NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA 7/8/2016 9:27:35 PM Chris Daniel - District Clerk Harris County Envelope No. 11549539 By: bradley darnell Filed: 7/8/2016 9:27:35 PM NO. 2016-642848 § § § § § § § § V. JEFFREY BROWN, M.D. Respondent. IN THE DISTRICT COURT 129TH JUDICIAL DISTRICT ist ric t C ler k UNITED STATES ANTI DOPING AGENCY Petitioner, OF HARRIS COUNTY, TEXAS nie TO THE HONORABLE JUDGE OF SAID COURT: l D OPPOSITION TO MOTION FOR PRO HAC VICE ADMISSION TO THE STATE BAR OF TEXAS OF WILLIAM BOCK, III Da NOW COMES Jeffrey Brown, M.D., Respondent herein, and files this Opposition to the hr is Motion for Pro Hac Vice Admission (“Motion”) of William Bock, III, for the following reasons: C 1. Three independent reasons support the denial of this Motion, any of which alone should e of prevent Mr. Bock’s Pro Hac Vice admission to the Texas State Bar: (1) the Certificate of ffic Conference contains demonstrably false representations; (2) Mr. Bock already has engaged in op y O misconduct in Texas rendering him unfit for Pro Hac Vice admission and contradicting the C credibility of his statement that he will observe the ethical standards required of Texas attorneys; ial and (3) the United States Anti-Doping Agency (“USADA”), the Petitioner, lacks authority to Un of Motion. fic institute any lawsuit in connection with this matter, and thus no basis exists for the grant of this 2. The Certificate of Conference in this matter asserts, under penalty of perjury, that Mr. Arnette tried to reach the undersigned counsel for Dr. Brown on July 5 and 6, 2016 and never heard back. This statement is plainly false. Mr. Arnette in fact emailed Joanie Bain, counsel for Dr. Brown in this matter, asking if Ms. Bain would agree to Mr. Bock’s pro hac vice application. NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA Ms. Bain indicated that she would not so agree. Attached hereto as Exhibit A is the email chain from Mr. Arnett to Ms. Bain dated July 5, 2016 and Ms. Bain’s response to Mr. Arnette dated July 5, 2016 clearly stating that we oppose the Motion. That the Movant Mr. Bock submitted a false for Pro Hac Vice admission. ist ric t C ler k Certificate of Conference demonstrates that he lacks the reputable and ethical character required 3. Mr. Bock also has engaged in multiple acts of misconduct in Texas in an apparent attempt to harass and intimidate Dr. Brown into relinquishing his rights. As detailed in hr is Da nie l D Dr. Brown’s Opposition to USADA’s Rule 202 Petition, C Mr. Bock previously travelled to Houston, Texas; appeared unannounced at e of Dr. Brown’s medical office; made statements improperly suggesting that he was connected with ffic law enforcement or the government (he is not, as discussed below); and demanded that Dr. Brown op y O submit to an interview about certain of his patients’ confidential medical information. Mr. Bock C then sat in a meeting with undersigned counsel and Dr. Brown, and clearly threatened Dr. Brown ial and fic should Dr Brown “cooperate” by breaching his patients’ HIPAA right to privacy. Un of 4. Mr. Bock states that he is familiar with the State Bar Act, the State Bar Rules and the Texas Disciplinary Rules of Professional Conduct. Yet his actions to date do not appear to follow those guidelines. In addition, Mr. Bock’s prior conduct constitute the unauthorized practice of law in Texas because he asserted he was an attorney for USADA, purported to interpret the authority 2 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA and jurisdiction of USADA, and made representations regarding the implications of Dr. Brown’s “cooperation.” See Tex. Gov. Code 81.101. 5. In addition to the above, since USADA has no jurisdiction here, the Motion should be denied. For the reasons stated in Dr. Brown’s Opposition to USADA’s Rule 202 Petition, USADA ist ric t C ler k is not a governmental entity or law enforcement agency and thus lacks any inherent governmental or law enforcement authority. Rather, USADA is private, nonprofit agency organized under the laws of the State of Colorado.1 Indeed, USADA’s Chief Executive Officer Travis Tygart has l D admitted that the agency lacks governmental or law enforcement powers. A 2008 law review nie article co-authored by Tygart explicitly stated that USADA “is not a federal agency,” “has no Da authority to enforce any statutory laws of the United States,” and “cannot bring criminal charges hr is or cause the incarceration of any individual.”2 Moreover, “[a]s a private non-profit, [USADA] C cannot issue a subpoena to force anybody to talk. It cannot ask a court for a search warrant or e of make arrests.”3 ffic 6. While USADA has been recognized at the federal level, this federal recognition does op y O not confer any governmental or law enforcement powers on the agency. First, none of the federal C statutes recognizing USADA elevate that organization to a governmental entity or law Un of fic ial enforcement agency. See Title VII of the Office of National Drug Control Policy Reauthorization 1 See, e.g., Sarah L. Horvitz, Travis Tygart, Paul A. Turbow, Dopers Are Not Duped: USADA’s Assistance to Federal Prosecutions Ultimately Protecting Clean Athletes Is Not State Action, 19 MARQ. SPORTS L. REV. 39, 44 (2008), available at http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1023&context=sportslaw; Travis T. Tygart, Winners Never Dope and Finally, Dopers Never Win: USADA Takes over Drug Testing of United States Olympic Athletes, 1 DEPAUL J. SPORTS L. CONTEMP. PROBS. 124, 127 (2003) (hereinafter Tygart, Winners Never Dope), available at http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1103&context=jslcp. 2 Horvitz et. al., supra note 1, at 41, 47, 51, 58. 3 Brian Alexander, Lance Armstrong: Victim?, OUTSIDE (July 10,2012), http://www.outsideonline.com/1901611/lance-armstrong-victim. (Cont'd on next page) 3 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA Act of 2006,4 as amended in 2014 by the United States Anti-Doping Agency Reauthorization Act.5 Second, USADA does not derive law enforcement powers from its relationship with the United States Olympic Committee (“USOC”). USADA has ongoing, multi-year contracts with USOC “to conduct drug Testing, manage test results, investigate potential violations of anti-doping rules, ist ric t C ler k and adjudicate disputes involving anti-doping rule violations for Participants in the Olympic and Paralympic movements and to provide educational information to those Participants who are affiliated with NGBs.”6 However, USOC is a federally chartered corporation and the powers l D granted to it by federal statute do not include the power to act in a law enforcement capacity, let nie alone provide such law enforcement powers to USADA.7 Third, USADA does not derive law hr is Convention against Doping in Sport (“ICADIS”).8 Da enforcement powers by virtue of the United States’ ratification of the 2005 International C 7. Lastly, and critically, USADA also has no jurisdiction to institute this action. As e of USADA repeatedly has admitted, federal law requires USADA to litigate eligibility-to-participate- op y O ffic in-sport issues through arbitration rather than in judicial courts. See, e.g., Armstrong v. Tygart, Pub. L. 109-469, 120 Stat. 3502 (2006) §§701-703 (codified as amended at 21 U.S.C.A. §§2001-2003 (Thomson Reuters, Westlaw through P.L. 114-114 (excluding 114-94, 114-95 and 114-113) approved 12-282015)) 5 Pub. L. 113-280, 128 Stat. 3020 (2014) 6 U. S. ANTI-DOPING AGENCY, PROTOCOL FOR OLYMPIC AND PARALYMPIC MOVEMENT TESTING § 1, (effective as rev. Jan. 1, 2015) (hereinafter “2015 USADA Protocol”), available at https://www.usada.org/wpcontent/uploads/USADA protocol.pdf . 7 See 36 U.S.C.A. §220505 (Thomson Reuters, Westlaw through P.L. 114-115 (excluding 114-94 and 114-95) approved 12-28-2015). 8 United Nations Educational, Scientific, and Cultural Organization (UNESCO), International Convention Against Doping in Sport (hereinafter “ICADIS”), available at http://portal.unesco.org/en/ev.phpURL ID=31037&URL DO=DO TOPIC&URL SECTION=201 html; but see Michael Straubel, The International Convention Against Doping in Sport: Is It The Missing Link to USADA Being a State Actor and WADC Coverage of U.S. Pro Athletes?, 19 MARQ. SPORTS L. REV. 63 (2008) (discussing possibility that a broader reading of ICADIS and its potential implementation by the United States may lead to doping control agencies like USADA being declared state actors or to be considered as engaging in state action), available at http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1024&context=sportslaw. Un of fic ial C 4 4 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA 886 F. Supp. 2d 572 (W.D. Tex. 2012) (discussing the Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. §§ 220501-220529). USADA thus cannot bring a judicial “claim” or “suit” regarding eligibility issues and thus this action does not constitute a petition for a “deposition before suit or to investigate claims.” See Tex. R. Civ. Proc. 202. At its core, this proceeding itself of court procedures to which it simply has no right. ist ric t C ler k amounts to improper attempt by USADA to subject a private citizen to its authority and to avail 8. Moreover, it also is important to note that, even though USADA lacks governmental or l D law enforcement authority, the agency has a history of suggesting to others in an investigation nie that it has more powers than it actually has. Indeed, it has been reported that USADA CEO Da Tygart once boldly said “that he can force anybody to give testimony or produce evidence to an C not stop them from trying such as in this case. hr is arbitration panel, even if that person has no relationship to sports.”9 Clearly he cannot but it does e of 9. It is this out of control attitude that seeks the admission of Mr. Bock to harass and ffic intimidate Dr. Brown and breach the confidentiality rights of Dr. Brown’s patients. This Motion C op y O must be denied. ial WHEREFORE, PREMISES CONSIDERED, Respondent, Jeffrey Brown, M.D., fic respectfully prays that the Motion for Pro Hac Vice Admission of William Bock, III, be in all Un of respects, DENIED and the Court grant Respondent such other and further relief, in law or in equity, to which Respondent may be justly entitled. 9 U. S. ANTI-DOPING AGENCY, PROTOCOL FORWARD 5 Respectfully submitted, Bain & Bain PLLC Joan Lucci Bain C hr is Da nie l D ist ric t C ler k By: ______/S/____________ Joan Lucci Bain Texas Bar No. 01548020 Email: JBain@BainandBainlaw.net Bruce Bain Texas Bar No. 01546700 Email: BBain@BainandBainLaw.net 10810 Katy Freeway, Suite 102 Houston, Texas 77043 Tel. (713)629-6222 Fax (713)629-6226 Attorney for Respondent Jeffrey Brown, M.D. of CERTIFICATE OF SERVICE ffic e This Opposition to the Motion for Pro Hac Vice Admission of William Bock, III, was O served on the appropriate parties in accordance with Rule 21 of the Texas Rules of Civil Procedure Joan Lucci Bain _____/S/_____________ Joan Lucci Bain Un of fic ial C op y on July 8,2016. 6