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Wednesday, July 11, 2012

Armstrong tries again

It only took a day from getting slapped down by a federal district judge to refile his lawsuit against USADA and its CEO, again with claims for tortious interference, common law due process, and Fifth Amendment Due Process. The new pleading is 25 pages and 82 numbered paragraphs--truly short and plain. This suggests that the original complaint was 55 pages and about 180 paragraphs of snark and vitriol.

I want to break down the Fifth Amendment claim because I do not believe it can succeed. I have been writing about state (and federal) action for the past few days, so this story links well to my current work. Here goes.

First, to the extent Armstrong is seeking money damages for the Fifth Amendment violations, this is a Bivens action. But the Supreme Court has in the past decade made clear that neither a private entity nor its employee can be subject to Bivens liability, at least where state remedies are available (as there are here--Armstrong is pursuing them in the same case). Now both Malesko and Minneci were Eighth Amendment claims involving privatized prisons, so maybe this is a different circumstance. But there is a good argument that Bivens now runs only against government officers and joint private-federal participation does not create constitutional liability against private persons as it does under § 1983.

Second, even if a Bivens action is possible, I doubt it works here. The complaint alleges four sets of facts aimed at showing joint private-federal participation; most of them do not work. I cannot make this case fit into any of the recognized tests for action under color of law.

    1) Congress was "instrumental" in creating USADA and USADA receives 2/3 of its funding from Congress. Nope. Receipt of government funds, even in large amounts, does not make a private entity a government actor. Think of how much money private hospitals get from Medicare and Medicaid.

    2) "Defendants exercise powers traditionally exclusively reserved to the State." Nope. Regulating sports is not a traditional government function, nor one it alone has historically done.

    3) USADA conducted its investigation of Armstrong in conjunction with several federal agencies, including DOJ, the FBI, and the FDA. The USADA's case is based on the evidence jointly gathered. This one is closer, because this type of joint operation can be sufficient to make a private actor public. The problem for Armstrong is that the connection must be between the government and the challenged conduct. Armstrong does not challenge the joint investigation itself; he is challenging USADA instituting internal procedures against him for doping. But the federal government plays no role in those procedures or in the establishment of the rules that USADA follows. That the adjuducation relies on government-gathered evidence is not sufficient.

    4) USADA has been delegated authority to regulate and monitor drug-testing, exercising an express power grant of Congress and carrying out federal treaty obligations. Again, closer, but I am not convinced. Mere delegation of power or authorization to act in some area, even to the point of having exclusive power, is not sufficient. Nor is the simple fact that the private entity is doing something the has public import. That USADA is ensuring that the U.S. complies with treaty obligation point is a nice fact, but I do not believe it is enough.

I leave discussion of the tort, contract, and arbitrability issues to smarter hands. In the meantime, is there something else I am missing?

Posted by Howard Wasserman on July 11, 2012 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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"Defendants exercise powers traditionally exclusively reserved to the State." Nope. Regulating sports is not a traditional government function, nor one it alone has historically done."

You have the wrong end of the stick, methinks. The operative words are "exercise powers...reserved to the State". USADA claims the power to compel attornment or suffer punishment. Moreover, that punishment is worldwide and, no matter how procedurally flawed, once promulgated, is effectively, res judicata and 'in rem'. And clearly the US government DOES have the power to deal with doping in sports. It just delegates those powers... like to the EPA for pollution.

Apparently USADA claims authority to "investigate" and "make determinations" concerning events for a period in time *prior to the US entering into any treaty obligations about these matters*. That is to say, deciding that actions which may or may not have been criminal at the time (and which btw probably took place in another jurisdiction) are now criminal acts. Emphasis on now, since there is apparently a limitations period being ignored. But only a state level actor could presume to have such powers. And these powers are NOT the result of contract. These powers belonged to the government and were delegated. That is the only way any citizen becomes subject to penal sanction (besides contract of course... but Armstrong apparently has never assented to any contractual relationship subject to USADA jurisdiction.)

This is post-facto punishment. Isn't there something in the Constitution about that? And aren't there some interesting cases about temporal jurisdiction questions? (as in, can you punish someone under US law, for an act which took place when the situs of the act was under some other jurisdiction's legal and de jure control.. usually there has to be some nexus tieing the act to the US: it's a US ship, or aircraft etc).

And there is also an interesting set of questions about res judicata and estoppal *as against USADA*. Lance was tested by UCI. He passed the tests. Those tests have not been set aside. Surely Lance is entitled to assert, that as UCI had no capability to investigate him for new 'crimes' as of the date of his last race/retirement, then USADA has no power to overlook or set aside those results.

(Since if USADA is a state actor, and it clearly is, and no private actor otherwise would have any such powers, then it should be bound to treat a similarly empowered state actor in the same manner. It clearly expects any other IF's to accept, concur with, and put into force it's determinations. THAT is a state actor. Or a member of a private conspiracy engaged in tortious conduct against the people it chooses to attack. Take your pick: can't have both. And maybe Armstrong's lawyers should ask UCI to request amicus status, to dispute USADA's jurisdiction as usurping its own jurisdiction over its own races. Devil is in the details, but I suspect that UCI would retain jurisdiction to re-open its investigations about prior drug tests, even if it no longer had jurisdiction to ban or suspend Armstrong. T)

Good on Armstrong for doing this. Hopefully, the judge will make some comments about procedural issues. At the least, any state actor in these sorts of circumstances where sanctions, punishment, livelihood and reputation are involved should be bound by the federal rules of criminal procedure. Remember the DA's who railroaded Senator Stevens? I try not to, since they are not in jail. But USADA seems to claim entitlement (I won't use the 'r' word) to act in an even worse manner.

"To complain of a due process violation suggests some sort of property right; to complain of a tortious interference suggests some sort of contract right"

He has a 'property right' in his reputation, at the least. Otherwise there would be no law of defamation. He competed under the rules then in force and won those races fairly. Of course he has the 'right' to complain if a procedurally flawed process could result in his being retroactively 'un-winned'. In a criminal situation double jeopardy could apply: the competent authority found no sanctionable conduct (eg, UCI is now estopped from claiming that the tests showed he had acted improperly). The new process is devoid of safeguards. As Ezra Levant said about one procedural hiccup during the CHRC v Lemire fiasco: "It's yet another irregularity in a system where arbitrariness and capriciousness have replaced the rule of law." And that's what this looks like too.

Moreover, there are procedural standards that US governing bodies have to meet in dealing with athletes, under the Ted Stevens Act. IIRC US Sailing got spanked for failing to meet the standards in a mess of protests, hearings and complaints dealing with a regatta and the composition of the US Olympic Sailing team for 2008. It is entirely unclear whether those statutory standards apply to USADA as a matter of law, but those standards provide a good example of what the state itself expects of national bodies. Why would the state not expect the same of one of its surrogates when dealing with athletes generally? And why would not a citizen expect the same standards?

USADA's intended result reminds me of pictures of Stalin's politburo, just that events become a non-event. USADA claims the power to cancel those results, as if they had not happened, by a determination reached under a clearly procedurally flawed methodology.

Armstrong presently has the free right of contract to compete further in the triathlons. USADA, as a state level actor has the power to proscribe him from contracting or competing as he can be banned for life ( Shades of Stalin again). Not because of something he did last week, but on the basis of a claim that he did something bad (what, when etc is not clear) some 14 or 16 years ago. And he has been given the "choice" of agreeing to a clearly flawed kangaroo court process where he has no procedural rights or safeguards, or accept being punished. Did I just see the Red Queen duck out of the room?

Technically, USADA's reach is limited to the US, but since this IS an international cartel, backed by a treaty, in which all of the members are bound to 'give full faith and credit' to the 'rulings' of others, it is world-wide. These cartels infest all the international sports. If a sailor is suspended by the Royal Yachting Association, the USSA is required to stomp on any US yacht club which lets that sailor race. Exactly *what* USSA would do to the club is unclear, but it could suspend the club *and all its members* similarly. And USADA's reach is thus effectively direct and overwhelming and able to reach right down to club hosting an event, in France. Just like the cops in Austin Texas requesting assistance *pursuant to treaty terms* from cops in Ottawa. The request WILL BE complied with.

And before I trot off to deal with another mess, a quick google finds the matter I was thinking of. The US Olympic Committee had to deal with procedural fairness in decision making by National Governing Bodies in Farrah Hall v. United States Sailing Association, pdf here http://www.sailingscuttlebutt.com/news/09/0222/

Hall's complaint alleged 'USSA has violated the standards set for in Section 220522 of the Ted Stevens Act and Section 10.5 of the USOC Bylaws which require a National Governing Body to provide "fair notice and opportunity for a hearing to any amateur athlete... before declaring the individual ineligible to participate" and the more general obligation to provide for "the prompt and equitable resolution of grievances of its members". Ted Stevens Olympic and Amateur Sports Act S 220522(a)(8),(13). USOC effectively said, YUP! and spanked the USSA. Not having read the Stevens Act, I suspect that there may be some lacunae in it as it refers to 'amateurs' and of course, professionals are now allowed to compete in the Olympics. The Act may apply to ALL athletes under US auspices. Lots of interesting side discussion in the ESPN coverage of the Tour de France, where some injured riders have abandoned the Tour in order to have time to recover and prepare for the Olympics at the end of this month. If this had happened sooner, maybe Armstrong could have declared his intention to compete in the US trials so as to *ensure* that he was covered by the Act.

Oh yeah, I see that I have been short, terse and succinct again. This is what happens when I eat lunch at my desk! And the client is late...

Posted by: Dyspeptic Curmudgeon | Jul 12, 2012 3:55:35 PM

I would be interested in hearing more about "common law due process" -- Count IV. Although I have not seen the name before, it seems similar to decisions of the Alabama Supreme Court holding that a voluntary association owes its members some regularity of its processes and not arbitrary decisions.

Posted by: Edward Still | Jul 11, 2012 6:17:19 PM

I would be interested in hearing more about "common law due process" -- Count IV. Although I have not seen the name before, it seems similar to decisions of the Alabama Supreme Court holding that a voluntary association owes its members some regularity of its processes and not arbitrary decisions.

Posted by: Edward Still | Jul 11, 2012 6:16:51 PM

I think what's troubling me is that I'm not sure I understand exactly what Armstrong (or other athletes) are entitled to generally. Is participation in UCI-sponsored events somehow not analogous to employment at will? Could UCI on its own just say "We don't like Lance Armstrong anymore, so we're stripping him of his titles and forbidding him from participating in future competitions"? If not, why not? What creates a legal right in Armstrong to maintain his titles and compete in future events? I think its hard to analyze Armstrong's complaint without understanding the source of the rights he claims (which I don't see in a brief perusal of the amended complaint). To complain of a due process violation suggests some sort of property right; to complain of a tortious interference suggests some sort of contract right (between Armstrong and UCI). I'm not sure I understand the basis for either.

Posted by: Curious Anon | Jul 11, 2012 5:55:10 PM

My colleague at SportsLaw Blog Mike McCann has a nice analysis of this. My best guess is that USADA is linked to to UCI, as well as the international governing body for triathlons, and that both of those organizations would, if you will, give full faith and credit to USADA's determination.

Posted by: Howard Wasserman | Jul 11, 2012 4:12:03 PM

This lawsuit is fascinating to me, but I'm not sure I understand exactly what's going on. What exactly does the USADA have the authority to do? The complaint alleges that the USADA is trying to strip Armstrong of his Tour de France victories and institute a lifetime ban on his participating in cycling competitions, but does USADA really have that authority? USADA doesn't hand out Tour medals (or trophies or whatever; I'm no cycling fan) and doesn't run events, so how does it have the authority to strip someone of Tour victories or prohibit them from participating in competition? My understanding (based solely on skimming the complaint and very cursory internet research) is that it is UCI (the international governing body for cycling) that oversees cycling events. Isn't it UCI that would have the authority to prohibit Armstrong from future competitions and/or strip him of past titles? It seems to me that UCI says "you can only participate in our events if USADA says you're drug-free," and USADA is about to say "Armstrong is not drug-free." Does USADA really have the de jure power to ban Armstrong from competition, or is it just a de facto power based on some UCI requirement that competitors get the USADA seal of approval?

Posted by: Curious Anon | Jul 11, 2012 1:44:41 PM

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