Services

Peter Sagan is out of this year’s Tour de France - but could he have a claim against the UCI? - 7 July 2017

The decision of the Commissaires Panel of the Union Cycliste Internationale (the world governing body for the sport of cycling) after the conclusion of stage 4 of this year’s Tour de France highlights the difficulties which sports officials face in the modern world of professional sport, and the potential for officials’ decisions to become the subject of litigation.

The incident

Peter Sagan is the current Road World Champion and it’s fair to say he is one of the most entertaining and high profile cyclists in the world. The young Slovakian is known for his ‘panache’ on the bike (something which is becoming somewhat of a rarity in professional cycling ranks, as technology and the focus on data has played a huge role in the recent success of a number of teams). As a result, Sagan is closely followed by fans, teams, race organisers and (evidently) race officials alike.

In the sprint finish of stage 4 of the Tour in the French town of Vittel, Sagan was involved in an incident that resulted in British sprinter Mark Cavendish crashing heavily, leaving him with a broken scapula and having to withdraw from the Tour.

Cavendish was attempting to pass Sagan on the far right-hand-side of the road but the pair made contact as Sagan ‘closed the door’ and Cavendish struck the barriers before crashing to the ground. Slow motion replays of the incident show Sagan’s right elbow extending in the moment before Cavendish hits the barriers, although it is clear that this was after the riders had made initial contact with each other. Arm-chair critics who spend most of July staying up late watching the Tour (myself included) are somewhat divided on whether the extension of Sagan’s elbow was an effort to balance himself after the initial contact, or an intentional act to prevent Cavendish from squeezing through the gap.

The decision

It was initially reported that Sagan would be docked 30 seconds from his general classification time and 80 points from his green jersey points tally. However, on further reflection by the race Commissaires it was announced, some 90 minutes after the stage finish, that they had decided to fine Sagan 200 Swiss Francs and expel him from the Tour (not just disqualify him from the stage) for an “irregular sprint”, citing article 12.1.040/10.2.2 of the UCI Regulations (which provision allows the Commissaries to impose a penalty of expulsion from the race).

The Commissaires’ decision to expel Sagan was briefly explained by UCI jury president Philippe Mariën, saying “[Sagan] endangered some of his colleagues seriously in the final meters of the sprint” and “the jury decided to disqualify Peter Sagan because of a very serious manoeuvre in the sprint [understood to be a reference to the extension of Sagan’s elbow]”. 

But sometimes a slow motion replay can be deceiving and, arguably this is one of those occasions. A review of the footage of the sprint in real time suggests that it is highly unlikely that Sagan intentionally extended his elbow so as to contact with Cavendish – the incident happening in a split second and after Sagan had already been put off balance by the earlier contact with Cavendish. In any event, it seems clear that the extension of Sagan’s elbow (whether intentional or not) did not cause the crash.

An appeal?

Sagan and his German team, Bora-Hansgrohe, evidently shared the writer’s view and immediately sought to appeal the Commissaires’ decision. However, the appeals procedure under the UCI Regulations is convoluted and not particularly helpful in this instance. Relevantly:

  • Article 12.2.007 of the UCI Regulations provides that decisions handed down by the Commissaires Panel are final and not open to appeal, and an appeal before the Disciplinary Commission (composing a Chairman and a number of members appointed by the UCI Management Committee) is only possible if the Commissaires Panel imposed a fine exceeding 200 Swiss Francs;
  • Whilst the Commissaires’ decision also involved a penalty of expulsion from the race, the comparatively insignificant monetary penalty of 200 Swiss Francs effectively prevented Sagan and his team from lodging an appeal to the Disciplinary Commission, which would have had the effect of suspending the execution of the decision of the Commissaires Panel (and allowing Sagan to continue to race while the appeal took its course).

As a result, Sagan had no official avenue to appeal the decision and was left only with the option of submitting a protest to the Commissaires to reconsider their decision. That protest was to no avail, and it was announced the following day that Sagan would be taking an early shower and heading home.

In a statement released after the incident, Sagan’s team stated that “Peter Sagan did not cause, let alone deliberately, the fall of Mark Cavendish on the last 200m of the fourth stage on July 4, 2017. Peter Sagan stayed on his line and could not see Mark Cavendish on the right side." Relevantly, Sagan and his team also maintained that the rider was denied a fair hearing by the Commissaires. 

It seems that neither the riders involved in the incident nor their respective teams were given the chance to be heard on the issue and to put forward their views on what had happened, but rather the Commissaires made their decision based on the video footage alone. Article 12.2.006 of the UCI Regulations provides that “the Commissaires Panel may judge the matter only if the offending party has had a chance to defend his point of view or if, being present when summoned, he fails to respond” – a provision which is presumably intended to ensure that a rider is afforded procedural fairness. If Sagan did not have a chance to defend his point of view, it stands to reason that the basis for the Commissaires’ decision may be susceptible to criticism. 

In the last 24 hours, Sagan’s team filed an urgent ‘Application for Provisional Measures’ to the highest authority in world sport, the Court of Arbitration for Sport, seeking that the Commissaires’ decision be overturned and that Sagan be reinstated in the Tour. Whilst the writer is sympathetic to the team’s ambitions, one wonders how Sagan could be reinstated into the Tour in fairness to other riders, having missed at least one stage of the Tour, in a race which awards endurance over 21 stages. 

A cynic may suggest that the underlying intention of such an application was not necessarily to have Sagan reinstated in the Tour (given the practical difficulties of doing so), but perhaps more so to form a basis for a claim for compensation against the UCI for the loss which Sagan, his team and its sponsors may suffer as a result of the decision to expel him from the Tour. 

With total prize money on offer of over 2 million euros, it is not unrealistic to think that Sagan and his team could potentially suffer great loss as a result of the Commissaires’ decision. Most notably, perhaps, is the loss that the team’s sponsors could suffer, by virtue of the fact that images of Sagan (a rider who usually features prominently in the Tour), adorned with the logos of his team’s sponsors, will not be broadcast around the world or feature in mainstream and social media throughout the rest of July. That is particularly the case where the team and its sponsors have invested heavily in Sagan, who was signed by the team for an estimated yearly salary of 4 million euros.

As it happened, the Court of Arbitration for Sport rejected the ‘Application for Provisional Measures’ and confirmed in a press release that Sagan would not be reinstated in the Tour. The reasons for that decision are yet to be released.

Potential for litigation

It remains to be seen whether Sagan, his team or its sponsors take any action against the UCI in respect of the Commissaires’ decision to expel Sagan from the Tour. 

From the perspective of the law in Australia, and without delving into an application of the facts in this case to each of the necessary elements to establish a cause of action, it seems that at least notionally a claim for losses based in negligence (or perhaps for breach of contract, subject to the relevant rules of the particular sport) could be formulated in this type of scenario.

However, courts have traditionally been reluctant to find sports officials liable for negligent acts or omissions, except in circumstances involving gross negligence, recklessness, intentional acts (such as corruption or fraud) and negligence involving serious injury. That is particularly the case where the loss suffered is commercial in nature, as opposed to physical injury. Typically claims will fail on the issues of assumption of risk or failure to prove causation. The governing rules of individual sports will also often attempt to contract out of liability, to the extent which may be lawfully permissible.

Further, there are strong public policy reasons against opening up the potential for liability, and legislation has been introduced in various jurisdictions around the world to prevent such claims from being pursued. If sports officials were broadly exposed to litigation then, given the significant amount of money which is involved in professional sport, fewer people would be willing to take on the risks in performing an officiating role. In an increasingly litigious society, one wonders whether the broadening of exposure of officials in sport will ultimately be to the detriment of sport as a whole.

The present case highlights the potential for litigation arising from decisions by sports officials, which decisions are increasingly coming under scrutiny in modern day professional sport as they are often made with the benefit of video replay, as opposed to instantaneous decisions made under pressure during the game. As for the fallout of Sagan’s expulsion from the Tour – watch this space (but don’t hold your breath)…

For more information or discussion surrounding sports law, please contact Senior Associate, Jon Erbacher or our Litigation and Dispute Resolution team. 


HopgoodGanim Lawyers is a full service commercial law firm. Our firm has 42 partners and more than 280 staff. We operate nationally and internationally with a focus on Asia from our two key locations of Brisbane and Perth. We offer highly skilled and agile legal teams across key sectors and areas of practice. In all of our areas of speciality, our lawyers are recognised by legal publications as leaders in their fields.

Authors