Imagine walking into a courtroom as the defendant in a lawsuit. The prosecuting attorney reads the charges against you citing nothing more than the testimony of anonymous witnesses as evidence. You object, claimingthis is unjust! To your surprise the prosecutor walks to the judge’s bench, puts on a judge’s robe and denies your motion. The prosecutor, still wearing his judge’s robe, then takes out his cell phone and calls three of his friends to serve on your “independent” jury.
This fictitious, but obviously unjust situation is incredibly similar to the case Lance Armstrong currently faces from the United States Anti-doping Agency and its CEO Travis T. Tygart.
A similar investigation led by the United States Department of Justice concluded in February, 2012. After almost two years of investigation, and millions of US tax dollars spent researching Armstrong’s past, the USDOJ decided there wasn’t enough evidence to continue the investigation. So is this just another branch of the Federal government wasting millions of more tax dollars on the same investigation?
No, despite the officially sounding name, it turns out the “United States Anti-doping Agency is not a part of the federal government. Although it receives almost 90 percent of its funding from the federal grants, the USADA is a government program masquerading as a non-profit organization. This non-profit status allows it to investigate and prosecute athletes without affording them the constitutional and due process protections required of other federal agencies. This status also allows it to prosecute athletes with a lower burden of proof than the “beyond a reasonable doubt” standard that would have been required in the previous investigation by the USDOJ. Finally, it allows a situation where the same man, Mr. Travis T. Tygart is allowed to serve as Prosecutor, Jury and Judge in the investigation of Lance Armstrong.
PROSECUTOR: Tygart initiated the charges.
On June 12, 2012, Travis Tygart and his staff at the USADA sent a letter to Armstrong accusing him of violating anti-doping rules. As evidence of this violation, Mr. Tygart and his staff were only able to cite previous drug tests that Armstrong had passed and the testimony of anonymous witnesses.
In the letter, Mr. Tygart informs Armstrong that he has 10 days to submit evidence to a Review Board that will determine if there is “sufficient evidence of doping” to continue with a full hearing. In his defense, Armstrong can only offer written materials to the Review Board. He will not even be allowed to know the names of the cyclists that have allegedly testified against him.
JURY: Tygart gets to hand pick the Review Board
The “Review Board” will decide whether charges should be brought against Armstrong from the USADA, and whether the case shall go to a full arbitration hearing. Who serves on this review Board? According to USADA protocol 11(b) The independent “review board” shall be appointed by the USADA’s CEO. You read that correctly, Mr. Tygart is allowed to handpick the individuals that serve as the “Jury”, and decide if these charges should move forward. If an athlete had failed a drug test and the board was looking at objective evidence this process might make sense; however, Armstrong has never failed a drug test. All of the evidence in this case is subjective. Mr. Tygart has allegedly caught several other cyclists doping, and offered them immunity in exchange for their testimony against Lance. Shouldn’t the credibility of such a witness be at least considered? Well, let’s assume that Mr. Tygart’s buddies, I mean, the independent “review board” find enough evidence to move the investigation forward, what happens next?
JUDGE: Tygart and USADA staff recommends sanction
Under the Applicable rules, Travis Tygart and his staff at the USADA, will recommend a sanction that will be imposed which may include up to a lifetime of ineligibility from sport. Finally, if Armstrong disagrees with the sanction imposed on him by Mr. Tygart, he can appeal for a full arbitration hearing.
USADA lacks internal and external controls
If Mr. Tygart and staff have the power it appears, what are the internal and external controls at USADA? What would restrict an overly ambitious CEO with an “axe to grind?”According to USADA bylaws, the organization has a very small ten member board of directors. The current director’s are apparently impressed with Tygart and his “Tygarthian” prosecution style of accusing first and looking for evidence later. Unless Mr. Tygart received a pay cut last year, he’s been paid a total of over $1.2 million in compensation and $100,000 in bonuses over the past four years. The spokesperson at the USADA did respond to my e-mail, but she declined to comment whether Tygart’s bonuses were tied to finding a certain number of athletes or a particularly high profile athlete guilty of doping.
So, how are the USADA’s directors chosen? Although the Bylaws allow other organizations to nominate potential directors, the USADA Board essentially has the power to elect their own replacements. This could ensure that only directors sympathetic to the Tygart are ever elected, and removes the accountability that a non-profit board should provide.
Finally, there’s the office of National Drug Control Policy. This is the branch of the Federal government that funds the USADA $10 million a year of federal tax dollars to operate. According to legal counsel for the NDCP office, the $10 million grant is an “unsupervised non-competitive” grant. So, Tygart and staff are guaranteed $10 million a year in funding from the Federal government, but must answer to no one.
Do I think Mr. Tygart has some kind of personal vendetta against Lance? My personal opinion is yes, but I also think actions sometime speak louder than words. The 2012 London Olympic Games are a little more than a month away. Mr. Tygart and his staff are responsible for testing all US athletes headed to the games. However, he has chosen to use the majority of his offices resources investigating whether a retired cyclist doped 16 years ago.
The investigation and sanctioning process at the USADA is unconscionable. The partiality of the prosecutor, the lack of due process for the accused, and the lack of an independent fact finder are completely at odds with our American system of justice and fairness.
In the words of Heinlein, “To give a man power without accountability is to establish a tyrant.”