Basso, the UCI, the Grand Tours and the EU

To make things clearer in the Cycliste Moderne Archive, I am going to start titling each issue. The reference soley to entries by date does not really make this a reader friendly blog. Anyway,
I have been swamped with the law leading up to Christmas. I am in a rather intense cycle of briefing, hearings and more briefing. As such, I have not written for quite a while. The issue though that has merited some attention, however, are the latest twists in the Operacion Puerto saga. For the best coverage of what all has happened, take a look at the archives at cyclingnews.com.

Saturday, the International Professional Cycling Teams (IPCT), a trade association of nineteen of the twenty UCI ProTour teams voted to exclude two of its members, Discovery Channel and Active Bay, which is the management company that owned and operated Liberty Seguros before the collapse of that team as a result of Operacion Puerto. The IPCT is not the ProTour and has no authority over ProTour races and entries. In fact, for whatever reason, Francaise de Jeux has never been a member of the IPCT. The ProTour teams took the action because they believed that Discovery had breached the agreement of the teams not to sign any rider implicated in Operacion Puerto. The other ProTour teams are livid that Discovery would sign Ivan Basso especially since Discovery’s directeur sportif Johann Bruyneel had been one of the strongest voices for the exclusion of Basso and the other implicated riders from last year’s Tour de France.

No rider has been convicted yet of any wrong doing related to Operacion Puerto and no rider has been disciplined by any national anti doping authority yet either. Earlier this year, officials in Spain ordered anti doping officials to stop using Operacion Puerto documents in doping cases, putting a stop to all disciplinary actions. Prior to that, however, Italian cycling and anti doping officials had cleared Basso of any wrong doing based upon the documents that had previously been provided to the UCI by Spanish justice officials. They determined that based upon the records provided, that there was no evidence that Basso had been involved with the Spanish doping ring. From the evidence that had been released, it appears that Basso may have been mentioned in code by some of the targets in the investigation during wiretapped phone conversations. However, unlike other riders implicated in the matter there does not appear to be any evidence of the type of doping regime for Basso that purportedly existed for many of the other riders. Discovery sent their lawyer to the Saturday IPCT meeting and has indicated that it will be evaluating its legal options.

What is intriguing, however, is how EU law is going to eventually come into play with the sport. The EU has rejected claims from suspended athletes found to have doped that they have been deprived of their livelihoods in contravention of EU law. However, Operacion Puerto raises a different and distinct question, whether the top level professional cycling teams can agree not to sign riders who have only been tainted by doping investigations but have not yet been subjected to discipline by sport tribunals or convicted of criminal wrong doing by national tribunals. I think this issue will come to a head if and when Discovery Channel and Ivan Basso are denied entry into any ProTour events.

A couple of weeks ago several national federations and race promoters announced their intentions to bring an antitrust action against the UCI for the structure of the ProTour. The ProTour was intended to create a much higher level of competition in cycling along the lines of the UEFA Champions League in soccer. The ProTour was intended to be a league where the best teams were all ensured entry into the top races. The formation of the ProTour ensured that teams at the top did not have to rely upon the caprice of race directors to get into the Tour de France and other top races. The ProTour teams were all guaranteed entry into the ProTour selected races but they were also required to race every ProTour race as well. The ProTour teams had greater assurances of getting into the Tour de France, but they were now also obligated to race a much more strenuous schedule. Historically everyone wanted to be in the Tour de France, but the demand to race the Giro and the Vuelta was much less, as a result, those races were national in nature.

As a result, the cost of sponsorship increased as ProTour team rosters increased as for the first time, teams had to field riders for all three Grand Tours. More importantly, however, was the fact that teams would typically have to field race teams for simultaneous events. Gone were the days when top teams rode either Paris-Nice or Tirreno-Adriatico, now the teams had to field riders for both, essentially doubling the amount of infrastructure that teams required. US Postal Service never really participated in Italian races, instead focusing on races in France and Spain. With the advent of the ProTour, when US Postal Service became Discovery Channel, it raced and won the Giro.

Second tier events, however, struggled to put together competitive fields. Minor races found themselves without the star power necessary to attract sponsors due to the demands of the ProTour schedule. TV outlets were not interested in televising a race without notable stars. ProTour teams were also unable to earn points when racing in non ProTour events.

So where does the EU come into play? In the mid 1990’s a minor soccer player for a minor team in a minor country sued under the EU’s employment regulations setting off a revolution in sport employment in Europe. The “Bosman Ruling” put an end to transfer fees being paid or required for soccer players to move from one team to another even when their contracts had concluded. That was followed with a judicial ruling which struck down nationality quotas for players on teams and has resulted in the internationalization of soccer in Europe. Teams that used to be made up almost exclusively of players developed by a club’s soccer academy for junior players are now multinational all star teams. Top English teams Arsenal and Chelsea have virtually no regular first team players that are English.

If the top teams, the Grand Tours and the ProTour go down the path of excluding riders and teams suspected of wrongdoing, I think it is ultimately the laws of the EU which will be called upon to put cycling’s house in order. The EU does not have any direct authority over the UCI which is based in Switzerland and is governed by Swiss law. However, it does have authority over virtually all the race teams and the race organizers.

I do a fair amount of antitrust litigation work. I kind of wish that I was a European antitrust and employment bike attorney at the moment because they are the only ones that are going to profit from the current mess of things at the top levels of cycling.