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Timothy J. Herman Email: email@example.com Direct dial: 439-4103
August 17, 2012
Via Hand Delivery and E-file The Honorable Sam Sparks United States District Judge U.S. District Court, Western District of Texas 200 West 8th Street Austin, TX 78701 Re: Dear Judge Sparks: We write with respect to the Court’s consideration of the pending motion to dismiss. We respectfully 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 demonstrate that the UCI rules govern, the USADA Protocol has no application here, and UCI has exclusive authority in this matter. UCI has repeatedly informed USADA that UCI has exclusive authority and has directed USADA not to proceed, but USADA flatly refuses to recognize UCI’s jurisdiction or follow 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 samples taken by the UCI.” Ex. B to attached Herman Aff. (“Ex. B”) at 1 (emphasis added). UCI also made clear that “[n]o testing by USADA is involved” here; “USADA has no jurisdiction for testing in international races”; and the professional cycling teams at issue competed in UCI events “and were not allowed to participate in national races.” Id. UCI also emphasized that Mr. Armstrong’s international cycling licenses were “UCI license[s]” governed by UCI rules. Id. UCI asked USA Cycling to “promptly instruct USADA” that it has no authority over this matter, “cannot act under a delegation from USA Cycling[,] and must hand over the case to the UCI.” Id. at 2. Today, USA Cycling wrote to USADA, enclosed UCI’s letter, and made clear that USA Cycling “is bound by” UCI’s Armstrong v. U.S. Anti-Doping Agency, et al., No. 1:12-cv-00606-SS
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interpretation of the rules “in matters involving international cycling doping control.” Ex. A to attached Herman Aff. at 1-2. USADA admitted during the hearing that “[w]e’ve never had a dispute over the rules like this in any other case before.” Tr. at 29. This unique aspect of this case is critical, and underscores that the 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 stop USADA from pursuing its unauthorized charges. 1. This Court Has Jurisdiction To Require USADA To Abide by the Rules That Limit USADA’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 its authority. That is not a question for AAA arbitrators to decide. Mr. Armstrong is not required to participate in an arbitration of charges that USADA has no authority to bring in order to vindicate his right 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. Armstrong brings this suit to enjoin. First, the Sports Act is not an impediment to this Court’s jurisdiction. Even if the Sports Act applied here (it does not), it is clear that this Court still has jurisdiction, under Harding v. U.S. Figure Skating 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 USADA from violating the governing UCI rules. USADA cannot dispute that the Court has jurisdiction to grant injunctive relief “to correct the breach of the rules.” Harding, 851 F. Supp. at 1479. USADA’s breaches of the rules include instituting charges that force Mr. Armstrong to decide between sanctions or an unauthorized arbitration. Second, the fact that Mr. Armstrong received his international cycling licenses through USA Cycling (and that USA Cycling deemed him a member of USA Cycling) does not preclude this Court from exercising its jurisdiction to require USADA to comply with the governing UCI rules. Importantly, contrary to USADA’s repeated contention, Mr. Armstrong’s international cycling licenses were UCI licenses, not USA Cycling licenses. See Ex. B at 2 (“[T]his license is a UCI license as 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).
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Third, Mr. Armstrong is not required to participate in an arbitration of USADA’s unauthorized charges in order to challenge USADA’s authority to force him into an unauthorized arbitration. The Fifth Circuit has made clear that an individual is not required to participate in a proceeding if he asserts that the proceeding is itself unlawful.1 Indeed, Mr. Armstrong would suffer the very injury he seeks to prevent if he is forced to participate in USADA’s unauthorized arbitration proceeding in order to challenge USADA’s authority to proceed. See Rose v. Giamatti, 721 F. Supp. 924, 928 (S.D. Ohio 1989) (staying disciplinary proceeding where “the heart of this entire controversy—whether Giamatti can 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 before seeking judicial intervention because he has challenged the constitutionality of that proceeding. See 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] a constitutional 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 no requirement 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 court may also excuse the failure to exhaust where irreparable injury will result absent immediate judicial review.”) (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 USADA Protocol allow the arbitrator to decide his own jurisdiction is misplaced. Those rules do not deprive this Court of jurisdiction to address whether USADA lacks the authority to bring its charges in the first place. 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 the AAA rules incorporated into the Protocol are irrelevant. This Court must make that threshold determination, 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, as here, UCI repeatedly has directed USADA not to proceed, and USADA lacks authority under the governing rules to bring the charges it has asserted, the Court has jurisdiction to enjoin USADA from violating the rules. See Gulf Restoration Network, Inc. v. Salazar, 683 F.3d 158, 176 (5th Cir. 2012) (“Traditional circumstances in which courts have excused a claimant’s failure to exhaust administrative remedies include situations in which . . . the adequacy of the administrative remedy is essentially coextensive with the merits of the claim (e.g., the claimant contends that the administrative process itself is unlawful . . . .”)) (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.”).
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The Fact That USA Cycling Issued Mr. Armstrong’s International UCI Licenses Does Not Give USADA Authority to Bring the Charges in This Case.
USADA contends that Mr. Armstrong held a USA Cycling license and that this gives USADA carte blanche authority to assert any doping charge it wants against him and require him to arbitrate with USADA. But that is simply not correct. First, as discussed above, Mr. Armstrong held UCI licenses, not USA Cycling licenses. UCI made this clear in its August 16, 2012 letter. See Ex. B at 2. USA Cycling merely issued the UCI licenses. Second, as USADA was forced to admit at the hearing, USADA does not have unlimited authority over Mr. Armstrong and his five co-respondents with respect to doping matters. To the contrary, USADA’s authority is limited in key respects, and it does not have authority to bring the charges it has asserted in this case. A. USADA Does Not Have Authority to Bring Charges Involving UCI Samples.
As USADA admitted during the hearing, USADA does not have authority to bring charges involving UCI samples. Indeed, USADA admitted that “the jurisdiction of UCI [stet] is exclusive when they collect a sample.” Tr. at 71 (emphasis added). This admission is critical, because it demonstrates that USADA has no authority to bring the charges in this case. USADA’s charges indisputably involve samples collected by UCI. USADA’s June 12, 2012 charging letter (which is incorporated into its June 28, 2012 charging letter) asserts that Mr. Armstrong’s “urine sample results from the 2001 Tour of Switzerland” (a UCI event, see Herman Aff. ¶ 28) “were indicative of EPO use,” and that Mr. Armstrong’s alleged doping is “evidenced by the data from blood collections obtained by the UCI from Lance Armstrong in 2009 and 2010.” Ex. I to Tygart Aff. (Dkt. No. 33-3) at 11 (emphases added). USADA also represented at the hearing that “[it] would like to rely upon” UCI samples for its case. Tr. at 73. Indeed, USADA’s August 8, 2012 letter to UCI requests “the laboratory documentation related to [UCI’s 2009 and 2010] blood draws.” Dkt. 50, Ex. BB, at 8. Similarly, USADA’s July 26, 2012 letter to UCI contained a long list of discovery that USADA seeks from UCI concerning UCI samples, including: * “Complete documentation from each EPO analysis conducted on Lance Armstrong’s samples from each UCI event in 2001 (including the Tour of Switzerland), including, but not limited to, all doping control forms, reports of analyses, densitometry results, and electropherograms”;
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“All communications between UCI and each laboratory regarding the foregoing results”; “Information on all blood collections and results associated with blood samples provided by Lance Armstrong [to UCI] in the years 2008, 2009, and 2010 including . . . chain of custody forms and laboratory certificates of analysis”; and “[L]aboratory documentation packages from Mr. Armstrong’s [UCI] samples[.]”
Ex. 13 to Herman Aff. at 13-14 (emphases added). As UCI made clear in its August 16 letter, UCI has exclusive results management authority for all matters involving UCI samples. Ex. B at 1.2 Importantly, this issue does not require the Court to address any conflicting rules. The rules are clear and consistent on this point, see note 2, supra, and USADA admitted in open court that UCI has exclusive jurisdiction when UCI collects the sample. Tr. at 71.3 B. USADA Has No Authority to Bring Charges Involving UCI Samples Taken at UCI International Events.
USADA also admitted during the hearing that it cannot collect samples “during those limited times when an [international UCI] event is ongoing, we can’t go in and test the riders during the event.” Tr. at 71-72. Although USADA’s charging letters are deliberately vague on this point, USADA’s charges are limited to teams that competed in UCI events. The teams referenced in USADA’s charging letters that allegedly engaged in doping (USPS, Discovery Channel, Astanda, and RadioShack, see Ex. I to Tygart Aff. at 2) “were professional cycling teams that were licensed to compete in UCI World Tour events, including the Tour of Switzerland and Tour de France.” Farrell Aff. (Dkt. No. 49) ¶ 12; see also Ex. B at 1. USADA has conceded that results management involving Under the UCI ADR, UCI has exclusive jurisdiction over results management involving samples taken by UCI, and “Doping Control” for such matters is governed “exclusively” by the UCI ADR. Ex. 23 to Herman Aff. (UCI ADR) Arts. 4, 8, 202. Similarly, under the WADA Code, “results management and hearings shall be the responsibility of and shall be governed by the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection.” Ex. B to Tygart Aff. Art. 15.3.
USADA’s claim that some of its charges do not involve samples is erroneous. USADA has asserted consolidated charges against six individuals, and has asserted a “doping conspiracy” under which all six individuals allegedly are responsible for one another’s alleged conduct. USADA thus seeks to rely on UCI samples in support of all of its consolidated charges.
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tests at UCI international events is within UCI’s exclusive jurisdiction. For this reason as well, USADA has no authority to bring its charges. C. USADA Has No Authority to Bring Consolidated Charges Against Mr. Armstrong and Five Non-US Citizens Under the USADA Protocol.
USADA also admitted during the hearing that it does not have authority under the Protocol or any delegation of authority from USA Cycling (or the USOC) to bring charges against five of the six respondents it has charged in this consolidated case. These respondents did not hold USA Cycling licenses, and they reside outside the United States, in Luxembourg, Spain, Italy, and Switzerland. See Ex. I to Tygart Aff at 1. Because USADA has brought a single consolidated action, and USADA has admitted that its authority (if any) to charge five of the six respondents can only be based on the UCI ADR, the UCI ADR governs whether USADA has authority to bring this consolidated case. USADA’s admission during the hearing is consistent with its charging letters, which relied exclusively on the UCI ADR as the source of USADA’s purported authority. Ex. I to Tygart Aff. at 12-13. USADA asserted that it has “results management authority” “[p]ursuant to the UCI ADR,” citing UCI ADR Articles 10, 13, and 18. Id. USADA later attempted to run from that admission, but it conceded at the hearing that its authority over five of the six respondents is governed by the UCI ADR, stating as follows: * “[O]ur authority to proceed against these five individuals is solely under UCI rules.” Tr. at 66 (emphasis added). “[T]hose [UCI] rules are applicable to the other five individuals . . .” Tr. at 74. “We’re saying that we’re doing it under [UCI] rules, and we have a different view of their rules [than UCI].” Tr. at 74.
USADA’s admissions make clear that the UCI ADR governs here. USADA cannot claim that it has a different basis for asserting authority over Mr. Armstrong when it has brought a single consolidated action against Mr. Armstrong and five other respondents, purports to charge a single “doping conspiracy” as to all six, seeks to hold Mr. Armstrong liable for the alleged conduct of the other five respondents, and seeks to have a single consolidated proceeding involving multiple defendants, see Tr. at 15-16. USADA chose to bring its charges this way. Having done so, USADA’s claimed authority to proceed is governed by the UCI ADR. USADA recently acknowledged, in a letter to UCI, that, if the UCI ADR governs the question of results management authority, USADA does not have authority to bring this case. See Dkt. No. 50, Ex. BB at 5-6 (asserting that, if UCI ADR 10 applies, UCI would have results management authority,
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and claiming that UCI ADR is unenforceable).4 Since USADA admitted at the hearing that its claimed jurisdiction over five of the six respondents in its consolidated case is based on the UCI ADR, and USADA also has admitted that UCI would have exclusive jurisdiction under the UCI ADR, it is clear that UCI has results management authority in this matter. Again, this does not require the Court to examine conflicting rules; it need only look to USADA’s own admissions to conclude that USADA has no authority to bring its charges. D. USADA Has No Authority to Bring Charges Against a Retired Cyclist.
USADA also lacks authority to bring charges against Mr. Armstrong because he is a retired cyclist. There is no conflict in the rules on this point.5 USADA failed to address this point either in its reply memorandum or at the hearing. E. USADA Has No Authority to Bring A Conspiracy Charge Against Mr. Armstrong and the Other Five Respondents.
USADA has no authority to bring a conspiracy case against six people. There is no provision in any of the rules recognizing a conspiracy charge against multiple people. USADA has not addressed this point either. F. The WADA Code Does Not Give USADA Authority to Bring Its Charges.
USADA’s recent reliance on the WADA Code as the source of its claimed authority to bring charges in this matter also fails, for several reasons. First, under Article 15.3 of the WADA Code, UCI has exclusive results management authority over any matter involving UCI samples, and USADA’s charges clearly involve UCI samples. Second, as set forth in Mr. Armstrong’s sur-reply memorandum (Dkt. No. 51 at 5), USADA’s claimed “discovery” of the alleged violations is relevant only if the matter does not involve a sample. See Ex. B to Tygart Aff. (WADA Code) Art. 15.3. Here, the charges involve UCI samples and are within UCI’s exclusive jurisdiction. Third, Article 15.3 is not a mandatory provision of the WADA Code. See id. Art. 23.2.2. Thus, UCI may have rules Under the UCI ADR, if UCI, one of its License-Holders, or a member Federation “discovers” evidence of an anti-doping rule violation, then UCI has jurisdiction and the UCI ADR “shall” apply. Ex. 23 to Herman Aff. Art. 10. Under the UCI ADR, when a license-holder retires before results management has commenced, the Anti-Doping Organization that would have had jurisdiction at the time of the alleged violation has jurisdiction. See Ex. 23 to Herman Aff. Art. 16; Dkt. No. 45 at 10. Similarly, under the WADA Code, the organization that would have had results management authority “at the time the Athlete . . . committed an [alleged] anti-doping rule violation, has jurisdiction to conduct results management.” Ex. B to Tygart Aff. Art. 7.6. The USADA Protocol contains the same mandatory provision of the WADA Code. See Ex. C to Tygart Aff., Annex A.
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concerning results management jurisdiction that are different from the provisions in Article 15.3, and the UCI ADR take precedence over the WADA Code in the event of a conflict. See Dkt. No. 51 at 56. Under the UCI ADR—which were certified as compliant with the WADA Code, see Ex. 30 to Herman August 9, 2012 Aff. at 2—UCI has jurisdiction if UCI, a UCI License-Holder, or a member federation “discovers” evidence of an alleged violation, even if another organization also discovers it. Ex. 23 to Herman Aff. Arts. 10-12. Accordingly, the WADA Code does not give USADA authority to bring the charges it has asserted in this case. G. USADA Does Not Have “Independent” or Concurrent Authority.
USADA’s claim that, even though UCI has results management authority in this case, USADA also has “independent” or concurrent authority to bring charges against Mr. Armstrong, is erroneous. First, USADA is not bringing charges solely against Mr. Armstrong. It has asserted a consolidated conspiracy charge against six people, and has admitted that its “independent” jurisdiction theory does not work with respect to five of the six respondents. See Section 2(C), supra. Accordingly, even if USADA’s theory were correct (it is not), it does not give USADA authority to bring the consolidated charges it has asserted in this case. Second, as Mr. Armstrong demonstrated in his sur-reply memorandum (Dkt. No. 51 at 3-4), the WADA Code and UCI ADR both make clear that only one body has results management authority in any given matter. In this case, that body is UCI. Third, the world-wide anti-doping system would not work, and would dissolve into chaos and uncertainty, if multiple bodies could claim to have authority over the same matter. Fourth, USADA, which asserts that it is acting under delegated authority from USA Cycling, is bound by the same rules as USA Cycling. USA Cycling “is bound by, and obligated to follow, UCI’s Constitution, rules, and regulations (including the UCI ADR) where applicable.” Farrell Aff. (Dkt. No. 49) ¶ 7. “Likewise, under the UCI Constitution, USA Cycling ‘shall have the Constitution, Regulations, and decisions of the UCI complied with by all persons concerned.’” Id. Accordingly, USADA cannot disregard either UCI’s repeated directives that it not proceed further in this matter or the UCI ADR, under which UCI has exclusive results management authority in this case. 3. The Court Cannot Compel Arbitration Because USADA Has No Authority to Bring Charges Unless UCI Directs It To Do So.
Because UCI has exclusive results management authority in this matter, UCI makes the decision whether USADA may proceed with charges in this case. Under UCI ADR Article 234, USADA may proceed only “[i]f upon conclusion of the results management process, the UCI makes an assertion that an anti-doping rule violation has taken place” and requests USADA to “instigate disciplinary proceedings.” Ex. 23 to Herman Aff. Art. 234. In effect, UCI serves as the grand jury in determining whether USADA, the prosecutor, may proceed. UCI has not yet made this critical decision, because USADA refuses to provide its alleged evidence to UCI. UCI has specifically, and repeatedly, directed USADA not to proceed any further
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until UCI is able to make the required determination. See Exs. 11, 14, 29, 30 to Herman Affs; see also Ex. B at 1-2. Mr. Armstrong has no obligation to arbitrate with USADA, and the USADA Protocol has no application here, because UCI has not authorized USADA to proceed. This is a critical step in the process that USADA wants to skip over completely. But UCI’s authorization is a necessary prerequisite to USADA’s power to bring charges. Without such authorization, USADA’s charges are a nullity.6 “Under the plain language of the [UCI ADR],” any requirement that Mr. Armstrong arbitrate with USADA “is not triggered” unless and until UCI authorizes USADA to bring a disciplinary action. HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003). Courts recognize that a party has no obligation to arbitrate when a contractual prerequisite to arbitration has not been satisfied. See id. (affirming denial of motion to compel arbitration where “the parties intended that the duty to arbitrate would not ripen until after the condition precedent of mediation had been satisfied”); see also Perdue Farms, Inc. v. Design Build Contracting Corp., 263 F. App’x. 380, 383 (4th Cir. 2008) (unpublished) (“Where a condition precedent to arbitration is not fulfilled, a party to a contract does not have a right to arbitration.”); In re Pisces Foods, LLC, 228 S.W.3d 349, 353-54 (Tex. App. 2007) (arbitration not required where mediation was contractual prerequisite to arbitration). That is precisely the case here, and the Court should not compel arbitration because this critical prerequisite to USADA’s authority to proceed (or to demand arbitration) has not been satisfied. 4. The Court Cannot Allow Arbitrators to Decide Whether USADA Has Authority to Bring Charges in this Case.
The fact that Mr. Armstrong could raise his arguments about USADA’s lack of authority before AAA arbitrators does not mean that Mr. Armstrong is required to arbitrate in this matter. “[T]he FAA does not confer a right to compel arbitration of any dispute at any time.” Volt Info. Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior Univ., 489 U.S. 468, 474 (1989). “[A]rbitration is a matter of consent, not coercion.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1773 (2010) (quotations omitted). Indeed, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960). Moreover, USADA has the burden of “demonstrating clearly and unmistakably,” Radiant Sys., Inc. v. Am. Scheduling, Inc., No. 3:04-CV-2597-P, 2005 WL 2105953, at *2 (N.D. Tex. Aug. 31, 2005), that Mr. Armstrong agreed to arbitrate the issue of arbitrability.
USADA cannot presume that there will be an arbitration in any event. If UCI concludes, following an independent panel’s review of the alleged evidence, that no charges should be brought, there may never be any arbitration in this matter.
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Mr. Armstrong did not agree to arbitrate charges that USADA has no authority to bring. Nor did he agree to arbitrate the question of arbitrability. This is not a question involving the scope of a single arbitration clause. Instead, it is a question involving multiple agreements, including Mr. Armstrong’s international UCI cycling licenses, and a web of rules that govern and limit USADA’s authority. When the issue is which of two conflicting contracts governs a dispute, that question is for the Court, not an arbitrator, to decide. See Continental Cas. Co. v. LaSalle RE Ltd., 511 F. Supp. 2d 943, 949 (N.D. Ill. 2007) (collecting cases). In Mr. Armstrong’s international UCI license applications in and after 2005, he agreed to comply with and be bound by the UCI anti-doping regulations and the World Anti-Doping Code. Exs. L-P to Tomlonovic Aff. He did not agree to participate in an arbitration with USADA that violates the UCI ADR and the WADA Code. As discussed supra, USADA’s charges against Mr. Armstrong exceed USADA’s authority, and its Protocol has no application here. Indeed, Mr. Armstrong would be violating his international UCI license agreements if he participated in an arbitration that violates the UCI ADR and the WADA Code, and that UCI has directed USADA not to pursue. Nor did Mr. Armstrong enter into any agreement to participate in a consolidated arbitration proceeding involving a conspiracy charge against six respondents that USADA has no authority to bring. Thus, Mr. Armstrong is not under any contractual obligation to arbitrate USADA’s charges or any claims relating to those charges.7 Accordingly, the mere fact that Mr. Armstrong could raise his arguments about USADA’s authority in arbitration does not mean that he must make those arguments there, where (1) USADA lacks authority to proceed with its charges or an arbitration; (2) Mr. Armstrong did not agree to arbitrate charges that USADA has no authority to bring; and (3) the Court has jurisdiction to enjoin USADA from conducting a proceeding that it has no authority to bring, and that violates the governing UCI rules. Moreover, Mr. Armstrong has no contractual agreement to arbitrate his constitutional and common law due process claims with USADA, particularly when he raises fundamental challenges to USADA’s proceedings and its authority to bring charges. Cf. Hendley v. Cent. of Ga. R.R. Co., 609 F.2d 1146, 1151 (5th Cir. 1980) (whether proceeding violated federal law “is a matter properly within the jurisdiction of the federal courts and is not a question to be determined by the administrative board”). 5. The Sports Act Does Not Require Arbitration of Mr. Armstrong’s Claims.
USADA now relies on § 220522(a)(4)(B) of the Sports Act in support of its preemption argument. See Reply (Dkt. No. 50) at 7. That provision does not require arbitration of Mr. Armstrong’s claims because (1) it only addresses disputes between athletes and their national
At a minimum, there is a material factual dispute concerning whether there is any agreement to arbitrate USADA’s unauthorized charges, requiring a jury trial under 9 U.S.C. § 4.
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governing bodies (not USADA); see Dkt. No. 45 at 14, 17; Dkt. No. 51 at 8-9; (2) under ChampionsWorld, LLC v. U.S. Soccer Fed’n, Inc., 726 F. Supp. 2d 961 (N.D. Ill. 2010), Mr. Armstrong is not an “amateur athlete” and his professional cycling events are not “amateur athletic competitions” or “protected competitions,” Dkt. No. 45 at 15-17; Dkt. No. 51 at 8; and (3) it only requires arbitration “upon demand of the [USOC] or any aggrieved amateur athlete,” and USADA conceded, in response to a question by the Court at the hearing, that the USOC has not demanded arbitration “in this case,” Tr. at 78; nor has Mr. Armstrong. Finally, as discussed in Point 1, supra, even if the Sports Act applied here, the Court still has jurisdiction to ensure that USADA complies with the applicable rules. See Opposition at 18-20. CONCLUSION Mr. Armstrong respectfully submits that the Court has subject matter jurisdiction over this case to require USADA to follow the governing rules. Mr. Armstrong’s claims are not preempted by the Sports Act, and USADA has not met its burden of establishing that Mr. Armstrong is contractually required to arbitrate USADA’s unauthorized charges, especially when those charges constitute the very rule violations Mr. Armstrong is seeking to enjoin. Accordingly, the Court should deny USADA’s motion to dismiss and should enter an Order enjoining USADA from proceeding any further with the charges at issue. Respectfully submitted, /s/ Timothy J. Herman Timothy J. Herman (Bar No. 09513700) Sean E. Breen (Bar No. 00783715) HOWRY BREEN & HERMAN LLP 1900 Pearl Street Austin, Texas 78705 Phone: (512) 474-7300 Fax: (512) 474-8557 firstname.lastname@example.org Mark S. Levinstein (admitted pro hac vice) Marcie R. Ziegler (admitted pro hac vice) Ana C. Reyes (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 12th St., NW Washington, DC 20005 Phone: (202) 434-5000 Fax: (202) 434-5029 email@example.com Robert D. Luskin (admitted pro hac vice) Patrick J. Slevin (admitted pro hac vice)
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PATTON BOGGS LLP 2550 M Street, NW Washington, DC 20037 Phone: (202) 457-6000 Fax: (202) 457-6315 firstname.lastname@example.org Attorneys for Plaintiff Lance Armstrong CERTIFICATE OF SERVICE I hereby certify that on the 17th day of August, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: John J. McKetta, III Matthew C. Powers GRAVES, DOUGHERTY, HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, TX 78767-0098 email@example.com mpowers@gdhmcom William Bock, III KROGER, GARDIS & REGAS 111 Monument Circle, Suite 900 Indianapolis, IN 46204-5125 firstname.lastname@example.org Richard R. Young Brent E. Rychener BRYAN CAVE HRO 90 South Cascade Avenue, Suite #1300 Colorado Springs, Colorado 80903 email@example.com firstname.lastname@example.org
/s/ Timothy J. Herman Timothy J. Herman