Will the federal government go soft just as its decade of PED investigations might yield a hard-currency payoff? A civil fraud case against Lance Armstrong's cycling team could yield millions of dollars in reimbursement to the U.S. Postal Service, which sponsored the team under a contract that required riders not to dope. Yet the Department of Justice has hesitated to throw its essential weight behind the lawsuit, which should be easier to sell to the public than any of its other actions in doping cases.
Travis Tygart, in his lawyerly way, has called out Attorney General Eric Holder for timidity in the whistleblower lawsuit, originally filed in 2010 by former Postal rider Floyd Landis. The head of the U.S. Anti-Doping Agency wrote a letter to Holder last month, coaxing him to step into the batter's box again, eight months after a beaning by Roger Clemens' legal team, and try to reclaim the millions for the U.S. Postal Service.
"In light of the outcome of recent sport-related federal cases, it is understandable that the government would have some reluctance to spend public dollars going after another sports case,'' Tygart said in a letter dated Jan. 14. "This situation is different. USADA has already done the work in the sports case and won. … Unlike the Clemens case, the central fact of doping is no longer an issue. What remains unresolved is the massive economic fraud perpetrated by individuals who are outside USADA's jurisdiction.''
Those "individuals outside USADA's jurisdiction'' are exactly the sort of people who many sports fans believe should be targeted for punishment as much as, if not more than, doping athletes. They are team owners, executives and agents who stood to profit off drug-aided victories without assuming the biological risks or, for that matter, having to deliver urine samples while someone watches up-close.
As a partial owner of the team, Armstrong qualifies as one of those targets. The list also includes an investment banker, San Francisco financier Thomas Weisel, the primary owner of the company that managed the team. If Holder thinks he can't win public support for trying to recapture money from an investment banker in 2013, he needs to go back to private practice.
The letter from Tygart makes it clear that USADA, which banned Armstrong from Olympic-style sports for life last summer, does not seek specifically to punish him further. Ideally, he would settle his portion of the case and then turn evidence against his partners. Both CBS News and the New York Daily News have reported that Armstrong's representatives have made overtures about a settlement.
The government, in theory, could also pursue criminal fraud charges in the Postal case, resurrecting a two-year grand-jury investigation that was dropped abruptly last year. At that point, Barry Bonds had been convicted on just a single count of obstruction and Clemens' first trial had been tossed out of court because of prosecutorial error. (He would eventually beat the perjury and obstruction charges.) As a result, the government appeared to have lost some of its zeal for pursuing doping-related cases.
But in the letter, Tygart points out that the feds had no qualms about pursuing a criminal fraud case against Landis as a way to force him to reimburse people who had donated close to $500,000 to his defense fund after a failed drug test stripped him of the 2006 Tour de France title. Landis confessed to doping and deceiving his supporters in 2010.
"USADA found it ironic that even after the case against Armstrong was dropped in the Central District of California, the U.S. Attorneys office in San Diego continued to prosecute Floyd Landis. … The fraud committed by the U.S. Postal Service team dwarfs anything Landis did,'' the letter says.
Don't be fooled by the "found it ironic'' language. This was barrister trash talk, from one teammate trying to elevate another's game.
Tygart declined to comment on the letter, a copy of which was obtained by Sports on Earth on Thursday, the day after Armstrong passed a deadline to cooperate with USADA on a broader investigation into cycling. The Justice Department did not respond to a request for comment about the status of the lawsuit.
Since the feds leveraged criminal charges to get Landis to repay his donors, they can certainly do the same to shake settlements out of Armstrong and the other principals named in the whistleblower suit. Taxpayers, who have complained about the cost of prosecuting Bonds and Clemens, would demonstrably benefit from any win in this lawsuit.
The Feds can sign on to the case with Landis and take it all the way to court. They could do so and still pursue settlement. They can keep applying for delays on the deadline to join in. Or they can let Landis carry the ball on his own, reducing the chances of success.
Under the terms of such a lawsuit, which allows private citizens to pursue claims on behalf of the government, the whistleblower could receive 15 to 25 percent of the total damages if the government joins the case. He would receive as much as 30 percent if he proceeded alone and won. The Postal Service would still collect the remaining 70 percent if only Landis and his lawyers went forward. The damage awards can triple the original amount gained by fraud, and the Postal Service's sponsorship of Armstrong's teams paid out at least $30 million.
David Howman, the head of the World Anti-Doping Agency, said he and Tygart had to respect the rights of individual governments to make their own legal decisions. But he had received a copy of Tygart's letter to Holder, and he agreed with the message.
"What we try to do is persuade people to pursue those laws in a way that can be beneficial to clean sport,'' Howman said. "And it seems to me that if you enact legislation that provides for whistleblowing suits, then you should be supporting that.''
As he and Tygart both point out, the hardest evidence to obtain is already in hand. All the feds need is a hint of the ruthlessness brought to bear against smaller characters such as Bonds' personal trainer, Greg Anderson, who spent almost a year and a half in prison because he wouldn't testify against the home-run king.
Better yet, Holder's office could use a dose of the ruthlessness and tenacity Armstrong has demonstrated, not to mention his fondness for political maneuvering. The Wall Street Journal reported this week that he had paid a lobbying firm $50,000 to try to discredit Jeff Novitzky, the FDA agent who led the criminal investigation against the Postal team.
An Attorney General should be able to pull this off naturally, without testosterone patches or a Nike sponsorship to support his nerves.
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Editor's Note: On Friday afternoon, Lance Armstrong's attorneys said that the Justice Department had just decided to join the lawsuit, 2 1/2 years after it was originally filed.