The Explainer: How would you change it?

Dear Readers,
Okay, we’re on for Paris-Roubaix. The response in emails and in the comments section has been such that Patrick O’Grady and I will most certainly provide Live Coverage of Paris-Roubaix on Sunday, April 7.

Check in here at RKP or at LiveUpdateGuy.com. We’ll try to get things rolling as soon as possible.

In re: Matthew

I also want to say how happy I was to read the news in the latest entry in the “Enter the Deuce” series. Like Patrick, I have two kids. Like Patrick, our oldest is a young man named Philip. That’s where the similarity ends. Both our son and our daughter, Annika, were born healthy and feisty from the get-go. I cannot even imagine what Patrick and Shana have endured these past five weeks. We had the privilege of holding our young’ns almost from the minute they were born.

It’s difficult to fathom how difficult it would be to stand by, watch your own child through glass and wonder if he’ll make it through his first month. What a relief and a joy it is to lean that his chest tube is out, “The Deuce” is now doing well and that his parents can hold him like he was meant to be held.

Welcome Matthew. I look forward to watching you grow and hope to get to know you in coming years. You already have my respect, kid. You’ve got a lot of fight in ya.

Labor relations

As for last week’s column, I have to agree with Betsy Andreu’s comments that real reform of cycling will have to begin in places other than a strong riders’ union:

“The solution for cycling? Start by cleaning house at UCI and USAC. There is too much demoralization in the sport due to a lack of integrity with the governing bodies and federations. Only then can the sport not only remain viable but grow.”

I agree that reform at the UCI and, to a lesser extent, USA Cycling, is key to changing this sport. As I’ve said in the past, the first – and most critical – step is to take the UCI out of the doping control business. That’s the one significant advantage that the U.S. governing body has over its international counterpart. The separation of governance and enforcement is precisely why Lance Armstrong was finally brought down. Had it been up to USA Cycling to pursue the case triggered by Floyd Landis’ allegations, and the ensuing federal case, the results would not have been the same. I remain convinced that someone, somewhere along the way, would have concluded that an aggressive pursuit of the evidence would have been “bad for cycling” and the matter would have quietly disappeared.

I have to agree with Betsy in that a strong riders’ union isn’t, in any way, a panacea, but I remain convinced that its an essential element. I understand that players’ associations in American baseball and football have historically served as apologists and defenders of dopers. It’s important, however, to note that the governance of those sports puts a great deal of power into the teams (in the form of Major League Baseball and the National Football League), power countered only by the players’ association. Like the UCI, the power to enforce doping rules rests with the MLB and NFL. In cycling, we have the advantage of having the World Anti-Doping Agency, which should be given full enforcement authority. Only in a system in which doping enforcement is in the hands of an independent agency does a riders’ association serve an important role.

Again, the first step has to be a separation of powers, removing enforcement authority from the governing body. To me, that’s even more important than full-scale reform of the UCI. Even if the management committee were to tar and feather Hein Verbruggen and run Pat McQuaid out of town on a rail, the inherent conflicts of interest would remain. I remain convinced that there are four critical roles to be filled when it comes to the management of cycling: that of a governing body; that of a doping enforcement agency; that of a teams’ association and, finally, that of a group representing the interests of riders.

The governing body has a role in overall management of the sport, including licensing, coordinating calendars and development of rules and procedures. In a sense, the doping agency could expand its role and become an “ethics enforcement” agency, overseeing enforcement of doping rules and, ideally, leading the fight against corruption in all forms. WADA and its national counterparts would, in a sense, fill a prosecutor’s role, enforcing rules that keep sport honest. Teams have interests that include the needs of sponsors and those have to be represented. The riders’ interests can, at times, conflict with those of the other three and, yes, on an individual level, that may even include defending riders against charges raised by the “prosecutors” from WADA and its sister agencies. Enforcement of any rule is meaningless when there is no opportunity to mount a reasonable defense. It’s all a question of balance … and, no, that’s not where the sport is these days, nor is there any likelihood that it will be any time soon.

In terms of “reform” at the UCI, there is a major news story worth following. Over at VeloNation.com, Shane Stokes has been following developments at Cycling Ireland, the board of which is apparently divided regarding the question of whether or not to submit Pat McQuaid’s name in nomination for the presidency of the UCI. Board members of McQuaid’s national federation have submitted his name in advance of his winning his first two terms. Irish cycling supporters and journalists have been at the forefront of reform efforts (David Walsh, Paul Kimmage and Stokes among them), so it’s somewhat ironic that the UCI was guided through its most controversial period by a member of Ireland’s cycling community. That said, even if McQuaid loses the backing of his compatriots, his name may well be advanced by the Swiss Federation, given that he is now a resident of Switzerland.

We’ve already discussed the difficulty – or near impossibility – of UCI reform beginning at the UCI itself. All of this should be interesting … and probably disappointing. It may require a major push from outside to initiate meaningful reform. Former WADA president Dick Pound suggests that kicking cycling out of the Olympics might serve that purpose. I am somewhat skeptical, since the Olympics really plays a small role in the sport and that the real attraction and financial power rests with the grand tours. In support of Pound’s position, though, the UCI derives considerable power and influence because of its participation in the IOC.

Anyway, at this point, we’re largely being speculative. I am not confident that we’ll see meaningful reform in cycling, even on the heels of the Armstrong affair. That’s disappointing.

I’d like to open this discussion up to you, the readers, too.

Given the obstacles to meaningful change in cycling, how would you turn this sport around? I’m eager to hear your ideas. Use the comments section below or, if it’s a long one, go ahead and send it to my email address: Charles@Pelkey.com.

Have a good week and don’t forget to join us for Live Coverage of Paris-Roubaix on April 7.
– Charles

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

The Explainer: Solidarity forever

Charles,
I realize that professional baseball’s lawsuit against a Florida clinic is outside of the cycling world and it is also a PED question that we are all getting so tired of, but I really wondered if a “players association” (in this case MLBPA) might help cycling?

Also is there something similar that cycling could do like MLB in suing the Times Herald in Miami (as I understand it) for their information on the Biogenesis Clinic? Could anyone sue UCI? Lastly, how can someone find that MLB complaint, or are those not available until there is a ruling?

Thanks, I have enjoyed your Explainer columns for years, after I found them on VeloNews.

Looking forward to the LUG, Giro edition, in May. That is such a great thing that you and Patrick do. Thanks again.

Also, love the LUG stickers. Those are great.

Ok to publish,
– Chris

Dear Chris,
Your questions cover a lot of bases, so to speak, so let me sort through them a bit.

First, top-tier professional cyclists already have a players’ association – the Cyclistes Professionnels Associes – but it has its problems at times and lacks the influence of its counterparts in American baseball (the Major League Baseball Players’ Association) and American football (the NFL Players’ Association).

Led by former pro Gianni Bugno, the organization has worked to protect riders’ interests, but hasn’t really developed into a cohesive riders’ union and has had difficulty enforcing even the most basic rights of riders, including collection of unpaid wages through the UCI’s required bank guarantees (recall the old 2009 Astana team’s problems making payroll).

The CPA often works in conjunction with the Association International des Groupes Cyclistes Professionels – the organization representing teams – but there are times when the two organizations’ interests are in conflict. That group, too, has had its share of problems. Indeed, four years ago, the organization was pretty much coming apart at the seams, with some teams opting out of the group after the not-too-successful boycott of Paris-Nice in 2008.

The AIGCP managed to work through that tumultuous period, due in no small part to the leadership of its then-new president, Garmin-Sharp team manager, Jonathan Vaughters. He did a pretty good job as far as keeping the organization together but there’s still a long way to go. Vaughters, who’s planning to pursue an executive MBA at the University of Denver, announced last year that he would not seek reelection and his term expired this month. He is being replaced by Luuc Eisenga, a Dutchman who has worked for the UCI, the T-Mobile team, Rabobank and, most recently, as the tech’ director of the Blanco squad.

I am hopeful that on the heels of the “Armstrong affair,” both organizations can work together and force some real change in the management and structure of the UCI. That said, I’m not holding my breath.

There are a lot of reasons for the CPA to ramp up its efforts. Some of them – particularly as it applies to salaries and working conditions – will run counter to the goals of the teams. Others – like the elimination of doping in the sport – should serve the economic interests of both parties. By now, it should be clear, too, that major reform of the UCI, its leadership and its structure is in the best interests of riders, teams, promoters and fans alike. Indeed, when you consider all of cycling constituencies, there is only one group whose absence would go unnoticed. That’s the UCI. We need promoters. We need teams. They certainly need the fans. We all need the riders. Guys in grey flannel jackets? Not so much.

This sport would benefit from the presence of a meaningful and powerful riders’ union. A weak and ad-hoc association does little more than pay lip service toward the achievement of some important goals.

I, for one, would not be all that disappointed in seeing a meaningful riders’ strike in cycling, if it led to much-needed changes in conditions for the world’s hardest working athletes. That would, of course, include drugs, but would also include a substantial increase in minimum salaries for top pro’s and a basic compensation package for those riding on “minor league” teams as well.

I’ll be the first to admit that given their history on PEDs, I’ve not been a huge fan of the MLBPA or the NFLPA, but I must concede that both have done a much better job of representing their members’ interests than has the CPA. Cycling would benefit from a strong and cohesive union, especially if that organization took the lead on limiting the insidious effect of PEDs on the sport.

It won’t be the press. It won’t be the teams. It won’t be the promoters. It sure as @#$% won’t be the UCI. This one will have to be up to the riders.

As the great Samuel Gompers said “you can’t do it unless you organize.”

Can the UCI be sued?

Sure. While your example of Major League Baseball’s suit against Biogenesis wouldn’t along the same lines, the governing body can be – and has been – sued for a number of things and in any number of venues.

The MLB suit is based on Biogenesis’ “unjustified tortious interference” in its current contract with the MLB Players’ Association, in that Biogenesis and its co-defendants have allegedly attempted to circumvent the League’s anti-doping rules by supplying players with supposedly undetectable Performance-Enhancing Drugs (PEDs). (Because it’s baseball, I’ll not spend too much time going through the baseball suit, but I have uploaded a copy of the original complaint for your reading pleasure.)

In a sense, MLB is essentially the equivalent of the AIGCP, in that it represents a consortium of 30 Major League teams. A comparable suit – and one that should be considered – would be if someone sued Michele Ferrari or Eufemiano Fuentes for actively interfering with cycling’s anti-doping rules.

Obviously, the structures of the two sports differ and it’s not the AIGCP that really runs the sport. The UCI “manages” the sport of cycling, but it has to contend with other forces, especially race promoters, the most powerful of which is the Amaury Sport Organisation (ASO), which organizes most of the world’s most prestigious cycling events, including the Tour de France, Paris-Roubaix and more.

Instead of suing Fuentes or Ferrari for active cheating, some have turned to the UCI as a potential defendant, citing their inaction when it came to enforcing their own rules. A good and recent example is that of a suit filed on behalf of the Australian clothing manufacturer Skins, seeking $2 million in damages for the UCI’s “acts and omissions,” in its failure to take meaningful steps to eliminate doping in the sport.

As you’ve read here before, the UCI is not shy about exercising its own option to sue, having sued former World Anti-Doping Agency head Dick Pound, disgraced cyclist Floyd Landis and Irish journalist Paul Kimmage for making disparaging public statements along the lines of what is now being alleged in the Skins suit. That strategy hasn’t really worked well in that Pound settled his case with a wonderfully-worded “apology,” Landis ignored the suit and the subsequent default judgment and Kimmage … well, Kimmage just turned the tables on those SOBs and has asked Swiss prosecutors to pursue criminal charges against the UCI as well as its current and former presidents.

Yup, anyone can pretty much sue anyone else for just about anything. Whether they win or not is up to the courts.

Finally, thank you for your kind words regarding our minute-by-minute coverage of the grand tours. I remain hopeful that O’Grady and I can combine forces and provide Live Coverage via LiveUpdateGuy.com and here at Red Kite Prayer as well. PO’G and I are even toying with the idea of doing something of a “test run,” by offering Live Coverage of this year’s edition of Paris-Roubaix. Any interest out there?

And I am glad you like the stickers.
– Charles

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

The Explainer: Is it doping if there is no performance enhancement?

Dear Explainer,
I am a 48-year-old masters’ racer. I have a degenerative lower back problem that causes me a lot of pain. I have tried everything to control or reduce that pain, from yoga (which has helped) to prescription pain killers, including Vicodin (which has some ugly side-effects and is addictive). My son finally convinced me to try medical marijuana. It worked and, because I live in Colorado, it’s even legal.

I’ve been using it for 14 months now and I have not really noticed any major effect on my riding, since I don’t use that much, use it orally, rather than smoking it and continue to exercise.

My big question is whether I can get popped for a “doping” positive, if I get tested at a bike race. I’ve heard that marijuana is not banned when it comes to cycling, but I’ve Googled up contradictory information.

I have a Colorado prescription. Should I try to get a TUE (Therapeutic Use Exemption)?

On a side note, I am planning on coming back to your part of the world and racing in the Dead Dog Classic this summer. Should I assume that my Colorado ‘script won’t do me any good in Wyoming?
– Roger

Dear Roger,
Let’s start with your TUE question. The short answer is a simple “NO.”

Colorado’s medical marijuana provisions do allow for prescriptions, but those “prescriptions” have a rather unique legal status (more on that later) and are not recognized by the World Anti-Doping Agency, the U.S. Anti-Doping Agency, the UCI or USA Cycling. There is no provision to have a request for a TUE approved. (That said, if you want to give it a shot some time, give me a call. It would be an interesting test.)

Competitive advantage?

Marijuana’s status when it comes to sports doping has been interesting to follow. Clearly, when it comes to cycling, it’s going to be hard to argue that marijuana’s active ingredient, tetrahydrocannabinol (THC) is, in any way, performance-enhancing.

Since the early days of the World Anti-Doping Agency, cannabinoids – like marijuana and hashish – were included in the list of substances banned under the agency’s “in-competition” provisions. That meant that as long as you weren’t under the influence of marijuana while competing, you were okay.

WADA pretty much left enforcement up to the individual governing bodies. In cycling, where no one gets much of a competitive advantage from marijuana, testing for the substance is pretty minimal. In snow-boarding, where being completely ripped might actually be an advantage, the governing body has taken a stronger position.

In cycling, there are only a few examples of riders being popped for detectable THC levels. In 2007, there were two riders who tested positive for cannabis, the Ukraine’s Svitlana Semchouk and Poland’s Rafal Kumorowski both tripped the Dopo-Meter™ for pot. Frankly, I’ve had trouble finding any others. In both of those cases, by the way, the riders’ results of the races in which they tested positive were negated and each received a warning. There was no suspension in either case. And no, I have no idea how well they performed in those races, although I have to imagine it wasn’t that great and that these two were each random test subjects.

It’s important to keep in mind that the marijuana you consume today may show up on test for quite some time. THC is retained in body fat. Unlike alcohol, which is quickly metabolized, marijuana may show up in a urine sample for up to two weeks after it is consumed – either by eating it or smoking it.

Off hand, I would say that your occasional use of medical marijuana will probably not cause you major problems in cycling. If you did test positive, your most reasonable defense would be that your levels were such that it doesn’t constitute “in-competition” use. I wouldn’t guarantee that your defense would be successful, but it’s worth making the argument.

If it helps you control the pain, I’d say it’s worth the risk. Out-of-competition use is not barred under existing rules and history seems to show that marijuana is not considered to be much of a factor in cycling. Of course, those could be famous last words. I would exercise some caution and discretion when making the decision to use medical marijuana.

Now, to your last question. I am quite pleased to hear that you are thinking about coming to Laramie to race the Dead Dog, which our local shop owner, my racing buddies and I started … let’s see here … twenty-nine years ago?!?!?!?

Well, my answer is much clearer on this one. Don’t do it.

Just say no … to crossing the border

That Colorado “prescription” is useful only in Colorado and the only reason that it is useful in Colorado is that the Federal government has pretty much stayed on the sidelines. In response to last fall’s decisions by Washington and Colorado voters to legalize the recreational use of marijuana, President Obama quipped that the Federal government has “more important issues” to deal with than to go after states in which voters approved the recreational use of marijuana. I’m sure the President also realized that while he carried Colorado in the last election, that state’s marijuana initiative, Amendment 64, had a bigger margin of victory than he did.

That’s a tentative status, though. A change of attitude or a change of administrations could put both medical and recreational marijuana laws at the state level at risk.

No matter what, though, you will not be welcomed with open arms (unless those arms are holding handcuffs) when you cross into Wyoming or other states without such laws. I’ll address Wyoming’s approach, since you’re planning on coming here and I have a bit more experience with the issue in this state (as a lawyer, folks).

Back in the day, Wyoming Statute 35-7-1031 (c) was at least a little unclear as to how the state would handle prescribed marijuana.

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act.

But to underscore Wyoming’s position on its neighbor’s adoption of medical marijuana rules, the Wyoming State Legislature revised Wyoming Statute 35-7-1031 (c) to include “no prescription or practitioner’s order for marihuana, tetrahydrocannabinol, or synthetic equivalents of marihuana or tetrahydrocannabinol shall be valid.”

If you are caught with less than three ounces in Wyoming – and it’s a first offense – it’s a misdemeanor and you can face up to a year in jail and be fined up to $1000.

If you have more than three ounces, it’s a felony and the penalties go up to five years in prison and $10,000.

Keep in mind that if you were to bring, for example, brownies, to Wyoming the statute may cause you problems, because it notes that in determining weight, officials are to include “the weight of the controlled substance and the weight of any carrier element, cutting agent, diluting agent or any other substance excluding packaging material.”

Theoretically, a pound of brownies, even they include less than half-an-ounce of pot, could be classified as a felony, since flour, chocolate and sugar would fall into the category of “any carrier element, cutting agent, diluting agent or any other substance….”

So don’t do it. Colorado’s rather casual approach to medical and recreational marijuana use stops at the border. The laws in this state are, in comparison, draconian. Law enforcement is pretty amped, too, given that the Wyoming State Patrol, county sheriffs and local cops are all keeping an eye peeled for cars traveling up from Colorado.

If you are pulled over, don’t ever, ever, ever consent to a search of your vehicle. Politely decline and simply offer the following: “I understand you are just doing your job, Officer, but I never consent to searches.”

Don’t interfere with the officer if he or she does conduct a search. That will cause you even more problems.

Enjoy your trip to Wyoming, Roger. Just do yourself a favor and leave your herbal pain remedies at home when you do.
– Charles

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

The Explainer: Prayers for “The Deuce”

Kids.

I spent Saturday down in Denver at the North American Handmade Bicycle Show, with my 13-year-old daughter, Annika (a gorgeous five-foot-nine-inch blonde, who already has me rethinking my position on gun-control). It was terrific walking the aisles with a budding bike geek, who spent much of the time admiring (and hinting I should buy) some of the most beautiful bikes I’ve seen in ages.

The show also provided a rare opportunity to catch up with old friends, including my buddy Patrick O’Grady, Andy Hampsten and Ron Kiefel and my favorite crazy person, Gregg Bagni. One thing I missed, however, was the chance to catch up with Red Kite’s own Commander in Chief, Padraig, who had planned to be there, but had far more pressing issues at home.

To explain, Padraig and his beautiful wife, Shana, welcomed a new member to their family on Friday. This seven-pound, six-ounce young man is as-of-yet unnamed, but sports the moniker “The Deuce” in honor of his birthday, 2/22. The Deuce is off to a bit of a shaky start and is spending his first few days in a neo-natal intensive care unit, so our thoughts, warmest wishes and best hopes are with the Brady family, Patrick, Shana and big brother Philip. Nothing is more important.

I fully trust that in 13 years, Padraig, you will be strolling through the aisles if the 2026 NAHBS with “The Deuce” and he, too, will be trying to talk you into buying that really beautiful titanium ‘cross bike. Of course, it will be his birthday, so you will have to comply. Start saving your pennies, my friend.
– Charles

Okay, dear readers, it’s time again to sort through the inbox and see what folks are talking about. Let’s start with a follow-up to a story that had long since slipped to the back of my mind.

Hello Charles,
Just read your Explainer about the alleged intentional cycling crash caused by Jonathan Atkins. (see “Assault and bikery in the first degree”)I am a very experienced rider and didn’t even know who this guy was until today when he intentionally nudged me into a ditch during the group Airport ride in Atlanta GA. I rode back into the group after recovering and rode beside this guy and let him know what I thought of his actions in a very verbal exchange. He was very rude, defensive, and gave a ridiculous explanation for why did what he did. He then asked for my name and I made him give me his name first. I know one of his team members Dan Busch (nice guy) and wanted to know for sure if Jonathan Atkins was on his team so I began to ping the internet for information. I’m not one bit surprised with what I have just found; this guy should not be riding with anyone. I will now see if I can add any support to the criminal charges against this guy (yes he was that appalling). Any advice is appreciated.
– Christian

Dear Christian,
As far as I can tell, there was no action taken by prosecutors in this case and Mr. Atkins, as you noted, continues to ride for the Beck Janitorial Cycling team.

I find your story disturbing on many levels, not least of which is that this fella appears not to have learned from his past mistakes. If the details surrounding your incident are true, then you should probably contact USA Cycling and, if you so wish, his sponsor.

Even if this occurred during a training ride, USA Cycling does have the authority to strip a rider of his license. It may be time to raise the issue with the sport’s governing body.

Finally, the thing that gets my interest piqued is that the team lists Mr. Atkins as a “mentor” for younger riders. I generally applaud the idea of older riders – he’s 47 – setting aside their own goals and imparting hard-earned knowledge and an appreciation of the beauty of the sport to those just getting started. Of course, if this story and the May incident prove to be true, he’s the last guy I’d want teaching my son about the intricacies of the sport.

Please, Christian, let me know how this pans out. We’ll follow-up. Meanwhile, the rest of you can feel free to weigh in with comments below.
– Charles

Regarding my recent “Tale of two lawsuits” column, several of you felt that I had been rather dismissive of the readers’ lawsuit against Lance Armstrong and his publishers.

One comment, posted below the story, argued that there were ample reasons for the suit and suggests that I may have mocked the basis of the suit:

Let’s turn this around and ask the question, if someone had filed a lawsuit in 2005 claiming Lance Armstrong had cheated Lance & Co. would have responded with a defamation suit, assembled an army of lawyers who would have humiliated and impoverished the plaintiff(s) into surrender even though the assertions of the plaintiff would be borne out in later years by the admission of Lance Armstrong.

So I can’t mock any plaintiffs’ claims. If memory serves me correctly Lance Armstrong effectively silenced by payment, threats of legal action leading to poverty and outright slander those who called into question the honesty of his wins. I can’t excuse bullies.
– Dave

Dear Dave,
I have to agree, particularly regarding your last comment. Indeed, it’s my general disdain of bullies that was probably at the root of my issues with Mr. Armstrong in the first place.

No, I don’t think doping is, was or ever should be acceptable, but I took far more seriously the bullying of teammates, witnesses and critics. I think the Reasoned Decision shows that USADA did, too. Had Mr. Armstrong simply been a doper, I really doubt that this case would have progressed as it had.

You are correct in saying that any similar suit filed during the days of Armstrong’s ascent would have surely resulted in an immediate countersuit that would have crippled the plaintiffs and the lawyers involved. He used his money, his power and his lawyers to scare critics – and potential critics – into silence.

But, I still have a problem with the whole premise of suing someone for the contents of an autobiography. To begin, the whole concept of an autobiography is an exercise in self promotion. The author – with or without the help of a co-author – uses the opportunity to present himself or herself in the most positive fashion. If there is anywhere where the old rule of caveat emptor should apply it’s reading someone’s story about themselves. Come on.

I’ve read a number of them and my ingrained bullshit detector has been triggered on more than one occasion.

But seriously, what are the damages these “vexed, annoyed and injured” readers suffered? They paid out twenty bucks for what turned out to be a work of self-promoting fiction. They fell for it. Now, they know the truth. BFD. I would much rather see a lawsuit from riders whose careers had been cut short by bullying tactics (Christophe Bassons or Filippo Simeoni, to name just two) or even those who gave up on the sport because Armstrong and his ilk ruined their opportunities to compete fairly. What about folks like Emma O’Reilly, Betsy Andreu, Frankie Andreu, David Walsh? Those folks suffered real and quantifiable damages. But a cadre of now-disappointed, yellow-wristband-wearing fans, who got the wake-up call a little too late? Sorry. I don’t see the harm, beyond getting a reminder of their own gullibility.

This suit, these plaintiffs and these claims are being assembled for a hoped-for class action suit against Armstrong, the publishers and others. This is not about recovering every reader’s twenty bucks, but to allow a creative law firm the opportunity to score big on contingency fees. Let’s say they win a $10 million suit against the defendants  A win would be that each affected reader would get a note telling them that they are a plaintiff in a successful class action suit and they will be eligible for, what, 10 bucks worth of credit toward books? Meanwhile, forty percent, plus expenses will go to the law firm. For individual plaintiffs, the outcome is essentially meaningless. For the lawyers, the case is a crap shoot, with at least reasonably good odds for a pay out at the end. This one ain’t about justice, my friends. It’s just business.

Obviously, as an attorney, I admire their pluck, but viewing it as a hypothetical juror, I doubt I’d go for a big damages award. Part of the onus is on the consumer to read with a critical eye, no?

Yeah, the good thing is that, if successful, the suit will result in the proceeds of Mr. Armstrong’s “unjust enrichment” being taken away. (Of course, if the publishers are held liable, perhaps they can, in turn, sue him for having misled them.) Personally, I’d like to see any money go to the people who suffered actual harm, not those who are merely “vexed, annoyed and injured” by reading what they could have guessed was bullshit.

Bottom line, though, I’m still really uncomfortable with that suit and what it means for anyone who writes anything that purports to be “non-fiction.”

Now, of greater interest is the Department of Justice’s decision to join Floyd Landis’ “whistleblower” suit. I’m intrigued. I do wonder about the damages claim, but I am going to spend time this week, working my way through the suit, supporting documents and briefs and speak with far more experienced attorneys about their thoughts.

Feel free to weigh in on this one, too. You can write your comments below, or send an e-mail to Charles@Pelkey.com.

Meanwhile, keep “The Deuce” in your mind. Let’s send this little dude some seriously good vibes, folks.
– Charles

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

The Explainer: A tale of two lawsuits

Dear Explainer,
I have been following the Armstrong thing for a while and have heard a lot about law suits that have been filed against him.

There are a couple that have me scratching my head. First is the one that was filed by people who bought and read his books and now say they were cheated out of money because the things were mostly lies. Now wait a minute. Weren’t those books written years ago? Isn’t there a statute of limitations?

Then I wonder about that company that promised to pay Armstrong something like $5 million when he won his fifth Tour de France. Wasn’t that settled like eight years ago? How long can you go back and overturn a settlement that everyone agreed to?
– An Occasional Bike Geek

Dear Occasional Geek,
Yeah, that book suit has me wondering, too. I have to admit, I had fun reading it, though. (You can have a look at that one, right here.)

Two California men, Robert Stutzman and Jonathan Wheeler, have filed a suit against Armstrong and his publishers and have left the door open to sue any number of future defendants, including I would have to assume, the co-author of two of those Armstrong tomes, Sally Jenkins of the Washington Post.

But what are these guys claiming? According to the suit, the two named plaintiffs are hoping to sue on behalf of themselves and any other California resident who bought – and I assume believed – the contents of “It’s Not About the Bike: My Journey Back to Life” and “Every Second Counts.”

They are seeking compensation for the fact that they and others have been “exposed to and victimized” by Armstrong’s “unlawful and/or wrongful business practices,” which include false advertising, misrepresentation, fraud and deceit and unfair competition.

Wow… all that from a $17 book.

“In perpetrating the fraud alleged herein, Defendant Armstrong acted in a willful, wanton and malicious manner, in callous, conscious and intentional disregard for the rights of Plaintiffs and members of the Class, and with knowledge that his actions and conduct were substantially likely to vex, annoy and injure Plaintiffs and members of the Class.”

These vexed, annoyed and injured plaintiffs are seeking refunds of the purchase price of the books they purchased and other “statutorily permissible damages, attorneys’ fees, expenses and costs.”

The goal here is to assemble a class of plaintiffs, each of whom can make a claim similar to those leveled by Stutzman and Wheeler. Indeed, the attorneys who filed the suit said they expect to assemble a class-action suit that would represent in excess of 100 plaintiffs with claims exceeding $5 million.

The suit is largely based on something known as the “Consumers Legal Remedies Act” (California Civil Code § 1750 et seq), which allows consumers who have been defrauded by any number of deceptive trade practices.

And yes, there is a statute of limitations provision in the CLRA. Section 1783 notes that the actions “shall be commenced not more than three years from the date of the commission of such method, act, or practice.”

A different kind of Discovery

There is generally a good way around the statute of limitations in civil cases. Known as “discovery,” the argument is based on the idea that the statute of limitations clock shouldn’t actually start to tick until that moment you actually discover that you’ve been defrauded.

The plaintiffs rightfully claim that Armstrong engaged in the fraudulent concealment of his doping. They claim not to have discovered that fraud “until at least August 2012, when the USADA imposed a lifetime ban on Defendant Armstrong and stripped him of all his Tour de France medals, and/or October 2012, when the USADA Report was published, and/or January 2013, when Armstrong made his televised disclosures to Winfrey, Plaintiffs did not have knowledge of the causes of action against Armstrong and the other Defendants.”

Okay, I’m not much of an Armstrong fan and maybe I was in a unique position to have reached my point of “discovery” pretty early in the process, given that, for one thing, David Walsh, Betsy Andreu and Emma O’Reilly are friends of mine. But still, these guys are claiming that Armstrong was, until this past summer, in “exclusive possession” of the truth and that, therefore, the statute clock shouldn’t start ticking until then.

Frankly, I think it’s something of a stretch to claim ignorance lasting all the way to the summer of 2012. Walsh’s first book came out in 2004. The facts were out there almost nine years ago.

Speaking, not as a lawyer, but as a hypothetical juror, I would have to say this one is a stretch. I like the suit, largely because I appreciate the … well, mostly because it made me laugh. (I kinda hope they pull it off. If they do, I’m ready to sue Dick Cheney for his autobiography, too.)

Nonetheless, Armstrong probably shouldn’t lose too much sleep over this one.

But he might be awake anyway, since he probably should be concerned about that other case.

The SCA matter

You might recall that big fight Armstrong engaged in with a Texas-based insurer known as SCA Promotions.

Based on allegations outlined in Walsh’s 2004 book “L.A. Confidentiel, Les Secrets de Lance Armstrong,” SCA withheld payment of a $5 million “insurance” policy taken out by Armstrong’s management company, “Tailwind Sports,” in the event that he won his sixth successive Tour in ’04. SCA had earlier made payments for Armstrong’s fourth and fifth Tour “wins” in amounts of $1.5 million and $3 million, as well.

Well, in 2004, the record books showed that Armstrong had won his sixth Tour. The owners at SCA, however, pointed to Walsh’s allegations and said that Armstrong had cheated, arguing that such actions would nullify the pay-out.

The contract called for the case to be resolved through arbitration and many, many billable hours ensued. After hours of depositions, tons of filings and a lot of talk from both sides, the question essentially came down to the fact that the original contract didn’t actually have a provision barring cheating and that even if SCA were successful in proving its allegations, the company still owed the $5 million. The two sides reached a Compromise Settlement Agreement for $7.5 million in February of 2006, requiring SCA to pay the original policy, lawyers fees, interest and other costs.

Flash forward to October, 2012 when the UCI affirmed USADA’s decision to strip Armstrong of all seven Tour de France titles he’d “won,” leaving the top spot on results empty. Logic would dictate, reasoned SCA, that since Armstrong is no longer the “official winner” of the Tours in question, they deserve their money back … along with lawyers fees, interest and other costs.”

Hence, SCA’s decision to file suit in Dallas County District Court seeking vacate that original settlement agreement based on the acts fraud committed by Armstrong and Tailwind in reaching it.

There is a substantial hurdle SCA has to clear if this case proves to be successful. Namely that the original settlement agreement is binding and includes language that would preclude any party from challenging, appealing or attempting to “set aside the Arbitration Award.”

SCA is now claiming that the only way that settlement was reached was due to Armstrong’s fraudulent acts. There are similar discovery issues, but they seem much more solid in the SCA case than they do in the case of the vexed, annoyed and injured readers.

But what about that provision barring appeal?

Most arbitration awards and arbitration settlements contain language barring attempts to set it aside. That doesn’t mean, however, that it’s totally impossible.

Historically, courts will agree to set aside arbitration awards and settlements in only a small set of very narrowly defined circumstances. The reason for that reluctance is that the outcome of an arbitration process is generally viewed by the courts as the end of litigation, not just the close of one chapter and the beginning of another.

The courts properly view those agreements as a valid and fully enforceable contract and, as a result, tend to shy away from overturning them, even when the arbitrators make an error of law or fact.

However, the courts have made exceptions, particularly involving cases in which fraudulent acts were involved in reaching that final arbitration award or settlement.

SCA is alleging that Armstrong, his partner and friend Bill Stapleton and Tailwind Sports engaged in a conspiracy to “defraud SCA and other third parties regarding Mr. Armstrong’s rampant drug use. That conspiracy continued up until Monday, January 14, 2013, when Mr. Armstrong finally admitted that he had lied during the last decade ….”

Now in reading case law relating to arbitration decisions in Texas in particular, often the fraud prompting a court’s interference relates to corruption of the arbitration process itself. For example, if a party to an arbitration agreement finds out that someone from the other side exerted undue influence or bribed a member of the arbitration panel, that would constitute fraud and warrant a court’s involvement.

Armstrong’s lies – and there were plenty – may not constitute the sort of fraud that would trigger a court’s involvement.

What’s interesting, though, is that SCA is arguing that the entire arbitration process was colored not only by Armstrong’s lies to the company, but fraud engaged in with respect to the UCI and USADA, the regulatory bodies overseeing the sport and doping enforcement. Then, add in the fact that Armstrong perjured himself in depositions in the case (he was under oath when he said he didn’t dope) and those could both give a court reason to look.

What looks to be a stronger argument for SCA, though, is that the arbitration case should be reopened on the grounds that leaving it in place would constitute “unjust enrichment” in that allowing him to keep the money earned such a fraudulent manner would in and of itself represent a miscarriage of justince. Furthermore, SCA points to the 2012 “Reasoned Decision” from USADA, which orders that all “prize” monies be returned. That latter one is an interesting argument.

On the surface, the USADA ruling simply means that he has to return the prize money awarded by ASO for winning the Tour. But SCA argues that its payments of $12 million constitute prize money and, therefore, should be returned.

Interesting.

Now, the original SCA agreements were touted as “insurance,” in that Tailwind took out policies that would be paid out in the event Armstrong “won” the Tours in question. So how is that prize money? Well, SCA asserts, that because Tailwind took out those policies to minimize its risk of having to pay bonuses or “prizes” to Armstrong for “winning” those Tours.

SCA is arguing that the ensuing payments, therefore, fall into the category of prizes and, as such, should be returned first to Tailwind and then to the insurance company that paid out the money.

The suit is a damn good read. I’m a lot more inclined to buy the basis of that suit than I am to accept the claims by those parties “injured” by their purchase of a work of fiction.

Either way, both suits will contribute to many billable hours for many of the lawyers involved and that’s not a bad thing, is it?
– Charles

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

The Explainer: This time I’m serious

Dear Readers,
If you’ve read my stuff over the years, you might recall that, while at my old gig, one of my favorite times of year included the last two days of March. Alas, it wasn’t for anything that appeared on the racing calendar, though. It was largely because I had the privilege of setting aside my normal duties and concentrating on fake news.

Yup, over those couple of days we would all concentrate on coming up with the goofiest – but potentially believable – “news” story for an appearance on the homepage on April 1. Indeed, the tradition pre-dates the web and, in the old days, we would produce at least one page in the appropriate edition of VeloNews dedicated solely to our April Fools’ Day coverage.

We had our hits. We once printed a story about Eddy Merckx’s decision to mount a comeback. As I recall, Sports Illustrated actually believed the story and repeated it as news. (I mean, come on, SI. Who would be crazy enough to believe that a five-time Tour winner would be in such need of adulation that he would return to the sport after retirement?)

The big score for me, though, was in 2005 when, under the nom de plume, Philippe Farceur, I wrote about a major shake-up in the management of the UCI. Ridiculous as it sounded, a heated argument between former UCI president Hein Verbruggen and WADA president Dick Pound resulted in Pound agreeing to take over the top spot in cycling after Verbruggen told him that “he was a windbag and that he couldn’t do better if he was in my shoes.”

Yeah, yeah, pretty nutty, but some actually bought it, including the Boston Globe, whose sports columnist John Powers reprinted it as gospel (and without attribution) and then became indignant when we pointed out it was an April Fools’ Day story. (I’m still rather proud of that, especially since Powers’ column appeared on the same day his newsroom colleagues were getting a Pulitzer Prize.)

Well, maybe Powers was just ahead of his time. I, for one, think it’s now time for life to imitate farce.

Change requires … actual change

That cycling is facing a tough road these days is something of an understatement. Think about the response to the events of the past few months, not by you, your cycling buddies or die-hard cycling fans. Instead, think back to how your non-cycling friends have reacted.

If yours are anything like mine, the first response to your interest in the sport of professional cycling usually involves a question, or two, or three about that fella from Texas and all of that there doping stuff.

To paraphrase, “Austin, we have a (credibility) problem.”

This is serious, too. It’s a crisis that far transcends the problems we faced back in the day, when the Festina scandal threatened to “forever change the face of cycling.” Remember that the best response from that total cluster@#$% came from the International Olympic Committee itself, when it held the world’s first international conference on doping in sport and took the first critical steps toward the formation of the World Anti-Doping Agency. The Olympic movement embraced the idea that the interests of a sport and the enforcement of doping rules may be inherently in conflict and that they should – at least at some level – be separated.

Cycling’s response was a bit more tepid. Far from changing the face of cycling, the guys in charge of the sport when it almost careened off a cliff, remained in charge of the sport. Topping that list, of course, was the aforementioned Hein Verbruggen and his heir apparent, then UCI vice president, Pat McQuaid. No new faces. Same old … uhhhh …. stuff.

Rather than embracing reform, cycling’s governing body did all that it could to fight it, delaying even its endorsement of the WADA Code until the last possible minute – the eve of the Athens Olympics in 2004.

I was at that first conference and I have to admit that I left more than a little skeptical of its outcome, particularly since they appointed a long-time IOC vice president, Dick Pound, to head the new anti-doping effort. I had serious doubts about an IOC insider being able to get past the inherent conflicts of interest that kept us from taking major steps toward serious reform.

I was quickly proven wrong when it came to Pound. Sure, there were problems with the new arrangement, due in no small part to the decision to leave national and international governing bodies in place as the first line of defense in the war on doping. But WADA effectively staked out its independence and Pound did his best to build a wall between the IOC, its international governing bodies and the new agency. In large part, he did so by speaking out publicly and offending more than his share of entrenched insiders, taking particular aim at cycling.

Cycling deserved to be singled out. It still does.

Pound was quoted in 2004 as saying that the public continued to know “that the riders in the Tour de France are doping.” I think we can all now agree that he was right. At the time, however, Pound was criticized by Verbruggen, McQuaid and one Lance Edward Armstrong, who characterized Pound’s comments as “careless and unacceptable.”

Remember when, in August of 2005 – not long after Armstrong’s “I’m sorry you don’t believe in miracles” speech from the podium in Paris – L’Equipe revealed that an examination of pre-EPO-test samples from the ’99 Tour showed several turned up positive and that six of them belonged to Mr. Miracles.

In response, the UCI appointed Emile Vrijman, a Dutch attorney and FOH (Friend of Hein) to “investigate” the matter. Vrijman’s report was largely critical of WADA, Pound, L’Equipe and anyone else who raised the critical questions of what those samples may have represented.

Pound and WADA characterized the Vrijman’s work as “flawed” and “farcical,” a critique soon dismissed by the UCI and Verbruggen, who took umbrage at anyone who challenged the report and its conclusions.

Okay, now flash forward to the present. We now have a situation that again offers an opportunity to reform cycling.

As far as cycling is concerned, little has changed in the governance of the sport. Verbruggen is gone … well, sorta. McQuaid has stepped in as president. We have a new scandal and, much like the controversy surrounding those suspect ’99 samples, the UCI quickly took steps to address the situation (or as Mr. Armstrong quite correctly surmised in his recent CyclingNews interview, they took steps to “CYA”).

Recall that following the UCI’s acceptance of USADA’s reasoned decision and the accompanying penalty against Mr. Armstrong, McQuaid called for the creation of an independent commission to investigate a number of questions surrounding the sport. Topping the list of questions that needed to be addressed quickly was whether or not the UCI itself was somehow complicit in covering up doping allegations involving the sport’s biggest star.

McQuaid promised to cooperate, offering to supply the commission with documents essential to answering that big question. Well, McQuaid has apparently reconsidered. When the independent commission proved to be a little too independent, the UCI backed off.

McQuaid has now withdrawn the UCI’s support of the commission’s work, after refusing to live up to his promise of cooperation and without having submitted any documents of importance. This past week, the commission ceased operations and the UCI is now embracing the idea of a “Truth and Reconciliation” commission as an alternative.

Look, I’m not sure reconciliation is possible at this point, but I’d be willing to concede that it might be. I am quite certain, however, that the whole “truth” thing isn’t, at least as long as we have the same people in charge of the same things in this sport.

McQuaid needs to step back. Verbruggen just needs to go away. We need a new guy in charge of cycling and – despite it being a joke the first time I floated the idea – I think that guy is Dick Pound.

Aside from doping, Pound probably doesn’t know a helluva lot about cycling. His athletic career involved swimming, a sport in which he represented Canada at the 1960 Olympics. That doesn’t bother me one bit, either. We don’t need a cycling insider to take over this sport right now. What we need is someone who has no vested interest in cycling; someone who doesn’t shudder at the thought of what exposing closeted skeletons will do to friends and associates or whether the truth will be – and lordy I hate this line – “bad for cycling.”

Since the Armstrong debacle, Pound has gone as far to suggest that, if UCI muckity-mucks were in any way complicit in covering up doping, the governing body should be stripped of its Olympic charter. He’s right. The alternative is complete and comprehensive reform and I can’t think of anyone more qualified to oversee that reform than Dick Pound himself.

Love him or hate him, Pound’s tenure as president of WADA and his continued presence on that organization’s board, has proven that his is a take-no-prisoners approach. Pound, if anyone, has proven his independence. It’s something we need right now. If we can’t do an independent commission, let’s take a shot at independent leadership.

I can’t think of anyone better to shake things up for a year or two and then hand the sport back to the “experts.” Right now, at this critical moment, we don’t need a former racer or a former team director to change the face of cycling. What we need is an obnoxious, in-your-face, SOB, who isn’t afraid to step on toes or to make enemies. What we need is someone whose independence is proven. What we need is someone who can put this sport back on the road. We need to put Dick Pound in charge of that effort.

I was kidding the first time. This time I’m serious.
– Charles

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

The Explainer: The flight of the Ghibli

Dear Explainer,
I think you will be happy to get a question that doesn’t deal with the “big” story in cycling these days, so I want to offer you a chance to do that.

Sadly, my question involves an SOB of another sort, namely the airline I recently used.

I don’t do a lot of competitions outside of driving distance and I was excited to get a chance to compete in Europe this year. I packed my Cervélo P5 in the box it came in and then got a specially made plastic container for my wheels, including a Ghibli Ultra rear disk and a HED Tri-Spoke up front (yeah, I admit it, I am a geek). I had a great time and packed everything the same way I did for the trip over.

Anyway, when I got back to JFK airport, I picked up my luggage and my bike and then waited for the wheels. I waited and waited and then went to the baggage office to check. They had them there, but the box with the wheels was completely trashed. I’m sure you can imagine my reaction when I saw it and when I opened it, I freaked. The wheel box trashed. The top was open and there was a four-inch horizontal hole on both sides of the disc and my front wheel had one of its blades shattered. I have no idea what happened. Looking at my receipts, I have more than $5000 in damaged wheels.

I immediately notified the attendant and asked for a claim form. The baggage “service” guy said 1) that none of their equipment could have caused that particular damage, 2) that part of the problem is that I didn’t pack them well enough and 3) their “contract” limits damages to $3300.

They offered to refund my baggage charges, but are still “investigating” the rest of my claim.

It’s been two weeks and I haven’t heard a word. WTF do I do now?
– Richard

Dear Richard,
In the words of a former president, “I feel your pain.” Actually, I can’t, since I would still be hard-pressed to put together an amazing time trial machine like that … so I guess I can only imagine your pain.

But I digress.

Let’s start with the damages limit. The agent was referring to the airline’s “contract of carriage,” which is essentially the air transport industry’s version of the End User License Agreement (EULA) that comes with every piece of software you’ve ever bought. Why the comparison? Well, because nobody reads those either.

The problem is that the contract of carriage usually includes a liability cap when it comes to lost or damaged luggage. A quick survey of three such contracts – United, Southwest and American – shows they all top out at the aforementioned $3300. The airlines do offer you the opportunity to purchase additional coverage (generally up to $5000) for each item, but it’s something you have to ask for. I do not believe – even when you check a clearly pricey item like a Cervélo P5 or wheels like yours – that the duty to offer additional coverage falls to the airline.

One other common theme that emerges from these contracts of carriage is that all of the airlines make a point of saying something along these lines:

United is not liable for property that has been lost or damaged due to security screening requirements. The Transportation Security Administration (TSA) assumes responsibility for security at airports. TSA is responsible for reviewing all claims relating to the screening of passengers and their baggage and, with limited exceptions, will determine whether claims should be paid and in what amount. In order to protect your rights, you must file a written claim with TSA and you should call the TSA Consumer Hotline at 1-866-289-9673 for assistance.

That’s important largely in that if the airline successfully argues that the damage to those wheels occurred while they – and other passengers’ luggage – were being screened by the TSA, they can avoid any liability. Just to make sure, go ahead and contact the TSA at that number and file the same claim with them. In other words, cover all of your bases.

I am a little concerned about the baggage agent’s claim that you didn’t pack your items well enough. I’ve seen bike-wheel-specific carriers and those are generally pretty secure. Indeed, from the sounds of it, someone would almost have had to ram a forklift fork through the thing to do the damage you described.

If you haven’t already done so, take pictures of everything and zoom in on the damaged portions so that you can offer detailed evidence of the damage and of the way you packed it.

The two-week wait you mentioned is annoying, to be sure, but it’s still a reasonable amount of time. I would make a pain of myself and maintain regular and polite (you know, keep it classy) contact with the airline’s claims department.

If they reject your claim or if they offer to pay less than the maximum, check to see if they have a built-in appeals process. If they do, use it. If they offer to pay you up to their liability cap, you have to make a decision. Do you accept the check and, therefore, waive any further claims, or do you take them on in court.

To start, do a bit of research and see if there are other suits pending out there. Several airlines have had to fend off individual and class action suits for poorly handled luggage and badly handled customer “service.”

I smiled when you mentioned that the airline offered to refund your baggage fee before doing a review of your claim. I’m not entirely sure, but that may stem from a 2010 lawsuit against American Airlines, which was sued for $5 million by a passenger whose luggage was lost and the airline took its sweet time in compensating her for her loss. To add insult to injury, the airline also refused to refund her a $25 “checked baggage fee,” even though the fee is purportedly to ensure the timely delivery of that baggage. No, I don’t think she won, but it may have left an impression on that and other airlines.

By the way, that particular suit noted that upwards of 2400 pieces of luggage handled by American are lost or damaged every single day.

It’s that level of mishandling that triggered a 2007 class action lawsuit against British Airways, when 13 plaintiffs sued the airline on behalf of themselves and any other passenger who flew an international BA flight between September 2005 and September 2007 and whose luggage was either “lost, damaged or delayed.”

The plaintiffs were able to offer evidence that the airline had been “inexcusably reckless” with their luggage. The airline took the claims seriously and moved quickly to settle, but with only the 13 original plaintiffs, heading off a class action suit that one can only imagine would have included tens or even hundreds of thousands of potential claimants. The details of the settlement are confidential, but you have to bet it was pretty hefty to stave off that potential disaster.

I raise those largely to encourage you to look around and see if there are other, similar suits brewing against the airline you used. If so, do your best to get in on it and get your damaged wheels fully covered in the process. Yes, it will take time, but it could be worth the trouble.

Keep in mind that a suit like that will probably be contested on a contingency basis, meaning that you will have to pay a significant portion (between 30 and 40 percent) of the settlement to the attorney handling the case, as well as your share of expenses.

If you find that your only option is to file suit on your own, it’s likely that you will have to hire an attorney with money up front and that ain’t cheap. If you end up fighting over the difference in value between your wheels ($5000) and the liability cap ($3300), it’s probably not worth enlisting a pricey attorney to do battle over the $1700 difference.

Still, before you accept any settlement offer, check in with an attorney to go over your options. Often, that initial consultation is free and the lawyer may offer suggestions to boost your settlement. (I’m going to go out on a limb here and guess that a guy with a $6000 bike and $5000 wheels is not going to qualify for your local legal aid society, but the rest of you can always consider that option.)

It may be that if you are able to show the airline was – as in the British Airways case – inexcusably reckless, you might be able to sue for punitive damages in addition to your underlying economic damages claim. It would be a tough case to make, but as the BA case showed, it is doable. No matter what, though, it will take time.

The bottom line, though, is that you should think about any offer they make before accepting it. Don’t just take the money and run, without realizing that you’re waiving your right to any further claims regarding these damaged wheels.

Good luck and let me know how things turn out.
– Charles

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

The Explainer: First, the Road to Recovery and now the Road to Redemption?

 

Tempting as it might have been, my good friend Patrick O’Grady and I decided not to crank up LiveUpdateGuy.com and offer up a running commentary during the “Worldwide Exclusive” on Oprah these past two nights.

“Why bother?” the sage from Bibleburg asked.

It would have been fun, but mostly because it would have afforded both of us the opportunity to catch up with the group of regulars, who have come to call themselves “LUG nuts.” That’s a bit of shorthand for that little community that comes together during the grand tours for a combination of race reporting, thumbnail sketches of local history, haiku and a healthy dose of snark.

For a race, it’s a nice little place to field questions, offer observations and commentary and – if the occasion warrants – rude descriptions of people who take themselves way too @#$%ing seriously. But to devote two evenings to one of that latter group? Nahhhhh.

O’Grady was right. Why bother, indeed. Dinner, a nice Cabernet and even sleep were each a better option.

Instead, I took a pass, catching up on video of the interview and others’ observations in those quiet, early morning hours that have become my favorite time of the day. So, yeah, I ended up watching the entire thing, but not in real time.

To be honest, there is something rather liberating about no longer being obligated to report on the “Lance story” with anything resembling a sense of urgency these days.

What interested me more than the interview, though, were the reactions from those I respect … and those I do not.

Reactions I wanted to hear

On Friday, I woke up in time to catch the Sunday Times’ David Walsh on the BBC, offering a mixed reaction to Part I of the interview. David was making the rounds, doing his seventh or eighth interview of the day and beginning to lose his voice.

His were opinions I wanted to hear. David brought a healthy dose of skepticism with him to the 1999 Tour de France. He left with a high degree of certainty, offended both by the arrogance of a drug cheat who could lie without flinching and the apparent unwillingness of the sport’s authorities to do anything about it. It was especially painful in light of the fact that we were there reporting on the first “Post-Festina” Tour. 1999 was supposed to be the start of a new chapter in cycling. Unfortunately, it was … but for all the wrong reasons.

What I admired – and still admire – about Walsh is that he stuck to his guns. Even when shunned by teams, riders and, yes, even friends and colleagues, he did his damnedest to get at the truth. The man that the Armstrong camp constantly referred to as “the f#cking troll,” finally saw the target of his efforts concede that he had been right all along.

“Do I feel vindicated? I will be honest and say no,” Walsh said. “Vindication comes when you are challenged by many people and you need other people to say you were right. I hope this doesn’t sound arrogant, but I never needed other people to say I was right.

“I’m glad it came out but I never needed that to know that Lance Armstrong was involved in doping in ’99 … and every time subsequently since that time.”

Walsh did appreciate that it was Armstrong himself publicly acknowledging that he had cheated, but he remained deeply offended by the interview subject’s unwillingness to concede, for example, that Betsy and Frankie Andreu have been telling the truth for more than a decade.

When asked about the now-infamous 1996 “hospital incident,” in which he confessed to using a veritable pharmacopeia of substances in the years preceding his cancer, Armstrong demurred, saying he simply didn’t “want to go there.”

Armstrong revealed to Oprah that he had tried to make amends in a call to the Andreus’ home days before the interview. When asked if things were “good” with his former teammate and his wife, Armstrong acknowledged that he has a long way to go before that will happen.

“They’ve been hurt too badly and a 40-minute conversation isn’t enough,” Armstrong said with heart-tugging sincerity.

Then, much like the Alien bursting out of Executive Officer Kane’s chest, the old Armstrong suddenly reared its ugly head.

“I think she’d be okay with me saying this,” Armstrong incorrectly assumed, “but I am going to take the liberty to say this and I said ‘listen, I called you crazy and I called you a bitch. I called you all these things, but I never called you fat.”

WTF?

Why Oprah didn’t just lean over and slap him across the face right then and there shall forever remain a mystery to me.

Meanwhile, Betsy, a guest on Anderson Cooper’s 360 program on CNN, was floored. Her emotional reaction didn’t flare up because of that feeble and dismissive attempt at humor. Hers was an honest, heart-felt response to more than a decade of abuse heaped upon her, her husband and his career.

Betsy is still pissed and, dammit, she deserves to be.

So, too, is Emma O’Reilly, who, after speaking to Walsh about doping on Postal, was characterized by Armstrong as an alcoholic and a whore and then sued.

“She’s one of these people that I have to apologize to,” Armstrong acknowledged. “She’s one of these people who got run over, who got bullied.”

Please, note the use of the passive voice here. It’s akin to “mistakes we made,” not “I made a mistake.” Emma O’Reilly was “one of these people who got run over, who got bullied,” not “I made that poor woman’s life a living hell.”

In O’Reilly’s case, a big part of that bullying came in the form of Armstrong’s weapon of choice, the lawsuit. Indeed, it was something he so commonly used, he had to hesitate when asked if he had filed one against the former Postal soigneur.

“To be honest Oprah we sued so many people,” he said, finally abandoning the passive,  ”… I’m sure we did.”

He did.

That he forgot whether or not he had sued  a financially challenged young woman, simply for telling the truth, underscores the callousness with which he approached the question. Rest assured, anyone in O’Reilly’s shoes being sued for libel by a millionaire sports figure, backed by a cadre of high-priced lawyers, would have no trouble remembering the experience. But for the fact that there many more examples, that answer and that answer alone demonstrated how little real regard he had for the people to whom he was “apologizing.” Contrite as he tried to appear, this guy really didn’t – and still doesn’t – give a shit.

Salle de Presse

Virtually anyone who has written about cycling at any point in their journalism career has weighed in on this one by now. Some of them I truly enjoyed, a list topped out by Bonnie Ford’s insightful and thoughtful ESPN column “Still moving reflexively in the rubble.”

Ford has followed this silly-assed story since 2000 and is among the most insightful in the American press corps. She is, by any measure, the best ESPN has to offer.

If you shift your attention to the other end of the qualitative spectrum, however, you hit Ford’s fellow ESPN columnist, Rick Reilly.

This week, Reilly’s column started with an email from Armstrong.

Riles, I’m sorry.
All I can say for now but also the most heartfelt thing too. Two very important words.
L

And my first thought was … “Two words? That’s it?”
Two words? For 14 years of defending a man? And in the end, being made to look like a chump?

No, Mr. Reilly, you looked like a chump long before we got to “the end.”

Reilly and a parade of others, including Sally Jenkins at the Washington Post, former pro John Eustice, the TV guys, Phil, Paul, Bob and, sadly, even an old friend and colleague with whom I’ve traveled and covered races, had to know. They chose to ignore the truth, denied the doping and, more importantly, stood by with hands in pockets while the bullying was going on.

They were the enablers who allowed a sociopath to run rampant through this beautiful sport for more than a decade, all the while inflicting incalculable damage on a group of fundamentally honest and decent people.

What I wish were final thoughts

So what are we to conclude from the two-night confessional? To start, for all of the criticism offered after the announcement of Armstrong’s choice of venue, I have to say that Ms. Winfrey did a pretty reasonable job. She did her homework, noting that she had read the reasoned decision and “all of David Walsh’s books” in preparation. Her questions were solid and based on allegations and incidents that a well-informed observer would raise. Her only failure was not to aggressively pursue those questions when the answer proved evasive. All-in-all, she did a good job and probably got more out of the guy than would a three-member panel composed of Walsh, Andreu and O’Reilly.

Personally, I came away from it pretty much how I thought I might: A little amazed at the fact that the guy was actually admitting to things he’d been denying throughout his entire career; damn sure that he’s not telling the whole story, carefully calculating what he does say and, finally, the feeling that all of us were somehow being manipulated into the start of a new and concerted PR campaign.

The Oprah interview seemed to be a calculated kick-off to the sequel to Armstrong’s original “Road to Recovery,” when he returned to cycling from cancer. Now, we’ve been duly primed and ready to follow this newly contrite messiah on the “Road to Redemption.”

Enough already.

Armstrong said he would like to open up and cooperate with USADA or a “truth and reconciliation” commission in cycling. Following the first interview, USADA’s Travis Tygart released a statement that he would like to have Armstrong testify … “under oath.”

I would enjoy that and it could go a long way to cleaning up the sport, especially if he opens up about the UCI’s role in all of this. Still, one of Armstrong’s not-so-secret motives in all of this is to reverse what he called “the death penalty,” a life-time ban from any sport that operates under the WADA Code. “Death penalty,” seems a somewhat hyperbolic characterization of a life-time ban from competition, but given the nature of the offenses, killing off this career seems fair.

Unfair?

I have my opinion, folks. I welcome yours.
– Charles

The Explainer: Are supplements worth the risk?

Dear Explainer,
You’ve written a lot about doping rules, but I am still a little unclear about the term “strict liability,” when it comes to one kind of violation.

The reason I ask is that I am resuming training after a two-year layoff (because of a new baby) and part of my program includes a lot of food supplements and occasional energy drinks. I know that riders in the past have been convicted of doping even when they make the case that their violation was a result of an accident. I am not sure that it’s even possible to avoid the risk of consuming a contaminated supplement, when you consider the places that make these things.

What bothers me is that I risk two years off the bike again – this time because of suspension – through no fault of my own. Is that fair?
– Aimee

Dear Aimee,
I have stirred this hornets’ nest before, so what the heck. My first advice is to avoid using those “food supplements and energy drinks” and speak with a qualified coach, or more precisely, a nutritionist who can guide you through a maze of questions about how you can achieve the same results with actual food.

I think it was two or three years ago when I wrote about “tainted” supplements and the “unregulated” industry that produces them. A representative of that industry did set me straight in pointing out that the U.S. Food and Drug Administration does hold regulatory authority over the supplement industry, particularly under the provisions of the Dietary Supplement Health and Education Act of 1994 (DSHEA). The DSHEA authorizes the FDA to take action “against any unsafe dietary supplement product after it reaches the market.”

Food supplement manufacturers are also responsible for compliance with Dietary Supplement Current Good Manufacturing Practices, comply with labeling requirements and report to the FDA any “adverse events” that are associated with use of the product.

What manufacturers do not need to do, however, is register products with the FDA or get FDA approval for those products before bringing them to market.

In other words, it’s a regulatory framework that, in my mind at least, conjures images of barn doors and long-gone horses.

It’s for those reasons that I continue to hold the opinion that taking dietary supplements – especially if you are an athlete subject to the provisions of the World Anti-Doping Code – is a risky proposition.

As you mentioned, there are several cases involving athletes who apparently unknowingly consumed banned substances while under the impression they were merely taking supplements or perfectly legal energy products.

The three that come to mind right away are USADA v. Moninger, USADA v. Neben and the CAS appeal, Oliveira v. USADA.

Now retired, Scott Moninger tested positive for norandrosterone in 2002. Upon learning of the result, Moninger forwarded his opened bottle of “Doctor’s Brand L-Tyrosine,” – an amino acid supplement – to an independent laboratory, which found that 19-norandosterone was present in the bottle. Tests on other, sealed, bottles showed no sign of contamination.

While the panel did not fully accept the argument that the supplement was the cause of the positive test, they did consider that and other evidence – Moninger’s unsullied 21-year cycling career and character testimony from other riders – as mitigating factors and imposed a one-year, as opposed to two-year, suspension.

The following year, Amber Neben tested positive for 19-norandosterone – although at significantly lower levels – and was suspended for six months.

In 2009, Brazilian rider Flavia Oliveira tested positive for Oxilofrine and was suspended for two years. Oliveira appealed to the Court of Arbitration for Sport and was able to show that an energy supplement she used to counter the fatiguing effects of prescription allergy medications was mislabeled and did not mention that it contained the aforementioned banned substance. Nonetheless, she was still suspended for a total of 18 months.

I believe Oliveira has a lawsuit pending against the manufacturer for its failure to list all ingredients on its label.

It’s important to note that all three of these decisions were based on critical language in World Anti-Doping Code:

“It is each athlete’s personal duty to ensure that no prohibited substance enters his/her body. Athletes are responsible for any prohibited substance or its metabolites or markers found to be present in their bodily specimens.”

That is the “strict liability” language of the Code, since it eliminates the “intent” element of the violation. In other words, an anti-doping agency does not need to show that you intended to consume a banned substance, only that it is present in your body.

To varying degrees, the arbitration and appeals panels are allowed to view a lack of intent as a mitigating factor when considering a penalty, but not when determining whether or not a violation occurred.

So, as to your question, Aimee, I would suggest you do your best to avoid supplements and consult with a nutritionist to determine how your dietary needs can be met with actual food. Yes, I recognize that the FDA has authority over the industry, but all three of the cases I mentioned occurred after the agency was granted that authority.

If you test positive, that “adverse event” may (or may not) warrant the attention of the FDA, but that’s after the fact. You, on the other hand, are stuck with a positive test result, possible grounds for a lawsuit and the job of showing an arbitration panel that there are mitigating circumstances worth considering when they suspend you.

Speaking of mitigating circumstances, as I mentioned, the Code allows for an arbitration panel to consider those when handing out a penalty. Conversely, the panel can also consider aggravating factors and hand down an even harsher penalty, like USADA requested in a high profile case this past summer.

Now why do I mention that? Well, because it brings us to the first-ever edition of the The RKP TV Guide!

Yes, ladies and germs’, the story that will not die is still out there. So, for the television event of the … uhhh … moment, check out the anticipated confessional on a special broadcast of Oprah, this coming Thursday at 9:00 p.m. Eastern time in the U.S.

Are you going to watch? I would like to say I won’t … but, like a train wreck happening right in front of you, it may be hard to turn your head.

As for the content of this television spectacular, your guess is as good as mine.

As one friend and colleague recently posted on her Facebook page, “Please make it stop.”
– Charles

The Explainer: Broken promises, a potential confession and cheap advice

Dear Readers,
Happy New Year to all of you. I’m going to use this week’s column to catch up on a few things and, hopefully, do my part to drive a stake into that one story that just won’t die.

First off, I hope that you’re able to get through at least the first week of 2013 without breaking any of your resolutions.

Sadly, I guess I already have. Out here in the high prairie of Wyoming, it’s just been too dang cold to get in “at least a short ride every day of the year.” I have two beautiful touring bikes in the garage, just waiting to be tested for a magazine article, but Laramie streets are covered in ice and temperatures have consistently stayed below zero (and yeah, we’re talking Fahrenheit here) since I put that new calendar on the wall.

Well, at least the wind isn’t blowing. (Yeah, just wait, Pelkey.)

I have other excuses on tap, too. Late last year, two other lawyers and I got motivated to go out on our own and, as of January 1, the firm of Neubauer, Pelkey and Goldfinger, LLP, officially opened its doors, just a block from the county courthouse. We’ll see how that goes.

Cheap advice I
I also want to mention again that I welcome readers’ question on a variety of subjects. Looking through old “Explainers” here at RKP and over at VeloNews, the collection includes columns on everything ranging from B.S. sales pitches by the manufacturers of supplements to bike racing near the front in World War II to questions about bounced checks from race promoters to the very first guy to have his Tour de France title stripped.

Seriously, if you do have a question that you’d like to see addressed in this column, feel free to send an email to my personal address at Charles@Pelkey.com.

“The Explainer” was originally intended to serve as a quick way to answer common questions during the Tour de France and other major races. It’s kinda morphed into something else, but I do look forward to addressing your questions.

I admit that we’ve gotten distracted along the way, particularly in light of the news that came out this fall from USADA about that one guy from Texas.

Oh yeah, that reminds me … the aforementioned story that simply will not die.

Cheap Advice II
The Twitterverse is all abuzz this morning with news that one Lance Edward Armstrong is now poised to confess to the world that he had, indeed, used performance-enhancing drugs.

Gee. What next? I hear Kareem Abdul-Jabbar is finally going to admit that he’s rather tall, too.

Who cares?

According to the New York Times’ Juliet Macur, Armstrong’s thinking is that he might just get that life-time ban reduced to the point where he could actually think about competing in triathlon and other sports before his AARP membership kicks in.

In other words, there won’t be an ounce of contrition in that heartfelt confessional from Saint Lance. If it happens, it will be done for the most self-serving of reasons.

Look, if I wanted to hear stories about your cheating, Mr. Armstrong, I’d listen to the people who have been telling the truth since 1999. I’d talk to David Walsh, Emma O’Reilly, Betsy Andreu, Greg LeMond (the only American to ever win the Tour de France, by the way) or good ol’ Bob Hammon, who runs SCA and is looking to get a few million back from ya. I really don’t need your spin on the subject anymore.

Seriously, Lance, just walk away. Settle your lawsuits; pay off your lawyers; hell, you might even get that crack legal team of yours to work a plea deal on a potential perjury charge. Then get the @#$% outta here.

You’ll still have tens of millions in the bank. When all’s said and done, you’ll have  a pretty good life … unless it’s the attention you want. Look, you’re a rich guy. Go do what you say you do on your Twitter page and focus on “raising my 5 kids.” Like your former sponsor said, “Just do it.”

I don’t care if you confess, but please, just go away. Move on. More importantly, let the sport move on. Racing fans, riders and yes, even cancer patients … really, we’ll all be just fine without you.

Really.

It’s over, man.
– 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.

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