The Explainer: They shoulda let sleeping dogs lie

Kimmage is now quite awake.

Hein, Pat, ya really shoulda left that dog asleep.

Dear Readers,
I want to apologize for the two-week absence of “The Explainer” column. I was working on one story that just never really came together, although there is still a chance that it might. I also got mired into the usual responsibilities of my day job and, now that I am catching up, I can devote a little time to addressing questions in my in-box.

Let’s start with what I saw as a bit of good news from a couple of weeks ago.
– Charles

Dear Explainer,
I enjoyed your original column on the UCI’s lawsuit against Paul Kimmage (See “The Explainer: Why SLAPPing Paul Kimmage won’t work” – Sept. 22) and the follow-up articles. I have to guess that by now you’re a little tired of the subject, but I wonder about Kimmage’s counter-suit.
– Guy

Dear Guy,
Actually, Kimmage is not pursuing a counter-suit in this case. He’s aiming higher than that.

Allow me to explain.

The UCI, Hein Verbruggen and Pat McQuaid originally filed a civil suit against Kimmage, following a path they had pursued in two earlier cases against former World Anti-Doping President, Richard Pound and former professional cyclist, Floyd Landis (As you recall, Pound settled the case with a delightfully worded “retraction” and Landis lost his case by means of a default judgment, when he failed to show up for the hearing in Switzerland (See “The Explainer: By order of the court, Hein Verbruggen is (not) full of ….” – Oct. 6, 2012).

Those suits, as well as the one filed against Kimmage, were brought under Switzerland’s Civil Code, alleging that the defendants had committed the tort of defamation. We’ve already walked through the potential penalties, including a relatively small payment to the plaintiffs (8000 Swiss francs to each), a retraction and publication of the court’s findings in major – and not-so-major – news outlets.

Recall that all three cases were based on allegations that the defendants had said that the UCI, McQuaid and Verbruggen were either doing nothing, or intentionally covering up, doping. In the case of Landis and Kimmage, much of that was based on the interview Kimmage did with Landis in November of 2010 (see “Landis/Kimmage: The Transcript” at NYVeloCity.com).

Anyway, once the U.S. Anti-Doping Agency provided the UCI with its “Reasoned Decision” and supported that 200-page document with more than 1000 pages of evidence, the UCI – realizing that discretion is the better part of valor – opted to “seek to suspend (its) legal action against journalist Paul Kimmage.” Of course, it probably didn’t hurt that Kimmage was aching for a fight and that nearly 3000 had donated more than $80,000 to his defense fund. (It’s now up $91,755, by the way.)

Following the advice of that famous philosopher, Kenny Rogers, the plaintiffs essentially figured out that they needed to “know when to fold ‘em; know when to walk away and know when to run.”

Yeah, yeah, the UCI, McQuaid and Verbruggen merely “suspended” their suit, pending the report of the upcoming “Independent Commission,” organized to investigate the UCI’s record during those years. Bottom line, they realized that all of the allegations of UCI inaction or complicity would be argued in open court and they folded.

Not so fast, Hein

Well, despite the plaintiffs’ desire to let sleeping dogs lie, they had apparently forgotten that this dog was a pit-bull and he is, by now, quite awake.

No, Kimmage didn’t take a victory lap when his accusers backed down. Instead he filed request with the Public Prosecutor in Vevey (the same jurisdiction in which the original civil matter was filed) that his office pursue a criminal slander/defamation case against “Hein Verbruggen, Pat McQuaid and unknown persons.”

In a release issued on November 1, Swiss attorney, Cédric Aguet, said he was submitting a 28-page complaint, supported by 55 exhibits, supporting Kimmage’s assertion that “he was dragged through the mud, that he was called a liar in public and accused in public of committing offences against the honour … of the highest officials of the International Cycling Union (UCI).”

Kimmage’s complaint went on to say that he would like to inform “Swiss criminal authorities of the strong suspions, which weigh on at least Hein Verbruggen to have granted, directly or indirectly, the essential assistance which allowed Lance Armstrong to gain significant sums of money in and out of competition while he was doped.”

In other words, Kimmage hit back hard.

Not only is he requesting that the prosecutor pursue a criminal “calumny” action, he’s also raising the specter of criminal liability concerning Verbruggen’s complicity with Armstrong’s actions while he was president of the UCI.

Regarding the slander question, it may be difficult for us to see the specifics, since the submission to the prosecutor is not part of the public record, but it’s clear that Kimmage has skipped over the civil option (and its retraction and small pay-out) and gone straight for the jugular, in the form of requesting a criminal case be opened.

In general terms, the crime of “calumny” – or malicious and injurious defamation – is covered by article 174 of the Swiss Criminal Code, which imposes financial penalties and jail time for the crime of “offending one’s honor deliberately.”

Not having seen the Kimmage submission in its entirety, I would imagine that Kimmage is basing his complaint on the original UCI civil complaint and the numerous interviews in which McQuaid and/or Verbruggen have disparaged him. Indeed, the record is likely to show that the original plaintiffs in the civil suit spent a good deal of time talking smack about Kimmage and his work than he ever did about them and theirs. That could bite them in the ass, too.

What is the penalty for criminal slander?

Criminal defamation is something of an oddity, especially here in the U.S. There is no criminal statute covering that “crime” at the Federal level and only 17 states have such statutes on their books and those are rarely invoked. I can only come up with 10 or so cases over the past 15 years when I do a search.

Criminal sanctions for defamation are much more common in other countries, even though they are being gradually eliminated. In Switzerland, there are about 70 or so such criminal defamation actions brought each year. Under Swiss law, defamation is found to be committed when someone “falsely accuses another party, or creates a negative suspicion against a person of having committed dishonorable conduct or any other fact-specific prejudice.”

Think about that. That’s essentially the charge that the UCI, Verbruggen and McQuaid leveled against Kimmage in the original civil suit. In Swiss Courts, as in the U.S., truth is a defense against a claim of defamation – whether it’s a civil or criminal action. So, Kimmage was ready to show that his original statements were, in fact true, when the UCI withdrew its complaint. However, now that he’s pursuing a criminal case against the UCI, Verbruggen and McQuaid, Kimmage can use much of the same evidence he had planned to use in his defense. He merely needs to show that his original allegations were true and that the UCI knew they were true and that, despite understanding the veracity of his original claims, the three engaged in a campaign to disparage him as a means of covering up their own complicity or inaction. No, it won’t be a slam-dunk for Kimmage, but there is quite a bit of damn good evidence for the court to consider.

Afforded the usual due process protections of Swiss law, if a defendant is found guilty of the offense, he or she can be punished by a penalty of up to two years in prison. It should be noted that due to over-crowding, Swiss law incorporates something known as “day prison fines,” which would allow a first-time offender to pay a fixed monetary figure for each day he is sentenced to in prison, instead of actually serving the days behind bars.

Yeah, so even if Kimmage is ultimately successful in his efforts, it’s not likely we’ll see Hein in prison stripes … but he may feel the pinch in his wallet.

But that’s not really the goal here. Kimmage clearly wants to get the story out. Going to court may move that – and long-term reform of the UCI – in the right direction. The more time these guys spend under the spotlight, the more likely their UCI Management Committee support will erode. It’s already happening. That’s the real goal and it’s far more laudable than even hoping for that moment when we can see the complicit – or inactive – pay a penalty, be it with cash or time to reflect on their role in the decline of the sport we love.

Well, either way, sic ‘em, Paul.
– 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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5 comments

  1. Journeyman

    I dont agree with some of your summation and the timing.

    PK timing is poor and feels like he has money burning a hole in his pocket. If were to wait until the investigation concludes he would have a better chance of winning. His action mean UCI have to defend and they shall will vigour and PK needs to demonstrate his case legally and not as we see as reports and statements. How he shall achieve that I am very sceptical for the simple reason if he had proof he would have shown it long ago but we have seen nothing.

    I also have not read the 28 page submission but I am hearing it is defamation based and not fraud/criminal as suggested but I shall reserve judgement on that until I can read it.
    Part of the process also crosses from civil to criminal law dependant on the actions of the guilty party in Swiss Law as we seen with FL. His findings alowed parts ii and iii (I believe these are correct) to pass from civil law to criminal law if he did not take out the paper articles etc. the monetary awards did not and recovery would mean pursuit via FL local courts.

    I feel PK has acted far too soon and he shall end up uniting UCI instead of waiting on the divide happening naturally and making his move then.

    The weight of other peoples money can do stratne things to people.

  2. Pat O'Brien

    HI Charles. As I read about the whole Armstrong doping scandal fallout, i get confused on where the sporting sanctions end and criminal liability begins. It really gets confusing when trying to figure out what the statute of limitations are in both arenas. I would think that Armstrong, and others, are basing their statements and actions on possible criminal liability not sporting sanctions. I have not read the entire USADA report. Does it contain any information on the illegal importation and distribution of prescription drugs in any country?
    Thank, Pat

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