The Explainer: By order of the court, Hein Verbruggen is (not) full of ….

Dear Panache,
Awrighty … I have way more than 140 characters to work with here.

As your question suggests, Landis was ordered by the court to refrain from making any disparaging remarks about the UCI, its current president Pat McQuaid and past president Hein Verbruggen. Catherine Piguet. Est Vaudois District Civil Court chairman entered the default judgment after Landis failed to appear and mount a defense against a complaint the three plaintiffs filed against him in April.

Absent a defense, the court had little choice but to rule in favor of the UCI, McQuaid and Verbruggen. If you don’t show up to defend against the charges, odds are you will lose. (One of Landis’ former teammates recently learned that lesson, but alas, I digress.) In her decision, Piguet issued an order that:

“forbids Floyd Landis to state that the Union Cycliste Internationale, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen have concealed cases of doping, received money for doing so, have accepted money from Lance Armstrong to conceal a doping case, have protected certain racing cyclists, concealed cases of doping, have engaged in manipulation, particularly of tests and races, have hesitated and delayed publishing the results of a positive test on Alberto Contador, have accepted bribes, are corrupt, are terrorists, have no regard for the rules, load the dice, are fools, do not have a genuine desire to restore discipline to cycling, are full of shit, are clowns, their words are worthless, are liars, are no different to Colonel Muammar Gaddafi, or to make any similar other allegations of that kind;” (My Emphasis Added)

Think about it. There is actually now a court order in place that specifically forbids Floyd Landis from saying, for example, that “Hein Verbruggen is full of shit.”

But as you ask, where does the Swiss court get the authority to impose such an order? That’s actually a pretty easy question. These days, particularly when it involves an international story, libel and slander can quickly become a world-wide tort. In this case, Landis had a conversation with reporter Paul Kimmage, who then submitted a story to the Sunday Times of London and the entire interview transcript to our friends over at NYVeloCity.Com.

The Sunday Times, of course, is based in Great Britain. NYVeloCity is based in the U.S. There is nothing all that Swiss about either. But the three plaintiffs sought redress in the Swiss courts, specifically the same court in which they have filed a similar suit against Kimmage.

In order to argue for Swiss jurisdiction over the case, plaintiffs merely need to show that they are engaged in business or reside within Swiss borders, that the statement or statements were repeated in Switzerland and that the alleged defamatory statement may have impacted their reputations or business interests within Switzerland.

Okay, so they fare pretty well on all three. The UCI is based in Switzerland and both McQuaid and Verbruggen (although Irish and Dutch nationals) live and work in Switzerland. That their reputations may have been affected in Switzerland is true and it would be up to the court to determine whether that in fact had happened. Finally, pretty much anything anyone posts on the Internet is automatically “repeated” within Swiss borders.

So, the Swiss court correctly asserts jurisdiction over the matter. Landis fails to mount a defense and – Bazinga! – Floyd Landis suddenly has a valid court order barring him from saying, for example, “Hein Verbruggen is full of shit.”

So?

Well, in addition to not being able to say that “Hein Verbruggen is full of shit,” and other disparaging statements, he was ordered to pay 10,000 Swiss francs to both Verbruggen and McQuaid and to publish the “operant provisions” of the order, at his own expense, in several media outlets, including the Wall Street Journal, L’Equipe, Switzerland’s Le Temps and websites, including the aforementioned NYVeloCity.com.

So?

Well, the order also imposes a requirement that Landis pay the plaintiffs’ legal costs and adds that the failure to pay the award and costs will result in five percent interest being added to the total each year.

Then comes the enforcement provision, which essentially says that failure to pay or to comply with any of the provisions of the order – say he did something like declaring, for example, that “Hein Verbriggen is full of shit!” – then he could be subject to criminal penalties for being in contempt of court.

So?

Well, there isn’t much the UCI, Verbruggen (who, by court order, is not full of shit), McQuaid or even the court can do. Really, the enforcement of a foreign civil judgment is quite difficult here in the U.S., so unless Landis has assets in Switzerland (which is doubtful), it’s unlikely that the plaintiffs will see any of the money the court awarded them in this matter. It’s doubtful, too, that Landis will be taking out full-page ads in L’Equipe or the Journal.

Eventually, he’s likely to be declared in contempt of court and then he may be subject to criminal penalties under Article 292 of the Swiss Criminal Code.

So?

Well, unless Landis plans on visiting Switzerland, there probably isn’t a lot they can do to him. He’s not going to be extradited from the U.S. to face Swiss justice because he ignored a civil judgment against him. He’s unlikely to face troubles even if he travels to other parts of Europe … well, except for France, where he’s barred because of the hacking allegation. While Switzerland isn’t a European Union country, it may be worth his while to look at Swiss extradition questions as they relate to the EU before traveling there. My bet is that it wouldn’t be much of an issue, even there.

So, basically, Landis can ignore the judgment as long as he avoids Switzerland. Heck, he could even test the waters and declare that “Hein Verbruggen is full of shit!” Not that I suggest he do that, of course.
– Charles

Breast Cancer Awareness Month

On a purely personal note, many of you already knew that I was diagnosed with, of all things, breast cancer last year, just prior to my arrival here at Red Kite Prayer.

Yeah, I know, it’s weird. Guys aren’t supposed to get breast cancer … at least that’s what most people think.

I had three surgeries and finished chemo nine months ago and I got another clean bill of health just this week.

So why start talking about it again? Well, one thing I’ve noticed in the annual parade of pink ribbons, (a.k.a. “Breast Cancer Awareness Month,” a.k.a. “October”) is that all of that awareness is generally targeted at women. That’s absolutely appropriate given that nearly 99 percent of all breast cancer cases occur in women. However, it’s also safe to say that most women are also by now keenly aware of the disease and its risks.

Men, on the other hand, not so much.

I was one of about 1800 men diagnosed with breast cancer in this country last year. Some studies suggest that breast cancer can be more severe in men, due in no small part that the diagnosis doesn’t come until the disease has progressed to its latter stages. I was lucky and caught mine at Stage 2b.

Anyway, I made that point to the folks over at The Huffington Post and they asked me to write a small piece on a male’s perspective on what is generally regarded as a woman’s disease. You can read it if you choose to, but more importantly, keep in mind that all people can get this disease. Stay vigilant.

The only reason I am doing this is to encourage anyone – male, female or other – who finds a suspicious lump to go straight to your doctor and have it checked out. If they say it’s nothing, get a second opinion before you relax. It could save your life.
– 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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23 comments

  1. dstan58

    What I hear you saying CP, is that Mommy told little brother to stop calling big brother really mean names. “And I mean it.” BTW- Fellows,if you haven’t read CP’s piece in HuffPost, you should.

  2. Tom Moore

    Floyd might be in trouble if he visits any country in the European union. Based on the decision, the Swiss court could order him held in such countries until he pays up.

  3. Wsquared

    Re breast cancer in men. This January will mark my 4th year since surgery & chemo for breast cancer . So far, knock wood, everything looks good. Charles and I are both lucky to be alive. The mortality rate among men is high because it’s often not detected in time because we don’t look for it.

    I had a slight surface irregularity on my right nipple & went to the doctor. They did a biopsy and found a BB size lump which they removed during the procedure. Lab test showed it was breast cancer. The surgeon was very surprised as they hadn’t even suspected it. Ironically, it turned out that the surface “irregularity” that caused me to see my doctor had nothing to do with the mass they found, they just happened to find it when they did the biopsy. Very lucky for me, they found it fairly early. I had a follow up mastectomy & then chemo.

    So I second Charles motion. If you detect anything at all thats abnormal, see your doctor!

  4. Rico

    Charles, Floyd’s lawyer says he was never served with the lawsuit. Although Floyd clearly knew of the lawsuit, don’t you have to be actually served validly with papers before a court can impose a judgment? I know Switzerland doesn’t have the 5th and 14th Amendments, but don’t they have some notions of due process? What a joke. But I’m really glad that in spite of the judgment we can all still say that Hein Verbruggen is definitely not full of shit.

  5. andrew

    I’m just pleased that I can quote the judgment that says ‘landis is not to say hein is full of shit’ or that ‘pat is a clown’.

    Now Floyd, just remember, you are not allowed to call Pat ‘ a clown ‘. D’you hear that Floyd? Pat doesn’t like it.

    If Lemond can get his lawyers to frighten off Pat “not a clown’ McQuaid and his pal ‘not full of shit’ Verbruggen, why can’t Kimmage do similar? UK laws different?

  6. gildas

    Bur he is full of shit, all life forms with a digestive tract are by definition. So what kind of life form is he? I think negative energy and cash flow based.

    He might appear in a future “Star Trek”. He already loves Trek’s.

  7. Steve

    Charles,
    Like confidentiality agreements, If proof supporting any of those statements proves to be true and known to the general public, would Floyd be allowed to then state those facts publicly? For example, if evidence shows that Hein’s intestinal tract is at maximum capacity, would Floyd again be allowed to state that Hein was full of shit? Also, what would happen to the financial side of things? Would Floyd have to sue in a French court to get the judgement reversed?

  8. John Kopp

    Just an observation, WADA and the IOC are headquartered in Switzerland. So, I would imaging that any dossier accusing UCI of corruption and supported by evidence from Floyd would not hold much standing in a Swiss court. Just my thought.

  9. Ankush

    I hope Floyd gives another interview and use all the available disparaging remarks, except the ones he’s not allowed to. It’ll be quite fun to see what McQuaid and Verbruggen do then.

  10. Alex TC

    I never bought the “I didn’t dope” from Floyd and thus never helped his Fairness Fund to fight the accusations.

    But I’ve helped Kimmage’s defence campaign, and I’m all against these constipated circus blokes so I would GLADLY support a Landis Right To Call Pat a Clown And Hein Full Of Shit fund!!!

  11. Andre LePlume

    Another question for this or Kimmage case is if the action had gone forward, what is the measure of their damages. My understanding is that in the U.S., it is very hard for a controversial public figure to show that he or she has been harmed, so no damages. I think some European courts have looser standards, which is why libel actions may be brought in some place like Britain rather than the U.S.

  12. Full Monte

    So when the UCI loses to Kimmage, does that render the Swiss courts ruling re: Landis null and void? Because if and when Kimmage wins, that’ll prove that Landis was correct, true and right all along. And that Hein is full of shit. And Pat is an a*sclown.

  13. Paul

    I’d just like to say that Hein Verbruggen most definitely is full of shit. Sue my ass, you sorry clowns. That goes for Pattycake McQuaid, too.

  14. Ryan

    As instructed, I moved my hand to my chest to check for a suspicious bump and…bam!! Spilled pear juice all over me! Luckily as a cyclist I have a backup pair of clothes. On a serious not, I am very happy that you caught your cancer early. I hate cancer.

    #stayClassy!

  15. Margaret Smiddy

    Hi Charles,
    I’ve read your columns with interest and have felt that your explanations and understanding of the issues are among the best I’ve seen on the web. So, I have a question regarding the release of the USADA reasoned decision this morning. My question is, if it is possible that Lance Armstrong lied under oath during the grand jury investigation which was stopped or ended with out resolution (none that I could see anyway), will there be further questions about possible perjury? Or is the grand jury investigation done and not to be revisited in any way?
    Thank you and I look forward to your response.
    Margaret Smiddy

  16. Khal Spencer

    I suppose all sorts of blogs can now post as news, that Floyd Landis is forbidden to claim that “the Union Cycliste Internationale, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen have concealed cases of doping, received money for doing so, have accepted money from Lance Armstrong to conceal a doping case, have protected certain racing cyclists, concealed cases of doping, have engaged in manipulation, particularly of tests and races, have hesitated and delayed publishing the results of a positive test on Alberto Contador, have accepted bribes, are corrupt, are terrorists, have no regard for the rules, load the dice, are fools, do not have a genuine desire to restore discipline to cycling, are full of shit, are clowns, their words are worthless, are liars, are no different to Colonel Muammar Gaddafi, or to make any similar other allegations of that kind;”

    Sigh…its far more fun to let them be hoist by their own petard.

  17. Pingback: The Explainer: They shoulda let sleeping dogs lie : Red Kite Prayer

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