Katusha revisits Crime and Punishment
Posted on 24. Jun, 2009 by Josh in Bike Racing
Would-be Russian superteam Katusha has is making its riders sign a contract addendum requiring them to pay the team back five times their annual salary in the event of a positive doping test. The new “agreement” came up after Christian Pfannberger got popped before the Giro and several riders initially refused to sign it. Among the holdouts were Toni Colom, Robbie McEwen, Kenny DeHaes, and Gert Steegmans. Colom’s reasons became clear when his own positive test was announced. McEwen questioned the “vague” terms that made “no reference to existing official anti-doping guidelines” but did sign after consulting with his lawyers. DeHaes left the team and signed with Silence-Lotto. Now, Steegmans is the lone holdout and has sacrificed his Tour de France start.
It’s tempting to draw a straightforward conclusion that this guy must have something to hide. That’s certainly possible; after all, he is a pro cyclist. But the bigger picture isn’t that simple.
The vagueness referred to by McEwen is a big issue. If the addendum doesn’t cite official guidelines, what standards does it use? Does it require a B-sample analysis for confirmation? Does it accommodate the rider’s right to an appeal? If the contract doesn’t address those points, I don’t think we can fault riders for hesitating to sign it.
Moreover, this would set a precedent that teams can force riders to accept changes to their contracts in mid-season. For what it’s worth, the CPA, cycling’s wannabe union, is supporting Steegmans on these grounds. No word from the UCI.
Most importantly, would this actually be an effective deterrent? DS Serge Parsani said earlier this month, “Our team is not looking for money but wants to put in place something that will really dissuade the riders to go against the rules.”
A couple years ago, I looked into the question of deterrence in the anti-doping movement for my column in ROAD. I learned that current sociological research is finding that, at a certain point, increasing the likelihood of punishment is a more effective deterrent of crime than is increasing the severity of punishment.
Has cycling reached that point? I think Bernhard Kohl would say that it has. My reading between the lines of his various announcements and interviews is that he understood that getting caught would mean the end of his career but he continued to dope because he was so confident that he would get away with it. Without the CERA curveball, he thinks he would have.
What, then, would actually work? Teams with internal anti-doping programs seem to be taking the “increasing the likelihood of punishment” route. So far, the perception is that these programs are working but I’d love to do a true analysis of the statistics for positive tests over the last few years relative to internal anti-doping programs. Maybe that should be my next column for ROAD.
Another approach is to create a positive atmosphere within the team. I interviewed Cervélo co-founder Phil White about this at the Tour of California. He believes that by engaging Cervélo TestTeam’s riders and giving them more of a voice, they’ll be less likely to cheat and put the team at risk. I’ll edit and post the video at some point, hopefully soon.
Getting back to the crime analogy, it seems that the options are:
1. Harsher sentencing
2. More cops on the street
3. Community programs, education, etc.
Katusha seems to be going for Door Number One. It will be interesting to see how their approach works out compared to teams that have chosen the other routes.
A legal sidebar.
Note: Without knowing any details of the Katusha contracts these next couple of paragraphs might be completely inapplicable. Also, I am not a lawyer.
The addendum to the riders’ contracts would award liquidated damages, meaning a predetermined amount that compensates one party if the other breaches the contract. In most common law countries like the US and Australia (where McEwen is from), liquidated damages specified in a contract must be based on a reasonable estimate of the actual monetary loss sustained because of the breach. Anything beyond that is considered an invalid “penalty clause” designed as a punishment or deterrent.
But in civil law countries like Belgium and Russia, penalty clauses are allowed. However, they can be voided or reduced if disproportionate to the actual loss. That’s where it gets tricky because, unless the next positive test directly caused sponsors to pull out, there would be no actual loss to the team other than “loss of reputation”. That’s tough to quantify, especially when you add the Colom and Pfannberger tests to the mix. The result of a rider challenging the addendum in court is anyone’s guess; mine is that it would take a long, long time to resolve.
Steegmans photo from the team. Team photo from ponte1112.
