by Renée Kolar The United States Anti-Doping Agency (USADA) initiates the arbitration with a notice setting forth (i) the offense and (ii) the sanction, consistent with the applicable IF rules, the mandatory Articles from the WADC (Annex A of the USADA Protocol) and the USOC National Anti-Doping Policies, which USADA is seeking to have imposed and other possible sanctions, which could be imposed under the applicable IF rules, the mandatory Articles from the WADC and the USOC National Anti-Doping Policies. See AAA Supplementary Procedure for the Arbitration of Olympic Sport Doping Disputes, Annex D of USADA Protocol [hereinafter AAA Supplementary Procedure], R-4. Any hearing will take place in the United States before the AAA using the AAA Supplementary Procedures. USADA Protocol at § 15. USADA must also invite the applicable IF and WADA to participate either as a party or as an observer. Id. Only the Athlete or other Person has the right to request that the hearing be open to the public subject to such limitations as may be imposed by the arbitrator(s). Id. The Athlete may also invite the USOC Athlete Ombudsman to be an observer. Id. Arbitrators The Pool of arbitrators will consist of arbitrators from the CAS who are U.S. citizens. AAA Supplementary Procedure, R-3. All arbitrators in the Arbitrator Pool must have received training by the AAA. Id. Immediately after the initiation of a proceeding by USADA, the AAA shall send to each party an identical list of all names of persons in the Arbitrator Pool. Id. at R-11(a). The proceeding shall be heard by one arbitrator from the list of persons in the Arbitrator Pool, unless a party elects to have the matter heard by a panel of three within five days following the initiation of the proceeding by USADA. Id. at R-11(b). Such election shall be in writing and served on the Administrator and the other parties to the proceeding. Id. Appointment of a Single Arbitrator If the proceeding is to be heard by one arbitrator, within ten days of receipt of the Arbitrator Pool list, the parties must submit the name of a mutually agreeable arbitrator. Id. at R-11(c). If the parties are unable to agree, each party to the dispute will have five additional days in which to strike up to one third of the Arbitrator Pool, rank the remaining names in order of preference, and return the list to the AAA. AAA Supplementary Procedure, R-11(c). If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. Id. The AAA will pick an arbitrator in accordance with the designated order of mutual preference. Id. If the parties fail to agree on any of the persons named or if for any other reason the appointment cannot be made from the submitted lists, the AAA shall have the power to make the appointment from among other members of the panel without the submission of additional lists. Id. Appointment of a Tripartite Panel If the proceeding is to be heard by a panel of three arbitrators, within five days following receipt of the Arbitrator Pool list, or from receipt of notice of the request to have a tripartite panel, whichever is later, USADA (and IF if a party), shall designate one arbitrator from the Arbitrator Pool. Id. at R-11(d). The Athlete or other Person charged with an anti-doping rule violation has five days following receipt of the arbitrator choice from USADA (or USADA and IF), to designate one arbitrator from the Arbitrator Pool. Id. The two party-appointed arbitrators will then choose the third arbitrator from the Arbitrator Pool list. AAA Supplementary Procedure, R-11(d). If the party-appointed arbitrators are unable, within seven days following their selection, to choose the third arbitrator, then they shall notify the AAA which will then notify the parties. Id. Within five days of receipt of this notice from the AAA, the parties shall then each strike up to one third of the Arbitrator Pool and rank the remaining members in order of preference. Id. The AAA will then select the third arbitrator, and Chairman, in accordance with the designated order of mutual preference. Id. Disclosure and Challenges The arbitrators are required to disclose any circumstance likely to affect impartiality or independence. Id. at R-14. The AAA will rule on any challenges to the arbitrators. Id. Related Posts: 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 After receipt of a B Sample report confirming an Adverse Analytical Finding (or upon the waiver of analysis of the B Sample), or when USADA determines that a potential violation of other applicable anti-doping rules has occurred, the adjudication or “results management” process is triggered. United States Anti-Doping Agency, Protocol for Olympic and Paralympic Movement Testing § 11 (2009) [hereinafter USADA Protocol]. USADA has implemented a two step process of review by which the Review Board first determines whether or not there is sufficient evidence of doping to proceed with the adjudication process before moving on to the arbitration hearing. Id. The Review Board is made up of experts independent of USADA with medical, technical and legal knowledge of anti-doping matters who are appointed for two-year terms by the USADA Board of Directors. USADA Protocol at § 11. The CEO of USADA appoints the Review Board Members to sit on the panel in any given case. Id. at § 11(a)-(b). The Review Board is provided with the laboratory documentation and any additional information that USADA deems appropriate, with the Athlete’s or other Person’s name redacted out of the documents. Id. at § 11(c)(ii). Copies of this information will be sent to the Athlete or other Person, upon which the he or she may file a response with the Board. Id. at § 11(c)(ii). The Athlete or other Person may submit to the Review Board, any written materials for the Review Board’s consideration and will be given the name, telephone number, email address and website URL of the USOC Athlete Ombudsman. Id. at § 11(c)(iii)-(iv). The Review Board can ask for any additional information from either party. Id. at § 11(c)(v). The Review Board will only consider written submittals in making their recommendation. Id. at § 11(c)(vi). No evidence concerning the proceeding before the Review Board, including but not limited to the composition of the Review Board, what evidence may or may have not been considered by it, its deliberative process or its recommendations shall be admissible in any further hearing or proceeding. USADA Protocol at § 11(c)(vi). The Board decides by majority vote whether there is sufficient evidence of doping to proceed with the adjudication process and makes a signed, written recommendation to USADA with a copy to the Athlete or other Person, United States Olympic Committee (USOC), the applicable National Governing Body (NGB), International Federation (IF) and World Anti-Doping Agency (WADA). Id. at § 11(c)(vii)-(viii). Upon receipt of this recommendation, the USADA decides whether or not to adjudicate the alleged violations and sends notice to the Athlete or other Person of its decision. Id. at § 11(d). The Athlete or other Person may waive the Review Board process at any time and if USADA concurs in the waiver, USADA shall notify the USOC, the relevant NGB, IF, and WADA within ten working days of whether USADA has decided to charge the Athlete or other Person with an anti-doping rule violation or not. Id. at § 11(c)(ix). Within ten days of receipt of notice of USADA’s decision to adjudicate the alleged violations, the Athlete or other Person must notify USADA of whether he or she will accept or contest the proposed sanctions. Id. at § 11(e). The Athlete or other Person is entitled to a five day extension if requested within the ten day period. USADA Protocol at §11(e). If the sanction is not contested in writing by the deadline, then the sanction is communicated by USADA to the Athlete or other Person, USOC, the applicable NGB, IF and WADA and thereafter imposed by the NGB. Id. Such sanction cannot be reopened or be subject to appeal unless the Athlete can demonstrate by a preponderance of the evidence in a subsequent appeal to the Court of Arbitration for Sport (CAS) that he or she did not receive either actual or constructive notice of the opportunity to contest the sanction. Id. The Athlete or other Person may chose to accept the sanction, thereby avoiding the hearing or, he or she may contest the sanction and proceed on to the arbitration hearing. Id. Related Posts: 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 July 20, the United States Anti-Doping Agency (USADA) filed its Motion to Dismiss Lance Armstrong’s Amended Complaint. (Read Motion to Dismiss here) In their motion, Defendants USADA and Travis Tygart, in his official capacity as the Chief Executive Officer of USADA, assert that the suit should be dismissed for lack of subject matter jurisdiction or, in the alternative, it should be dismissed or stayed under Section 3 of the Federal Arbitration Act (FAA). Below is a summary of their arguments. I. The Court Lacks Subject Matter Jurisdiction Under the Sports Act 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 when drafting the act, Congress rejected proposed legislative provisions that would have created authority for the judicial system to become involved in issues related to amateur athletes, and instead 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. Defendants assert that since Congress specifically provided that disputes of this nature should be resolved in arbitration, the court lacks subject matter jurisdiction over the Amended Complaint. Failure to Exhaust Administrative Remedies 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. The Defendants assert that the Sports Act imposes on the USOC and its NGBs a requirement that they establish administrative procedures for, inter alia, the resolution of eligibility disputes between members and their NGBs. They claim that USA Cycling has complied by adopting regulations incorporating the USADA Protocol for all members and requiring all American cycling and triathlon athletes to respect and comply with the USADA Protocol. Defendants contend that Armstrong’s failure to exhaust his available administrative remedies leaves the Court without jurisdiction. Armstrong’s Complaints about the Arbitral Process Defendants briefly address Armstrong’s complaints of lack of due process in the American Arbitration Association (AAA) arbitral 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 should therefore be dismissed. II. Stay of Proceedings Pursuant to Section 3 of the Federal Arbitration Act Defendants argue 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 scope of an arbitration agreement. They acknowledge that, under the FAA, a court may have limited review over questions of arbitrability involving the existence of a valid agreement to arbitration. However, they contend that this limited review is not allowed if the parties’ agreement clearly and unmistakably provides that the question of arbitrability is to be arbitrated. Defendants assert that, in this case, Plaintiff is bound by the USADA Protocol and thus the AAA arbitration provisions by virtue of his USA Cycling and USA Triathlon membership and license as well as by being in USADA’s RTP during the times he was alleged to have doped. They state the relevant AAA Rule provides, “the arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” They claim that numerous court decisions reviewing this exact provision have uniformly held it constitutes a clear and unmistakable agreement that all questions of arbitrability shall be decided in arbitration rather than court. Defendants reason that since all of Armstrong’s challenges to arbitrability are matters for the arbitrators to decide in the first instance, dismissal is appropriate. Related Posts: 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 Holly Hayes For an article titled “Medical Malpractice Reform: The Role of Alternative Dispute Resolution” in the May 2011 Clinical Orthopaedics and Related Research, David H. Sohn JD, MD, B. Sonny Bal MD, JD, MBA “performed MEDLINE, PubMed, and Google Scholar searches with key words ‘medical malpractice’, ‘ADR’, and ‘alternative dispute resolution’ to obtain public policy studies, law review articles, case analyses, ADR surveys, and healthcare review articles” to better understand the role of ADR in the healthcare setting. Their research indicates: Early apology and disclosure programs report 50% to 67% success in avoiding litigation as well as substantial reductions in the amount paid per claim. Mediation boasts 75% to 90% success in avoiding litigation, cost savings of $50,000 per claim, and 90% satisfaction rates among both plaintiffs and defendants. Arbitration is viewed as less satisfying and less efficient than mediation but still more time- and cost-effective than litigation. The current legal environment is favorable to ADR with recent court decisions upholding pretreatment arbitration clauses. The main obstacle to ADR is the mandatory reporting requirement of the National Practitioner Data Bank (NPDB). The National Practitioner Data Bank (NPDB) is “intended to improve the quality of health care by encouraging State licensing boards, hospitals, professional societies, and other health care organizations to identify and discipline those who engage in unprofessional behavior; to report medical malpractice payments; and to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from State to State without disclosure or discovery of previous medical malpractice payment and adverse action history. Adverse actions can involve licensure, clinical privileges, professional society membership, and exclusions from Medicare and Medicaid”. Drs. Sohn and Bal concluded that ADR has the potential to reduce costs while increasing both patient and provider satisfaction. They report that easing NPDB reporting requirements could result to wider acceptance and use of ADR among physicians. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.