Friday, February 3, 2012
Updated: February 4, 3:44 PM ET
End of Armstrong case raises questions
By Bonnie D. Ford
A 20-month-long federal criminal investigation of Lance Armstrong and his former professional cycling teams ended Friday with the unusual announcement by the Los Angeles-based United States Attorney's Office that the government was ending its pursuit of the case.
Federal authorities don't generally comment in those circumstances, but this probe, aimed at one of the most popular -- and polarizing -- figures in sports and American culture, has been the subject of intense media and public scrutiny since it heated up in the spring of 2010.
Numerous questions remain in the wake of the abrupt curtailment of an investigation that drew in dozens of witnesses, reams of scientific and financial documents, and multiple law enforcement agencies in the United States and overseas. Here are attempts to answer a few:
Q: Why did this happen now?
A: The statement from U.S. Attorney Andre Birotte Jr. issued late in the afternoon East Coast time on the Friday before the Super Bowl -- a traditionally distracted time in the American consciousness -- was predictably terse. Authorities are under no legal obligation to explain themselves. What is certain is that it caught many people involved in the case, and observers, by surprise.
Sources, legal and otherwise, who were not directly connected to the investigation, said prosecutors were still actively producing new leads, and these sources had expected indictments this spring. Several witnesses who testified before the federal grand jury in Los Angeles or spoke to investigators said they were stunned by the news. Other sources close to the case said investigators had described their evidence against Armstrong as being the strongest of any of the government's doping-related cases. And another person who has not testified, and who spoke only on condition of anonymity, had scheduled a meeting with lead investigator Jeff Novitzky next week.
However, as the U.S. Attorney for the Central District of California, where the grand jury was empaneled, Birotte had the authority to close the investigation unilaterally, without asking the grand jury whether indictments were warranted, if he concluded that there was insufficient evidence that a federal crime had been committed in his jurisdiction.
Q: Is the decision to terminate the investigation related to developments in the Barry Bonds and Roger Clemens cases?
A: The investigation led by Food and Drug Administration special agent Novitzky was based on a very different premise than those involving the two baseball stars, both of whom were ultimately charged with lying about steroid use under oath -- Bonds to a grand jury and Clemens to Congress. Bonds was convicted on one count of obstruction of justice and received a mild sentence of 30 days under house arrest. The Clemens case, which ended in a mistrial due to prosecutorial error, is scheduled to be retried in April.
|Lance Armstrong smiles during a news conference at Cedars-Sinai Hospital in Los Angeles. Federal prosecutors said Friday they are closing a criminal investigation of Armstrong and will not charge him over allegations he used performance-enhancing drugs.|
The Armstrong case had its genesis in doping allegations. But because sports doping is not in and of itself a federal crime, the case would have been built around fraud, conspiracy and other charges related to the violation of his team's contract with the U.S. Postal Service, which specifically prohibited doping. The investigation was also much larger in scope than any spawned by the BALCO probe, including Bonds and track star Marion Jones, or the separate Clemens case.
Critics of all three investigations focused on the government's financial outlay in tough economic times and questioned law enforcement priorities. There is little doubt that if Armstrong had been indicted and gone to trial, federal authorities would have faced a years-long, extremely costly battle against a stacked legal team and a defendant who retains a devoted constituency despite years of persistent questions about his character. Is it possible that this prospect affected Birotte's decision, or was it made for purely evidentiary reasons? There is also sure to be widespread speculation about whether political pressure came to bear, either because of the dynamics of an election year or Armstrong's many acquaintances on both sides of the aisle.
Q: Is Armstrong still subject to other legal action?
A: The U.S. Anti-Doping Agency has already formally signaled its intention to continue investigating the case. Although USADA lacks subpoena power, the agency has been privy to some evidence in the federal probe, and it will push for more to be turned over.
USADA's chief limitations could be budgetary concerns and the willingness of witnesses to testify. If USADA were to prevail against Armstrong, who retired for the second time last year, sanctions could range from disqualification of racing results to forfeiture of prize money to a suspension from any involvement in the sport. Although some of Armstrong's seven Tour de France wins are now past the World Anti-Doping Agency's eight-year statute of limitations, USADA just won a case against a track and field athlete whose violations stretched further back, based on the fact that he lied in his arbitration hearing.
Also open is the question of whether a civil whistleblower case brought under the False Claims Act, also known as a qui tam suit, will go forward. The case is under seal, but several sources confirmed in late 2010 that Armstrong's former teammate Floyd Landis -- one of his chief and most specific public accusers -- was the plaintiff, and Armstrong and former U.S. Postal Service cycling team officials were defendants. Qui tam suits are brought by whistleblowers who allege that government funds have been misused, fraudulently obtained or stolen, but very few are won without the intervention and support of the U.S. Department of Justice.
|Federal investigator Jeff Novitzky led the Armstrong probe and other high-profile athlete investigations.|
Potentially at stake would be the issue of whether any of the $32 million in sponsorship contracts for the Postal team was spent on organized doping in violation of those contracts. The DOJ's civil division conducts its own, separate investigation into whether to join in such suits, and the fact that a criminal investigation was dropped may or may not have any bearing on whether the government decides to get involved in a whistleblower suit.
Some experts believe the government might have a better chance of success in civil court, but Wayne Lamprey, a former federal prosecutor who is now a San Francisco-based lawyer specializing in qui tam suits, said the end of the criminal investigation "reduces significantly the likelihood that the government will intervene in and proceed with the civil case.'' Lamprey, who stressed he has no involvement with any aspect of the Armstrong case, added that "in general, in my experience,'' a decision to forgo criminal prosecution "reduces the government's interest and some of the momentum'' in a potential civil case, even though the standard of proof is not as difficult.
Finally, according to press reports in Italy and elsewhere in Europe, law enforcement authorities who have cooperated with U.S. investigators are building cases against individuals there, including Armstrong's former trainer Michele Ferrari -- whose conviction in 2004 on minor doping-related charges was ultimately reversed. It remains to be seen whether new evidence has surfaced that could come back to haunt Armstrong.
Q: How will this decision play in professional cycling circles?
A: Reaction is likely to be muted among the riders themselves, none of whom have anything to gain by taking a stand on allegations with no closure in sight. Owners and managers -- even those privately critical of Armstrong and eager to see that era disappear in the rearview mirror -- were dreading how the case might affect the sport's already vulnerable economics.
A number of riders and staff members from the Postal years are still active in the sport, and their careers stood to be damaged if they were associated with the case in any way. True feelings in the peloton are likely to run the gamut from relief to anger that there will be no resolution about past events one way or the other in the near future.
|Floyd Landis is said to be the plaintiff in a federal whistleblower case.|
Bonnie D. Ford covers Olympic sports for ESPN.com. She can be reached at firstname.lastname@example.org.