After writing my post on the procedures surrounding federal grand jury and USADA investigations, I was asked a question about the 8 year statute of limitations articulated in the World Anti-Doping Agency ("WADA") Code. Article 17 of the WADA Code states:
No action may be commenced against an Athlete or other Person for an anti-doping rule violation contained in the Code unless such action is commenced within eight (8) years from the date the violation is asserted to have occurred.
In the case of Lance Armstrong, Article 17 raises the question -- if the statute of limitations is eight years, why does the USADA charging letter include details of alleged offenses from the period of 1999 through 2004? That is, if the USADA only has eight years to bring an action, how can they make allegations against Mr. Armstrong dating back to before 2004? There is no clear answers to this question, but the case of Eddy Hellebuyck (AAA Case No. 77 190 168 11 JENF), decided by an American Arbitration Association ("AAA") tribunal earlier this year helps shed some light on the situation and on the USADA's potential arguments for reaching back to 1999.
Eddy Hellebuyck is (was) a marathoner who competed internationally for both Belgium and the United States including a trip to run the marathon in the 1996 Atlanta Olympics. During the course of his career, he won over 20 marathons and in 2004 he was competing as a masters athlete. In 2004, USADA conducted an out of competition drug test on Mr. Hellebuyck which showed that he had used the banned substance erythropoietin ("EPO"). Hellebuyck challenged the 2004 positive test in an arbitration hearing. During the 2004 arbitration hearing, Hellebuyck provided the following testimony:
Q: Had you used EPO before at any time prior to giving the sample on January 1, [2004]?
A: Never.
Q: Have you used it at any time since?
A: No.
Q: Have you ever used any banned substance at all?
A: No.
After hearing testimony and receiving evidence the 2004 arbitration panel imposed a two year ban on Hellyebuck commencing on January 31, 2004. In February of 2010, Hellebuyck participated in an interview with Runner's World that ultimately appeared in the December 2010 edition of the magazine. During the course of the interview Hellebuyck admitted that he used EPO:
But suddenly the conversation shifts when I finally ask Eddy if, in fact, he doped.
"Do you think I did?" he asks me.
"I don't know," I reply. "I don't know you. All I know is what I've read and heard."
Hellebuyck hesitates. He no longer looks like a man at home in the world.
"Yeah," he says, "I did it."
After confessing to Runner's World, in October of 2010, Hellebuyck contacted USADA and confessed to using EPO in 2001. On March 3, 2011, USADA sent Hellebuyck a notice letter notifying him that, given his admissions, USADA was empaneling an Independent Anti-Doping Review Board to review the 2004 charges and recommend further actions. Then on April 13, 2011 and April 27, 2011, USADA sent charging letters to Hellebuyck informing him that "at this time you are subject to the following modification of your previous sanction for an anti-doping rule violation: Disqualification of the competitive results obtained on and subsequent to August 1, 2001, the first date on which there is any evidence of your participation in a rule violation."
Now let's do some quick math. In 2010 and 2011 Hellebuyck admitted to using EPO in 2001. Best case scenario the violations occurred 9 years before USADA sent Hellebuyck a letter notifying him that they were pursing new charges. To complicate matters further, Hellebuyck's admissions were governed by the 2000-2003 rules, which provided for a 6 year (rather than the current 8 year) statute of limitations. So under the 2000-2003 rules it would appear that USADA could only go back to 2004 (and not 2001).
Here's where things get interesting. USADA argued that the statute of limitations was tolled (to delay, suspend or hold off the effect of a statute) by Hellebuyck's fraudulent concealment of his prior use of EPO. The arbitration panel acknowledged that "there have been no AAA or CAS panels that have addressed fraudulent concealment or equitable tolling as a result of a prior perjury allegation with respect to the statute of limitations under the WADA Code or the admissions limitation period under the IAAF Rules." However, the panel determined that Hellebuyck's false testimony in 2004 fraudulently concealed his prior violations and that "any limitations period in this case was tolled until actual discovery of the wrongdoing. in other words until Hellebuyck notified USADA in October of 2010, and USADA brought its claims herein well within any limitations period ofter that publication."
In essence the AAA panel determined that in cases in which "fraudulent concealment" exists, the USADA can toll the statute of limitations. So, how does this pertain to Lance Armstrong? It appears that USADA will argue that Mr. Armstrong engaged in "fraudulent concealment" that prevented USADA from discovering his alleged violation until 2012. Making the case against Mr. Armstrong, however, will be more difficult that making the same case against Hellebuyck. There is no question that Hellebuyck provided false testimony and committed perjury during the course of his 2004 hearing. Case law abounds that finds false testimony to be fraudulent concealment. To my knowledge, Mr. Armstrong had never provided sworn testimony concerning doping allegations let alone false testimony. USADA will therefore have to prove that Mr. Armstrong engaged in some other actions that served to conceal his allegedly wrongful conduct. As USADA has not disclosed the evidence it plans on using against Mr. Armstrong (this is a whole different but equally interesting issue) it is difficult to guess exactly what USADA will use to argue that it should be allowed to toll the 8 year statute of limitations and it will be equally interesting to see whether or not an arbitration panel accepts the argument.
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