The Smell of Blood – USADA versus Lance Armstrong

By Verner Møller, Aarhus University, Denmark

In the letter the United States Anti-Doping Agency (USADA) sent to Lance Armstrong to notify him that the Agency had decided to open a formal action against him there appears a mind-boggling statement: Dr. Martial Saugy, Director of the Lausanne Anti-Doping Laboratory, “stated that Lance Armstrong’s urine samples from the 2001 Tour of Switzerland were indicative of EPO use.” Moreover: “Lance Armstrong’s doping is further evidenced by the data from blood collections obtained by the UCI from Lance Armstrong in 2009 and 2010. This data is fully consistent with blood manipulation including EPO use and/or blood transfusions.”

If this is true, it is hard to understand why no anti-doping authority has opened a case against Armstrong until now.

Anti-doping should be pretty simple. According to the first World Anti Doping Code: “Anti-doping rules, like competition rules, are sports rules governing the conditions under which sport is played. Anti-doping rules are not intended to be subject to or limited by the requirements and legal standards applicable to criminal proceedings or employment matters” (WADC 2003 p. 7).

By applying this definition of doping the World Anti-Doping Agency underlined that doping regulations were arbitrary: “Doping is defined as the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.8 of the Code” (WADC 2003 p. 7). In other words: Doping is what WADA at any given time has decided to list or describe as doping.

A striking example of this pragmatic approach is the substance caffeine. From 1983 to 2004 caffeine was on the banned list. If an athlete was found with too much caffeine in his or her body, he or she was subject to sanction. In 2004 WADA decided to remove caffeine from the prohibited list. So today athletes can use this performance enhancing substance as much as they like. It is no longer considered an anti-doping rule violation. In hindsight one may think it was unfair that athletes were vilified for drinking too much coffee since WADA later reached the conclusion that caffeine was not doping after all and removed it from the list. But from a sporting point of view it was not unfair in so far as sporting rules are arbitrary and may change over time. WADA was smart enough to stress that doping rules are sports rules and thus not limited by the requirements of the legal system’s treasured checks and balances approach.

The reason why it was important for WADA to underline the extraordinary status of the doping regulations is that professional athletes make their living from their sport and because the two years ban for doping rule offences was so extreme in comparison with other sport sanctions that athletes who tested positive for a banned substance would claim innocence and – if possible – fight their case in a civil court. If athletes in doping cases were allowed the benefit of the doubt and it was the anti-doping authorities who were supposed to carry the burden of proof anti-doping would be impotent. So the anti-doping campaign is dependent on politicians and legal authorities’ recognition of doping regulations as sporting rules.

So to reiterate: Anti-doping should be pretty simple. If a banned substance is detected in athletes urine samples they are sanctioned according to the rules, in principle – albeit much more severely – in the same way as they are when they are found breaking any other rule in sport. However, as the controversy regarding Lance Armstrong’s alleged use of doping it is not that simple.

If doping regulations were observed by the anti-doping organizations as purely sporting regulations there would have been no cause for further action against him. Armstrong may or may not have used prohibited performance enhancing means. He may or may not have been cheating his way to success. So long as he has not been caught doping by the official control system his victories should, from a sporting point of view, be accepted as legitimate the same as any other sports victory is accepted despite later revelations that the referee had given a goal that did not cross the goal line or a soccer player scored a crucial goal with his hand masking it from the referee as a header.

However, the anti-doping agencies, which have been granted the right to implement doping rules as sports rules, are pushing the envelope. Because the doping test system is not much more efficient than going fishing with a bucket, they are moving more and more toward criminal investigation. In the wake of federal investigator Jeff Novitzky’s pursuit of the substance in Armstrong’s former teammate Floyd Landis’ allegation that systematic hormone and blood doping was taking place in the US Postal Service Team, a wealth of rumours and witness statements from subpoenaed Armstrong associates arose, which left little doubt that Armstrong had not only been doping but doped massively throughout his career.

In light of this, it is easy to understand why the USADA felt the need to take action the moment Novitzky decided he would not be able to lift the burden of proof despite all the anecdotal evidence that he had gathered. USADA’s letter to Armstrong indicates that the agency has followed in the footsteps of Novitsky. “An important aspect of USADA’s investigation has been face-to-face meetings between USADA representatives and riders on the above referenced cycling teams (US Postal, Discovery Channel, Astana, and Radioshack). USADA sought to give the riders an opportunity to be a part of the solution in moving cycling forward by being truthful and honest regarding their past experiences with doping in cycling.”

To judge from the content of the letter, USADA has been successful in its attempt to persuade Armstrong’s former allies to reveal the secrets behind his dominant position in cycling. Thus, since athletes in the sport context are not granted the same legal protection as defendants in the proper legal system, it is understandable that Armstrong threw the towel when his attempt to bring his case against USADA to a federal court by a lawsuit was dismissed.

The claim in the USADA letter, that his test from 2001 and also his blood tests from 2009 and 2010 reveal blood doping, is perhaps the most suspicious of all. Why is it that he was not charged in 2001 and again in 2009 and 2010? Who is responsible for that? If the International Cycling Union (UCI) decided to cover up a positive test in 2001, then it is the UCI that should be held responsible. Likewise, if Armstrong’s blood profile was not suspicious enough to charge him of a doping offence why are they relevant for USADA today?

USADA’s pursuit of Armstrong in the wake of Novitsky’s investigation is a clear indication that anti-doping authorities are moving away from the sport rule approach toward a criminal offence approach. This turn of events makes it worthwhile considering if it is possible in the future to accept the legal vulnerability of athletes or they should be given proper legal protection according to the requirements and legal standards applicable to criminal proceedings and employment matters.