Lance Armstrong Lied, Cheated, Doped, but Does He Really Owe Damages?By
Given his two-part interview with Oprah Winfrey on January 17 and 18, aka #DOprah, one might have hoped we’d heard the last about Lance Armstrong for a while. Well, not so fast. While Armstrong’s televised confessions—that he used banned performance-enhancing drugs and practices to secure his seven Tour de France wins, from 1999 to 2005; perjured himself in 2005 denying that he did so; intimidated those who doubted his innocence—had the feel of a deus ex machina from Greek tragedy, it was merely Act III of a five-act play. And from a legal point, it’s just getting good.
On Tuesday night, Department of Justice lawyers filed a complaint joining former Armstrong teammate Floyd Landis’s 2010 whistleblower lawsuit, which alleges that Armstrong, his racing team manager, Johan Bruyneel, and their team owner, Tailwind Sports, defrauded the U.S. Postal Service, the lead sponsor of Armstrong’s victorious Tour de France race teams. From 1998 to 2004, the USPS paid Tailwind $40 million, and the Postal Service-sponsored team raced under its name, in its Lyrca colors, and emblazoned with its logo. ($17.9 million of that $40 million, the documents reveal, went to pay Armstrong’s salary over that period). That Justice would join the suit was expected, and as we’ve pointed out previously, because the suit falls under the False Claims Act, DOJ lawyers could seek up to $120 million from the defendants. Armstrong has denied liability in the past. His attorney Elliot Peters told the Associated Press that the government’s complaint is “opportunistic” and “insincere.”
Drawing on the comprehensive investigation by the U.S. Anti-Doping Agency into Armstrong’s doping, as well as his own sworn testimony, the complaint is remarkably specific about the cheating Armstrong and Bruyneel orchestrated. It lists seven counts: five against all defendants, one against Armstrong and Bruyneel alone (“unjust enrichment”), and one singling out Tailwind Sports (“breach of contract”). Outside magazine has made the document available here (pdf).
The crux of the case is provisions in the contract between the USPS and Tailwind making it clear that doping was strictly prohibited and to be disciplined immediately. “Zero tolerance” is the precise phrase. In short, the sponsorship was contingent on the team racing clean.
On this score, if DOJ lawyers can show that anyone at Tailwind knew about the doping, it’ll be difficult to defend the breach of contract claim. Likewise, Justice’s “unjust enrichment” count against Armstrong and Bruyneel seems solid. From the #DOprah specials, plus testimony from every other cyclist on the Postal teams, it’s well-established that Armstrong was at the heart of a sophisticated doping program and that this program helped him secure the racing wins that attracted sponsors, even seven-figure bonuses. What’s more, the complaint reveals, Armstrong’s defiant assurances at the time that he had not used banned substances were not reserved for press conferences. “On or about November 30, 2000,” the DOJ attorneys write, “Armstrong met with the USPS Vice President for Sales in Austin, Texas, to discuss Armstrong’s response to media inquiries regarding doping allegations. During their conversation, they also discussed ways to clean up cycling. In response to the suggestions by the USPS Vice President of Sales that teams sponsored by large, reputable institutions such as the USPS might lead the way in such an effort by serving as examples of success achieved without doping, and by exerting pressure on other teams to be more open, Armstrong misled the USPS Vice President for Sales by suggesting, through his words and conduct, that the USPS team was among the clean teams that might lead by example.”
If certain parts of the case seem clear; others do not. For example, it’s not obvious how the government lawyers will establish jurisdiction in Washington, D.C., over Johan Bruyneel, a U.K. citizen. William Miller, a spokesman for the DOJ, declined to comment.
Perhaps most curiously, how will the court assess damages on behalf of the Postal Service? Has the brand of the USPS actually been harmed by Armstrong’s years-late confession? Devil’s advocate: Didn’t the marketing executives at the Postal Service get what they paid for—and then some—when Armstrong pulled off his unprecedented run of Tour De France wins?
Despite being dogged by doping accusations, Armstrong, during the period when he wore the USPS colors and logo, couldn’t have cut a more favorable profile—as a cancer survivor, invincible athlete, and eventually, Sheryl Crow’s boyfriend and celebrity philanthropist. Arguably, Armstrong did more to enhance the U.S. Postal brand while he was cheating than he’s done to harm it since confessing.