Crossed limits and circumstantial evidence in the Armstrong case
As the Armstrong scandal lingers, questions regarding the legality of the procedure, including the use of circumstantial evidence, become more pressing.
Last week one of my colleagues warned athletes to take serious note of the possibility that the violation of doping rules can be found based solely on witness statements and other indirect evidence, as exemplified by the Armstrong case. The question that arises is whether the reasoned decision, drawn up by the United States Anti-Doping Agency (USADA) actually meets the standards of proof generally required in doping cases.
USADA is the competent body to initiate anti-doping rules violation charges on American athletes. When an athlete is charged he can choose to accept a sanction or exercise his right to request a hearing before an independent arbitration panel. The decision if the doping rules have been violated and what sanction will be imposed, is determined by this panel after the completion of a full hearing process. As Armstrong decided not to engage in arbitration, USADA’s reasoned decision is considered as a decision on the merits of the case. When a sanction is imposed, the athlete in question, his international governing body – in this case the UCI – and the World Anti-Doping Agency (WADA) can appeal the decision before the Court of Arbitration for Sport (CAS) in Switzerland.
Article 3.2 of the WADA-Code provides that violations may be established by any reliable means. A positive drug test is thus not essential. However, the WADA-Code does not specify what must be proven in a circumstantial evidence case. Interestingly, USADA claimed that had a hearing occurred, it would have used past drug testing samples from Armstrong to corroborate the witness testimony and other documented evidence. However, it also claimed that even without the past testing samples, it had enough evidence to prove the violations. Although the statements have been made under penalty of perjury, it remains to be seen if the CAS would have accepted such statements as ‘reliable means’. Especially considering the US federal prosecutors closed the criminal investigation into doping allegations without any charge after two years. Although not surprising, it is disappointing that this case will not be reviewed by the CAS. A chance is missed to shine some light on the legality of basing a breach of the anti-doping rules on evidence consisting solely of witness statements and other non-analytical data.
Additionally, from a rule of law perspective it is unacceptable that USADA breached the applicable statute of limitations by investigating further back than eight years (art. 17 of the WADA-Code). Even more worrying is WADA’s approval of this breach, stating that the statute of limitations is not an excuse not to investigate evidence of doping that dates back longer than eight years. Despite criticism regarding this breach the UCI decided not to appeal USADA’s decision. While recognizing the issue, according to the UCI it is up to Armstrong to defend himself against the violation of the statute of limitations as well as against witness statements that he deems to be incorrect.
One can wonder whether it is not also the task of the international governing body to protect its athletes against possible breaches of their rights and to facilitate certainty regarding other athletes’ legal status. This is not only in the interest of the athletes, but also in the interest of the fight against doping. The witch-hunting of athletes and the disregarding of procedural standards will ultimately only undermine this legitimate fight as well as the credibility of the sports world.