Friday, December 15, 2006

Never Lie to the Feds and Other Thoughts

This next week I have one argument before a judge, two briefs due, and all my Christmas shopping to start. So I will get an early start especially since I am on the road on Monday.

Tammy Thomas Gets Indicted

Former USA national team member Tammy Thomas, whose liftime ban was discussed by Charles Pelkey in a VeloNews editorial in 2002, was indicted by a federal grand jury this week in conjunction with the BALCO matter for perjury and obstructing justice.

In 2004, the New York Times provided an account of how far Thomas had fallen after her 2002 suspension for steroids. Supporting herself on $240 a week she earned as a personal trainer, Thomas was engaged at the time in litigation as a pro se litigant suing the drug testing facility and those involved with her suspension.

It is a very sad situation, but the moral of the story is do not lie to grand juries. Ever. You have the protection of the Fifth Amendment to the United States Constitution. Use it. Don't think you can lie and get away with it. Moreover, if two FBI agents ever show up and start asking questions, know that lying to them is also a crime. If you have something to hide, know that they probably already know it and that they will set you up to make false statements. Tell the truth or do not say anything. Anything else is always bad.

The moral of the story: when you use steroids, everyone will know it and they will catch you.

Predictor: Not as bad as it could have been.

Predictor-Lotto (the team formerly known as Davitamon-Lotto) had its team launch earlier this week. The "salmon" jerseys for the team now sponsored by a European home pregnancy test is not as bad as it could have been or as I feared. I just cannot see Belgians running out to buy the kit though.

US Cyclocross Nationals

This weekend is US Cyclocross Nationals being held again this year in Rhode Island. Last year frigid weather and snow storms took their toll on masters and junior competitors. This year the only suspense is how much Ryan Trebon will win by. Dominant American Jonathan Page is coming off an injury that has kept him from racing this season in Europe. If Trebon wins, he will become the first American to win the national title in both Cyclocross and MTB Cross County in the same season. Trebon, however, has already been to Europe this season and has had strong results in addition to his dominant perfromance in the Crank Brothers USGP Series. Here is the link to Cyclingnews.com's main page for coverage of US Nationals.

Sunday Post Script

Trebon did win. Good job.

Mrs. Cycliste Moderne's Brush with Greatness

In looking more closely at the exhibitor registration form for the 2007 Seattle International Bike Expo we realized page four captures Mrs. Cycliste Moderne's 2006 brush with greatness as if you look at the photo on the fourth page of the pdf you will see her in line (she is next to the bald guy at the end) to get Sean Kelly's autograph on a photo we had of him during the 1985 Paris-Roubaix. So far in her career, Mrs. Cycliste Moderne has met Frankie Andreu, Dale Knapp, Bob Roll, Chris Wherry, Marla Streb, Kristin Armstrong, Davis Phinney, Maynard Hershon, Freddy Maertens, and Sean Kelly. She has also had a very personal and intimate encounter with George Hincapie and a porta-john at the 1999 race in Trenton.

Sunday, December 10, 2006

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.