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?
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.
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.
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?
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.
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?
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
Some things in this world are unlikely. Finding Bigfoot is pretty unlikely. So is peace in the Middle East. Other things are just impossible. Finding Bigfoot eating dinner at a diner with Elvis, safe to say, is impossible.
Somewhere in the middle of these two poles lies the possibility that the suit Greg LeMond has filed against Trek Bicycles and their countersuit against him will be settled out of court. LeMond, for better or worse, seems to want his day in court.
In broad strokes, the cases are pretty simple. LeMond is suing Trek for failing to “exert best efforts regarding the LeMond brand.” In realpeople speak that’s, ‘They didn’t sell enough of my bikes.’ Following LeMond’s suit, Trek countersued and terminated its licensing agreement in April of this year. Today, the Lemond Bicycles web site is a single page allowing purchasers to register their bikes for warranty.
The real issue here isn’t sales figures, it’s LeMond’s mouth. It’s roots are in a report that LeMond read in 2001 that revealed Lance Armstrong’s relationship with Michele Ferrari. To LeMond, who was very familiar with Ferrari’s past vis-à-vis doping, that relationship could only mean one thing: Lance was doping. There was a certain sort of logic to it. Say your best friend is John Gotti. And say you tell a newspaper that he has a great mind for business and he has helped you with some of your business dealings, a reasonable person could understandably come to the conclusion that you, my friend, are a mobster.
Does that give anyone the right to accuse you of being a mobster in public? Not unless he is a prosecutor preparing to bring charges under RICO against you. To be fair, LeMond hasn’t actually said, “Armstrong is on dope,” but if you take the body of statements LeMond has made, his belief is clear. Consider: “If Armstrong’s clean, it’s the greatest comeback. And if he’s not, then it’s the greatest fraud,” and “In the light of Lance’s relationship with Ferrari, I just don’t want to comment on this year’s Tour. This is not sour grapes. I’m disappointed in Lance, that’s all it is.”
Would you say that about an athlete you thought was clean?
So LeMond thinks Armstrong is a doper. Newsflash: he’s not alone. There are plenty of cycling fans, competitors and members of the media who think so as well. The difference is, with the exception of a guy named Walsh, they all have the good sense not to accuse someone of something if they lack proof.
This was LeMond’s downfall. Word on the street is that Armstrong placed Trek CEO John Burke in the unenviable position of needing to mediate between the only two American Tour de France winners. Burke asked LeMond to temper his statements and confine them to speaking generally about doping. LeMond was unable to.
The case before Judge Richard Kyle has gone far afield. LeMond is notoriously unpleasant to do business with (an inside source pegs him as the downfall of the Clark Kent brand and the near failure of the paint and restoration company CyclArt), in part because he is unafraid of litigation. One former business associate who asked to remain anonymous used a single word to describe him: “Nightmare.”
Were the case really about the bikes, Lance Armstrong’s ex-wife, Kristin Armstrong would not have been deposed, nor would he have showed up at an Armstrong press conference to question him about his planned anti-doping program. In short, LeMond is attempting to make the case about Armstrong rather than his dissatisfaction with Trek’s efforts to sell his brand.
In an interview with the New York Daily News, LeMond attempted to cast his concern about doping in general and EPO in specific as a concern for athletes. He cited the deaths of more than 100 cyclists who are believed to have been taking EPO. However, LeMond never brought up his concern before the controversy with Armstrong. Put another way, have you ever heard LeMond mention the name of Johannes Draaijer, a Dutch cyclist on EPO, who had a heart attack and died in his sleep?
Trek claims it has done right by LeMond and that the relationship was lucrative for both. Since 1995, Trek reports it has earned more than $100 million, delivering some $5 million to LeMond’s coffers. LeMond points to a meager $10,393 in sales (possibly fewer than five bikes) in France between 2001 and 2007. Given the success of Bernard Hinault’s line of bikes in the United States, one can ask if LeMond could reasonably expect to do more in France.
What’s that you say? Hinault isn’t a household name in America? True, but nearly anyone willing to spend more than $2000 on a bicycle (only one bike in the LeMond line retailed for less than $2000) knows the Hinault name. And while LeMond may have had a large fan base in France, it can’t compare to the legions that adore Hinault in his home country. Fair comparison.
The point? LeMond’s case seems rather weak. I’ve written on this once before, for Slowtwitch. And while I’d rather see LeMond leave Armstrong alone—and addressed an open letter to him on Road Bike Action’s site—that’s really what this case is about.
But, you ask, what does Armstrong’s alleged doping have to do with LeMond’s bike business? LeMond will tell you it has everything to do with it. If LeMond can demonstrate to the court that Armstrong has doped, then he can demonstrate that Armstrong had motivation to have LeMond silenced. But what could silence LeMond? How about the threat of the shelving of his brand?
In short, LeMond will turn this case into an accusation of extortion against John Burke and Lance Armstrong. His legal team has already deposed Armstrong’s ex-wife; don’t think for a second that he won’t at least try to depose Mr. Seven.
The real question isn’t what LeMond and his legal team will reveal about Armstrong and his alleged doping but rather what LeMond’s actual motivation is. While it is conceivable that LeMond and his team could find a person or persons to allege doping on Armstrong’s part, finding definitive proof that Armstrong doped is as likely as finding Buggs Bunny sharing a slice of pie with Elvis and Bigfoot at our aforementioned diner.
Given the difficulty of the challenge facing LeMond, one must wonder what his motivation truly is. It can’t be exposing the danger of EPO, otherwise he would have been speaking out against EPO use more forcefully earlier. LeMond didn’t have a lot to say during the Festina Affair in 1998, yet just three years later, he had a lot to say about the second American to win the Tour de France three times.
That’s the rub: LeMond’s legacy. While this is pure conjecture on my part, no other explanation makes sense of the energy and money LeMond has sunk into this case. While the psychic toll this case has taken on his family can’t be calculated—it was enough, though, that Kathy LeMond sat across from Kristin Armstrong during her deposition (one wonders who was more unnerved by Mrs. LeMond’s presence)—the cost in legal fees can, and is said to be at or above seven figures.
If LeMond can impeach Armstrong and demonstrate a strong likelihood that he doped during his seven Tour de France wins, LeMond could win two things. First, he could show that in silencing LeMond and dropping his line, John Burke wasn’t acting in the best interest of the LeMond line. Second, by tearing down America’s most successful cyclist, LeMond will regain his rank as the best American cyclist.
But what’s the chance he’ll succeed, and even if he does, in whose eyes will he have won?
Image: John Pierce, Photosport International