Recently, the United States Anti Doping Agency ("USADA”) has concluded that Lance Armstrong led "the most sophisticated, professionalised and successful doping programme that sport has ever seen". Armstrong has been stripped of all of his Tour de France titles from 1999 to 2005. The USADA decision raises an interesting point about the limitation period in doping cases.
How has USADA has been able to strip Armstrong of his Tour titles reaching back to 1999 despite the eight year limitation period mandated by WADA?
The Code issued by the World Anti-Doping Agency ("WADA”) is the fundamental document upon which the World Anti-Doping Program is based. USADA and the UCI are both signatories to the Code.
Article 17 of the Code imposes an eight year statute of limitation. The Code does not include any express provision for this period to be extended. Notwithstanding this, the Court of Arbitration for Sport ("CAS”) has ruled that extension of this period should be dealt with in the context of the principles of the private law of the country where the interested sports authority is domiciled (CAS 2005/C/841). Due to the position as regards "discovery” in this case (i.e. who discovered the alleged violation), that meant US law where USADA is domiciled (and not Swiss law where the UCI is domiciled).
Under US law time is prevented from running for limitation purposes, where a person has wrongfully concealed his own conduct and thereby prevented discovery of his own wrong, until the facts are discovered or should with reasonable diligence have been discovered (this is analogous to section 32 Limitation Act 1980 under English law). USADA decided to extend the limitation period in the Armstrong case because it concluded Armstrong had deliberately concealed his doping from USADA by: lying under oath; lying in a French judicial organisation; intimidating witnesses; and soliciting false affidavits.
The UCI has criticised the USADA decision in this respect by stating that "it would have limited disciplinary proceedings to violations asserted to have occurred during the eight years preceding the opening of such proceedings”. The UCI argues that the Code makes no provision for reference to national law, and contends that "it would be in full contradiction with the purpose of harmonisation of the Code that an action could be commenced against one athlete but not against another because of different national legislations governing the statute of limitations”. Whilst the UCI considered this did not amount to a sufficient ground for it to appeal, its decision commenting on the case suggested such a responsibility rested with WADA.
It is now clear that WADA disagrees with the UCI’s analysis, and has decided not to appeal the Armstrong decision. After conducting a review of the case it has stated that the interpretation given by USADA [on the statute of limitation point] is "proper and supported by case law”.
Many cyclists, including myself, will be thankful for this. But it does not prevent the criticism about a lack of consistency for treatment of athletes from different nations being a valid one. Surely there is a need for WADA to revise the Code to give express provision to deal with circumstances where limitation can properly be extended. Doping in sport calls for a worldwide effort; WADA’s existence illustrates this. The Armstrong case highlights the need for there to be a valid basis for all doping organisations (whatever the nationality) to extend limitation in appropriate circumstances. This ought not to depend on the varying position under national law.
Legal points aside, absent an appeal by Armstrong (which would fly in the face of his decision not to fight the case against him), it would seem that the final word is with the USADA: