While the dismissal of Armstrong's case does not reflect well on his chances, and while some may now question the decision to file the lawsuit in Texas as opposed to another jurisdiction, Armstrong can ultimately prevail. Keep in mind, Armstrong insists that he has never doped, and in February, he overcame a separate Justice Department investigation into doping allegations. However, last month USADA issued doping charges against Armstrong, maintaining that blood samples from Armstrong in 2009 and 2010 show he manipulated blood through transfusions and Erythropoietin (EPO), a hormone that can be used as performance-enhancer. Armstrong has until Saturday to formally challenge the charges, which prevent Armstrong from competing in cycling, Ironman and other competitions, or acquiesce to the USADA's charges and accept the agency's punishment.
1. What is Armstrong's legal strategy?
USADA is a peculiar entity for the U.S. legal system to address, and Armstrong hopes to exploit the agency's uneasy fit with constitutional requirements.
In spite of its government-sounding name, USADA is not part of the federal government and can only be loosely described as a law enforcement agency. USADA describes itself as a nonprofit, non-governmental organization created by the U.S. Olympic Committee to test, investigate and, if necessary, civilly prosecute athletes who allegedly use illegal or prohibited performance-enhancement drugs. The Ted Stevens Olympic and Amateur Sports Act gives USADA exclusive authority to test any U.S. Olympian or any athlete who participates in an Olympic event. USADA is funded through private and public contributions.
USADA has limitations on investigations, hearings and sanctions, and those limitations can greatly reduce safeguards for implicated athletes. Like other nongovernmental enterprises, USADA doesn't have the power to subpoena information, which may prevent it from receiving a complete set of facts. It also cannot compel witnesses to testify under oath, which may prevent the agency from uncovering the truth. Furthermore, when USADA "prosecutes" athletes, it does not hold court trials; instead, it convenes arbitration hearings, which do not offer all of the protections criminal defendants receive in trials, including the right to confront accusers and to challenge all admissible evidence. The hearings follow rules governed by the American Arbitration Association, not the federal rules of criminal procedure or civil procedure. USADA usually wins these hearings, which means that Armstrong's chances of success in arbitration are low.
If an athlete is found to have used a performance-enhancing drug, USADA is authorized to declare the athlete ineligible and strip away any achievements, better known as "loss of results". Typically the sanction is limited to a period of time, usually no longer than two years; although some athletes have received permanent bans. When this happens, athletes can appeal to the Court of Arbitration for Sport, which is an international arbitration body, but not to a U.S. court.
In Armstrong's view, although USADA is nominally a nongovernmental entity, it operates as a state actor, meaning it acts on behalf of the government. If USADA is a state actor, it would be required to provide athletes with constitutional safeguards. Armstrong has a point that the quasi-criminal nature of USADA's proceedings may command greater due process. USADA is a creation of the federal government, receives funding from the federal government and regulates athletes on behalf of the federal government. As Armstrong detailed in his complaint, USADA also investigated him with cooperation from the Justice Department and FBI. Logically, if USADA sounds like the government, talks like the government and gets funding from the government, there is a good argument that it is the government.
2. Assuming Armstrong re-files his lawsuit, how will USADA respond?
If Armstrong re-files his lawsuit, USADA would be poised to make at least two arguments to Judge Sparks to secure another dismissal.
First, USADA would likely assert that federal law effectively prevents a judge from hearing Armstrong's claim because it lacks jurisdiction. USADA is recognized by the U.S. government as a nongovernmental entity; thus it is not obligated to satisfy constitutional requirements. Moreover, federal law empowers USADA with exclusive authority to test any U.S. Olympian or any athlete who participates in an Olympic event. Armstrong, by virtue of his participation in such events, consents to USADA. According to this logic, if Armstrong believes USADA is unfair, then he should lobby Congress to pass a law that changes or dismantles USADA. But until then, he has to abide by USADA.
As a second method of obtaining a dismissal, USADA may argue that a lawsuit filed by Armstrong in the near future would not yet be "ripe" for judicial review. Armstrong has not yet exhausted his remedies with USADA and a court decision at this point would not be based on a fully developed set of facts. Undoubtedly, Armstrong has an opportunity to formally challenge USADA's charges through arbitration and next through the Court of Arbitration of Sport. If he loses, then at that point he could seek legal redress from a U.S. court on the same constitutional issues.
If Armstrong re-files his lawsuit this week, USADA could also argue that the filing is too late for purposes of Judge Sparks issuing an injunction by Saturday. USADA can insist that it would be prejudiced by having to quickly prepare legal briefs and that due process would be compromised for such an accelerated legal process.
In response to USADA's likely dismissal efforts, Armstrong could assert several arguments. For instance, he could say that merely because Congress passes legislation and the President signs it into law does not mean it satisfies constitutional scrutiny. Much of American jurisprudence is based on courts holding laws unconstitutional. Moreover, Armstrong has identified reasons to question the classification of USADA as a "nongovernmental" entity.
Armstrong could also argue that his legal rights are already being harmed, perhaps irreparably, by USADA, and that USADA -- which has investigated Armstrong for several years and has charged him with serious offenses -- should be able to quickly provide a legal response to Armstrong's lawsuit.
3. Assuming Armstrong seeks another temporary restraining order and it is not dismissed, how would Judge Sparks evaluate the arguments?
USADA could make several substantive arguments that Armstrong should lose another request for a temporary restraining order. Courts normally consider four basic factors when deciding whether or not to grant injunctive relief. Armstrong would not have to "win" on every factor, only on the overall balance of them.
First, Armstrong would have to demonstrate that he would probably win on his legal claims in a full trial. Unfortunately for Armstrong, Judge Sparks seems skeptical, although he has not ruled on the actual claims.
More importantly, there is a lack of precedent of successful legal challenges to USADA.
In 2004, Olympic runner Regina Jacobs sued USADA after it concluded that she doped. Her lawsuit, however, concerned the rules governing how she and USADA would arbitrate their dispute, not whether USADA's procedures were constitutional. Regardless, a federal court dismissed her lawsuit on grounds it lacked jurisdiction to involve itself in a USADA arbitration. Four years later, track coach Trevor Graham sued USADA on constitutional grounds after the agency sanctioned him for providing steroids to athletes. A federal court dismissed his lawsuit on grounds that the Ted Stevens Olympic and Amateur Sports Act gave USADA exclusive jurisdiction.
One small piece of encouraging precedent for Armstrong is that sprinter Justin Gatlin, banned by USADA, persuaded a federal judge to grant a temporary restraining order in June 2008 to participate in the 2008 Olympic Games. Gatlin, however, had already received a decision from the Court of Arbitration for Sport. As it stands now, Armstrong's case is much less developed. Gatlin's legal victory was also short-lived. Just four days later the presiding judge vacated the order and denied Gatlin's motion for a preliminary injunction, and he did not compete in the 2008 Olympic Games.
Second, Armstrong would have to show that he would suffer "irreparable harm" if subjected to USADA's process. Irreparable harm normally refers to harm that cannot be adequately remedied by money damages. Here again, Armstrong might struggle. On one hand, Armstrong asserts that USADA's ability to take "everything he has achieved" away from him, and to prevent him from ever competing again, would be an incalculable loss. Courts, however, often find ways of measuring harm in economic terms. And chances are, Judge Sparks would likely be able to determine a monetary value to any sanction wrongly imposed, and reputational harm wrongly caused, by USADA. Therefore, any harm suffered by Armstrong would probably not be irreparable.
Third, Armstrong would have to convince Judge Sparks that a temporary restraining order would not harm USADA more than it helps him. The third factor is probably Armstrong's best, because an injunction of the Armstrong proceedings would not prevent USADA from conducting its day-to-day activities. Plus, if Armstrong ultimately loses before a court, USADA could still subject Armstrong to punishment. USADA, however, would likely respond that a court granting Armstrong a preliminary injunction would undermine the agency's authority and encourage other athletes to sue USADA.
Fourth, Armstrong would have to prove that a preliminary injunction would advance the public's interest. To do so, Armstrong could highlight the allegedly unfair and unconstitutional aspects of USADA. In response, USADA could note that its authority comes from the law, that courts have consistently respected that authority and that even if subject to constitutional protections, USADA has met them.
4. How high are the stakes of Armstrong attempting to use courts to challenge the USADA?
The stakes are very high, not only for Armstrong but for USADA. The agency has been in existence for 12 years, during which time it has received deference from courts -- a track-record which continued with Judge Sparks' dismissal Still, Armstrong can fight on, and he is the first athlete charged by USADA with the financial wherewithal and public admiration to take on the agency in court. If Armstrong ultimately prevails, it means USADA would have to adhere to the Constitution -- which it probably asserts it already is doing -- and likely adopt different, probably weaker, rules for testing, investigating and prosecuting athletes. It is very possible athletes would be more able to use steroids and other performance-enhancing drugs with a weaker set of rules. Armstrong prevailing would probably also motivate members of Congress to call for legislation that would change USADA.
5. Could the Justice Department re-open its investigation of Armstrong?
Yes, but it is unlikely to do so. The Justice Department invested two years of its time -- and its budget and many hours of its investigators and attorneys -- looking into Armstrong, and it convened a grand jury. Even with all that, Armstrong was not charged and the Justice Department closed its investigation. The fact that the grand jury did not charge Armstrong is telling, because grand juries are decidedly one-sided in favor of prosecutors. Only the prosecution presents evidence and the target of the grand jury (Armstrong) has no right to contest the evidence. Grand jurors also need not be convinced "beyond a reasonable doubt" of the target having committed a crime and they need not be unanimous. Only a majority of grand jurors must believe there is "reasonable cause to believe" the target committed a crime. Despite the low threshold for an indictment, Armstrong was never indicted.
It is possible the Justice Department did not uncover all of Armstrong's alleged wrongdoing and new findings by USADA may be the difference between a closed case and an indictment. But the probability of those new findings being the difference seems unlikely. It is also an election year and Armstrong is one of the nation's most admired athletes; expecting the Justice Department to "try again" is far-fetched.
Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.