Sunday, June 24, 2007

This ain't legal advice: The UCI Pledge

Press release : The UCI unveils the "Riders’ commitment to a new Cycling"

There's a few things in here worth noting. I'm not sure if this is a translated document. French is the official language of the IOC, so this might be the English version.

It's my understanding that athletes must apply for a license through their National Governing Body (NGB) to participate in IOC sanctioned events. (For me as a fencer, this is the USFA as required by the FIE. For cyclists in the US, this would be USA Cycling on behalf of the UCI.)) I'm only vaguely familiar with the sport of cycling, so I apologize in advance for any errors. I assume as part of applying for a licenses through an NGB, a rider generally accepts the requirements of that NGB contractually. Likely most (if not all) NGBs allow the NGB to unilaterally change its current rules, and probably one of the rules is that you have to abide by whatever the NGB rules are. It is very unclear if this declaration is a required change to UCI rules. The ASO certainly has made it a requirement for the TdF. Even if this is a "contract" (and I'm not sure I see clear evidence of the necessary consideration, other than 'sign this or be barred from future opportunities') it has some...problems.

Starting at the top:

"The Puerto affair highlighted the serious problem of doping in cycling."

OK as a recital. I take everything not bolded as mere recitals, and not necessarily thought of as substantive contract requirements. Still, the first three words reference something with a very vague meaning. Just what exactly is "The Puerto affair?" Indeed, the Spanish authorities (and other law enforcement subsequently have) investigated and/or conducted a police operation that produced some evidence (including bags of blood), only some of which has been disclosed. Does "The Puerto affair" also include a discussion by a rider about the hazards of doping with their own personal physician? "Hey doc...I heard some riders stored some blood for later infusion. Isn't that dangerous?" "No, not if done in a controlled situation. People do that for upcoming elective surgery. Do you want to do that?" "Ummm...not really. Just asking...." Is that rider now "involved with Puerto?" And what if he was *actually* considering some elective surgery?

"This, like all other doping cases, greatly harms my sport and me personally."

There's at least 2 ways to read this sentence. The plain meaning one is fine: "I and my fellow athletes abhor cheaters." Another construction is "all doping cases, including the ones that expose cheaters, harm me and my fellow athletes, so we'd prefer silence, thank you." Don't think that's what the UCI has in mind....

"The uncertainty surrounding the identity of riders and other people who could be involved in the Puerto affair is also very harmful and will continue to be until the case is closed."

Well, the case was closed by the Italian Authorities at least once. That worked out well for Ivan Basso, IIRC. Much of the uncertainty also springs from the fact that doping was not a crime in Spain at the time of the investigation. The case is open, and will continue to be open in many countries, under various requirements of law and confidentiality for some time to come. *Nothing* the UCI, NGBs, WADA or the IOC can do will change that.

Interesting the use of the word "persons" and not "individuals." Maybe a translation issue, but of course, corporations (like cycling teams and their sponsors) are "persons" under US law.

"Currently, there is a climate of suspicion. It is undermining the credibility of my sport and is eroding the trust of the public, authorities, organisers [sic] and my colleagues."

We all laughed when Louis said "Major Strasse has been shot. Round up the usual suspects." (Casablanca, 1942) After all, we know who is to blame, so let's just get on with it. Is there really a climate of suspicion? Yeah. But ya know, coerced confessions are inherently unreliable. It didn't work real well when we were looking for witches in Salem MA in 1692. I also recommend reading Miranda v. Arizona 759 U.S. 436 (1966) I'm not real big on the "so what have you got to hide?" theory of prosecution. It's all too easy to toss out a pledge/declaration to have people sign, but maybe, just maybe, we could have some sound police work (like reliable labs?) done between helpings of donuts? Oh, wait, no, that would cost the UCI money. Can't have that. Easy to print out a "declaration" and stone to death the non-signers.

"For these reasons, I want to make a contribution to putting the situation right and making cycling clean by signing the statement below, to demonstrate that I fully adhere to the principles defended by the International Cycling Union (UCI)."

I like the "[f]or these reasons" preamble structure. Not "for these reasons, and many others, including if I don't sign, I'm a witch. And the UCI burns witches." Cf: The second amendment to the U.S. Constitution. Association with an organized militia needed to bear arms? Dunno, but likely you'll get differing answers depending who you ask.

"...I fully adhere to the principles defended by the...UCI." Hmmm...I wonder exactly what those principles are? Why couldn't we say "adhere to the anti-doping requirements of the UCI? (Like it says below....) Or does this declaration carry with it a greater commitment?

OK, so now we get to the nitty-gritty:

"I do solemnly declare, to my team, my colleagues, the UCI, the cycling movement and the public that I am not involved in the Puerto affair nor in any other doping case and that I will not commit any infringement to the UCI anti-doping rules."

I'm not sure what it means to "...not [be] involved in the Puerto affair...." A rider called to testify in any investigation suddenly "becomes involved" don't you think? We presumably know what they meant: "I'm not a doper under the code." But that isn't what this says. How about a rider that rode behind Basso in the Tour of California? Or took a draft from Jan Ullrich? Didn't those riders benefit from a Puerto conspirator? And is signing this statement *knowing you did* subject that rider to strict liability penalties? Ugh.

"...nor in any other doping case...." OK, so Greg LeMond can't sign this one. He's involved as a witness in the USADA case vs. Floyd Landis. How about roommates or teammates of known Puerto clients? Are they "involved?"

And what about a doping event that hasn't become a case?

"I will not commit any infringement to the UCI anti-doping rules." OK, if not a bit clumsy. Oddly, it doesn't say "I didn't commit any infringement in the past...." I'm uncomfortable with the term "infringement to." That means something else to me, although fairly, I think they mean "violation of."

What if the rules change after the signature?

"As proof of my commitment, I accept, if it should happen that I violate the rules and am granted a standard sanction of a two-year suspension or more, in the Puerto affair or in any other anti-doping proceedings, to pay the UCI, in addition to the standard sanctions, an amount equal to my annual salary for 2007 as a contribution to the fight against doping."

This looks like an attempt at a liquidated damages contracts clause. Under US law, it is likely unenforceable, since it attempts to enable tort-like damages. Aside from that, I wonder what "my annual salary for 2007" is. Does this include bonuses, prize money or endorsement fees? Is the cost of team travel considered "salary?" Is the cost of team gear (including a bike) "salary?" If the rider "pay[s] the UCI" when is it due? If it is a "contribution" is it tax deductible (haha!) and does the UCI have to spend it to fight doping? What does it mean to "fight doping?" Isn't extracting the Dick Pound of Flesh in the form of one years' salary sufficient as a fight, and we pay that salary to the UCI lawyers that wrote this thing? Just thinking ahead....

"At the same time, I declare to the Spanish Law, that my DNA is at its disposal, so that it can be compared with the blood samples seized in the Puerto affair."

Uh oh... I have no idea what "the Spanish Law" is. Sadly, about the only thing that comes to mind is the word "inquisition" but I freely admit this is horrible cultural bias and prejudice on my part. I apologize.

Still, if an individual is going to open up a vein full of DNA to someone, you'd think you'd want to be real specific about who that someone is. Is a Spanish Insurance Company wanting to know if you're insurable "the Spanish Law?" How about someone wanting to know some parentage issues? Well, we do limit it to "so that it can be compared with the blood samples seized in the Puerto affair," but this still seems awfully vague. Is this the only purpose the DNA sample can be used for? And what assurance does the rider have that the DNA won't be used for other purposes? Or that there will be some sort of chain of custody of the sample?

"I appeal to the Spanish Law to organise [sic] this test as soon as possible or allow the UCI to organise [sic] it."

I'm not sure who has access to the Puerto evidence. Likely "the Spanish Law" and I have no clue how that system works. In the US, it seems like a civil suit would suffice. Not exactly sure how that would go either, since a pending criminal trial would also need to be "speedy." But is there enough Puerto blood to test against the entire pro peloton? Again, I'm not sure, but I don't think you can run one test of the Puerto blood, and compare it independently to the hundreds of samples collected. Any doctors care to comment? Don't you have to look for markers by comparing 2 selected samples?

"Finally, I accept the UCI’s wish to make my statement public."

"Major Strasse has been shot...."

In the end, I can see why the UCI may wish to secure a public statement by each rider that says "I didn't dope. I won't dope. I accept the rules of the UCI. To the extent allowed by applicable law, I will cooperate with any investigation, criminal or civil, involving violation of the UCI rules." The UCI can make a rule change to require posting of a bond by a rider, forfeiture of which happens upon conviction of a doping offense, or of proof of perjury of this statement. The value of the bond can be determined objectively by some means proportional to the rider's winnings. The teams can be required to post bond as well. UCI winnings and earnings could be subject to escrow. But it all gets expensive. Imagine that...controlling doping becomes expensive for a sport. Who'd a thunk it?

As Judge Hue points out at Trust But Verify, the attempt to use this "pledge" as a prerequisite to secure presence in a sporting event may be a violation of anti-trust law. Still, the authority of the NGBs are grounded in national legislation, so the conflict might be resolvable.

I would just have written the declaration differently. And maybe a little reciprocal respect from the UCI for the athletes it is supposed to be supporting would go a long way too.

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