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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Lance Armstrong, Plaintiff, v. United States Anti-Doping Agency, et al., Defendants. Civ. Action No.1:12-cv-00606-SS

PLAINTIFF LANCE ARMSTRONGS MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION OR TO DISMISS OR STAY UNDER THE FEDERAL ARBITRATION ACT Robert D. Luskin (admitted pro hac vice) Patrick J. Slevin (admitted pro hac vice) PATTON BOGGS LLP 2550 M Street, NW Washington, DC 20037 Phone: (202) 457-6000 Fax: (202) 457-6315 rluskin@pattonboggs.com Mark S. Levinstein (admitted pro hac vice) Marcie R. Ziegler (admitted pro hac vice) Ana C. Reyes (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 12th St., NW Washington, DC 20005 Phone: (202) 434-5000 Fax: (202) 434-5029 mlevinstein@wc.com Date: August 3, 2012 Timothy J. Herman (Bar No. 09513700) Sean E. Breen (Bar No. 00783715) HOWRY BREEN & HERMAN LLP 1900 Pearl Street Austin, Texas 78705 Phone: (512) 474-7300 Fax: (512) 474-8557 therman@howrybreen.com

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2 A. B. C. D. Relevant Organizations and Rules. ..........................................................................2 Mr. Armstrongs UCI Licenses................................................................................4 USADAs Charging Letters. ....................................................................................4 Under the UCI ADR, UCI Has Exclusive Jurisdiction to Determine Whether to Pursue Charges Against Mr. Armstrong. ..............................................5 1. 2. 3. 4. E. F. G. UCI Has Exclusive Jurisdiction Because These Charges Involve Samples Collected by UCI. ..........................................................................7 Alternatively, UCI Has Exclusive Jurisdiction Because It Discovered the Alleged Violation. ...........................................................8 Alternatively, UCI Has Exclusive Jurisdiction Because Mr. Armstrong Is Retired from Cycling. ..........................................................10 UCI Has Asserted Jurisdiction Over the Matter and Directed USADA Not to Proceed. ............................................................................11

UCI Also Has Exclusive Jurisdiction in this Matter Under the WADA Code. ......................................................................................................................12 USADA Has No Jurisdiction To Bring a Consolidated Action Against Six People Under a Conspiracy Theory. ......................................................................13 The 2005 Tygart Affidavit Has No Bearing on USADAs Jurisdiction. ...............13

ARGUMENT .................................................................................................................................14 I. II. III. THE SPORTS ACT DOES NOT APPLY TO MR. ARMSTRONGS CLAIMS. ...........14 EVEN IF THE SPORTS ACT APPLIED, IT WOULD NOT PREEMPT MR. ARMSTRONGS CLAIMS. ..............................................................................................17 MR. ARMSTRONG IS NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES........................................................................................................................20

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IV.

MR. ARMSTRONG DID NOT AGREE TO ARBITRATE HIS CLAIMS AGAINST USADA. ..........................................................................................................22 A. B. USADA Has the Burden of Proving an Agreement to Arbitrate the Matters at Issue. ..................................................................................................................23 USADA Has Not Established any Contractual Agreement by Mr. Armstrong To Arbitrate Either USADAs Charges or the Claims in the Complaint. ..............................................................................................................24 USADA Has Not Met Its Burden of Demonstrating that Mr. Armstrong Agreed To Arbitrate the Question of Arbitrability. ...............................................27

C.

CONCLUSION ..............................................................................................................................28

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TABLE OF AUTHORITIES FEDERAL CASES Abdallah v. U.S. Assn of Taekwondo, Inc., No. H-07-2880, 2007 WL 2710489 (S.D. Tex. Sept. 14, 2007) .................................................................................................................18 Allen v. Apollo Grp., Inc., No. H-04-3041, 2004 U.S. Dist. LEXIS 26750 (S.D. Tex. Nov. 9, 2004) ....................................................................................................................................27 Alvarez v. T-Mobile USA, Inc., No. 2:10-2373 WBS GGH, 2011 WL 6702424 (E.D. Cal. Dec. 21, 2011) ..........................................................................................................................23 Associated Builders & Contractors of Tex. Gulf Coast, Inc. v. U.S. Dept. of Energy, 451 F. Supp. 281 (S.D. Tex. 1978) .................................................................................................19 AT&T Techs., Inc. v. Commcns Workers of Am., 475 U.S. 643 (1986) .................................23, 27 Athlone Indus. v. Consumer Prod. Safety Commn, 707 F.2d 1485 (D.C. Cir. 1983) ...................21 Barnes v. International Amateur Athletic Federation, 862 F. Supp. 1537 (S.D. W. Va. 1993) .................................................................................................................................19, 20 Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218 (1993) ..................................................................................17 ChampionsWorld, LLC v. U.S. Soccer Fedn, Inc., 726 F. Supp. 2d 961 (N.D. Ill. 2010)...................................................................................................................16, 17 Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992) ....................................................................17 Coenen v. R.W. Pressprich & Co., 453 F.2d 1209 (2d Cir. 1972) .................................................25 Coury v. Prot, 85 F.3d 244 (5th Cir. 1996) ..................................................................................15 English v. Gen. Elec. Co., 496 U.S. 72 (1990) ........................................................................17, 18 Garner v. U.S. Dept of Labor, 221 F.3d 822 (5th Cir. 2000) .......................................................22 Gatlin v. U.S. Anti-Doping Agency, No. 3:08-cv-241, 2008 WL 2567657 (N.D. Fla. June 24, 2008) ..................................................................................................................................22 Gen. Warehousemen & Helpers Union Local 767 v. Albertsons Distribution, Inc., 331 F.3d 485 (5th Cir. 2003) ..........................................................................................................27 GMC v. Pamela Equities Corp., 146 F.3d 242 (5th Cir. 1998) .....................................................28

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Graham v. U.S. Anti-Doping Agency, No. 5:10-CV-194-F, 2011 WL 1261321 (E.D.N.C. Mar. 31, 2011)....................................................................................................................17, 18 Gulf Restoration Network, Inc. v. Salazar, 683 F.3d 158 (5th Cir. 2012) ...............................21, 22 Harding v. U.S. Figure Skating Assn, 851 F. Supp. 1476 (D. Or. 1994), vacated on other grounds, 879 F. Supp. 1053 (D. Or. 1995) .......................................................................18, 19 Hatley v. Am. Quarter Horse Assn, 552 F.2d 646 (5th Cir. 1977) ...............................................18 HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41 (1st Cir. 2003) ....................................26 In re Camp, 631 F.3d 757 (5th Cir. 2011) .....................................................................................14 Jacobs v. USA Track & Field, 374 F.3d 85 (2d Cir. 2004) ...........................................................25 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964) ........................................................26 Jones v. United States, 526 U.S. 227 (1999) ................................................................................20 Kelly v. Robinson, 479 U.S. 36 (1986) ..........................................................................................14 Lee v. U.S. Taekwondo Union, 331 F. Supp. 2d 1252 (D. Haw. 2004) .........................................18 Netumar Lines v. General Cocoa Co., No. 96 CIV 0136, 1997 WL 401668 (S.D.N.Y. July 16, 1997)...........................................................................................................................25 Occidental Chem. Corp. v. Power Auth. of N.Y., 786 F. Supp. 316 (W.D.N.Y. 1992), affd, 990 F.2d 726 (2d Cir. 1993) ...........................................................................................14 Perdue Farms, Inc. v. Design Build Contracting Corp., 263 F. Appx. 380 (4th Cir. 2008) (unpublished) ...........................................................................................................................26 Radiant Sys., Inc. v. Am. Scheduling, Inc., No. 3:04-CV-2597-P, 2005 WL 2105953 (N.D. Tex. Aug. 31, 2005) .......................................................................................................28 Saraw Pship v. United States, 67 F.3d 567 (5th Cir. 1995)..........................................................15 Slaney v. Intl Amateur Athletic Fedn, 244 F.3d 580 (7th Cir. 2001) ....................................18, 19 Steel Co. v. Citizens for a Better Envt, 523 U.S. 83 (1998)..........................................................22 Stern v. Marshall, 131 S. Ct. 2594, rehg denied, 132 S. Ct. 56 (2011)........................................20 Stolow v. Greg Manning Auctions, Inc., 258 F. Supp. 2d 236 (S.D.N.Y. 2003), affd, 80 F. Appx 722 (2d Cir. 2003) ....................................................................................................25 Stolt-Nielsen S.A. v. AnimalFeeds Intl Corp., 130 S. Ct. 1758 (2010) .........................................23

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Thomas M. Cooley Law Sch. v. Am. Bar Assn, 459 F.3d 705 (6th Cir. 2006) .............................18 United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U. S. 574 (1960) ..........................23 Webster v. Doe, 486 U.S. 592 (1988) ............................................................................................20 Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211 (5th Cir. 2003) ........................................23

STATE CASES In re Pisces Foods, LLC, 228 S.W.3d 349 (Tex. App. 2007) ........................................................26 Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780 (Tex. 1978) .....................................21

STATUTES 36 U.S.C. 220522(a)(4).........................................................................................................14, 17 36 U.S.C. 220509(a) .............................................................................................................15, 17 9 U.S.C. 4 ....................................................................................................................................23

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INTRODUCTION USADA seeks to foreclose judicial review of its unauthorized assertion of doping charges against Mr. Armstrong. But the Court has jurisdiction to enjoin USADAs ultra vires proceeding and require USADA to follow the rules that govern and limit its authority. The international cycling federation, the Union Cycliste Internationale (UCI), has exclusive jurisdiction over the matters in USADAs charging letters and has specifically directed USADA not to proceed. Notwithstanding USADAs obligation to abide by UCIs decisions and the governing UCI rules, USADA demands that Mr. Armstrong either arbitrate its charges or suffer a lifetime ban from cycling. Mr. Armstrongs claims for relief are not preempted by the Ted Stevens Olympic and Amateur Sports Act (Sports Act). Nor is Mr. Armstrong contractually required to arbitrate these matters. Accordingly, Defendants motion to dismiss (Mot.) should be denied. By its plain terms, the Sports Act has no application to Mr. Armstrongs claims, which do not involve an amateur athlete or athletic events covered by the statute. Even if the Act applied, however, the Court has jurisdiction to consider whether USADA is acting in violation of the governing rulesa matter that does not require any determination concerning either the merits of USADAs charges or Mr. Armstrongs eligibility to compete. USADA asserts that Mr. Armstrong is silent as to many of the applicable rules and seeks to create a new set of rules applicable only to him. Mot. at 2. But it is USADA that disregards the governing rules. Indeed, USADA fails even to include as an exhibit to its motion the UCI Anti-Doping Rules (UCI ADR), on which it exclusively relies in its charging letters as the source of its alleged jurisdiction. Its refusal to address the UCI ADR in its motion, despite its express reliance on those rules in its charging letters as the only source of its claimed jurisdiction and the principal basis for its substantive charges, illustrates USADAs disregard of the governing rules.

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Indeed, USADA is defying not only the governing UCI rules, but also the express directives of UCI, whose decisions and rules take precedence over those of USA Cycling and USADA. USADAs motion never mentions the critical facts that UCI has asserted jurisdiction over the matters in USADAs charging letters and that UCI has directed USADA not to proceed. Finally, USADA has not met its burden of demonstrating that Mr. Armstrong is contractually required to arbitrate his claims. Mr. Armstrongs international cycling license applications do not require him to arbitrate claims that violate the UCI ADR and the World AntiDoping Code, and that UCI has directed USADA not to pursue. Mr. Armstrongs membership in USA Cycling and USA Triathlon also do not require arbitration, as USADA has no jurisdiction to bring the charges it has asserted, UCI has expressly directed USADA not to proceed, and the UCI ADRnot the USADA Protocolgovern. At a minimum, there are material disputed facts that must be addressed before the Court decides whether to compel arbitration. BACKGROUND USADA does not have plenary authority over anti-doping allegations against cyclists such as Mr. Armstrong. To the contrary, USADA is one of a number of organizations that protect the integrity of sporting events. These organizations are bound by rules that delineate their jurisdiction. As UCI has made clear in its letters directing that USADA not proceed further in this matter, it is UCI, not USADA, that has jurisdiction under the governing rules. A. Relevant Organizations and Rules.

UCI is the international federation (IF) for cycling. See Ex. 1 (Affidavit of Timothy J. Herman (Herman Aff.)) 20. It is responsible for overseeing international cycling, including testing athletes for prohibited substances at international events. Id. UCI has a comprehensive set of anti-doping rules (the UCI ADR), by which its license-holders and member federations are bound. Id. 22. Under those rules, UCI has exclusive jurisdiction over testing at international 2

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events, and Doping Control for such matters (defined to include sample collection and handling and results management and hearings) is governed exclusively by the UCI ADR. See Herman Aff. 23; Ex. 23 to Herman Aff. (UCI ADR) Art. 4 & Appx 1. UCI also conducts out-of competition testing. Doping Control for such testing is governed exclusively by the UCI ADR. See Herman Aff. 24; Ex. 23 to Herman Aff. (UCI ADR) Art. 8. USA Cycling is the National Federation and National Governing Body (NGB) for cycling in the United States. See Herman Aff. 21. Under the UCI Constitution, the Olympic Charter, and USA Cyclings Bylaws, USA Cycling is bound by UCIs rules and decisions.1 It shall comply with the Constitution and Regulations of the UCI, as well as with all decisions taken in accordance therewith. Likewise, [it] shall have the Constitution, Regulations and decisions of the UCI complied with by all persons concerned. Ex. 22 to Herman Aff. (UCI Const.) Art. 6.1. USA Cycling is required to include UCIs regulations in its own regulations. See Ex. 20 to Herman Aff., Art. 3. If USA Cyclings rules or procedures conflict with UCIs, UCIs rules take precedence. See Ex. 22 to Herman Aff. (UCI Const.) Art. 6.3. In 1999, the World Anti-Doping Agency (WADA) was created. In 2003, the WADA Code was introduced. UCI and USADA are signatories to the WADA Code and must comply with its provisions. See Herman Aff. 20. Both UCI and USADA are Anti-Doping Organizations under the WADA Code. See Ex. B to Affidavit of Travis Tygart (Doc. 33-3) See Ex. 22 to Herman Aff. (UCI Const.) Art. 6 (The constitution and regulations of the federations shall not run counter to the Constitution and Regulations of the UCI. In case of divergence, only the Constitution and Regulations of the UCI shall apply.); Ex. 25 to Herman Aff. (Olympic Charter) Art. 29 (To be recognised by an NOC . . . a national federation must . . . be governed by and comply in all aspects with . . . the rules of its IF.); Ex. 24 to Herman Aff. (USA Cycling Bylaws) K.4 (All Directors, Sport Committee members, employees, and other agents of USA Cycling are obligated to . . . [e]nsure that USA Cycling adheres to the applicable rules, regulations, and policies of . . . international sport governing bodies with which USA Cycling are affiliated.). 3
1

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(Tygart Aff.), Appx 1, at 126. The WADA Code provides that results management and hearings are the responsibility of and shall be governed by the procedural rules of the AntiDoping Organization that initiated and directed Sample collection, id. Art. 15.3here, UCI. USADA was created in 2000. See Mot. at 4. It claims to derive its authority over U.S. cyclists by virtue of a delegation of authority from USA Cycling. Id. at 11, n.40. Just as USA Cycling is required to follow the UCI ADR and the WADA Code, so too is USADA, whose jurisdiction in cycling matters is defined and limited by the UCI ADR and the WADA Code. B. Mr. Armstrongs UCI Licenses.

As an elite international competitor, Mr. Armstrong obtained UCI international licenses. See Herman Aff. 26. As of 2005, the UCI license applications required Mr. Armstrong to be bound by the UCI ADR, the WADA Code, and USADA regulations provided such regulations comply with the World Anti-Doping Code. See Exs. L-P to Affidavit of Molly Tomlonovic (Doc. 33-6) (license applications). C. USADAs Charging Letters.

On June 12, 2012, USADA sent a letter to Mr. Armstrong and five other individuals, asserting that USADA was opening a single consolidated action against them for an alleged doping conspiracy. Ex. I to Tygart Aff. at 11. The letter alleges that Mr. Armstrong used banned substances during the period from before 1998 through 2005. Id. at 11. It alleges violations of the UCI ADR and the WADA Code. Id. at 5-6 n.2. It asserts, as alleged evidence in support of its charges, that Mr. Armstrongs urine sample results from the 2001 Tour of Switzerland (a UCI sanctioned event, see Herman Aff. 28) were indicative of EPO use, and that Mr. Armstrongs alleged doping is evidenced by the data from blood collections obtained by the UCI from Lance Armstrong in 2009 and 2010. Ex. I to Tygart Aff. at 11.

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USADA identified the source of its claimed jurisdiction in a section of the June 12 letter entitled USADA Results Management Authority. Id. at 12-13 (emphasis in original). It identified the UCI ADR as the only basis for its jurisdiction. Id. at 12. USADA claimed that it has results management authority [p]ursuant to the UCI ADR, citing UCI ADR Articles 10, 13, and 18. Id. It stated that pursuant to the UCI ADR, the results management and hearing process in such cases is to be administered and under the USADA Protocol. Id. at 13 (emphasis added). USADA attached copies of what appear to be every version of the UCI ADR from 1999 to 2012 to its letter. See Herman Aff. 2. It did not attach any document from USA Cycling or the U.S. Olympic Committee (USOC). Id. 3. Thus, it was USADAnot Mr. Armstrong that originally asserted that the UCI ADR governs the question of results management jurisdiction over the charges against Mr. Armstrong and the other five respondents. While USADA includes the June 12 letter as an exhibit to its motion, it does not include the attachments to the June 12 letter as exhibits or otherwise attach any version of the UCI ADR.2 D. Under the UCI ADR, UCI Has Exclusive Jurisdiction To Determine Whether To Pursue Charges Against Mr. Armstrong.

Despite USADAs exclusive reliance on the UCI ADR in its charging letters as the source of its claimed jurisdiction, USADA now asserts that its claims are not exclusively premised upon USADAs jurisdiction under the UCI ADR but [are] also founded upon . . . the rules of USADA, the USOC and USA Cycling . . . . Tygart Aff. 36; see also Mot. at 2 n.1. USADA is bound by its statements in its June 12 charging letterwhich contains the charges that USADA seeks to pursue and which it submitted to its Review Board. USADA cannot change the basis of its claimed jurisdiction after litigation has commenced, particularly where it USADAs June 12, 2012 letter is incorporated by reference in its June 28, 2012 charging letter. Ex. J to Tygart Aff. at 1. The June 28 letter does not separately address USADAs jurisdiction. It alleges substantive violations of the UCI ADR and the WADA Code. Id. at 2 n.1, 5-6. 5
2

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already has imposed sanctions against two of the six named respondents based on its June 12 and June 28 charging letters (and the UCI ADR). See Ex. 10 to Herman Aff. Even if, as USADA now claims, USA Cyclings rules are now a source of its claimed jurisdiction, those rules require USA Cycling to comply with, and where in conflict defer to, the rules and decisions of UCI. See Section A, supra. Under the Olympic Charter, USA Cycling also is bound by UCIs rules. See id. USADA, which asserts that it acts under authority delegated by USA Cycling, see Mot. at 11 n.40, is equally bound by the UCI ADR and UCIs decisions, and USA Cycling is required to ensure that USADA abides by those rules and decisions. See Ex. 22 to Herman Aff. (UCI Const.) Art. 6.1. Opinions of the Court of Arbitration for Sport (CAS), the tribunal which resolves disputes involving the Olympic Games and other international competitions, confirm that the rules and decisions of international federations such as UCI take precedence over those of national sports organizations.3 The UCI ADR provide unequivocally that UCI has exclusive jurisdiction over the charges USADA seeks to bring, for four independent reasons: (1) according to USADAs charging letters, the charges alleged against Mr. Armstrong involve samples collected by UCI; See CAS 98/192 UCI/S., Danmarks Cykle Union (DCU) and Danmarks Idraets-Forbund (DIF) (21 Oct. 1998) (UCIs anti-doping rules prevail over conflicting rules of Denmarks national cycling federation); CAS 2000/C/255 Comitato Olimpico Nazionale Italiano (CONI) (16 Jun. 2000) 11 ([T]he federations, as members of UCI, are obligated to comply with the Constitution and Regulations of UCI, as well as with all decisions taken in accordance therewith.); CAS 94/128 UCI/CONI 21 ([T]he IF[s] enjoy principal competence with regard to the fight against doping. It naturally follows that their rules prevail over those that may have been issued by [a national Olympic committee] or national sports authority (for example a [national federation])); CAS 97/169 M./Italian Cycling Federation (ICF) (15 May 1997) 5 ([I]n the event of a dispute, within the framework of an international competition, between UCI rules and those enacted by a National Olympic Committee (NOC) or by any other national athletic body, anti-doping rules issued by the International Federation prevail.), attached hereto as Exhibits 15-18 to the Herman Aff. Moreover, in UCI/ S., DCU and DIF, the CAS panel explicitly rejected the theory of parallel jurisdiction over doping that USADA now seeks to advance here. See Ex. 16 to Herman Aff. 13-17. 6
3

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(2) even if the charges did not involve UCI samples, UCI discovered the facts giving rise to the alleged anti-doping violations; (3) as a retired cyclist, the organization with results management jurisdiction over Mr. Armstrong at the time of the alleged violationsUCIhas exclusive jurisdiction; and (4) UCI has not authorized USADA to proceed with a disciplinary action. Accordingly, USADA lacks jurisdiction to bring the charges at issue against Mr. Armstrong, the UCI ADR govern, and the USADA Protocol does not apply. 1. UCI Has Exclusive Jurisdiction Because These Charges Involve Samples Collected by UCI.

USADAs June 12, 2012 charging letter, which is incorporated in full in its June 28, 2012 letter, asserts charges against Mr. Armstrong that involve samples collected by UCI. USADA alleges that Mr. Armstrongs urine sample results from the 2001 Tour of Switzerland were indicative of EPO use. Ex. I to Tygart Aff. at 11. It alleges that Mr. Armstrongs doping is further evidenced by the data from blood collections obtained by UCI from Lance Armstrong in 2009 and 2010. Id. USADA does not claim that it collected these samples or that these tests were anything but the exclusive domain of UCI, nor could it. Under the UCI ADR, UCI has exclusive jurisdiction over results management involving samples taken by UCI, which are governed exclusively by the UCI ADR. Ex. 23 to Herman Aff. (UCI ADR) Arts. 4, 8.4 USADA has no concurrent jurisdiction over such matters. The UCI ADR make clear that only UCI shall conduct results management where the UCI has jurisdiction for Testing or otherwise under these Anti-Doping rules. Id. Art. 202. UCI has exclusive results management jurisdiction, whether the sample tests positive or not. Id. Arts. 202-234. USADA has no jurisdiction over matters involving a sample taken by UCI unless and The UCI ADR and WADA Code define Sample as [a]ny biological material collected for the purposes of Doping Control. Id. Appx 1; Ex. B to Tygart Aff. Appx 1. Blood and urine samples clearly qualify. 7
4

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until UCI makes an assertion that an anti-doping violation has taken place and request[s] the National Federation of the License-Holder to instigate disciplinary proceedings. Id. Art. 234. In its June 12 letter, USADA cites UCI ADR Articles 10 and 13 as the basis for its claimed jurisdiction to proceed against Mr. Armstrong. Ex. I to Tygart Aff. at 6. But Article 10 of the UCI ADR only applies where no Sample collection is involved. Ex. 23 to Herman Aff. (UCI ADR) Art. 10. In cases like this, involving samples over which UCI has exclusive jurisdiction, [t]he UCI shall conduct results management, whether the sample is positive or not. Id. Art. 202-234. If a sample tests negative, UCI has exclusive jurisdiction to examine concrete elements indicating that an anti-doping violation may have been committed, and, [i]f upon conclusion of the results management process, the UCI considers that no anti-doping rule violation . . . has taken place, then the case shall be taken no further. Id. Arts. 229, 232. Accordingly, UCI has exclusive jurisdiction over the matters at issue, which are governed by the UCI ADR, not the Protocol. 2. Alternatively, UCI Has Exclusive Jurisdiction Because It Discovered the Alleged Violation.

The charges asserted by USADA involve UCI samples, and USADA has no jurisdiction to bring charges involving those samples. But even if the charges did not involve samples under UCIs exclusive jurisdiction, USADA still would lack jurisdiction because UCI discovered the alleged violations. Under UCI ADR Article 10, if UCI, one of its License-Holders, or a member Federation discovers evidence of an anti-doping rule violation, then UCI has jurisdiction and the UCI ADR shall apply. Ex. 23 to Herman Aff. (UCI ADR) Art. 10. Under UCI ADR Article 12, if evidence of an anti-doping violation is discovered by both UCI and another anti-doping organization, UCI retains jurisdiction over the decision whether the other organization may 8

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proceed. Id. Art. 12. Discovery is defined as the finding of elements that turn out to be evidence for facts that apparently constitute an anti-doping rule violation, regardless of the AntiDoping Organization who qualifies that evidence as such. Id. Here, UCI discovered evidence of the alleged violation when Floyd Landis, a former teammate of Mr. Armstrongs, sent an e-mail to the USA Cycling CEO accusing Mr. Armstrong and others of violating anti-doping rules. See Ex. 6 to Herman Aff. (Landis e-mail).5 USA Cycling is a member Federation of UCI, and Mr. Landis was a UCI License-Holder. See Herman Aff. 21, 31. Discovery by either USA Cycling or Mr. Landis of evidence of an alleged anti-doping violation is a discovery by UCI under UCI ADR 10. Under UCI ADR Article 12, UCI has jurisdiction to determine whether USADA may proceed, even if USADA opens results management or hearing process. Ex. 23 to Herman Aff. (UCI ADR) Art. 12. UCI may, but is not required to, leave the case to the Anti-Doping Organization concerned, but the decision is UCIs to make. Id. UCI cannot delegate authority to USADA to proceed in a matter in which UCI has jurisdiction unless and until UCI independently reviews the evidence and concludes that it is likely that a doping violation has occurred. See id. Art. 229; Art. 234 (UCI may delegate authority only if UCI determines that an anti-doping violation has taken place); Art. 232 (if UCI determines that no anti-doping violation has taken place, then the case shall go no further). Those requirements have not been satisfied here. To the contrary, UCI has requested the evidence in USADAs possession so that it can make the required determination, see Exs. 11 & 14 to Herman Aff., but to our knowledge USADA has not provided it to UCI.

By discussing by whom evidence of an alleged violation was discovered, Mr. Armstrong is not conceding that any violation, in fact, occurred or that the evidence is reliable or probative. 9

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3.

Alternatively, UCI Has Exclusive Jurisdiction Because Mr. Armstrong Is Retired from Cycling.

It is undisputed that Mr. Armstrong retired from competitive cycling in February 2011. See Ex. F to Tomlonovic Aff (Doc. 33-6). USADA sent its charging letter on June 12, 2012, more than a year after Mr. Armstrongs retirement from cycling. The UCI ADR provide that when a license-holder has retired before results management has commenced, the Anti-Doping Organization that would have had jurisdiction at the time of the alleged violation has jurisdiction over the matter. See Ex. 23 to Herman Aff. (UCI ADR) Art. 16. That organization is UCI. USADA claims that Mr. Armstrong violated doping rules during the period from before 1998 through 2005, and previously used EPO, testosterone and [HGH] through 1996. Ex. I to Tygart Aff. at 10-11. Prior to August 13, 2004, UCIs anti-doping rules provided that they alone applied to international events. See, e.g., Ex. 1 to Herman Aff. (1999 UCI ADR) Art. 4 (These Regulations and these alone shall apply to the events mentioned in Article 8. They shall be binding upon all National Federations which may neither deviate therefrom nor add thereto.). As of July 2001, the UCI Regulations provided that, in addition to applying to international events, they alone applied to all aspects of antidoping controls in national events and to out of competition tests by the national federations, as well as out of competition tests by the UCI. Ex. 3 to Herman Aff. (July 2001 UCI ADR) Art. 2. Similarly, Mr. Armstrongs pre-2004 UCI license applications made no reference to USADA. See Herman Aff. 27. Indeed, USADA did not even exist before 2000. See Mot. at 4. USADA has not identified any specific alleged conduct by Mr. Armstrong after August 13, 2004 that constitutes an alleged doping violation. For this reason as well, USADA lacks jurisdiction over the charges against Mr. Armstrong.

10

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4.

UCI Has Asserted Jurisdiction over the Matter and Directed USADA Not to Proceed.

Finally, USADA has no authority to proceed because UCI has asserted its jurisdiction over the matters in USADAs charging letter and directed USADA not to proceed further. On July 13, 2012, UCI wrote to USADA and asserted UCIs jurisdiction over this matter. Ex. 11 to Herman Aff. UCI confirmed that it has authority for results management with respect to the matter, which, inter alia, involves UCI tests over which UCI is the only test results management authority. Id. at 1. UCI instructed USADA to send UCI its complete file, so that UCI may submit the file to an independent panel for review. Id. at 2. UCI further instructed USADA to refrain[] from proceeding with the disciplinary actions pending review of the file by the independent panel. Id. at 3. USADA did not provide UCIs July 13, 2012 letter to the Court with its motion; nor does it address the letter in its motion to dismiss. On August 3, 2012, UCI again wrote to USADA, reiterated its exclusive jurisdiction over the matter, and informed USADA that it had no authority to proceed. See Ex. 14 to Herman Aff. The UCI Constitution requires USA Cycling to abide by UCIs decisions and ensure that they are complied with by all persons concerned, including USADA. Ex. 22 to Herman Aff. Art. 6.1. Similarly, under the UCI ADR, USADA cannot proceed in a matter within UCIs results management jurisdiction unless and until UCI makes an assertion that an anti-doping rule violation has taken place. Ex. 23 to Herman Aff. Art. 234; see also id. Art. 249. If UCI were to decide that no anti-doping violation has taken place after review by an independent panel, USADA would have the right under the UCI ADR either to ask UCI to reopen the case or to appeal UCIs decision to CAS. Id. Arts. 233, 329. USADA does not, however, have the right or authority to disregard UCIs directive that it proceed no further pending UCIs review of the matter. Yet that is precisely what USADA seeks to do here. See Exs. 11, 13 to Herman Aff. 11

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E.

UCI also Has Exclusive Jurisdiction in this Matter Under the WADA Code.

Mr. Armstrongs license applications as of 2005 state that he is bound by the UCI ADR, WADA Code, and USADA regulations provided such regulations comply with the World AntiDoping Code. See Exs. LP to Tomlonovic Aff. USADA is bound by the WADA Code as a signatory. See Herman Aff. 20. The WADA Code establishes rules of precedence that govern which entity has results management jurisdiction in a particular case. See Ex. B to Tygart Aff. Art. 15 cmt. Under the WADA Code, UCI has exclusive jurisdiction because: (1) UCI initiated and directed the collection of the samples cited in USADAs charging letter; (2) UCI discovered evidence of the alleged violation; and (3) Mr. Armstrong is retired and UCI had jurisdiction during the time frame of the alleged violations. The WADA Code provides: [O]nly a single organization should be responsible for initiating and directing Testing during the Event Period. At International Events, the collection of Doping Control Samples shall be initiated and directed by the international organization which is the ruling body for the Event [i.e. UCI for cycling]. Except as provided in Article 15.3.1 below, results management and hearings shall be the responsibility of and shall be governed by the procedural rules of the Anti-Doping Organization that initiated and directed Sample collection [or, if no Sample collection is involved, the organization which discovered the violation]. Id. Arts. 15.1, 15.3 (emphases added). UCI initiated the collection of the samples addressed in USADAs charging letters. See supra Section D.1. USADAs June 12, 2012 letter specifically acknowledges that the 2009 and 2010 samples were taken by UCI. Ex. I to Tygart Aff. at 11. As a result, results management and hearings, Ex. B to Tygart Aff. Art. 15.3, are UCIs responsibility and governed by UCI rules. Even if the charges did not involve samples, UCI discovered the violation, as discussed above, and has exclusive jurisdiction over the matter. Finally, because Mr. Armstrong retired from cycling in 2011, the anti-doping organization that would have had results management authority at the time the Athlete . . . committed an 12

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[alleged] anti-doping rule violation, has jurisdiction to conduct results management. Id. Art. 7.6. That organization, as discussed above, is UCI. F. USADA Has No Jurisdiction To Bring a Consolidated Action Against Six People Under a Conspiracy Theory.

USADA also lacks authority to bring the consolidated conspiracy charge in its charging letters. It seeks to charge six individuals in a single consolidated action for their alleged participation in a world-wide doping conspiracy from January 1, 1998, through the present. Ex. I to Tygart Aff. at 11. As UCI made clear in its most recent letter to USADA asserting UCIs exclusive jurisdiction over this matter, UCI rules do not recognize the existence of an antidoping violation for participation in an alleged doping conspiracy. See Ex. 14 to Herman Aff. at 4. Nor do they permit a consolidated action against multiple individuals. The WADA Code (and the Protocol, if it applied) also do not recognize a consolidated doping conspiracy action (or any consolidated action) against multiple respondents. For this additional reason, USADA lacks authority to proceed with its consolidated charges. G. The 2005 Tygart Affidavit Has No Bearing on USADAs Jurisdiction.

USADA attaches to its motion an affidavit that Mr. Tygart provided in a 2005 arbitration involving Mr. Armstrong and SCA Promotions, Inc. See Ex. E to Tygart Aff. That affidavit does not reflect any acknowledgement by Mr. Armstrong that USADA has jurisdiction in this matter. An issue in the 2005 arbitration was whether USADA had effective drug testing policies and results management. Mr. Tygart confirmed that USADA tested Mr. Armstrong as part of its drug testing pool, a fact Mr. Armstrong has never disputed. See id. at 2-3. The affidavit confirmed that Mr. Armstrong passed every test taken by USADA. See id. at 3-4. It does not address whether USADA has jurisdiction in this matter, which involves samples taken by UCI at UCI sanctioned events and outside of competition. 13

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ARGUMENT I. THE SPORTS ACT DOES NOT APPLY TO MR. ARMSTRONGS CLAIMS. USADA contends that this Court lacks jurisdiction over Mr. Armstrongs claims because the Sports Act preempts them and requires arbitration. See Mot. at 9-11. By its clear and unambiguous terms, however, the Sports Act applies only to amateur athletes and certain amateur athletic competitions. Mr. Armstrong is not an amateur athlete; nor are the professional international cycling competitions at issue here (e.g., the Tour de France and Tour of Switzerland) covered by the Act. Moreover, the Sports Act only requires arbitration with NGBs, and USADA is not an NGB. Accordingly, the Act does not preempt Mr. Armstrongs claims. It is axiomatic that, where statutory language is unambiguous, it should be enforced according it to its plain terms. See In re Camp, 631 F.3d 757, 759 (5th Cir. 2011) (When the statutes language is plain, the sole function of the courtsat least where the disposition required by the text is not absurdis to enforce it according to its terms.) (brackets & quotations omitted).6 Here, the plain language of the Act demonstrates that it has no application to Mr. Armstrongs claims. The Sports Act requires arbitration only of controversies involving NGBs and the opportunity of any amateur athlete . . . to participate in amateur athletic competition, upon demand of the corporation or any aggrieved amateur athlete. 36 U.S.C. 220522(a)(4) (emphases added). Mr. Armstrong is not an amateur athlete, and his claims before this Court do not involve his eligibility to compete in amateur competition.7

Statements in affidavits by individuals who are not members of Congress are irrelevant in determining the meaning of a statute. See Occidental Chem. Corp. v. Power Auth. of N.Y., 786 F. Supp. 316, 329 (W.D.N.Y. 1992), affd, 990 F.2d 726 (2d Cir. 1993); see also Kelly v. Robinson, 479 U.S. 36, 51 n.13 (1986) (giving no weight to statements not made by members of Congress and not in House or Senate reports). In ruling on a motion to dismiss under Rule 12(b)(1), the Court must draw all reasonable inferences in the plaintiffs favor and should dismiss the complaint only where it appears certain 14
7

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USADA contends that the Sports Act established arbitration as the exclusive forum for disputes relating to athlete eligibility in sports that are part of the Olympic movement, and that, as a member of USA Cycling, Lance Armstrong is subject to this mandatory dispute resolution framework. Mot. at 1. But the dispute resolution framework of the Sports Act only requires the USOC to establish and maintain provisions in its constitution and bylaws for the swift and equitable resolution of disputes involving any of its members [i.e., NGBs8] and relating to the opportunity of an amateur athlete . . . to participate in the Olympic Games, the Paralympic Games, the Pan-American Games, world championship competition, or other protected competition as defined by the constitution and bylaws of the corporation [the USOC]. 36 U.S.C. 220509(a) (emphases added). The Sports Act arbitration provision has no application here because USADA is attempting to strip Mr. Armstrong, a professional athlete, of his eligibility to compete in professional athletic competitions not covered by the Act. First, the Sports Act does not apply because USADA is seeking to invalidate Mr. Armstrongs professional cycling achievements. This is confirmed by its June 12 letter, which references professional cycling teams of which Mr. Armstrong was a member. See Ex. I to Tygart Aff. at 1. Professional cycling races like the Tour de France are not part of the Olympic, Paralympic, or Pan-American Games, or any world championship covered by the Sports Act. See Herman Aff. 29. They are not protected competitions under the USOC Bylaws, which are defined as amateur athletic competition[s] in which the NGB conducts the tryouts or

that the plaintiff[] cannot prove any set of facts in support of [his] claim which would entitle [him] to relief. Saraw Pship v. United States, 67 F.3d 567, 569 (5th Cir. 1995) (quotations omitted). To the extent factual issues must be resolved to determine the Courts subject matter jurisdiction, Mr. Armstrong respectfully requests an evidentiary hearing to address them. See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996).
8

Although member is not expressly defined in the Act, it is clear that members are NGBs. 15

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selection process to decide who will represent the United States. See Ex. 21 to Herman Aff. (USOC Bylaws 1.3(w) (Sept. 24, 2011)); Herman Aff. 29. The same is true with respect to World Triathlon Corporation (WTC) professional division competitions, which are professional events. Id. 33. Indeed, USADA does not even attempt to argue that professional cycling races like the Tour de France or professional WTC triathlons are protected competitions under the USOC Bylaws or the Sports Act. Because USADAs charges are aimed at Mr. Armstrongs retroactive eligibility to compete in professional cycling competitions and his prospective eligibility to compete in professional triathlons, they are outside the scope of the Act. See ChampionsWorld, LLC v. U.S. Soccer Fedn, Inc., 726 F. Supp. 2d 961, 966-70 (N.D. Ill. 2010) (holding that soccer NGB lacked jurisdiction over professional soccer in the United States, except to the extent necessary to regulate players participation in Olympics and other protected competitions). Second, Mr. Armstrong is not an amateur athlete for purposes of the Sports Act. USADA argues that, despite having earned more prize money and endorsement income than nearly any other competitor in sport during his professional career, Mr. Armstrong is, in fact, an amateur athlete because any athlete who participates in a sport that is featured in the Olympic Games is an amateur athlete under the Act. Mot. at 4. USADA does not provide any support for its interpretation of the Act, which would lead to absurd results and has been explicitly rejected. See ChampionsWorld, 726 F. Supp. 2d at 967.9 Under UCI and USA Cycling rules, Mr. Armstrong was a professional cyclist and a member of professional cycling teams. See For example, according to USADAs interpretation, the Act would require every NBA player to arbitrate before AAA any dispute concerning his eligibility to play professional basketball, even after retirement, simply because basketball is an Olympic sport. It is extremely difficult to conclude from a reading of the plain text of the [Act] or its legislative history that Congress intended such a result. ChampionsWorld, 726 F. Supp. 2d at 967. 16
9

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Herman Aff. 29. USADAs claimed authority to regulate professional athletes and events here is even less persuasive than the claim rejected in ChampionsWorld because USADAs claims involve professional competitions outside of the United States (e.g., the Tour de France). Third, the Act only requires arbitration of disputes against NGBs. See 36 U.S.C. 220509(a); 36 U.S.C. 220522(a)(4). It makes no reference to USADA or national anti-doping organizations. Congress amended the Act in 2006six years after the creation of USADAbut did not add any reference to USADA. See Pub. L. No. 109-284, 120 Stat. 1211 (2006). USADA acknowledges that all but one of the preemption cases it cites do not involve USADA. See Mot. 9-11. In the only preemption case it cites that actually involved USADA, Graham v. U.S. AntiDoping Agency, No. 5:10-CV-194-F, 2011 WL 1261321 (E.D.N.C. Mar. 31, 2011), the pro se plaintiff sought to compel arbitration with USADA, not preclude it. Id. at *5. II. EVEN IF THE SPORTS ACT APPLIED, IT WOULD NOT PREEMPT MR. ARMSTRONGS CLAIMS. Even if USADA could somehow showcontrary to the statutes plain termsthat the Sports Act applies to a dispute between USADA and Mr. Armstrong, the Act only preempts claims concerning eligibility to compete in certain competitions. Mr. Armstrong is not asking the Court to rule on whether he is eligible to compete in any protected competition. Rather, he brings common law and Fifth Amendment due process challenges to USADAs ultra vires actions. Accordingly, the Sports Act would not preempt his claims even if it applied. Courts should be reluctant to infer pre-emption. See Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993). There is a presumption against pre-emption, Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 522 (1992), and courts require clear and manifest Congressional intent, English v. Gen.

17

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Elec. Co., 496 U.S. 72, 79 (1990) (quotations omitted), to preempt in the absence of explicit statutory language, id. Mr. Armstrong asserts a common law due process claim based on USADAs disregard of the applicable rules by bringing charges that are clearly outside its jurisdiction and that UCI has not authorized USADA to pursue. Federal courts may preclude private entities from violating governing rules or imposing arbitrary and unreasonable disciplinary procedures when valuable property interests are at stake. See Hatley v. Am. Quarter Horse Assn, 552 F.2d 646, 655-56 (5th Cir. 1977) (applying Texas law).10 Courts developed the right to common law due process as a check on organizations that exercise significant authority in areas of public concern such as . . . professional licensing. Thomas M. Cooley Law Sch. v. Am. Bar Assn, 459 F.3d 705, 712 (6th Cir. 2006). Thus, the Court has jurisdiction to review USADAs conduct in order to ensure that it follows the applicable rules. This principle has been recognized in the context of the Olympic Games as well. See Harding v. U.S. Figure Skating Assn, 851 F. Supp. 1476, 1479 (D. Or. 1994), vacated on other grounds, 879 F. Supp. 1053 (D. Or. 1995); Lee v. U.S. Taekwondo Union, 331 F. Supp. 2d 1252, 1257-58 (D. Haw. 2004); Abdallah v. U.S. Assn of Taekwondo, Inc., No. H-07-2880, 2007 WL 2710489, at *2 (S.D. Tex. Sept. 14, 2007). The decisions on which USADA relies also recognize this basic principle. Slaney v. Intl Amateur Athletic Fedn, 244 F.3d 580, 595 (7th Cir. 2001) (While there is no dispute that the USOC has exclusive jurisdiction when it comes to eligibility determinations, the courts can still play a role in ensuring that the organization follows its own rules for determining eligibility); Graham, 2011 WL 1261321, at *6 (court has a limited role in ensuring that the amateur sports organizations follow their own rules . . . .). Mr. Armstrong contends that USADA is a state actor. But even if it is not, Mr. Armstrong has a common law due process claim against USADA. 18
10

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Harding involved a challenge by Tonya Harding to the conduct of the United States Figure Skating Association (USFSA), the NGB for figure skating. She sought to enjoin a disciplinary proceeding initiated against her by USFSA regarding her eligibility to compete in the Olympics on the basis that it would violate USFSAs bylaws. While cautioning that courts should be hesitant to intervene in such matters, the court recognized that judicial intervention is warranted where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all internal remedies. 851 F. Supp. at 1479. [I]njunctive relief is limited to correcting the breach of the rules and courts should not intervene in the merits of the underlying dispute. Id. Here, as discussed in the Background section supra, USADA is violating the applicable rules in pursuing the charges it has asserted against Mr. Armstrong and has no jurisdiction to proceed under the governing rules. Mr. Armstrong seeks only to enforce the governing rules of UCI (and the WADA Code) and to require USADA to abide by those rules. USADAs breach of the governing rules will imminently result in serious and irreparable harm to Mr. Armstrong.11 As discussed in Section III, infra, he has exhausted his internal remedies short of submitting to the very USADA proceeding that violates his due process rights, which he is not required to do. This is not a case like Slaney (Mot. at 10), where [e]xamination of any of [Slaneys] claims would require an Article III court to examine as an underlying issue the validity of [a drug test], an endeavor [a court] cannot partake in, 244 F.3d at 596, or Barnes v. International Amateur Athletic Federation (Mot. at 10), where the essence of the relief sought by plaintiff . . .
11

USADA has not alleged that Mr. Armstrong has failed to plead adequately that USADA has breached the governing rules or that that breach will imminently result in serious and irreparable harm to Mr. Armstrong. Among other things, a deprivation of procedural due process is in itself irreparable injury. Associated Builders & Contractors of Tex. Gulf Coast, Inc. v. U.S. Dept. of Energy, 451 F. Supp. 281, 286 (S.D. Tex. 1978). USADAs action also has caused Mr. Armstrong to be suspended from competing in professional WTC events. See Herman Aff. 18. 19

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centered on his eligibility to compete. 862 F. Supp. 1537, 1545 (S.D. W. Va. 1993). Mr. Armstrong asks the Court only to enforce the governing rules concerning USADAs lack of authority to proceed and to enjoin USADA from violating those rules. He does not ask the Court to address the merits of USADAs charges or adjudicate his eligibility to compete. The Court has jurisdiction to consider Mr. Armstrongs claims, even if it were to conclude that the Sports Act applies. USADAs preemption argument also should be rejected because Mr. Armstrongs claims cannot be preempted under Article III of the Constitution. When a statute is susceptible of more than one reasonable construction, courts should choose an interpretation that avoids constitutional concerns. See Jones v. United States, 526 U.S. 227, 239 (1999). Generally, Congress may not, without violating Article III, withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law. Stern v. Marshall, 131 S. Ct. 2594, 2609 (quotation omitted), rehg denied, 132 S. Ct. 56 (2011). Mr. Armstrongs common law due process and tortious interference claims, which do not seek adjudication of his eligibility to compete, must be adjudicated by an Article III court. In addition, where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. Webster v. Doe, 486 U.S. 592, 603 (1988). The Sports Act reflects no clear intent to preclude judicial review of a constitutional due process challenge to USADAs unauthorized acts. III. MR. ARMSTRONG IS NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES. USADA contends that Mr. Armstrongs claims should be dismissed because he has failed to exhaust administrative remedies. See Mot. at 11-13. Because the Sports Act does not apply to this case, Mr. Armstrong is not required to exhaust administrative remedies. But even if the Act applies, the Court has jurisdiction to consider Mr. Armstrongs claims under the Harding line of 20

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authority discussed above, and Mr. Armstrong is not required to engage in an arbitration proceeding concerning matters over which USADA lacks authority before the Court can enjoin USADA from violating the governing rules. The administrative remedy that USADA claims Mr. Armstrong is required to exhaust is the very proceeding that he is challenging through this lawsuit. See Mot. at 12. Mr. Armstrong is not required to participate in a proceeding over which USADA lacks jurisdiction in order for this Court to address USADAs jurisdiction. See Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978) ([W]hen there is an absence of jurisdiction in an administrative agency, then the doctrine of exhaustion of administrative remedies is not applicable.); see also Gulf Restoration Network, Inc. v. Salazar, 683 F.3d 158, 176 (5th Cir. 2012) (Traditional circumstances in which courts have excused a claimants failure to exhaust administrative remedies include situations in which . . . the adequacy of the administrative remedy is essentially coextensive with the merits of the claim (e.g., the claimant contends that the administrative process itself is unlawful . . . .)) (quotations omitted); cf. Athlone Indus. v. Consumer Prod. Safety Commn, 707 F.2d 1485, 1486, 1488-90 (D.C. Cir. 1983) (exhaustion not required before court could address whether commission had statutory authority to assess civil penalties).12 If Mr. Armstrong were to submit to USADAs disciplinary proceeding, he would open himself up to the argument that he had waived his right to challenge USADAs jurisdiction. He also could lose the ability to challenge the outcome of the proceeding in court, because the arbitration decision would be appealed to CAS, see UCI ADR (Ex. 23 to Herman Aff.) Arts. 329-330; USADA Protocol (Ex. C to Tygart Aff.), Art. 15(b), and at least one district court has
12

Mr. Armstrong has exhausted all remedies short of participating in the very proceeding that he is challenging. He responded to USADAs June 12, 2012 charging letter. While expressly reserving his rights, he challenged USADAs jurisdiction to proceed. See Ex. 7 to Herman Aff. 21

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held that it was bound by a CAS decision, even where the athlete was wronged by the actions of USADA. See Gatlin v. U.S. Anti-Doping Agency, No. 3:08-cv-241, 2008 WL 2567657, at *1 (N.D. Fla. June 24, 2008) (concluding that CAS decision could not be relitigated in court). Mr. Armstrong also is not required to participate in the USADA proceeding before seeking judicial intervention because he has challenged the constitutionality of that proceeding. See Gulf Restoration, 683 F.3d at 176; Garner v. U.S. Dept of Labor, 221 F.3d 822, 825 (5th Cir. 2000) (plaintiff excused from exhausting administrative remedies where he advance[d] a constitutional challenge unsuitable for determination in an administrative proceeding). Finally, there is no requirement to exhaust administrative remedies because Mr. Armstrong will suffer irreparable injury if the Court does not enjoin USADA from proceeding. See p. 19 & n.11, supra; Gulf Restoration, 683 F.3d at 176 (A court may also excuse the failure to exhaust where irreparable injury will result absent immediate judicial review.) (quotations omitted). Accordingly, the Court has jurisdiction to consider Mr. Armstrongs claims.13 IV. MR. ARMSTRONG DID NOT AGREE TO ARBITRATE HIS CLAIMS AGAINST USADA. USADAs final contention, that the Court should stay or dismiss this action pending arbitration in the event it is not preempted by the Sports Act, also is erroneous. Mr. Armstrong never contractually agreed to arbitrate the charges USADA has asserted or claims relating to those charges. The USADA Protocol has no application here because the UCI ADR and the WADA Code are the governing rules and the charges USADA seeks to assert are within UCIs exclusive jurisdiction. At a minimum, there is a material factual dispute concerning whether any
13

USADA also contends that Mr. Armstrongs due process claim fails on the merits. See Mot. at 13. But the Courts jurisdiction does not turn on whether Mr. Armstrong will prevail on the merits of his well-pled claim. See Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 89 (1998). Accordingly, Mr. Armstrong will not address merits issues here. 22

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agreement to arbitrate exists, requiring a jury trial under the Federal Arbitration Act, 9 U.S.C. 4 (FAA). Mr. Armstrong respectfully requests a jury trial concerning this matter. A. USADA Has the Burden of Proving an Agreement to Arbitrate the Matters at Issue.

One of the basic principles of the FAA is that arbitration is a matter of consent, not coercion. Stolt-Nielsen S.A. v. AnimalFeeds Intl Corp., 130 S. Ct. 1758, 1773 (2010) (quotations omitted). [A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960). The question whether a binding arbitration agreement exists is for the Court to decide. See Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 219 (5th Cir. 2003). Similarly, the Court determines whether an arbitration clause encompasses a particular dispute. See AT&T Techs., Inc. v. Commcns Workers of Am., 475 U.S. 643, 649 (1986). The party seeking to enforce an arbitration agreement bears the burden of showing that the agreement exists and that its terms bind the other party. Alvarez v. T-Mobile USA, Inc., No. 2:10-2373 WBS GGH, 2011 WL 6702424, at *8 (E.D. Cal. Dec. 21, 2011). When the party opposed to arbitration does so on the ground that no binding agreement to arbitrate exists, the district court should give the opposing party the benefit of all reasonable doubts and inferences that may arise. Id. If the making of the arbitration agreement . . . [is] in issue, the court shall proceed summarily to the trial thereof. 9 U.S.C. 4. Where such an issue is raised, the party alleged to be in default may . . . demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. Id.

23

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B.

USADA Has Not Established any Contractual Agreement by Mr. Armstrong To Arbitrate Either USADAs Charges or the Claims in the Complaint.

Mr. Armstrong never signed an arbitration agreement with USADA. USADA asserts that Mr. Armstrong nevertheless agreed to be bound by the USADA Protocol [b]y virtue of his membership in USA Cycling, his obtaining an annual license through USA Cycling, and his inclusion in the USADA RTP [registered testing pool]. Mot. at 5. But the Protocol has no application to Mr. Armstrongs claims, which involve matters governed by the UCI ADR under which Mr. Armstrong has no obligation to arbitrate with USADA and its unauthorized charges are a nullity. Mr. Armstrongs annual license[s] do not establish that the Protocol applies to this case. The annual licenses on which USADA relies are Mr. Armstrongs international cycling license applications. See Herman Aff. 26. In those applications in and after 2005, Mr. Armstrong agreed to comply with and to be bound by the UCI anti-doping regulations, the World Anti-Doping Code and its International Standards to which the UCI anti-doping regulations refer as well as the anti-doping regulations of other competent instances as foreseen by the UCI Regulations, the World Anti-Doping Code, or the U.S. Anti-Doping Agency (USADA), provided such regulations comply with the World Anti-Doping Code. Exs. L-P to Tomlonovic Aff. (emphasis added). Mr. Armstrong did not agree to participate in an arbitration with USADA that violates the UCI ADR or the WADA Code. As discussed supra, USADAs charges against Mr. Armstrong exceed its authority the governing rules, and its Protocol has no application here. Nor did Mr. Armstrong entered into any agreement to participate in a consolidated arbitration proceeding involving a conspiracy charge against six respondents that finds no support in the UCI ADR, the WADA Code, or USADAs Protocol (which does not apply in any event). See Background Section F, supra. Thus, Mr. Armstrong is not under any 24

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contractual obligation to arbitrate USADAs charges, or any claims relating to those charges, with USADA. This is not a case like Coenen v. R.W. Pressprich & Co., 453 F.2d 1209 (2d Cir. 1972). Mot. at 15. Coenen signed a pledge, in his application for membership, that he would abide by the Constitution of the stock exchange, which provided for mandatory arbitration of his claims. 453 F.2d at 1211. Mr. Armstrongs license applications in and after 2004 only required him to abide by UCI Regulations, the WADA Code, and other regulations consistent with the WADA Code. Mr. Armstrong never agreed to arbitrate charges brought by USADA that violate the WADA Code and are outside USADAs jurisdiction under the governing rules. Nor did he agree to arbitrate his due process and tortious interference claims against USADA.14 The fact that USA Cycling deemed Mr. Armstrong a member of USA Cycling by virtue of his UCI license applications, and Mr. Armstrongs inclusion in the USADA RTP, do not demonstrate that Mr. Armstrong agreed to arbitrate the matters in question with USADA. While USA Cycling has adopted the USADA Protocol, the Protocol does not exist in isolation. Both USA Cycling and USADA are required to abide by UCI rules and decisions and the WADA Code, which take precedence over any contrary rule or regulation of USA Cycling or USADA. See Background Sections A, D, E, supra. The Protocol only applies where USADA has
14

The remaining cases cited by USADA also are inapposite. Netumar Lines v. General Cocoa Co., No. 96 CIV 0136, 1997 WL 401668 (S.D.N.Y. July 16, 1997), involved a member of an association whose bylaws contained an express arbitration clause. Here, Mr. Armstrongs UCI license does not require him to arbitrate with USADA matters over which it lacks jurisdiction. Stolow v. Greg Manning Auctions, Inc., 258 F. Supp. 2d 236 (S.D.N.Y. 2003), affd, 80 F. Appx 722 (2d Cir. 2003), did not address a motion to compel arbitration. To the extent it refers to bylaws, the USA Cycling bylaws and UCI Constitution require USADA to comply with UCI rules and decisions. Finally, Jacobs v. USA Track & Field, 374 F.3d 85 (2d Cir. 2004), involved a urine sample taken by USADA, which was within USADAs jurisdiction. Jacobs did not address a matter over which the international federation has exclusive jurisdiction under the governing rules, and Jacobs consented to arbitrate with USADA. 25

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jurisdiction to proceed. It cannot confer on USADA jurisdiction that it does not have under the governing UCI ADR and the WADA Code. The Protocol also has no application because UCI has not authorized USADA to institute any disciplinary action. Indeed, UCI has specifically directed USADA not to proceed. See Exs. 11 & 14 to Herman Aff. Under UCI ADR Article 234, USADA may proceed only [i]f upon conclusion of the results management process, the UCI makes an assertion that an anti-doping rule violation has taken place and requests USADA to instigate disciplinary proceedings. Ex. 23 to Herman Aff. Art. 234. That indisputably has not happened here. To the contrary, UCI has expressly directed USADA not to proceed because UCI has not yet made a determination about whether any disciplinary action should be brought. Exs. 11 & 14 to Herman Aff. Under the plain language of the [UCI ADR], any requirement that Mr. Armstrong arbitrate with USADA is not triggered unless and until UCI authorizes USADA to bring a disciplinary action. HIM Portland, LLC v. Devito Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003) (affirming denial of motion to compel arbitration where the parties intended that the duty to arbitrate would not ripen until after the condition precedent of mediation had been satisfied); see also Perdue Farms, Inc. v. Design Build Contracting Corp., 263 F. Appx. 380, 383 (4th Cir. 2008) (unpublished) (Where a condition precedent to arbitration is not fulfilled, a party to a contract does not have a right to arbitration.); In re Pisces Foods, LLC, 228 S.W.3d 349, 353-54 (Tex. App. 2007) (arbitration not required where mediation was contractual prerequisite to arbitration).15

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The fact that UCI has not authorized USADA to proceed (and has directed it not to proceed) is a substantive bar to USADAs authority to pursue charges against Mr. Armstrong or compel arbitration. It is a matter for the Court because it concerns whether the parties are obligated to submit the subject matter of [the] dispute to arbitration. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964). Even if it were procedural, however, it is still for the Court to decide 26

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Mr. Armstrongs membership in USA Triathlon is not relevant to whether he is contractually required to arbitrate with USADA in this case. The charges USADA seeks to bring have nothing to do with Mr. Armstrongs participation in WTC events sanctioned by USA Triathlon; instead, they are limited to Mr. Armstrongs professional cycling competitions. Even if USADA would have jurisdiction over samples taken by USADA in connection with a WTC event, USADA has no jurisdiction over (and the Protocol does not apply to) the matters in USADAs charging letters, which are governed by the UCI ADR. In sum, the USADA Protocol has no application to this case, which involves matters within UCIs exclusive jurisdiction governed by the UCI ADR. At a minimum, there are material factual disputes concerning these issues, which require a jury trial before the Court decides the motion to compel arbitration. C. USADA Has Not Met Its Burden of Demonstrating that Mr. Armstrong Agreed To Arbitrate the Question of Arbitrability.

USADAs contention that the Court lacks authority to determine the threshold question whether Mr. Armstrong is required to arbitrate because the parties agreed to arbitrate the issue of arbitrability, Mot. at 16, is erroneous. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. AT&T Techs., Inc., 475 U.S. at 649. Indeed, the law creates a presumption that the parties did not agree to submit any question as to the arbitrators own power to that very because it precludes any requirement to arbitrate USADAs ultra vires charges. See id. at 558 (court may deny arbitration on procedural ground that would bar arbitration altogether); Gen. Warehousemen & Helpers Union Local 767 v. Albertsons Distribution, Inc., 331 F.3d 485, 488 (5th Cir. 2003) ([A] court will not order arbitration if no rational mind could question that the parties intended for a procedural provision to preclude arbitration and that the breach of the procedural requirement was clear.) (quotations omitted); Allen v. Apollo Grp., Inc., No. H-043041, 2004 U.S. Dist. LEXIS 26750, at *24-27, 32 (S.D. Tex. Nov. 9, 2004) (where parties failed to follow grievance procedure that was contractual prerequisite to arbitration, matter was for court to decide even if it was procedural; denying motion to compel arbitration). 27

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same arbitrator. GMC v. Pamela Equities Corp., 146 F.3d 242, 248 (5th Cir. 1998). USADA has the burden of demonstrating clearly and unmistakably, Radiant Sys., Inc. v. Am. Scheduling, Inc., No. 3:04-CV-2597-P, 2005 WL 2105953, at *2 (N.D. Tex. Aug. 31, 2005), that Mr. Armstrong agreed to arbitrate that threshold issue. It has failed to do so. USADA relies on the Protocol, which incorporates certain AAA Rules, to assert that Mr. Armstrong has agreed to allow arbitrators to determine arbitrability. Mot. at 16. But the AAA Rules apply only if the Protocol governs. The question whether the Protocol has any application here is a threshold matter for the Court to address in determining whether Mr. Armstrong has any agreement to arbitrate with USADA. As discussed supra, Mr. Armstrong agreed to be bound by the Protocol only to the extent that it is consistent with the governing UCI ADR and the WADA Code, which take precedence over the Protocol. Under the governing rules, UCI has exclusive jurisdiction over this matter, the UCI ADR apply, USADA has no authority to proceed, UCI has twice directed USADA not to proceed, and the Protocol and AAA Rules have no application. Accordingly, there is no contractual requirement that Mr. Armstrong arbitrate arbitrability. CONCLUSION For the foregoing reasons, Mr. Armstrong respectfully requests that the Court deny the motion to dismiss. Respectfully submitted, /s/ Timothy J. Herman Timothy J. Herman (Bar No. 09513700) Sean E. Breen (Bar No. 00783715) HOWRY BREEN & HERMAN LLP 1900 Pearl Street Austin, Texas 78705 Phone: (512) 474-7300 Fax: (512) 474-8557 therman@howrybreen.com

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Mark S. Levinstein (admitted pro hac vice) Marcie R. Ziegler (admitted pro hac vice) Ana C. Reyes (admitted pro hac vice) WILLIAMS & CONNOLLY LLP 725 12th St., NW Washington, DC 20005 Phone: (202) 434-5000 Fax: (202) 434-5029 mlevinstein@wc.com Robert D. Luskin (admitted pro hac vice) Patrick J. Slevin (admitted pro hac vice) PATTON BOGGS LLP 2550 M Street, NW Washington, DC 20037 Phone: (202) 457-6000 Fax: (202) 457-6315 rluskin@pattonboggs.com Attorneys for Plaintiff Lance Armstrong Date: August 3, 2012

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CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of August, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: John J. McKetta, III Matthew C. Powers GRAVES, DOUGHERTY, HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, TX 78767-0098 mmcketta@gdhm.com mpowers@gdhmcom William Bock, III KROGER, GARDIS & REGAS 111 Monument Circle, Suite 900 Indianapolis, IN 46204-5125 wb@kgrlaw.com Richard R. Young Brent E. Rychener BRYAN CAVE HRO 90 South Cascade Avenue, Suite #1300 Colorado Springs, Colorado 80903 richard.young@bryancave.com brent.rychener@bryancave.com /s/ Timothy J. Herman Timothy J. Herman

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