|Co-written by: Kurt Grahl|
The multi-agency investigation into Lance Armstrong’s alleged doping practices is not a witch-hunt, which by definition is “an investigation carried out ostensibly to uncover subversive activities but actually used to harass and undermine those with differing views.” The intent behind this investigation wasn’t harassment, although there’s been plenty. This investigation was an organized, extensive effort regarding a particular person, namely Armstrong, which sounds more like a vendetta.
The actions taken by the Food and Drug Administration (FDA), the Federal Bureau of Investigation (FBI), Department of Justice’s Office of Criminal Investigation, the United States Postal Service Office of Inspector General, and the United States Anti-Doping Agency (USADA) regarding Armstrong are unprecedented. Never in the history of sports has a retired athlete been singled out and doggedly pursued for allegations of cheating during his career, which have never been confirmed by physical evidence.
The flood of articles, blogs, and opinions regarding Armstrong’s decision to not submit to the USADA arbitration process, seem to use that decision to “prove” what they believed all along, essentially confirming, their own “truth” that Armstrong doped. The truth is we may never know for sure if Armstrong doped or not. None of us knows the strength or veracity of the claims being presented. While there are plenty of legitimate reasons for Armstrong not to proceed to arbitration, none of those reasons have been given much credence.
For the polarized masses of cycling fans, justice may or may not have been served. The question is how exactly does stripping the results of a retired cyclist, who has never tested positive for doping, help cycling today. All cycling fans deserve some sort of closure in order to once again enjoy a beautiful sport without the need to question the abilities of its participants. One end of this debate feels Armstrong’s exit from arbitration without a fight is a tacit admission of guilt, and that Armstrong deserves to be punished to the full extent of USADA’s rules. The other end supports Armstrong’s decision to not participate in what many view as, an unfair process, especially considering Armstrong retired from cycling. Unfortunately, neither side is likely to get complete satisfaction.
The American criminal justice system provides that all criminal defendants are innocent until proven guilty. The initial investigation of Armstrong was criminal in nature. Based on the American way, Armstrong is innocent as his guilt is still in question, having never been proven in any meaningful way in a court of law. The USADA arbitration process is not the American way, and USADA hasn’t proven a thing.
Because this is an American based investigation, conducted by American entities, this vendetta at its roots, needs to be analyzed using the elements of truth, justice, and the American Way.
It is undisputed that Lance Armstrong is a cancer survivor. The hope he and his Livestrong Foundation have offered to millions of people affected by cancer is undeniably demonstrated by their continued and fervent support. Regardless of the eventual outcome of this story those facts remain and cannot be erased.
What Armstrong may or may not have done on his bike while competing, and what he has done off his bike, are two separate subjects that won’t be debated here.
It is also undisputed that enhancing performance through the use of drugs, chemicals, or other substances in professional cycling has been commonplace since the inception of the sport. Think back to 1967 when pro cyclist Tom Simpson died during the Tour de France on the ascent to Mont Ventoux due to a lethal combination of amphetamine, alcohol and altitude. Historically, drug use in cycling can be traced back to the late 1800’s in one form or another.
In more recent history, a staggering number of professional cycling’s top tour and Olympic riders have either been sanctioned for doping, by testing positive for a banned substance, or have openly admitted to doping. Several members of the 1984 US Olympic cycling team admitted to “blood doping” which seemed to be preferred method to enhance performance in the 1980’s. Then EPO became the drug of choice in the 1990’s culminating in the 1998 Festina scandal that saw the entire team, including World Champion Laurent Brochard, disqualified from the Tour de France. Doping was now no longer viewed as an individual choice; the curtain had been pulled back illuminating the concept of systematic, team doping. Brochard and teammates Christophe Moreau and Didier Rous confessed and served six-month suspensions before returning to racing. But teammate Richard Virenque did not confess, instead releasing a book called “Ma Vérité” where he denied using doping products. However, in an all too familiar scenario (i.e., Hamilton and Landis), Virenque finally confessed to doping in October 2000 and was handed a suspension. Virenque also returned to racing after his suspension. All this combined with the continuing fallout from Operación Puerto in 2006, set for trial in January 2013; one sees that doping in cycling has a continued history.
The vendetta against Armstrong began at the hands of FDA investigator Jeff Novitzky, the same investigator who ensnared a myriad of professional athletes including Marion Jones, Tammy Thomas, and Barry Bonds during his investigations into illegal steroid use in professional sports. The FDA’s mission is regulating medical industries and protecting the nation’s food supply. Within its purview is investigating the distribution of pharmaceuticals. But was that the real reason the FDA was involved in the first place? What was its motivation? What was Novitzky’s motivation? Remember the FDA was seeking charges of conspiracy, wire fraud, money laundering, racketeering, drug trafficking and defrauding the U.S. Government. Some believe the sole reason for its investigation was to bring down Armstrong. However, could there have been a darker purpose at work? The truth is millions of taxpayer dollars were spent investigating Armstrong; yet no formal charges were ever brought by any federal agency.
Another truth is Travis Tygart, CEO of USADA, was involved in meetings conducted by Novitzky during the FDA’s investigation, which as stated above, failed to have formal charges filed against Armstrong. The FDA then gave its evidence to USADA, a non-profit, non-governmental agency, which then accused Armstrong of doping violations in a charging letter U.S. District Court Judge, Sam Sparks called “so vague and unhelpful it would not pass muster in any court in the United States.”
It’s also true that Armstrong chose not to defend himself through the USADA arbitration process. However, Armstrong’s official reason stating “enough is enough,” should be examined with a bit of skepticism, because if that were really the case, he would have never filed his federal lawsuit against USADA and Travis Tygart, which arguably could have taken 2-3 years to resolve. Granted, the filing of the lawsuit by Armstrong’s attorneys was most likely a tactical decision to get USADA to show its cards early, and let Armstrong’s legal team get to work on discrediting USADA’s alleged evidence.
Has justice been served because Armstrong will not submit to arbitration? Maybe for some, but take the following into consideration.
The FDA’s and USADA’s methods in building a case against Armstrong appear unconstitutional and unlawful. The prime example of this surrounds the Federal Grand Jury testimony of witnesses subpoenaed by the FDA (USADA does not have Federal Grand Jury subpoena power). Federal Rule of Criminal Procedure, Rule 6 states that grand jury testimony shall be kept secret with some exceptions, none of which include leaking that testimony to the CEO of a non-profit, non-governmental entity, such as USADA. Persons not affiliated with the grand jury are not even supposed to know the names of the person(s) testifying, yet somehow it appears USADA obtained those names, and apparently obtained transcripts of the testimony.
The second example is the FDA’s failed attempt at establishing Armstrong was an “owner” of the U.S. Postal Service Pro Cycling Team in order to have jurisdiction over Armstrong. The FDA couldn’t establish Armstrong’s “ownership” and eventually folded its case. But not until it used the full force and effect of its grand jury subpoena power to elicit testimony from people who could potentially have a lot to lose if they didn’t cooperate.
Why did it happen this way? USADA has no authority to criminally prosecute alleged doping offenders under federal law. Granted, pursuant to their own protocols they can charge, convict, and sanction cyclists, or other athletes for doping violations, but what they can’t do is send people to jail. The FDA can. USADA doesn’t have federal grand jury subpoena power either. The FDA does.
Imagine if you will that you were once a teammate of Armstrong’s during the time period for which he was being investigated. You get served with a federal grand jury subpoena. What do you do? After changing your shorts, you call your lawyer. Your lawyer then discusses the matter with you. What is discussed between you and your lawyer is protected under the attorney-client privilege. My guess is, your lawyer would tell you to show up and tell the truth, because if you didn’t, and it was later proved you lied under oath, you could be prosecuted for perjury and sent to jail (i.e., Marion Jones).
Assuming you testified before the grand jury regarding doping practices (we should never know this either because that testimony is confidential), my guess is that your lawyer would have negotiated some sort of transactional immunity for you, if it wasn’t offered outright; meaning in exchange for your cooperation in testifying in front of the grand jury, you would never be prosecuted for anything related to the subject matter you were testifying about. It’s unclear if this immunity deal would apply to USADA, but considering Tygart was involved at such an early stage of the federal investigation, there is a strong implication deals were also struck with USADA. Armstrong’s lawsuit against USADA alleged they obtained witness statements in violation of the WADA Code through financial incentives. If USADA paid for testimony then he’s right. However, there is nothing wrong with federal prosecutors offering immunity in exchange for testimony, and USADA piggybacking on those deals. If money did change hands then we’ve got a whole new issue to discuss.
After the FDA failed to persuade the federal grand jury to file a single criminal indictment against Lance Armstrong, and the US Attorney dropped the case, all that evidence obtained by the FDA during its criminal investigation made its way to Travis Tygart and USADA.
USADA’s evidentiary threshold is far less stringent than the FDA’s because it is not subject the rules that governed the FDA’s criminal investigation. US District Court Judge Sam Sparks stated in his opinion dismissing Armstrong’s lawsuit against USADA and Tygart that “the deficiency of USADA’s charging document is of serious constitutional concern.” What Judge Sparks was referring to was Armstrong’s due process claim, stating he would not have enough time to prepare his defense under USADA’s rules because the charging document was so “vague.”
USADA has yet to provide the UCI with its report regarding Armstrong, which suggests there may not be as much, or any of the evidence, they claim to possess.
Maybe this was the plan all along. Maybe the FDA realized it couldn’t win within the constraints and burdens imposed by the Federal Rules of Criminal Procedure, and decided maybe another entity could prevail that didn’t have those constraints and burdens. Why else would Tygart be participating in meetings conducted by FDA investigators? The strong inferences derived from the witness testimony obtained during the grand jury proceedings couldn’t win the day for the FDA, but the statements did win the day for USADA, because that’s all they needed.
Further, justice can’t be served when the sanctions handed out for doping aren’t applied evenly. Armstrong was given a lifetime ban from cycling, and now appears to be banned from all sanctioned sports events, and has had all his results from 1998 forward erased. This is especially troubling considering the rules under which Armstrong was charged, the WADA Code didn’t take effect until January 1, 2004. USADA itself didn’t even exist until 2000. It appears the rules applicable here were applied retroactively as the allegations against Armstrong included events prior to 1996. Considering our own federal government is prohibited from passing ex post facto* laws, a further inference can be made this was USADA’s investigation from the beginning. Check out Article 25.2 of the USADA “Protocol for Olympic and Paralympic Movement Testing.”
Contrast this with the handling of cycling’s current top star, Alberto Contador, who professed innocence, but was found guilty of doping and given a two-year suspension (which was really only 6 months away from racing) and was stripped of his 2010 Tour de France victory. Granted Contador is not a US citizen, but considering Contador was implicated in doping scandals dating back to 2006, why wasn’t he banned from pro cycling? Why weren’t all his results from 2006 forward taken off the books? For those of you screaming at your computers that Contador was cleared of any wrongdoing regarding Operación Puerto you are correct. But the doping allegations continued, and so did Contador. Contador tested positive, sat out for six months, and was back racing. Armstrong has been stripped of all his palmares, and effectively banned him from any sanctioned sporting event.
The list continues with admitted dopers Bjarne Riis, Jan Ullrich, Laurent Fignon, Jonathan Vaughters, and Frankie Andreu. Some of these riders were sanctioned, others, due to the statute of limitations running, were never punished. Riis and Vaughters are currently the directors of successful pro cycling teams, and both confessed to doping once the statute of limitations applicable to each ran. Vaughters states he is dedicated to racing clean, and so far there is no reason to disbelieve that, the same can’t be said for Riis. Riis has kept interesting company, including confirmed dopers, like Contador, Hamilton, Frank Schleck, and Ivan Basso. Why hasn’t Riis been given a lifetime ban?
Lastly, there are former pro cyclists out there who claim to be crusaders against doping, yet a strong inference (the same concept used to implicate Armstrong) can be drawn that they themselves were doping. I mentioned Laurent Fignon for a reason. Fignon provided his thoughts about doping in his autobiography stating, "We didn't feel like we were cheating: each of us settled matters with his own conscience. And in any case, everyone did it." Fignon confessed openly he doped during the height of his career, which included the 1989 Tour de France where he was beaten by Greg LeMond, who recorded the fastest time trial in Tour history, a record that held until 2005. Lemond has been very outspoken regarding doping, even testifying during the Floyd Landis hearing. If Fignon is to be believed then the proverb “He who lives in glass houses, shouldn’t throw stones” appears apropos. Lemond was ironically accused of doping by Dr. Michele Ferrari in July 2010 in an open letter to LeMond after LeMond had blogged about a new generation of cyclists that chose not to follow in the path of their doping predecessors, and criticizing Ferrari. Obviously, Ferrari’s statement in retort, “But what Greg does not know, or pretends not to know, is that one of such “confidants” actually clearly mentions his name and that of his doctor in relation to doping events“ bears serious examination of its truthfulness, but how different is his statement than that of Hamilton or Landis?
The American Way
American athletes, politicians and celebrities who get in trouble have all been taught to deny, deny, deny, until someone produces a stained-blue cocktail dress. Then you admit your wrongdoing, sincerely apologize and life goes on. In this case USADA doesn’t have the stained dress; they only have people who claim to have seen the dress. The reason behind the “deny, deny, deny, method” stems from an American’s Fifth Amendment right against self-incrimination and a lawyer’s advice: better to deny, and make someone prove otherwise, than to just come right out and admit something, because maybe you’ll get lucky, and the person trying to prove you are guilty may not be successful, like exactly what happened with Novitzky and the FDA.
The problem here is an entity without the constraints of the criminal justice system and no criminal prosecution powers was given all they needed to go after Armstrong pursuant to their own system and set of rules. Because Armstrong gave up the fight, critics can now say whatever they want because they know there will not be a response. In a recent online article, the AFLD, the French anti-doping agency, stated Armstrong was tipped off regarding imminent doping tests. What the AFLD failed to do was provide any supporting evidence on how Armstrong was tipped off, or by whom. Why not just say the USPS team parachuted small-drug-pouch-carrying monkeys, to land on the top of the hotel where the team was staying to deliver drugs? There is a significant double standard being applied here. Many are quick to convict Armstrong without substantial proof (beyond the alleged witness statements), yet have no problem accepting the claim from AFLD, which is wholly unsupported by proof.
This doesn’t mean Armstrong isn’t guilty of doping. It just means the systems and procedures put in place to prevent him from doping, or catch and punish him if he did, are flawed and have produced no tangible evidence thus far. Drug testing in and out of competition appears to be woefully inadequate. So too is the investigation and prosecution carried out by USADA against Armstrong. If an entity like USADA is “certain” an athlete has doped, and a criminal conviction in a proper court of law can’t be secured, then they get to proceed anyway, within their own system, using their own rules. There is something inherently wrong with that kind of mentality.
Regardless of what you think of Armstrong, and whether he doped or not, he deserves the same treatment as every other professional athlete accused of doping, and should not be the subject of a vendetta. Maybe Armstrong is receiving his comeuppance, but it’s being delivered through a flawed system, and being heard in the court of public opinion, which is not privy to all the evidence, or lack thereof, regarding this case.
In addition to its efforts against Armstrong, USADA has initiated a process which may have a detrimental effect within the pro peloton. In the end, its efforts may dismantle professional cycling as we know it. Maybe that was the plan all along.
About the authors:
Heath Langle is a trial attorney and USAC Masters category racer. He is a member of the Sacramento Golden Wheelmen Bicycle Racing Team. He is a native Californian, a freelance writer, and contributor to The Daily Peloton. Follow him on Twitter @CALawDawg or email: firstname.lastname@example.org.
Kurt Grahl is also a licensed attorney and freelance writer. Grahl, a Michigan native, contributed a series of articles on the 2004 and 2005 Tours de France to Northern California newspapers, and has attended the Tour from 2003-2007. He is currently teaching and coaching men’s college basketball.
* Latin for "from a thing done afterward." Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep't of Corrections v. Morales, 514 US 499 (1995).
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