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August 17 Armstrong Brief

August 17 Armstrong Brief

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Timothy J. HermanEmail:
Direct dial: 439-4103
August 17, 2012
Via Hand Delivery and E-file
The Honorable Sam SparksUnited States District JudgeU.S. District Court, Western District of Texas200 West 8th StreetAustin, TX 78701
 Armstrong v. U.S. Anti-Doping Agency, et al.
, No. 1:12-cv-00606-SS
Dear Judge Sparks:We write with respect to the Court’s consideration of the pending motion to dismiss. Werespectfully submit that the Court has subject matter jurisdiction over this case, and that Mr.Armstrong is not required to arbitrate his claims.This case is not like others in which USADA has required arbitration of doping charges.USADA does not have authority under the governing rules to bring the charges it has asserted here.USADA’s own admissions during the August 10, 2010 hearing (“hearing”) conclusively demonstratethat the UCI rules govern, the USADA Protocol has no application here, and UCI has exclusiveauthority in this matter. UCI has repeatedly informed USADA that UCI has exclusive authority andhas directed USADA not to proceed, but USADA flatly refuses to recognize UCI’s jurisdiction orfollow UCI’s directives.Just yesterday, UCI wrote a letter to USA Cycling in which UCI again made clear that
USADA has no jurisdiction for results management in the case against the six respondents: it is UCI that discovered the violation and the sample results that USADA invokes are all results from samplestaken by the UCI 
.” Ex. B to attached Herman Aff. (“Ex. B”) at 1 (emphasis added). UCI also madeclear that “[n]o testing by USADA is involved” here; “USADA has no jurisdiction for testing ininternational races”; and the professional cycling teams at issue competed in UCI events “and were notallowed to participate in national races.”
UCI also emphasized that Mr. Armstrong’s internationalcycling licenses were “UCI license[s]” governed by UCI rules.
UCI asked USA Cycling to“promptly instruct USADA” that it has no authority over this matter, “cannot act under a delegationfrom USA Cycling[,] and must hand over the case to the UCI.”
at 2. Today, USA Cycling wroteto USADA, enclosed UCI’s letter, and made clear that USA Cycling “is bound by” UCI’s
Case 1:12-cv-00606-SS Document 54 Filed 08/17/12 Page 1 of 12
 August 17, 2012Page 2interpretation of the rules “in matters involving international cycling doping control.” Ex. A toattached Herman Aff. at 1-2.USADA admitted during the hearing that “[w]e’ve never had a dispute over the rules like thisin any other case before.” Tr. at 29. This unique aspect of this case is critical, and underscores thatthe Court has jurisdiction to enforce the governing rules. USADA’s conduct to date demonstrates that,unless this Court exercises its authority to enjoin USADA’s
ultra vires
proceeding, nothing will stopUSADA from pursuing its unauthorized charges.
1. This Court Has Jurisdiction To Require USADA To Abide by the Rules That LimitUSADA’s Authority, and Cannot Leave That Decision to Arbitrators.
This Court has jurisdiction to require USADA to abide by the rules that define and limit itsauthority. That is not a question for AAA arbitrators to decide. Mr. Armstrong is not required toparticipate in an arbitration of charges that USADA has no authority to bring in order to vindicate hisright to challenge USADA’s authority to proceed. Indeed, USADA’s threat of sanctions unless Mr.Armstrong submits to the proposed disciplinary proceeding is the very harm that Mr. Armstrongbrings this suit to enjoin.First, the Sports Act is not an impediment to this Court’s jurisdiction. Even if the Sports Actapplied here (it does not), it is clear that this Court still has jurisdiction, under
 Harding v. U.S. FigureSkating Ass’n
, 851 F. Supp. 1476 (D. Or. 1994),
vacated on other grounds
, 879 F. Supp. 1053 (D. Or.1995), and
Slaney v. Int’l Amateur Athletic Fed’n
, 244 F.3d 580 (7th Cir. 2001), to enjoin USADAfrom violating the governing UCI rules. USADA cannot dispute that the Court has jurisdiction togrant injunctive relief “to correct[] the breach of the rules.”
, 851 F. Supp. at 1479.USADA’s breaches of the rules include instituting charges that force Mr. Armstrong to decidebetween sanctions or an unauthorized arbitration.Second, the fact that Mr. Armstrong received his international cycling licenses through USACycling (and that USA Cycling deemed him a member of USA Cycling) does not preclude this Courtfrom exercising its jurisdiction to require USADA to comply with the governing UCI rules.Importantly, contrary to USADA’s repeated contention, Mr. Armstrong’s international cyclinglicenses were
UCI licenses, not USA Cycling licenses
Ex. B at 2 (“[T]his license is a UCI licenseas laid down in articles 1.1001 of UCI’s Cycling regulations”).Moreover, it is well settled in the Fifth Circuit, under principles of common law due process,that the Court has authority to enjoin private entities from violating the governing rules.
See Wilfred  Acad. of Hair & Beauty Culture, Tex. v. S. Ass’n of Colls. & Schs.
, 957 F.2d 210, 214 (5th Cir. 1992);
 Hatley v. Am
Quarter Horse Ass’n
, 552 F.2d 646, 655-56 (5th Cir. 1977);
see also
Thomas M. Cooley Law Sch. v. Am. Bar Ass’n
, 459 F.3d 705, 712 (6th Cir. 2006);
 Dietz v. Am. Dental Ass’n
, 479 F. Supp.554, 557 (E.D. Mich. 1979) (collecting cases).
Case 1:12-cv-00606-SS Document 54 Filed 08/17/12 Page 2 of 12
 August 17, 2012Page 3Third, Mr. Armstrong is not required to participate in an arbitration of USADA’s unauthorizedcharges in order to challenge USADA’s authority to force him into an unauthorized arbitration. TheFifth Circuit has made clear that an individual is not required to participate in a proceeding if heasserts that the proceeding is itself unlawful.
Indeed, Mr. Armstrong would suffer the very injury heseeks to prevent if he is forced to participate in USADA’s unauthorized arbitration proceeding in orderto challenge USADA’s authority to proceed.
 Rose v. Giamatti
, 721 F. Supp. 924, 928 (S.D. Ohio1989) (staying disciplinary proceeding where “the heart of this entire controversy—whether Giamattican proceed with his disciplinary hearing—will be rendered moot after that hearing takes place”).Mr. Armstrong also is not required to participate in USADA’s unauthorized proceeding beforeseeking judicial intervention because he has challenged the constitutionality of that proceeding.
Gulf Restoration Network 
, 683 F.3d at 176;
Garner v. U.S. Dep’t of Labor 
, 221 F.3d 822, 825 (5th Cir.2000) (plaintiff excused from exhausting administrative remedies where he “advance[d] aconstitutional challenge unsuitable for determination in an administrative proceeding”). Mr.Armstrong should be allowed to present his case to the Court on that challenge. Finally, there is norequirement to exhaust administrative remedies because Mr. Armstrong will suffer irreparable injury if the Court does not enjoin USADA from proceeding.
See Gulf Restoration
, 683 F.3d at 176 (“A courtmay also excuse the failure to exhaust where irreparable injury will result absent immediate judicialreview.”) (quotations omitted). USADA’s briefs fail to address these points or these cases.Fourth, USADA’s reliance on the fact that the AAA rules incorporated into the USADAProtocol allow the arbitrator to decide his own jurisdiction is misplaced. Those rules do not deprivethis Court of jurisdiction to address whether USADA lacks the authority to bring its charges in the firstplace. The Protocol—and the rule regarding arbitrators deciding jurisdiction—only become relevant if USADA has authority to proceed with its charges.If USADA lacks authority to bring its charges, then its Protocol is inapplicable here and theAAA rules incorporated into the Protocol are irrelevant. This Court must make that thresholddetermination, because allowing the arbitrators to make that decision would eviscerate Mr.Armstrong’s right not to participate in a proceeding that USADA has no authority to bring. Where, ashere, UCI repeatedly has directed USADA not to proceed, and USADA lacks authority under thegoverning rules to bring the charges it has asserted, the Court has jurisdiction to enjoin USADA fromviolating the rules.
See Gulf Restoration Network, Inc. v. Salazar 
, 683 F.3d 158, 176 (5th Cir. 2012) (“Traditionalcircumstances in which courts have excused a claimant’s failure to exhaust administrative remediesinclude situations in which . . . the adequacy of the administrative remedy is essentially coextensivewith the merits of the claim (e.g., the claimant contends that the administrative process itself isunlawful . . . .”)) (quotations omitted);
Westheimer Indep. Sch. Dist. v. Brockette
, 567 S.W.2d 780, 785(Tex. 1978) (“[W]hen there is an absence of jurisdiction in an . . . agency, then the doctrine of exhaustion of administrative remedies is not applicable.”).
Case 1:12-cv-00606-SS Document 54 Filed 08/17/12 Page 3 of 12

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