The transcript from the November 11 motion hearing was released Tuesday. The whole thing lasted about an hour or so, and the most noteworthy parts were Judge Richard Kyle’s questions.
LeMond lawyer Jaime DiBoise led off, attempting to define ‘best efforts’, and whether Trek’s marketing efforts met that standard. Trek lawyer Ralph Weber followed. Weber contended that Trek and LeMond had a contract that stipulated that Trek would spend 3% of net sales on marketing and advertising, and Trek met that number, and therefore met its contractual obligations to LeMond.
The judge’s first hypothetical
Weber then cites specific examples of customers and dealers complaining about LeMond’s outspoken anti-doping stance, to which Kyle asks this hypothetical:
THE COURT: What would have happened if instead of Mr. LeMond using the language that he had used had been asked after some of the newspaper articles about Armstrong’s association with the doctor, LeMond’s history of anti-doping comments unrelated to Armstrong, if he had been asked after that Armstrong thing came out with the doctor he was asked by the press, Do you have any comments on that, and he said, "I have no comment." Wouldn’t you be saying exactly the same thing? Wouldn’t that be read as a knock on the brand in the same way? It seems to me his hands are absolutely tied once that subject comes up because if he says something, he is getting lambasted by you folks for doing it. If he says I either can’t say anything or I have no comment, it’s going to be construed by the press as, see, he must be basically saying that. Then what would you do with this lawsuit?
Kyle seemed to be saying that LeMond’s hands were tied once questions arose about Armstrong. If he said ‘no comment’, it would’ve been construed as a tacit accusation. The only way LeMond could’ve avoided this lawsuit is if he went against his convictions and proclaimed Armstrong clean. Weber resisted the hypothetical, repeatedly refusing to answer the question:
MR. WEBER: The proof, Judge, the answer to your lawsuit is you have to say how consumers react. Because Trek sells to independent bike dealers. Independent bike dealers turn around and sell to consumers. These independent bike dealers are small business people that are very nervous about making a go of it. They hock —
THE COURT: But the press comes out and says –the press comments on his no comment saying, Well, obviously this is a view that he’s got about Armstrong. He’s thinking he’s doping, etcetera, etcetera.
MR. WEBER: We would have to see what the consumers’ reaction is. My own belief is if he said "No comment", there would be no story about LeMond.
THE COURT: Let’s assume that you could show that the consumers were reacting exactly the same way as a result of his saying "no comment".
MR. WEBER: I think —
THE COURT: Because here is somebody that is commenting on doping generally, initially unrelated to Armstrong. He obviously is in the forefront, for lack of a better word, of the anti-doping view. And the press is going to go to him when someone of Armstrong’s notoriety is either accused of or suspected of doping.
MR. WEBER: Right.
THE COURT: And they are going to expect some comment from him.
MR. WEBER: Number one, I don’t think you would get that kind of reaction. Number two —
THE COURT: Let’s assume you did. Let’s assume you got the reaction. Then what would you do?
MR. WEBER: Can I also assume then that in 2004 he said, "Armstrong will do anything to keep his secret"?
THE COURT: No, no, he didn’t say anything other than, "I am not going to comment on it."
MR. WEBER: And there were no comments in ’04 or ’06 or ’07?
THE COURT: Right.
MR. WEBER: Well, then we have a different situation, and I don’t believe we have the level of consumer reaction and dealer reaction that we did.
THE COURT: But let’s assume you had that reaction from the consumer. Exactly the same reaction your survey showed that they were not going to follow the brand. Would you be making the claim here today that that violated the provisions here?
MR. WEBER: Well, let’s look at the clause that we’re talking about.
THE COURT: No, no, let’s just answer my question.
MR. WEBER: Do I think we would be making the same claim if LeMond’s conduct damaged Trek’s business? Yes, we would. I don’t believe it would have.
THE COURT: Wait. You believe —
MR. WEBER: If LeMond damaged Trek’s business.
THE COURT: By saying "no comment"?
MR. WEBER: If that were construed by the press and the consumers as an attack on Armstrong, which I don’t believe they would, but if you’re asking me to assume that they would, then yes, then I think he would be damaging Trek’s business.
THE COURT: And you would have the same lawsuit as right here?
MR. WEBER: I don’t think we would because the lawsuit we have here includes comments in ’04 that Armstrong will do anything to keep his secrets. We have the comments in ’06 that Armstrong threatened my life, my livelihood and my wife.
THE COURT: You’re fighting my hypothetical.
MR. WEBER: Yes, I am. I am, Judge.
Diboise follows up
Next Weber and Kyle discussed LeMond’s alleged undercutting of dealers by selling bikes to friends, and then DiBoise did some following up. The end of DiBoise’s argument is particularly interesting, regarding Trek’s claim that LeMond violated a ‘moral turpitude’ clause:
Now, your Honor, my last point. Picking up on your Honor’s comment, if Mr. LeMond had said "No comment" in response to any of the questioning of him about Mr. Armstrong’s alleged doping and/or use of performance-enhancing drugs, the press would have construed that in any way, shape or form it wanted to. It would have caused the same furor. But the point, I believe, of your hypothetical is to think about this clause and whether or not it really reaches the conduct that Trek is attempting to have it reach.
That clause is designed to allow a company to get out from an agreement where the athlete’s performance or statements or actions are so bad as to cast doubt on the company itself. They are reserved for situations such as Michael Vick’s where you have an athlete who is fighting dogs, conduct unbecoming to the NFL. Conduct that breached his agreement. That’s what these clauses are reserved for.
Here what we have is Mr. LeMond speaking out against something everybody in this country hates. The pervasive use of doping in our athletic endeavors. How he can be punished for making those statements under this clause is just ludicrous. Here that clause means something other than what Trek is trying to make out of it. In any event, they can’t prove any damages flowing from his statements.
Weber answers the hypothetical
Weber then returns to the judge’s first hypothetical question, which in turns draws out another:
MR. WEBER: Thank you, Judge. I’ve had a few moments to reflect on the Court’s hypothetical and I think a better answer on behalf of Trek is as follows. Had LeMond simply said "No comment", I don’t think Trek would have been critical of that in any way, even with assuming the consumer reaction that the Court raises for this reason. Trek repeatedly told LeMond they had no problem with him speaking out against doping. In fact, encouraged him to do so. Trek has a very aggressive anti-doping language clause in its contracts with athletes. The line that Trek drew and asked Mr. LeMond to observe is no attacks on individual athletes because that is what got people so upset. LeMond repeatedly agreed with that and then repeatedly breached it. So had he simply as to an individual athlete said "No comment", Trek would not be here today.
THE COURT: One more hypothetical while you’re on the topic.
MR. WEBER: Okay.
THE COURT: Let’s assume it turns out tomorrow that Armstrong had been doping. What happens to your claim here then?
MR. WEBER: It doesn’t change.
THE COURT: You know, some test comes back. They have some way of doing it, and sure enough he’s been doping.
MR. WEBER: It doesn’t undo the $9 million and more in lost profits from the bike sales Trek did not realize.
THE COURT: Even if what he said was absolutely true?
MR. WEBER: Right. Trek was damaged. The contract with LeMond is over. Trek was damaged to the tune of between 9 and 12 million dollars as the result of lost bike sales. That doesn’t go away.
The judge suggests a settlement and a witness
Kyle then compared the case to a divorce, and urged both parties to strongly consider a settlement. He then discusses scheduling if the case does go to trial, dropping this in:
But as you look at your schedules, and I don’t want you to look at them now, but if counsel who intend to try the case and perhaps Mr. LeMond or Mr. Armstrong have got major issues already in March or that period of time in terms of pre-planned vacations or whatever it is, you ought to let Ms. Siebrecht know, who is my calendar clerk, of those, and with a copy to the other side. We’ll make every effort to work around that.
Both sides let the possibility of Armstrong testifying in the case alone. Kyle then closed with his interpretation of the case:
…I sense that Mr. LeMond was a pain in the neck to some of the people at Trek and the people at Trek were ready to lower the boom on him at some point in time and maybe with good reason. And then the Armstrong issues comes up and basically the owner of Trek passes on and now all of a sudden we have different management in there and somebody said let’s blow the whistle on this thing. It’s time to — not doing anything wrong. It’s time we’re not going to put up with this stuff anymore. And here we are. One charge escalates into another.
“Trek has a very aggressive anti-doping language clause in its contracts with athletes.”
Here’s a hypothetical situation. Why doesn’t trek pursue legal action against Armstrong over the say the 99′ samples? Wait, that would be damaging the brand…..
Has anyone ever seen a Trek bike in races?
Who the hell is buying all those Mad Ones?
They supposedly had ~$750MM+ in sales last year. Nucking futz, that is.
I like reading excerpts as well as the next guy, but it’s more contextual to read the whole thing.
Someone actually gives a shit about this?? And reads these things???
Yeah, together they are the 800lb Gorilla. That’s right, the $750mm (and growing) bike company and the champion of all things TdF and Cancer Fighting. It’s just like Intel and the PC manufacturers. Look how long it took AMD to get justice!
I didn’t read the article because I don’t give a shit, but I have an awesome name!
Thanks Andy
i doubt trek really gives a rip about our quaint little fringe sport. they’re makin’ money on the hoards
Honestly, whether you like Armstrong or not, Lemond or not, how many here honestly think LA is clean for all 7 vs. GL for his 3? I think GL was the real deal, a true one of a kind athlete that gets spun as a lunatic. LA, never should have won a grand tour, and if you can’t understand why, wake the fuck up. Funding, influence,leverage & blackmail all played to his benefit and we have a record and false hero in our sport that’s as laughable as Barry Bonds. People in America don’t walk around with SF Giants hats on because they love and support BB and “nothing can be proven so he must be a down-to-earth swell guy that everyones out to prove wrong”. Yet Livestrong is an exception? I’d like to think they reserve a special place in hell for those who use victims of cancer as a backstop to sporting fraud.
ALL top pro riders have pushed the fringe from the beginning, LEMOND INCLUDED. To think otherwise forgoes intellectual honesty.
Andy, when referring to a judge it is best to call him “Judge Kyle”, not “Kyle” alone.
Would you trade places with Lance – assume it is true that he doped like crazy – but at this point let’s also assume that he is safe from having his 7 victories overturned.
Please also don’t forget to assume that this would mean you have (probably) slept with an Olsen (not Greg) twin.
Simple fact – Lemond is a litigation whore.
Who starts more lawsuits only to pay off, ahem, settle them?
Amen brotha!
Yeah, let’s all smell the BS for what it is. I love the sport like the next cycling fanatic, but you really have to start wondering about the cult figures like LA. He’s no different than Barry Bonds or Bernard Madoff when you get right down to it. It’s a shame he’s leveraging LAF to some peculiar ends. Just check out his for profit spin-off from the foundation-
http://www.livestrong.com/
versus
http://www.livestrong.org/
hey Stany
Are you a fanbois? It’s fun spinning and recycling ancient news isn’t it. Got anything current and enlightening to share?
LA is a sham- and he built his name and reputation on the victims of cancers back. It is wrong and I hope someday someone comes forward and has the balls to blow the whistle on Lance and his secret to the 7 wins.
circle jerk for dumb asses with nothing better to do.
good laugh though…
only problem is thousands of cancer victims do admire him, and his story even if it is part fiction. the part that’s true is that he did survive a virulent cancer that could have killed him. you tell those victims not to hope, and fight for they’re survival. yeah, he’s an a-hole. however,in my opinion he does more good than harm.
Why all this talk of LeMond and Armstrong? Today is my birthday!
Veronkadonk! Nice.
Are you saying that all cancer patients will abandon hope if Lance doesn’t have a website?
no. just that he does more good than harm… unless you are his family
So if you survive cancer you get to cheat?
we can both ponder which came first but I think your:
“special place in hell for those who use victims of cancer as a backstop to sporting fraud”
could just as easily say:
“special place in purgatory for those who use their sport (dirty or not) as inspiration to victims of cancer”
given that many/most pros race dirty, imagine if he was found to dope, then there could be another book about how the determination of a survivor conquered a corrupt sport that he alone could not change but at least use to empower others to make lemonade from lemons he was delt, title “If life is not fair, don’t play fair, play to win!”
his survival story is true and his cycling story is probably as factual as sara palin’s autobiography. i can only go by what i see. there are some cancer stricken people that look up to the guy. if it makes them happy and helps them fight on, i see that as good even if i don’t like him.
My previous comments may have been harsh, but I don’t think that if LA ever went down, everyone in the world with cancer would suddenly die immediately. The pity that we have for our friends and family members with cancer is the same pity that his camp leverages to protect a brand. The brand being Lance Armstrong. Alot of folks, myself included, have a problem with that.
That being said, I won’t lie that it was exciting watching Barry Bonds hit home runs and it was blatantly obvious what was going on in baseball at the time as it has been in cycling for sometime now. It’s hard to regard Bonds as a great home run hitter, because he never was a great home run hitter before that era. I feel the same way about Armstrong.
bonds was always, even pre-getting huge, an all star, a phenom, etc. True fans of the game appreciated him before he used, fake fans care about home runs. you can run this analogy through with cycling. 2) “but I don’t think that if LA ever went down, everyone in the world with cancer would suddenly die immediately”. no one is claiming that, that just sounds completely whacky. It is hard to impossible to claim that he hasn’t brought in a tremendous amount of money for cancer research. One can fault him for using that to his advantage. I appreciate his efforts AND find it extraordinarily tacky to have hot girls hanging out of a car with “game on, cancer” written all over it. The two don’t have to be mutually exclusive.
Oh no, the judge knows about the “doctor”, so LA must be guilty. I am amazed at the conspiracy theorists that still exist. There are so many LA haters, don’t you think that if he cheated that by now, someone would have squealed. Think of the money you could make with a tell all book!
I guess you guys just know more than me, but did you see the picture today on Pez of LA after he won the worlds? Fat is not an inappropriate description and certainly the difference in his body type is remarkable.
And Schmaltz, what does you mean “if you survive CA you can cheat”? It is possible to survive cancer and cheat, of course, but they are unrelated and what was said was that the positives outweigh the negatives. It is just like evaluating most things and you may not agree (obviously), but in no way was it implied that the alleged cheating was OK because of the things done to benefit cancer survivors- even just hope.
Bond’s rookie card was worth a few bucks because he was a great fielder and was consistent at bat-Douche. I think what the guy is trying to say is that Armstrong stood out, but was never the best until he started doping. So you think it’s cool to market the suffering of a disease 9-5 then party it up after hours – is that what your saying? You don’t fault Lance for that?
To use the cancer/hope shtick is getting old. As we see, his children will be used.
I’ve gotta wonder if Trek’s lawyers aren’t fired for their awful performance in court. Man, at least once, they coulda used the cancer angle. Bet after reading this, they will next time around.
didn’t Bernie Madoff have a foundation or was close to one dealing with leukemia the same illness his son who is now cured had? What a great great charitable guy that Madoff was. He cared so much about others he donated millions to the cancer community in the hopes of helping them out. And schmucks like you anti-lance people have all but quashed his benevolence just to satisfy your need to catch a fraud.
Shame shame shame
The path of the righteous man is beset on all sides by the iniquities of the selfish and the tyranny of evil men. Blessed is he, who in the name of charity and good will, shepherds the weak through the valley of darkness, for he is truly his brother’s keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who would attempt to poison and destroy my brothers. And you will know my name is the Lord when I lay my vengeance upon thee.
i said “one can fault him” and that “i find it tacky” but finding fault with someone and damning them to hell is a whole different story. The Madoff comparison is weak. Convicted felon who stole millions versus…what? Suspected doper? You might as well say “yeah and Hitler gave money to someone”. Fine, don’t like the guy, but to claim he’s evil just says something about you, not him.
one more thing, he led the NL in home runs in his rookie year. try to at least know what you’re talking about before you spout shit
Madoff got away with his criminal actions for DECADES. Reporters who questioned him or wrote about him were blacklisted. Those in the business who spoke ill of his practices presuming something was not right were threatened in their line of work. So Madoff, for decades, was not considered a fraud. Very few people had the courage to question him. He was philanthropic. Many many many people benefited from his benevolence. In the end, the fraud was revealed. But, for years it went unproven.
better check the settings on your oxygen tent
sometimes i spray myself down with tri-flo and sing showtunes in the shower. is that so wrong?
ain’t nothin wrong with that at all, dorian
the ’99 samples were not tested properly following the accepted protocols. So it is impossible for them to be positive.
Ask Frankie Andreu’s wife what happens to squealers. Lance has enough money that when he threatens a lawsuit people know he is serious and can easily afford it. You can be sure that when Lance does get caught doping he won’t need to go around the country trying to raise funds for his defense. The other reason he hasn’t been caught is that he can afford to hire a good doctor to make sure he is not caught. Most of the other guys who were caught are the ones who cannot afford to keep a good doctor on call all the time.
are hilarious!!
so beyond the pale it is frightening. comparing armstrong and madoff? that’s comic gold. especially with the logic, “well, bernie was once considered innocent as well” WTF??! You guys have the logic skills of a 2 year old.
So I guess the “improper” testing somehow made sythetic epo show up in LA’s piss. Read the Ashenden interview on this site.
Jack Daniels makes synthetic T show up in Floyd’s urine though.
It wasn’t JD, it was beer. Good Spanish beer.
Out of curiosity, does anyone know how Lance justifies accepting a multi-million dollar payment from his own foundation for the ownership rights of the Livestrong brand? Seems like if Lance really cared more about cancer than his own riches, he could just give it away. Instead, he makes more millions of dollars off of his own branding. The issue hasn’t really been raised, but its right there in the public record of his charities.
Lance, how many cancer survivors could be saved or comforted in exchange for your newest mansion?
remember a couple years back, and all these caribbean pro baseball players in mlb were opening foundations back in wherever, and some investigative reporter looked into the status to find that the staffs were all relatives who collected salaries but did nothing and the whole thing was just a way to wash big salaries back into local economies and avoid paying taxes?
yeah, i can’t find anything about it on google. but when LA rocks the G5, as long as he makes a couple of phone calls to talk business, i bet it’s a write-off.
Do cycling fans really believe that LA was clean from 99 onward? It was the era of EPO, where clean guys couldn’t keep up, where the good guys lost prize money. Do people really believe that LA was winning against EPO fueled athletes? The sport was full of it.
Lance has power and bags of money. He’ll never be caught but he’ll always have it on his mind that he never really did it ‘himself’. He is the loser in this.
Lets now focus on the young clean talent coming through, these guys are the future of our sport. Lets move on and get behind the guys we know are clean, lets remove this omerta that exists, let the clean guys take control.
Greg is good man. I know. It’s not a question of LA vs GL. It’s basically who has the moral high ground. Greg has that because he has a career of credability. The biggest mistake LA made was winning 7 Tours when EPO use was at its highest.
move on.
THE COURT: Counselor, is it possible that Lance had, on more than one occasion, an Olsen Twin sandwich?
MR. WEBER: Thank you, Judge. I’ve had a few moments to reflect on the Court’s hypothetical, and I think my client’s answer to that would be, “That’s what I love about these high school girls, man. I get older, they stay the same age.”
I actually feel really bad for her because she can’t say what she must want badly to say. She got rich off the NDA she signed as part of the divorce, but it won’t hold up in court – she’ll have to say it, and not remembering won’t be an option. It would be the best of both worlds – getting the money and the peace of mind, after putting up with that tyrant like that for as long as she did.
I know for a fact Kristin gets 80% of twatever LAsshole fakes…it was in the NDA…
“Out of curiosity, does anyone know how Lance justifies accepting a multi-million dollar payment from his own foundation for the ownership rights of the Livestrong brand?”
I mean if this is true, how do you defend this? Dude is incredibly rich already, but he has to take more bucks from his own charity. If its not true, this is pretty careless accusation.
I like the reference to Caribbean ball players with phony foundations. More investigative reporters need to get on the prevalent charity scams out there.
Lastly, I don’t think 1999 onwards was the EPO era. I would say maybe 1990 (but I’ve heard earlier) to 2000. At least they developed a test for the Sydney Olympics, and that must’ve curtailed some use after 2000. Probably explains the need for transfusions (ie Operation Puerto).
You don’t know pigshit for a fact. The only people who know anything for ”a fact” are those directly involved and you are neither lance nor kristin. Nor are you one of their lawyers. If ou are then you suck at your job. In any case you sound like a total jackass positing such nonsensical garbage as fact. Frickin dbag
all u wannabeeracers couldn’t stay in la’s slipstream!
The $2MM was included on his Form 990 in either last year or the year before – mysteriously, those recent filing have disappeared.
http://tfcny.fdncenter.org/990s/990search/esearch.php
Where are the last two years filings?
It was explicitly stated in the year’s expenses as “payment to Lance Armstrong for rights to the Livestrong brand” or something like that.
No joke.
cant stop wont stop…
bad bad bad boy, ya make me feel so good!!!
Is super helpful, and TOTALLY legit. Here is evidence almost as compelling as yours that Amrstrong has wronged us, wronged us all!
http://thingsididlastnight.com/
IF all the $$ stuff is in public realm, then it is up to the public to find out and then support the charity. I look up charities before I give, I don’t want to pay for stuff that is not helping. So if it is public, LA is not faking anyone out, so it is not a slimy thing, just greedy.
How much you wanna bet that the journalist who starts writing about this won’t be an American cycling journalist? They don’t have the courage and/or integrity to do so.
No wonder the New York Daily News has been on it.
Shame on the pathetic “journalists” who cover the sport in this country.
WTF, who cares about this crap besides cycling conspiracy theory net twits. Get an F’ing life dudes. This story doesn’t mean squat in the big picture of life.
Good thing you’re not following the story by reading up on it then, right?
I am tired of reading this debate … Greg’s a good man. There was no reason to try and destroy him. Maybe it is important to stop debating who is better and start thinking of all of the hurt this battle is causing.
My life was made and destroyed by the world of pro biking and I am moving on to things that are positive in my furture. Let this go and focus on the good stuff. We’re getting old and watching our children and friends deal with real problems… Let go.
the lot of you. Simple fact – LeMond and the rest of you asshats need to take responsibility for your own actions and stop blaming everyone but yourself for your inadequacies. Serial litigation of family, friends, business partners is a sad measure of this once great champ. The regurgitated bullshit is old and stinking up the place.
I agree Eurogrump. Armstrong seems to be always suing a former friend, business partner or journalist that dares question his obvious doping.
Armstrong needs to focus more on dating women who look like his mother and less time suing people
2 dopes from diff genres…muscular gear grinders, to blood boosted high rpm dancers…they both like to party…