicitly by the court) is that resort to section 5 of the “domestic” FAA would not be “in conflict with” the Convention, and so the court could look to the more detailed provisions of section 5 which tells us what is supposed to take place when there is a “lapse” in the naming of the arbitrator. Now when we get to this point—which is where the opinion begins!—it is clear that there is no perfect solution. As Johnson wrote, the “case is undoubtedly hard, but in political regulations, good cannot be complete, it can only be predominant.” What are the choices? (a) To take it upon itself to appoint a panel of 5, as the district court did, is sensible but likely to be unwieldy. (b) For the court to name an arbitrator jointly for the two respondents is to deny each of them the right to name an arbitrator, and is troubling where, as here, the alignment between them is completely adversarial—so they don’t each get “their own” arbitrator, while the claimant does. (c) For the court to name all of the members of a three-person panel is, as is well known, a common choice in both institutional and ad hoc (e.g., the new UNCITRAL Rules) arbitrations: It seems the best of those mentioned—but may be unfair (i) where the alignment of the parties is not in fact completely adversarial, on this issue giving rise to procedural jockeying and satellite litigation, and (ii) in all cases denies the claimant his own bargained-for right to appoint “his own” arbitrator. In any event, the explanation for the Fifth Circuit’s choice of solution “(b)”—-court appointment for the two respondents jointly should they be unable to agree between themselves—does not lie in any instrumental choice as to what seems “the best” solution. It lies instead in the simpler fact that U.S. courts are strongly wedded to the proposition that the agreement must be enforced “as written.” This is in part (i) a function of the language of the statute (shall appoint “in accordance with the provisions of the agreement’), in part (ii) a reflection of the “plain meaning” fallacy, and in part (iii) an attempt to honor the values of party autonomy. A well-known older case, Lipschutz v. Gutwirth, 106 N.E.2d 8 (N.Y. 1952), involved a partnership agreement among three members of a family; the “tripartite” arbitration clause provided that the father and his son would name one arbitrator, and the father’s brother (the son’s uncle) would name a second. The obvious assumption was that the father and son would be on “the same side” in any dispute—-but there was a change of alignment in the partnership not originally contemplated, and the father and uncle brought a proceeding against the son. The court nevertheless held that alternatives (a) and (c) were impermissible—the uncle could not be deprived of “his contractual right” to name an arbitrator—and so the father and son would have to name “their” arbitrator jointly—or have one named for them. So, there can be no “reformation” of a clause when circumstances not envisaged earlier make the clause “unworkable” or discordant with its original purpose. The lesson, of course, is that courts and legislators are pretty poor at dealing with problems of this sort: They create challenges to the ingenuity and foresight and drafting ability of counsel—but that after all is where the ultimate responsibility ought to lie anyway. Alan Scott Rau is the Mark G. and Judy G. Yudof Chair Professor of Law at The University of Texas at Austin School of Law. He received his BA and LLB from Harvard University. Professor Rau teaches and writes in the areas of Contracts and Alternative Dispute Resolution (particularly Arbitration). He is co-author of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002); ADR and Arbitration: Statutes and Commentary (West, 1998), and Cases and Materials on Contracts (West, 2nd ed. 1992), and the author of several articles, including most recently “The Arbitrability Question Itself” (American Review of International Arbitration, 1999); “La Contractualisation de l’Arbitrage: Le Modele Americain” (Revue de l’Arbitrage, 2001), and “All You Need to Know About Separability in Seventeen Simple Propositions” (American Review of International Arbitration, 2003). He serves on the Commercial and International Panels of the American Arbitration Association, and has been a visiting faculty member at the University of Toronto, China University of Political Science and Law in Beijing, Willamette University College of Law, the University of Geneva; and the Universities of Paris-I and Paris-II. Some of Professor Rau’s scholarly papers may be downloaded at the Social Science Research Network.