The Explainer: ” … of being fools, etc.”

Dear Explainer,
Thank you for your column on Paul Kimmage’s legal troubles last week. I went ahead and donated $100 to his defense fund mostly (and I think I am quoting something you once said) “because I f’in’ hate bullies.”

Anyway I was wondering if you could go into a little more detail about what Mr. Kimmage might be facing in this case and what were the actual statements he made that caused him to be sued.

I also noticed you argued that the fact that The Sunday Times and L’Equipe weren’t being sued was an indication that the UCI, Hein Verbruggen and Pat McQuaid were using the law suit to send a signal to all critics. In one of the links you provided, though, Verbruggen is quoted as saying that “No it’s him. He’s said it. You don’t sue the paper.”

Is Verbruggen right? That doesn’t make sense.
– Amanda

Dear Amanda,
First off, I want to thank you for helping out with what is rapidly becoming a referendum on the UCI’s leadership as much as it is a defense fund.

As I post this, the Paul Kimmage Defense Fund is now up to $43,730.49 and growing. That is an incredible show of support from 1369 donors and the news is even better than that.

Several of us have been exchanging emails with Mr. Kimmage regarding the case and it appears that there may be Swiss attorneys willing to take this thing on pro bono (that’s lawyer talk for “free”). Of course, that shouldn’t dissuade you or others from continuing to donate, since there will be significant costs involved and losing this case could prove to be rather expensive, too. I’ll touch on those topics later.

A significant show of support

Last weekend, Kimmage’s former Sunday Times colleague, David Walsh, was in Missoula, Montana, interviewing Tyler Hamilton, who has, since his “60 Minutes” appearance in May of 2011, been quite open about doping practices on the U.S. Postal team. Of course, he’s gone into even more detail since the publication of his book “The Secret Race,” which he produced with Dan Coyle.

The Walsh interview was notable for a number of reasons, since Hamilton and he weren’t exactly on speaking terms after Walsh wrote some scathing columns about him after his 2004 positive for homologous blood doping. But the two men sat down in Montana and had a long conversation, which Walsh wrote about in last week’s Sunday Times.

Perhaps one of the most touching parts of the article came at the end, when Hamilton reflected on a career that was largely highlighted by doping.

“You know how I’ve still got every bit of memorabilia from my career, tons of stuff from the Tours and classics; bikes, jerseys, trophies, race numbers, everything. It fills an entire room,” he told Walsh. “I don’t want any of it and have been thinking what to do with it. I’m going to auction it online and donate the proceeds to anti-doping. Do you think that would be okay?”

Do you think that would be okay? Yeah, I do.

The two men had coffee on the Sunday morning after publication of that story and Hamilton decided that he will donate the proceeds of such a sale to Kimmage’s defense fund. If and when that happens, I will certainly let you know here and I am sure the guys over at NYVeloCity.com will, too.

Of being fools, etc.

So, now to the case. The complaint, filed in the Est Vaudois District Court in Vevey, Switzerland, involves charges levied by three plaintiffs: The UCI, former UCI president Hein Verbruggen and current UCI president Pat McQuaid.

The three plaintiffs are claiming that Kimmage made statements against their reputation and honor and are therefore pursuing a civil complaint under Article 28 and 28a of the Swiss Civil Code:

Any person whose personality rights are unlawfully infringed may apply to the court for protection against all those causing the infringement.

The litigants are lumping the UCI into Article 28’s definition of “any person.” (Apparently, International Governing Bodies are people, my friend.)

Swiss Civil Code broadly protects the person against the affronts to the rights of life, limb, body, health, reputation, privacy and the right to personal liberty. Those rights are specifically enumerated in the both in Switzerland’s Federal Constitution and Swiss case law shows that they have been expanded to include those rights outlined in the European Convention for the Protection of Human Rights Fundamental Freedoms.

Article 28 is a remarkably broad provision that is used in civil libel and slander actions. (Interestingly, that same section of Swiss law is also often used by bank customers who believe that their rights to secrecy have been violated.)

In this case, the plaintiffs note that the alleged violation involves Kimmage’s “violation of their social rights and in particular of their reputation – both intrinsic (which denotes the sense of their own worth) and extrinsic (this refers to the qualities that are necessary for a person to be respected in his social environment).”

The complaint points to a number of instances in which Kimmage either questioned – or allowed and encouraged others (mostly Floyd Landis) to question – the plaintiffs’ integrity, “causing them, at the very least, annoyance … and, therefore, moral prejudice.”

The complaint begins by noting that since 1989 Kimmage “has been writing a great deal about cycling in general and its various stakeholders of all kinds … often in negative terms.”

Specifically, the complaint points to Kimmage’s 2010 interview with Landis, in which the rider “made a number of comments which cast aspersions on the Claimants’ honour,” including accusations that the plaintiffs’ did note care “about the rules, of pulling strings, of being corrupt, of not genuinely wishing to establish discipline in cycling, of having, by their behavior, been behind his decision to resort to doping, of ‘loading the dice,’ of being fools, etc.”

The complaint goes on to say that “despite the fact that Floyd Landis’ remarks cast doubt on the honour of certain persons, Paul Kimmage did not hesitate to publish his interview with him in the Sunday Times and on the Internet.”

Did not hesitate to publish

Take a look at that key phrase, “did not hesitate to publish.” The plaintiffs are following a traditional strategy in that they are going after Kimmage for repeating what they assert are false statements by Landis by publishing them in the Sunday Times and, in their entirety, on NYVelocity.com.

Verbruggen, as you noted, said that he didn’t intend to sue the Sunday Times or L’Equipe because “you don’t sue the paper.” He’s not entirely correct there and there exists a long history of cases in which newspapers, radio and television stations and now websites have been sued for publishing the defamatory statements of others which they knew – or should have known – to be false.

Indeed, as I mentioned last week, The Sunday Times itself was sued by Lance Armstrong following the publication of translated passages from David Walsh’s book “LA Confidential” in 2004.

In their complaint, however, the plaintiffs point to the Times inclusion of a disclaimer – “The opinions put forward are those of their authors only – as the apparent justification for not including the newspaper in the suit.

Apparently, while nervous attorneys don’t always believe the disclaimer will prevent an aggressive plaintiff from pursuing action, Verbruggen seems to regard it as a magic wand, once passed over something he perceives as libelous will protect all but the original speaker from liability.

Maybe that’s why the good folks over at NYVeloCity.com weren’t named in this thing either. Andy Shen wisely included “We’d like to thank Kimmage and Landis for speaking freely, and note that the opinions within are strictly theirs” on top of a complete transcript of Kimmage’s conversations with Landis in January of 2011.

Later that year, however, L’Equipe included no such disclaimer in its publication of Philippe Brunel’s interview with Kimmage at the 2011 Tour de France.

In his interview Kimmage expressed anger and frustration “because doping was tolerated by the riders’ entourage, by the organizers, and by the UCI, which, as everyone knew, concealed the tests. That is what annoys me. The UCI is never responsible for anything! But everything would be put right if there were honest people at the head of cycling ….”

So why sue Kimmage, in part at least, for things he merely repeated in a way that a newspaper or website might? Again, as I said last week, I suspect that two of the three publishers who could have been named as defendants have deep pockets. If the Times and L’Equipe were sued, they would show up with a team of lawyers and with resources that could potentially overwhelm the otherside.

Add to that the fact that Rupert Murdoch, who owns the Times, is also the sponsor of one of cycling’s biggest teams, SKY, and that L’Equipe is part of a much larger enterprise that also runs the Tour de France and one might sense suing such folks might be impolitic at best.

But Kimmage has no such protection. He’s an easy target who, until last week at least, was himself overwhelmed at the thought of fighting a lawsuit in Swiss courts. The suit is largely tailored to send a message and picking an individual, rather than a corporate entity, is a much easier way to transmit that message.

What are they looking for?

The three plaintiffs are specifically seeking damages of 24,000 Swiss francs ($25,000 U.S.), which they promise will be donated to “anti-doping efforts,” should they win. If he loses, that means Kimmage may join Lance Armstrong in making a substantial “donation” to the UCI’s anti-doping fund.

They are also seeking an injunction preventing any further statements by Kimmage “claiming that the International Cycling Union, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen knowingly tolerated doping, concealed tests, are dishonest, do not behave in a responsible manner, do not apply the same rules to everyone, did not get rid of Lance Armstrong after he reportedly produced a predated certificate, or from making any other allegation of the same kind and from allowing third parties, including Floyd Landis, to make comments which attack the honour and the personality of the International Cycling Union, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen.”

If they win the case, the plaintiffs are also asking the Court to order Kimmage to publish, at his own expense, the Court’s findings in The Sunday Times of London, L’Equipe, Geneva’s newspaper Le Temps and (get this) on NYVeloCity.com. That’s a fairly expensive proposition (although I am assuming he’ll get a “bro’ deal” over at NYVeloCity).

They also ask that Kimmage be charged with criminal contempt of court under Article 292 of the Swiss Penal Code.

Realistically, the civil penalties and the criminal contempt charges will be difficult to enforce outside of Swiss borders. Still, the bigger consequence is that the three plaintiffs would succeed in delivering a message to virtually anyone who levels a charge against the UCI or its leaders.

Mounting a defense

Like I said, until last week, Kimmage was pretty disheartened. The support that has been shown since the Paul Kimmage Defense Fund was established is overwhelming. Kimmage said this past week has been “incredible.”

Kimmage said he’ll now be able to afford to bring in witnesses and present expert testimony to fend off the plaintiffs charges that he made allegations knowing – or having should have known – they were untrue.

The standard is a subtle one. Truth is, in fact, a defense against the charges leveled by Verbruggen, McQuaid and that other plaintiff, Mr. UCI. But Kimmage doesn’t have to actually prove what he said was true. What he has to show is that he had a reasonable basis for believing those allegations were true. He has to show that he did not knowingly make a false statement and he has to show that he had reason to believe that what Landis and others said about the UCI and its leadership was true.

Look at the evidence out there. We all know about the miraculous appearance of a back-dated prescription for butt cream that made Lance Armstrong’s 1999 positive for corticosteroids disappear. That alone would serve as a reasonable basis for Kimmage’s claim that the UCI held out some kind of double standard for some athletes. Kimmage’s references to the alleged suppression of Armstrong’s positive test for EPO at the Tour de Suisse is based on statements from two of Armstrong’s former teammates – Landis and Hamilton.

Kimmage can also point to Armstrong’s “donations” to the UCI of $25,000 in 2002 and $100,000 in 2005 as the basis of at least the appearance of a conflict of interest.

While Kimmage is listed as the “defendant” in this suit, if he comes to court with sufficient resources to make his case, it may end up being the UCI and its leadership that are on trial. Kimmage stands more than a fighting chance of winning this thing. With your support, that chance is getting better every day. You should pat yourselves on the back.
– Charles
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

The Explainer: Why SLAPPing Paul Kimmage won’t work

Dear Explainer,
The UCI’s dynamic duo – Hein Verbruggen and Pat McQuaid – are at it again. Last year, they sued Floyd Landis. This year, they are going after Paul Kimmage, probably for having the nerve to actually interview Floyd and put their “honesty” and “integrity” into question.

So what’s the deal here? They are going after Kimmage in Swiss courts, but they are not going after the people who actually published the same allegations.

Why Switzerland? Kimmage is Irish and Landis, an American. I don’t think anything they said or published took place in Switzerland. Heck, since McQuaid is Irish, too, why doesn’t he go after Kimmage in an Irish court?

What is the deal with these guys? Do they run to the courts whenever they feel insulted? Why is it that in all of those cases, they seem only to go after about 8000 Swiss francs? If what Landis and Kimmage said about them was so bad, shouldn’t their tarnished reputations be worth more than that?

Finally, why are they going after individuals rather than the newspapers and websites that published those statements in the first place?
– Richard

Dear Richard,
Pat McQuaid and the notoriously thin-skinned Hein Verbruggen are no strangers to the Swiss Courts. In addition to the now-petered-out lawsuit against Floyd Landis, Verbruggen and the UCI itself once brought a similar suit against former World Anti-Doping Agency president, Dick Pound.

In reviewing all three cases, some common themes emerge. The suits have generally asked for relatively small amounts in damages – probably enough to cover legal fees – along with a demand that the defendants issue some form of retraction … generally the simple publication of the court’s finding in the event that the plaintiffs prevail. Even so, that won’t be cheap, since the plaintiffs are asking that those retractions be published in the form of full-page advertisements in several of the world’s largest newspapers.

In Kimmage’s case, it appears that the two are going after much more than just the interview with Landis on NYVeloCity.com. Kimmage has been a tireless anti-doping campaigner since he retired from the sport and published “Rough Ride,” a ground-breaking book detailing his years as a domestique in the professional ranks from 1986 to 1989.

Kimmage carried that banner into his career as a journalist, writing for the Sunday Independent and later for the Sunday Times of London, where he teamed up with fellow Irishman, David Walsh, before leaving the paper early this year. Because of our mutual friendship with Walsh, I’ve had the opportunity to speak with Kimmage on a number of occasions and have found him to be, above all, honest, committed and passionate about the sport he loves … and about the people he’s accused of destroying it. He’s among a small cadre of journalists covering the sport that had the guts to say out loud the things others were thinking … and just whispering in off-the-record coversations.

McQuaid and Verbruggen, it appears, would disagree with my assessment.

In looking at the three cases – Pound, Landis and Kimmage – I frankly have to conclude that the current and former presidents of the UCI are engaged in a practice often referred to as a “SLAPP.” The Strategic Lawsuit Against Public Participation is essentially a suit filed with the intention of keeping critics silent, by targeting a select few of them in a public battle.

The idea is to burden those critics with the costs – in both time and money – of defending against a suit, and sending a message to anyone else that a making a critical public statement may cost someone more than it’s worth … or at least more than they can afford.

Now what got these guys sued? Pound, for example, once said that Verbruggen and the UCI were doing nothing to combat doping. Landis’ allegations that the UCI actively covered up Lance Armstrong’s allegedly positive EPO test from the 2001 Tour de Suisse were repeated by Kimmage, along with other statements about the UCI’s corrupt structure. Kimmage accused McQuaid and Verbruggen of “having knowingly tolerated tests, of being dishonest people, of not having a sense of responsibility, of not applying the same rules to everyone.”

Let’s assume (just for the sake of argument, of course) that what Pound, Landis and Kimmage have said about the UCI, Verbruggen and McQuaid is, in fact, true. Even if they had no case, the filing of a SLAPP suit would take up time and money and send a clear message to others that criticizing the plaintiffs could have dire consequences.

Has it worked? No, not really.

For his part, Pound reached a settlement and issued a “retraction,” that still makes me smile whenever I read it:

“Richard Pound acknowledges the fact that some of his comments reported in the media might have seemed excessive if they were interpreted to mean that the UCI and Hein Verbruggen were doing nothing to combat doping.” (My emphasis added – CP)

As for Landis, Verbruggen acknowledged the other day that the case has gone nowhere since “the problem is we can’t find Landis.” Even if they could find him, what are they going to do to force him into Swiss Courts to face allegations of slander and defamation?

Enforcing a foreign civil judgment against Landis might be problematic as well.

So why Switzerland?

I, too, often wonder about the choice of venue in McQuaid and Verbruggen’s thinking.

It’s doubtful that the two presidents in this case are filing in Swiss courts merely because the laws are in their favor there. There are better places to bring a suit if looking for the most sympathetic courts. Much of Kimmage’s work has appeared in the aforementioned Sunday Times and English law is probably one of the western world’s most plaintiff-friendly in libel and slander cases. If these two were “forum shopping,” Great Britain would have to top the list.

But the choice of Swiss Courts is a sign in my mind that the suit is little more than an elaborate press release and an attempt to send a signal to Kimmage and anyone else with a mind to criticize the way this sport has been run for the last 20 years. The District Court in Vevey, near Aigle, Switzerland, is a pretty logical place to file the case, and it really takes minimal effort and expense for the plaintiffs to pursue it. The UCI is, of course, based in Aigle, both have attorneys already in place through the UCI. While McQuaid is an Irish citizen and Verbruggen is Dutch, both live and work in Switzerland.

The big drawback – at least from a plaintiffs’ perspective – is that Swiss law doesn’t allow for punitive damages. A plaintiff has to show how an alleged defamatory statement affected his reputation and earning power and show proof of actual economic damages, hence the relatively low demands for compensation in all three suits.

Given the low cost and relative convenience of filing in Swiss courts, it could also be a sign that neither Verbruggen nor McQuaid have a whole heck of a lot of confidence that they will prevail. Truth is an affirmative defense in libel and slander cases in most court systems. (Even English courts allow the truth defense, but add a caveat, allowing a plaintiff to claim that the defamatory statement amounts to a “breach of the peace,” even if it’s true.)

Again, it looks like the suit against Kimmage is another salvo in a public relations war, albeit one that could cost the defendant time, money and inconvenience.

Jurisdiction?

But how do the comments of an American cyclist, told to an Irish journalist and published in a British newspaper and American web site become the subject of interest of a Swiss court?

That’s actually an interesting tangent. Under Swiss law a defamatory statement can be cause for both civil and criminal action. It would be harder to press that case in criminal courts since the alleged defamatory statements in this case took place outside of Switzerland. Even if they could bring it in to criminal court, the case would be difficult to prove.

Under Article 10 of the European Convention on Human Rights – to which Switzerland is a signator – citizens are guaranteed “the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The 1999 case of Dalban v. Romania affirmed that the prosecution of journalists would be more difficult than even an ordinary citizen. The case was nicely summed up in the 2007 European Council publication “Freedom of Expression in Europe:”

“The Court ruled that a journalist’s criminal conviction of defamation following the publication of several articles accusing prominent public figures of involvement in fraud constituted a violation of Article 10 of the Convention. It was the duty of the press, while respecting the reputation of others, to impart information and ideas on all matters of public interest, and it was unacceptable that “a journalist should be debarred from expressing critical value judgments unless he or she [could] prove their truth.”

The impugned articles had to do not with the private lives of the prominent figures but with their behaviour and attitudes in discharging their duties. There was no proof that the description of events given in the articles was totally untrue or calculated to fuel a defamation campaign. In relation to the legitimate aim pursued, therefore, convicting the applicant of a criminal offence amounted to disproportionate interference with exercise of the journalist’s freedom of expression.”

Even strictly interpreted, though, Article 10 would not preclude civil action. And the standard for exercising jurisdiction in Swiss civil courts is lower than it would be in criminal court. Even if the defendant lives outside of Switzerland and his statements were made outside of Switzerland, Swiss courts can assert jurisdiction if the statements are shown to have an effect inside Switzerland. Obviously, since Pound, Landis and Kimmage were referring to inaction – or outright corruption – at UCI headquarters in Aigle, that standard is met and the case can go forward.

Choosing the right defendant … or picking on the little guy

It’s worthy of note that the McQuaid/Verbruggen suit didn’t involve a deep-pocket defendant.

Again, much of what Kimmage has written over the years has appeared on the pages of the Sunday Times and much of what he has said about doping and corruption in the sport has been quoted in L’Equipe.

So why weren’t those publications included in the suit? A libel and slander suit can be pursued against anyone who repeats the alleged defamatory statement. Certainly, Rupert Murdoch’s Sunday Times and L’Equipe, owned by Éditions Philippe Amaury (yup, that’s the same family that owns the Amaury Sport Organization, which runs the Tour de France) were guilty of repeating Kimmage’s “libel,” no?

As I mentioned, this suit isn’t aiming high on the damages scale, so bringing in a deep-pocketed defendant probably isn’t strategically wise in this case. If those papers were brought into this thing, they sure-as-hell would show up and they would do so with a gaggle of high-priced lawyers and shoot this thing down like it deserves to be.

No, instead, they zeroed in on an individual. What’s more, an individual defendant who was the victim of a reduction in force at the London paper late last year. We have an outspoken, but now-underemployed, crusader. In this case, he’s the ideal defendant. It was strategically wise (but morally repugnant) to zero in on Kimmage.

It’s also another indication that this suit is being used to harass someone willing to speak out. If the suit had merit, the Sunday Times and L’Equipe would have been named, too.

D-E-F-E-N-S-E!

We are not likely to see this case end up like the other two. Kimmage can’t just vanish like, according Verbruggen at least, Landis managed to do.

We will probably not see a retraction of any kind – even one worded as elegantly as the Pound statement – emerge from the pen of Paul Kimmage.

“Hell will freeze over before I issue either of those gentlemen an apology for anything,” Kimmage told VeloNation’s Shane Stokes.

So Kimmage will be in the position of either ignoring the thing and losing by default – an approach we’ve seen in another high profile case recently – or appearing in that Swiss district court and showing why his statements are, in fact, not defamatory, but true.

If Kimmage takes the latter approach, it isn’t going to be easy. It isn’t going to be cheap. The plaintiffs know that and there are many of us who believe that’s precisely why they did it. My bet is that they have that strategy in mind … but they picked the wrong guy. Kimmage is a fighter. He is not going to go quietly into the night and buckle to that kind of pressure … but he will need help.

You can lend a hand. The folks over at NYVeloCity have created a ChipIn Page for the Paul Kimmage Defense Fund.

Give it some thought.

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

The Explainer: What’s due and to whom?

Dear Explainer,
Thank you for doing the Live Update Guy during the Vuelta a España. I followed several stages with you when I had no television access, and found your coverage very enjoyable.

I have followed cycle racing since Greg LeMond raced the Tour, which also means that I’ve had to follow a lot of doping scandals, as well.

One thing that has bothered me has been the disregard of due process for the athletes involved and lack of rigorous scientific methods in the testing and identification of performance enhancing drugs carried out by WADA, and the national ADA’s.

It is very apparent to me in the Lance Armstrong case. No evidence has been presented by USADA, and statements from them lead me to believe that the evidence is under court seal of the grand jury investigation.

My question is what consequences are there for releasing evidence under court seal or the use of it in a court proceeding. I seem to recall that journalists have been jailed for publishing leaked grand jury testimony. I wouldn’t be surprised if this comes up soon.
Thank you,
– John

Dear John,
First, thank you for your kind words regarding the Live Update Guy coverage of the Vuelta this year. We – Patrick O’Grady and I – had a lot of fun and I am surprised that 1) I was able to do all three grand tours and my day job without my head exploding at some point along the way and 2) that the response was generally positive and folks kept coming back to check in. We’ll see if we can do the same next year. No promises yet, though.

Due process?

Let’s start with your assertion that USADA has demonstrated a disregard for due process rights in its treatment of athletes alleged to have doped. The World Anti-Doping Code has specific procedure outlined as to how an athlete is to be charged, what burden of proof is required to make a charge stick and how that athlete may defend himself or herself against those charges. That includes the option to appeal the original ruling to the Court of Arbitration for Sport.

In other words, the Code has within its rules the classic definition of procedural due process: “A course of formal proceedings carried out regularly and in accordance with established rules and principles.”

No, these are not the same as those afforded a criminal defendant charged in the United States. We’re looking at a set of rules designed to enforce a private agreement between parties – namely you get a license to race and you have to agree to follow the rules – and, frankly, they are rather extensive when you compare them to the procedural options available to others in similar situations.

Armstrong raised those very due process concerns in a federal lawsuit, filed in the Western District of Texas. In his suit, Armstrong asserted that USADA lacked jurisdiction and that the entire arbitration process violated his constitutional due process rights.

In dismissing the suit, Federal Judge Sam Sparks disagreed and said that USADA’s procedures and “arbitration rules, which largely follow those of the American Arbitration Association, are sufficiently robust to satisfy the requirements of due process. This court declines to assume either the pool of potential arbitrators, or the ultimate arbitral panel itself, will be unwilling or unable to render a conscientious decision based on the evidence before it. Further, Armstrong has ample appellate avenues open to him.”

The Olympic sports world’s final arbiter of disputes is the International Court of Arbitration for Sport in Lausanne. There are 25 years’ worth of case law to review since CAS issued its first decision in 1987. As Sparks noted, there are “robust” means by which an initial decision is subject to review. History shows that most national federations’ initial rulings are upheld at CAS, but there are some noteworthy exceptions. Most recently, CAS overturned the life-time ban of Mohamed bin Hammam, noting that soccer’s international governing body, FIFA, had presented insufficient evidence to support claims that he had bribed NGB officials in his bid to become president of the organization.

In cycling, the case of Iñigo Landaluze is worthy of note. Landaluze won the 2005 Dauphiné Libéré, but was suspended after lab results showed an elevated testosterone/epitesterone level in his urine. Despite concluding that Landaluze “probably” committed a doping violation, CAS over-turned his suspension based on the UCI’s failure to meet its burden of proof in the case, by ignoring a series of lab errors that occurred during testing. Of course, WADA subsequently opened itself up to harsh – and quite justified – criticism when it revised the WADA Code to preclude further challenges based on the legal theory used by Landaluze’s attorneys. (Landaluze, by the way, was later suspended again after testing positive for CERA.)

Of course, governing bodies and doping, too, have the option to appeal national federations’ decisions with which they don’t agree. The Contador case is a good example of that.

Whether he’s sick of the fight, or just not willing to lose it, Armstrong opted to forego those procedural steps and simply walked away, declaring the whole process to be flawed and inherently biased against him. That was his choice.

He raises an interesting question or two, though.

For one thing, it may be time to clarify USADA’s role. It has long claimed that it’s not a “state actor” (the police, for example, are state actors, working under the authority of the government), although a significant portion of its funding comes from public sources and much of its authority through both U.S. statute and international treaty. Were it to be defined as a state actor, in essence a law-enforcement agency, USADA would be subject to a much stricter constitutional requirements. I personally don’t believe that an agency enforcing what are essentially private contract provisions (you can ride, but you can’t cheat) qualifies as a state actor, but it would interesting to see how the courts take on that question. They may, however, be reluctant to get involved.

Sparks certainly felt it inappropriate to involve the courts in a dispute involving sports’ governing bodies and athletes. Sparks turned to another famous case, Harding v. U.S. Figure Skating Association, quoting that “courts should rightly hesitate before intervening in disciplinary hearings held by private associations. . . . Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all internal remedies.” (My emphasis added. – CP)

Obviously, in choosing to walk away from the fight, Armstrong won’t come close to having “exhausted all internal remedies,” so if the courts ever do tackle the question, it’s unlikely to be because of the Armstrong case.

For his part, Sparks did raise some constitutional concerns based on what he characterized as deficiencies in USADA’s original charging document. Sparks noted that the June 12 letter wouldn’t meet the requirements of a charging document issued in a criminal case because it wasn’t detailed enough. In other words, like you, Sparks noted that USADA didn’t include enough detail about its evidence to allow Armstrong to prepare an adequate defense.

“Indeed, but for two facts, the court might be inclined to find USADA’s charging letter was a violation of due process and to enjoin USADA from proceeding thereunder,” he said. “First, it would likely be of no practical effect: USADA could easily issue a more detailed charging letter, at which point Armstrong would presumably once again file suit, and the parties would be back in this exact position some time later, only poorer for their legal fees. Second, and more important, USADA’s counsel represented to the court that Armstrong will, in fact, receive detailed disclosures regarding USADA’s claims against him at a time reasonably before arbitration.”

Had Armstrong decided to put up a fight and USADA not provided sufficient pre-hearing discovery, Sparks said he could easily re-open the case and “USADA is unlikely to appreciate the result.”

But Armstrong’s options on that front, too, evaporated when he chose not to take the case to arbitration. Tygart has, on more than one occasion, suggested that it’s because Armstrong already knew of the strength of the case against him and didn’t want it made public. But it very likely will make its way into the public sphere. Tygart says there is nothing in the rules to prevent that.

Grand jury secrecy

But what is USADA going to release when it does make some or all of that evidence public?

You are correct in noting that the disclosure of matters occurring before a grand jury is generally barred by the Federal Rules of Criminal Procedure, specifically Rule 6(e). The rule prohibits grand jurors and staff – court reporters, interpreters and government attorneys – from revealing the nature of testimony and evidence presented to a grand jury.

There are exceptions, chief of which is that witnesses are not barred from publicly discussing their testimony. In the Armstrong case, the best example of that, of course, is Tyler Hamilton’s interview with “60 Minutes” and his recent release of “The Secret Race.”

The other big exceptions include the sharing of information with other grand juries, other attorneys for the government in their efforts to enforce federal laws and, by petition, “any other person whom the court may designate.”

That petition process may have been what USADA CEO Travis Tygart may have been considering when he issued the following statement on the day the Armstrong grand jury shut down its investigation.

“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws,” Tygart said. “Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation.”

There is no indication at this point that Tygart and USADA have gained access to the evidence presented to the Armstrong grand jury. That’s not to say that Tygart has operated in complete isolation from the grand jury or those investigating the case. You might, for example, recall that in November of 2010 Tygart, U.S. Food and Drug Administration Agent Jeff Novitzky, and Assistant U.S. Attorney Doug Miller, were spotted in Lyon, France, apparently meeting with investigators at Interpol.

Tygart was at least peripherally involved in the Armstrong investigation. He may have been able to convince Miller and other prosecutors that they should include a requirement to cooperate with USADA whenever offering any immunity deals to athletes in exchange for their grand jury testimony.

Tygart has, however, managed to gain access to evidence and documents presented to at least one other grand jury in the past. In the Bay Area Laboratory Cooperative (BALCO) case, Tygart enlisted the help of Senate Commerce Committee chairman, John McCain, to do so. The Senate committee, which has jurisdiction over the U.S. Olympic Committee, subpoenaed BALCO documents under the Rule 6 exceptions and then shared that information with USADA.

Positives from outside the laboratory

But even absent access to grand jury case, USADA says it has substantial evidence to support the claims outlined in the original charging document sent to Armstrong, Johann Bruyneel and four other respondents on June 12, 2012.

The bulk of that evidence, according to USADA, is based on witness testimony. You might note in the charging document, that in virtually every one of the evidentiary summaries, USADA uses the phrase “numerous riders will testify ….”

Early on in the letter, Tygart notes that “with the exception of Mr. Armstrong, every other rider contacted by USADA regarding doping in cycling agreed to meet with USADA and to truthfully and fully describe their involvement in doping and all doping by others of which they were aware.”

Tygart has declined to release the names of those riders who testified, but we can pretty much put together a preliminary list based solely on media reports. Obviously, Hamilton and Floyd Landis have offered testimony. It was, after all, Landis’ revelations that triggered the grand jury investigation in the first place. Others reported – although not confirmed – to have offered testimony include former Postal riders, Frankie Andreu, Jonathan Vaughters, Christian Vande Velde, Dave Zabriskie, Tom Danielson and George Hincapie.

USADA has implied that there are more. What USADA has built is a largely non-analytical case, meaning that most of the evidence is based on things other than lab results. Yeah, we’ve all heard that Armstrong was “the most tested athlete in the world,” (a title that, quite unfortunately, Marion Jones once proudly claimed for herself), but the absence of a positive isn’t proof that didn’t occur. I, for example, haven’t received a speeding ticket since 2005. That’s not necessarily proof that I haven’t driven faster than 75mph on I-80 in the intervening seven years.

There is, according to the charging document, some medical evidence that would have been presented had this case gone to a hearing. USADA seemed prepared to raise the specter of those six Armstrong urine samples from the 1999 Tour de France, which subsequently showed signs of being positive for EPO. These were among a number of samples retested in 2005. Because the urine tested was composed solely of “B samples” (because the A samples had been destroyed when they were tested for other substances in 1999), they couldn’t be used to support an allegation of doping on their own. The question that would have come up, had Armstrong chosen to fight the case, was whether those results could have been used to support a largely non-analytical case.

My bet is that the Armstrong legal team would have successfully kept the 1999 EPO results from being admitted into evidence. There were enough chain-of-custody issues raised about those samples in 2005 to make it quite tough to use their results now. However, would the successful suppression of that evidence have made a difference? Probably not with that much witness testimony and other evidence available for the arbitration panel to consider.

Lab results are not the only way to prove a case of doping. Certainly, they are among the most direct means available to anti-doping agencies, but they are not the only means by which one can prove a case. Indeed, to support the aggravating circumstances surrounding the Armstrong charges – namely, trafficking, assisting, encouraging, aiding, abetting and covering up – a charging party would have to produce much more than lab results to show it. That would almost invariably have to include the testimony of witnesses and USADA says it has many of those. Add to that USADA’s claim that it has Biological Passport evidence from 2009 and, if they have what they say they have, the agency has a pretty solid case.

Know when to fold ‘em

At this point, it’s moot. Armstrong, for whatever reason, has decided not to contest the charges. He may have been holding out hope that the UCI would challenge USADA’s authority to impose the sanctions it did, but from all indications the world governing body is not planning to do that … and the clock is ticking down on that option in a few days.

The UCI has asked USADA to provide it with all of its evidence and sources say that the entire case file has been presented to officials at the agency and, to quote, “it’s overwhelming.”

Amid allegations that Armstrong sought, and received, special treatment from the UCI on at least one occasion (the 1999 Tour de France positive for corticosteroids), the world governing body may just sit back and hope the whole thing goes away.

Overwhelming or not, if the evidence remains unchallenged it has the net effect of leading one to the inevitable conclusion that Lance Armstrong was a doper. Not challenging it, however, will not keep that evidence out of the public sphere.

If former Postal team manager Johan Bruyneel follows through with his plan to challenge the case, a lot of the evidence will come to light. Indeed, even if he doesn’t, USADA isn’t obligated to keep its evidence secret once the full adjudication process in the six cases is complete. They can – and quite likely will – release information, if for no other reason than to counter claims that the case was fundamentally flawed.

And, quite frankly, it should come out. Armstrong built his very public reputation on a compelling story line. If that story is based on an ongoing pattern of fraud and deception, the revelation of that fraud should be just as public.

I, for one, look forward to seeing the evidence in detail. Maybe at that point, we can all sit down, review the evidence to our own satisfaction, reach a conclusion and then finally move-the-@#$*-on.

Isn’t about time we put the whole sordid chapter behind us?

– Charles

P.S. – Let’s get this column on track with topics other than doping, okay? Feel free to send your questions and comments to Charles@Pelkey.com. I’ll do my best to answer your question … or try to hunt down someone who can. – 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: BUI can be a BFD

Dear Explainer,
I don’t even want to tell this story, but it brings up a question I need to have answered. I woke up yesterday with a completely trashed front wheel on my bike, a hangover I will never forget and a citation for a Driving(!!!!!) under the influence.

I admit that I was out the night before and I know I had too much to drink. I remember hitting a pothole going down a hill on my way home and the cops stopping to “help” me.

What I didn’t know was that I could get a DUI ticket for riding my bike. I have never even had a ticket in my life and I thought I was being responsible by not driving. How does this affect my driving record? How does this affect my insurance?

Should I just pay the thing or fight it? How should I fight it if I do?

I am as embarrassed as you can imagine, so I will just sign my name as,
– Suddenly Sober

Dear Suddenly,
I tried to email you back after I received your question, not to offer you specific legal advice (which I do not do in this column), but to find out more information.

There are a lot of things missing from your story; chief among the questions in my mind is which state you live in.

Most traffic laws in American towns and cities are based, at least in part, on something known as the Uniform Vehicle Code. The Code is prepared by a private, non-government organization, the National Committee on Uniform Traffic Laws and Ordinances, to promote the establishment of a set of consistent rules and practices that should allow to you to feel relatively familiar with the roads and rules no matter where you drive in this country. Traffic laws and traffic signs tend to be consistent across the U.S., whether you’re driving in San Francisco, Cleveland or even out here on the high prairie roads of Laramie, Wyoming.

There are, however, variations and you may have guessed by now that one of the inconsistencies is how the law treats – please forgive my use of the term – drunks on bikes.

Now if you haven’t already bought one, go out and grab a copy of “Bicycling and the Law,” by my friend, Bob Mionske. I am assuming that you don’t already have one, “Suddenly,” because Bob actually tackles the question of Bicycling Under the Influence very nicely.

To start, the question of where this violation occurred is key. In Mionske’s own state of Oregon, the law is quite bicycle-friendly, embracing the statement that cyclists all across the world love to hear: “Every person riding a bicycle upon a public way shall have all of the rights and all of the duties applicable to the driver of any other vehicle.”

How cool is that? Bicycles have rights and they’re the very same rights as anyone driving a car. I’m sure you also saw that killer caveat, namely “all of the duties.” And that, for Drunk Cyclists (with apologies to my friend, Jon) all over Oregon, is the key phrase.

Back in 1986, the Oregon Court of Appeals considered the case of a fella named Morris Woodruff. Woodruff was cruising along U.S. Highway 97 in Oregon when he was stopped by police and ordered to take a breathalyzer test. He was arrested for Driving Under the Influence. At trial Woodruff’s attorneys filed a motion to dismiss the charge on the grounds that the state’s DUI law doesn’t apply to bicycles. The trial court judge agreed and dismissed the case.

Prosecutors appealed and the Court found that the little phrase “all of the duties” did in fact mean that cyclists were subject to the provisions of the law.

The case also produced an interesting distinction, though. Oregon, like most states, has an “implied consent” rule, which roughly means that if you have applied for and received a driver’s license, you’ve already granted your consent to be tested for alcohol and other substances if an officer has reason to believe you are intoxicated.

Well, back at the trial court level, Woodruff’s attorneys had also filed a motion to suppress the results of the breathalyzer, arguing that since riding a bike didn’t require a motor vehicle license, the implied consent rule didn’t apply to cyclists. The Appeals Court actually bought that argument and agreed that the breathalyzer results couldn’t be presented in evidence against Mr. Woodruff.

I’m not sure of the final outcome of his case, but I have to suspect that if the breathalyzer results were tossed, then prosecutors would have had a tough time making their case against Woodruff. But the important element of that ruling, at least as it applies in Oregon, is that bicyclists are bound by the same rights and responsibilities as motorists. Hey, the whole “equal rights” thing is what many of us have been asking for, so why bitch when we get saddled with the same duties?

Anyway, that’s Oregon for ya, but other states approach the problem of the Velocimpeded in a variety of ways. Mionske offers up some fine examples of that by mentioning the approaches of several states. Take California for example, where the traffic code has a separate offense for bicycling under the influence. For adults, that could result in a fine. For under-age drinking cyclists, that could result in a one-year suspension of a driver’s license or a one-year delay in its issuance in the event the offender is not yet licensed. California, too, does not apply the implied consent rule to cyclists, so if asked just decline the opportunity.

In Utah, the state applies the same DUI laws to cyclists, but adds that such two-wheeled offenders are not subject to the same penalties as those operating a motor vehicle while impaired.

In other states, riding under the influence is not even a specific violation of the law, although you could still be subjected to arrest and prosecution under the provisions of a broader “drunk and disorderly” law. Cops are particularly prone to cite you for a D-and-D if they feel you pose a risk to your own safety or, worse, to the public at large.

So, for you, “Suddenly,” since you were actually cited for a DUI, I would probably suggest you contact an attorney and see what it is you’re facing. At bare minimum, look at the ticket and see if it cites the exact statute or ordinance you’re accused of violating. Then Google it. You may be able to find the specific violation and penalties. That should make your decision as to whether or not to contact an attorney easier.

If it turns out that you’re in one of those states that doesn’t treat a BUI in the same way as a DUI, you may be better off paying your fine and chalking up the whole thing to experience.

If you’re in a state in which the rule is applied in the same way no matter what kind of vehicle you’re operating – or in a state where the question still hasn’t been settled – then talk to a lawyer. It may be worth a fight.

Now, I have refrained from lecturing you about the stupidity of doing what you did. To do so would be a touch hypocritical on my part, if I consider that embarrassing incident 33 years ago when I destroyed my bike, broke my wrist and nose by … oh, never mind, it’s a long and stupid story.

Anyway, I hope you learned a lesson from the experience. I sure did when I made the same stupid mistake.

Hypocrisy or none, I do need to point out that alcohol consistently plays a role in between 25 and 33 percent of all cycling fatalities. It’s something worth keeping in mind.

The bottom line, though, is that no matter what your state’s approach to the question, operating any vehicle – including a bicycle – enhances risks both to you and to the public at large. People die from crashing bikes and people die from getting hit by people on bikes.

Please, whatever you do, be careful out there.
– Charles

P.S. – The Explainer is taking a break again, because his alter-ego, Live Update Guy, will be back doing Live Updates from each and every stage of the 2012 Vuelta a España. The Vuelta begins next Saturday with a team time trial in Pamplona and ends on Sunday, September 9, in Madrid. It should be a good three weeks. The Explainer will be back with another column on the first Saturday after the Vuelta, September 15.

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 could be the best grand tour of the year

Dear Explainer,
Hello Charles! First, let me say thanks for doing those updates during the Tour de France. I admit you ruined my morning productivity, but I probably would have been scouring the ‘Net for news on the stages anyway.

So the big question is whether we can see more during the Vuelta. Will you be ruining my work in August and September or are you making the big switch to being a lawyer full-time?

Whether you do or don’t, I wonder about this year’s race. There was talk before about moving the race back on the calendar, making it the first grand tour of the year again and maybe even making it shorter. Now, instead, we have a three week grand tour even earlier – and closer to the Tour – than before. What’s up with that?

Also, I wonder about this year’s route. It’s all in northern Spain and there is nothing on this year’s route anywhere south of Madrid. Don’t grand tours usually touch on the entire country?

Here’s hoping you will be back for the Vuelta.
– James

Hello James,
Thank you for the kind note and rest assured that I will do my best to ruin your morning productivity for another three weeks later this month. With the help of my good friend and colleague, Patrick O’Grady, we’ll be delivering Live Updates throughout the 2012 Vuelta a España, right here on Red Kite Prayer.

So, let’s talk a little about this year’s race. First, the Vuelta’s spot on the calendar. Since its creation in 1935 and until 1995, the Vuelta was traditionally held in April and would often finish within a week or two of the start of the Giro d’Italia. In an effort to remove that schedule conflict, the race was moved to late August. A few years ago, there was some talk of moving the race back to April and even shortening it to a two-week event, rather than the grand-tour standard of three weeks. With a full UCI calendar and a reluctance to trim its length – and diminish its standing – the idea was (thankfully) scrapped.

2012 Vuelta a España (Click Links for Stage Profile)

Stage 1 – Saturday, August 18: Pamplona to Pamplona (TTT), 16.2km
Stage 2 – Sunday, August 19: Pamplona to Viana, 180km
Stage 3 – Monday, August 20: Faustino V to Eibar (Arrate), 153km
Stage 4 – Tuesday, August 21: Barakaldo to Estación de Valdezcaray, 155.4km
Stage 5 – Wednesday, August 22: Logroño to Logroño, 172km
Stage 6 – Thursday, August 23: Tarragona to Jaca, 174.8km
Stage 7 – Friday, August 24: Huesca to Alcañiz. (Motorland Aragón), 160km
Stage 8 – Saturday, August 25: Lleida to Andorra (Collada de la Gallina), 175km
Stage 9 – Sunday, August 26: Andorra to Barcelona, 194km
Rest Day – Monday, August 27
Stage 10 – Tuesday, August 28: Ponteareas to Sanxenxo, 166.4km
Stage 11 – Wednesday, August 29: Cambados to Pontevedra (ITT), 40km
Stage 12 – Thursday, August 30: Vilagarcía de Arousa to Dumbría (Mirador de Ézaro), 184.6km
Stage 13 – Friday, August 31: Santiago de Compostela to Ferrol, 172.7km
Stage 14 – Saturday, September 1: Palas de Rei to Puerto de Ancares, 152km
Stage 15 – Sunday, September 2: La Robla to Lagos de Covadonga, 186.7km
Stage 16 – Monday, September 3: Gijón to Valgrande-Pajares (Cuitu Negru), 185km
Rest Day – Tuesday, September 4
Stage 17 – Wednesday, – September 5: Santander to Fuente Dé, 177km
Stage 18 – Thursday, September 6: Aguilar de Campoo to Valladolid, 186.4km
Stage 19 – Friday, September 7: Peñafiel to La Lastrilla, 169km
Stage 20 – Saturday, September 8: La Faisanera Golf. Segovia 21 to Bola del Mundo, 169.5km
Stage 21 – Sunday, September 9: Cercedilla to Madrid, 111.9km

You’re right in that this year’s race does seem to be a little earlier than most past editions. It was actually last year when the race was moved to a spot a week earlier than it had been in past years. The thinking behind that move was to further distance it from the world championships, which might serve as an incentive for sprinters to stick around for the whole race, rather than bail in an effort to prepare for the race for the rainbow jersey. Of course, this year’s edition may not be all that appealing to sprinters anyway, but we’ll talk about that later.

This year’s Vuelta starts on Saturday, August 18, with a 16.2-kilometer team time trial in Pamplona, the capital of the old Kingdom of Navarre and home to the “Running of the Bulls” in July. I mention that famous festival because the time trial route will actually turn on to the same streets used for the traditional running of the bulls and then finish in Pamplona’s Plaza de Toros. (And no, fans will not be permitted to try and out-run cyclists through the narrow streets during this opening stage.)

Unlike this year’s Tour de France, the Vuelta will be relatively short on time trials. While the 2012 Tour de France offered up a total of 95 kilometers of the “race of truth” (stages 9 and 19), this year’s Vuelta will offer only a 16.2km team time trial and a 40km individual time trial on stage 11.

Looking back at Bradley Wiggins’ dominance in the time trials and the relatively few mountain-top finishes (just three) in this year’s Tour, the race was clearly designed to favor a guy with his talents.

Conversely, with Spain’s national cycling hero soon to return to competition – with his Clenbuterol suspension over this week – this race seems to be designed with Alberto Contator in mind. Like I said, the Tour de France only offered up three summit finishes. The Vuelta, on the other hand (and yeah, I think this is really cool) will feature 10 – count ‘em, ten – stage finishes atop hills and mountains. Some of them are going to be killer, too.

It should be a spectacular race, with Contador back in the mix and an-often-frustrated Chris Froome just aching to ride his own race without the obligation of having to hold back on the big mountains and set tempo for Brave, Brave Sir Wiggo.

As for the geographic concentration of this race, there are two good reasons. One is simply meteorological. By moving the Vuelta forward by one week, the race starts in mid-August. While Northern Spain is not exactly cool at that time of year, the temperatures are downright chilly when compared to conditions in Southern Spain. Do recall that the southernmost reaches of Spain feature Europe’s only deserts and they are freakin’ hot. Even in September, temperatures out on the road can approach 110 (F) and beyond.

I doubt we’ll ever see a similar concentration of Vuelta stages in southern Spain, since we could run the risk of having riders simply spontaneously combust out there on the road.

Another big reason, though, is something we mentioned earlier and that is that this is a climbers’ grand tour and the northern portions of Spain offer up some of the world’s most spectacular and challenging climbs you will ever see in a bike race. Sure, the southern reaches of Spain do offer up some great climbs, too, but they are more concentrated in the north.

This compressed format also limits the number and distance of transfers, which were a common feature – and source of irritation – in past editions of the Vuelta. Of course there is still a massive transfer from Barcelona to Ponteareas, which on the other side of the country. At least that one’s by plane and comes on the evening before a rest day. Absent, though, are the 100 to 200km transfers that seemed to pop up in the middle of the week, making life tough for riders, staff and anyone else traveling with the race.

Shorter, faster and more exciting?

One thing you might also notice on the list of stages is that the Vuelta, once again, will feature shorter stages than the Tour or the Giro. The Tour, for example, featured 13 stages that were 190km or longer, with the longest being 226km. The Vuelta has just four stages longer than 190k, and the longest is just 204.5km.

Shorter stages tend to compress the action, with breaks allowed to get away, but large gaps forming less frequently and more real racing along the way. The dreaded “_____ kilometers to go and the break has an advantage of _____” will be something we’ll hopefully be posting less frequently during Live this month.

There’s also the big bonus that shorter stages mean later start times, which means that viewers all over the U.S., for example, can keep track of the action from start to finish, without missing too many Zzzzzzz’s.

I’ve long said that the Vuelta is my favorite of the grand tours. This year’s Giro, however, set the bar quite high on the excitement scale, but the route and some seriously strong riders in the mix should make this one a race to remember. In addition to Contador and Froome, we’ll be seeing  Igor Anton (Euskaltel), who crashed out of the 2010 Vuelta while leading the race; this year’s Tour of Calofornia winner Robert Gesink (Rabobank) and the man who lost the Giro to Ryder Hesjedal, Joaquim Rodriguez (Katusha). Hesjedal, unfortunately, won’t be in Spain.

While an anticipated re-match between Contador and Andy Schleck is not in the cards, Froome’s presence will probably more than make up for the Luxembourger’s absence. In fact, this could turn out to be one of those GC fights that we’ll be talking about for years.
– 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: Legalize it?

Hello Charles,
I hope all is well with you and yours.

I know that you are immersed in the Live Updates and your practice at this time of the year but the latest charges against “The one who will not be named” started me thinking about one of the most quoted arguments I hear against continuing this investigation. On any story about this I hear people say, “Well everyone was doing it so it just leveled the playing field.”

On the surface, this sounds like a logical assumption, but like many logical assumptions, it may not stand up to daily reality. I have been trying to come up with a name of any athlete that was busted for PEDs, who returned, without PEDs, and was back at the top of their sport? In cycling, only David Millar and Ivan Basso continue to contribute to their team, but I don’t think anyone can argue that they are anywhere near the same competitive level in the peloton as before the ban.

So if that is the case, does that mean that the peloton is still doped, or was the peloton not as fully doped in the 1990-2007 era as some are stating? Looking at average speeds and some passport info that has been available, I would tend to believe the peloton is cleaner now, but reformed dopers are not back on top. So would it be reasonable to assume if the peloton were cleaner then, the podiums would have looked different, and the only reason for the people winning was the PEDs? In other words if no one was on PEDs then Riis, Ullrich and Armstrong would not have been winning tours.

Without the “Everyone’s doing it” argument, the “Sporting fraud” argument really stands out, hence the need for this trial.

Does any of this make sense?

Trying to stay classy,

– John in Milwaukee

Dear John,
You do raise one of the most common arguments used to justify doping. Los Angeles Times columnist, Joel Stein embraced the argument in a July 2006 column – “Level the playing field with cheating, doping, lying” – which, it should be noted, came out before news of Floyd Landis’ positive.

I don’t think it’s the cheating, or the medical danger, that makes people hate doping so much. They only hate it because it seems deeply unfair.

That’s why, to level the playing field, we need to legalize doping.

Gee, makes sense, right?

Well, it’s worth looking at just how level that playing field would be.

While the debate focuses on legalizing all performance-enhancing drugs, let’s just focus on what we must assume to have been the most commonly used pharmaceutical booster used during that “Golden Age of Doping,” synthetic erythropoietin – what we all have come to know and love as “EPO.”

Cycling’s Mo’ Better Blues
Now back in the cruder days of doping, before the UCI even bothered to manage hematocrit levels, the bravest riders in the peloton simply took a “more-is-better” approach to the question. In other words, if a little EPO would boost your performance, then a lot of EPO would really ramp things up for you. There was a reason Bjarne Riis’ nickname in the peloton was “Mr. Sixty Percent” and it had little to do with his score on that biology test he obviously flunked in high school.

In that environment, the playing field would be leveled only if riders would be willing to ignore the obvious risk factors of blood clots, thrombosis and cardiac arrest. With 60+ percent of your blood volume made up of red blood cells, your oxygen-carrying capacity would be phenomenal, but the viscosity of your blood would be akin to that of Jell-O™. Obviously, there would be something of a transient advantage for those riders willing to assume more risk … at least until they got to the point at which they died.

In his 2007 book, “The Death of Marco Pantani,” Matt Rendell quotes an unnamed cyclist who recounted the practice of riders sleeping with heart monitors set to trigger an alarm if that rider’s pulse rate were to drop below a given rate. Riders would then wake up – or be woken up – and ride rollers for a few minutes to get their pulse rates back to a point where the heart could comfortably pump that sludge through their circulatory systems.

“During the day we live to ride, and at night, we ride to stay alive,” the rider is quoted as saying.

Sometimes, it didn’t work. As you might recall, there was a spate of deaths of young, seemingly healthy, cyclists back in the late 1980s and early 1990s. More than a dozen cyclists died in their sleep, a horrible statistic that then UCI president Hein Verbruggen told me was an unfortunate coincidence of deaths that could be attributed to pre-existing heart conditions and not on illicit drug use. Of course, those deaths were also coincident with the commercial availability of EPO.

All of that changed for the better in 1996 when the UCI took the first significant step in addressing the problem of EPO use (and both autologous and homologous blood doping) by setting an upper limit on riders’ hematocrit levels. Based on data from a fairly large population sample, the UCI concluded that the mean hematocrit level was 45% in a healthy adult male. By taking the mean, plus two times the standard statistical deviation – or 50% – that standard should cover 95 percent of the population. Two-and-a-half percent would deviate below that range, so they would not present an enforcement problem. The other two-and-a-half percent would naturally exceed 50%, so those riders would have to provide medical records to justify their claim that they fell within that group.

Indeed, at the 1999 Tour de France, there was a ripple of excitement in the newsroom on the day of the prologue, after reporters learned that three riders had exceeded the 50% limit on their pre-Tour medical exams. The UCI soon followed-up saying that the three were able to prove that they had naturally higher rates than that and that three riders out of a population of 189 riders fit within a predicted statistical profile.

So, did that level the playing field?
While the 50% limit did address the immediate safety concerns, critics were justified in saying that it also just established a “license to cheat,” but with an upper limit attached.

If you look at hematocrit data over the years after the imposition of the 50% limit, you will notice that there was a discernible increase in mean hematocrit levels among cyclists. In other words, the data used to establish that limit showed the mean to be 45%. Among cyclists after the limit was imposed, it inched upwards to around 47.3.

There were some notable examples of that. In the 2004 case involving Tyler Hamilton, USADA submitted blood profiles dating back months before he was cited for homologous blood doping at the Vuelta a España. Back at the Tour of Romandie, he purportedly had a hematocrit of 49.2%. That would vary over the months, but USADA also pointed out that medical records showed that Hamilton’s natural hematocrit level was closer to 41 or 42%. He was not the only one whose levels fluctuated.

Now in his “Level the playing field” article, Stein seems to suggest that it would be fair to let everyone ride at – or just below – 50%. It would, theoretically, be a quite level playing field, no?

No, it would not and here’s why.

First, there are qualitative as well as quantitative changes that occur in the blood profiles of riders using EPO.

In a 2001 study conducted by the Australian Institute of Sport – “Detection of recombinant human erythropoietin abuse in athletes utilizing markers of altered erythropoiesis” – researchers found that different test subjects react differently to identical levels of erythropoietin and even to identical hematocrit levels. My 50% hematocrit might provide more or less oxygen transporting capacity than your 50% hematocrit level.

We are, after all, men and not machines. Taking the approach that might work in establishing standards for bikes or Formula 1 racing cars and trying to apply that same standard to human beings doesn’t always work.

And those individual variations may best answer your question about returning dopers.

What doping appears to have accomplished is to select a new population of highly trained, talented and strategically savvy athletes who may have been genetically pre-disposed to derive the maximum benefits from the added boost of performance-enhancing drugs. That doesn’t necessarily mean that those same athletes would necessarily rise to the top in a world of clean riders.

Now let assume for the sake of argument only – I am, after all, doing my best to remain “classy” – that the top 20 finishers of the Tours de France, between Riis’ win in 1996 and Landis’ win ten years later, were all juiced to the gills. Stein’s playing field would be level, right? Wrong.

Were that hypothetical scenario true, it would merely show that the athletes who derived the greatest benefits from doping emerged at the top of the heap in those years. Were the reverse true – that no one had doped – we might see an entirely different set of riders at the top of the results list. We will never know.

So when a rider suspended for doping returns to the peloton, assumedly now clean, and begins to ride not as top GC rider, but as a strong lieutenant, that doesn’t necessarily mean that the riders currently at the top of the results are continuing to dope.

We see slower Tours these days. Times up climbs like l’Alpe d’Huez have actually declined since the record-setting days of the late 1990s and early 2000s. When taken in their entirety, the numbers seem to suggest that cycling is cleaner these days.

Risks both known and unknown
Finally, the level-the-playing field crew fails to take into account the unknown risks of pharmaceutical use, even if it’s seemingly benign at the time.

We all remember Dr. Michele Ferrari’s now-infamous statement that “EPO is not dangerous, it’s the abuse that is. It’s also dangerous to drink 10 liters of orange juice.”

As offended as people were at the time, Ferrari’s assessment was actually pretty reasonable. Anything used in excess presents a danger. He was merely suggesting that medically monitored use of certain drugs, like EPO, might not pose a danger to riders.

Well, on the surface, that actually makes sense. Careful medical monitoring would probably help riders avoid those late-night cardiac deaths. However, that monitoring is conducted with the best medical information available at the time. The long-term consequences of that use may not be part of the picture.

There were, for example, concerns raised about the effect recombinant erythropoietin might have on the body’s ability to produce its own after long-term use.

And we may learn of other consequences only when sufficient data has been collected. For example, in past years, one common recommendation for cancer patients suffering from chemo-induced anemia was to inject something known as “ProCrit,” an EPO variant that would help boost declining red counts. Indeed, I even asked my doctor about that when my own hematocrit levels dropped below 30 last year while I was on chemo.

Nope. The doc said that the Food and Drug Administration had issued a “black label” warning against that use, because the rate of cancer recurrence was actually higher among those patients than those who did not get the injections. Carefully medically monitored does not mean that the law of unintended consequences doesn’t apply.

So, this “level playing field” argument would simply mean that anyone hoping to compete at the top tier of the sport would have to assume – or ignore – the potential risks of taking drugs, simply to participate in the sport we love.

Call me crazy, but I’d much rather see the halting – and hopefully improving – efforts of WADA, USADA and the rest of the pee-in-the-cup crew than I would a laissez-faire approach that would relegate clean riders to fighting it out for lanterne rouge “honors” at the world’s greatest bicycle races.
– 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: Whose risk is it anyway?

Dear readers,
I have to admit, I have mixed feelings about last week’s topic. On the one hand, I am tired of writing about a guy who should, by now, pretty much be gone from the headlines. (Yeah, I know, he was mounting a return to triathlon, but for me “triathlon” generally means “totally off of my radar screen.”) On the other hand, I remain interested in seeing some serious lingering questions asked – and answered – in a cohesive fashion.

That said, I welcomed the suggestion by “Jim D” in the comments section, as he invited me to cover a new subject:

“Hey Charles, New subject, Strava lawsuit.”

Okay, okay, I admit, I had no idea what the “Strava lawsuit” is, but as long as it didn’t involve that one guy, I was game. Now, I think I know what a lawsuit is, but what the hell is a Strava?

Well, thanks to the InterTubes, the answer was quick and easy. This Strava thing actually turns out to be pretty cool. Strava is a nifty little social network for endurance athletes, namely runners and cyclists. Sort of Facebook for jocks, but with something more interesting than photos of kittens or posters’ most recent meals.

By uploading data via an iPhone, Android device or GPS unit, one can virtually “compete” on an array of courses all over the world. It’s a variant of MapMyRide and a 21st Century version of the bragging rights we all fought for back in my day.

Back in the ‘80s, my buddies and I had a bunch of pre-set courses all around our little town of Laramie, Wyoming. We pretty much knew who held the record on “The Summit,” the original five- and 10-mile “Dead Dog” time trial courses, “The Big Hollow,” or the 20km climb up the Snowies, be it via Highway 130, or that beautiful – but often-closed – route up Barber Lake road. All of that provided motivation. If Danny or Bob or Rex knocked off “The Summit” in under 15, I sure as heck was going to do my best to nail it in 14:45 … or better.

Strava just adds some cool technology to the formula and even brings a bit of confirmation to the claims. In our day, we would require a witness or two to verify times. Now you can do it with your iPhone.

Good enough. So from whence cometh a lawsuit?

Strava is a terrific service. Indeed, if you score top bragging rights on a particular ride, it will let everyone know how much of a stud you are. If then someone else beats your time, your iPhone will essentially call you a wimp and push you to better that. Strava can do a lot to fan the flames of your competitive fires.

And therein lies the rub.

Competition or obsession?

According to a wrongful death lawsuit filed in San Francisco Superior Court last Monday, some riders will go to extreme lengths to protect their “title” of being the fastest on a given course.

One of them, 40-year-old Kim Flint Jr., had the distinction of being the “King of the Mountain” on a route in Tilden Park in Orinda, California. Although it is my understanding that the “KOM” designation is awarded only for the climbs, one’s time for the entire route – from start to finish, with ascents and descents included – is recorded and compared. Part of the Tilden Park route involved a steep descent on South Park Drive.

It was there that Flint was racing down the hill on June 19, 2010, at what attorney Susan Kang said was at speeds of around 49 miles per hour. That was being done on an open road, with through traffic and a posted 30mph speed limit.

According to the suit, “in pursuit of regaining his title, Kim Flint Jr. came in contact with an automobile and was killed.”

Now, on the eve of the statute of limitations tolling, Flint’s parents have filed a wrongful death suit against Strava, citing the site’s failure to live up to its “duty of care” to participants, particularly Flint.

That duty of care, notes the suit, should have included notice that competitors should use “the degree of care that a reasonable person in the same situation would have used to protect their users from danger.”

In other words, the plaintiffs are arguing that Strava had a duty to at least advise its users to exercise caution, while it was also encouraging them to compete against one another.

For its part, Strava denies liability.

“Based on the facts involved in the accident and the law, there is no merit to this lawsuit,” company spokesman Mark Riedy said. “We again express our condolences to the Flint family, but we will defend the company vigorously through the legal process ahead.”

The reaction has largely been negative from the Twitterati in the cycling world. Some have suggested the family is only out to make a buck. Others have faulted the attorneys involved for “convincing” the family to sue. Most critics suggest that the accident was the result of risks that Flint assumed for himself and that the fault is his and his alone.

Does holding a ‘virtual’ race make you a ‘virtual’ promoter?

I think the whole thing raises some interesting questions, not least of which is whether Strava has, in essence, become a race promoter and, by doing so, assumed at least some of the duties that accompany that designation.

Like I said, I love the technology that Strava has woven together in way that allows riders to expand their community to something more than the usual cadre of friends they get to ride with. It’s pretty damn cool.

The routes are those that users design. Our old “Big Hollow Loop,” could easily be entered into the Strava database by riders in the area. Then, any time an interested party does that ride, they can compare their best time to those of others. Nifty.

As mentioned, whenever your time is beat, you get your chain yanked by Strava, essentially asking you if you are going to let the new time remain unchallenged. By doing so, Strava, in my opinion, is dancing awfully close to becoming a promoter.

Hear me out on that, before dismissing what might be a weak argument. Admittedly, Strava does not travel the world picking out “race” courses on which riders will assemble at a given time and race one another to the finish. Strava’s “races” amount to an open-ended competition, over courses that participants themselves design.

What has me concerned, though, is the site’s willingness to encourage such competition on courses none of its employees have necessarily seen and then to maintain records, award prizes and bestow titles upon those who ride those routes the fastest. There appears to be little or no consideration of the factors over which traditional promoters lose many a night’s sleep.

In the traditional sense, a promoter is responsible for providing a relatively safe route on which riders can compete. If any of you have put on a road race, you know of what I speak. The checklist is seemingly endless. There are questions of road closures, or at least “rolling enclosures” and police assistance and, the 800-pound gorilla of event promotion, liability insurance. No promoter in his right mind would hold a criterium in downtown Denver at rush hour, with traffic on the course. Strava participants can do just that. The question is whether Strava is at least somewhat responsible if someone chooses to do that.

If Strava is determined to be a “promoter” then it will be assigned many of those same duties. At minimum, it could mean that Strava would face the onerous task of reviewing courses for potential dangers, dangers that are inherently amplified when riders “compete” on open and unregulated roads.

Of course, we’re all familiar with the release form we sign before toeing the line at a bike race. Even with a release form, a promoter has a host of duties. As I’ve said before, you can’t put on a criterium over roads where all of the manhole covers have been removed. That’s not an “inherent risk.” A failure to meet those responsibilities – what lawyers call a “breach of duty” – opens up the floodgates when it comes to liability. As a “social network,” Strava contends it doesn’t have to do any of that.

Nonetheless, following the Flint family’s decision to file suit, Strava did modify its terms of service, in a way that looks awfully close to a traditional release form. The terms now require users to acknowledge the “inherent risks” involved in “these activities” and that they carry with them “significant risks of property damage, bodily injury or death.” It also notes that a participant must “assume all known and unknown risks” involved in such competition.

No, the amended terms of service are not anything that will be introduced at trial. Such remedial steps are inadmissible, largely because to allow their introduction as evidence of earlier negligence would discourage potential defendants from improving a product or service out of fear of a subsequent lawsuit.

Attorney Kang concedes that the “biggest hurdle” she faces in her suit against Strava is that whole “assumption of risk” question. Namely, that a reasonable person who engages in competitions on open roads knows and accepts the risks involved. Maybe.

What the court will eventually have to weigh is whether Strava’s role in encouraging competition puts at least some of that risk – and the ensuing liability – on the company, too.

What about innocent bystanders?

Those “inherent risks,” however, were not assumed by 71-year-old Sutchi Hui, who was merely walking across the street in San Francisco in March, when he was struck by 29-year-old Chris Bucchere. Bucchere was allegedly “competing” on a Strava course known as “the Castro Bomb,” when he hit Hui, who died from his injuries four days later. Bucchere has been charged with vehicular manslaughter.

If the allegations in this case are proven – either in civil or criminal court – Bucchere is clearly responsible for Hui’s death.

Is Strava? Kang suggests that the company played a role in encouraging Bucchere’s behavior and is at least partially responsible. As lawyers and law professors are prone to do, she underscores her point with an interesting hypothetical.

“Imagine how people would react if someone were to do that with cars,” she said.

Good point, counselor. Imagine a website that encouraged you to cover a certain road or stretch of highway faster than the last guy. It wouldn’t take too long – maybe minutes – before someone violated the speed limit in order to earn the “title” of being the fastest on that road. Then, in order to protect that title, one would have to start by violating the law.

We might still have the assumption-of-risk issue if a driver was killed, but I would have to believe that there might be a consensus when it came to holding the website at least partially responsible if one of those “competitors” struck and killed a pedestrian or another driver.

Kang said that Flint’s parents’ primary goal is to prevent what happened to their son from happening to someone else.

“They aren’t in this for money,” she said. “They want this to stop before someone else gets hurt or killed.”

No one has filed suit in the Hui case. If they do, it’s likely they will name Strava as one of the defendants in the case. They will most certainly argue that under its current configuration, the Strava competition model actively encourages a disregard for safety and the law. Whoever handles that case will most certainly look to the outcome of Flint v. Strava for guidance. I’ll be watching this one, too.
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: Just when I thought I was out … they pull me back in

Dear Explainer,
I thought things in cycling would be quiet before the start of the Tour on the 30th of the month, but here we are again, with cycling hitting the headlines, with doping and Lance Armstrong mentioned in the lead paragraph again.

I got into cycling because of Lance Armstrong and I loved the guy as he killed it on the roads of France. Over the years, I learned more about him as a person and, still admiring him as an athlete, came to the conclusion that I probably wouldn’t enjoy spending a lot of time with the guy. Obviously, he has issues, but what the heck, he’s gone. He’s retired. He was even cleared by a grand jury. Why the hell is USADA going after him now?

Isn’t it a waste of time and money to persecute a retired jock for cheating whether he did it or not?

What are they going to charge him with? Who gets to decide his guilt? How long before we hear about the result?
– Roy

Dear Roy,
On one level, I have to agree, Roy. I guess Michael Corleone put it best when he (and later Silvio Dante on the “Sopranos”) said “just when I thought I was out … they pull me back in.”

And yeah, I pretty much thought we were done with this stuff, but we’re back touching on the same subject that’s been rattling around in my head since 1999, when I spent the entire three weeks of the Tour sharing a car and hotels with the man who would soon become Lance Armstrong’s chief accuser, David Walsh of the Sunday Times of London.

Look, no matter how you approach it, the story was compelling: The young American one-time world champion returned from death’s door to win the greatest bicycle race – nay, the greatest sporting event – in the world. Even one Tour victory would have capped that narrative, let alone seven. The story is – to use an oft-overused term – awesome. If it had merely been a movie or a novel, knowing cycling fans would have quickly dismissed it as fantasy.

Miracle or fraud?

Me? I have to go back to what Greg LeMond once said about the other American to win the Tour. “If Armstrong’s clean, it’s the greatest comeback,” he noted. “And if he’s not, then it’s the greatest fraud.”

It was a few years later, when Armstrong celebrated his last win in Paris in 2005, when he issued a rather flaccid response to that observation, “the last thing I’ll say to the people who don’t believe in cycling, the cynics and the skeptics: I’m sorry for you. I’m sorry that you can’t dream big. I’m sorry you don’t believe in miracles.”

Let’s deconstruct that. Yeah, I believe in cycling. I admit I’m a skeptic. Cynic? No, a cynic would be one to believe that people are too stupid to ask the questions a skeptic would raise. Hey, I even like to dream big, but I am not so much in the “miracles” camp. Apparently, neither is the U.S. Anti-Doping Agency.

So here we are, 13 years after that first miraculous Tour win and a good seven after that farewell speech from the podium in Paris. We’ve all reviewed charges, read books and heard accusers from all sides, but the “world’s most tested athlete” has emerged relatively unscathed. His most recent brush ended when André Birotte, the U.S. Attorney for the Central District of California, called an end to a grand jury investigation into Armstrong and others on a host of charges that were said to include allegations of doping, fraud and conspiracy.

A lot of people were surprised by Birotte’s decision, not least of which the investigators and Assistant U.S. Attorneys working the case, who reportedly received only 15 minutes’ warning before the news went public.

Cooperating with investigators in that case were officials from USADA, including the agency’s CEO Travis Tygart.

Wednesday’s news should come as no surprise then, especially to those who recall Tygart’s statement the day Birotte shut down the grand jury investigation.

“Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws,” he said. “Our investigation into doping in the sport of cycling is continuing, and we look forward to obtaining the information developed during the federal investigation.”

You’ve got mail!

At this point, the agency has not received much, if any, information from the U.S. Attorney’s office. There are specific provisions governing the release of grand jury information in the Federal Rules of Criminal Procedure and we may yet see the Department of Justice share some of that in the future.

The charges outlined in a June 12 letter to Armstrong are largely based on the evidence that USADA has gathered on its own over the past few years.

The agency outlines the elements of a potentially strong “non-analytical” case against all of the respondents. Much will depend on the quality of the evidence presented and whether Armstrong’s legal team can successfully attack that evidence. We’ll see.

We already know that there is a great deal of witness testimony out there, including statements from former staff and teammates. Some of those will offer testimony that the defense will work to impeach, largely because they themselves were caught doping. Chief among those, of course, are Tyler Hamilton and Floyd Landis.

Personally, I think Tygart is a pretty cautious sort and I doubt that letter would ever have been dropped in the mail if he didn’t have what he sees as an airtight case.

The charges

While nearly all of the attention has been focused on Armstrong’s inclusion in that list of respondents, included in the charging letter are Johan Bruyneel, doctors Pedro Celaya, Luis Garcia del Moral and Michele Ferrari and trainer Jose Pepe Marti.

USADA is seeking penalties and sanctions against all of them. Each of them, the document charges, has violated rules against the possession, trafficking, administration – or attempted administration – of banned substances and/or engaged in banned practices. The list of substances and practices includes all of the usual suspects: the drugs EPO, testosterone, Human Growth Hormone, Corticosteroids and assorted masking agents, as well as violations of bans on blood doping and the use of saline and plasma infusions.

The agency is looking to suspend each of the respondents in this case and, citing aggravating circumstances, may seek the imposition of life-time bans.

Normally, a first-time violation of the rules will result in a two-year suspension, but the revised UCI rules and the World Anti-Doping Code do allow an anti-doping agency to seek stiffer sanctions when there are aggravating circumstances. In this case, each of the respondents has been charged with “assisting, encouraging, aiding, abetting, covering-up and other complicity involving one or more anti-doping rule violations and/or attempted anti-doping violations.”

It’s that charge which serves as the basis for the conspiracy and cover-up charges outlined on page 12 of the USADA letter. The agency alleges that each of the respondents has been involved in a long-running and coordinated effort to acquire drugs, encourage their use among riders on the U.S. Postal, Discovery, Astana and RadioShack teams and then use “fear intimidation and coercion to attempt to enforce a code of silence (or omerta)” to keep those practices secret.

The evidence

With the risks faced by any individual rider who might choose to come forward, the code of omerta tends to work pretty well, too. But there appears to be a tipping point, too. After a certain number of riders come forward and speak publicly, the whole thing begins to unravel like a two-dollar sweater.

Frankie Andreu and Steven Swart started things when they spoke out about doping years ago. Floyd Landis, Tyler Hamilton and others have since come forward and, according to the USADA letter, virtually every rider they contacted – with the exception of Armstrong himself – has cooperated with the investigation and “agreed to meet with USADA and to truthfully and fully describe their involvement in doping and all doping by others of which they were aware.”

If that’s the case, the code of silence ain’t so silent anymore.

USADA says it is also prepared to present medical evidence, including blood testing data from 2009 and 2010 that are “fully consistent with blood manipulation, including EPO use and/or blood transfusions.”

The defense?

Armstrong was quick to respond on Wednesday, denying the charges and characterizing the case as “baseless, motivated by spite and advanced through testimony bought and paid for by promises of anonymity and immunity.”

“I have never doped,” Armstrong added, “and, unlike many of my accusers, I have competed as an endurance athlete for 25 years with no spike in performance, passed more than 500 drug tests and never failed one.”

That sounds like a guy ready for a fight. But is he?

Just last month, in a Men’s Journal interview, Armstrong seemed to suggest that he was expecting something from USADA, adding that if something did emerge, he was not going to waste his time challenging it.

“In my mind, I’m truly done,” he said. “You can interpret that however you want. But no matter what happens, I’m finished. I’m done fighting. I’ve moved on. If there are other things that arise, I’m not contesting anything. Case closed.”

Frankly, it’s understandable. The guy has a comfortable life. He’s focused on other things. He has the foundation, he has kids, he has amassed a fortune and he has his health. If he fights it we can expect a two-year battle, starting with a hearing before a three-member panel. Depending on how that turns out, we can also expect an appeal – by either party – to the International Court of Arbitration for Sport.

Take a look at the timelines in the Hamilton and Landis cases, if you need an indicator of how long this will take. Then add the complexity of multiple respondents, more serious charges and the evidentiary issues that will arise in a “non-analytical” case and we could see this thing go on for even longer. (Of course, on the plus side – at least in my book – that translates into lots and lots and lots of billable hours for the lawyers involved.)

At this point, walking away would mean a somewhat sullied reputation and a ban from his recent return to triathlon. All things considered, that may not be a huge price to pay, especially when weighed against the risks involved in losing a protracted fight.

Of course, there may be other reasons not to fight. Testimony in USADA cases is given under oath. Anything he says will be carefully scrutinized and there could be the potential for perjury charges – like those levied against the last athlete who embraced the “world’s most tested athlete” moniker, Marion Jones.

There’s also nothing to keep the Department of Justice from re-opening its now-abandoned grand jury investigation. Charges were never filed in the last one. Double jeopardy is not an issue … although the statute of limitations has long been an issue in my mind.

Evidence in this case could well be used in pending civil actions, including the currently dormant “whistle-blower’s suit” filed by Floyd Landis a few years back.

Still, even if Armstrong doesn’t fight, I can’t imagine Bruyneel, et al. will be satisfied to have their careers stopped in their tracks.

No matter what, we can probably expect to hear about the case and the charges outlined in USADA’s letter for years to come.

Is that a good thing? I don’t know. Frankly, I think the scrutiny is healthy. I honestly believe the sport is significantly cleaner than it was the first time Armstrong retired in 2005. Am I happy that we’ve waited this long to assemble evidence that’s been out there for years? Not so much. We would have all been better off had all of this happened earlier. Nonetheless, I really do want to see the evidence and finally be comfortable saying whether I believe this miraculous story was the greatest comeback … or the greatest fraud.

But what the hey, what do I know?

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: Grand theft Eddy

Dear Explainer,
It finally happened to me. For years, I was the one who was always methodical about locking my bike up and even renting a bike storage locker near my office. Last month, I decided to take my racing bike to work and, after a nice 25-mile detour through the hills, I stopped for coffee, ran in to get a cup and – you guessed it – my beautiful Eddy Merckx was gone.

I reported it stolen. I have homeowner’s insurance. I have “bike lock” insurance, the policy that came with my lock when I bought it. I admit that the bike wasn’t locked when I went to get coffee, so I didn’t even try to contact those guys, but my insurance agent is squawking about the size of my claim. She didn’t complain when I asked about coverage when I bought the thing, but now, all of a sudden, the first words out of her mouth were “$9500 … for a bike?!?”

Anyway, I filed the claim and haven’t heard anything for a couple of weeks now. This morning, I saw an ad on Craigslist for a bike that looked like mine. I called the police and they seem to be taking their sweet time about getting over there. Should I go for it?

What happens if it is mine?
– Annika

Dear Annika,
First off, great name. One of my favorite people in the entire world is named Annika and, after building up a really nice BMC hardtail for her, I am constantly lecturing her about the risks of “I’ll-only-be-a-minute” thinking when it comes to parking her bike. I will forego the opportunity to lecture you on that, although I do reserve the right to use your story as an example for my Annika, who also happens to be my 12-year-old daughter.

So, you’ve raised a couple of interesting questions. First, the insurance thing and then whether you should just go ahead and investigate the possibility that the Craigslist bike is yours.

Let’s start with the insurance question. I am going to guess from the tone of your letter that you are a fairly thorough person and that you have maintained a reasonably good file on your bike, including receipts, credit card records, serial numbers and other things connected with your sizeable purchase. If not, go ahead and contact the retailer from whom you’ve purchased the bike and try to get as much documentation as you can. You might also want to contact the retailer to get an estimate as to the replacement value of your bike.

If you have a copy of your insurance policy, take a look and see if it specifies whether the insurer is going to offer “actual” or “replacement” value for the bike. The actual value may be lower, once the insurance company takes the bike’s age, history of use and other factors into account. You, on the other hand, want to claim the replacement value of the bike, meaning the cost you will ultimately have to bear to be “made whole” again … putting yourself in the same spot you were before your bike was stolen. If the policy doesn’t specify, push them on covering replacement costs.

The difference between actual and replacement values may be small in this case, largely because – at $9500 – I have to assume this is a relatively new bike.

As for your agent’s reaction, it’s really irrelevant what she thinks when you make the claim. If you haven’t already provided documentation as to the bike’s value – actual or replacement – then do so as soon as possible. You should hear from them soon. If not or if your claim is denied or their offer is substantially less than the value of the bike, go back to your policy. That policy is a contract and it includes certain rights and responsibilities for both parties. From the sounds of it, you’ve lived up to yours – starting with paying your premium and filing a claim. Their responsibility is to pay you in the event of a loss.

Most policies have some provision that allows for dispute resolution, so that if you don’t like the offer, you can follow an additional procedure to address your concerns. That could involve mediation or arbitration. You may also have the option of filing suit against your insurance company, claiming breach of faith on their part. You paid your premium, they took your money and when push comes to shove, they didn’t live up to their end of the bargain. I would be careful, though. A lawsuit involves hiring an attorney. That means either a pricey hourly fee, or a contingency fee – meaning you will give up between 25 and 40 percent of whatever settlement you receive. Sure, lawyers are helpful, but try to exhaust all of the available remedies before you bring one into this thing.

Of course, all of that may be moot if you find out that the Craigslist seller is offering your bike for sale to the public.

I am answering your question in this column, but as you know, I’ve already sent an email hoping to dissuade you from heading there yourself.

My strongest advice is to keep bothering the police. This is a serious crime. We’re not talking about a little kid’s $99 WalMart special here. If you’re making a $9500 insurance claim, you’re well over the limit of this being a felony in all jurisdictions. Remind the police that this crime involves some serious money and strongly encourage them to investigate.

On a side note, I am not sure where you live, so I can’t really offer an assessment of the police and their willingness to get involved. Man, where I live, we have tons of cops, with five law-enforcement agencies with arrest powers in our little community of less than 30,000. We have local police, the County Sheriff’s Department, the Highway Patrol, University Police and, for good measure, Game and Fish. I once had a client arrested for being a minor in possession of alcohol. He was a 19-year-old college student, carrying a Coors Light across campus. Because he ran, there were eight cops, two bikes and five police cars involved by the time everything was over. I suspect those guys would jump at the chance to make a real arrest involving a felony theft. But, alas, I digress.

Let’s assume that the cops don’t respond … or don’t respond quickly enough to satisfy your concerns. Don’t go over there.

Okay, I admit, it has worked for people to go over and simply retrieve their stuff. Last November, a young woman in Boulder, Colorado, spotted her recently stolen bike on Craigslist and went over, pretending to be an interested buyer. She asked if she could take a test ride, the seller said yes and she rode away and then called the cops.

Look, I don’t advise you to do that, but if you do opt to go, don’t go alone and, if it turns out to be your bike, don’t confront the thief directly. If he’s dumb enough to let you go on a test ride, hey take advantage of the situation and ride away. You’d better make damn sure it’s your bike, though.

If he – or she – has already sold the bike, it’s time to get law enforcement actively involved no matter what. Don’t try to play detective and track it down on your own.

On a final note, if the Craigslist bike turns out to be yours and if you manage to recover it with – or without – the assistance of law-enforcement, contact your insurance company immediately. If the claim is in process, either put a stop to it or ask to amend the claim to reflect recovery of the bike, while still seeking compensation for any damage or other losses you may have suffered. Check the bike thoroughly. Are there parts missing? Is anything broken? Will components need to be replaced or repaired? All of that is insured, as are any missing items that were attached to your bike when it was stolen, such as (and I doubt this is the case with your bike) racks, panniers and the contents of those panniers.

Again, I advise against going over to check out the bike in person, but if you choose to ignore that, remember the words of Sergeant Esterhaus: “Hey, let’s be careful out there.”
— 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.

Follow me on Twitter: @Charles_Pelkey

The Explainer: Assault and bikery in the first degree

Dear readers,
It’s time the Explainer got back in the saddle, after a steady three weeks of LUG-ing it up during the Giro d’Italia. I had a good time and I hope you did, too. What a spectacular race, with an unexpected outcome. Hats off to Ryder Hesjedal, the first Canadian grand tour winner in history. The Tour de France is going to be hard-pressed to match the excitement of the 2012 Giro. Of course, I’ll be watching either way.

Now, while much of our collective attention was turned to Italy, there were obviously other races going on in other parts of the world. Indeed, just a few hours after Taylor Phinney snagged the maglia rosa in the opening time trial at the Giro, riders were lining up in Anderson, South Carolina, for the Electric City Circuit, part of the 2012 USA CRITS Speed Week series.

What happened in that race remains the subject of dispute, but it did cause several of you to write in with questions regarding the consequences of what one famous television commentator might call mid-race “Argy Bargy.”

I’m including two letters from Explainer readers from the eight I received. I think these two are fairly representative of the others.
– Charles

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Charles,
After hearing about Isaac Howe crashing during Speed Week’s Electric City Circuit on 5 May, I am curious about the legal complications that face Jonathan Atkins. Howe has accused Atkins of intentionally causing the crash. From the story I read, it seems that various accounts claim Atkins either grabbed Howe’s handlebar bar or struck it intentionally, causing a crash. Howe now has a broken collarbone.

If an investigation determines that Atkins intentionally caused an accident, how liable could be potentially be? In this situation, is there potential for criminal charges to be raised?

What options are available to Howe? Can he sue for damages associated with medical bills, lost wages, etc?

If an investigation concludes that this is a “racing incident” what are the options available to either rider?
Thanks,
– Bo

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Dear Explainer,
I just got done reading about the accident at the Electric City Criterium and have to wonder how someone could be charged with a crime or end up getting sued by someone for a crash in a bike race.

Couldn’t you argue that a crash is a crash and crashes happen in racing? I sign a waiver every time I put my front wheel on the line. I know stuff happens and I expect it to. I sure as hell ain’t going to call the cops or a lawyer every darn time something happens.
– Dave

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Dear Bo and Dave,
To start, the incident at Electric City hadn’t really caught my attention until I started getting emails about it. It is my understanding that the case remains under investigation, both by local police and by USA Cycling. Aside from briefly touching upon the competing description of the events that led to Isaac Howe’s crash and broken collarbone, I sure as heck am not going to offer my take on what happened.

Nonetheless, the incident does, despite what Dave suggests, raise a few interesting legal questions. Let’s start out with Dave’s assertion that Howe’s contact with the pavement was just part of the sport and something anyone who races should come to expect. Assume for a moment that the “accident” was the result of an intentional and malicious act. In that case, I think the tested legal principle of taurus stercoris might apply to your argument, Dave.

As you point out, everyone who has ever raced a bike in the U.S. – from local citizens’ racers to top professionals – is intimately familiar with the release form we sign before being allowed to toe the line. Some of us even read the darn things before we sign them. But what is it that you’re actually signing?

Well, it isn’t just a piece of paper acknowledging that “shit happens,” when you race. I’ve muddled through the topic before, but briefly signing a release only waives claims stemming from simple negligence on the part of the promoter and other participants.

Normally, we all owe what lawyers call “a duty of care,” to others. That means that during the course of your day-to-day activities, you really ought to be paying attention and not, for example, be staring at the girls on the sidewalk when you’re driving your car down the road. It also means that you may, as the promoter of an event, take steps to minimize risks to participants. But in bike racing, there are certain “inherent risks” involved in the sport, so we get the waiver. Without it – or, as is the case in states like my own – statutory protection, event organizers would be nuts to put on a race in which anyone risked an accident or injury.

What the release does not do is protect an organizer from gross negligence – like putting on a race over streets where one or more manhole covers have been removed. Nor does it protect anyone from intentional acts, such as those Jonathan Atkins stands accused of.

The question at issue in the Electric City matter is whose description of events is accurate. If, as Atkins says, he simply bumped Howe in the normal course of racing his bike, then that’s it. No one really has a claim, even if it could be argued that Atkins took a bad line and caused Howe’s crash through negligence.

Conversely, if Howe’s description of events turns out to be true, his advice to Atkins – “You better get a lawyer.” – is spot on. Howe claims that Atkins actually jerked him to the ground by reaching over and grabbing Howe’s wrist or handlebars.

Now, if that were true, it would satisfy the “intent element” of an actual crime and would open a whole new can of worms for Mr. Atkins.

Firstly, if law enforcement finds that Mr. Atkins actually carried out the act of grabbing Mr. Howe’s wrist or bars and “jerking him to the ground,” the case would end up in the hands of local prosecutors. It’s there they make the call as to which part of the criminal code was violated. Than can make the difference between a misdemeanor assault charge or a far more serious felony, aggravated assault. In South Carolina, the statute uses the terms “assault” and “battery” interchangeably, so I will as well.

If they go for the felony, he could be charged with “assault and battery of a high and aggravated nature,” a violation of §16 3 600(B) of the South Carolina Code of Laws. That violation carries a maximum sentence of 20 years in prison, but there would be a serious hurdle for a prosecutor to overcome, given that a collarbone break may not meet the “great bodily injury” standard. A more likely felony charge would be a violation of §16 3 600(C), first degree assault and battery, where the prosecutor simply has to show that the victim was injured or that the assault was carried out in way “likely to produce death or great bodily injury.” Odds are pretty good that one could make a case for that. Again, there is an intent element to this crime, meaning that the defendant had to intend to perform that act of assault. If prosecutors are unable to show beyond a reasonable doubt that Mr. Atkins intended to grab Mr. Howe or his bike, he will not be convicted.

Even if Mr. Atkins is cleared of a criminal charge, that doesn’t mean that he is home free. No, he cannot be successfully sued for simple negligence in a case resulting in an accident during a bike race. It would even be hard to prove gross negligence or even recklessness. The key here again would be proving intent. Proving that, though, is easier in Civil Court than it is in Criminal Court. At least the standard of proof is lower in Civil Court than it is in Criminal Court. Remember that the standard in American Criminal Courts is “beyond a reasonable doubt,” the highest standard of proof in the judicial system. That’s rather formidable.

In most civil actions, the Court applies a “preponderance of the evidence” standard, meaning that there should be a greater than 50 percent chance that the allegation is true. That could be huge when it comes to eyewitness testimony, even if it is impeached by the defense.

Damages? If I were representing somebody in a case involving a claim against someone who intentionally caused an injury and I could prove it, I would go for the standard medical costs, loss of income, pain and suffering and, as a kicker, try for punitive damages as well.

Again, I am not saying that Mr. Atkins did – or didn’t – do what Mr. Howe accuses him of doing. I am saying, however, that anyone shown to have intentionally caused an accident during a race by reaching out and jerking someone to the ground is guilty of more than simple negligence. He’s guilty of both criminal assault and liable for the civil consequences that would stem from that act as well. In simple terms, he’s a jerk and, like the man said, he “better get a lawyer.”
— 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.

Follow me on Twitter: @Charles_Pelkey

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