The 2012 RKP End-of-Year Awards

The Facebooks and Twitters have been full of apocalyptic references thanks to the easily anticipated fail of the Mayan end-of-the-world prediction. Laughing off the prediction of a 5000-year-old calendar created by a long-extinct people seems easy enough until you think about what cycling has been through this year. Had anyone told me this time last year that Lance Armstrong would be utterly disgraced and bereft of all sponsorship to the point of being dumped by his own eponymous foundation, I’d have laughed until I threw up. Similarly, if you’d told me that half the pro continental cycling teams in the U.S. would be without sponsors for 2013, I’d have laughed, though maybe not to the point of the technicolor yawn. And if you’d told me that there was a revolutionary movement afoot to topple the UCI and replace Pat McQuaid and Hein Verbruggen with people of actual moral fiber, I’d have asked you just which drugs you were taking—and if you’d be willing to share them with me. For cycling, at least, it does seem a bit like end times.

The reality is, this is a year unlike any other the sport of cycling has ever faced. The news has been more bad than good this year, so this year’s awards may have more snark than praise. Herewith are a few things we think are worth remembering. And for good measure, this time around, we’ve asked Patrick O’Grady to sit in with our band.

Padraig’s List—

News of the decade: Even though this one isn’t over, not by a longshot, I think we can call this one now—the actual fall of Lance Armstrong. Not only does most of the rational world believe he doped—a conclusion I didn’t think we’d ever get most folks to reach—sponsors have run from him like cute girls from a leper colony. I had an easier time getting a date in eighth grade than he does finding a sponsor today. That his own foundation wouldn’t shake hands with him with rubber gloves says a lot about how badly everyone wants to distance themselves from him, that is, excepting Johan Bruyneel, Chechu Rubiera and a few other pros who don’t understand that most people see doping the way they see racism—completely unacceptable.

Most believable Grand Tour winner: Ryder Hesjedal. I don’t care what Bradley Wiggins says about how he hates dopers or how the fact that he’s not as fast as Armstrong was proves he isn’t a doper. The fact that he won stage races in March, April, May and June before winning the Tour and then revving up once more to take the ITT at the Olympic Games smells as bad as one of my son’s used diapers. I’m not going to accuse him of doping, but if the press are going to be held to a standard of expectation that we’ll speak up when we’re suspicious, well, then I have to say that Wiggins’ never-before-performed season is highly suspicious. Even Eddy Merckx never swept Paris-Nice, the Tour of Romandie, the Criterium du Dauphine and the Tour in the same year. Hesjedal, on the other hand, was vulnerable in the Giro. His win was not the inevitable outcome that sucked the life out of watching this year’s Tour. He’s been riding for a team that I have the utmost belief in as a clean program; while I believe that cycling is probably the cleanest it has ever been, I think Garmin-Sharp has taken the best, most transparent approach to demonstrating their team is clean. Hesjedal, as a product of that team, has earned my respect and admiration.

Most clueless person in cycling: This one’s a tie between Pat McQuaid and his predecessor Hein Verbruggen. I liken them to the small-town mayors in the Southern states when the civil rights legislation was enacted. Those old boys fought integration for any number of spurious reasons, but the biggest problem with them wasn’t that they couldn’t come up with a solid, objective reason to fight equal rights for all people, it was that they failed to see how public opinion had evolved and, like those who now fight gay marriage, how their opinions were coming down on the wrong side of history. Verbruggen lost any credibility as a leader and even as an administrator once he proclaimed that it was the fans’ fault that doping had taken root, that because we wanted to see fast racing the fans had forced the riders to dope. Their mudslinging agains Floyd Landis and Tyler Hamilton in the wake of those two deciding to finally tell the truth, the whole truth and nothing but the truth, is shameful on the level of scoutmaster sex abuse. Those two can’t go quickly enough.

Best new piece of gear: I can’t not give this to Shimano for the new Dura-Ace 9000. While my full review will come in the next few weeks, let me say that this group is what we hoped for when 7900 came out a few years ago. It’s a group of such magnificent improvement it reminds me of what I thought when I first heard Metallica’s Black Album: How did I ever live without this?

Biggest mistake award: For this one we have to go back to Armstrong. If he had just been willing to set aside his ire with Floyd Landis and give him a spot on RadioShack, his life would be very different right now. I’m not bemoaning our current situation, but come on, there must have been an epic, “D’oh!” in the shower one morning.

The Commander Omertà award: This one goes to Patrick Lefevre for thanking Levi Leipheimer for confessing his previous doping by firing him. If anyone could have sent a more convincing message to the peloton to shut up, I can’t think who could have accomplished that. ‘Shh, don’t tell mom about the pot brownies.’ I’d pay money to have Lefevre retire the day we put McQuaid and Verbruggen out to pasture so that I could hold a Stevil Kinevil-style party. Hell, I’d hire Stevil to run the thing.

The JFK-style Conspiracy Theorist award: This goes to everyone who is unwilling to believe that Levi Leipheimer, David Zabriskie, et al, told the full truth about their doping. Given that Leipheimer didn’t know what Hamilton, Zabriskie or any of the other riders who were ordered to testify before the grand jury would say, not telling the full truth about their involvement in doping was incredibly risky. If any of them were caught in a lie, they’d face prosecution for perjury and those agreements for reduced suspensions would be unwound. The pressure to be truthful was enormous. We should all be willing to take them at their word in this regard. Besides, so far as USADA and USA Cycling are concerned, this matter has been put to rest. You can second-guess it all you want, but you’re not going to get any new answers. Best just to move on.

Most Disappointing Win: Alexander Vinokourov at the Olympic road race. Based on his statements in the media, he has neither fully confessed nor repented his sins. He harks from a generation and mindset we need behind us. His victory salute was a reminder that even if he was clean on that day, the sport needs to be ever-vigilant in its quest for clean(er) cycling. My lack of confidence that he could/would win clean is the doubt that currently undermines my love for professional cycling. This would be why Vino also gets my Most Relief-Inducing Retirement Award.

Best line in a product introduction: Back in October at the introduction of Giro’s new line of clothing we were told how it was meant to pay homage to a new direction in cycling. Giro’s PR guru, Mark Riedy, uttered the line, “No more heroes.” ‘Nuff said.

 Robot’s List—

The One Fingered Salute Award – Peter Sagan. The grown ups tend not to like it so well when some young whipper-snapper gets above his raising and makes them look foolish. The effect is only exacerbated when the whipper-snapper in question does it day after day after day and with increasingly audacious celebratory flourishes. Thus it was that Sagan more or less made the Tours of both California and Switzerland his bitches, while the grown ups flogged away at their pedals somewhere behind in his dusty trail. More than anything, the shy (off the bike) Slovak announced that not only was he not intimidated in the deep end of pro racing, but that he was capable of much more, that his raw power and top-end speed were wed to a racer’s brain far more mature than his youth would suggest.

The All Business Award – Tom Boonen. When I think of Tom Boonen, I have a hard time not thinking about cocaine and under-age super models. Just as a tornado will destroy the homes of both the rich and the poor indiscriminately, Tornado Tom’s approach to his career has created as much damage off the road as on it. But in 2012, the Belgian veteran was all business and all class, owning the cobbled Classics and inching his way one step closer to the record books in a Spring campaign that left the whole racing world with their mouths slightly agape.

The No Business Award – The Schleck Brothers. Luxembourg’s favorite family act must have broken a mirror while walking under a ladder placed by a darkly furred feline carpenter, because 2012 couldn’t have gone much worse for them. Chained to the sinking barge of the RadioShack-Nissan-Trek team, there was the early season set to with Johann Bruyneel (remember that guy?), a fractious start to an uncertain partnership, which saw both Andy and his brother Franck underperforming in every race they entered. Eventually Andy was injured in a seemingly innocuous crash and Franck got popped for doping.

The Other Shoe Award – Bjarne Riis. In a season when it seemed to be raining shoes, the painfully serious Dane’s reputation has been called into question more often than an Italian Prime Minister’s. Having confessed to doping during his own racing career, there remain serious allegations that he also facilitated doping in his teams as a manager. Tyler Hamilton says he did. Bobby Julich says he didn’t. It seems that, in pro cycling, where there’s smoke now, there was fire a decade ago. Riis’ persistence should really be seen as the test case for what cycling wants to do with its doping past. Will the worst offenders of the ’90s find a future in the sport? Julich’s own fate (fired by Team Sky) suggests one possible answer, but when/if the other shoe drops for Riis will tell us for certain.

Charles’ List—

The Most Sleep-inducing Grand Tour: Yeah, I know. Many of my British friends will believe it’s sacrilege to suggest that the first Tour de France to see a Brit’ atop the podium in Paris would rank as the most boring of this year’s grand tours. It was more than that. It was one of the most boring Tours in history. Come on ASO, three mountain-top finishes? Thankfully, this year also offered us the Giro and Ryder Hesjedal’s surprising and impressive win over Joaquim Rodríguez and the Vuelta’s three-way battle between Rodríguez, Alberto Contador and Alejandro Valverde. Here’s hoping that in 2013 the “world’s greatest bicycle race” lives up to that designation.

Most well-deserved victory lap: It’s clear that most agree that the implosion of Lance Armstrong is the cycling story of the year — or as Padraig points out, the story of the decade. It’s hard to disagree, but it’s important to point out that this was far from a new story. It’s a story that Sunday Times of London journalist David Walsh has been telling since 1999. I know first-hand of Walsh’s skepticism, since I spent the ’99 and ’00 Tours with the tenacious Irishman. It was déjà vu all over again when the USADA “reasoned decision” was delivered to the UCI on October 13, 2012. Sure there was more documentation, but most of the allegations were made years ago, when Walsh and Pierre Ballester co-wrote  ”L.A. Confidentiel: Les secrets de Lance Armstrong” in 2004. At the time, Walsh was demonized by the Armstrong camp — which labeled him “the F#cking Troll”  — and even shunned by fellow journalists. Well, he who laughs last …. When the report was released and the UCI soon confirmed its conclusions, Walsh teamed up with Paul Kimmage, John Follain and Alex Butler and quickly released ”Lanced: The Shaming of Lance Armstrong,”  on October 31st, and followed that with his own, much more personal story “Seven Deadly Sins: My pursuit of Lance Armstrong,” on December 13. I, for one, hope that “Seven Deadly Sins,” sells more than the many works of apparent fiction shilled to an unsuspecting public by writers who should have known better. Maybe he should change the title to “It’s Not About the Bullshite: The Unmaking of the World’s Greatest Sports Fraud,” eh? Quite frankly, the book should be required reading for anyone hoping to work in sports “journalism.” Without that kind of moral compass; without that tenacity and without that consequences-be-damned attitude, we’re all just – to use an old, sadly accurate term — fans with typewriters. Hats off to the “F#cking Troll.” Enjoy the moment. You deserve it, sir.

Inspiring show of support: In recent years, the aforementioned Pat McQuaid and Hein Verbruggen found that filing lawsuits against critics in a friendly, local court could be an effective tool. They, along with the UCI itself, filed suit against former World Anti-Doping Agency head, Dick Pound, and then against Floyd Landis, after he admitted his own doping and alleged the UCI conspired to cover-up Armstrong’s own infractions. Pound issued a brilliantly word non-apology-apology. Landis pretty much blew them off and lost in a default judgment. Then they went after Paul Kimmage. Ooops. Kimmage decided to put up a fight and he soon got overwhelming support from you, the fans. The folks over at Cyclismas.com and NYVeloCity started promoting the “Paul Kimmage Defense Fund” and readers eventually kicked in more than – get this – $92,000 to help in the fight. Kimmage, laid off from the Sunday Times last year, suddenly had the resources to take on the UCI. And, sure enough, McQuaid, Verbruggen and the UCI, put their suit “on hold.” Kimmage, however, is now pursuing his own case. None of that would have been possible had you, the readers, not stepped up to lend a valuable hand.

 My favorite photo of the year: This one comes from Betsy Andreu, who offered up photographic evidence of Frankie Andreu’s reaction to Tyler Hamilton’s detailed confessional, “The Secret Race.”

A personal favorite: When it comes to my work in cycling, I think the highlight of the year for me was finding out that the unique business model of LiveUpdateGuy.com actually worked. Thank you to all of those readers who offered help and support during our Live Coverage of all three grand tours. Because of your support, we may well be able to offer the same in 2013. Those, of course, will appear right here on Red Kite Prayer, as well.

Patrick the Other—

Donna Summer Memorial Disc-O Dance Party Platinum Rotor Medallion: To the bicycle industry for trying to hang disc brakes on everything from road bikes to stick ponies. I can understand why bike companies want to sell discs —after all, some shameless hucksters will try to sell you a rat’s asshole, telling you it’s a pinhead’s sweatband, a Chris King headset or the One Ring To Rule Them All — but I don’t understand why anyone who isn’t a pro racer with a team mechanic needs discs. And some of them don’t even need ’em (see Sven Nys, Katie Compton, et al.). If I want pointless complexity “enhancing” my cycling I’ll look to the UCI or USA Cycling for it. Speaking of which. …

The Salvatore Palumbo Good People Certificate: This honor traditionally goes to the nefarious criminal organization most hell-bent on kneecapping the sport of bicycle racing (either USA Cycling or the UCI). This year, it’s USA Cycling, which this year tried putting the squeeze on the wildly successful activities of the Oregon Bicycle Racing Association, once again confirming our worst fears — that our national governing body cares as much about grassroots bike racing as did Kid Sally Palumbo, organizer of the six-day bike race immortalized in “The Gang That Couldn’t Shoot Straight,” by Jimmy Breslin. One can practically hear USAC caporegime Kid Stevie Johnson ringing up OBRA executive director Kenji Sugahara to hiss, “You could be dead in a bomb accident.”

The Gov. William J. LePetomane Protecting Our Phony-Baloney Jobs Here Gentlemen Citation for Excellence In Oversight: UCI President Pat McQuaid. I still haven’t gotten a “Harrumph” out of that guy. But what I’d really like is an “Adios.”

Charles Foster Kane Snowglobe of Destiny: Lance Armstrong. As reporter Jerry Thompson said of Citizen Kane, Armstrong was “a man who got everything he wanted and then lost it.” We may never know what his personal Rosebud was, but a sled is a fine thing for going downhill fast, if you don’t mind the bonfire at the bottom, and Armstrong was not the first to build his Xanadu from a drug-induced dream.

 

Tuesdays with Wilcockson: Rebuilding confidence in pro cycling

Everyone agrees that confidence in professional cycling has to be restored after the U.S. Anti-Doping Agency report revealed the sport’s sordid underbelly: the rampant blood doping within Lance Armstrong’s former U.S. Postal Service team and the ease with which riders fooled the anti-doping authorities (and the cycling community) at the height of the EPO era. And everyone—from the fans to the teams, from the riders to the organizers, from the officials to the media—knows that cycling’s longtime culture of doping has to be eliminated before the sport can truly move forward. The question is: How do we do it?

At the last count, three significant initiatives were on the table: the first, proposed in late October after the UCI’s acceptance of USADA’s decision to suspend Armstrong for life from Olympic sports and give the whistle blowers the minimum, six-month suspensions, was the Manifesto for Credible Cycling (MCC). Launched by five major European newspapers, the MCC focused on restructuring pro cycling, stiffening penalties and adhering to the anti-doping regulations in a similar way to the “clean” teams’ Mouvement Pour un Cyclisme Crédible (MPCC), an association that has gained greater acceptance and more members in recent weeks.

The second initiative was made public last week by Change Cycling Now (CCN), a group founded by Australian Jaimie Fuller, chairman of the Swiss-based compression sportswear company, Skins, and spearheaded by campaigning anti-doping journalists, Irishmen David Walsh and Paul Kimmage. The group’s Charter of the Willing has a similar agenda to that of the MCC, except it first seeks the resignation of UCI president Pat McQuaid and his predecessor Hein Verbruggen—with CCN putting forward Greg LeMond’s candidature as a potential interim UCI president. The group also posited the formation of a Truth and Reconciliation Commission, an idea that the UCI Management Committee considered and voted down a few weeks ago.

The third initiative has come from the UCI itself. Its Stakeholder Consultation, first announced a month ago, is now seeking feedback from the sport’s major stakeholders prior to a comprehensive review of the best ideas in the first quarter of next year. The UCI has already approached CCN for its input, and it has sent letters out to riders, teams, race organizers, national federations, administrators, sponsors, industry representatives, anti-doping organizations and sports bodies, asking for comments on a list of topics such as anti-doping, globalization, riders and the racing calendar—including the UCI’s potential joint venture with a group headed by Czech billionaire Zdenek Bakala to strengthen the pro cycling calendar that was announced this week. Among the goals are wider participation in cycling and identifying ways to make the sport even more interesting for spectators.

All these initiatives are in addition to the recently formed Independent Commission that is looking into the contentious issues revealed by the USADA report—including allegations that the UCI turned a blind eye to Armstrong’s alleged positive drug test at the 2002 Tour of Switzerland. Sir Philip Otton, an eminent British appeals judge who has extensive experience with similar cases in other sports, heads the commission. He and his two colleagues on the commission’s panel have already begun work and are due to host a three-week hearing in London next April before submitting a report to the UCI by June 1, 2013.

The necessity for a redirection in pro cycling was best summed up by Italy’s La Gazzetta dello Sport, one of the five journals that launched the MCC, which wrote: “The entire fabric of cycling has been rotten for too long. From the mid-1990s to today more than 400 professional cyclists have been disqualified or embroiled in doping investigations. The Lance Armstrong affair and the disturbing news coming out of the current investigation in Padua (Italy) show that the entire world of cycling has come through an extremely long and dark time. But we believe that the sport can start afresh—as long as a few rules are changed.”

The MCC newspapers opined, “It is impossible to start afresh with the existing structure” and suggested that future drug testing be instigated by WADA and administered by the national anti-doping agencies, and that penalties for doping be made more severe. In fact, WADA has already proposed doubling suspensions for “heavy” drugs and blood doping from two to four years in the draft for its new code that comes into effect in 2015.

As for the MCC’s demand that WADA spearhead future drug testing in cycling (rather than the UCI), that would be difficult to implement because WADA’s mission is to establish its all-encompassing anti-doping code and ensure that there is “a harmonized approach to anti-doping in all sports and all countries.” So if cycling-specific testing were added to its responsibilities that policy would have to apply to every other Olympic sport—which would be too costly for WADA, whose limited funding is split between the International Olympic Committee (IOC) and national governments. And its budget already has to cover such things as code compliance monitoring, cooperation with law enforcement agencies, drug-detection research, accreditation of testing labs, maintaining the ADAMS whereabouts database, coordinating regional anti-doping organizations and education programs, and athlete outreach.

Currently, drug testing for the sport of cycling is shared between the IOC, WADA, national anti-doping agencies, and the UCI. It should also be noted that a major part of the UCI’s anti-doping efforts is its pioneering biological passport program, started five years ago, which now monitors a pool of almost 1,000 pro racers—and gleans information from all the relevant anti-doping organizations. And as UCI medical officer Mario Zorzoli said recently, “Essentially, we are moving from the toxicology approach … to a more forensic science approach.” This means that there will be even greater emphasis on collaboration between the IOC, WADA, national agencies and the UCI—while WADA is keen to step up its coordination with international criminal agencies and national police forces in countries where doping is already a criminal offense.

What all this means is that it is getting more and more difficult for athletes who are doping to avoid detection, not just in cycling but also in all the sports that are adopting the passport program. Cheating cyclists had a free run in the 1990s because EPO was undetectable, and the USADA report showed that blood doping was rampant (along with micro-dosing with EPO) prior to the implementation of the UCI’s biological passport program in January 2008. The “forensic approach” is the way forward, and the success of that policy depends on the input of such things as establishing stricter anti-doping codes within every team, self-policing among athletes, and continued (and stepped-up) collaboration between all the various anti-doping agencies.

Considering the discussions that have already taken place between the ProTeams, the major race organizers, the Athletes Commission and the UCI, and the feedback being sought in the Stakeholders Consultation process, it seems that all parties have the intent to work together to rebuild the sport. Obviously, there are some issues that need greater consideration than others, especially the thorny one on whether (or how) to integrate past dopers into a cleaner future. One route toward that goal is a Truth and Reconciliation Commission, but that could be a gigantic, highly expensive undertaking that might take years to complete.

It so happens that the co-owner and manager of one of the teams affiliated with the MPCC, Jonathan Vaughters of Garmin-Sharp, who also chairs the pro cycling teams association, tweeted this last Friday: “I hear and understand the ‘clean the house out’ argument. Problem is, if we do it, with honesty from all, [there] won’t be anyone left to turn lights off. I might also add that without total honesty from all, instead of ex-dopers running business, you’ll have lying ex-dopers instead.”

Perhaps a better way to go is for teams to renew their clean-up efforts and perhaps conduct their own truth-and-reconciliation processes. That is what is already happening at Team Sky, though some critics (including Vaughters) are saying that the British squad has gone too far in its “zero tolerance” campaign, in forcing staff members to resign if they admit to any past connection with doping.

The major catalyst for restoring confidence in pro cycling has to be the independent Otton Commission, which must fully resolve the unfinished business of the USADA report, including a verdict on whether the UCI administration acted corruptly in regard to ignoring (or not taking seriously) the warning signs that doping in cycling was systemic. The commission’s findings will determine whether the next steps forward should be undertaken by a new, independent entity, the UCI’s current administration, an interim president, or the president who’s elected by delegates from the world’s 170 or so national cycling federations at next September’s UCI congress.

Whatever action is carried out, it’s the hope and expectation of everyone concerned, including proponents of the MCC, MPCC and CCN, that the public’s confidence in cycling will be restored and the sport will be in a position to begin building toward a brighter, cleaner future.

 

Follow me on Twitter: @johnwilcockson

Image: Fotoreporter Sirotti

Turning Point

The effect of the release of USADA’s “reasoned decision” and the accompanying documents has been rather like a Hollywood special-effects explosion. Debris has been raining down from the sky long after the explosion itself has ceased to reverberate. Some of us continue to wince and duck because we know there’s more in the sky than just blue. With a single download George Hincapie has gone from one of the United States’ most beloved riders, to one of its most vilified. Johan Bruyneel has gone from genius mastermind to evil genius. So many characters from the heyday of American cycling have been thrust into the role of criminal that Tyler Hamilton’s one-time team director Bjarne Riis—an enigmatic figure if ever there was one—has the enviable position of occupying a kind of moral purgatory where people aren’t really sure just how to feel about him.

Reams continue to be written about the USADA case, Travis Tygart and, yes, Lance Armstrong. Some of it, like Charles Pelkey’s recent Explainer, will be reasoned and objective. Some of it, such as Malcolm Gladwell’s piece for Business Insider, will get the conclusion wrong due to a lack of understanding of the facts; simply put, Gladwell doesn’t understand that the public wants a clean sport. Unrestrained doping results in deaths, and deaths are bad for the sponsors. Others, like John Eustice’s piece for TIME, hails from an outlook of such moral ambiguity one would prefer he didn’t speak on behalf of the sport; his attitude is a great example of what got us into this mess. This is no time for more of the same. The biggest surprise came from Competitive Cyclist’s “What’s New” blog, which is the most unapologetically ambivalent piece I’ve been able to find. Unfortunately, cycling fans don’t seem to be willing to entertain negative capability where Armstrong is concerned. As a result, no one I know is ready for nostalgia.

One wonders about the curious silence of Sally “Lance Armstrong is a good man” Jenkins, the Washington Post columnist and Armstrong biographer who has been known to take on a sports icon directly, such as when she wrote, “Joe Paterno was a liar, there’s no doubt about that now.“ And then there’s the astoundingly politician-like flip-flop of Phil Liggett who has been far more effective as a PR agent for Armstrong than Mark Fabiani was. His statement that he finds it “very hard to believe Lance Armstrong did not dope” falls rather short of the more definitive, ‘I believe Lance Armstrong doped’, was nonetheless a shocker for those who watched him on the Four Corners program on Australian television, and re-broadcast by CNN in the U.S.

No matter what faults readers may find with the print media, they cannot compare to the sin committed in the orchestrated  slander of Tyler Hamilton and Floyd Landis by Liggett and co-commentator Paul Sherwen. In allowing Armstrong to join them as an investor in an African gold mine, they gave him their short hairs, and the last vestiges of their objectivity.

The outrage about Armstrong is really understandable. His seven wins in the Tour were a Ponzi scheme that even Bernie Madoff would admire. How Armstrong managed to do what he did, why he did it, why others aided him, all of that is easy to process. It’s a word I keep coming back to: coercion. At some level, everyone who succumbed felt pushed by forces outside their own will. What has been harder to understand is how the reception to the Armstrong story changed over time.

In 2001, almost no one wanted to hear any suggestion that Armstrong wasn’t clean. For a long time, David Walsh was treated as if he was running around in a tinfoil hat. Even in 2005, once the allegations were out there more firmly, the cycling world still seemed to have their hands at their ears, collectively yelling “la-la-la-la I can’t hear you.” But by 2009 it was apparent, based on—if nothing else—comments here on RKP, that a great many serious cyclists had come to the conclusion that Armstrong wasn’t clean. It was also apparent by that time that a great many stories had emerged of just what a domineering personality he was. I’ve often wondered just how much peoples’ dislike of Armstrong greased their ability to conclude that he was a doper. Once a villain, then why not all-in?

So while the Friday Group Ride is a few days away, I’d like to pose a few questions to you readers: When did you come to the conclusion that Armstrong was a doped athlete? If the tipping point for you came before the USADA Reasoned Decision, what served as your personal tipping point? Also, if your change of opinion came before the Reasoned Decision, did the release of those documents change anything for you, even if it was only to cause you to hate Armstrong even more? Finally, for those of you who have been outraged by what was detailed in the Reasoned Decision and its supporting documents, why did it anger you in a way the same allegations made previously did not?

Now, having asked all that, I’ll make a final request: This is meant to be a conversation, not an occasion to vent self-righteous spleen. We want to hear from as many readers as possible, so we ask that you try to keep your comments both brief and civil. Thanks.

 

Image: John Pierce, Photosport International

Endemic

It’s a term used to connote belonging to a particular population. It has been said that doping was endemic to grand tour riders of the 1990s and 2000s. It is also used to describe those publications that serve a particular niche, such as cycling publications. Finally, advertisers who are courted by these enthusiast magazines are also called endemics.

Accuracy notwithstanding, the term carries with it a certain connotation, one that suggests inbreeding. It is, however, a term that defines both the relationships and editorial scope of all cycling publications.

There has been a fair amount of criticism in our comments section, on Facebook and the various Internet fora about how the Lance problem was allowed to go for so long.

I finally got a bee in my bonnet when I encountered criticism of Bicycling’s former editor, Steve Madden, for the piece he wrote for the site he manages, Sports on Earth. A buddy wrote to me, “Please don’t ever, EVER forget that you cats serve the public first.”

On this point almost all of us can agree. Believe me, I can find any number of publishers and MBAs who will argue that  publications are meant to serve their owners or their shareholders or even their advertisers. I call bullshit. It’s my firm belief that a publication (whether in paper or on the Internet) is meant to serve a readership, first and foremost. Without readers, the rest is academic. It’s not the chicken-or-egg question that some folks in publishing would have you think.

So while everyone can agree that a publication is meant to serve readers, we may differ on just what constitutes service. In my mind, the way you serve your readership is borne out in the publication you deliver. TIME is journalism at its best: diverse, analytical, probing. Sports Illustrated is consistently the best photography and writing being done in sports. Similarly, Outside is a sports magazine that runs incredible writing and photography, but it is different from SI in that its reader is the doer, not the watcher.

In other words, not all publications have the same orientation, the same duty. Yes, we all serve the reader, but we serve the reader in different ways. Bicycling has never been about investigative journalism. I liken it to People, but for the bike industry. And I mean that as no put-down; editor Peter Flax has a terribly difficult job—sure, it’s not brain surgery, but pulling together the disparate threads of that magazine is harder than most folks think. It’s not a job I want. To put a finer point on the distinction, my sense is that (and I write this with the admission that I haven’t sold them a piece since 1993) like People they surf trends, trying to drop in at the perfect moment, then riding them until they die out at the beach. Expecting solid investigative journalism into doping from Bicycling is rather like expecting them to cover your local industrial park crit. It’s just now what they do.

You may ask why they don’t do investigative journalism, and the answer is simple: They are endemic. You can look at any bike magazine around the world, apply the same test and get the same answer.

So how does advertising play on this? For an endemic magazine, there really is only one pool of advertisers: bike companies. Sure, every now and then Gatorade will throw you a bone, but the really big advertisers like Coca-Cola and GM (the non-endemics) don’t advertise in magazines with less than a half million readers, which is to say they don’t advertise in any bike magazines. Rodale, Bicycling’s publisher, is able to put together network deals where a company like Ford will appear in several (if not most) of Rodale’s titles because in aggregate they present a large and broad readership.

The upshot is that bike magazines have a far cozier relationship with their advertisers than is helpful. Write something truly negative about a bike company, and they’ll pull their ads. Without the Cokes, the Chevys, the Oreos bolstering your advertising to weather the storm, many publishers simply choose not to write anything critical. At all. So cowed are most endemic publishers (and this is true for magazines outside the bike industry as well), they won’t even mention obvious flaws in a product they are reviewing, which is truly a reader disservice, but it helps illustrate the confusion some publishers experience as to just whom they serve.

L’Equipe led the charge on exposing Armstrong, and if you recall, there was quite a bit of resistance to what they had to say, stateside. Sometimes, investigative journalism is a thankless task. Woodward and Bernstein came under heavy fire as they reported Watergate. Nearly lost their jobs at one point. It takes more than integrity to report true investigative journalism. It takes cojones cut from billet titanium and an army of lawyers on retainer.

Which brings us to the other, maybe greater, truth to why none of the endemic bike mags in the U.S. led the charge against Armstrong—lawsuits. Forget for a moment that bailing advertisers could cripple a magazine for a while.The real issue is the opposition any magazine would have faced had they tried to indict Armstrong and co.

Let’s suppose for a second that Madden had commissioned a Bicycling contributor with the impartiality of Solomon and the dogged determination of Sisyphus to chase Armstrong, and he uncovered everything contained in USADA’s report. The first lawsuit would have come from Armstrong himself. The second would have come from Bruyneel. The third would have come from Tailwind Sports. The fourth would have come from the UCI. The fifth would likely have come from USADA itself and for good measure, USA Cycling might have contributed a sixth lawsuit.

There’s not a bike magazine on the planet with the kind of reserves to make that defense worthwhile. There’s not a story a bike magazine can run that’s worth as much as the value of the publication itself. Forget the fallout over publishing that piece for a moment and let’s go to the internal fight that would have taken place to try to put that piece in the magazine. I believe the publisher during most of Madden’s tenure was Chris Lambiase. I can’t promise that Lambiase would have vetoed the story, but I can assure you I’ve worked for plenty of publishers who would have.

How about yet another scenario? Let’s pretend that Bicycling did run that story. It’s possible to run extraordinary allegations, allegations that go against everything the public believes about someone, allegations so at odds with what the public wants to see they just choose not to believe it. Just ask David Walsh and Pierre Ballester, the authors of “L.A. Confidentiel.” As RKP contributor Charles Pelkey noted in his most recent Explainer column, Walsh and Ballester wrote a book that covers most of the allegations against Armstrong contained in USADA’s report. Only they did it in 2004.

This points to another fundamental truth: For a long time there was a tide against the truth where Armstrong was concerned. Most people really didn’t want to know the truth. They wanted to believe in Santa Claus.

Any number of magazines reported on the broad strokes of “L.A. Confidential” and the public didn’t just turn deaf ears to the song, they covered their ears and changed the station. Heck, USADA could have begun an investigation then, but didn’t. It’s fair to ask why. If you want to be upset about inaction, press USADA for why they didn’t charge before Armstrong won his seventh.

What I’m driving at is the reality that real investigative journalism is the domain of non-endemic publications. It takes newspapers like The Times and l’Equipe to have both the staff necessary to allow someone to chase a story of this magnitude and the resources necessary to defend against the blowback when they publish a truly negative story. The corollary to this is the UCI’s lawsuit against Paul Kimmage and the fact they didn’t name any of the publications that ran Kimmage’s work (though NYVelocity would have been an easy target).

Which brings us to cycling’s incredible Catch-22. Cycling is a small sport here in the U.S. It receives the attention of big media as often as the fat kid gets the cute girl on a date—almost never. Unless the sport grows, drawing more eyeballs, it will never command the attention of non-endemic publishers here in the U.S. And unless cycling can get clear of doping scandals, it won’t ever grow again like it did during Armstrong’s reign.

 

Image: John Pierce, Photosport International

The Explainer: I’m shocked, shocked, I say

Dear Explainer,
So, what do you think? I am guessing that USADA’s document dump today (Wednesday) must have caught your attention by now.

Do you have any thoughts on the evidence presented? Any surprises? Will it have any impact given that we’re only seeing one side of the whole case?

Do you have any thoughts on what the UCI might do?

Winners? Losers? Who are they?
– Daniel

Dear Daniel,
Let’s start with the winners and losers. Aside from Armstrong, the list of losers is pretty extensive, starting with Johan Bruyneel, who was fired yesterday, Michele Ferrari, who may be facing additional criminal charges in Italian courts and the rest named in the original June 12, 2012 charging document: Dr. Pedro Celaya, Dr. Luis del Moral and Pepe Marti. When all is said and done, the sport will be rid of these guys. Good-frickin’-riddance, gentlemen. Don’t let the door hit you in the ass on the way out.

To a lesser degree, there is that list of riders who that found themselves in the untenable position of continuing to lie – and risk lengthy suspensions or even criminal perjury charges – or to give up on that whole culture of omerta, the “code of silence” that has long governed the world of professional cycling. I applaud their decisions to “come clean,” but sure do wish it had been 10 years ago.

Also on that list of losers has to be the parade of “journalists” who – for reasons of sycophancy, a desire for profit or both – sang the praises of a man they knew to be a bully and, above all, a cheat. And, no, they can’t claim they didn’t know. The only way they didn’t see the obvious is that their seats on the gravy train were too damn comfortable and they didn’t want to stand up and take a look. They should be ashamed.

Sadly, there is a much larger group of other journo’s – myself included – who, while declining to heap praise on Armstrong, didn’t do nearly enough with the information that we had. We poked around the edges and only did stories when we knew we had our asses completely covered. Few of us took the big risks. Whether driven by fear of lawsuits or losing our jobs, we should, nonetheless, be embarrassed. I know I am.

The winners? That list is a helluva lot shorter. It includes – but is not limited to – Betsy and Frankie Andreu, Emma O’Reilly, Dr. Prentice Steffan, Stephen Swart, Christophe Bassons, Greg LeMond, Filippo Simeoni, David Walsh, Pierre Ballester and Paul Kimmage. Each of those people has consistently stated positions that were often contrary to their own interests, risking career, financial security and reputations to pursue what they saw as the truth.

Wednesday’s revelations show they were right.

I’m shocked, shocked, I say

There have been some who said that Wednesday’s revelations were earth-shattering news. Some even declared they were “shocked.”

Look, the evidence was extensive (you can see that for yourselves), but was it surprising? Not so much.

While blowing off most of the work associated with my current “day job” on Wednesday, I had the feeling that I was reading the unabridged version of “L.A. Confidentiel,” which David Walsh and Pierre Ballester wrote eight years ago.

Walsh had his suspicions even longer than that. I had the privilege of meeting Walsh for the first time at the 1999 Tour. It wasn’t just a quick introduction, either. We spent the entire Tour together, as it was Walsh’s tradition to join up with the VeloNews crew, coordinate hotel accommodations and meals and the drive from each day’s village departé to the press room at the finish. I was the driver, riding shotgun was my former boss, John Wilcockson and crammed into the back seat were Walsh and Australian journalist – and world famous Hawaiian shirt aficionado – Rupert Guinness.

That meant hours in the car, often at slow speeds, so we could stay in range of race radio, and then more time in the press room as we all crafted our stories and then dinner and then often late nights at the hotel bar. Shallow and myopic as most sports writers are, our conversations pretty much revolved around a single subject. Yup, that would be cycling.

Do recall, that the 1999 Tour came on the heels of the previous year’s devastating “Festina Affair.” With teams arrested, ejected or simply packing up and leaving the Tour under cover of night, a lot of us pretty much expected that by 1999, the costs of doping far exceeded any benefit and that sport would be clean from here on out.

Certainly, that was the hope of 25-year-old Christophe Bassons, who had earned the reputation as a clean rider when teammates testified that he had been the only member of the 1998 Festina team who refused to dope. Now a member of Francaise des Jeux, Bassons saw the 1999 Tour as an opportunity for the entire peloton to speak out against doping.

The new hero of this “clean era” quickly emerged as cancer survivor Lance Armstrong scored an impressive win in the prologue at Le Puy du Fou.

Within days, though, news broke that none other than Armstrong had tested positive for corticosteroids. There hadn’t been a Therapeutic Use Exemption … but the UCI accepted a back-dated prescription for topical cream that Armstrong said was for the treatment of saddle sores. It was quickly called the “butt cream defense,” by skeptics in the press room. So much for the new and clean era.

Had the UCI handled that first positive properly from the start, Armstrong would have been kicked out of the 1999 Tour right then and there. But no, he went on to dominate the race, beating former Festina rider – and admitted doper – Alex Zülle by nearly seven-and-a-half minutes. Really, following the disastrous crash on the Passage du Gois on stage 2, which took out many of Armstrong’s top rivals, and a dominant performance in the stage 8 time trial at Metz, the GC picture was pretty much settled before the race ever hit the mountains.

So instead, Walsh spent his time working on what he viewed was the “real story” of the Tour, namely that Festina had changed nothing in the sport, other than to drive doping deeper underground.

Walsh spent time interviewing riders like Bassons, who was becoming increasingly frustrated both by the lack of a definitive statement from top GC contenders regarding doping and, more importantly, by the social pressure he was getting from other riders to drop the subject. Chief among those pressuring Bassons was the man in the yellow jersey, who, as Walsh reported, had threatened a cajoled the Frenchman, urging him to “shut up” about doping and efforts to clean up the sport.

Walsh saw Bassons as a lone hero. Documents released this week show Armstrong saw him as an idiot and “a pussy.”

By the time we reached Paris, Walsh was pretty much barred from the Postal camp. He left the Tour “with a bad taste” in his mouth, but he had his sights set firmly on Armstrong.

He would return to the Tour, but his reporting continued to focus not on what he believed was a parade of lies, but on the doping that produced those lies.

In 2002, Walsh uncovered evidence that Armstrong had been working with the notorious Dr. Michele Ferrari and had an article ready to run in the Sunday Times of London. Having learned of that fact, Armstrong did a preemptive interview in which he casually stated in passing that he had worked with Ferrari, as if it were no big deal.

Over the next couple of years, Walsh’s Armstrong file grew. He interviewed the Andreus, who consistently stood by their position that Armstrong had revealed his use of performance-enhancing drugs to doctors before beginning chemo-therapy in 1996. Frankie took some serious career hits, both in cycling and in broadcasting, but he stuck by his story. Betsy was characterized in any number of less-than-complimentary ways by the Armstrong camp, but she stuck by her story.

So, too, did former Postal soigneur, Emma O’Reilly, who, after speaking with Walsh in 2003 had to endure personal attacks on her character. But she stuck by her story.

Steffan, the original team doctor at Postal, was fired after some riders complained that he wasn’t doing enough to give them a competitive edge. Under pressure from Armstrong, Steffan was temporarily dismissed from his job on the Slipstream team. He was threatened, essentially blackmailed about his own personal struggles with substance abuse and he stuck by his story.

Working with French journalist Pierre Ballester, Walsh wrote “L.A. Confidentiel,” which was released on the eve of the 2004 Tour. In retrospect, that book still serves as the essential framework for the document bomb that was released this past week. The evidence made available to all of us just adds to the case and reaffirms that Walsh and Ballester were right from the start.

In response, Armstrong’s legal team filed suit in France and in Great Britain, where a translated summary of the book’s main charges appeared in the Sunday Times. The French suit was dropped, but the Times eventually offered an out-of-court settlement and Armstrong declared victory against the man he and Johan Bruyneel privately called “the Troll.”

On stage 18 of that Tour, Armstrong lashed out at another rider – Filippo Simeoni – who had made the “mistake” of testifying against Ferrari in a 2002 criminal matter. He was the only rider to do so. Simeoni never said anything about Armstrong and only testified as to his own experiences with Ferrari and doping practices.

You will probably recall that the tension between the two was already high before the 2004 Tour. When Simeoni found himself in a relatively unthreatening break on Stage 18, it was the man in the yellow jersey who set off in lone pursuit. Armstrong stayed with the break until Simeoni agreed to wait for the peloton, allowing the other escapees a chance.

Armstrong famously gave Simeoni the zip-the-lip gesture as the peloton approached and the Italian testified that the race leader also threatened him. Threat or no, Simeoni’s career was cut short, even though he did get some joy out of earning the 2008 Italian national champion’s jersey … but even then, he was regarded as something of a pariah. Nonetheless, he stuck by his story.

Is there any value to having access to liars?

I missed the Tour that year, as I was slated to cover the Vuelta and being part of a family with a 10-year-old boy and a four-year-old girl in the house didn’t make doing three-week grand tours all that easy at home. That said, I kinda wish I would have been there.

Walsh, as was his practice of many years, joined the VeloNews crew for the three-week journey through France. Embarrassingly, though, after pressure was exerted from the Armstrong camp, Walsh was informed that he was no longer welcome in the Velo-mobile.

WTF? Given a choice between standing by a friend and colleague or having access to “his Lanceness,” Walsh got the boot.

Later at the Vuelta, where I had the pleasure of taking my son with me, I tracked down Michael Barry for a quick post-stage interview. With young Philip at my side, we chatted about the race and the Postal team’s hopes for the Spanish Tour. We were just getting to the interesting part about the apparent tension between Floyd Landis and team management when Johan Bruyneel walked up, grabbed my press badge, glanced at the name and flicked it back into my chest.

“Pelkey, eh?” he said. “So, how’s your little Irish friend?”

“Excuse me?” I asked.

“That fuckin’ troll, Walsh,” Bruyneel growled. “David Walsh … what did you do to get mentioned in the acknowledgments of that piece of shit book of his?”

“I’m not sure,” I said. “We’re friends and we trade information now and then, but ….”

Suddenly Philip piped up and said “Mr. Walsh was at our house for dinner! Dad gave him a ride in our Army jeep. Maybe that was it.”

That made me smile. Bruyneel didn’t see the humor of the moment. He grunted, walked away, taking Barry with him. From that point forward, I had no access to Postal riders for the duration of the Vuelta, save for sitting in on press conferences … and it really didn’t matter.

A one-sided story?

As you note, Wednesday’s “reasoned decision” from USADA is pretty much a one-sided presentation of why the agency reached the conclusion that Lance Armstrong should be banned from competitive sport for life and that his results dating back to 1998 should be negated.

It was the “prosecution’s” case, that which would have been presented to an arbitration panel had it ever gone to arbitration. Personally I would have been interested – perhaps amused – to see how the defense would have presented its side. But remember, it’s not USADA’s fault that it didn’t go to arbitration.

The timing was actually kind of funny. Just one day earlier, Armstrong’s attorney, Tim Herman had sent a scathing five-page letter to USADA demanding the agency send its entire file to the UCI, not just a limited report packaged in a way to support its case.

Be careful what you wish for, dude.

Not only did USADA’s “Discovery Team” drop the whole package in the UCI’s lap, they let the rest of us sort through it, too.

As it turns out, the agency had justification for the delay. They produced the entire case as if it were presented at hearing. The reasoned decision itself was a detailed, beautifully footnoted, 200-page document, accompanied by nearly 1000 pages of appendices and supporting materials. Most damning, were the 26 sworn affidavits from witnesses, 11 of whom were former Armstrong teammates.

Herman didn’t even miss a beat.

“I’m not suggesting that they are all lying, but I am suggesting that each witness needs to have confrontation and cross examination to test the accuracy of their recollection,” he declared, with what I assume was a straight face.

And damn, if he isn’t right. The whole arbitration process is governed by Federal law, under 36 USC § 220522 (a)(8), which requires any athlete charged with a violation that might result in a period of ineligibility be provided “with fair notice and opportunity for a hearing.”

Part of that hearing process, of course, is the opportunity to confront and cross-examine adverse witnesses. By gum, Herman hit the nail right on the head … but for the fact that his client declined to participate in the hearing.

It’s a little late now, Tim.

The UCI is left in the awkward position of either accepting the USADA case on its face value, or appealing the whole thing to the International Court of Arbitration for Sport where it will likely be defending its own conflicts of interest and apparent disinterest in pursuing the allegations of the sport’s highest-profile rider.

Read the decision. Scan the documents. Combined, they constitute the richest treasure trove of evidence underscoring just how corrupt riders – and governing bodies – can be. My bet is that the UCI will take a pass. They’ve stood up for Armstrong in the past, but there is considerable risk in doing so now … and very little benefit. The UCI isn’t likely to take a big risk.

No, the only people in this story willing to take risks for little or no benefit were those “winners” I mentioned earlier. And, actually, when you come to think of it, that fact alone suddenly makes the list of “winners” a lot longer. The real “winners” in all of this are those who love the world’s most beautiful sport. Fans and riders alike. Hopefully, cycling will emerge from this embarrassment all the better. I, for one, will keep my fingers crossed. I promise, though, never to say that I am “shocked” if it doesn’t turn out that way.
– 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.

Tuesdays with Wilcockson: Doping on my mind, Part V

Last week, in different cities hundreds of miles apart, I saw, quite by chance, two cyclists who personify the quandary posed to cycling by celebrity racers who some see as heroes, others as cheats. Each of those cyclists sported a natty pirate’s goatee and bandana above a uniform that resembled the Mercatone Uno team kit of the late Marco Pantani. One of my sightings was in Philadelphia, the other in Boulder, and because I was driving a car in traffic I couldn’t stop to ask those riders what they thought about Pantani.

This past weekend, a famous pro cyclist who was thrown out of the 2007 Tour de France for blood doping, retired from cycling in glorious style. The principality of Monaco honored one of its residents, 2012 Olympic gold medalist Alexander Vinokourov, with the final race of his career on a circuit along Monte Carlo’s waterfront, next to the luxury yachts of billionaires. Among those who came to the party was the sport’s greatest racer, Eddy Merckx, along with men who admitted doping, including Jan Ullrich and Richard Virenque.

Regarding the two Pantani look-alikes, the chances are they regard the 1998 Tour de France and Giro d’Italia champ as one of the greatest climbers the sport has ever produced, and not as the rider who lost a Giro he was winning because his blood tested above the 50-percent-hematocrit level, or the sad drug addict who died at age 34 from a cocaine overdose.

At the farewell race in Monaco on Sunday were several current pros regarded as leaders in the anti-doping movement: world champion Philippe Gilbert of BMC Racing, Chris Froome of Team Sky and Vincenzo Nibali of Liquigas-Cannondale. On Monday, Gilbert tweeted a photo of himself standing next to the man of the day and one of his sons, with the caption, “The last race of Vino yesterday! Great champion!”

In Italy, Pantani is revered as one of his country’s greatest riders, despite the suspicions that he used EPO to notch his grand tour victories and break course records on climbs such as L’Alpe d’Huez. His name is still etched in stone as the winner of the Giro and Tour; a major Italian pro race is named after him; Pantani memorials dot the countryside; and the Giro organizers regularly honor him with special awards on famous climbs such as the Mortirolo. But on this side of the Atlantic, Pantani is mostly regarded as a cheat.

In Kazakhstan, despite that 2007 blood-doping positive, Vinokourov is revered as a national hero, the country’s only Olympic gold medalist in a mainstream sport. On multi-story buildings in the capital city, Astana, giant murals of Vino adorn the walls, and he’ll remain popular as he converts from rider to manager of Team Astana. Clearly, no one in Kazakhstan, and, it seems, quite a few pro racers, consider Vino’s racing legacy a tainted one.

Even though it seems the Europeans have their heads in the sand when it comes to doping, that’s not the case in the U.S. Neither Vino nor Pantani is considered a hero here (except perhaps by those Il Pirata fanatics!), but we have to wait and see how the public eventually views the generation of American riders who raced alongside Pantani and Vinokourov in the 1990s and 2000s.

Some of them have already said they used banned drugs or blood-doped (including Frankie Andreu, Tyler Hamilton, Floyd Landis and Jonathan Vaughters), others have been outed by a former teammate (including Tom Danielson, Christian Vande Velde and Dave Zabriskie), USADA has suspended Lance Armstrong for life and nullified all his Tour victories (though the Texan continues to deny ever using performance-enhancing  drugs), while others are likely to be prominent as involved witnesses (including George Hincapie, Levi Leipheimer and Kevin Livingston) in USADA’s upcoming report into the alleged doping conspiracy at the former U.S. Postal Service team.

USADA says the revelations in its report will be devastating, and will knock American cycling sideways. But in essence it’s very little different, or even similar, to what has happened in other countries. Over the past 20 years, most cycling nations have had to cope with doping scandals that involved their leading teams or star riders.

Chronologically, the Dutch had to cope with their all-star PDM team getting sick (with later evidence of EPO being used) and dropping out of a Tour de France it was hoping to win; the French were demoralized by the organized doping uncovered in two of their top teams, first Festina and then Cofidis; the Spanish were hit by blood-doping revelations at their favorite squads, Kelme and Liberty Seguros (formerly ONCE), at the time of the Operación Puerto police bust; the Danes were shocked by the Puerto shockwaves that hit their Team CSC; the Germans were even more scandalized by the admissions of doping from most of their Deutsche Telekom stars; and the Swiss had to witness the dissolution of their all-conquering Team Phonak because of repeated doping positives.

I haven’t yet mentioned the Belgians and Italians in this brief overview because countless riders and teams from those countries have either been the subject of police drug investigations or connected with alleged doping doctors. It’s well know that the Italians were the first to experiment with EPO, as early as the late-1980s, but cycling fans (including the stalwart Pantani supporters) are as enthusiastic about cycling as they have ever been, while doping offenders such as Ivan Basso remain as popular now as they were before being suspended. And the crowds in Belgium at the spring classics are just as thick now as they were before their (still) icons Johan Museeuw and Frank Vandenbroucke were busted for doping.

Common features in revealing the organized doping in those eight European countries were initial police involvement (Festina Affair, Operación Puerto, Italy and Belgium investigations), and tell-all books by team personnel (Willy Voet of Festina, Jef d’Hondt of Telekom). Only after those developments did the media pick up on the stories and get athletes to talk—as with the series of articles in Germany’s Der Spiegel that resulted in Telekom team members Rolf Aldag, Bert Dietz, Christian Henn, Brian Holm, Bjarne Riis and Erik Zabel all admitting to EPO use.

Other common features of those European doping affairs were the lack of in-depth investigations into those teams by anti-doping agencies, no retroactive suspensions (most of the above names are still working in cycling), and virtually no stigma attached to their doping offenses. That’s in contrast to what has happened, or appears to be happening, in the U.S.

Yes, there are similarities with Europe, with frequent media allegations of doping against Armstrong and his Postal squad (many of the pieces based on the extensive investigative reporting work of Irish journalists David Walsh and Paul Kimmage), admissions of doping by certain riders, and more extensive confessions from Hamilton and Landis (but only after they’d spent fortunes on failed appeals against their doping suspensions in 2004 and 2006 respectively). But what’s different has been the repeated legal cases that have revolved around the alleged doping by Armstrong and Team Postal.

In 2004, there was the arbitration hearing demanded by Armstrong’s lawyers after SCA Promotions failed to pay a $5 million bonus predicated on his winning a sixth consecutive Tour. That case was eventually settled out of court, with SCA paying the bonus plus $2.5 million in interest, costs and attorney fees. Then came the two-year federal fraud investigation into the Postal team, led by the FDA lawyer Jeff Novitzky, that was suddenly abandoned this past February. The USADA investigation, which took up the threads of the FDA work, is different because, as far as I can recall, a national anti-doping agency has never done anything on a similar scale—perhaps because most such agencies don’t have the funding or resources to contemplate such work.

The details of the USADA report are likely to start being known after it’s sent to the World Anti-Doping Agency and the UCI by next week, but for now most of the subjects in that investigation continue their cycling careers (as riders, coaches, team officials or race organizers), while Armstrong continues to deny doping despite the verdict handed down by USADA.

One question remaining is whether American fans will react to the eventual “devastating” details in the USADA report in the same way the Europeans have reacted to the doping sins of their (remaining) heroes. If the British are as close as we can expect to get as an example, then the negative reactions to any more doping revelations could be limited. I was watching the recent Tour of Britain on line when the highly respected British commentator David Harmon of Eurosport said: “Good to see Ivan Basso here—one of the really big superstars.”

If he were still alive and racing, Pantani would likely have elicited the same designation.

Follow me on Twitter: @johnwilcockson 

Image: John Pierce, Photosport International

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.

Tuesdays with Wilcockson: Doping on my mind, Part III

Working as a full-time writer and editor in cycling for more than 40 years, and having raced and trained with elite athletes in Europe before that, I was always aware of the sport’s netherworld. The place where riders decided to cut corners, imitate their peers, or accede to the desires of their team directors; the place where soigneurs, sports doctors and charlatans made it possible for those riders to use performance-enhancing drugs or methods. None of them, especially the riders, was willing to talk about that netherworld because they feared reprisals from their peers, penalties from the authorities, or loss of respect from the public.

And without true details, other than rumors or circumstantial evidence, it was impossible for journalists to write accurately on that netherworld. Like others, I did write what was possible. Over the past two editions of this column, I’ve mentioned some of the many stories I wrote about doping in cycling at a time when very little was known about the subject outside of Europe, including lengthy pieces I did for The Sunday Times of London.

I’d become that newspaper’s first ever cycling correspondent (and its sister daily, The Times) in the mid-1970s, but only after writing long and persistent query letters to the editors to plead my case. That led to those once-stodgy British publications taking cycling as a serious sport, and I began contributing daily reports from the major events (including road, track and cyclo-cross races), which heightened the editors’ and the readers’ interest in our sport.

Because I developed a good relationship with the newspapers’ sports editors, they put their trust in me to write that first long piece on the Tour de France doping scandal of 1978 (when race leader Michel Pollentier was thrown out of the race after trying to cheat the anti-doping control). That article was among the first in the English language to (slightly) lift the curtain on modern cycling’s doping culture.

As with the decade before that Tour and for five years more after it, I followed the race alone, taking lifts with journalists from Belgium, France and Spain. That experience allowed me to get their different perspectives on cycling and to learn about their general reluctance to say much about doping. From 1984 onward, I traveled in cars whose expenses were paid for by the magazines that I edited: Winning for three years, Inside Cycling for a year and VeloNews for more than two decades.

Through the years, I traveled with a lot of different sportswriters. One was Irish journalist David Walsh who first came to the race in the mid-1980s. We often shared interview opportunities, like with Sean Kelly on the evening of a stage, when the three of us sat on the curb outside Kelly’s hotel, chatting about the race. David was with Irish newspapers at first, and beside his reporting work he wrote books about Kelly (published in 1986) and the other Irish star, Stephen Roche (1988).

While driving Tour stages, we had lively discussions about developments in the race and problems in the sport. Those discussions increasingly turned to doping after David’s pro cyclist friend Paul Kimmage retired from the sport and wrote his book “Rough Ride” about his four years in the European peloton, detailing the widespread use of drugs. Not a cyclist himself, David grew more skeptical about the sport, but that didn’t stop him writing “Inside the Tour de France,” his 1994 book of interviews that included a chapter on Tour rookie Lance Armstrong.

During our Tour discussions, I was often in the minority when David and VN colleague Charles Pelkey were in the car, talking about our suspicions on which riders were or weren’t doping. I liked to give riders the benefit of the doubt, but I always listened to their arguments, and their views inevitably influenced what I’d write—especially after the disastrous “Festina Affair” Tour of 1998. By then, David was a full-time reporter for The Sunday Times covering several sports including cycling. As a result, my lengthy piece on that doping scandal was one of the last I wrote for The Sunday Times after more than 20 years as its cycling correspondent.

Like many other longtime cycling journalists, I’ve been accused of being too close to the athletes and the teams to write with detachment about doping, and as such I’ve been complicit in cycling’s doping problems. That’s a subject I want to address in a future column. For now, I want to add that we always suspected that Tour contenders and champions in the 1990s, including Gianni Bugno, Claudio Chiappucci, Bjarne Riis, Tony Rominger and Jan Ullrich, were using EPO.

But there was never any evidence of that possibility until a trunkload of EPO (and other banned drugs) was discovered by the French police in Festina soigneur Willy Voet’s team station wagon on his way to the Tour in ’98. That opened everyone’s eyes to how cycling’s doping problems had escalated in the EPO era when use of the blood-boosting drug was so prevalent because it was not only very effective but also remained undetectable in lab tests for more than a decade.

I’ll continue my thoughts on doping in my next RKP column, focusing on the years when more truths started to emerge from cycling’s netherworld.

 

Follow me on twitter: @johnwilcockson 

Image: John Pierce, Photosport International

The Explainer: Why SLAPPing Paul Kimmage won’t work

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 added – CP)

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.

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.

The Way Out

We’re featuring another tag-team pair of posts regarding doping and our views on how well sanctions are working … and what might be done to improve the situation. What follows is my post. You can find Robot’s post here.—Padraig

For reasons I can’t explain, doping has yet to kill my enthusiasm for professional bike racing. My knowledge of what takes place in private has changed my view of the sport and injected a frustration into what would otherwise be a pursuit devoid of downside. Even so, I continue to watch.

And while I temper my tongue, I admit that because I’m a connect-the-dots sort, whenever anyone crosses the line first, there’s a moment, a moment I try to reduce to something even shorter than an eye blink, but a moment I can’t wipe away. I wonder if the winner is clean.

There are people in cycling who have, following various positive tests, claimed that cycling is winning the war on doping. People in high places, such as the ASO and UCI. If by winning they mean more positive tests, well then yes, we seem to be leading the race by 10 seconds with 40k to go.

How anyone ever had the epiphany that we should declare wars on concepts such as doping, facism or terror, I’ll never know. Weirder still is the fact that too few intelligent people have observed an undeniable truth: You can’t stamp out an idea, no matter how good or bad it is.

The underlying practice of doping—the desire to gain a competitive edge over one’s rivals by any means necessary set down roots in the very nature of survival. At its most elemental, the desire to win is the very desire to live. It wasn’t so many years ago that our ancestors were competing for food and shelter on a literal basis. Today, we’re competing with SATs, GPAs, income and Fortune Magazine rankings. It still comes down to a fight for resources.

That some athletes will go to whatever length is necessary to cross the line first should not surprise us. There’s a dark side to the human condition that emboldens some people to ignore rules that society has agreed to obey. These days, most everyone can find ready examples at hand in Wall Street and oil companies.

In 1982 a researcher named Bob Goldman began asking elite athletes a question. Would they take a drug that would guarantee them an Olympic gold medal but would also result in their death within five years?More than half the athletes surveyed responded yes, they would take the drug. From 1982 to 1995 Goldman continued to survey elite athletes and the survey bore the same result each time—more than half the athletes said they would take the drug.

The question became known as the Goldman Dilemma.

Recently, a group of researchers decided to pose the Goldman Dilemma to a population of non-athletes. Some 250 people were asked the question. Only two responded that they would take the drug. That’s less than one percent of the respondents.

The British Journal of Medicine published the paper last year. One of the study’s authors, James Connor, Ph.D., summed up the findings thusly: “We were surprised. I expected 10-20 percent yes.”

His big conclusion?  That “elite athletes are different from the general population, especially on desire to win.”

Thank you, Captain Obvious.

In reading the study, which was drier than sandstone, I drew two conclusions of my own. First, that doping isn’t going to go away. Ever. The drive to achieve fame, power and glory is too strong with some athletes to simply leave the result to chance. No length is too great for those athletes; stacked deck doesn’t begin to describe the lengths some would go to ensure a win. If you are willing to die prematurely to get a gold medal at the Olympics, then ordinary doping isn’t much of a threshold to cross.

The second conclusion I drew is that this population is very, very small. If the 250 respondents are representative of society, then less than one percent of the population will show this predilection. Unfortunately, I expect that sports will draw these people to an unusual degree. But here’s where nature steps in: No amount of drive can overcome a lack of talent. Not everyone who has the drive to achieve gold will also have the requisite talent necessary to reach the elite ranks of a given sport.

Without spending too much (any) time with the statistics regarding these slices of population, I suspect that less than five percent of all the cyclists with enough talent to make it to the pro ranks will also have the amoral inclination to take any drug necessary to guarantee a win.

In his book “From Lance to Landis,” cycling journalist David Walsh divided pro cyclists into two camps, the “draggers”—those who tended to initiate doping as a means to win, and the “dragged”—those riders who were essentially coerced into doping as a means to survive.

That less than five percent are your draggers, not the dragged. Get rid of them and you can have a reasonable hope for a clean sport.

A few years ago I wrote an Op-Ed for the Los Angeles Times in the wake of Bjarne Riis’ confession that he used EPO on his way to winning the 1996 Tour de France. Getting the LA Times editorial page interested in cycling is as difficult as getting a vegan interested in steak tartare. And yet somehow, they thought my idea—a truth and reconciliation commission a la South Africa to get at doping practices and doctors—had enough merit to warrant their attention.

The piece made it its way to the powers that be at the UCI.

I barely had space enough to get the idea out before I had to close the piece. It amounted to a political campaign ad—great idea with few details. It’s worth spelling out the finer points of my suggestion. Even if the UCI is as likely to listen to me now as they did in 2007.

The idea is simple. It is based on an invitation: Come tell us what you know. Tell us what you’ve done, and tell us anything you have seen with your own eyes. Give everyone until the end of 2010 to fess up with anything on their conscience. Add a little caveat: if you test positive after December 31, 2010, you will be banned from the sport for life.

For those who confess, they will be granted immunity for all past misdeeds. You did blow on a stripper’s ass in Geneva? No worries. You won a stage of the 2009 Tour de France hopped up on growth hormone and pig’s blood? Your win stays in the record books.

However, for the confession to count, you have to tell everything you know to the tribunal on the spot. You can’t hold monthly press conferences and tease out details like kite string in a weak wind as Bernard Kohl did with the German media.

What’s more, I’d add yet another incentive. For every rider who tested positive sometime in the past, if they didn’t tell the full story and divulge everything they knew, were they to confess their full knowledge, they could get their salary reinstated for the term of the previous suspension. Back pay.

If the UCI pursued such a course of action, here’s what I think would happen: All the riders of the ilk of David Millar and Tyler Hamilton—guys who undoubtedly doped, but would be counted among Walsh’s dragged—would fess up before Thanksgiving. A few guys would weigh the odds and confess by Christmas. And there would be at least one bombshell as everyone was about to pop New Year’s Eve bubbly.

After that, each doctor implicated by a rider could confess his part and agree to cooperate with the UCI and WADA or face losing his medical license.

But the guys we would most like to catch, the ones who ultimately coerce the rest of the peloton—either implicitly by being faster or explicitly by telling them they need to step up and deliver for the team—won’t say a word.

Would we hear from Vinokourov, from Basso, from Ricco? Don’t hold your breath. Would Ullrich speak up if he knew the truth could restore some of his tarnished reputation?

Maybe.

So could this be a one-time house-cleaning? Not likely. It is something the UCI would almost certainly have to bring back at irregular intervals (say three to five years depending on how fast the racing is) just to find out what the latest bunch of doctors have cooked up. In nabbing the doctors there would be a reasonable hope of plowing that field under for a few seasons.

If we are lucky, years from now we will remember Bjarne Riis as a heroic figure not for his incredible talent for managing a team of talented riders and encouraging them to work together, nor for his Tour de France win. If we are lucky, he will be remembered as a hero, the first rider to have the courage to stand up and tell the truth without first being caught.

Images: John Pierce, Photosport International

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