The Explainer: Why SLAPPing Paul Kimmage won’t work

Truth is a defense … and makes for a good read, too.

Dear Explainer,
The UCI’s dynamic duo – Hein Verbruggen and Pat McQuaid – are at it again. Last year, they sued Floyd Landis. This year, they are going after Paul Kimmage, probably for having the nerve to actually interview Floyd and put their “honesty” and “integrity” into question.

So what’s the deal here? They are going after Kimmage in Swiss courts, but they are not going after the people who actually published the same allegations.

Why Switzerland? Kimmage is Irish and Landis, an American. I don’t think anything they said or published took place in Switzerland. Heck, since McQuaid is Irish, too, why doesn’t he go after Kimmage in an Irish court?

What is the deal with these guys? Do they run to the courts whenever they feel insulted? Why is it that in all of those cases, they seem only to go after about 8000 Swiss francs? If what Landis and Kimmage said about them was so bad, shouldn’t their tarnished reputations be worth more than that?

Finally, why are they going after individuals rather than the newspapers and websites that published those statements in the first place?
– Richard

Dear Richard,
Pat McQuaid and the notoriously thin-skinned Hein Verbruggen are no strangers to the Swiss Courts. In addition to the now-petered-out lawsuit against Floyd Landis, Verbruggen and the UCI itself once brought a similar suit against former World Anti-Doping Agency president, Dick Pound.

In reviewing all three cases, some common themes emerge. The suits have generally asked for relatively small amounts in damages – probably enough to cover legal fees – along with a demand that the defendants issue some form of retraction … generally the simple publication of the court’s finding in the event that the plaintiffs prevail. Even so, that won’t be cheap, since the plaintiffs are asking that those retractions be published in the form of full-page advertisements in several of the world’s largest newspapers.

In Kimmage’s case, it appears that the two are going after much more than just the interview with Landis on NYVeloCity.com. Kimmage has been a tireless anti-doping campaigner since he retired from the sport and published “Rough Ride,” a ground-breaking book detailing his years as a domestique in the professional ranks from 1986 to 1989.

Kimmage carried that banner into his career as a journalist, writing for the Sunday Independent and later for the Sunday Times of London, where he teamed up with fellow Irishman, David Walsh, before leaving the paper early this year. Because of our mutual friendship with Walsh, I’ve had the opportunity to speak with Kimmage on a number of occasions and have found him to be, above all, honest, committed and passionate about the sport he loves … and about the people he’s accused of destroying it. He’s among a small cadre of journalists covering the sport that had the guts to say out loud the things others were thinking … and just whispering in off-the-record coversations.

McQuaid and Verbruggen, it appears, would disagree with my assessment.

In looking at the three cases – Pound, Landis and Kimmage – I frankly have to conclude that the current and former presidents of the UCI are engaged in a practice often referred to as a “SLAPP.” The Strategic Lawsuit Against Public Participation is essentially a suit filed with the intention of keeping critics silent, by targeting a select few of them in a public battle.

The idea is to burden those critics with the costs – in both time and money – of defending against a suit, and sending a message to anyone else that a making a critical public statement may cost someone more than it’s worth … or at least more than they can afford.

Now what got these guys sued? Pound, for example, once said that Verbruggen and the UCI were doing nothing to combat doping. Landis’ allegations that the UCI actively covered up Lance Armstrong’s allegedly positive EPO test from the 2001 Tour de Suisse were repeated by Kimmage, along with other statements about the UCI’s corrupt structure. Kimmage accused McQuaid and Verbruggen of “having knowingly tolerated tests, of being dishonest people, of not having a sense of responsibility, of not applying the same rules to everyone.”

Let’s assume (just for the sake of argument, of course) that what Pound, Landis and Kimmage have said about the UCI, Verbruggen and McQuaid is, in fact, true. Even if they had no case, the filing of a SLAPP suit would take up time and money and send a clear message to others that criticizing the plaintiffs could have dire consequences.

Has it worked? No, not really.

For his part, Pound reached a settlement and issued a “retraction,” that still makes me smile whenever I read it:

“Richard Pound acknowledges the fact that some of his comments reported in the media might have seemed excessive if they were interpreted to mean that the UCI and Hein Verbruggen were doing nothing to combat doping.” (My emphasis addedCP)

As for Landis, Verbruggen acknowledged the other day that the case has gone nowhere since “the problem is we can’t find Landis.” Even if they could find him, what are they going to do to force him into Swiss Courts to face allegations of slander and defamation?

Enforcing a foreign civil judgment against Landis might be problematic as well.

So why Switzerland?

I, too, often wonder about the choice of venue in McQuaid and Verbruggen’s thinking.

It’s doubtful that the two presidents in this case are filing in Swiss courts merely because the laws are in their favor there. There are better places to bring a suit if looking for the most sympathetic courts. Much of Kimmage’s work has appeared in the aforementioned Sunday Times and English law is probably one of the western world’s most plaintiff-friendly in libel and slander cases. If these two were “forum shopping,” Great Britain would have to top the list.

But the choice of Swiss Courts is a sign in my mind that the suit is little more than an elaborate press release and an attempt to send a signal to Kimmage and anyone else with a mind to criticize the way this sport has been run for the last 20 years. The District Court in Vevey, near Aigle, Switzerland, is a pretty logical place to file the case, and it really takes minimal effort and expense for the plaintiffs to pursue it. The UCI is, of course, based in Aigle, both have attorneys already in place through the UCI. While McQuaid is an Irish citizen and Verbruggen is Dutch, both live and work in Switzerland.

The big drawback – at least from a plaintiffs’ perspective – is that Swiss law doesn’t allow for punitive damages. A plaintiff has to show how an alleged defamatory statement affected his reputation and earning power and show proof of actual economic damages, hence the relatively low demands for compensation in all three suits.

Given the low cost and relative convenience of filing in Swiss courts, it could also be a sign that neither Verbruggen nor McQuaid have a whole heck of a lot of confidence that they will prevail. Truth is an affirmative defense in libel and slander cases in most court systems. (Even English courts allow the truth defense, but add a caveat, allowing a plaintiff to claim that the defamatory statement amounts to a “breach of the peace,” even if it’s true.)

Again, it looks like the suit against Kimmage is another salvo in a public relations war, albeit one that could cost the defendant time, money and inconvenience.

Jurisdiction?

But how do the comments of an American cyclist, told to an Irish journalist and published in a British newspaper and American web site become the subject of interest of a Swiss court?

That’s actually an interesting tangent. Under Swiss law a defamatory statement can be cause for both civil and criminal action. It would be harder to press that case in criminal courts since the alleged defamatory statements in this case took place outside of Switzerland. Even if they could bring it in to criminal court, the case would be difficult to prove.

Under Article 10 of the European Convention on Human Rights – to which Switzerland is a signator – citizens are guaranteed “the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The 1999 case of Dalban v. Romania affirmed that the prosecution of journalists would be more difficult than even an ordinary citizen. The case was nicely summed up in the 2007 European Council publication “Freedom of Expression in Europe:”

“The Court ruled that a journalist’s criminal conviction of defamation following the publication of several articles accusing prominent public figures of involvement in fraud constituted a violation of Article 10 of the Convention. It was the duty of the press, while respecting the reputation of others, to impart information and ideas on all matters of public interest, and it was unacceptable that “a journalist should be debarred from expressing critical value judgments unless he or she [could] prove their truth.”

The impugned articles had to do not with the private lives of the prominent figures but with their behaviour and attitudes in discharging their duties. There was no proof that the description of events given in the articles was totally untrue or calculated to fuel a defamation campaign. In relation to the legitimate aim pursued, therefore, convicting the applicant of a criminal offence amounted to disproportionate interference with exercise of the journalist’s freedom of expression.”

Even strictly interpreted, though, Article 10 would not preclude civil action. And the standard for exercising jurisdiction in Swiss civil courts is lower than it would be in criminal court. Even if the defendant lives outside of Switzerland and his statements were made outside of Switzerland, Swiss courts can assert jurisdiction if the statements are shown to have an effect inside Switzerland. Obviously, since Pound, Landis and Kimmage were referring to inaction – or outright corruption – at UCI headquarters in Aigle, that standard is met and the case can go forward.

Choosing the right defendant … or picking on the little guy

It’s worthy of note that the McQuaid/Verbruggen suit didn’t involve a deep-pocket defendant.

Again, much of what Kimmage has written over the years has appeared on the pages of the Sunday Times and much of what he has said about doping and corruption in the sport has been quoted in L’Equipe.

So why weren’t those publications included in the suit? A libel and slander suit can be pursued against anyone who repeats the alleged defamatory statement. Certainly, Rupert Murdoch’s Sunday Times and L’Equipe, owned by Éditions Philippe Amaury (yup, that’s the same family that owns the Amaury Sport Organization, which runs the Tour de France) were guilty of repeating Kimmage’s “libel,” no?

As I mentioned, this suit isn’t aiming high on the damages scale, so bringing in a deep-pocketed defendant probably isn’t strategically wise in this case. If those papers were brought into this thing, they sure-as-hell would show up and they would do so with a gaggle of high-priced lawyers and shoot this thing down like it deserves to be.

No, instead, they zeroed in on an individual. What’s more, an individual defendant who was the victim of a reduction in force at the London paper late last year. We have an outspoken, but now-underemployed, crusader. In this case, he’s the ideal defendant. It was strategically wise (but morally repugnant) to zero in on Kimmage.

It’s also another indication that this suit is being used to harass someone willing to speak out. If the suit had merit, the Sunday Times and L’Equipe would have been named, too.

D-E-F-E-N-S-E!

We are not likely to see this case end up like the other two. Kimmage can’t just vanish like, according Verbruggen at least, Landis managed to do.

You will see this before you see Kimmage apologize to Verbruggen and/or McQuaid.

We will probably not see a retraction of any kind – even one worded as elegantly as the Pound statement – emerge from the pen of Paul Kimmage.

“Hell will freeze over before I issue either of those gentlemen an apology for anything,” Kimmage told VeloNation’s Shane Stokes.

So Kimmage will be in the position of either ignoring the thing and losing by default – an approach we’ve seen in another high profile case recently – or appearing in that Swiss district court and showing why his statements are, in fact, not defamatory, but true.

If Kimmage takes the latter approach, it isn’t going to be easy. It isn’t going to be cheap. The plaintiffs know that and there are many of us who believe that’s precisely why they did it. My bet is that they have that strategy in mind … but they picked the wrong guy. Kimmage is a fighter. He is not going to go quietly into the night and buckle to that kind of pressure … but he will need help.

You can lend a hand. The folks over at NYVeloCity have created a ChipIn Page for the Paul Kimmage Defense Fund.

Give it some thought.

Do you really want these guys to get away with this crap? Let’s not send Kimmage off on another rough ride, okay?
– 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.

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36 comments

  1. Mark von Wahlde

    What is/are the actionable statements that McBruggen are relying on in their lawsuit against Mr. Kimmage?

    Good article!

  2. Sal Ruibal

    You sure had some ‘splaining to do there, Charles. Thanks for the analysis. Don’t pass this on Verbruggen or McQuaid, but I hear Floyd is hiding in plain sight as a custodian at UCI HQs. Seems he’s in charge of dusting off the files from 1998 to 2012.

  3. The Bikehound

    It’s the mens’s world champs tomorrow and I’m really really hoping real cycling fans across Europe have converged to paint in letters big enough for the TV helecopters to pick out across the course… “FREE KIMMAGE”

    And thank you for the explanation, I knew there was something fishy going on but now I’m a lot clearer on their probable motives.

  4. Joe P

    Wow, some people have no moral compass (McQuaid and Verbruggen). What a great read and also a sad read. Thanks.

    I hope those two don’t try and bring a suit against me now!!!

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  6. Kiwi Craig

    Charles – I think that you’re a bit off with your comment about the defence of justification (ie., that the statement is true) having the extra condition of not causing a breach of peace in the UK. I’m a NZ trained lawyer – so not 100% familiar with UK law, but we have a similar system and definitely have referred to UK cases.

    The defence basically only requires that the statement be proven to be true to be successful. In Kimmage’s case, since Fat Pat and co are apparently complaining about what Kimmage wrote in the Sunday Times, then if he could demonstrate the accuracy of his sources, that’s sufficient.

    The issue relating to breach of peace applied to criminal libel – and to crimes of sedition. They got repealed in the UK in 2010.

    I should say as well, there’s another defence open to Kimmage – that of “fair comment”. Basically, it says that it’s OK to state your opinion of someone so long as you don’t do it with a malicious intent. To give an example: if Kimmage wrote back in 2011 that he felt that the head of the UCI’s frequent reinforcement of Armstrong’s “500-600 negative tests” argument was suspicious – that could be considered a fair comment (especially given Fat Pat’s recent statements about 215 tests).

    I would say that Kimmage could claim fair comment for pretty much everything that he wrote, as I suspect that the Times’ legal department would’ve been checking a fair bit of what he wrote, given the litigous nature of his subjects. I would also say that the existence of this defence is the major reason why the UCI didn’t file in the UK – since, as far as I can tell, the only defence available in Switzerland is justification – although, like you, I doubt that this case will ever make it to the courtroom …

    Sorry for the impromptu law lecture … :-)


    1. Author
      Charles Pelkey

      Craig, no need to apologize. I actually appreciate the impromptu law lecture, especially from someone who deals with that element of the law more than I ever will. We rarely cite British case law. We have – in the United States – set a really high bar when it comes to libel/slander cases filed by public figures – see New York Times v. Sullivan.

      I would like to ask, however, how that defense didn’t necessarily work in Lance Armstrong’s suit against the Sunday Times following the 2004 publication of portions of Walsh’s book “LA Confidential.” To me, Walsh didn’t go beyond that “fair comment” line, yet the case was ultimately settled, with a substantial cash payment and a retraction (although a rather tepid one).

      It’s an interesting case, no matter what. I still believe that this whole thing is just an example of intimidation of Kimmage and anyone else even thinking about speaking out.

  7. bigwagon

    So if Kimmage chooses not to contest the charges in Swiss courts, does that make him guilty? Think carefully about your answer if you are one of the people who answered Yes in Lance’s case!

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  9. Alex TC

    Cycling is still up to the neck with doping, no? So, some poor swiss judge could well SLAPP a lesson on those two dictators, and then some for wasting UCI’s money and resources to harass outspoken individuals. Can’t someone bring UCI down?? Gosh that shouldn’t be this hard! And hopefully USADA’s case against Armstrong will uncover and shed light on any (all) Pat/Verbruggen wrongdoings. Hope dies last!

  10. peter lin

    I can’t help but wonder “why hasn’t anyone seriously gone after UCI and take them down?” Could WADA/USADA take UCI head on and expose them? If WADA has no jurisdiction, then what good is WADA to begin with?

  11. Rod

    Saw a link to this in the forums for your old gig, and already contributed. Thank you very much for the clear explanations, Mr. Pelkey.

    Rod

  12. Kiwi Craig

    Charles – As far as I can tell, it’s because the case never actually got to trial as a full defamation hearing.

    I’ve just hunted out the judgement, and note paragraph 13 (definitely unlucky for some!), which says:
    “Eady J ordered by consent on 7 December 2005 that the issue of meaning should be tried as a preliminary issue. He also ordered that the issue should be tried by Judge alone. As I have said, the issue which I have to decide is what defamatory meaning was borne by the article which I have summarised. No-one suggests that the article is other than defamatory of Mr Armstrong. The question is in what sense.”

    So, it was still a prelim hearing on the nature of the statements … which is consistent with the fact that a settlement was reached between the parties, rather than having an award for damages entered by the judge.

    The bit that confuses me however is the “no-one suggests that the article is other than defamatory …” – which seems a strange position from the Times, since I agree with you, it would well seem like a classic fair comment (and justification) situation. Would love to see the solicitor-client communications on that one to maybe shed some light …

    BTW – in your discussion of why the Sunday Times wasn’t being sued by Pat and Hein, you do realise that Murdoch also owns Sky Broadcasting – as in the sponsors of Pat’s new favourite team …? Now, call me old fashioned (or overly suspicious), but I suspect that Pat’s not going to bite (sue?) the hand that is starting to do such a good job of feeding him …

    To paraphrase the saying “this looks like déjà-vu all over again ….”

  13. gildas

    Has Pat been convicted under english or Irish law for his fake moustache in South Africa? Did he break the law? Could that be used against him in these courts if it was the case?

    (And the length of the explanation about that event has become suspiciously short on the wiki… I wonder why)

  14. Skippy

    In ” Skippyaus.blogspot ” i have reprinted Mike Ashenden’s letter to Paul Kimmage . Mike had to leave ” UCI ” since they tried to ” muzzle ” him and he being an expert ” Anti Doping Scientist ” was unhappy with the restictions imposed .

    Paul K. has written books that are still available thru ” Itunes & Amazon ” and it appears that the sale of these will add to the ” Defense Fund “!

    Last year i was able to post the ” Chip in ” to my blogs but as yet not been able to lift the link ! Could you or another email the ” link ” to me ?

    skippi@ausi.com

    BULLYING by this pompous pair will get no result with Paul but it seems to have sent the ” mushroom farmers ” at CNF into action with a ” change.org ” campaign that has now involved Twitter & facebook

  15. Pingback: Paul Kimmage Defence Fund | Cycling Tips

  16. Alex Murray

    Charles/Craig, I think the issue in the Sunday Times v Armstrong, which was out of court settlement, was not of Walsh’s doing – the subs had rewritten something and removed a key phrase (which I can’t remember from memory) and with it the open-ended nature of Walsh’s comment making it a closed accusation without qualification that would give it privilege as fair comment and/or the Reynolds defence of public interest. It’s a very opaque judgement http://www.5rb.com/docs/Armstrong-v-Times%20Newspapers%20Ltd%20CA%2029%20Jul%202005.pdf

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  20. Nick Evans

    re the Armstrong/Times case, it is not that surprising that the Times accepted that its article was defamatory of Armstrong. Fair comment and justification are *defences* to defamation claims. So they only come into play if the words are defamatory – i.e., that the words make a person think less of the subject. In this case the story was clearly defamatory, because it contained allegations about Armstrong’s drug-taking. This was defamatory of him. It might also be true, fair comment or otherwise, but that is a later point.

    Incidentally, on the issue of jursidiction, there’s not really such a thing as “British law”. Scotland and Northern Ireland have different legal systems from England & Wales, which is the libel lawyer’s jurisdiction of choice. But it does make sense for a Swiss-based organisation and Swiss residents to sue in Switzerland.

  21. Tom Knox

    Great insight as always. This sheds light on why I received no response when I sent info to the UCI and TDF with details and links on recently developed UCLA test procedures for a Super Drug called RSR-13 around 2002-2003.
    I was never able to get a response even when I had a friend resend it in French. I thought at the time, although only in clinical trials that it’s extraordinary potential for abuse made testing important.

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  23. Keninho

    I’m not convinced that a ruling by the European Council has any bearing on Switzerland, which is entirely independent of the European Union. You may note that Switzerland is the gap in the middle of the map on the maps of the European Union at Wikipedia[1]. Other than that, thanks for explaining what a SLAPP or bullying lawsuit is.

    I suspect that not responding at all to the suit and allowing a default judgement in CH jurisdiction would only really stop Mr Kimmage from enjoying Swiss chocolate in its country of origin or starting a cuckoo clock collection – but the Swiss Alps do have some nice climbs on them.

    1: http://en.wikipedia.org/wiki/European_Union

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  25. Dan R

    Keninho: Switzerland is a member of the Council of Europe, which is a separate entity from the European Union. The protection of fundamental freedoms is one of the Council of Europe’s core missions and the Freedom of Expression document cited by Charles is a Council of Europe publication.

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