by Renée Kolar USADA’s adjudication process relies on an American Arbitration Association (AAA)/Court of Arbitration for Sport (CAS) arbitrated hearing under the modified AAA Commercial Rules. For a complete listing of USADA protocol and policy documents, visit the Resources section of the USADA website. The first step towards the USADA adjudication process occurs when a laboratory reports an Adverse Analytical Finding on an A Sample for a Prohibited Substance (See World Anti-Doping Code for a list of prohibited substances). USADA will then notify the Athlete or other Person that they have three days in which to accept a Provisional Suspension. USADA may for good cause shorten the period by two days or lengthen it by four. United States Anti-Doping Agency, Protocol for Olympic and Paralympic Movement Testing § 11 (2009) [hereinafter USADA Protocol]. If the Athlete or other Person accepts a Provisional Suspension the Athlete’s case will proceed on the Anti-Doping Review Board Track. Id. at § 12. If the Athlete does not accept the Provisional Suspension proposed by USADA by the deadline and if an involuntary Provisional Suspension is not imposed, the Athlete’s case will proceed on the Expedited Track. Id. Related Posts: 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.  

Today, we continue to cover the Lance Armstrong lawsuit against the U.S. Anti-Doping Agency (USADA). Armstrong v. Tygart et al, No. A-12-CA-606-SS. The U.S. District Court for the Western District of Texas, Austin Division, has set a hearing for August 10, 2012 to decide whether the Court should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses. Read the Order here. Stay tuned! Related Posts: 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

By Renée Kolar On July 9, 2012 Lance 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) Order Dismissing the Case However, six hours later, the Court dismissed (without prejudice) Armstrong’s suit in a strongly worded Order. The Court noted, “Contrary to Armstrong’s apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism.” “This court is not inclined to indulge Armstrong’s desire for publicity, self-aggrandizement or vilification of Defendants, by sifting through 80 mostly unnecessary pages in search of the few kernels of factual material relevant to his claims,” the Court said. (read the Order here) Armstrong was allowed to re-file an amended complaint within 20 days of the Court’s order- and he did the next day. The Amended Complaint Armstrong’s Amended Complaint of July 10, 2012 (read the Amended Complaint here) requests that the court find in favor of Armstrong and declare: (1) Armstrong has no valid, legal or enforceable arbitration agreement with USADA that authorizes USADA to compel arbitration; (2) the Defendants’ have tortiously interfered with contract; (3) Defendants have violated fifth amendment due process requirements; and (4) Defendants have violated common law principles of due process. No Valid Arbitration Agreement Armstrong asks the court to declare that USADA may not compel to arbitration because Armstrong has no valid, legal or enforceable arbitration agreement with USADA. Armstrong argues that: 1) The International License Applications with Union Cycliste Internationale (UCI) that Mr. Armstrong signed constituted a contract to which USADA is neither a signatory nor a party. 2) Defendants purport to bring charges under the UCI Anti-Doping Rules yet Defendants have no agreement to arbitrate under these disciplinary proceedings nor do they have the jurisdiction without a preliminary determination by the UCI that a doping violation has occurred. In this case, none of the requirements for delegation of authority to USADA have been met. 3) Defendants are bringing charges for a period between 1996 and 2005, yet Mr. Armstrong’s licensing agreements prior to 2004 made no reference to USADA and contained no agreement conferring any authority on USADA. 4) Even after 2004, UCI continued to retain jurisdiction over Doping Control relating to testing at international events and testing performed by UCI outside of competition. The charges brought against Mr. Armstrong for a UCI test done in 2001, 2009 and 2010 therefore remain under the control of the UCI. 5) The alleged arbitration agreement is unconscionable. 6) USADA arbitration will not provide remedies equal to those available in court thus depriving Armstrong of substantive rights available in court. 7) There was no meeting of the minds between Armstrong and USADA on the alleged arbitration agreement. Armstrong’s agreement was with UCI, not USADA. 8) By limiting the choice of arbitrators and training its own arbitrators, USADA has retained essentially the exclusive right to select the potential arbitrators in this matter. 9) There is inadequate consideration for the alleged arbitration agreement. Tortious Interference Mr. Armstrong claims that at all relevant times to this Complaint, he had a contractual and business relationship with UCI and that contract should govern the matters at issue. This contractual and business relationship included, but is not limited to: (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. Fifth Amendment Due Process Armstrong asserts that USADA acts under the color of the State in that, among other things, the U.S. government (1) was instrumental in the creation of USADA, (2) relies on USADA to carry out its obligations under an Article II international treaty (the International Convention Against Doping in Sport), (3) USADA acts as a regulator under an express grant of power from Congress, (4) the federal government provides a substantial portion (approximately two-thirds) of USADA’s funding, and (5) USADA otherwise fulfills functions ordinarily reserved exclusively to the State. Armstrong claims that Defendants further act under color of state law in that, among other things, the charges brought against Mr. Armstrong by Defendants are based on evidence gathered as part of a joint two-year investigation with the United States government to investigate and bring criminal and anti-doping charges against Mr. Armstrong. He contends that Defendants worked hand in hand with the FBI, the DOJ’s Office of Criminal Investigation, the FDA, and the US Postal Service Office in joint coordinated activity with the State and its agents designed to develop and support the charges Defendants now seek to assert against him. 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 […]

by Renée Kolar The United States Anti-Doping Agency (USADA) was created in 2000 by the congressionally-chartered United States Olympic Committee (USOC) in an attempt to address the national and international criticisms that the U.S. was not doing enough to eradicate the perceived use of performance enhancing drugs among U.S. athletes. Travis T. Tygart, Esq., Winners Never Dope and Finally, Dopers Never Win: USADA Takes Over Drug Testing of United States Olympic Athletes, 1 DePaul J. Sports L. & Contemp. Probs. 124, 124-5 (2003). To compete in sanctioned international competitions, athletes must agree to comply with the World Anti-Doping Code (WADC), requiring random in and out-of competition doping control testing for prohibited substances. Maureen A. Weston, Simply a Dress Rehearsal? U.S. Olympic Sports Arbitration and De Novo Review at the Court of Arbitration For Sport, 38 Ga. J. Int’l & Comp. L. 97, 106 (2009). USADA was designated by Congress as the national anti-doping agency empowered to protect the competitive integrity of Olympic sports and has exclusive authority to manage drug testing and adjudication of enforcement actions under the WADC. Maureen A. Weston, Doping Control, Mandatory Arbitration, and Process Dangers for Accused Athletes in International Sports, 10 Pepp. Disp. Resol. L. J. 5, 41-42 (2009). [hereinafter Weston Doping Control]. Although it receives more than 8 million dollars in federal funds (approximately 60% of its budget) and more than 3 million dollars from the USOC, the USADA is an independent non-profit corporation that has the power to impose sports sanctions but not criminal or civil penalties. Steve Frothingham, Judge slams Armstrong’s Complaint, The Bicycle Retailer and Industry News (July 9, 2012, 11:18 AM); Weston Doping Control supra at 42. Its authority has been consistently upheld by courts. Brent Schrotenboer, Armstrong gets 30-day extension to answer doping charges, USATODAY (July 10, 2012 ). World Anti-Doping Code (WADC) The WADC, created by the World Anti-Doping Agency (WADA) as part of their World Anti-Doping Program (WADP), has been effective since 2004, with a revised Code in effect since January 2009. Weston Doping Control supra at 25. It is designed to “ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping.” World Anti-Doping Agency, World Anti-Doping Code at 11 (2009) [hereinafter WADC 2009], available at http://www.wada-ama.org/rtecontent/document/code_v2009_En.pdf. The Code establishes anti-doping rules, definitions of doping, burdens of proof, prohibited substances and methods, and includes, inter alia, standards for testing, sample analysis, sanctions, appeals, confidentiality, reporting, and statute of limitations. See generally WADC 2009. Pursuant to the Code, WADA may bring an appeal to the Court of Arbitration for Sport (CAS) on rulings by anti-doping organizations without exhausting other remedies in the Anti-Doping Organization Process when no other party has appealed. WADC 2009, supra at art. 13.1.1. (“Where WADA has a right to appeal under Article 13 and no other party has appealed a final decision within the Anti-Doping Organization’s process, WADA may appeal such decision directly to CAS without having to exhaust other remedies in the Anti-Doping Organization process”). The Court of Arbitration for Sport (CAS) The CAS was established by the International Olympic Committee (IOC) in 1983 with a mission to convene panels to resolve disputes arising in the field of international sport. Weston supra at 108. The CAS has two primary divisions: the Ordinary Arbitration Division and the Appeals Arbitration Division. Id. at 108-09. The former resolves commercial contractual disputes relating to the field of sport between parties who have consented to the jurisdiction of the CAS. Id. The latter handles disputes concerning the decisions of federations or sporting authorities like the USADA. Id. Although originally created by the IOC, CAS is now independently managed and financed by the International Court of Arbitration for Sport (ICAS). TAS/CAS, General Information: Organisation and Structure of ICAS and CAS, (http://www.tas-cas.org/en/infogenerales.asp/4-3-238-1011-4-1-1/5-0-1011-3-0-0/) (last visited July 15, 2012). USADA’s Jurisdiction USADA has the authority to test any athlete who (1) is a member or license holder of a National Governing Body (NGB); (2) is participating in a competition sanctioned by the USOC or a NGB or participating at a competition sanctioned by an International Federation (IF); (3) is foreign but present in the U.S.; 4) has given his or her consent to Testing by USADA; (5) has been named by the USOC or an NGB to an international team or who is competing in a qualifying event to represent the USOC or NGB in international competition or is included in the USADA Registered Testing Pool; (6) is serving a period of ineligibility and has not given notice of retirement; or (7) USADA is testing under authorization from the USOC, an NGB, IF, any National Anti-Doping Organization (NADO), WADA, the IOC, the International Paralympic Committee (IPC) or the organizing committee of any Event or Competition. United States Anti-Doping Agency Protocol for Olympic and Paralympic Movement Testing, para. 2 Available at www.usada.org/files/pdfs/usada-protocol.pdf. While the USADA’s jurisdiction appears very broad, USADA may not use its testing “to harass any athlete.” Tygart, supra at 128-9. How Does the USADA Handle a Doping Violation? Results for positive or elevated test or other doping violation are first given to the USADA Anti-Doping Review Board, consisting of a group of medical, technical and legal experts independent from USADA. Id. at 135. Before the board meets, the athlete has an opportunity to submit any written materials for the Board to take into consideration when deliberating. Id. The Review Board then makes a recommendation to USADA as to whether or not there is sufficient evidence to proceed to a hearing. Id. USADA will then inform the athlete in writing whether or not it intends to adjudicate and sanction the alleged violations. Id. at 136. The athlete has ten days from this written notice to decide whether to contest or accept the sanctions. Id. If he or she chooses to contest, there are two options: the athlete may chose to have a hearing before the American Arbitration Association (AAA) with the right to appeal to a final and binding […]