Original art by Antonio DePietro
The Department of Justice decided not to press criminal charges against Lance Armstrong for doping. End of the ordeal? Nein. Shortly thereafter, the United States Anti-Doping Agency charged Lance with doping in their own justice system, and threatened to revoke all his Tour de France titles. In the UK, John Terry was formally charged by police for racial abuse of a rival player, Anton Ferdinand. A magistrate judge concluded he was not guilty. End of the ordeal? Nope. The Football Association charged Terry, found him guilty, and suspended him for a few games, pending appeal.
If the American justice system can’t find enough evidence to charge Armstrong, why would the USADA expect to do better? If a UK magistrate didn’t find enough evidence to convict Terry, why should the FA step in? The quick, unsatisfying answer is a bunch of confusing legalese. The less convenient real answer troubles the world of sport governance to its core.
First, the legalese. In the US and UK, a criminal conviction requires the prosecution to prove guilt “beyond a reasonable doubt.” This is a pretty high threshold. Conversely, an administrative body such as the USADA or FA typically only need to prove guilt by a lower standard, such as a “preponderance of the evidence.” This translates roughly to “more likely than not,” much easier to prove. The FA must only prove an infraction by the “balance of probability.” That is one big difference. Another difference is that administrative bodies only govern professionals who have willingly entered into their realm of authority. The FA can only charge and investigate professional footballers in England. The USADA can only charge and investigate certain American athletes, including professional cyclists and other athletes in the US. Lastly, the punishments these administrative bodies can levy are different. The FA can fine, just like a magistrate, but cannot throw Terry in jail. The USADA can strip away titles, but can’t sentence Armstrong to prison time.
However, these differences obfuscate two fundamental problems with the Terry and Armstrong cases. First, administrative bodies were created to govern sport so as to eliminate the need for government interference, not to mulligan on failed criminal prosecutions. Sports bodies hate expensive private lawsuits, so they’ve lobbied long and hard to rule the roost. As part of this understanding, we the taxpayers in theory save money by not having to dedicate resources to govern disputes within sport. We don’t pay the FA staff’s salaries. We don’t pay the arbitrators. In both the Terry and Armstrong cases, US and UK taxpayers footed the bill for criminal investigation and, for Terry, a multiple-day trial. Instead of autonomously governing their fiefdoms, the USADA and FA let the police to dig up the dirt and stumble at the prosecution phase before swooping in to attack a high profile target.
Instead of creating a separate sphere of sport and law, this looks like a second bite at the apple. If the police mess up an investigation or a prosecutor blows a trial, thende factodouble jeopardy awaits the accused athlete. He may not face a year in jail, but instead risks losing seven Tour de France titles, a lifetime of achievement, and his good name.
Obviously, not everybody is concerned. Many EPL fans were happy to see the FA throw the book at Terry, and not everybody loves Armstrong. This brings up another problem with the FA and USADA—the administrative prosecutions often run askew of a defendant’s right to due process. In the wake of both cases, troubling questions are raised as to whether or not these bodies are even competent enough to govern their own spheres, let alone undertake determinations of innocence or guilt.
In the Armstrong case, Lance filed a civil lawsuit in federal court in Austin, Texas and charged the USADA with constitutional violations. His first lawsuit contained more bold statements and accusations than legal arguments, but a revised, second lawsuit honed in on the glaring defects in the USADA charging procedures. The judge eventually dismissed the lawsuit based on the common rationale used to defend arbitration: sports bodies wield unique expertise and should be able to resolve their own disputes better than a judge. However, Sparks voiced grave concerns about the charging document. The USADA’s boilerplate form included only a few pages of general allegations, and hardly gave Armstrong an idea of what he was up against. The USADA stated that they would provide Armstrong with a more detailed writ before the hearing, but the very need for that expansion highlights the bum-rush nature of their initial charging. In the hurry to cut off Lance’s head, was he afforded enough time to investigate the accusers and mount a credible defense?
The Terry case presents problems at the other end of the spectrum: judgment. A magistrate judge found Terry not guilty and clearly explained his rationale. His fifteen page judgment concluded that nobody, neither lip-reading experts nor Ferdinand, could testify to what was said. The magistrate judge noted that Terry had never been sent off for abuse despite playing in over 600 matches. Also, Terry had kept his control despite 18 months of taunts about his affair with former teammate Wayne Bridge’s wife. The lack of direct evidence and circumstantial evidence to the contrary raised a reasonable doubt. Conversely, the FA found Terry guilty and has only vaguely promised to issue a written decision later. Here’s the problem: Terry had to file an appeal beforehand, so as not to miss the Arsenal game. How can one appeal an unwritten ruling?
Some people point out that the stakes are lower—in terms of punishment—for professional athletes in these hearings, so the hearings and procedures can be a bit more informal. However, the FA can offer fines almost on par with a criminal prosecution. No jail time is ever at risk, but a lifetime, if not an eternity, of ignominy awaits a defendant on the losing end of a doping charge. This line of thinking also defeats itself. Basically, this argument says in pretty terms that “sport is not so important, so we can play fast and loose with the rules.” But if sport is not so important, why have these administrative bodies at all?
Some will argue that the FA charged and punished Luis Suarez for racism last season, and thus does not wait to cherry-pick failed prosecutions. In Suarez’s cases, there was no criminal trial beforehand. However, Suarez was another high profile target. Also, the FA’s written decisions rambled on for over 100 pages. If the lack of ink for Terry is troubling, the FA judgment in Suarez has the opposite problem: it makes the footnotes to Infinite Jest feel like a breezy beach read. Experienced litigators will notice an abundance of hearsay, the inability to separate factual disputes from legal standards, and the lack of a foundation (or explanation) for the experts. Normally, in a trial, you can’t just rope in a linguistics PhD and have him talk to a jury. You have to prove his particular study is relevant and his conclusion has a proper factual premise.
Of course, that just points to another scary issue with administrative processes: the person who weighs the evidence is also the gatekeeper for potentially prejudicial evidence. Normally, at a trial, a judge plays the role of referee and decides outside the presence of a jury if a document or witness has something worthwhile to hear. This prevents attorneys from presenting captivating witnesses who are unqualified and may only distract the jury. In an administrative hearing, the jury is the judge. The hearing examiners will decide if a document or witness is prejudicial and distracting or relevant and on point. There’s just one problem: the examiner has already seen the document or witness before making that decision. They basically state “this document that just distracted me in preliminary matters is too distracting for the major hearing.” However, the document has already been viewed. Smart attorneys like cunning athletes will push the rules and treat informal hearings as an anything goes forum. This very article could turn up in the next hearing.
So, should we throw out the kangaroo courts and force sports disputes back into the civil system? Not just yet. Arbitration of free agency disputes and salaries in North America has worked pretty well. In the best light, the USADA and FA could tighten the nuts & bolts in their system and their expertise would be better than most elected or appointed judges. In the worst light, these agencies wait around for bungled high-profile prosecutions, bite at the low-hanging fruit, and win thanks to their Constitutionally-defective home field advantage.
You might well hate John Terry and Lance Armstrong, but they both deserve a sporting chance.