Here’s the offending standfirst:Last month, a judge in London threw out the defence from The Sunday Times newspaper in a libel case brought by Schillings on behalf of Lance Armstrong. And now, in a separate case being fought in Texas but also involving allegations of performance-enchancing drug-taking, a Dallas district court judge has disqualified the French lawyer appointed by SCA Promotions in a case brought against the insurance firm by Armstrong and his team owner, Tailwind Sports. SCA should have paid Armstrong a $5m bonus for winning the 2004 Tour de France but it refused, citing an Irish journalists self-confessed "circumstantial" evidence of go-longer drug use by Armstrong.
Explanation: BikeBiz.com based the ‘throwing out the defence’ bit after reading an article about the subject in The Guardian on January 8th, an article referenced on the trade-only bulletin board of this site. However, The Guardian has been taken to task by News International’s legal department because the article has been removed and this statement put in its place:
An item in Duncan Mackay’s column about Lance Armstrong’s libel claim against The Sunday Times, its chief sports writer David Walsh and Alan English (Judge gives support to Armstrong, page 11, Sport, January 8) misreported a recent decision of the court.
This is the paragraph the News International legal department requested to go on BikeBiz.com:
An item entitled " Lance’s legal eagles are on a roll" on our web page on Tuesday 11 January, about Lance Armstrong’s libel claim against the Sunday Times, misreported the recent decision of the court. In fact, the Judge did not throw out the newspaper’s defence in its entirety; he struck out the qualified privilege defence and also a pleaded meaning that the article published by the Sunday Times meant no more than that there were some questions needing to be investigated. However the defence of justification (truth) remains and the litigation is ongoing. The Sunday Times is considering whether to seek permission to appeal against the Judge’s ruling.
A partial transcript of the judge’s decision will appear here soon.
The rest of today’s story can now continue:
Judge Adolph Canales disqualified French lawyer Thibault de Montbrial, an arbitrator appointed by SCA Promotions in a case brought against SCA by Armstrong and his team owner, Tailwind Sports. In 2004, SCA refused to pay $5m million of a $10m performance award Armstrong earned by winning six consecutive Tours de France.
SCA cited rumours of performance enhancement by Armstrong, despite exhaustive testing at the 2004 Tour and prompt payment of the remaining $5m of the performance award by two other insurers.
SCA insured $3m and $1.5m Armstrong performance awards in 2002 and 2003, respectively, and honored its obligation in both years.
Judge Canales agreed with Armstrong’s attorney Tim Herman that arbitrator Montbrial had a "clear and ongoing conflict of interest in the case" and that his appointment violated the provisions of American Arbitration Association rules which require that all arbitrators be "impartial and independent."
Montbrial represents David Walsh and Piere Ballester, authors of LA Confidentiel, in a libel and slander suit brought by Armstrong in France. Armstrong recently won a similar case against The Times newspaper in London.
Armstrong and Tailwind had asked Judge Canales to disqualify Montbrial.
Attorney Herman argued that SCA’s appointment of Montbrial "clearly demonstrated its bad faith in refusing to pay what it owes and made a mockery of the arbitration process." The order striking Montbrial agreed, finding that the evidence revealed "clear, present and ongoing conflict of interest" and that the appointment would "unduly prolong and hinder the efficient conduct of the arbitration proceeding."
SCA was given until February 1st to appoint a new arbitrator.
When SCA refused to pay its share of Armstrong’s 2004 performance award, Armstrong invoked the contract’s arbitration clause in early September. He confirmed that he had "furnished the Tour de France testing protocols and proof of compliance to SCA on August 16, 2004, and again in September shortly after SCA requested test results."
The arbitration process was originally to be conducted by three arbitrators, one selected by each party and the third selected by both parties together or by the court. Armstrong had appointed Ted Lyon, a former Senator ans Dallas lawyer with whom neither he nor his attorneys had any relationship. SCA then appointed Montbrial.
Tailwind purchased the insurance contract with SCA for $420,000 before the 2001 Tour de France, after Armstrong had already won the Tour twice consecutively. To earn the $5 million award under the contract in question, Armstrong had to win another four consecutive Tours, a feat which had never been accomplished, until last year’s Tour de France.