SCA Promotions Response To Lance Armstrong

FILED DALLAS COUNTY 2/19/2014 11:01:04 AM GARY FITZSIMMONS DISTRICT CLERK
CAUSE NO. DC13-01564 SCA PROMOTIONS, INC., Plaintiff, v. LANCE ARMSTRONG, TAILWIND SPORTS, INC., and WILLIAM STAPLETON, Defendants. IN THE DISTRICT COURT OF
DALLAS COUNTY, TEXAS
116TH JUDICIAL DISTRICT
SCA PROMOTIONS, INC.S AMENDED JOINT RESPONSE IN OPPOSITION TO LANCE ARMSTRONG AND TAILWINDS MOTIONS TO STAY ARBITRATION AND/OR VACATE ARBITRATION AWARD TO THE HONORABLE JUDGE OF SAID COURT: SCA Promotions, Inc. (SCA) hereby submits this Amended Joint Response In Opposition to Lance Armstrongs Motion to Stay Arbitration and/or to Vacate Arbitration Award and Tailwinds Motion to Stay Arbitration and/or to Vacate Arbitration Award. In support of this Response, SCA shows as follows: INTRODUCTION AND SUMMARY In 2006 after the arbitration proceeding involving Mr. Armstrong, Tailwind and SCA had concluded Mr. Armstrong and Tailwind sought the exact procedural and substantive relief that SCA now seeks. Mr. Armstrong and Tailwind asked the Panel to reconvene and sanction SCA for its alleged post-arbitration conduct. In their motion, Mr. Armstrong and Tailwind argued that [t]his Panel has continuing jurisdiction to entertain [its] Motion for Sanctions. See Claimants Motion to Set Aside Nonsuit and Reinstate the Motion for Sanctions. The filing
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was just one more hard-nosed, scorched-earth tactic from Mr. Armstrong in his perpetual quest to crush the truth (and SCA). Among other relief, SCA now seeks to impose sanctions against Mr. Armstrong (also based on the fact that the Panel has continuing jurisdiction). In response, Mr. Armstrong suddenly switched his position, contradicted his former pleadings and argued to the Panel that they had no authority or power to do exactly what he previously asked and told them they could do but a few years ago. By now, however, Mr. Armstrongs credibility as a litigant is, to put it mildly, severely impaired. The Panel denied his efforts to block SCAs request for arbitration. Mr. Armstrong now goes a step further and asks this Court to overrule the Panel and halt the arbitration in its entirety. Mr. Armstrong and Tailwinds arguments rest on a thin claim that there is no valid arbitration agreement. This claim lacks merit. This Court can deny Mr. Armstrong and Tailwinds motions for the following reasons. 1. Under the parties arbitration agreement, it is the arbitration panel that decides what is arbitrable and both Tailwind and Armstrong had waived any challenge to that determination. The arbitration agreement contained in the Comprehensive Settlement Agreement (to which Tailwind and Armstrong are both signatories) gives the arbitration panel exclusive jurisdiction over the parties disputes and further provides that all parties (including Tailwind and Armstrong) waive any challenges to the jurisdiction of the Panel, including subject matter jurisdiction. In other words, the Panel has the authority and power to decide what the scope of its jurisdiction and neither Armstrong or Tailwind (or SCA) can challenge that determination. Thus, because any such challenges to the Panels jurisdiction have been contractually waived, this Court can summarily deny Armstrong and Tailwinds request. 2. The parties have two valid and binding arbitration agreements that clearly cover the disputes in arbitration. To the extent the Court determines that it has the power to decide the issue of arbitrability, it can easily make that determination in favor of requiring arbitration. There are two binding arbitration agreements, both of which contain broad language encompassing the very claims at issue. Neither Armstrong or Tailwind can challenge the validity of these agreements because both previously sought arbitration pursuant to them. Moreover, SCAs claims (and Armstrongs defenses) all revolve around issues connected to the Contingent Prize
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Contract and the parties Comprehensive Settlement Agreement, both of which require arbitration. 3. The Panel has the authority to hear the disputes before it. Armstrongs challenge to the Panels authority to award sanctions and other relief are also without merit. Armstrong and Tailwind have agreed that the Panel has such authority and, in fact, have previously sought sanctions from the Panel. Likewise, SCAs claim for forfeiture is properly before the Panel and it has authority to decide the issue. Consequently, the Panel has both the authority and jurisdiction to hear such matters. 4. This Court cannot hear a motion to vacate a Partial Final Award. The jurisdictional award that Armstrong and Tailwind challenge is not a final award. As a result, this Court cannot, under the Texas Arbitration Act, hear a challenge to its validity. It must await a full final award before any challenges can be made. KEY BACKGROUND FACTS A. 1. The Contingent Prize Contract. SCA entered into a Contingent Prize Contract #31122 with Disson Furst &
Partners (later known as Tailwind Sports, Inc.) to pay Lance Armstrong prize money if he was the Official Winner of a series of successive Tour de France races in 2002, 2003 and 2004.1 2. The Contingent Prize Contract has an arbitration clause providing as follows:
Sponsor [Tailwind] agrees that any dispute arising under this contract shall be resolved by binding arbitration pursuant to the Texas General Arbitration Act. The site of such arbitration shall be Dallas, Texas. A copy of that agreement is attached as Exhibit A (all exhibits
submitted as part of an Appendix). 3. Mr. Armstrong was declared the Official Winner of the Tour de France races in
2002, 2003 and 2004. SCA paid the prize money in 2002 and 2003. However, a dispute arose in 2004 over whether SCA was still obligated to pay Mr. Armstrong based on him being the
Tailwind (a sports management company) had separately contracted with Mr. Armstrong to pay him the prize money if he won the Tour de France races. SCA, through the Contingent Prize Contract, was assuming Tailwinds risk in exchange for a fee. SCA PROMOTIONS, INC.S AMENDED JOINT RESPONSE IN OPPOSITION TO LANCE ARMSTRONG AND TAILWINDS MOTIONS TO STAY ARBITRATION AND/OR VACATE ARBITRATION AWARD PAGE 3
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Official Winner of the 2004 Tour de France race because there were credible allegations that he may have cheated. 4. In response, Tailwind and Mr. Armstrong first sued SCA in Dallas state court
and then, as required under the Contingent Prize Contract, sought arbitration of the dispute. The lawsuit as styled Lance Armstrong, et al. v. SCA Promotions, Inc., No. 04-9557M in the 298th District Court. See Exhibit B (order closing case pending arbitration). The matter at Lance Armstrongs request was then referred to arbitration. As a result, Mr. Armstrong clearly embraced and relied on the arbitration clause in the Contingent Prize Contract. A panel of Richard Faulkner (Chairman and neutral); Richard Chernick (SCAs party-appointed arbitrator) and Ted Lyon (Tailwind and Armstrong's party-appointed arbitrator) were appointed to hear the matter (referred to herein as the Panel). B. 5. The First Arbitration. An arbitration was then commenced. During the arbitration proceedings, both
Lance Armstrong and Bill Stapleton on behalf of Tailwind testified under oath, among other things, that Mr. Armstrong never used performance enhancing drugs during the entirety of his cycling career; that Mr. Armstrong had won the 2002-2004 Tour de France races legitimately and without cheating; that SCA (and all witnesses who asserted otherwise) were lying and should be punished accordingly; and that if Mr. Armstrong was ever stripped of his Tour de France titles, he would be obligated to return the SCA prize money. 6. In 2005, in connection with the arbitration proceeding, Tailwind, Lance
Armstrong and SCA entered into a Comprehensive Settlement Agreement. As part of that agreement, they reaffirmed and expanded their arbitration agreement as follows:
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The Arbitration Panel consisting of Richard Faulkner, Richard Chernick and Ted Lyon shall have exclusive jurisdiction over the parties hereto with respect to any dispute or controversy among them arising under or in connection with this SETTLEMENT AGREEMENT or Contingent Prize Contract #31122 and, by execution and delivery of this SETLLEMENT AGREEMENT, each of the parties hereby submits to the jurisdiction of that Panel and waives any objection to such jurisdiction on the grounds of venue or forum non conveniens, the absence of in personam or subject matter jurisdiction and any similar grounds, consents to service of process by mail or any other means permitted by law, and irrevocably agrees to be bound by any order or award issued or rendered thereby in connection with this SETTLEMENT AGREEMENT. A copy of that Agreement is attached to the Appendix as Exhibit C. 7. In addition, based on the settlement, the Panel then issued an arbitration award for
$7,500,000. This amount represented prize money. Mr. Armstrong was a party to that award. See Exhibit D (copy of award). 8. Thereafter, Mr. Armstrong and Tailwind, aided by counsel, falsely claimed to the
public that the arbitration award had exonerated Mr. Armstrong and that the award was the Panels imprimatur that Mr. Armstrong did not cheat. Mr. Armstrong (and Mr. Stapleton) knew that these public representations were false on two levels; that is false because this Panel had made no such ruling and false because they both knew Mr. Armstrong had cheated and would continue to cheat in future Tour de France races. 9. Upset that some of the more shocking evidence developed during the arbitration
became public, Mr. Armstrong and Tailwind subsequently filed a Motion for Sanctions against SCA. The motion, entitled Tailwind and Armstrongs Motion to Set Aside Nonsuit and Reinstate Motion for Sanctions, was filed after the arbitration had concluded and the Comprehensive Settlement Agreement had been signed. See Exhibit E (copy of Motion).
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10.
In their Motion for Sanctions, Armstrong and Tailwind maintained that the Panel
had the authority to reconvene and issue sanctions even after the proceedings had closed based on the language of the Comprehensive Settlement Agreement. Id. They further claimed that the Panel had the inherent power to exercise authority over the parties by sanctioning them. C. 11. Armstrongs Fall From Grace. Mr. Armstrongs carefully constructed house of lies came crashing down in late
2012. First, USADA issued its reasoned decision, which determined that Mr. Armstrong had engaged in illegal and impermissible drug use in connection with his racing activities; had repeatedly lied about it; and had harassed and sought to intimidate others into lying for him. See Exhibit F (excerpts of report). Second, Mr. Armstrong subsequently declined to challenge USADAs reasoned decision (after a brief but unsuccessful court challenge) and the USADA decision became final. As a result, Mr. Armstrong was stripped of all of his racing titles including the 2002, 2003 and 2004 Tour de France races and was required to forfeit all prize money. Third, with public pressure mounting and sponsors fleeing, Mr. Armstrong publically confessed to Oprah Winfrey in a special edition of her popular talk show. 12. During the course of that interview, Mr. Armstrong admitted (among other things)
that (1) he used performance enhancing drugs in every Tour de France race he allegedly won, (2) that he cheated in the 2002-2004 Tour de France races; (3) that he lied under oath in this very arbitration proceeding; and (4) that he sought to intimidate witnesses that had otherwise told the truth about him and his conduct, including witnesses who testified in this proceeding Given that Mr. Armstrong was no longer the Official Winner of the 2002-2004 Tour de France races and had admitted that he (and Tailwind) had repeatedly lied under oath in his legal proceeding with SCA and engaged in other unsavory conduct, this action became ripe and necessary.
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D. 13.
SCAs Lawsuit and the Second Arbitration. SCA initially filed suit in February 2013, asserting claims against Tailwind,
Lance Armstrong, and Bill Stapleton. SCA asserted a series of claims, including fraud, unjust enrichment, money had been received, an appointment of a receiver, civil contempt and conspiracy. Tailwind and Armstrong answered the lawsuit and moved to dismiss the petition under new Texas Rule Civil Procedure 91A. 14. However, it became apparent to SCA that several of the claims and requests for
relief that it initially asserted in the lawsuit had to be arbitrated. To avoid further delays and complicated appellate issues, SCA filed its request with the Panel to reconvene the arbitration. See Exhibit G (Motion to Reconvene). 15. SCA contends that it was required to arbitrate any claims before the same Panel
and thus sought to reconvene the arbitration. If necessary, however, SCA also maintained that it could institute a new arbitration before the same Panel. 16. In its Motion, SCA sought to sanction Armstrong, Tailwind and Bill Stapleton for
perjury and other fraudulent conduct and to order the forfeiture of all prize money paid to Armstrong by SCA pursuant to the Contingent Prize Contract and the Comprehensive Settlement Agreement. 17. Armstrong, Tailwind and Stapleton opposed the effort to reconvene the
arbitration, claiming that the Panel lacked jurisdiction to hear the dispute, primarily because there was no authority for the Panel reconvene or to sanction Mr. Armstrong. 18. The Panel heard the jurisdictional challenge and denied Armstrong and The Panel did conclude,
Tailwinds requests in a written order dated October 29, 2013.
however, that it had no jurisdiction over Mr. Stapleton. In its written order, the Panel rejected
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Armstrongs arguments, including his functus officio doctrine challenge, and further found that since Mr. Armstrong and Tailwind had themselves sought sanctions from the Panel after the arbitration had concluded, they had waived any complaint that the Panel lacked such authority. A copy of the Order is attached to the Appendix as Exhibit G.2 19. Armstrong and Tailwind then filed this Motion with the Court and challenge to
the very same issues decided by the Panel. ARGUMENT A. The Panel is Empowered to Decide the Issue of Arbitrability and Defendants have Waived any Challenge to Their Ruling.
Tailwind and Armstrong initially seek to stay the arbitration under Tex. Civ. Prac. and Rem. Code Section 171.023. That section provides that a court may stay an arbitration upon a showing that there is not an agreement to arbitrate. The first threshold question, however, is who decides that issue. Typically, the question of arbitrability is an issue of judicial
determination. However, just as parties can agree to arbitrate a dispute, they can also agree to allow an arbitrator to decide the issue of arbitrability. See Roe v. Ladymon, 318 S.W.3d 502, 511-512 (Tex.App. Dallas 2010, no pet.). As the Dallas Court of Appeals recently noted, the who decides question of arbitrability also turns upon the agreement of the parties and that a court must defer to an arbitrators arbitrability decision when the parties submitted that matter to arbitration. Id. at 512 (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). Thus, when parties clearly agree to have arbitrators decide the issue of arbitrability, the matter is resolved in arbitration and the court must defer to that determination much as it would any other arbitrator decision. Id.
Armstrong and Tailwind quote extensively from the dissent. While dissents, of course, are not persuasive by their very nature, this dissent is particularly suspect because it is written by Mr. Armstrongs party appointed arbitrator. SCA PROMOTIONS, INC.S AMENDED JOINT RESPONSE IN OPPOSITION TO LANCE ARMSTRONG AND TAILWINDS MOTIONS TO STAY ARBITRATION AND/OR VACATE ARBITRATION AWARD PAGE 8
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In this case, the parties clearly agreed to have the original Panel resolve all disputes, including the issue of arbitrability. Two reasons support this conclusion. First, the language of the parties arbitration agreement as set out in the Comprehensive Settlement Agreement provides that it is exclusive and comprehensive. It empowers not just any panel but the Panel to resolve all disputes or controversies arising under or in connection with this Settlement Agreement or Contingent Prize Contract #31222. Moreover, it specifically provides that the parties hereby submit to the jurisdiction of that Panel and waive any objection to such jurisdiction on the grounds of venue, forum non conveniens, the absence of in personam jurisdiction or subject matter jurisdiction and other similar grounds [.] Id. at Exhibit C. There could not be a more clear expression of the parties agreement that the Panel (and not a court) has the power to decide its own jurisdiction given that the parties waived any challenge to its determination. Second, given that the parties agreed in writing to waive all challenges to jurisdiction, the relief sought by Armstrong and Tailwind before this Court is barred. Mr. Armstrong and Tailwind both expressly submitted themselves to the jurisdiction of the Panel and waived any challenge thereto, including to subject matter jurisdiction. Their waiver is valid and binding and eliminates the very challenge now asserted. This is particularly true given that Tailwind and Mr. Armstrong first pursued all of the arguments they make to this Court before the Panel. It was only after the Panel denied those arguments that they then turned to this Court. Accordingly, this Court should conclude that (1) the issue of arbitrability is for the Panel to decide; (2) the Panels determination that it has the power to arbitrate these disputes is due complete deference from this Court and, (3) in any event, any challenge to that determination has been contractually waived by Mr. Armstrong and Tailwind.
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B.
There Are Valid and Binding Arbitration Agreements Between the Parties.
If this Court concludes that the issue of arbitrability is for judicial determination, then the standard for making such a determination is well known and favors SCA. The Court examines two issues: (1) there is a valid agreement to arbitrate between the parties and, (2) if so, whether the claims asserted fall within the scope of that agreement. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). The burden for these issues, however, is different. SCA bears the burden on the first issue. However, once it is established that there is a valid agreement to arbitrate, then the burden shifts mightily to Tailwind and Mr. Armstrong on the second issue. In re Rubiola, 334 S.W.3d 220 (Tex. 2010). In deciding the second issue of arbitrability, this Court must employ a standard that leans heavily towards finding that SCAs claims are subject to arbitration. This is because arbitration is favored by Texas courts. See Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996); Emerald Texas, Inc. v. Peel, 920 S.W.2d 398, 403 (Tex. App. Houston [1st Dist.] 1996, no writ). Indeed, a presumption exists in favor of agreements to arbitrate under the FAA. Id. Therefore, any doubts regarding the scope of an arbitration agreement are to be resolved in favor of arbitration. In re Rubiola, 334 S.W.3d 220, 221 (Tex. 2010). In determining whether a particular claim falls within the scope of an agreement to arbitrate, the focus should be on the factual allegations upon which the claim is based. See Valero Energy Corp. v. Wagner & Brown, II, 777 S.W.2d 564, 566 (Tex.App. El Paso 1989, writ denied). If the claim is not a breach of contract claim but is a tort, the test is based on a determination of whether the particular claim is so interwoven with the contract that it could not stand alone or, on the other hand, is a tort completely independent of the contract and could be maintained without reference to the contract. Id.
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In applying the above principles, the Court can easily conclude that the requirements are satisfied. 1. The First Issue: The parties have two binding arbitration agreements. The first issue is easily resolved. The parties have two binding arbitration agreements: The Contingent Prize Contract #31122 and the Comprehensive Settlement Agreement. These are valid and enforceable agreements. Thus, the only real question is whether the parties disputes fall within the scope of those agreements.3 Mr. Armstrong contends that since he is not a signatory to the Contingent Prize Contract, he is not bound by its arbitration agreement. This is without merit for two reasons. First, the Comprehensive Settlement Agreement specifically provides that the parties must arbitrate all claims arising under or in connection with the Settlement Agreement or Contingent Prize Contract #31122. Hence, Mr. Armstrong does have a binding arbitration agreement with respect to any claim pertaining to the Contingent Prize Contract because disputes connected to that agreement were incorporated into the arbitration clause under the Comprehensive Settlement Agreement. Thus, any issue regarding the Contingent Prize Contract is actually subject to two arbitration agreements. Second, Mr. Armstrong himself affirmatively sought to arbitrate his claims under the Contingent Prize Contract. He participated in the arbitration as a party. He was even a party to the arbitration award. Further, since it is his conduct in that arbitration that is now at issue in this proceeding, he is bound to the arbitration agreement under the Contingent Prize Contract.
Mr. Armstrong tries to refashion scope issues (i.e., whether the claims fall within the scope of the arbitration provisions) as existence of an arbitration agreement issues. This is incorrect. There is no dispute that there exist valid arbitration agreements. Thus, the burden shifts entirely to Mr. Armstrong and Tailwind on the issue of whether the claims asserted fall within the arbitration provisions. Moreover, the scope issues carry a presumption in favor of SCA. SCA PROMOTIONS, INC.S AMENDED JOINT RESPONSE IN OPPOSITION TO LANCE ARMSTRONG AND TAILWINDS MOTIONS TO STAY ARBITRATION AND/OR VACATE ARBITRATION AWARD PAGE 11
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Finally, Mr. Armstrong tries to avoid the above agreements by arguing there was no agreement to reconvene the 2006 arbitration. See Motion at 12. This argument is wrong and, in any event, misses the point. The issue is whether the disputes asserted by SCA are covered by the parties arbitration agreements. The format of the resulting arbitration (whether it is
reconvened or an entirely new proceeding) is irrelevant and immaterial. The parties agreed to employ the same arbitrators and thus whether it is a reconvened or a new arbitration, the result is the same. 2. The Second Issue: The Claims are Subject to Arbitration.
Given that there are valid arbitration agreements, a presumption arises that the disputes in question fall within their scope. Even without that presumption, however, it is readily
apparent that SCAs claims are subject to arbitration. As the Panel noted in its Order, the claims asserted by SCA fit within the parties agreements, the language of the Contingent Prize Contract and within the broad provision of the Comprehensive Settlement Agreement. See Exhibit H. In fact, even a cursory review of the claims confirms this conclusion. SCAs Claim for Sanctions. SCAs first request for relief is that the Panel sanction Mr. Armstrong and Tailwind for their outrageous conduct during the course of the arbitration, including outright perjury. There is no dispute that Mr. Armstrong perjured himself repeatedly during the arbitration proceeding; sought to have others perjure themselves as well; and tried to intimidate any adverse witness. The proof? Mr. Armstrong has admitted to such conduct. There also can be no dispute that Mr. Armstrong should be punished for his conduct. The only remaining issues are (i) who should decide whether Mr. Armstrong is sanctioned and (ii) the amount of any sanctions.
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The parties agreements (and applicable law) require that the Panel be the body that decides both issues identified above. Several reasons support this contention. First, the parties Contingent Prize Contract requires arbitration of all claims or disputes, including this one. SCAs claim for sanctions is a dispute arising under [the] contract because the occasion and basis for the perjured testimony (and other conduct) was a dispute over the parties contractual obligations. The language of the Contingent Prize Contract is exceedingly broad and covers not just disputes about the agreement itself, but any dispute that comes about because of or under the contract. Here, SCAs request for sanctions is such a dispute. But for the Contingent Prize Contract, Mr. Armstrong and Mr. Stapleton (testifying for Tailwind) would not have testified and likewise committed perjury -- before the Panel. Thus, the issue of whether they should be punished for such wrongful conduct arises under the contract. required under the terms of the Contingent Prize Contract. Second, arbitration of this dispute is required under the terms of the parties Comprehensive Settlement Agreement. The Comprehensive Settlement Agreement requires that disputes arising under or in connection with (i) the Settlement Agreement or (ii) the Contingent Prize Contract must be arbitrated. SCAs contention that Mr. Armstrong and Consequently, arbitration is
Tailwind should be punished is connected to the Comprehensive Settlement Agreement. For starters, Mr. Armstrongs primary defense to SCAs request for sanctions is that the Comprehensive Settlement Agreement bars SCAs claims. SCA disputes that defense, of course, but deciding whether Comprehensive Settlement Agreement itself bars such a claim is required to be resolved by arbitration. Moreover, the Comprehensive Settlement Agreement provided the
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benefit to Mr. Armstrong that forms the very harm that SCA suffered due to his perjury. Thus, SCAs claim is connected to that agreement. 3. The issue of the Panels Authority to Sanction Mr. Armstrong.
Mr. Armstrong sidesteps the above issues and argues that the Panel exceeds its authority by hearing SCAs request for sanctions. In fact, SCAs request for sanctions only further buttress the claim that this matter must be arbitrated. This is because the Panel has the authority to sanction Mr. Armstrong and Tailwind for their misconduct and abuse of the arbitration process based on the (1) broad arbitration agreement contained in the Settlement Agreement and Contingent Prize Contract and (2) the parties conduct during the prior arbitration proceedings.4 A broadly-worded arbitration agreement, with no limiting language to the contrary, confers inherent authority on arbitrators to sanction a party that participates in the arbitration in bad faith. See Seagate Tech., LLC v. W. Digital Corp., 2013 WL 3779231, at *7 (Minn. Ct. App. July 22, 2013) (holding that the district court erred in holding that the arbitrator did not have the authority to impose sanctions); Hamstein Cumberland Music Group v. Williams, --Fed. Appx. ---, 2013 WL 3227536, at *4 (5th Cir. May 10, 2013) (rejecting argument that arbitrator was not empowered to issue sanctions, and finding that arbitrators enjoy inherent authority to police the arbitration process and fashion appropriate remedies to effectuate this
Armstrong and Tailwind argue that there is an issue of substantive arbitrability that must be decided by a court regarding whether the arbitration agreement can be enforced against Tailwind, which dissolved more than three years ago. Armstrong and Tailwind are wrong. First, it is undisputed that Tailwind is a party to the arbitration agreement and consented to and participated in the arbitration proceedings performed by this panel. The question of whether the arbitration agreement is enforceable against Tailwind based on its dissolution is a question of proceduralnot substantivearbitrability, which is for the arbitrator, not the court. Arbitrators are empowered to determine questions of procedural arbitrability like compliance with conditions precedent or prerequisites to the obligation to arbitrate. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002); In re Global Const. Co., LLC, 166 S.W.3d 795, 798 (Tex. App. Houston 2005, no pet.). Second, Tailwinds existence (or, if non-existent, its satisfaction of the notice requirement to known claimants or succession by a surviving entity) is a defenses to SCAs claims that must be considered by the Panel. Even if such matters are conditions precedent to the undisputed obligation to arbitrate, they still are matters for the arbitrator. SCA PROMOTIONS, INC.S AMENDED JOINT RESPONSE IN OPPOSITION TO LANCE ARMSTRONG AND TAILWINDS MOTIONS TO STAY ARBITRATION AND/OR VACATE ARBITRATION AWARD PAGE 14
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authority); Forsythe Intl., S.A. v. Gibbs Oil Co. of Tex., 915 F.2d 1017, 1023 (5th Cir. 1990) (Arbitrators may . . . devise appropriate sanctions for abuse of the arbitration process.); Timegate Studios, Inc. v. Southpeak Interactive, L.L.C., 713 F.3d 797, 803 (5th Cir. 2013) (emphasizing that arbitration clause, which called for any dispute to be submitted to binding arbitration, contained no limits relevant to award because [t]he remedy lies beyond the arbitrators jurisdiction only if there is no rational way to explain the remedy handed down by the arbitrator as a logical means of furthering the aims of the contract) (emphasis added). To give arbitrators control over discovery and discovery disputes without the authority to impose monetary sanctions for discovery violations and noncompliance with appropriate discovery orders, would impede the arbitrators ability to adjudicate claims effectively in the manner contemplated by the arbitration process. Superadio Ltd. Pship v. Winstar Radio Productions, LLC, 446 Mass. 330 (Mass. Sup. Ct. 2006). If arbitrators are not permitted to impose sanctions on parties who flagrantly disregard the arbitrators rules and procedures, arbitrators will not be able to assert the power necessary to properly adjudicate claims. See First Pres. Capital., Inc. v. Smith Barney, Harris Upsham & Co., 939 F. Supp. 1559, 1565 (S.D. Fla. 1996) (affirming an arbitrators dismissal of a partys case for abuses of the discovery process). Parties in arbitration must understand that willful violations of the discovery process can have severe consequences. They must be aware that arbitrators have the power to enforce their directives. Allowing parties . . . to abuse the process not only serves to undermine the principles of arbitration, it will ultimately diminish the integrity of any court in which information obtained through an abuse of arbitration is used. Id. at 1565; see also Murtagh v. Emory Univ., 741 S.E.2d 212, 215-16 (Ga. Ct. App. 2013) (holding that arbitrators have the power to issue death penalty sanctions and charge attorneys fees and costs for discovery abuses). Indeed, the underlying purposes of arbitration, i.e.,
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efficient and swift resolution of disputes without protracted litigation, could not be achieved but for good faith arbitration by the parties. Consequently, sanctions, including attorneys fees, are appropriately viewed as a remedy within an arbitrators authority to affect the goals of arbitration. ReliaStar Life Ins. Co. of N.Y. v. EMC Nat'l Life Ins. Co., 564 F.3d 81, 86 (2d Cir.2009). Here, the arbitration agreement contained in the Contingent Prize Contract provides the Panel with broad authority to resolve any dispute arising under this contract and the Comprehensive Settlement Agreement provides this Arbitration Panel consisting of Richard Faulkner, Richard Chernick and Ted Lyon with exclusive jurisdiction over the parties hereto [Armstrong, Tailwind, and SCA] with respect to any dispute or controversy among them arising under or in connection with this Settlement Agreement or Contingent Prize Contract #31122. Accordingly, this broad grant of authority provides the panel with the inherent authority to police the arbitration process and fashion appropriate remedies to effectuate its authority. See Seagate, 2013 WL 3779231, at *7 (holding that broadly-worded arbitration agreement that provided for arbitration of any dispute or controversy arising out of or relating to the employment agreement conferred the power to sanction); ReliaStar, 564 F.3d at 86 (holding that agreement [providing that disputes arising under or relating to coinsurance agreement should be decided by arbitration] was sufficiently broad to confer on arbitrators the equitable authority to sanction a partys bad faith conduct). Moreover, Armstrong and Tailwind specifically gave this arbitration panel the authority to police its processes by (repeatedly) asking the panel to do just that. See, e.g., Exhibit I (Claimants Jan. 4, 2006 Motion to Exclude at 5 (asking the panel to exclude David Walshs testimony because it makes a mockery of the proceeding)); and Exhibit E (Claimants Motion
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for Sanctions for SCAs Flagrant Breach of the Panels Confidentiality Order). Indeed, after the proceedings had closed, Armstrong and Tailwind twice sought sanctions and punitive damages against SCA, arguing that [t]his Panel has continuing jurisdiction to entertain [its] Motion for Sanctions. See Exhibit E at 2-3. Armstrong and Tailwind maintained that this Panel has the authority to issue sanctions even after the proceedings had closed based on the arbitration agreement (Paragraph 5.6) contained in the Settlement Agreement and the panels inherent authority to protect the integrity of th[e] proceeding and effectuate the authority of the Tribunalthe very same bases that provide this panel with the authority to sanction Armstrong and Tailwind now. See id. (Claimants Motion for Sanctions at 2, 5). Accordingly, this panel clearly has the authority to sanction Armstrong and Tailwind for their misconduct in the arbitration proceedings. See Hamstein Cumberland Music Group, --- Fed. Appx. ---, 2013 WL 3227536, at *4 (holding that arbitrator did not exceed authority in sanctioning Williams because (1) arbitrators have inherent authority to police the process and (2) the parties sought to confer that power on the arbitrator by both moving for sanctions). Contrary to Armstrongs and Tailwinds assertions, the arbitration panel does not lose its power to sanction simply because Armstrong and Tailwind didnt get caught until years later. See Pisciotta v. Shearman Lehman Bros., Inc., 629 A.2d 520, 525 (D.C. 1993) (We do not see why that authority [of the arbitrator to issue sanctions] should vanish when the wrongdoing has been concealed from the arbitrator but [later] discovered[.]); Positive Software, 619 F.3d at 46263 (where case had been settled and administratively closed, Positive Software did not need district court to issue sanctions because it could asked the arbitrators to reopen proceedings to issue sanctions). The policy principles that support an arbitrators power to sanction willful misconduct during the arbitration process do not diminish simply because the misconduct was
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not discovered until after the proceedings had closed. Parties in arbitration must understand that willful violations of the discovery process can have severe consequenceseven if they may manage to make it through the arbitration process without getting caught. Regardless of when the misconduct is discovered, allowing parties to abuse the process only serves to undermine the principles of arbitration. See First Pres. Capital, 939 F. Supp. at 1565. Accordingly, just as a courts inherent power to police its proceedings can be applied after the case has closed, see, e.g., Sutphin v. Tom Arnold Drilling Contractor, Inc., 17 S.W.3d 765 (Tex. App. Austin 2000, no pet.) (holding that court has inherent power to sanction conduct done in prior closed case, even where court no longer has plenary power over the case); In re E.I. DuPont de Nemours & Co.-Benlate Litig., 99 F.3d 363 (11th Cir. 1996) (holding that court has inherent power to conduct independent investigation to see if it was defrauded in prior proceeding where settlement was approved and case was closed), so too can an arbitrators power to police its proceedings be applied after the case has closed. See Positive Software, 619 F.3d at 462-63. Indeed, where the misconduct occurred during arbitration and the case has since closed, Fifth Circuit authority indicates that any issuance of sanctions should be done by the arbitrators alone. See id. (reversing district courts imposition of sanctions, finding that district court lacked the inherent authority to impose sanctions for conduct that took place in connection with the arbitration and noting that movants could ask arbitrators to reopen case to issue sanctions); Brooks v. Susser Holdings Corp., 2012 WL 5377825. At *2 (S.D. Tex. Oct. 30, 2012) (rejecting argument that court must issue sanctions for misconduct committed in arbitration as asking court to fill[] a gap that does not exist). SCAs Claim for Forfeiture of Prize Money. SCAs second claim is for an order of forfeiture against Mr. Armstrong and Tailwind in the amount of at least $12 million. The basis
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for the request is straightforward: (i) SCA paid Mr. Armstrong prize money for being the Official Winner of the 2002-2004 Tour de France races; (ii) he has been ordered by USADA (the governing organization) to forfeit all prize money, including any prize money paid by SCA; (iii) Mr. Armstrong is no longer the Official Winner of the 2002-2004 Tour de France races; and (iv) Mr. Armstrong, Tailwind, and his counsel all represented to the Panel during the proceedings that if this day ever came (i.e., when Mr. Armstrong was no longer the Official Winner of the Tour de France races in question), then he (and Tailwind) would be required to return the SCA prize money. Well, that day has come and SCA now seeks to enforce the forfeiture and/or disgorgement of all prize money it paid to Mr. Armstrong. This claim must be arbitrated as well. The claim arises under the Contingent Prize Contract, the Comprehensive Settlement Agreement and related principles of law and equity. The prize money now sought to be forfeited was paid under the Contingent Prize Contract and, hence, any dispute related to it must be arbitrated. Meanwhile, Mr. Armstrong and Tailwind again will argue that the Settlement Agreement bars SCAs claim and that there is no right to forfeiture under the Contingent Prize Contract. SCA disputes those contentions, but those disputes must be arbitrated under the Comprehensive Settlement Agreement and the Contingent Prize Contract. Finally, the defense offered by Mr. Armstrong that the USADA Report provides no basis to assess a forfeiture is a merits-based issue for the Panel. Thus, the issue of forfeiture and/or disgorgement must be arbitrated. RESPONSE TO MOTIONS TO VACATE A. The Court Cannot Review (i.e., Vacate) a Partial Order of the Panel.
In what amounts to an extension of its challenge to the arbitrability argument, Armstrong and Tailwind also ask the court to vacate the Panels Partial Final Award. While this request is
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mooted by the arguments above, it also is procedurally improper. Texas law does not permit a challenge to what amount to interim rulings of an arbitration panel. In Collins v. Tex Mall, LP, 297 S.W.3d 409 (Tex. App. Fort Worth 2009, no pet.), the court confronted this exact issue. In that case, a party under the exact same provision relied on by Armstrong and Tailwind (Section 171.086(b)(6)) tried to confirm (rather than vacate) a partial award. The court held that the Texas Arbitration Act (and that Section in particular) did not grant the trial court the power to conduct judicial review of partial awards before the arbitrators decision becomes final. Id., 297 S.W.3d at 417. In so holding, the court noted the particular language of the section (which speaks of a party filing an application is pending) but rejected the notion that this language gives right to an independent review of partial awards. Id. The court found that the language does not abrogate the existing common law rule that arbitration awards must be final to be legally enforceable and subject to judicial review. Id. Moreover, the court found that piecemeal review of arbitration awards would result in severe delay, inefficiency and frustration of the fundamental purpose of arbitration. Id. The courts rationale applies with even greater force in this case. Here, the Panel has not even made any ruling or determination regarding the merits. Indeed, the very arguments made by Armstrong and Tailwind to this Court (i.e., that the Panel exceeds its authority by sanctioning them) may never come to pass because the Panel may reject SCAs arguments. Hence, Texas law does not allow this preliminary challenge. B. The Panel has not Exceeded Its Power.
By and large, Armstrong and Tailwinds Motion to Vacate the Panels Jurisdictional Award relies on the same arguments as its Motion to Stay (i.e., Armstrong argues that the Panel exceeded its authority in finding it had jurisdiction because, in fact, it has no such jurisdiction
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because there is no valid arbitration agreement). Thus, resolving the issue as to the Motion to Stay resolves the Motion to Vacate because arbitration is required and hence the Panel is not exceeding its authority. One last argument raised by Armstrong and Tailwind is a claim that one functus officio doctrine robs the Panel of any authority. This is incorrect for several reasons. First, the doctrine does not operate here because the award was never confirmed by the court. The functus officio doctrine comes into play only after a court has confirmed the arbitration decision. See Brown v. Witco Corp., 340 F.3d 209, 221 (5th Cir. 2003) (Once a court of competent jurisdiction has confirmed that an arbitration decision is unambiguous and binding on the parties, the arbitrator becomes functus officio with respect to that portion of the arbitration award and lacks authority to reconsider those aspects of his decision that are unambiguous and binding.) (emphasis added). Accordingly, because the panels award here was never confirmed by the court, the doctrine has no application. See Martel v. Ensco Offshore Co., 449 Fed. App. 351, 354 (5th Cir. 2011) (holding that doctrine does not prevent the arbitrator from vacating award and issuing second award where the arbitrator's original award was not confirmed by the district court prior to the arbitrator vacating the award). Second, the doctrine does not apply here because SCAs motion does not ask the arbitrators to revisit the decided merits. The functus officio doctrine is a common-law bar that generally prevents the arbitrator from revisiting the merits of an award. See Brown, 340 F.3d at 218. SCAs motion to reconvene and request for sanctions does not ask the arbitration panel to revisit the merits decided in the prior proceeding. Rather, SCA merely asks the arbitration panel to sanction Armstrongs and Tailwinds flagrant and admitted abuse of and misconduct during the arbitration. Accordingly, the doctrine of functus officio has no application here. See; Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215, n.4 (5th Cir. 1991)
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(holding that the doctrine of functus officio has no application here where the arbitration panel has not attempted . . . to alter the decision it has rendered and where the arbitration panels construction of the contract will not change); Martel, 449 Fed. App. at 355 (holding that where arbitrator . . . did not revisit the merits of his decision, or change his substantive ruling, he did not exceed his authority by vacating the original judgment and issuing an amended one). The Fifth Circuit implicitly recognized this in Positive Software Solutions, Inc. v. New Century Mortgage Corp., 619 F.3d 458 (5th Cir. 2010). In that case, the movants asked the district court to issue sanctions based on misdeeds that occurred during arbitration but were not discovered until after the case had been settled and administratively closed. See id. at 462-63. In holding that the district court did not have the authority to issue the requested sanctions, the Fifth Circuit emphasized that it was not leaving the movants without any means to redress the wrongdoing, and it specifically noted that the movants could have asked the arbitrators to reopen the proceedings to issue sanctions. See id. at 463. The Fifth Circuit, therefore, implicitly recognized that reconvening the arbitration panel to issue sanctions does not implicate the functus officio doctrine. If the doctrine had precluded the arbitrators from reconvening to issue sanctions, the Fifth Circuit clearly would not have stated that such a procedure was available. Third, the clarification/completion exception to the functus officio doctrine applies here. [T]here are a number of well-recognized exceptions to the functus officio rule. An arbitrator can (1) correct a mistake which is apparent on the face of his award; (2) decide an issue which has been submitted but which has not been completely adjudicated by the original award; or (3) clarify or construe an arbitration award that seems complete but provides to be ambiguous in its scope and implementation. Brown, 340 F.3d at 218. Where a contingency arises after the award that the award did not address, the arbitrators can address the contingency without
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violating the functus officio doctrine. See Green v. Ameritech Corp., 200 F.3d 967 (6th Cir. 2000) (Courts usually remand to the original arbitrator for clarification of an ambiguous award when the award fails to address a contingency that later arises); Olympia & York Fla. Equity Corp. v. Gould, 776 F.2d 42, 46 (2d Cir. 1985) (remanding to arbitration panel where the award failed to deal explicitly with the contingency which arose); Office & Professional Employees Intl Union, Local No. 471 v. Brownsville Gen. Hospital, 186 F.3d 326, 332 (3d Cir. 1999) (recognizing that an award predicated upon a state of facts that prove, after the award, not to be true may be revisited on the ground of ambiguity). Here, the arbitration award was issued on the assumption that Armstrong was the official winner of the 2004 Tour de France and that the title had not been revoked by the relevant racing officials. During the arbitration proceedings and prior to the entry of the award, all the parties recognized that the outcome would be different if Armstrong was later stripped of his titles. See Exhibit J (Opening Statement of Tim Herman, counsel for Armstrong and Tailwind, given on January 9, 2006 (Tr. at p. 628) (stating that we dont dispute that [if the titles are stripped, then theres an obligation to return the money]); and at Tr. 641 (agreeing that the relevant racing officials have the authority to strip people of their tiles and require the repayment of prize money and that being stripped by official action is the only way to recover payments made under the Contingent Prize Contract)); and at 627 (If titles are stripped as a result of official action, then Tailwind agrees to refund any payments made, which is precisely what Tailwind has been saying since this case began.)); and Exhibit K (Testimony of Bill Stapleton at Armstrong Arbitration Hearing (Tr. at p. 1776) (testifying that if some day that result changes [i.e., Armstrong being the official winner of the 2004 Tour de France], . . . at that point my position would be that if the results changed, that Tailwinds obligation to Lance didnt
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exist anymore and, therefore, SCAs liability to Tailwind didnt [exist either])). This contingency, which was not provided for the in award, has since materialized. Accordingly, under the well-established clarification/completion exception, the arbitration panel may address the contingency without violating the functus officio doctrine. Fourth, Armstrong and Tailwind essentially conceded that this arbitration panel has the authority to reconvene in the event Armstrong is stripped of his titles. Armstrong and Tailwind argued repeatedly to this panel that SCAs liability under the Contingent Prize Contract did not depend on whether Armstrong had actually cheated in fact but only on whether he was the official winner of the 2004 Tour de France. See Exhibit K (Tr. at 1776 (I [Stapleton] think my position and Tailwinds position has been very consistent here, which is we owe Lance $5 million based on him being the official winner of the [2004] Tour de France. SCA owes us $5 million to [Tailwind] to indemnify that liability. . . I cant do anything about what [the racing officials] who they say won the tour.)); Id. at 1688 ([I]ts not for me [Stapleton] or you or SCA to decide who the official winner of the Tour de France is. As the CEO of Tailwind Ive an obligation to pay Lance if hes declared the official winner by the people who declare him the official winner, so the question of whether he can cheat and win or anyone can cheat and win is a question for the [racing officials], not really for any of us.)); Exhibit L (Testimony of Joe Longley during the Armstrong Arbitration (Jan. 11, 2006) (Tr. at p. 1097-98) ([T]he liability of Tailwind became clear upon Lance Armstrong being declared the official winner of the 2004 Tour de France, and the only thing that could change that would be the governing body of the Tour de France stripping Armstrong of his title for 2004)). Armstrong and Tailwind further conceded that, in the event that Armstrong was later stripped of his titles and was no longer the official winner, SCA would have no liability under
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the Contract; but, they argued, until such a contingency occurred, SCAs liability to pay the prize money was clear. Accordingly, in their arguments to the panel, Armstrong and Tailwind essentially conceded that this arbitration panel has the authority to reopen proceedings to address the contingency in the event that Armstrong was later stripped of his titles. See Martel, 449 Fed. Appx. at 355 (finding that Ingersoll implicitly consented to the continuing jurisdiction of the arbitrator over this matter by asking arbitrator to refrain from issuing an amended award while the parties attempted to work out other issues). In the prior proceedings, Armstrong and Tailwind pressed the panel not to consider a contingency that had not yet occurred and admitted that, upon the occurrence of such contingency, SCA would no longer be liable under the Contingent Prize Contract. Therefore, it is disingenuous for Armstrong and Tailwind to argue nowafter the contingency has occurred that the arbitrators somehow lack the authority to address that contingency. See id. (agreeing with the district court that it is disingenuous for Ingersoll to have asked the arbitrator to wait to issue an amended judgment, to have admitted that the ad damnum used in the original ward was a clerical error, and to now claim that the arbitrator had no jurisdiction to amend his award and the original, incorrect judgment must stand.).5 Finally, the purpose of the doctrine has no application here. The policy underlying [the functus officio doctrine] is an unwillingness to permit one who is not a judicial officer and who
For these reasons as well, Armstrong and Tailwind cannot seriously contend that the USADAs Reasoned Decision provides no basis for SCAs claims of forfeiture or from the authority of the Panel to hear that claim. In its Reasoned Decision, the USADA found that Lance Armstrong violated the applicable anti-doping rules and that his competitive results achieved since August 1, 1998 should be, and are, disqualified. See Exhibit F at 57 (Reasoned Decision at 164). After having repeatedly argued to the arbitration panel that SCAs liability under the Contingent Prize Contract depends on Armstrongs official winner status, which can only be determined (and revoked) by the relevant racing officials, Armstrong and Tailwind should be estopped from now arguing that the USADAs decision to strip Armstrong of all of his titles since August 1, 1998including his 2004 Tour de France titleprovides no basis for reopening the arbitration proceedings. Under the clarification/completion exception to the functus officio doctrine and Armstrong and Tailwinds own admissions, the Reasoned Decision provides a basis for reopening the proceedings and the forfeiture of all payments to which Armstrong is no longer legally entitled. SCA PROMOTIONS, INC.S AMENDED JOINT RESPONSE IN OPPOSITION TO LANCE ARMSTRONG AND TAILWINDS MOTIONS TO STAY ARBITRATION AND/OR VACATE ARBITRATION AWARD PAGE 25
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acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion. Martel, 449 Fed. Appx. 351, at 355 (cites cases). [I]t is feared that disappointed parties will bombard [the arbitrators] with ex parte communications and that the arbitrators, not being professional judges or subject to the constraints of judicial ethics, will yield. Id. (citing cases). Here, in contrast, the triggering event for the request to reconvene was not SCAs outside communication and unilateral influence; rather, the triggering event was the revocation of Armstrongs Tour de France titles and Armstrongs own public admission that he blatantly and repeatedly lied to this arbitration panel and made a mockery of the arbitration process. Therefore, the purposes of the doctrine will not be furthered by (mis)applying the doctrine here; accordingly, the doctrine should not be applied. CONCLUSION For the reasons stated herein, SCA requests that Armstrong and Tailwinds Motions to Stay and to Vacate be denied, and for such other relief as may be necessary or just. Respectfully submitted,
________________________________________ Jeffrey M. Tillotson, P.C. Texas Bar No. 20039200 LYNN TILLOTSON PINKER & COX, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3800 Telephone (214) 981-3839 Facsimile jmt@lynnllp.com ATTORNEYS FOR SCA PROMOTIONS, INC.
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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing document was served in compliance with the Texas Rules of Civil Procedure by serving a copy to the following counsel of record on February 19, 2014: Via Email Timothy J. Herman Sean E. Breen HOWRY BREEN & HERMAN, L.L.P. 1900 Pearl Street Austin, Texas 78705-5408 (512) 474-7300 (512) 474-8557 Fax therman@howrybreen.com sbreen@howrybreen.com
________________________________________ Jeffrey M. Tillotson, P.C.

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SCA Promotions Response To Lance Armstrong

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FILED DALLAS COUNTY 2/19/2014 11:01:04 AM GARY FITZSIMMONS DISTRICT CLERK

DALLAS COUNTY, TEXAS

116TH JUDICIAL DISTRICT

Tailwinds requests in a written order dated October 29, 2013.

________________________________________ Jeffrey M. Tillotson, P.C.

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