Monday, September 06, 2010

Landis Aiming for Pot of Gold--or Apogee of the Swizzle?

If you missed it, Floyd Landis has filed a whistle-blower lawsuit against the U.S. Postal team, a story first broken by the Wall St. Journal.

The move adds further interest to our story in July questioning whether Landis's actions demonstrate socipathic tendencies, on a path to destroy all his friends. Now he's acting like the sociopath on a desperate tear to self preservation.

Landis in his last big race, the Catskills Race in August (Photo (c) Benepe) 

The Justice Department is mulling over whether to join Landis in his complaint against the team, which at the time was run by Tailwind Sports. The Postal Service paid $30.6 million to Tailwind to sponsor the team from 2001 through 2004, according to a sponsorship agreement reviewed by the WSJ.

It would be really funny if after all of these government agencies run themselves into a frenzy searching for their Big Doping Scandal to illuminate their boring careers as pencil-pushing bureaucrats, they find nothing but a broken man on a desperate course to destroy all the people who rejected him since the positive doping finding toppled him from his 2006 title in the Tour de France.

Could one person make a laughing stock all of these federal agencies? Well, he certainly has done so with one of the biggest names in cycling and cancer history, plus the hundreds if not thousands of people who gave him money to help support his "cause" of innocence way back when he was still claiming to be drug free and telling the unvarnished truth. Government 'crats--watch out, you could be well on your way to experiencing the biggest swizzle --a swindle that leads to the fizzling out of the investigation--of your lifetimes.

Jeff Notvitsky (pictured left), the biggest 'crat of them all is playing a high stakes game. He's an ex-basketball player who couldn't make the team at Lute Oslon’s Arizona University Basketball team, and is leading the investigation for the Food and Drug Administration. As Steroid Sources tells it, Novitzky has had his own Landisism to spur him on, as he fell short and returned home to play back up forward and teammate to his brother at San Jose.

Novitsky was making $145,000 as an I.R.S. employee when he broke the BALCO case that took down Barry Bonds. His salary as lead investigator at the FDA no doubt is bigger (we looked for a number but the Office of Personnel Management figures are not surprisingly difficult to crack), and without a doubt his high profile attacks on drug cheating in sports have had a hand in his progressively improving career.

If you are cheering Novitsky and the rest of the investigators on, you'd better hope that those riders that purportedly are offering corroboration of the doping were actually present, and don't have the last names of Landis or LeMond, two guys with axes to grind with the seven-time Tour winner Armstrong.

Technically a filing under the False Claims Act (31 U.S.C. § 3729–3733, will allow Landis, who is not affiliated with the government to file actions against the US Postal Team--in this case a federal contractor he is accusing of committing claims fraud against the government.

The act of filing such actions is informally called "whistleblowing", and the blower--in this case Landis--stands to receive about 15 to 25 percent of any recovered damages.

The exact details of the suit are not available because the filing has not become public yet.

How would the US Postal Team have committed such fraud? Among the possibilities are "knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim."  Previously the law has served to protect the U.S. government from billing fraud by defense contractors, and more recently from health care fraud such as Medicaid and Medicare.

It's application in this case is shaky. In this case one can only imagine that Landis's claim is that the riders broke their contracts which stated explicitly that no rider could win using banned substances (possible), and/ or that they paid a doctor who administered banned substances (possible) and/ or the team charged the government among its expenses for the drugs that would enhance the riders' performances (not likely).

A complaint must be filed in U.S. District Court under seal. After an investigation by the Department of Justice within 60 days (or with an extension, longer), the Department of Justice decides whether it will pursue the case with the complainant.

However, this move by Landis is risky.

For one, the Justice Department may choose not to join in the suit, which would leave Landis--a man who is known by his own admission to have lied-- out in the wind taking the action himself. Such a move by the Justice Department would mean a much smaller settlement, and possibly a loss for the disgraced cyclist.

Why would the Department of Justice decline to join the suit?  For one, the claims have been trumpeted all over the press, which could prejudice the lawsuit.  Not only has Landis made his claims public--contrary to the whole intent of the whistle blower law--but a previous action between Lance Armstrong and SCA Promotions have been laid bare-- and public. Those deposition documents lay at the base of this case.

Those documents are currently being requested by the government entities--the Justice Department, the Food and Drug Administration, and the U.S. District Attorney's office in Los Angeles, who are engaged in the fraud investigation.  But they needed look any further than the Internet, where those documents have been available for months, if not years.

What's more, the investigators will need proof of the fraud against the US Post Office. They'll need proof that banned substances were used or that blood was reused; they'll need proof that the government was charged for something years ago. And so far the only proof they have is that Landis himself committed fraud when he signed his contract and took dope to compete.

Armstrong recently hired criminal lawyer Mark Fabiani of LaJolla, CA., and Hincapie has hired the firm Wachtel, Lipton, Rosen and Katz, of New York. Those counselors could finger Landis as the only doper on the team. That would make Landis the subject of the fraud investigation by Jeff Notvitsky at the Food and Drug Administration, but could also make him a target in his own False Claims suit.

But if the Justice Dept. does indeed follow suit, and they  reclaim funds from Tailwinds Sports (another hurdle) Landis could take home some change.

Landis' money motive made more of a public play recently: Last week it was detailed in Newsweek that Landis was frustrated last September 2009 when he tried to join the new team RadioShack formed with Armstrong,  and was rebuffed by team manager Johan Bruyneel. Bruyneel said he turned Landis away because of his reputation as a doper. “I told him it would be a bad PR move” that could damage the new team’s efforts to win entry into the 2010 Tour, Bruyneel told Newsweek.

Pic: Armstrong, 2009 TDF, (c) Benepe 

Here's more of the revelations from Newsweek:
In April, a few weeks before Landis went public with his revelations, organizers of the Tour of California, a major U.S. race, denied entry to a team Landis had joined (it said the team didn’t have enough of a track record). Tour director Andrew Messick says that two days before the news was announced, Landis unexpectedly asked him to lunch. Landis, says Messick, said he planned to confess to doping and talked about other cyclists’ drug use, including Armstrong’s. ...[A] few weeks later Landis and a friend began e-mailing Messick and others, pleading that his team be allowed into the race—and hinting that damaging revelations about doping by Armstrong and others might be forthcoming. In late May, Landis publicly confirmed that he also e-mailed cycling and anti-doping authorities, confessing his own drug abuse and outlining allegations about Armstrong and other cyclists.
A lawyer for Armstrong, Tim Herman told Newsweek that “ ‘shakedown’ would be an appropriate description” for Landis’s actions. “It all had to do with his effort to secure a place on the Radio Shack team ... It doesn’t take a Nostradamus to figure out that if we had simply hired him, none of this would have happened.”

Read related articles here:
Roots of a Rift (Newsweek)
Velonation--Justice Dept mulling over suit
US Postal doctor denies claims of doping
Hincapie, Armstrong broaden legal teams
The WSJ examines if UCI is really pursuing riders who take drugs
Landis said to file whistle blower claim (NYT)

On the False Claims Act


Anonymous said...

Why all the attacks on Landis? Why attack Novitsky? Not interested in their motives; if they're trying to get at the truth, then their efforts should be applauded. That Landis lied in the past is not relevant. If it is, then there's proof that Armstrong has lied we can delve into. That Novitsky may not have been a successful college basketball player is supremely irrelevant and you should be embarrassed for bringing it up. If you're going to write about motives, then you might as well speculate on the dark side of Armstrong and Bruyneel's motives--and money is probably pretty big. And then there are your motives. weren't you sponsored by Trek in the past? Maybe you want that sponsorship again. And then there's the media angle. Perhaps you're working this up so people will read your blog.

Jen Benepe said...

To the anonymous commentator:
I am happy to publish your comments, but why are you anonymous? If you believe in your thoughts, as I do, you should be ready to make yourself public--as I do.
I am not embarrassed by bringing anything up --it is up to the reader to decide if it is relevant.
Now how would my ad deal with Trek which ended long ago (several years in fact) have anything to do with my analysis? And there are no ad deals with Trek coming on, though there could be with thousands of other companies in cycling that could be associated with ANY of the riders I write about (re: coverage of the TDF). That basically covers the whole spectrum.

And, for the record, I always make clear my advertising relationships in an article that I am publishing.

And the media angle? That's a ridiculous statement. Obviously I am going to write about something I think is important and people should read, and of course that's what I am here for, for people to read it. But I haven't twisted anything or reported anything but the facts in doing so.

Which is a lot more than I can say for Landis.

Oh and by the way I am currently reading Walsh's book--From Lance to Landis. It's full of unsupported statements and innuendo, and looks like it was written by a novice, not a journalist.

At least I can back up my statements with fact.

Finally, I am not attacking Landis, but describing what he has done. I actually feel sorry for the guy--but I can't let that get in the way of my reporting, now can I?