USADA’s Travis Tygart Plays Prosecutor, Jury and Judge in Lance Armstrong Case

Imagine walking into a courtroom as the defendant in a lawsuit. The prosecuting attorney reads the charges against you citing nothing more than the testimony of anonymous witnesses as evidence. You object, claiming this is unjust! To your surprise the prosecutor walks to the judge's bench, puts on a judge's robe and denies your motion. The prosecutor, still wearing his judge's robe, then takes out his cell phone and calls three of his friends to serve on your "independent" jury.

This fictitious, but obviously unjust situation is incredibly similar to the case Lance Armstrong currently faces from the United States Anti-doping Agency and its CEO Travis T. Tygart.

A similar investigation led by the United States Department of Justice concluded in February, 2012. After almost two years of investigation, and millions of US tax dollars spent researching Armstrong's past, the USDOJ decided there wasn't enough evidence to continue the investigation. So is this just another branch of the Federal government wasting millions of more tax dollars on the same investigation?

No, despite the officially sounding name, it turns out the "United States Anti-doping Agency is not a part of the federal government. Although it receives almost 90 percent of its funding from the federal grants, the USADA is a government program masquerading as a non-profit organization. This non-profit status allows it to investigate and prosecute athletes without affording them the constitutional and due process protections required of other federal agencies. This status also allows it to prosecute athletes with a lower burden of proof than the "beyond a reasonable doubt" standard that would have been required in the previous investigation by the USDOJ. Finally, it allows a situation where the same man, Mr. Travis T. Tygart is allowed to serve as Prosecutor, Jury and Judge in the investigation of Lance Armstrong.

PROSECUTOR: Tygart initiated the charges.

On June 12, 2012, Travis Tygart and his staff at the USADA sent a letter to Armstrong accusing him of violating anti-doping rules. As evidence of this violation, Mr. Tygart and his staff were only able to cite previous drug tests that Armstrong had passed and the testimony of anonymous witnesses.

In the letter, Mr. Tygart informs Armstrong that he has 10 days to submit evidence to a Review Board that will determine if there is "sufficient evidence of doping" to continue with a full hearing. In his defense, Armstrong can only offer written materials to the Review Board. He will not even be allowed to know the names of the cyclists that have allegedly testified against him.

JURY: Tygart gets to hand pick the Review Board

The "Review Board" will decide whether charges should be brought against Armstrong from the USADA, and whether the case shall go to a full arbitration hearing. Who serves on this review Board? According to USADA protocol 11(b) The independent "review board" shall be appointed by the USADA's CEO. You read that correctly, Mr. Tygart is allowed to handpick the individuals that serve as the "Jury", and decide if these charges should move forward. If an athlete had failed a drug test and the board was looking at objective evidence this process might make sense; however, Armstrong has never failed a drug test. All of the evidence in this case is subjective. Mr. Tygart has allegedly caught several other cyclists doping, and offered them immunity in exchange for their testimony against Lance. Shouldn't the credibility of such a witness be at least considered? Well, let's assume that Mr. Tygart's buddies, I mean, the independent "review board" find enough evidence to move the investigation forward, what happens next?

JUDGE: Tygart and USADA staff recommends sanction

Under the Applicable rules, Travis Tygart and his staff at the USADA, will recommend a sanction that will be imposed which may include up to a lifetime of ineligibility from sport. Finally, if Armstrong disagrees with the sanction imposed on him by Mr. Tygart, he can appeal for a full arbitration hearing.

USADA lacks internal and external controls

If Mr. Tygart and staff have the power it appears, what are the internal and external controls at USADA? What would restrict an overly ambitious CEO with an "axe to grind?"According to USADA bylaws, the organization has a very small ten member board of directors. The current director's are apparently impressed with Tygart and his "Tygarthian" prosecution style of accusing first and looking for evidence later. Unless Mr. Tygart received a pay cut last year, he's been paid a total of over $1.2 million in compensation and $100,000 in bonuses over the past four years. The spokesperson at the USADA did respond to my e-mail, but she declined to comment whether Tygart's bonuses were tied to finding a certain number of athletes or a particularly high profile athlete guilty of doping.

So, how are the USADA's directors chosen? Although the Bylaws allow other organizations to nominate potential directors, the USADA Board essentially has the power to elect their own replacements. This could ensure that only directors sympathetic to the Tygart are ever elected, and removes the accountability that a non-profit board should provide.

Finally, there's the office of National Drug Control Policy. This is the branch of the Federal government that funds the USADA $10 million a year of federal tax dollars to operate. According to legal counsel for the NDCP office, the $10 million grant is an "unsupervised non-competitive" grant. So, Tygart and staff are guaranteed $10 million a year in funding from the Federal government, but must answer to no one.

MY VERDICT

Do I think Mr. Tygart has some kind of personal vendetta against Lance? My personal opinion is yes, but I also think actions sometime speak louder than words. The 2012 London Olympic Games are a little more than a month away. Mr. Tygart and his staff are responsible for testing all US athletes headed to the games. However, he has chosen to use the majority of his offices resources investigating whether a retired cyclist doped 16 years ago.

The investigation and sanctioning process at the USADA is unconscionable. The partiality of the prosecutor, the lack of due process for the accused, and the lack of an independent fact finder are completely at odds with our American system of justice and fairness.

In the words of Heinlein, "To give a man power without accountability is to establish a tyrant."

Update: Thank you for all the likes, responses, positive and negative comments. For those of you that had questions:

Who are you? I am not a writer, I'm just an age group triathlete, who like the thousands of you felt angry and powerless with this unjust process.

What can we do to help? Travis Tygart is the CEO of a non-profit organization that receives the majority of its funding from federal tax dollars. As such, he must remember that he is still a public servant. The use of our tax dollars to pursue a personal vendetta and personal ambition is unacceptable. I believe the directors of this organization should immediately meet and vote to end this investigation. It would only take six members of the Board of Directors of the USADA to act with conscience, remove Travis Tygart from office, end this tribunal, and right the ship at the USADA. He is blurring the mission of the USADA beyond recognition. I encourage each of you to let your voice be heard. Send an e-mail today to askinner@usada.org expressing your view on this matter and ask that is be forwarded to every member of the Board of Directors.

All tyranny needs to gain a foothold is for people of good conscience to remain silent.
Thomas Jefferson

Where did you do your research?

I spent a significant amount of time researching the information here to ensure its accuracy. Several of the comments below questioned its veracity. I would encourage you to read the article more carefully and review all of the material below. All of the information I discussed is public information, most of which is available on the USADA website. The information for this story came from the following sources:

The financial information is public record made available on the Form 990 which is the information return that non-profit 501©3 organizations such as USADA are required to file with the IRS. The USADA's return for 2010 is available on its website. www.usada.org/uploads/990.pdf I requested the 2011 information from the USADA and they informed me they were not required to file this until October, 2012. I also reviewed the 990 filing for the 2008, and 2009 tax year. You can find these on www.guidestar.org
The Bylaws I referenced in this article are available on the USADA www.usada.org/uploads/usada%20bylaws.pdf You have to read these closely several times to realize the lack of accountability the current Director nomination process provides.
I also read and cited to the USADA protocol which is available here http://www.usada.org/files/pdfs/usada-protocol.pdf The difficulty of understanding this process, led me to the "prosecutor, judge, and jury" analogy. You will find the board review process on page 8. If the analogy were to continue the appellate court would be the "AAA" Arbitration hearing, I refer to this as a full arbitration hearing in the article above to aid in understanding. Finally, the Supreme Court in my analogy, would be the "Court of Arbitration of Sport" More info can be found on Annex E at page 75.
I also read and cited to the June 12, 2012 letter from the USADA outlining the charges. http://a.espncdn.com/pdf/2012/0613/armstrongcharges.pdf

5. The comment from the Office of NDCP was from an attorney in the Freedom of Information Act Division.

6. I sent several e-mails to USADA last week asking for comment on this story, and they refused other than saying the 2011, form 990 would be available in October.

* Slight correction, I claimed that USADA received almost 90% of its funding from the federal government. In 2010 it received 66% of its funding from a federal grant. Another 21% came from the United States Olympic Committee, an organization that I believed to be completely federally funded. USOC actually receives both private than federal funding. Thanks to @Benjamin Berry for pointing that out.

Comments

There are lots of issues with your article, but what jumps out the most is your characterization of the federal grand jury investigation. Let's start with the basics of federal grand juries. The federal grand jury exists to investigate federal crime (crimes against the United States) and to secure the constitutional right of grand jury indictment (there is a 5th Amendment right to grand jury indictment in federal cases). The federal grand jury does not investigate all potential criminal activity, rather it only investigates criminal activity that violates federal law, as compared to state law. For illustration purposes, the federal grand jury investigation into Roger Clemens issued an indictment for six counts of federal perjury, false statement and obstruction of Congress under Title 18 of the United States Code (federal crimes), not for actual use of human growth hormone (not a federal crime). In conducting investigations, a federal grand jury can pretty much do what it wants, other than violating certain testimonial and constitutional privileges such as attorney-client communications privileges and the privilege against self incrimination. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority. The federal grand jury therefore has the ability to obtain information that would be almost impossible to obtain by any other means such as a civil subpoena, discovery request or freedom of information act request. Federal grand juries conduct their business in secrecy defined by the Federal Rules of Criminal Procedure, which limit who may attend and what may be disclosed. While the grand jury is convened, what happens before the grand jury, including the testimony it hears, the documents it reviews and any other evidence it may consider remains secret. Once the grand jury is dismissed, the need to shield the grand jury’s activities from public display is less compelling and certain other parties (such as the USADA) can request access to the evidence and testimony presented to the grand jury under Rule 6 of the Federal Rules of Criminal Procedure. With that primer, let's bring the discussion back to Mr. Armstrong. News reports indicate that the federal grand jury investigation concerning Mr. Armstrong focused on allegations of financial crimes involving the physician Michele Ferrari and a number of cyclists, trainers and directors sportifs (including Mr. Armstrong and his long time director sportif Johan Bruyneel). It appears that the federal prosecutors were attempting to build a case under the Racketeer Influenced and Corrupt Organizations Act ("RICO"). RICO provides for criminal penalties (including a particularly long ten year statute of limitations) and a civil cause of action for acts performed as part of an ongoing criminal organization and focuses specifically on racketeering. Federal prosecutors were attempting to build a case that Dr. Ferrari and company were involved in a wide spread international conspiracy to distribute performance enhancing drugs and launder the profits received for the sale and distribution of those performance enhancing drugs. At some point federal prosecutors realized that they didn't have the evidence for an indictment on federal charges and dismissed the grand jury. So, what does this prove? Not much. The fact that federal prosecutors dismissed the grand jury only "proves" that in the opinion of the federal prosecutors they didn't have enough evidence to prosecute anyone for violation of federal crimes. The grand jury never "cleared" anyone of anything as no one was ever on "trial" for any specific crime. So, the comment "the grand jury cleared Lance" is at best imprecise. The better comment should be "the grand jury determined that there was not enough evidence to indict Lance on federal charges."
Kelly Burns Gallagher - July 03, 2012, 10:34 AM
Wow Kelly, thanks for the lesson in how the American Judicial System works. Did you learn all those big fancy terms in lawyer school? The writer wrote in a fashion that would allow the reader to finish the article and get the gist of what was going on, not to debate the hows/whys of the legal system. What you wrote was as painful as a textbook and there is little doubt in my mind that no one has read what you have written and said "oh, now everything makes complete sense..." The majority of the people reading this just want to know why the hell this Lance thing is still an issue and how much of their tax money is being wasted on trying to convict someone of a non-violent crime that happened in another country many years ago. One can't help but wonder the personal agenda that is driving this whole case...in simple terms "haters-gon-hate".
Nicholas Gernt - July 04, 2012, 10:59 AM
Actually I read Kelly's entire text, all terms big,fancy or otherwise,and I now understand that the grand jusy did not clear LA of doping. Thanks Kelly! NEVERTHELESS, I also read the letter USADA sent LA. Their charges are numerous, many are ambiguous at best, they admit they have no physical evidence, only the testimony of witnesses, and they virtually admit that they intimidated said witnesses.
greg Taylor - July 04, 2012, 06:53 PM
Funny, how so many people go over the fact that Anti Doping agency (USA or others) are created to try and stop doping. If they are able to prove that Lance was doping, would't this send a clear message to anny yougster that you may get caught one way or the other. And BTW the argument that it is taxe money.. get over it. Being independant is the only way the agency it can stay credible
ERIC Blais - July 05, 2012, 12:59 PM
I bet if you do more digging, you may find a link between Travis Tygart and big Pharma lobbyists. This isn't about Lance and winning some (mighty big) races. This is about Lance, the LiveSTRONG foundation, and finding a cure for cancer. If the USADA can severe ties between Lance and his financial backers/sponsors, then that severly limits his ability to generate money for the fight to find a cure for cancer. Big Pharma sees LiveStrong as a threat, and someone has a hand in Travis' back pocket and padding it with cash to carry out the witch hunt against Lance. Think about WHO benefits MOST from taking down Lance publicly. Why all the energy of the USADA directed solely at Lance? What does Lance represent, or what power does the government feel he has? It's not about the Bike.
mark esposito - August 24, 2012, 09:33 PM
I bet if you do more digging, you may find a link between Travis Tygart and big Pharma lobbyists. This isn't about Lance and winning some (mighty big) races. This is about Lance, the LiveSTRONG foundation, and finding a cure for cancer. If the USADA can severe ties between Lance and his financial backers/sponsors, then that severly limits his ability to generate money for the fight to find a cure for cancer. Big Pharma sees LiveStrong as a threat, and someone has a hand in Travis' back pocket and padding it with cash to carry out the witch hunt against Lance. Think about WHO benefits MOST from taking down Lance publicly. Why all the energy of the USADA directed solely at Lance? What does Lance represent, or what power does the government feel he has? It's not about the Bike.
mark esposito - August 24, 2012, 09:35 PM
Correct me if I'm wrong, but my interpretation through readings of other articles and documents, the ICU (International Cycling Union)is not obliged to honor the USADA's decision to strip Lance Armstrong of his titles and impose a life time ban for the following reason: The USADA did not fully follow ARTICLE 17: STATUTE OF LIMITATIONS of the WADA's World Anti-Doping Code, which states: "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." I acknowledge this is a grey area since part of the USADA’s allegations is within the statue of limitations and Article 17 does not define or elaborate on how a governing body that has adopted the code is to pursue sanctions if part of the allegations do not fall within the statue. At best for the USADA would be stripping Lance Armstrong of only the 2004 and 2005 titles since these competitions should only fall within Articles 17 statue. The ICU's recent statement (8/24/12) is quiet vague, only being reported as recognizing the reporting of USADA's decision to strip Mr. Armstrong of his title's and lifetime ban. It will be interesting if the ICU will tag along and honor the USADA's hunt or pursue to have jurisdiction in this matter. On another note, I’m not trying to criticize Kelly Burns Gallagher comment / explanation of how the United States federal grand jury system works, (which is accurate and enlightening) however having served nearly a year on a federal grand jury myself, I am curious to find out if it was the prosecutor’s decision to not pursue the alleged case in Kelly Burns Gallagher’s comment, or did the grand jury hearing this case vote there was not sufficient evidence to warrant pursuing the case? I only bring this question up since there is a difference on why a case is not pursued. There are cases in which the prosecutor recommends the jurists to vote against prosecuting a case, or due to the powers granted by the constitution, the panel votes “no”. Remember it is not the intent nor within a grand juries’ function to determine innocence or guilt ,but only to determine if the prosecuting office can pursue the case.
Michael DiIorio - August 26, 2012, 09:33 AM
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