Armstrong's confession to have stark, wide-reaching impact
Oprah Winfrey's televised interview of Lance Armstrong Thursday night is a game-changer. Not only for the man formerly known as a seven-time Tour de France champion but also for his many friends, confidants and -- yes -- enemies. All of them will be impacted by Armstrong's admission of doping.
Armstrong's admission is likely designed to persuade the U.S. Anti Doping Agency to reduce his lifetime ban from competitive sports, which follow the World Anti-Doping Code to an eight-year ban. In that regard, Thursday night's admission is a first and comparatively easy step. He still needs to tell USADA and its CEO, Travis Tygart, everything about his doping -- which substances he used, when he used them, who supplied them, who helped him avoid detection, which cyclists he pressured into doping, etc. Armstrong would have to make such declarations under oath, meaning any lies could lead to criminal perjury charges. He would also have to answer questions from USADA executives and attorneys -- the same people he sued for defamation last year in Texas in what now seems like a frivolous and vindictive lawsuit. Armstrong has almost no leverage -- if he doesn't play entirely by USADA's rules, his only option is to compete in non-sanctioned races.
Armstrong also has to keep his stories straight. If he provides sworn testimony to USADA that contradicts or undermines his remarks to Winfrey, USADA won't believe him and won't reduce his penalty. Keep in mind, not every question is equal and not every questioner employs the same style. Winfrey was masterful in her questioning, showing herself more capable than even the most seasoned prosecutors. Her highlight may have been revealing Armstrong as a bully who implicitly pressured teammates to dope. At times, though, Winfrey allowed Armstrong to present himself as a somewhat sympathetic figure -- a cancer survivor whose wrongful conduct was fairly common in cycling and who felt pressured to live, as he told Winfrey, "perfect myth". Questions from USADA officials will likely be harsher and designed to make him decidedly uncomfortable. Armstrong going so far to sue USADA and Tygart for defamation probably won't help him when they start asking questions of him under oath.
If Armstrong expected his interview with Winfrey might restore his marketability, he will surely be disappointed. Although the second part of Winfrey's interview may focus on more personal issues, Armstrong in tonight's show often made apologies that seemed forced and half-hearted -- he described former assistant Emma O'Reilly, who he previously sued and spoke ill of, as "one of these people that I have to apologize to." There were also times he seemed surprisingly unprepared for Winfrey's questions, such as when he failed to produce a persuasive distinction between whether he pressured, but not required, other cyclists to dope, or when he weakly defended his doping program by saying it was not as bad as East Germany's infamous program from the 1980s.
The legal implications of Armstrong's comments to Winfrey are extensive. The possibility of criminal charges should give Armstrong the most concern, though the lengthy passage of time from most of his wrongful conduct advantages him.
The most relevant criminal charge is perjury. Armstrong's explicit admission to Winfrey that he doped prior to 2009 contradicts sworn testimony he gave in 2005 in which he denied doping. The most plausible explanation for the discrepancy is simple: he knowingly lied eight years ago. Benefiting Armstrong is the five-year statute of limitations for federal perjury charges. Courts, however, sometimes delay the running of the statute until the wrongful act could have been discovered with reasonable efforts. Prosecutors might argue the statute of limitations for Armstrong's perjury in 2005 should not have begun until a later date -- perhaps when USADA published its report in 2012 or when Armstrong spoke with Winfrey this week. Don't expect those arguments to work. Judges are much more willing to delay the running in civil cases (where only money is at stake) than in criminal prosecutions (where someone could be sent to prison). A judge may also reason that the government -- which investigated Armstrong for years -- should have discovered Armstrong's lying.
Obstruction of justice, which is knowingly trying to interfere with a legal proceeding, and false statements to government officials are other potential crimes amplified by the now certain knowledge that Armstrong lied. Armstrong was the subject of a federal grand jury investigation in 2011 and 2012, during which time he may have interacted with government officials. If the government concludes Armstrong knowingly misled officials, obstruction of justice is conceivable and within the relevant statute of limitations.
Armstrong's admissions to Winfrey also implicate his conduct as a member of a team sponsored by the U.S. Postal Service from 1999 to 2004. While Armstrong denied an active role in distributing drugs to teammates, he seemed to acknowledge he implicitly pressured them. His quasi-admission is consistent with the USADA's report which, supported by the sworn testimony from 15 cyclists who were familiar with the U.S. Postal Service team, portrayed Armstrong as unlawfully distributing the blood booster erythropoietin (EPO) and as threatening his teammates with termination unless they doped. Related criminal charges range from illegal distribution of steroids and prescription drugs, conspiracy (collaboration with others to commit crimes), racketeering (illegal business activity), misuse of public funds and embezzlement. While the statute of limitations on these charges has ostensibly expired, Armstrong should still worry about a court reasoning that the charges remain possible.
Should the government decide that Armstrong may have committed crimes, it would convene another grand jury. While a grand jury did not indict Armstrong in 2012, the government may reason that new information -- namely the USADA report and now Armstrong's admissions -- warrants another look. Then again, the Justice Department may be wary of initiating "another" prosecution of an athlete for charges related to lying and using performance-enhancing drugs. The Justice Department suffered two high-profile defeats in the Roger Clemens and Barry Bonds prosecutions. Plus, Armstrong, like Clemens and Bonds, has the financial wherewithal to assemble a top legal team that can capably stimulate enough doubt for jurors, who must apply the high burden of beyond a reasonable doubt.
While Armstrong is generally well-positioned to avoid criminal sanction, he faces an altogether different legal landscape for civil liability. Armstrong's admissions to Winfrey highlight how cruel and abusive he acted in protecting a myth; he acknowledged that he was a "bully". Even worse, his admissions demonstrate how he went so far as to abuse the U.S. legal system -- including the valuable time of judges and American taxpayer-funded courts -- to defend a story he knew was untrue. Expect blowback in the form of lawsuits, and anticipate Armstrong to attempt to settle claims before they require him to testify under oath, in which case he might be susceptible to criminal perjury charges.
Armstrong is already facing litigation. Former USPS teammate Floyd Landis, who cooperated with the government, is suing him in a whistle-blower suit. Landis asserts Armstrong and others breached contractual and fiduciary duties to USPS by cheating. The government can join Landis' civil suit, which asks for the approximately $30 million USPS paid the team, a quarter of which Landis would be entitled to under the law. Even better for Landis, damages could be trebled, thus totaling about $90 million.
Expect Armstrong to be sued by others. One is SCA Promotions, a Dallas insurance company that wants Armstrong to pay back $12.5 million in bonuses for winning the Tour de France in 2002. Because Armstrong doped, he violated his contract with SCA. The company will likely ask for its money back on grounds Armstrong committed fraud in breaching their agreement.
Another likely plaintiff is The Sunday Times, which says it will soon sue Armstrong to recover about $1.5 million it paid him to settle a libel claim he brought against it. If Armstrong is sued, his attorneys will likely argue that The Sunday Times made a calculated risk in settling the lawsuit before it went to trial and no court should give them a second bite at the apple. In response, The Sunday Times can emphasize Armstrong's dishonesty.
Emma O'Reilly, who served as an assistant to the U.S. Postal Service team and who helped to transport and distribute performance-enhancing drugs to cyclists, is another potential plaintiff. Armstrong also sued her for libel, claiming she defamed his reputation through lies. While O'Reilly settled without paying Armstrong, he sullied her reputation, with The Guardian reporting that Armstrong told others she was "an alcoholic and prostitute." It is very possible she files the same defamation lawsuit against him he filed against her. In his interview with Winfrey, Armstrong seemed to deflect blame, using the passive voice to say O'Reilly "got run over" as one of the "many" people he (or, as he awkwardly put it, "we") sued.
Armstrong's "cooperation" with USADA may lead to other lawsuits. If, as expected, Armstrong implicates others in cycling, including those at the International Cycling Union, they might sue him for defamation. Also, companies that endorsed Armstrong may also seek their money back. They can claim fraud.
There are three factors that work against the filing of claims against Armstrong. First is that the relevant statute of limitations for some claims have expired. Second is that in some cases damages may be difficult to show. Landis, for instance, may have difficultly showing that USPS actually lost money through its endorsement of the cycling team, which was successful and during which time Armstrong was perceived as a hero. An economic analysis might find USPS gained more financially than it lost through its endorsement, even if years later it was shown to have been a team with many cheaters. Third, some potential plaintiffs may worry that litigation and pretrial discovery might portray them in a negative light, particularly if they helped Armstrong cheat or adopted a "see no evil, hear no evil" mentality to suspicions about him.
Some speculate that Armstrong's motives for admission partly relate to promoting a clean break between himself and Livestrong, a foundation Armstrong founded in 1997 and, until recently, served as chairman. Although contributions to Livestrong have not dropped during the Armstrong controversy, there has been some concern they might and that some donors might ask for their money back. Those donors would almost certainly fail. When someone makes a donation, it is a true "gift." The donor no longer has control of the funds, unless made with a condition that the money be used in a certain way. Plus, returning donations creates difficult tax questions, because the donors have already taken a tax deduction for their gift.
A more divisive issue is whether Livestrong could have committed fundraising fraud by using Armstrong for inspiration when knowing of his cheating. Such an argument, however, seems speculative, especially since Livestrong, by all accounts, has abided by tax and charitable fundraising law. Nothing in the first night of the Armstrong-Winfrey interview suggests otherwise.
Michael McCann is director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also directs the sports law program at Vermont Law School.