The Explainer: ” … of being fools, etc.”

Dear Explainer,
Thank you for your column on Paul Kimmage’s legal troubles last week. I went ahead and donated $100 to his defense fund mostly (and I think I am quoting something you once said) “because I f’in’ hate bullies.”

Anyway I was wondering if you could go into a little more detail about what Mr. Kimmage might be facing in this case and what were the actual statements he made that caused him to be sued.

I also noticed you argued that the fact that The Sunday Times and L’Equipe weren’t being sued was an indication that the UCI, Hein Verbruggen and Pat McQuaid were using the law suit to send a signal to all critics. In one of the links you provided, though, Verbruggen is quoted as saying that “No it’s him. He’s said it. You don’t sue the paper.”

Is Verbruggen right? That doesn’t make sense.
– Amanda

Dear Amanda,
First off, I want to thank you for helping out with what is rapidly becoming a referendum on the UCI’s leadership as much as it is a defense fund.

As I post this, the Paul Kimmage Defense Fund is now up to $43,730.49 and growing. That is an incredible show of support from 1369 donors and the news is even better than that.

Several of us have been exchanging emails with Mr. Kimmage regarding the case and it appears that there may be Swiss attorneys willing to take this thing on pro bono (that’s lawyer talk for “free”). Of course, that shouldn’t dissuade you or others from continuing to donate, since there will be significant costs involved and losing this case could prove to be rather expensive, too. I’ll touch on those topics later.

A significant show of support

Last weekend, Kimmage’s former Sunday Times colleague, David Walsh, was in Missoula, Montana, interviewing Tyler Hamilton, who has, since his “60 Minutes” appearance in May of 2011, been quite open about doping practices on the U.S. Postal team. Of course, he’s gone into even more detail since the publication of his book “The Secret Race,” which he produced with Dan Coyle.

The Walsh interview was notable for a number of reasons, since Hamilton and he weren’t exactly on speaking terms after Walsh wrote some scathing columns about him after his 2004 positive for homologous blood doping. But the two men sat down in Montana and had a long conversation, which Walsh wrote about in last week’s Sunday Times.

Perhaps one of the most touching parts of the article came at the end, when Hamilton reflected on a career that was largely highlighted by doping.

“You know how I’ve still got every bit of memorabilia from my career, tons of stuff from the Tours and classics; bikes, jerseys, trophies, race numbers, everything. It fills an entire room,” he told Walsh. “I don’t want any of it and have been thinking what to do with it. I’m going to auction it online and donate the proceeds to anti-doping. Do you think that would be okay?”

Do you think that would be okay? Yeah, I do.

The two men had coffee on the Sunday morning after publication of that story and Hamilton decided that he will donate the proceeds of such a sale to Kimmage’s defense fund. If and when that happens, I will certainly let you know here and I am sure the guys over at NYVeloCity.com will, too.

Of being fools, etc.

So, now to the case. The complaint, filed in the Est Vaudois District Court in Vevey, Switzerland, involves charges levied by three plaintiffs: The UCI, former UCI president Hein Verbruggen and current UCI president Pat McQuaid.

The three plaintiffs are claiming that Kimmage made statements against their reputation and honor and are therefore pursuing a civil complaint under Article 28 and 28a of the Swiss Civil Code:

Any person whose personality rights are unlawfully infringed may apply to the court for protection against all those causing the infringement.

The litigants are lumping the UCI into Article 28’s definition of “any person.” (Apparently, International Governing Bodies are people, my friend.)

Swiss Civil Code broadly protects the person against the affronts to the rights of life, limb, body, health, reputation, privacy and the right to personal liberty. Those rights are specifically enumerated in the both in Switzerland’s Federal Constitution and Swiss case law shows that they have been expanded to include those rights outlined in the European Convention for the Protection of Human Rights Fundamental Freedoms.

Article 28 is a remarkably broad provision that is used in civil libel and slander actions. (Interestingly, that same section of Swiss law is also often used by bank customers who believe that their rights to secrecy have been violated.)

In this case, the plaintiffs note that the alleged violation involves Kimmage’s “violation of their social rights and in particular of their reputation – both intrinsic (which denotes the sense of their own worth) and extrinsic (this refers to the qualities that are necessary for a person to be respected in his social environment).”

The complaint points to a number of instances in which Kimmage either questioned – or allowed and encouraged others (mostly Floyd Landis) to question – the plaintiffs’ integrity, “causing them, at the very least, annoyance … and, therefore, moral prejudice.”

The complaint begins by noting that since 1989 Kimmage “has been writing a great deal about cycling in general and its various stakeholders of all kinds … often in negative terms.”

Specifically, the complaint points to Kimmage’s 2010 interview with Landis, in which the rider “made a number of comments which cast aspersions on the Claimants’ honour,” including accusations that the plaintiffs’ did note care “about the rules, of pulling strings, of being corrupt, of not genuinely wishing to establish discipline in cycling, of having, by their behavior, been behind his decision to resort to doping, of ‘loading the dice,’ of being fools, etc.”

The complaint goes on to say that “despite the fact that Floyd Landis’ remarks cast doubt on the honour of certain persons, Paul Kimmage did not hesitate to publish his interview with him in the Sunday Times and on the Internet.”

Did not hesitate to publish

Take a look at that key phrase, “did not hesitate to publish.” The plaintiffs are following a traditional strategy in that they are going after Kimmage for repeating what they assert are false statements by Landis by publishing them in the Sunday Times and, in their entirety, on NYVelocity.com.

Verbruggen, as you noted, said that he didn’t intend to sue the Sunday Times or L’Equipe because “you don’t sue the paper.” He’s not entirely correct there and there exists a long history of cases in which newspapers, radio and television stations and now websites have been sued for publishing the defamatory statements of others which they knew – or should have known – to be false.

Indeed, as I mentioned last week, The Sunday Times itself was sued by Lance Armstrong following the publication of translated passages from David Walsh’s book “LA Confidential” in 2004.

In their complaint, however, the plaintiffs point to the Times inclusion of a disclaimer – “The opinions put forward are those of their authors only – as the apparent justification for not including the newspaper in the suit.

Apparently, while nervous attorneys don’t always believe the disclaimer will prevent an aggressive plaintiff from pursuing action, Verbruggen seems to regard it as a magic wand, once passed over something he perceives as libelous will protect all but the original speaker from liability.

Maybe that’s why the good folks over at NYVeloCity.com weren’t named in this thing either. Andy Shen wisely included “We’d like to thank Kimmage and Landis for speaking freely, and note that the opinions within are strictly theirs” on top of a complete transcript of Kimmage’s conversations with Landis in January of 2011.

Later that year, however, L’Equipe included no such disclaimer in its publication of Philippe Brunel’s interview with Kimmage at the 2011 Tour de France.

In his interview Kimmage expressed anger and frustration “because doping was tolerated by the riders’ entourage, by the organizers, and by the UCI, which, as everyone knew, concealed the tests. That is what annoys me. The UCI is never responsible for anything! But everything would be put right if there were honest people at the head of cycling ….”

So why sue Kimmage, in part at least, for things he merely repeated in a way that a newspaper or website might? Again, as I said last week, I suspect that two of the three publishers who could have been named as defendants have deep pockets. If the Times and L’Equipe were sued, they would show up with a team of lawyers and with resources that could potentially overwhelm the otherside.

Add to that the fact that Rupert Murdoch, who owns the Times, is also the sponsor of one of cycling’s biggest teams, SKY, and that L’Equipe is part of a much larger enterprise that also runs the Tour de France and one might sense suing such folks might be impolitic at best.

But Kimmage has no such protection. He’s an easy target who, until last week at least, was himself overwhelmed at the thought of fighting a lawsuit in Swiss courts. The suit is largely tailored to send a message and picking an individual, rather than a corporate entity, is a much easier way to transmit that message.

What are they looking for?

The three plaintiffs are specifically seeking damages of 24,000 Swiss francs ($25,000 U.S.), which they promise will be donated to “anti-doping efforts,” should they win. If he loses, that means Kimmage may join Lance Armstrong in making a substantial “donation” to the UCI’s anti-doping fund.

They are also seeking an injunction preventing any further statements by Kimmage “claiming that the International Cycling Union, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen knowingly tolerated doping, concealed tests, are dishonest, do not behave in a responsible manner, do not apply the same rules to everyone, did not get rid of Lance Armstrong after he reportedly produced a predated certificate, or from making any other allegation of the same kind and from allowing third parties, including Floyd Landis, to make comments which attack the honour and the personality of the International Cycling Union, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen.”

If they win the case, the plaintiffs are also asking the Court to order Kimmage to publish, at his own expense, the Court’s findings in The Sunday Times of London, L’Equipe, Geneva’s newspaper Le Temps and (get this) on NYVeloCity.com. That’s a fairly expensive proposition (although I am assuming he’ll get a “bro’ deal” over at NYVeloCity).

They also ask that Kimmage be charged with criminal contempt of court under Article 292 of the Swiss Penal Code.

Realistically, the civil penalties and the criminal contempt charges will be difficult to enforce outside of Swiss borders. Still, the bigger consequence is that the three plaintiffs would succeed in delivering a message to virtually anyone who levels a charge against the UCI or its leaders.

Mounting a defense

Like I said, until last week, Kimmage was pretty disheartened. The support that has been shown since the Paul Kimmage Defense Fund was established is overwhelming. Kimmage said this past week has been “incredible.”

Kimmage said he’ll now be able to afford to bring in witnesses and present expert testimony to fend off the plaintiffs charges that he made allegations knowing – or having should have known – they were untrue.

The standard is a subtle one. Truth is, in fact, a defense against the charges leveled by Verbruggen, McQuaid and that other plaintiff, Mr. UCI. But Kimmage doesn’t have to actually prove what he said was true. What he has to show is that he had a reasonable basis for believing those allegations were true. He has to show that he did not knowingly make a false statement and he has to show that he had reason to believe that what Landis and others said about the UCI and its leadership was true.

Look at the evidence out there. We all know about the miraculous appearance of a back-dated prescription for butt cream that made Lance Armstrong’s 1999 positive for corticosteroids disappear. That alone would serve as a reasonable basis for Kimmage’s claim that the UCI held out some kind of double standard for some athletes. Kimmage’s references to the alleged suppression of Armstrong’s positive test for EPO at the Tour de Suisse is based on statements from two of Armstrong’s former teammates – Landis and Hamilton.

Kimmage can also point to Armstrong’s “donations” to the UCI of $25,000 in 2002 and $100,000 in 2005 as the basis of at least the appearance of a conflict of interest.

While Kimmage is listed as the “defendant” in this suit, if he comes to court with sufficient resources to make his case, it may end up being the UCI and its leadership that are on trial. Kimmage stands more than a fighting chance of winning this thing. With your support, that chance is getting better every day. You should pat yourselves on the back.
– Charles
The Explainer is a weekly feature on Red Kite Prayer. 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. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

, , , , , , ,

6 comments

  1. Troutdreams

    This does appear to be “a referendum on the UCI’s leadership”, and although there doesn’t appear to be any basis for a counter suit, I wonder if this well funded defense could use the court date as an opportunity to prove some long standing allegations made against the UCI?

    Defending Landis’ claims would cover quite a few and Kimmage made some broad statements that would open the doors to provide evidence of just about any form of cronyism. It would be a lengthy investigation and the expenses would exceed the current fund balance. But if the case was seem as a referendum, more donations would likely flow in, along with some of the investigative work done by others who have already made this effort to uncover the alleged misdeeds of the UCI.

    What a turn of events that would be!

  2. Simon

    The idea of a referendum on the UCi’s leadership is great. Unfortunately, until yours and my national federations are forced to hold McQuaid and Verbruggen accountable – who’s listening? The UCI won’t be, and I doubt the only other people with the power to enforce a change – namely, the IOC – care.

    If you want to mount a campaign to get to get rid of these guys – get a racing licence and lobby your national body as a card-carrying member to vote for someone else.

  3. John in Miami

    Charles,

    What direction could this entire episode take (legally speaking) if Kimmage does prevail in court? Could a counter suit either against Verbruggen/McQuaid or the UCI be in order?

    To use your words… ” if he comes to court with sufficient resources to make his case, it may end up being the UCI and its leadership that are on trial”. Can Kimmage’s legal team force the UCI et. al. (Verbruggen and McQuaid) to release internal documentation that might be damning to the claims that the UCI has protected or black-balled riders or covered up positive results?

    Lastly, would it be a homerun if Hamilton and {especially} Landis appear as testimony for Kimmage?

  4. randomactsofcycling

    Thanks Charles.
    If the UCI wins, is the decision only enforceable in Switzerland? If so, won’t the UCI have to go after all the other critics because it will be a totally limp-wristed ‘message’?
    I’m not sure I follow: How can a Swiss verdict be enforced when Switzerland is not an EU member? (How can they make Kimmage publish an apology in a French Newspaper?) Won’t the critics just avoid going to Switzerland?
    My apologies, I know you are a U.S. based Attorney but the ramifications of this case intrigue me.

Leave a Reply

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>