By Diane M. Grassi
Shortly after 5:00 PM on the Friday prior to Super Bowl XLVI, U.S. Attorney, Andre Brigotte, Jr., of the United States District Court for the Central District of California, quietly issued a three sentence press release.
And the federal investigation against Lance Armstrong had been terminated without an indictment being filed against him.
Federal government agencies, its courts and the United States Congress are wont to release information about controversial legislation or court decisions, which could prove unpopular, before they high-tail it out of town on a Friday evening or during holiday times throughout the year. And Super Bowl weekend certainly qualifies as one of those times, when the media especially has a one-track collective mind, fixated upon Super Bowl Sunday.
For nearly a two- year period the U.S. Department of Justice (DOJ) invested untold millions of dollars, at taxpayer expense, for various investigations pertinent to Lance Armstrong. Such high-profile federal agencies such as the U.S. Food and Drug Administration (FDA) Office of Criminal Investigations (OCI), the Federal Bureau of Investigation (FBI), and the U.S. Postal Service (USPS) of the Inspector General, were utilized.
The lead federal agent on the case was Jeff Novitzsky – of the BALCO case fame as well as the lead investigator in the indictment against Roger Clemens. Novitzsky is now looking to catch on with another high-profile case with which to consume his time.
The way in which the DOJ bailed, however, is nearly as suspicious as the story behind one Lance Armstrong; once so celebrated for his seven Tour de France winning titles, yet in some camps reviled for possibly cheating along the road to those seven crowns.
But the sudden halt of this notorious case, might prove unpopular to not only the cycling world, but to its regulatory bodies, including the World Anti-Doping Agency (WADA), to the U.S. Anti-Doping Agency (USADA), and not the least of which, to the public-at-large.
And not significantly enough reported, is that the Lance Armstrong case is both similar and dissimilar, at the same time, to the federal cases against Barry Bonds and Roger Clemens.
Bonds was found guilty, in 2011, of one count of obstruction of justice, during his Grand Jury testimony, during the discovery process of BALCO in 2003. And Roger Clemens will have a new federal trial in April 2012, after a July 2011 federal mistrial.
All three cases involve world renowned elite athletes who possess over-inflated egos, and enjoy enormous wealth allowing them to lawyer-up with some of the most accomplished and powerful defense attorneys money can buy.
And of their supposed misdeeds, all three athletes’ cases are relative to alleged consumption or administration of performance enhancing substances or of illegally consuming pharmaceuticals.
At the very least, using banned substances is in violation of their respective sport’s regulatory body or league’s rules, let alone in violation of state or federal laws.
Barry Bonds was tried for lying before a federal Grand Jury and for giving false testimony as to whether he knowingly use illicit and/or illegal performance enhancing substances or drugs, such as human growth hormone (HGH) and/or anabolic steroids.
Roger Clemens was indicted for allegedly lying before the U.S. House of Representatives Committee on Oversight and Government Reform, during a hearing in January 2008 on illegal steroid use in Major League Baseball (MLB).
It was the second of two hearings by the same Congressional committee, on steroids in MLB; the initial one held in March 2005.
It remains curious, however, how Rafael Palmeiro allegedly lied in his finger-wagging testimony before the very same Congressional committee in 2005, that he never took steroids, and never faced any legal consequences or an investigation like Bonds or Clemens did. It was later learned in May 2005 that Palmeiro had most likely given false testimony when his MLB drug test a few weeks later revealed he tested positive for anabolic steroids.
Clemens was not required to testify, yet volunteered. And four years later, after having been indicted for perjury after giving false testimony to Congress as to whether he used performance enhancing substances or drugs, his retrial proceeds.
Where the Armstrong case differs is in its scope. It involves the sponsorship of his pro cycling team named Tailwind Sports, from 2001-2004, in his quest to win his eventual total of seven Tour de France trophies.
Armstrong’s case did not involve perjury but rather allegations of fraud, racketeering, and conspiracy, among other issues. Were he tried, it would have been under the Racketeer Influenced and Corrupt Organizations Act, known as RICO, and famously known for prosecuting members of organized crime.
Yet, it was the specific sponsorship by the USPS which was investigated, prompted the sworn testimony from Armstrong’s former teammates, Floyd Landis and Tyler Hamilton, among others. They both admitted to using EPO and to doping themselves and pointed the finger at Armstrong for supplying the illicit and illegal substances to them.
It has been difficult for news organizations to shed light on the investigation and its various components, as unfortunately firewalls were put up by the DOJ, the USPS as well as other principals involved. That led many to speculate about the veracity of Armstrong’s innocence.
The USPS in fact spent $31.9 million on Armstrong’s cycling team for its expenses over those four years, providing for 68% of the team’s operating budget.
And over the past eight-twelve years the USPS was successful in withholding any detail on the financing of the team.
But recently, a Freedom of Information Act (FOIA) request was filed by ESPN and surprisingly granted by the USPS, albeit with redacted information, which led to confirmation of the $31.9 million.
However, how much was spent by the DOJ et al. on the pre-trial discovery process remains to be seen.
And during it sponsorship of Armstrong’s team, the USPS even hired its own public relations firm to avoid any appearance of impropriety, or being associated with rumored doping on the USPS cycling team, which later proved true. It even installed a morals perpitude and drug clause into its agreement the agreement with Armstrong’s Tailwind Sports. Obviously, it remained unenforced, as the team was paid in full.
The USPS also insists that it was entitled to non-disclosure of its expenses for Armstrong, as it considers itself an “independent” federal agency.
Truth be told, the USPS is a semi-independent federal agency, run by a Board of Governors of nine, appointed by the president of the U.S. Its operating expenses are largely dependent upon sale of its “postal products,” which became prevalent in the 1980’s.
But as provided by law, the USPS is a not-for-profit agency; although we constantly hear that it is not drawing enough of a profit to provide services. Well, it is only entitled to break even and not reap a profit, according to law.
And the USPS still continues to enjoy certain federal subsides, and certain legal protections, and comes under the purview of the U.S. Congress as well as the Executive Branch, commensurate with federal laws, regulations and pension law.
Therefore, for Armstrong to be involved with either of illegal or illicit activities through sponsorship of a federal entity presents concern worthy of a federal investigation. And to drop such without a conclusion or explanation is nearly as deplorable.
Furthermore, Lance Armstrong’s cancer research foundation, Livestrong, which he founded as a cancer survivor, also remained in jeopardy, had he been indicted.
In a climate starving for feel-good stories and a foundation reliant upon potential donors, Livestrong could have been irretrievably impacted.
Yet, in the past year or so, discrepancies have arisen concerning appropriation of funding for Livestrong. It prides itself that 80% of all donations are invested in scientific cancer research. But some, such as journalist, Bill Gifford, an Outside Magazine contributor, have done the research that indicates that Livestrong’s books indicate otherwise.
And the question is: for the rich, powerful, and politically connected, who are an asset to corporations, the philanthropic community, legislators or agency appointees, will they remain unscathed? The answer is of course “yes,” not unlike the “too big to fail” crowd on Wall Street, most of whom remain free.
Therefore, this is not so much a case about playing and upholding the fairness of competitive sports, as it is about playing a different kind of game; one of deception with a free pass posing as the trophy.
But it seems that everyone here wins except, of course, for sports fans, taxpayers and those who still play by the rules. Yet there are those who still choose to believe that goodness and moral character will prevail and make up for the cheating, corrupt governance and corporate malfeasance. One can only hope.
Copyright ©2012 Diane M. Grassi
All rights reserved.