Insights into litigation, sports law, media and legal culture

What George Hincapie can teach Essendon players in supplements saga

WASHINGTON, DC – OCTOBER 19: Cyclist George Hincapie attends the start of the 2013 Audi Best Buddies Challenge: Washington, DC on October 19, 2013 at Poolesville Golf Course in Poolesville, Maryland. (Photo by Stephen Lovekin/Getty Imagesfor Best Buddies)

George Hincapie was Lance Armstrong’s right hand man. He provided substantial assistance to the US Anti-Doping Agency (USADA), confessed to doping and was pivotal in USADA’s pursuit of Lance Armstrong. His sanctions were heavily reduced.  Yet, George Hincapie apparently remains good friends with Lance Armstrong.  There are lessons from this process possibly relevant to Essendon players who have received show cause notices. This post does not suggest that the Essendon players should make admissions where none are required.  However, George Hincapie does show how one can navigate the process and survive.

Maybe there is, after all, an “I” in “Team”. In fact, there is and always was. Every Australian Rules football team manages different interests. They include the highest paid player, the free agent, the captain’s need to lead, the coach’s desperation to keep his job, and the President’s recognition that ‘the Club’ is bigger than its constituent parts.

It is a fiction for the personal to have no place in the concept of team. George Hincapie shows how it is possible to look after Number 1 when providing significant assistance to an anti-doping authority without ruining friendships.

The history of George Hincapie’s co-operation with USADA provides a useful road map for Essendon players wondering how best to respond to the show cause notices recently issued by the Australian Sports Anti-Doping Authority (ASADA).

George Hincapie, of course, was Lance Armstrong’s right hand man, the super-domestique who dragged him through the mountains of cycling Grand Tours time and again. They were both members of the United States Postal Services cycling team. George also took banned performance enhancing drugs, but co-operated with the investigation brought by USADA whereas Lance Armstrong did not. As a result of that assistance George Hincapie’s penalty was significantly reduced. His testimony, amongst others, was pivotal in USADA’s prosecution of its case against Lance Armstrong, leading to his ultimate confession. And yet, George Hincapie and Lance Armstrong apparently remain friends.

In his own words, George Hincapie explained what happened:

“Three years ago, I was approached by US Federal investigators, and more recently by USADA, and asked to tell of my personal experience in these matters. I would have been much more comfortable talking only about myself, but understood that I was obligated to tell the truth about everything I knew. So that is what I did.”

George Hincapie then provided a statement containing full admissions. For Essendon players fearful the experience might be disempowering, George Hincapie shows how it can be done without losing personal power. He controlled its contents and messaging, even though he provided the substantial assistance required. For instance, George Hincapie did not need to say (but did):

  • Lance Armstrong and he were friends from the start
  • His statement was not made with animosity but with regret
  • He continues to hold Lance Armstrong in high regard, considers him a great cyclist and is proud to be his friend
  • His testimony is not intended to diminish the important things Lance Armstrong has done helping people battle cancer
  • He took drugs because he thought this was needed to compete at the highest level
  • He understands his choices were wrong but understands why he made them and why he felt justified doing so at the time
  • He does not condemn Lance Armstrong for making these choices and does not want to feel condemned himself.

Lance Armstrong has written the foreword to George Hincapie’s forthcoming book (see article here, albeit from the jaundiced eye of Floyd Landis). It is likely that Lance understood George had no choice but to co-operate. That George Hincapie made clear in the statement his continued loyalty to Lance Armstrong no doubt helped.

In light of the substantial assistance he provided to USADA, George Hincapie’s sanctions were heavily reduced. He was prohibited for six months from participating in competitive cycling, had his competitive results disqualified for the period of his disclosed use of banned drugs and was not able to participate in the 2012 Olympic games. It could have been much worse.

It is worth looking at USADA’s 9 October 2012 legal letter confirming the agreement struck between USADA and George Hincapie (via his lawyer). It ends with the succinct sign off: “Thank you for your assistance in this matter”.

The next day, George Hincapie issued a media release, which concluded: “As I begin the next chapter in my cycling life, I look forward to playing a significant part in developing, encouraging and helping young riders to compete and win with the best in the world”.

Two years later, and George Hincapie is currently promoting a charity ride in support of breast cancer research that he will participate in shortly. There is also, of course, the forthcoming book. Life goes on.

As we assess George Hincapie’s individual circumstances we reflect on the fact that:

  • He was a member of a professional team, had personal loyalties, close friendships, no axe to grind and possibly no regrets, and this came through loud and clear from his USADA statement and associated media communication
  • He was close to retirement when he co-operated with USADA (so the personal implications of a ban might be less than for a cyclist in the prime of his career)
  • He made full admissions of past doping which, of course, may not be the case for the Essendon players who are reportedly either confident they did not take banned substances at all or were unaware if any banned substances were injected or ingested

The Essendon players now face a deadline of 11 July 2014 to meet the show cause notices.

George Hincapie’s methodology provides the Essendon players with a road map about how to proceed:

  • Be completely open and honest when responding to the show cause notice – put effort into the detail of the statement [Of course, a ‘response’ does not mean ‘an admission’ where none is needed or warranted]
  • In the statement, have no hesitation detailing loyalties, friendships, challenges, reservations and any regrets – It is your document
  • Keep the contents of your statement confidential until the process (which may or may not include any penalties) is finalized
  • Immediately once the matter is finalized, and with the benefit of appropriate advice, disseminate any key messages you want the public to know via a media release (it can be personal, or issued on behalf of the collective group).

News that the legal team of the Australian Anti contains a former USADA lawyer indicates that the above approach is something they will likely expect.

The players would also be well advised to reflect on the following:

  • ASADA was likely aware before it issued the show cause notices that it would face allegations of a flawed process. For instance, it is easy to look at the USADA investigation into Lance Armstrong in hindsight and rate it a success. This would forget the numerous (unsuccessful) pieces of litigation by Lance Armstrong against USADA for flawed process. His legal challenges had many supporters (for one example, see here).
  • No matter how confident Essendon and James Hird might be in their legal action against ASADA, it is a test case with no guarantee of success. Experienced practitioners know that no barrister will ever offer a 100% guarantee.
  • Some players might agree with the claims made by Essendon and Hird in the litigation against ASADA about the ‘ultra vires’ nature of the process. However, joining in the litigation means they will be exposed to cost consequences should the theory be wrong (unless their costs are under-written by, say, the AFL Players Association).
  • The interests of the players, Essendon and James Hird are aligned but not the same (see my previous post here). This means that care should be taken before accepting any recommendations about this matter from their employer. Always seek independent legal advice if concerned.
  • Do not be optimistic that ASADA will agree to delay its process until the Essendon / Hird litigation is finalized or that a court will order a stay (it has been reported that the AFL Players Association has sought such a stay). There are important matters in the public interest tending against this. For instance, such a precedent could mean that any affected person could delay, and potentially stymie, the actions of a regulator by launching litigation challenging the nature of the process. This goes against the broader legislative purpose in ensuring that possible doping violations in sport are dealt with (notwithstanding the impact on the individual).
  • The 11 June 2014 extension for the players to respond to the show cause notices likely represents an appropriate balance. Ten days was not a reasonable time to respond. The time supplied provides the players with sufficient time to prepare detailed statements. Contrary to reports, do not expect the Essendon / Hird litigation to be finalized before this deadline expires. However, it means the rest of the ASADA process will be on a slower timetable likely to correspond more to the progress of the litigation.
  • The interests between the players are also not the same (e.g. age and stage, levels of participation, knowledge and enthusiasm for supplements program and its methods). Transparency about this amongst the playing group will likely ease some of the pressure within. Gary Ablett and Lance Franklin are good examples of players whose interests diverged from their respective clubs during the course of a season. Yet, the tacit understanding that their futures might lie elsewhere did not impact on-field success during their remaining time at their respective clubs.
  • Only when the dust settles will the player’s legal rights become fully known. For instance, no penalty means no loss. Contrast this to a sanction involving loss of income or loss of reputation. The latter might justify bringing a claim for damages. Accordingly, it would be wise to avoid second-guessing whether there is any claim against the Club, the AFL or anyone else until the ASADA process is complete.
  • In the meantime, only attend to matters within one’s control. The players can control the quality of their responses to the show cause notices. They cannot control media stories, legal action taken by the Club to protect its own interests, or statements made by the President on game-day about the matter. There is therefore little point worrying about collateral noise.

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