- Article published:
- July 4, 2012, 21:41
- Cycling News
Arbitrators, not review board will determine outcome
Last week Lance Armstrong's attorneys issued a stinging opus in response to USADA's new charges of doping and conspiracy against the rider. Cyclingnews received this analysis of the case from San Francisco attorney Vitaly Gashpar, the Substantive Law Editor of The Recorder.
The 11-page letter sent by Lance Armstrong's attorneys to the Review Board of the U.S. Anti-Doping Agency is replete with arguments heard many times in the past: Armstrong never failed a test; the witnesses against him have been coerced and have less than stellar reputations; the USADA is going after him unfairly; etc. However, among the shtick we're used to hearing over the years, Armstrong's attorneys raise several points that may set the course of this investigation and subsequent hearing.
Where's the evidence? Can USADA withhold it from Armstrong?
ii. The Review Board shall be provided the laboratory documentation and any additional information which USADA deems appropriate. Copies of this information shall be provided simultaneously to the Athlete or other Person and the Athlete or other Person shall be entitled to file a response with the Review Board. The Athlete’s or other Person’s name will not be provided to the Review Board by USADA and will be redacted from any documents submitted to the Review Board by USADA. (from USADA Protocols)
A chief complaint from Armstrong's lawyers is that they were only provided with the laboratory data from 2009 and 2010 by USADA, and no evidence supporting any of the other myriad allegations. Is this allowed?
Under Protocol 11 of USADA: "The Review Board shall be provided the laboratory documentation and any additional information which USADA deems appropriate. Copies of this information shall be provided simultaneously to the Athlete..."
So USADA has discretion as to what information it will provide to the Review Board, but thereafter does not have the option to not provide the same information to the athlete, which leads to several possible conclusions. First, the USADA only forwarded to the board 2009 and 2010 data, providing the minimum which would lead the review board to recommend a doping violation, keeping the rest of its evidence to itself. Second, as Armstrong's attorneys argue, the USADA is withholding information relevant to the investigation from Armstrong. Or third, the review board, pursuant to §11(v), requested additional information from USADA which the USADA was only required to provide to the review board and not the athlete.
The charges brought by USADA go as far back as 1998, so presumably it has submitted – in one way or another – all relevant information with regard to those violations to the board. If the information relating to pre-2009 allegations was in fact provided in response to a review board request, it appears the USADA has found a loophole in its protocol to withhold information from Armstrong.
The USADA rules suggest that it is ultimately free to disregard the recommendation of the board. However, per §11, evidence with regard to all violations within the purview of USADA must be submitted to the board for review and simultaneously provided to the athlete. It appears that at least on some level, the USADA was not fully compliant with the initial stages of the review process or played fast and loose with its own rules.
(Note: Cyclingnews believes USADA is using the following rule, part of the American Arbitration Association's Supplementary Procedures for the Arbitration of Olympic Sport Doping Disputes to limit the scope of the information provided in order to protect the identity of witnesses:
R-18. Exchange of Information
a. At the request of any party or at the discretion of the arbitrator, consistent with the expedited nature of arbitration, the arbitrator may direct (i) the production of documents and other information, and (ii) the identification of any witnesses to be called.
These are old charges, what about the eight-year statute of limitations?
ARTICLE 17: STATUTE OF LIMITATIONS
No action may be commenced against an Athlete or other Person for an anti-doping rule violation contained in the Code unless such action is commenced within eight (8) years from the date the violation is asserted to have occurred. (WADA Code)
The board just completed the review and recommended to USADA to charge Armstrong with doping and related conspiracy charges. In accordance with WADA code, there exists a statute of limitation of eight years from the date the violation is alleged to have occurred. Therefore, even if charges are filed, the USADA will only be able to go as far back as 2004. Article 17 of WADA is one of the provisions that must be adopted by USADA without any substantive changes per WADA article 23. Unless the USADA can persuade a panel of arbitrators to disregard the statute of limitations.
The USADA is relying on the decision issued by the American Arbitration Association in the case of Eddy Hellebuyk, a marathoner suspended from the sport on doping charges, where the AAA determined that due to prior perjury, he would not be able to avail himself of the statute of limitations. The only matter in which Armstrong has given testimony under oath is in the litigation against SCA Promotions, which he ultimately won. That testimony was given in a deposition, not before the AAA panel. The Hellebuyk was a case of first impression before the AAA in this context, and it is unclear whether a panel of arbitrators will be willing to extend it to the facts of this case.
After all, assuming Armstrong's SCA Promotions testimony where he denied doping was false, it was not actually given to the panel, nor was the testimony given to escape doping charges, as it was in Hellebuyk's case. The arbitration panel in Hellebuyk's case appeared to be focused on those facts to find the statute of limitation inapplicable. Not to mention that the USADA will have to first prove that the testimony given by Armstrong was false. This was easy in Hellebuyk because he subsequently admitted to lying in the initial hearing.
Notwithstanding the above, there is another legal wrinkle that could result in a AAA panel finding the statute of limitations is inapplicable: equitable tolling. If an accused acts in such a way as to prevent the discovery of the harm done (this has to go beyond merely being silent about it) - meaning the instrumentalities under his control were used to thwart the finding of a violation - equitable tolling could come into play to extend the statute of limitations beyond the statutory limits.
However, for this to happen, the USADA will have to fill a lot of blanks. Not only will it have to affirmatively prove that Armstrong is guilty of the violations charged, but it will also have to show that he somehow acted to thwart previous investigations, and but for his actions, the doping allegations which are now outside the statute of limitations would have been discovered earlier. That won't be easy, as under AAA rules, Armstrong does not have to testify in these proceeding.
Lastly, if the USADA is successful in proving that Armstrong was part of an ongoing doping conspiracy – one of the charges against him - the statute of limitations may not be applicable if it is proven that the conspiracy continued into the limitation period. In other words, if USADA will be able to show that Armstrong’s doping violations stemmed from an ongoing conspiracy that started in 1998 and continued to 2010, Article 17 of WADA doesn’t even come into play.
Where does the case go from here?
The hearing is set for November and will be before the AAA in accordance with the rules governing arbitration of Olympic sport doping disputes. As is typical with hearings before the AAA, the legal rules of evidence don't apply, and the arbitrators are free to consider and admit any material deemed relevant. The only requirement being that the presentment of evidence be before all of the arbitrators and the parties. Meaning that whatever evidence USADA may wish to present to AAA will have to be presented to Armstrong, whose defense team will certainly have a run at it.
Given that the arbitrators are not selected by the USADA alone, but are neutral "judges" selected by both parties (there is a chance that it will be heard by only one arbitrator, unless an election is made to have three), the objections to evidence raised by Armstrong's attorneys may play a role and the panel may reject some of the evidence.
With that said, it is likewise possible that despite the less-than ethical/legal collection of evidence charged by Armstrong's attorneys in the letter to the Review Board, it will still be considered by the arbitration panel in reaching its decision.
This is not an easy case for the USADA to prove by any stretch of the imagination. The USADA faces three main obstacles: first, it will have to meet a heavy evidentiary burden to persuade the AAA panel to disregard the statute of limitations; second, it will have to persuade the AAA to admit into evidence information that could have been collected in violation of USADA protocol and/or U.S. Federal Rules of Criminal Procedure; finally, it will have to persuade the AAA to give adequate weight to testimony of witnesses who may have previously been dishonest about their own doping conduct.
(All evidence will be made public at the arbitration hearing, should Armstrong agree to one, including witness testimony. - Ed)
- Article published:
- July 4, 2012, 23:12
- Brecht Decaluwé
Vacansoleil sprinter thwarted again in Rouen
On Wednesday the second pure bunch sprint in the Tour de France didn't go as smoothly as the first one in Tournai on Monday. At 2.5km to go, many riders crashed as the sprint was getting underway, including world champion Mark Cavendish (Sky), who was unable to add a second stage win to his tally. The man who was right behind him in the sprint build-up was Kenny Van Hummel. The Dutchman was more or less relegated by the world champion during Tuesday's intermediate sprint and 'Hummeltje' was keen to show the world what he was capable of.
The Dutchman's best result ever in the Tour de France is a seventh place in 2009: not quite the same palmarès as Cavendish but Van Hummel aimed for more. "That was fun then but much more is possible this year," Van Hummel said. "I'm eager to show what I can do... it's a burning desire really."
The intermediate sprint incident turned the spots to the low-profile sprinter who was trying to grab points for the green jersey from Cavendish. In the build-up to the sprint Cavendish must've felt hindered by the Dutchman and when coming to the line he came level with him – seemingly with no effort – while looking sideways several times at how hard Hummeltje was trying.
"During today's race Johnny [Hoogerland] asked him what was going on in that sprint. Straight away he came over to me and apologized which meant he realized he was wrong. He said: 'Kenny, sorry, I've got nothing against you and didn't mean it like that'. It looked worse on TV than it was in reality. I told him, 'it looked stupid on television but apologies accepted'. It's part of his character of course. I don't get intimidate by that. It only makes me stronger. Actually I had to laugh with it," Van Hummel said.
When asked why he participated in the intermediate sprint Van Hummel said he believed in his chances for a good overall placing in the competition. "I feel really good and you never know because with one or two wins you're quickly well positioned and if the others crash... well, now I can forget it. Anyway, it's good to take part in them to activate those sprinting legs and monitor the competition. I'm not going flat out because at the finish my sprint has to be at 100 per cent, nobody goes flat out there but it's important to join in and take some points. Now I can forget about it since I wasn't able to sprint along."
A few hours after the apologies from Cavendish the peloton was approaching the finish in Rouen. The Vacansoleil-DCM rider was keen on teaching Cavendish a lesson. "I was really on fire," Van Hummel said. "I was on the wheel of Mark Cavendish. He's the man in the sprint," Van Hummel said. Little later that king of the sprint crashed, taking along several other sprinters with him but not Van Hummel. "I was right behind him with Renshaw. I was able to get around it but Renshaw didn't. It was a nasty crash," Van Hummel said. "If a crash takes you out then that's part of the sprint. I have to thank the angel on my shoulder that I can make it to the finish with all of my skin still sticking on my body."
Van Hummel was a close witness to the crash and he describes what happened. "Cavendish was there with Eisel. He tangled with someone. At that moment he had to go fully into the brakes. His bike went sideways and that made him crash. I had to hit the brakes as well but managed to get around it that way. Behind me they were crashing into them as well."
The Dutchman laments another missed opportunity to show off his capabilities. During the first bunch sprint he finished fourteenth and blamed the now abandoned Maarten Tjallingii, who was leading out Mark Renshaw, for hindering him. "Today I had Boeckmans and Marcato still there with me and with two cards to play with you think that you can well be launched in that last kilometre and that is what it is about," Van Hummel said. "I'm having fun in this Tour de France but it would be even more fun if I would be there in the bunch sprints."
- Tour de France
- Article published:
- July 5, 2012, 00:28
- Cycling News
Greipel rewarded by Lotto Belisol lead out
Andre Greipel (Lotto Belisol) scored his first Tour de France victory of 2012, the second of his career when he took out stage 4 on Wednesday in Rouen. Alessandro Petacchi (Lampre-ISD) sprinted to second while Tom Veelers (Argos-Shimano) was third.
The Lotto Belisol train worked to perfection for Greipel who took advantage of the fact that rival Mark Cavendish (Sky) had been brought down by a crash just inside the 3km to go mark. Points classification leader Peter Sagan (Liquigas-Cannondale) was lucky to avoid the crash, but the pan flat finale was allowed Orica-GreenEdge's Matt Goss to make up considerable ground on the Slovak, finishing fourth across the finish line and moving into second in the battle for the green jersey.
Overall leader Fabian Cancellara (RadioShack-Nissan) also avoided the crash, maintaining his seven second advantage on Sky's Bradley Wiggins.
- Tour de France
- Article published:
- July 5, 2012, 01:51
- Jane Aubrey
Orica-GreenEdge sprinter narrows the gap on Sagan
Matt Goss (Orica-GreenEdge) sprinted to fourth place on Stage 4 of the 2012 Tour de France, going one better than maillot vert rival Peter Sagan (Liquigas-Cannondale).
The Australian had managed third place on the Tour's other flat stage so far, with the intermediate sprint points keeping him in the hunt. On Wednesday, while Stage winner Andre Greipel (Lotto Belisol) stayed out of the intermediate sprint, Mark Cavendish (Sky), Mark Renshaw (Rabobank), Alessandro Petacchi (Lampre-ISD) along with Goss and Sagan, fought it out.
Goss has now moved from fourth to second in the points classification, with Sagan leading on 147. Goss trails Sagan by 55 points.
"Our focus hasn't changed," said Orica-GreenEdge sports director Matt White. "We're still chasing the green jersey, and that means we need to get as many points as we can whenever we can. Sagan has a big lead, and as long as Gossy goes for the intermediate sprints, so will Sagan. So will Greipel. So will Cav'. We can't back off from the intermediate sprints if we want the green jersey."
Cavendish narrowly bettered Goss in the intermediate sprint with the pair zeroing in on the line, side-by-side.
"We didn't put too much effort into it, and we picked up points on some of our competitors," said White. "All said; it didn't go too bad."
Thursday's 196.5km fifth stage to Saint Quentin will be another opportunity for the sprinters but Goss will have to buck the trend with Cavendish having succeeded on Stage 5 in three of the past four seasons. Cavendish, who won the points classification in 2011, crashed with around 2.5km remaining on Wednesday along with key teammate Bernhard Eisel, and there will be interest in their recovery.
Involved in the same pile-up, was one of Orica-GreenEdge's key lead out men, Brett Lancaster, leaving Daryl Impey to guide Goss to the finish. In comparison, Greipel had the sheer weight of numbers on his side with Greg Henderson, Jurgen Roelandts and Marcel Sieberg all effectively ‘pinning' Goss in the final kilometre.
"... tried to jump but they were to (sic) fast," remarked Goss on twitter.
"To win stages of the Tour de France, we need to execute our plan 100 percent," said White. "We didn't execute 100 per cent today, and we didn't get the stage win. The only way to win stages at the Tour de France is to take the guesswork out of the final. It's extremely difficult to win against the best guys in the world without a well-executed plan."
- Tour de France
- Article published:
- July 5, 2012, 03:06
- Daniel Benson
Team boss expands on Frenchman's release
Alexandre Geniez's non selection for the Tour de France was a minor talking point on the eve of the race but the announcement that he would also part ways with the Argos-Shimano was more of a surprise. The climber was listed on the team's long list and although the basis of the team was to be formed around sprinter Marcel Kittel, Geniez was expected to fill one of the team's nine slots, adding much-needed firepower for the mountains.
"There are two stories," Argos-Shimano's boss Iwan Spekenbrink told Cyclingnews.
"One is the story about the non-selection for the Tour selection the second is over how we evaluate our riders. On the matter of the Tour we looked to the race, our weapons, and the competition and with the riders we have we believe we have the best chances in sprints and in the break. We have a really strong team spirit and that's why we made that selection."
However the decision not re-new the rider's contract at this stage of the season stands out. Scheduled to ride the Vuelta a España later this year, Geniez is now in the shop window with teams publicly in a position to make their intentions clear. Should he perform at the Vuelta, Argos will not be in position to overturn their position. However. Spekenbrink, who has solidly built his team to the cusp of the WorldTour believes that the blame for Geniez lack of progression lies with the set-up, just as much as it does with the rider himself.
"Alex is very talented. He was with our team for three years. In the first two years he made progression. In the last 12 months we've not been able to help him progress. And that's why, as we're building a team for the future, we had to also inform him that for now he will not get a contract for us. It wasn't a nice message for him."
Geniez, 24, who finished fourth in last year's Critérium International, and was in key breaks in both the Dauphine and Tour of California, has already been linked with several teams, including FDJ and Saur-Sojasun.
"We're a team that's growing and we expect him to be in breaks but if you look at his results from last year you have to expect to see more progression but despite his talent we've not been able to help him progress. We had to make a decision. Now we'll wait and see but for now that's our choice."
"Sometimes we have success, sometimes we don't. He's very strong in his head, he's very talented but maybe he's too much focused on his own goals. He's a strong climber but to become a better cyclist you need to have an all-round development and keep working on your speciality. Maybe we couldn't help him on the all-round aspect."
- Article published:
- July 5, 2012, 04:22
- Cycling News
Dane fights back after Tour snub
Left off the RadioShack-Nissan roster for the Tour de France, Jakob Fuglsang has fought back at the Tour of Austria, winning stage 4 and moving into the overall lead.
It was the team's second yellow jersey of the day on Wednesday with Fabian Cancellara not threatened at the Tour de France.
"I'm super happy with this win and the overall," said Fuglsang following the 141.3km stage. "It is certainly defendable and we're going to do everything we can to bring the yellow home. It's cool that the team has the yellow jersey in two different stage races."
There are four stages remaining in Austria.
Overnight leader Danilo Di Luca (Acqua & Sapone) was put under pressure from the outset by RadioShack-Nissan, with four riders in the break on the Iselberg. The Italian, forced to chase, made contact with the group by the time they reached the Grossglockner. That was the cue for Laurent Didier to attack, forcing Di Luca to again go after RadioShack-Nissan. When he reached Didier, Fuglsang launched with NetApp's Leopold Konig.
"I had to go at that point," explained Fuglsang.
The gap went up again and with 50km to go, the duo's advantage was as much as 3:30.
"König didn't do too much work; I think he was really tired," continued Fuglsang. "But in my mind I knew he could be playing and saving his energy to beat me for the stage, so I was careful. I dropped him on a rolling part with 20km to go."
Fuglsang crossed the finish line in Alpendorf 1:14 ahead of Leopold, enough for the overall lead. Di Luca was sixth across the line and 2:47 down on the Dane.
- Article published:
- July 5, 2012, 07:16
- Cycling News
Riders given six-month delayed ban by USADA
Four former teammates of Lance Armstrong will receive six month bans after they confessed to doping and testified against the seven-time Tour de France winner, according to De Telegraaf.
George Hincapie, Levi Leipheimer, Christian Vande Velde and David Zabriskie are said to have given evidence in the USADA investigation which has charged Armstrong with doping. All four riders are currently taking part in the Tour de France, but in recent weeks, USA Cycling revealed they opted not to be considered for the Olympic Games.
Today's report, which is front-page news, also names Garmin-Sharp boss Jonathan Vaughters. It is not clear whether Vaughters too will face suspension.
"Miraculously, USADA has arranged for the suspensions to begin at the start at the end of the season so that they are able to race both the Tour de France and the Vuelta a Espana," the article states.
In mid June, USADA formally charged Armstrong with doping with the use of evidence gathered in the investigation into potential doping on the United States Postal Service (USPS) (1996-2004), Discovery Channel (2005-2007), Astana (2009) and RadioShack (2010) cycling teams. Johan Bruyneel, Dr. Pedro Celaye, Dr. Luis Garcia del Moral, Dr. Michele Ferrari, and Mr. Pepe Marti are also accused of a variety of doping violations, from the administration of doping products, trafficking, assisting and abetting and covering up.
Within the 15-page letter detailing the charges, USADA pointed to 10 witnesses to the alleged conduct, made up of cyclists and cycling team employees, but until now their identities remained secret.
- Article published:
- July 5, 2012, 08:40
- Cycling News
Teams of Evans, Cancellara avoid falls, Henderson's winning feeling
Playing solitaire in the blame game
Just as inevitable as the first week crashes are the blame games that go along with them. On Wednesday, the peloton was hurtling full speed toward the finish in Rouen with a strong crosswind and traffic barriers ahead when a switch of direction in the peloton led Sky's Bernhard Eisel to clip wheels and tumble, taking down a number of riders including a quite annoyed Mark Cavendish.
Tempers flared as riders picked themselves up from the pavement, but Team Sky today learned that every time you point a finger, there are three more pointing back at yourself, as evidenced by Saxo Bank's Karsten Kroon commenting post-stage via Twitter: "Seconds after the massive pileup with 2k to go: Eisel: "Who's fault was that!" Farrar: "F--- it was you Bernie!" (LW)
Injury report stage 4
Eisel was one of the worst off in the crash: he was given four stitches to his eyebrow following the stage. Other riders escaped with scrapes and bruises: Garmin-Sharp's Tyler Farrar and Robbie Hunter, Rabobank's Mark Renshaw, Liquigas-Cannondale's Daniel Oss and Brett Lancaster (Orica-GreenEdge) among others.
On Tuesday's stage 3, Lancaster's teammate Simon Gerrans did an impersonation of Johnny Hoogerland and tumbled into a barbed wire fence during a crash on stage three, and is still feeling the consequences.
"Simon's a bit stiff today after his crash, but he's not dealing with anything that's going to stop him from getting back to the level that he was at before he crashed," said team director Matthew White. "In a couple day's time, he'll be fine."
Argos-Shimano sprinter Marcel Kittel has been getting plenty of moral support from his fans as he soldiers on through gastroenteritis. He reported today that his stomach is finally better, but that knee pains are still plaguing him. "I'll take it day by day now. I'll have to see how I feel during the race tomorrow," he said.
Tjallingii and Rojas surgeries successful
Rabobank's Maarten Tjallingii had surgery to repair the fractured hip he sustained in stage 3. He now has three screws in his hip and is back home with his family, but is not sure when he can get back to training or racing.
Also going under the knife was Movistar's Jose Rojas who crashed in the same incident. The Spaniard sustained a triple facture to his clavicle. A plate with eight screws was required to repair two of the fractures, while the third was held in place by one screw. Rojas is optimistic that he can be riding on Saturday with an eye to the London Olympic Games.
BMC, RadioShack avoid carnage
The teams with the most experienced riders suffered the least in the crashes today: BMC protected Cadel Evans from disaster, while RadioShack-Nissan kept all of its riders from the wreckage.
The secret? Relying on strong Classics men such as Marcus Burghardt to protect the GC men in the dangerous opening stages. "We saw last year it was really important to have the classics guys, especially in the first week," Burghardt said. "You have a lot of crashes and you can have some crosswinds, so you must be prepared. I'm not sure if you can do that with a team of just climbers."
Jens Voigt was relieved the team avoided losing the yellow jersey, still held by Fabian Cancellara, who was held up behind the melee. "Luckily it was inside the 3km to go marker so everybody will have the same time. If it would have happened 300 meters sooner, we would have lost the yellow jersey. We were also lucky to not be in any of the crashes, so we defended the jersey and stayed safe. Once again, mission accomplished. It was a good day for us."
How good is winning?
Just ask Greg Henderson who guided his Lotto Belisol teammate Andre Greipel to the victory on Stage 4. The Kiwi veteran's arms shot up in the air when Greipel crossed the finish line in Rouen, the 35-year-old clearly enjoying his Tour de France debut.
"It feels like I won," Henderson told Roadcycling.co.nz. "I had the exact same feeling.
"I got a kiss from the big German... It was pretty emotional. He's won 15 races now [this season], but there's something special about this race."
Today's Tour de France news
- Video: Voeckler's knee pain hampers Tour de France ambitions
- Basso super domestique for Nibali in Tour de France
- Cavendish and Eisel OK after Rouen crash
- Video: Crash denies Farrar chance of repeat Tour victory on Independence Day
- Van Hummel on fire to teach Cavendish a lesson
- Spekenbrink: Geniez couldn't develop futher as a rider with Argos-Shimano
- Video: Tour de France Stage 4 highlights
- Goss not giving up on green jersey
- Tour de France