The fun begins - SCA now asking for money back...

[thehog]

step 1 for SCA will be to hold their breath until wednesday the 31st and then nov 22, when the dates for appealing at CAS run out for other partys and WADA respectivly. After nov 22, if there is no appeal they are in a better position as he will be definitly stricken from the books. If there is an appeal they are probably better of waiting for CAS to reach a decision, because if CAS sticks to the SOL LA gets to keep his victory's until 2005 just like Riis got to keep his title and jersey due to passing the SOL date.

How many times does it need to be stated? Tour wins are irrelevant.

SCA waited for finality from the UCI so they could reference a formal body for the fraud.

SCA is not suing Armstrong for damages. They mealy want THEIR own money back. That is all.

It's such a straight forward case it's not funny.

 

[Carols]

For SCAs position as given by their lawyer Tilitson (?) listen here:

http://www.bbc.co.uk/programmes/b01nvv55

starting at 13:30

Highlights:

- prepared for a long fight
- 2002, 2003 payouts not included in arbitration settlement
- only legal basis for paying out was if LA was the official winner - LA lawyers very clear the if he lost titles he had no legal right to funds
- LA perjured himself and US law gives other party (SCA) independent right to undo result and seek sanctions.

Sounds like they willing to go all in.

 

[Cimacoppi49]

How many times does it need to be stated? Tour wins are irrelevant.

SCA waited for finality from the UCI so they could reference a formal body for the fraud.

SCA is not suing Armstrong for damages. They mealy want THEIR own money back. That is all.

It's such a straight forward case it's not funny.

Acording to ESPN, the demand letter will go.to Armstrong on Monday. Tim Herman has told SCA that the settlement deal is final. That was back in June.

If I were SCA, I would think long and hard about whether or not they can in good faith call Tim Herman as a hostile witness and thereby have him disqualified as Armstrong's counsel. Now that Armstrong's **** is bent over and exposed, the latex gloves are going to be coming off ALL of his adversaries. Use your legal imaginations to conjure what is about to happen to the fraudster.

 

[zigmeister]

I disagree. This is:

1. A case of mutual mistake of contract which is grounds for vacating a settlement agreement, which is governed by the law of contracts based on my review of case law. (admittedly, that was only about 20 min of work, but the several references to that fact make me feel pretty certain I am on solid ground with that assertion.)

2. Armstrong not fulfilling his part of the contract. He never won the Tour de France. Ever. No insurance fraud needed.

Going down the road of fraud/perjury is a tough road. It is more time consuming, more expensive, and much tougher to pursue.

The path I suggest is much more easier.

Of course, I am only a student, so I could be missing something.

I dont think it is that cut and dry.

The argument LA and lawyers could make is that he did win the actual race.

He only had the results taken away by USADA and finally UCI because he refused to arbitrate the claims.

The UCI didnt do anything but rely on the USADA case dossier and files to take his TDF away.

There is still no proof positive and admission by LA.

 

[python]

Mark and chuba, I appreciate your several informative posts...

 

[skimazk]

formally he might still keep his victorys in the tour, if there is an appeal and CAS holds onto sol. Thats the whole point. The UCI decision paper was clear on this. If there is an arbitration being brought, the decision to uphold the USADA sanctions is suspended / voided until CAS makes it final ruling.

So the next month will make it all clear. other partys have until the 30th of october, then WADA until the 22nd of november. Is it likely WADA will go to CAS? no. Will CAS accept a request by LA unlikely (eventhough UCI states he can).

but until the term of appeal is fully over there is still an outside chance that LA will keep his titles. In that case the SCA suit will be in trouble considering they didn't exclude winning by doping.

 

[MarkvW]

formally he might still keep his victorys in the tour, if there is an appeal and CAS holds onto sol. Thats the whole point. The UCI decision paper was clear on this. If there is an arbitration being brought, the decision to uphold the USADA sanctions is suspended / voided until CAS makes it final ruling.

So the next month will make it all clear. other partys have until the 30th of october, then WADA until the 22nd of november. Is it likely WADA will go to CAS? no. Will CAS accept a request by LA unlikely (eventhough UCI states he can).

but until the term of appeal is fully over there is still an outside chance that LA will keep his titles. In that case the SCA suit will be in trouble considering they didn't exclude winning by doping.

Huh?
There's not going to be an appeal to CAS.

 

[skimazk]

we can't really know that until nov 22nd when the term for appeals runs out.

 

[thehog]

Acording to ESPN, the demand letter will go.to Armstrong on Monday. Tim Herman has told SCA that the settlement deal is final. That was back in June.

If I were SCA, I would think long and hard about whether or not they can in good faith call Tim Herman as a hostile witness and thereby have him disqualified as Armstrong's counsel. Now that Armstrong's **** is bent over and exposed, the latex gloves are going to be coming off ALL of his adversaries. Use your legal imaginations to conjure what is about to happen to the fraudster.

Which is what team Armstrong did at the hearing in 2005 with the SCA selected arbiter.

 

[Cimacoppi49]

Which is what team Armstrong did at the hearing in 2005 with the SCA selected arbiter.

I'd forgotten about that.

 

[skimazk]

WADA still has until nov 22nd to determine if they will allow USADA get away with not upholding the WADA code by extending the SOL. The WADA head himself aknowleged this is an issue by preparing a change of the code with regards to the SOL. Preparing to extend it to 14 years when the next world summit is held in 2013 in johannesburg. If WADA allows USADA to slip past the code on this they will not be much better than the UCI with selective sticking to rules (like allowing LA to race in the tour down under).

Don't get me wrong, i think LA deserves to be exposed as a fraud. But USADA has been a bit to gung ho in the way they set it up.

I'm not gonna go into the UCI decision which states LA still has right to appeal because that seems strange. on the other hand it could be he has a right to appeal on grounds of procedural errors (aka not presenting new evidence in arbitration, just appeal on grounds of procedural issues)

 

[runninboy]

The fraud and deception began from day 1 and continued through to settlement.

There's only one conclusion to this story.[/QUOTE]

While it is interesting to read so many speculative interpretations of what this case is about, the above is the most basic and true. As the fraud predated the settlement there is no legal basis for the settlement. Any arguments about the settlement are not material to the case. The original contract was not fulfilled due to the fraud & deception.
Now it is possible that allowing for interpretation by various judges at different levels Lance might get some temporary relief, but ultimately the money will have to be returned.

 

[thehog]

Acording to ESPN, the demand letter will go.to Armstrong on Monday. Tim Herman has told SCA that the settlement deal is final. That was back in June.

If I were SCA, I would think long and hard about whether or not they can in good faith call Tim Herman as a hostile witness and thereby have him disqualified as Armstrong's counsel. Now that Armstrong's **** is bent over and exposed, the latex gloves are going to be coming off ALL of his adversaries. Use your legal imaginations to conjure what is about to happen to the fraudster.

Correct. Herman is compromised and will be requested to stand aside if this goes to court.

 

[ChewbaccaD]

SCA is about a settlement contract. Settlement contracts are primarily about finality. At the time that they entered into the settlement contract, both SCA and Lance wanted the dispute to be over, forever.

This settlement was between very hostile parties who plainly did not trust each other--and where SCA plainly asserted that Lance doped, and then lied about it afterward. It's going to be hard for SCA to prove that Lance duped them into this settlement deal, when it is clear that at the time the agreement was executed SCA believed that Lance was a big fat liar.

I'm not picking sides. Mutual mistake (Chewbacca's argument) or maybe fraud in the inducement, can get SCA the win. But this thing is by no means simple.

The interesting battle for me will be SCA's fight to get Lance under oath (again).

I dont think it is that cut and dry.

The argument LA and lawyers could make is that he did win the actual race.

He only had the results taken away by USADA and finally UCI because he refused to arbitrate the claims.

The UCI didnt do anything but rely on the USADA case dossier and files to take his TDF away.

There is still no proof positive and admission by LA.

Here is the thing, legally, he never won. Never. His wins were stricken from the record books. When he crossed the line with the shortest accumulated time those years, everyone thought he won. SCA thought he won. Lance thought he won. Lance's attorneys thought he won. I bet both parties in the SCA case refer to the fact that Armstrong won, it is simply SCA's contention that he did so using performance enhancing drugs (which evidently was not wording included in the contract between Armstrong and SCA, which is in part what precipitated the settlement), but I feel fairly certain that there wording was that he "won" with the help, not that he never won. I am also quite sure that Armstrong's attorneys asserted that Lance won.

Here is the problem: He never won. The operation of this may seem esoteric and difficult to grasp, but at the time they settled, the reality is that Lance had in fact NOT won because he had disqualified himself at that time. Sure, the decision on that didn't happen until this month, but that should not matter. The titles should not have been awarded, and the events that precipitated that did not occur this month. Those events actually occurred PRIOR to his being awarded each year's trophy. He was doping during those Tours. Hell, he was doping every week of every month it sounds like. Because of that, at no point in that time frame did he qualify for the titles he received.

Both parties to the settlement agreement (SCA, Armstrong and his attorneys) mistakenly believed he had won. In fact, everyone did. But that does not change the fact that he hadn't won. If he had won, those wins will still be in existence. Certainly I can see that this is a pretty esoteric concept, but many times, concepts of law are really esoteric.

But as always, I am merely a student of law. I could easily be wrong, but in this instance, I would be willing to argue pretty hard and long that I am not.

 

[thehog]

The fraud and deception began from day 1 and continued through to settlement.

There's only one conclusion to this story.[/QUOTE]

While it is interesting to read so many speculative interpretations of what this case is about, the above is the most basic and true. As the fraud predated the settlement there is no legal basis for the settlement. Any arguments about the settlement are not material to the case. The original contract was not fulfilled due to the fraud & deception.
Now it is possible that allowing for interpretation by various judges at different levels Lance might get some temporary relief, but ultimately the money will have to be returned.

Thank-you. Finally some sense.

 

[thehog]

Here is the thing, legally, he never won. Never. His wins were stricken from the record books. When he crossed the line with the shortest accumulated time those years, everyone thought he won. SCA thought he won. Lance thought he won. Lance's attorneys thought he won. I bet both parties in the SCA case refer to the fact that Armstrong won, it is simply SCA's contention that he did so using performance enhancing drugs (which evidently was not wording included in the contract between Armstrong and SCA, which is in part what precipitated the settlement), but I feel fairly certain that there wording was that he "won" with the help, not that he never won. I am also quite sure that Armstrong's attorneys asserted that Lance won.

Here is the problem: He never won. The operation of this may seem esoteric and difficult to grasp, but at the time they settled, the reality is that Lance had in fact NOT won because he had disqualified himself at that time. Sure, the decision on that didn't happen until this month, but that should not matter. The titles should not have been awarded, and the events that precipitated that did not occur this month. Those events actually occurred PRIOR to his being awarded each year's trophy. He was doping during those Tours. Hell, he was doping every week of every month it sounds like. Because of that, at no point in that time frame did he qualify for the titles he received.

Both parties to the settlement agreement (SCA, Armstrong and his attorneys) mistakenly believed he had won. In fact, everyone did. But that does not change the fact that he hadn't won. If he had won, those wins will still be in existence. Certainly I can see that this is a pretty esoteric concept, but many times, concepts of law are really esoteric.

But as always, I am merely a student of law. I could easily be wrong, but in this instance, I would be willing to argue pretty hard and long that I am not.

Its not whether he won or lost but how he won. That is the deception. That is what will cause him to fall.

The crime was still committed regardless of whether he won or lost or whether he has the titles or not. SCA just needed a formalised body to recognised the deception.

They got their fingers burnt last time as they'll trying to prove the "deception". They no longer need to prove "deception". Its been proven by USADA and ratified by the UCI.

 

[Benotti69]

Its not whether he won or lost but how he won. That is the deception. That is what will cause him to fall.

The crime was still committed regardless of whether he won or lost or whether he has the titles or not. SCA just needed a formalised body to recognised the deception.

They got their fingers burnt last time as they'll trying to prove the "deception". They no longer need to prove "deception". Its been proven by USADA and ratified by the UCI.

and not disputed by Armstrong.

 

[MarkvW]

Here is the thing, legally, he never won. Never. His wins were stricken from the record books. When he crossed the line with the shortest accumulated time those years, everyone thought he won. SCA thought he won. Lance thought he won. Lance's attorneys thought he won. I bet both parties in the SCA case refer to the fact that Armstrong won, it is simply SCA's contention that he did so using performance enhancing drugs (which evidently was not wording included in the contract between Armstrong and SCA, which is in part what precipitated the settlement), but I feel fairly certain that there wording was that he "won" with the help, not that he never won. I am also quite sure that Armstrong's attorneys asserted that Lance won.

Here is the problem: He never won. The operation of this may seem esoteric and difficult to grasp, but at the time they settled, the reality is that Lance had in fact NOT won because he had disqualified himself at that time. Sure, the decision on that didn't happen until this month, but that should not matter. The titles should not have been awarded, and the events that precipitated that did not occur this month. Those events actually occurred PRIOR to his being awarded each year's trophy. He was doping during those Tours. Hell, he was doping every week of every month it sounds like. Because of that, at no point in that time frame did he qualify for the titles he received.

Both parties to the settlement agreement (SCA, Armstrong and his attorneys) mistakenly believed he had won. In fact, everyone did. But that does not change the fact that he hadn't won. If he had won, those wins will still be in existence. Certainly I can see that this is a pretty esoteric concept, but many times, concepts of law are really esoteric.

But as always, I am merely a student of law. I could easily be wrong, but in this instance, I would be willing to argue pretty hard and long that I am not.

Hopefully there is enough of an argument there for SCA to get Armstrong into a courtroom under oath.

 

[AussieEdge]

Saw this in another thread...

that's great. Hopefully donors will ask, like the IRS; where's the other $498,000.000.00 right now, Cowboy?

If any part of the Liestrong fraud is proven it could help SCA and get the IRS involved could it not?

 

[ChewbaccaD]

Hopefully there is enough of an argument there for SCA to get Armstrong into a courtroom under oath.

I couldn't agree more.

Also note that if mutual mistake never shows its face in the complaint I will:

1. Not be surprised.

2. Figure I was down a rabbit trail again by myself. Certainly will not be the first time nor the last.

I just like to argue, and I think my argument in this case is clever.

 

[AussieEdge]

I was lucky enough to do jury duty (just finished) and got to be a jury member through a whole case & both sides were being quite pedantic over the slightest detail or word meaning/change when we wouldn't give it a second thought if in normal convo.

 

[purcell]

Thank-you. Finally some sense.

We got there 11 pages ago ...

http://forum.cyclingnews.com/showpost.php?p=1063120&postcount=155

There has been a lot of fanboy obfuscation since though ....

 

[ChewbaccaD]

Its not whether he won or lost but how he won. That is the deception. That is what will cause him to fall.

The crime was still committed regardless of whether he won or lost or whether he has the titles or not. SCA just needed a formalised body to recognised the deception.

They got their fingers burnt last time as they'll trying to prove the "deception". They no longer need to prove "deception". Its been proven by USADA and ratified by the UCI.

See, I think for the purposes of setting aside the settlement agreement (which will be the first, and LARGEST hurdle here. Courts do NOT like to do such things), making the argument you want to will involve much more time and money. My path, if I am indeed correct, gets them there more quickly and cheaply.

Getting a court to overturn a settlement agreement is 95% of the battle in this case. If they can do that, the second part (proving the contract was breached for the purposes of repayment) seems the easier bridge to cross.

EDIT:

 

[thehog]

See, I think for the purposes of setting aside the settlement agreement (which will be the first, and LARGEST hurdle here. Courts do NOT like to do such things), making the argument you want to will involve much more time and money. My path, if I am indeed correct, gets them there more quickly and cheaply.

Getting a court to overturn a settlement agreement is 95% of the battle in this case. If they can do that, the second part (proving the contract was breached for the purposes of repayment) seems the easier bridge to cross.

Courts like arbitration. They encourage settlement via arbitration. Courts and the judiciary want parties in dispute to settle of their own accord. They don't want courts clogged with people fighting over contracts.

What courts/judges and the judiciary despise is anyone bucking the arbitration system. They detest it. (Have you ever spent time at an employee tribunal?)

Once its "discovered" that this is what occurred there's more trouble than just returning monies owned.

Like many have said. This thing is going nowhere near a court room. Armstrong knows it, SCA knows it. Both will play hardball until that time comes and settle. You think he's going to let Ms. Oakley baseball bat Rep be called up?

Similar to USADA case. USADA always knew they had Armstrong cornered. He didn't know how much evidence they had but could never risk going to an open hearing and have it play out. He withdrew. The safer bet in his eyes was to play the media which had worked the better part of 20 years for him. He thought he could continue to play that card.

SCA know they need to keep up the pressure until he capitulates. They also know that he's got bigger fish to fry on the Federal front.

 

[ChewbaccaD]

Courts like arbitration. They encourage settlement via arbitration. Courts and the judiciary want parties in dispute to settle of their own accord. They don't want courts clogged with people fighting over contracts.

What courts/judges and the judiciary despise is anyone bucking the arbitration system. They detest it. (Have you ever spent time at an employee tribunal?)

Once its "discovered" that this is what occurred there's more trouble than just returning monies owned.

Like many have said. This thing is going nowhere near a court room. Armstrong knows it, SCA knows it. Both will play hardball until that time comes and settle. You think he's going to let Ms. Oakley baseball bat Rep be called up?

Similar to USADA case. USADA always knew they had Armstrong cornered. He didn't know how much evidence they had but could never risk going to an open hearing and have it play out. He withdrew. The safer bet in his eyes was to play the media which had worked the better part of 20 years for him. He thought he could continue to play that card.

SCA know they need to keep up the pressure until he capitulates. They also know that he's got bigger fish to fry on the Federal front.

I am well aware of how courts view arbitration and settlement agreements.

I am also well aware that courts are very reluctant to set aside settlement agreements entered into by two parties of their own volition. Not only that, but there are only certain grounds upon which they may do so. Legal arguments have to be made to get that outcome (regardless of whether or not either party thinks there will be another settlement), and those arguments have to be based on recognized grounds. Saying "Well, it's obvious that ________ existed, so set aside the settlement agreement" to a judge will get your a$$ kicked out of court and brought up on ethics charges in your state bar.

My points operate to suggest what should be included in the legal arguments.

EDIT: Also note that none of us know what was included in that settlement agreement. If you think that will have no bearing, I ask you gain access to Westlaw or Lexis, go to the search function, choose "All State and Federal cases" (or choose the "allcases" from the database drop down) and type in "set aside" /s "settlement agreement" or even change /s to /p, see what comes up, and then return with your personal observation on how often and in what context that generally happens. Also note that in those decisions, the most common grounds for doing so are fraud and...wait for it........MUTUAL MISTAKE.

I didn't start pushing out that baby by random chance.

EDIT #2: And if my arguments are not persuasive to you, disregard them. Many people disregarded my suggestion that subject matter jurisdiction would be the grounds Judge Sparks used to kick out Lance's a$$...