“Who am I? What am I doing here?”
─ Admiral James Stockdale
1992 vice presidential debate.
A really, really long ‘brief introduction’
Like Ross Perot’s running mate, I am not going to just assume that readers here at Red Kite Prayer know who the hell I might be, nor will I assume that they have the slightest clue as to what it is I am doing here. So, given that this is my first column on Red Kite Prayer, it’s probably a good time for a not-so-brief introduction. “Brevity” means something different in this 140-character, Twitter-constrained world, so for those used to that, I’ll probably go on a little long here.
What follows is a rambling history — and really, you can skip this part and get to this week’s question if you already know more than you want about this stuff. I won’t be offended. I promise.
My name is Charles Pelkey. I’m a somewhat cranky, opinionated (some say “clueless”), 53-year-old cyclist, cycling fan, journalist and attorney. In terms of history, I’ve been a cyclist and cycling fan longer (33 years) than a journalist (28 years) and the lawyer thing is a relatively recent phenomenon.
If you do recognize the name, it’s probably because you’ve stumbled across my work in VeloNews magazine or on VeloNews.com. I took that job in 1994, when the magazine’s then-owners, Inside Communications, made me an offer I couldn’t refuse, namely to leave a pretty cool job in the U.S. Senate to join a relatively small staff at a feisty cycling magazine that I had already long loved.
Back then, the company was run by an entity known as “the trio,” composed of three wonderful — and admittedly eccentric — characters: Felix Magowan, David Walls and John Wilcockson. Yeah! Fricken John Wilcockson! That was the same guy whose stories about the Tour de France and other great events on the calendar would cause me to race my friends to the local newsstand each month when the latest issue of Winning came out back in the `80s.
After considering the offer for two, maybe three microseconds, my wife, Diana, and I packed up our possessions and our 8-week-old son, Philip, and moved back west to Colorado. It really was the start of a beautiful relationship. We all worked as a team: reporters, editors, owners, ad staff, everyone actually worked. Management was a sideline for the bosses and they actually did hands-on work now and then.
My first job title at VeloNews was that of technical editor, which gave me the opportunity to work with my old friend Lennard Zinn. Being an old news reporter from way back, I also got the chance to stick my nose into things non-technical, covering some great races — including the grand tours — and the governance of the sport at the old USCF (now USA Cycling) and the UCI.
It was because of that background that my one-day visit to the 1998 Tour de France (I was coming home after covering the women’s Giro that year) was suddenly turned into a three-week assignment covering the exploding “Festina Scandal.” I loved it and Wilcockson and I quickly cobbled together a book on that year’s Tour, with John writing about the racing and me offering stories from the middle of a much bigger media scrum chasing the dopers.
My life as a “doping expert”
Over the years, I drifted away from the tech side toward race and news coverage, with a big emphasis on doping. I was eventually named news editor at VeloNews and then became the editor of VeloNews.com. All the while, my interest in the subject of doping, WADA, USADA and the World Anti-Doping Code took up more and more time.
It eventually turned into my primary focus and I would often offer commentary on other news outlets including NPR, the BBC, MSNBC, ESPN and CBS, to discuss the topic in whenever a new scandal broke. Somehow, along the way, I got the undeserved title of being something of “an expert” on the subject of doping, (a bit of irony that did not escape my old friends when I showed up at my 30th high school reunion after a morning appearance on MSNBC back in 2006).
In 2005, I actually “quit” VeloNews to take a job in my Wyoming stomping grounds. I never really left, though, serving as a contractor for VeloNews.com while editing a quarterly magazine. Yeah, a quarterly … it was a tad on the sleepy side. VeloNews hadn’t replaced me and I jumped back into my old job on the condition that I could do it remotely from Wyoming.
It worked … and worked well enough for me that I used the opportunity to attend law school in my “spare” time, starting in 2006. It was a decision largely driven by my interest in the legal complexities of all of the doping cases I was covering at the time. I graduated with a juris doctor in 2009. (Thank you, Tyler. Thank you, Floyd. And a special big anticipatory thank you to you, too, Lance.)
Meanwhile, in 2008, Inside Communications had been sold to an investment group, which put VeloNews and its associated enterprises under the umbrella of Competitor Group Inc. I continued working in my isolated little corner of the world until July of 2011, when two days after the Tour ended John Wilcockson and I were let go, due solely to economic reasons.
“You’re not being fired, you’re being laid off,” they assured me. That’s kinda like getting dumped by your girlfriend when she insists that “no, no, no, it’s not you, it’s me.”
CGI’s decision to let Wilcockson and me go following this year’s Tour was a business decision. I am not going to second guess that. It’s not my area of strength, I assure you. This is the 21st century and experienced journalists are being laid off all over the world these days.
My friend Sal Ruibal lost his long-running gig at USA Today a while back. This summer saw San Francisco Weekly boot out a bunch of old hands, including Matt Smith, whose cycling coverage has been phenomenal. Reporters at my old paper, the Casper Star-Tribune have had colleagues fired – errr, laid off – or their own salaries frozen or cut. Hell, the entire staff of Denver’s Rocky Mountain News found themselves on the unemployment line when the paper folded after a 150-year run. (Note to self: I bet you’re glad you didn’t get hired for that legal reporting gig you applied for at the Rocky back in 2004.) The Times of London recently fired — errrr, laid off — a big chunk of its sports staff, including former pro and anti-doping campaigner Paul Kimmage. It’s a reality of the profession these days.
Shit happens. It’s not personal. It’s strictly business.
Bottom line, I have nothing but good to say about my time at VeloNews. It was a bike geek’s dream job. I mean come on — I’ve had the chance to cover the Tour, the Giro, the Vuelta and a long list of races I only dreamed of seeing back in my racing days. I’ve probably been to Europe more than 40 times on their dime.
Many of those trips culminated in a bit of vacation time and a visit to my home town of Göppingen, in Germany, to visit my grandmother until she died in 2003 at the age of 97. I was there for that, working on assignment in nearby Stuttgart, which allowed me to spend time with her in her final days. I even got to take my then-10-year-old son, Philip, with me when I covered the Vuelta in 2004. It was a great job and I have no regrets.
Those 17 years at VeloNews gave me the opportunity to work with a host of amazing people, including Zinn, Wilcockson, and former editors Tim Johnson, John Rezell, Kip Mikler and Ben Delaney. I had some terrific bosses, including Magowan, Andy Pemberton, Greg Thomas and Ted Costantino. I’ve made a long list of great friends over the years, including racers like ‘crosser Tim Johnson, Tour winner Greg LeMond and his family, news sources (most of whom I have promised not to name), journalists at other publications, including Rupert Guinness, David Walsh, James Startt, Bonnie Ford, Tom Goldman, Stephen Farrand, brothers Alasdair and William Fotheringham, Sam Abt, the crew at NYVeloCity.com, Patrick Brady and far too many others to name here. Above all, I’ve developed friendships with a large collection of readers, many of whom I’ve gotten to know personally.
I am grateful that the company afforded me the opportunity to continue in my role as senior editor of VeloNews.com for the three years after they bought VeloNews in 2008. They did so despite having had very limited direct contact with me. It’s all good.
Following my layoff, I asked VeloNews.com editor Steve Frothingham — now at Bicycle Retailer — whether he’d be interested in at least continuing “The Explainer” column. He was and I produced five more for the site over the past few months. Steve then announced plans to leave and … well, I was beginning to feel like the kid who kept coming back to visit his high school after graduation. I didn’t feel like sticking around after Steve left. Maybe it was time to cut the ties and move on.
My hesitation was well-timed. Indeed, as I was crafting an email to Patrick Brady, my phone rang and he was calling to see if I would take him up on an earlier offer to run the column here. He’d match the price and frequency — twice a month — of what VN was offering me for my post-lay-off columns and we’d later see if we could expand the arrangement to include other work and news coverage in the future. I jumped at the chance. It’s one I really appreciate, Patrick. Thank you.
No. This is not a slam at Velo or VeloNews.com. They have a terrific crew, led by Neal Rogers, with Brian Holcombe, Caley Fretz and technical editor Nick Legan, working there these days. Several of my old colleagues, like Zinn, my partner in crime, Andrew Hood and that wonderfully cranky old bastard, my friend and older brother, Patrick O’Grady, are still regular contributors. The art work is something to behold, too, with world-class photographers Graham Watson and Casey Gibson regularly sending in shots from the road. I make a point of checking in to keep up on the work of the whole crew. I would hope that you might, too.
In addition to being “The Explainer,” and the doping guy, I spent a lot of time doing live, up-to-the-minute coverage of cycling’s biggest events for VeloNews.com. In recent years, the company wanted to scale those back a bit and I found myself only doing marquee races like the Giro and the Tour in 2011. Indeed, I was scheduled to meet with my bosses on July 27 for a meeting, which I hoped might include discussion of doing more of those, especially this year’s Vuelta. That meeting was canceled, but I did get a phone call that day … and it wasn’t exactly about the subject I had hoped to discuss.
So I started LiveUpdateGuy.com and offered coverage of this year’s Vuelta, largely out of habit and because a lot of those “LUG” readers had become friends over the years. I will expect to continue those updates during the 2012 season and those will be offered on a direct feed to RedKitePrayer.com as well.
Those friends and readers
When I say that many of those readers became friends, that’s something of an understatement.
Purely coincident with my layoff, I found out that I had cancer this summer, too. It was breast cancer of all things. Breast cancer? I’m a guy! Sure, I’m a sensitive New Age sort, who had long been sympathetic with the plight of women, but I thought all I needed to do to prove that was to represent women in divorce and domestic violence cases and raise a feisty and assertive daughter (which 11-year-old Annika truly is). But nooooo … I had to get freakin’ breast cancer to underscore my empathy. Sheeesh.
Anyway, in this modern economy combining layoffs and employer-supplied health insurance, the confluence of events didn’t escape the eye of Andy Shen and Dan Schmalz over at NYVeloCity. When I was in the hospital for the first of three surgeries, they slapped up a “Chip-in” page and published a request for readers to throw in a few bucks to help meet my medical costs. I was completely floored when I got home and found my PayPal account had suddenly exploded with more than 10 grand in contributions from readers and friends all over the world. It was embarrassing, but it was beautiful, too.
I cannot express how that felt. Sure, the money has been a blessing. It has helped cover COBRA and co-pays and uninsured expenses at a remarkably tough time. But more importantly, it went a long, long way to offset the inevitable feeling of utter worthlessness one invariably encounters when being let go by a longtime employer. I will be forever grateful for that.
Anyway, I am now more than halfway through chemo, which really does suck. I am usually pretty tired (for you doping geeks, my hematocrit has dropped from its normal 48 to 31 this week) and “chemo brain” really does make writing and thinking a little harder than usual. But the prognosis is good. I should be through all of this crap by the end of January.
Okay, okay enough. This went way too long. I apologize.
This week’s question: What if I already signed the waiver?
So, here we are at Red Kite Prayer. Longtime readers know the drill. You offer up a question. I then pretend to know something about the subject and offer up an answer. You can send those questions directly to me at Charles@Pelkey.com. So let’s take on this week’s question.
I read with interest your advice to “Quinn” about signing waivers after an accident.
For me that advice came a little too late. I was a bike messenger in Washington, D.C. and doing pretty well … until I was hit by a car in June of 2010. The injuries were pretty damn serious and I spent more than two weeks in the hospital. While I was laid up, an insurance adjuster came and visited me and offered “a fair settlement” that came close to six figures. At the time, it sounded pretty good, so I signed.
Well, to make a long story short, that close-to-six-figure-settlement had already probably been eaten up in medical bills. I didn’t have insurance. I lost my job and now I am facing collection actions from the hospital, the doctors and the radiology department (did you know that a CAT scan can cost you more than $4000?).
I used up about half of the settlement paying hospital bills, but then I stopped when I realized I was running out of money and had no source of income. I am about to be sued for amounts totaling between $50,000 and $60,000. I have no job and none of this was my fault.
What the hell do I do now?
Man, oh man. This is a tough one. You might have some options, though, and I really do have to retreat to my usual default advice and suggest you visit with an attorney.
It’s funny how we attorneys always seem to offer that bit of valuable advice, isn’t it? Seriously, though, this time you need help from someone who can guide you through the myriad legal issues raised in your case. What follows is just general advice, designed to point you in the right direction. Keep in mind the usual disclaimer: I am not offering you specific legal advice and you and I are not establishing an attorney/client relationship here. Okay?
First off, I do know that lawyers ain’t cheap. As John Burman, my old torts professor, used to say, “If I needed a lawyer, I couldn’t afford to hire myself.” Indeed, even at my relatively low hourly rate, I sure as heck couldn’t afford to hire me at this point in my life.
I am assuming that you are in a pretty tight situation right now. You may qualify for help from low- or no-cost legal services offered by groups like the Legal Aid Society of the District of Columbia. Of course, you may also be in something of a Catch-22, since you hinted at the fact that you have quite a bit of money from the settlement still in the bank. No matter what, though, you should check with those guys first.
Assuming for a moment that you don’t qualify for help from Legal Aid or other similar groups, don’t give up. Look for a private attorney who might — after hearing your story — consider taking on the case on a contingency-fee basis. There are a number of questions worth considering here.
Contractor or employee?
First, you need to see precisely what your status was with your employer at the time. You might have been eligible for workers’ compensation for the injuries you sustained if you were hit while making a delivery. Even if you were working when you got hit, you may fall into that awful employment status of having been a “contractor.”
Don’t give up right away if your employer calls you a contractor. It’s not entirely up to them to decide. The U.S. Supreme Court has, over the course of several employment cases, ruled that there is no single, easy rule to apply in defining who is a contractor and who qualifies as an employee.
There are a number of factors to be considered when reviewing your relationship with the owner of the courier company. Those include:
- The skill required to perform your job;
- The source of the instrumentalities and tools (I have to assume that was your bike you were on, right?);
- The location of the work;
- The duration of the relationship between the parties;
- Whether your boss had the right to assign additional projects to you;
- The extent of your discretion over when and how long to work;
- The method of payment;
- Your role in hiring and paying assistants;
- Whether the work is part of the regular business of your boss;
- Whether your boss is in business, or whether you were part of a cooperative of bike messengers;
- Were you eligible for any benefits?
- What was your tax status regarding money you earned there?
Basically, it comes down to the degree of control your employer had over you and how much “independence” you had in that relationship. If you look like an employee, have a schedule like an employee and are treated like an employee … well, you might just be an employee.
If you turn out to be an employee, well, well, well, that opens up a whole can of worms — along with opportunities for you and your attorney. Not only might you be eligible for workers’ compensation, you might have a cause of action related to your loss of a job and, of course, your medical bills could be covered in their entirety. Again, you need to speak with a lawyer.
What about that waiver?
I admit I cringed when you said that probably-friendly insurance adjuster showed up at the hospital to get you to sign a waiver. Sure, we can all look at what you did and say you made a huge mistake signing it when you did, but there could be other questions at issue here.
Mr. Adjuster Dude got you to sign a waiver, which is a contract with provisions that include your promise not to sue in exchange for a one-time cash payment. In retrospect it’s deplorable, given that you really had no idea what your long-term costs might have been.
Again, it’s something that you need to discuss with an attorney. Some contracts can be negated, depending on the circumstances under which they were signed. Your lawyer might be able to re-open the question, based on the adjuster’s timing and behavior when you signed.
Your lawyer might ask about the extent of your injuries and your physical and mental condition when you signed that waiver. Did you suffer a head injury? Were you on pain medication when you signed the waiver?
All of these issues need to be explored with an attorney. Show up prepared. Take some time to think of any questions or issues you want to discuss and search for any and all documents that might apply to your case. Do yourself and your lawyer a big favor and sort through those documents and organize them in advance of your meeting. That way, you can whip out relevant documents — and nothing else — when a question comes up.
By that I mean put your medical bills in one folder. Get your medical records from the hospital and bring those, too. Put any and all communications with the insurance company in another. Place all of your employment, tax and payroll records in another.
Good luck and let me know how this all turns out. Not only am I now really interested, this should make for an interesting column in the future.
All the best,
The Explainer is now a regular feature on RedKitePrayer.com. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com.