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Analysis: Bruyneel’s arbitration proceeding could give USADA the power to subpoena witnesses, including Armstrong

Editor’s note: As we ring out 2012, we look at 12 of our favorite stories of the year. Ryan Newill’s commentary on Johan Bruyneel’s dangerous USADA game first ran on VeloNews.com on November 2.

Lance Armstrong’s refusal to contest the U.S. Anti-Doping Agency’s charges cost him sponsors, more than a decade of results, and a lifetime ban. And though the price was high, choosing against an arbitration hearing was arguably the correct move, from a legal and public-image standpoint.

Walking away allowed Armstrong to avoid possible perjury concerns, had he contradicted prior sworn appearances, and prevented USADA from compelling potentially damaging additional witnesses to testify. It also closed the door on the reckoning many had hoped for: Armstrong answering the charges against him under oath.

But it may have been for naught.

USADA is moving ahead with cases against fellow defendants Johan Bruyneel, team doctor Pedro Celaya and trainer Pepe Marti, all of whom have elected to proceed with their own arbitration hearings. USADA CEO Travis Tygart has indicated that Bruyneel’s case — the most pivotal of the three — could be heard before the end of the year.

If it is, Bruyneel may not only give USADA the key to unlocking Armstrong’s much-anticipated testimony, but it may also hand the agency a crowbar that could pry the waning scandal wide open again: subpoena power.

As it built its case against Armstrong, Bruyneel and the other defendants, USADA lacked the ability to subpoena witnesses. Unlike the now-closed federal grand jury investigation into USPS’s use of government funding, the riders and other witnesses who provided sworn testimony in the USADA case did so voluntarily.

But should any of the USADA defendants proceed to arbitration, USADA can compel even reluctant participants — potentially including Armstrong, Bruyneel and a host of others — to testify under oath.

Speaking about Bruyneel’s case in September, Tygart indicated that the organization would not hesitate to call on Armstrong, telling France’s L’Equipe: “Lance Armstrong could be heard as a witness in this case, under oath, like the others. If there’s perjury, it’s serious. …”

Bravado or brinksmanship?

So, given the risks, why would Bruyneel persist in facing down USADA? Why not continue his vocal agreement with Armstrong, declare the process a witch hunt and walk away without saying a word? Why try to win a battle that Armstrong — who is better resourced, better connected, and better loved — judged unwinnable?

It is tempting to brand it as arrogance, the hubris of a director who has managed to shrug off a decade of accusations and titled his autobiography “We Might as Well Win.” But while Bruyneel does not suffer from an overabundance of humility, it seems beyond even him to believe he can successfully refute the USADA allegations and emerge triumphant.

He would be called on to counter the corroborating testimony of a growing band of his former riders, with seemingly little to rely on besides his timeworn refrain that the accusations are the lies of bitter ex-employees. He would drag Armstrong, straining to escape the scandal’s pull, back into the center of the fray. He would place the embattled leadership of the sport — Pat McQuaid and Hein Verbruggen — in even more peril as he and Armstrong would face direct questioning over the alleged UCI cover-up of an Armstrong positive at the 2001 Tour de Suisse, an incident previously on record only as secondhand information.

It is also possible that Bruyneel may be awaiting the right motivation to waive his hearing at the last minute. Many expect Armstrong to step in and dissuade him from going forward, but with the former Tour champion’s reputation already in tatters, there may be other players stepping up to put the brakes on potential hearings.

Depending on USADA’s tack, testimony from Bruyneel’s hearing could threaten a number of powerful people who remained relatively unscathed by the Reasoned Decision’s initial shock and awe. The conditions are ripe for brinksmanship, a game at which Bruyneel excels, with potential subpoenas driving up the stakes.

What’s left to expose?

While it has felt like a great unveiling, the revelations of USADA’s 1,000 pages of documentation have so far been relatively limited to athletes, team staff and other cycling insiders. The bulk of the USADA case against Armstrong was built on testimony from riders and team support staff, and as a result, their testimony mainly concerned distribution and use of performance-enhancing drugs and the logistics and use of prohibited methods. Their experience represents the very tail end of a doping network, the end-user experience. Bruyneel and Armstrong sat considerably higher in the team hierarchy, and should either be compelled to testify under oath, their testimony could significantly expand the reach of the scandal.

Bruyneel was not only the team’s director sportif, and Armstrong was not just its star rider. Both were part owners of Tailwind Sports, the management company that owned the U.S. Postal and Discovery Channel teams and the entity that received and allocated the team’s sponsorship funds. As such, both were positioned to know the finer details of how the team’s organized doping system was established, where the money came from, how much of it there was, how it flowed through the organization, and where it ended up. But perhaps more importantly, they could know whether anyone else among the team’s owners and sponsors knew what was happening and when they knew it.

As a result, Bruyneel’s arbitration hearing could open an investigative window into Tailwind Sports and, by extension, Armstrong’s far-reaching business network. It is a window that those involved would likely prefer to keep closed. Tailwind’s ownership, headed by San Francisco investment banker Thom Weisel, also included a number of his fellow financiers as well as longtime Armstrong insiders like Bill Stapleton and Bart Knaggs and the CEOs of long time team sponsors Trek Bicycles and Bell Sports. The ownership’s sporting entanglements stretched outwards to touch the highest levels of USA Cycling and the U.S. Olympic Committee. If wrongdoing at Tailwind were uncovered, the ramifications could be significant, both inside and outside the sport.

Grand jury redux?

Things like lifetime sporting bans carry little meaning for those with jobs outside the races, of course. But a Bruyneel hearing has the potential to once again launch the affair from sports arbitration into the civil and criminal realms.

Should Bruyneel’s hearing occur, and should it uncover knowledge and complicity farther up the USPS management and ownership chain, it could re-ignite the multi-agency federal investigation into whether U.S. Postal Service funding was used to support doping within the USPS team. That investigation could carry significant criminal and financial penalties and add fuel to the whistleblower lawsuit filed by Floyd Landis in 2010.

According to attorneys VeloNews spoke with, depending on the exact structure of USADA’s arbitration process, Bruyneel and Armstrong might be able to invoke their Fifth Amendment right against self-incrimination to avoid answering questions during arbitration. Doing so would allow them to avoid potential perjury and hold back information that could prove damaging in the subsequent legal actions expected in the months ahead.

However, both could need to prove that prosecution is more than an abstract possibility in order to claim constitutional protection. Should they successfully invoke the Fifth Amendment, USADA would have little recourse for getting answers. But the negative connotations of “pleading the Fifth” would be nearly as disastrous to what remains of both men’s images and do little to advance Bruyneel’s defense.

Given the stakes, Bruyneel is likely facing significant pressure, and possibly significant incentives, to back away from his arbitration proceedings. For now, he publicly remains committed to fighting. In a statement following USADA’s release of its Reasoned Decision, he promised to continue his legal battle as long as he felt he was “still able to receive a fair hearing” and assuring the public that “the time will come when I will share with you a balanced account of events.”

By the end of the year, we should know whether that “balanced account” will appear in the media, or under oath. Which it is will depend on just how far Bruyneel is willing to go.

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