Monday, December 10, 2012
Lance Armstrong still under scrutiny
By Bonnie D. Ford
Lance Armstrong's legal woes are far from over on several fronts, including an ongoing investigation by the U.S. Postal Service, the longtime title sponsor for his cycling teams and once inextricably linked to his racing success.
A federal judge last week rejected months of arguments by attorneys for the dethroned former Tour de France winner and unsealed documents related to an investigation of possible doping-related contract fraud by the U.S. Postal Service Office of Inspector General (OIG).
A subpoena issued to Armstrong in June 2011 by the OIG is among the documents now on public record. His legal team initially resisted compliance with the subpoena, and the U.S. Attorney's office in the District of Columbia entered the fray to enforce it. The two sides eventually reached an agreement for the requested materials to be supplied and stated that the requirements of the subpoena had been met. However, Armstrong's lawyers have continued to fight the release of any filings.
Last Thursday, U.S. Magistrate Judge Deborah A. Robinson ordered the documents released.
Elizabeth P. Martin, general counsel for the USPS Office of the Inspector General, signed the original subpoena. Monday, she told ESPN she could not comment on any aspect of an ongoing investigation. None of Armstrong's lawyers were immediately available for comment.
The subpoena Armstrong received a year and a half ago makes no mention of a pending federal civil "whistleblower" or False Claims Act case that remains under seal. Armstrong was asked to provide documents including:
• Records related to his business relationship with the ownership and management groups connected to the Postal Service cycling teams -- Tailwind Sports and Capital Sports & Entertainment, respectively -- during the period when the USPS sponsored those teams, from the mid-1990s to 2004
• Correspondence with his former trainer, Michele Ferrari, any employees of the U.S. Anti-Doping Agency, the World Anti-Doping Agency, testing laboratories, the USPS, and "any person (including any companies or other organizations) that at any time manufactured or distributed any substance believed to have the potential to enhance an athlete's ability to compete in endurance sports"
• Any financial records reflecting payments to Ferrari; the UCI, cycling's world governing body; USA Cycling, the sport's national governing body; WADA or USADA; and any USPS employees, including fellow riders
• Training journals and medical records, including hematocrit and hormone levels
None of those supporting documents appears on the public record as of yet and it is not clear whether the judge's order would make them available. It also was not apparent how many others might have been subpoenaed in the investigation led by OIG Major Fraud Investigations Division special agent Michael Pugliese, although a motion filed by Armstrong's lawyers last year seeking to quash the subpoena states that Tailwind majority owner Thomas Weisel was also served.
Sources have confirmed that Armstrong's former teammate -- and key public accuser -- Floyd Landis is the plaintiff in the federal whistleblower suit, but Landis will not comment on the subject. Armstrong's lawyers have argued the OIG investigation is clearly related to that civil case, but Judge Robinson last week ruled there was no legal basis for keeping documents related to the OIG subpoena from public view.
The Department of Justice civil division is still weighing whether to intervene in the whistleblower case, a move that historically increases the chances of successfully proving government money was misused. In the event of a win, the government can recoup damages of as much as three times the amount allegedly misused -- which in the USPS cycling team's case would mean treble damages applied to more than $30 million. Most qui tam cases are settled before trial and the plaintiff is entitled to a percentage of any settlement.
At the time the USPS OIG subpoena was issued, Armstrong was still the target of a criminal investigation led by Food and Drug Administration special agent Jeff Novitzky and supported by the U.S. Attorney's office in the Central District of California, and a Los Angeles-based grand jury was hearing evidence in the case. His lawyers, who charged that the government was leaking information, argued to keep any documents related to the OIG investigation under seal so as not to prejudice the criminal probe and to preserve Armstrong's Fifth Amendment rights.
U.S. Attorney Andre Birotte Jr. abruptly terminated the criminal investigation without explanation in February 2012. USADA subsequently conducted its own witness interviews and assembled a powerful doping case against Armstrong that included affidavits from 11 former teammates describing his and their own use of performance-enhancing drugs and techniques. The 1,000-page file also included scientific analysis and financial records showing payments of more than $1 million from Armstrong to Ferrari, whom several former riders testified was integral to organized doping within the team.
Armstrong chose not to request arbitration to contest USADA's findings. In August, USADA imposed a lifetime ban from competition on Armstrong and recommended he be stripped of all results dating back to 1998 when he returned from cancer treatment to professional racing, including his seven Tour de France titles. The UCI ratified those sanctions in October.
Ferrari did not contest the USADA report and also was banned from the sport for life, as was team doctor Luis Garcia del Moral. Armstrong's longtime sporting director Johan Bruyneel of Belgium asked for arbitration and his case is pending.