“After conducting a random out-of-commentating test on April 7th, 2012, we found substances that would indicate possible performance enhancements by both Steve Schlanger and Todd Gogulski. In line with our code, we have forwarded the file to the UCI for follow-up. As of today, Schlanger and Gogulski have not requested a review of their B sample,” stated a representative from WADA.

Most of the cycling world were expecting to the duo to be nabbed for commentary doping after their performance on April 6th, 2013, when they made a series bizarre on-air references about Movistar rider Nairo Quintana. Instead of the typical veiled commentary made popular by most journalists and analysts, the Universal Sports pair chose to publicly question the validity of Quintana’s performance.

However, legal representation for Schlanger and Gogulski are incensed over the findings, saying his clients were the victims of a “witch-hunt” and “target-testing.”

“It’s a proven fact that 90% of the commentating pool would return an AAF. My clients are being singled out for actions echoed in commentating booths around the world. The fact that this “out-of-commentating” test should happen to occur the day after they caused a well-justified uproar is the sort of problem facing the entire sport today,” stated Steven Sondhurst, legal representative for the beleaguered duo.

In keeping with WADA rules, Universal Sports immediately took action to suspend the duo from commentating duties pending an investigation into the matter.

“We will be cooperating fully with WADA and the UCI to get to the bottom of this situation. However, we are shocked that these two credible journalists would be singled out after so many commentators on Sporza and Eurosport have been known to be guilty of journo-doping in the full presence UCI brass and yet have escaped testing and sanctions,” stated Bonnie Fromstein, a representative from Universal Sports.

WADA refuses to divulge what may have been the substances discovered during the out-of-commentating test. However, other commentators have been speculating as to what the duo may have been guilty of ingesting.

“We all know that comments like the ones that occurred on April 6th are usually the result of some sort of hallucinatory product, maybe even something peyote-like, which is also used for commentator medicinal purposes. If it was peyote, I’m sure there will be the appropriate Therapeutic Use Exemption produced to explain the positive,” commented one Eurosport commentator familiar with the situation.

Some in the commentary pool were not as pleasant in their assessment.

SBS Cycling Central pundit Phil Gomes wrote a well-reasoned rebuttal to the duo’s on-air comments in addition to tweeting,

“Schlanger and Gogulski’s take was particularly egregious, and seemingly misinformed, a cheap shot.”

No word from the UCI when a resolution to the case will be had. The duo remain on “administrative paid leave pending investigation” status at Universal Sports.

I can safely say that without the efforts of a certain UCI management committee member who may or may not be from the British Isles, we wouldn’t even have an independent commission in the first place. During the emergency management committee meeting a faction group, which included the aforementioned individual, asked for the removal of Hein Verbruggen as honorary president of the UCI. Our current president, Pat McQuaid, said that was completely out of the question. As a compromise, we have what is now the UCI Independent Commission.

While many individuals (including the Change Cycling Now group) were worried about the neutrality of the independent commission, we can now say we have a good sense that unlike the Vrijman inquiry of 2006, we have a panel which is interested in assisting the sport to escape its shite past.  And to those who gave me shite privately about my faith that this panel wouldn’t be another “UCI lapdog of ridiculousnessyness,” I told you so (yeah, I’m talking to you, Jaimie Fuller, among others). You all owe me a beverage. Grey Goose vodka,  thank you.

What does yesterday mean? That the “IC” part of that acronym well and truly means “independent.” UCIIC had the stones to say to the UCI, “Um, no thank you, we’re not going to suspend inquiries. And if you’re worried about costs, and the fact you’re going to potentially have two separate inquiries going, that’s just too damn bad. You made this mess, you have to clean it up.” The sticking point is the UCI has now agreed to explore a Truth and Reconciliation process and is currently having discussions with WADA on this front. While doing this, the UCIIC is still going forward with their inquiry and investigation into the allegations from the Armstrong business. However, the UCI seems to be hung up on how this procedure works, as it falls outside the current rules over which WADA presides.

The response by the UCI should give everyone an indication on how they operate, and reveal potential motivations behind their actions. Do they have something to hide? Are they concerned about what may be exposed? The fact that the UCI has responded to requests for information by the UCIIC at the eleventh hour might indicate their reluctance to share information. Or does it? Could the UCI be a victim of simply biting off more than it can chew?

The public response by Pat McQuaid and Hein Verbruggen to criticism of the “warnings” they gave riders shows me one thing with crystal clear 20/20 hindsight – the UCI is completely obsessed with finances and revenue. It drives all their decision-making. Could it be that the warnings were simply done in order to avoid additional costs of having to prove a rider was dirty?

The American auto industry is a prime example of this mentality. It’s a known fact that if an auto company discovers a flaw in one of their automobile products, the failure analysis process for the company evaluates which is cheaper for them to absorb: a mass recall in order to fix the problem, or responding to insurance claims from individuals who may become disabled/dead from the automobile failure. There are individuals at all the major American automobile companies who make these evaluations, and their recommendations are what drive this decision-making process. It’s cold, it’s clinical, and ultimately it puts bottom-line profit above the wellness of humanity. I find it completely disgusting, personally.

By the same token, this mentality permeates the upper levels of the UCI. There are a number of lawyers who preside and advise the UCI by making similar sorts of decisions, and have been doing so since Verbruggen took over. It’s why we have comments like “all the international federations were doing it, don’t blame us,”  or “we need to end this independent commission and start over with a truth and reconciliation process,” or “our financials will not allow us to commence two independent evaluations in parallel.”

Instead of doing what is “right” for the sport, the UCI is obsessed with what is “legal” or what is “cost-effective” for the governing body – at the expense of the entire sport. This reflects the overly-strong influence of individuals like Jean-Pierre Strebel and Philippe Verbiest, among others. This is also why having folks from Ernst & Young determine what is best for cycling is absolutely the wrong way to move the sport forward. And what we’re left with are these sorts of recaps, as reported by cyclingnews.com yesterday, where the UCIIC noted the UCI had FAILED to comply with providing the information asked:

Counsel for the UCI said that it had 16 lever-arch files of documentation ready, but that these files had not been disclosed due to the lack of clarity regarding how the independent commission would proceed in the wake of its call for the installation of a truth and reconciliation commission. The UCI has since agreed to provide this documentation to the Independent Commission, which it will read before next week’s hearing. During the hearing, a draft proposal from USADA concerning how a TRC would function was circulated.

It’s going to be a long process for the UCIIC to slog through the layers upon layers of smokescreens which have been laid down over the past two decades by the UCI itself. Cycling should be thankful that WADA and USADA are two agencies willing to spearhead this effort, and hopefully there will be more agencies/federations joining in this effort shortly. As demonstrated by the UCI’s actions, they are ultimately unwilling to do it themselves without the constant prodding.

Where does this leave us?

There is a renewed call by many for cycling to lose its Olympic standing. In fact, if the UCIIC is able to demonstrate there were dubious activities being conducted by members of the UCI during the Armstrong era, this could be a distinct reality. The IOC is about protecting its legacy, and while McQuaid is saying he “didn’t have the time” to be part of the 2020 Games selection committee, the timing of the announcement casts doubt on this spin. When the sport’s top leaders are being removed from WADA executive committees, from the helm of SportAccord, or from IOC standing committees, it should be an indication that those in the halls of sporting power are beginning to look at cycling unfavourably, no matter the attempted spin.

In fact, maybe the best thing that could happen to cycling is see it removed from the Olympics. It might give us all the opportunity to rebuild track, road, MTB, and BMX the proper way without the influence of risk/benefit analysis drones ruining what we’re all trying to accomplish. Nonetheless, the next six months could determine the course the sport takes during the ensuing decades. It remains to be seen if this change will be driven by the UCI itself, or as the smokescreens continue to dissapate, its fortunes will be ultimately determined by others, including the UCIIC and the IOC.

Illustration by Anders Bendixen

The depth, the breadth, and the method by which the information was released was revolutionary and unparalleled. Not only did the UCI, WADA, WTA and other organisations with vested interests have an opportunity to immediately read all the supporting documents, but the general public as well has also been allowed to “look behind the curtain” unlike at any other time in the past.

So far, we’ve been witness to admissions from previously-unsanctioned riders Tom Danielson, David Zabriskie, Michael Barry, George Hincapie, and Christian Vande Velde. We woke up the day after “10/10″ to see the Belgian Cycling Federation commence proceedings against Johan Bruyneel in light of the evidence. We’ve seen Team Sky’s David Brailsford let Geert Leinders go, apparently in anticipation of Levi Leipheimer’s confession.

We’ve also witnessed the chaotic ramblings of several individual who refuse to let go of the Armstrong mythology in spite of the avalanche of evidence. Nike. Sean Yates. Lance himself. Trek and Oakley at the time of this writing are still on the fence, which is itself a rather sad statement of their business affairs.

We’ve also seen the UCI themselves attempting to spin themselves out of their responsibility, beginning with Hein Verbruggen stating “And I never said that Armstrong never doped.”  However it’s pretty hard to deny the following comments he made to ad.nl in May of 2011, as reported by cyclingnews.com, where he said:

That’s impossible, because there is nothing. I repeat again: Lance Armstrong has never used doping. Never, never, never. And I say this not because I am a friend of his, because that is not true. I say it because I’m sure. Even if we would like, it would not be possible to bury a positive test. Test results are not only to the UCI, but also to the WADA. So once and for all: under my chairmanship have such practices never occurred at the UCI.

This in itself represents why these events continue to occur. Cycling has been stuck with men at the top who refuse to acknowledge their own accountability as leaders in the sport.  As Daniel Benson, the well-respected managing editor of cyclingnews.com noted in this editorial, now is the time for the UCI to lead us into a new era. They missed an opportunity during the Festina affair. They missed an opportunity with Operacion Puerto. They missed an opportunity during the CERA busts. Now they’ve been handed an opportunity after their yellow-fleeced goose was cooked by the Travis Tygart-led team at USADA.

Unfortunately, with Pat McQuaid and Hein Verbruggen in charge of things, it will be another missed opportunity.

What will McQuaid’s legacy be? (photo courtesy AFP via cyclingnews.com)

The pattern has worked so many times for both of them, and for the complicit management committee. Deny, deny, deny. Make strong statements. Strategically sue those who are attempting to “distort” their message. Bully the press into submission by threatening to blacklist. Offer up a few sacrificial lambs. Back to business as usual. Since it’s been so successful for them in the past, why won’t it work now? Why is the zebra now changing its stripes?

Social media.

The trouble is that Hein and Pat have become analog gangsters in a digital era. Information is shared around the globe instantaneously via Twitter, Facebook, and the vast network of bloggers who have dedicated themselves to cycling. It’s a fact that this vast network has helped the confidence of many key cycling journalists push onward with the truth. The dons of cycling’s mafia can no longer control the message the same way they used to. In point of fact, this is what Armstrong is also currently experiencing, in spite of the fact that he has an extensive digital team attempting to stem the tide.

As a colleague of mine noted in a conversation yesterday, the ability to hide and conceal illegal activities is becoming harder and harder as investigative methods become more and more cost effective and technologically advanced.  Let us remember that WADA has been playing catch-up since their inception, but because of their use of technology, they have caught up with lightning efficiency and speed (still not enough, but it’s getting better). Cycling truly was, as David Howman characterised in an interview with Benson on Thursday, the “Wild West” when it came to rampant doping in the peloton. It was the norm, rather than the exception.

The irony in all of this? McQuaid sits on the WADA executive committee. That’s right. The man who exchanged blows with USADA and its jurisdiction and almost came to blows with WADA over the Armstrong business sits in on all the important meetings the organisation holds. And yet, he insists on his bitter and confrontational battle against the organisation, and the national  anti-doping agencies that purport to do battle against the cheats.

Is McQuaid’s participation with WADA merely to keep tabs on what the organisation does in the name of anti-doping? Is it a way for him to figure out ways in which he and Verbruggen can personally profit at the sport’s expense? It’s rather a sad irony that an individual who has been so adversarial is allowed to participate in the highest level of decision-making process, that the president of an organisation which waited until the eve of the 2004 Olympics to ratify the WADA code is part of the UCI’s operating procedures.

Based on these few points alone, we are far from the end of rooting out doping and the corruption that surrounds the activities of doping. When it takes the news of one thousand pending pages of documentation for Team Sky to “dismiss” a suspect doctor, but yet still employs a directeur sportif who became part of the supporting evidence owing to his connections with an alleged transporter of doping products, we still have a long way to go. When in spite of the mounting evidence supporting a management committee’s complete ineffectiveness to combat doping problems, they continue to preside over the sport, we have a long way to go.

We need to remember the UCI has nothing to do with the positive steps that have transpired recently. It was the work of national federations, national investigative agencies, an international anti-doping agency, and the willingness of witnesses to come forward that has created the path towards a clean sport. In fact, when Jörg Jaksche came forward to McQuaid himself, nothing was done. Nothing. Ever. Jaksche didn’t see the light of day beyond the Freiburg investigation until his name appeared in the Armstrong debacle. This was a man more than willing to participate, yet he was ostracized by the very organisation that was supposed to protect him.

Instead, cycling’s leaders are taking their 21 days to determine their course of action. The UCI touted their “fight against doping” and touted their “biological passport programme,” yet the tide of doping continued. Doping didn’t stop for everyone in 2006 and 2007, as we might be led to believe by the admissions of Leipheimer, Danielson, Vande Velde, Barry, and Hincapie. Who were some of the highlights the past four years? Bernard Kohl. Davide Rebellin. Riccardo Ricco. Stefan Schumacher. Ezequiel Mosquera.  Danilo di Luca.

Let’s pray the fallout continues beyond Armstrong. Let’s pray that the pro peloton pulls their heads out of the sand. Let’s pray that team owners take this as a wake-up call and follow the footsteps of several World Tour and Pro Continental teams to truly and emphatically “walk the walk” and not just talk about clean sport. Let’s pray the continental federations and national federations start listening to their constituents rather than the sponsors. Let’s pray the fans and manufacturers continue to put the pressure on for a clean peloton via the methods available to them, including social media.

Armstrong’s fall returns us to square one. It’s up to all of us to ensure we don’t pedal backwards like we did in 1998 and 2006. No more dodgy doctors. No more dubious directeur sportifs. No more “kind of” statements against the cheats.

We all need to walk the walk.

His was a business model that changed the face of professional cycling, perfecting techniques of doping, media management, and being the vehicle by which cycling administrators globalised the sport. It is no wonder some still go a long way to defend him or simply muddy the waters.

In 1999 when Armstrong miraculously, or incredibly – in the fullest sense of the word – was first on the road in the Tour de France, it was heralded as the Tour of Redemption, a new clean start for pro cycling following the previous year’s Festina Affair which saw a number of riders arrested for doping by the French police. Among the Festina riders arrested was former Australian national road team and current Orica Greenedge director, Neil Stephens.

Hence, it was with a sense of deja vu that I listened to Cycling Australia’s President Klaus Mueller claim on ABC24 that “the scene has changed enormously.” In answer to the question as to whether the United States Anti-Doping Agency’s uncontested findings that Armstrong had doped and engaged in a conspiracy with others cast doubt on the performance of post Armstrong cyclists, Mueller responded:

 … I think the recent winners I think we can have enormous confidence that they have done it on merit rather than cheating … there was a collective sigh of relief … the cycling community really felt very good about Cadel Evans winning and there was a general feeling that and almost an absolute confidence that that had been achieved on merit ….”

The problem for some sceptics is that not only has Cadel Evans himself at times used one member of the Armstrong conspiracy, the Italian Dr Michele Ferrari, for career and ‘training’ advice, but at least on two occasions – such as when winning the 2009 World Championships and the 2011 Tour de France – Evans has refused to agree with suggestions by journalists that his victory was a victory for clean cycling.

However, Cadel is not the story here, rather it is Armstrong and the mantras and actions of those that administer cycling. With respect to the case against Armstrong, Mueller – who is also a Melbourne barrister – was at pains to stress the “uncertainty” surrounding the USADA case against the Texan. The problem for the sceptics, or even the rational, was that the script Mueller seemed to be reading from was the same one that the powers that be in world cycling have been using since 1999 in their defence of Armstrong. Mueller bemoaned “how politicised the process has been,” a reference in line with those who view the case against Armstrong as a “witch hunt.” What Mueller ignores of course is that it has been Armstrong and former Clinton advisor Mark Fabiani who have politicised the case and exerted political pressure on the U.S. Federal Prosecutors office to drop the criminal case which went well beyond the doping allegations. In more recent times, Armstrong’s Livestrong cancer business  has attempted to lobby politicians to cut funding to USADA.

Mueller’s case was further backed by his claim that the

jurisdiction of USADA is very unclear and uncertain … that leaves everyone with a question as to the outcome … uncertainty … I am not sure it has any jurisdiction … certainly UCI has that jurisdiction … they should decide.”

Unfortunately, here again Mueller was reading from the script of Armstrong and his allies within the International Cycling Union (UCI). The UCI, who it has been alleged have covered up positive doping tests and accepted payments from Armstrong attempted to claim in July that they and not USADA had jurisdiction in the case. USADA of course rejected the attack on their jurisdiction. The French Anti Doping Agency has also claimed that people within the UCI and the International Olympic Committee (IOC) regularly tipped off Armstrong in advance of doping controls in order to allow him to take measures to beat the testers. But even if Mueller was still “unclear and uncertain” about the question of jurisdiction, the plain words of the World Anti-Doping Code (WADA Code) and a letter from the World Anti-Doping Agency (WADA) Director General, himself a barrister, should have helped resolve the matter once and for all. Howman was clear on the meaning of the rules that applied and that WADA did not agree

…with the public comments made by UCI and we therefore respond in a public manner. … With respect to your statements that the UCI has results management authority in connection with the USPS Cases you have misinterpreted the Code.”

Mueller’s thinly-disguised case for the defence then raised the chestnut of “concern over process” and the “lack of transparency” and that the charges against Armstrong were not sufficient for him to “answer the case” against him. Along with Howman’s letter to the UCI – which stated that never before has the UCI complained about the lack of due process in relation to USADA proceedings – there are here two obvious aspects ignored by Mueller. The first is that only last week a US Federal Court judge dismissed Armstrong’s challenges regarding due process as being “without merit.” In case Mueller missed it, even the Herald Sun reported the story. Secondly, the “concern over process” and the “lack of transparency” was based upon the fact that USADA had not detailed the names of the witnesses and incidents in its original letter charging Armstrong. USADA had made it clear that this was because of fear that Armstrong would try to pressure and intimidate its witnesses before the hearing of the case against him. This of course was not a fear without foundation, as Armstrong has previously threatened his former teammate Tyler Hamilton for cooperating with the stalled criminal investigation. Armstrong, of course, has a long history of strong arm-tactics, one of the most famous being his chasing down of the Italian rider Filippo Simeoni in the 2004 Tour de France after Simeoni had testified in an Italian court case against Armstrong’s co-conspirator Dr Ferrari. It is also important to note that the same rules that apply to USADA with respect to due process, procedural fairness, or natural justice, apply to Cycling Australia and the Australian Sports Anti-Doping Authority (ASADA). But never has Mueller or any other Cycling Australia official raised doubt about any perceived failures to afford natural justice in that process.

In conclusion Mueller brought us back to the age-old mantra which, as already noted in passing, has its roots in the 1999 Tour of Redemption, that is that cycling has been “enormously proactive in fighting the curse of doping in the last 7 years, if not longer …”. Mueller cited the example of the introduction of the Biological Passport, a system which analyses the longitudinal blood profiles of cyclists in order to detect a probability of the likelihood of doping as an example of this proactivity. The Biological Passport was discussed at length in our report on doping in Australian cycling and at the New Pathways for Pro Cycling Conference held in Geelong to coincide with the 2010 World Championships. Prior to that conference, I had already foreshadowed the problem of the cancer in cycling and Deakin University had offered itself as a space to pursue a way forward, an offer which Cycling Australia and the UCI refused to take up.

What the “collective sigh of relief” over Cadel’s win also ignores is that the testing for the much-vaunted Biological Passport was put on hold for the period leading up to the 2011 Tour de France and that one of its main proponents and developers, Michael Ashenden, resigned from the UCI Biological Passport committee because of deficiencies in the process. Mueller also ignores the links between people within his own organisation and Armstrong and his co-conspirators, and the fact that Cycling Australia has been an active participant in South Australia’s Tour Down Under, which has seen more than $6 million paid to Armstrong for his three appearances in Adelaide, not to mention the money paid to licence the Livestrong name for the cancer research centre at Flinders University.

Is it any wonder then that the sceptics still have some trouble swallowing the words of those who administer the sport of cycling? In the end, Mueller’s veiled defence of Armstrong raises the problem highlighted by David Howman in the conclusion of his letter to UCIPresident Pat McQuaid:

By adopting its current position UCI is sadly destroying the credibility it has slowly been regaining in the past years in the fight against doping.”

 

Old networks and alliances don’t appear to die easily.

Hein Verbruggen and Lance Armstrong – partners in the globalisation of cycling

Disclosure:

Martin Hardie teaches law at Deakin University. He has worked as a cycling journalist in Spain and contributes on an occasional basis to El Pais newspaper. He has also co-authored the report “I Wish I Was Twenty One Now – Beyond Doping in the Australian Peloton” which is available in print and on Amazon kindle. He organised the New Pathways for Pro Cycling Conference in Geelong to be held in September of 2012. He is included in the WADA Social Science Research Directory and has been invited by USADA to speak at their symposium on Deterring Athletes from Using Performance-Enhancing Drugs in Atlanta, Georgia, USA in October 2012.

Verbruggen and McQuaid shake hands on everything when it comes to “preserving” cycling’s integrity (Image by Cor Vos courtesy of Pedal Magazine)

The press conference, held at the mountain biking venue at the London Olympics and occuring during the men’s MTB race on the final day of the Olympics, comes after a tough two weeks for the current and past presidents of the UCI with charges of collusion and corruption coming from WADA and USADA in the Armstrong case.  The latest controversy arrived after Garmin-Sharp-Barracuda CEO Jonathan Vaughters admitted in the New York Times that he doped during Verbruggen’s reign as president.

“We will not let this attack against the good name of cycling stand,” declared McQuaid, “We have ruled cycling with an iron fist and defended our interests in the sport with unwavering authoritarian democracy. We have filed lawsuits against many, many, many, many others and Jonathan Vaughters statements will not go unpunished.”

McQuaid arrived at the decision of having the UCI sue both the New York Times and Vaughters after taking twenty phone calls from Verbruggen early Sunday morning in London, followed by a thumping at the door of his London penthouse, just after breakfast, from Verbruggen.

“Hein was the best UCI president we have ever had. He took road cycling from obscurity to being one of the best and most well-known sporting pursuits in the world. Road cycling is our entire focus of the UCI. Road cycling is what pays our bills at the UCI. We need to protect the integrity of road cycling in order to preserve the cycling brand overall and worldwide,” continued McQuaid as Verbruggen whispered in his ear.

When asked about the timing of the piece in the newspaper Verbruggen was candid, while McQuaid retired briefly to change from his clean shirt into another clean shirt retrieved for him by one of the Olympic volunteers.

“Vaughters has obviously come under the EVIL influence of USADA mafia don Travis Tygart and that man with no conscience David Howman who apparently runs the WADA people. These are all men who are conspiring to take away what we have tirelessly built.  Vaughters has embraced an anti-cycling agenda. He has joined those who have campaigned against cycling for the past fifteen years. I will NOT accept this attack,” asserted a visibly animated Verbruggen.

McQuaid revealed the lawsuit would be filed in Swiss court Monday or Tuesday, once he was done counting the Olympic money.

VeloNews editor-in-chief Neal Rogers, who attended the press conference and was rather stunned by the announcement, had this to say:

“It seems the only opinion that is allowed in cycling is either Verbruggen’s or McQuaid’s. Or maybe opinions they’ve approved. Glad to see that Enrico [UCI spokesperson Enrico Carpani] didn’t have to go searching for a desk chair after the lounge chair debacle from the other presser,” stated Rogers, alluding to the McQuaid press conference where the Irishman attacked the charges by USADA and WADA against himself and the UCI.

Eurosport pundit David Harmon weighed in with his thoughts on the situation.

“For an organisation and men who are preaching anti-doping messages, it is interesting that the choice of action is to attack, deny, and sue. This should cause the cycling public to pause and reflect,” concluded Harmon.

Vaughters, when reached for comment, had a short statement.

“This is only the beginning. If I were Hein and Pat, I’d be looking for an exit strategy rather than filing lawsuits,” declared Vaughters.

When reached for comment, the New York Times legal team had this response,

“HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA. Hah.”

It remains to be seen if Vaughters’ admission is timed to coincide with the additional evidence requested by Judge Sparks in the Armstrong case. Vaughters refused to comment if he would respond to the lawsuit, preferring to wait and see if he was actually going to be served, as many alleged lawsuits by McQuaid and Verbruggen have never come to fruition.

* * * * *

But first, let’s poke fun. Can I just say that I think it’s really cute that the Lance Armstrong Legal Team sent an email to William Bock, the general counsel for the USADA, requesting permission to exceed the page limit? This is after filing an 80+ page complaint that so thoroughly failed to meet requirements that Judge Sparks dismissed it altogether and after missing a rather obvious filing deadline to respond, the Legal Team is now asking for permission to exceed the page limit, too? I mean c’mon guys, learn how to make your point and shut up; you might actually get your homework turned in on time if you knew when to stop typing.

Local Rule CV-7(e) limits the length of responses to dispositive motions to 20 pages and the Legal Team’s response, despite their best efforts, weighed in at 28 pages. The reason for the page limit is simple: everyone’s time is valuable – the plaintiff’s attorney who spent an eternity typing (and billing) for the mammoth document; the judge and his staff who have to read, fact-check, and research everything in the mammoth document; and the defendant’s attorney who has to read, fact-check, research, and respond to everything in the mammoth document (and bill for the time required to do so). There’s a generally accepted rule amongst attorneys that if you can’t make your case concisely, it’s because you don’t have one.

In the email exchange in which Mr. Bock flatly refuses to permit the extension on the grounds that it’s overly burdensome to him and his staff, the Lance Armstrong Legal Team cites the need to attach hundreds of pages of various anti-doping rules. Look, I’m going to be real blunt and say it: Mr. Armstrong’s Legal Team has the duty to weed through the muck and mire to locate the relevant rules, not the court and not the defendant.

According to the series of emails, which Mr. Bock insisted the Legal Team attach to the request for a page extension, Tim Herman, one of Mr. Armstrong’s attorneys said, “I do not think the court appreciates being burdened with self-serving emails sent between lawyers.” To which I say, but you think the court appreciates being burdened by hundreds of pages of complicated (and probably completely irrelevant) anti-doping codes? And you think the court appreciates being burdened with an 80-page complaint that fails to meet the basic requirements of the Federal Rules of Civil Procedure? And you think the court appreciates being burdened by your failure to timely file a response to a dispositive motion? And you think the court appreciates being burdened by yet another overly-long document that fails to meet the basic rules for submission and is accompanied by yet another last minute request to bend the rules? Exactly how many times do you expect to be allowed to breach the court’s procedural rules?

For a man who is so concerned about the rules being properly applied to him, Mr. Armstrong doesn’t seem to be at all concerned about following the rules properly himself. I don’t believe for a second that if the tables had been turned that the Lance Armstrong Legal Team would not have wholly objected to the original complaint, to the request for a brief extension for time to file a response after missing a deadline, and the request to extend the page limit for a response. Shoot, they’d probably already be pitching a fit in front of the United States Supreme Court if Judge Sparks had granted the USADA the same leniency he has granted the Legal Team.

The Honorable Judge Sam Sparks

I read all 36 pages of the Memorandum in response to the USADA’s motion to dismiss. In fairness, the substantive portion was 28 pages, though it was quite painful and burdened with almost excessive citation of irrelevant cases; funny how that happens when the document exceeds the page limit by 40%.

All of this mumbo-jumbo boils down to a couple of key points. One, through the magic of the legal loopholes, the UCI has exclusive jurisdiction over everything. Two, Mr. Armstrong never consented to arbitration with the USADA because the Ted Stevens Olympic and Amateur Sports Act [Sports Act] does not apply to professional cyclists (automatically declares that sports eligibility disputes be resolved by arbitration), and even though he consented to be governed by the USADA through his UCI license application, USADA shouldn’t have jurisdiction over him because they’re not following the rules.

Part One: Reasons why the UCI has exclusive jurisdiction to initiate an investigation, to determine if a doping violation likely occurred, to initiate formal charges, to delegate the proceedings to the USADA because 1) the samples at issue were collected by the UCI, 2) the allegation of anti-doping violations was “discovered” by UCI through a UCI license-holder (Floyd Landis) and the allegations were made to USAC and UCI, 3) Mr. Armstrong is retired and UCI had original jurisdiction during his employment, 4) UCI has asserted its jurisdiction and told USADA not to proceed, and 5) WADA gives UCI jurisdiction, in case you forgot. Oh and 6) conspiracies don’t exist in UCI ADR and WADA fairyland, so the charges are impossible, and 7) the Travis Tygart affidavit from the insurance-claim is irrelevant.

My first reaction was, so if the UCI has exclusive jurisdiction over “results management” at every stage, then what’s the point of the USADA? What about Floyd Landis? Was the USADA’s decision on his case null and void because UCI actually had jurisdiction? Mr. Landis tested positive for testosterone during the 2006 Tour de France (UCI sample), yet the USADA conducted the formal proceedings. The step not often discussed is that the UCI initiated the investigation based on the positive test results, made a determination that an anti-doping violation likely occurred, and then delegated the responsibility of conducting the formal proceeding to the USADA.

According to the Lance Armstrong Legal Team, the USADA only has authority to investigate and adjudicate alleged anti-doping violations after the UCI gives it permission to proceed. In fact, the “long leg” of the UCI extends so deep into the creation of exclusive jurisdiction for itself that it essentially turns the USADA into a powerless puppet used to create a false appearance of independence and neutrality to the public. If every single rider and team staff member is considered a UCI license-holder for the purposes of discovery, then one can hardly imagine a situation in which UCI couldn’t claim “discovery” of an anti-doping allegation, and with it, exclusive jurisdiction to investigate or ignore the allegation. Even if Mr. Landis had reported his anti-doping allegations against Mr. Armstrong exclusively to USADA, UCI would still have exclusive jurisdiction to decide whether an anti-doping violation had likely occurred and whether to permit USADA to proceed. When, if ever, does USADA actually have exclusive jurisdiction to pursue anti-doping allegations independent of Puppet Master UCI’s permission? With all of the power rolling up the ladder to UCI, one can certainly start to appreciate why there are so many rumors and accusations of corruption, manipulation, and general wrongdoing on behalf of UCI. This is, after all, an organization that refuses to recognize conspiracy as a form of anti-doping violation and readily accepts large monetary donations from athletes suspected of doping.

What’s substantially downplayed by the Lance Armstrong Legal Team is the reason why USADA is refusing to submit to UCI’s jurisdiction: USADA believes UCI’s conflicts of interest are so vast that they will be unable to make a neutral decision on the allegations against Mr. Armstrong. UCI is charged with the dual-edged duty of promoting and policing the sport. Attracting sponsorship and presenting a positive public image are in direct contradiction with fairly investigating and pursing alleged anti-doping violations against its own athletes. History has shown us time and time again that this much power lends itself to abuse. USADA supports their claim by alleging UCI has participated in past efforts to cover-up doping allegations, or at a minimum, neglected to investigate obvious discrepancies that could indicate anti-doping violations, and has threatened witnesses in an effort to conceal the truth, citing UCI’s defamation suit against Floyd Landis as a primary example, not to mention the highly suspect acceptance of a $25,000 donation in 2002 and a $100,000 donation in 2005 from Mr. Armstrong.

For the second part, the Legal Team addresses the American law-based arguments. They claim the Ted Steven’s Olympic and Amateur Sports Act does not apply to Mr. Armstrong because he was a professional athlete who did not participate in the Olympics. And even if it did apply, it doesn’t preempt Mr. Armstrong’s civil suit because his claim is based on civil rights violations and not athletic eligibility issues. Furthermore, he isn’t required to exhaust all administrative remedies (i.e., go all the way to the CAS level) because he isn’t asking this court to determine the merits of the case, but to determine whether USADA has jurisdiction to proceed with the arbitration hearing.

And oh my God, that is the biggest squirrel I have ever seen! Look at the size of that thing and look at that gigantic pile of nuts! Wow! They’re so shiny! Oh and Mr. Armstrong’s UCI international license application did in fact require him to be governed by UCI ADR, WADA, and other anti-doping regulations “provided such regulations comply with WADA code,” but that doesn’t count because USADA is acting in violation of UCI ADR and WADA code because it’s refusing to be a powerless puppet to a corrupt organization. But wow, back to that squirrel. Awww, that squirrel’s tail is so fluffy! Oh look, it’s munching on those nuts with its cute little squirrel teeth!

So what, huh, something about Mr. Armstrong consenting to be governed by USADA through his UCI license? I didn’t hear anything; I was too busy looking at the squirrel named Ted Stevens and pile of shiny nuts and fancy, fluffy words. Mr. Armstrong concedes that his UCI license application required him to be governed by USAC and USADA, which is no surprise because it’s very well-established that everyone who participates in UCI races consents to UCI’s governance and UCI’s rules make it expressly clear that athletes are also subject to their own country’s cycling governing body and anti-doping agency. The only valid argument Mr. Armstrong has out of all 28 pages of squirrels is that USADA doesn’t have jurisdiction because Floyd Landis didn’t notify USADA of the anti-doping allegations; he notified USAC and UCI, which gave jurisdiction to UCI according to the rules. Or does it?

Let’s take a look at the UCI Cycling Regulations’ part 14 on anti-doping, shall we?

Section 1: Anti-Doping Rules of the UCI > Chapter 1: Scope >

Anti-Doping Violations Where No Sample Collection Is Involved

10.  The UCI has jurisdiction for and these Anti-Doping Rules shall apply to any anti-doping violation committed by a License-Holder where no Sample collection is involved and that is discovered:

• (i) by the UCI, by one of its constituents or member Federations, by one of their officials, officers, staff members, members, License-Holders, or any other body or individual that is subject to the regulations of the UCI or one of its member Federations; or
• (ii) by a body or individual that is not an Anti-Doping Organization.

Discovery means the finding of elements that turn out to be evidence for facts that apparently constitute an anti-doping rule violation, regardless of the Anti-Doping Organization who qualifies that     evidence as such.

11. If an anti-doping violation where no Sample collection is involved is discovered by another Anti-Doping Organization, the anti-doping rules of that Anti-Doping Organization shall apply.

Default Jurisdiction of the UCI

17. Where a National Anti-Doping Organization having initiated and directed Sample collection or which has discovered an anti-doping rule violation where no Sample collection is involved does not have the authority to conduct results management under any applicable rule, then results management shall default to UCI and hearings will be conducted as stipulated in these Anti-Doping Rules.

General comment to Chapter 1:

1) Under the Code, National Federations have by themselves no jurisdiction in Doping Control. The involvement of National Federations in doping control at the international level is laid down in these Anti-Doping Rules. However, Anti-Doping Organizations having jurisdiction under the Code, may delegate jurisdiction to National Federations. National Federations and their respective National Anti-Doping Organization may agree on the Federation’s involvement in Doping Control at the national level.

The question becomes: did USADA delegate to USAC? And my answer is I have no idea and it doesn’t matter because Mr. Landis sent the emails to UCI too, which gave them jurisdiction to investigate the allegations. UCI ADR tends to support exactly what Mr. Armstrong is claiming – that because UCI was notified of the alleged anti-doping violations, UCI retains automatic and exclusive jurisdiction to conduct results management.

Should the United States of America lose jurisdiction to arbitrate an alleged anti-doping violation of an American athlete merely for want of a technicality? If we are going to argue fairness and due process, is it fair that USADA lose all jurisdiction to resolve a dispute regarding one of their athletes – an athlete who unambiguously consented to their jurisdiction – merely because the reporter of the alleged violation emailed the American and international governing bodies instead of the USADA?

Let’s look at WADA code.

WADA Article 15: Clarification of Doping Control Responsibilities

15.3: Results Management, Hearings and Sanctions

Except as provided in Article 15.3.1 below, results management and hearings shall be the responsibility of and shall be governed by the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection (or, if no Sample collection is involved, the organization which discovered the violation). If that Anti-Doping Organization does not have the authority to conduct results management, then results management authority shall default to the applicable International Federation.

[Comment to Article 15.3: The Athlete’s or other Person’s International Federation has been made the authority of last resort for results management to avoid the possibility that no Anti-Doping Organization would have authority to conduct results management.]

Please note that this section is called “Clarification of Doping Control Responsibilities.” Comments are important because they offer further clarification for ambiguities.

Well shoot that’s a problem. UCI is the international federation for cycling and WADA just said that it should be the authority of last resort, not first resort, only in order to avoid a circumstance in which an athlete can escape liability altogether merely because of the absence of a national anti-doping agency. UCI’s rules fly in direct contradiction to this clarification comment by making UCI the default authority instead of authority of last resort. In fairness, WADA does say that international federations are permitted to make their own rules, however, those rules cannot be contradiction to WADA code and UCI’s rules appear to be rather contradictory.

But I’m not done yet. I’m going to apply some Lance Armstrong Legal Team logic. Even if UCI’s rules don’t contradict WADA code and UCI has exclusive jurisdiction, the UCI shouldn’t be allowed to conduct results management because they are operating in violation of their own rules and WADA code. Mr. Armstrong never consented to be governed by a wrongful application of their rules.

Let’s go back to the UCI Cycling Regulations section on Anti-Doping again.

Chapter 7: Results Management

Results Management Where No Adverse Analytical Finding Is Involved

229. The UCI shall examine concrete elements indicating that an anti-doping violation may have been committed, in particular any failure to comply with these Anti-Doping Rules and the Technical Documents.
230. The Rider or other party shall be informed of a possible failure to comply and has the opportunity to respond. A hearing is not required to be held.
231. The UCI may obtain information from all available sources. National Federations shall be obliged to conduct investigations as the UCI may deem appropriate and inform UCI of their results. All License-Holders are obliged to assist in such investigations and provide information requested.

Conclusion Of Results Management Process

232. If upon conclusion of the results management process, the UCI considers that no anti-doping rule violation or any other breach of these Anti-Doping Rules has taken place, then the case shall be taken no further.

This decision shall not be definitive and the UCI may reopen the case on its own initiation.

And let’s revisit the World Anti-Doping Code again:

WADA Article 7: Results Management

7.4 Review of Other Anti-Doping Rule Violations Not Covered by Articles 7.1–7.3

The Anti-Doping Organization or other reviewing body established by such organization shall conduct any follow-up investigation into a possible anti-doping rule violation as may be required under applicable anti-doping policies and rules adopted pursuant to the Code or which the Anti-Doping Organization otherwise considers appropriate.

According to UCI ADR and WADA code, UCI was obligated to conduct an investigation into Mr. Landis’s accusation and UCI should’ve required USAC, since it was the national federation that was directly informed of the allegations, to conduct their own investigation as well. Does anyone remember any of that happening? Mr. Landis’s emails began on April 30, 2010. UCI summarily dismissed the allegations and never conducted a follow-up investigation as required by WADA. Instead, UCI decided to file a lawsuit against Mr. Landis for defamation. It wasn’t until over two years later that USADA initiated a formal investigation against Mr. Armstrong for claims that UCI failed to investigate.

So, tell me again, why should UCI be granted exclusive jurisdiction in this case?

* * * * *

Written by Anna Zimmerman exclusively for Cyclismas.com.

To read more from Anna Zimmerman, please visit:
http://www.150wattsofawesome.blogspot.com

© Anna Zimmerman 2012. All rights reserved.

Who is McQuaid truly protecting beyond Mr. Armstrong?

Sorry, Lance, it's not #unconstitutional

Given the recent failures by federal prosecutors to secure convictions against athletes in court which can be traced back to doping (the Roger Clemens acquittal being the most recent), the USADA case is a welcome change and the appropriate venue for the Lance Armstrong case. Since the USADA was established it “has worked to preserve the true integrity of competition.” With that in mind, it is a non-governmental, non-profit agency whose sole focus is to ensure that all sport competition and athletes under the United States jurisdiction compete fairly and without the assistance of illegal substances.

This mission is different from the FBI, FDA and other governmental agencies which have a role of enforcing federal criminal law. Cheating is not a federal crime; doping is cheating, and that is why Armstrong and company are not being investigated for federal narcotic offenses specifically. The criminal investigation was centered on various aspects of doping, but he was being investigated for crimes relating to racketeering (RICO) and fraud.  Even if federal charges were brought against Lance Armstrong, federal prosecutors would have to prove to a 12-person jury of his peers beyond a reasonable doubt that he committed those offenses.

As someone who has brought cases against individuals, it is a significantly high burden, and rightly so. However, what the Bonds and Clemens cases have proved is that it can be very difficult to achieve a unanimous verdict.  In an adversarial system, there is no such thing as a “slam dunk” case. Now that the USADA has initiated their case, if charges are brought, Armstrong’s accusers will face a significantly lower burden to prove he committed specific anti-doping violations.  Unlike “beyond a reasonable doubt” in a criminal case, the accusing party will only have to prove to a “comfortable satisfaction” (Article 3.1-WADA Code) that Armstrong committed anti-doping rule violations.  This is significantly less than beyond a reasonable doubt and usually compared to standards set in professional misconduct cases.

There is little doubt that criminal cases should require the highest burden of proof.  Some argue that the burden in doping cases is too low, and skews the advantage well in favor of anti-doping authorities and creates an unfair advantage against athletes.  Whether or not you agree with it, that is the burden Lance Armstrong’s accuser must meet if and when he is charged, and if the case is eventually brought to the CAS.

In a criminal case, the government has the sole responsibility of proving a defendant is guilty of a crime. Since in our system the Constitution specifies that anyone accused of a crime is innocent until proven guilty, they have no responsibility to prove they are innocent of the crime. In other words, the defense simply needs to raise enough doubt in the eyes of the jurors to prevent the government from meeting their burden of proof. In a doping case, the accused athlete is still required to account for specific evidence or account for a positive test or other accusation against them, unlike a criminal case, nothing is required of a defendant even though they still present their own evidence but only to raise doubt. In the case that will more than likely be brought against Armstrong, he will not have the luxury to simply sit back for force the USADA to make their case without responding directly to the accusations against him, participate and not simply raise doubt in the minds of the arbitrators responsible for hearing the case.

Recently, many Armstrong supporters and even Lance himself have thrown out the term “unconstitutional” or as Lance tweeted, #unconstitutional. I’ve spent a great deal of time trying to figure which amendment violation he could be claiming to be a victim of.  I have yet to fully determine why Lance would allege this, but will assume he believes it is in violation of the 5^th amendment or “double jeopardy.”  This term refers to being tried for the same offense more than once after a criminal case has been brought and adjudicated or ended under specified conditions.

However, the current USADA investigation is not of a criminal nature. The USADA case against Lance Armstrong will not result in his imprisonment or “loss of liberty” since it will be heard before an Administrative Court; because it is not a judicial court like a state or federal court, Lance will not have the Constitutional protections he was provided during his criminal case. It focuses specifically on the rules and procedures for those who fall under them –American athletes – and has nothing to do with federal laws, because it is not officially a government agency no matter how much people want to argue it is because of partial funding through a federal grant.

Lance’s USADA case has nothing to do with the criminal charges he was being investigated for by the Grand Jury, and therefore in no way can it be argued it would fall under Constitutional violation.  Legally, it is important to recognize that even if federal authorities decided to reopen his federal criminal investigation he would still not be able to argue a “double jeopardy” violation, as it only “attaches” once a trial begins. Anyone, including Lance, who attempts to make this anti-doping case a matter of Constitutional issues has a gross misunderstanding of how the 5^th Amendment works in this case.

The differences between the criminal case and current USADA case involving Lance Armstrong for anti-doping violations are apparent and clear.  These are the reason why his case is exactly where it needs to be in order to prove what many people want to know – was Lance Armstrong a drugs cheat as an athlete? A federal criminal conviction still would not have proven he was a doper.  It would have proven he broke federal criminal law with respect to fraud and racketeering, but never that he specifically doped, which is what the anti-doping case will specifically focus on and possibly prove.

In my opinion, the most important part of the USADA case against Lance is information about his blood passport values. There is a precedent for their introduction and use at the CAS if this case is to eventually be heard there, as we have seen with the Franco Pellizotti case.  A piece of evidence like the biological passport would never be brought into a criminal trial had Armstrong been indicted, but again, that goes to show the important difference between the federal government’s and the USADA’s cases, and highlights why the Lance Armstrong anti-doping case is exactly where it belongs.

While the battle lines have essentially been drawn by those for or against Lance, there are still many who really don’t know whether he cheated or not because it has never truly been investigated or adjudicated.

Hopefully, that is what this case will determine.

Virenque poses with the new SaxoBank-Sungard media liaison (photo courtesy of Cyrille Margarit)

“With new technology at my disposal, coupled with my rockstar good looks, this peloton is ripe for the picking. I firmly believe that if Lance Armstrong can succeed with ‘Comeback 3.0′ in triathlons, there’s no reason why I can’t give it a go again,” declared an emphatic Virenque.

He continued,”I’m thrilled that medical advancements have made enhancing your performance by natural chemical means so much easier than when EPO was in its heyday. No more vampires, no more messy transfusions, and no more positive tests. After all, if it mimics a substance that the body already produces, why should it be illegal?”

Team manager Bjarne Riis was happy to welcome Virenque back to the ranks of professional cycling.

“Richard has demonstrated to me that with assistance from our medical team, he can compete with the athletes of today. With the recent challenges to our roster, he is a welcome addition and a known champion,” stated Riis.

When pressed on what medical advancements would allow him to compete at the professional level, Virenque was open and honest, a trademark from his Festina days, “Haven’t you all heard about AICAR yet? I mean, all the top dogs at the top teams are using it and WADA can’t detect it, even though they are still trying to screen for the stuff. It’s increased my endurance by 44 percent, and that’s ALL my endurance, including in the bedroom, right ladies?”

Riis attempted to downplay Virenque’s comments by stating, “If you can have Coca-Cola and coffee, why not AICAR? It is the UCI and WADA’s double standard. Politics are destroying our sport. But I can’t concern myself with that. I have a team to run, and I have riders to care for that have sworn their allegiance to my life philosophy.”

Noted WADA consultant and anti-doping expert Michael Ashenden offered his two cents,”Sport governing bodies are a joke. I’m going kayaking.”

The former seven-time King of the Mountains winner will be targeting the overall at the Tour de France, since, as he declared, “The Mod (Brad Wiggins), the Chin (Cadel Evans), and the Softie Twins (Schlecks) are no match for my manhood. It’s going to be a great Tour. Mark my words.”

Virenque must pass two team physicals and will be available for autograph signing at Club Man Ray this Saturday, and will be joined by club co-owner Johnny Depp for a few song and dance numbers.

Blackwater troops being deployed in Aigle.

Citing the recent rash of internal UCI letters and memoranda reaching the general public, and the uprising of pockets of resistance to their globalization plans, president dictator Pat McQuaid reached out to the firm that provides security to many US-based assets, the group known as Blackwater.

“I am thrilled that Xe Services accepted our desires for tighter security measures to ensure our safety at the top of the cycling food chain,” praised McQuaid.

McQuaid continued to discuss the changes in the cycling climate, as the UCI business practices that have been entrenched for decades have recently come under fire, including alleged attempted coercion of cycling sponsors, and more recently this week charges from WADA at the Play the Game conference of an “inconsistent and flaccid doping programme.”

The UCI plans on deploying an armed security detail with every ProTeam at every WorldTour race in 2013, and a maintaining “strong presence” at the UCI Headquarters in Aigle. Plans have already been announced to install a concrete barrier around the cycling mecca, along with an inner security fence as a secondary precaution.

When asked about the dubious record of Blackwater Security, including alleged human rights offenses in Iraq, Iran, Afghanistan, and the United States, McQuaid fired back with a sputtering soliloquy, highlighting the fact that these alleged offenses were the result of a “bleeding-heart left-wing media agenda against those who have earned business profits from their God given ventures determined by Divine Right to Rule.”

ProTeam managers who were asked to comment on the program refused to go on record, citing significant differences of opinion and a lack of intestinal fortitude to express their opposition to what many feel is a “hijacking of the sport at the expense of the masses,” a quotation that none of the team managers, owners or sponsors were willing to attribute themselves to whatsoever.

However, Gerard Vroomen, founder of Cervélo, was unafraid to mince words, “I’m still astounded that this supposed governing body, operating with a smaller revenue stream than ours [Cervélo’s], can sway the collective billion-dollar cycling industry to its will.”

In response to Vroomen’s comments, McQuaid concluded, “We’ll see how small our revenue stream will be in 10 years with the help of Xe Services, Itera, and others who have united to create a galactic cycling empire.”