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The Explainer – When is a contract not a contract?

  • By Charles Pelkey
  • Published Aug. 12, 2009
  • Updated Nov. 3, 2009 at 11:38 PM EDT

By Charles Pelkey

Contador wants to strike this pose again next year, but not in that same jersey.

Photo: Graham Watson

Dear Explainer,
Alberto Contador is contracted to ride with Astana for the 2010 season, but at the same time he seems confident that he will depart early.

Please explain the process of escaping a contract early especially in Contador’s case where Astana wants him to stay.
Thanks,
Arch Adams
Hartwell, Georgia

Dear Arch,
Contador does have an existing contract with Astana and those teams thinking about inking a deal with him for 2010 have that major hurdle to cross before being able to put him on the roster.

Contador himself has already turned down a healthy sum of money from Astana to extend that contract beyond 2010 and has publicly expressed a desire to get out of the last year of his current deal. His brother Fran, who also serves as the Tour winner’s manager, recently made it clear that Alberto simply doesn’t want to continue on the team and is looking at his options.

“We have nothing against the Kazakhs, but now we have to think about Alberto,” Fran told L’Equipe last month. “Things are too complicated that we can carry on like this. We have to look for a solution with the year’s contract remaining with Alberto.”

So what solutions can Contador consider? First and foremost, of course, is to find a new sponsor both willing and able to buy out the remainder of the existing contract with Astana. Indeed, that appears to be the strategy currently under consideration by Caisse d’Epargne boss Eusebio Unzue, who is trying to come up with ways to have Contador join the French-sponsored Spanish team.

Unzue told Spain’s El Diario Navarra this week that making a deal with Contador for 2010 would be “feasible, but difficult. He has to get out of his contract with Astana and we’d need a second sponsor to be able to do it. We’re looking for a second sponsor now to try.”

Unzue apparently understands that the quickest approach may be to get Astana to sign-off on a deal in exchange for cash. Just how much cash that might require would, of course, be the subject of negotiation. Astana, in turn, would have to weigh the costs and benefits of taking money or having an apparently unhappy team leader for the coming season.

But there might be other options.

Remember Contador, whose first Tour victory came when he was a member of Bruyneel’s Discovery Channel team, found himself unemployed at the end of 2007 when that U.S.-based sponsorship deal evaporated. Bruyneel had hoped to find another sponsor for his own team, but when that didn’t happen he accepted an offer from Astana’s Kazakh sponsors to take over a team that had been left floundering because of the suspensions of Alexander Vinokourov and Andrey Kashechkin for homologous blood doping.

In one of the cycling world’s most wonderfully crafted press releases, the Kazakh Cycling Federation announced the deal with Bruyneel by noting that the team had run into problems.

“As we recall this year some of team’s riders were linked to using performance enhancing drugs,” the release noted. “In spite of these issues the KCF firmly decided to move forward, having conducted large-scale changes in its activity management.”

And as we recall, that “large-scale” change mainly involved handing the management reins off to Bruyneel, who mostly just switched out all of those old Discovery jerseys for Astana’s. He signed deals with former Disco’ riders like Contador, Levi Leipheimer, Sergio Paulinho and others.

But remember that the Astana team was created by desire to promote Kazakhstan itself and to serve as a showcase for that country’s top riders. While Vinokourov and Kashechkin were cooling their heels waiting for their suspensions to expire, leaving the team in the hands of others worked reasonably well. But, as was made clear by Vino’s rather mouthy press conference in Monaco on the eve of this year’s Tour, it was going to get mighty uncomfortable when those suspensions ran out.

As Fran Contador said, the situation at Astana is currently “complicated.” Indeed, that complexity may have, at least in part, contributed to the decisions by Lance Armstrong and Johann Bruyneel to cut ties with Astana and go their own way with RadioShack for 2010.

But that complexity may also give Contador other options. It’s likely that Contador has at least considered the possibility of mounting a legal challenge, hoping to have the courts declare that contract void because of several factors.

First, Contador might be able to argue that the Astana team has, once again, undergone “large-scale changes in its activity management,” meaning that the fundamental conditions of his contract have changed. Contador did apparently sign a deal with the Kazakh Federation – and not with Bruyneel or his management company – but he did so with the understanding that he was riding for a team that would be operated by someone other than the Kazakh Federation in general and Vinokourov in particular.

Furthermore, Contador may be able to argue that this year’s financial difficulties – during which riders, staff and others were not paid in a timely fashion – constituted a breach of his contract. While on the surface that may appear to be the best strategy, Kazakh officials have recently suggested that they met the conditions of the contract itself and had only been withholding additional monies required because of Bruyneel’s accelerated spending. We’re not sure if that’s just posturing on their part or if there is some basis in fact. Either way, it will be one for the courts to decide, if that one’s raised.

Contador may also have an out if Astana loses its ProTour status. While its current license is set to expire at the end of 2010, the team already faced a possible license revocation procedure this summer, one that was only stopped when the team’s sponsors came through with money owed riders and staff. The possible return of Vinokourov to an active role on the team could cause problems.

Contador could conceivably attack his existing contract in either the European courts, or make a direct appeal to the International Court of Arbitration for Sport (CAS).

At this point, we’re in the same boat as most observers and we’ll just have to wait and see what happens.
Charles


Dear Explainer,
I’m curious about Alexander Vinokourov’s return to racing. I know when Lance Armstrong wanted to return for the Tour Down Under, he hardly had enough time to get into the biological passport program, as they needed six months (I believe) of testing to build up a profile.

It seems like Vino’ returned as soon as his suspension ended. Does that mean that he was still undergoing blood and urine testing while under suspension? I would assume that his return to competition would be dependent on a very thorough examination of his biological passport numbers.
Mark Steckel
London, Ontario, Canada

Dear Mark,
Riders under suspension are generally required to submit to testing during that suspension, but only if they intend to return to the sport.

Article 10.10 of the World Anti-Doping Code requires that suspended riders hoping to be reinstated make themselves available for out-of-competition testing for the duration of that suspension.

Interestingly, not long after his initial one-year suspension (later extended to two by CAS) was imposed, Vinokourov publicly declared that he was through with cycling and said he was going to retire.

“I don’t want this sport anymore,” he said during a news conference in December of 2007.

The WADA Code, however, says that if a rider retires and then changes his mind, he must still subject himself to out-of-competition testing for a period equal to the suspension. Apparently, ol’ Vino kept his options open, despite his public declarations to the contrary.
Charles

Email Charles Pelkey


“The Explainer” is a regular feature on VeloNews.com. If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to WebLetters@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.

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