Rechtsanwalt, Legal Director
Out-Law News | 06 Nov 2012 | 9:09 am | 4 min. read
Sports law specialist Trevor Watkins of Pinsent Masons, the law firm behind Out-Law.com, said that if allegations that the International Cycling Union (UCI) failed to properly combat doping are substantiated it will have lost the "moral authority" it needs to govern the sport.
Watkins was commenting after Skins, a sportswear firm, announced that it has sued UCI for $2 million. Skins claim that the way UCI has handled the problem of doping in the sport caused damage to its brand as a result of its association with the sport as a sponsor.
A recent report by the US Anti-Doping Agency (USADA) concluded that seven times Tour de France winner Lance Armstrong had been an "extensive" user of performance-enhancing drugs and that his team "ran the most sophisticated, professionalised and successful doping program that sport has ever seen".
According to the USADA report, Armstrong and his team managed to avoid or cheat drugs tests conducted by the UCI and that Armstrong paid UCI to cover up a positive test, something the UCI denies.
"In order for Skins to succeed in its case it will first have to demonstrate that there was a legal relationship between it and UCI which the governing body has breached," Watkins said. "Either Skins will rely on any contract it had with UCI, which would dictate the terms of the action it is now taking, or otherwise need to establish that UCI had a duty to it and this had been breached which would be much harder to prove. Because of these legal technicalities it must overcome I think Skins will find it difficult to succeed in its actions."
"Irrespective of the outcome of legal action, the practical consequences could far outweigh them. UCI is facing immense scrutiny. If any of the main accusations stick it will be difficult for UCI to recover as a body," Watkins added.
"The Armstrong affair will lead to changes in the way sports governing bodies are created and run. If a governing body loses its moral authority to govern then it must either be re-constituted or in extreme cases a new body being formed to replace it. It would need to be for the sake of the sport. If, for example, UCI is deemed to have had a lack of control, turned a blind eye or tolerated indiscipline over doping then this will deter other sponsors and broadcasters from wanting to be associated with the sport," the expert said.
In a letter (2-page / 92KB PDF) to the UCI Skins said that comments UCI's top two officials made on the issue of drugs and how they had then "dealt with the case of Lance Armstrong" was the "main cause for the total loss of confidence in professional cycling by the public" which it claims "harms" it and other sponsors and suppliers.
"It is now clear that Skins’ financial and emotional investment into cycling has been damaged and our legitimate commercial expectations have been betrayed," Skins said in a separate statement on its website. "If the public no longer have confidence that cycling is ‘clean’ they may question those who support its existence."
"The UCI has announced that it will invite an independent commission to investigate cycling’s obvious problems but the fact that it took another organisation’s report to force them into action (and greatly delayed action) is a disgraceful reflection of incompetence at best," Skins added. "It fills me with absolutely no confidence that the UCI is either capable of leading global rehabilitation or commissioning a suitably independent and unrestricted group to conduct the forensic enquiry the sport crucially requires. Those at the top have presided over the mess, so how can they possibly be given the responsibility of commissioning and overseeing its review?"
"Skins’ demand against the UCI sends out a serious corporate message that the support of partners and sponsors in any world sport cannot be abused and must be preserved by unimpeachable leadership. The unequivocal overhaul of cycling can only be achieved by a credible and capable governing body. In serving this action, Skins’ is also serving notice that the UCI is not currently the organisation that cycling needs it to be. For the last 22 years, there have been 2 people at the head of this organisation and we allege that they are directly responsible for the culture of denial within the UCI. It’s past time for change," the company said.
In a statement published late last month UCI president Pat McQuaid said that the governing body was " determined to turn around this painful episode in the history of our sport" and that it would "take whatever actions are deemed necessary by the independent Commission".
McQuaid said that cycling today was a "completely different sport from what it was in the period 1998-2005" during which time Armstrong won his Tour de France titles and that "riders are now subject to the most innovative and effective anti-doping procedures and regulations in sport."
Sports law expert James Earl of Pinsent Masons said that the action Skins had taken sends "a very powerful message" to sports governing bodies that they must be accountable for the issues over which they preside.
"Attitude and the way problems are dealt with by governing bodies are critical to the maintenance of value and appeal of commercial rights in sport," Earl said. "Governing bodies need to show they are carrying out thorough investigations and otherwise have robust reporting and monitoring systems in place if they – in this case, the UCI – are to make the bold public statements that Skins allege led them to believe that cheating had been eradicated from cycling."
"Skins is taking action as a brand management exercise and is actively trying to distance itself from the controversy and damaging situation that has cycling currently finds itself dealing with," Earl added.
"UCI may argue that it felt entitled to say that cheating was eradicated since it arrived at that view after investigating the issue and otherwise having checks and balances in place. UCI may also point to the fact that the USADA report into Lance Armstrong and the team he rode for identified a system of doping that was one of the most sophisticated ever uncovered, that the system had been designed to beat its checking procedures and that it would probably also have defeated other systems that are otherwise regarded as fit for purpose," he said.
Rechtsanwalt, Legal Director