Slaney, Mary D. v. Int'l Amateur

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."