UPDATE, 10/15/2012, 11:05 a.m. EDT. Information on a whistle-blower case filed by Floyd Landis against Lance Armstrong two years ago has been added to the 22nd paragraph of this story.
Lance Armstrong’s reputation—not to mention the reputation of the sport he dominated for the better part of the last decade—took a big hit this week when the U.S. Anti-Doping Agency (USADA) unveiled its 202-page reasoned decision effectively labeling professional cycling’s preeminent figure a fraud.
Armstrong’s long quest to silence claims that he used performance-enhancing drugs—allegations that have dogged him since he won the first of seven Tour de France titles in 1999, just three years after being diagnosed with cancer—suffered a potentially crippling blow with USADA’s publication on its website of reams of background materials backing the organization’s findings. Among the most damning documents posted are affidavits from 11 former Armstrong teammates accusing him of overseeing a doping program designed to deceive regulators.
In its report, which has been presented to the World Anti-Doping Agency (WADA) for review, USADA portrays Armstrong—in his role as team leader—as relentlessly focused on winning at all costs to the point that he was willing to flout rules against the use of performance-enhancing drugs. (The U.S. Postal Service sponsored Armstrong’s squad from 1999 to 2004, while the Discovery Channel served as primary sponsor in 2005.)
In an interview with The Am Law Daily, William Bock III, general counsel for USADA and a partner at Indianapolis-based Kroger, Gardis & Regas, says he is particularly proud of the way in which the Armstrong investigation pierced what he calls the "omertà" that has in the past prevented many cyclists from speaking out about doping practices that had become routine when racing with Armstrong.
While USADA’s investigation began several years ago, Bock says the most intensive legal work was "compressed into the last six months," following the February decision by the U.S. attorney’s office in Los Angeles to abandon a criminal probe into Armstrong’s activities. The criminal inquiry had prompted Armstrong to hire an all-star team of lawyers from Patton Boggs, Sheppard Mullin Richter & Hampton, and Keker & Van Nest, according to our previous reports.
Bryan Cave litigation partner Richard Young, who served as cochair of the litigation practice at Holme Roberts & Owen until it was absorbed into Bryan Cave on January 1, served as outside counsel to the USADA during its Armstrong investigation. Young says he was convinced Armstrong and his attorneys would head to arbitration and attempt to bankrupt USADA in the process.
"Lance has more money than the agency," Young says. "So I expected a contentious prehearing period, but also that we’d have a lengthy hearing and an arbitration panel would write the reasoned decision instead of us."
That all changed when Armstrong and another legal team he assembled to fight the doping allegations—a group led by lawyers from Patton Boggs, Williams & Connolly, and Austin’s Howry Breen & Herman—chose not to contest the charges in an arbitration process they claimed was rigged against them.
Young, who has handled USADA cases against former Armstrong teammates like Floyd Landis and Tyler Hamilton, says Armstrong’s decision not to proceed to arbitration surprised him. According to USADA general counsel Bock, the unexpected development meant the agency had to shift its focus from intensive trial preparation to putting its findings in written form.
By that point, Bock had made one three-day trip to Spain to interview witnesses. In order to put together the USADA’s final compilation of the evidence it had against Armstrong for its reasoned decision, Bock returned to Europe to obtain affidavits from several individuals caught up in an Italian investigation of sports doctor Michele Ferrari, who had served as Armstrong’s trainer until 2004. (Marco Consonni, a former Dewey & LeBoeuf partner now at Italian firm Orsingher who had done work for WADA, was among those who provided Bock and the USADA with an affidavit.)
Bock attributes the USADA’s success in working with various legal authorities and sports governing bodies in foreign jurisdictions to agency CEO Travis Tygart, a former Holme Roberts associate who served as the USADA’s general counsel until 2007, when he was chosen to replace fellow Texan and attorney Terrence Madden as head of the agency.
“Travis has done a tremendous job building relationships around the world for the USADA and he helped us get WADA’s support,” Bock says.
Tygart, who was traveling Friday and not immediately available for comment, received at least three death threats after the USADA stripped Armstrong of his Tour de France titles and banned him for life in August. Besides Bock and Young, other members of the legal team assembled to investigate the allegations against Armstrong include former Holme Roberts associate and USADA legal affairs director Chinwuba "Onye" Ikwuakor and Bryan Cave litigation partner Brent Rychener, both of whom are based in Colorado Springs.
As managing partner of Bryan Cave’s Colorado Springs office, Young has worked closely with the governing bodies of several major sports, and also served as the lead draftsman for the World Anti-Doping Code that went into effect in 2004 and has since been adopted by roughly 200 governments and 600 international sports organizations. (Click here for a 2007 story from sibling publication The National Law Journal about Young and Holme Roberts’s sports practice; former firm partner Scott Blackmun is the head of the U.S. Olympic Committee.)
Armstrong responded to the USADA inquiry by suing the agency this summer in federal court in Austin, with the 41-year-old Lone Star State native’s lawyers seeking a temporary restraining order aimed at blocking a possible arbitration proceeding. The suit was subsequently dismissed, according to sibling publication Texas Lawyer, which recently reported on the longtime relationship between Austin’s Howry Breen and Armstrong, who retired from pro cycling last year. The legal maneuvering, however, didn’t ended there.
In a five-page letter sent to Bock this week, Howry Breen name partner Timothy Herman accused the agency of acting as "prosecutor, judge, jury, appellate court, and executioner" in issuing a reasoned decision that Herman claims violates its own eight-year statute of limitations. Herman also suggests that Bryan Cave has a bias against Armstrong because the firm represents tobacco companies that oppose antismoking legislation in several states that the cyclist supports, while criticizing Bock as a relative novice when it comes to anti-doping investigations.
"If that is what they think than I suppose it makes it even more telling that [Armstrong] chose not to confront our evidence in a hearing before neutral arbitrators," says Bock, noting that he once served as cocounsel several years ago with one of Armstrong’s own attorneys, Williams & Connolly partner Mark Levinstein, in a case where they represented the U.S. Olympic Committee. Bock began handling USADA–related matters back in 2001 and took over as general counsel from Tygart in 2007, according to sibling publication Corporate Counsel.
Asked about the tobacco-related conflict raised by Herman, Young laughs heartily and points out that he only joined Bryan Cave earlier this year when the firm acquired Holme Roberts. "Frankly, with all of [Armstrong's] lawyers and public relations people, I think they could have done better," he adds. "If that’s the best they’ve got, I think that’s pretty telling."
Federal tax returns by the USADA show that Holme Roberts, prior to its merger with Bryan Cave, received more than $4.5 million in legal fees from the organization since 2002. Bock’s firm has been paid at least $1.5 million during that same period. (Tygart received approximately $335,206 in compensation in 2010—the most recent year for which tax records are available—while former USADA legal affairs director Stephen Starks, now an associate at Kroger Gardis, was paid $148,493.)
Mark Fabiani, an attorney and noted spinmeister serving as a spokesman for Armstrong, said this week that the USADA’s findings were extremely one-sided and that the Justice Department’s decision earlier this year not to pursue criminal charges should be evidence enough that the case against his client is lacking. (For its part, the U.S. attorney’s office in Los Angeles, led by former Quinn Emanuel Urquhart & Sullivan associate Andre Birotte Jr. isn’t commenting on the Armstrong affair.)
Armstrong’s defense team also released an extended statement on Friday pointing out alleged inaccuracies in the USADA’s findings. As for Armstrong, whose own charity’s future has been called into question despite the steady stream of donations his anticancer efforts continue to attract, he issued a lengthy statement in August expressing weariness at defending himself in what he labeled an "unconstitutional witch hunt."
Bock says the affidavits provided by Armstrong’s former team members—some of whom, such as Landis, had no incentive to lie and have suffered financially for telling the truth—in themselves serve as ample proof of Armstrong’s wrongdoing. (Armstrong’s defenders note that Landis filed a False Claims Act suit against Armstrong in 2010 that provides him with a financial incentive to implicate his former teammate.)
Bock also cites the graphic affidavit of former teammate Tom Danielson, who expresses concern about being pushed into receiving intravenous injections of erythropoietin and the “emotionally paralyzing” process of blood transfusions, despite the potential long-term effects on his body.
Other documents made public by the USADA show that several of those former teammates—some of whom have previously been attacked by Armstrong’s lawyers as untrustworthy turncoats—were well represented during the investigation.
Danielson and current riders Christian Vande Velde and David Zabriskie of the Garmin-Sharp pro cycling team, which is managed by anti-doping advocate Jonathan Vaughters, are all being advised by Herrick, Feinstein litigation counsel David Rosenfield. George Hincapie, a cycler whom Armstrong considered one of his best friends, is being represented by Wachtell, Lipton, Rosen & Katz partner David Anders, while Kramer Levin Naftalis & Frankel white-collar litigation cochair Barry Berke is advising another former teammate, Toronto cyclist Michael Barry.
Mike Kaeske of the Kaeske Law Firm in Austin counseled Levi Leipheimer; Tyler Hamilton has periodically been advised by former Paul Hastings associate William Manderson of Newport Beach, California–based Manderson, Schafer & McKinlay (who spoke with The Am Law Daily last year); and San Francisco solo practitioner Paul Scott has stepped in for Floyd Landis, who was once represented by Wilson Sonsini Goodrich & Rosati. (Hincapie, Leipheimer, Danielson, Vande Velde, and Zabriskie all received reduced doping bans for their cooperation in the Armstrong inquiry.)
In addition to the possibility of a criminal case into Armstrong being reopened, his lawyers must also contend with the potential for legal action against their client by those who helped build his business empire by paying him during his reign atop pro cycling.
The Am Law Daily noted in August that Armstrong had sued a Dallas-based company called SCA Promotions back in 2004 over a $5 million bonus he was due for winning his sixth Tour de France. SCA, which had stopped payment when doping allegations against Armstrong surfaced in the French press, eventually lost the case in arbitration.
Jeffrey Tillotson of Dallas-based Lynn Tillotson Pinker & Cox, who represented SCA in that arbitration and spoke to The Am Law Daily in August, told The New York Times on Friday that his client would attempt to recoup that $5 million bonus plus another $2.5 million in legal fees for Armstrong’s lawyers from Howry Breen.
On Friday, the head of the Tour de France publicly called for Armstrong to be stripped of all seven of his titles. WADA director-general David Hoffman also told various news agencies that officials with the Union Cycliste Internationale (UCI), pro cycling’s governing body, most likely looked the other way when it came to blood-doping by the sport’s best-known figure.
WADA and the UCI have 21 days to appeal the USADA’s ruling to the Court of Arbitration for Sport, says Bryan Cave’s Young, noting that he doesn’t expect WADA to do so because its general counsel Olivier Niggli worked closely with them during the investigation into Armstrong.
"This is an opportunity for international cycling to push the reset button so that they can put a close on an era of doping and usher in a new one of daylight and transparency," says Young, as he prepared to board a flight to Europe on Friday. "That’s the big takeaway from all of this."