We have been following with immense interest all developments relevant to USADA's decision to commence fresh proceedings against Lance Armstrong. Several questions are now being asked as to the necessity and indeed, the timing for initiating such proceedings. Most of the arguments, no doubt, would focus around the moral and jurisprudential fabric of such case. We would only look at the evidence and its probity.
In such cases, video/audio evidence usually carries better weight than other non-direct evidence and the CAS jurisprudence is extremely useful on this point. USADA is now suggesting the use of testimonies regarding people who were in direct contact with Lance Armstrong. Such people would testify against Armstrong and it remains to be seen what their testimony would be. In exchange, USADA would offer reduced [or may waive] sanctions for those who would come forward to give evidence.
Such testimonies would of course be open to severe and strenuous cross-examination. The character of those testifying, the probity of their evidence and their credibility would all be questioned. In the absence of any positive results, such testimonies would be open to attack from Armstrong's legal team. Experience suggests that such evidence may not be good enough to secure the allegations.
The standard of proof in these disciplinary matters is different to what we are used to in normal courts of law. CAS jurisprudence suggests that the usual standard in sporting disciplinary matters resides below the criminal standard [beyond reasonable doubt] and above the civil standard [on the balance of probabilities] and it must be established 'to the comfortable satisfaction of the Tribunal.' CAS also establishes that the more serious the allegations, the higher the degree 'of comfortable satisfaction' required.
Given this analysis, we shall expect all legal developments with great anticipation. In this same manner and without offering any kind of hope to Mr Armstrong, I cannot but draw similarities with my two former clients, the well-known 'Greek sprinters', Mr Kenteris and Ms Thanou. When the IAAF attempted to introduce, before CAS, similar allegations [and evidence] against them, the probity of such evidence was severely questioned. In the end, it was thrown out by the CAS Panel, but given the high-profile character of such cases, athletes end up being stigmatised for no apparent reason. Unfortunately, the 'presumed guilty' ill-founded principle prevails in sport, even in circumstances where the athlete has never been found guilty. Mr Armstrong obviously fits the bill....
Dr. Gregory Ioannidis
5 July 2012