Analysis: The legal twilight of an Armstrong confession
BOULDER, Colorado (VN) — They’ve waited for him to come into sight. Waited for a clean shot at a man slick as Teflon, as weightless as wind.
Now is their chance to take down Lance Armstrong. And they’re coming for him, lawyers and all.
Or are they?
It appears now that Armstrong, the once-brilliant cyclist now stripped of everything from wins to endorsements to the chairmanship of his own charity, is poised to confess to performance enhancing drug use over his prodigious career on OWN, Oprah Winfrey’s network, next Thursday.
Should he confess, it would mark a sea change for the disgraced champion. Over the years, the cyclist rabidly defended his reputation against doping, tore down his critics and even sued a British newspaper for indicating he cheated to win the Tour de France a record seven times.
But this fall, the U.S. Anti-Doping Agency loosed 1,000 pages of evidence, including testimony from former teammates and others, that portrayed Armstrong not as the inspirational cyclist and cancer fighter many saw him as, but rather as part rider and part science experiment, as he used a cocktail of blood boosters, such as EPO, and blood bags to win the Tour de France.
Armstrong didn’t fight the charges, and was labeled as guilty by the media and fans. But the dogged Texan has never admitted anything publicly, ever. He has antagonized. He’s crushed those who came after him in the public relations arena, where his communications strategy has always dovetailed with legal tactics, forcing a two-front war for adversaries.
Nothing stuck to Lance. And should he confess (though Armstrong’s attorney’s wouldn’t comment on that matter Wednesday), there’s reason to think that may not change.
It’s likely Armstrong won’t be short of challengers, but litigants will have to be well funded and well prepared. The post-confession will likely prove a legal twilight, where statutes of limitations impose thick barriers around Armstrong and creative lawyers look to find ways around, through or over. USADA got around the issue citing a vast “conspiracy,” but can others?
“It’s hard to say from the outside what would have merit and what may or may not be barred by limitations. All of these things happened some time ago,” said Mark Stichel, a Baltimore-based attorney who has litigated civil cases in state and federal courts throughout the U.S. “The whole area of statute of limitation is difficult to assess. First off, statutes of limitations vary between states, and by cause of action. That being said, most statutes of limitations in civil cases are somewhere between two and six years, but there are some limitations out there … Given most of the things Armstrong may admit occurred five, 10 years ago, there’s a good chance that whatever he says could fall outside of the period in which someone could bring suit.”
The most obvious challenger is SCA Promotions, a Dallas-based company that provides insurance against freak athletic achievements, like holes in one or, say, winning the Tour de France multiple times. SCA initially withheld a $5 million bonus due to Armstrong after he won the Tour for a sixth time in 2004. The company believed him to be on PEDs then, and tried to skirt its dues on those grounds, but was made to pay in the end. Now, the company wants its money back, and then some, to the tune of $12 million.
And there’s a wrinkle: Armstrong, should he confess, would have committed perjury during the SCA arbitration when he denied having doped in a deposition he gave in Austin’s federal court on Nov. 30, 2005. The problem for SCA — and federal investigators? The courts aren’t likely to see it that way. Any sort of attack on Armstrong for perjury would likely be blocked by the statute of limitations.
“Under Texas law, it seems that the statute of limitations for perjury is two or three years. He’s likely off the hook on the perjury prosecution,” Stichel said.
There’s no way of knowing if SCA can get its money back after previously settling with Armstrong without seeing the documents between the parties, which haven’t been made public, but SCA has said it will try. Attempts to contact the company fell short on Wednesday.
This much is clear: Fighting with Armstrong in court is a difficult, expensive proposition. A confession by no means opens the floodgates, and Business Insider reported in November that Armstrong and his team had already engaged possible opponents; the confession, then, would come as nothing new.
“Whatever negative effect this could have may have already been dealt with,” Stichel said. “I would expect that they’ve been in discussion with potential litigants, especially governmental litigants.
“You obviously have to know the facts. And the other thing you have to asses is whether it’s worth it to litigate,” Stichel said. “I don’t expect he’s going to sit back and just start giving away money to people. I don’t think he’s had a personality transplant in the last few weeks. Whatever is in the works is something he and his advisors have calculated. He doesn’t do things spontaneously. He doesn’t do things on a whim.”
Then there is the matter of the federal criminal investigation. The Department of Justice has been tight-lipped since its case faded to black with little more than a press release on the Friday afternoon of Super Bowl week in 2012, in which no reason for abandonment was cited. Publicly, Armstrong breathed a sigh of relief after the government dropped the case, telling Men’s Journal he was finished fighting.
“In my mind, I’m truly done. You can interpret that however you want. But no matter what happens, I’m finished. I’m done fighting. I’ve moved on. If there are other things that arise, I’m not contesting anything. Case closed,” he said in the June issue of the magazine.
That turned out to be partially true: Armstrong attacked USADA but was unable to make anything stick, in the courts of public opinion or law, and didn’t contest the USADA dossier, at least formally.
It’s possible the federal criminal case could come back.
“If an investigation is closed, just speaking at large, not a specific bicycling investigation, if new evidence comes to light, it could be reopened, and that does happen on occasion,” Thom Mrozek, a U.S. Attorney’s Office spokesman told VeloNews on Wednesday.
Asked if the government was considering dusting off its Armstrong file — which was two years in the making — Mrozek declined to comment. Without question, the government would be Armstrong’s toughest opponent should Uncle Sam elect to fight.
“In theory the government has limitless resources. But even there, government prosecutors and lawyers have budgets and they have other matters. They may be willing to work deals out. Who knows,” Stichel said. Then again, that deal may have already happened.
It isn’t only in a reopened criminal case Armstrong may have to face the feds; Floyd Landis’ whistleblower suit is one of the worst-kept secrets in the entire arena, and the government is reportedly determining if it will join — and prosecute — the case. What a confession does to that filing, if anything, is unclear.
The United States Postal Service — the title sponsor of Armstrong’s vaunted Blue Train — is also after the cyclist, as outlined by legal filings unsealed in December.
Lawyers from the Department of Justice wanted to know everything about the Postal Service cycling affairs, from how much Armstrong was paid down to his communications with trainer Michele Ferrari and with drug makers capable of manufacturing performance-enhancing substances.
Armstrong initially fought a subpoena in the investigation, but the D.O.J. stepped in to enforce the filing. He eventually complied, but any information the former world champion supplied has not been released.
There are other comers. A British newspaper paid $1 million in a libel suit to the American, and wants its money back, too.
The Sunday Times is suing for the return of the payment, plus interest and legal expenses, totaling some $1.6 million. The initial suit, which centered on the work of 2012 British Journalist of the Year David Walsh, was initially settled in 2006, and offers yet another challenge, as the terms of settlements lack the clarity of plain and simple courtroom law.
And surely, there will be more.
“Once he makes a statement — what they say on the old police shows: can and will be used against you in a court of law. There’s no immunity in confessing to Oprah. There are people out there who I think feel pretty strongly that they’ve been wronged by Lance Armstrong,” Stichel said. “But I think it’s going to be hard. First, he’s going to fight hard. Second, I think there are significant limitations issues out there … It’s a fascinating case. From someone who has an interest in litigation and legal things, seeing his lawyers in action, seeing what they do, is always interesting. They’re innovative. They’re good. It’s going to be fun to watch.”