The Catalyst

Journalist Paul Kimmage has filed a criminal complaint against the UCI for defamation, slander and fraud.

That’s worth repeating: Paul Kimmage is suing the UCI.

This would be where Wayne and Garth are supposed to say, “Yeah, and monkeys might fly out of my butt.”

Lo, see the winged orangutans!

Even though UCI President Pat McQuaid and his predecessor Hein Verbruggen have always been as fast and easy with insults as the Real Housewives of Orange County are, as recently as a year ago, a defamation suit would have seemed impossible, like unicorn impossible. Of course, Kimmage isn’t suing the UCI because they hurt his feelings. The papers filed on his behalf by Swiss attorney Cédric Aguet cite both slander and defamation, but that’s not what makes the suit earth-shaking. It goes on to include a criminal complaint that there are “strong suspicions of fraud.”

Yes, fraud.

It’s the fraud charge that causes Kimmage’s suit to step beyond what might be merely a civil case and into something with serious teeth. Criminal. Capital C. Jail time. Should the prosecutor the case has been referred to pick it up one can expect a bunch of subpoenas.

If there’s one thing we’ve learned through this process it’s that we aren’t willing to believe the truth until someone gives sworn testimony. Richard Virenque was clean until he was confronted by a prosecutor in court. We’d never have learned Tyler Hamilton’s full story without a subpoena. The eyewitnesses who were Lance Armstrong’s undoing? Betsy Andreu, Emma O’Reilly, Tyler Hamilton—their stories were mostly ignored until they became sworn testimony attached to the USADA investigation, which, it’s worth noting, was the second time around for Betsy Andreu. Sure Stephanie McIlvain lied on the stand, but she’s maybe the best demonstration of just how important the moral courage of people like Andreu, O’Reilly and yes, even Hamilton were to the process.

It’s why Kimmage suing the UCI for fraud is the best shot we have of finding witnesses who can tell just what happened in Aigle. But we’re going to need more, better, witnesses than the likes of Julian Devries. You may recall that Devries told Kathy LeMond that Nike paid Verbruggen—not the UCI—$500,000 back in 2001 to make Armstrong’s 1999 positive for corticosteroids go Jimmy Hoffa. While I believe LeMond, this case needs a witness closer to the action than Devries.

When Floyd Landis first started spouting off about the corruption within the UCI his charges were long on vitriol and short on specifics. Sure, he was making charges, but he wasn’t doing a lot to tell us how he knew what he knew and what facts he’d seen to support his assertions. After all, the difference between saying “the UCI is corrupt” and “I saw a check for $500,000 drawn on Nike’s checking account and made out to Hein Verbruggen” is the difference between saying “guns can kill” and watching someone shoot your mother.

As important as the testimony from each of the eyewitnesses has been, we would not be in this position without a couple of crucial acts by Mr. Armstrong. There’s a strong causal link between Armstrong’s refusal to give Landis as spot on the RadioShack team and his downfall. That simple act of charity, something alleged to have been suggested to Armstrong by a few different people, would have reinvigorated Landis’ career and life. Could Armstrong have found room in his heart to mend a fence with Landis, there would never have been that legendary tete-a-tete with USADA. And had Landis never met with Jeff Novitzky and Travis Tygart, Tyler Hamilton would never have been deposed. Hamilton was as crucial a witness as USADA ever found. It’s safe to say that if Armstrong hadn’t dropped a dime on him (this is a charge alleged by Landis that I believe to be true), Hamilton’s career would have run its course, with him winning some more big races before sailing off into retirement with us none the wiser.

A portion of Armstrong’s downfall must be attributed to his Machiavellian ruthlessness. Ironic, eh?

In interviews with the media, many witnesses in the USADA investigation made a similar, if crucial, statement: They didn’t want to be talking to investigators, they didn’t want to be on the stand. Some of the riders snared in the investigation have been slagged doing what seemed obvious: telling the truth. Despite what some think, the testimony they gave wasn’t obvious or easy, and while some cycling fans still wonder just how much of what they told was the truth, there are a few details worth noting. First, the riders did have options. They could easily have lied. McIlvain certainly did, despite contradictory eyewitness testimony. Second, they could have remained silent per the Fifth Amendment. While we don’t know for sure, it seems likely that George Hincapie, Levi Leipheimer, Christian Vande Velde and the others were given immunity in exchange for their testimony. Any indication that they had lied to investigators would have nullified the agreement and opened them up to prosecution. Given the sheer number of witnesses, lying to investigators would have been a pretty significant risk, for a rider who lied would be facing charges for both doping and perjury.

A recent piece published by The New York Times pointed to Kayle Leogrande as the catalyst that set the investigation in motion that led to Armstrong’s downfall. The Times rarely ever gets the story wrong, but this is one of those occasions when they did. In calling him “pivotal” to the investigation, Ian Lovett missed the event that deserves remembering.

Lance Armstrong would still be (as he’s been called, occasionally ironically) “the cancer Jesus,” were it not for the efforts of Suzanne Sonye. Sonye is a former professional rider for the Saturn team who worked as a soigneur for Michael Ball’s Rock Racing squad. It was Sonye Leogrande confided in when he feared he was going to test positive following a urine test. Sonye then did the unheard-of: She reported Leogrande’s doping of her own volition.

In a recent phone interview Sonye said, “When he told me [that he might test positive] it was number one, ‘Oh my God! He’s dirty!’ and number two, ‘He can’t race.’ I knew he was going to race the national championships and this was something that was definitely going to affect his performance.

“I couldn’t live with myself if I let this go. It made me sick to my stomach. It was wrong on so many levels I couldn’t let it go.”

Sonye reported him to team management, including Ball.

“When I realized Michael Ball wasn’t going to do anything, I knew I needed to call USADA. I had to call USADA twice. The first time they didn’t respond. The second time I said I had first-hand information about a doping violation. I thought Michael Ball would do the right thing; so did Frankie [Andreu, then the team director], but he didn’t. To his credit, Travis Tygart called me back right away.

“At first I couldn’t decide if I would do it anonymously … it was hard to do because I liked Kayle, but I couldn’t not do it.

What makes Sonye unique among everyone in the Armstrong debacle is that she took action for no other reason than it was the right thing to do. She wasn’t compelled by a subpoena or enticed by an outside entity (such as a newspaper or magazine). She had nothing to gain; self-interest was a motivation that would have steered her away from reporting Leogrande.

For Sonye, the choice was as simple as it was unavoidable.

“I was on the number-one cycling team in the world and I didn’t choose to put a needle in my arm.”

Leogrande would go on to sue Sonye for defamation, and while he lost the suit (and wound up having to pay her legal bills because the lawsuit was deemed a SLAPP), the stress it put her through upended her life.

“I’d been on antidepressants and they were awful for me. I had a nervous breakdown. I went to the hospital for five days. My doctor took me off everything, then I was switched to a really low dose of a mood stabilizer for four or five months. When I came out, I was beaten. I thought, ‘I can’t beat this.’ Eventually I realized, ‘Fuck that, this guy is going down.’ It took two years.

“The mental stress I went through I can never get back. The drain on me, what it took from my life, was enormous.”

The debt cycling owes Sonye for being honest, for acting on her conscience, can never be repaid; there’s no way to make that suffering go away. The least we can do is recognize her for being the person without which Lance Armstrong would be competing as a professional triathlete.

 

Image: Danny Munson, Cycling Illustrated

The Gods, the Bad, the WTF?

All things considered, this has to be the strangest  two weeks of my cycling life. A bit over a week ago I had the worst crash I’ve ever suffered on the bike. To give you some idea how radical my impact was, the only image I can conjure to describe the experience is the Looney Tunes short in which the ACME catapult slams Wile E. Coyote into the dirt. My experience would have been just as comical had it not been, you know, me.

It takes a most unusual calculus to figure that 47 stitches is in any way a blessing, but it’s been 13 or 14 years since I was last on the deck courtesy of a road bike. Pardon me, but I kinda feel like my number was up. Not crashing for more than 10 years is its own kind of fortune. Similarly, the fact that I didn’t manage to break my jaw or any teeth, or bite through my tongue is luck on a scale that could make me as superstitious as the entire European peloton. Where’s my rabbit’s foot? Screw that, somebody get me the whole damn bunny, STAT!

But my crash came the day the USADA “Reasoned Decision” on Lance Armstrong was issued and trying to read pieces of that on my iPhone in the ER through the lens of a morphine drip was as comically black as Slim Pickens riding the nuke in “Dr. Strangelove,” just minus the glee. Again, you’ll have to pardon me, but this would be where I think the gods gave me a taste of cosmic irony.

Oh yeah bud? Mid-morning ride? You think you can afford that time away, do you? How ’bout this? WHAP!

Tess of the d’Urbervilles didn’t know how good she had it.

The hand-wringing over the derailment of the Blue Train has been enough to break fingers. The anger burning in cycling fans has hovered like a swarm of Africanized bees, swirling around, looking for its most suitable victim. Here are a few stings for the riders, a few more for the media, a couple for the sponsors who turned a blind eye to the obvious, a dozen more for the UCI. The rest can go to everyone who ever drew a paycheck from Tailwind Management. But wait, let’s save a couple for Chechu Rubiera for being more tone deaf than a whale oil lamp. Speaking to El Diario de Mallorca (link is to the Cyclingnews piece), the newspaper of record of Mallorca (yeah, Chechu, to defend your former team captain make sure to talk to the smallest newspaper possible, preferably one on an island), he said he never saw Armstrong dope. Okay, fine, maybe he didn’t—but that doesn’t do much to rebut the testimony of those who did. Weirder still, he called Michele Ferrari the best coach there is.

Well, I suppose in a way, we can all agree on that.

It’s a shame he doesn’t grasp that his defense did nothing to help Armstrong but did a marvelous job of making him (Rubiera) look like a tinfoil hat.

But that hardly counts as news compared to the fact that the UCI has attempted to distance itself from its once favorite son, Armstrong. It announced that, yes, it will ratify the USADA reasoned decision, thus stripping him of his seven Tour wins, plus every other result he gained since August 1, 1998. This is either but one important step to cleaning up the sport, or it is the sound of the other shoe dropping—in other words, the end of the progress surrounding this case. Previous episodes, such as the Festina scandal, would suggest this is as far as this episode will drive, but other events suggest this car hasn’t hit its tree just yet.

I just didn’t have the same yee-ha feeling.

The flight of sponsors from Armstrong in just two days was to watch the inverse of the Titanic. Rather than people jumping off a ship, this was nearly a dozen ships jumping off a person. How many dollars left the bike industry that day? Think of what you could have funded with that! (I mean, aside from the world’s best doping program.) And the LA Times has weighed in now with an editorial—rather than the skewed perspective of Michael Hiltzik (and while he makes some good points, he can’t change the obvious)—that calls for Armstrong to cut all ties to his eponymous foundation, which is a severing of ties so monumental it’s a bit like suggesting all the disgraced banks abandon their office buildings on Wall St. One is synonymous with the other. Gads, he could be forced to fly coach after this.

Finally, we finally have for all to see a true one-to-one correlation between doping and sponsor departure. For years to come Google searches of “Lance Armstrong” and “sponsor” will turn up item upon item about the sponsor diaspora from the one-time marketing goldmine that was Big Tex. If anything will ever demonstrate to cycling just how seriously sponsors dislike doping, no moment is more teachable.

It’s been curious to sit back and watch the incredible flood of negative stories that are now surfacing about Armstrong. The way these stories—take this one for instance—were kept under wraps for so long and yet now are bubbling out like an over-soaped load of laundry is as wondrous as the comeback was itself. Who knew?

It’s into this maelstrom of seething, mama-grizzly rage that Skins chairman Jaimie Fuller issued his open letter to UCI president Pat McQuaid. Incredibly, going to the compression wear maker’s home page brings up Fuller’s introduction to the letter, complete with his picture, which is a fine way to really personalize the message; honestly, it’s a better touch than a signature. It’s a genius move—seriously—someone should have done before now.

Of course the week’s events can’t be as cut-and-dried as that. No, they have to be salted. Rabobank, cycling’s single most loyal sponsor, announced they are ending their sponsorship of their team following a 17-year run.  Their official statement cited the USADA investigation into Armstrong and US Postal as their reason for pulling out of the sport, but of course, nothing is ever as simple as it looks. Rather than damn the athlete and his team, Rabobank official aimed a scathing attack at the UCI, writing, “The report shows that the international cycling world is flawed. Doping is supported even within the highest institutions of the cycling world.”

The UCI’s response was so off the mark that crews are working to pull its fuselage out of Lake Geneva. Rather than accept the criticism that most of the cycling world believes the organization to be corrupt they “accepted” that the sponsor was pulling out due to the organization opening disciplinary proceedings against one of its sponsored riders, Carlos Barredo, going as far as to cite, “a more recent action taken by the UCI against a rider of the team, the UCI understands the context which has led to this decision being reached.”

The UCI is the idiot husband whose wife announces she is leaving because he won’t stop cheating, to which he replies, ‘Oh, so you’re upset that I told you your haircut is ugly?’

Previously, I thought if there’s perhaps one constituency that McQuaid might respect and listen to it’s the heads of sponsoring companies. Because the UCI has yet to listen to the riders, the team directors or the fans, it was either natural or naive to think maybe they’ll listen to sponsors. Now we know. Fuller’s grenade over the transom is a great move, a parental, “Get your room cleaned up or there will be no more allowance.” But based on their response to Rabobank I think what the UCI really needs is that ACME catapult, something to knock some sense into them.

 

Tyler Hamilton’s “The Secret Race”

When Paul Kimmage’s book “Rough Ride” came out in 1991 the story he told was one that not many people wanted to hear. It was a reality of cycling to which many of us were unaware. Indeed, many of us would have preferred to keep it that way. The story he wove was one few were clamoring to hear, one that contained truths many of us had never guessed, truths that were at odds with what we believed cycling was at minimum, what cycling should be at worst.

When Kimmage was ostracized from most of the cycling world, few who had taken the time to read the book could have been surprised. Not only was his story a shocking one, it was bitter and left little room for nuanced responses. It’s hard to imagine that anyone could have danced a diplomatic waltz that backed him up while not simultaneously giving the finger to the entire peloton. He was in a no-win situation, one that has sealed his fate as less a journalist than an antagonist because his work so rarely contains anything approaching compassion. Journalists live and die by friends; you may call them contacts or sources, but to those who ply the trade, one always thinks of making friends.

“Rough Ride” could be summed up as the first survey of an iceberg. Like those early Lewis and Clark maps that look familiar but clearly lack the precise reflection of satellite photographs, Kimmage came to us and announced that most of the iceberg was underwater, that there was—incredibly—twice the ice below the waterline as above it. His was as fantastic a tale as we’d heard.

Yet his was a necessary initial step. First into the breach. Without him leading the charge, shattering myths, we’d think of Tyler Hamilton’s and Daniel Coyle’s “The Secret Race” (Bantam, $28) as one elaborate delusion. But Hamilton and Coyle have undertaken as specific a survey of an iceberg as we’ve seen. This is National Geographic: photos, measurements, months spent in sea ice. It’s one thing to claim a two-bit domestique is full of shit; harder to do when it’s someone who reached the top.

That the book is meticulously researched is unsurprising, at least to me. I’ve been reading (and respecting) Coyle’s work since I first read him in Outside Magazine in the 1990s. His work thorough, his storytelling perfectly paced—efficient and brief when necessary, while rich and layered when things get heavy. If Jeff Novitzky and Travis Tygart are storming the bastille, Hamilton has taken Coyle in the back entrance, showed him where everything is kept: sleeping quarters here, provisions here, armory and magazine there.

While the book is as compelling a read as can be found in cycling, one must embark with a taste for tragedy. I was reminded of William Faulkner’s “As I Lay Dying” and Annie Proulx’s “The Shipping News.”

Of course, many readers will find exactly what they seek. People who believe that dopers should be chased from the sport with pitchforks will find the yard-sale of Hamilton’s personal life satisfying rather than heart-rending. Lance’s would-be lynch mob will find even more reason to want him eviscerated as publicly as possible. Those who don’t like Armstrong are unlikely to wince at Hamilton’s most compassionate insights into him, his motivations. Armstrong’s still legions of fans are unlikely to read the book, which will make for an unfortunate miss in potential sales, and even bigger miss in dispensing reality.

Hamilton and Coyle perceptively call out the incident that ultimately leads to the investigation culminating in Armstrong’s downfall. It is, of course, Floyd Landis’ email to USA Cycling, the confession that was called everything short of J.R.R. Tolkein’s greatest fantasy. They point out how the entire investigation would never have taken place had Armstrong possessed the charity to give Landis a spot on his team. Simply mend a fence.

However, I think the more telling event took place a few years before, an event few of us could ever have guessed. The scrutiny that resulted in Hamilton’s positive tests that destroyed his career came as a result of a tip, a tip allegedly given to the UCI by Armstrong. One can infer that no length was too great in Armstrong’s mind, no effort too outlandish, not when defeating an opponent was at stake. For me, that felt like a real turning point for Armstrong, a selling out of the omerta in the most cynical way possible.

This book weighs on me. It has infected my dreams, putting me in rooms with Hamilton and Armstrong, their sponsors, causing bicycles to float through my nights, and resulting in mornings that lack the refreshed satisfaction of a night’s rest. The question on my mind is that after cycling is burned down in the United States, what, if anything, will come in Europe. Hein Verbruggen and Pat McQuaid have been less leaders than shopkeepers. They are the competent employees left to mind the store while the owner runs to the bank. The problem: There’s no owner. No one has taken responsibility for the mess the sport is in and perhaps the one thing everyone can agree upon is that the UCI has done a terrible job of governing. McQuaid can’t be trusted to get the reform accomplished that cycling desperately needs if only for a simple reason—it’s virtually impossible to amputate yourself.

Hamilton cheated and lied about cheating. He sinned against cycling. There’s no getting around that. But in as much as anyone can ever repent a sin, “The Secret Race” makes amends by taking responsibility for his part and giving up everything he knows. He’s done his time, served his sentence. As a culture we profess to stand against cruel and unusual punishment. I can’t say I believe the punishment fit the crime, not when you consider the way we punish violent crimes, white-collar crimes.

Hamilton has done more to expose cycling’s flaws than all the anti-doping crusaders combined. From the way the book closes, it sounds like he wants little to do with cycling other than his coaching business and something in that makes my heart ache for him. He is our Prodigal Son. I’d like to think that he’s got more to contribute to this sport, something positive. If I had an olive branch—a job—I’d extend it; somehow “thanks” and “I’m sorry for your loss” don’t seem enough. This may be the most important book ever written on cycling.

 

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.

Keeping Score

 Who is this man and how can he help clean up cycling?

The reactions to Lance Armstrong’s decision not to enter arbitration have been as varied as the colors of the rainbow. Their sheer diversity is surprising if only because of some of the emotionally charged comments on Facebook and Twitter (not to mention RKP’s comments section) are as irrational as the number i and even harder to understand. I don’t begrudge anyone their feelings about Armstrong, cycling or this case, but I think it might be helpful to keep a bit of score.

Cleaning Up Cycling
I’ve seen any number of assertions, even some by the mainstream media that this has somehow served as an important step toward cleaning up cycling. Armstrong may have been charged with participating in an organized doping program, but he was only one of the hydra’s many heads. Removing him from that operation didn’t kill it. Amended results notwithstanding, Johan Bruyneel has lost the last two Tours de France and judging from this year’s performances by Team RadioShack, the one-time master of all things grand tour seems to have lost his touch, so the point there may be moot. Even if Bruyneel is banned from the sport, his was only one of many systematic doping programs; he was less an instigator (think Ferrari) than a facilitator, a manager. One can be virtually assured that somewhere on this planet some team manager is attempting an end-run on the system.

Will cycling be cleaner after this case? It’s unlikely. No amount of punishment meted out on the Texan will likely convince any rider who is currently doping to stop the practice. Those riders look at the fact that they haven’t been caught yet and are likely to be able to continue what they do. And riders who aren’t doping, but are wrestling with whether or not to start will mostly likely view this in terms of big fish/little fish. Armstrong was a big fish, they will reason, and subjected to a great deal more scrutiny. They are, by comparison, very small fish, and in their thinking, unlikely to receive the same amount of scrutiny, allowing them to fly under the radar.

The bigger refutation to the idea that cycling will be cleaner is that the techniques being used to accomplish doping are generally not the ones that were used by Armstrong and co. A retroactively produced documentary directed by Martin Scorcese wouldn’t uncover every detail of what was done during Armstrong’s run. More specifically, while transfusions may still be in use, the methods used to mask them have certainly evolved, which brings us back to the point that this case doesn’t fix today’s doping.

Doping: 1
Clean Cycling: 0

Knowing the Truth
Many of Lance Armstrong’s detractors have itched themselves into oozing meth sores waiting for Tygart’s inquiry to divulge the full story about Armstrong’s doping. From what was taken, to how much was paid, to the methods used to evade detection, to the bribes paid (and to whom) down to the name and Social Security number of every rider who ever doped on that team, people wanted flesh. While the fat lady hasn’t hit the stage, Armstrong’s decision to forego arbitration means we are unlikely to see full transcripts of the grand jury testimony, particularly the testimony from George Hincapie, David Zabriskie, Levi Leipheimer and Christian Vande Velde, which has reportedly resulted in six-month suspensions they will serve after the season ends.

Again, to the degree that the merit of the outcome of this case was based on learning the truth, we’ve been denied that satisfaction. While the cycling world may be convinced that Armstrong used PEDs, there is an even larger population for whom believing Armstrong is a persecuted innocent is as easy as believing that the next Mega Millions jackpot is theirs.

I don’t want to get into a semantic argument on the nature of truth, but it’s worth asking if those who desire the truth be exposed will only be satisfied if the entire world arrives at the conclusion that Armstrong doped—an outcome that may not be possible in a world where we parse the varieties of rape. However, if they can be satisfied if only the cycling world believes Armstrong to be guilty while the prevailing story about him is that he was the victim of a witch hunt, then it’s worth asking if their desire for the full story is meant to satisfy their personal curiosity, which is a less noble motivation.

Doping: 2
Clean Cycling: 0

Playing to Lose
There’s a lot of talk that in doping, Armstrong didn’t level the playing field because each rider responds to doping products and methods differently. While that is true, here’s another fundamental truth: Every clean rider is different. Pros have widely varying VO2 maxes, maximum and resting heart rates and lactate thresholds. You line up for a race hoping that your training has been sufficient to overcome any genetic shortcomings you might have. There is no level playing field.

There’s an oddly relevant scene early in Douglas Adams’ book “The Hitchhiker’s Guide to the Galaxy.” Adams describes a drinking game played by the character Ford Prefect that involved something called Old Janx Spirit and telekinetic powers. The loser of the game was forced to perform a stunt that was “usually obscenely biological.”

Then came the line, “Ford Prefect usually played to lose.”

I was a teenager when I read this and the thought that someone might want to deliberately lose a drinking game was funnier than a Monty Python movie. However, it started within me a more serious meditation on why someone might enter any contest with the intention of losing. I didn’t come up with an answer for situations that didn’t involve anything “obscenely biological” until I came to appreciate the nomination process in American politics, a place where people with neither the qualifications nor chance of becoming president will run for the office as a way to angle for a job better than the one they have. More recently, though, I’ve come to see riders who chose to race clean during the height of the EPO problem—we’re talking mid-1990s through the turn of the century—in a similar light.

Given that the vast majority of results from that era are dominated by riders who we know doped, riders who lined up for any race big enough to warrant television coverage without veins filled with rocket fuel were bringing fingernail clippers to an air strike. They were playing to lose.

The problem isn’t that they lacked ambition or a work ethic; rather, it seems that those riders brought morality into what has effectively been an amoral system. The only proven way to win during that era was to dope.

Doping: 3
Clean Cycling: 0

Justice Served
I’ve seen a few people compare Lance Armstrong to Jerry Sandusky. The comparison goes like this: Lance Armstrong did more good than bad because he gave lots of people hope and sold a bunch of bikes and those people outnumber the riders he cheated out of winning by doping. Similarly, Jerry Sandusky did more good than bad by giving underprivileged kids the opportunity to participate in sports, and those kids outnumber the kids he sexually assaulted. It’s an obscene comparison because you can’t equate the soul-shattering violence of a sexual assault—an event that can destroy a person’s ability to sustain intimate relationships—with cheating. Each of Sandusky’s crimes was personal, committed one-on-one. Conversely, while there’s no doubt that riders like Christophe Bassons were harmed by Armstrong’s methods, they were victimized by more than just Armstrong—most of the peloton, actually—and they suffered more as collateral damage. Events such as Armstrong chasing down Filippo Simeoni are more serious than simple collateral damage, but even that is a light year from sexual assault.

A much greater illusion is the idea that justice has been served. Imagine you live in a neighborhood where nearly every car runs the red light between you and the corner store, making a milk run pointlessly suicidal. Suppose that the police swoop in with a huge dragnet and ticket only one driver. Granted, he drove faster than anyone else through the light, but with only one of hundreds of drivers out of the picture, justice has yet to be served because it’s still not safe to walk to the store.

Justice will be served once the peloton is essentially clean. Essentially is an important modifier here; cycling will never be quit of doping, but a mostly clean peloton is a realistic goal. Until we’re there, we don’t have justice.

Doping: 4
Clean Cycling: 0

Endgame

There comes a point in most chess games where the outcome is essentially assured. Even though the victory has yet to take place by way of checkmate, there are so few pieces left on the board, so few choices left to the trailing player that each remaining move is but a formality. In signaling that he will not engage USADA in arbitration, Lance Armstrong has essentially conceded defeat in his protracted match against Travis Tygart.

Make no mistake, to view this case as anything other than a mano a mano battle of Tygart v. Armstrong requires a willful blindness to ego. The strategies employed by Armstrong’s legal team, which were rebuffed repeatedly for lacking any legal basis, seemed to coast on the idea that somehow the sheer fact that this was, after all, Lance Armstrong, would be enough to shut down the legal process. It wasn’t. And Tygart’s pursuit of the case has left many to wonder if maybe there weren’t more pressing fires.

While Armstrong has not yet been stripped of his wins, his decision not to pursue arbitration means that USADA can follow that course of action, unimpeded by Armstrong or his defenders. In his statement announcing his decision not to continue his defense Armstrong gains two small benefits. First, he gets the chance to play martyr, as evidenced by his “Enough is enough” quote from his announcement. He’ll receive plenty of sympathy from those who have been unswayed by the evidence against him. Second, he avoids what would be a truly bloody melee had he pursued the arbitration. The sure knowledge that some of his most loyal friends would have been pitted against him must have cut to the core.

But what of USADA? What have they gained?

“It’s a sad day for all of us who love sport and our athletic heroes,” said Tygart. “It’s yet another heartbreaking example of how the win-at-all-costs culture, if left unchecked, will overtake fair, safe and honest competition.”

Tygart’s devotion to this case makes his claim that this is a sad day ring more hollow than a drum. He claims that the win-at-all costs culture has the ability to eclipse fair, safe and honest competition. In that regard, he’s right. And that conditional—”if left unchecked”—that checks and balances system, how well is that working?

It’s that part of the process that I believe is most broken. Armstrong isn’t the problem. It’s that the sport’s testing has been woefully inadequate. The UCI was so derelict in its duty that once EPO infiltrated the peloton riders were faced with the choice of either being pack fodder or cheats. It’s a hell of a choice and for those who find it so easy to condemn those who buckled to the coercion, sometimes explicit, always implicit, please let us know how life in a glass house is working out.

If any good is to come of this situation it is that the UCI may be exposed for efforts to quash one or more positive tests by the seven-time Tour de France winner. And while the worst of the UCI’s alleged questionable choices happened before Pat McQuaid took over as boss, the fact that he instigated the jurisdictional fight with USADA as regards the Armstrong case means he is equally complicit in any previous coverup by attempting to quash a thorough investigation. Exposing the UCI as a body unfit to police bicycle racing is quite possibly the only helpful thing that could come from this. At least then, if the UCI were dismantled and replaced by a new governing body, we might gain some fresh confidence—a confidence we currently lack—that racing might be properly policed.

Again, what have we gained? Doping is a present-tense problem. If Johan Bruyneel is actively managing a doping program for some of his riders, then he should be banned from the sport, but this outcome doesn’t yet assure that. And those doctors? Their names are tarnished enough that it seems unlikely a team would hire them, though it would surprise few if they turned up in, say, swimming. A ban for them seems warranted.

Once the procedure this announcement sets in motion has run its full course, here’s what the Tour de France results will look like:

1999: 1. Alex Zulle 2. Fernando Escartin 3. Laurent Dufaux
2000: 1. Jan Ullrich 2. Joseba Beloki 3. Christophe Moreau
2001: 1. Jan Ullrich 2. Joseba Beloki 3. Andrei Kivilev
2002:  1. Joseba Beloki 2. Raimondas Rumsas 3. Santiago Botero
2003: 1. Jan Ullrich 2. Alexandre Vinokourov 3. Tyler Hamilton
2004: 1. Andreas Klöden 2. Ivan Basso 3. Jan Ullrich
2005: 1. Ivan Basso 2. Jan Ullrich Francisco Mancebo 3. Alexandre Vinokourov

Take a moment to consider the names that were elevated in Armstrong’s absence. With the exception of Andrei Kivilev, during their careers each of those riders tested positive for doping, confessed to doping in the Festina scandal or were strongly implicated in Operacion Puerto. Be not confused: This is not a fix for one simple reason: It does nothing to solve the doping occurring today.

Whether we speak of the 2012 Tour de France, the Gran Fondo New York or masters track nationals, there is plenty of doping going on right now, some of which—particularly the events open to amateur athletes—that has the ability to turn people away from the sport altogether.

When I think of the biggest problems that cycling faces, Lance Armstrong doesn’t make the list. Even if you despise him, on balance, he’s done more good than bad. He isn’t, as Greg LeMond would have you think, “the greatest fraud.” Bernie Madoff’s victims would laugh that out of any court you choose. Hope can’t really be cheated and he gave a great many people hope when they might otherwise have had none. And the bike industry has plenty to be grateful for. The increase in new road cyclists that began in 1999 is still paying dividends. I worked for the only all-road publication in the U.S. in 1998 and it died an emaciated, withering death even before Marco Pantani rode down the Champs Elysees clad in the maillot jaune. Today there are four different road-specific print publications; I have no doubt their emergence would not have happened without Armstrong’s victories.

The public wants cycling that is free of doping, full stop. The challenge we face is one of leadership. Adjudicating the past won’t fix today and attempts to cover up the past, no matter by what method, undermine the moral platform from which a governing body operates. More testing is required and better testing is required. To achieve those, cycling must be better funded. Given that the majority of cycling’s funding comes from outside sources, a dearth of sponsorship won’t get us there. And the public execution of Lance Armstrong has ensured one thing: That tens of millions of dollars that could have gone to sponsoring racers and races will go to some sport that’s less embarrassing to be a part of. A cleaner sport. Say, football or baseball.

Thanks Travis, we’ll take it from here.

 

Image: John Pierce, Photosport International

Gear Restrictions Coming for ProTour?

 

Editor’s note: veteran journo Alan Coté is known for his work for most of the big cycling magazines distributed in the U.S. He has served as a contributor or editor for Outside, Bicycling, Bicycle Guide, VeloNews and Winning, among others. His sources reach deep into the industry and we were shocked to learn what he reveals in his first piece for RKP. Oh, and for the record, he helped Padraig get his interview at Bicycle Guide.

 

AIGLE, SWITZERLAND—Details about impending equipment restrictions from the UCI have leaked out in recent weeks. Bicycle racing’s world governing body is ruling over sock length, safety tabs on forks, and more. The sharp, if mysterious, voice over at the Inner Ring posted all the details here.

But in an exclusive interview, Red Kite Prayer has learned from an inside source, who only agreed to speak on condition of anonymity, about a much bigger rule change that’s looking to be implemented starting in 2013 – a rule that could even avalanche to sportifs-type riders as well.

RKP’s source, whom we’ll call Bas Gorge, told us that gear restrictions are being considering for pro level racing. While a maximum gear size has long been in effect for junior racers, the idea has never before been considered for the pro level. What’s even more surprising is that a limit on low gears is also on the table. We spoke to him at his Swiss office on a wet spring day.

On the big cookie side, the UCI considers the matter one of safety – this after early Tour de France stages in 2011 took out the likes of Bradley Wiggins, Tom Boonen, and Chris Horner, to name a few. The UCI created a commission to look at the problem, and one of the resulting recommendations was a gear limit – though this hasn’t been made public.

“We must always keep in mind the sporting criteria, and this is where gear restrictions make certain sense”, Bas Gorge said. “Requiring a maximum gear of say 52 x13 has several advantages. First, it limits top speed in the sprints. Second, it limits top speeds on fast intermediate sections of a typical parcours. Both of these are where crashes occur most often.”

Bas Gorge went on to make a Cold War analogy. “When the US and the Soviets developed atomic missiles that were too powerful, what did they do? They set limits on the size of warheads. There’s a sprinter now called the Manx Missile, yes? The UCI is stepping in with an arms treaty before many people get hurt.”

Bas Gorge went on to explain a third reason for keeping the big meat strictly vegetarian. “Among the UCI management, there is a feeling that current pros lack souplesse.  Sure they may ride faster than ever, but aesthetics of the sport must never be forgotten. With a pedal stroke that is not fluide, a pro can easily look like a beauf.”

While a 52×13 top gear rule may be surprising, what’s even more startling is a gear restriction never before seen in cycling: a limit on how low a pro can go. 39 x 23 is the current target, and Bas Gorge explained the two-part thinking behind this.

“With low gears there is no safety concern, but there is still as always the sporting criteria. And the problem here lies with the speed of the grupetto.”

Indeed, in grand tour mountain stages, the Green Jersey often finishes far behind the stage winner and yellow jersey. For example, in stage 18 of the 2011 Tour de France, which finished atop the Col de Galibier, Green Jersey holder Mark Cavendish crossed the line 35:40 behind stage winner Andy Schleck.

“Pat McQuaid was on the Galibier and he wasn’t happy about freezing his derrière off waiting around for the green jersey podium ceremony,” Bas Gorge said. “In theory, a bigger bottom gear will increase the speed of those riders, as their pedaling frequency won’t drop below its naturally lowest rhythm.”

When RKP questioned the idea that simply using bigger gears on climbs will result in increased speed for the gruppetto – pointing-out that this requires an equivalent increase in power – Bas Gorge cut us off.

“To that, we say that maybe the days are numbered for power meters in competition as well.”

We moved on to asking about part two.

“The second reason behind the low gear rule lies with a different aspect of the sporting criteria,” Bas Gorge said. “For certain mountain stages, pros are fitting compact cranks with 34 tooth inner rings—or even worse, triple cranks. This is the realm not of the professional but of the cyclotourist. Such equipment is grotesque on the machine, and these twiddly gears equate the professional to someone of much lesser ability. The UCI is looking to protect the long-term sponsorship value of the professional.”

Moreover, they’re even considering including these rules for sportif rides like Etape du Tour—though only rides held under UCI sanction would be affected. “These rides are getting too many entrants, especially slow ones. It costs organizers up to €1000 per hour to keep the roads closed, so it may be a way to filter out the weakest from entering.”

We asked about gearing for women’s racing, and Bas Gorge replied with a shrug, “Pfft, I have no idea, the UCI doesn’t pay attention to women’s racing.”

What the UCI clearly is paying attention to is: change.

“Synthetic fiber saddles, plastic waterbottles, shoes without laces  …  where will it stop?”, he asked, stabbing the butt of a cold Gauloise into an UCI-logo ashtray as he stared out the window into the drizzly Swiss sky.

“No one else seems willing to stand in the way of progress and reason, so the UCI must.”

 

 

― Alan Coté

April 1, 2012

Fantasy League

This seems to be the week of doping news. First, Armstrong’s investigation is dropped. Then Contador’s case is overturned and the rider is suspended and stripped of wins he accrued while apparently riding clean. Moments ago it was announced that Jeannie Longo Ciprelli’s home was the subject of a doping raid. And what will tomorrow bring? Well, the proverbial other shoe will finally drop in the Jan Ullrich case. Ullrich? Remember him?

Whether you believe Lance Armstrong raced on bread and water or was as supercharged as a Corvette, the case wound to a close with nothing like a conclusion. What we’re faced with is a succession of doping scandals with finishes that can’t be called resolutions. No matter whose side you’re on in any of these cases, you’re probably not happy with the outcome.

In any discussion of doping and cycling the conversation seems to take an inevitable turn. “What if there were no rules against doping?” It’s impossible to discuss the toping without something electing to remove the moral implications of cheating and just asking the obvious question of what the ramifications might be if we simply allowed professional cyclists to take oxygen-vector drugs, anabolic agents, amphetamines, pain killers and—holy cow—even cortisone.

It’s the ultimate parallel universe fantasy for cyclists. No ethical dilemmas. No charges of morally repugnant cheating, just a scenario in which the absolute fastest guy is the winner.

Allow me a brief digression if you will. While I consider myself an athlete and someone interested in many forms of physical fitness, body building has always creeped me out in the same way that shows on surgery do. I’m fascinated at some visceral level, but before I can examine anything truly interesting I get so grossed out I have to flip the channel.

Some years ago I found myself in the curious circumstance of dating someone who worked for a bodybuilder in his 60s. Yes, you read that right. Body builder. Sixties. He could have bench pressed me for an hour, maybe two. He, and his numerous friends, were “naturals.” No, don’t think hippy commune; he and his friends used no anabolic agents. And the funny thing was that they didn’t need testing to tell the difference. It was readily apparent in the physiques of competitors. The “naturals” didn’t have the crazily herniated muscles that seemed to bulge to the point of an unprotected astronaut’s head in outer space. Pop!

Here’s what surprised me, I found the physiques of the naturals interesting to behold. They had arguably done the same amount of work to get to the competition and for the guys in the open categories, you’d see someone rather Incredible Hulk looking alongside a guy who wouldn’t frighten children. It was a juxtaposition on the order of eagle and pterodactyl. Yep, both birds, but….

I could identify with the naturals at some elemental level. I suspect looking at the juiced up guys had the same effect on me that looking at kiddie porn would. It just felt wrong, not something I wanted to continue to gaze at.

Okay, with that out of the way, let me pose a scenario: Suppose that two different Tours de France were run in 2013. Let’s imagine that WADA folds and Pat McQuaid throws in the towel and allows the rise of a top-fuel category. On July 1 there are two different pelotons ready to roll. Both have adequate TV coverage ensured for the three weeks of the race.

And let’s pose yet another hypothetical: Suppose for an instant that you had time enough in your day to watch as much of both different races as you wanted. Say four hours or more.

Would you really watch all of both races? Or would you favor one over the other?

I know what I would watch.

Sure, I’d tune in to the top-fuel race. But I’d do it for the prologue, a couple of sprints and then the odd mountain stage. At a certain level it would be kind of like watching top-fuel dragsters. It’s cool at first, but after a while that straight track gets boring. I find grand prix and touring car racing much more interesting. And World Rally Championship? Whoo-ee! Put real-world challenges in a race and that has a big effect on my interest level.

So, I’d be glued to the natural race. I can identify with those guys. They are me with more talent and discipline. I understand the choices they’ve made. The guys in the natural race have a similar, if not the same, moral compass I do. That matters to me.

You see, I don’t think you can ever completely repeal the taint of doping. There will always be a threshold you’ll have to voluntarily cross. Some of those willing to cross it never saw it in the first place. To some, cheating is a semantic point, a distinction of no great import. Racing, after all, is about winning and losing. Right?

Let’s try this a different way: I couldn’t ride with a guy who was a bike thief. Similarly, someone who will do anything possible to be as fast as possible isn’t someone I understand. That inability to see how respecting a social contract is an important part of how a community derives strength by creating bonds between people means that he and I simply won’t connect. If that part of the social contract is meaningless, then what about the other bits? Is my car safe? Is he going to try to seduce my wife? Where does it end?

So those guys in the top-fuel division? I’ll never really understand that thinking and as a result, I’ll never really understand those riders. But understanding them isn’t even really the issue.

Drug testing, after all, was a response to a PR nightmare that makes the current flaps over Armstrong and Contador seem like spelling bee cheating. The major events that have led to overhauls in drug testing were deaths. No scandal is worse for the sport than a death. One need look back no further than the 2011 death of Wouter Weylandt at the Giro; there wasn’t a news outlet that didn’t cover the tragedy that day. Instantly, our non-cycling friends asked us why we participated in such a dangerous sport.

And that’s the rub. Any time an athlete dies—no matter the cause—sport is scrutinized. This isn’t specific to cycling. In a world where all doping is okay, rider deaths would surely increase. Given the blind eye and lip service Hein Verbruggen paid to the heart-attack deaths of Dutch cyclists in the early 1990s due to EPO, it’s unlikely the UCI would feel any great motivation to address the issue. That leaves the audience, teams and sponsors to deal with the fallout.

When you consider the devastation that a rider’s death plows in his family, his team and through the company personnel at each of his team’s sponsors, it wouldn’t take long before family, fans and sponsors would begin to cry out for an end to the deaths. But as we know from the studies performed by researcher Bob Goldman, more than 50 percent of Olympic athletes have said they would take a drug that would ensure they would win a gold medal—even if it was guaranteed to kill them within five years of taking it.

While we don’t know if you can transpose those results 100 percent to the pro peloton, it’s not unreasonable to surmise that if that drug was available something like half of our living Tour de France champions would be dead today.

Hannah Arendt wrote, “No punishment has ever possessed enough power of deterrence to prevent the commission of crimes.” And if death is not a punishment, then nothing is. We can’t depend on the athletes to choose sanity, so we must do it for them.

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