Commentary

The case against/for Lance Armstrong

Today's docket: Armstrong's legal action, Kovalchuk's contract and D-Wade's divorce

Originally Published: July 29, 2010
By Lester Munson | ESPN.com

Perjury, circumvention, litigation privilege, a nasty divorce proceeding and three of the biggest names in sports. Sometimes, the law isn't pretty … unless it's viewed from Courtside Seat's perspective. Then even contract law that applies to the National Hockey League can be comely. (And how can you resist a tease like that?!) Read on. Today, we start with …

Lance's lot

In the rapidly developing federal investigation of Lance Armstrong and doping in professional cycling, some things are certain and many things are uncertain. Here what we know, what we don't know, and what we might expect.

What we know:

[+] EnlargeArmstrong
AP Photo/Christophe EnaLance Armstrong is up against more than Jeff Novitzky. WADA and the Belgian Cycling Union are also investigating.

• Prompted by recent admissions from Floyd Landis about systematic use of performance-enhancing drugs and blood transfusions, federal authorities are interviewing other riders and former Armstrong teammates, including George Hincapie and Tyler Hamilton.

• International authorities, including the World Anti-Doping Agency and the Belgian Cycling Union, are also gathering evidence.

• Leading the investigation is the brilliant and relentless Jeff Novitzky of the U.S. Food and Drug Administration. Novitzky is the former IRS agent who led the BALCO investigation.

• Novitzky and his team are looking hard at Armstrong's roles on the U.S. Postal Service team that he led for several years and a company called Tailwind. They are combing through financial litigation records that include sworn testimony from Armstrong and his former wife, Kristin.

• Although Armstrong remains steadfast in his denials of any doping at any time during his seven triumphs in the Tour de France, he has hired Brian D. Daly, a criminal defense lawyer in Los Angeles, where federal authorities have impaneled a grand jury for the probe.

• The investigation does not appear to be aimed at those who used the blood transfusions and drugs, but instead at those who financed and facilitated the doping.

• Greg Lemond, the three-time winner of the Tour and longtime Armstrong accuser, is helping Novitzky and his team of investigators with his expertise and his network of contacts in the insular world of cycling.

What we don't know:

[+] EnlargeFloyd Landis
AP Photo/NZPA, Dianne Manson One of the questions still unanswered: When Floyd Landis speaks, do people believe him?

• The level of cooperation with federal authorities from Armstrong's former teammates. Landis is already talking, but Hincapie, Hamilton and others face decisions on what they will say to investigators.

• The veracity of Landis. His charges are dramatic and replete with persuasive detail; but will the authorities, the grand jury, or even a future trial jury believe what he says after his years of denial of any doping?

• The testimony of former Postal Service team director Johan Bruyneel. Will he support Landis or Armstrong?

• Armstrong's precise roles in the management of the Postal Service team and Tailwind. Was he in charge? Was he the decision-maker responsible for all that happened?

• The end of the money trail. Novitzky and his team are tracking the Postal Service finances and other money that went to Armstrong and his team. Was it used for doping? If it was, were sponsors defrauded when the team did not race clean?

• The efficacy of drug testing. If Landis is truthful, how did the doping riders escape detection?

And here's what we can expect:

• A parade of witnesses before the grand jury in Los Angeles. Novitzky will use his subpoena powers to force riders and others to testify under oath about Armstrong and doping.

[+] EnlargeJohan Bruyneel
AP Photo/Jake SchoellkopfJohan Bruyneel holds one of the keys. Will his testimony support Armstrong or Landis?

• Negotiations for plea bargains and immunity. Confronted with the possibility of perjury or obstruction of justice charges, witnesses will ask federal prosecutors for benefits in return for their testimony.

• A subpoena for Armstrong to testify before the grand jury. It will come as the investigation is nearing its conclusion. Armstrong and his legal team will have decisions to make. Will he take the Fifth Amendment and refuse to testify? Will he testify and risk a perjury charge?

• A battle royale. Armstrong is, of course, the fiercest of competitors. Whether or not he was clean, seven consecutive victories in the Tour is clear and convincing evidence that he is one the greatest competitors in the history of sports. But Novitzky, too, is resourceful and relentless. He went through the garbage and medical waste at BALCO for more than a year to gather the evidence he needed to pursue the lab and its customers.

Devils' bargain

The historic Ilya Kovalchuk contract provides that the All-Star left wing can be playing hockey for the New Jersey Devils in the 2026-27 season -- 17 years from now! -- at a salary of $650,000.

Is it, as many suggest, a brilliant move by the Devils' estimable GM, Lou Lamoriello, to sign the best NHL free agent in recent history and take advantage of the complicated provisions of the league's salary cap?

[+] EnlargeKovalchuk
Jim McIsaac/Getty ImagesHow likely is it that Ilya Kovalchuk will still be skating 17 years from now?

Or is it, as NHL commissioner Gary Bettman suggests, a shameless attempt to create bogus room under a hard-earned salary cap that the league achieved only after a season-long lockout?

(A must-read here for background: Scott Burnside's story for ESPN.com.)

An arbitrator will decide, and will decide in a hurry. Once the league and the players' union have agreed on the arbitrator, a decision must be made in 48 hours.

Although the NHL's collective bargaining agreement (CBA) devotes 6½ single-spaced pages to rules on "circumvention" of the salary cap, the decision may be neither as difficult nor as obvious as it seems.

There is no question that the CBA's provisions are complex. All together, they consume more than 450 pages. The language is dense, tedious and wordy. It was written in a hurry at the end of the most difficult bargaining process in the history of sports. It is, either deliberately or accidentally, obscure. It would never be used in a law school as a shining example of brilliant drafting.

But there is an occasional provision that is bright and clear in its terms. In a circumvention section known as Article 26.3(i), for example, the CBA provides that "any act, conduct or activity that is permitted by this agreement shall not be a circumvention."

[+] EnlargeLou Lamoriello
AP Photo/Bill KostrounThe Devils' Lou Lamoriello might have found a loophole in the NHL's salary cap, but will he be allowed to use it?

The provision is strikingly similar to a circumvention clause in the National Football League's CBA that reads, "any conduct permitted by this agreement shall not be considered a violation of this provision."

The biggest difference between the two is that the NHL's clause is in Article 26 and the NFL's clause is in Article XXV. (The NFL, as we all know, loves Roman numerals.)

It is no surprise to anyone who has observed Lamoriello that the contract cleverly appears to qualify under the CBA's rules on contractual terms. But Bettman and the league suggest that the Kovalchuk contract's salaries, including the $650,000 per year for the last five years of the 17-year contract, are not "likely to be earned."

And, luckily for the soon-to-be-named arbitrator, there is significant legal precedent on the issue that the NHL raised when Bettman rejected the Devils-Kovalchuk agreement.

In an important circumvention case decided under its virtually identical CBA terms, the NFL challenged a multiyear Kansas City Chiefs contract with quarterback Elvis Grbac as an agreement that was designed to create bogus salary-cap room.

In an action similar to the NHL's rejection of the Kovalchuk contract, the NFL rejected the Grbac contract because Grbac's voidable fifth year was "likely to be earned" but not certain to be earned. Because the fifth year was not a certainty, the NFL viewed it as an attempt to dodge salary-cap restrictions.

The NHL is taking the same position on the final five years of Kovalchuk's contract, claiming that they may be earned but they are not certain to be earned.

Elvis Grbac
Brian Bahr /Allsport Remember Elvis Grbac? You can bet the NHLPA does.

In his decision on the Grbac-Chiefs contract, U.S. District Judge David Doty, who has earned an enviable reputation for fairness and equity in his decisions on NFL labor issues for the past two decades, ruled for Grbac and the Chiefs, and against the league.

It was not a question of what was "likely," Doty concluded. The only question was whether the provisions of the Grbac contract were permitted under the terms of the NFL's CBA. Since the Grbac terms were well within what is permitted in an individual player contract, he ruled, the contract was valid.

Doty relied on the circumvention clause that states that any "conduct permitted by this agreement shall not be considered a violation."

The NHL's arbitrator will face remarkably similar facts, a nearly identical circumvention clause, and a legal precedent in Doty's decision on the Grbac contract.

It says here that Lamoriello and the Devils have outsmarted the drafters of the NHL's CBA, the commissioner, and all of us who thought the 17-year deal seemed to be pushing things too far. Look for Lamoriello and the Devils (and Kovalchuk) to win this one. And they should send a note of thanks to their brethren in the NFLPA.

He said, she said; she sued, he sued

It was never going to be one of those supposedly amicable divorces anyway, but the dispute between Dwyane Wade and his former wife, Siohvaughn, is redefining the adjectives "bitter" and "nasty."

They are divorced, but the litigation is far from over. The Palestinians and the Israelis may sign a peace agreement before the Wades do. They're fighting over money, property and the children (Zaire, 8, and Zion, 3). They're even fighting about the divorce litigation itself.

On Jan. 12, 2009, Siohvaughn filed a petition in court in Chicago stating that Dwyane was guilty of adultery, had contracted a sexually transmitted disease (STD), and had infected Siohvaughn.

In addition to those blockbuster allegations, Siohvaughn used the court filing to make sure everyone knew that the "D.T. Wade" listed in the court papers was THE Dwyane T. Wade, the NBA superstar.

[+] EnlargeDwyane and Siohvaughn Wade
Victor Baldizon/NBAE/Getty ImagesHappier times for 2006 NBA Finals MVP Dwyane Wade and his then-wife Siohvaughn.

But the court filing itself was not enough for Siohvaughn. In response to media inquiries, one of her attorneys, Dorene Marcus, is reported to have said, "Mrs. Wade is prepared to prove everything she alleges. And, medical records don't lie."

But then, only 24 days after Siohvaughn filed the petition that included the STD allegations, she and her legal team asked the court for permission to "voluntarily withdraw" the petition and its assertions.

Angered that Siohvaughn would make the STD claim and withdraw it before it could be tested in court, Dwyane quickly hired Chicago lawyer Joseph Power, one of America's premier trial lawyers, to sue Siohvaughn for defamation.

There's no way to know how it will all shake out, but Dwyane might have hired the right guy. Power has succeeded brilliantly in previous sports-related cases. When former Bears wide receiver Ron Morris was the victim of a botched knee surgery and a clumsy cover-up by the surgeon, Power sued the physician and obtained a jury verdict of $5.8 million for the career-ending malpractice.

When a Bears physician failed to provide proper care to former defensive back Tony Blaylock, Power won a jury verdict of $4.6 million for another career-ending injury.

When Bob Thomas, a former Bears kicker who now serves as a justice on the Illinois Supreme Court, was the target of a vicious column in a weekly newspaper, Power took over. Despite the legal protections of the First Amendment, he persuaded a jury in Geneva, Ill., to award Thomas damages of $7 million for a column that many politicians would have shrugged off.

Power is also representing ESPN's Erin Andrews in her action against Michael David Barrett, the insurance executive who stalked her and is now imprisoned in a federal penitentiary in Edgefield, S.C., and the three hotels that permitted Barrett to stay in rooms next to Andrews, which enabled him to make videos of her in her room.

But, despite Power's record of success, Dwyane and his attorney have a tough fight ahead of them in their attempt to prove that Siohvaughn is guilty of defamation. Lawyers and litigant can say anything they want to say in the course of litigation. Even if the statement is false and malicious, the statement is protected by something known as the "litigation privilege."

To succeed against Siohvaughn and her attorneys, Power must prove that Siohvaughn and the lawyers deliberately disseminated the material to the media.

In their lawsuit, Dwyane Wade and Power assert that Siohvaughn and her attorneys "sent copies" of the STD court papers directly from Chicago to the Miami Herald. If they prove that Wade's ex-wife or one of her attorneys actually sent the court papers to the Herald -- an indication that malice might have been at play -- they could be on their way to another multi-million-dollar settlement.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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