The Lance Armstrong saga continues to provide many
lessons for the compliance practitioner. A recent article on ESPN.com, entitled
calls for amnesty program", reported that Armstrong has come out in
favor of those who openly speak about the doping culture of cycling, of course
most notably him. The article stated "Now that doping has become such a big
problem, Armstrong said a truth and reconciliation program is the "only way" to
rid cycling of performance-enhancing drugs, and the sport's governing body
should have no role in the process." In an interview given to Cyclingnews, it
was reported that Armstrong said that the "best way forward is a truth and
reconciliation process offering amnesty to riders and officials who detail
doping in the sport."
When asked which anti-doping agency should give this amnesty
and which one should take such testimony Armstrong answered that "the program
should be run by the World Anti-Doping Agency and not the U.S. Anti-Doping
Agency (USADA), the body that produced a scathing report detailing systematic
doping by Armstrong and his teams. The USADA report led to Armstrong being
stripped of his seven Tour titles and banned from elite sport for life." Not
too surprising that Armstrong does not want to get anywhere near USADA given
the report they released on him last summer. Armstrong stated that complete
amnesty must be given "otherwise no one will show up." Any chance that 'no one'
he refers to would be himself?
While Armstrong's idea of a 'Truth and Reconciliation'
program may seem, well shall we say, a tad self-serving, the use of a suspended
or lessened sentence has been successfully used to elicit testimony in the
cycling world.According to the New
York Times, USADA had "the ability to offer other cyclists reduced
suspensions if they provided information about Armstrong's doping. Similar to
how prosecutors try to persuade lower-level drug dealers to share information
about their superiors, the anti-doping agency sat down one by one with cyclists
from Armstrong's teams. Ultimately, 11 agreed to cooperate." So I guess people
will show up if you offer them some type of amnesty, just not the top banana.
What is the compliance angle to amnesty programs? Siemens
used an amnesty program to help it investigate its worldwide bribery scheme. In
November 2007, Siemens began an amnesty program relating to possible violations
of anti-public-corruption laws in order to expedite the independent
investigation and facilitate clarification. According to an article in the FCPA
Blog, entitled "Siemens'
Employees Come In From The Cold", Siemens began this amnesty program because
its "internal investigation reportedly had stalled because of stonewalling by
managers in various countries."
In the first three months 66 employees came forward in
connection with the amnesty program. In addition, a large number of employees
received information about the program. "The amnesty program has been very
successful" Peter Y. Solmssen, member of the Managing Board and General Counsel
of Siemens AG said. He went on to say "We're pleased that so many employees
have made use of the program and are thereby expediting clarification." By
mid-January, 2008, Siemens' counsel, Debevoise & Plimpton, said that
"[s]ince November 28, 2007, we have obtained significant new information and
developed very substantial leads from participants in Siemens' amnesty program,
as well as other sources, regarding topics relevant to our investigation."
Siemens itself said that information provided by the employees who 'came in
from the cold' through this amnesty program gave it new leads to pursue in its
internal investigation. At the end of the day, the Department of Justice (DOJ)
lauded Siemens amnesty program, which it characterized as "innovative" in
helping to further Siemens internal investigation.
Further, The Wall Street Journal (WSJ) reported in March
2008, in an article entitled "Siemens
Amnesty Plan Assists Bribery Probe", that the amnesty program "was
offered to all employees except 300 of Siemens's top executives and expired at
the end of February , prompted about 110 employees to offer information
about alleged wrongdoing." Under the amnesty program, the company did not make
claims for damages or unilaterally terminate employee relationships. However,
Siemens reserved the right to impose lesser disciplinary measures.
So what about Armstrong and his 'Truth and
Reconciliation' idea? In the ESPN.com article, he intones that he is really the
victim here. First of all, he feels that he is really the fall guy for the
sport of cycling, because you know, everybody was doing it. He just did it
better. He also said it was unfair that those who testified against him had
received "minor off-seasons sanctions versus the death penalty" for himself. He
was quoted as saying, "What is relevant is that everyone is treated equally and
fairly. We all made the mess, let's all fix the mess, and let's all be punished
equally." That certainly sounds like someone who is repentant, doesn't it?
Visit the FCPA Compliance and Ethics Blog,
hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and
other forms of risk management for a worldwide energy practice, tax issues
faced by multi-national US companies, insurance coverage issues and protection
of trade secrets.
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