The Explainer: It’s Giro time!

Dear Explainer,
This weekend’s opening time trial at the Giro is listed as “Stage 1.” To me it looks like a prologue. What makes it a full stage as opposed to a prologue?
― Allan

Dear Allan,
A quick question and quick answer for this one. The UCI’s Rule Book defines a prologue as anything less than eight kilometers. Beyond that, it has to characterized as a full stage.

The name is not the only difference, though. If a rider suffers a crash or a mechanical that keeps him from finishing a prologue, he is still able to compete the next day, being credited with the same time as the last finisher.

If the same thing happens in a time trial that exceeds the 8km prologue limit, the rider who doesn’t finish is eliminated from competition.
― Charles

Dear Explainer,
Aside from the Tour de France, a lot of riders – especially sprinters – seem to drop out of the “other two” grand tours, leaving the Giro to prep’ for the Tour or leaving the Vuelta to get ready for worlds. Isn’t – or shouldn’t there be – a rule that keeps riders from scoring wins and then leaving in search of greener pastures?
― Randall

Dear Randall,
Well, there is a rule that keeps riders from leaving a stage race and immediately entering another event, but that’s about it.

UCI Rule 2.6.026 makes certain that if a rider drops out of a stage race like the Giro, he cannot participate in another race until the Giro is over. There is an exception, which allows the UCI to grant special dispensation if the rider and his team director make a request and the director of the race the rider has abandoned agrees.

I know a lot of people who think it should be even tighter than that. There are some who think a rider who doesn’t actually finish the stage race shouldn’t be credited with stage wins he scored on the way up to his abandonment. Certainly, that’s the practice with riders contesting the jersey competitions. Even if a rider were to have an unassailable lead in, say for example, the mountain jersey competition, he would not be given that prize, even if he were to drop out on a flat stage on the final day. To me, that seems a bit harsh, but it is what it is.

As for taking that draconian step with stage winners, I am not so sure. I do understand fans’ frustrations when they see a Mario Cipollini, Alessandro Petacchi or Mark Cavendish leave when the race hits the mountains, I still think forcing them to finish a three-week tour just to be credited with stage wins won two weeks earlier would be an extreme measure. It would certainly change the character not only of that particular race, but of the entire grand tour season.

I guess one rule change might be to extend the ban on racing even beyond the finish of the particular stage race – say an extra two weeks for “rest” – if the rider didn’t have to abandon due to injuries suffered in a crash. That would certainly keep a lot more riders in the Vuelta at season’s end, no?

I actually don’t mind seeing the sprinters dominate the opening week and then take a flyer out of the race. I used to love watching Cipo’ rack up wins and then have him come hang out in the press room or VIP tent as the Giro hit the Dolomites. That said, I really do admire those sprinters who ride through all three weeks and then make a run at winning on the final day in Milan, Paris or Madrid.
― Charles

Dear Charles,
I am a long-time reader and big fan of the Explainer and, especially of your Live Updates.

First, I want to ask what your plans are for the Live Update Guy as the grand tours kick off this year. I know since you left (that other cycling publication) you’ve been practicing law. Are you still going to do the Giro, the Tour and the Vuelta?

Second, after all of the years you got to cover those races, which of them is your favorite? While I know you don’t always do “Live” from location, you must have been to a few. Which is the best?
― Richard

Dear Richard,
At this point, I am planning to do Live Updates from each of the three grand tours this year. I’ll be starting off with the Giro on Saturday and, hopefully, commenting on all three this year. A lot of it depends on my trying to find a successful economic model that allows me to do that. Yes, I do enjoy practicing law, but I have to admit that I love LUGing the grand tours.

Red Kite’s Padraig and I are working with a couple of my former colleagues from the old days at VeloNews on the sales and technical sides. I honestly think that we’ll get this set up so that it’s not a purely volunteer effort.

By the way, I’ve also signed on to do some Live Update work during the Tour of California for CyclingNews.com, which should be fun and interesting, since they were our chief rivals during my time at VeloNews. Those folks have turned out to be terrific and were also quite supportive during my illness last year … as were my friends and colleagues over at VeloNews in Boulder.

Anyway, as for your second question. Yes, I did go to all of them and yes, I enjoyed every minute of it. In the 17 years I worked at VeloNews, I attended at least part of seven Tours de France and did two complete editions of the Giro and once covered the Vuelta in person. Of the three, I would have to say that it was the Vuelta I enjoyed the most, but that may have been due in large part to the fact that I took my then-10-year-old son, Philip, with me to the 2004 Vuelta. To use a hackneyed old cliché, it just doesn’t get any better than that.

As for the Tours, I think my favorite of all time was the 1998 Tour, which gave us the infamous “Festina Scandal.” It was that race that put me on Velo’s “doping beat” from that point forward and probably even led to my decision to go to law school, which has come in pretty handy since I left. I was part of the media scrum assigned to cover the judicial part of that Tour. It was fascinating. I still remember my favorite one-liner from that year, which ranks among my favorite.

While waiting for the start of the seventh stage individual time trial from Meyrignac-l’Église to Corrèze, we heard that the Festina team was planning to compete, despite having been ordered off the race the night before. There was a big flurry as reporters divided their crews into covering the race and sending people to chase after the team, which ultimately had a press conference at a local restaurant. For some reason, that day I got the job of covering the racing, which seemed like the lesser story at the moment.

Standing around in the parking lot used by team busses, a German reporter and I stood under the hot mid-day sun and talked about the scandal and what we were probably missing at the time. At one point, he kicked at the dirt with his boot, smiled and said “Well, at least no one’s talking about how much weight Jan Ullrich has gained in the off-season any more, eh?”

The following year was fascinating, too. Not because it was the first in Lance Armstrong’s unprecedented string of seven Tour wins, but because I spent the entire three weeks driving – and staying at hotels – with Rupert Guinness, John Wilcockson and the man who would eventually become the biggest thorn in Armstrong’s side, David Walsh, of the Sunday Times of London. As you might imagine, there were some interesting conversations over those three weeks.

Anyway, if I were to recommend going to either one of the three … it would be a tough call, but I would have to suggest you pick the Vuelta. All three are spectacular races run through beautiful countries, but the Vuelta seems a little more relaxed. I think fan access if better and it seemed, to me at least, that it was more fun for some of the riders because of that.

Okay, folks, it’s time for me to start Live Coverage of Stage One of the 2012 Giro d’Italia. Have fun and I hope to see you throughout the season.
— 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: The financial consequences of a crash

Dear Explainer,
I love bike racing and I got pretty good at it really quickly. The bad thing is that my decision to put everything aside to pursue this sport has probably cost me, big time too.

Let me explain. In my junior year in college a friend of mine convinced me to give a local bike race a shot. I was in running shorts and tennis shoes and still finished second. I was bitten. A few months later, I was on the university team, doing really well and had more money into bikes and kit than I ever imagined I could spend on having fun.

When I graduated, I put my job hunt aside and got into racing as much and as often as I could. I probably put in 10,000 miles in 2010 and was on my way to topping that in ’11. Unfortunately, I had a crash in July and broke my hip, my pelvis and my collarbone. My front wheel hit a big, ugly pot hole on the way down a long descent and the carbon rim cracked, three spokes broke and I hit the ground hard enough to crack my hip and seriously break my pelvis and my collarbone. I was three months past my 26th birthday, so I was no longer on my parents’ insurance.

No insurance, no job and months’ worth of recovery time, I almost lost my house and only got by with help from family, friends and (I hate to admit it) credit cards. At this point, I am probably looking at debt approaching $50,000 or $60,000, most of it owed to doctors, the hospital and those credit card companies. I also have about $32,000 in student loans. I am finally back in the job hunt and my grades and résumé are probably good enough to land me a job, but I don’t see any way out of the financial mess I am in even with a good paying job. I’ve considered some of those debt consolidation companies who promise to negotiate your debt away for pennies on the dollar.

My basic questions are whether I can or should even think about talking to the debt company or should I consider bankruptcy. I have also wondered about suing the manufacturer of the wheel.
— Annie

Dear Annie,
Wow and I thought my 2011 sucked.

Let’s start with your last question first. Suing a manufacturer for a defective product is probably going to be difficult, especially since you say you hit a “big, ugly pot hole” before it failed. Still it’s possible and you really need to speak with an attorney about something like that. Based on the limited information you provided, I sure as heck don’t feel comfortable telling you yes or no.

Let’s hope, though, that you still have the wheel and that an expert could reasonably conclude that your use was reasonable and that the failure was the result of a manufacturing defect or a failure of the product to live up to its promised level of performance.

There are three ways to approach product liability questions and your lawyer will walk you through each of them as the two of you decide if you have a case or not. As I mentioned, there is the question of a manufacturing defect, which generally means that the particular wheel you had was not built to the standards set by the manufacturer. If, for example, your particular wheel was made with measurably less carbon fiber material than the specs called for, that would be a “manufacturing defect.”

If the wheel manufacturer decided that it wanted to produce the world’s lightest bike wheel, but all of them had a habit of folding like an origami crane, that would be a “design defect.”

The good thing about product liability cases is that you don’t even have to show that the manufacturer was negligent (or as reckless as he would have to be in my design defect example), but just that the product was defective. Period. It’s a strict liability claim.

Now you hit a pot hole, so the defendant – if there is one – may claim that the damage resulted from extreme use that exceeds the warranty – either express or implied – of the product. You, in turn, might be able to say that even if it is not expressly mentioned in the warranty, the manufacturer implies that the rim is suitable for use on the open road – pot holes and all. You might also take a look at a recent Explainer on the topic of road hazards like pot holes and the like.

You might also want to check the “Recalls and Safety News” page of the U.S. Consumer Product Safety Commission to see if that particular product was subject to recall. Ideally, from a plaintiff’s perspective, the recall would have been issued after your accident, but you need to check. It’s actually pretty interesting to see how many bike-related products are subject to recall.

Again, these are just quick answers to very complicated questions and you really need to see an attorney about this one. Your damages sound like they would be significant, so if there is a case, there’s a good chance an attorney would pursue it on a contingency basis.

No matter what, you have some serious debt issues we need to look at.

First off, let’s just scratch the “debt consolidation companies” option off of the list. While there may be some perfectly great businesses out there whose sole intent is to help consumers out of their problems, I just haven’t run across any. What I have run across is companies that promise to help you through a debt crisis with rather vague allusions to “negotiations” that will eliminate the problem.

You may notice a number of those companies start with having you stop paying all of your bills and then make monthly payments to them while they 1) extract a fee for services and 2) try to contact your creditors in an effort to convince them to accept pennies on the dollar. Whether they succeed or not, they will still charge you. What’s more, even if they don’t end up using the money you’ve sent in to pay your bills, you might find it difficult – if not impossible – to get it back without a big fight. Hell, you can negotiate for yourself, although it takes patience and persistence and you don’t have to pay a fee.

Should you consider bankruptcy? You know that’s a tough decision, but it is one you might want to consider seriously. For most consumers, there are two bankruptcy options: Chapter 7, which involves a complete liquidation of your assets (more on that later) and a complete discharge of your consumer and medical debt. Unfortunately, student loan debt is generally not dischargable, so that $32,000 you mentioned will probably be around until you pay it off. There is one way out of student loan debt in a bankruptcy, but proving that repayment will pose an “undue hardship” on you is a tough hurdle. You need to speak with a bankruptcy attorney about that one, since it involves a lot more than the usual Chapter 7 or 13 would.

Still, you have $50,000 or $60,000 in dischargable debt and it may be worth considering bankruptcy as an option. From the sounds of it, you are probably pretty light on the asset side these days, so let’s talk about Chapter 7 first. As I said, on the downside, a Chapter 7 involves the liquidation of assets. On the plus side it is followed by the discharge of debt (with that damn student loan exception I mentioned).

You mention your house and, based on your age and such, I am going to assume that you are a recent home-buyer. Odds are pretty good that even though you are a homeowner your accumulated equity is probably less than the exemption that the bankruptcy court will allow. I know I sound vague here, but it’s because bankruptcy laws are a weird hybrid of federal and state statutes and the amount of the so-called “homestead” exemption varies from state to state. And by “varies” I don’t mean just a little bit, I mean by huge amounts.

Take my state of Wyoming, for example. If you were to seek bankruptcy protection under Chapter 7, you are allowed a $10,000 homestead exemption. In other words, you could have up to $10,000 of equity in your home. Double that if you’re filing jointly with a spouse.

Now, let’s say you live in the great state of Texas. There the homestead exemption is “unlimited” as long as the property in question doesn’t exceed 10 acres within city limits or 100 acres in rural areas (200 acres if you’re a family). Ten acres within city limits?!?!?!? I honestly think that the mansion in the old TV show “Dallas” would be exempt, while a guy who owns a beat-to-crap trailer home on a 100-foot-by-50-foot lot in Wyoming would not be. I have quite a few gripes about the Bankruptcy Code, but the variable homestead exemption is at the top of my list.

Anyway, you can find the state-by-state exemptions on-line and your attorney can certainly help you decide if Chapter 7 is right for you, given your state’s exemptions and exclusions.

Let’s assume for a moment, though, that you live down the street from me here in Wyoming and you have $50,000 in equity in your home. In addition you have a car that you love, but it’s worth far more than the $1800 exemption provided for under state law. You have other assets that exceed the list of exemptions and you want to protect all of them.

You don’t want to see your home sold and you don’t want to lose the car. What you can do there is talk to your attorney about a Chapter 13. That would stop any and all collection actions and help you establish a repayment plan with your creditors. Again, it’s more complicated than that and there are some things to consider regarding your student loans, so you need to speak with an attorney.

Bottom line, you do have options.
— 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: Gene, gene, the doping machine

Dear Readers,
First off, we did get a good response from many of you regarding a possible point-counterpoint with Padraig over the issue of stop-as-yield, the policy that would allow cyclists to simply slow down at STOP signs. I have some great input on readers on the topic, but Patrick is a little banged up this week, so we’re going to put that idea on hold for a little while.

Second, I want to thank long-time reader Ed Rubenstein for sending me an absolutely wonderful press release from the Police Department of Bethlehem, Pennsylvania. The department is honoring two local citizens for their efforts to stop a hit-and-run driver from scampering away from the scene after he struck cyclist Frank Pavlik.

I won’t spoil the end by describing the events. Instead, just watch the video… indeed, you ought to scroll down and watch the video before reading the press release. While I am not normally a fan of those overly intrusive cam’ systems that seem to be popping up everywhere, this is one of the cases for which I am more than willing to make an exception.

The good news is that Mr. Pavlik was not injured in the incident.

Now, back to work.

Gene Doping?
Dear Explainer,
I am gonna take a shot and see if you’re willing to end your ban on doping questions.

So, I have been reading a lot about the “progress” researchers are making in the detection of illicit doping products – like CERA, EPO and NESP – and even the manipulation of blood counts by monitoring through the Biological Passport. Now, I’m beginning to wonder if all of that is worth the trouble, since it seems like the new thing in the 21st century is gene doping.

Is it detectable? If not, what the hell are we wasting millions on doping controls when the real cheaters aren’t being caught?
– Martin

Dear Martin,
Okay. I have to admit, I like the topic, too. It’s a little disheartening to constantly discuss the subject, but I do really find it fascinating. So, okay, I’ll try to tackle this one … and I’ll make a habit of answering future questions on the subject, if readers are interested.

Doping has been such a common subject of dinner time discussions in our house that I even got a copy of Angela Schneider’s and Theodore Friedmann’s book “Gene Doping in Sports: The science and ethics of genetically modified athletes” for Christmas a few years back. (And you probably thought I was tough to buy for.) A lot of progress has been made in the field since that book first came out in 2006, but the field is still in its infancy and I continue to believe that it may be some time before we see gene doping making an appearance in competitive sport.

That said, the day is getting closer.

As “traditional” doping is the unwanted off-spring of progress in pharmacology, gene-doping is the evil spawn of the new science of gene therapy. Instead of altering DNA to resolve an existing mutation or attack a disease, cheaters are hoping to trigger genetic changes that will result in enhanced athletic performances.

Case in point, is something I was planning to write about last summer, right after the Tour was over (but things came up that distracted me for a few months). Researchers at the University of Pennsylvania published an interesting article in the August edition of the Journal of Clinical Investigation. If you’re into that sort of thing, it’s worth trying to work your way through “Loss of IL-15 receptor á alters the endurance, fatigability, and metabolic characteristics of mouse fast skeletal muscles.”

The short hand version is that the authors found the “negative regulator” of endurance. The absence of a specific gene actually allowed test subjects – in this case lab mice – to run more than six times farther than their counterparts who had the regulatory gene.

Another obvious approach, of course, is the effort to manipulate an athlete’s genetic structure in an effort to produce greater amounts of erythropoietin. Research has already shown that we could all become our own little EPO factories, cranking out red blood cells to our heart’s content.

And there’s the rub. At this point the science is still new. A few years ago, a study at France’s University of Nantes did show that genetic manipulation could “flip the switch” on erythropoietin production in mice. The problem was, however, that researchers hadn’t found the “off switch,” and the genetic manipulation resulted in the over production of red blood cells to the point the animals died of circulatory failure, heart attacks or strokes.

Of course, it may only be a matter of time before that regulatory mechanism is found. Already there are gene therapy drugs for anemic patients being produced in China and under preliminary review here in the U.S. I sure wouldn’t want to risk it, but others probably would. For long-time cycling fans, you might recall the spate of mysterious deaths of cyclists in the early ‘90s when some took a more-is-better approach to EPO and raised their hematocrit levels to 60 percent and beyond.

Testing?
Assuming the safety issues are truly resolved, the problem then comes down to one of detection.

One big advantage that testers have in the effort to monitor genetic manipulation is that such gene therapies take time. The result is not instantaneous as the body undergoes gradual changes as it begins to adapt to the new genetic sequence.
The World Anti-Doping Agency has announced that it is refining and finalizing a testing method to be used in time for the 2012 Olympics in London. Financed by WADA and developed at the Universities of Tübingen and Mainz, in Germany, the test is said to be able to detect genetic manipulation that took place up to 56 days before a sample is submitted. [Gene Therapy 18, 225-231 (March 2011)]

WADA is attacking the question on several fronts and has established a “Gene Doping Expert Group,” headed by the aforementioned Theodore Friedmann. The group is overseeing the development of testing protocols and, like its Biological Passport counterpart, will be heavily involved in decisions as to whether a sample is to be flagged as positive.

Is it going to be effective? Time will tell. I remain hopeful (some have said “clueless”) but no matter what, I would reject the idea that we abandon the very notion of testing and throw open the doors to cheaters, simply because the technological stakes are constantly being raised.
— Charles

P.S. – Back to racing, folks. I will be here – and on my own site, LiveUpdateGuy.com – providing up-to-the-minute reports on the action in tomorrow’s edition of Paris-Roubaix. I hope you can join me and the guests who may, or may not, wander through while we’re “on the air.”
— CP

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: Close encounters of the pothole kind

Dear Explainer,
A month ago, I was riding to work on a clearly marked bike lane during a pretty bad rain storm. Nearing the bottom of a hill, a FedEx truck pulled into the bike lane to “double park” while making a delivery. It was foggy – and so were my glasses – and I didn’t see the thing until it was almost too late. I quickly moved out into the flow of traffic and I’ll be damned if I didn’t hit an HUGE, ugly pothole that almost completely swallowed my front wheel and sent me sailing over the bars. As if that wasn’t bad enough, a lady on an electric bike hit my bike and hit the deck, too.

I ended up breaking my wrist, my nose and ripping up my face pretty badly. (I didn’t make it to work that day.) The woman on the electric bike ended up breaking her forearm and completely destroyed my frame (it was carbon), too.

I was thinking about filing suit against FedEx, calmed down a little, but I just got a letter from the electric bike lady’s lawyer which, in addition to asking for my insurance information, also hinted that she might be suing me at some point along the way. What should I do? Should I respond to the letter? So far I haven’t. I’ve also ignored two messages from the guy. I know your normal advice is to hire my own lawyer, but it’s not like you people come cheap and I’m not exactly wealthy, but not poor enough to get free legal services.

Finally, I also want to mention that I am a long-time reader, but this is the first time I’ve ever submitted a question. I want to say how impressed I am with how you managed to keep your sense of humor and to continue writing (and LUGging!) all the way through your treatments. I hope you are recovering and that your medical condition stays good.
— Mitch

Dear Mitch,
Man, talk about having a string of bad luck. It was something of a convergence there, but unfortunately, the problems you encountered are all-too-common dangers out on the roads. You just happened to score on multiple fronts. I wish you a speedy recovery from your injuries.

One thing you don’t mention is whether the accident resulted in the dispatch of police (or ambulance) to the scene. From the sounds of the damage incurred, I have to guess that someone called 9-11 and the cops have a report of the incident.

If so, was anyone ticketed at the scene? The FedEx guy? The woman on the electric bike? You?

Obviously, if there was a citation issued, that may play a role in the case. It’s certainly an indication of who might ultimately be considered to be liable for damages.

And, yes, you’re right. My normal recommendation is to go see a lawyer. I understand how you might “fall through the cracks” by having too much income to qualify for Legal Aid (or similar services), but not enough to be able to afford the hourly fees of a private attorney. It’s something of a dilemma, but with another possible plaintiff making noise about potentially suing you, it might be worth making an inquiry.

It will also help to contact your insurance agent to see what, if any, coverage you have might extend to this accident. You might have liability coverage under your homeowner’s policy that would extend to a situation like this, even though it took place away from your home. In the mean time, keep doing what you’re doing and don’t respond to the letters and phone calls from the woman’s attorney. If you’re covered by insurance, let those guys handle it. If not, yes, get yourself a lawyer, even if it costs you some money.

Frankly, from what you’ve told me, it sounds as if she doesn’t have much of a claim against you. If she ran over the back of you as you went down, it seems to me that you could easily claim she was following too closely … especially for the conditions out on the road at the time. Having a police report would be helpful. It seems to me that the two of you might have similar claims against the same potential defendants than you do against each other. Again, it’s something your lawyer can help sort out.

Who to sue?
Now, as to your thought about suing FedEx, the first thing I would do is check the local ordinances regarding parking in the bike lane. Stupid as it sounds, some municipalities actually allow that kind of stuff to happen. No, I don’t mean the usual example of a poorly designed bike lane with legally parked cars along the side, just waiting to “door” you and other riders. I mean that some communities allow – even encourage – commercial vehicles to pull into the bike lane and stop while making a delivery.

One thing that was unclear from your description was when and how the driver chose to pull into the spot. If he cut you off in an unsafe manner, forcing into traffic on short notice, you may still have a claim, even if your community allows such temporary double parking in a bike lane for purposes of making a delivery.

One thing that intrigues me is the pothole you mentioned. Is it still there? If so, go out and try to get a picture of the thing and, assuming you won’t be in traffic, try to get a measurement of it.

You just might be able to file suit against the locality for its failure to address the problem, if you can show that the agency responsible for maintaining the road knew about the hazard, yet failed to repair or at least warn the public about it. The proximity to the bike lane may also lend further weight to a claim.

When contemplating a claim against the city, here are few things to consider. Was the road hazard the result of a bad repair job by the city? If it’s the result of road work and the repair was either inadequate or as-of-yet incomplete, the agency responsible probably had a duty to offer adequate warning to those who might be caught in it. Was it something that had been around for a while? If the hole out there was just the result of wear-and-tear and weathering, the city would have a “reasonable” amount of time before its duty to repair kicked in. If the pothole had been there for just a few days, you probably don’t have claim. If it’s been there for months and growing worse, a reasonable schedule of road inspections would shift the duty to the city to repair it. From the sounds of it, anything big enough to – as you put it – “ almost completely swallowed my front wheel” might have been there for a while. Have there been other accidents or complaints? A search of public records – usually available under state open records laws – should show if there had been complaints about the hazard. Accident records from the same scene would also provide you with additional firepower if you opt to sue the city.

I am assuming, from the description of the incident, that it took place within city limits. Filing a lawsuit against a city is easier than it is to sue a state agency. It’s an important distinction, because a state agency can claim immunity under the 11th amendment of the U.S. Constitution, while a local government entity can’t. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The only exception might be if a local government was carrying out duties mandated by the state, but blowing off road repairs probably wouldn’t fall under that exception, now would it?

Again, there are a lot of issues that come up in your case and I really believe you do need the assistance of an attorney, whether that’s provided by your insurance company (if the electric bike woman sues you and you’re covered) or a lawyer you hire on your own.

Finally, thank you so much for the kind words. I am not sure how impressive it was that I kept writing, but I appreciate the sentiment. I think I was largely motivated by fear, huge monthly COBRA payments and a touch of boredom. Anyway, all of that is behind me. I went for my first post-chemo quarterly check-up on Friday and the news continues to be good. I am really grateful to you and to others who have expressed support and encouragement over these past few months. Here’s hoping the subject doesn’t come up again, though.
— Charles

P.S. In scouring the mail box for a possible topic this week, I ran across one suggestion from Red Kite’s own Padraig. Long story short, Padraig is a fan of something known as the “stop-as-yield,” meaning that cyclists be granted an exception to the rule that vehicles come to a complete stop at stop signs. Conversely, I am not much of a fan. Would there be interest in a point-counter-point debate on the subject for next week’s column? If so, let me know and weigh in with your own opinions on the subject by sending me an email at Charles@Pelkey.com.

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: Spring break, TV woes and gentlemen’s agreements

Dear Readers,
As some of you might have heard, I took last week off to spend a little time with my son on a short vacation to Nebraska.

Yup, Nebraska. Sure, it’s one of the states out here in the Big Empty of America and not exactly the place that tops the list of most people’s spring break destinations, but it was spectacular.

We drove to the middle of Nebraska and worked our way up and down the roads along the Platte River between Kearney and Grand Island to watch the Sand Hill Cranes, who are out there fattening up before continuing on their way north for the summer. It’s quite a sight and it’s something I would recommend to anyone who has a chance to stop by that part of the country at this time of year. Like clockwork, the cranes, who spend their days picking up left-over corn from farmers’ fields, return to the river to spend the night, listening for the sounds of predators approaching through the water.

At dawn, they take off and head to the fields where they can see any threats that will send them up into the air on quick notice. Last Sunday morning, we were below a flyover that included between 60,000 and 80,000 birds. That alone made the trip worth it, even though my own photos of that spectacular event were blurry at best.

Anyway, in checking my in-box upon my return, I thought I’d tackle a couple of questions that allow me to stay true to my reluctance to constantly dive into doping issues. Just as a reminder, if you have any questions related to cycling, cyclists’ rights, legal issues faced by the two-wheeled crowd and, yes even doping, drop me a line at Charles@Pelkey.com.
- Charles

Has the Internet killed the video star?
Hi Charles:
Not sure if the Explainer or someone at Red Kite Cycling could tackle this one, but I’m curious about the future of cycling on TV in the U.S.

There’s been a confusing series of mergers as Versus was swallowed up by NBC, which was then eaten by Comcast. During last year’s cycling season, I could find events on both Versus and Universal Sports channels. But now as I look at the lineup on the new NBC Sports channel, I find little or no coverage of anything cycling-related (I also miss ski racing as well).

I’ve read that Versus “Epic Cycle” brand will continue with the Tour de France, Tour of California and USA Pro Cycling Challenge. But what about all the great European classics, not to mention the Giro and the Vuelta which I watched last year on Universal? Am I doomed to real-time streaming via dodgy internet links?

Thanks,
— Eric

Dear Eric,
I was curious about that, too, but from the looks of it the mergers-and-acquisitions have not killed cycling on American TV.

The Folks at Versus will be offering some coverage of the Criterium International on Sunday March 25, but it appears that will just be a wrap-up with highlights. According to their schedule, we can see the Tour of Flanders, Paris-Roubaix, Fleche-Wallonne, Liège-Bastogne-Liège, California, the Dauphine, The Tour de Suisse and the biggie, the Tour de France, this season.

You will, in other words, get a full dose of Phil and Paul … assuming you light the blue touchpaper and get cable TV in time.

Notably absent on that schedule, of course, are the Giro and the Vuelta, grand tours I actually prefer over the Tour at times. For those, you may have to turn to Universal. If history is an indicator, it may be that you have no choice but to opt for streaming video, for a fee. I’ve actually long been a fan of streaming video and, yes, I agree it can be dodgy at times. Nonetheless, the quality has been improving over the years and with the 13mb connection I have, even out here in the wilds of Wyoming, I can often not tell the difference between that and regular TV.

Frankly, I am not sure what the future of cycling – or any other programming for that matter – might be on traditional television. With improving web technology and the à la carte menu of programming available on the web these days, we long ago abandoned cable TV in our house. I am not sure that’s a realistic option for all, since most traditional orb sports (football, baseball and basketball) tend to be limited to cable and broadcast TV. But since I never watch those anyway, it was an easy call for us to make.

Assuming your à la carte menu of programming includes a healthy dose of bike racing, it’s worth bookmarking Steephill.tv. The Steven Hill, the guy in charge of the site, works his tail off to provide you with a list of options available to television viewers, web watchers and even those who like to get a text feed on their phones (or the office computer during working hours). Indeed, Hill has even included a link to my own LiveUpdateGuy.com when I offer coverage.

Speaking of LUG, by the way, I will probably do some live coverage in advance of the grand tours this year. I am still working on the details and coordinating with friends, colleagues and photographers to get the necessary elements in line to do Paris-Roubaix. If we get the kinks worked out, you’ll be able to access that feed right here on Red Kite Prayer. As usual, I don’t offer much video (unless you count Monty Python’s “Bicycle Repairman!” sketch as cycling video), but I do try to keep a running update of current race details, strategies and the usual commentary that occasionally devolves into snark. Stay tuned to RKP or LiveUpdateGuy.com for further details.
- Charles

What happened to civility?
Good evening Charles,
Hope all is well for you and family out in Wyoming!

I read a comment today from Jose’ Azevedo about the stage 3 debacle in Catalunya that got me wondering something. Jose’ was talking about the crash that happened 5k into the stage and said something to the effect that the peloton would usually wait for everyone to get back on their bikes. “Not anymore. There was no waiting. It’s a war out there every day and there is no solidarity. It’s unbelievable,” he said.

Was / is there a “gentlemen’s agreement” in the peloton to cover things like this? I’ve heard this bit of etiquette mentioned before as in “no attacks when the leader takes a nature break or no attacks in the feed zone.

Is chivalry truly dead?
Thanks,
— Dan

Dear Dan,
Every few years, cycling turns its attention to the “unwritten rules of the peloton” or the “gentelmen’s agreement” not to profit from the misfortunes of others.

Most of us recall that the subject came up more than once in the 2010 Tour de France. Remember the peloton-wide neutralization that occurred on Stage 2 from Brussels to Spa in Belgium? With Sylvain Chavanel off the front, riders in the peloton were involved in as many as 60 crashes on narrow and slippery roads. Race leader Fabian Cancellara, with the support of many others in the field, moved to the front and slowed the entire peloton to what Britain’s Telegraph newspaper described as a “grandfatherly” pace.

Riders had concluded that it was both dangerous to ride on those roads at speed and that it was unfair to the many crash victims to attack at such an inopportune moment, especially that early in a three-week grand tour. Fans’ reactions were mixed, as I recall, with some applauding the decision and others suggesting the riders were either lazy or cowards (an easy critique usually offered from the comfort of a living room couch).

Flash forward two weeks later, on Stage 15 from Pamiers to Bagnères-de-Luchon, when race leader Andy Schleck famously dropped his chain as he neared the top of the Port de Bales. Denis Menchov and Alberto Contador moved past Schleck and we suddenly had what we now call “chaingate” (the “gate” element being Richard Nixon’s lasting contribution to the English language, I guess). Contador denied knowing that Schleck had suffered a mechanical and, if true, I certainly can’t fault his DS for not radioing him the news and asking him to wait. Schleck’s net loss was right around the amount of time by which he lost the overall Tour title, so the controversy has stayed alive … even now, since Schleck has since been declared the winner of that edition of the Tour (for reasons we all know).

I think another terrific example of how the “unwritten rules” come into play is the 11th stage of the 2004 Vuelta a España. As is common in the Vuelta, the day’s attacks started early that day and Dave Zabriskie (U.S. Postal) went off on his own by the fifth kilometer. Not long after he slipped away, there was a crash that took out Alejandro Valverde (Kelme), who was second on GC (behind Zabriskie’s teammate Floyd Landis) and leading the combined classification at the time. Out of respect for the injuries Valverde suffered the peloton rode the entire stage at a relatively moderate pace, while Zabriskie was off on his own, riding what turned out to be a 161km individual time trial.

Now contrast that stage and stage 2 at the 2010 Tour with the second stage of the 1999 Tour de France. Recall that the stage included the now infamous Passage du Gois.  Timed to coincide with low tide, the route took riders across a rough, slippery 3km road that spends a good portion of the day under water. Sure enough there was a big crash involving dozens of riders, including GC contender Alex Zülle (Banesto), who eventually finished second overall, by a margin roughly equivalent to the time he lost that day.

Those that escaped the carnage (including that year’s overall winner) didn’t hesitate for a moment. Unwritten rules or no, they punched it and they punched it hard. Early in the Tour and the GC had already been shaken up quite seriously. Depending on your perspective, it was ungentlemanly behavior … or, as they say, “that’s bike racing.”

And that brings me to the question you raised. Is cycling more or less civilized now? The problem with “unwritten rules” and “gentlemen’s agreements” is that they’re unwritten. The behavior is dictated by tradition. There are times when tradition still plays a role. There are plenty of recent examples of when it did. Other times it won’t. There are plenty of examples when it didn’t … even in the Golden Years of cycling. Competitors in any sport face an array of pressures from directors, sponsors and fans and sometimes, that can all combine to cause some to forget the dictates of tradition.

Frankly, I don’t see a significant lessening of compliance with those unwritten rules of the peloton. The history of the sport is rife with examples dating back to its origins of riders taking advantage of others’ misfortunes to move up on GC. We tend to forget a lot of those and at times recall only those memorable incidents when our long-passed heroes of the road rode and acted under a code of cycling chivalry. I think rather than a general decline in civility, though, I can attribute much of it to our somewhat selective memories.
— Charles

Photo Credit: William Walker

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: Share the damn road

Mr. Explainer,
A year or two back the State of Colorado passed a law requiring drivers to give cyclists a minimum of three feet while passing. Speaking just from my own experiences, I noticed that drivers seemed to be aware of the new law for about one news cycle, after that it was back to the normal close calls and brush backs. My question: has there been any evidence that the new law has increased the safety of cyclists? Is there any evidence that our law enforcement agencies are even enforcing this law?

A side note on this law. Here in Grand Junction we have an entity of the National Park Service with a really gorgeous road ride through it. You may have heard of it, it’s called “Tour of the Moon” and it was included in the Coors Classic. Anyway, that road, like most if not all roads in National Parks, is a federal road and hence state traffic laws, including the three-foot law, do not apply. Something to remember if ever you find yourself riding a road in a National Park or Monument.

P.S. The last I heard you’re on the mend, hope that still the case. How much longer and what will it take for you to get a clean bill of health?
―John

Dear John,
As to your first question, I can answer with a resounding maybe. Colorado is now one of 20 states that have enacted similar three-foot passing zones. Many of those have been enacted in the past three or four years so it may take a while to do a definitive study as to how effective the rule has been.

Whether Colorado’s “three-foot rule” has had an impact in reducing fatalities is probably a question that won’t be answered for a few years, until solid crash data is available and subsequently analyzed. That takes some time and since Colorado’s law is only a couple of years old, it could be a while before we get a definitive answer. Like the rest of the country, Colorado has generally seen a gradual decline in bicycle-related injuries and fatalities over the years and that trend has continued since passage of the three-foot rule.

Either way, it has to be an improvement. The law provides a guide for cyclists, drivers and police. It can also assist in determining just who is at fault in the event of an accident, meaning that plaintiffs, their lawyers and, ultimately, a judge or jury, can use the law as guide in deciding civil cases. All of those are a big plus for riders, even if the immediate impact isn’t discernible from crash statistics.

As for enforcement, there have been a number of cases in which police have either failed to enforce the rule when they see it violated or, worse, failed to take the law into consideration when investigating an accident. My friend Rick Bernardi did a terrific piece on the rather odd interpretation of the law by police in Loveland, Colorado, last year.

When it comes to enforcement, there is no real hard data and we’re left to work with the anecdotal, instead. Aggressive ticketing and other enforcement, said Dan Grunig, the executive director of Bicycle Colorado (and one of the “good guys” when you think of lobbyists) wasn’t the primary goal when the organization worked for the passage of the bill, sponsored by Republican Senator Greg Brophy and Democratic Representative Mike Merrifield. Grunig said the law represents a significant improvement over what was out there before the 2009 revisions.

“It’s really not as much about enforcement as it is raising awareness,” Grunig said. “That’s where the law can really make a difference.”

And, for at least a brief moment, it had a direct impact. I think you’re right in observing that there was a notable – although short-lived – difference in drivers’ behavior around bicycles. Most of my cycling friends in Colorado noticed the same thing and also noticed that it was but a fleeting phenomenon.

To continue to raise awareness, Bicycle Colorado has recently succeeded in getting a mention of the law included in Colorado’s drivers’ manual and on the test one is required to pass before being issued a driver’s license. These are baby steps, to be sure, but they are steps in the right direction.

Of course, the ideal would be the establishment of a national policy that would mandate the establishment of safe passing distances for automobiles passing bicycles. Quick action on that is unlikely, given that this is an election year, Congress hasn’t really been accomplishing a whole heck of a lot lately and when they have, it hasn’t always been what one might term “bicycle friendly.”

The establishment of a national policy would, of course, address your other question about whether the Colorado law applies to roads within the confines of national parks. Actually, there again, we have something of a mixed answer. The Colorado law does apply to state roads that travel through national parks, but if a road is exclusively within the confines of the park, then federal rules apply.

Your question also raises an interesting question about who is actually in charge of roads, particularly when they take you through a park or community while you travel from point A to point B.

Whose road is it anyway?
At the risk of being accused of having a “Colorado bias” (an odd, but frequent, accusation when it comes to a long-time resident of Wyoming), I would urge you to keep track of a case now before the Colorado Supreme Court. At issue is whether local communities may enforce a ban on bicycle traffic on certain roads, even when there exists no reasonable alternative route, especially for those trying to get through town.

The City of Black Hawk was once a sleepy little mountain community, established at the height of Colorado’s silver boom in the 19th century. Once most of the mines had played out, Black Hawk was damn close to becoming a ghost town … until city fathers and their neighbors in Central City got the state’s permission to establish casino gambling in both towns. The resulting boom probably puts the heady days of the silver rush to shame.

Black Hawk’s steep and narrow streets are now lined with glistening monuments to the math-impaired and its roads are packed with cars and tour buses full of those willing to accelerate the depletion of their checking accounts in a statistically predictable manner. In the old days, the road through Central City and Black Hawk offered a really nice way to get on to one of this country’s most beautiful bike routes, the famed Peak-to-Peak highway.

Indeed, the same road now at issue in this case was thrice used by racers in the short-lived Boulder to Breckenridge road race promoted by Len Pettyjohn. Despite the community’s role in racing history, the city council, in 2009, voted to prohibit cycling “on any street, highway, or public way” upon which the city had posted “appropriate signage.”

At issue in this case is not whether the City Council of Black Hawk is populated by bone-heads (that appears to be settled at this point), but whether or not a community along an otherwise passable route can simply enact its own traffic rules that stand starkly in contrast with state and federal laws, rules and guidelines and do so even when it negatively impacts neighboring communities.

The bike ban aside, if the Court upholds Black Hawk’s position in this case, I can see little to keep another town from suddenly deciding that its affinity for all things British allows it to force drivers to operate their vehicles on the left side of the road.

I plan on following the case closely and expect that I’ll be doing a longer, more detailed column on the case of The City of Black Hawk v. Rational Thought when the Colorado Supremes issue a ruling.

Now, as for your P.S., John, I am doing quite well. I am not sure when oncologists issue a permanent “clean bill of health,” especially since I am going to be monitored and checked up for years to come. My latest PET scans, however, show no cancer and that is good news after going through all of this crap for these past few months. I still thank my lucky stars for catching this thing early. Chemo is but a fading memory at this point. My hair is growing back and all of the other hideous side-effects of treatment are quickly fading. I am planning to be out on the bike more often as the weather here in Wyoming improves and … well, speaking of which, it’s time to go for a ride. I’ll be moving mighty slow, so be sure to give me three feet when you pass me, okay?
– Charles

The Explainer is now 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: The next generation

Dear readers,
First off, let me apologize for the delay in getting out this week’s column.

I got hit with a bit of the winter-time crud, which is not a pleasant experience, but it’s also somewhat reassuring to be dealing with the normal travails of seasonal health issues, rather than those that ruined my summer and fall last year. I guess it’s all a matter of perspective, eh?

Anyway, I am finally switching gears after a long, and unfortunately necessary, string of doping-related articles to answering questions that have popped up in my mailbox these past few weeks.

I’m going to start with something that couldn’t be further from tales of the dope-addled professional: my favorite, a topic near and dear to my heart, namely kids.

Dear Explainer,
I have been a cyclist and racer for most of my adult life, but I am embarrassed to admit that I was 13 before I could even ride a bike. It was not for lack of trying, but I recall being scared to death when my father took the training wheels off my bike when I was six or so and then I pretty much abandoned the things for six or seven years after that.

I am not writing to expose an embarrassing memory, but to ask how a reasonable parent might be able to make learning to ride a bike easier for my own son. I am not in a rush, but my wife and I just had our first child in January. Yeah, it’s still early, but I do want to get him on a bike as soon as is reasonable and I don’t have the childhood memories that would just let me teach him from experience.

How old do kids need to be to ride and how do you get them riding safely? What about racing?

Finally, if we were to stay in our current house, I would be nervous about letting my son ride to school, which involves a trip across a busy, busy road in our neighborhood.

Any suggestions would be appreciated.
– John

Dear John,
Congratulations on becoming a dad. To quote a past employer when I told him that my wife, Diana, was pregnant and that we were expecting our first child the following summer, “kinda makes the rest of this @#$% seem unimportant, doesn’t it Mr. Pelkey?” Truer words were never spoken and I welcome you to the sappy pappy club. I wish you, your wife and your new son the best.

I love this question for a lot of reasons. First, I think I was nine or so before I got started riding, which I think is still way too late in life. Second, I’ve run across fully grown adults who had never learned to ride and I’ve help at least two of them get started.

I had the same question come up when our two kids, Philip and Annika, hit riding age and I did a lot of trial and error in that effort. Some things I got right, some things I would do differently.

Training wheels?
When our son, Philip, started riding, our friend Portia Masterson, the owner of the old “Self Propulsion” bike shop in Golden, Colorado, was adamant about not using training wheels. I ignored her advice. I wanted Philip to ride and I wanted him to ride soon, without fear or trouble. So, thinking I knew better than Portia, I went ahead and got a nice little bike with that extra set of wheels on the back. He took to it like a fish to water.

Then it took me what seemed like forever to break him of his reliance on the things. Then I repeated the same mistake with Annika and got the same result. Portia, you were right. I was wrong.

If you’re a parent who made the mistake I did and started the kids out on training wheels, there are a couple of ways to wean them off of those things. Most training wheels are height adjustable and you can gradually move them up, so that the contact point is not always level with that of the bicycle’s rear wheel. That encourages the little rider to make frequent adjustments to balance things out, since they naturally want to be on an upright bike and they start to learn to rely on the bike’s momentum and the accompanying gyroscopic effect of the wheels to stay upright, instead of the false security of the training wheels.

That worked a little for us, but if you ask Annika how she learned to ride a bike, her standard answer is “Dad lied to me.”

I finally took off her training wheels and for about half an hour one morning I held on to the bike and ran alongside to reassure her that she wouldn’t fall down. “I got ya, I got ya, I got ya ….” Then, I stepped away. She rode off, made a turn and suddenly saw me standing at the side of our cul de sac.

She was shocked, but she kept on riding. She hasn’t stopped since. (Nor has she stopped giving me grief over the lie.)

A question of balance
In retrospect, I would do things a lot differently. I would have taken Portia’s advice to heart and never taken up training wheels. I would have also started both kids much earlier, probably around the time they started to walk.

I don’t use this column as a vehicle for product endorsements, but I do have to make a recommendation, which I unfortunately did not follow. Don’t opt for a tricycle and don’t get a bike with training wheels. Instead, start looking around for one of those cool little wooden “balance bikes” for the little guy to use in about 18 to 20 months.

These things don’t have pedals and are powered solely by the kid kicking his or her feet on the ground in a manner quite similar to the original Laufmaschine (“walking machine” in German), the world’s first real bicycle, purportedly invented by Baron Karl Drais Von Sauerbronn in 1817. (For those of you who still buy into the Leonardo da Vinci bicycle legend, it’s been shown to be a more contemporary fraud.) Like the Baron, a little one will naturally begin to lift his feet off the ground when the momentum is such that the thing will stay upright on its own.

I’ve seen these priced anywhere from $70 all the way up to $300 for the really fancy German-made versions. The design, though, is really simple and it would be a relatively easy project to take on if you have a wood shop at home.*

For one thing, if you end up building your own – and you do have time, John – it would make a pretty cool family heirloom.

Obviously, the number safety one rule is to get a decent helmet that fits properly. You may have to buy several over the years, but it’s a good investment. We made a habit of sharing and trading helmets with other families when our kids outgrew theirs.

There will be setbacks and there may be scuffed hands and knees, but kids are pretty tough and they are natural athletes. Have fun with it.

The daily commute
Once they are up and about and fully able to ride, then you get the real worry, namely when and where to let them ride on their own. I used to think the sleepy little college town where we live was a perfect place to let kids ride … until they were old enough to ride on their own. Then I suddenly saw the streets as a war zone, filled with inattentive and/or insane drivers in way-too-big cars and trucks and with no regard for anyone but themselves. I can only imagine how those who live in larger cities feel.

Mostly to allay my own fears, I made a point of riding with my kids when they rode to school. We, too, have a busy street between our house and their daily destination. It was easy for me, because I rode to law school every day and their school was on the way.

Eventually, though, you have to let them go off on their own. It’s a matter of trust and it instills confidence in the kids, but it’s admittedly nerve-wracking. One thing you might want to check in on is an organization devoted to that very question, the National Center for Safe Routes to School.

Odds are, though, you’ll never get over worrying when they’re off on their own. Nor should you.

Racing?
My opinion on kids’ racing – or participation in any sport – is pretty short: wait and see if they’re interested. As an old roadie, I would love to see my kids compete, but I have been reluctant to push too hard to get them into it. As you might imagine, my kids have access to an array of bikes. Indeed, at 17, Philip is now 6-foot-3, so he’s just an inch shorter than me. That means he has full access to all of my bikes. He does dabble in it, too, but his sport is cross-country ski racing. Annika? She’s a figure skater and a volleyball player. The bikes are there if they want them, though.

I like the approach Davis Phinney took with his kids. He offered them opportunities in all kinds of sports. I remember visiting his house many years ago and the back yard was pretty much a playground with all sorts of toys, games and equipment available for the kids. His young son seemed to be completely enamored with soccer at the time and we joked about how the offspring of two Olympic cycling stars may never become a bike racer. Davis seemed cool with it and said he would never pressure his kids into taking up his own sport.

“If they want to, though,” he said, “we’ll certainly give them all the help they want.”

I guess Taylor reached that decision in his own time, eh?

If you want to provide your son with the opportunity to try it out, you can always organize a kids’ event in conjunction with a local bike race. Being a tall guy, who loved time trials and road races, I was personally never a big fan of racing criteriums, but those relatively short and closed courses offer a terrific opportunity for kids of all ages to test their legs in a fairly safe environment.

Even little two- and three-year-olds scooting around on those little balance bikes can make for a great one- or two-lap event. Besides, they’re cute as hell then and the promoter may be more than willing to give you the chance to help set that up. (I’d sure prefer watching little kids on wooden bikes over a bunch of guys my age riding $10,000 carbon wonders and getting amped over finishing on the podium in the masters’ 50-55 category.)

Have fun, John and, once again, congratulations on the new arrival. You’re in for an exciting ride.
– Charles

 

* P.S. – My friend Andy Shen at NYVeloCity.com sent me a note this afternoon. He built his own balance bike and did a mighty fine job of it, too. Click on the link or the picture below to see the product of his labors.

The Explainer is now 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: Are we better off now than we were before?

Dear Explainer,
I am probably as sick of it as you are when it comes to doping, but given that you’ve been writing about nothing but for the last few weeks, I thought I might ask one more question on the subject.

A look back at the most recent big-time doping cases, especially what you’ve written about, pretty much involves old-time stuff: Ullrich, Armstrong and even Contador’s case was from two years ago.

What has me wondering, though, is after all of this noise, do you think the sport is any cleaner? I mean it was pretty open back in 1998 when the Festina scandal hit, but is it just hidden now? I’m betting there was a lot of money spent on the effort. Was it worth it?
— Steve

Dear Steve,
I really am sick of the subject, Steve. Indeed, I was reluctant to even answer this one, but I’ve been doing a bit of thinking about the same questions, both tied to the costs and benefits of an international effort, so I thought I’d throw this out as a last comment after writing about the Armstrong, Ullrich and Contador cases. Hopefully, this will be it for a while.

Is the sport of cycling any cleaner now than it was in 1998? You or others might accuse me of suffering from a chronic case of Pollyannaism, but I have to believe it is.

Of course, I have to admit that I was one of those who also said that the 1998 Festina scandal would do a lot to clean up the sport from that point forward. It was a question that the four passengers in our press car at the 1999 Tour — John Wilcockson, Rupert Guinness, David Walsh and I — debated for three solid weeks that year. If history is the judge, then my guess is that Mr. Walsh won that round.

At best, the changes have at least taken a lot more time than I would have every thought. What has changed is that the creation of the World Anti-Doping Agency has accomplished much of what it originally set out to do: namely, to provide a coordinated testing effort, equalization of penalties and an investment of resources into research, testing and enforcement. I think they’ve pulled that off, but the price tag has been pretty high.

Cleaner or just a narrowed opportunity to cheat?
When it comes to the question of whether cycling is cleaner now than it was 14 years ago, I have to maintain that it is significantly better. No, I do not believe that there has been some sort of moral epiphany in the sporting world in general or in cycling in particular. There have always been and will continue to be those whose egos, bank accounts or both push them toward trying to find an edge over the competition.

To see how far we’ve come, let’s look back to 1998 and before. First, though, let’s make a couple of observations about doping and cycling. One, because of its physical demands, cycling is the sporting world’s prime candidate for doping. Two, doping in sport really “came of age” with the development of drugs and methods designed to enhance the body’s ability to transport vital oxygen to muscle tissue. In other words, EPO and blood doping. Before that, amphetamines, steroids and other drugs were fairly crude and marginally effective ways to enhance performance. With an amped hematocrit level, though, you could make a real impact on performance, especially in a sport like cycling, where endurance and recovery over the course of a three-week grand tour count for a lot.

Now, it wasn’t until late 1996 that the UCI took even the most moderate steps to address the wide-spread use of EPO and blood manipulation methods, when it imposed a 50-percent limit on hematocrit levels. Before that, riders were said to be raising their levels to 60 and beyond. The 1996 limit basically provided everyone with a license to cheat within “reasonable” levels. It was another four years before the urine test for isoforms of recombinant erythropoietin was approved for use. Again, sophisticated users came up with a host of ways to beat the test.

To its credit, it was the UCI which really set a higher standard when it led the way to the development of the Biological Passport (see “The Explainer: The biological passport revisited”) The bottom line for me is that this sequence of developments has continued to shrink the benefits a cheater could derive. Back in the mid-1990s, a doped-to-the-gills rider could see a 10- to 15-percent performance benefit from taking EPO. These days, with even the most subtle manipulation triggering alarm bells, the benefits are considerably less. Weigh that against the potentially career-ending costs of being caught and the incentive to cheat is diminishing.

Keep in mind that the Court of Arbitration for Sport didn’t find an element of intent—or even negligence—on Contador’s part in the recent clenbuterol case. The guy was nabbed for 50-trillionths of a gram of clenbuterol per milliliter of urine. That is hardly the stuff of major performance-enhancement. The Court even dismissed some of the theories that many of us had at least considered, namely that his contamination was the result of a transfusion of blood stored from a time when he was using larger amounts of the drug. Without debating the merits of WADA’s strict liability approach to even the smallest levels of PEDs in an athlete’s system, no one can argue that Contador’s offense is the moral equivalent of his team director’s Tour win in 1996, when Bjarne Riis purportedly earned the nickname “Mr. 60 percent” for purely hematological reasons.

Another indicator of the sport’s gradual move away from enhanced performances is the gradual decline in those very performances. Case in point, the times of riders covering those famous 21 hairpin turns on Alpe d’Huez. The record – Marco Pantani’s 37:35 in 1997 – may stand for some time to come. Last year, the winner of stage 19 at the Tour, Pierre Rolland, took 41:47 to cover the same distance. Indeed, when he won the stage in 2006, Fränk Schleck became the first Alpe d’Huez winner since 1994 to cover the climb in more than 40 minutes.

Proof that doping is gone? No. But the trend is such that we may be seeing an improvement. Indeed, we may have crossed a critical psychological tipping point in recent years in that riders no longer feel like they have to dope just to compete. Yeah, yeah, I know, I do sound Pollyannaish, but I am—despite my often grumpy and cynical demeanor—actually something of an optimist.

At what cost?
This improvement—if there is one—has come with a significant price tag attached to it. The 2011 budget for the World Anti-Doping Agency alone was (drum roll, please) a whopping $28,396,856. Twenty-eight million bucks. That doesn’t include the respective budgets of the anti-doping agencies in individual countries, nor does it include the anti-doping budgets of individual governing bodies, like the UCI.

WADA’s budget has grown from around $18 million in 2002, when the bulk of its funding came from the Olympic movement and the governing bodies that make up the International Olympic Committee. These days, the load is shared about equally between IOC members and the governments that have signed on to the 2005 UNESCO International Convention against Doping in Sport.

Before the 2002 creation of WADA (the concept was approved at the 1999 World Conference on Doping in Sport in Lausanne, Switzerland), testing and anti-doping enforcement was made up of a patchwork of rules, testing and enforcement methods that differed from sport-to-sport and from country-to-country.

The biggest benefit of the coordinated effort and increased funding is that it’s probably getting to be just as profitable for a smart biochemist to devote his efforts to developing tests in an open and legal laboratory setting than it is to do the opposite in secret.

Again, call me optimistic, but I honestly think we’re making progress … and, yeah, despite the enormous cost involved, I think it’s money well spent.

Now, can we please get back to bike racing? Or maybe a discussion of a lawsuit or two?

Don’t hesitate to drop me a line if you have a comment, an observation, a complaint or—better yet—a question to be answered in next week’s column. You can write me directly at Charles@Pelkey.com.

Have a good week,
– Charles

The Explainer is now 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

Image: John Pierce, Photosport International

The Explainer: Thoughts on the Contador decision

Dear Readers,
It’s been a little more than a day since the International Court of Arbitration for Sport released its decision in the Contador case.

The big news is already out, mainly that Alberto Contador was found to be guilty of having violated Articles 21.1 and 21.2 of the UCI’s Anti-Doping Rules. That resulted in a two-year suspension, officially beginning on January 25, 2011 and, with credit applied for the time he served on provisional suspension, ending on August 5 of this year.

By finding that a violation occurred during the event, Contador was automatically stripped of his victory at the 2010 Tour de France. Furthermore, those results he acquired during the period now deemed to be part of his suspension would also be negated. Most notably, that means he is no longer the official winner of the 2011 Giro d’Italia.

Okay, all of that stuff we know, but a number of you raised questions about the decision, the defenses raised, the allegations made and the term of the suspension itself. Fortunately, the three-member CAS panel spelled out its reasoning quite carefully in a well-drafted opinion. I know that many of us don’t consider a 98-page legal document to be the height of recreational reading and it took me a while to sort through the thing myself. I was actually pretty impressed, though, by the work of the three attorneys on the panel, who may have taken a little more time than any of us would have liked, but did a thorough job in explaining their reasoning.

So, using the decision letter, the UCI’s Anti-Doping Rules and the WADA Code as guides, let’s tackle a few of the more common questions I’ve received over the last day or so. The questions that appear below may represent edited or merged questions I’ve received. Some have come from emails sent directly, via Twitter and Facebook and in the comments section below the original news story.

New math?
Is this some sort of “new math” CAS is using? It’s a two-year suspension and he spent all of last year racing. Still, he’s coming back in time for this year’s Vuelta. To me that looks like a six-month suspension.
— John

Dear John,
It might be good to start by asking why Contador got to ride in 2011. Look at the cases involving Floyd Landis and Tyler Hamilton for purposes of contrast. Contador managed to put in a full season last year. Conversely, Hamilton and Landis did not compete during the entire process, including the wait for the appeal.

The biggest difference, of course, is that both Landis and Hamilton lost their cases in the first round, when the case was originally heard by the American Arbitration Association. Contador, whose case was originally heard by a doping panel, assembled by the Real Federación Española de Ciclismo (RFEC), actually won his case … at least in that first round.

Once the RFEC issued a decision in his favor, Contador was free to ride. He had been cleared of the charges and in the event of an appeal, the original ruling stands until its reversed by CAS. That’s the same reason why Landis and Hamilton were not able to ride. They had been found in violation of the rules and those decisions would stand, unless reversed on appeal.

Contador did accept a provisional suspension and did not compete once he was notified of the positive result from the 2010 Tour on August 26. The RFEC issued a ruling in Contador’s favor on February 14, 2011, at which point he was again free to ride. He had, therefore, already served a suspension of five months and 19 days. The UCI Anti-Doping Rules specifically state that time served under a provisional suspension is to be credited against any future penalty relating to the violation at issue.

Interestingly, the CAS panel noted that on January 25 of 2011 (keep that date at the back of your mind) the RFEC actually floated a “plea agreement” past Contador, which would have resulted in the negation of his 2010 Tour results and a one-year suspension. On February 7, 2011, he turned down that offer and the RFEC panel ruled in his favor a week later.

It wasn’t until March 24 that the UCI announced its intention to appeal the RFEC ruling to CAS. WADA filed notice of its plan to appeal five days later.

In imposing its penalty, the CAS panel ruled that Contador’s suspension officially began on January 25, 2011, the day the RFEC floated its initial plea deal to Contador. A two-year suspension would carry through to January 25, 2013, but then the rules call for him to be credited with time served, so he is once again eligible to ride on August 5 of this year.

Contador’s attorneys did argue that it would be “unfair” to negate any results he achieved between the time of the RFEC ruling and the CAS decision, but the panel disagreed. Among the cases the attorneys cited was that of Alejandro Valverde, some of whose results earned prior to the full adjudication of his case were left intact.

It’s worth noting here that CAS issued its ruling in the Valverde case in May of 2010. It imposed a two-year suspension, back-dating it to January of 2010. By doing so, Valverde’s results earned between January and May were in fact erased from the record books. By that standard, the CAS panel said that it would be inappropriate to impose a sanction that begins in January of 2011 and then leave intact the results Contador earned after that date.

So, confusing as it might seem, the CAS panel did carefully work its way through the whole process and imposed what it found to be a fair penalty.

Why did this all take so long?
I’ve read in your column and others that there is no acceptable level of clenbuterol and that it’s a simple strict liability offense. It was there. Contador didn’t dispute the test result, but tried to explain it away. What was so complicated that made this thing take almost two years?
— Elaine

Dear Elaine,
True. It’s been 19 months since Alberto Contador tested positive for minute traces of Clenbuterol and it was only yesterday that CAS issued a final decision in the case. In Hamilton and Landis, the process took even longer.

The author of the adage that “the wheels of justice grind slowly,” could have had the whole WADA system in mind when he penned that one. Look at some of the most high-profile doping cases in cycling to get a feel for it if you have your doubts. Hamilton, Landis, Valverde, Ullrich … they all took years to resolve. Even if they had been successful in their appeals, their careers had effectively been on hold for a period almost as long as their original suspensions.

While the rules may appear to be simple, that isn’t always the case. I guess the best way to describe the problem is that in doping cases, sometimes strict liability isn’t actually so strict.

Generally speaking, a strict liability offense is one in which the prosecution need not prove the element of intent.

Since I just handled a case involving a defendant charged with possession of a controlled substance, let’s look at the law my client was alleged to have violated:

It is unlawful for any person within the city limits knowingly or intentionally to possess a controlled substance unless the substance was ….

Do you see that those two key words in there? “Knowingly” or “intentionally?” In order to convict my client, the prosecution would have to prove beyond a reasonable doubt that my client actually knew he had the controlled substance in his possession. (Admittedly, in most cases, that’s not a huge burden for the prosecution.)

Conversely, there is no intent element when it comes to speeding. If you get pulled over for going 40 in a school zone, the cop, the prosecutor and the courts don’t give a rat’s rear if you knew you were speeding or if you knew it was a school zone. You were operating the vehicle and the vehicle was going faster than the posted speed limit. Period. No ifs, ands, or buts. That is strict liability in its purest form.

Now, CAS has in the past offered a little wiggle room in these strict liability cases. In a sense, that wiggle room gives the athlete the opportunity to put forward an explanation that would show him to be a completely innocent victim of circumstance. It means that the athlete has the chance to raise an “affirmative defense.” That does, however, shift the burden of proof over to the defendant.

Take for example the case of table tennis player Dimitrij Ovtcharov. He played an event in China and, soon after, tested positive for clenbuterol. In his defense, he offered evidence that, although illegal, clenbuterol is still widely used in China and that he was very likely exposed through food he consumed on that trip. The German Table Tennis Federation ruled in his favor, the international governing body did not appeal and he was free to go.

While those really-good-explanation defenses might be considered, the CAS takes a really narrow view of them. There have been several cases in which riders have accidentally ingested banned substances by consuming contaminated food supplements.

For example, in USADA v. Moninger, USADA v. Neben and USADA v. Oliveira, athletes were able to show that they consumed contaminated supplements, but hearing and appeals panels still cited Article 21.1-(1)(1) of the UCI Anti-Doping Rules, which states:

It is each Rider’s personal duty to ensure that no Prohibited Substance enters his body. Riders are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their bodily Specimens. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Rider’s part be demonstrated in order to establish an antidoping violation under article 21.1.

In those cases, the explanation served only as a mitigating factor – information that prompted the court to reduce the penalty due to the absence of intent.

But Contador was going for full exoneration and was offering his own version of the Ovtcharov defense. To do that he had to present evidence to support the claim. In a heavily regulated market like that in Europe, providing that evidence might be harder than it would be were one to raise that same claim when referring to the unfettered market in that bastion of unregulated free-enterprise, known as “China.”

While the sample in question was provided on July 20, 2010, it wasn’t until November 8, that the UCI formally asked the RFEC to begin disciplinary proceedings. That actually moved pretty quickly and, as I mentioned before, the decision was released in February.

It then took another six weeks or so before the UCI and WADA decided whether to appeal the RFEC ruling. When they did appeal, they raised a number of peripheral issues, including the blood transfusion theory and the whole “plasticizer” question.

That added a whole new complexity to the case and there were a number of extensions and continuances granted as both sides sought to sort through some fairly complicated evidence. Then, as frustrated cycling fans know, the CAS panel took its own sweet time in issuing a decision. Again, the panel said, it was due to the complexity of the issues presented … even though they then disregarded the most complex charges and defense and came up with their own theory (see below).

It took time, but because of the complexity of some of the issues, it actually moved along reasonably well … at least in terms of how lawyers might view it. When you’re looking at it from an athlete’s perspective – and a finite window of opportunity to have a career—this process is painfully slow.

Was it the plastic?
What’s your take on the whole plasticizer question? I thought it was interesting and am wondering if that might have tipped the balance for CAS.
— Eric

I do not think the transfusion/plasticizer issue did anything but complicate and delay the process. A careful reading of the decision letter shows that the CAS panel actually spent a great deal of time considering the UCI/WADA allegation that the trace amounts of clenbuterol were the result of a transfusion.

They ruled that the evidence did not support the allegation that Contador had transfused the day before his July 21st blood sample was taken.

In the absence of a specific WADA rule or substantial peer-reviewed studies regarding what levels of plasticizers one might expect to see in a normal blood sample, the CAS panel wisely reviewed Contador’s biological passport data instead and found no evidence that he had transfused.

Interestingly, too, was the introduction of polygraph evidence that purportedly showed that Contador was not lying when he denied that claim.

In order to corroborate his assertion that he did not undergo a blood transfusion of any kind at the relevant time, the Athlete voluntarily underwent a polygraph examination on 3 May 2011. In doing so, Mr. Contador was asked and answered two series of question(s) ….

The results of the polygraph test were clear according to Dr. Louis Rovner, the specialist who administered the exam. His results were shared with an outside expert, who agreed with the conclusions and reported to the CAS panel that “After a complete review of all of the materials supplied, and both a semi-objective and objective assessment of the recorded physiological data, I concur with with Dr. Rovner’s findings that Alberto Contador was truthful when he responded to the relevant questions asked in each of his … examinations.”

The CAS panel reviewed the UCI/WADA allegations and pretty much lumped them in with Contador’s tainted beef defense, concluding that both claims lacked sufficient evidence to warrant consideration.

Oddly enough, the panel then went on to bring up the question of contaminated food supplements, despite the fact that neither Contador, the UCI nor WADA raise the issue.

In what has to be the weakest line of reasoning in the entire letter, the CAS panel posits its own contamination theory, even though a strict interpretation of the rules doesn’t require one. Then going even further out on a limb, the panel concludes that it was the most likely means by which Contador was exposed.

AC is stripped of titles. Does he have to give back the money? Since typically the money is distributed amongst the team, I like to picture AC going up to a masseur, to whom the TdF money represented a pretty significant bonus, and begging for the cash back.
— DStan58

Dear DStan58,
While tradition dictates that prize money is distributed among a grand tour winner’s teammates and support staff, the money is awarded to the rider himself.

The CAS ruling makes Contador responsible for returning those monies. It doesn’t matter if he spent that money in accordance with tradition or bought a Ferrari. He’s the one who has to pay it back. Perhaps his staff and teammates might feel a moral obligation to help him out, but they certainly have no legal obligation.
– Charles

The Explainer is now 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: No indictment

Dear Explainer,
Now that federal prosecutors have dropped the grand jury investigation of Lance Armstrong, what becomes of all the evidence? Will it/can it ever be made public? Certainly, there is some interesting stuff in there, even if it didn’t support prosecutors’ calculations for a trial.

Stay well,
— Doug

Dear Doug,
I have to admit that it was an interesting – and somewhat unexpected – news item that popped up my screen yesterday.

The office of André Birotte, the U.S. Attorney for the Central District of California, issued a terse statement noting that he had “determined that a public announcement concerning the closing of the investigation was warranted by numerous reports about the investigation in media outlets around the world.”

Beyond that, Birotte’s office remained tight-lipped. A nearly two-year grand jury investigation is over and it appears that we’ll be hearing very little of what was found over the course of that effort.

Normally, the work of a grand jury is shrouded in secrecy, but Birotte was correct in noting that there had been considerable coverage of the case and it was only fair to announce that it had not resulted in a criminal prosecution. Still, it raises questions.

I have to admit that I was more than a little surprised by this one. I honestly expected at least something to come of a nearly two-year investigation. That said, I wasn’t privy to what was going on in the grand jury and the subject of the investigation had his own take on my speculative essays from the past (see photo at right).

Sources close to the investigation say that the decision came as a surprise to many of them, too. The case was being handled by Assistant U.S. Attorneys Doug Miller and Mark Williams, with the help of FDA Criminal Division investigator Jeff Novitzky. The U.S. Attorney’s office did not indicate who decided to end the investigation, whether it was based on a lack of evidence, whether there were strategic problems with pursuing an indictment or whether pressure came to bear from outside the Central District. Indeed, the Assistant U.S. Attorneys, Novitzky and other investigators were informed of the decision only about 30 minutes before the press release was issued. Somehow, I think we’re going to hear a bit more about what went into this decision. I remain curious.

That big hurdle
While many have hailed the end of the investigation as a sign that Armstrong has been “cleared” of doping allegations, it may have just come down to other issues. Again, while the grand jury’s work was secret, there were indications that much of the investigation was focused on allegations of financial crimes, starting with the U.S. Postal Service’s sponsorship of Armstrong’s first Tour de France-winning team.

News reports from a year ago also indicated that U.S. investigators were making considerable progress as they worked with their counterparts in France and Italy to examine a complex web of financial transactions involving physician Michele Ferrari and a number of high-profile cyclists.

Right off the bat, though, pursuit of any charges stemming from those transactions would run up against both jurisdictional problems and questions of whether prosecutors could get past the federal statute of limitations.

Much of what was being investigated involved acts that occurred as many as 13 years ago. Any crime involving the fraudulent use of federal funds derived from the Postal sponsorship, for example, would have occurred prior to the 2004 expiration of that sponsorship. Meanwhile, federal law (18 U.S.C. Section 3282) pretty much limits prosecutions for most crimes to a five-year period prior to the issuance of an indictment.

One approach that might have gotten past that hurdle was for prosecutors to rely on the Racketeer Influenced and Corrupt Organizations Act (RICO), (18, U.S.C. Sections 1961-1968), the statute designed to give prosecutors more options in pursuit of a larger criminal conspiracy. When it was passed in 1970, it was intended to be used in “Mafia” prosecutions, but it’s since been used in cases involving a wide variety of financial crimes.

Under RICO the statute of limitations might — under a very narrow set of circumstances — be extended to 10 years. But somewhere along the way, someone determined that there wasn’t a winnable case.

As you might imagine, a team of lawyers, federal investigators and a grand jury would generate a ton of paper over the course of a two-year investigation. And as you said, Doug, it’s likely that “there is some interesting stuff in there.” I am the first to admit that I would give my right … errr … uhhh … arm to spend a few weeks sorting through that mountain of paper. It ain’t gonna happen, folks.

The Federal Rules of Criminal Procedure govern the work of federal grand juries. Rule 6 outlines a very narrow set of circumstances under which the results of a grand jury investigation might be shared. The only way that it would be shared with the public is if there had been an indictment. Then the charging document would have outlined the basis for a charge.

Now, the work of the grand jury will be available only to other federal authorities in the course of their work. There is no indication that there are other federal investigations under way. As far as we know, that side of the case is pretty much over and Mr. Armstrong has most certainly breathed a sigh of relief — if for no other reason than that he has now been spared the stress and expense of defending himself against a serious criminal charge.

What about the dope?
Okay, so despite the shroud of secrecy, there have been media reports about some of the testimony presented in this case. If you scan the aforementioned Rule 6, you will notice that the rules limit the obligation of secrecy to those directly involved in the grand jury or the investigation.

What that means is that witnesses, for example, are free to talk about their testimony. The most obvious examples have been the public interviews offered by Floyd Landis and Tyler Hamilton after they offered testimony alleging doping on U.S. Postal. Hamilton even made an appearance on CBS’ “60 Minutes” program to discuss his testimony.

Others have testified and some elements of that testimony have been leaked to the public. In this case, “the public” is composed of all of us: reporters, cycling fans, the curious … and the U.S. Anti-Doping Agency.

Indeed, USADA’s chief executive officer, Travis Tygart, issued his own statement on Friday, noting: “Unlike the U.S. Attorney, USADA’s job is to protect clean sport rather than enforce specific criminal laws. Our investigation into doping in the sport of cycling is continuing and we look forward to obtaining the information developed during the federal investigation.”

As I mentioned, the Federal Rules of Criminal Procedure do provide for exceptions to the secrecy provisions. The rules under 6(e)(3) outline the circumstances in which the work of a grand jury may be disclosed to certain other entities. Mostly, those are to other federal attorneys, but it can be shared with state and foreign courts under limited circumstances.

Tygart’s comment would almost seem to suggest that he believes that a USADA investigation may fall under the provisions of Rule 6 and might allow some of the evidence acquired by the grand jury to be shared with his agency. We’ll see. I would expect to see a fight on that one. A strict interpretation of the the rules pretty much limit access to:

(i) an attorney for the government for use in performing that attorney’s duty;

(ii) any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law;

I can’t imagine, though, that Tygart and USADA would try to make a claim that it does qualify as a “state actor” since that would open up a whole other can of worms when it comes to future doping cases. There are, however, obligations under the UNESCO International Convention against Doping in Sport, the 2005 treaty to which the U.S. is a signator. The treaty encourages officials to share relevant evidence with anti-doping authorities. Furthermore there is considerable evidence in this case that had not yet been presented to the grand jury. Some of that could be shared as part of the government’s duty under the treaty or under any cooperative agreements various agencies have with USADA.

If it appears that investigators are prepared to share some of that information, though, we can expect a fight to erupt as attorneys representing Armstrong and others seek to prevent any evidence from the case from being handed over to USADA.

You might also keep in mind, however, that Tygart may already have a fair share of evidence acquired outside of the grand jury process. There were early indications that Tygart was involved in working with Novitzky in this case. Last year, Associated Press reporters spotted Novitzky in France on a trip that involved a visit to Interpol headquarters in Lyon. Tygart was also there. One must assume that the USADA CEO has seen at least some of the evidence in this case.

Would the SOL mean USADA’s SOL?
But again, any USADA investigation of Armstrong would involve allegations against a now-retired rider. Armstrong’s last Tour win came in 2005. Most of the allegations raised in the grand jury investigation — at least those disclosed to the public — go back even further than that.

Under the World Anti-Doping Agency Code, a national anti-doping agency has eight years in which to bring a case against an alleged violator. So that would involve the 2005 win … and maybe 2004. But there are five others that would remain unaffected, right?

But wait …
Interestingly enough, USADA only recently won a case that imposes sanctions for violations that occurred well beyond that eight-year-window.

In a decision issued just last week by the American Arbitration Association, former Olympic marathoner Eddy Hellebuyck was sanctioned for violations that occurred more than 10 years ago.

It is an interesting decision and one based largely on the fact that the AAA panel determined that Hellebuyck had not testified truthfully at an earlier hearing. Of course, making that determination was simplified by Hellebuyck’s public admission that he had been using EPO as far back as 2001. That stood in contrast with testimony he had offered in a hearing in December 2004 after testing positive for EPO earlier that year.

In its 2012 decision, the AAA ruled that the athlete’s active efforts to cover up past use – specifically in this case his perjured testimony at his first hearing – meant that the statute of limitations didn’t apply. The panel acknowledged that it was venturing into new territory, and, if Hellebuyck cares to appeal, it will certainly be subject to review by the Court of Arbitration for Sport (CAS).

Either way, based on the decision in Hellebuyck, we may see Tygart and USADA go full bore into an investigation of Armstrong and others. If that’s the case, USADA and WADA have their own rules regarding disclosure of an ongoing investigation. Again, it wouldn’t be until a case is actually filed before you might see some of the evidence presented in that matter.

The bummer about WADA rules is that whatever “trial” takes place would be behind closed doors. Of course the respondent has the option of requesting a public hearing, but you saw how well that went last time a big-named athlete went that route.

In other words, it could be some time before any of us see any evidence in this case … if ever. I know a lot of you are tired of the whole thing and the past-is-past argument is gaining traction in some circles.

Me? I’m just interested in watching how all of this unfolds. I’m not betting on the outcome, but I remain intrigued. I guess it’s like watching a train wreck. It’s hard to turn your head once you see what’s going on in front of you.
– Charles

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

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