In a quiet moment the story of Phil Gaimon inserting into his biography an opinion about what was in Fabian Cancellara’s down tube 7 years ago had the cycling world roiling this week. Gaimon, commenting somewhat offhandedly on the accusation that Cancellara had used a motor to accelerate away from Tom Boonen and into history with his wins in the Tour of Flanders and Paris-Roubaix, said that if he had to pick a side he’d say he thinks Cancellara cheated. That set off an angry bees’ nest of tweets and a demand from the retired Swiss star that Gaimon’s book Draft Animals be pulled from the shelves, and that the also-retired American rider apologize for his heresy.
I am one of those people when the subject of motor doping comes up. Perhaps you remember me from such opinions as “I don’t think anyone would be stupid enough to use a motor” and “Cancellara can be a bit of a diva.” I have plenty of opinions, which qualifies me for a social media account but not much more.
I also have a law degree, and it occurs to me that the conversation is maybe missing some key points. If geeking out on GaimotorGate is your thing, well, read on.
For Whom Libel Tolls
Cancellara’s demand to pull Gaimon’s book from the shelves is a pretty severe overreaction and maybe doesn’t paint him in the best light. Personally, if I had accomplished as much as he did, I’d be a little more dismissive and less serious in dealing with fairly outlandish and baseless claims.* The thin-skinned reaction look is a bit of protesting too much. But I’m probably not appreciating what life is like as a famous person in general and a cyclist in particular, given all the shit people talk about the sport. So who knows.
[*Please don’t come at me with “the motors exist!” and “that Belgian woman!” This suggests it was possible for Cancellara to cheat. It is zero proof of him having actually done so in any court more committed to fairness than your average military junta tribunal.]
But whatever, Cancellara seems set on “going there,” and “there” means a libel claim. Not slander, that’s for spoken words; libel is for printed ones. And guess what: it’s choc-full of required elements! Probably so judges, who already have a lot on their plate, don’t have to sort out every instance of rude behavior.
In America, we have the following required elements, and I note that they come from English common law, so this probably goes for anyone reading this post:
- A makes a defamatory statement about B, meaning he or she (he) says something factually false in a way that subjects B to ridicule, scorn, etc.
- A made this statement negligently (toward a private party) or recklessly/intentionally (toward a public figure); and
- B has suffered injury or damages as a result.
Gaimon’s words don’t just maybe not quite measure up to libel; they actually fail each and every element of a libel claim...
1. Defamatory? Nope. The key to defamation is that it be a factual assertion. Had Gaimon said “Cancellara cheated in those races,” or even “I saw him cheat” or “I have information about him cheating,” it would have met the test. But he quite pointedly did not assert the claim as fact. In Draft Animals he made an observation about Cancellara’s pedaling and said “that fucker probably did have a motor.” On Twitter Gaimon insisted he’s repeating rumors and expressing a “gun to my head” opinion. Nowhere does he make a clearly factual assertion. Fail any one element of the claim and the lawsuit is over. But what the hell, I’m enjoying myself, so let’s continue.
2. Reckless or intentional: this is interesting because of how there’s a higher bar in effect. Because Cancellara is clearly a public figure, the defamation would have to be made with knowledge that it is false, or with recklessness toward the truth. If Cancellara were an average bloke like, uh, me, then Gaimon would had to have only been negligent, meaning that he didn’t make enough effort to determine whether it was true. Either way, by saying “probably” it’s hard to assert recklessness or even negligence. I’m blurring points 1 and 2 a bit but he took care to not say “he cheated” so I think the same word debunks two elements in one fell swoop.
3. Harm or damages: good lord. Have any sponsors dropped Cancellara yet? No? Then get lost, haplessly aggressive Swiss lawyers. Just a guess but I’d bet there is caselaw on whether B can be harmed by A when A says something that individuals C, D, E and a million other people chimed in on ages ago. It’s hard to see how you are now suddenly harmed by the last person’s speech if you weren’t harmed by the first seven years worth of regular repetition of the same claim.
So Gaimon is not losing a lawsuit, and the threats from Cancellara are probably just a bluff. So is Gaimon’s role in this spotless? No. Couple things...
Did Penguin Books move to Colorado or another legal weed state? Because any half-baked book lawyer would have flagged the claim about the motor as an issue. Like I said, it’s a loser of a lawsuit but any suit is a pain in the ass. So if you’re going to open yourself up to one, you should at least have something to gain.
Gaimon gains nothing (besides some divisive drama) from the claim, and worse, he contributes nothing to a sensitive subject. Cancellara is a star, with legions of adoring fans, thanks to a truly stellar career. A throwaway statement like this just ain’t worth the headache.
So why does Gaimon even bring it up? You’d have to ask him or read his book, neither of which I’ve done. [He has a reputation for being a good and entertaining writer, and Draft Animals is apparently 99.999% about something other than this silly issue, so feel free to read it.] I suppose his book is dabbling in being dish-y, shades of Chico Esquela’s best-selling Bad Things About the Mets from (fictional) days of yore. Is this a good thing? I mean, maybe people will find themselves entertained by it, but most cycling fans from the last couple decades are suffering from varying degrees of PTSD as a result of the experience. He can go there if he wants, but he needn’t do so on my account, and if he does anyway, he’d better be ready for the consequences. Even the bullshitty ones.