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Judge partly allows Lance Armstrong doping defense at trial

Lance Armstrong (Wayne England/Flickr)

The federal government is putting Lance Armstrong on trial next year for civil fraud and had hoped to prevent him from making his famous argument in court — the so-called “everyone was doing it” defense to explain his use of banned drugs to gain an edge in cycling.

The government told a federal judge earlier this year that such an argument would mislead the jury and that the former cyclist should not be allowed to “put the entire sport of cycling on trial.”

But on Tuesday, U.S. District Judge Christopher Cooper agreed with Armstrong in part, ruling that some evidence about widespread doping in cycling was relevant to his defense in the government’s $100 million case against him.

The ruling was part of Cooper’s mixed bag of decisions for both sides as the case heads to trial in May, nearly five years after the government joined the lawsuit in 2013. The government is suing Armstrong on behalf of the U.S. Postal Service after the Postal Service paid $32.3 million to sponsor Armstrong’s cycling team from 2000 to 2004. The suit says Armstrong’s cycling team violated its contract by using performance-enhancing drugs and blood transfusions to cheat in races and then concealed it to keep getting paid.

Armstrong’s attorney, Elliot Peters, said in a statement to USA TODAY Sports that Tuesday was a “good day for the defense.”

He noted that Judge Cooper also reaffirmed that the Postal Service cannot claim or present expert witnesses to testify that the Postal Service got zero market value from its sponsorship of Armstrong’s cycling team — a key point in determining how much Armstrong might owe if he’s found liable.

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It was one of several rulings Cooper made Tuesday to set limits on what evidence would be permitted or not at trial.  The case is not about whether Armstrong doped, but whether he caused false claims to be submitted to the government and how much the government was damaged by his doping, if at all. If he loses at trial, Armstrong could be on the hook for triple damages under the False Claims Act — in theory nearly $100 million.

The government previously had argued that if Armstrong was permitted to argue “everyone was doing it,” it would mislead the jury into believing that Armstrong should be “given a pass” for his violations just because some of his competitors also were doing what he was doing. It sought to prohibit Armstrong from “introducing evidence, questioning any witness, or presenting any arguments to the jury regarding the use of PEDs by professional cyclists other than those on the cycling team sponsored by United States Postal Service from 1995 to 2004.”

Cooper ruled Tuesday that he would allow limited testimony on widespread doping at trial, a possible way for Armstrong to show that the doping issue didn’t really concern the Postal Service back then and wasn’t material to its decision to fund the sponsorship.

“The endemic nature of PED use in cycling creates a possible inference that the Government was aware of the widespread use of PEDs,” Cooper wrote in his ruling. “That, combined with a failure by the Government to take steps to investigate any potential doping by Armstrong before entering into a sponsorship agreement, would similarly raise a possible inference that the USPS did not particularly care about any PED use by Armstrong — again, yielding an inference that PED use was not material to the Government’s funding decisions. Given these permissible chains of possible inferences, the widespread nature of PED use is relevant to materiality.”

But Cooper also ruled that such evidence is not relevant to whether Armstrong caused his team to dope and submit false claims to the government.

“That everybody else was using PEDs says nothing about Armstrong’s role in causing false claims to be presented to the Government,” Cooper wrote. “As such, the evidence is not admissible as to causation.”

In his defense, Armstrong’s attorneys have argued the government should have known about widespread doping in cycling back then but didn’t care enough to pursue a case until it was essentially too late under the statute of limitations.

The government has countered that argument by saying it didn’t know about it because Armstrong concealed the violations by lying about them until his confession in January 2013.

In his ruling, Cooper noted evidence of widespread drug use is relevant to Armstrong’s statute-of-limitations defense, too, and is permitting some testimony about it from expert witness John Gleaves.

“The widespread use of PEDs by non-USPS riders around the time of the Government’s sponsorship agreement raises a possible inference that the Government suspected PED use by its own riders and further helps illuminate whether the Government’s actions with respect to investigating any suspected PED use were reasonable,” Cooper wrote.

Peters, Armstrong’s attorney, has argued for years that the Postal Service was not damaged by the doping but instead got more than its money’s worth from the sponsorship through sales and publicity generated by Armstrong promoting the Postal Service at the height of his fame. The court previously ruled the government couldn’t argue that the value of the sponsorship is now zero, after Armstrong’s confession in 2013. Cooper reaffirmed that Tuesday.

But the judge also turned down Armstrong’s request to exclude evidence involving his relationship with other sponsors, such as Nike and Trek, who cut ties with him in 2012 after doping evidence was released against him by the U.S. Anti-Doping Agency. That other sponsorship evidence could boost the government’s case in a couple of different ways. It could show that that being associated with Armstrong damages a company’s brand. And it could show that the Postal Service wasn’t the only sponsor fooled for so long by Armstrong’s false denials, even if the doping was widespread in cycling.

“The actions of similarly positioned companies speaks to what was reasonable for the government to do or know,” Cooper wrote.

Peters still said he was pleased with the rulings.

“The USPS is prohibited from arguing that the sponsorship had zero value and must instead try and prove harm from the 2013 revelations in excess of the many benefits USPS derived from the sponsorship over prior years,” Peters said in a statement. “We get to prove up the many benefits –— such as increased sales and earned media value, based on the USPS’s numerous contemporaneous statements.”

Peters added that “we get to prove the history of doping in cycling and the USPS knowledge of same, which strongly bolster our statute of limitations defense and our materiality defense under the False Claims Act.  Both of those are complete defenses for Lance.”

The judge still denied Armstrong’s motions to prevent some evidence and witnesses from testifying at trial. He allowed government expert witnesses to testify about how the Postal Service was damaged, such as by showing how the negative publicity surrounding Armstrong’s doping disclosure and concealment outweighed “any positive benefits received prior.”

The case was originally filed in 2010 by Floyd Landis, a confessed doper and former cycling teammate of Armstrong’s. The government joined Landis’ case in 2013, shortly after Armstrong confessed. Landis is expected to testify and stands to get up to 25% of damages if the government wins.

Landis’s attorney, Paul Scott, called Tuesday’s rulings a “mix of rulings each way.”

“But the main thing is we now have a clear path toward finally getting this case to trial,” Scott said.


© 2017 USA Today

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