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Friday, February 10, 2012
Suspicious call on Lance Armstrong

By Lester Munson
ESPN.com

Who doesn't love a good mystery chock-full of conspiracy theories and the possibility of political intrigue? When one of those babies pops into view from our Courtside Seat, you can bet we're paying attention. So last week's Lance Armstrong news made for must-see headlines in our little legal corner of the world. We'll get to the high cost of conference realignment a little later, but we start today with …

Above Below Suspicion

All of it is questionable, starting with the timing.

The U.S. attorney in Los Angeles, Andre Birotte Jr., decided that the best possible time to make a major announcement about the federal investigation of Armstrong was late on the Friday afternoon before the Super Bowl. Is there a better time to hide news you don't want anyone to notice?

US Attorney Andre Birotte Jr.
Nothing says U.S. Attorney Andre Birotte Jr., left, has to explain the decision to drop the probe, but we're left without many answers if he doesn't.

Then there is the decision itself. According to a report in The Wall Street Journal, which has consistently led the news reporting on the investigation, the prosecutors and agents who worked on the case recommended to Birotte that he file criminal charges against Armstrong. The agents included investigators from the Food and Drug Administration, the FBI and the U.S. Postal Service, and they were talking about mail fraud, drug distribution, money laundering and witness tampering.

The prosecutors in Birotte's office had prepared a formal written recommendation on the evidence that supported the suggested charges. Sources familiar with the agents' work told ESPN.com that the prosecutors and agents were interviewing witnesses as late as last Thursday and Friday, as Birotte scheduled his announcement. They were anticipating an indictment in a few weeks and had no idea that their two years of work was about to come to a sudden end.

So, like numerous reporters who had followed the probe, the agents and prosecutors were caught by surprise when Birotte announced - just as the nation's sporting press was focused on the final preparations for Super Bowl XLVI between the Giants and the Patriots in Indianapolis -- that he has closed the investigation.

Birotte's peremptory statement offered no explanation for the decision. His spokesman, Thom Mrozek, said only that "we cannot and will not discuss the internal deliberations" that led to it and that "the decision was made with a full and fair consideration of all the relevant evidence and law."

The Lance Armstrong Files

See more of ESPN's extensive coverage of Lance Armstrong here

Finally, there is the political speculation. As ESPN.com's Bonnie D. Ford noted in her insightful report on the day of Birotte's decision, Armstrong "retains a devoted constituency despite years of persistent questions about his character."

Ford used an interesting word -- "constituency" -- in this presidential election year. Armstrong is an authentic hero as the result of his battle with cancer, and there are 12 million cancer survivors in the U.S. Add millions of friends and family to the survivors, and you have a major constituency.

With critics already ripping the prosecutions of Barry Bonds and Roger Clemens as wastes of government resources, an indictment of Armstrong might have been a thorny issue for President Barack Obama and Attorney General Eric Holder as the nation heads to the polls in November.

Was there political pressure to end the Armstrong probe? Did the decision come from the upper echelons of the Obama administration? We may never know. But there is no doubt about the political acumen of Armstrong and his team of lawyers and advisers.

Lance Armstrong
Lance Armstrong is popular enough, and perhaps powerful enough, to be a force in a number of different areas.

Consider, for example, Armstrong's gift of $100,000 to Planned Parenthood. The fact that the gift came on the same day as the U.S. attorney's announcement about the investigation is likely a coincidence, but it likely isn't a coincidence that the donation came in the middle of the flap over the decision by the Susan G. Komen Foundation to end its grants to Planned Parenthood. It puts Armstrong firmly in the camp of the pro-choice advocates who were appalled at the Komen decision, which has since been reversed. That timing offers a look at Armstrong's ability to act quickly and effectively in the middle of a political storm.

It also puts him on the side of the Obama administration on another explosive social issue, the recently announced requirement that all employers, including the Catholic Church and other charities, must provide insurance coverage for contraceptives, abortion-inducing drugs and sterilizations. The insurance requirement has long been an objective of Planned Parenthood.

That dramatic action from Armstrong and his foundation demonstrates their ability to navigate sensitive political situations. Purely speculation, of course, but it makes one wonder if it's possible that Armstrong and his people were able to apply any political pressure connected to the decision to drop the investigation.

When you reflect on these things -- the timing, the decision, the politics -- you might be excused for thinking they seem a bit suspicious.

When the Stars (Re)Align

In a time of economic turmoil and deep budget cuts, West Virginia University, a taxpayer-financed institution of higher learning, appears to be willing to pay $11 million or more to switch from the Big East Conference to the Big 12 Conference. Reports late this week are that the school and the conference are approaching a settlement in which West Virginia (with, apparently, help from the Big 12) will pay an extraordinary sum to settle two lawsuits over the realignment and move to the Big 12 this fall.

How did the school reach this point? Details are still sketchy, as no one is yet discussing the process publicly, but based on court papers and other public records, here is the story of WVU's expensive realignment decision:

On Oct. 17, 2011, the president of the university voted in favor of changes in the procedure that applies if a school decides to leave the Big East. Under the new rules, supported by WVU president James P. Clements and the other 15 university presidents in the conference, a school could leave the Big East only after a 27-month waiting period has expired and a $10 million payment has been submitted.

James Clements
West Virginia president James Clements was tugging on a Big 12 hat a week and a half after he voted to bulk up the rules for leaving the Big East.

Ten days later, Clements and WVU received an invitation to join the Big 12 and almost instantly accepted the offer.

On the next day, 11 days after Clements voted for the new departure rules, he sent a registered letter to Big East Commissioner John Marinatto announcing West Virginia's withdrawal from the conference in eight months, offering a payment of $2.5 million.

The letter was terse and impersonal. The only rationale offered for the abrupt attempt to leave the conference was Clements' statement that "the Big East is no longer viable as a football conference" with the impending departures of Pittsburgh and Syracuse to the ACC and Texas Christian to the Big 12. He did not mention that Pittsburgh and Syracuse had announced their intentions to follow the exit rules and participate in Big East competition for the entire 27-month waiting period. (TCU was exempt from the rules because it never followed through on its announced intention to join the conference.) The letter also didn't mention the invitation to join the Big 12.

Clements devoted more of his letter to the minutiae of a wire transfer of the $2.5 million than he did to further explain WVU's decision to abandon a conference where it had thrived for 12 years. He did promise to "work with [Marinatto] amicably regarding all the details" of the withdrawal.

Three days after the promise to "work amicably," Clements and WVU raced to the nearest courthouse and filed a lawsuit against Marinatto and the Big East, claiming that the conference suffered from "ineffective leadership" that resulted in the "denigration of Big East football."

The rules for departure from the Big East were not unknown to the West Virginia administration. According to court papers filed recently, Clements' predecessor, David C. Hardesty, a former Rhodes scholar and Harvard Law graduate, led an effort to establish "stability and certainty" in Big East membership that the conference lacked when Miami, Boston College and Virginia Tech bolted the conference for the ACC in 2003.

Hardesty and the other Big East presidents adopted the 27-month waiting period to protect the Big East's ability to schedule seasons in 24 sports and to enter into contracts for televising football and men's basketball. A conference with a stable membership, Hardesty suggested, would be better for the athletes and, more importantly, would produce greater TV income.

In the pedantic manner you might expect of a Harvard-educated Rhodes scholar, Hardesty said at the time of the adoption of the new withdrawal requirements that they were necessary "to strike a balance that puts our swords on the roundtable for a period of time that is reasonable and hooks us together contractually so that we have time to build up what we want to build up," according to the Charleston Daily Mail.

WVA Fans
That sign on the right might have been true at one point in time. But now? Maybe not so much.

In addition to Hardesty's leadership role in the attempt to achieve stability within the conference and its member schools, one of the other principal draftsmen of the new rules was Thomas Dorer, the general counsel of WVU.

The first version of the rules, adopted with the support of then-president Hardesty and the other school presidents, required the 27-month waiting period and a fine of $5 million. The second version, the one Clements supported 11 days before WVU's attempted withdrawal, raised the fee from $5 million to $10 million.

The WVU actions caused an increasingly acrimonious dispute that, at least until Thursday night's reported settlement, included litigation in Providence, R.I. (the headquarters of the Big East), and the WVU lawsuit in Morgantown.

Marinatto defined the most important legal issue in the dispute in a "Dear Jim" email that he fired back to Clements the day after he received the Clements withdrawal letter. In the email, now an exhibit in a brief filed in the Rhode Island lawsuit by the Big East, Marinatto reminded Clements that, under the rules Clements had supported, "the earliest date on which West Virginia could withdraw from the Big East is June 30, 2014."

In the final paragraph of his email, Marinatto played his trump card. He cited a section in the Big East bylaws -- Article 11.02(b) -- that was likely to be the basis for a court injunction that would stop WVU's attempt to withdraw from the conference as early as Clements would like.

The section was expressly and carefully written in anticipation of an attempt to leave the conference without complying with the withdrawal requirements. It states that any withdrawal without compliance with the 27-month waiting period and payment of the $10 million fee would cause "irreparable harm" to the conference. It's a provision that Hardesty and Dorer helped write. And it became the basis of the Big East's demand in a state court in Providence for an injunction stopping WVU's imminent withdrawal.

An injunction is the most drastic action a court can take in a civil lawsuit. It is a court order that tells a litigant that it must stop doing something it ordinarily would be permitted to do in a free society. Because of its dramatic effects, the requirements for an injunction are rigorous. There must be a realistic probability of "irreparable harm" before a judge can grant an injunction.

In most cases, it is difficult for the party demanding the injunction to prove there will be "irreparable harm." It's always a matter of argument. In many cases, a payment of monetary damages can compensate for any harm. In the bylaws twice supported by presidents of WVU and partially written by a WVU lawyer, the school agreed that its action would cause "irreparable harm." Without this week's settlement, it was going to make WVU's attempt to stop the injunction difficult.

In addition to the seemingly-ironclad language of the bylaws, the Big East enjoyed another formidable weapon: the law firm of Covington and Burling, a Washington, D.C.-based powerhouse that has represented the NFL for nearly 80 years and has more experience in high-stakes sports litigation than any other American firm.

The Covington firm has won big cases and lost big cases -- it was on the wrong side of a 9-0 decision against the NFL last year -- but its work is uniformly impressive and can be exhausting for its opponents. Ben Block, Covington's lead attorney for the Big East, was instrumental in defeating Maurice Clarett's attempt to duck the rule that requires three years of college before being eligible to play in the NFL, and he appeared to be well on his way to defeating WVU's attempt to duck the rule that requires a 27-month waiting period.

It is easy to see why WVU might be willing to pay the settlement -- reportedly a total of $20 million, with about $9 million of that coming from the Big 12 -- to buy its way out of a mess it created. Two of its presidents voted for the provision that WVU was trying to overturn to make the quick realignment that the school now wants.

The university's best hope, without the settlement, was some home cooking from a local judge. But the quick and effective work by the Big East and the Covington law firm made that increasingly unlikely, even a bit embarrassing.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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