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The Curious Case of Lance Armstrong

F. Scott Fitzgerald once wrote, “show me a hero and I’ll write you a tragedy.”  Nowhere does this quotation seem more apt than in the case of Lance Armstrong. On one side of the coin we have the hero: a brash and outspoken Texan who overcame stage 3 cancer and became the first seven-time Tour De France champion, a man who founded the Livestrong foundation that has raised over 470 million dollars worldwide to fight the disease that almost claimed his life[1], a man who made an entire sport relevant in the United States.  On the other side of the coin, we see a man who has gone through a divorce, a man who has harshly and vehemently attacked every critic time and time again, a man who many believe only achieved his Tour victories through the use of performance enhancing drugs.  His world appears to be crumbling all around him.  His seven Tour de France titles have been stripped, he has resigned from the Livestrong Foundation he founded amid public pressure, his sponsors have largely abandoned him, and lawsuits by former critics that Lance Armstrong himself helped disgrace seem imminent.  Lance Armstrong is still there but we are left with one question.  What is the truth about Lance Armstrong?

 

“You see everything in black or white.”-Ritter

“Not black or white, right or wrong.” –Jack Ryan

“The world is gray.” -Ritter                           

-Quotes from the movie Clear and Present Danger

The question cannot be answered.  Lance Armstrong is a complicated creature whose life does not fit neatly into either right or wrong.  What do I expect from the Oprah Winfrey/Lance Armstrong interview?  I expect we will get some answers, but you’re never going to know exactly what Lance was thinking or doing all those years ago.  There is an ancient Chinese proverb that reads, “life is a piece of paper upon which every person leaves a mark.”  One would expect not to have all the answers.  Interesting people lead interesting lives.  When you take big risks, your mistakes and faults are displayed on a global scale.  Lance Armstrong has touched and been touched by millions of people.  We are certainly not going to understand everything about Lance Armstrong when Oprah interviews him on her new show the next chapter, but it should be very interesting.

It does not appear to me that Lance Armstrong has fundamentally changed.  Perhaps, his values, passions, and priorities have altered some.  It appears to me that he appears more patient with people, less singularly focused on one goal, and more focused locally instead of globally.  Raising a good family and inspiring people face to face instead of through the media seem to be a bigger part of his makeup now.  This is not a bad thing just a little different.  However, I firmly believe he is still basically the same person that did so much good for so many people.  I might be wrong but I doubt it.

What does appear to have changed dramatically is the media’s perception of Lance Armstrong.  When he was winning Tour de France after Tour de France, he was lauded as a messiah.  I recall seeing George W. Bush biking with Lance Armstrong, and the Livestrong bracelet was an almost constant fixture on John Kerry’s wrist during the lead up to the 2004 presidential election.

However, even at the time, there were whispers that all may not have been as it appeared.  Many people stood on the sidelines of the Tour de France with signs that said cheater, former teammates and critics cried foul, and there was even several books written outright accusing him of cheating.

I do not know what the media’s fascination is with bringing people up and then tearing them down, but they have really done a number on Lance Armstrong.  The United States Anti-Doping Agency released a 200 page reasoned decision outlining claims that Armstrong engaged in a systematic pattern of using performance enhancing drugs throughout his cycling career after recovering from cancer.  Further, the report claimed that Armstrong used manipulation, intimidation, and the media to cover up his use of PEDs.  SHOCKING EXPLOSIVE ALLEGATIONS!  Media outlets all over the globe jumped onto the bandwagon.  One website I know ran a story simply headlined Case Closed: Armstrong Doped.

The trouble with believing someone that tells you something is true is that the person telling you it is true may not know whether it is true themselves.  Simply believing something because it is 200 pages long is foolish.  This is especially true if that person did not take the time to read the report before passing judgment.  I imagine there were numerous news editors across the globe that said, “just run the story claiming Armstrong doped it has to be true the USADA has 200 pages of evidence against him.” I read the report and then I went back and re-read the report again to make sure I was not missing anything.  Here are my thoughts.

First of all, the report is not 200 pages long, it is 202 pages long.  However, the vast majority of the reasoned decision is simply irrelevant information, repetition, background information, footnotes, or simply conclusions and opinions.  Further, the spacing and font size is very large.  It actually reminded me of reading a Harry Potter book.  The table below outlines the reasoned decision piece by piece.  These are my opinions as an attorney:

 

Pages 1-5 table of contents (no allegations of wrongdoing).

Pages 6-9 legal background and general summary of the case (outline of what evidence the USADA plans to present but no real details regarding the case against Armstrong).

Pages 10-12 summary of the case (largely broad conclusions telling people about how strong their case is).

Page 13 specific charges against Armstrong (no evidence just more background).

Page 14-20 legal background on the case (broad allegations of cheating but short on specifics).

Pages 21-25 discussion of doping on the team in 1998 (Johnathan Vaughters says he saw Lance inject himself with a syringe used for EPO injections).

Pages 26-42 allegations of doping on the team in 1999 (Tyler Hamilton says he saw Lance Armstrong use EPO and testosterone.  Armstrong initially tested positive for cortisone but claimed he was using it under proper medical authorization to treat saddle sores.  USADA states that Armstrong’s blood was retested and came up positive for EPO).

Pages 43-50 allegations about doping on the team in 2000 (Tyler Hamilton says Lance Armstrong blood doped during the 2000 tour.  He admits he was not in the same room with Armstrong when he was allegedly blood doping).

Pages 51-58 allegations of doping on the team in 2001 (Tyler Hamilton and Floyd Landis stated that Armstrong told them that he had tested positive for EPO at the 2001 Tour de Suisse.  A doctor stated he found one of Armstrong’s tests suspicious for EPO.  According to Landis, Armstrong gave him a testosterone patch).

Pages 59-64 allegations of doping on the team in 2002 (Floyd Landis claims he watched over Lance Armstrongs blood bags, used for blood doping, while Floyd was out of town.  George Hincapie was aware of Armstrong’s blood doping).

Pages 65-72 allegations of doping on the team in 2003  (Floyd Landis saw several bags of blood in Armstrong’s apartment.  George Hincapie saw Armstrong enter Hincapie’s bedroom with a doctor and what appeared to be a blood bag.  Floyd Landis said he saw Lance Armstrong, George Hincapie, and a couple of other teammates having blood re-infused.  Armstrong told George Hincapie in 2003 or 2004 he felt, “I (he) am going to be 500 grams heavier today.”  Hincapie believed it was in reference to a blood transfusion.  Floyd Landis witnessed Armstrong using EPO).

Pages 73- 79 allegations of doping on the team in 2004  (Landis says he saw Armstrong lying on a massage table wearing a testosterone patch.  Landis testifies that he saw Armstrong receiving blood transfusions).

Pages 80-87- allegations of doping on the team in 2005 (George Hincapie told Levi Leipheimer that Armstrong only used a single bag of blood during the 2005 tour.  George Hincapie testified that Armstrong gave him two vials of EPO.  Johan Bruyneel asked George Hincapie to go over to Lance’s apartment to go through everything and make sure nothing (drugs or blood) were there).

Pages 88-92 circumstantial allegations about Armstrong’s alleged drug use in 2009 and 2010

Pages 93-126-allegations of a widespread conspiracy to hide doping on the team.  (There are some interesting tidbits but most of it doesn’t even relate to Armstrong.  Whole sections talk about Johan Bruyneel, Dr. Luis Arcia del Moral, Dr. Michele Ferrari, and Joe Pepe Marti).

Pages 127-134 a discussion of why the USADA’s witnesses are credible (no evidence that I saw of Armstrong wrongdoing).

Pages 135-144- a discussion of how Armstrong’s team avoided getting caught using PEDs

Pages 145-146- a scientific analysis suggesting Armstrong blood doped from 2009-2011

Pages 147-149 a scientific analysis suggesting Armstrong used PEDs in the 1999 Tour de France.

Page 150- a scientific analysis suggesting Armstrong used PEDs in the 2001 Tour de Suisse

Page 151-158 allegations suggesting Armstrong lied and engaged in a cover up to hide his PED usage

Pages 159-160 a legal argument that the 8 year statute of limitations should not run on Armstrong’s alleged fraudulent and intimidating conduct

Pages 161-168 a legal argument that the USADA has management authority not the UCI

Page 169- Conclusion

Pages 170-202- Addendums

 

There is a lot of other material, conclusions, and unrelated statements contained within the pages.  If you would like to read it, it is available online.  However, if you would prefer not to, you can look at the relevant pages using my notes as a guide.  My notes are a little different from the numbering of the actual report as I counted the table of contents to arrive at 202 pages.  The report is numbered starting after the table of contents.  However, I hope the information above gives you a pretty good synopsis of the entire case against Armstrong.  It doesn’t have a lot of the shocking quotes that were allegedly exchanged among the team.  It’s like dragnet:  just the facts.  In this case, it contains the allegations that would have been most likely to be used to try to prove that Lance Armstrong used PEDs when he won his seven Tour De France titles.

I believe most people are only concerned with answering this one question.  Did Lance Armstrong use performance enhancing drugs or blood transfusions when he won his seven Tour de France titles?  To try to answer this question, you don’t need to look at the whole report just read pages 21-87.  These are the pages that relate to the Tour De France years in Armstrong’s cycling career.  Even within these pages, there is a lot of irrelevant material and conclusions.  If you were to single space the report, it cuts the total in half to about 33 pages.  However, I could easily write up a 1 page summary of the case against Armstrong as described by the report.  There was absolutely no need to make it 202 pages except that making a report 202 pages makes it look like Armstrong is definitely guilty and that is exactly how the media spun it.

There are a lot of red herrings and circumstantial evidence contained in the report.  Most notably, the authors of the report go out of their way to link Armstrong with Dr. Michele Ferrari, a doctor allegedly involved in the team’s doping scandal.  It shows numerous documents and cites a lot of testimony trying to make the connection.  All these documents and testimony would prove is that Armstrong and Ferarri worked together not answer the question of whether Armstrong doped.  Further, there is a lot of circumstantial evidence and hearsay evidence that Armstrong doped.  None of this evidence would be admissible in a court of law to prove the guilt or innocence of the person involved.  However, Lance Armstrong was not being tried in a court of law he was being asked to go to arbitration.  The rules of arbitration are sometimes very different than a court of law.

The report goes out of its way to try to prove a massive cover up and intimidation by Armstrong.  The report has to prove a cover up.  By the USADA’s own admission, there is an eight-year statute of limitations to impose sanctions on Armstrong.  A statute of limitation is a time in which an enforcing agency has to file an action.  Normally, a statute of limitations begins to run when the party knows or should have known that action is necessary.   Absent an exception (in this case the USADA is alleging fraud on Armstrong’s part), the statute would probably have already expired on all but one of Armstrong’s tour winning years.

If I were a judge or an arbitrator in this case, I’d have a tough time being convinced that the case shouldn’t just be thrown out.  Almost every single one of the factual allegations in the report, the 1999 tour sample, the 2001 Tour De Suisse, the testimony of Landis and Hamilton, has been around for years and a lot has even been written about in books.   The only really new allegation I saw in the report was the testimony of George Hincapie and a few other people.  Most of these people are other riders who have already retired or are no longer professional cyclists (because of doping).  If the only reason these people did not come forward before was because they felt intimidated by Armstrong, the action against Armstrong may have been proper.  However, I suspect that since many of these riders are now retired or no longer in cycling, they had nothing to lose by testifying now.  Even if they were to get suspended, it would not mean anything.  The failure of the USADA to procure witnesses in a timely manner should not be excused unless the other riders were intimidated into not testifying.  I could also see staying (delaying) the statute of limitations for a little bit of time pending the resolution of the federal investigation.   However, I probably would have thrown the case out on a statute of limitations argument.  The USADA could have and should have brought this action years ago.

I suspect the USADA did not want to bring this action years ago for two reasons.  One, they didn’t have enough evidence against Armstrong.  Two, they didn’t want to bring the action years ago because Armstrong was so good at raising awareness for cycling and good health in general.  If either of these suspicions is correct, the USADA should be ashamed of itself.  It still puzzles me as to why the USADA even took action in this case except that it wants to send a message that what it thinks what Armstrong did is wrong and it wants to make sure no one tries to do it again.  I don’t think filing the decision accomplishes either of those goals.  However, if that is the case, they should have tried to stop Armstrong years ago.

There were a couple of things that really bothered me as I examined the reasoned decision.  The first is a statement made by the USADA.  They state: “the case against Lance Armstrong is beyond strong; it is as strong as, or stronger than, that presented in any case brought by USADA over the initial twelve years of USADA’s existence.”  Either the USADA has only tried really weak cases, I’m missing something huge in the report, or the USADA is lying.  I suspect it is probably the latter.  They tried to claim their evidence was so strong so everyone (especially the media) would believe them.

The case against Armstrong, as discussed above, can be boiled down to a few key witnesses and can be summarized in about a page as discussed above.  Mostly, however, the allegations made by Floyd Landis and Tyler Hamilton are the most troubling. However, Landis and Hamilton are both self-admitted liars.  They have lied on so many occasions it is hard to give a lot of what they say credibility.  Much more credible is the testimony of George Hincapie and some of the other riders on the team.  Hincapie and a few other people offered strong circumstantial evidence that Armstrong may have doped.  George Hincapie was a trusted lieutenant of Armstrong during every one of Armstrong’s Tour wins and testified that he believed Armstrong was using PEDs.  There is similar testimony from some of the other riders.  Unless I am missing something major in the report, there is no credible witness directly linking Armstrong with PED use.  They are all indirect links.  The closest the report comes is Johnathan Vaughters testifying that he saw Armstrong inject himself with something from a syringe that was used for EPO in 1998.  Armstrong could have taken a Barry Bonds defense and said he thought the syringe was full of flaxseed oil.

The reason I mention the strength of the case is that it just does not make any sense.  The USADA was basically saying the case against Lance Armstrong was the strongest possible case.  If that is true, they must only try really weak cases.  I can think of a hundred and one ways their case could be better.  An undisputed failed drug test would make this case a slam dunk.  Testimony of a few credible witnesses saying I saw Lance Armstrong do this drug on x date is another way this case would be stronger.  What they have is a lot of circumstantial evidence that Armstrong’s team was doping and a few specific allegations that he doped.  However, calling this case the strongest ever is just spin.

If I were the judge or arbitrator in this case and I were asked to rule on it, I’d probably dismiss the case on statute of limitations ground before we even got to the merits of the case.  Even if the case wasn’t dismissed, I do not think I can say beyond a reasonable doubt that Armstrong doped for all seven Tour winning years based on the evidence I saw in the report.  I certainly could not say he definitely doped during all seven Tour winning years.  However, if this were a civil case where they only have to prove that more likely than not he doped, I’d probably have a different answer.  I think the federal prosecutors that were investigating Armstrong for doping probably came to a same conclusion.  Federal prosecutors are among the brightest legal minds in the United States.  They probably looked at the same evidence and concluded we’re probably going to have a tough time trying to make the charges stick and a tough time proving that beyond a reasonable doubt Armstrong doped.  Or, they looked at the statute of limitations problems and thought this is just not worth our time.

The other aspect that really bothered me about this case is that the USADA said they planned to present even more evidence through subpoenas of witnesses if this case were to go to arbitration.  As I don’t know who those witnesses are or what they would testify to, I can’t comment on it but it does bother me that I don’t have all the facts.

Lance Armstrong strikes me as a very intelligent guy.  I am sure he went over all this information and more when talking with his lawyers.  They probably thought the statute of limitations issue was problematic for the USADA, the lack of direct evidence was promising, and they probably advised him about the risks of going to arbitration and that additional witnesses and testimony may have been presented.  Lance Armstrong strikes me as a guy that wants to win on his own terms.  If he had won the case arguing that the statute of limitations had passed, everyone that thought he doped would still think he doped and all he would accomplish is spending a lot in attorney fees fighting it.  He also might have been afraid of what exactly all these subpoenaed witnesses would testify to.

At the end of the day, I was hoping the reasoned decision would contain a smoking gun as to whether Armstrong cheated or not.  I couldn’t find one from a legal perspective.  Lance knows for sure whether he doped or not and frankly I don’t even care except out of curiosity.  Although if he did not, it is a shame he was stripped of those seven titles.  If he cheated, he wouldn’t have been alone.  As the reasoned decision itself pointed out, 20 of the top 21 finishers in the Tour de France were implicated in or linked to doping scandals during the seven years Armstrong won.

I have thought in my head for a long time that Lance Armstrong may have cheated.  In my heart, I was hoping that Lance Armstrong really was that much better than all the other dopers he was competing against.  It would certainly make it a much happier story if Lance Armstrong did not cheat, and the fairytale had a happy ending.  If he did cheat, the story may not be as happy but is even more interesting.  At the end of the day, it does not matter to me.   If he cheated, it’s not the way I would have liked to see Lance win those titles.  However, I don’t believe that winning the titles was Lance’s Armstrong ultimate goal.  I think his goal after beating cancer was to help find a cure for cancer, and I respect all the work he has done for the Livestrong foundation.  I think he figured he had to win all those Tours to provide the inspiration to millions necessary so that they would join in his fight against cancer.  If he took a shortcut or felt that there was no way to win without using PEDs, fine.   I’d tell him to apologize and move on with his life.  I will still respect the end he was trying to get to just not the means he used to do it.

In closing, I would like to share another F. Scott Fitzgerald quote.  He wrote, “there are no second acts in American lives.”  While F. Scott Fitzgerald never got to experience a second act in his own life, Lance Armstrong has a chance at a third act in his.  I am calling on Lance to help me with a unique charitable cause that his Livestrong bracelets, in part, inspired.  If you know him, please pass along the message that I am looking for him.  Lance Armstrong still has a large microphone, and I hope we can help each other.

R. Brian Mueller

@Change2aid on twitter

Follow @Change2aid on Twitter by Clicking Here

Saint Louis, Missouri

 

Change2aid is a charitable cause that was, in part, inspired by the Livestrong Bracelet.

 

THIS IS THE FIRST IN A SERIES OF ARTICLES REGARDING LANCE ARMSTRONG.  

TO READ THE SECOND ARTICLE ENTITLED CRIME AND PUNISHMENT:                         THE FALLOUT FROM THE LANCE ARMSTRONG CONFESSION CLICK HERE.

TO READ THE THIRD ARTICLE IN THIS SERIES, CRIME AND PUNISHMENT: THE FALLOUT FROM THE LANCE ARMSTRONG CONFESSION PART 2, CLICK HERE

 


[1] It is important to note that according to their website, the Livestrong foundation was founded in 1997 before Armstrong won his first Tour De France title.

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