Lance Armstrong has confessed to using banned performance enhancing substances for several years in order to win the Tour de France bicycling competition. This entailed the use of testosterone and other “controlled substances” banned by federal law. This might have violated the Travel Act (18 USC § 1951), which prohibits using the facilities of interstate commerce to commit certain federal crimes which include the use of controlled substances and bribery. The first is now established. Armstrong has not admitted to bribery, but the head of the U.S. Anti-Doping Agency (USADA) alleged on 60 Minutes that Armstrong made a $100,000 “donation” to the International Cycling Union (UCI), the organization with jurisdiction to enforce the rules against doping for the Tour de France and other events it oversees. Such a “donation” by a regulated person to the regulator is a plain conflict of interest putting UCI in the untenable position of overseeing, and perhaps disciplining, a benefactor. When USADA was closing in on Armstrong last year, he did the same thing, offering a “donation” to the organization, which this time was properly rejected out of hand. So we have one allegation of bribery made to influence a foreign entity and an attempt to bribe a law enforcement entity. These are two potential RICO violations in addition to the myriad of controlled substance violations. But there are many more.
In order to carry out years of illegal doping, Armstrong would have had to enlist the aid of other people. He employed a “doping doctor” to accompany him on tournaments and finesse the administering of the narcotics as efforts to detect them varied from place to place. Armstrong also employed assistants who handled the logistics of his of the doping with the doctor wherever he was racing (not just in France). This type of organization requires lots of communication among the participants. Those would have been made by e-mail and phone calls across state lines and in foreign commerce. Such uses of the wires were, in RICO-speak, made to execute a “scheme to defraud” the UCI and Armstrong’s competitors.
So he has likely, given his confession, committed a pattern of RICO violations. Moreover, he did so while participating in cycling teams and other business entities he has created, so there are several RICO “enterprises” involved. Taken together, there are two of the elements of a RICO violation, a pattern of racketeering and the use of an enterprise.
Yet, the U.S. Attorney who investigated him has decided not to prosecute Armstrong. Absent an explanation, we can only speculate why no RICO indictment (or for any crime) was brought. So the issue becomes what about those who have been harmed by his illegal conduct? For starters, can his his fellow cyclists who unsuccessfully competed against him in the Tour de France and other races sue him on the theory that they would have won had he not cheated? This might be possible because courts have allowed RICO cases where the plaintiff complains of losing a valuable chance to win something, such as bidding for a contract, because the defendant competes illegally. A statistician could estimate the likelihood of a losing cyclist having won a tournament if Armstrong was not competing, i.e., creating a new legal race, at least on a computer. The answer will not, of course, perfectly recreate the race and is dependent on some conjecture, but damages don’t have to be exact, and a case could proceed all the way to the jury on such a theory of damages. (I am assuming the plaintiff cyclist would have been clean, perhaps not a realistic assumption given what we know about the sport).
We also know that Armstrong has a history of intimidating those who squeal on him. This occurred during his races and in the last two years as USADA took sworn statements from fellow cyclists about his doping. This is witness tampering, another RICO offense. However, the damages such acts cause are likely to be emotional trauma rather than loss of money, which RICO requires. (Cyclist Tyler Hamilton offered a fist hand account of Armstrong’s threat on his life after he testified to USADA on 60 Minutes.) Yet, some witnesses may have lost business opportunities because they were intimidated by Armstrong’s tactics. Any such people may have RICO claims and can easily establish a pattern of related acts.
I have no way of knowing about others who have been victimized by Armstrong over the years. He has a reputation for employing posses of tough lawyers to threaten anyone who gets in his way in and out of cycling. For example, his Livestrong Foundation, which does good works in helping fight cancer, is a trademark bully. Its lawyers file objections to anyone in the country trying to register any trademark using the word “live” or “strong.” The Foundation fought a woman’s request to register a trademark for her small business, “Live the Beauty,” which had nothing to do with fighting cancer. There was no risk that people interested in Livestrong Foundation would not find its website because they were confused by a company selling sports equipment called “Live the Beauty.” Unable to afford a lawyer to fight the Foundation in the Patent and Trademark Office, she just gave up. This may well have been a totally frivolous objection to her trade name. If so, it could have been yet another use of the federal mail and wires to defraud someone who allegedly stood in Armstrong’s way.
All in all, it’s a sordid picture of illegal behavior over many years. All of the elements of a RICO violation seem to be here. I hope justice is done.