For the past eight years, Austin lawyers Sean Breen and Tim Herman have helped their client and friend Lance Armstrong battle never-ending allegations that the cyclist and cancer survivor used performance-enhancing drugs. Armstrong has steadfastly denied the doping allegations, but he hasn’t crossed the finish line as far as his legal woes are concerned.
The U.S. Anti-Doping Agency (USADA) has alleged that cyclist Armstrong used performance-enhancing drugs during international races over the past decade. On Aug. 23, Armstrong declined to participate in a scheduled USADA arbitration — a proceeding he termed “a witch hunt.” As a result, on Aug. 24, the agency banned Armstrong from competing in world-class athletic events and announced that his seven Tour de France titles will be stripped.
Had the USADA arbitration gone forward, Armstrong would have been denied his due-process rights, Breen and Herman say. Plus, the outcome of the USADA arbitration was a forgone conclusion; the USADA would have proposed stripping Armstrong of his titles anyway, Breen says. By not participating in the arbitration, Armstrong made it clear that he believed the USADA procedures were unfair, and the outcome remained the same, say Breen and Herman, partners in Howry, Breen & Herman.
“There is no doubt in our minds that Lance made the right decision. He is the happiest he has been in a long time. He tells us that, and you can hear it in his voice,” Breen says.
The USADA’s actions already have had an impact. On Sept. 7, Bank of America Chicago Marathon organizers issued a statement explaining that Armstrong could not participate in the Oct. 7 race because the USADA banned him from athletic competition. A telephone call and email to the marathon press office were not returned.
And when he officially loses his Tour de France titles, settlements made with Armstrong related to those victories and to the doping allegations may get another look.
In 2004, Armstrong’s agent William Stapleton, who competed as a swimmer in the 1988 Olympics, introduced Armstrong to Breen and Herman. In 1994, Herman — then a partner in Brown McCarroll & Oaks Hartline (now known as Brown McCarroll) — says he recruited Stapleton to the firm. Stapleton left the firm in the mid-1990s to work with Armstrong and launch other enterprises including the Austin City Limits Music Festival, according to the website for Stapleton’s company, CSE.
Breen and Herman, who started their own firm in 1996, say Armstrong became a client in 2004 after Stapleton asked them to represent the cyclist and his team company Tailwind Sports Corp. in a fight over prize money.
After the publication of a French book that contained allegations linking Armstrong to doping, Breen says Dallas-based SCA Promotions and its insurer, SCA Insurance Specialists, claimed they were not obligated to pay $5 million to Armstrong and Tailwind, which had purchased an insurance contract that guaranteed them the payout if Armstrong won three Tour de France races. The SCA companies refused to pay Tailwind and Armstrong, based on the allegations in the book even though he had taken and passed repeated drug tests during his 20 years as an athlete, Breen and Herman say.
On Sept. 14, 2004, Armstrong and Tailwind filed Armstrong, et al. v. SCA Productions, et al. in Dallas’ 298th District Court. On Feb. 8, 2006, after an arbitration panel held a three-week hearing, the SCA companies agreed to pay Armstrong and Tailwind $7.5 million.
Jeffrey Tillotson, who represents the SCA companies, says that outcome hinged on the contractual obligations between his clients and Tailwind and Armstrong. If Armstrong won a set number of Tour de France races, he and his team got the prize money, regardless of the veracity of any doping allegations against Armstrong, says Tillotson, a partner in Dallas’ Lynn Tillotson Pinker & Cox.
Tillotson says Breen and Herman effectively advocated for Armstrong and Tailwind, managing a lot of moving parts in the case. “There was never a moment when I didn’t respect their professionalism and legal skills,” Tillotson says.
Within a year of the SCA settlement, Armstrong sent Herman to London to work with litigator Gideon Benaim, then with the Schillings Law Firm, Breen says. Armstrong had hired Benaim, now with Michael Simkins LLP, to pursue a libel suit in the High Court of Justice Queen’s Bench Division. In Armstrong v. Times Newspaper Ltd., et al., Armstrong alleged The Sunday Times, owned by Times Newspaper Ltd., published excerpts of the French book that made doping allegations against Armstrong.
Herman says he did not make a formal appearance in the case but he played a pivotal role. “I didn’t bring a wig, so I couldn’t appear in court there,” he jokes. But after Herman met with The Sunday Times‘ editor, the litigation settled in 2007. According to an Aug. 28 article in the Press Gazette, the Times “apologised” for any impression that Armstrong had taken “any performance enhancing drugs.” Andrew Caldecott with One Brick Court, who represented The Sunday Times, did not reply to an email seeking comment.
In May 2010, Breen and Herman say, following another doping investigation, federal prosecutors in Los Angeles began looking into doping allegations about Armstrong and others. Breen and Herman say they helped interview and select Armstrong’s criminal-defense counsel: Robert Luskin, a partner in the Washington, D.C., office of Patton Boggs, and Bryan Daly, a partner in Los Angeles’ Sheppard Mullin Richter & Hampton. Armstrong also hired John Keker, a partner in San Francisco’s Keker & Van Nest. Daly did not return a telephone call seeking comment.
Luskin says testimony elicited in the SCA arbitration during Breen’s and Herman’s questioning of cyclists who made doping allegations against Armstrong played a significant role persuading André Birotte Jr., the U.S. attorney for the Central District of California, to announce on Feb. 3 that his office was dropping the investigation. Thomas Mrozek, a spokesman for Birotte’s office, declines comment.
“Lance trusts them and relies on them — a function of the fact that they gave him good advice and got good results for a long period of time,” says Luskin.
After the federal prosecutors quit pursuing Armstrong, the USADA “took the baton and ran with it,” Breen says. As a participant in USADA-affiliated races, Armstrong had signed an arbitration agreement that contained requirements to resolve disputes.
In June 12 and June 28 charging letters, the agency sought to impose sanctions or any disciplinary actions against Armstrong and set a July 14 deadline for him to accept a proposed penalty or to contest charges based on doping allegations. Breen and Herman drafted an 82-page complaint — which Armstrong filed on July 9 — seeking a temporary restraining order to stop the USADA from conducting the arbitration and issuing punishment. Within hours, U.S. District Judge Sam Sparks of the Western District of Texas in Austin dismissed Armstrong’s complaint without prejudice, and allowed him to re-file within 20 days. Sparks described the pleading as “excessive” in its “rhetoric” and wrote that “the Court is not inclined to indulge Armstrong’s desire for publicity, self-aggrandizement. . . .”
“When Judge Sparks speaks, he speaks clearly, and we understand,” Breen told Texas Lawyer at the time.
Herman and Breen then drafted a 25-page complaint, which Armstrong filed on July 10 seeking the same relief.
But on Aug. 20, Sparks granted the USADA’s motion to dismiss Armstrong’s complaint in Armstrong v. Tygart, et al. In his order, Sparks concluded: “Armstrong agreed to arbitrate with USADA, and its arbitration rules are sufficient, if applied reasonably, to satisfy due process.” The judge refused to interfere “on the basis of a speculative injury.”
USADA CEO Travis Tygart, who was named in his official capacity as a defendant in Armstrong’s complaint, issued a statement in response to Sparks’ ruling that read: “[W]e look forward to a timely, public arbitration hearing in this case, should Mr. Armstrong choose, where the evidence can be presented, witness testimony will be given under oath and subject to cross examination, and an independent panel of arbitrators will determine the outcome of the case.”
In an email, USADA media relations manager Annie Sweeney writes that there is no basis for Armstrong to claim he was denied due process. That assertion “is just an on-going attempt to further hide from the truth. Mr. Armstrong agreed to abide by the same set of rules that apply to all athletes, including agreeing to the arbitration process. . . .”
Matthew Powers, a shareholder in Graves Dougherty Hearon & Moody who represented Tygart and the USADA in Tygart, did not return a telephone call seeking comment.
After Sparks dismissed Armstrong’s suit, the USADA set a date to arbitrate whether Armstrong should be disciplined related to the doping allegations. Armstrong refused to participate in the arbitration, writing in an Aug. 23 statement: “There comes a point in every man’s life when he has to say, ‘Enough is enough.’ . . . I have been dealing with claims that I cheated and had an unfair advantage in winning my Tours since 1999. . . . The toll this has taken on my family, and on my work for our foundation, and on me leads me to where I am today — finished with this nonsense.”
The USADA then decided to strip the cyclist of his Tour de France titles, which was expected, Breen says. The USADA will send its conclusions to Union Cycliste Internationale, the group that oversees the Tour de France, which will decide whether to take away Armstrong’s titles.
Wheels Keep Moving
The legal fallout from Armstrong’s decision to forgo the USADA arbitration continues. In an Aug. 26 article, The Times of London reported that the terms of The Sunday Times‘ 2007 settlement with Armstrong, “are likely to be reviewed in the light of the US anti-doping agency’s decision.”
The Sunday Times has not contacted Armstrong “because there is not a basis to set aside that settlement agreement,” Breen says.
Tillotson, who represents the SCA companies, says he has notified Breen and Herman that his clients plan to seek repayment of the prize money previously paid to Armstrong and his team as part of the 2006 settlement. In a June 19 letter to Herman, Tillotson wrote that if Armstrong “is stripped of the 2002, 2003, and/or 2004 Tour de France titles, then SCA will demand immediate repayment of all amounts paid under its contract with Tailwind, including all amounts paid pursuant to its settlement agreement with Tailwind and Mr. Armstrong.”
“They are worthy opponents,” Tillotson says of Breen and Herman. “I like them so much I look forward to seeing them in a lawsuit with Lance Armstrong very soon.”
Breen and Herman don’t believe Armstrong’s previous settlements are in jeopardy. And they agree their client’s decision not to participate in the USADA arbitration was the right one. However, “I don’t think that anyone would argue that the overall result was good for Armstrong,” Herman says.