The Cycliste Moderne, December 28, 2005

This last week in Salt Lake City, there was a significant court victory for cyclists. On the afternoon of September 14, 2004, Josie Johnson, a graduate student at the University of Utah, was struck from behind and killed by a driver in a Jeep Cherokee as she rode up Big Cottonwood Canyon in Salt Lake. The weather conditions and visibility were perfect and she was struck while riding well to the left of the fog line on the right side of the road.

The case attracted significant attention because of the fact that the driver is Elizabeth DeSeelhorst the owner of Solitude Ski Resort. It took prosecutors more than four months to charge DeSeelhorst with negligent homicide. The delay caused significant concern in the cycling community as to whether officials would aggressively investigate and pursue the matter.

Defense counsel for DeSeelhorst offered a vigorous defense of their client and focused upon her mental capacity at the time of the accident. DeSeelhorst has had a history of minor strokes and seizures and the defense was based upon the theory that she had suffered a stroke like episode that caused her to swerve to the right and strike Johnson.

Clearly, the jury did not believe that defense as evidence was presented that DeSeelhorst was in fact aware at the time of the collision of what she had done. She stopped her vehicle after the collision, she called her husband at Solitude and requested the Solitude emergency medical technicians come to help, and she was aware at the time of possible liability. DeSeelhorst was convicted with negligent homicide and faces up to one year in jail when sentenced in February.

While an unfortunate loss, the conviction is important. Although there have been some significant car v. cyclist accidents in Utah that have resulted in significant injuries and criminal sanctions against drivers, there have also been some high profiled cases where prosecutors in Utah have previously refused to prosecute drivers. Had the DeSeelhorst case not resulted in a conviction, it is possible that it would be unlikely that similar cases would be pursued in the future. Additionally, because of Johnson’s death, the Utah Legislature passed HB49 requiring drivers to give cyclists at least three feet of clearance when passing unless conditions do not permit such clearance. The bill was driven forward by concern over the lack of attention and respect that motorists pay to cyclists.

The case was brought home to me as to the care drivers must take last week as I drove to work. On a foggy, rainy, icy morning, I passed my good friend Steve Hulme on his bike as he rode his bike to work as he has every day since September 1997. Conditions were slick enough that Steve had broken out his beater mountain bike instead of his Cannondale commuter. Steve always wears bright clothes, has excellent bike handling skills and rides generally accident free which is impressive considering he puts in upwards of 6,000 miles a year. As I passed Steve the first time, I could see that the icy conditions were making it difficult for him to stay upright even as he rode in the bike lane. As we proceeded through the next couple of stoplights, he would pass me and I would pass him.

I always try to be cautious when driving to give my fellow cyclists enough clearance for both of us to travel safely. That morning thoughts of the Johnson case were on my mind as I wondered what would happen if my good friend and fellow bike advocate Steve ended up splattered across the front of my SUV. I guarantee that most drivers do not think about these things when conditions are poor.

Cyclists need to remain constantly vigilant in all conditions. There were no adverse conditions other than the driver in Josie Johnson’s death. Just as many accidents occur in good weather as in bad. Sometimes nothing a cyclist can do will keep them from getting hit. So in the words of Sergeant Phil Esterhaus: “Hey, let's be careful out there.”

The Cycliste Moderne, December 19, 2005

This week’s edition is going to be short. I am in the midst of a stretch of three hearings in six days. Have I used performance enhancing drugs to get through? No, unless you consider 40 oz. of Diet Coke and massive doses of ibuprofen each day to be performance enhancing. It is just a good thing that WADA does not test attorneys because many attorneys rely upon “performance enhancing” substances just to get started every day.

The December issue of Outside magazine provides an excellent account of Lance Armstrong’s ongoing legal fights. The article provides real insight into Armstrong’s long running fight with British reporter David Walsh, the actions of L’Equipe in running its story this summer regarding allegations of doping in 1999, and his ongoing legal disputes.

Since the article was published, Armstrong settled the lawsuit involving his one time personal assistant Mike Anderson. Anderson alleged that Armstrong had agreed to finance a bike shop Anderson wanted to open but instead, Armstrong fired him after his discovery that Armstrong possessed doping products. Anderson’s claims had largely been thrown out as a result of a summary judgment motion Armstrong had filed, but the parties reached a settlement and issued a short press release indicating the matter was resolved.

Additionally, this week Italian judicial officials decided to proceed with a defamation claim against Armstrong arising from his running dispute with Italian pro Filippo Simeoni. Simeoni was convicted of sporting violations after admitting taking EPO that he claimed to have been provided by Armstrong’s Italian physician, Michele Ferrari. Armstrong, in an interview with a French news paper, called Simeoni a liar when he implicated Ferrari in a doping investigation. Simeoni and Armstrong had a heated exchange during last year’s Tour de France when Armstrong chased down a group with Simeoni and refused to leave the group unless Simeoni dropped back to the peleton. Armstrong was initially investigated for those actions based upon Italy’s sporting fraud laws but nothing has come of that incident. Now, however, Italian officials have decided to proceed to trial on the defamation claim.

Those actions are confusing to most Americans familiar with Anglo-American notions of jurisprudence, which is adversarial, as opposed to the continental European jurisprudence that is based on an inquisitorial structure. Prosecutors act as investigating judges and where matters that, in the United States or the United Kingdom, would be truly civil in nature have a quasi criminal appearance. Additionally, European legal commentators are already wondering how Italian officials can establish jurisdiction to punish an American for comments he made to a French newspaper in France about an Italian cyclist.

Although Armstrong announced over the weekend that he will never go back to the Tour de France, you kind of get the feeling that he will be like a certain former United States president who, after much controversy and contention during his term of office, finds himself retired at a young age with many years of life ahead of him. We most likely will hear a great deal from Armstrong for many more years to come.

The Cycliste Moderne, December 19, 2005

This week’s edition is going to be short. I am in the midst of a stretch of three hearings in six days. Have I used performance enhancing drugs to get through? No, unless you consider 40 oz. of Diet Coke and massive doses of ibuprofen each day to be performance enhancing. It is just a good thing that WADA does not test attorneys because many attorneys rely upon “performance enhancing” substances just to get started every day.

The December issue of Outside magazine provides an excellent account of Lance Armstrong’s ongoing legal fights. The article provides real insight into Armstrong’s long running fight with British reporter David Walsh, the actions of L’Equipe in running its story this summer regarding allegations of doping in 1999, and his ongoing legal disputes.

Since the article was published, Armstrong settled the lawsuit involving his one time personal assistant Mike Anderson. Anderson alleged that Armstrong had agreed to finance a bike shop Anderson wanted to open but instead, Armstrong fired him after his discovery that Armstrong possessed doping products. Anderson’s claims had largely been thrown out as a result of a summary judgment motion Armstrong had filed, but the parties reached a settlement and issued a short press release indicating the matter was resolved.

Additionally, this week Italian judicial officials decided to proceed with a defamation claim against Armstrong arising from his running dispute with Italian pro Filippo Simeoni. Simeoni was convicted of sporting violations after admitting taking EPO that he claimed to have been provided by Armstrong’s Italian physician, Michele Ferrari. Armstrong, in an interview with a French news paper, called Simeoni a liar when he implicated Ferrari in a doping investigation. Simeoni and Armstrong had a heated exchange during last year’s Tour de France when Armstrong chased down a group with Simeoni and refused to leave the group unless Simeoni dropped back to the peleton. Armstrong was initially investigated for those actions based upon Italy’s sporting fraud laws but nothing has come of that incident. Now, however, Italian officials have decided to proceed to trial on the defamation claim.

Those actions are confusing to most Americans familiar with Anglo-American notions of jurisprudence, which is adversarial, as opposed to the continental European jurisprudence that is based on an inquisitorial structure. Prosecutors act as investigating judges and where matters that, in the United States or the United Kingdom, would be truly civil in nature have a quasi criminal appearance. Additionally, European legal commentators are already wondering how Italian officials can establish jurisdiction to punish an American for comments he made to a French newspaper in France about an Italian cyclist.

Although Armstrong announced over the weekend that he will never go back to the Tour de France, you kind of get the feeling that he will be like a certain former United States president who, after much controversy and contention during his term of office, finds himself retired at a young age with many years of life ahead of him. We most likely will hear a great deal from Armstrong for many more years to come.

The Cycliste Moderne, December 12, 2005

They Finally Did It.

Friday, the ASO, RCS and Unipublic, the organizers of the Tour de France, Giro d’Italia and the Vuelta a Espana respectively, all announced that they were withdrawing the grand tours and the other races they produce from next season’s ProTour calendar. As a result, eleven of the twenty-seven events that were part of the first ProTour calendar in 2005 have been withdrawn. These races represent not only the Grand Tours but also such stage races as Paris-Nice and Tirreno-Adriatico and one day classics as Milan-San Remo, Paris-Roubaix, Liège-Bastogne-Liège, and the Tour of Lombardi.

The Grand Tour organizers have announced that all twenty ProTour teams will be invited in 2006 to all three of the Grand Tours but that beginning in 2007, only fourteen teams will gain automatic entry based upon a performance system the Grand Tour organizers have yet to announce. Up to eight wild cards will be awarded. The Grand Tour organizers have announced additional prize money to all teams taking part in all three Grand Tours and an overall team prize system.

Neither the Ronde Van Vlaanderen nor the Amstel Gold Race are produced by any of the Grand Tour organizers, so they remain part of the ProTour, but with the absence of arguably the most significant races of the season with those two exceptions, the ongoing survival of the UCI’s ProTour is in question. UCI officials and team officials will be meeting over the next couple of weeks to discuss the past season and where the sport is headed.

However, former UCI president Hein Verbruggen, the father of the ProTour, is clearly in denial as to the impact of the withdrawal by the Grand Tour organizers. Procycling.com reports his response to their actions was to deny any impact on the ProTour: “We haven’t lost face. They have, they have lost this battle.” Verbruggen went on to criticize Grand Tour organizers as becoming “American” for their willingness to pay teams to participate.

As my observant wife commented, “Isn’t this a lot like what happened when they created the Indy Racing League?” Indeed, organizers of the preeminent sporting events typically think their events are more important that the sport itself; at the same time the teams and individuals participating in the sport think that the events cannot happen without top talent. In the end, the promoters and the participants end up destroying the sport unless someone blinks.

It will be interesting to see who prevails in this fight. It cannot be denied that the ProTour resulted in the best and most international fields that the Giro and Vuelta have ever had. Although the Tour has become the Super Bowl of cycling, with the best riders in the world and the one event that even casual fans can comprehend and follow, the Italian and Spanish tours have suffered over the years due to their much more national focus. Clearly, the ProTour benefited the big teams to the detriment of the smaller teams. It is questionable if there really are twenty top level teams in the world when the T-Mobiles and Discovery Channels are running programs with budgets in excess of $15 million each year while the Saunier Duvals are running their programs on less than a fifth of that.

Watching this kind of destructive behavior makes you feel like Charlton Heston at the very end of Planet of the Apes.

Psychlocross

Some of the Friday events of the United States Cyclocross Championships in Rhode Island had to be postponed as weather conditions worsened during some of the master national championship races. Visibility declined to zero, the course markings were destroyed and medical officials were overwhelmed with cases of hypothermia. When you decide to have the national championships in cyclocross in Rhode Island two weeks before Christmas, odds are you are going to have sleet, ice and snow. The chance of death and frostbite is the real reason that cyclocross races are less than an hour long.

And now for something completely different . . .

The World Cup draw was held on Friday. For the Americans, it will be difficult to replicate their results of 2002 where they made it to the quarterfinals. Drawn in probably the second toughest group, the Americans get to play Italy, the Czech Republic and Ghana. At a minimum, the Americans will need a win and a draw to go through to the Second Round. A win and a draw, however, would at best result in a second place finish in the group and a date with Brazil in the Second Round. The Americans have improved significantly over the last eight years and can play with just about any team in the world on a neutral field. With the eight hour time difference between Boise and Germany, I will likely get to watch the first match of the day without interfering with work. It is those pesky mid-day matches that will get in the way of the law.

The Cycliste Moderne, December 5, 2005

I have suffered through bad lawyer writer’s block tonight as well as a computer crash that took two paragraphs of the best stuff I have written in a long time. I guess that is some type of message to me: save frequently. So hopefully the blog will loosen my fingers up for tomorrow so I can overcome my writer’s block and get my antitrust brief written so I am not up until 4AM on Wednesday pounding it out.

Not much significant bike news this week but here is a brief recap:

David Millar, the disgraced Scottish/Maltese former Cofidis rider, has begun to rehabilitate his image, starting with the cover of January’s Procyling magazine. As would be expected, Millar is advocating more and more frequent drug tests to fight drugs. It is a little late, David, as you were tested after you won the World Time Trial Title in 2003 in Hamilton, Ontario while on EPO and you managed to pass the test. Doping is serious and riders who get busted and claim that we need more and better testing irritate me.

Milram, the new sponsor of the former Domina Vacanze team that has signed both Alessandro Petacchi and Erik Zabel, exhibited its new team kit this week with Italian models showing off the light blue jerseys. Not a big fan of robin egg blue but the team should get a lot of wins with its line up if Petacchi and Zabel actually work together.

WADA chief Dick Pound, evidently bored with cycling, targeted the NHL for his latest unsubstantiated broadside on doping claiming that 1/3rd of players in the league were doped. When pressed on it, AP reported that Pound replied that he had conclusive proof but that he did not “want to say more right now.”

In other doping news, the IOC finds itself at odds with Italian doping officials in the run up to the Winter Olympics in Turin in February due to the prospect of the types of police raids that the Giro d’Italia has been subjected to in recent years in the search for drugs. The IOC really does not want Italian police conducting early morning raids on the Olympic Village but Italian lawmakers are insisting that all athletes should be treated the same, i.e. presumed guilty of doping until otherwise proven innocent.

The Giro d’Italia responded this week to objections raised by the UCI, the rider’s organization, and the ProTour to its proposed split stage on the final day of the Giro with an early morning uphill time trial followed by an afternoon race around Milan by pointing out that it was not violating ProTour regulations because it has to date refused to obtain a ProTour license and is therefore not subject to ProTour regulations.

In news covered in detail by VeloNews.com, as police are want to do, the Colorado State Patrol announced this week that it was imposing a unilateral cap on all cycling events to limit them to no more than 2,500 riders per event. That immediately caused the Lance Armstrong Foundation to announce that it was postponing its intention of starting a Ride for the Roses in Colorado and caused other event promoters to object based upon the negative impact such limits would have on some of the largest cycling events in the region. Colorado State Patrol officials claimed they had “consulted” with event organizers and that they had statutory authority to do what they did. After bad press and pressure from both Republican and Democrats in the state legislature the cap has been withdrawn to be “studied.” It is unclear what precipitated the Colorado State Patrol’s action but if they can do it there, they can do it to you in your state.

On a final note that is only tangentially cycling oriented, on the Christmas front, you absolutely, positively have to buy your cycling significant other an iPod. Make sure you buy the Shuffle or the Nano as they have flash memory and thus do not skip when you hit pot holes, if they choose to ride outside and listen to their iPod in possible contravention of local ordinances and statutes. With the announcement of Micron’s joint venture with Intel to manufacture flash memory, you have to support your local industry. Then once you buy your cycling significant other an iPod, be sure to fill it with Audioslave and turn it all the way up. I think a strong argument can be made that Audioslave is significantly better than its predecessor bands Soundgarden and Rage Against The Machine. Soundgarden and Rage were great bands. They had sounds and messages that put them far above others emerging out of their respective scenes. However, Audioslave takes the political message and driving rhythms of Rage, adds the melody and performance of Chris Cornell, an eminently more approachable front man and certainly better song writer than Zack de La Rocha ever was, and takes the best of both of the former bands to an even higher musical level. For the cycling tangent, check out the video for “Your Time Has Come” where Audioslave’s bass player Tim Commerford shows off his cycling skills.