Lance Armstrong.
Lance Armstrong.

Why Lance Armstrong Will Never Give In

With evidence piling up that Armstrong cheated to win, should he confess and ask his fans, enemies, and cancer-fighting supporters to forgive him? As Brian Alexander explains, that would be the worst move he could make.

Lance Armstrong.

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During Tyler Hamilton’s round of interviews last week about The Secret Race, he made a noteworthy comment to ESPN’s Bonnie Ford. The subject was Lance Armstrong’s decision to stop fighting the United States Anti-Doping Agency (USADA) in its attempt to strip him of seven Tour de France titles. “I’ve never seen Lance throw in the towel before,” Hamilton said. “I expect there will be plenty more fighting. He’s not done, trust me. The day he puts up the white flag is the day he dies.”

Those words are worth remembering during this extraordinary news cycle, because some people are already talking about forgiveness and what it would take for Armstrong to earn it. The International Cycling Union (UCI) and USADA have suggested that pro cycling form a truth-and-reconciliation commission to facilitate a process of large-scale confession, mitigated punishment, and healing. Cyclists who come clean might be able to earn reduced USADA penalties in exchange for fessing up.

Should Armstrong come forward and talk? Such a prospect may delight people who believe he’s gotten away with too much for too long. But that strategy doesn’t make sense for the man himself: USADA seems determined to punish him regardless, and at this point there may not be much he could say that they don’t already know.

The only thing talking would do is increase Armstrong’s potential legal liabilities, which are already considerable. When USADA releases its evidence in support of stripping Armstrong’s titles—which is expected to happen soon—he faces the prospect of new criminal and civil charges, some connected to legal battles he’s fought and won in the past. In the face of all this, Armstrong’s silence about doping is his best defense. Here’s a look at the pitfalls of changing that course.

This may be the most serious risk of an admission. The U.S. Attorney’s office in Los Angeles pursued a lengthy investigation of cycling and Armstrong, focused on the Postal Service sponsorship of Armstrong’s team. Apparently, U.S. attorneys were exploring whether the team defrauded the United States Postal Service, using some of the sponsorship money to run a doping conspiracy. U.S. Attorney André Birotte, Jr. closed the investigation in February without filing any charges, but as Thom Mrozek, a spokesmen for the office, told Outside, “We didn’t limit our options, in case significant new developments warranted action on our part.”

Reopening such an investigation is rare, but it happens. Until all statutes of limitations run out—for example, the crime of lying to a federal officer has a five-year limit—Armstrong has a sword hanging over his head. He could, for example, face the prospect of jail time if it turns out he lied to federal agents during the initial investigation by denying he ever doped or knew anything about doping on the team.

An admission could be like raw meat to the feds, says veteran San Diego lawyer Michael Lipman, who has served as both a federal prosecutor and a defense attorney and has worked with professional athletes. “Why would he put himself at risk and say, ‘Hey! Here! Take a shot at me?’” Lipman says. A lawyer close to the investigation—who asked to remain anonymous—agrees, saying that the government “has every incentive to get something for the time and money” it has already invested.

Sometime soon, USADA has to reveal to the UCI what evidence it has to support banning Armstrong from competition and stripping him of his titles. In response, the UCI is likely to comply with USADA’s request to sanction Armstrong. While such developments may prove very embarrassing for Armstrong and the people around him, it probably won’t change his situation as far as federal prosecutors are concerned. The feds already know everything USADA knows. (They helped USADA acquire the evidence, after all.) Mrozek says that, as of now, there haven’t been any developments significant enough to warrant reopening the investigation.

It’s been widely reported, originally by The Wall Street Journal, that former Postal rider Floyd Landis filed a federal whistleblower lawsuit in 2010 targeting Armstrong. Under the federal False Claims Act, such a suit can be filed by any U.S. citizen on behalf of the government.

A typical whistleblower suit accuses some party, like a government contractor, of defrauding Uncle Sam. The filing reportedly accuses the Postal Service team, including Armstrong, team founder Thomas Weisel (a wealthy Silicon Valley investor and amateur bike racer), and team management, of defrauding the Postal Service by signing sponsorship agreements it knew to be false. Those agreements specified that riders would be immediately disciplined if they doped and that doping would not be tolerated.

Whistleblower cases are designed to punish, as well as to recoup government money: by statute, any damages awarded may be tripled. As ESPN discovered when it acquired documents related to the sponsorship, obtained under the Freedom of Information Act, the Postal Service gave the team $31.9 million between 2001 and 2004. So, theoretically, Armstrong and associates could be on the hook for more than $90 million. Landis won’t say if he started the action, but if he did he would stand to get a percentage.

While money could be a motive, whoever is behind the suit may also be interested in the process of pretrial discovery. During such a case, Armstrong’s ex-wife and ex-girlfriends, former teammates, managers, and friends could be subpoenaed to testify under penalty of perjury.

But previous investigations—and recent news developments—could make this suit seem unnecessary, since USADA claims to have multiple witnesses to Postal’s doping program. Meanwhile, some legal experts doubt that the case would get very far.

Whistleblower suits stand a much better chance if the government weighs in on the side of the whistleblower. Thus far, the USPS has refused to comment on the suit, and there’s no indication that it or the Department of Justice is seriously considering joining in, which usually means they doubt the case’s merits.

Why? Possibly because the case doesn’t fit the model of a typical whistleblower action. It’s a stretch, experts say, to compare a defense contractor who says his widgets are made of titanium but aren’t with an organized sports-doping program.

And keep in mind that no court, and no national authority, has ever said Armstrong cheated. USADA can take away Armstrong’s titles, but it does not have the authority of a U.S. court.

Maybe, but this argument is sketchy. In its later contract renewals for sponsorship, USPS inserted drugs-and-morals clauses, which Postal’s team owners and riders agreed to. Those clauses included words like “inappropriate drug conduct prejudicial to the team or the Postal Service,” “commonly accepted standards of morality,” and so on. In light of that, there’s been speculation that USPS could try to take back some of the money it spent if Armstrong and other team members used performance enhancers. But it’s doubtful this will happen.

“I can tell you that, in contracts where I have been the lawyer, morals clauses do not have a retroactive effect” on an expired contract, says Andrew Morton, a partner at the Chicago-based firm of Handler and Thayer and chairman of its sports and entertainment group. “I’ve never seen it, even in company drafts” of contracts, he says.

Even if a clawback provision existed in Armstrong’s deals, says New York City sports-practice attorney Brian Socolow, “I highly doubt that Lance Armstrong or somebody else would just give the money back. The Postal Service would then have to bring a lawsuit and prevail in litigation. That would take a while and cost a fair amount of money. I think it’s highly unlikely that this type of case would be fielded. Morals clauses are kind of a dead issue after time has gone by.”

Morals clauses in athlete contracts date at least to Babe Ruth’s day. (In 1922, the New York Yankees made him agree to stay off the booze and get some sleep.) Since then, the clauses have become standard for agreements between teams and players, as well as for athletes and the companies that endorse them. They can cover a wide range of activities but usually include terms like “disrepute” and “negative publicity.” You don’t have to be convicted of anything to trigger the clause.

Morton says he could make the argument that, due to disrepute and negative publicity, Armstrong’s sponsors could invoke the clauses now. But as high-profile cases involving athletes like Tiger Woods and Kobe Bryant have shown, they could also choose not to. Woods lost sponsors, but he retained some, too, including Nike. So did Kobe Bryant. So far, Armstrong backers like Nike and Oakley are saying they’ll stick with him. His persistent denials leave room for belief among supporters, but an admission from Armstrong could cause sponsors to cut ties.

In 2004, Armstrong filed two defamation suits after the publication, in France, of L.A. Confidentiel: Les Secrets de Lance Armstrong. Written by journalists David Walsh and Pierre Ballester, the book compiled the best circumstantial evidence available at the time that Armstrong had doped. Now Tyler Hamilton and co-author Daniel Coyle have come along and bolstered much of what Walsh revealed.

L.A. Confidentiel was published by La Martinière, which also owns the sports newspaper L’Équipe and the Amaury Sport Organisation, which runs the Tour de France. The Sunday Times of London, Walsh’s employer, ran an article about the book five months earlier.

Armstrong sued in the U.K., naming Walsh and the Times, among others. In France, he sued La Martinière and the magazine L’Express, which had printed an excerpt.

Armstrong eventually dropped the French suit and reached a settlement with the Times, which is published by a subsidiary of News International, a property of Rupert Murdoch’s News Corporation. As part of the settlement, the newspaper issued a statement saying it did not mean to accuse Armstrong of doping. Other details were sealed, but some reports suggest something like $750,000 changed hands.

News International declined to comment to Outside about what this new payload of evidence and tell-all would mean to the settlement. But in a recent message to it readers, the Sunday Times stated that the terms “are likely to be reviewed in the light of the U.S. anti-doping agency’s decision.” That sounds ominous, but it’s a long way from reviewing terms to trying to recoup a settlement that’s already been paid out.

The same situation prevails with another legal dispute, known as the SCA case. SCA is a Dallas company that provides a kind of performance insurance for sporting events. It had contracted to pay Armstrong a $5 million bonus if he won the 2004 tour. But then Walsh’s doping charges were aired, and SCA, arguing that Armstrong had cheated, refused to pay. Armstrong sued and the case went into private arbitration. The panel ordered SCA to pay the $5 million plus $2.5 million in interest.

SCA has said that it, too, is exploring options. But as Socolow points out, “it would be extremely unlikely, given all the time that’s passed, that you could reopen that matter. There are instances where one party seeks to undo it because it claims the other party defrauded, but it’s fairly rare.” In many federal courts, for example, there’s a one-year limitation on reopening a civil case that’s already been decided, even in light of new evidence like fraud or perjury. The justice system wants finality.

Arbitration is different, and parties to an arbitration agreement can write their own rules. But once terms are settled, money is paid out, and seven years have gone by, it’s highly unlikely that SCA would ever succeed in getting back its money.

And once again, Armstrong has zero incentive to reveal any history of doping that would only confirm what other publications have printed.

That’s true no matter what he says or doesn’t say, depending on what the UCI, or the Tour de France itself, does next. But there’s an example indicating that at least a portion of Armstrong’s prize money may be safe. In 2007, Danish cyclist Bjarne Riis admitted to doping during his 1996 Tour de France win. Subsequently, Tour officials said they would not try to recapture any of Riis’s winnings because of a 10-year limitation on doing so.

If the same logic holds for Armstrong, his 1999, 2000, 2001, and possibly 2002 winnings aren’t likely to be at risk, even if the UCI were to erase all seven victories from the record books. And once again, if the UCI or the Tour demand money back, they might have to fight in court to get it.

Obviously, some donors will stick with Livestrong and some will drop it—we won’t know for some time what the impact of recent developments will be on the organization. But what about the legal action that occurred after Jon Krakauer revealed that Greg Mortenson’s books, Three Cups of Tea and Stones Into Schools, contained numerous factual fabrications? Several donors sued in the aftermath, saying that they were tricked into donating to the institute by Mortenson’s fictions.

Couldn’t the same logic be applied to It’s Not About the Bike, Armstrong’s biography, which rests on the foundation that he raced clean?

Morton, who specializes in leveraging celebrity for philanthropies, explains that “there is a very high bar for a donor, as a legal matter, to get refunded. As a matter of business judgment, I have been involved with requests from donors who, for various half-baked reasons, wanted money back—and yes, politically, you just give it back. It’s easier.”

So far, the progress of the Mortenson lawsuit supports that view. The federal judge hearing the case dismissed it, calling it “fraught with shortcomings.” The case is now in appeal.

After news of USADA’s decision to sanction Armstrong broke in late August, donations to Livestrong actually increased. Since then, there have been questions about the rate of giving, but Livestrong doesn’t appear to be in dire peril because of its association with Armstrong. A Kansas City Stadium called Livestrong Sporting Park, owned by an outfit called Sporting Kansas City, shares revenue with the foundation. Officials tell Outside there are no plans to change the nature of the relationship.

IN SHORT, ARMSTRONG HAS nothing to gain by saying anything. Lipman says that, if he were advising somebody in Armstrong’s position, he’d say: “What is the plus for you? You admit it and you get sued, indicted, charged.”

But what about Armstrong’s future as a philanthropist and amateur athlete who still enjoys staying fit and competing? That’s uncertain, of course. If the current bans against participating in athletic contests that adhere to the World Anti-Doping Code holds, Armstrong won’t be doing any big-time mountain biking, triathlon competing, or marathon running.

But he doesn’t need to do any of those things to keep a high profile. While many bike aficionados have strongly praised Hamilton’s book and USADA’s actions, to many average people—whose knowledge of cycling begins and ends with Armstrong—all this inside-the-spokes news is shrugworthy. Many either accept that Armstrong doped and simply don’t care, or deny that he doped and think he’s been unjustly hunted by USADA chief Travis Tygart. Others don’t think it matters either way, because Armstrong has led a worldwide effort to advocate for cancer survivors through the Livestrong Foundation.

In the future, Armstrong can do charity rides, participate in endurance events—Tough Mudder anyone?—and, of course, continue to advocate for cancer patients. Given all the drug testing Armstrong survived—something he’s cited many times in defense of his innocence—and the outright support he’s received from many, it looks like he’ll be able to press on, dented but not destroyed, as long as he never admits to doping.

Brian Alexander writes frequently for Outside about performance-enhancing drugs in sports.