Tuesday, May 13, 2008

What it takes to be a competitve bike racer

Here’s how the Cycling powers obtain control over you. Being subject to their Code is a creature of Contract. Want to be a profesisonal cyclist? UCI requires competitors to have a sporting license. If you don't want to participate in their league (including the Olympics), no need to apply. If you're a US citizen, here's your application for an international license:


In order, the clauses you agree to have interesting consequences. Note that this is a non-negotiable contract:

1. “I am not aware of any reason why the requested license should not be issued.” This simple declaratory premise is likely a warranty of quality of the application. Lying can provide the other party the ample opportunity to allege fraud, as well as avail themselves to other defenses, including unilateral mistake or illegality.
2. “I have not requested a license from the International Cycling Union (UCI) or from any other national federation for the calendar year.” Again, another warranty. USA Cycling does not want you to be answerable to another entity, as this can complicate the jurisdictional issues.
3. “I am solely responsible for the information contained in this application….” Removes the ability of the cyclist to interplead a third party or agent, such as a coach or team owner. It is possible that a professional cycling contract could contain a promise of indemnification by the employer, but I’ve never seen such an agreement.
4. “…and for the use I shall make of the license.” USA Cycling is not interested in dealing with a third party that fraudulently (or otherwise) uses a license it issues. They know where you live, and if they suffer damages, they want them from the person signing, not some person they can’t find.
5. “I shall undertake to respect and comply with the constitution and regulations of the UCI, its Continental Federations, and its National Federations.” Now we’re cutting to the chase. This is interesting, considering the current spat between UCI and the Rival Cycling League, ASO. Should a rider be issued a license with these terms and conditions, and the UCI says “you can’t participate in that race” and you do, you are subject to penalty, including, presumably, revocation of this license, this license perhaps being a prerequisite to entry into the ASO race? One aside worth noting is the third “and” in the sentence: if the listed organizations have inconsistent rules, perhaps the clause is unenforceable as vague?
6. “I declare having had the opportunity to read such constitution and regulations.” Ignorance of the law is no excuse. (Ignorance of the principles of due process and equal protection of the laws seems to be another matter.) I am really really curious if there actually is an opportunity to read these things. How many federations and how many languages are involved? If push came to shove on this one, I rather suspect a court might be inclined to find this a little over-reaching.
7. “I agree to compete in a sporting manner.” Yeah, whatever. The other parties sure as heck made no such promise.
8. “I shall submit to disciplinary measures taken against me and shall take any appeals and litigation before the authorities provided for in the regulations.” Welcome to the Star Chamber, have a seat. This clause seems to preclude a cyclist from commencing litigation in a non-administrative forum, but there is no such requirement, presumably, for USA Cycling to do so. They can go to any court they choose, but the cyclist can’t. And if that was in question, presumably they could amend their regulations to make it so. Are we getting the picture here yet?
9. “I accept the Court of Arbitration for Sport (CAS) as the only competent jurisdiction of appeal in the cases provided for by the Regulations and in compliance with the terms thereof.” Exclusive jurisdiction: one of the hallmarks of Justice. Even the CAS has a rule allowing for, in certain very limited circumstances, for an appeal of a CAS award. This clause seems to preclude even that. No point brushing up on your Suisse Rules of Procedure.
10. “I accept that the decisions of CAS shall be final and binding and not subject to appeal.” Interesting: suppose you had evidence after a CAS proceeding that one of the CAS arbitrators had acted in violation of the rules of the CAS? Suppose s/he took a bribe to rule in a certain way? Perhaps that then would be considered a “decision of the CAS,” the term really meaning “…a valid decision of the CAS….”
11. “With that reservation, I shall submit any litigation with the UCI exclusively to the tribunals at UCI headquarters.” I think this means any litigation *against* the UCI, not any litigation involving the UCI. Again, this clause is not reciprocal. Presumably the UCI could file against a cyclist in any court of their choosing.
12. “I agree to submit to drug testing and to comply with and to be bound by the UCI anti-doping regulations, the World Anti-Doping Code and its International Standards to which the UCI anti-doping regulations refer as well as the anti-doping regulations of other competent instances as foreseen by the UCI Regulations, the World Anti-Doping Code, or the U.S. Anti-Doping Agency (USADA), provided such regulations comply with the World Anti-Doping Code.” Ah, the Queen Sentence of the agreement. I find the reference to “International Standards” intriguing here. I would think such a reference would include things like scientific certainty, calibrations, certifications, reliability…in other words, all those things LNDD screws up with regularity. No one can make standards less that WADA’s code, WADA rules supreme here, but I am really curious about what it takes to “comply” with the WADA code. Suppose the WADA code says “thou shalt not have more than 1000mg/ml of Xenomorphozol in thy pee lest We smite thee” and a Rival Cycling Federation says “Yea, for if thou haseth more than 900mg/ml of Xenomorphozol in thy pee, We shall compare thy pee from last week to see if thou cheateth.” A finding of 950 triggers a subsequent test that also shows 950. Does this “comply?” Is it more or less stringent? Dunno. There is also a reference here to “…anti-doping regulations of other competent instances as foreseen by….” I have no friggin’ clue what that’s about.
13. “I further agree that the results of the analysis may be released to the public and communicated to my trade team, coach, or doctor in accordance with UCI and WADA regulations.” May be released by *who*? Presumably, USA Cycling, but if USA Cycling had no involvement with the publisher (say, the French Tabloid L’Equipe) this means nothing.
14. “I agree to allow my doctor and/or the doctor of my team, upon the request of the UCI or WADA, to release to UCI and WADA officials a list of medications or treatments administered to me before any specific competition.” Hmmm…I’m not sure, but I do wonder how compliant this is to be effective as a HIPAA release. This agreement is not going to the doctor, but allows USA Cycling, UCI and WADA to obtain health care information that is otherwise protected from disclosure. I am curious what it takes to become “my doctor and/or the doctor of my team”? Hey, that was flax seed oil you rubbed on my arm, right? Trainers and coaches not included? Anyone practicing medicine without a license?
15. “I agree that all urine samples in such cases taken shall become the property of the UCI and WADA, and that UCI and WADA may have them analyzed for any purpose, including, without limitation, general research and information on health protection.” Wow. No such proviso for “in accordance with the rules, or as otherwise provided for by law” here. At least this is limited to urine samples, but still, I think urine contains cellular residue and DNA? And you’re going to make that “the property of the UCI and WADA” for “any purpose?” WADA seems to be a little short on cash, so maybe they wish to sell genomes to insurance companies looks to cut their risks of insuring people with pre-existing conditions. Nice.
16. “I accept these conditions regarding blood testing and agree to undergo all tests required of me.” If a test of you is required while attending your infant child’s funeral, you must excuse yourself and do as directed. No notice requirement here. Last I read Matthews v. Eldridge, minimum due process included both being informed of the charge against you, and an meaningful opportunity to respond. Not sure the latter is being provided. Yeah, the charge is always suspicion of doping (or is it?) but can you request a slight reasonable delay? Apparently not.

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