Lance Armstrong is reportedly planning to claim that the US government should have known that doping was being practised on the former US Postal Service cycling team as he prepares his defence to the whistleblower action originally brought by former team mate Floyd Landis, which the government last week confirmed it was joining.
The disgraced cyclist, last year banned for life and stripped of results including the seven Tour de France titles he won between 1999 and 2005, also aims to argue that with US Postal’s sponsporship ending in 2004, the case is subject to a six-year statute of limitations, reports USA Today.
Armstrong aggressively denied allegations of doping throughout his career, finally confessing to having used performance enhancing drugs during the period he dominated the Tour de France in a televised interview with Oprah Winfrey last month.
According to a source connected to Armstrong who insisted on remaining anonymous, Armstrong’s lawyers will say that the government was aware of doping on the US Postal team, or should have been aware of it, and took no steps to prevent it.
"We will say there was enough information [regarding doping on the team] to put you on notice, and you should have filed a false claim before," the source said.
The stakes are high. Up until 2004, US Postal paid some $31 million dollars to sponsor the team, and under the False Claims Act the action has been brought under, up to three times that amount could have to be paid back.
As the person who initiated the action, Landis stands to gain 25 per cent or more of any sum recovered.
When the government confirmed last week that it was joining the action, Stuart Delery, principal deputy assistant attorney general for the civil division of the Department of Justice, said that Armstrong and others had "knowingly" broken their "contractual promise to play fair and abide by the rules" by doping.
He added: "The Postal Service contract with Tailwind required the team to enter cycling races, wear the Postal Service logo, and follow the rules banning performance enhancing substances – rules that Lance Armstrong has now admitted he violated."
Tony Anikeeff, a lawyer with no connection to the case but who handles this type of case told the newspaper: "The law is that if the government knew of the fraud, you can't prosecute someone for fraud."
He said he believes the government’s tack “will be that he denied it vociferously for years and kept them in the dark," but says that the statute of limitations is a problem the government will need to overcome.
With Landis having filed his lawsuit in 2010, if the statute of limitations were strictly applied, it would at most apply only to 2004.
Anikeeff believes the government will argue that the six-year limitation does not apply because of the way Armstrong and others sought to conceal their conspiracy.
That, in turn, provides the explanation for why Armstrong’s defence team will seek to argue that the government should have known about doping on the team.
When it announced its decision in the Armstrong case last October, the United States Anti Doping Agency said that it would not apply the eight-year statute of limitations that applies under the World Anti-Doping Code because of the element of conspiracy in the case.
Other issues that may be argued include that Armstrong had no contractual relationship with the US Postal Service itself, with the government agency’s sponsorship contract being with the team’s management company, Tailwind Sports.