Armstrong v. Tygart | Fairness of Arbitration Procedure

by Renée Kolar

This coming Friday, August 10th 2012, the U.S. District Court for the Western District of Texas, Austin Division, will have to decide whether or not it should enjoin Defendants from enforcing an arbitration deadline against Lance Armstrong while the lawsuit progresses. In anticipation of the hearing, this week we will be summarizing Armstrong’s complaints and Tygart and USADA’s responses in their motion for summary judgment.

Background

The U.S. Anti Doping Agency (USADA) notified Armstrong and other members of the team on June 12, 2012 of its opening of a formal action alleging anti-doping rule violations. (read the notification here). On June 29, the Anti-Doping Review Board made a unanimous recommendation to move forward with Armstrong’s adjudication process. Soon after, the USADA announced that three members of Armstrong’s team have all received lifetime periods of ineligibility as the result of their anti-doping rule violations in the United States Postal Service (USPS) Cycling Team Doping Conspiracy. (read more here)

On July 9, Armstrong filed a lawsuit and a motion for a Temporary Restraining Order (TRO) in the Western District of Texas in an attempt to shut down the USADA case. (read the Complaint and TRO). However, six hours later, the Court dismissed (without prejudice) Armstrong’s suit in a strongly worded Order. (read the Order here). Armstrong was allowed to re-file an amended complaint within 20 days of the Court’s order which he did the next day. Armstrong v. Tygart et al. , No. A-12-CA-606-SS. (read the July 10th Amended Complaint here).

On July 11, the USADA granted Armstrong an extension of up to 30 days (the original deadline was July 14) to contest drug charges while he challenges the case in federal court. If Armstrong doesn’t respond to the USADA doping charges prior to the end of the extension period and ask for an arbitration hearing to face the allegations, a lifetime ban will go into place and he could face the loss of his Tour de France titles.

In the meantime, the U.S. District Court for the Western District of Texas, Austin Division, set the date for this Friday’s hearing to decide whether the Court should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses. Read the Order here.

Amended Complaint—Arbitration is Unfair

Armstrong contends that the USADA arbitration process violates Fifth Amendment due process and principles of common law due process.

According to Armstrong, the rights afforded him in the Fifth Amendment of the U.S. Constitution, protecting against abuse of government authority in a legal procedure, have been violated. Armstrong alleges the infirmities of USADA’s arbitration procedures are in violation of the Fifth Amendment’s procedural due process. In particular, he identifies (1) the lack of a charging document that fairly informs Mr. Armstrong of the charges against which he must defend, (2) the absence of a right to cross-examine and confront his accusers, (3) the failure to produce exculpatory evidence, (4) the failure to disclose cooperation agreements or inducements provided by Defendants to witnesses, (5) the failure to provide investigative witness statements, (6) the failure to provide full disclosure of laboratory analysis, (7) the lack of impartial assessment of the accuracy of laboratory testing procedures, (8) the lack of an impartial arbitration panel, and (9) the absence of a right to a hearing upon appeal to CAS.

Armstrong claims that Defendants have also violated common law principles of due process by their conduct in violation of the UCI’s rules and USADA’s own rules. More specifically, Armstrong argues that UCI has not delegated any disciplinary proceedings to USADA in connection with any such alleged violations. He claims furthermore that the UCI’s rules do not authorize Defendants’ conspiracy charges against Mr. Armstrong nor the bringing of a consolidated action against six respondents, including other respondents as to whom USADA lacks jurisdiction. Armstrong contends that USADA’s charges against him also violate the WADA Code and USADA’s own rules (USADA’s Rules, Protocol for Olympic and Paralympic Movement Testing, (www.usada.org/files/pdfs/usada-protocol.pdf), including, the statute of limitations, the Review Board process, procurement of unreliable evidence from witnesses by improper means, and agreements as to disciplinary actions relating to witnesses.

Motion to Dismiss—Arbitration Is Fair

Defendants briefly address Armstrong’s complaints of lack of due process in the AAA procedure. They assert that this “mistrust of the arbitral process” has been “undermined by [the Supreme Court’s] recent arbitration decisions” and that these claims must be arbitrated and the suit dismissed.

They contend that courts have “declined to indulge the presumption” that an arbitral institution will be unable to retain competent, conscientious and impartial arbitrators. Regarding Armstrong’s complaint that discovery will be limited in arbitration, Defendants argue that courts have recognized that a party “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” And finally, in response to Armstrong’s allegations that the USADA Protocol does not allow full judicial review, and the available review is by a Swiss court, Defendants assert that “Courts repeatedly admonish that ‘severely limited’ judicial review is an essential, and inherent, feature of contractually agreed binding arbitration, necessary to avoid undermining the ‘twin goals of arbitration . . . settling disputes efficiently and avoiding long and expensive litigation.’”

Related Posts:

• Armstrong v. Tygart | Jurisdiction, Disputing, August 7, 2012
• Armstrong v. Tygart | Existence of Agreement to Arbitrate, Disputing, August 6, 2012
• The International Convention Against Doping in Sport of 2005, Disputing, August 2, 2012
• USADA Case against Lance Armstrong | USADA’s Successful Arbitration Track Record, Disputing, August 1, 2012
• USADA Case against Lance Armstrong | USADA Adjudication Process Part VI | Right to Appeal to the Court of Arbitration for Sport (CAS), Disputing, July 30, 2012
• USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012
• USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012
• USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012
• USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012
• Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012
• USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012
• Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012
• Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012
• USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012
• USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012
• Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012

Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.