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The Explainer: Questions about the UCI’s defamation suit against Floyd Landis

  • By Charles Pelkey
  • Published May. 5, 2011
  • Updated May. 17, 2011 at 9:21 PM EST
Dick Pound: Contrite, but in his own way.

Q.Dear Explainer,
So Pat McQuaid, Hein Verbruggen and the UCI are suing Floyd Landis for bringing the “integrity” of cycling into question. So what?

Pat McQuaid at a news conference about Landis' claims, May 25, 2010. Photo: Graham Watson

Why is this case being filed in Switzerland? Why not the United States? Are they just looking for a friendlier court to hear the case? I read recently that the chance to file a suit in the U.S. has expired since Landis made his comments more than a year ago.

What amounts to libel in Switzerland? Is it different than here? Didn’t they try to sue Dick Pound in the same way?

And what if they actually win? So what? What are they going to be able to do to him?
– Allison

A.Dear Allison,
The story and your questions bring up a quite a few interesting points that we can address in this column.

First off, as in most countries, Swiss law does provide a potential plaintiff several options for recourse in the event he or she has been defamed by the public statements of another. Pursuing the matter through Swiss courts, however, would probably have little impact on a foreign defendant who doesn’t plan on returning to Switzerland or own any assets in that country.

So why Switzerland?

In answer to your first question, it’s really doubtful that the plaintiffs in this case were filing the case in Switzerland merely because the laws are in their favor there. If they were, indeed, engaging in such “forum shopping,” there are other options that would have served them better, with Great Britain topping the list for anyone hoping to file a libel or slander lawsuit.

Switzerland is a pretty logical place to file the case, as all three plaintiffs in this case are well established in that country. The UCI is, of course, based in Aigle, Switzerland, and although McQuaid is an Irish citizen and Verbruggen is Dutch, both live and work there and the alleged defamatory statements were directly related to the work they do in that country.

In a modern media world, one essentially without borders, Landis’ allegations probably wouldn’t even need to have been published in a Swiss newspaper or appear on a Swiss-based website for an alleged defamatory statement to fall within the jurisdiction of Swiss courts. Those statements were, in this case, reprinted and rebroadcast in Switzerland, so that discussion is largely moot.

Certainly when it comes to the one potential U.S. plaintiff — Lance Armstrong — the case, had there been one, would have been filed in the United States. That’s a difficult and often impossible option for foreign plaintiffs.

Despite some recent media reports to the contrary, the U.S. clock has not fully ticked on the statute of limitations in this case — even in those states with a very limited window of opportunity to sue — merely because Landis’ comments regarding Lance Armstrong and the UCI were first made a year ago. Landis has repeated many of those allegations in the months since and that leaves the door open here as well.

Anyway, Switzerland seems a natural jurisdiction in which to file the case, but the impact when it comes to Floyd Landis may be fairly limited.

What constitutes defamation?

The definition of defamation varies by country, but you can basically summarize it by saying it’s an untrue statement that is treated as factual and is designed to cast a person (or government, product, business or even a country) in a negative light.

Okay, so sue me.

Again we have a lot of out-dated language and definitions that have been tweaked to accommodate modern technology. It used to be that “slander” generally applied to spoken defamation and “libelous” statements were those defamatory statements put in writing. Since the age of radio and television — and now the Internet — it’s easier to classify slander as a “transitory” statement, one that isn’t preserved, and libel as something more permanent.

Anyway, the standards of proof vary from country to country, with Great Britain probably having some of the most plaintiff-friendly libel laws in the developed world. There are a host of successful British libel and slander cases that wouldn’t get very far in the United States, for example. In a criminal libel case in Britain, truth isn’t necessarily even a defense, since the offense is viewed as a “breach of the peace,” and even true statements are viewed as being able to rile up the masses, I guess. In civil cases, truth can be used as a defense, but still not with as much certainty as it could be used in a U.S. court. Swiss law does, however, allow for truth to be raised as a defense, both in civil defamation suits and the two criminal libel statutes that even provide for periods of imprisonment for up to three years.

Here in the U.S., truth is always a defense against a defamation claim and even if the statement is untrue, a potential defendant has a lot more wiggle room than he might in other jurisdictions, especially when it comes to comments about public figures. If you make a libelous or slanderous statement about a private individual, you pretty much have to be certain it’s true. If it’s false, the plaintiff just has to show that you exercised a negligent disregard for the truth when making the statement. When it comes to a public figure — a Hein Verbruggen, a governing body or an international sports star, like Lance Armstrong — the standard is quite a bit higher. The plaintiff has to show actual malice or a reckless disregard for the truth on the part of the defendant.

That goes a long way to explain why you don’t see that many libel and slander cases involving public figures in the U.S. Success is rare and the costs are generally quite high.

Mark Fabiani, Lance Armstrong’s spokesman and attorney, said that Armstrong had “no intention of wasting any more time or money on Floyd Landis.”

Indeed, with an ongoing grand jury investigation, Armstrong’s considerable legal resources are being directed elsewhere and that’s probably the best forum in which to affirm or discredit Landis’ charges anyway.

What if they win?

So what if Landis is sued in Switzerland and he ultimately loses the case? There really isn’t a heck of a lot they can do to the guy.

Leaving aside the question of whether Landis’ assets have already been drained to the point that he would be considered to be “judgment-proof” (the old legal principle of “blood from a stone” applies here), a large judgment against him in Switzerland isn’t going to be enforceable here in the U.S. anyway. The United States is not a party to any international convention governing the recognition and enforcement of foreign judgments. Even a small and very limited attempt 35 years ago to create reciprocal recognition and enforcement of civil judgments between the U.S. and Great Britain failed to gain traction and was never even presented to the U.S. Senate.

So if he were to lose a civil suit — or even lose a criminal defamation case — in Switzerland, Landis would have little to worry about unless he has assets in Switzerland or plans on spending any time there in the future.

While Landis says he expects to mount a vigorous defense in the case and subpoena many of the people he named in his private testimony to USADA, it’s doubtful that he, or the plaintiffs in UCI v. Landis would have the authority to enforce any demand that those individuals either appear in a Swiss court or even submit to a deposition here in the U.S.

This is not the first time the UCI has tried to use the Swiss court system to shut someone up, though. You’re right that Dick Pound, the former president of the World Anti-Doping Agency, was similarly sued by both the UCI and Verbruggen for similarly outspoken statements regarding the integrity of cycling.

Dick Pound: Contrite, but in his own way.

That case ended in 2009 when Pound publicly acknowledged “the fact that some of his comments reported in the media might have seemed excessive if they were interpreted to mean that the UCI and Hein Verbruggen were doing nothing to combat doping.”

As an aside, I would let that “retraction” slide without comment, but I found myself smiling when I read “might have seemed excessive if they were interpreted to mean ….” I have to admit that out of all the lawyers I’ve ever interviewed — and there have been quite a few — Dick Pound has to be my favorite. You don’t generally see him hesitating, hedging or trying to put “spin” on anything he says. I guess from my biography at the bottom of the page, you can see that I used to be Alan Simpson’s press secretary. I used to joke that it was the easiest job in Washington, because you really didn’t have to try and put “spin” on his comments, with “what the Senator meant to say …” because the Senator actually did mean to say “stick it up your (rear).” Dick Pound is a lot like that and whether you agree with him or not, he was — and remains — refreshingly candid.

The UCI suit, filed in early 2008, may have carried a bit more weight in Pound’s case than in anything involving Landis, though. Pound has been and continues to be an active member of the leadership of the International Olympic Committee. He undoubtedly has assets — bank accounts and/or real property — in Switzerland and he regularly travels between his home in Montreal to IOC headquarters in Lausanne. A pending lawsuit might qualify as more than an annoyance for Pound. A civil judgment would be carry some weight there.

At this point, when it comes to Landis, I doubt that it will amount to that. I doubt he has many assets in Switzerland. He really has little need or reason to travel there and the long arm of Swiss law ain’t long enough to reach here.

As one attorney looking at the case noted, “it looks like a PR move on the part of the UCI, one where they pull out all of their resources to try and shut someone up. I doubt it will go anywhere, though.”

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