The Explainer: Some thoughts on 2012

Dear readers,
Let’s start with a correction. I was wrong in last week’s column by naming Les Earnest as the sole opponent of the Mike Plant’s rather nefarious “reform” initiative back in the day. Board Member Chuck Collins was the only member of the board who voted against the measure, albeit with input from Earnest, American cycling’s Diogenes, who unfortunately is still walking the wilderness in search of an honest man. My apologies to Chuck and to Les for the error. I will attribute the oversight to an aging brain, if you’ll let me get away with that lame explanation.

Now, on to the business at hand. Well, we’re here; the last weekend of 2012.

As you recall, in last week’s column I also asked for input regarding the highlights and low points of the year. Several of you posted comments directly below the story and scores of you sent emails to my personal address.

It’s been a huge year.

It started out with Simon Gerrans’ win at the Tour Down Under last January and ended, I don’t know, maybe last evening when Bradley Wiggins was knighted, a reward for winning Olympic gold on home turf and, of course, doing rather well in that three week jaunt around France earlier in the year.

In between, we saw some spectacular racing, a bit of controversy and some guy from Texas refusing to defend himself when he was accused of stealing seven yellow items of clothing.

I have to say that on many, many levels the past 12 months were much better than the preceding year. Here’s hoping we continue on an upward path.

So, what were the best parts? Who were the best people? The worst? Having read your comments and emails – some of which actually changed my mind when it came to my picks – here goes:

Which of the three was the best grand tour?
This one was easy. Hands down, it had to be the 2012 Giro d’Italia.

Compared to the other two, this year’s Giro was the clear winner. We all have to admit that even if you are a fan of Brave, Brave Sir Wiggo, the 2012 Tour was something of a sleeper, with the outcome never really in doubt and the route not offering much in the way of excitement. Three mountain-top finishes? In the Tour de France? Come on.

The following month, the Vuelta more than made up for France’s shortfall by including ten of them, including a brutal finish atop Bola del Mundo on the penultimate stage. We saw a great battle between Alberto Contador, Joaquim Rodriguez and an impressive Alejandro Valverde. After missing out on the Giro, Rodriguez appeared to be on his way to winning his first-ever grand tour, until his spectacular implosion on Stage 17 to Fuente Dé.

Along the way, we also got to see five terrific stage wins by Argos-Shimano’s sprint sensation, John Degenkolb and a really great effort by Orica-GreenEdge’s Simon Clark to win the KOM jersey.
In most years, the 2012 Vuelta would have rated as the best of the three … but for the Giro.

The racing was even more exciting than it was in the Vuelta a España, with the final GC determined on the last-stage time trial (I am a big fan of those, anyway). Again, it was Rodriguez who put up an impressive fight for the leader’s jersey. Unfortunately for Rodriguez, he came into that final time trial with a scant 31-second lead over Garmin’s Ryder Hesjedal. Over the course of a flat 30-kilometer time trial, Hesjedal was clearly the favorite of the two. Most observers predicted that Rodriguez – not known for his TT prowess – would lose at least two or three minutes that. Remarkably, he ceded only 47 seconds, losing in the final standings by 16 seconds.

But in the end the Giro belonged to Hesjedal, one of the nicest, most selfless and hardest working riders in the professional ranks. It was a great finish and not one anyone would have predicted when the race started in Denmark three weeks earlier.

The Giro, too, offered up an answer to the question: Which was the greatest day of racing?

“Greatest” is such a subjective term, but I can’t think of anything better than that absolutely amazing ride put in by Matteo Rabottini on Stage 15. Admit it. You probably hadn’t heard of Rabottini until he slipped off the front early in the 166km ride from Busto Arsizio to a mountain-top finish at Lecco-Pian dei Resinelli on dreadfully wet day.

Rabottini went on to shed his companion and soldiered on through the rain – even crashing at one particularly dicey turn – for more than 120k. As is almost always the case with these suicidal attacks, Rabottini was caught on the final climb, by Rodriguez, who was intent upon putting time into Hesjedal, who had just taken the maglia rosa from him the day before.

If you haven’t seen this finish, you must:

To quote an old beer commercial, “it just doesn’t get any better than this.”

Which was the best classics performance of the year?

For me, it’s tough to come up with a single-day race that’s better than Paris-Roubaix. I just love that race (well, watching it, at least).

This year, the cobbled roads to the Roubaix velodrome served as the stage for Tom Boonen’s spectacular spring. Oft written off, Boonen is a resilient character and started a spectacular three-week-run with a win at the E3 Herelbeke, then won Gent Wevelgem and the Tour of Flanders. On April 8, Boonen capped off his Classics performance with an impressive solo finish in Roubaix.

The Spring Classics, with Fabian Cancellara back in contention, should be spectacular in 2013.

What were the highlights? – What were the low points?

As he’s been able to do since his return to the Tour de France, Lance Armstrong pretty much stole the headlines when it came to cycling this year.

His spectacular fall from grace rates as both the highlight and the low point for the year 2012. For me, the release of USADA’s 200-page “reasoned decision” – with its 1000+ pages of supporting documents, was a highlight. Yeah, sure, I’ve never been a fan of the guy, and I did experience a bit of Schadenfreude when things finally came out, but that wasn’t why it rates as the highlight.

For me, it was the highlight of the year, largely because the people who have long rated as the heroes of the sport – people I long trusted and admired – were finally proven to be right. Again, it wasn’t for the simple pleasure of watching them (quite deservedly) say “I told you so.” What made it the highlight was the admiration I felt for Betsy and Frankie Andreu, Greg and Kathy LeMond, Emma O’Reilly, Filippo Simeoni, Christophe Bassons, Stephen Swart, David Walsh, Paul Kimmage, Dr. Prentice Steffen and scores of others who simply refused to be bullied into submission. Sued, slandered, threatened and more, they stuck to their stories.

I tip my hat to all of them. Chapeau.

The villains of 2012?
Yeah, sure, Armstrong, Bruyneel, Ferrari, et al … the whole gang of them rate. Nonetheless, my vote goes to the dynamic duo of Hein Verbruggen and Pat McQuaid.

Somberly expressing disappointment at what they claimed to have learned in the USADA revelations, McQuaid and Verbruggen declared that Armstrong has “no place in cycling.”

Well, I hate to say it guys, but neither do you. The UCI’s record was abysmal throughout the fraud perpetrated on this sport by that feller from Texas. If they didn’t know, they should have known. As Agent Mulder would have said, “the truth was out there.” From all appearances, the management of cycling’s international governing body simply didn’t want to see it.

Nope, it took someone with a healthy I-don’t-give-a-sh#t attitude to dig through the evidence and make a compelling case. Travis Tygart is, therefore, my Person of the Year, but only because he did what the UCI could have and should have done years and years ago.

So, there you have it. Feel free to disagree. Post your comments or send me an email at Charles@Pelkey.com.

Have a happy New Year and let’s hope against hope that the news from cycling won’t involve another scandal, but just damn good bike racing.
– Charles

The Explainer: Can reform begin at home?

Dear readers,
As we approach the end of what has been a momentous year for cycling, a lot of us are left wondering where the sport goes from here.

Padraig and I have been chatting back and forth and one thing he asked for was something of a follow-up to the piece I did on the likelihood of reform at the UCI.

As I mentioned in a recent column – “When it comes to the UCI, change is needed … but it ain’t easy” – the structure of our international governing body is such that, despite its superficially “democratic” façade – real power in the organization is held in the hands of a very small number of people with the same set of skewed priorities and ingrained conflicts-of-interest that caused the problem in the first place

Padraig was interested in hearing about how our own national governing body was set up and whether we could possibly start the “revolution” from this side of the Atlantic.

Is reform possible?

Well, the short answer is “no.”

Back in the day, the old U.S. Cycling Federation (USCF) was something of a democratic organization. You bought a license and you earned the right to vote for members of the board of directors. Admittedly, not all that many voted and we’d see boards composed of people chosen in elections with less than 10-percent voter turnout.

Indeed, you still have the right to vote for board members, but your vote just doesn’t count for much. In 1999, a few years after the creation of USA Cycling, the successor to the USCF, there was a “special” meeting of the Board of Directors called by president Mike Plant (who, you might recall, remains a member of the UCI Management Committee) for which the agenda included some major changes to the Bylaws of the organization.

The measure was essentially railroaded through the board, without much discussion, save a vigorous effort from board member Les Earnest. If you’ve not heard of Les, you should, especially if you’re a reform minded cycling fan. Les’ professional background is in computers. He’s responsible for the development of the first spell checker, the first effective pen-based computer and was appointed as the executive officer of the Stanford Artificial Intelligence Lab in 1965. The guy is wicked smart and he loves bike racing. We’re lucky to have him around. (Author’s Note: I was incorrect in naming Les Earnest as the sole opponent of the Plant “reform” initiative. Board Member Chuck Collins was the member of the board who voted against the measure, as is correctly reflected in his comment below. My apologies to Chuck and I guess I’ll chalk up my error to an aging brain. I even wrote about Chuck being a lone voice in the wilderness at the time.)

Anyway, Plant’s changes were couched as an “emergency measure” (with no real explanation as to what the exact “emergency” might have been) and as such went into effect immediately upon passage. The net effect of those “reforms” was to place considerable voting power into the hands of a small group representing the USA Cycling Development Foundation. Indeed, while representing less than one percent of USA Cycling’s membership, the Foundation can effectively choose the majority of the membership on the USA Cycling board of directors.

Now, if you want the particulars, I am going to direct you to Les’ site, where he recently posted an essay describing the cycling’s current problems, a series of “coups,” representing what Earnest calls a “flagrantly crooked takeover by business interests” of the sport and the legal challenges that have resulted from those.

What is disheartening is that you find yourself agreeing with Earnest’s conclusion to the question “is reform possible?”

In short, it is not, unless there are serious changes to federal law (namely the “Ted Stevens Olympic and Amateur Sports Act). It is a dire conclusion when you realize your hopes of reform are rooted in that painfully rare phenomenon known as “Congressional Action.”

We do have one huge advantage

Now, I have to say that I have my reasons to believe that the situation here in the U.S. is still better than that of the UCI. It’s not that this country’s governing bodies are somehow better or less encumbered by conflicts of interest.

No, what sets American governing bodies apart from their international counterparts is that collective decision by those U.S. Olympic Committee-affiliated NGBs to hand off their authority to deal with doping cases to the U.S. Anti-Doping Agency.

Recall, that one allegation out there in the whole Armstrong case is that his “donation” to the UCI to assist in its anti-doping efforts was merely a pay-off to the organization to cover up an alleged positive doping test from the 2001 Tour de Suisse. While the UCI has yet to share the documents associated with that incident, how can anyone – after having seen USADA’s evidence – reasonably conclude that Lance Armstrong honestly made a contribution to the UCI to actually boost its efforts to control doping? (If you’re one who can reach that conclusion, by the way, give me a call. I have a really nice bridge to sell you in New York.)

The one element of the American system that should serve as a model for the rest of the world is precisely that separation of powers.

Read Les’ article and think about it for a minute. Then try to imagine the outcome had every bit of evidence in the Lance Armstrong case been in the hands of Mike Plant, Jim Ochowicz or Thom Weisel. The record books would remain intacct and few would be talking about reforming things these days.

It took a tenacious – and, above all, independent – agency to reach the conclusion that the Emperor did, indeed, have no clothes (well, at least no yellow jerseys).

That sole element, though, doesn’t mean that the U.S. system is otherwise any better than that which governs the UCI. We need fundamental reform. If you have a racing license, vote. And then let your opinions be heard. Contact the members of the board. Despite the lopsided and undemocratic imbalance of voting power, there are some good folks on the USA Cycling Board of Directors. Let them know how you feel. Demand changes. Finally, be willing to back up those demands with action … or as some suggest, in-action, meaning that you don’t renew your license for a year.

The sad truth, though, is that the current structure is largely the result of the inherently apolitical nature of folks in the sport. Hell, we didn’t get involved in cycling to add yet another political aspect to our lives. As a result, though, we let these folks take control. In some cases, they’ve done okay. In others … well, not so much.

If you want to see change in the organization, get involved. It will take all of us.

The big events of 2012?

Padraig had some other thoughts about closing out the year. I know at my old job, we would have editors and a few contributors sitting around voting on who was worthy of this, that or the other prize for things they did over the course of the previous year.

Certainly we here at RKP are not above pontificating now and then, but I want to hear from you, too.

I have my own opinion as to whom, for example, should rank as “Person of the Year” in cycling. What I like, though, is to hear what you have to say.

Please, use the comments section below or send me an email (Charles@Pelkey.com) and let me know your thoughts about the year in cycling.

• What were the highlights?
• What were the low points?
• Who are the heroes?
• Who are the villans?
• Which was the greatest day of racing?
• Which of the three was the best grand tour?
• Which was the best one-day race of the year?
• What great technical development may actually prove to be more than just a way to get you to spend more on bikes?

Feel free to comment on anything and everything. We’ll cobble together an awards column, but rest assured, it will be with your input.

Thank you

Finally, dear readers, I first want to thank you for indulging my off-topic detour last week. Like all of us, I was pretty shaken by the events of the previous day.

I managed to attend the funeral for my friend, Bob, and tears aside, the event quickly devolved into an opportunity for many of us to share stories about an old friend. My contribution?

Well, a few years back, we were having lunch on campus at the university here in Laramie, when a young man walked past, resplendent in full western regalia: hat, boots, vest and even chaps, despite there not being a horse anywhere within miles.

“Ya know, Charles, I never got that; the whole cowboy thing here in Wyoming,” Bob said. “I mean, I’m from New England … and I don’t dress up like a @#$% ing Pilgrim.”

A lot of us ended up the day laughing as we shared a host of Bob’s best one-liners. I hope we can all leave that kind of legacy when we’re gone. I’ll miss you, Bob, but I will almost always remember you with a smile.
– 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 Explainer: This one has nothing to do with cycling

Dear Readers,
I apologize, but I need to change gears and take a major detour from the usual column today.

Mired in self-pity, I sent Padraig a note early yesterday, saying that I was bailing early on my Friday, hit with the flu and thinking that I would delay – or skip – writing this week’s column. I went home. I crawled into bed. I felt sorry for myself (Wahhhh). I drifted off to sleep.

Early, this morning, I woke to the news that my dear friend Bob Torry (one of the best damn professors I’d ever had) died yesterday from complications related to ALS (a.k.a. Lou Gehrig’s disease).

A  few minutes later, I learned that the beautiful little niece of one of my law school classmates was among those killed in the obscene act of violence that occurred in Newtown, Connecticut, yesterday.

I can’t imagine sitting down and writing about sports, law or cycling while pretending what happened yesterday didn’t happen.

I did not know Emilie Parker, but I do know her aunt, having spent three years with her, locked into that myopic world known as law school. Emilie’s aunt, my classmate Jill, only recently lost her father in a cycling accident and now faces this. I can’t even imagine what Jill and the rest of her family are going through right now.

To put it into perspective, remember that Emilie was a first-grader. She was six years old. Six. That’s around 2300 days on this earth. It’s the age at which everyone is bright-eyed, enthusiastic and drinking in the wonders of a new life. None of us is bad at that age. Emilie was an innocent victim in the purest sense of the word.

I read, too, about a young woman, Victoria Soto, who taught at Sandy Hook. The 27-year-old selflessly and heroically threw herself between the shooter and her first-grade students, all of whom survived. She did not.

We use the word “hero” to describe a lot of people these days. We heap medals, riches and adulation on many far less deserving. We even call guys who are paid to ride bicycles around some of the most beautiful parts of the world “heroes,” largely for riding the aforementioned bikes just a bit faster than other guys who are paid quite nicely to do the same thing. Athletes? Yup. Heroes?  Nope. It is Victoria Soto and her colleagues  – unarmed, alone and devoted – who will forever epitomize the meaning of the word “hero” to me. (By the way, the next time some asshole tells you that teachers are lazy and overpaid, you might think of Victoria.)

What’s more, we use words like “tragedy” to describe events that truly only amount to a mere ripple in one’s life. The deaths of Emilie Parker, Victoria Soto and 25 others are real tragedies.

My friend Bob? He led a good, in many ways complete, albeit all-too-short, life. He was an English professor, a keen analyst of literature, film and religion and a terrifically funny dinner companion. I’m going to miss him terribly, but when I think of Bob, it will almost always be with a smile. I wish I could say the same about those poor kids in Connecticut. I wish I could say the same about Victoria Soto.

In coming weeks, we will yammer endlessly about the the factors that contributed to this tragedy. Some will, with good reason, say that it’s a problem rooted in a ridiculously easy availability of guns, whose sole purpose is to inflict maximum damage on as many people in as short a time as possible. We have the world’s highest per-capita gun ownership rate, at 88.8 per 100 Americans. But that can’t be the only explanation. Take our neighbors to the North. Gun ownership in Canada ranks 13th in the world and, in parts of the country, approaches that of the U.S., but they’re actually civilized about it. We are not. Recent data shows Canada has about 170 gun-related homicides (0.5 per 100,000) per year. We have a declining rate, but it’s still around 9,500 (3.0/100,000). There have to be other factors at play.

Others – like the esteemed former governor of Arkansas, Mike Huckabee – offered that it was because we’ve eliminated prayer in our schools. Really?

While those all along the political spectrum will shout their respective opinions in an effort to score political points from this tragedy. Some will strike a chord, others will just seem nuts. Meanwhile, we may take a deep breath and wonder what kind of help was – or should have been – available to that twisted and tortured soul who carried out this obscenity.

As an attorney, I’ve recently taken on cases involving the mentally ill and find that the system in this country is woefully inadequate when it comes to identifying and offering early treatment to those who need it. For the most part, we wait until things turn serious and then take extreme measures to address what is now a critical problem … unless it’s too late, as it was in Newtown. Ours is not a proactive mental healthcare system. It’s reactive, often reacting when it’s far too late to do any good.

No, there is no simple answer. The availability of mental health care, gun control or even school prayer … none of them offers a simple solution to a complicated set of problems.

But the first step may be for all of us to realize we, as a country, and we as a people, have a problem. How is it that we can look around and not see the inherent humanity, the innate beauty,  in an Emilie; in the selfless soul of Victoria Soto … or even recognize the pain and agony of that distorted and tortured mind of Adam Lanza? We have a problem. We have a serious, serious problem.

We do need to talk.
– Charles

The Explainer: When it comes to the UCI, change is needed … but it ain’t easy

Dear Mr. Pelkey,
I’ve been a follower of LUG, RKP and the social media cycling community for a while, now.

I am really happy about the recent events in pro cycling. Success and openness of Garmin, support for Paul Kimmage and, of course, the USADA report and consequences.

My huge concern is that those running the sport, Hein and Pat, will remain and we risk having the situation of 1998/1999 repeat – big scandal followed by business as usual. UCI leadership has no credibility, is incompetent and very probably corrupt.

Is the UCI election process capable of bringing change? Is there a way for grass roots activists to make a difference?

An Explainer to give us a little hope would be good, really frightened that this opportunity could be missed.
Regards,
– Peter

Dear Peter,
I have to agree with your assessment of the opportunity we lost in 1998 and ’99. I was among those who were convinced that the Festina Scandal of the ’98 Tour had finally proved that the cost of cheating would exceed the benefits and that riders, teams and officials would realize that it wasn’t worth the risk. Well, I was disabused of that Pollyannaish notion by the middle of the ’99 Tour.

This year has presented us with an even bigger opportunity. We have compelling evidence to suggest that not only did the sport not get cleaned up after Festina, it got worse. It appears that there is also enough evidence to suggest that the UCI was, at best, willfully ignorant of those developments or, at worst, complicit. As a result, it’s time for the two most visible and influential leaders at the UCI – Pat McQuaid and Hein Verbruggen – to step down for the good of the sport.

Former – and now “honorary” – president, Verbruggen, has always struck me as having something of a Machiavellian streak, the sort that is intent upon working his way up the hierarchy not just of the UCI, but of the International Olympic Committee. He’s always struck me as one of the “Lords of the Rings,” described in Vyv Simson’s 1992 book.

I have to say that I actually like the current president, Pat McQuaid. He’s personable, bright and he seems to love the sport. Unfortunately, he and Verbruggen – whether by acts of commission or omission – have become part of the problem. Both really should resign from their respective positions and from the management committee for the good of the sport of cycling. But that ain’t gonna happen. And laudable as they might be, reform efforts face an uphill battle, largely because the organization is structured in a way to discourage genuine reform by limiting real power to a very, very small group of entrenched “leaders.” Here’s why:

The antithesis of democracy

First let’s have a look at the election process you asked about. There are two organizations that exercise control over the UCI. Those are the Congress and the Management Committee. Along with the president and vice presidents, the system is truly and example of how power in the organization is progressively distilled into the hands of fewer and fewer and fewer people.

The Congress is, according to the Constitution of the UCI, the “general meeting of members and the highest authority of the UCI.” But what does that mean? Are you, for example, one of those “members?”

Well, not exactly. Let’s assume that you hold a license to race bikes; one issued to you by your national governing body, which is USA Cycling. For purposes of this Congress, that doesn’t make you a “member” under the definition of the UCI Constitution. For purposes of this Congress, the members are the 171 national federations affiliated with the UCI. Member federations may be represented at the Congress by a delegation of not more than three persons.

Article 28 of the UCI Constitution requires that the statutory Congress be held at least annually, although exceptional circumstances could justify an emergency meeting. So, let’s imagine that all 171 member federations send three delegates to the Congress and those 513 representatives of the world cycling community assemble for the mandated annual convention. What do they get to do there?

They can talk to each other. They can listen to speeches. They can pick up gift packs of swag. Oh, and they can vote, right?

Well, not exactly. Let me explain.

Article 29 of the UCI Constitution grants broad authority to the Congress:

1. The Congress shall have the following exclusive powers and duties:

a) Alteration of the Constitution and dissolution of the association;
b) To transfer the registered office of the UCI to another country;
c) Admission, expulsion and suspension of federations, without prejudice to Article 46, d;
d) Setting the annual amount of contributions on a proposal from the Management
Committee;
e) Election of the President of the UCI and of nine other members of the Management
Committee;
f) Dismissal of the members of the Management Committee of the UCI;
g) Appointment of the public auditor, on a proposal from the Management Committee and his
dismissal.

2. In addition, the Congress shall each year decide on:

a) the management report of the Management Committee;
b) the auditor’s report on the accounts;
c) the annual accounts of the previous year;
d) the budget for the following year.

So we have up to 513 members of the global cycling community who wield considerable power, right?

Nope.

Article 36 of the Constitution limits voting rights to just 42 delegates. Those delegates are selected to represent their respective Continental Federations and are distributed in accordance with the following formula:

• Africa: 7 delegates
• America: 9 delegates
• Asia: 9 delegates
• Europe: 14 delegates
• Oceania: 3 delegates

It is those 42 delegates who get to vote on important issues and, more critically, select the president and 10 of the fifteen members of the Management Committee, which, according to the Constitution, is “vested with the most extensive powers as regards the management of the UCI and the regulation of cycling sports.” It’s where the real power in the UCI sits.

As I said, the power is increasingly distilled into the hands of smaller and smaller groups of people. Who are those 15? The Management Committee is composed of the President of the UCI and nine other members elected by the Congress. Of those ten elected members, at least seven have to belong to European federations. They are then joined by the presidents of the five Continental Federations.

In his day, Verbruggen worked that Management Committee like it was an extension of his own personality. He pretty much ran the show and hand-picked McQuaid to be his successor. I am not under the impression that McQuaid exercises as much power as did Verbruggen, but do keep in mind that Verbruggen remains involved in the Management Committee in his capacity as “honorary president.” It’s a non-voting position, but given that Verbruggen is also a vice-president in the IOC, he continues to wield power and influence in the UCI in general and the Management Committee in particular.

It is, by any definition, an old boys club and the old boys want to keep it that way.

Is there a way to change it? It may require a bit of creativity and, as Deep Throat told Woodward and Bernstein, it will require us to “follow the money.”

Time for reform?

After the USADA document dump in the Armstrong case, we suddenly had an opportunity to attack the way this sport is managed. The revelations were serious enough to even give the UCI, McQuaid and Verbruggen pause to reconsider their lawsuit against Irish journalist Paul Kimmage … at least until an “independent commission” completed a report as to the UCI’s involvement in the scandal.

That independent commission turned out to be structured quite like a normal three-member Court of Arbitration for Sport (CAS) panel. This one will be led by British appeals judge, Phillip Otton, and will include Australian lawyer Malcolm Holmes and British Paralympian Tanni Grey-Thompson. The three will meet in April to review evidence and then issue a report by June.

I’ll take a wait-and-see approach with regard to the panel’s independence. Superficially, it looks like a good group. Meanwhile, we won’t see much internal action from the UCI until that report is issued in June.

There is an admirable grass-roots effort underway right now, though. Following the whole Armstrong kerfuffle, Australian clothing entrepreneur Jamie Fuller started Change Cycling Now and the group organized a summit conference in London earlier this month. They are calling for a host of reforms, including the removal the UCI’s authority to administer its anti-doping enforcement and place it into the hands of a truly independent agency. (Do recall that is the model used in the U.S. and is likely the only reason we saw the Armstrong case pursued as it was.)

There were some heavy hitters involved, too, including Kimmage, his friend and colleague, David Walsh, the head of the Association of Professional Cyclists, Gianni Bugno, anti-doping expert Michael Ashenden, Garmin’s Jonathan Vaughters and the only American to win the Tour de France, Greg LeMond.

It may be a good sign that Johan Bruyneel referred to the meeting as “a bunch of douches.” Looking beyond that flash of Bruyneel’s rhetorical brilliance, it is important to remember that the quality of a man – or of an organization – can best be judged not only by the quality of their friends but also by the quality of their enemies. If you’re pissing off Johan Bruyneel these days, you’re probably doing something right. (Note to Johan: Take a cue from that Lance guy. Twitter is not your friend.)

It may well be the start of something good. Indeed, LeMond – who, by the way, is the only American to win the Tour de France (did I already mention that?) – said he was ready to run for the post of UCI president. Frankly, I can’t think of anyone better qualified than LeMond, who, by the way, is the only American to have won the Tour de France.

It will be an uphill battle, though. Again, think back to those 42 voting members of the UCI Congress. We’re not talking about a cadre of committed reformers when we mention those 42. The odds are good that these are people with the same set of skewed priorities and  ingrained conflicts-of-interest that caused the problem in the first place.

As I mentioned, it may be time for us to “follow the money,” and come at the UCI from the financial side. It’s time to organize and, yes, even boycott, sponsors whose support is critical to the UCI.

According to its annual financial report, the UCI’s “resources consist of contributions, sponsorship and royalties generated by sports activities.” Indeed, those sponsorships are the biggest single item in the governing body’s list of receivables each year.

Those sponsors include such notable companies as Shimano, Santini, Tissot, Skoda and Swatch. Let those sponsors know that their support of the UCI as it currently stands is not something that necessarily endears you to their product. Don’t necessarily boycott them yet, but do encourage them to use their influence to force reform within an organization that has failed to live up to its obligation.

Yes, we can push for change, but it ain’t gonna be easy.
– 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 Explainer: Whacking a salmon

Dear Explainer,
I think this is probably a topic you don’t deal with all that often, but I am an avid cyclist, a bike racer, a commuter, a cycling advocate and more. In short I am a bike geek … and think I am about to be sued for hitting a guy on a bike with my car.

About a month ago, I came home from work and had to run to the store for groceries. I grabbed the car, did my shopping and began my trip home again. At the end of the parking lot, I made a right turn and bang: I ran right into a guy riding his bike against traffic.

He bounced off my hood, fell to the curb and broke his arm. His bike was destroyed. The police came, I told my story, and so did a couple of witnesses. The cops didn’t write a ticket to anyone and the guy was taken to the hospital. I felt awful for the guy, but I don’t think I did anything wrong, at least in a legal sense. I keep thinking back and wondering why I didn’t see him when I glanced to my right when making the turn.

Anyway, yesterday I got home and I found a letter from a lawyer trying to tell me that I was responsible for the guy’s injuries and that he wants to be compensated for his medical costs, his bike, loss of income and “pain and suffering.”

What the @#$&? What did I do wrong? What am I supposed to do now?
– Andrew

Dear Andrew,
Man oh man – to quote a recent president – I feel your pain. As a cyclist, it’s my major pet peeve, since these boneheads not only put themselves at risk, they give the rest of us a bad name. I live in a college town and, especially around campus, there are hordes of young, seemingly oblivious, undergrads who seem to think that riding on the left side of the road is somehow “safer” because “I can see what’s coming.”

Unfortunately, that myth fails to take into account the reasons it’s not safe, namely the situation you just described. There are other hazards, including faster closing speeds and the need for greater braking distances. But most of our readers are relatively experienced cyclists, so I don’t need to rehash all of those. Most of us know to ride in the same direction as the flow of traffic.

Still, we’ve all seen people – most of whom are not avid riders – who insist that riding against traffic is safer. Telling them otherwise, especially when you’re on the road, often results in the extension of a single digit in your direction. I actually had a collision involving similar facts, except I was on my bike and got creamed by a wrong-way rider at an intersection. (Apparently, he not only believed that he could ride on the wrong side of the road, but that since the stop sign wasn’t facing him, he wasn’t constrained by that rule, either.)

So, if your description of events is accurate – and for purposes of this answer, let’s assume that it is – you didn’t do anything wrong. Nowhere in these United States is it legal for a cyclist to ride against traffic. The cyclist should have, despite his injuries, been ticketed for that. Maybe the cop felt sorry for the guy and didn’t write him up because he was getting hauled off to the hospital. The bottom line is that all cyclists have the same rights and responsibilities as those operating a motor vehicle on a public road. Those responsibilities include obeying applicable traffic laws and, no, riding against traffic is not an option for cars, so it can’t be for bikes.

Anyway, let’s start with the letter. My first bit of advice is don’t sweat it. It’s probably a shot over the bow and little, if anything, will ever come of it.

That said, do not blow it off, though. The first thing you need to do is contact your insurance company. Actually, I am surprised that the guy’s lawyer didn’t contact the insurance company directly, instead of bothering you with this claim. He certainly should have. I do have to assume you have liability insurance on your car, since you probably would have been ticketed for that had you been driving in an uninsured vehicle.

It sounds like the amount of the claim will fall well within even the most minimal liability coverage, so you’re good to go. Your insurance company is responsible for paying any claim and, as will probably be the case here, rejecting those that aren’t valid. If there’s a lawsuit, the insurance company handles the defense, although you will need to make yourself available in the unlikely event this thing goes to trial. If you do have liability insurance, your insurance company will end up doing all the background work.

Now, on the off chance that you don’t have insurance, you may have to do some of that legwork yourself. First, contact the police agency that handled the accident and see if you can get the officer’s report of the incident. There is a chance that the rider was, in fact, ticketed at the hospital.

Even if there weren’t citations issued, there should be an accident report and you have a right to see that. Hopefully, the report will note that the rider was traveling against the normal flow of traffic. If so, you’re in pretty good shape. Still, I would advise you to seek legal counsel at that point. If you’re going to get into an argument with someone who has a lawyer on his side, you may need to get one yourself.

Again, if things are as you described and the police report notes that the cyclist was at fault, your lawyer may be able to solve this thing with a response letter that points out that it was the victim’s failure to comply with traffic laws that caused the accident and not your negligence.

If the police report doesn’t mention that the rider was violating applicable traffic rules, you may have a problem. You mentioned that there were witnesses and that can prove helpful. I’ll guess that you didn’t get their contact information, but again, that should be in the police report.

If you are sued, the plaintiff – the cyclist – will have to show that you were somehow responsible for the accident. He’ll have to show that the accident occurred do to your negligence and not his. From the sounds of it, that will be a pretty big hurdle for him to overcome.

Like anyone behind the wheel of an automobile, you have what is called a “duty of care,” to anyone else out on the road. You “breach” that duty by not acting in a reasonable fashion when you’re driving and if that breach is a cause of someone else’s injury, then you can be found negligent and will be ordered by the court to compensate the victim.

But in your case, you appear to have been operating your vehicle in that reasonable manner and it was he who violated his duty of care by riding his bike against the normal flow of traffic. Indeed, if by being hit by your car, he somehow damaged it, you could have reason to file a counter-suit.

Again, if you have the requisite insurance coverage, you won’t have to worry about any of that.

Good luck and let us know how it turns out.
– Charles

The Explainer: Warmest thanks, deepest sympathies and some follow-up

Dear Readers,
Happy belated Thanksgiving. I wanted to extend my deepest thanks to all of you, the faithful readers of Red Kite Prayer. I think that RKP has proven to be a terrific home, especially after the events of last year.

My dear wife, Diana, reminded me that yesterday was the one year anniversary of what had to have been the absolute worst day of chemo in the five months I went through all of that mess. It was a rough day, with symptoms too numerous (and too gross) to list. Not to bring it up again, but dang, looking back reminds  how this year is so much better. My appreciation of that fact also serves as a reminder of how kind and supportive many of you were throughout that whole thing. Family, friends and, yes, you too, made the experience tolerable and I just wanted to say that I haven’t forgotten. I do appreciate everything you guys did and continue to do.

I have much for which to be thankful and you guys are near the top of the list.

Thank you.

Now, while this holiday is often devoted to counting our own blessings, it is also an opportunity to think of others – especially friends and family – who may be suffering right now. Our good friend, Padraig, didn’t manage to do his usual Thanksgiving column this year because he was called away from home when his stepfather, Byron Vowell, fell ill. Just a couple of days later, Padraig let us know that Byron passed away on November 18.

As Padraig wrote on November 19, “The measure of any man’s influence can be seen in the way the lives of those he loved change in his absence. Missing you Byron.”

I agree, but with one caveat. That measure can also be seen in the ways he’s changed others’ lives before he leaves.

I didn’t know Byron, but from what Padraig has written of late, I can only assume that theirs was a close relationship and that his stepfather played an important role in helping him become the man he is today. And Padraig is quite the guy. If your stepfather played even a small part in making you the decent, honorable and kind human being you are now, a lot of us owe our thanks to the man.

Patrick, I can only extend my deepest sympathies to you and to your family. I know that the gift your stepfather gave you is one that you now get to pass on to your own children. In that very important way, Byron’s legacy lives on.
– Charles

I am going to use this week’s column to update you on a few items. Again, I encourage all of you to send in comments, complaints and, above all, questions to my personal email address: Charles@Pelkey.com. If you have questions about any cycling-related matter, including legal issues faced by riders, racing strategy and history or just a general question that you’ve never quite been able to answer, feel free to drop me a line. I’ll at least give it a shot.

Update No.1

In last week’s column, a reader sought some help and advice regarding money that was owed him for riding on a small pro team. (see “The Explainer: A gift recommendation and problems with a dead-beat team“)

Well, I’m happy to report that we’ve reached a resolution and Zach has gotten a significant portion of that money and should get the balance within the month.

Zach managed to do this despite the fact that he didn’t have a written contract with the team. He counted on the fact that he was friends with the team manager and that, as a result, his friend would follow through. This time he did.

Still, I would encourage all of you hoping to ride for a team to spend a little time working out a formalized deal with team management, even if the expected compensation is for amounts as small as those owed Zach. Don’t count on a handshake. Employment is more than a “Bro’ Deal,” for both parties involved and you should do your best to get something in writing before you give up your day job, or max out your credit cards on expenses for which you expect to be compensated.

Get it in writing.

Update No.2

Long-time readers of “The Explainer” might remember that case involving the cyclist in Eagle, Colorado, when he was struck by an inattentive driver in a new Mercedes. After striking and nearly killing Dr. Steven Milo, the driver, Martin Erzinger, continued on his merry way and was later arrested while trying to hide damaged body panels from his car in his trunk and calling for a tow truck.

Sadly, the fact that some bonehead hit a guy riding a bike and then took off is not what earned this case a boatload of attention. No, it was the way the District Attorney responsible for the case declined to file felony hit-and-run charges against Hurlbert on the grounds that it would negatively impact the defendant’s career as a top-tier money manager at Morgan Stanley. Instead, the defendant was charged with two misdemeanors and served no jail time, because, as Hurlbert said at the time “felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it.”

“Felony convictions have some pretty serious job implications ….” Well, d’uh, counselor.

I won’t rehash the whole thing, but if you haven’t read up on the case, I wrote a ton about it for that other website for which I worked at the time and it might be of interest to you. Here’s a link to that coverage. (Keep in mind that the articles on that list are in reverse chronological order, so start from the bottom and work your way up.)

Anyway, after voters handily defeated Hurlbert’s attempt to overturn his judicial district’s term limit for D.A., his term is about to expire and he has been in the hunt for a new job. Hurlbert recently signed on as an assistant D.A. in Colorado’s 18th judicial district, which covers Arapahoe, Douglas, Elbert and Lincoln counties. It’s probably only a coincidence that the district is where Erzinger made his home, but it is, nonetheless, worth pointing out.

Meanwhile, this should serve as a reminder that you need to be careful, alert and ever-vigilant when you’re out on the road (especially, I suppose, in Arapahoe, Douglas, Elbert and Lincoln counties in Colorado).

And, in case you’re wondering about Erzinger, he has apparently recovered from his brief period of unemployment after the money guys at Morgan Stanley did a quick cost-benefit analysis and realized he was less asset and more liability and cut the boy loose.

Resurrecting my old habit of checking the BrokerCheck section of the Financial Industry Regulatory Authority’s website, it looks like our man Marty is now working for Sanctuary Securities, LLC, an asset management firm based in San Francisco, with a branch office in Colorado.

Look, I don’t have any assets to speak of. I admit that. If I did? I’d probably think of some other company to manage them, like Marsico Funds, the firm run by Tom Marsico, the father-in-law of the victim in this case.

Update No.3

Way back in August, we had a question from a reader so embarrassed about his situation that he felt compelled to use a nom de plume when seeking advice. (see “The Explainer: BUI can be a BFD”)

Well, for better or for worse, “Suddenly Sober” recently had the charges of operating a bicycle while under the influence of alcohol dropped by the municipal prosecutor.

“My lawyer pointed out that same Oregon ruling you mentioned and the prosecutor reached the same conclusion,” Suddenly wrote. “She decided that the state’s implied consent rules can’t apply to bikes since they don’t require a license and that she didn’t want to fight the suppression motion my lawyer was ready to file.

“I know I was wrong, but I am relieved,” Suddenly added. “Next time, I think I’ll take a cab.”

Good call, Suddenly.
– Charles

The Explainer: A gift recommendation and problems with a dead-beat team

Dear Readers,
I am going to use this week’s column as a chance to catch up on some questions that have been sitting in my in-box for too long, since I’ve been either writing about doping or missed a couple of weeks for other reasons.

As for doping, as one reader pointed out, I kept promising to change the subject, but didn’t. Of course, the events of the last month made that difficult and I’m sure we’ll find ourselves mired in the muck again soon. For one thing, I have to assume that we’ll be hearing more about the “reforms” the UCI hopes to adopt and that they will be more than mere window dressing. We’ll see.

So, this week, I’d like to offer short answers to a couple of readers’ letters.

My favorite question of the week, arrived in my in-box just yesterday. I have a special affinity, I guess, since the guy in question is in my exact demographic.

Dear Explainer,
I know you’ve been caught up in the Lance/Doping/UCI/USADA thing for a while. You also said you want to change the subject … although, admit it, you haven’t.

So, here’s a softball for you:

My father is 54 and I think was a Cat.2 back in the ‘80s and ‘90s and still rides quite a bit, but not competitively anymore. I want to buy him a nice gift for Christmas, but I can’t think of anything he doesn’t have. He’s got a garage full of bikes, has more wheels, tools and clothing than the bike shop down the street. I’m still paying off student loans, so I don’t have a lot of money.

Any suggestions?
– Elaine

Dear Elaine,
Actually, I do.

Like your dad, I’m an old roadie and even the same age as he. Last year, when I was off my bike because of that damn cancer and chemo thing, I received a gift in the mail from one of the original “Raleigh Boys,” Bill Humphreys. A couple of years ago, while on a trip to Europe, Humphreys ran across a book produced by Henk Theuns, a Dutch collector of cycling jerseys. No mere hobbyist, Theuns has built what may well be the world’s most complete cycling jersey collection. He then put in a serious effort to catalogue the best of that collection and, with the help of writer, John Van Ierland, released that work in a book called “Koerstrui!” (The Racing Jersey).

Humphreys, known to many in the cycling industry as the “BikeGuy,” fell in love with the book and saw an opportunity. While Theuns’ collection is formidable, you might suspect that it has a distinctly European emphasis. Humphreys, meanwhile, had his own collection – and access to those assembled by others – and decided to remedy that oversight with an English version of the book, that includes a nod to the rise of American cycling, might be worth pursuing.

I’m glad he did. Humphreys’ “The Jersey Project” combines the work in “Koerstrui!” with a whole new section on American jerseys. I’m a sucker for this stuff and last year, when I had little energy to do much else, I spent hours lingering over photos of jerseys from back in the day. I fondly remember seeing many of those same jerseys (well, at least at the starting line) with some of the best belonging to riders who have since become friends.

It’s special to see the racing jerseys of American pioneers like Mike Neel, whose 1974 G.S. Siapa Antiparassitari jersey is on display, or Andy Hampsten, who’s represented not by the maglia rosa he won in 1988, but a 1979 jersey from the small Kretschmer Wheat Germ team. That alone may be the most beautiful aspect of this book, in that it reminds you that the greats of this sport got their start grinding it out with the rest of us on shoe-string budgets, racing small races in remote corners of the world.

In addition to the jerseys, Humphreys contribution includes some terrific photos from the era, including those of a young LeMond and shots of the one guy who seemed to know everyone back in the day, that mechanic extraordinaire, the late Bill Woodul.

Humphreys even includes Kevin Costner’s very Coors-Classic-like leader’s jersey from that mythic race “The Hell of the West” in “American Flyers.” (I am sad to say that it does not include a shot of Alexandra Paul in her “Res Firma Mitescere Nescit” t-shirt, but, alas, I digress.) Back in the day, several of my buddies were hired as pack fodder in the racing scenes, with some even being paid a “bonus” to crash at a pre-arranged point. (Thankfully, I was never that good … or that desperate.)

There’s way too much to list here, even if one were to limit the discussion to Humphreys’ part of the book. Add to that the extraordinary collection of Henk Theuns and you have a coffee-table book that won’t just decorate your coffee table. Have a look.

Elaine, your dad’s my age. His garage sounds just like mine. I have to assume he’s an old bike geek, just like me. If he doesn’t already have the book, I would suggest you consider getting him one. Then buy one for yourself. I loved it and find myself reaching for “The Jersey Project,” even now that I’ve gone through it many, many times.

Merry Christmas.
Charles

Now for a question that may disabuse many of us of the notion that the life of a full-time racer is always glamorous and exciting. Sometimes, it just sucks.

Dear Explainer,
This year, I got my first-ever chance to ride on a team that actually paid my expenses and promised to provide a small salary. The deal was that I would do races – even one in Europe – and submit my receipts and the team would pay me back.

Starting in May, I got my first check for my really tiny salary and, in June, I got my first expense check. All seemed fine until July, when a check for $1937 worth of expenses bounced and my salary disappeared.

The manager of the team insists that everything will be caught up, but it’s now October, my credit cards are maxed-out, my rent is due in a week and I have no money. The problem is that we are all “friends” and most of this stuff was done with a handshake. I don’t actually have a contract and I’m not even sure I was considered to be an employee of the team.

I am not sure I want to bring the police in on this bad check, but I am feeling desperate at this point. What can I do?
– Zach

Dear Zach,
You wrote this last month and we had a chance to speak by phone a couple of weeks ago. I’m sure our readers will be pleased to know that we’ve managed to resolve the bad check issue and you got your rent covered.

I’m not sure that in this case, bringing the police in would have helped anyway. That reimbursement for expenses may be classified as an “antecedent debt,” or “a legally enforceable obligation, which has been in existence prior to the time in question, to reimburse another with money or property.”

Most states – including your state of Maryland – actually make a distinction between bad checks written for “the immediate exchange of goods or services” and those written to cover payments to fulfill an obligation or debt. In Maryland that includes checks written for car payments, rent and even utilities.

Oddly enough, bad checks in those cases are not necessarily considered to be criminal violations. So absent the option to pursue the matter through your local prosecutor, you would have been forced to turn to civil court and treat this thing like you would any other debt owed to you. Fortunately, the team managed to correct the problem and at least that one is taken care of.

Now, according to you, the team still owes you about $3400 in expenses and $5000 in missed “salary” payments.

There is where things may get tougher. From the sounds of it, you were not considered to be an employee of the team – or its sponsor – but rather viewed as an independent contractor. That said, Maryland is one of several states that has tightened up the definition of “independent contractor” in recent years, given the propensity of some employers to try and skirt state and federal workplace and labor laws by claiming that their employees are not actually employees.

Being an athlete also puts in a unique category, but you still have rights that the state is obligated to protect. Since 1995, the duty to oversee athletes’ contracts in the state has fallen to the Maryland Secretary of Labor. That’s handy, since that’s where you’d go even if you were an employee.

If yours is an accurate accounting of the situation, you have an agreement with the team, whether it’s written or not. Sure, it can be a problem enforcing that non-written, verbal, handshake agreement, but it’s not impossible. You may have to enlist the services of an attorney on this one, but it could be worth it. I know. I know. Lawyers can be expensive, but there are options out there. Legal aid groups often help out workers in wage claims. Some states also require the employer to pay legal fees for both sides in the event that you win the case. It’s worth looking into.

Even without a contract, you probably have plenty of documentation to show that you did, in fact, perform the services for which you were to have been paid. You may need witnesses – like other members of the team – to show that you and they were promised payment.

Make sure you have all of your receipts, race results and a list of possible witnesses organized before you go see your attorney.

It’s likely that the state has the usual requirement that you need to exhaust all of the available administrative remedies before you can file suit, should you choose to go that route.

Obviously, if you are still “friends” with the team, you may want to take a more subtle route, so try to remedy the situation without involving the state or filing a complaint for now. Failing that, you might also consider contacting USACycling about the problem. I have to assume that the team’s current financial situation doesn’t bode well for its return to racing next season, but teams are under an obligation to live up to promises to pay riders and failure to do so can put the team’s future plans at risk. At the top tier of the sport, ProTeams have to actually put money in escrow in order to guarantee wages. That, unfortunately, doesn’t happen further down the cycling food chain, but it is worth a shot asking for help from the national governing body.

However, it is important to keep one thing in mind. Most states have a time limit within which you need to file a complaint. Make sure you check with your attorney about how much time is left on the clock. It would really suck if there was a six-month window and you filed at seven months.
– 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 Explainer: They shoulda let sleeping dogs lie

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

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

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

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

Allow me to explain.

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

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

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

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

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

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

Not so fast, Hein

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

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

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

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

In other words, Kimmage hit back hard.

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

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

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

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

What is the penalty for criminal slander?

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

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

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

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

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

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

Well, either way, sic ‘em, Paul.
– Charles

The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

The Explainer: Get the UCI out of the doping-control business

Dear Explainer,
I’ve been following you for years, through your time at VeloNews, through your illness last year and now at Red Kite Prayer and LiveUpdateGuy.com.

Usually, I get what your saying, but I was a little confused by a Tweet you recently made urging the sporting world follow “the U.S. model” in doping control and enforcement. One of the responses seemed to imply that you want all sport to follow the example of the NFL, NHL and Major League Baseball.

I know the 140 characters of the “Twittersphere” isn’t exactly your cup of tea. Just look at that 2000-word-+ monster you wrote last week. (You must be a lawyer, Mr. Pelkey. It’s the only profession where someone writes a 100-page treatise and still has the nerve to call it a “brief.”) So, I’ll ask it here: Is that true? Are you a fan of American professional sports’ doping “controls?” If so why?
– Amanda

Dear Amanda,
Man, are you ever right about my being wordy last week, Amanda. One of my friends compared the column to an old guy sitting on a porch ranting about anything and everything.

“And another thing dammit ….”

Of course, in my own defense, I was actually writing about a 200-page “reasoned decision” and more than 1000 pages of supporting documents. It just begged for wordy.

Anyway, the short answer to your main question is “no.” The longer answer to your main question is “Hell no!”

Now for the really long answer: Anti-Doping programs in big American professional sports – the NFL, the NHL, MLB and NBA – are a joke. Even after “reform efforts,” like the 2007 release of the “Mitchell Report” on baseball, the core problem for all of those sports is that they have left control and regulation of anti-doping efforts to the sports themselves.

It’s a classic example of “self-policing.” The banking industry should serve as an example of how that doesn’t work.

I know, I know, one should never use Wikipedia as a primary source, but I can’t help but quote one small passage I ran across recently. Under the sub-head of “Self-Policing” on the Conflicts of Interest entry someone wrote an elegant and concise description of the problem:

“Self-policing of any group is also a conflict of interest. If any organization, such as a corporation or government bureaucracy, is asked to eliminate unethical behavior within their own group, it may be in their interest in the short run to eliminate the appearance of unethical behavior, rather than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and correcting them. An exception occurs when the ethical breach is already known by the public. In that case, it could be in the group’s interest to end the ethical problem to which the public has knowledge, but keep remaining breaches hidden.”

Since this wasn’t footnoted, I am left to applaud just you, anonymous Wiki contributor, for a terrific summary of the UCI’s treatment of drugs in general and Lance Armstrong in particular.

While the LieStrong scandal isn’t really a new story, it would never have been put under the glaring light of an official inquiry had it not been for the “American model” of which I spoke – errrr, tweeted. The structure now followed by the U.S. Olympic Committee, its affiliate national governing bodies and the U.S. Anti-Doping Agency is really one the entire sports world should consider. Namely, handing off the responsibility for enforcement of doping rules to someone who really doesn’t give a shit about what nailing a guilty party will do to the vested interests in the sport.

Try, for a moment, to imagine what would have become of the Lance Armstrong case had American cycling been operating under the anti-doping rules that had been in effect prior to 2000.

At that time, the responsibility for doping controls and enforcement fell to the USOC and to individual governing bodies, whose own interests may have naturally run counter to strict enforcement, particularly when it came to high-profile riders.

It was in October of 2000 when the U.S. Anti-Doping Agency began operations. As part of its mission, USADA established a set of multi-year contracts with the USOC and individual national governing bodies to assume full responsibility for the management of anti-doping programs, including testing, results management and enforcement.

In essence, the current U.S. model is what most hoped would be the structure adopted at the 1999 World Conference on Doping in Sport, namely taking the IOC and its affiliate governing bodies out of direct participation in anti-doping efforts.

After two days of speechifying and debate, the conference attendees – mostly IOC members, headed up by its aging president Juan Antonio Samaranch – voted to lay the foundations of what would become the World Anti-Doping Agency. The mission of what was then referred to as the International Anti-Doping Agency was “to coordinate the various programmes necessary to realize the objectives that shall be defined jointly by all the parties concerned.”

The so-called “Lausanne Declaration on Doping in Sport” went on to outline duties and responsibilities for the IOC, its national affiliates and the governing bodies of affiliate sports.

The IOC, the (International Federations) and the (National Olympic Committees) will maintain their respective competence and responsibility to apply doping rules in accordance with their own procedures, and in cooperation with the International Anti-Doping Agency. Consequently, decisions handed down in the first instance will be under the exclusive responsibility of the IFs, the NOCs or, during the Olympic Games, the IOC. With regard to last instance appeals, the IOC, the IFs and the NOCs recognize the authority of the Court of Arbitration for Sport (CAS), after their own procedures have been exhausted.

Okay, ignoring the irony of “respective competence,” when this conference had been organized solely due to the 1998 Festina scandal, the problem there was that the IOC, IF’s and NOCs have any role to play at all.

It’s an improvement, but is it enough of an improvement?

As I said, the 1999 Lausanne conference was a direct response to the 1998 Festina scandal. The IOC and the UCI finally had to admit that their half-assed doping control, enforcement and penalties were just that, half-assed.

The creation of the World Anti-Doping Agency improved things, namely in adding a degree of consistency and uniformity to doping penalties. Recall, for example, that the second-placed rider in the 1999 Tour de France was none other than Alex Zülle, who just a year earlier had confessed to using EPO as a member of the infamous Festina team. Absent mitigating factors, he would have received a two-year suspension under the current WADA Code.

But again, harmonization of penalties is essentially meaningless if the enforcement side of things is weak. Under the Code WADA does have enforcement authority, but the international governing bodies themselves have primary authority and responsibility when it comes to enforcement. Therein lies the problem.

Once you get past the whole “Lance-was-a-doper” thing in the USADA report, start looking at some of the supporting documentation. What I found most interesting were comments by athletes who had raised the issue directly with UCI anti-doping authorities and were ignored.

Caught in the whole, ugly trap of the 2006 Operación Puerto scandal, Liberty-Seguros’ Jörg Jaksche, publicly admitted to having used EPO and growth hormone.

In a follow-up to his interview with the German magazine Der Spiegel, Jaksche went to the UCI to bare his soul and offer information about what he knew about doping in the peloton. According to Jaksche’s sworn affidavit released along with the 200-page Armstrong decision:

“… I spent hours talking with the UCI in 2007. I spoke to UCI lawyers, to Anne Gripper, who was then head of anti-doping for the UCI, and to UCI President Pat McQuaid. I wanted to be fully transparent regarding my doping and the anti-doping rule violations of others to fully explain the level of doping of which I was aware and that was taking place on Team Telekom, ONCE, CSC and Liberty Seguros during my time in professional cycling. However, the UCI showed zero interest in hearing the full story about doping on these teams and did not seek to follow up with me.

Moreover, despite my efforts to assist in cleaning up cycling, the UCI attempted to push for two years of ineligibility in my case, and Pat McQuaid told me he’d have liked me to have handled things differently from which I can only conclude he wished I had not been as forthcoming regarding the degree of doping that was taking place in the peloton.

To the best of my knowledge, information and belief, the UCI did not move forward on any evidence of doping that I provided to them.”

Yeah, and if Jaksche had been an isolated case, maybe there would have been some justification in ignoring the lone crazy guy standing outside of UCI headquarters screaming about doping. But Jaksche was not.

Kelme’s Jesús Manzano spoke out in 2004. Filippo Simeoni did so in 2003 and you saw where that got him. More famously, the recently converted Floyd Landis and Tyler Hamilton also spoke publicly about doping. They tried to work with the UCI … but were ignored.

Indeed, in Landis’ case, they turned around and sued the guy. WTF?

No, indeed, it took USADA to use the above confessionals to serve as a launching point and gather a total of 26 sworn affidavits, 11 of which came from former Armstrong teammates. Why couldn’t the UCI have done the same five years ago?

Self-policing doesn’t work

Unless there is a fundamental change, the only time an organization that polices itself will have reason not to ignore such information is when the public relations costs prove to be too high … as is the case right now. As was the case following the Festina scandal, this may be another of those fleeting opportunities to advance the cause of reform a little further in the right direction.

I applauded – and still applaud – the decision to create WADA on the heels of Festina. Now, let’s take advantage of the LieStrong scandal and give the anti-doping some teeth.

Whether or not you buy some of the more outrageous – albeit not incomprehensible – charges of bribes and intentionally suppressed test results doesn’t really matter. What matters is that there is an inherent conflict of interest when the sport is responsible for making tough decisions involving even its most high-profile stars.

No longer affiliated with the governing body, Gripper recently told Australia’s The Age that the UCI would often make exceptions for a rider of Armstrong’s caliber, citing the example of his being allowed to ride in the 2009 Tour Down Under, despite being short of a required post-retirement window in which he was supposed to be subject to doping controls prior to a return to competition.

“I have always said that Armstrong’s influence was a danger in the sport,” she said. “He was allowed to ride in the 2009 Tour Down Under. He shouldn’t have been. Once again, for Lance, special consideration was provided.”

Referring to the problem of doping and to McQuaid, Gripper said “I heard Pat say the other night, ‘We test and test and test as much as we can and send all the samples to the labs and that’s all we can do’.

“Well, it’s not, Pat, there’s lots more that can be done.

“It’s not just about testing because we know in many ways testing is the most ineffective way of eliminating doping … There are so many more things the UCI can do.”

I would suggest that the best thing the UCI can do is to get the heck out of the doping-control business and hand it off to an organization that doesn’t have a direct and vested interest in the outcome.

Who do you trust will put more effort into the pursuit of a doping athlete, particularly when he or she is high-profile and high-profit? Hein Verbruggen and Pat McQuaid or Travis Tygart and Dick Pound?

I’m voting for Tygart and Co.

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

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

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

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

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

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

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

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

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

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

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

So?

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

So?

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

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

So?

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

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

So?

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

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

Breast Cancer Awareness Month

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

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

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

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

Men, on the other hand, not so much.

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

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

The only reason I am doing this is to encourage anyone – male, female or other – who finds a suspicious lump to go straight to your doctor and have it checked out. If they say it’s nothing, get a second opinion before you relax. It could save your life.
– Charles
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

« Previous Page — Next Page »