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

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

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

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

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

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

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

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

A significant show of support

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

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

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

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

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

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

Of being fools, etc.

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

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

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

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

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

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

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

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

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

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

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

Did not hesitate to publish

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

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

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

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

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

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

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

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

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

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

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

What are they looking for?

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

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

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

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

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

Mounting a defense

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

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

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

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

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

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

Suspension of Disbelief

Early in the 19th Century the poet Samuel Taylor Coleridge—famed for his poem Kubla Khan and laudanum—coined the term “suspension of disbelief.” It was his way of codifying the belief that a fantastic story if “infused with human interest and a semblance of truth” could be made believable. It’s what we did to our parents in high school when we lied about our whereabouts. We used the names of friends and familiar locations, places that we frequented in an effort to throw them off the scent. For me, it worked until some time in my senior year.

If my opening paragraph isn’t sufficiently obscure, give me a second. I’m now going to pull in T.S. Eliot, who coined the term “objective correlative” early in the last century. It is an image that explicitly defines something that can otherwise be difficult to describe. To that end, I submit the image above from the film “Blade Runner.” Whether you like science fiction or not, the work has widely been hailed as the finest sci-fi film ever committed to celluloid. And for reasons that may never be fully plumbed, it achieves that element crucial to all science fiction: suspension of disbelief. We don’t question that there are androids, that it never seems to stop raining or that the 21st Century’s version of the car flies, as shown above.

Let’s consider the alternative. Above is a still from the Disney film “John Carter,” arguably one of the biggest flops of this year. Post-mortems on the film have decried the wooden acting, the Swiss-cheese script and the hyperbolic special effects. I can’t say what killed the film, but I know what killed it for me. I had been excited to see the Edgar Rice Burroughs masterpiece made into a film, but was dismayed the moment I saw the first trailer and it was precisely because of John Carter’s ginormous jump contained with said trailer. I recall commenting to my wife, “Okay, I’m out.”

It was that whole suspension of disbelief thing. “John Carter” takes place on Mars and has loads of jumping in it; it’s a thing, as they say, and over there (Mars, that is) to jump is to sak. The problem is that seconds into the trailer comes this jump that looks like Evel Knievel sans motorcycle and, well, it just looks silly. So I didn’t go see it. (As a complete aside, there’s a pretty fascinating discussion of bigger-than-life jumping in the movies in a piece published on Slate, though I think it gets the conclusion exactly wrong, in part because of the dismal box-office take of “John Carter.”)

Suspension of disbelief is crucial not just to science fiction, it’s crucial to all story telling. Imagine if you didn’t think that women really talk to each other and hang out as portrayed in “Sex and the City.” Apparently lots of people believe there are women exactly like them—and why shouldn’t they?

So when Philippe Gilbert stormed to victory at the World Championship Road Race on Sunday, if you’re anything like me you felt relief, the relief of seeing a longstanding omission—the absence of Philippe Gilbert from the podium—finally corrected, and along with it you felt elation, that Dopamine spark of joy at seeing a rider you like spank the field. Gilbert is a rider whose style I like and—more importantly—whose riding I’ve been hoping is clean. But that’s a problem; for suspension of disbelief to work you have to be all-in. The moment you even ask the question about whether or not what you’re seeing or reading is real, the illusion has been busted—metaphorically and literally.

I actively want to believe that a clean rider beat a field that was partially or maybe even mostly clean. Actually, it doesn’t matter just how clean the rest of the field is, so long as Gilbert was clean. That’s the key. In winning, cycling is as clean as the winner.

Which is why I hated the Olympic Road Race outcome with a passion that I (otherwise) reserve for child molesters. Alexander Vinokourov is part of that generation of riders, guys whose knowledge of the sport is so predicated on medical assistance that I suspect they have ceased to believe they can achieve anything remotely like their doped form through clean methods. It’s a kind of worst-case-scenario for institutional memory, dysfunction that persists simply because all other ways have been forgotten. Clearly, Vinokourov’s statements following his suspension and his refusal to talk about his “dark page” and his inability to understand what this issue was when he decried that he had only engaged in the training methods used by everyone else have shown him to be a rider that cycling can do without. Seeing him win the gold medal was a moment that didn’t fill me with the slightest bit of elation. The question I asked myself was, “What are the chances that he’s clean?”

That, ladies and gentlemen, is the big problem. But here’s the thing: It’s not Vino’s fault. And that I’m asking questions about guys like Gilbert and Bradley Wiggins isn’t their fault, either. The problem lies with the UCI. I have observed in other pieces that the UCI has long been a status-quo organization. Until recently, they really only ever made efforts to change the sport after colossal embarrassments. And defining those embarrassments is easy; they are any time the sport makes international headlines for a reason not connected with a win. Tom Simpson dies during the Tour de France. International headlines. Bad for business, need drug tests. A few Dutch cyclists die in their sleep because of a little-known drug that turned their blood to pudding. Not even national news? Whew; stay the course. Olympic gold medalist Fabio Casartelli dies after hitting his head in a crash. International headlines complete with color footage. Bad for business; need helmet rule. A soigneur with enough doping products to start a pharmacy is stopped at the border. More international headlines. And now, the biggest name in cycling in the last 30 years has been shown to be playing the game, well, the way it’s played.

Bad for business? Yeah, ya think?

Whether or not the allegations that the UCI covered up positives by Armstrong are true, it doesn’t matter. There is plenty of damning evidence that they only ever acted enough to maintain the appearance of a clean sport. Had they truly been serious about cleaning up the sport they would have gotten serious about testing for EPO in the wake of the death of Bert Oosterbosch, the first of those Dutch cyclists to die in their sleep. They wouldn’t have waited years and years to come up with the half-assed solution of testing hematocrit levels. No, had they been serious, they would have begun investigating a test for EPO before Greg LeMond retired.

But let’s take a moment to consider the situation the UCI was in. Hein Verbruggen had inherited the mantle of a sport that had been doped since the first running of Liege-Bastogne-Liege. Up until the 1990s, an approach of making the sport clean enough that no one was dying had more or less worked. If there is one sin for which we should forgive him, it is that he believed he should stay the course, that staying the course was the best approach. What he didn’t anticipate was American society. What he didn’t anticipate was a world where you’re either a saint or a sinner, but never both. What he didn’t anticipate was the perfect storm of Lance Armstrong, Macchiavellian doping and ambitious American investigators.

Verbruggen’s sin, and now by extension Pat McQuaid’s, is that he claims that the sport is clean, the UCI did all it could, all it needed to, that no more could have been done than was. Which is just crazy talk. The first lesson you learn as a bike racer is that just because you won a bike race you should never, ever think that means you are the fastest guy on a bike.

And so I submit to you the de facto evidence that the UCI has not done enough: Every time someone wins a big bike race our response is not to celebrate; rather it is to wonder, to ask the question, “Was that athlete clean?” Why was Bradley Wiggins asked about his training methods at the Tour de France? Simple, because he was wearing the yellow jersey.

We have lost the suspension of disbelief. And given how hard most of us want to believe, how much we love the sport, the heartache is more than some of us can bear.

Mr. McQuaid, Mr. Verbruggen, you haven’t done enough. Not by a long shot, and if you think that suing Paul Kimmage is the answer, then you, sirs, are unfit for your respective offices.

You’re not kings and shooting the messenger is no longer a viable option. The peasantry has risen up and we will defend him.

We’ve asked you for a clean sport. You can’t seem to manage the task. And now the talk is of starting a new federation, one that understands the stakes of the game, the will of the fans. Stay tuned.

 

Images: Warner Bros. Pictures, Disney Pictures, Fotoreporter Sirotti

The Explainer: Why SLAPPing Paul Kimmage won’t work

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Has it worked? No, not really.

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

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

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

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

So why Switzerland?

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

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

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

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

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

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

Jurisdiction?

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

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

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

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

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

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

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

Choosing the right defendant … or picking on the little guy

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

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

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

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

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

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

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

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

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

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

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

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

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

Give it some thought.

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

Forgoing Judgement

Could it ever have been any other way, with the fall of Armstrong? It seems cycling has been on a collision course with this moment for the better part of its history. From riders dosing up with brandy in the early days, to the scourge of amphetamines, to modern day blood doping, top level racers have always pushed beyond the rules in search of an advantage.

And now we have, arguably the greatest grand tour rider of all-time stripped of his titles and banned from the sport. Looking back at the great champions of the past, each of them with their own sordid side story, can we say this outcome was inevitable?

Perhaps we can forgive the modern day rider for believing that dope is simply a part of the sport. Almost everyone is willing to acknowledge that Lance Armstrong, if guilty as charged, was only doing what everyone else was doing, was only following in a long line of champions before him who had employed the dark arts to stunning effect.

How is it that, after decades of sabre rattling and bluster, an authority finally stepped to the fore to apply the rules, for better and for worse? It should be lost on no one that the UCI was not the authority in question. Perhaps this also was inevitable.

We can ask if where we are now is better or worse than where we have been. We can take issue with Lance, Johan and their cohort of co-defendants. We can impugn the motives and methods of Travis Tygart and USADA, but all of this seems to me to be beside the point.

What has happened has happened. Cycling is a sport that has been rife with dope and cheating. It has been poorly governed. We have tried to find the middle way, managing outcomes, either by the authorities turning a blind eye or by prosecuting infractions. We have tried small penalties, medium penalties and lifetime bans. We have tried selective enforcement.

Cheaters evolve. Tests develop. The rules struggle to contain them both.

Fans are upset when the rules aren’t enforced, and we are upset when the rules are enforced in ways we don’t like or don’t think will be helpful, because we hate to see the sport we love self-immolate.

But if we believe in our rules, if we really think they will produce better cycling, then don’t we have to accept their enforcement, no matter the short or even medium term consequences? It seems, when you subscribe to a plan for the sport, you have to hold firm, even if the result isn’t exactly as you would have wished it.

To be sure, the calculus will be difficult for everyone involved. Some will be able to both accept the penalties levied against Lance and his co-defendants, and still remember his (their) victories fondly. We can know what happened, at least partially, without retroactively revising our enjoyment of that era.

Emerson said, “A foolish consistency is the hobgoblin of little minds.” The world does not arrange itself in neat packages. Human behavior and emotion are not digital, black/white or right/wrong. We are gray creatures. We are, of necessity, ambivalent, and we should allow ourselves the latitude of inconsistency. Neither, should we fear foolishness. This is only sport, after all.

You can say that, once a rider decides to break the rules, he knows what the consequences of his actions might be. There are sanctions printed in ink in by-laws and on contracts. But this is a short-sighted reading of the decision for there are myriad consequences beyond our knowing.

I would venture that when you first decide willfully to take the wrong path, you very quickly lose control of the narrative. In your mind, there is winning. There is glory. If you are unlucky, you sit out a suspension.

In reality, you are unable to begin to parse the threads of consequence that spin themselves in every direction. Did Lance and his team imagine Travis Tygart and the role he would play? Did they imagine the myriad judgements they were letting themselves in for? Did they imagine court cases and Pat McQuaids and Hein Verbruggens? Did they think of Greg LeMond or Le Monde or l’Equipe? Do you ever race the Tour de France wondering if a plea deal will torpedo your legacy?

All the PR and litigation money can buy will shift a narrative, but clearly, in this case, couldn’t alter the eventual outcome, and that’s true for Lance and for the UCI and for USADA. The chips always fall where they may. They’re funny like that.

Now, we are in the hand-wringing phase of this particular (cycling) life event. And just as the prime players could not have known that they would arrive here, we also can’t know how what has happened over the last week, or over the last decade, will play out in years to come. Is this a death-knell for our sport? Or a birth announcement?

The answer is quite possibly: YES.

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