In my other life (the one outside of the legal profession), I’m a pretty avid cyclist and have been for over a decade. This translates to my going out on weekend bike rides of 40-50 miles a pop for most of the year and usually riding at least one significant two-day tour (think, MS150) each year. For most of the time I’ve been a serious cyclist, Lance Armstrong has been the central figure in the professional sport, or, at least, the one best known to everyone in the U.S.
You can call Armstrong a lot of things: a Tour de France champion, a fierce competitor, an arrogant opportunist, and a philanthropist. And for a lot of years, a number of authorities have been trying to pin another label on him: dope cheat.
Professional cycling has been a dirty sport for a lot of years. It becomes understandable when you see what riders in one of the major tours put themselves through—thousands of miles up seemingly impossible climbs and through all manner of conditions. And at the end of weeks of racing, a few seconds can decide the winner from the also-rans. Doping became a huge and shameful part of the sport, and the efforts have only recently gotten serious in cracking down on it.
For his part, Armstrong presented a script that Hollywood couldn’t have written any better. A cancer survivor—and barely, at that—who came back to, not just win, but dominate on the biggest stage his sport has to offer. Add to this the fact that he used his new-found fame to raise millions of dollars for cancer research and to improve the lives of people suffering from cancer, and it’s a story that seems too good to be true. And the U. S. Anti-Doping Agency says it is.
Anti-doping forces have been pursuing Armstrong for years, accompanied by members of the media—including a very vocal French contingent—who believe he cheated to win France’s signature sporting event. But, during his career and the thousands of drug tests that involved, no one ever nailed Armstrong. He passed every test, if not with flying colors, at least sufficiently to prevent his accusers from proving their case. Nevertheless, this week USADA purportedly stripped Armstrong of all seven of his Tour de France titles and obliterated fourteen years of his career. And this bothers me for a number of reasons.
Everyone agrees that urine and blood testing is the gold standard for finding out if an athlete has been doping. As mentioned, that kind of testing was done on Armstrong to an incredible extent, and he never failed a test that actually lived up to the appropriate procedural. (I have heard it said that some of Armstrong’s test results were thrown out based on “technicalities.” What the media tends to call “technicalities” are often what we in the law call “fundamental rights” and this isn’t the place for me to expound on my loathing of the term “technicalities.” Suffice to say, the USADA couldn’t get the job done with its testing.) When USADA realized it couldn’t convict Armstrong with scientific evidence, it turned to anecdotal evidence–testimony from teammates and former teammates, some desperately trying to clear their own names or find someone else to blame for their own getting caught (see Floyd Landis).
Secondly, Armstrong has now said that he’s not going to fight the allegations anymore. The USADA’s reaction was that his refusal to contest the allegations was being taken as an admission of guilt. That’s rubbish. Absent a duty to speak, silence is not a confession of anything. USADA has taken the position that, because Armstrong won’t engage it anymore, it is now free to dispense with the burden of proof altogether and jump straight to “guilty.”
Third and finally, there is the question of the tactics employed by USADA, WADA, and other anti-doping crusaders. As I’ve written before, these people strike me as true zealots, and their tactics raise some serious questions about privacy and propriety. Riding in a bike race doesn’t mean giving up all rights to privacy and to due process. So do I think Armstrong is innocent? Probably, no. I’d like to think so, and I still hope so. The truth is I don’t know. But do I think he’s been shown to be guilty and given his procedural due? Absolutely, unequivocally, positively, no.
For my part, I will continue to admire Armstrong. Even if his Tour wins were tainted, there is plenty of likelihood that he was no worse than anyone else participating. Moreover, the symbol of Armstrong will always be at the forefront. Having seen my father succumb to cancer and having witnessed my wife haunted by its specter, what Armstrong has done for cancer awareness and funding is bigger than anything else he might or might not have done. Ever. I will continue to wear my LIVESTRONG bracelet every day, even in court. And when it breaks, I’ll go buy another. Because sports isn’t just about competition; it’s about myth-making. And sometimes we need the myth more than we need the man.