How Lance Armstrong Can Win Against the United States Anti-Doping Agency

The battle between Lance Armstrong and the United States Anti-Doping Agency (USADA) is shaping up to be much more than a doping case. USADA has formally accused Armstrong of using a variety of performance-enhancing drugs (PEDs) during his accomplished career as a professional cyclist. And USADA rarely loses a case when it decides pursue an athlete. So, how can Lance Armstrong win?

What is the Meaning of Lance Armstrong’s #Unconstitutional Tweets?

Armstrong’s legal team at Patton Boggs may soon file a lawsuit claiming that USADA has violated fundamental civil rights guaranteed to their client under the United States Bill of Rights including the first, fifth and fourteenth amendments. USADA has openly deprived a group of individuals known as “professional athletes” of these rights that have been guaranteed to every other American.

Of course, USADA, as an independent and non-governmental agency, is under no legal requirement to provide athletes with such constitutional protections even as it uses taxpayer funds to pursue athletes. USADA could make the “we’re-not-a-state-actor” argument and legally deprive athletes of such constitutional rights.

In order to succeed, Armstrong will need a federal judge to legally classify USADA as a “state actor”.

What is a “State Actor”?

A “state actor” is an entity that essentially acts as an extension of the federal government. Any private citizen or private organization that acts on behalf of or conspires with the government is subject to federal regulation under the Bill of Rights. This prevents state actors from violating the certain constitutional freedoms guaranteed to its members.

This will not be the first time USADA has been accused of being a state actor. The issue was introduced directly and indirectly during several cases involving BALCO defendants. USADA largely defended itself against previous accusations. But Lance Armstrong’s case may present different challenges for USADA.

Arguments That USADA is a State Actor

Funded by Government

The fact that USADA receives the majority of its funding from the federal government is not, in and of itself, proof that it is a state actor. However, since they have consistently received over two-thirds of their funding from federal grants distributed by the Office of National Drug Control Policy (ONDCP), it is clear that USADA is strategic in the government’s “war on drugs”. According to disclosures made in IRS Form 1090, USADA received $9.6 million, $9.8 million and $10 million in taxpayer funds in 2008, 2009 and 2010, respectively.

Symbiotic Relationship Between USADA and Federal Government

USADA has actively fostered a symbiotic relationship with federal law enforcement agencies in their fight against doping. USADA has worked side-by-side with law enforcement from the early days of Bay Area Laboratory Co-Operative (BALCO) steroid investigation in 2003.  Larry Bowers, the Chief Science Officer for USADA, was present, along with Jeff Novitzky and other federal agents, at the raid BALCO’s offices in Burlingame (California) according to BALCO founder Victor Conte.

USADA CEO Travis Tygart has participated with Novitzky in witness interviews according to Armstrong’s lawyers. The Associated Press reported that Tygart accompanied FDA Criminal Division investigator Novitzky and Assistant United States attorney Doug Miller to France in November 2010 as part of Los Angeles U.S. Attorney Andre Birotte Jr.’s federal criminal investigation of Armstrong.

USADA Piggybacked on Federal Investigation of Lance Armstrong

U.S. Attorney Birotte ultimately announced the termination of the criminal investigation into Armstrong. Immediately after the announcement, Tygart made it clear that the investigation of Armstrong was far from over and that USADA would use its available resources to pursue Armstrong on its own.

USADA reportedly requested access to the extensive evidence gathering and grand jury testimony obtained by Birotte’s office. However, USADA and the federal government have refused to discuss the extent of their information-sharing regarding the Lance Armstrong investigation. USADA will likely assert that its case against Armstrong is based solely on evidence independently obtained by the agency.

Armstrong’s attorneys feel otherwise. In attorney Robert Luskin’s letter to USADA, he accused USADA of acquiring evidence in violation of grand jury secrecy laws. Novitzky was suspected of the leak.

WADA Encourages Close Cooperation with Federal Agencies

The World Anti-Doping Agency (WADA) has actively encouraged its National Doping Organizations to exploit and gain access to intelligence collected by law enforcement agencies. WADA has published guidelines that provide “practical, sensible suggestions on how to go about working together with law enforcement, customs, immigration and other officials in order to properly and appropriately share information.”

USADA’s close working relationships with federal government agents, as part of WADA’s overarching strategy, makes USADA more vulnerable to being labeled as a state actor.

United States Has Ratified UNESCO International Convention against Doping in Sport

Michael Straubel, the director of the Sports Law Clinic at Valparaiso University and only attorney to successfully defeat USADA, told the New York Times that the United States’ ratification of the UNESCO Internatinal Convention Against Doping in Sport may further support the likelihood that USADA will be recognized as a state actor.

“You could make a strong case for it, simply because of the government funding USADA has received and an international treaty against doping the U.S. has signed,” said Straubel. “If they piggybacked on the federal investigation and obtained some of that evidence, it could make for an even stronger case.”

Former U.S. President George W. Bush made the ratification of the Convention official in 2008 after approval by the Senate. Anti-doping officials applauded the treaty as “apply(ing) the force of international law to anti-doping” opening the door to further cooperation between USADA and the federal government.

Conclusion

The real significance of the Armstrong vs. USADA case has little to do with the question of whether or not Lance Armstrong used erythropoietin (EPO), testosterone, human growth hormone (hGH) or any other performance-enhancing drug (PED). If Armstrong wins and the courts recognize USADA as a state actor, USADA will be forced to change.

It would represent a watershed moment for the rights of professional athletes. Athletes would no longer have their procedural due process rights routinely trampled by USADA. As a state actor, such actions would be considered “#unconstitutional”.

Athletes accused of doing violations will be afforded, without delay, full access to evidence against them.

The standard of proof could be raised from “comfortable satisfaction” or “clear and concise” to something comparable to that in civil cases if not criminal cases.

It will also raise questions about the non-profit status of USADA as well as the role of government involvement in anti-doping.

The goal of anti-doping doesn’t always justify the means by which its objectives are achieved. The rights of athletes are important too.

Lance Armstrong vs United States Anti-Doping Agency (USADA)

Lance Armstrong vs United States Anti-Doping Agency (USADA). Photo credit: Millard Baker

 


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