Lance and the Law

As most people who follow the sports of cycling and triathlon know, a week ago the United States Anti Doping Administration ("USADA") issued a charging letter against Lance Armstrong alleging that his blood samples from 2009 and 2010 were "fully consistent with blood ma­nipu­la­tion including EPO use and/or blood transfusions" and that the USADA was commencing an investigation.  While Mr. Armstrong is no longer actively participating in professional cycling, he has been racing World Triathlon Corporation ("WTC") events in hopes of qualifying for the Ironman World Championships in Kona, Hawaii. 

WTC has a long standing policy that it will not permit athletes to compete if they are "under investigation" for doping violations, even if there has not yet been a final determination.  WTC banned Mr. Armstrong from its events pending the outcome of the USADA investigation.  The USADA investigation and WTC ban resulted in an almost immediate outcry from the endurance sports community.  Three general arguments (which were repeated over and over again on blogs, FaceBook pages and message boards) emerged: (1) that a federal grand jury had cleared Mr. Armstrong of any wrong doing in February of 2012; (2) that the USADA is on a "witch hunt;" and (3) Mr. Armstrong is "innocent until proven guilty" and should not be banned from WTC events.   

I am no expert in reading biological passports or developing or interpreting drug tests.  I also have no personal knowledge or opinion as to whether Mr. Armstrong engaged in doping, blood transfusions, micro doping or any other performance enhancing activity.  What I do have is a love for professional road cycling and triathlon and an understanding of the legal system (I do wear my lawyer hat every once in a while).  While I cannot provide a clear answer as to whether or not Mr. Armstrong doped, hopefully I can help facilitate understanding as to the process and procedures relating to Mr. Armstrong's case. 

(1) A Federal Grand Jury Cleared Mr. Armstrong of Wrong Doing

Let's start with the basics of federal grand juries.  The federal grand jury exists to investigate federal crime (crimes against the United States) and to secure the constitutional right of grand jury indictment (there is a 5th Amendment right to grand jury indictment in federal cases).  The federal grand jury does not investigate all potential criminal activity, rather it only investigates criminal activity that violates federal law, as compared to state law.  For illustration purposes, the federal grand jury investigation into Roger Clemens issued an indictment for six counts of federal perjury, false statement and obstruction of Congress under Title 18 of the United States Code (federal crimes), not for actual use of human growth hormone (not a federal crime). 

In conducting investigations, a federal grand jury can pretty much do what it wants, other than violating certain testimonial and constitutional privileges such as attorney-client communications privileges and the privilege against self incrimination. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority.  The federal grand jury therefore has the ability to obtain information that would be almost impossible to obtain by any other means such as a civil subpoena, discovery request or freedom of information act request.  Federal grand juries conduct their business in secrecy defined by the Federal Rules of Criminal Procedure, which limit who may attend and what may be disclosed.  While the grand jury is convened, what happens before the grand jury, including the testimony it hears, the documents it reviews and any other evidence it may consider remains secret.   

Once the grand jury is dismissed, the need to shield the grand jury’s activities from public display is less compelling and certain other parties (such as the USADA) can request access to the evidence and testimony presented to the grand jury under Rule 6 of the Federal Rules of Criminal Procedure. 

With that primer, let's bring the discussion back to Mr. Armstrong.  News reports indicate that the federal grand jury investigation concerning Mr. Armstrong focused on allegations of financial crimes involving the physician Michele Ferrari and a number of cyclists, trainers and directors sportifs (including Mr. Armstrong and his long time director sportif Johan Bruyneel). It appears that the federal prosecutors were attempting to build a case under the Racketeer Influenced and Corrupt Organizations Act ("RICO").   RICO provides for criminal penalties (including a particularly long ten year statute of limitations) and a civil cause of action for acts performed as part of an ongoing criminal organization and focuses specifically on racketeering.  Federal prosecutors were attempting to build a case that Dr. Ferrari and company were involved in a wide spread international conspiracy to distribute performance enhancing drugs and launder the profits received for the sale and distribution of those performance enhancing drugs.  At some point federal prosecutors realized that they didn't have the evidence for an indictment on federal charges and dismissed the grand jury. 

So, what does this prove?  Not much.  The fact that federal prosecutors dismissed the grand jury only "proves" that in the opinion of the federal prosecutors they didn't have enough evidence to prosecute anyone for violation of federal crimes.  The grand jury never "cleared" anyone of anything as no one was ever on "trial" for any specific crime.  So, the comment "the grand jury cleared Lance" is at best imprecise.  The better comment should be "the grand jury determined that there was not enough evidence to indict Lance on federal charges." 

(2) The USADA is on a "Witch Hunt"

First some background on pro licenses and the USADA.  The USADA  is a non-profit organization and the national anti-doping organization for the United States. The organization is charged with managing the anti-doping program for U.S. Olympic, Paralympic, Pan-American and ParaPan American sport.  When an individual obtains a pro license in sports such as cycling or triathlon that individual contractually agrees to be subject to USADA policy and procedures.  The language from the USA Triathlon Elite License Application is as follows (note the language from the USA Cycling Elite License application is very similar):

"I have read USA Triathlon's Medical Control Rules, and I understand that athletes may be required to comply with drug testing at all USA Triathlon sanctioned events and at other times according to USADA and WADA policy.  I agree to submit to a drug test if selected, know that detection of the use of banned substances could lead to the imposition of serious penalties, including disqualification, loss of prize money, and/or lifetime suspension from participation in future events.  I recognize that in submitting to this test, I am waving any related rights to privacy over the results and related medical records.  I further understand that the practice of blood doping or 'boosting' is banned by USA Triathlon and that to engage in boosting would also subject me to punitive action."

This anti-doping and testing provision, which requires the athlete to consent to the policies and procedures of USADA and WADA is essentially a clause in an employment contract.  In exchange for being permitted to race (and win prize money) as a pro athlete, the athlete agrees to follow certain policies and procedures.  One of the WADA policies (as articulated in the World Anti-Doping Agency Code) is that WADA and USADA have eight years to bring a case against an alleged doper.  When the USADA received new information about Mr. Armstrong from the federal grand jury, it made the decision that it had sufficient evidence that blood samples from Mr. Armstrong in 2009 and 2010 were "fully consistent with blood ma­nipu­la­tion including EPO use and/or blood transfusions."

From reading the charging letter, it is my understanding that, in addition to testimony and other documents, Mr. Armstrong's biological passport was provided as an outcome of the federal grand jury investigation.  As Mr. Armstrong contractually agreed to be subject to the USADA and WADA polices, it is well within USADA's rights to commence an investigation into Mr. Armstrong's behavior in 2009 and 2010.  USADA is now responding, in accordance with its policies, to new information provided as a result of the grand jury investigations. 

3) Mr. Armstrong Is Innocent Until Proven Guilty and Should Not Be Banned from WTC Events

There are really two parts to addressing this statement -- the idea of "innocent until proven guilty" and the WTC policy with regard to pending doping investigations.  I'll address them in turn. 

First the idea of "innocent until proven guilty" only applies to criminal charges in court.  In our criminal court system there is a presumption that the defendant is "innocent until proven guilty."  This presumption began with the ancient Romans and while it is not explicitly articulated in the United States Constitution, it is widely held to follow from the 5th, 6th and 14th Amendments.   Here, Mr. Armstrong is being investigated by a civil body for alleged violations of policy to which he agreed to adhere.  The investigation is disciplinary, rather than criminal in nature and the presumption does not apply.

In addition, USADA does not have to adhere to the same burden of proof as is required in a criminal court.  In the United States, to convict a criminal defendant, the prosecutor must show that the defendant is guilty beyond all reasonable doubt.  This is a very high standard.  Conversely most civil cases are decided by a "preponderance of the evidence" -- the 51% rule. 

Under WADA Code Article 3.1:

"The standard of proof shall be whether the anti doping organization [such as the USADA] has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt."

So in the realm of burdens of proof, the USADA's burden falls somewhere in between criminal and civil cases in the United States.  

Finally, the argument has been repeatedly made that Mr. Armstrong should not be banned from competing in WTC (Ironman) events while the USADA investigation is pending.  I've heard several arguments that Mr. Armstrong has "due process rights" and should be allowed to race pending the outcome of the USADA investigation.  Racing in a triathlon is a privilege, not a right.  Violations of procedural due process only come into play when someone is deprived of a right (such as freedom to raise children and freedom from incarceration).  There is no right to race as a pro triathlete in WTC races. 

In addition, when Mr. Armstrong decided to race WTC events, he contractually agreed to follow the policies and procedures of WTC.  Just like Mr. Armstrong has an employment contract with USA Triathlon, Mr. Armstrong also has an employment contract with WTC.  The contract with WTC stated that if Mr. Armstrong becomes the subject of an investigation, he will not be able to participate in WTC events.  This provision is in no way exculpatory or unconscionable, it is intended to protect WTC from having to name a "new" winner of an event if an athlete is found to be in violation of anti-doping regulations (take a look at Andy Schleck and the 2010 Tour de France or Natascha Badmann and Kona in 2004 -- its not the same to be named the winner after the event occurred when all the podium girls and hula dancers have gone home).  While many people may view this policy as "unfair," it is a policy to which Mr. Armstrong agreed.  In fact, WTC has previously applied the policy in case of Michael Weiss, who was banned from participating in WTC events while he was under investigation for doping. 

Hopefully this post helps to clear up some of the confusion surrounding the procedures to which Mr. Armstrong is currently subject.