The Explainer: Just when I thought I was out … they pull me back in
I thought things in cycling would be quiet before the start of the Tour on the 30th of the month, but here we are again, with cycling hitting the headlines, with doping and Lance Armstrong mentioned in the lead paragraph again.
I got into cycling because of Lance Armstrong and I loved the guy as he killed it on the roads of France. Over the years, I learned more about him as a person and, still admiring him as an athlete, came to the conclusion that I probably wouldn’t enjoy spending a lot of time with the guy. Obviously, he has issues, but what the heck, he’s gone. He’s retired. He was even cleared by a grand jury. Why the hell is USADA going after him now?
Isn’t it a waste of time and money to persecute a retired jock for cheating whether he did it or not?
What are they going to charge him with? Who gets to decide his guilt? How long before we hear about the result?
On one level, I have to agree, Roy. I guess Michael Corleone put it best when he (and later Silvio Dante on the “Sopranos”) said “just when I thought I was out … they pull me back in.”
And yeah, I pretty much thought we were done with this stuff, but we’re back touching on the same subject that’s been rattling around in my head since 1999, when I spent the entire three weeks of the Tour sharing a car and hotels with the man who would soon become Lance Armstrong’s chief accuser, David Walsh of the Sunday Times of London.
Look, no matter how you approach it, the story was compelling: The young American one-time world champion returned from death’s door to win the greatest bicycle race – nay, the greatest sporting event – in the world. Even one Tour victory would have capped that narrative, let alone seven. The story is – to use an oft-overused term – awesome. If it had merely been a movie or a novel, knowing cycling fans would have quickly dismissed it as fantasy.
Miracle or fraud?
Me? I have to go back to what Greg LeMond once said about the other American to win the Tour. “If Armstrong’s clean, it’s the greatest comeback,” he noted. “And if he’s not, then it’s the greatest fraud.”
It was a few years later, when Armstrong celebrated his last win in Paris in 2005, when he issued a rather flaccid response to that observation, “the last thing I’ll say to the people who don’t believe in cycling, the cynics and the skeptics: I’m sorry for you. I’m sorry that you can’t dream big. I’m sorry you don’t believe in miracles.”
Let’s deconstruct that. Yeah, I believe in cycling. I admit I’m a skeptic. Cynic? No, a cynic would be one to believe that people are too stupid to ask the questions a skeptic would raise. Hey, I even like to dream big, but I am not so much in the “miracles” camp. Apparently, neither is the U.S. Anti-Doping Agency.
So here we are, 13 years after that first miraculous Tour win and a good seven after that farewell speech from the podium in Paris. We’ve all reviewed charges, read books and heard accusers from all sides, but the “world’s most tested athlete” has emerged relatively unscathed. His most recent brush ended when André Birotte, the U.S. Attorney for the Central District of California, called an end to a grand jury investigation into Armstrong and others on a host of charges that were said to include allegations of doping, fraud and conspiracy.
A lot of people were surprised by Birotte’s decision, not least of which the investigators and Assistant U.S. Attorneys working the case, who reportedly received only 15 minutes’ warning before the news went public.
Cooperating with investigators in that case were officials from USADA, including the agency’s CEO Travis Tygart.
Wednesday’s news should come as no surprise then, especially to those who recall Tygart’s statement the day Birotte shut down the grand jury investigation.
“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws,” he said. “Our investigation into doping in the sport of cycling is continuing, and we look forward to obtaining the information developed during the federal investigation.”
You’ve got mail!
At this point, the agency has not received much, if any, information from the U.S. Attorney’s office. There are specific provisions governing the release of grand jury information in the Federal Rules of Criminal Procedure and we may yet see the Department of Justice share some of that in the future.
The charges outlined in a June 12 letter to Armstrong are largely based on the evidence that USADA has gathered on its own over the past few years.
The agency outlines the elements of a potentially strong “non-analytical” case against all of the respondents. Much will depend on the quality of the evidence presented and whether Armstrong’s legal team can successfully attack that evidence. We’ll see.
We already know that there is a great deal of witness testimony out there, including statements from former staff and teammates. Some of those will offer testimony that the defense will work to impeach, largely because they themselves were caught doping. Chief among those, of course, are Tyler Hamilton and Floyd Landis.
Personally, I think Tygart is a pretty cautious sort and I doubt that letter would ever have been dropped in the mail if he didn’t have what he sees as an airtight case.
While nearly all of the attention has been focused on Armstrong’s inclusion in that list of respondents, included in the charging letter are Johan Bruyneel, doctors Pedro Celaya, Luis Garcia del Moral and Michele Ferrari and trainer Jose Pepe Marti.
USADA is seeking penalties and sanctions against all of them. Each of them, the document charges, has violated rules against the possession, trafficking, administration – or attempted administration – of banned substances and/or engaged in banned practices. The list of substances and practices includes all of the usual suspects: the drugs EPO, testosterone, Human Growth Hormone, Corticosteroids and assorted masking agents, as well as violations of bans on blood doping and the use of saline and plasma infusions.
The agency is looking to suspend each of the respondents in this case and, citing aggravating circumstances, may seek the imposition of life-time bans.
Normally, a first-time violation of the rules will result in a two-year suspension, but the revised UCI rules and the World Anti-Doping Code do allow an anti-doping agency to seek stiffer sanctions when there are aggravating circumstances. In this case, each of the respondents has been charged with “assisting, encouraging, aiding, abetting, covering-up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping violations.”
It’s that charge which serves as the basis for the conspiracy and cover-up charges outlined on page 12 of the USADA letter. The agency alleges that each of the respondents has been involved in a long-running and coordinated effort to acquire drugs, encourage their use among riders on the U.S. Postal, Discovery, Astana and RadioShack teams and then use “fear intimidation and coercion to attempt to enforce a code of silence (or omerta)” to keep those practices secret.
With the risks faced by any individual rider who might choose to come forward, the code of omerta tends to work pretty well, too. But there appears to be a tipping point, too. After a certain number of riders come forward and speak publicly, the whole thing begins to unravel like a two-dollar sweater.
Frankie Andreu and Steven Swart started things when they spoke out about doping years ago. Floyd Landis, Tyler Hamilton and others have since come forward and, according to the USADA letter, virtually every rider they contacted – with the exception of Armstrong himself – has cooperated with the investigation and “agreed to meet with USADA and to truthfully and fully describe their involvement in doping and all doping by others of which they were aware.”
If that’s the case, the code of silence ain’t so silent anymore.
USADA says it is also prepared to present medical evidence, including blood testing data from 2009 and 2010 that are “fully consistent with blood manipulation, including EPO use and/or blood transfusions.”
Armstrong was quick to respond on Wednesday, denying the charges and characterizing the case as “baseless, motivated by spite and advanced through testimony bought and paid for by promises of anonymity and immunity.”
“I have never doped,” Armstrong added, “and, unlike many of my accusers, I have competed as an endurance athlete for 25 years with no spike in performance, passed more than 500 drug tests and never failed one.”
That sounds like a guy ready for a fight. But is he?
Just last month, in a Men’s Journal interview, Armstrong seemed to suggest that he was expecting something from USADA, adding that if something did emerge, he was not going to waste his time challenging it.
“In my mind, I’m truly done,” he said. “You can interpret that however you want. But no matter what happens, I’m finished. I’m done fighting. I’ve moved on. If there are other things that arise, I’m not contesting anything. Case closed.”
Frankly, it’s understandable. The guy has a comfortable life. He’s focused on other things. He has the foundation, he has kids, he has amassed a fortune and he has his health. If he fights it we can expect a two-year battle, starting with a hearing before a three-member panel. Depending on how that turns out, we can also expect an appeal – by either party – to the International Court of Arbitration for Sport.
Take a look at the timelines in the Hamilton and Landis cases, if you need an indicator of how long this will take. Then add the complexity of multiple respondents, more serious charges and the evidentiary issues that will arise in a “non-analytical” case and we could see this thing go on for even longer. (Of course, on the plus side – at least in my book – that translates into lots and lots and lots of billable hours for the lawyers involved.)
At this point, walking away would mean a somewhat sullied reputation and a ban from his recent return to triathlon. All things considered, that may not be a huge price to pay, especially when weighed against the risks involved in losing a protracted fight.
Of course, there may be other reasons not to fight. Testimony in USADA cases is given under oath. Anything he says will be carefully scrutinized and there could be the potential for perjury charges – like those levied against the last athlete who embraced the “world’s most tested athlete” moniker, Marion Jones.
There’s also nothing to keep the Department of Justice from re-opening its now-abandoned grand jury investigation. Charges were never filed in the last one. Double jeopardy is not an issue … although the statute of limitations has long been an issue in my mind.
Evidence in this case could well be used in pending civil actions, including the currently dormant “whistle-blower’s suit” filed by Floyd Landis a few years back.
Still, even if Armstrong doesn’t fight, I can’t imagine Bruyneel, et al. will be satisfied to have their careers stopped in their tracks.
No matter what, we can probably expect to hear about the case and the charges outlined in USADA’s letter for years to come.
Is that a good thing? I don’t know. Frankly, I think the scrutiny is healthy. I honestly believe the sport is significantly cleaner than it was the first time Armstrong retired in 2005. Am I happy that we’ve waited this long to assemble evidence that’s been out there for years? Not so much. We would have all been better off had all of this happened earlier. Nonetheless, I really do want to see the evidence and finally be comfortable saying whether I believe this miraculous story was the greatest comeback … or the greatest fraud.
But what the hey, what do I know?
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.