A DISCUSSION OF LAW AND JOURNALISM

Tour de Fraud

Lance Armstrong

By Mike Brancheau

In recent months, the world has watched as an international hero and celebrated champion confessed to using performance-enhancing drugs in all seven of his Tour de France victories.

Lance Armstrong’s rise to global fame began after a well-documented battle with testicular cancer in 1996 and 1997. His story captivated the world, and his consecutive Tour de France victories from 1999–2005 made him one of the most remarkable figures of perseverance and success in sports history.

His victory over cancer led to the creation of the Livestrong Foundation in 1997. The Livestrong Foundation benefited greatly from Mr. Armstrong’s widespread popularity and has since raised over half a billion dollars for cancer patients and their families.

While Mr. Armstrong garnered unbridled support from millions of people around the world, he was dogged by many who doubted his extraordinary success. In 2004, David Walsh, the chief sports writer for U.K. Newspaper The Sunday Times, and Pierre Ballester published “L.A. Confidentiel,” a book containing numerous allegations about Mr. Armstrong’s use of performance-enhancing drugs.

In June 2004, the Times published an article that referenced the book and its doping allegations. In response, Mr. Armstrong sued the newspaper for libel in the United Kingdom. The parties reached a settlement in 2006. As part of the settlement, the Times released a public statement: “The Sunday Times has confirmed to Mr. Armstrong that it never intended to accuse him of being guilty of taking any performance enhancing drugs and sincerely apologized for any such impression.”

On December 23, 2012, Velo News reported that the Times is suing Mr. Armstrong to recover the money paid in the 2006 settlement, plus interest and legal fees. The article explains that after Mr. Armstrong was stripped of his seven Tour de France titles in October 2012, the Times decided to pursue the lawsuit against Mr. Armstrong to recover the money that it had paid for, it turns out, stating the truth.

LASIS will explore further…

The Times sent a letter to Mr. Armstrong’s lawyers in December 2012 claiming that the prior proceedings were “baseless and fraudulent” and that Mr. Armstrong’s representations concerning performance-enhancing drugs were “deliberately false.” In a later released public statement, the Times vowed that it would be “pursuing [the] case vigorously.”

In researching this article, I was frustrated to find that none of the reports on the lawsuit, including that of Velo News, linked to a copy of a court document. The reason for this is simple – in the U.K., complaints, or claims as they are called, are generally not available to the public.

Because the precise contents of the newspaper’s claim against Mr. Armstrong are unavailable, I was forced to theorize about legal theories of the case.

So here goes, a U.S. law student’s understanding of a U.K. case, without the benefit of seeing actual court documents.

The Times’ claim for damages is primarily based on the legal theory of fraud. Fraud in the U.K. is similar to the theory in the United States and can be defined as “intentional dishonesty or a planned or conceived deception that is committed with the goal of damaging another individual or personal gain.” In the U.K., fraud can be pursued in either criminal or civil proceedings. The Fraud Act of 2006 defines three separate classes of criminal fraud though it is unclear if this statute would apply given that the alleged fraud took place in 2006 — before the statute was enacted.

The Times will likely allege that Mr. Armstrong intentionally deceived the newspaper by representing that he had not used performance-enhancing drugs in order to obtain a settlement for his personal financial gain. After Mr. Armstrong’s recent confession to Oprah Winfrey (for the video of the interview, click here), the Times believes that its case to “recover[] the £1m plus [Mr. Armstrong] obtained from [the Times] by fraud is now even stronger.”

Some part of the Times’ lawsuit against Mr. Armstrong may also hinge on a unique aspect of U.K. libel law.

In the United States, the burden is on a plaintiff to prove the elements of libel in order to recover damages. For example, if Lance Armstrong had originally sued a news source in an American court, he would have had to show (1) that the statements were false; (2) that the statement was ‘published’ to a third party; (3) some form of negligence by of the news source; and (4) that he had suffered damages as a result of the statements. Obviously, under U.S. law, he would not have been able to honestly satisfy the elements of libel (See (1)).

But in the United Kingdom, the burden is on a defendant to prove that offending statements are true. A plaintiff need only claim that the statements he objects to were harmful to his reputation. He doesn’t even need to prove damages. This plaintiff-friendly system has led to the development of “libel tourism” and has been subject to wide criticism and efforts to reform.

In Mr. Armstrong’s 2004 lawsuit against the Times, he did not have to show that the Times’ statements were false. Instead, in suing the newspaper, Mr. Armstrong placed the burden on the Times to show that it had hard evidence in making the doping allegations. Because the evidence (the Anti-Doping Agency findings, the stripping of the Tour de Frances titles, Armstrong’s own confession) against Mr. Armstrong was unavailable at the time of the lawsuit and Mr. Armstrong’s record and reputation were still intact, the Times could not prove the veracity of its statements in a court of law. The logical option was to simply settle the case.

Today the Times has evidence to show that the statements in the article were actually true and that Mr. Armstrong manipulated the U.K. legal system for his personal gain.

And precedent exists in the U.K. for repayment of libel settlements made for true statements.

In October 2002, Jeffrey Archer repaid £1.5 million for legal fees and settlement recovery to the Daily Star newspaper. Mr. Archer had sued the Daily Star in 1987 for libel after the tabloid newspaper alleged that he had paid a prostitute for sex. Mr. Archer won the case and was awarded £500,000 damages. But in July 2001, Mr. Archer was convicted of perjury and perverting the course of justice after a jury found that Mr. Archer had, in fact, lied and cheated in his libel case in 1987. As a result, Mr. Archer was sentenced to four years in prison. Within hours of the conviction, the Daily Star served Mr. Archer with a writ of damages alleging fraud. Mr. Archer settled the case by repaying the damages he won in the 1987 libel case and all legal costs and interest accrued.

With Mr. Armstrong’s recent confession, and the precedent created by Mr. Archer’s libel case, it seems very likely that the Times will be able to recover it’s settlement from Mr. Armstrong.

UPDATE, April 26, 2013:  “London’s reputation as the libel capital of the world, ‘a town called sue’, is poised to end.”

 

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One Response

  1. Claudia Mullenniex says:

    Michael – Excellent Article !!!!

    Claudia-Mullenniex-Willemsberg

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