Lance Takes a Pass

As a cycling fan and cancer veteran, I was saddened – and yes, incensed – by the news that broke last night, that Lance Armstrong would not submit to arbitration in the doping case that the USADA has brought against him.  It is indeed a sad day for him, his fans, and the sport of cycling, as so many sports writers and pundits have written over the last 24 hours.  But the majority of them have gotten it mostly wrong, exhibiting very little understanding if not outright ignorance of the USADA “arbitration” process that has caused Lance to take this unexpected turn.

The very first post on this blog was titled “Stirring the Lance Pot.”  It was an attempt to present an alternative, reasoned explanation to just how Lance could have achieved similar or superior performance to that of his top competitors, many of whom are proven dopers.  I never said, nor do I now, that I know Lance to be innocent of doping; none of us will ever know that for sure because we weren’t there.  As someone who has worked as a volunteer for the Lance Armstrong Foundation, participated in the Ride for the Roses in Austin, TX, and raised several hundred thousand dollars personally for the Foundation, I have had the opportunity meet and speak with Lance many times, on and off the bike, and I have the utmost respect for him.

Let’s look at the primary themes of today’s articles. The main thread that runs through most of the superficial analyses is that Lance is refusing to proceed because he knows that damning evidence will become public.  The flip side of this is the consistent claim, even by the head of WADA (World Anti-Doping Agency,) that Lance’s refusal to submit to the arbitration process is tantamount to an admission of guilt.  The facts are just a bit different, and it is necessary to bring in a brief bit of history.

The USDA (United States Anti-Doping Agency) was formally founded in 2000 as a taxpayer funded non-profit charged with implementing and enforcing the World Anti-Doping Code.  It’s original charter was to protect the rights of American Olympic athletes who had tested positive for PED’s (Performance Enhancing Drugs,) ensuring that the standards of testing and analysis were fair to the athletes.  Under the USADA’s original mandate, no case could have possibly been brought against Lance because although he has been tested over 500 times in and out of competition he has never once had a positive test result.  However, in 2004 the WADA introduced the World Anti-Doping Code as a guide for all the national Agencies that followed the WADA guidelines.  Included in this Code was the little-understood and seldom-used “non-analytical positive,” a poorly defined and decidedly gray-area ruling that enabled the national WADA-affiliated organizations like the USADA to impose sanctions where there was no positive test result, declaring a doping positive based on non-analytical evidence, primarily eyewitness testimony or documents indicating doping violations.

This is the basis for the USADA case against Armstrong.  They bring their case in secret, with no evidentiary rules.  The accused may submit to an “arbitration” process that is wholly controlled by the USADA.  The arbitration board, which USADA repeatedly misleadingly calls a “neutral” board, is made up of a majority appointed directly by Travis Tygart, the CEO of USADA.  The “evidence” is not shared with the accused prior to the proceeding, and may include signed statements rather than live testimony.  Contrary to most articles out today, there is no guarantee that any of the evidence would have been made public; in fact, there is substantial evidence that the USADA has made deals with riders, guaranteeing them immunity even after their admission of doping, in return for their sworn statements supporting the USADA’s case.  There is no right of cross-examination.  The accused bears the burden of proving the charges false; he is literally guilty until proven innocent under this process.

The USADA is the prosecutor, judge, and jury, and they have the right change the rules as they see fit, even retroactively.  A perfect example of this is their decision to change the rule on the statute of limitations.  Their own bylaws include an eight-year statute of limitations, which would limit any sanction to Armstrong’s last two Tour de France victories.  But they have retroactively changed the rules, allowing them to go back seventeen years.  If you read Lance’s entire statement, it is easy to see how he is justified in calling this proceeding a “witch hunt” and the arbitration board a “kangaroo court.”  Many articles have said Lance would never give up a fight and that proves his guilt.  I say that Lance would never give up a fair fight.  Outside magazine, which has been very critical and suspicious of Lance in the past, published a long article on the un-American nature of the whole USADA process that is well worth reading, and today published a follow-up indicating that may be a bit more complicated than the USADA seems to think.

The second theme running through all of the articles on line today is the “stripping” of Lance’s titles, including all seven of his Tour de France wins, several other major race wins, and his 22 T. de F. stage wins.  Not so fast.  The UCI (Union Cycliste International) is responsible for actually taking away a race win, and the Associated Press and the New York Times are both reporting today that the UCI has already asked USADA for their evidence, indicating that they may not just automatically take action, even though they are pledged to abide by WADA decisions on doping.  Further complicating the issue is the UCI’s own eight-year statute of limitations, and there is clear relevant precedent here.  When Bjarne Riis admitted to doping to win the 1996 Tour, it was outside the statute of limitations, and he is still listed as the winner by the UCI.

There are numerous other points that speak to the inconsistency and hypocritical nature of USADA’s actions.  First, although they claim repeatedly, including in their official statement today, that Armstrong was part of a vast conspiracy (The United States Postal Service Conspiracy,) they have not charged a single rider other than Armstrong.  Why not, if they have a huge preponderance of evidence?  As stated, they seek to strip Armstrong of all his titles and T. de F. stage wins.  What about all of his teammates titles and stage wins?  What of the USPS team time trail stage wins?  This single fact is the most compelling evidence that Travis Tygart is using the unfettered power of a taxpayer-funded agency to perpetuate a personal vendetta against Armstrong that has been going on for years.

Lastly, let’s take a look at the final absurdity of this case.  If Armstrong is in fact stripped of his Tour wins, the runner-up in each year will be awarded the win and the coveted Yellow Jersey.  Who would those riders be?  Of the seven runners-up from 1999-2006, only Andreas Kloden in 2004 was never sanctioned for doping, and even he was under investigation before the 2006 Tour.  Jan Ulrich finished second three times, in 2000, 2001, and 2003, served a ban for doping in the Operacion Puerto affair, and eventually retired in disgrace and paid a huge fine.  The other second place finishers, Alex Zulle (1999), Joseba Beloki (2002) and Ivan Basso (2005) were all sanctioned after either admitting to doping or failing doping controls (positive tests.)

So here’s a great idea: Let’s strip seven Tour wins (most of which are past the statute of limitations anyway) from a guy who retired years ago and never once tested positive in over 500 blood and urine tests over 17 years.  Then we’ll hand those seven titles over to five other riders, four of whom were officially sanctioned for either admitted or analytically proven doping during their cycling careers.

When I give this whole tragic, illogical, and blatantly unfair process the sniff test, it fails miserably.  Due process?  Innocent until proven guilty?  An agency set up to protect athletes from unfair persecution over PED’s?  This is America; we’re supposed to be a lot better than this.

Update 08/28/2012:

The Los Angeles Times published a great article on the unfairness of the USADA's "arbitration" process on August 26th, written by columnist Michael Hiltzek.  Well worth a read!