Wheelsucker Diaries: USADA Reasoned Decision: Flawed, But Not Fatally Flawed

I know a few people who are keenly interested in the Lance Armstrong situation, but who lack the time to read through the published documents.

A lot is going to be written about this over the next, er, decade. This is my initial contribution to the commentary tsunami.

Here is my conclusion to this post. I'm placing it here as a quick summary of my opinion.

The USADA Reasoned Decision is a flawed document. But it is not fatally flawed. It does present significant amounts of evidence to support the assertion that Lance Armstrong doped, and that Lance Armstrong was instrumental to systemic doping throughout his career. While it might have been a better legal document, had it refrained from emotional and stylistic appeals, it would not have been as entertaining, informative, and dramatic a read.

To Begin With...

It's possible to believe the document, yet find significant fault with it.

It's possible to say: "yep, he doped.", but find much of the evidence to be weak.

It's possible to applaud USADA for its initiative and its work, while believing that the final product undermines its own achievement.

I have read the Reasoned Decision, and I have read much of the supplementary material, specifically the affidavits from riders and staff. Having done so, some things are clear to me:

Lance Armstrong doped.
The USADA did have a laser-like focus on Armstrong, one that could accurately be described as a "witch hunt."
Most of the Reasoned Decision would not stand up in a US court of law, because the Standard of Evidence used to asset the Reasoned Decision is laughably vague
The riders and staff who provided testimony are getting off easy.
There are a lot of open questions.
This is not over. It's not even close. There will be years of fallout from this. It may, in fact, have the half life of nuclear weapons materials.

Some Big Outstanding Questions

What about Kevin Livingston? He is mentioned countless times. Where is his testimony?
What about Chris Carmichael? He is mentioned countless times. Where is his testimony?
Why did the feds drop the case?
What did the UCI know and when?
To what degree is the UCI culpable?

REASONED DECISION

Yep, I read it. Below I chronicle my opinions. It is presented in the order in which I read the material. In other words, it's a blog of my reading of the document (less the interruptions, nature calls, and other TMI details).

This is not in any way comprehensive, but it is representative of my reading/questioning/musing on the subject.

USADA's findings

It's damning. USADA asserts the following:

That Lance Armstrong used the banned drug EPO.
That Lance Armstrong used the banned drug Testosterone.
That Lance Armstrong provided his teammates the banned drug EPO.
That Lance Armstrong administered to a teammate the banned drug Testosterone. That Lance Armstrong enforced the doping program on his team by threatening a rider with termination if he did not dope in accordance with the plan drawn up by Dr. Michele Ferrari. That Lance Armstrong’s doping program was organized by Dr. Ferrari.
That Lance Armstrong pushed his teammates to use Dr. Ferrari. That Lance Armstrong used banned blood transfusions to cheat.
That Lance Armstrong would have his blood withdrawn and stored throughout the year and then receive banned blood transfusions in the team doctor’s hotel room on nights during the Tour de France. That Lance Armstrong surrounded himself with drug runners and doping doctors so that he could achieve his goal of winning the Tour de France year after year.
That Lance Armstrong and his handlers engaged in a massive and long running scheme to use drugs, cover their tracks, intimidate witnesses, tarnish reputations, lie to hearing panels and the press and do whatever was necessary to conceal the truth.
(Reasoned Decision, p.14)

USADA asserts that there is evidence beyond the testimony:

...although additional corroboration is not necessary given the testimony of USADA’s witnesses...the retesting of Lance Armstrong’s samples from the 1999 Tour and the clear finding of EPO in six of the samples provides powerful corroborating evidence of Armstrong’s use of EPO. With or without this corroborating evidence, however, the evidence demonstrates beyond any doubt that Lance Armstrong used
EPO during the 1999 Tour de France. No other conclusion is even plausible.
(Reasoned Decision, p.37)

The retesting has been subject to much discussion and legal wrangling. The issues surrounding the testing are byzantine and ugly. I imagine that the inability to prove this testing was valid (within a court of law) is a contributing reason for the Federal Prosecutor's decision to terminate its criminal investigation.

USADA spends a lot of time and effort to discredit Lance Armstrong. They chip away at his credibility, using myriad snippets of testimony

While USADA has not charged Armstrong with an anti-doping rule violation for the use of Actovegin because the product is not currently banned, Armstrong’s conduct and false statements in relation to Actovegin are highly relevant. It should be kept in mind that Armstrong’s and the team’s cover up concerning Actovegin was made in response to an official French law enforcement investigation. The fact that Armstrong and team officials were willing to make false statements in the course of a law enforcement investigation regarding doping directly bears on evaluation of the credibility of their statements regarding the use of other products. In other words, if Lance Armstrong was willing to lie about Actovegin—and he clearly did lie about Actovegin— there is little reason to believe that Armstrong would not be
willing to lie about other products and with regard to other topics.
(Reasoned Decision, p.45)

While the USADA chips away, I was struck by something: most of this is based on testimony. There is little based on independently-provable evidence. I'm not a lawyer, but I think most reasonable people agree that hearsay and witness testimony is weaker than independently-verifiable, objective evidence. This strikes me as the main reason the federal prosecutors terminated their investigation.

Tyler and Floyd

To its credit, the USADA spends a lot of time and effort corroborating the testimony of Floyd Landis and Tyler Hamilton. To its discredit, the USADA does not address many of the UCI touchpoints and the lack of diligence on the part of cycling's governing body.

As discussed in more detail in Section V(C) below, Dr. Martial Saugy, the Director of the WADA-accredited anti-doping laboratory in Lausanne, Switzerland has confirmed to both USADA and the media that his laboratory detected a number of samples in the 2001 Tour de Suisse that were suspicious for the presence of EPO. Dr. Saugy also told USADA that he was advised by UCI that at least one of these samples belonged to Mr. Armstrong. Therefore, even without any consideration of the laboratory test results for these samples, as set forth above, Tyler Hamilton’s and Floyd Landis’s testimony regarding Mr. Armstrong’s admission that he used EPO at the 2001 Tour of Switzerland finds substantial corroboration in the statements of both Dr. Martial Saugy and UCI President Pat McQuaid.
(Reasoned Decision, p.52)

I'm fascinated by the USADA's use of autobiographies and other books as part of their Reasoned Decision. They quote from Armstrong's two books as well as Bruyneel's management tome extensively. It makes for a riveting read, but is it valid in a legal sense? If I were writing a termpaper, it would be a great technique, as it provides color to otherwise bland legalese. In this case, though, it's all color and little legalese...

George Hincapie

It is probably the most damning of the testimonies. And it is one that makes me angriest, because I wanted to believe in George even more than I wanted to believe in Lance. But that's my issue.

Something of note is that the USADA used most of Hincapie's testimony in the Reasoned Decision. What was not used was mostly procedural and pre-doping history.

It was either in the Tour de France in 2003 or 2004 that Armstrong said to Hincapie, “I am going to be 500 grams heavier today.” By this reference Hincapie understood Armstrong to mean that Armstrong had received or was going to receive a blood transfusion.333 In any case, Hincapie was well aware that Armstrong used blood doping in every Tour de France from 2001 through 2005.334 The testimony of George Hincapie and Floyd Landis, which are well corroborated by the experiences of many other witnesses and the documentary record, leave no room for doubt that in 2003, as in every other year since the beginning of his at the top of the peloton, Lance Armstrong engaged in blood doping.
(Reasoned Decision, p.64)

George gets off too easily for all of this; he was allowed to gracefully retire.

Weak Sauce

A major issue I have with the Reasoned Decision is its reliance on language to persuade, as opposed to evidence. Frequently, they overreach with their assertions. Too frequently, they color the language like a novelist. The Reasoned Decision is not a novel, yet it is one of the most interesting reads I have had in some time. It's certainly more riveting than the third book in George R.R. Martin's Song of Ice and Fire series!

There will be a number of examples of linguistic bias, for now, an example of overreach on the part of the USADA is their handling of the "whole team transfusing on the bus" incident. In essence, Landis told the story to several people. They all testified that Landis told the story to them. Landis is the only "eyewitness" to the event. This would be dismissed in a real court. It falls into the category of heresay, and it is an example of why the USADA document makes me uneasy.

Levi Leipheimer testified that in 2005 when he and Landis were assisting each other with blood transfusions that Landis had told him about an incident at the 2004 Tour where the entire U.S. Postal Service team had received transfusions on the team bus following a stage in the Tour.380 Landis confirmed to Leipheimer that Lance Armstrong received a transfusion at that time.381 Moreover, David Zabriskie testified that in 2004 he too was told by Landis about an incident occurring at a race in 2004 where team members had received transfusions on the bus after a stage in the race.382 Thus, the bus transfusion incident has been triply confirmed. Not only two participants, Hincapie and Landis confirm it happened, but, Landis’ relatively contemporaneous statements to two additional individuals add yet another layer of assurance, confirmation and verifiability to the account.
(Reasoned Decision, p.71)

I find that weak. It's sounds reasonable, but reasonable and "proof" are different things.

The Simeoni Incident

Like the "transfusions on the bus" incident, USADA makes much out of little evidence. Yes, Lance chased down Simeoni. Yes, they exchanged words. No, there is no evidence to support the content of their conversation. Claiming the YouTube video as evidence is laughable. True, there was a gesture, but to make so much out of so little is grotesque.

Oh, and the language is spectacular! "Egregious". Just one of hundreds of word choices in the Reasoned Decision that are less reasonable and more passionate than is seemly.

As Simeoni and Armstrong fell back to the peloton, Armstrong verbally berated Simeoni for testifying in the Ferrari case, saying, “You made a mistake when you testified against Ferrari and you made a mistake when you sued me. I have a lot of time and money and I can destroy you.” Armstrong was captured on video making a “zip the lips” gesture which underscored what Armstrong had just said to Simeoni about how Simeoni should not have testified against Dr. Ferrari. A copy of a video of this sad moment in the history of cycling is provided as part of Appendix B. Thus, Filippo Simeoni has provided to USADA corroborated testimony of an act of attempted witness intimidation by Armstrong, which is in and of itself an anti-doping rule violation...and is also potentially relevant both to impeach Armstrong’s claim not to have participated in doping with Dr. Ferrari and in consideration of whether Armstrong should not be deprived of reliance upon the statute of limitations due to wrongful and egregious acts in which he engaged to attempt to suppress the truth about his doping and that of others associated with his team.
(Reasoned Decision, p.73)

Diminishing Witnesses

It's worth noting that the USADA's witnesses start to dry up within the chronology. In 1999, the USADA relies on seven (7) eyewitnesses. By the events of 2005, they rely on three (3) eyewitnesses (Reasoned Decision, p.75). I realize that there are circumstances around this, but it is notable, interesting, and worth further conversation.

Assertions that exceed reasonable language

That subhead may be misleading. Throughout the document USADA makes statements that assert truths and positions that are not as well-supported as they would like them to be. At times their language reminds me of the drunk guy who is trying to convince you of something you know to be untrue. He just keeps getting louder and more assertive, despite the weakness of his argument.

Hincapie has testified that, “[f]rom my conversations with Lance Armstrong and experiences with Lance and the team I am aware that Lance used blood transfusions from 2001 through 2005.”402 His testimony is corroborated by Levi Leipheimer who testified that in 2006 or 2007, long before any USADA investigation had occurred, that George Hincapie told Leipheimer that Armstrong had “only used a single bag of blood during [the 2005] Tour.”403 There was certainly no motive for Hincapie to lie to Leipheimer about Armstrong’s blood doping in this conversation in 2006 or 2007 after Armstrong had retired.
(Reasoned Decision, p.75)

"Certainly no motive" is the phrase that matters. By what knowledge/authority/insight does USADA make this statement? I'm a creative guy. I can come up with plausible motives. So can you. This may not be the finest example, but it illustrates the USADA's linguistic overreach.

Hincapie’s post Tour drug sweep of Armstrong’s apartment

Wow.

Lance Armstrong would claim his seventh Tour title on July 24, 2005. Armstrong would
then return to the United States without going back to his apartment in Girona. Consequently,
after the 2005 Tour Johan Bruyneel asked George Hincapie to, “go over to Lance’s apartment to go through the apartment and the closets to make sure that nothing was there.” Hincapie
understood that Johan wanted him “to make sure there were no doping materials in the
apartment.” Thus, Hincapie conducted a drug sweep of Armstrong’s apartment after the 2005
Tour.

Bruyneel’s request for a drug sweep is a clear statement that Bruyneel believed Armstrong was using performance enhancing drugs in 2005. Bruyneel, of course, knew on a daily basis the hematocrit level and fitness of every rider on his team. It is unthinkable that Bruyneel would not know whether Armstrong was using doping products in 2005, and Bruyneel’s request for a drug sweep is unambiguous confirmation that Bruyneel knew that Armstrong was still using.
(Reasoned Decision, p.76-77)

But, USADA undermines the impact of the testimony with this linguistic overreach (emphasis added):

Thus, there exists powerful direct and circumstantial evidence that in violation of the applicable rules Lance Armstrong possessed, used, and provided to George Hincapie, banned performance enhancing drugs in 2005.
(Reasoned Decision, p.77)

It's circumstantial! It may be powerful, and it may have come directly from a purported actor, but it's circumstantial!

Bad Rhetoric

If there was nothing illicit in Armstrong’s continuing relationship with Dr. Ferrari, then why did he need to lie about it? Armstrong’s false representation to the public that he had stopped working with Ferrari and Armstrong’s continuing relationship with Ferrari create a doubly strong adverse implication that Armstrong was doping...
(Reasoned Decision, p.78)

USADA makes a huge leap here. While it is a fascinating question, and one that makes for good conversation, I don't believe it makes for good law. I also think it's weak rhetoric. Again, I can come up with more than a few plausible responses to the question of why he lied.

More adventures in language

In the SCA arbitration proceedings Mr. Armstrong cagily refused to acknowledge that he ever encouraged any teammates to train with Dr. Ferrari.
(Reasoned Decision, p.93)

The USADA cagily uses words like "cagily" to impute the character of Lance Armstrong. It's emotional and unnecessary. The sentence would be impactful without the adverb. It also would show the USADA as holding itself to a higher standard. Name-calling and ad hominem attacks are so...puerile in this context.

Frankie Andreu was likely one of the first cyclists that Lance Armstrong attempted to introduce to the notorious Dr. Ferrari, and Andreu is the only rider of which USADA is aware that rebuffed Armstrong’s invitation for the rider to begin working with Ferrari.
(Reasoned Decision, p.94)

"The notorious Dr. Ferrari" sounds like an H.G Wells novella or a bad movie from the 1930s. It has no place in this Reasoned Decision. Again, the USADA diminishes its work with petty character attacks.

Carmichael

Chris Carmichael has said that he introduced Armstrong to Ferrari in 1995. Armstrong’s adviser taints Tour efforts, USA Today, by Sal Ruibal, July 13, 2004, provided in Appendix W.
(Reasoned Decision, footnote 485, page 97)

There is no follow-up about Carmichael in this Reasoned Decision. I am gobsmacked. Why not?

According to Stapleton, Ferrari was “in this group of people” including Johan Bruyneel and Chris Carmichael “that helped Lance.” According to Carmichael, “[t]here [were] only four people who really know what’s going on with Lance’s body: me, Michele, Johan and Freddy [Viaene, Armstrong’s massage therapist].”
(Reasoned Decision, page 99)

Money trail asserted, but no proof?

George Hincapie, Christian Vande Velde, Levi Leipheimer and Floyd Landis and Tyler Hamilton in 2001 all paid Dr. Ferrari for his services, although these payments were not recorded in the records of Health & Performance, SA obtained by USADA.
(Reasoned Decision, page 100)

Where is the proof of this? There may be hard evidence of money transfers, but they are not presented. USADA stretches too far with this assertion.

More character assassination

Thus, Leipheimer was thrice disserved—first by the coach who first got him EPO and then by Dr. del Moral who instructed him how to use it without being caught and finally by Bruyneel, who could have tried to turn a young man in the right direction, but instead accepted the drug use and looked only to his own selfish interest in reducing the risk of one of his riders getting a positive drug test by having the team doctor advise to inject EPO in the vein.
(Reasoned Decision, page 114-115)

At best, this is moralistic nonsense. At worst, it is character assassination. USADA does not need to use these language choices.

At this point in the document, I was beginning to feel like I was watching an Oliver Stone film. You know what I mean, you're 60 minutes in and you say "I get the point." You spend the next 60 minutes getting beaten over the head with! the! same! point! over! and! over! again!

In this case, it's not the overwhelming evidence, it's the melodrama of the language that annoys and diminishes.

Melodrama 201: Oh, These Poor Victims (Our Witnesses)

Crikey. USADA tries to paint the witnesses in such a way as to make them sound like nobility. Reality check: they lied and cheated for years. They abused the system for significant personal gains.

Sure, their consciences are finally hurting. in the context of a legal document, it doesn't matter. It's melodrama, it's whiny, and it's unnecessary.

...many of USADA’s witnesses have had years of their competitive results disqualified, they have risked their employment, a number have accepted suspensions, and five lost the opportunity to compete on the 2012 United States Olympic team.738 These individuals were well aware of the consistent Armstrong tactic of attacking his accusers, most had been on his team when he went after Christophe Bassons and/or Filippo Simeoni, they saw how he and his press team and lawyers had attacked Betsy Andreu, Tyler Hamilton and Floyd Landis, among others, and they knew that testifying for USADA would likely subject them to intense criticism and efforts by Armstrong and others trying to uphold cycling’s Code of Silence – the omerta. None of these individuals came forward lightly or easily. Every one of USADA’s witnesses struggled to some degree with the decision to come forward. Virtually all were subject to cycling’s omerta at one time or another. For all, there existed a strong self interest in NOT coming forward, in keeping their heads down and hoping the storm would pass. Most had almost certainly, as Tyler Hamilton confessed, at one time contemplated holding onto their secrets until the grave.
(Reasoned Decision, page 128)

1999 Tour de Suisse Samples

More overreach on the part of USADA. Essentially, in 2004 the French retested the 1999 samples. There were findings. The findings were dismissed by UCI for having failed protocols.

USADA asserts that they were fine, and that (in combination with witness statements) they establish a positive test result.

The passage is long, so I will not quote it's entirety here, but it is another example of a pattern of overreach on the part of USADA.

While LNDD’s analysis of the 1999 samples may not stand alone to establish a positive test under the Code, the analysis is consistent with and corroborates the numerous witness statements recently obtained by USADA.
(Reasoned Decision, page 142-144)

Lance is Creepy

The Tyler Hamilton incident is fascinating, believable, and something you can envision. The Leipheimer incidents are disturbing...

...on June 11, 2011, Mr. Hamilton was physically accosted by Mr. Armstrong in an Aspen, Colorado restaurant.819 Mr. Hamilton has testified that in connection
with this altercation Mr. Armstrong said, “When you’re on the witness stand, we are going to fucking tear you apart. You are going to look like a fucking idiot.”820 Hamilton further testified that Armstrong said, “I’m going to make your life a living . . . fucking . . . hell.”
(Reasoned Decision, page 150)

...in the course of a dinner at which Mr. Armstrong was seated next to Mr. Leipheimer, Mr. Armstrong sent a text message to Mr. Leipheimer’s wife stating, “run don’t walk.” As Mr. Armstrong had not communicated with Mr. Leipheimer’s wife in several years, this message felt threatening to her.
(Reasoned Decision, page 150)

During the 2012 Tour de France, and shortly after Mr. Leipheimer was interviewed by
USADA’s General Counsel in connection with this proceeding, Mr. Leipheimer’s wife received another text from Mr. Armstrong asking, “Are you in CA?” Due to the timing of the message, the fact that Mr. Armstrong was well aware that Mr. Leipheimer was out of the country and competing in the Tour de France, and as Mr. Leipheimer’s wife had not received a text from Mr. Armstrong since the time of the prior intimidating text, Mr. Leipheimer’s wife found the communication to be disturbing and concerning.
(Reasoned Decision, page 151)

UCI takes a hit

I am surprised at how little the USADA offers in terms of UCI. There is a lot of inference, but little detail about UCI's possible culpability through the doping era. This will be an issue to watch over the coming years.

One area where USADA takes UCI to task surrounds the way the UCI has dealt with criticism. It's informative, to say the least.

UCI is conflicted out of any role in results management in this case because it has publicly prejudged the credibility of the witnesses and the evidence. In 2010 when Mr.Landis publicly raised his allegations of Mr. Armstrong’s doping, in an Associated Press article UCI President McQuaid responded before undertaking any investigation whatsoever, contending that Mr. Landis’ allegations in his April 30, 2010 email were “nothing new” and that, “he already made those accusations in the past.” Rather than investigate the allegations, instead the UCI sued Mr. Landis. Similarly, when Tyler Hamilton publicly explained his knowledge of Mr. Armstrong’s doping in a 60 Minutes interview nationally telecast in the United States and reported around the world in May, 2011, the UCI’s Honorary President and current UCI Management Committee Member, Hein Verbruggen, stated:

That’s impossible, because there is nothing. I repeat again: Lance Armstrong
has never used doping. Never, never, never. And I say this not because I am a
friend of his, because that is not true. I say it because I’m sure.”
(Reasoned Decision, page 160)

Here's the gem:

It has apparently become UCI policy to sue anyone criticizing the UCI anti-doping program. On September 21, 2012, Hein Verbruggen, confirmed that “everyone that says we have put things under the table or not done our best is sued. Simple. They can come to the court and prove their case. Simple like that. Verbruggen won't take legal action against Hamilton, Cycling News, September 21, 2012
(Reasoned Decision, footnote 838, page 160)

Zing!

A Brief Conclusion