Armstrong in unfamiliar territory

Experts say new challenge of anti-doping agency's actions would be long shot

Updated: July 10, 2012, 11:29 AM ET
By Bonnie D. Ford | ESPN.com

Lance Armstrong's virtual day in court was unlike most days he experienced during his seven-year championship reign in the Tour de France.

He has been dropped, at least for the moment. Monday morning, Armstrong, who reached unprecedented heights as an athlete, targeted a legal precedent: Stopping the established process for adjudicating doping cases in its tracks essentially before it begins. His lawyers filed a motion for a temporary restraining order and preliminary injunction against the U.S. Anti-Doping Agency and its chief executive officer, Travis Tygart, in federal court in Armstrong's longtime residence of Austin, Texas. Also submitted were a formal complaint and demand for a jury trial, and voluminous documents in support of the original motion.

This Court is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement or vilification of Defendants, by sifting through eighty mostly unnecessary pages in search of the few kernels of factual material relevant to his claims.

-- Judge Sam Sparks

Mere hours later, U.S. District Judge Sam Sparks took the air out of Armstrong's tires, rejecting the motion on procedural grounds and issuing a caustic scolding to its authors for what he described as playing to an audience rather making a legitimate legal argument.

Sparks wrote that the rule that sets parameters for such motions demands "a short and plain statement of detailed facts, not a mechanical recital of boilerplate allegations nor -- as is more relevant here -- a lengthy and bitter polemic against the named defendants."

The judge added that he viewed much of the verbiage in the filing as intended "solely to increase media coverage of this case, and to incite public opinion against Defendants. … The Court is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants, by sifting through 80 mostly unnecessary pages in search of the few kernels of factual material relevant to his claims."

This is not a one-day race. Sparks made it clear he was not ruling on the merits of Armstrong's claims -- only that they were not properly and concisely stated in the filing. The motion was dismissed without prejudice, meaning that Armstrong can have his lawyers refile an amended motion within 20 days, which one of his lawyers, Tim Herman, said he will do -- probably within a couple of days. The clock continues ticking for Armstrong, who faces a deadline of end-of-business Friday to elect whether to accept USADA's sanctions -- including the stripping of his Tour titles and a lifetime ban from competition -- or to request an arbitration hearing. He has been competing as a professional triathlete but is currently suspended from World Triathlon Corporation events, thwarting his goal of competing in the World Ironman Championship this fall in Kona, Hawaii. The WTC bars participation by athletes under investigation for doping.

Many experts say Armstrong's bid to end-run USADA is a long shot. But after implying in an interview this year that he might not fight any case brought by the agency, Armstrong is apparently willing to take his chances and try to at least postpone the decision of whether to contest USADA's charges. The charges include use, possession and administration of, and trafficking in, banned substances and engaging in a conspiracy to cover up violations. Five others are also charged, including Armstrong's longtime team director Johan Bruyneel and his former trainer, Michele Ferrari.

In Monday's filing, in harsh and often personal terms, Armstrong's defense team repeated many of the same allegations made publicly during a 20-month-long Los Angeles-based federal investigation into the retired professional cyclist and his former U.S. Postal Service cycling team officials and business associates. The federal probe, unlike the USADA case, focused on potential fraud and conspiracy charges rather than doping itself. It was abruptly terminated without explanation in early February by U.S. Attorney Andre Birotte Jr.

The meat of the request for a temporary injunction is that Armstrong would be denied due process in an arbitration hearing -- an issue that five legal experts outside USADA told ESPN.com probably would not be grounds for a federal judge to intervene. The experts' consensus was that any such arguments would have to be raised during an arbitration hearing. Then, and only then, the experts said, could Armstrong expect the courts to consider a violation of due process, based on what had actually happened rather than what the motion predicted would happen.

For example, the motion contended that Armstrong would not have the opportunity to cross-examine witnesses, although the rules of the American Arbitration Association under which doping cases are heard provide for that and it routinely happens in practice. If, hypothetically, his lawyers were denied the chance to cross-examine a witness, Armstrong could raise that in the federal court system afterward -- but not before, the experts said.

"Normally, complaints about the arbitration process have to wait until after the arbitration," said Maureen Weston, a professor of law at Pepperdine University who specializes in the fields of arbitration and sports law. "If you're claiming it's a kangaroo court, you can make those arguments to the panel."

Weston is of the opinion that the only grounds for a court to stop the USADA process at this point would be if Armstrong's lawyers could prove there is no "agreement to arbitrate" -- in other words, if Armstrong's obligation to submit himself to this administrative process was not binding. "The 'agreement to arbitrate' is the gateway question," she said.

USADA maintains that Armstrong was subject to it during the time he held a USA Cycling license, which would cover all of the years of the agency's doping and conspiracy allegations, and that its jurisdiction is authorized by the U.S. Olympic Committee and the U.S. Congress.

The motion also sought to define USADA as a "state actor" that conducted its investigation hand-in-glove with the federal government -- a concept that, if successfully argued during arbitration, could help Armstrong's lawyers eventually push the case into civil court. However, Notre Dame law professor Roger Alford, an expert in international arbitration, said he considered that "not a likely scenario." USADA has contended that it is proceeding on evidence it collected independently.

Alford and Weston both noted that federal courts have consistently declined to intervene in sports doping arbitrations for the past 10 years.

If Armstrong's lawyers are unsuccessful in challenging USADA's jurisdiction and he elects not to arbitrate the charges, the agency would unilaterally impose sanctions. Sources familiar with doping cases say it is also conceivable the two sides could reach a plea agreement of sorts, under which USADA could strip Armstrong of his titles without protest from the cyclist but spare him the lifetime ban he faces. One crucial question is whether USADA would agree to such a deal without an admission from Armstrong.

T.J. Quinn, a reporter in ESPN's enterprise and investigative unit, contributed to this story.

Bonnie D. Ford

Enterprise and Olympic Sports
Bonnie D. Ford is a senior writer for ESPN.com.