The Teachable Moment

We’re more than a third of the way through the racing season and only last week did we experience what I consider to be a truly important day of bike racing, one worth remembering. The race in question was stage 5 of the Amgen Tour of California. A few different things happened that day, notable things, things that might teach us a lesson or two.

The first detail from the stage worth recalling was that a group of riders went to the front and waited, waited for a stiff headwind to shift to a crosswind. And when the turn came that shifted the wind 90 degrees or so, they hit the afterburners. The mayhem that caused further back in the pack held me breathless the way the last 5k of any Paris-Roubaix does. I kept waiting for someone to take over, some team to get organized, someone to make an effort that causes us to evoke all those phrases of machine-assisted work: drilled it, laid down the wood, gunned it, hit the jets. You get the idea.

And the move, the move we expected to come from race leader Janier Acevedo’s Jamis-Hagens Berman team—we certainly didn’t expect the bantam-weight climber to do the work himself—well, it never came. There’s been a lot of speculation that the lack of race radios and the resulting choke on extra-peloton communication was the deciding factor. Had Acevedo been on a Colombian team surrounded by like-abilitied teammates, the more likely answer would be that they simply didn’t have the fire power necessary to close the gap. But considering the number of first-rate domestic pros on the squad which includes guys like Ben Jacques-Maynes, you begin to wonder if perhaps they weren’t hiding in the pack and saving their matches for bigger fireworks to come. It’s the rare team that can police the front of a race for five or six days.

Would have a race radio changed matters? Very likely. The commissars will report who is at the front of the peloton and the fact that BMC was massing at the front is the sort of thing that usually gets communicated. Had they had race radios, the Jamis-Hagens Berman team would likely have made their way forward in the pack before the split occurred, or at least before the situation became completely irreversible. The result? We got real racing that day and the GC changed some place other than a time trial or mountain.

How refreshing.

That group that got away included the oldest guy in the race, the oldest on a big team, easily the fastest guy over 40, Jens Voigt. His attack and subsequent solo effort were terrific fun to watch. It gave us a storyline we like: Guy everyone likes wins bike race. Bike fans go home or turn off the TV feeling satisfied.

Jens Voigt is the Chuck Norris of cycling. He’s old enough to be the father of some neo-pros; he’s tougher than gristle; he’s fast as email; and he’s fertile as the Mississippi delta. Who wouldn’t want to be all that?

But Voigt is also an East German who rode for Bjarne Riis at CSC in the mid 2000s and won some notable races; it’s hard to conclude that he’s always been a clean rider. Did he dope his entire career? I doubt it. I’d be willing to believe that he was clean in ’97 while he raced for the Australian Institute for Sport. Was he clean while on GAN from ’98 to ’03? That seems a little less likely. He won the Criterium Internationale in ’99. The problem we’ve had with doping is that while not everyone did it, those who won with any regularity have mostly been demonstrated to have doped.

What about his years at CSC—’04 to ’10? He won the Deutschland Tour twice, the Tour Mediterranean once and the Criterium Internationale four (4!) more times.

Do I think he has always ridden clean? No. Is Voigt clean today? Maybe. Maybe even probably. It’s worth adding that Voigt is a great example of how liking a rider may blind us to unsettling questions about a rider’s success during a particularly dirty period in the sport’s history. Voigt is the perfect example of a rider whose likely former doping we would prefer not to contemplate. It’s too messy, too ugly a thing to unpack. It’s perhaps the best argument for why all the riders from that generation should retire. It’s easier not to deal with it. We like him and if he retires with no confession in place, we can keep one of the final, remaining façades up.

I put that idea forward because what ought to happen—a full, unexpurgated history of who used what, when—grows increasingly unlikely with the prospect of McQuaid continuing as UCI president. And because the UCI is too compromised to be trusted, Voigt remains a nagging question mark. This is where a truth and reconciliation commission could really help, but I don’t think we’re going to get that unless McQuaid stipulates that anything revealed about Hein Verbruggen and him includes amnesty. And McQuaid doesn’t deserve it.

I believe that riders who have doped ought to afford the same opportunity for rehabilitation as other professionals who have broken rules. They do their time and then they return to their profession. We may not like it, but we’ve put a system of justice in place we profess to support. I’ll also add that I don’t have a problem with a four-year suspension for a first offense, but I think societies need to be able to show compassion and forgiveness and lifetime bans should only be warranted in extreme circumstances.

But this not knowing gnaws at me. It eats at my enjoyment of the sport.

Which brings me to the ultimate winner of the Amgen Tour of California, Tejay van Garderen. Van Garderen is of a generation of American cyclists who have been outspoken about drug-free racing. They speak in a way that suggests credibility and ethical behavior.

Here again, the UCI’s credibility is so undermined that it’s hard to celebrate van Garderen to the degree he deserves. I believe he’s a clean rider, but I don’t trust the system and that leaves a mild stain on him. I’d like a report issued once a month by Michael Ashenden in which he spells out who he has every confidence is clean and which riders are under suspicion. Van Garderen deserves better than what he’s getting. He’s a once-in-a-generation talent, and likely the next guy who could induce another bike boom in the U.S. But the moment people suggest he’s the next big thing for American cycling, he’ll be compared to Armstrong, which will cause him to be painted with the same doper brush, which is why it’s so important that if this guy is as clean as I think he is, we need solid proof to convince what will be a rightfully skeptical world.

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 2012 RKP End-of-Year Awards

The Facebooks and Twitters have been full of apocalyptic references thanks to the easily anticipated fail of the Mayan end-of-the-world prediction. Laughing off the prediction of a 5000-year-old calendar created by a long-extinct people seems easy enough until you think about what cycling has been through this year. Had anyone told me this time last year that Lance Armstrong would be utterly disgraced and bereft of all sponsorship to the point of being dumped by his own eponymous foundation, I’d have laughed until I threw up. Similarly, if you’d told me that half the pro continental cycling teams in the U.S. would be without sponsors for 2013, I’d have laughed, though maybe not to the point of the technicolor yawn. And if you’d told me that there was a revolutionary movement afoot to topple the UCI and replace Pat McQuaid and Hein Verbruggen with people of actual moral fiber, I’d have asked you just which drugs you were taking—and if you’d be willing to share them with me. For cycling, at least, it does seem a bit like end times.

The reality is, this is a year unlike any other the sport of cycling has ever faced. The news has been more bad than good this year, so this year’s awards may have more snark than praise. Herewith are a few things we think are worth remembering. And for good measure, this time around, we’ve asked Patrick O’Grady to sit in with our band.

Padraig’s List—

News of the decade: Even though this one isn’t over, not by a longshot, I think we can call this one now—the actual fall of Lance Armstrong. Not only does most of the rational world believe he doped—a conclusion I didn’t think we’d ever get most folks to reach—sponsors have run from him like cute girls from a leper colony. I had an easier time getting a date in eighth grade than he does finding a sponsor today. That his own foundation wouldn’t shake hands with him with rubber gloves says a lot about how badly everyone wants to distance themselves from him, that is, excepting Johan Bruyneel, Chechu Rubiera and a few other pros who don’t understand that most people see doping the way they see racism—completely unacceptable.

Most believable Grand Tour winner: Ryder Hesjedal. I don’t care what Bradley Wiggins says about how he hates dopers or how the fact that he’s not as fast as Armstrong was proves he isn’t a doper. The fact that he won stage races in March, April, May and June before winning the Tour and then revving up once more to take the ITT at the Olympic Games smells as bad as one of my son’s used diapers. I’m not going to accuse him of doping, but if the press are going to be held to a standard of expectation that we’ll speak up when we’re suspicious, well, then I have to say that Wiggins’ never-before-performed season is highly suspicious. Even Eddy Merckx never swept Paris-Nice, the Tour of Romandie, the Criterium du Dauphine and the Tour in the same year. Hesjedal, on the other hand, was vulnerable in the Giro. His win was not the inevitable outcome that sucked the life out of watching this year’s Tour. He’s been riding for a team that I have the utmost belief in as a clean program; while I believe that cycling is probably the cleanest it has ever been, I think Garmin-Sharp has taken the best, most transparent approach to demonstrating their team is clean. Hesjedal, as a product of that team, has earned my respect and admiration.

Most clueless person in cycling: This one’s a tie between Pat McQuaid and his predecessor Hein Verbruggen. I liken them to the small-town mayors in the Southern states when the civil rights legislation was enacted. Those old boys fought integration for any number of spurious reasons, but the biggest problem with them wasn’t that they couldn’t come up with a solid, objective reason to fight equal rights for all people, it was that they failed to see how public opinion had evolved and, like those who now fight gay marriage, how their opinions were coming down on the wrong side of history. Verbruggen lost any credibility as a leader and even as an administrator once he proclaimed that it was the fans’ fault that doping had taken root, that because we wanted to see fast racing the fans had forced the riders to dope. Their mudslinging agains Floyd Landis and Tyler Hamilton in the wake of those two deciding to finally tell the truth, the whole truth and nothing but the truth, is shameful on the level of scoutmaster sex abuse. Those two can’t go quickly enough.

Best new piece of gear: I can’t not give this to Shimano for the new Dura-Ace 9000. While my full review will come in the next few weeks, let me say that this group is what we hoped for when 7900 came out a few years ago. It’s a group of such magnificent improvement it reminds me of what I thought when I first heard Metallica’s Black Album: How did I ever live without this?

Biggest mistake award: For this one we have to go back to Armstrong. If he had just been willing to set aside his ire with Floyd Landis and give him a spot on RadioShack, his life would be very different right now. I’m not bemoaning our current situation, but come on, there must have been an epic, “D’oh!” in the shower one morning.

The Commander Omertà award: This one goes to Patrick Lefevre for thanking Levi Leipheimer for confessing his previous doping by firing him. If anyone could have sent a more convincing message to the peloton to shut up, I can’t think who could have accomplished that. ‘Shh, don’t tell mom about the pot brownies.’ I’d pay money to have Lefevre retire the day we put McQuaid and Verbruggen out to pasture so that I could hold a Stevil Kinevil-style party. Hell, I’d hire Stevil to run the thing.

The JFK-style Conspiracy Theorist award: This goes to everyone who is unwilling to believe that Levi Leipheimer, David Zabriskie, et al, told the full truth about their doping. Given that Leipheimer didn’t know what Hamilton, Zabriskie or any of the other riders who were ordered to testify before the grand jury would say, not telling the full truth about their involvement in doping was incredibly risky. If any of them were caught in a lie, they’d face prosecution for perjury and those agreements for reduced suspensions would be unwound. The pressure to be truthful was enormous. We should all be willing to take them at their word in this regard. Besides, so far as USADA and USA Cycling are concerned, this matter has been put to rest. You can second-guess it all you want, but you’re not going to get any new answers. Best just to move on.

Most Disappointing Win: Alexander Vinokourov at the Olympic road race. Based on his statements in the media, he has neither fully confessed nor repented his sins. He harks from a generation and mindset we need behind us. His victory salute was a reminder that even if he was clean on that day, the sport needs to be ever-vigilant in its quest for clean(er) cycling. My lack of confidence that he could/would win clean is the doubt that currently undermines my love for professional cycling. This would be why Vino also gets my Most Relief-Inducing Retirement Award.

Best line in a product introduction: Back in October at the introduction of Giro’s new line of clothing we were told how it was meant to pay homage to a new direction in cycling. Giro’s PR guru, Mark Riedy, uttered the line, “No more heroes.” ‘Nuff said.

 Robot’s List—

The One Fingered Salute Award – Peter Sagan. The grown ups tend not to like it so well when some young whipper-snapper gets above his raising and makes them look foolish. The effect is only exacerbated when the whipper-snapper in question does it day after day after day and with increasingly audacious celebratory flourishes. Thus it was that Sagan more or less made the Tours of both California and Switzerland his bitches, while the grown ups flogged away at their pedals somewhere behind in his dusty trail. More than anything, the shy (off the bike) Slovak announced that not only was he not intimidated in the deep end of pro racing, but that he was capable of much more, that his raw power and top-end speed were wed to a racer’s brain far more mature than his youth would suggest.

The All Business Award – Tom Boonen. When I think of Tom Boonen, I have a hard time not thinking about cocaine and under-age super models. Just as a tornado will destroy the homes of both the rich and the poor indiscriminately, Tornado Tom’s approach to his career has created as much damage off the road as on it. But in 2012, the Belgian veteran was all business and all class, owning the cobbled Classics and inching his way one step closer to the record books in a Spring campaign that left the whole racing world with their mouths slightly agape.

The No Business Award – The Schleck Brothers. Luxembourg’s favorite family act must have broken a mirror while walking under a ladder placed by a darkly furred feline carpenter, because 2012 couldn’t have gone much worse for them. Chained to the sinking barge of the RadioShack-Nissan-Trek team, there was the early season set to with Johann Bruyneel (remember that guy?), a fractious start to an uncertain partnership, which saw both Andy and his brother Franck underperforming in every race they entered. Eventually Andy was injured in a seemingly innocuous crash and Franck got popped for doping.

The Other Shoe Award – Bjarne Riis. In a season when it seemed to be raining shoes, the painfully serious Dane’s reputation has been called into question more often than an Italian Prime Minister’s. Having confessed to doping during his own racing career, there remain serious allegations that he also facilitated doping in his teams as a manager. Tyler Hamilton says he did. Bobby Julich says he didn’t. It seems that, in pro cycling, where there’s smoke now, there was fire a decade ago. Riis’ persistence should really be seen as the test case for what cycling wants to do with its doping past. Will the worst offenders of the ’90s find a future in the sport? Julich’s own fate (fired by Team Sky) suggests one possible answer, but when/if the other shoe drops for Riis will tell us for certain.

Charles’ List—

The Most Sleep-inducing Grand Tour: Yeah, I know. Many of my British friends will believe it’s sacrilege to suggest that the first Tour de France to see a Brit’ atop the podium in Paris would rank as the most boring of this year’s grand tours. It was more than that. It was one of the most boring Tours in history. Come on ASO, three mountain-top finishes? Thankfully, this year also offered us the Giro and Ryder Hesjedal’s surprising and impressive win over Joaquim Rodríguez and the Vuelta’s three-way battle between Rodríguez, Alberto Contador and Alejandro Valverde. Here’s hoping that in 2013 the “world’s greatest bicycle race” lives up to that designation.

Most well-deserved victory lap: It’s clear that most agree that the implosion of Lance Armstrong is the cycling story of the year — or as Padraig points out, the story of the decade. It’s hard to disagree, but it’s important to point out that this was far from a new story. It’s a story that Sunday Times of London journalist David Walsh has been telling since 1999. I know first-hand of Walsh’s skepticism, since I spent the ’99 and ’00 Tours with the tenacious Irishman. It was déjà vu all over again when the USADA “reasoned decision” was delivered to the UCI on October 13, 2012. Sure there was more documentation, but most of the allegations were made years ago, when Walsh and Pierre Ballester co-wrote  ”L.A. Confidentiel: Les secrets de Lance Armstrong” in 2004. At the time, Walsh was demonized by the Armstrong camp — which labeled him “the F#cking Troll”  — and even shunned by fellow journalists. Well, he who laughs last …. When the report was released and the UCI soon confirmed its conclusions, Walsh teamed up with Paul Kimmage, John Follain and Alex Butler and quickly released ”Lanced: The Shaming of Lance Armstrong,”  on October 31st, and followed that with his own, much more personal story “Seven Deadly Sins: My pursuit of Lance Armstrong,” on December 13. I, for one, hope that “Seven Deadly Sins,” sells more than the many works of apparent fiction shilled to an unsuspecting public by writers who should have known better. Maybe he should change the title to “It’s Not About the Bullshite: The Unmaking of the World’s Greatest Sports Fraud,” eh? Quite frankly, the book should be required reading for anyone hoping to work in sports “journalism.” Without that kind of moral compass; without that tenacity and without that consequences-be-damned attitude, we’re all just – to use an old, sadly accurate term — fans with typewriters. Hats off to the “F#cking Troll.” Enjoy the moment. You deserve it, sir.

Inspiring show of support: In recent years, the aforementioned Pat McQuaid and Hein Verbruggen found that filing lawsuits against critics in a friendly, local court could be an effective tool. They, along with the UCI itself, filed suit against former World Anti-Doping Agency head, Dick Pound, and then against Floyd Landis, after he admitted his own doping and alleged the UCI conspired to cover-up Armstrong’s own infractions. Pound issued a brilliantly word non-apology-apology. Landis pretty much blew them off and lost in a default judgment. Then they went after Paul Kimmage. Ooops. Kimmage decided to put up a fight and he soon got overwhelming support from you, the fans. The folks over at Cyclismas.com and NYVeloCity started promoting the “Paul Kimmage Defense Fund” and readers eventually kicked in more than – get this – $92,000 to help in the fight. Kimmage, laid off from the Sunday Times last year, suddenly had the resources to take on the UCI. And, sure enough, McQuaid, Verbruggen and the UCI, put their suit “on hold.” Kimmage, however, is now pursuing his own case. None of that would have been possible had you, the readers, not stepped up to lend a valuable hand.

 My favorite photo of the year: This one comes from Betsy Andreu, who offered up photographic evidence of Frankie Andreu’s reaction to Tyler Hamilton’s detailed confessional, “The Secret Race.”

A personal favorite: When it comes to my work in cycling, I think the highlight of the year for me was finding out that the unique business model of LiveUpdateGuy.com actually worked. Thank you to all of those readers who offered help and support during our Live Coverage of all three grand tours. Because of your support, we may well be able to offer the same in 2013. Those, of course, will appear right here on Red Kite Prayer, as well.

Patrick the Other—

Donna Summer Memorial Disc-O Dance Party Platinum Rotor Medallion: To the bicycle industry for trying to hang disc brakes on everything from road bikes to stick ponies. I can understand why bike companies want to sell discs —after all, some shameless hucksters will try to sell you a rat’s asshole, telling you it’s a pinhead’s sweatband, a Chris King headset or the One Ring To Rule Them All — but I don’t understand why anyone who isn’t a pro racer with a team mechanic needs discs. And some of them don’t even need ’em (see Sven Nys, Katie Compton, et al.). If I want pointless complexity “enhancing” my cycling I’ll look to the UCI or USA Cycling for it. Speaking of which. …

The Salvatore Palumbo Good People Certificate: This honor traditionally goes to the nefarious criminal organization most hell-bent on kneecapping the sport of bicycle racing (either USA Cycling or the UCI). This year, it’s USA Cycling, which this year tried putting the squeeze on the wildly successful activities of the Oregon Bicycle Racing Association, once again confirming our worst fears — that our national governing body cares as much about grassroots bike racing as did Kid Sally Palumbo, organizer of the six-day bike race immortalized in “The Gang That Couldn’t Shoot Straight,” by Jimmy Breslin. One can practically hear USAC caporegime Kid Stevie Johnson ringing up OBRA executive director Kenji Sugahara to hiss, “You could be dead in a bomb accident.”

The Gov. William J. LePetomane Protecting Our Phony-Baloney Jobs Here Gentlemen Citation for Excellence In Oversight: UCI President Pat McQuaid. I still haven’t gotten a “Harrumph” out of that guy. But what I’d really like is an “Adios.”

Charles Foster Kane Snowglobe of Destiny: Lance Armstrong. As reporter Jerry Thompson said of Citizen Kane, Armstrong was “a man who got everything he wanted and then lost it.” We may never know what his personal Rosebud was, but a sled is a fine thing for going downhill fast, if you don’t mind the bonfire at the bottom, and Armstrong was not the first to build his Xanadu from a drug-induced dream.

 

The Explainer: Can reform begin at home?

Dear readers,
As we approach the end of what has been a momentous year for cycling, a lot of us are left wondering where the sport goes from here.

Padraig and I have been chatting back and forth and one thing he asked for was something of a follow-up to the piece I did on the likelihood of reform at the UCI.

As I mentioned in a recent column – “When it comes to the UCI, change is needed … but it ain’t easy” – the structure of our international governing body is such that, despite its superficially “democratic” façade – real power in the organization is held in the hands of a very small number of people with the same set of skewed priorities and ingrained conflicts-of-interest that caused the problem in the first place

Padraig was interested in hearing about how our own national governing body was set up and whether we could possibly start the “revolution” from this side of the Atlantic.

Is reform possible?

Well, the short answer is “no.”

Back in the day, the old U.S. Cycling Federation (USCF) was something of a democratic organization. You bought a license and you earned the right to vote for members of the board of directors. Admittedly, not all that many voted and we’d see boards composed of people chosen in elections with less than 10-percent voter turnout.

Indeed, you still have the right to vote for board members, but your vote just doesn’t count for much. In 1999, a few years after the creation of USA Cycling, the successor to the USCF, there was a “special” meeting of the Board of Directors called by president Mike Plant (who, you might recall, remains a member of the UCI Management Committee) for which the agenda included some major changes to the Bylaws of the organization.

The measure was essentially railroaded through the board, without much discussion, save a vigorous effort from board member Les Earnest. If you’ve not heard of Les, you should, especially if you’re a reform minded cycling fan. Les’ professional background is in computers. He’s responsible for the development of the first spell checker, the first effective pen-based computer and was appointed as the executive officer of the Stanford Artificial Intelligence Lab in 1965. The guy is wicked smart and he loves bike racing. We’re lucky to have him around. (Author’s Note: I was incorrect in naming Les Earnest as the sole opponent of the Plant “reform” initiative. Board Member Chuck Collins was the member of the board who voted against the measure, as is correctly reflected in his comment below. My apologies to Chuck and I guess I’ll chalk up my error to an aging brain. I even wrote about Chuck being a lone voice in the wilderness at the time.)

Anyway, Plant’s changes were couched as an “emergency measure” (with no real explanation as to what the exact “emergency” might have been) and as such went into effect immediately upon passage. The net effect of those “reforms” was to place considerable voting power into the hands of a small group representing the USA Cycling Development Foundation. Indeed, while representing less than one percent of USA Cycling’s membership, the Foundation can effectively choose the majority of the membership on the USA Cycling board of directors.

Now, if you want the particulars, I am going to direct you to Les’ site, where he recently posted an essay describing the cycling’s current problems, a series of “coups,” representing what Earnest calls a “flagrantly crooked takeover by business interests” of the sport and the legal challenges that have resulted from those.

What is disheartening is that you find yourself agreeing with Earnest’s conclusion to the question “is reform possible?”

In short, it is not, unless there are serious changes to federal law (namely the “Ted Stevens Olympic and Amateur Sports Act). It is a dire conclusion when you realize your hopes of reform are rooted in that painfully rare phenomenon known as “Congressional Action.”

We do have one huge advantage

Now, I have to say that I have my reasons to believe that the situation here in the U.S. is still better than that of the UCI. It’s not that this country’s governing bodies are somehow better or less encumbered by conflicts of interest.

No, what sets American governing bodies apart from their international counterparts is that collective decision by those U.S. Olympic Committee-affiliated NGBs to hand off their authority to deal with doping cases to the U.S. Anti-Doping Agency.

Recall, that one allegation out there in the whole Armstrong case is that his “donation” to the UCI to assist in its anti-doping efforts was merely a pay-off to the organization to cover up an alleged positive doping test from the 2001 Tour de Suisse. While the UCI has yet to share the documents associated with that incident, how can anyone – after having seen USADA’s evidence – reasonably conclude that Lance Armstrong honestly made a contribution to the UCI to actually boost its efforts to control doping? (If you’re one who can reach that conclusion, by the way, give me a call. I have a really nice bridge to sell you in New York.)

The one element of the American system that should serve as a model for the rest of the world is precisely that separation of powers.

Read Les’ article and think about it for a minute. Then try to imagine the outcome had every bit of evidence in the Lance Armstrong case been in the hands of Mike Plant, Jim Ochowicz or Thom Weisel. The record books would remain intacct and few would be talking about reforming things these days.

It took a tenacious – and, above all, independent – agency to reach the conclusion that the Emperor did, indeed, have no clothes (well, at least no yellow jerseys).

That sole element, though, doesn’t mean that the U.S. system is otherwise any better than that which governs the UCI. We need fundamental reform. If you have a racing license, vote. And then let your opinions be heard. Contact the members of the board. Despite the lopsided and undemocratic imbalance of voting power, there are some good folks on the USA Cycling Board of Directors. Let them know how you feel. Demand changes. Finally, be willing to back up those demands with action … or as some suggest, in-action, meaning that you don’t renew your license for a year.

The sad truth, though, is that the current structure is largely the result of the inherently apolitical nature of folks in the sport. Hell, we didn’t get involved in cycling to add yet another political aspect to our lives. As a result, though, we let these folks take control. In some cases, they’ve done okay. In others … well, not so much.

If you want to see change in the organization, get involved. It will take all of us.

The big events of 2012?

Padraig had some other thoughts about closing out the year. I know at my old job, we would have editors and a few contributors sitting around voting on who was worthy of this, that or the other prize for things they did over the course of the previous year.

Certainly we here at RKP are not above pontificating now and then, but I want to hear from you, too.

I have my own opinion as to whom, for example, should rank as “Person of the Year” in cycling. What I like, though, is to hear what you have to say.

Please, use the comments section below or send me an email (Charles@Pelkey.com) and let me know your thoughts about the year in cycling.

• What were the highlights?
• What were the low points?
• Who are the heroes?
• Who are the villans?
• Which was the greatest day of racing?
• Which of the three was the best grand tour?
• Which was the best one-day race of the year?
• What great technical development may actually prove to be more than just a way to get you to spend more on bikes?

Feel free to comment on anything and everything. We’ll cobble together an awards column, but rest assured, it will be with your input.

Thank you

Finally, dear readers, I first want to thank you for indulging my off-topic detour last week. Like all of us, I was pretty shaken by the events of the previous day.

I managed to attend the funeral for my friend, Bob, and tears aside, the event quickly devolved into an opportunity for many of us to share stories about an old friend. My contribution?

Well, a few years back, we were having lunch on campus at the university here in Laramie, when a young man walked past, resplendent in full western regalia: hat, boots, vest and even chaps, despite there not being a horse anywhere within miles.

“Ya know, Charles, I never got that; the whole cowboy thing here in Wyoming,” Bob said. “I mean, I’m from New England … and I don’t dress up like a @#$% ing Pilgrim.”

A lot of us ended up the day laughing as we shared a host of Bob’s best one-liners. I hope we can all leave that kind of legacy when we’re gone. I’ll miss you, Bob, but I will almost always remember you with a smile.
– 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: I’m shocked, shocked, I say

Dear Explainer,
So, what do you think? I am guessing that USADA’s document dump today (Wednesday) must have caught your attention by now.

Do you have any thoughts on the evidence presented? Any surprises? Will it have any impact given that we’re only seeing one side of the whole case?

Do you have any thoughts on what the UCI might do?

Winners? Losers? Who are they?
– Daniel

Dear Daniel,
Let’s start with the winners and losers. Aside from Armstrong, the list of losers is pretty extensive, starting with Johan Bruyneel, who was fired yesterday, Michele Ferrari, who may be facing additional criminal charges in Italian courts and the rest named in the original June 12, 2012 charging document: Dr. Pedro Celaya, Dr. Luis del Moral and Pepe Marti. When all is said and done, the sport will be rid of these guys. Good-frickin’-riddance, gentlemen. Don’t let the door hit you in the ass on the way out.

To a lesser degree, there is that list of riders who that found themselves in the untenable position of continuing to lie – and risk lengthy suspensions or even criminal perjury charges – or to give up on that whole culture of omerta, the “code of silence” that has long governed the world of professional cycling. I applaud their decisions to “come clean,” but sure do wish it had been 10 years ago.

Also on that list of losers has to be the parade of “journalists” who – for reasons of sycophancy, a desire for profit or both – sang the praises of a man they knew to be a bully and, above all, a cheat. And, no, they can’t claim they didn’t know. The only way they didn’t see the obvious is that their seats on the gravy train were too damn comfortable and they didn’t want to stand up and take a look. They should be ashamed.

Sadly, there is a much larger group of other journo’s – myself included – who, while declining to heap praise on Armstrong, didn’t do nearly enough with the information that we had. We poked around the edges and only did stories when we knew we had our asses completely covered. Few of us took the big risks. Whether driven by fear of lawsuits or losing our jobs, we should, nonetheless, be embarrassed. I know I am.

The winners? That list is a helluva lot shorter. It includes – but is not limited to – Betsy and Frankie Andreu, Emma O’Reilly, Dr. Prentice Steffan, Stephen Swart, Christophe Bassons, Greg LeMond, Filippo Simeoni, David Walsh, Pierre Ballester and Paul Kimmage. Each of those people has consistently stated positions that were often contrary to their own interests, risking career, financial security and reputations to pursue what they saw as the truth.

Wednesday’s revelations show they were right.

I’m shocked, shocked, I say

There have been some who said that Wednesday’s revelations were earth-shattering news. Some even declared they were “shocked.”

Look, the evidence was extensive (you can see that for yourselves), but was it surprising? Not so much.

While blowing off most of the work associated with my current “day job” on Wednesday, I had the feeling that I was reading the unabridged version of “L.A. Confidentiel,” which David Walsh and Pierre Ballester wrote eight years ago.

Walsh had his suspicions even longer than that. I had the privilege of meeting Walsh for the first time at the 1999 Tour. It wasn’t just a quick introduction, either. We spent the entire Tour together, as it was Walsh’s tradition to join up with the VeloNews crew, coordinate hotel accommodations and meals and the drive from each day’s village departé to the press room at the finish. I was the driver, riding shotgun was my former boss, John Wilcockson and crammed into the back seat were Walsh and Australian journalist – and world famous Hawaiian shirt aficionado – Rupert Guinness.

That meant hours in the car, often at slow speeds, so we could stay in range of race radio, and then more time in the press room as we all crafted our stories and then dinner and then often late nights at the hotel bar. Shallow and myopic as most sports writers are, our conversations pretty much revolved around a single subject. Yup, that would be cycling.

Do recall, that the 1999 Tour came on the heels of the previous year’s devastating “Festina Affair.” With teams arrested, ejected or simply packing up and leaving the Tour under cover of night, a lot of us pretty much expected that by 1999, the costs of doping far exceeded any benefit and that sport would be clean from here on out.

Certainly, that was the hope of 25-year-old Christophe Bassons, who had earned the reputation as a clean rider when teammates testified that he had been the only member of the 1998 Festina team who refused to dope. Now a member of Francaise des Jeux, Bassons saw the 1999 Tour as an opportunity for the entire peloton to speak out against doping.

The new hero of this “clean era” quickly emerged as cancer survivor Lance Armstrong scored an impressive win in the prologue at Le Puy du Fou.

Within days, though, news broke that none other than Armstrong had tested positive for corticosteroids. There hadn’t been a Therapeutic Use Exemption … but the UCI accepted a back-dated prescription for topical cream that Armstrong said was for the treatment of saddle sores. It was quickly called the “butt cream defense,” by skeptics in the press room. So much for the new and clean era.

Had the UCI handled that first positive properly from the start, Armstrong would have been kicked out of the 1999 Tour right then and there. But no, he went on to dominate the race, beating former Festina rider – and admitted doper – Alex Zülle by nearly seven-and-a-half minutes. Really, following the disastrous crash on the Passage du Gois on stage 2, which took out many of Armstrong’s top rivals, and a dominant performance in the stage 8 time trial at Metz, the GC picture was pretty much settled before the race ever hit the mountains.

So instead, Walsh spent his time working on what he viewed was the “real story” of the Tour, namely that Festina had changed nothing in the sport, other than to drive doping deeper underground.

Walsh spent time interviewing riders like Bassons, who was becoming increasingly frustrated both by the lack of a definitive statement from top GC contenders regarding doping and, more importantly, by the social pressure he was getting from other riders to drop the subject. Chief among those pressuring Bassons was the man in the yellow jersey, who, as Walsh reported, had threatened a cajoled the Frenchman, urging him to “shut up” about doping and efforts to clean up the sport.

Walsh saw Bassons as a lone hero. Documents released this week show Armstrong saw him as an idiot and “a pussy.”

By the time we reached Paris, Walsh was pretty much barred from the Postal camp. He left the Tour “with a bad taste” in his mouth, but he had his sights set firmly on Armstrong.

He would return to the Tour, but his reporting continued to focus not on what he believed was a parade of lies, but on the doping that produced those lies.

In 2002, Walsh uncovered evidence that Armstrong had been working with the notorious Dr. Michele Ferrari and had an article ready to run in the Sunday Times of London. Having learned of that fact, Armstrong did a preemptive interview in which he casually stated in passing that he had worked with Ferrari, as if it were no big deal.

Over the next couple of years, Walsh’s Armstrong file grew. He interviewed the Andreus, who consistently stood by their position that Armstrong had revealed his use of performance-enhancing drugs to doctors before beginning chemo-therapy in 1996. Frankie took some serious career hits, both in cycling and in broadcasting, but he stuck by his story. Betsy was characterized in any number of less-than-complimentary ways by the Armstrong camp, but she stuck by her story.

So, too, did former Postal soigneur, Emma O’Reilly, who, after speaking with Walsh in 2003 had to endure personal attacks on her character. But she stuck by her story.

Steffan, the original team doctor at Postal, was fired after some riders complained that he wasn’t doing enough to give them a competitive edge. Under pressure from Armstrong, Steffan was temporarily dismissed from his job on the Slipstream team. He was threatened, essentially blackmailed about his own personal struggles with substance abuse and he stuck by his story.

Working with French journalist Pierre Ballester, Walsh wrote “L.A. Confidentiel,” which was released on the eve of the 2004 Tour. In retrospect, that book still serves as the essential framework for the document bomb that was released this past week. The evidence made available to all of us just adds to the case and reaffirms that Walsh and Ballester were right from the start.

In response, Armstrong’s legal team filed suit in France and in Great Britain, where a translated summary of the book’s main charges appeared in the Sunday Times. The French suit was dropped, but the Times eventually offered an out-of-court settlement and Armstrong declared victory against the man he and Johan Bruyneel privately called “the Troll.”

On stage 18 of that Tour, Armstrong lashed out at another rider – Filippo Simeoni – who had made the “mistake” of testifying against Ferrari in a 2002 criminal matter. He was the only rider to do so. Simeoni never said anything about Armstrong and only testified as to his own experiences with Ferrari and doping practices.

You will probably recall that the tension between the two was already high before the 2004 Tour. When Simeoni found himself in a relatively unthreatening break on Stage 18, it was the man in the yellow jersey who set off in lone pursuit. Armstrong stayed with the break until Simeoni agreed to wait for the peloton, allowing the other escapees a chance.

Armstrong famously gave Simeoni the zip-the-lip gesture as the peloton approached and the Italian testified that the race leader also threatened him. Threat or no, Simeoni’s career was cut short, even though he did get some joy out of earning the 2008 Italian national champion’s jersey … but even then, he was regarded as something of a pariah. Nonetheless, he stuck by his story.

Is there any value to having access to liars?

I missed the Tour that year, as I was slated to cover the Vuelta and being part of a family with a 10-year-old boy and a four-year-old girl in the house didn’t make doing three-week grand tours all that easy at home. That said, I kinda wish I would have been there.

Walsh, as was his practice of many years, joined the VeloNews crew for the three-week journey through France. Embarrassingly, though, after pressure was exerted from the Armstrong camp, Walsh was informed that he was no longer welcome in the Velo-mobile.

WTF? Given a choice between standing by a friend and colleague or having access to “his Lanceness,” Walsh got the boot.

Later at the Vuelta, where I had the pleasure of taking my son with me, I tracked down Michael Barry for a quick post-stage interview. With young Philip at my side, we chatted about the race and the Postal team’s hopes for the Spanish Tour. We were just getting to the interesting part about the apparent tension between Floyd Landis and team management when Johan Bruyneel walked up, grabbed my press badge, glanced at the name and flicked it back into my chest.

“Pelkey, eh?” he said. “So, how’s your little Irish friend?”

“Excuse me?” I asked.

“That fuckin’ troll, Walsh,” Bruyneel growled. “David Walsh … what did you do to get mentioned in the acknowledgments of that piece of shit book of his?”

“I’m not sure,” I said. “We’re friends and we trade information now and then, but ….”

Suddenly Philip piped up and said “Mr. Walsh was at our house for dinner! Dad gave him a ride in our Army jeep. Maybe that was it.”

That made me smile. Bruyneel didn’t see the humor of the moment. He grunted, walked away, taking Barry with him. From that point forward, I had no access to Postal riders for the duration of the Vuelta, save for sitting in on press conferences … and it really didn’t matter.

A one-sided story?

As you note, Wednesday’s “reasoned decision” from USADA is pretty much a one-sided presentation of why the agency reached the conclusion that Lance Armstrong should be banned from competitive sport for life and that his results dating back to 1998 should be negated.

It was the “prosecution’s” case, that which would have been presented to an arbitration panel had it ever gone to arbitration. Personally I would have been interested – perhaps amused – to see how the defense would have presented its side. But remember, it’s not USADA’s fault that it didn’t go to arbitration.

The timing was actually kind of funny. Just one day earlier, Armstrong’s attorney, Tim Herman had sent a scathing five-page letter to USADA demanding the agency send its entire file to the UCI, not just a limited report packaged in a way to support its case.

Be careful what you wish for, dude.

Not only did USADA’s “Discovery Team” drop the whole package in the UCI’s lap, they let the rest of us sort through it, too.

As it turns out, the agency had justification for the delay. They produced the entire case as if it were presented at hearing. The reasoned decision itself was a detailed, beautifully footnoted, 200-page document, accompanied by nearly 1000 pages of appendices and supporting materials. Most damning, were the 26 sworn affidavits from witnesses, 11 of whom were former Armstrong teammates.

Herman didn’t even miss a beat.

“I’m not suggesting that they are all lying, but I am suggesting that each witness needs to have confrontation and cross examination to test the accuracy of their recollection,” he declared, with what I assume was a straight face.

And damn, if he isn’t right. The whole arbitration process is governed by Federal law, under 36 USC § 220522 (a)(8), which requires any athlete charged with a violation that might result in a period of ineligibility be provided “with fair notice and opportunity for a hearing.”

Part of that hearing process, of course, is the opportunity to confront and cross-examine adverse witnesses. By gum, Herman hit the nail right on the head … but for the fact that his client declined to participate in the hearing.

It’s a little late now, Tim.

The UCI is left in the awkward position of either accepting the USADA case on its face value, or appealing the whole thing to the International Court of Arbitration for Sport where it will likely be defending its own conflicts of interest and apparent disinterest in pursuing the allegations of the sport’s highest-profile rider.

Read the decision. Scan the documents. Combined, they constitute the richest treasure trove of evidence underscoring just how corrupt riders – and governing bodies – can be. My bet is that the UCI will take a pass. They’ve stood up for Armstrong in the past, but there is considerable risk in doing so now … and very little benefit. The UCI isn’t likely to take a big risk.

No, the only people in this story willing to take risks for little or no benefit were those “winners” I mentioned earlier. And, actually, when you come to think of it, that fact alone suddenly makes the list of “winners” a lot longer. The real “winners” in all of this are those who love the world’s most beautiful sport. Fans and riders alike. Hopefully, cycling will emerge from this embarrassment all the better. I, for one, will keep my fingers crossed. I promise, though, never to say that I am “shocked” if it doesn’t turn out that way.
– 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: By order of the court, Hein Verbruggen is (not) full of ….

Dear Panache,
Awrighty … I have way more than 140 characters to work with here.

As your question suggests, Landis was ordered by the court to refrain from making any disparaging remarks about the UCI, its current president Pat McQuaid and past president Hein Verbruggen. Catherine Piguet. Est Vaudois District Civil Court chairman entered the default judgment after Landis failed to appear and mount a defense against a complaint the three plaintiffs filed against him in April.

Absent a defense, the court had little choice but to rule in favor of the UCI, McQuaid and Verbruggen. If you don’t show up to defend against the charges, odds are you will lose. (One of Landis’ former teammates recently learned that lesson, but alas, I digress.) In her decision, Piguet issued an order that:

“forbids Floyd Landis to state that the Union Cycliste Internationale, Patrick (Pat) McQuaid and/or Henricus (Hein) Verbruggen have concealed cases of doping, received money for doing so, have accepted money from Lance Armstrong to conceal a doping case, have protected certain racing cyclists, concealed cases of doping, have engaged in manipulation, particularly of tests and races, have hesitated and delayed publishing the results of a positive test on Alberto Contador, have accepted bribes, are corrupt, are terrorists, have no regard for the rules, load the dice, are fools, do not have a genuine desire to restore discipline to cycling, are full of shit, are clowns, their words are worthless, are liars, are no different to Colonel Muammar Gaddafi, or to make any similar other allegations of that kind;” (My Emphasis Added)

Think about it. There is actually now a court order in place that specifically forbids Floyd Landis from saying, for example, that “Hein Verbruggen is full of shit.”

But as you ask, where does the Swiss court get the authority to impose such an order? That’s actually a pretty easy question. These days, particularly when it involves an international story, libel and slander can quickly become a world-wide tort. In this case, Landis had a conversation with reporter Paul Kimmage, who then submitted a story to the Sunday Times of London and the entire interview transcript to our friends over at NYVeloCity.Com.

The Sunday Times, of course, is based in Great Britain. NYVeloCity is based in the U.S. There is nothing all that Swiss about either. But the three plaintiffs sought redress in the Swiss courts, specifically the same court in which they have filed a similar suit against Kimmage.

In order to argue for Swiss jurisdiction over the case, plaintiffs merely need to show that they are engaged in business or reside within Swiss borders, that the statement or statements were repeated in Switzerland and that the alleged defamatory statement may have impacted their reputations or business interests within Switzerland.

Okay, so they fare pretty well on all three. The UCI is based in Switzerland and both McQuaid and Verbruggen (although Irish and Dutch nationals) live and work in Switzerland. That their reputations may have been affected in Switzerland is true and it would be up to the court to determine whether that in fact had happened. Finally, pretty much anything anyone posts on the Internet is automatically “repeated” within Swiss borders.

So, the Swiss court correctly asserts jurisdiction over the matter. Landis fails to mount a defense and – Bazinga! – Floyd Landis suddenly has a valid court order barring him from saying, for example, “Hein Verbruggen is full of shit.”

So?

Well, in addition to not being able to say that “Hein Verbruggen is full of shit,” and other disparaging statements, he was ordered to pay 10,000 Swiss francs to both Verbruggen and McQuaid and to publish the “operant provisions” of the order, at his own expense, in several media outlets, including the Wall Street Journal, L’Equipe, Switzerland’s Le Temps and websites, including the aforementioned NYVeloCity.com.

So?

Well, the order also imposes a requirement that Landis pay the plaintiffs’ legal costs and adds that the failure to pay the award and costs will result in five percent interest being added to the total each year.

Then comes the enforcement provision, which essentially says that failure to pay or to comply with any of the provisions of the order – say he did something like declaring, for example, that “Hein Verbriggen is full of shit!” – then he could be subject to criminal penalties for being in contempt of court.

So?

Well, there isn’t much the UCI, Verbruggen (who, by court order, is not full of shit), McQuaid or even the court can do. Really, the enforcement of a foreign civil judgment is quite difficult here in the U.S., so unless Landis has assets in Switzerland (which is doubtful), it’s unlikely that the plaintiffs will see any of the money the court awarded them in this matter. It’s doubtful, too, that Landis will be taking out full-page ads in L’Equipe or the Journal.

Eventually, he’s likely to be declared in contempt of court and then he may be subject to criminal penalties under Article 292 of the Swiss Criminal Code.

So?

Well, unless Landis plans on visiting Switzerland, there probably isn’t a lot they can do to him. He’s not going to be extradited from the U.S. to face Swiss justice because he ignored a civil judgment against him. He’s unlikely to face troubles even if he travels to other parts of Europe … well, except for France, where he’s barred because of the hacking allegation. While Switzerland isn’t a European Union country, it may be worth his while to look at Swiss extradition questions as they relate to the EU before traveling there. My bet is that it wouldn’t be much of an issue, even there.

So, basically, Landis can ignore the judgment as long as he avoids Switzerland. Heck, he could even test the waters and declare that “Hein Verbruggen is full of shit!” Not that I suggest he do that, of course.
– Charles

Breast Cancer Awareness Month

On a purely personal note, many of you already knew that I was diagnosed with, of all things, breast cancer last year, just prior to my arrival here at Red Kite Prayer.

Yeah, I know, it’s weird. Guys aren’t supposed to get breast cancer … at least that’s what most people think.

I had three surgeries and finished chemo nine months ago and I got another clean bill of health just this week.

So why start talking about it again? Well, one thing I’ve noticed in the annual parade of pink ribbons, (a.k.a. “Breast Cancer Awareness Month,” a.k.a. “October”) is that all of that awareness is generally targeted at women. That’s absolutely appropriate given that nearly 99 percent of all breast cancer cases occur in women. However, it’s also safe to say that most women are also by now keenly aware of the disease and its risks.

Men, on the other hand, not so much.

I was one of about 1800 men diagnosed with breast cancer in this country last year. Some studies suggest that breast cancer can be more severe in men, due in no small part that the diagnosis doesn’t come until the disease has progressed to its latter stages. I was lucky and caught mine at Stage 2b.

Anyway, I made that point to the folks over at The Huffington Post and they asked me to write a small piece on a male’s perspective on what is generally regarded as a woman’s disease. You can read it if you choose to, but more importantly, keep in mind that all people can get this disease. Stay vigilant.

The only reason I am doing this is to encourage anyone – male, female or other – who finds a suspicious lump to go straight to your doctor and have it checked out. If they say it’s nothing, get a second opinion before you relax. It could save your life.
– 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: ” … of being fools, etc.”

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

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

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

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

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

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

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

A significant show of support

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

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

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

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

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

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

Of being fools, etc.

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

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

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

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

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

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

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

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

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

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

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

Did not hesitate to publish

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

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

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

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

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

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

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

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

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

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

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

What are they looking for?

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

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

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

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

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

Mounting a defense

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

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

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

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

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

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

The Explainer: Why SLAPPing Paul Kimmage won’t work

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Has it worked? No, not really.

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

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

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

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

So why Switzerland?

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

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

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

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

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

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

Jurisdiction?

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

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

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

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

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

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

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

Choosing the right defendant … or picking on the little guy

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

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

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

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

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

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

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

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

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

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

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

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

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

Give it some thought.

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

Friday Group Ride #134

I don’t really want to talk about doping in the way that we normally do, debating the merits of lifetime bans or declaring open season for all illicit products, slicing and dicing the moral code riders ought to ascribe to. We’ve done that.

I don’t have the answer to the problem anymore than anyone else does, not Paul Kimmage or Michael Ashenden or Anne Gripper or Andrea Schenk. We, most of us, feel passionately about clean sport, and those who don’t mostly cast themselves of too practical a mindset. Humans will cheat, they argue, and may well be correct.

All of that aside, I have found it interesting over the last few weeks to see dominoes begin to fall across the top level of the sport. Yes, USADA sanctioned Lance Armstrong after he chose not to defend himself against their allegations. The UCI struggled to strike the right tone in response. The whole structure of the sport began to shift.

Tyler Hamilton has a book coming out, which details much of what happened in his own somewhat tragic career, and that implicates himself, many former teammates and major players in the management of the sport at both team level and within the UCI.

One event that shocked me this week was Jonathan Vaughters going on the Cycling News forums and outing some of his riders as former dopers, including Tom Danielson, Christian Vande Velde and Dave Zabriskie. Perhaps this isn’t so surprising, given his own recent confession in the New York Times, but the timing and venue seemed suspect. Were the riders aware he was going to spill the beans?

Is this just where we are in the process of truth telling? Suddenly everyone is talking.

You expect this from characters like Jorg Jaksche, Christophe Bassons and Filippo Simeoni, but we’ve moved into some new territory with recent statements from Johann Museeuw and Sylvia Schenk. Given all the recent information flooding into the open, journalists are turning up the heat on figures like Bjarne Riis, who has confessed his own transgressions as a rider, but has left, perhaps, too much still unsaid.

People are speaking out. More people are asking hard questions like, is the UCI even capable of cleaning up the sport? It is one thing for fans and marginalized journalists to say these things. It is another entirely for people like Schenk, once a member of the UCI management committee and Museeuw, a respected rider from the EPO era, to say them. Now the questions and confessions are coming from the inside. People are emboldened. The calculus is changing. But is it changing enough?

This week’s Group Ride asks the question: Have we finally reached the watershed moment in confronting cycling’s doping history? Or is this just a strange conflagration of events, more stumbles down the wrong path, toward the status quo?

Forgoing Judgement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The answer is quite possibly: YES.

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