Slaney, Mary D. v. Int'l Amateur ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4146
Mary Decker Slaney,
Plaintiff-Appellant,
v.
The International Amateur Athletic Federation
and The United States Olympic Committee,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-99-0502-C-D/F--S. Hugh Dillin, Judge.
Argued January 19, 2001--Decided March 27, 2001
Before Flaum, Chief Judge, and Posner and Ripple,
Circuit Judges.
Flaum, Chief Judge. Former Olympic runner Mary
Decker Slaney ("Slaney") brought suit against the
International Amateur Athletic Federation
("IAAF") and the United States Olympic Committee
("USOC") shortly after an IAAF arbitration panel
determined that Slaney had committed a doping
offense. Slaney’s complaint raised a litany of
state-law claims which the district court
determined it lacked subject matter jurisdiction
over because of the applicability of The New York
Convention and the Amateur Sports Act.
Additionally, the complaint alleged violations of
the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), which the district
court dismissed pursuant to Fed.R.Civ.P.
12(b)(6). Slaney now appeals the district court’s
decision, arguing that: (1) the New York
Convention does not bar adjudication of her
claims against the IAAF, (2) the Amateur Sports
Act does not preempt all state-law claims by a
participating athlete against the USOC, and (3)
her complaint adequately alleges RICO violations.
For the reasons stated herein, we affirm the
decision of the district court.
I. BACKGROUND
In the course of her storied career, middle-
distance runner Mary Decker Slaney has captured
a multitude of United States and world records.
She is considered by many to be one of the most
celebrated female athletes of the past century,
as well as one of the greatest runners of all-
time. While Slaney began running in 1969, it was
not until fifteen years later that she received
international attention. At the 1984 Los Angeles
Games, Slaney was considered a favorite to medal
in the 3000 meters competition. While the world
watched on, half-way through the race, Slaney
began jostling for position with Zola Budd, a
South African born, barefooted runner. When the
pair became entangled, Slaney was tripped up by
Budd. Slaney tumbled onto the infield, injuring
her hip. As she crashed to the infield, any
chance for an Olympic medal came crashing down
with her. To this day, an indelible picture of
Slaney, fallen on the side of the track and
writhing in pain, remains in the minds of many
who witnessed the event.
Slaney rebounded from her Olympic defeat and
continued to compete, overcoming countless
injuries. In June of 1996, she competed in the
5000 and 1500 meter races in the national trials
for the Atlanta Olympics. Following her 5000
meter race, Slaney provided the USOC/1 with a
urine sample which was tested for prohibited
substances including exogenous testosterone.
Because current technology cannot detect the
presence of prohibited testosterone in the body,
testing programs measure the ratio of
testosterone to epitestosterone ("T/E") in the
body. This test, referred to as the T/E test,
assumes that an ordinary T/E ratio in humans is
one to one, and thus any ratio of above six to
one is consistent with "blood doping." The ratio
was established at six to one in order to account
for non-doping factors that might cause elevated
ratios in female athletes. Factors which may
influence T/E ratio include an individual
changing birth control pills, age, menstrual
cycle, bacterial contamination of the urine
sample, and alcohol use.
Slaney’s test was conducted at the University
of California at Los Angeles ("UCLA") Laboratory.
The test revealed that Slaney’s T/E ratio was
elevated significantly beyond the permitted six
to one ratio./2 The laboratory notified both the
USOC and the IAAF/3 of its findings. According
to Slaney, the USOC informed United States of
America Track and Field, Inc. ("USATF")/4 of its
mandatory duty to investigate whether Slaney’s
specimen should be declared positive for
testosterone. However, it appears that the USATF
played no such role, as the actual investigation
was conducted by the IAAF. The IAAF’s
investigating doctor analyzed Slaney’s samples,
her past test results, and two additional
samples. Slaney claimed that her elevated level
was the result of (1) her menstrual cycle, and
(2) her changing of birth control pills.
Furthermore, Slaney posited that there was no
scientific validity to the hypothesis that a T/E
ratio above six to one was not normal for female
athletes. Nonetheless, on February 5, 1997, the
IAAF adopted the investigating doctor’s
recommendation and found Slaney’s specimen
positive for the prohibited substance
testosterone.
As a result of the IAAF’s decision, IAAF and
USOC rules required the USATF to hold a hearing
to determine whether Slaney had committed a
doping offense. Slaney asked the USATF Custodial
Board to dismiss her case, and also filed a
complaint with the USOC under its rules. The USOC
complaint alleged that the USATF proceedings
against her violated the Amateur Sports Act as
well as the USOC Constitution and By-Laws.
Specifically, the complaint alleged that the use
of the T/E test on female athletes had not been
scientifically validated, that the test
discriminated against women by shifting the
burden to an athlete to prove by clear and
convincing evidence that she was innocent, and
that the IAAF had failed to conduct a proper
investigation.
Concerned with the dilatory nature of the USOC
and the USATF proceedings, on June 10, 1997, the
IAAF suspended Slaney on an interim basis. The
suspension occurred just prior to the National
Track and Field Championships in Indianapolis.
Furthermore, the IAAF ensured compliance with the
suspension by invoking its contamination rule,
whereby anyone who competed with a suspended
athlete (in this instance Slaney) would
themselves be suspended. The IAAF’s actions
prompted the USATF Custodial Board to suspend
Slaney pending a hearing before the USATF Doping
Hearing Board, effectively mooting her motion to
dismiss the case against her.
Slaney received her hearing before the USATF
Doping Hearing Board on September 14, 1997. The
Hearing Board, unpersuaded by the testimony of
the IAAF’s investigating doctor, unanimously
determined that no doping violation had occurred.
Satisfied with the USATF Hearing Board’s finding
that the IAAF’s rules regarding the use of the
T/E ratio test were vague and inconsistent and
the six to one ratio was not scientifically
proven to be inconsistent with the normal ratio
in humans, Slaney withdrew her complaint with the
USOC.
The IAAF was unsatisfied with the USATF Hearing
Board’s findings, and invoked arbitration of the
USATF’s decision./5 Slaney and the USATF opposed
arbitration, but both were represented before the
IAAF Arbitral Panel ("the Tribunal"). In late
January 1999, the Tribunal issued an
interlocutory decision upholding the IAAF’s
interpretation of how to adjudicate a
testosterone doping offense, and found that the
rules were neither vague nor inconsistent. Thus,
once the IAAF showed that Slaney had a T/E ratio
greater than six to one, Slaney had to come forth
and show by clear and convincing evidence that
the elevated ratio was attributable to a
pathological or physiological condition.
Believing that it was scientifically impossible
to prove by clear and convincing evidence that
her high T/E ratio was due to pathological or
physiological factors, Slaney withdrew from the
arbitration, followed by the USATF. Ultimately,
the Tribunal ruled that Slaney had committed a
doping offense.
Slaney filed suit in the District Court for the
Southern District of Indiana raising numerous
state-law contract and tort claims against both
the IAAF and the USOC. Slaney also alleged that
the organizations had violated the RICO Act, 18
U.S.C. sec. 1961 et seq. On November 5, 1999, the
district court entered a judgment and order
dismissing Slaney’s state-law claims against the
IAAF and USOC pursuant to Fed.R.Civ.P. 12(b)(1),
and dismissing Slaney’s 18 U.S.C. sec.sec.
1962(c) and (d) claims pursuant to Fed.R.Civ.P.
12(b)(6). Specifically, the district court held
that the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral
Awards, 9 U.S.C. sec. 201 ("New York
Convention"), barred Slaney’s claims against the
IAAF, as those claims had been the subject of a
valid arbitration decision. With regard to
Slaney’s claims against the USOC, the court held
that the Amateur Sports Act, 36 U.S.C. sec.
220501 et seq., gives the USOC the exclusive
right to determine disputes over eligibility and
does not create a private right of action.
Finally, while the court held a RICO claim could
theoretically be maintained against the USOC,
Slaney’s complaint did not "come close to fitting
the family of claims Congress intended the RICO
statute to cover," nor did it adequately allege
a violation of the RICO conspiracy provision.
Slaney now appeals the decision of the district
court. She contends that (1) the New York
Convention does not bar her claims against the
IAAF, (2) the Amateur Sports Act does not preempt
all state-law claims made by an athlete against
the USOC, and (3) her complaint adequately
alleges a RICO claim against the USOC.
II. DISCUSSION
A. State-Law Claims Against the IAAF
Slaney’s first contention on appeal is that the
district court erred in dismissing her claims
against the IAAF pursuant to Fed.R.Civ.P.
12(b)(1). The district court determined that the
IAAF arbitration decision was covered by the New
York Convention. As such, the district court
could not entertain claims that would "undermine
or nullify the Tribunal’s decision." The court
concluded that Slaney’s present claims were
sufficiently related to the subject matter of the
arbitration decision so as to pose a barrier to
federal jurisdiction under Rule 12(b)(1), and
further held that none of the New York Convention
defenses towards enforcement of foreign
arbitration awards applied to Slaney’s situation.
In her present appeal, Slaney challenges the
district court’s decision dismissing her IAAF
claims, arguing that (1) Slaney is not subject to
the New York Convention, in that she has never
agreed-- in writing or by actions--to arbitrate
all disputes with the IAAF; (2) the claims raised
in Slaney’s complaint are separate and distinct
from the matter decided by the IAAF; and (3) she
has defenses under the New York Convention that
preclude enforcement of the IAAF arbitration
award against her.
A district court’s dismissal of a complaint
under Fed. R.Civ.P. 12(b)(1) is a legal
determination which we review de novo. See Massey
v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000).
According to 9 U.S.C. sec. 201, the Convention on
the Recognition and Enforcement of Foreign
Arbitral Awards (New York Convention) shall be
enforced in the United States courts. Article II
of the Convention speaks to the requirements of
states that have signed on to the Convention.
Specifically, the section states that "[e]ach
Contracting State shall recognize an agreement in
writing under which the parties undertake to
submit to arbitration all or any differences
which have arisen or which may arise between them
in respect of a defined legal relationship,
whether contractual or not, concerning a subject
matter capable of settlement by arbitration."
Furthermore, the article requires that "[t]he
court of a Contracting State, when seized of an
action in a matter in respect to which the
parties have made an agreement within the meaning
of this article, shall, at the request of one of
the parties, refer the parties to arbitration,
unless it finds that the said agreement is null
and void, inoperative or incapable of being
performed." If an award has been rendered, that
award must be enforced unless the party against
whom enforcement is sought presents evidence that
one of the limited defenses enumerated under
Article V of the Convention is applicable. For
purposes of this appeal, we note that both the
United States and Monaco are signatories to the
Convention, such that the United States is bound
to enforce arbitral awards validly rendered in
that country.
In analyzing the merits of Slaney’s appeal, we
proceed in a systematic fashion. First, we must
examine the decision rendered by the IAAF
arbitration panel and determine the specific
findings made by that Tribunal. Second, we shall
examine the state-law causes of action that
Slaney now brings against the IAAF in her
complaint to the district court, and determine
whether in fact those claims seek relitigation of
an issue determined by the arbitration. If we
determine that adjudication of Slaney’s present
claims would necessitate a reexamination of
matters decided by the arbitration decision, we
must resolve whether the arbitration decision,
which took place on foreign soil, should be
recognized by the courts, and thus deprive us of
subject-matter jurisdiction over the present
claims. Finally, assuming that we are
theoretically obligated to recognize the decision
of the Tribunal, we must inquire whether any
defense to enforcement is applicable.
1. Decision of the Tribunal
The April 25, 1999 opinion of the IAAF arbitral
panel begins by expounding on the reasoning
behind its interlocutory opinion. Setting forth
the evidentiary procedure, the Tribunal notes
that the initial burden of proof rests with the
IAAF to show that an athlete has a T/E ratio
greater than the 6:1 established limit. If the
IAAF can do so, according to the Tribunal, the
Federation has provided sufficient evidence for
the sample to be deemed positive. At that point,
the burden is shifted to the athlete, who must
prove by clear and convincing evidence that the
elevated T/E ratio was due to pathological or
physiological conditions. In making this
analysis, the Tribunal drew from the IAAF rules
on testing for testosterone.
With the evidentiary procedure established, the
Tribunal continued to consider whether Slaney had
committed a doping offense. The Tribunal noted
that the IAAF had established that both of
Slaney’s specimens had been analyzed as having
T/E ratios significantly higher than 6:1. The
tribunal also observed that Slaney’s longitudinal
study revealed a previous T/E ratio high of 3:1;
meaning that her present ratio, by the most
modest of calculations, was more than three times
greater than she had ever previously tested. Thus
the burden was shifted to Slaney to produce a
valid explanation for the findings. The Tribunal
noted that Slaney had produced no evidence, let
alone that of a clear and convincing nature, to
prove that her elevated ratio was the result of
pathological or physiological factors. Since
Slaney had withdrawn from the proceedings, and
refused to tender her medical records to the
Tribunal, the panel was forced to conclude under
the burden-shifting procedure it had outlined
that Slaney was guilty of a doping offense on
June 17, 1996.
2. Slaney’s Present Complaint and its Relationship
to the Tribunal’s Decision
Keeping in mind the orbit of the Tribunal’s
decision, we now turn to examine Slaney’s present
state-law causes of action against the IAAF.
Slaney raises six such claims: breach of
contract, negligence, breach of fiduciary duty of
good faith and fair dealing, fraud, constructive
fraud, and negligent misrepresentation. Putting
aside Slaney’s amorphous allegations of
misrepresentations, we note that her complaints
center around the claim that the IAAF violated
its obligations to Slaney by "using the T/E ratio
as a proxy for doping in women." Thus, she
alleges that the Federation failed to properly
investigate her urine sample. Though Slaney does
not specify how she was damaged by the
implementation of the T/E test (for reasons that
will become pellucid during our discussion of
Slaney’s state-law claims against the USOC), the
answer is apparent. The implementation by the
IAAF of a burden-shifting approach to proving
ingestion of testosterone damaged Slaney in that,
as a result, she was unable to disprove that she
had committed the offense--resulting in her
suspension./6
We conclude that Slaney’s present complaint
seeks to address issues decided by the Tribunal.
During the course of the IAAF arbitration, Slaney
presented two positions: (1) that the IAAF’s T/E
ratio test for determining ingestion of exogenous
testosterone was invalid, and (2) that it could
not be proven that Slaney had committed a doping
violation. Though Slaney attempts to limit the
import of the Tribunal’s decision, characterizing
that decision as merely a finding that she had a
T/E ratio above 6:1, it is incontrovertible that
the arbitration panel went further, first
upholding the T/E ratio test, and then
determining that Slaney had committed a doping
offense. As our inquiry above made transparent,
Slaney’s state-law claims against the IAAF seek
deliberation on the identical issues. For
example, in order to adjudicate whether Slaney’s
Fifth Count (negligence against the IAAF) is a
valid claim, the court would be required to delve
into whether the cause of action makes the prima
facie case. That probing would require that the
court assess whether the IAAF in fact breached
its obligations to Slaney. Slaney claims that the
IAAF had a duty to properly test her for drug
use. Since Slaney asserts that the IAAF breached
this duty by employing the T/E test, the court
would de facto be required to determine whether
the implementation of that test constituted a
breach of the duty to properly test athletes. Of
course, the court could not reach that decision
without addressing the validity of the test
itself. Likewise, any examination of damages
would require an assessment of whether Slaney was
properly found guilty of a doping offense. Thus,
we accept the district court’s finding that
allowing Slaney’s current action would undermine
or nullify the Tribunal’s decision. See Rudell v.
Comprehensive Accounting Corp., 802 F.2d 926, 928
(7th Cir. 1986).
3. Application of The New York Convention
Having determined that Slaney’s current
complaint seeks to relitigate issues previously
determined by the arbitration, we now turn to the
critical issue of whether we are required to
acknowledge the foreign arbitration decision. If
we are, then unless Slaney can present a defense
to enforcement, we cannot exercise subject-matter
jurisdiction over her present claims, as that
would require prohibited relitigation of
previously decided issues.
Slaney’s primary contention in this regard is
that the arbitration between herself and the IAAF
need not be enforced by federal courts in that it
did not satisfy the requirements of the New York
Convention. First, Slaney points out that there
is no agreement in writing between her and the
IAAF in which she agreed to submit her claims to
arbitration. Since the New York Convention states
that "[e]ach Contracting State shall recognize an
agreement in writing under which the parties
undertake to submit to arbitration all or any
differences which . . . may arise between them in
respect of a defined legal relationship," the
absence of such an agreement would allow
relitigation of matters decided in that
arbitration. Furthermore, Slaney puts forth that
even if the Tribunal’s decision is recognized,
that does not influence her present case, as she
was not a party to the arbitration. The IAAF
counters that Slaney, by becoming a member of the
USATF, agreed to abide by all IAAF rules.
Included within those rules is the requirement
that she arbitrate all disputes with the IAAF. If
the requirement of an agreement in writing is
applicable, the IAAF suggests that Slaney’s
written agreement with the IAAF satisfies the
requirement. Alternatively, the IAAF posits that
the "agreement in writing" requirement of Article
II of the New York Convention is immaterial in
this instance, as the IAAF is not seeking to
force Slaney to arbitrate her claims, but rather
arguing that her present claims have already been
decided by an arbitration. Additionally, because
the IAAF suggests that Slaney participated in the
IAAF arbitration, she cannot now raise the
procedural defense of lack of an arbitration
agreement.
Whether Slaney’s written agreement to follow the
rules of the USATF would satisfy the requirement
of an agreement in writing for purposes of
enforcing an arbitration agreement with the IAAF
is a question we need not resolve. Instead, we
direct our inquiry to whether Slaney was a party
to the IAAF arbitration, and what results flow
from that fact. An examination of Slaney’s
actions following the IAAF’s submission of the
matter to the Tribunal leads to only one
conclusion: Slaney was a participant in the
arbitration. During the arbitration, Slaney’s
counsel appeared before and presented arguments
to the Tribunal. Her counsel called an expert
witness to testify on Slaney’s behalf, filed a
motion to dismiss, and a motion for summary
judgment. Furthermore, Slaney’s counsel moved for
an interlocutory ruling regarding the burden of
proof the Tribunal would apply. Given this level
of participation, the district court was correct
to reject Slaney’s contention that she was merely
an interested athlete in the proceedings.
Assuming that this case had come to the
district court and the IAAF had sought to compel
Slaney to arbitrate her claims, a determination
as to whether there had been a writing might pose
a barrier to the IAAF’s position. However, that
is not the case. Here, an arbitration has already
taken place in which, as we have determined,
Slaney freely participated. Thus, the fact that
Slaney suggests there is no written agreement to
arbitrate, as mandated by Article II of the New
York Convention is irrelevant. See e.g., Coutinho
Caro & Co., U.S.A., Inc. v. Marcus Trading Inc.,
Nos. 3:95CV2362 AWT, 3:96CV2218 AWT, 3:96CV2219
AWT, 2000 WL 435566 at *5 n.4 (D. Conn. March 14,
2000) (recognizing a difference between the
situation where a party seeks to compel
arbitration and a situation in which one attempts
to set aside an arbitral award that has already
been issued). What is highlighted here is the
difference between Article II of the Convention,
which dictates when a court should compel parties
to an arbitration, and Article V, which lists the
narrow circumstances in which an arbitration
decision between signatories to the Convention
should not be enforced.
We see no reason why, even in the absence of a
writing, ordinary rules of contract law should
not apply. The Second Circuit, in Smith/Enron
Cogeneration Ltd. P’ship, Inc. v. Smith
Cogeneration Int’l, Inc., 198 F.3d 88, 96-97 (2d
Cir. 2000), cert denied 2000 WL 693555 (Oct. 2,
2000), noted that non-signatories to an
arbitration agreement may nevertheless be bound
according to ordinary principles of contract and
agency, including estoppel. Our judicial system
is not meant to provide a second bite at the
apple for those who have sought adjudication of
their disputes in other forums and are not
content with the resolution they have received.
Slaney had the opportunity to show that she had
never agreed to arbitrate the dispute when she
was notified of the arbitration, but she let that
opportunity pass. Slaney could not "sit back and
allow the arbitration to go forward, and only
after it was all done . . . say: oh by the way,
we never agreed to the arbitration clause. That
is a tactic that the law of arbitration, with its
commitment to speed, will not tolerate."
Comprehensive Accounting Corp. v. Rudell, 760
F.2d 138, 140 (7th Cir. 1985). "If a party
willingly and without reservation allows an issue
to be submitted to arbitration, he cannot await
the outcome and then later argue that the
arbitrator lacked authority to decide the
matter." AGCO Corp. v. Anglin, 216 F.3d 589, 593
(7th Cir. 2000). Thus, we find that the
Tribunal’s decision must be recognized by this
court, and unless a defense is present, must bar
her present claims.
4. New York Convention Defenses
Slaney alternatively suggests that even if we
are to determine that she is bound by the
arbitration panel’s decision, the New York
Convention provides exceptions in which a court
need not enforce a foreign arbitral decision, and
that those defenses to enforcement are applicable
to the Tribunal’s decision.
The first such defense raised by Slaney is that
the Tribunal’s decision should not be enforced
because she was denied the opportunity to present
her case. Slaney contends that under the IAAF
rules, the IAAF has the burden of proving beyond
a reasonable doubt that a doping offense has
occurred. Her defense, she puts forth, was that
the IAAF could not scientifically prove beyond a
reasonable doubt that any prohibited substance
was in her urine. Thus, when the Tribunal
concluded it was bound by the IAAF’s position--
that upon a showing that an athlete had a T/E
ratio greater than 6:1 the burden shifted to the
athlete to show by clear and convincing evidence
that the elevated ratio was due to a pathological
or physiological condition--the Tribunal in
effect denied Slaney a meaningful opportunity to
present her case.
Article V(1)(b) of the New York Convention
states that recognition and enforcement of an
award may be refused if the party against whom it
is invoked furnishes proof that it "was not given
proper notice of the appointment of the
arbitrator or of the arbitration proceedings or
was otherwise unable to present his case."
(emphasis added). A court of appeals reviews a
district court’s decision confirming an
arbitration award under ordinary standards:
accepting findings of fact that are not clearly
erroneous and deciding questions of law de novo.
See First Options of Chicago, Inc. v. Kaplan, 514
U.S. 938, 947-48, (1995); Generica Ltd. v.
Pharmaceutical Basics, Inc., 125 F.3d 1123, 1129
(7th Cir. 1997). As we have noted, in order to
comport with the requirement that a party to a
foreign arbitration be able to present her case,
we require that the arbitrator provide a
fundamentally fair hearing. See Generica, 125
F.3d at 1130. A fundamentally fair hearing is one
that "meets the minimal requirements of fairness-
-adequate notice, a hearing on the evidence, and
an impartial decision by the arbitrator."
Sunshine Mining Co. v. United Steelworkers, 823
F.2d 1289, 1295 (9th Cir. 1987) (internal
citation omitted). Nevertheless, parties that
have chosen to remedy their disputes through
arbitration rather than litigation should not
expect the same procedures they would find in the
judicial arena. See Generica, 125 F.3d at 1130.
Specifically, concerning evidentiary matters, the
Supreme Court has noted that "[a]rbitrators are
not bound by the rules of evidence." Bernhardt v.
Polygraphic Co., 350 U.S. 198, 203-04 n. 4,
(1956). The extent of an arbitrator’s latitude is
such that an "arbitrator is not bound to hear all
of the evidence tendered by the parties. . . .
[H]e must [merely] give each of the parties to
the dispute an adequate opportunity to present
its evidence and arguments." Generica, 125 F.3d
at 1130 (citing Hoteles Condado Beach v. Union De
Tronquistas, 763 F.2d 34, 39 (1st Cir. 1985)). It
is when the exclusion of relevant evidence
actually deprived a party of a fair hearing that
it is appropriate to vacate an arbitral award.
See id.
In Generica, we surveyed several cases in which
an arbitrator’s award was not enforced by the
courts on the grounds raised now by Slaney. For
example, in Tempo Shain Corp. v. Bertek, Inc.,
120 F.3d 16, 21 (2d Cir. 1997), the court held
that, under the FAA sec. 10(a), an arbitration
panel’s refusal to continue hearings to allow a
witness to testify, the only witness with
evidence of fraud not found from other sources,
was fundamental unfairness and misconduct
sufficient to vacate the award. In Iran Aircraft
Indus. v. Avco Corp., 980 F.2d 141, 146 (2d Cir.
1992), a court also vacated an arbitration award,
in that instance because the tribunal changed
evidentiary rules during the hearing and thus
prevented a party from presenting its documentary
evidence. See also Hoteles Condado, 763 F.2d at
40.) (vacating award when the arbitrator excluded
the only evidence available to refute the
claims); Hall v. Eastern Air Lines, Inc., 511
F.2d 663, 664 (5th Cir. 1975) (refusing to
enforce an award because the arbitration board
refused to give weight to a party’s previously
untendered alibi defense). Our examination of
these cases leads us to conclude that Slaney’s
allegation has no merit. This defense to
enforcement of a foreign arbitration need not
apply when a panel employs a burden-shifting test
in a fair manner. Slaney was not denied an
opportunity to present her evidence. Rather, the
arbitrator’s decision merely maintained the same
standard of proof the IAAF had always been guided
by. As such, Slaney’s complaint does not truly
attack the procedure implemented by the
arbitration panel, but rather an underlying
evidentiary decision of the panel. Unfortunately
for Slaney, as the Supreme Court has noted,
arbitrators are not bound by the rules of
evidence. Bernhardt, 350 U.S. at 203-04 n.4.
Thus, this attempted defense must fail.
Slaney’s final submission on this issue is that
"presuming she had committed a doping offense
based on a test that is scientifically invalid
and discriminatory towards female athletes
violated the ’most basic notions of morality and
justice.’" Slaney further postulates that
"eliminating the presumption of [her] innocence
based upon her elevated T/E ratio also violates
. . . explicit public policy that is well defined
and dominant and is ascertained by reference to
the laws and legal precedents and not from
general considerations of supposed public
interests."
According to Article V(2)(b) of the New York
Convention, "[r]ecognition and enforcement of an
arbitral award may also be refused if the
competent authority in the country where
recognition and enforcement is sought finds that:
. . . [t]he recognition or enforcement of the
award would be contrary to the public policy of
that country." In Fotocrome, Inc. v. Copal Co.,
517 F.2d 512, 516 (2d Cir. 1975), the Second
Circuit noted that the public policy defense is
exceedingly narrow. While Slaney states that the
Tribunal’s decision meets the stringent
requirements of that case and others, in that the
Tribunal’s decision violated the "most basic
notions of morality and justice," id., and that
enforcement would entail a violation of a
paramount legal principle that is "ascertained by
reference to the laws and legal precedents and
from general considerations of supposed public
interests," Industrial Risk Insurers v. M.A.N.
Gutenhoffnungshutte GmbH, 141 F.3d 1434, 1445
(11th Cir. 1998) (internal quotations omitted),
she provides little support for her contention.
Reduced to its essence, Slaney contends that
the burden-shifting approach adopted by the IAAF
violates United States public policy. We
disagree. According to the parties, proving the
presence of exogenous testosterone in the body by
scientific tests is not possible at the present
time. Therefore, the IAAF has adopted the
rebuttable presumption of ingestion from a high
T/E ratio in an athlete’s urine, as detailed
throughout this opinion. Were the IAAF not to
make use of the rebuttable presumption, it would
be nearly impossible, absent eyewitness proof, to
ever find that an athlete had ingested
testosterone. As the IAAF notes, criminal
defendants are frequently required to come
forward with proof establishing a basis for
asserting affirmative defenses. See, e.g., Martin
v. Ohio, 480 U.S. 228 (1987); Leland v. Oregon,
343 U.S. 790 (1952). We hope that at some
juncture, science will develop a means for
detecting exogenous testosterone in athletes,
such that an athlete’s T/E ratio of 11.6:1 can be
discounted if it is based on innocent factors.
However, until that point in time, we are
confident that requiring an athlete to prove by
clear and convincing evidence that her elevated
ratio was due to pathological or physiological
factors does not invoke a violation of United
States public policy as federal case law has
required in order for a court to refuse to
enforce a foreign arbitral award.
Thus, having found that (1) Slaney participated
in the IAAF arbitration, (2) her present state-
law complaint seeks to relitigate issues decided
by the IAAF Tribunal, (3) the New York Convention
mandates enforcement of the arbitrator’s
decision, and (4) there is no defense that should
bar enforcement of the arbitration decision, we
find that the district court did not err in
dismissing Slaney’s state-law claims against the
IAAF pursuant to Fed.R.Civ. P. 12(b)(1).
B. State-Law Claims Against the USOC
Much as it does against the IAAF, Slaney’s
complaint alleges state-law violations against
the USOC. And, much like it did with regard to
the state-law claims against the IAAF, the
district court dismissed Slaney’s state-law
claims against the USOC, pursuant to Rule
12(b)(1). The district court granted USOC’s
motion to dismiss after determining that the
Amateur Sports Act preempted Slaney’s state-law
claims against the Committee, and that the Act
did not provide for a private right of action
under which Slaney could seek to have those
claims addressed by the district court. Slaney
challenges the decision of the district court,
arguing that the preemption doctrine does not
apply in this arena, such that the Amateur Sports
Act poses no jurisdictional barrier to the
adjudication of Slaney’s state-law claims against
the USOC. Once again, we review a district
court’s dismissal of a complaint pursuant to
Fed.R.Civ.P. 12(b)(1) de novo. See Massey, 221
F.3d at 1034.
We begin by noting that Slaney does not
challenge the district court’s statement that the
Amateur Sports Act creates no private right of
action. In fact, Slaney seeks to distance her
case from those in which plaintiffs have
attempted to bring suit under the Act. As stated
in her appellate brief, "[n]or is Mrs. Slaney
seeking to pursue a claim under the Amateur
Sports Act. In many of the cases cited by the
District Court, the plaintiffs asserted an
implied right in the Amateur Sports Act to bring
an action [to] enforce the USOC’s obligations
under the Act. Martinez v. USOC, 802 F.2d 1275,
1280 (10th Cir. 1987); Michels v. United States
Olympic Committee, 741 F.2d 155, 156 (7th Cir.
1984); Oldfield v. Athletic Congress, 779 F.2d
505, 507 (9th Cir. 1985); DeFrantz v. United
States Olympic Committee, 492 F. Supp. 1181, 1191
(D.D.C. 1980). Mrs. Slaney does not dispute the
results in those cases; they are simply
irrelevant." Thus, we concentrate our inquiry on
the issue of whether the Amateur Sports Act
precludes the court from examining Slaney’s
state-law claims.
According to the Amateur Sports Act, one of the
purposes of the USOC is to exercise exclusive
jurisdiction over all matters pertaining to
United States participation in the Olympic Games.
See 36 U.S.C. sec. 220503(3). The Act also states
that the USOC is designed "to provide swift
resolution of conflicts and disputes involving
amateur athletes, national governing bodies, and
amateur sports organizations," and "to encourage
and provide assistance to amateur athletic
activities for women." Id. at sec.sec. 220503(8),
220503(12).
Beginning with the often quoted language from
the concurrence in Michels v. United States
Olympic Committee, the district court reiterated
that "there can be few less suitable bodies than
the federal courts for determining the
eligibility, or procedures for determining the
eligibility, of athletes to participate in the
Olympic Games." 741 F.2d 155, 159 (7th Cir. 1984)
(Posner, J., concurring). From there, the court
cited numerous cases which have adopted the
principle that eligibility decisions fall within
the USOC’s exclusive jurisdiction over all
matters pertaining to United States participation
in the Olympic Games. For example, in Dolan v.
United States Equestrian Team, Inc., 257 N.J.
Super. 314, 608 A.2d 434, 437 (App. Div. 1992),
the court focused on the need for uniformity in
determining questions of eligibility, and held
"that it would be inappropriate to attribute
different or unique meanings to [the Amateur
Sports Act’s] provisions in New Jersey and thus
create a jurisdictional sanctuary from the
Congressional determination that these types of
disputes should be resolved outside the judicial
processes." Similarly, in Walton-Floyd v. United
States Olympic Committee, 965 S.W.2d 35, 40 (Tex.
Ct. App. 1998), the court noted that "[t]he
interest of maintaining consistent
interpretations among jurisdictions requires the
Act to pre-empt claims asserted under state tort
law. To hold a common law duty exists outside the
scope of the Act, thereby enabling an individual
athlete to bring suit, threatens to override
legislative intent and opens the door to
inconsistent interpretations of the Act." We
agree with the district court and the courts in
Dolan and Walton-Floyd that strict questions of
athletes’ eligibility are preempted by the
Amateur Sports Act’s grant of exclusive
jurisdiction to the USOC over all matters
pertaining to United States participation in the
Olympic Games. However, that conclusion does not
end our analysis.
Despite the fact that the district court
specifically noted its ruling was not based on a
finding that the Amateur Sports Act was a
complete preemption to all state-law claims,
Slaney devotes an ample portion of her brief to
arguing that the complete preemption doctrine
should not be applied in this context. There is
no disagreement that state-law causes of action
can be brought against the USOC. However, when it
comes to challenging the eligibility
determination of the USOC, only a very specific
claim will avoid the impediment to subject matter
jurisdiction that sec. 220503(3) poses.
In Foschi v. United States Swimming Inc., 916
F. Supp. 232 (E.D.N.Y. 1996)--a case relied upon
by Slaney for the proposition that the Amateur
Sports Act does not create complete preemption--
the court addressed issues of federal
jurisdiction in the context of state-law claims
against the USOC, and other amateur athletic
organizations. While the district court did not
dismiss those claims as being preempted by the
Amateur Sports Act, that decision can be
understood by examining the claims alleged.
There, the plaintiff alleged that her contractual
due process right was violated when United States
Swimming, among other things, contravened its own
rules. See id. at 237. While there is no dispute
that the USOC has exclusive jurisdiction when it
comes to eligibility determinations, the courts
can still play a role in ensuring that the
organization follows its rules for determining
eligibility. The extent of the courts’ powers in
this area was previously examined by way of a
suit brought by an athlete who captured the
world’s attention for reasons other than her
competitive achievements. In Harding v. United
States Figure Skating Ass’n, 851 F. Supp. 1476,
1479 (D. Or. 1994) vacated on other grounds, 879
F. Supp. 1053 (D. Or. 1995), the court defined
(we believe correctly) the limited role that
federal courts should play in eligibility
determinations. There, the court cautioned that
"courts should rightly hesitate before
intervening in disciplinary hearings held by
private associations . . . . Intervention is
appropriate only in the most extraordinary
circumstances, where the association has clearly
breached its own rules, that breach will
imminently result in serious and irreparable harm
to the plaintiff, and the plaintiff has exhausted
all internal remedies." Yet, while carving out
this limited exception to the preemption created
by the Amateur Sports Act, the opinion forewarned
that while examining whether internal rules had
been complied with, the courts "should not
intervene in the merits of the underlying
dispute." Id.
With this understanding of the limits of
preemption, we turn to Slaney’s claims against
the USOC. Slaney suggests that nothing in the Act
precludes her from bringing her state-law claims
regarding the USOC’s administration of its drug
testing program, and specifically "the unlawful
manner in which the USOC conducts its doping
program." Based on our analysis above, we
disagree. An inspection of the state-law claims
that Slaney brings against the USOC reveals that,
despite her best efforts to suggest to the
contrary, Slaney is challenging the method by
which the USOC determines eligibility of its
athletes. Slaney’s first state-law cause of
action against the USOC is a breach of contract
claim. Slaney suggests that the USOC violated its
contractual obligations to Slaney by which she
suffered damages. While Slaney attempts to skirt
the issue, what she is actually alleging is that
she was injured by the USOC’s determination that
she was ineligible to compete. Similarly,
Slaney’s negligence claim against the USOC posits
that the USOC breached a duty to Slaney by using
the T/E ratio as a proxy for doping, and that as
a result Slaney was damaged. Slaney’s other
state-law claims are no different. Examination of
any of those claims would require an Article III
court to examine as an underlying issue the
validity of the T/E test, an endeavor we cannot
partake in.
We note that throughout her complaint Slaney
attempts to avoid any mention of the fact that
her damages arise from the USOC’s determination
regarding her eligibility. We assume that such a
tactic is a recognition of what we have already
stated: the USOC has exclusive jurisdiction,
under the Amateur Sports Act, to determine all
matters pertaining to eligibility of athletes.
Yet, Slaney cannot escape the fact that her
state-law claims, whether framed as breach of
contract, negligence, breach of fiduciary duty,
fraud, constructive fraud, or negligent
misrepresentation, are actually challenges to the
method by which the USOC determines eligibility
of athletes. Slaney does not suggest that the
organization contravened its own guidelines, and
as Slaney freely admits, the Amateur Sports Act
creates no private cause of action. Thus, the
district court was correct in determining that it
lacked subject matter jurisdiction over Slaney’s
state-law claims against the USOC and thus in
dismissing those causes of action pursuant to
Fed.R.Civ.P. 12(b)(1).
C. RICO Claims
Slaney’s final contention on appeal is that the
district court erred in dismissing her RICO
claims against the USOC./7 In her complaint,
Slaney alleges that the USOC conducted and
continues to conduct the drug testing affairs of
the "Olympic Movement" through a pattern of
racketeering activity. Slaney puts forth that the
Olympic Movement is the principal international
association of sports organizations and persons.
The Movement, which she posits operates under the
supreme authority of the International Olympic
Committee ("IOC"), is comprised of the
international federations, national Olympic
committees, organizing committees of the Olympic
games, national associations, clubs and the
athletes. According to the complaint, the
Movement’s drug testing program "is a fraud,
designed in principal if not exclusive part to
protect the commercial value of the Olympic and
subsidiary organizations’ properties and their
product." The district court, relying in part on
our decision in Fitzgerald v. Chrysler Corp., 116
F.3d 225 (7th Cir. 1997), determined that
Slaney’s claim against the USOC "does not come
close to fitting the family of claims Congress
intended the RICO statute to cover." Thus, the
court dismissed Slaney’s 18 U.S.C. sec. 1962(c)
claim. The court also held that Slaney had failed
to allege a violation of the RICO conspiracy
provision, and that hence she had failed to state
a proper claim under 18 U.S.C. sec. 1962(d).
We review a district court’s dismissal of a
complaint pursuant to Fed.R.Civ.P. 12(b)(6) de
novo, and accept all factual allegations in the
complaint and draw all reasonable inferences from
those facts in favor of the plaintiff. See
Stachon v. United Consumers Club, Inc., 229 F.3d
673, 675 (7th Cir. 2000). However, the court is
not required to ignore facts alleged in the
complaint that undermine the plaintiff’s claim.
See Arazie v. Mullane, 2 F.3d 1456, 1465 (7th
Cir. 1993). In evaluating the dismissal of
Slaney’s complaint, we examine the complaint as
a whole and will affirm the district court’s
order of dismissal only if it appears beyond
doubt that Slaney can prove no set of facts in
support of her claim which would entitle her to
relief. See Walker v. Wallace Auto Sales, Inc.,
155 F.3d 927, 930 (7th Cir. 1998) (citing Conley
v. Gibson, 355 U.S. 41, 45-46 (1957)).
Furthermore, allegations of fraud in a civil RICO
complaint are subject to the heightened pleading
standard of Fed.R.Civ.P. 9(b), which requires a
plaintiff to plead all averments of fraud with
particularity. See Goren v. New Vision Int’l,
Inc., 156 F.3d 721, 726 (7th Cir. 1998).
Accordingly, a RICO plaintiff must, at a minimum,
describe the two predicate acts of fraud with
some specificity and state the time, place, and
content of the alleged false representations, the
method by which the misrepresentations were
communicated, and the identities of the parties
to those misrepresentations. See id. at 726, 728-
29; see also, Lachmund v. ADM Investor Serv.,
Inc., 191 F.3d 777, 784 (7th Cir. 1999). Finally,
an appellate court may affirm the district
court’s dismissal on any ground supported by the
record, even if different from the grounds relied
upon by the district court. See Triad Ass’n v.
Chicago Hous. Auth., 892 F.2d 583, 594 (7th Cir.
1989).
1. Sufficiency of Allegations Under sec. 1962(c)
In order to state a viable cause of action
under sec. 1962(c), a plaintiff must allege (1)
conduct (2) of an enterprise (3) through a
pattern (4) of racketeering activity. See Sedima,
S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496
(1985)./8 Taking the facts alleged in Slaney’s
complaint as true (without vouching for their
truth), the USOC is the domestic representative
or agent of the IOC and is responsible for
carrying out the mission of the IOC and the
Olympic Movement. The USOC is subject to the
IOC’s drug testing program, which it carries out
in the United States, and is a member of the
Olympic Movement. Finally, the Olympic Movement
is subject to the supreme authority of the IOC.
Thus, Slaney posits, the USOC are "persons"
associated with the "enterprise" that is the
Olympic Movement.
Slaney’s RICO claim against the USOC is legally
insufficient for a number of reasons. As the
district court did, we will first examine whether
Slaney’s complaint satisfies the conduct prong of
a 1962(c) cause of action./9 According to the
Supreme Court, in order to have conducted or
participated in the enterprise’s affairs under
sec. 1962(c), the person charged must have had
some part in directing those affairs. See Reves
v. Ernst & Young, 507 U.S. 170, 179 (1993). "In
other words, she must have participated in the
operation or the management of the enterprise
itself, and she must have asserted some control
over the enterprise." United States v. Swan, 224
F.3d 632, 635 (7th Cir. 2000). Slaney suggests
that because the USOC is responsible for
administering the drug testing program in the
United States, that the USOC conducts the affairs
of the enterprise. While Slaney is correct that
sec. 1962(c) does not require the individual
(here, the USOC) to have absolute domination over
the enterprise (in this instance, the Olympic
Movement), RICO does require that the person have
had some control over the enterprise itself. See
Swan, 224 F.3d at 635.
Slaney’s complaint fails to allege that the
USOC exerts any control over the Olympic
Movement. In fact, Slaney’s description of the
Olympic Movement suggests a structure in which
the USOC could not have directed the enterprise’s
affairs. The complaint suggests the Movement as
operating "under the supreme authority of the
IOC" which has sole responsibility for allowing
members into the Movement. The USOC is described
as merely a "domestic representative or agent .
. . responsible for carrying out the mission of
the IOC." The complaint is devoid of any
suggestion that as an agent, the USOC took part
in managing the Movement.
At best, Slaney has alleged that the USOC has
been delegated the authority by the Movement to
conduct the drug testing program in the United
States. However, as we have made patent, "simply
performing services for an enterprise, even with
knowledge of the enterprise’s illicit nature, is
not enough to submit an individual to RICO
liability under sec. 1962(c)." Goren, 156 F.3d at
728. Rather, we require that "the defendant must
participate in the operation or management of the
enterprise." Id. at 727. Slaney’s complaint
contains no allegation that the USOC, as an
individual, had any control over the enterprise
itself. While Slaney suggests such lack of
control is "besides the point," the Supreme Court
has held to the contrary. See Reves, 507 U.S. at
179. We cannot draw the conclusion that USOC’s
control over one aspect of the Olympic Movement’s
activities in this country translates into the
USOC having had control over the Movement as an
enterprise. Simple exertion of control over one
aspect of an enterprise’s activities does not
evince control over the enterprise itself.
Even if Slaney’s complaint could be read to
allege that the USOC took some part in directing
the Olympic Movement’s affairs, it fails (as the
district court noted) to satisfy the pattern
requirement of 1962(c) because it fails to plead
sufficient facts to show that the USOC engaged in
a pattern of racketeering activity. As stated
above, a pattern of racketeering activity
consists, at a minimum, of two predicate acts of
racketeering (committed within a ten-year time
period). See Goren, 156 F.3d at 728. Here, Slaney
advances the predicate acts of mail and wire
fraud. See 18 U.S.C. sec.sec. 1341, 1343. As we
noted earlier, a plaintiff alleging predicate
acts of mail and wire fraud must do so with
particularity. See Fed.R.Civ.P. 9(b). In order to
satisfy this standard, a RICO plaintiff must
allege the identity of the person who made the
representation, the time, place and content of
the misrepresentation, and the method by which
the misrepresentation was communicated to the
plaintiff. See Vicom, Inc. v. Harbridge Merchant
Serv., Inc., 20 F.3d 771, 777 (7th Cir. 1994).
Moreover, because a RICO plaintiff must allege
two predicate acts of fraud, she must satisfy the
requirements of Rule 9(b) twice. See Emery v.
American Gen. Fin., Inc., 134 F.3d 1321, 1323
(7th Cir. 1998).
After examining Slaney’s complaint, we find that
she has failed to allege a pattern of
racketeering activity with sufficient
particularity to satisfy the requirements of Rule
9(b). Slaney’s complaint asserts that the USOC
"used and continues to use the mails and wires to
convey their false and deceptive communications
to and about Mrs. Slaney, which communications
were and continue to be an integral component of
the fraudulent scheme." To satisfy the
particularity requirements of Rule 9(b), Slaney
suggests that we examine paragraphs 1-104 of her
complaint./10 A perusal of the complaint
convinces this Court that Slaney has not alleged
two predicate acts. According to Slaney, the USOC
informed the USATF that it was mandatory for the
USATF to conduct an investigation of Slaney’s
urine sample before she could be declared
positive for prohibited testosterone. Slaney
suggests that this information was first
transmitted to the USATF on June 28, 1996 and
then again two weeks later. As such, Slaney
suggests that we find that the pattern
requirement of RICO has been satisfied.
Slaney has not presented any case law, nor have
we found any precedent for the proposition that
a single fraudulent representation, reiterated
once over a two-week period can constitute a
pattern of racketeering for 1962(c) purposes. In
Lipin Enterprises, Inc. v. Lee, 803 F.2d 322, 324
(7th Cir. 1986), we held that a single fraudulent
scheme with only one injury to one victim was not
a "pattern of racketeering activity" under sec.
1962(c) simply because it required several acts
of mail and wire fraud to inflict the single
injury. In so holding, we noted that mail fraud
and wire fraud are perhaps unique among the
various sorts of "racketeering activity" possible
under RICO in that the existence of a
multiplicity of predicate acts may be no
indication of the requisite continuity of the
underlying fraudulent activity. Thus, a
multiplicity of mailings does not necessarily
translate into a "pattern" of racketeering
activity. See Lipin, 803 F.2d at 325; see also
Ashland Oil, Inc. v. Arnett, 875 F.2d 1271,
1278-79 (7th Cir. 1989); Tellis v. United States
Fidelity & Guar. Co., 826 F.2d 477, 478 (7th Cir.
1986) (multiple acts of mail fraud in furtherance
of a single episode of fraud involving one victim
and relating to one basic transaction cannot
constitute the necessary pattern). Nor is the
fact that Slaney suggests the USOC continues to
conduct the drug testing program in the United
States sufficient to plead the pattern
requirement. "Indeed, we have repeatedly held
that a plaintiff’s conclusory allegations that
’defendants’ also defrauded unidentified ’others’
are not enough to plead the requisite pattern of
fraud." Goren, 156 F.3d at 729. Because the
single representation that the USATF would
conduct the investigation into Slaney’s urine
sample is the only fraud alleged in the
complaint, that complaint fails to state a claim
under sec. 1962(c). Thus, the district court was
correct when it noted that Slaney’s claim does
not come close to fitting the family of claims
Congress intended the RICO statute to
cover./11
2. Sufficiency of Allegations Under sec. 1962(d)
We have long recognized that sec. 1962(d)’s
target, like that of all provisions prohibiting
conspiracies, is the agreement to violate RICO’s
substantive provisions, not the actual violations
themselves. See Schiffels v. Kemper Fin. Servs.,
Inc., 978 F.2d 344, 348 (7th Cir. 1992)./12
Accordingly, it is the well-established law of
this Circuit that an individual can be charged
under sec. 1962(d) even if he personally does not
agree to commit two predicate acts of
racketeering. See Goren, 156 F.3d at 731. "[T]he
touchstone of liability under sec. 1962(d) is an
agreement to participate in an endeavor which, if
completed, would constitute a violation of the
substantive statute." Id. at 732. Hence, in order
to state a viable claim for conspiracy under sec.
1962(d), a plaintiff must allege that (1) the
defendant agreed to maintain an interest in or
control of an enterprise or to participate in the
affairs of an enterprise through a pattern of
racketeering activity, and (2) the defendant
further agreed that someone would commit at least
two predicate acts to accomplish those goals.
Lachmund, 191 F.3d at 784.
Slaney’s complaint did not allege a violation
of the RICO conspiracy statute. Nonetheless, the
district court was correct to address whether
there had been a violation of that section of
RICO. The fact that a complaint does not
reference 1962(d) is no obstacle to our
consideration of whether Slaney’s complaint
states a claim under sec. 1962(d) because under
the notice pleading regime of the Federal Rules
of Civil Procedure, plaintiffs are not required
to plead legal theories. See Goren, 156 F.3d at
730 n.8. "Instead of asking whether the complaint
points to the appropriate statute, a court should
ask whether relief is possible under any set of
facts that could be established consistent with
the allegations." Bartholet v. Reishauser A.G.
(Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992).
Slaney’s complaint is wanting for any allegation
that the USOC agreed to violate RICO. As the
district court noted, the closest the complaint
comes to alleging any sort of agreement is in the
statement that the USOC ordered the UCLA
laboratory not to hand over to Slaney any
information regarding the laboratory’s analysis
of her specimen. Yet, as the court noted, there
is not even a hint that this command by the USOC
was given with any motivation to participate in
the fraudulent affairs of the Olympic Movement or
an agreement to commit two predicate acts. Thus,
Slaney results to bolstering her 1962(d) claim by
introducing new evidence and drawing inferences
from those materials that the USOC is engaging in
a conspiracy to violate RICO. We have
consistently frowned upon such essays to cure
pleading deficiencies by means of introducing new
factual support in appellate briefs. Put simply,
"the pleading itself must state the essential
elements of the RICO action or it is worthy of
dismissal." Richmond v. Nationwide Cassel L.P.,
52 F.3d 640, 646 (1995). As a result, we find
that Slaney has failed to sufficiently allege a
RICO conspiracy.
III. CONCLUSION
Slaney participated in a valid arbitration with
the IAAF which, under the New York Convention, we
are obligated to recognize. Thus, the issue
decided in that arbitration cannot be
relitigated. Because adjudication of the state-
law claims alleged against the IAAF in Slaney’s
complaint would necessitate relitigation of the
issue decided in the arbitration, the district
court correctly determined that it lacked
subject-matter jurisdiction over those claims.
Likewise, the district court correctly determined
that it lacked jurisdiction to adjudicate
Slaney’s state-law claims against the USOC,
finding that those claims were preempted by
Congress’s grant of exclusive authority to the
USOC to determine the eligibility of American
athletes. Finally, the district court correctly
determined that Slaney did not state a proper
claim against the USOC for violation of the
federal RICO statute.
For the foregoing reasons, we Affirm the decision
of the district court.
/1 The USOC, located in Colorado Springs, Colorado,
is the National Olympic Committee for the United
States. This status dictates that the USOC carry
out the mission of the International Olympic
Committee ("IOC") and the Olympic Movement in
this country. Because the IOC has promulgated a
drug testing program, the USOC administers that
program in the United States for all qualifying
competitions for the Olympic Games.
/2 Specifically, Slaney’s samples tested at ratios
of 9.5:1 to 11.6:1.
/3 The IAAF is an unincorporated organization based
out of Monaco, which was founded to coordinate
and control track and field activities around the
world. The IAAF, which has a membership of
federations representing over 200 nations and
territories, establishes worldwide rules for
track and field competitions which are embodied
in the IAAF Constitution and other regulations.
Each federation governs track and field
competitions within its own territory and has
agreed with all other federations to follow IAAF
rules in doing so.
/4 In addition to its Olympic duties, the USOC has
been designated as the coordinating body for all
amateur sports in this nation by the Ted Stevens
Olympic and Amateur Sports Act ("Amateur Sports
Act"), 36 U.S.C. sec. 220501 et seq. Under the
Amateur Sports Act, the USOC is required to
select a national governing body for each amateur
sport. For track and field, the USATF, an
Indianapolis corporation, has been designated as
the governing body. As the national governing
body, the USATF is subject to the Amateur Sports
Act. Furthermore, the USATF is also a member of
the IAAF, and is responsible for enforcing the
IAAF’s rules and regulations.
/5 Because of indications, during the late 1970’s,
that some national track and field federations
were turning blind eyes to their athletes’ drug
abuse, the IAAF established worldwide testing
procedures and eligibility rules. Rules 21-23
require all disputes between the IAAF and members
to be submitted to an arbitration panel.
/6 We note that Slaney walks a tightrope throughout
this portion of her appellate argument. On the
one hand, in order to raise many of the causes of
action she alleges, Slaney must establish that
there is a contractual relationship between her
and the IAAF. However, in order to maintain the
action as a whole against the IAAF, Slaney must
avoid any suggestion that she has a contractual
relationship with the IAAF whereby she has agreed
to abide by their rules, including those which
compel arbitration of all disputes.
/7 The original RICO claim was brought against both
the IAAF and the USOC. However, the district
court only analyzed the claim as it pertained to
the USOC, determining that the Tribunal’s
decision removed subject matter jurisdiction over
Slaney’s claim against the IAAF. On appeal,
Slaney has not challenged the dismissal of the
RICO claim against the IAAF, but rather only
argues that the district court erred in
misapplying the law with regard to the RICO claim
against the USOC. We do note that by challenging
the applicability of the New York Convention as
a bar against her claims, Slaney has in fact
challenged the foundation upon which the
dismissal of her IAAF RICO claim was granted.
However, because we determined above that the New
York Convention does in fact preclude all of
Slaney’s claims against the IAAF, we need not
further address the district court’s decision
regarding the IAAF RICO claim. Thus, as the
district court did, we focus our inquiry on
Slaney’s RICO claim against the USOC.
/8 18 U.S.C. sec. 1962(c) provides:
It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or
the activities of which affect, interstate or
foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful
debt.
/9 Slaney suggests that because the district court
focused on the conduct and pattern prongs of the
RICO cause of action, that it presumably found
the other elements adequately alleged. We
disagree. Since a cause of action under 1962(c)
requires four distinct elements, once the
district court determined that Slaney’s complaint
did not adequately state a claim for relief
because one of those elements was lacking, it was
under no obligation to address the remaining
elements. In this opinion, we do not address all
four elements of a 1962(c) claim. However, by no
means do we suggest that our silence on these
elements indicates that we find them adequately
alleged.
/10 We do not believe that in most cases it is proper
for a plaintiff to attempt to satisfy the
particularity requirement of 9(b) through an
incorporation of the entire complaint into the
RICO claim. In this instance, the 104 paragraphs
in Slaney’s complaint reference numerous mail and
wire transactions, most of which were completely
innocuous. Though we examined the alleged
predicate acts contained in those paragraphs, we
note that such a nebulous identification of
predicate acts could be grounds enough to find
that Slaney had failed to meet the particularity
requirement of 9(b).
/11 We also entertain serious doubt as to whether
Slaney has sufficiently alleged an enterprise, as
required by 1962(c). Slaney’s complaint has
merely defined the enterprise through the manner
in which it operates. But, "[t]his court has
repeatedly stated that RICO plaintiffs cannot
establish structure by defining the enterprise
through what it supposedly does." Stachon, 229
F.3d at 676. Though a pattern of racketeering
activity may be the means by which an enterprise
interacts with society, it is not itself the
enterprise, "for an enterprise is defined by what
it is, not what it does." Jennings v. Emry, 910
F.2d 1434, 1440 (7th Cir. 1990).
/12 18 U.S.C. sec. 1962(d) provides that "[i]t shall
be unlawful for any person to conspire to violate
any of the provisions of subsections (a), (b), or
(c) of this section."