Covering the malfunctions of cycling’s governing body is like riding into a headwind. It is tiring, progress is slow and sometimes you’d much rather turn around and go the other way. But the story of the UCI suing Paul Kimmage matters because it’s becoming more than a legal dispute.
With the right defence – aided by new revelations in print – it is possible Kimmage could win case. But sadly the UCI is fast-approaching a point where it will lose no matter what the court verdict is because the case looks selective and vindictive. But there’s still time to fix this.
As background Paul Kimmage is a journalist but rode as a pro in the 1980s. He left the sport frustrated, in part because of the doping culture and recounted this in his autobiography “A Rough Ride”. He was ostracised for speaking out, proving the omertà he denounced. The book won awards and his writing opened up a career as a journalist. Kimmage was a persistent critic of the UCI and doping and rose to become Chief Sports Writer of London’s Sunday Times.
In 2011 did a lengthy interview with Floyd Landis. Landis talked freely, the full transcript is on NYVelocity.com and a good read if you have the time. But the UCI’s Hein Verbruggen and Pat McQuaid didn’t enjoy the piece and claimed he accused them of “having knowingly tolerated tests, of being dishonest people, of not having a sense of responsibility, of not applying the same rules to everyone”.
Normally a press release would be used to rebut these claims – they did it with Gerard Vroomen – but the UCI sicced the lawyers on Kimmage, a highly unusual move although the UCI has sued the likes of former WADA boss Dick Pound and Festina dope mule Willy Voet. Note the UCI is not suing The Sunday Times who printed the story but Kimmage himself. Journalist and lawyer Charles Pelkey has a good piece in his Explainer column at redkiteprayer.com:
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
Pelkey points out that it’s easier to sue an individual like Kimmage rather than a national newspaper. A media company has in-house lawyers and can deploy a near-limitless pot of money merely to defend principle. Pelkey writes:
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
It’s hard not to agree. Note the UCI won’t sue Tyler Hamilton, Daniel Coyle and Random House despite similar claims in “The Secret Race”. In choosing Kimmage but not Coyle this risks appearing to be a personal vendetta against someone who has been a consistent critic of the UCI. Kimmage been right and fearless for a quarter of a century. He deserves an apology from the UCI, not a lawsuit.
Can Kimmage Win?
I’m no lawyer but Swiss law seems as clear as the country’s mountain air. Here’s the concise definition of defamation under the Swiss Criminal Code:
Any person who in addressing a third party, makes an accusation against or casts suspicion on another of dishonourable conduct or of other conduct that is liable to damage another’s reputation.
We could joke that Verbruggen and McQuaid’s reputation is so low that Kimmage didn’t do any additional harm but that’s subjective. Let’s stick to the law as the Code goes on to explain something that seems crucial for Kimmage’s defence:
If the accused proves… … he had substantial grounds to hold an honest belief that it was true, he may not be held guilty of an offence.
In other words if Kimmage can show grounds to believe what Landis told him was true then he might not be guilty. Better still for him, a handy guide to defamation for Swiss journalists by Yves Burnand, a lawyer with a doctorate in Swiss law, states (para 12, my translation):
the truth is an objective proof: it can be based on elements which the author did not have knowledge of at that moment in time when he held his litigious views
So Kimmage can present information available today that was not in existence before. For example Landis claims are now corroborated by The Secret Race and the USADA report on the US Postal/Discovery team doping may well give him “substantial grounds” he needs. And this is just the start, Kimmage could invite others to give testimony in support. In short, Kimmage may be able to present a strong case by the time the case appears in December.
Beyond the Law
It need not come to court. The UCI started its legal action some time ago, long before the USADA revelations and before the days when Pat McQuaid briefly came out in support of “truth and reconciliation”. If the facts might have changed, but the mood certainly has and the UCI could drop this although I suspect they won’t.
However this is now turning into a PR disaster for the UCI, a case that they cannot win because even if the court rules their way it looks bad. Instead of upholding a reputation for good deeds, Verbruggen and McQuaid risk damaging their public image no matter what the ruling. And worse for them, far from squashing a pesky journalist, it’s given him a platform and a status he didn’t have before.
This is where the fund comes in. Set up by fellow bloggers Cyclismas and NY Velocity it has raised over $20,000 to help Kimmage in his defence. I think many want to support Kimmage directly. But this also reads like a form of proxy war against the UCI where irate fans can get the UCI in court. These senior officials often appear wholly unaccountable and even block uncooperative journalists who get too critical. But you can’t blacklist a judge.
Fans have every right to be confused, even angry. Just last Saturday President McQuaid said “the UCI has nothing to be apologetic about” despite being in charge of a sport that just seen its biggest name banned for life after industrial doping for over a decade. Surely it didn’t get everything right?
One case in a Swiss court says plenty about the way the UCI is managed. Pursuing Kimmage whilst others won’t face legal action suggests even when it comes the law Verbruggen and McQuaid act inconsistently, deploying UCI funds to bully people they dislike.
Kimmage could even win the case if supportive evidence corroborates him. But no matter what happens in court this is starting to backfire. Verbruggen and McQuaid don’t enjoy reputations as the world’s most competent sports official and this case makes them look worse. Worse this case is damaging cycling’s governing body further. We need the UCI more than ever, but as a governing body with confident leaders who demonstrate the kind of fairness they expect from athletes.
Kimmage thought he was going alone into the UCI’s legal headwind but hundreds of people have committed thousands of dollars to help him. Each donation is the equivalent of taking a small pull on the front to help him along. You can donate as little as a dollar… or as much as you like with the average donation around the $35 mark.