Q. Dear Explainer,
I just had to run out and buy the latest issue of Sports Illustrated to see their latest on Lance Armstrong. Frankly, I hope none of this is true, but it’s beginning to look like he may face indictment from that grand jury.
How much of that article contains new information? Didn’t Lance disprove a lot of those allegations in the lawsuits, especially against the insurance company? What purpose is served dredging up old charges? Why rely on evidence from people like Betsy Andreu, who seem to have their own agendas?
Finally, if the feds take this stuff seriously, what charges would he actually face?
A. Dear Allen,
Well, you have a lot of questions there, Allen. I’ll try to answer what I can.
I just had a chance to review the article “The Case Against Lance Armstrong,” by SI reporters Selena Roberts and David Epstein, yesterday morning. My initial impression was that a great deal of the article does indeed involve allegations rooted in charges that have been floating around for years. There are some significant new elements, though, and we’ll touch on some of those, too.
Something old, something new
Much of the story involves charges originally leveled in articles and books written by chief sportswriter David Walsh of the Sunday Times of London. Some of those allegations have been updated with new information in the SI piece.
It was Walsh, for example, who uncovered Armstrong’s relationship with Dr. Michele Ferrari back in 2001. Armstrong then acknowledged he had worked with Ferrari, but said the two had never discussed doping.
“Every time his name is mentioned, everyone expects the worst,” Armstrong said at the time. “He is being painted as the worst person in cycling but I don’t think there is any controversy behind his poor image. I consider him an honest man.”
Nonetheless, Armstrong publicly ended the relationship when the doctor was convicted (but later cleared) of doping charges in an Italian court. The Sports Illustrated article, however, raises new allegations that members of the RadioShack team — possibly including Armstrong — have either continued or recently resumed working with Ferrari.
While you’re right in saying many of these are “old charges,” none of them have really been fully considered by a court, even though many of them have been at issue in earlier civil suits. Here’s why.
Walsh and French journalist Pierre Ballester teamed up to write “L.A. Confidentiel: Les secrets de Lance Armstrong” in 2004. The book was produced only in French, and Armstrong sued in British and French courts upon publication. Armstrong’s legal team dropped the French suit soon after it was filed, but continued a suit against the Sunday Times in British courts for publishing translated selections of the book in the newspaper. Armstrong and The Times reached a six-figure settlement before the case went to trial.
How one should interpret that settlement depends on how you look at it. Certainly, as the winner of the settlement, Armstrong’s legal team has touted the agreement as a complete refutation of the allegations contained in the book. Walsh and his lawyers have said that the suit was dropped in France because French courts tend to view libel and slander allegations pretty much the way American courts do. Conversely, British courts treat libel quite differently — and much more favorably for plaintiffs. The defendants say theirs was a pragmatic and financial decision and not a concession that the allegations were without foundation.
Walsh reproduced many of the same allegations and made others in English in 2007 with the publication of “From Lance to Landis: Inside the American Doping Controversy at the Tour de France.” There have been no lawsuits filed in relation to the publication of that book.
Refuted or not relevant to the matter at hand?
The lawsuit against the insurance company to which you refer involved a Texas-based firm known as SCA Promotions. SCA had sold Tailwind Sports — the sports promotion company that managed the U.S. Postal team and may or may not have been owned by Armstrong — a $5 million “insurance” policy that would be paid only if Armstrong won his fifth successive Tour de France in 2004. (Whether that’s actually insurance or an elaborate form of betting on the outcome of a sporting event, I’ll leave to you to decide.) Regardless, we all know the outcome. Armstrong won his fifth Tour and he and Tailwind went to SCA owner Bob Hamman to collect.
Normally, that would be it. The race was over, Armstrong stood atop the podium in Paris and SCA had a policy payment to make. But there were two key events that year. One was obviously the Tour de France victory, but the other was the publication of the aforementioned book by Walsh. Hamman looked at the allegations leveled in “L.A. Confidentiel” and decided that he wouldn’t need to pay the $5 million if it could be shown that the victory somehow involved cheating.
With $5 million at stake, Tailwind and Armstrong quickly filed suit and the case — as the contract required — went to arbitration. It was during those hearings that many of the allegations included in the Sports Illustrated story were raised. As you mentioned, Betsy and Frankie Andreu both testified that Armstrong had conceded to his doctors in 1996 that he had used performance-enhancing drugs prior to his cancer diagnosis. That testimony was contradicted by Oakley marketing rep Stephanie McIlvain, who was also present when Armstrong allegedly made that statement.
Also in the hearing transcript is mention of a possible cover-up of an earlier positive test for testosterone. That was an allegation first alluded to in the Wade Exum lawsuit against the U.S. Olympic Committee and further detailed in this week’s Sports Illustrated story.
In the end, the arbitration panel found in favor of Armstrong and Tailwind, ordering Hamman to pay not only the $5 million policy, but also costs and attorneys’ fees, for a grand total of $7.5 million. Armstrong has often pointed to that case as proof that the allegations leveled by Walsh and then embraced by Hamman were completely disproven. That may or may not be true, but the case wasn’t decided on the basis of the panel’s view of the accuracy of the testimony. It was decided as a contracts case. In other words, the panel simply found that the original agreement between SCA and Tailwind lacked a provision that specifically barred payment in the event the recipient was shown to have cheated.
Whether the case would have been decided differently had the contract included such a provision has been the subject of some speculation since the panel issued its ruling in 2005. However, the testimony in the SCA case — and there is a lot of it — is a key element in the current case being pursued by Assistant U.S. Attorney Doug Miller and FDA investigator Jeff Novitzky. A lot of the witnesses in SCA have already appeared before the grand jury or have been interviewed by Novitzky and other investigators.
And now the feds
So, whether new, old or updated, some of the charges outlined by SI are quite serious. But what criminal charges might result?
I wrote an Explainer column back in July addressing that question and I admit it was largely inconclusive. Frankly, I am still wondering. Some of the events that could lead to the most serious charges occurred years ago and the federal statute of limitations may prevent prosecution.
That said, the rumor mill is buzzing these days and several credible sources believe that an indictment is imminent. If the grand jury does come out with indictments, it will be interesting to see how the case is structured and how prosecutors hope to overcome some of the major hurdles they face in presenting a case at trial.
No matter what, any criminal defendant has a constitutionally guaranteed presumption of innocence. Even if the prosecutors come up with an indictment, they still have the burden of proving any charges beyond a reasonable doubt.
We, of course, will be watching with interest if and when they lay out their case.
“The Explainer” is a regular feature on VeloNews.com. If you have a question feel free to send your query toCPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.