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Outside Magazine, December 2005
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1 2 3 4 5 6 7 8 

J'Accuse (cont.)

LANCE ARMSTRONG MAY have decided, at least for now, to shrug off the L'Équipe exposé, just as he's dismissed many journalistic skirmishes in the past. Yet over the past year and a half he has taken a much more aggressive stance against his accusers. While it may be true that a lawsuit "keeps a bad story alive forever," the former cyclist is nonetheless currently involved in four separate cases in France, England, and the U.S., three of which he initiated. Those three target, directly or indirectly, the reporting of a journalist who, more than any other, has earned Armstrong's wrath for questioning his

Walsh and Ballester's book has problems that would seem to attract litigation. Outside has learned that Walsh paid nearly $9,000 to Emma O'Reilly, a key source in the book's doping allegations against Armstrong.

record of clean racing: David Walsh, the 50-year-old Irish-born chief sportswriter for The Sunday Times of London and co-author, with French sportswriter Pierre Ballester, of a 372-page French-language book, L.A. Confidentiel: Les Secrets de Lance Armstrong, which was published by Éditions de La Martinière three weeks before the 2004 Tour de France. The book marshaled interviews and supposition to make a circumstantial case that Armstrong had taken performance-enhancing drugs, including EPO and steroids, and covered it up. As the author himself acknowledged, the book offered no conclusive proof to back up its charges.

Walsh and Armstrong had tangled before. In July 2002, Armstrong told the Dutch newspaper De Telegraaf, "Walsh is the worst journalist I know. There are journalists who are willing to lie, to threaten people, and to steal in order to catch me out. Ethics, standards, values, accuracy: these are of no interest to people like them." When L.A. Confidentiel was released, the Tour champ denounced it as the lowest sort of tabloid garbage.

On September 10, 2004, Armstrong filed a $2.4 million defamation suit in France against the Paris-based publisher, La Martinière, and against Walsh, Ballester, and two of their sources, former Motorola rider Stephen Swart and former Postal soigneur (team assistant) Emma O'Reilly. A separate suit—later consolidated, on December 9, 2004, into a single trial with the La Martinière case—named the French newsmagazine L'Express, which printed a 6,300-word excerpt on June 14, 2004, just prior to the book's publication. In the court filings with Le Tribunal de Grande Instance in Paris, Armstrong identified 18 specific examples of defamation in the book L.A. Confidentiel. A hearing on December 1 will determine a court date for the trial, which could begin as early as spring 2006.

On June 15, 2004, three months before the French charges were filed, Armstrong had brought a libel suit in London's civil court, the High Court of Justice, Queen's Bench Division, against Walsh's employer over an article that The Sunday Times had printed about the book that week. Despite considerable precautions by the paper—the piece was written by deputy sports editor Alan English, not by Walsh, and it contained only a few brief quotations from the book itself—Armstrong named The Sunday Times, English, and Walsh as defendants in a suit seeking damages for libel and an injunction to restrain the defendants from restating the alleged libels. Originally scheduled for a November 6, 2005, trial date, the case has since been postponed until early spring 2006.

The original complaint in the London court and Armstrong's solicitors' subsequent February 18, 2005, reply to the defense statements give a strong indication of the case that Armstrong's camp intends to present against Walsh. His solicitors completely deny entire scenes and parts of others recounted in L.A. Confidentiel and alluded to in The Sunday Times story. In one passage, Walsh and Ballester write that Armstrong, Stephen Swart, and Frankie Andreu (both teammates of Armstrong's when he rode for Motorola, before developing testicular cancer in 1996) allegedly discussed starting a doping program to help the team; in another, they report that Irish-born O'Reilly, 34, who acted as Armstrong's chief masseuse from 1998 to 2000, says she delivered an unidentified bottle of pills to him in May 1999; and in a third passage, they report that O'Reilly told Walsh that the team doctor had backdated a prescription for saddle-sore cream to explain how Armstrong tested positive for traces of a steroid on the 1999 Tour's second day.

On September 14, 2004, four days after filing his defamation suit in France, Armstrong and Tailwind Sports, which partially owned the U.S. Postal Service team and now partially owns the Discovery Channel team, filed a lawsuit in Dallas County District Court against SCA Promotions, a Dallas-based company that provides risk coverage for promotional contests. The suit was brought to compel arbitration over SCA's failure to pay Armstrong a $5 million bonus for winning a record sixth Tour de France in 2004. According to John Bandy, SCA's house counsel, the company has so far declined to pay because president Bob Hamman said he wanted to investigate the claims made in L.A. Confidentiel.

Armstrong's attorneys countered that Lance's record of negative drug tests during the 2004 Tour was all the verification SCA needed to see. That case is to be decided in closed arbitration, conducted by three independent arbitrators picked by SCA and Armstrong. Hearings are scheduled to begin on December 12, with a ruling expected in late January 2006.

In the fourth legal dispute that includes doping allegations, Armstrong is the defendant in a civil case scheduled for trial as early as December 5 in Travis County District Court in Austin. The original suit was filed on January 5, 2005, by Mike Anderson—Armstrong's personal assistant and mechanic from December 2002 until Armstrong fired him on November 16, 2004. Anderson alleges that Armstrong defamed him when Armstrong's agent, Bill Stapleton, told the Austin American-Statesman on December 13, 2004, that "we were threatened with a half-million-dollar lawsuit," and he states in his complaint that this accusation came after he refused to sign a nondisclosure agreement when he was fired. (Anderson's defamation claim in reaction to Stapleton's comments has since been dismissed.) Then, in a subsequent court filing, on March 31, 2005, Anderson added a controversial new claim: that he had found a box of what he believed were steroids in Armstrong's Girona, Spain, apartment in early 2004, and that this incident had led to his dismissal. On August 4, 2005, Anderson introduced yet another charge awaiting a hearing: that Armstrong didn't compensate him justly for the scope of his job duties.

That's a lot of legal noise coming up in the next six months—but which of these cases could answer the crucial question of whether Armstrong or Walsh played fair or not? And what are the stakes for the parties involved?

For Armstrong, the libel trial in England probably offers his best shot at vindication. Thanks to the nuances of English libel law, he stands a better chance of winning there than he does in France, where libel law more closely resembles that of the U.S.

"Libel law in the United Kingdom is far more favorable to the plaintiff than in the United States," says Michael Overing, a media lawyer who teaches Internet and communication law as an adjunct professor at the University of Southern California. "The right to free speech is more limited, and the burden of proof rests on the defendant."

On July 29, The Sunday Times won a pre-trial appeal from the Court of Appeal to restore the use of a "qualified privilege" defense, which had initially been disallowed. Qualified privilege means that the paper will argue that it acted responsibly in publishing the story—that it was only asking reasonable questions that were in the public interest. In more recent activity, according to Gillian Phillips, a solicitor for The Sunday Times, the paper is weighing the benefits of asking the court to allow the new allegations published in the L'Équipe story to be introduced as evidence.

If the case does go to trial next year, the financial stakes will be high. Although English law generally limits damages in libel suits to $350,000, the loser pays all of the winner's legal costs. According to Phillips, the legal expenses "could exceed £1 million [$1.75 million] each."




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