The Weigh-In: Lance Armstrong and the Complex World of Anti-Doping Arbitration John T. Wendt, J.D., M.A. August 29, 2012 Editor’s note: “The Weigh-In” is a regular Newsroom column that features commentary from faculty experts on breaking news, trends and current research. Most of us can agree that in the hyper-competitive world of international athletic competition – where every athlete is looking for an edge – sports must adhere to a strict standard of ethics and fair play by all. But the world of Anti-Doping testing and arbitration – those entities that are responsible for maintaining these competitive standards – represent a complex system that extends far beyond individual sports and borders. After the 1998 Tour de France scandals, the first World Conference on Doping in Sport was convened, and there was a call for an independent international agency to “harmonize and marshal the global fight against doping in sport.” As a result, the World Anti-Doping Agency (WADA) was created to reinforce the ethical principles that are described in the Olympic Charter. With transparency and input from all stakeholders, the WADA developed the World Anti-Doping Code, which was adopted in 2003. Every country now has a National Anti-Doping Organization (ADO) that is responsible for testing national athletes in- and out-of-competition, as well as athletes from other countries competing within that nation’s borders. The ADOs also adjudicate anti-doping rules violations and provide anti-doping education. Here in the United States, that organization is the United States Anti-Doping Agency (USADA). Both the United States Olympic Committee (USOC) and the United States Anti-Doping Agency (USADA) are signatories to the World Anti-Doping Code, and are bound by all the terms. The intention of the adherence to the rules in the code is to make sure that it is effort and talent that determine who wins, nothing else. There is also a separate independent legal system for Olympic sport known as the Court of Arbitration for Sport (CAS) located in Lausanne, Switzerland that has been in existence for 30 years. The CAS has the “aim of ensuring the protection of the rights of the parties before the CAS and the absolute independence of this institution.” When USADA makes a charge, the athlete has a choice to choose to accept the charge and face a suspension or ban, or challenge it before the American Arbitration Association/CAS. In the United States, USADA has a record of 58 wins out of 60 cases. The Armstrong Case USADA charged Lance Armstrong with using the banned red blood cell booster erythropoietin (EPO), testosterone, blood transfusions and corticosteroids, trafficking, and administration to others. Even though Armstrong has been tested hundreds of times and never tested positive, USADA brought their case forward based on what is known as a “non-analytical positive,” where doping can be established “through admissions, third party testimony or other evidence.” Armstrong claimed that USADA’s system was biased against him. Instead of accepting the choices offered by USADA, Armstrong tried to move his case outside the system and have it heard either in U.S. federal court or before the Union Cycliste Internationale (UCI), the international governing body of cycling. UCI claimed that they had jurisdiction. USADA insisted that under the Code, they had jurisdiction. Last week in Austin, Tex., U.S. District Judge Sam Sparks sided with USADA stating, “(E)ven if the court has jurisdiction over Armstrong’s remaining claims, the court finds they are best resolved through the well-established system of international arbitration, by those with expertise in the field, rather than by the unilateral edict of a single nation’s courts.” If Armstrong was going to fight the charges, he had to go through AAA/CAS arbitration first, before filing an appeal to the CAS in Switzerland, and then on appeal to the Swiss courts before the US Federal Court would intervene. Instead of going through the process demanded by USADA, Armstrong opted completely out saying, “There comes a point in every man’s life when he has to say, ‘Enough is enough.’ … For me, that time is now.” In addition to a lifetime ban from cycling competition, USADA disqualified Armstrong from any and all competitive results obtained on and subsequent to Aug. 1, 1998, including forfeiture of any medals, titles, winnings, finishes, points and prizes. These actions include Armstrong’s Tour de France titles; however, questions have arisen whether USADA can do that. UCI could possibly choose to appeal the case to the CAS. UCI has told USADA that under Article 8.3 of the Code, UCI has a right to a complete, detailed report from USADA on the reasons for its findings against Armstrong before the UCI will make any decision. This detailed report could include a list of all witnesses, testimony and other evidence that they have against Armstrong. International cycling has a long history of doping in the sport. The question now is if the USADA is successful in stripping Armstrong of the Tour de France titles who would be named as the winner? The list is literally a rogues’ gallery. Alex Zulle runner-up in 1999 admitted to having taken EPO for the previous four years. Three time runner-up Jan Ullrich, as well as 2005 runner-up Ivan Basso, have been banned for doping and were implicated in the anti-doping “Operation Puerto” police investigation in Spain. Perhaps, they may go the route of “The Asterisk” that is becoming more common in sport? For example, Bjarne Riis won the Tour in 1996, but in 2007, after the statute of limitations expired, Riis admitted that he used EPO when he won. In 2008, Philippe Sudres, media director for the Tour de France to Danish magazine Politiken said, “We cannot rewrite history. Therefore we recognise Bjarne Riis as the winner of the 1996 Tour de France. But with an asterisk” Yet, when you look at the official Tour History Guide, Riis’ name is there, without the asterisk. History seems to be kind. We do not know what will come next in Armstrong’s story, but we do know that the ending has yet to be written. John Wendt is a member of the Ethics and Business Law Department in the Opus College of Business. He serves on both the Special Doping Panel of the American Arbitration Association and as a member of the International Court of Arbitration for Sport (CAS). The CAS is an institution independent of any sports organization which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation. The CAS has only 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. 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