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May 21, 2011 2:03 PM

The Score: Patton Boggs' Luskin Takes On Armstrong Accusers

Posted by Brian Baxter

Seven-time Tour de France winner Lance Armstrong has added another heavyweight to his legal squad in his fight against an ongoing federal drug investigation.

Politico reported on Friday that Amstrong has hired high-powered Patton Boggs litigation partner Robert Luskin to defend him against accusations of performance-enhancing drug use and blood doping. Luskin's name surfaced in a letter sent to CBS news program 60 Minutes, which plans to air a report this Sunday about the investigation of Armstrong and former members of the U.S. Postal Service-sponsored team and the use of banned substances in professional cycling. Armstrong's lawyers are questioning the reliability of several former teammates interviewed by 60 Minutes for the report, according to Politico.

One of those teammates, former Olympic gold medal winner Tyler Hamilton, turned his medal in to the U.S. Anti-Doping Agency last week. As several news outlets have reported in recent days, Hamilton discusses his past drug use in an on-camera interview with 60 Minutes and names other top cyclists, including Armstrong, who he claims have used performance enhancing drugs.

Luskin has been representing Armstrong since the start of the government's investigation a year ago, he tells us. But, he says, he hasn't "raised his head" as counsel to Armstrong until now.

The veteran D.C. litigator is known for representing former Bush administration bigwig Karl Rove during the Valerie Plame investigation and for being the lawyer accused Ponzi schemer R. Allen Stanford wanted to hire--but couldn't afford.

Federal prosecutors have asked their counterparts in France--host of cycling's signature race the Tour de France--for help in assembling potential evidence of drug use by Armstrong and several of his former teammates, The Associated Press recently reported. (French authorities have long investigated Armstrong and his U.S. Postal team, which received almost $32 million in federal funds between 2001 and 2004.)

"I think what they're going to find in France is French fries and no evidence against Lance," Luskin says of the attempt to obtain evidence from abroad. "There's nothing in France that hasn't been there for 10 years, and there have been no allegations made there that have been subsequently discredited."

Saying Armstrong's former teammates are unreliable sources because they're speaking out of self interest, Luskin calls the 60 Minutes report "atrocious and unfortunate."

Luskin says that after surviving prostate cancer nine years ago, he's honored to defend Armstrong, who he calls "the most successfully tested athlete in the history of sports." Armstrong's own recovery from testicular cancer has long been a symbol for cancer survivors, who wear their LIVESTRONG wristbands to raise money for cancer research. Luskin says that several other members of Armstrong's legal team have also successfully battled cancer.

The cycling star's legal team got a boost last August when it added San Diego lawyer-turned-media-spinmeister Mark Fabiani, known as the "master of disaster" for his work during the Clinton administration, to his legal team. Bryan Daly, the cochair of the white-collar defense practice at Sheppard Mullin Richter & Hampton, confirmed to The Am Law Daily on Friday that he remains a member of Armstrong's legal all-stars, along with the cycling star's longtime lawyers Sean Breen and Tim Herman from Austin's HowryBreen. As noted by Politico, the team has launched its own Web site called facts4lance.com, which seeks to rebut the allegations levied by some of Armstrong's accusers.

Many of Armstrong's teammates have retained their own counsel. Former U.S. Postal cyclist George Hincapie has turned to lawyers from Wachtell, Lipton, Rosen & Katz. William "Chris" Manderson, a former Paul, Hastings, Janofsky & Walker associate who left the firm last year to start Newport Beach, Calif.-based Manderson, Schafer & McKinlay, is representing Hamilton.

Another ex-teammate, Floyd Landis, admitted last year to using performance-enhancing drugs and subsequently hired a team of lawyers from Wilson Sonsini Goodrich & Rosati that had previously been engaged in litigation with Armstrong in a separate matter on behalf of former cyclist Greg LeMond. Earlier this year Swiss lawyers for the Aigle, Switzerland-based International Cycling Union sought to have Landis retract allegations that the sport's governing body was corrupt.

Judge Orders Possible Cy Pres Award for Retired NFL Players; Amici Briefs Filed in Lockout Case

The union formerly known as the National Football League Players Association settled a civil dispute with a class of retired players for $26 million two years ago. The case, which settled after a jury returned a pro-retiree verdict of $28 million in November 2008, involved the union's failure to split licensing fees with retirees over their likenesses in video games and other merchandise.

Last July, several of the retired players left out of that settlement sued their lawyers at Manatt, Phelps & Phillips and McKool Smith for malpractice. As previously reported here, U.S. district court judge William Alsup in San Francisco dismissed the suit in December, as disbursements continued to be made to the class of NFL retirees, many of whom suffer from debilitating diseases and injuries incurred during their playing days.

On Tuesday, Alsup issued a three-page order on what to do with the remaining $165,430.27 in the settlement pot, as some checks have yet to be cashed and others were returned. Alsup states in his order that some outstanding claims--such as that of retired defensive end Jon Dumbauld--be paid in full, while other funds be given to the estates for deceased players.

A point on the last page of Alsup's order caught our attention. Alsup states that after all other disbursements are made, any remaining funds should be donated to the Center for the Study of Traumatic Encephalopathy at Boston University's medical school. The center recently determined that former Chicago Bear defensive back Dave Duerson, who committed suicide in February, had "moderately advanced" brain damage from repeated blows to the head.

L. Peter Parcher, a special senior partner at Manatt who represented the retired players in the settlement with the union, believes Alsup's call for a cy pres award--used for funds left over from class action settlements--is a great idea. Cy pres awards have not been without criticism, sibling publication The National Law Journal examined the practice a few years ago, but Parcher believes it's appropriate given the much-publicized plight of many retired NFL players and the research conducted by BU on traumatic brain injuries.

Howard Alperin, a partner with Los Angeles firm Blecher & Collins, is representing a group of retired players suing Manatt and McKool that have been cut out of the settlement. Alperin says his firm is appealing Alsup's decision dismissing the malpractice suit. His clients filed a new complaint last month in federal court in Los Angeles against the union, which decertified in March. (Latham & Watkins, the firm that once employed NFLPA executive director DeMaurice Smith, is representing the union in that case.)

Meanwhile, the NFL's ongoing labor battle drags on. On Friday, three professional players' unions for Major League Baseball, the National Basketball Association, and the National Hockey League filed a 32-page amicus brief with the U.S. Court of Appeals for the Eighth Circuit siding with their NFL counterparts in seeking to have the league's two-month long lockout lifted.

Earlier in the week, a three-judge Eighth Circuit panel delivered a 2-1 decision allowing the NFL's lockout of players to remain in place until an appeal is heard next month and while the league and players haggle over a new collective bargaining agreement. With another round of mediation talks ending this week without an agreement, players must now rely on another piece of litigation against ownership: the so-called "lockout insurance" case involving league television revenue where a federal judge could grant players billions in damages.

Latham partner Thomas Heiden and longtime NFLPA outside counsel Jeffrey Kessler from Dewey & LeBoeuf are representing players in that case, in which a hearing was held a week ago before U.S. district court judge David Doty in Minneapolis. A damages decision, which has yet to be delivered, could swing the lockout in yet another direction.

But until then the legal attention will focus on the upcoming June 3 hearing before the Eighth Circuit on the legality of the league's lockout. Many observers--click here and here for more analysis--believe that the more conservative appellate court telegraphed that it will eventually rule in favor of the league when delivering its ruling upholding a stay of the lockout.

The NFL also has its supporters elsewhere. The U.S. Chamber of Commerce, represented by Paul Hastings appellate cochair Stephen Kinnaird and labor and employment partners Zachary Fasman and Neal Mollen, filed a 29-page amicus brief on May 16 in support of the league's lockout. Skadden, Arps, Slate, Meagher & Flom antitrust leader Shepard Goldfein and litigation and antitrust partner James Keyte are representing longtime firm client the NHL in its own 31-page amicus brief supporting the NFL.

The counsel of record to the pro players' unions are Donald Aubry and Steven Fehr from Kansas City, Mo.-based Jolley, Walsh, Hurley, Raisher & Aubry. Fehr is the brother of longtime MLBPA executive director Donald Fehr, who in December became head of the NHLPA. NBPA executive director G. William Hunter, an ex-federal prosecutor, and current MLBPA head Michael Weiner, his union's former general counsel, also appear on the amicus brief.

Another 33-page amicus brief was filed by a nonprofit group called the Sports Fans Coalition, which argues that ending the league's labor lockout is in the best interests of consumers, according to The AP. Daniel Shulman, a litigation and antitrust partner at Minneapolis-based Gray Plant Mooty, and Penn State Dickinson School of Law professor Stephen Ross are representing the group, according to court papers.

Around the Horn

-- The NHL denied on Friday a report that the Atlanta Thrashers would be sold to an ownership group in Winnipeg. Skadden's Goldfein, who frequently advises the NHL on team ownership issues, declined to comment on the Thrashers or any lawyers involved in the matter. But we know of one firm that won't be involved in any potential deal. The Thrashers's ownership group hit King & Spalding, which this week advised on the $680 million sale of the Houston Astros, with a malpractice suit earlier this year over the firm's alleged role in litigation that affected a sales agreement for the franchise.

-- The back-and-forth between Baker & Hostetler partner Irving R\Picard, court-appointed trustee for the victims of Bernard L. Madoff Investment Securities, and the owners of the New York Mets continued this week. Picard accused Mets owners Fred Wilpon and Saul Katz of refusing to return $300 million in "other people's money" they received from their Madoff investments, Bloomberg reports. Picard is battling with lawyers representing the Mets from Davis Polk & Wardwell in trying to get his $1 billion clawback suit against the team and its owners to proceed.

-- Back in April, The Am Law Daily reported on three firms--Bingham McCutchen, Katten Muchin Rosenman, and Honigman Miller Schwartz and Cohn--that advised on the sale of the Detroit Pistons to private equity billionaire Tom Gores. Now it's emerged that the estate of former owner William Davidson will retain a small stake in the team, which has been borrowing money to pay operating expenses until Gores takes over. Katten sports law cochair Adam Klein told The Detroit News that the Pistons are in "good hands" with Gores, who will assume any incurred debt by the team.

 

Contact Brian Baxter at bbaxter@alm.com.

 

Correction, 5/22/2011 - The original post misidentified the number of times Lance Armstrong has won the Tour De France; he set a record, winning seven times consecutively.

 

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I don't know if he did or didn't, but there's been a long time complaint that Lance must have doped because of his success. That point is probably made by people who don't understand being a cancer survivor. That I do know. If you start with an elite athlete and increase his pain threshold 50% you will have an unheard of advantage over mere elite athletes. You don't want to have cancer, but once you beat it, pain, in ordinary activities, is simply not a factor.

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