Lance and Oprah plus The Legal Ramifications of Coming Clean

A Quick Round-Up

As soon the cameras switched off and the technicians finished breaking down the equipment after Oprah Winfrey performed her interview of Lance Armstrong, the first tidbits of what Armstrong said were leaking to the press. Quite honestly, it’s hard to keep up with all the developments. But let’s give it the old college try.

By this morning, a number of news organizations were reporting that Oprah Winfrey, in an appearance on CBS This Morning, confirmed that Armstrong had confessed to doping during his career.  Among those outlets are The Washington Post and NPR. As the WaPo reports, Winfrey said:

“He did not come clean in the manner I expected,” Oprah said during a segment promoting the interview, which will be aired over two nights on her Oprah Winfrey Network (OWN). “It was surprising to me. I would say that for myself, my team, all of us in the room, we were mesmerized by some of his answers. …

“I felt he was thorough. He was serious. He certainly prepared himself for this moment. I would say he met the moment. At the end of it, we both were pretty exhausted.”

The specifics of Armstrong’s admissions remain unclear. The Associated Press reported Monday that he admitted to having used performance-enhancing drugs, citing a source, but offered no additional details.

The Wall Street Journal has a piece on how Armstrong’s confession came to be, and a related piece that says the Justice Department will join Floyd Landis’ “whistleblower” lawsuit. (In an interesting coincidence, the deadline for the Justice Department to do so is Thursday, the same day the Winfrey/Armstrong interview will air.) Reed Albergotti this evening has a story up on the WSJ site that says a truth and reconciliation process for cycling had been considered, but the prospects of that appear to be slipping away — and with it Armstrong’s best chance of returning to elite competition.

The World Anti-Doping Agency has already chimed in on whether Armstrong’s confession should help reduce his lifetime ban, saying in a statement quoted by the Associated Press:

“[O]nly when Mr. Armstrong makes a full confession under oath – and tells the anti-doping authorities all he knows about doping activities – can any legal and proper process for him to seek any reopening or reconsideration of his lifetime ban commence.”

Meanwhile, Business Week has a story about Thom Weisel, who owned a large portion of Tailwind Sports (the owner of the US Postal Service/Discovery cycling teams). The article asks, will Weisel be charged with fraud related to doping on the team.

A number of analysis and opinion pieces have already appeared. Cindy Boren of the Washington Post asks, in a blog piece, “is it enough?” Buzz Bissinger, who wrote about Armstrong and defended him over the years, now says he was deluded to believing in the cyclist. Over at NPR, David Walsh tells All Things Considered that he is satisfied with the news. And Jaquielynn Floyd at the Dallas Morning News observes that for Lance, the truth is just a PR tactic.

Begin updates

Juliet Macur at The New York Times reports that Lance says he will testify against several of Tailwind Sports’ owners if the qui tam case goes to trial.  The Guardian asks, “who might be drawn into legal proceedings?” now that Armstrong has confessed.

Also from The New York Times, Lynn Zinser “channels Lance Armstrong” and Claudio Gatti writes about looking upstream in doping cases.

In the “this has got to hurt” department, Livestrong calls on Armstrong to reveal the complete truth.

As for that whistleblower lawsuit, the New York Daily News reports that the decision on whether to join in has been kicked up to US Attorney General Eric Holder’s desk. So we may soon see whether Holder has the cajones to enter the fray.

Following a link from Chron.com, we find a September story that asks, “Was Sheryl Crow a ‘smoking gun’ for the Feds?”

Giving Betsy Andreu her due, VeloNews’ Neal Rogers posts on Facebook:

Great Betsy Andreu quote on Armstrong’s ability to manipulate media and public perception: “He makes Bill Clinton look like an amateur.”

And you know it had to happen. The Daily Show pages Dr. Mandvi to explain “how Lance Armstrong’s inherent unethical ability only partially explains his incredible lying endurance.”

Just a couple of more — for now. The New Yorker’s Michael Specter ponders what Lance Armstrong did. And a couple of marketing experts offer up some free advice, via Ashley Fetters at The Atlantic, on how Armstrong can re-brand himself. (Too soon?)

Over at The Fat Cyclist site, Fatty interviews himself and in the process pens a thoughtful piece about his nuanced support of Lance the Cancer Fighter, but not necessarily Lance the Tour Winner.

And the Associated Press managed to get a comment from Armstrong, who said about his chat with Oprah Winfrey:

“I left it all on the table with her and when it airs the people can decide,” he said in a text message to The Associated Press.

He also said that viewers can judge for themselves how candid he was in answering Oprah’s questions.

Long-time reader Marc sends us this translation of a piece about “The Armstrong Affair” that appeared in Le Monde.

And we’ll close this round of updates with a link to The Guardian, where they have a brief video of Frankie and Betsy Andreu that contains a number of good and interesting comments and quotes.

A few more updates this morning. The LA Times is reporting that Lance Armstrong has been stripped of his bronze medal from the 2000 Summer Olympics in Sydney, Australia.

The Wall Street Journal has a piece which covers some ties between Jim Ochowicz, Hein Verbruggen and Thom Weisel. Turns out that Och managed Verbruggen’s personal investments in the early 2000s and brought Verbruggen’s account with him when he took a job at Weisel’s firm.

And Juliet Macur of The New York Times pens a piece on what questions Armstrong should have to answer in his interview tonight after years of denials. It’s not the first piece of the sort, but what she provides are the tough questions any knowledgeable reporter would ask. Unfortunately, the infographic that accompanies the print edition contains some  inaccuracies and misrepresentations. (Full disclosure, I subscribe to the paper daily and Sundays.)

The New York Daily News digs deep into the whistleblower case, and provides a link to the full text of the lawsuit.

End updates

So what will RYHO add to the mix? One observation: Lance needs the Oprah interview as much as Oprah needs the Lance interview. Winfrey seems to serve as the mother-confessor for bad boys and bad girls of great notoriety, so Armstrong is walking into territory where others have gone before. It’s a required part of the celebrity rascals rehab tour. On the other hand, Winfrey needs this interview, too. Her Oprah Winfrey Network has not exactly been a ratings juggernaut since it launched. A blockbuster interview could well bring in more viewers, which may help the struggling network succeed.

We have one other thing to offer to the discussion. In the next part of this post, Judge Bill Hue discusses the potential legal consequences of Armstrong’s decision to come clean. (Or, let’s be honest, as much as Lance will admit to…)

Bill Hue on the Legal Ramifications of Lance Armstrong’s Confession

Lance Armstrong has been involved in a number of legal cases over the last decade that, at least in part, involve allegations that he used performance enhancing drugs (PEDs) throughout his career. With his “confession”, scheduled to air on Oprah this Thursday, let’s take a look at the potential impact Armstrong’s change of heart may have on two of those cases.

Many people believe that Armstrong testified before the Federal Grand Jury assembled to consider criminal charges in the US Postal Cycling Team criminal conspiracy/fraud matter. In fact, he did not. Assuming he would have denied involvement if he actually had testified, it is not likely that Armstrong would ever subsequently “confess” simply because the downside risk of a potential federal perjury or obstruction of justice criminal charge would then be too great.

Armstrong did testify, under oath, in the SCA arbitration case. In that case, after an arbitration award under Texas law, SCA Promotions paid Armstrong $7.5 million for winning his sixth Tour de France title in 2004 – $5 million as a performance bonus and $2.5 million in interest and attorney fees. Armstrong’s then alleged use of PED’s was the central issue in that dispute. SCA did not want to pay the bonus because of allegations that Armstrong cheated to win one or more of the 6 Tour de France victories. Armstrong testified that he did not use PEDs to win the Tour de France in any year. The arbitrator, however, determined that the language in the contract, drafted by SCA, did not contain any clause prohibiting payout should the victories be obtained by cheating or fraud. Thus, as long as the victories stood, SCA was obligated to pay the bonus.

Two issues arise relevant to the SCA case. The first is whether the “confession” impacts any SCA claim that the bonus it paid must be returned. In that regard, it is much more important that Armstrong’s results, including all 7 of his Tour de France victories have been negated by sporting authorities. If he did not “win” any Tour de France races as determined by those responsible for making that determination, how can SCA be responsible for paying him a “bonus” for “winning” 6 Tour de France races? Second, can Armstrong be prosecuted for “lying under oath” when he said he had not taken PEDs and then admitted to Oprah, later, that he had?

In analyzing that issue, Texas law must be consulted. Here is the relevant Texas Law:

Sec. 37.02. PERJURY. (a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or
(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.
(b) An offense under this section is a Class A misdemeanor.

Sec. 37.03. AGGRAVATED PERJURY. (a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.

Sec. 37.04. MATERIALITY. (a) A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.
(b) It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.
(c) Whether a statement is material in a given factual situation is a question of law.

There are three impediments to a criminal prosecution against Armstrong for Felony (punishable by a potential prison sentence) Perjury. The first factual issue is whether an arbitration hearing is an “official proceeding” as defined by Texas law and the second is whether Armstrong’s denial of PED use is “material” considering the Arbitrator’s determination that Armstrong’s use of PEDs was not prohibited by the contract. The third is a legal one. Texas has what appears to be a seven year Statute of Limitations for Felony Perjury. Since the testimony took place in 2005, the Statute of Limitations would have expired sometime in 2012.

There does not seem to be a similar factual/legal impediment to the pursuit of a “false statement” misdemeanor criminal charge. Proof would simply require that Armstrong make a “false statement” “under oath”. The false statement isn’t required to be material, nor does the statement “under oath” have to have been made in an “official proceeding” as would be required in a felony perjury prosecution. However, Texas’ Statute of Limitations for this misdemeanor seems to be two years and appears to have expired sometime in 2007.

The maximum penalty upon conviction of the misdemeanor charge is one year jail and $4000. Would a prosecutor in Texas choose to charge Lance Armstrong with a misdemeanor for making a false statement under oath in an arbitration hearing even if they otherwise could? Andre Birotte Jr, US Attorney General, refused to prosecute Armstrong on much more serious charges, upon equally convincing factual grounds. So the collateral issues of politics, power and prosecutorial resources would also come into play.

Could Birotte Jr. reopen the Grand Jury as a result of Armstrong’s “confession”? That may depend on those collateral issues as well as what Armstrong actually “confesses” to. We know Armstrong appeared for the interview with a number of attorneys. There role was obviously to control their client to lessen probability that Birotte Jr. would like to take a second look at the Federal criminal case. Perhaps that is why Oprah has commented that Armstrong was not as forthcoming as she had expected.

The last case I would like to discuss is Floyd Landis’ Qui Tam or “Whistleblower” case against Armstrong, Thom Weisel and others, concerning the civil side of the US Postal conspiracy matter. Just yesterday, it was revealed that the Federal Government would, in fact, join Landis in the pursuit of that case. Under the Qui Tam Law, Landis stands to gain 30% of any recovery obtained and now that the Government has agreed to join the case, Landis will be relieved of the costs of continuing the case’s prosecution.

Ironically, Landis will certainly be able to use funds obtained from Armstrong/others in the Qui Tam suit to pay those he is obligated to refund in Landis’ federal criminal deferred prosecution commonly referred to as the Floyd Fairness Fund fraud case.

Armstrong’s “confession” may decrease the likelihood that the Qui Tam case will end in any way other than settlement because Armstrong appears to have made the choice to in essence “lay down” rather than fight. The question now becomes not whether he and others will pay but how much they will pay. Settlement will facilitate Armstrong’s reformation and his charitable concerns could also survive, albeit wounded.

Finally, if Armstrong faces a prosecutor who is far more aggressive than Andre Birotte Jr., perhaps the Government will to go to the mat on the civil case. The more contrite Armstrong can force himself to be, the more likely settlement will occur. The tricky part for Armstrong will be to keep himself in check and not display his true temperament and attitude as he did when he swore at Travis Tygart and left their December meeting in Denver in contemptuous disgust. That would be a disaster for him.

Bill Hue
Jefferson, Wisconsin