Lance Armstrong: Legally speaking, with David Ezra, note by Larry Eder

David Ezra, courtesy of Berger, Kahn

We received such a strong response on David Ezra's comments on Lance Armstrong before the first Oprah interview, that we sent David five questions on legal questions surrounding Mr. Armstrong. David Ezra, writer of the book, Asterisk, provided us with his thoughts on the Lance Armstrong interview, and drugs in sports: 

RBR, # 1.  What will the legal effect be of Lance Armstrong's mea culpa on Oprah? 

David Ezra: The legal effects of a belated confessions could be wide-ranging and significant. He's vehemently protested all accusations of wrongdoing over the years and according to some of his accusers, Mr. Armstrong aggressively attacked those who dared to say he used illegal performance enhancers.  He's a wealthy target, so people may be taking a long, hard look at ways the courts can be used for retribution.  On the other hand, much time has gone by and I'm sure Mr. Armstrong's attorneys have carefully considered the legal ramifications of a confession.  If there was too much downside, it probably wouldn't have happened. 

RBR, # 2. WADA and USADA have gently reminded Lance that he has to do his mea culpa under oath? Legal ramifications? 

David Ezra: Under oath or not, a direct confession is very much against Mr. Armstrong's interests.  In a court battle, where "did he or didn't he?" is an issue, he probably loses that fight after issuing a public confession, whether under oath or not.  There may be technical issues where under oath would facilitate WADA or USADA's agenda.  But for the rest of us, it probably does not matter.

RBR, # 3. Seems like Lance Armstrong wants to run and do tris. He is competitive, that is part of his nature. Do you believe that WADA, USADA will give him any foregiveness with an admission of guilt? It seems they want names, names, names.

David Ezra: It seems like most athletes who admitted improper use of illegal performance enhancers do better in the court of public opinion.  Some, like Andy Pettitte, right away.  Others, like Mark McGwire, later.  The problem with Mr. Armstrong's confession is that it comes very late in the day and after such a strident series of denials.  Will it buy him good will or just make it worse?  This is one confession that could make things worse for the confessor.

RBR, # 4. If you were advising Lance Armstrong, would you have encouraged him to admit his guilt?

David Ezra: Here, my legal advice might differ from my advice as a person who cares about sports and our society.  Legally, I probably wouldn't tell anyone to talk to Oprah about anything that might end up in a courtroom.  But if the legal concerns are set aside, it's probably healthy for Mr. Armstrong and other athletes to come clean.  In endurance sports like cycling, the odds of winning seemed very remote without using some type of performance enhancer.  In other sports where vision, timing, and hand to-eye-coordination are more important, such as baseball, the connection between performance enhancers and success is much less obvious.  But either way, don't we deserve to know whether or not there was a level playing field because virtually "everybody" was doing something?  Don't we also deserve to know whether there really are miracle chemicals, creams and shots that can turn middle-aged people into super athletes?  We CAN handle the truth.  But as long as everyone, including the big names, feel compelled to lie, all we have is speculation built on misinformation.

RBR, # 5. Is what WADA and USADA has done with the likes of Marion Jones, Lance Armstrong even legal? 

David Ezra: The athletes with substantial resources will (or at least can) fight tooth and nail and challenge everything that comes there way.  But the danger of selectivity is obvious.  Is it good to target only the biggest names?  Is it fair?  To me it seems like Barry Bonds and Roger Clemens ended up paying for the "sins" of many other baseball players.  The recent Hall of Fame voting just demonstrated that baseball writers are willing to punish a few players for what hundreds were doing.  It's a real danger.  And the more pervasive you believe the use of illegal performance enhancers was or is, the greater that danger of unfair selectivity becomes greater.

ABOUT ASTERISK: Baseball is facing a crisis as it is riddled with accusations of steroid and drug abuse, testing, and debates about whether or not records will need to include an asterisk. In attorney David Ezra's book Asterisk, he explores the public trials of the baseball community and asks questions such as, Are accusations of steroid use justified? Or do today's well-trained players, whose teams play in newly constructed ballparks, shatter records because the game has changed?

ABOUT DAVID EZRA: David Ezra is the principal at Berger Kahn's Irvine office, and practices in the areas of employment and insurance law. Ezra was named as a Top 5 Orange County Employment Law Attorney from 2009 - 2012 by OC Metro and to the list of Top 50 Orange County Southern California Super Lawyers from 2010 - 2012.


ABOUT BERGER KAHN: Berger Kahn is a California-based law firm with practice areas including insurance coverage and litigation, business litigation, labor and employment, serious personal injury, wrongful death, and subrogation.



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