The Sports & Entertainment Law Playbook

At the risk of beating a dead horse I'm going on record as saying that yesterday's "breaking news," also known as the U.S. Anti-Doping Agency's 200-page report detailing the so-called hard evidence that Lance Armstrong cheated to win his 7 Tour de France titles, doesn't change anything. Although headlines of USADA's report focus on the testimony against Armstrong by 11 of his former cycling teammates, if you read on, you'll see that the "new" report does nothing but rehash vague, unreliable, or unverifiable facts and allegations that were already known.

In a letter sent to USADA attorneys on Tuesday, Armstrong's attorney, Tim Herman, called the report:

[A] one-sided hatchet job—a taxpayer funded tabloid piece rehashing old, disproved, unreliable allegations based largely on axe-grinders, serial perjurers, coerced testimony, sweetheart deals and threat-induced stories.

Herman also pointed out that two of the key witnesses—Floyd Landis and Tyler Hamilton—are "serial perjurers and have told diametrically contradictory stories under oath."

Admittedly, I haven't taken the time to read the whole report, and unless it becomes my job to do so, I won't, because I consider it to be merely propaganda. It doesn't appear that there is anything in there that we didn't already know…or at least suspect. Essentially, it lays out a pattern of circumstantial evidence, mostly testimonial, which shows how Armstrong (and his teammates) could have been doping all along—that is, all along, during those years when he was probably the most tested professional athlete in the world.

Let us not forget that doping has been around in professional cycling for over 100 years. In fact, doping allegations have plagued the #Tdf since 1903.

The one new piece of evidence in this week's USADA report was a statement by Armstrong's longtime friend and teammate George Hincapie, who is distinguishable as the only cyclist to have assisted Armstrong in all 7 of his #TdF victories. Regardless of what impact, if any, Hincapie's contribution had on the totality of USADA's damning evidence against Armstrong, Hincapie's statement doesn't even mention Armstrong by name.

Something that occurred to me after reading several news accounts of USADA's latest propaganda report is that its CEO Travis Tygart wasn't able to garner the testimony of any unbiased witness. What I mean by that is that all of the people who gave testimony to USADA had something to gain in exchange for doing so—they were all U.S. cyclists, or in one way or another were in a position such that they could find themselves on the wrong side of what limited authority USADA actually has. For example, Armstrong's ex-wife, Kristin Richard—who is implicated throughout the report as a key accomplice to Lance's alleged doping regime—did not participate in any part of the investigation. Why? Because USADA couldn't force her to.

This brings me to my final (and, sorry, more or less my only) point: USADA doesn't have the authority or jurisdiction to strip Lance Armstrong of his 7 #TdF victories. As of today (11 OCT 2012), he still has the world record for most #TdF wins, and remains the only cyclist to have won the event seven times! That's a fact.

Earlier:

Armstrong's Yellow Jerseys Haven't Gone Anywhere...Yet
Deja Vu All Over Again: USADA Launches New Assault on Lance Armstrong
Latest on Blood Doping in Pro Cycling

Photo credit: Judi Oyama

The Double Jeopardy Clause in the U.S. Constitution says that no man "shall...be subject for the same offense to be twice put in jeopardy of life or limb..." In (modern) English, that means that a person should not be prosecuted twice for committing the same crime or bad deed. Seems reasonable, right? The founders of this country put it in the Constitution for a reason. Unfortunately, however, the application of the Double Jeopardy Clause (DJC) has significant limitations, one of which is that it only "attaches" (i.e. applies) once a jury is empaneled at a trial, or if there's no jury, once the first witness is sworn in.

Since Lance Armstrong was never put on trial for the doping allegations that resurfaced yesterday, the DJC won't help him. But that doesn't mean that its underlying principles can't. For example, the legal doctrines of collateral estoppel and res judicata are both based on the principle that you cannot re-litigate an issue that's already been decided by a court. In Armstrong's case, he's been tested for doping/performance-enhancing drugs more than 500 times, and not a single test has been positive. He's already been cleared of doping charges/allegations by cycling's governing body, the International Cycling Union, and the World Anti-Doping Agency. Earlier this year, the U.S. Justice Department dropped its two-year investigation of Armstrong's alleged doping. Now, the United States Anti-Doping Agency (USADA) is going after Armstrong.

[N]umerous riders, team personnel and others will testify based on personal knowledge acquired either through observing Armstrong dope or through Armstrong's admissions of doping to them that Lance Armstrong used EPO, bloodtransfusions, testosterone and cortisone during the period from before 1998 through 2005, and that he had previously used EPO, testosterone and hGH through 1996.

Whether Armstrong did it or not isn't, and shouldn't be the issue. The issue is whether it's fair, reasonable, or a fastidious use of taxpayer money (USADA is funded by the U.S. Olympic Committee and the federal government) to rehash these allegations. Armstrong was tested 500 times by various anti-doping agencies, and never had a positive test result. These allegations have been circling for more than a decade, yet numerous agencies have either exonerated him, or determined that there wasn't enough real evidence to proceed.

But hold the presses, USADA has people with personal knowledge who are going to testify against Armstrong! Seriously?? Personal knowledge is sufficient for a search warrant—not a conviction, which would be the professional athlete's version of capital punishment. If I were Armstrong's attorney, I would file a libel lawsuit against USADA, and an emergency motion for preliminary injunction to enjoin them from proceeding with this witch hunt.

More Articles:

Latest News on Blood Doping in Pro Cycling

From CNN:

Lance Armstrong banned from world Ironman events over doping probe

Ex-teammate: I saw Lance Armstrong inject banned substances

Ryan Braun just became the first major league baseball player to successfully overturn a positive drug test result on appeal, and based on the immediate reactions in the press and Major League Baseball itself, you'd think the Berlin Wall had just crumbled. But before everyone jumps to the conclusion that baseball's drug policy is flawed, or that this outcome will somehow open up the proverbial floodgates to players wanting to challenge their positive drug test results, let's put it in perspective.

Prior to Braun's appeal of his October 2011 test result, twelve other positive drug test results were upheld on appeal. In terms of batting average, that's .077. By comparison, in our civil justice system, somewhere between ten and twenty percent of cases are reversed on appeal (in batting average that's .100 to .200). And according to this NY Times report, two-thirds of all death sentences are overturned on appeal (.666). So if you're José Canseco planning a comeback, don't get your size small jockstrap out of retirement yet.

If you want to be upset about something here, it should be the comments by Rob Manfred, MLB's Executive Vice-President for Labor Relations & Human Resources, who is an attorney (Hahh-vaad educated) and was one of the three attorneys that presided as arbitrators of the appeal:

Major League Baseball considers the obligations of the Joint Drug Prevention and Treatment Program essential to the integrity of our game, our Clubs[,] and all of the players who take the field. It has always been Major League Baseball’s position that no matter who tests positive, we will exhaust all avenues in pursuit of the appropriate discipline. We have been true to that position in every instance, because baseball fans deserve nothing less.

As a part of our drug testing program, the Commissioner’s Office and the Players Association agreed to a neutral third party review for instances that are under dispute. While we have always respected that process, Major League Baseball vehemently disagrees with the decision rendered today by arbitrator Shyam Das.

The reason that Braun's positive test result was thrown out was that after the tester collected the urine sample, he kept it in his refrigerator over the weekend, and it wasn't actually examined until days later when it was received by the lab in Montreal. Some call that a technicality, but in reality, once a urine sample is 24-hours old its clinical significance is worthless by medical standards.

As attorneys, we are sworn to advocate for truth, justice, and the Federal Rules of Evidence, but based on Manfred's comments, his only concern is imposing punishment, rather than making sure that punishment is first warranted or justified. Moreover, the fact that Manfred called out his colleague, for essentially voting in a manner consistent with well-established legal doctrine, casts serious doubt on his integrity. 

Ironically, baseball analyst Tim Kurkjian (@Kurkjian_ESPN), who by the way is not an attorney, hit the ball on the screws in this interview:

Just like in a court of law, both sides had a chance to present evidence, and in this case the evidence went in Ryan Braun's favor.

Did the National League's 2011 Most Valuable Player use banned substances during last season's playoffs? We don't know. After learning about the positive test result from the MLB collection, Braun had a second test performed by an independent laboratory, and that test revealed normal levels of testosterone. Braun also tested negative for banned substances on three other occasions during the 2011 season. That doesn't mean that he was clean when he was tested in early October, but given the circumstances of the first drug test, the results are clinically unreliable, and so punishment would be unjust.

Photo credit: Steve Paluch