UPDATE: Lance Armstrong has responded, and he has gone for USADA's jugular, or perhaps cojones. In a seething response written on behalf of the cycling legend and cancer advocate, Armstrong's legal team urges "the Review Board to prevent USADA from emasculating its own Protocol and Review Board process."
The 18-page response makes the case that USADA has violated its own policies in making their case by failing to provide all the evidence against Armstrong (e.g., laboratory results and witness names), thereby denying Armstrong a fair chance to respond. Moreover, Armstrong contends that USADA has violated WADA code by procuring testimony in exchange for lighter sentences against the witness (as explained below, witnesses are expected to include cyclists who are proven, or suspected, dopers).
Notably, several of Armstrong's former teammates recently asked for their names to be withdrawn from consideration for this summer's Olympic Games in London, which has led some to speculate that they may be witnesses in the USADA case. The response points out that while the case involves four different professional cycling teams over more than two decades, Armstrong is the only athlete implicated in the case. Armstrong and his legal team draw attention to the fact that USADA has brought this case forward in the weeks preceding the 2012 Olympic Games, a time during which USADA's resources might be better used monitoring current U.S. athletes as they prepare to represent the U.S. in front the of the world.
The case against Armstrong will be reviewed by USADA's Anti-Doping Review Board, which according to the USADA website is "a group of experts independent of USADA with medical, technical and legal knowledge of doping matters." If the Review Board recommends that USADA continue with the charges, effectively disagreeing with Armstrong's response to the USADA accusations, he can either accept the sanctions or ask for an arbitration hearing.
If we are to draw a cycling analogy to the ongoing case against Armstrong, USADA and Armstrong have hit the Pyrenees, the second grueling mountain phase of the Tour de France following the Alps. In his prime, Armstrong was practically unbeatable in the mountains as every rival attack was met with a crushing counterattack. The second arduous phase of this legal saga has seemingly only just begun, but for those who questioned if Armstrong was going to respond, the answer for now is an emphatic "yes."
On Tuesday, the U.S. Anti-Doping Agency (USADA) sent a letter to Lance Armstrong notifying him of their intentions to file charges against him and five other staff members of his former cycling teams for trafficking, possessing, and using performance-enhancing drugs (PED). This is not a new story. Instead, it is the latest chapter in a saga that has grown from loose accusations made through the French media to a full-blown U.S. federal investigation into Armstrong’s alleged use of PEDs, a practice known as “doping.”
In cycling, as opposed to baseball or football, the use of PEDs revolves less around augmenting muscle mass and brute strength and more on maximizing the physiological components essential for top aerobic performance. While “dopers” in cycling have used testosterone, human growth hormone, and other anabolic steroids to accelerate the muscle recovery process, the PED of choice for cyclists is erythropoietin, or EPO, a hormone that stimulates red blood cell production in bone marrow. EPO is used clinically to treat anemia (low red blood cell count), typically in patients undergoing radiation or chemotherapy treatment for cancer, or patients with chronic kidney disease. In aerobic sports, however, EPO use artificially elevates an athlete’s red blood cell volume, which allows the body to deliver more oxygen to working muscles, and improves performance as the athlete can go harder for longer periods of time.
The boosting of red blood cell counts can be achieved through other methods, both legal and illegal. One method of non-EPO blood doping, which is banned by the World Anti-Doping Association (WADA), involves transfusions of blood extracted either from the same athlete or another person prior to competition that is then injected right before, or during, competition for a quick boost. On the legal side, many elite athletes, like Michael Phelps, freely admit to training at altitude or sleeping in hyperbaric chambers to stimulate the body to produce more red blood cells naturally.
The latest allegations against Armstrong are not the most consequential, at least on a criminal level. In February 2012, federal prosecutors announced they were dropping charges against Armstrong after a nearly two-year investigation into the possibility that Armstrong and his team defrauded the United States Postal Service (USPS) by using USPS’s sponsorship money to purchase PEDs and other doping paraphernalia. While the U.S. Attorney’s office did not cite reasons for closing the case, the widespread consensus is that the legal evidence did not meet the thresholds for criminal indictment. Armstrong’s lawyers estimate that he has been subjected to nearly 600 blood and urine tests over the course of his 14-year cycling career, likely making him the most tested professional athlete of all-time. He has never once tested positive.
Moreover, the foundations of the federal investigation rested on testimony provided by at least two of Armstrong’s former teammates, Floyd Landis and Tyler Hamilton, whose careers ended tumultuously after using and testing positive for PEDs, denying it, and then subsequently admitting it. While Hamilton and Landis’s testimonies may have been truthful, the credibility and motives of the two were highly suspicious; they are less than ideal witnesses for building a criminal case on otherwise circumstantial evidence. In fact, the credibility of almost anyone who might testify against Armstrong is likely to be challenged as many of his teammates and competitors have been caught doping after fiercely denying it.
Without a definitive positive test result and seemingly no new evidence, what kind of case can the USADA present against Armstrong? It is certainly not a criminal case. USADA is not a law enforcement agency and is only loosely backed by the U.S. federal government. Their standards of proof and methods of punishment are entirely different from that of the Department of Justice. The USADA case against Armstrong will also take a different approach by focusing more on the evidence of PED use and less on the finances of their purchase. One potential challenge to the USADA case is that the accusations date back well beyond the eight-year statute of limitations dictated by WADA Code. USADA contends, however, that the “fraudulent concealment” of evidence by Armstrong and company nullifies the statute of limitations constraint.
If Armstrong does not protest the USADA charges, or loses the protest, he will likely be stripped of all of his seven consecutive Tour de France championships. This raises curious questions about who would then be crowned the champion for each of these years since most of his competitors have also been convicted of doping. Additionally, Armstrong will likely receive a lifetime ban from any sports federation that abides by USADA and WADA code. This would mean that Armstrong would not be able to compete in the Ironman triathlon world championships in Hawaii this fall, an event he has been training and racing for in his post-cycling competitive career. As it stands currently, Armstrong will be banned from any Ironman-sponsored competition pending the USADA case per World Triathlon Corporation policy, the governing body of Ironman competitions.
While we are left to guess Armstrong’s next move, a recent letter from Armstrong’s attorney asserts that although USADA has “summarily prevented Armstrong from competing, he remains a competitor. He has never shrunk from a fair fight, particularly to defend his name and his accomplishments.” He has until Friday, June 22 to officially respond to the USADA accusations.