Enough time has passed so that we have a generation of cyclists who know nothing about Lance Armstrong and the U.S. Postal Service. Enough time has passed that even the bitter among us have turned their ire elsewhere. Betsy seems occupied with something more meaningful than Lance’s ill treatment of her, and although Greg is still searching for Lance’s lost watts, he finally seems at peace having reclaimed his role of Only American to Win the Tour de France Without an Asterisk.
And of course it’s at the moment that people stop watching that the saga begins its climax.
With six years of procedural wrangling over, endless motions denied,and discovery dogfights put to rest, the Jarndyce v. Jarndyce juggernaut of Landis v. Tailwind Sports et al. is finally going to trial. And the stakes aren’t simply high, they are, for Armstrong, beyond catastrophic. With a maximum judgment in the neighborhood of $100 million, and no hope of escaping it in bankruptcy due to the underlying allegations of fraud, it’s all or nothing for Team Dopestrong.
Funny thing is, it always was.
What’s not funny is that time has given Lance’s case a good dose of perspective. But first, the legal monster that’s about to eat his lunch:
Armstrong’s defense was always simple. The USPS got way more than the $32 million it paid for. How? Simple, Armstrong said. Look at the media coverage for those five USPS Tour de France wins, assign a dollar value to it, and you’ll easily eclipse the $32 million that USPS paid Tailwind Sports.
When the lawsuit began, this looked like a pretty strong defense, and you see it all the time in litigation. Sure I was bad, but you know what? You weren’t hurt by my bad actions, so I don’t owe you squat. The numbers were squarely in Armstrong’s corner, too. His media coverage over the 5-year period that he was sponsored by USPS was astounding.
He lied to USPS, but so what? THEY MADE MILLIONS IN FREE ADVERTISING.
Unfortunately, what’s good for the goose is good for the gander, because over the course of the litigation the government’s lawyers applied the same metrics to the bad publicity generated by Armstrong’s sporting fraud. Initially perhaps the bad coverage was outweighed by his five years of smashing the Tour (who can forget the Austin billboard that read, “Who’s your daddy, France?”).
But as the years dragged on, the government’s lawyers kept toting up all the bad press and terrible media coverage that USPS received, and continued to receive, as a result of Armstrong’s fraud. The number of “negative media impressions” in the first four years after Floyd Landis sued Armstrong under the False Claims Act sits at a staggering 1.5 billion. Even at fifty cents an impression, that number overwhelms any positive media generated in the glory days.
What’s worse, Armstrong can’t now be heard to criticize media coverage as a measure of damages because his whole case rests on it. Now a jury is going to get to decide, in essence, whether USPS got more good media coverage from Lance or more bad media coverage. The answer is so obvious that Armstrong’s lawyers have done everything in their power to prevent the case from going to trial … and failed.
You can read the court’s memorandum opinion on both sides’ motions for summary judgment here. The language is blunt, and doubtlessly terrifying, however legalistic it may sound at first pass:
The Court generally adopts Armstrong’s proposed “benefit-of-the-bargain” approach to calculating damages in FCA cases, like this one, where the market value of goods or services supplied under a government contract are difficult to determine. It also agrees that the record evidence—including internal Postal Service correspondence and contemporaneous thirdparty valuation studies—supports a finding that USPS received substantial benefits as a direct result of the sponsorship. Ultimately, however, the Court concludes that the monetary amount of the benefits USPS received is not sufficiently quantifiable to keep any reasonable juror from finding that the agency suffered a net loss on the sponsorship, especially if one considers the adverse effect on the Postal Service’s revenues and brand value that may have resulted from the negative publicity surrounding the subsequent investigations of Armstrong’s doping and his widely publicized confession. Determination of damages must therefore be left to a jury.
But all is not lost. The nebulous nature of valuing media coverage could mean that, after subtracting Armstrong’s unquestioned good publicity, a jury concludes that the damages aren’t all that substantial. What if Armstrong brought USPS $100 million in the good years, and cost them $101 million in the bad? The government gets a million times three, which is a lot less than $32 million times four. And of course a jury might conclude that the whole thing was a wash. After all, there are still plenty of people out there who think that whatever Lance did on the bike, he helped a lot of people by curing their cancer.
So on the battlefield, things are coming to a head, and a jury may find Lance and his sporting fraud and lengths to which he went to mistreat others and lie about his cheating repugnant enough to hang the entire bill around his neck. On the other hand Lance has a pretty formidable legal team, and he might ultimately prevail, or at least not get bankrupted. This would be a big bummer for ex-doper Floyd Landis who filed the suit, and who really isn’t an ex-doper anymore but is rather a doping entrepreneur peddling legal pot in Colorado. We’d call that ironic but it’s mostly sad, a doping cheat claiming he was harmed by other doping cheats and asking for compensation so that he can peddle dope instead of pedaling doped.
But back to perspective …
Here we are, almost eighteen years from Armstrong’s first Tour victory, spending truckloads of government money to prove that a bunch of bad media coverage outweighed a bunch of good media coverage. If the government wins, some dude will have to pay a few bucks, or maybe even go bankrupt. If the government wins big, a drug cheat who was stripped of his Tour win will be set for life by plundering the assets of another drug cheat who was also stripped of his Tour wins. That’s a morality play we can all get behind, right?
Yet during the time that this Battle of the Ex-Dopers has raged, our national landscape has radically changed. A scorched-earth, neo-Nazi thief sits in the Orange House, commemorating the Holocaust without mentioning the word “Jew,” as Imperial storm troopers rip poor Mexicans out of their homes and send them back “home” … to a country they’ve never known.
The Constitution itself hangs in the balance while the executive branch attacks the judiciary and while a prostrate and prostituted Congress rubber stamps a plethora of laws designed to turn us into the greatest kleptocracy the world has ever known, while the Great Orange Leader gives and sells secrets to the Russians and his minions openly promote America First in its purest sense.
It’s this backdrop that should make any right-thinking person look at the petty pothead ex-doper lawsuit filed against a petty ex-doping jerk and say, “Enough. Enough. Enough.”
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