The hits just keep on coming

USADA is handing out sanctions like breath mints.

Three of the six individuals recently charged by the U.S. Anti-Doping Agency in connection with what the agency alleges was a widespread conspiracy dating from 1998 through 2010 have received lifetime bans.

USADA handed down the sanctions Tuesday to Dr. Luis Garcia del Moral, Dr. Michele Ferrari and Jose “Pepe” Martí for activities including possession of, trafficking of, and administration and/or attempted administration of “prohibited substances and/or methods including EPO, blood transfusions and related equipment, testosterone, hGH, corticosteroids, and masking agents,” and “assisting, encouraging, aiding, abetting, covering up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping rule violations.” http://velonews.competitor.com/2012/07/news/usada-hands-ferrari-two-others-lifetime-bans-in-u-s-postal-case_228698.

I’d say Ferrari was well past due. “‘I think he is one of the most knowledgeable and best trainers in cycling,’ [Giorgio] Squinzi says, ‘but I also think he is a person who operates without any moral restrictions whatsoever.'” http://www.2009tourdefrancenews.com/tourdefrance/article/0,6802,s-3-12-13773-8,00.html.

The fates of Lance Armstrong, Johan Bruyneel, and Dr. Pedro Celaya are undecided at present.

“The other respondents in this case have either asked for and been granted a five-day extension to complete their response, or have requested to move forward with an arbitration hearing where all evidence will be presented, witness testimony will be given under oath, and an independent group of arbitrators will ultimately decide the outcome of the case…” http://velonews.competitor.com/2012/07/news/usada-hands-ferrari-two-others-lifetime-bans-in-u-s-postal-case_228698.

Is this a preview of what lies ahead? Perhaps. Mr. Armstrong has one hell of a fight ahead of him is he is to clear his name before USADA. There is talk that he will not even try. “Armstrong’s attorney said in the lawsuit that Armstrong is ‘certain to lose’ if he tries to fight the USADA charges by proceeding to an arbitration hearing.” http://www.businessinsider.com/lance-armstrongs-lawyer-says-he-is-certain-to-lose-his-doping-case-2012-7.

In other notable articles bouncing about these interwebs, Brian Alexander is asserting that the USADA has crossed the threshold to being a state actor, in an article which uses the word “victim” in the title (in case you were wondering what Mr. Alexander felt about all this).

[I]t’s not the what of this case that bothers me, it’s the how. Ends do not always justify means, and sometimes, in order to preserve higher values, you have to let guilty parties walk. In this instance, I’m less concerned about proving that Lance’s yellow jerseys are smudged than with the fact that USADA keeps mutating into what looks like a law-enforcement body, which it isn’t.

USADA, which participated in the federal investigation, isn’t part of the U.S. government and isn’t a judicial body. Newspaper stories tend to shorthand it as a “quasi-governmental” entity, but that’s not accurate. USADA is a private non-profit corporation hired to manage the anti-doping program for American athletes who hope to participate in the Olympics as well as various local, regional, national, and international competitions. And it’s gotten out of control.

Among other things, USADA runs the adjudication process when athletes fail a drug test, and it’s here where things become murky. Armstrong never failed a test that we know of, but relying on language written into the World Anti-Doping Code, the governing rules used by the World Anti-Doping Agency (WADA) and all national affiliates like USADA, the corporation is pursuing Armstrong on the basis of a so-called “non-analytical positive”—which means evidence, such as testimony and documents, that he doped. Using this material, USADA convinced a review board to formally charge Armstrong on June 30. http://www.outsideonline.com/outdoor-adventure/celebrities/Lance-Armstrong-Victim.html?page=1.

In a nutshell, the argument made by Mr. Alexander and countless others is that Mr. Armstrong’s due process rights granted to him under the United States Constitution have been violated. See generally, http://en.wikipedia.org/wiki/Due_Process_Clause. What is important in the present matter is that the other side of the lawsuit has to be the state, or a state actor, in order for any violation of the defendant due process rights to matter. The rule is basic: A private citizen cannot offend the due process rights of another citizen. You have to show a state actor first, before any due process violations are at issue. http://en.wikipedia.org/wiki/Due_Process_Clause#State_actor.

Mr. Alexander claims, among other things, that if USADA is “going to behave like a law-enforcement agency, it should be held to the same standards as one.” http://www.outsideonline.com/outdoor-adventure/celebrities/Lance-Armstrong-Victim.html?page=2. So, is USADA a state actor? It would seem to me that they are not. It is a good question. I cannot believe that this is a matter of first impression. that is to say, I assume this issue has been presented previously by some party, at some time, in some case, in some court. But, I do not have any examples of such a case, or such cases, at my fingertips. And, honestly, what good would it serve if I linked to something available only to those with a Westlaw or Lexis account? This blog is better served, in my opinion, if I keep the citations and supporting references accessible to anyone. That is why, incidentally, I link to Wikipedia on occasion.

I can, however, provide direction to some light reading (/snark) for those interested in knocking themselves unconscious at this hour regarding the question of whether the United States Olympic Committee (USOC) or the National Collegiate Athletic Association (NCAA) are state actors. I have read these cases. I believe they represent current law, but they may not. They are provided as a background to the state actor argument Mr. Armstrong is presumably going to be making. The court discusses at length what is required to make a finding that a seemingly private entity is actually a state actor. The USOC was held not to be a state actor in DeFrantz v. US Olympic Committee. And, the NCAA was also found not to be a state actor in NCAA v. Tarkanian. I would think that USADA is pretty much analogous both, thus I conclude that USADA will most likely not be held to be a state actor in the instant case (way to pick a side, eh?).

Can Armstrong change that determination? And, perhaps more importantly, will he even try to? It seems as though Armstrong is attempting to paint the charges against him as unfair and impossible for him to defend, thereby creating the impression that he is simply a victim and not the guilty party those USASA bastards claim him to be (the use of “bastard” is my own). It’s going to be an interesting game. So far, it seems Armstrong has played the Court of Public Opinion with this usual mastery of the instrument. As Edward Pickering wrote, “Lance Armstrong’s worst nightmare is irrelevance.” http://www.cyclesportmag.com/features/lance-armstrong-the-end/. I cannot believe that Mr. Armstrong will ever be irrelevant, but that probably won’t stop him from fighting the fight. I don’t think he knows any other way forward than through conflict.

The closer a man stands to the trees, the harder it is for him to see the forest. Fat Cyclist provides an example of this concept in action, “It is impossible for people like you and me to have a productive, enlightening conversation about whether Lance doped.” http://www.fatcyclist.com/2012/06/15/fight-cancer-win-a-dream-bike-or-dream-trip-unexpectedly-serious-edition/.

Which is too bad, really. “[I]f you hear some uninformed person say the government should stop going after suspect athletes, tell them to check their hero-worship at the door. In America, everyone suspected of a crime is supposed to be investigated equally.” http://www.rocklandtimes.com/2012/06/24/hero-worship-clouds-judgment/ (an aptly titled article if ever there was one).