追回环法王的舞弊所得
Cyrus Sanati | 2012-09-07 12:22
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[译文]
The disgrace of legendary cyclist Lance Armstrong on allegations of doping puts yet another black eye on the world of professional sports. The jig was finally up as nearly all of Armstrong's former teammates, many of whom were also dopers, stood waiting in the wings to tell the world under oath how their friend had indeed cheated. But instead of fighting the allegations in arbitration, Mr. "Live Strong" Armstrong decided that the chips were invariably stacked against him and chose to veer out of the peloton of shame he had created.
Doping in cycling is an epidemic, but it is also pervasive across sports, especially in baseball and track and field. And why not? There seems to be very little downside to cheating: dopers are almost always identified long after they have already cashed in on their success. In a way, the situation eerily reminiscent to the, "heads, I win; tails, you lose," mentality that was so pervasive on Wall Street in the years leading up to the financial crisis.
It may be that the sports world is in need of its own version of Dodd-Frank, the financial regulatory reform bill, which aims, in part, to root out Wall Street cheats. One particular idea sports officials can learn from here is the financial claw back. In the sports world, this would translate into enforceable and damaging penalties levied on athletes, not only while competing, but also after they have walked away. And we are not just talking about going after the prize money or salaries. Everything, including money made through endorsement deals, should be up for grabs.
It may seem like a no brainer forcing athletes caught cheating to give back the cash along with the medals they won while competing under the influence, but it's actually very rare. Not only do most disgraced athletes get to keep the multi-million dollar salaries and prizes they earned while essentially cheating, but they also keep the cash they picked up through endorsement deals, which are often incredibly lucrative.
Sometimes the product the athlete is endorsing is related to their sport, as is the case with Armstrong and his relationship with bicycle maker, Trek, or shoemaker, Nike (NKE). In those cases, people are encouraged to believe that if they work hard and have the same shoe or bicycle as Lance, they might gain an edge over other weekend warriors. In other cases, the products they endorse have little or no relationship with the sport, like Armstrong and his team's partnership with the US Postal Service. These deals can be just as profitable, if not more, than those that promise success. From 2001 to 2004, Armstrong and his crew of alleged dopers reaped $31.9 million from the USPS, mostly for sporting the USPS logo.
Like Wall Street, if you make it big in sports -- even in one such as cycling -- companies will want to pay you. Also like Wall Street, the deals are partially performance based. For example in the USPS deal, Armstrong would receive a bonus of $1.47 million for every stage he won in the 2001 Tour d'France. In that case, the pressure to win every stage became more than just about pride or the hope of future endorsement deals -- it became directly linked to getting paid. So at the same time traders on Wall Street were busy taking risky directional bets with other people's money to earn big bonuses, Armstrong and his team took risky bets with their health and reputation to do much the same.
Clawbacks on Wall Street were once as rare as they were in sports but all of that is changing. Dodd-Frank now requires financial firms listed on an exchange to have some sort of clawback provision or risk being delisted. Firms like Morgan Stanley have already instituted a claw back policy while others are now falling in line. The clawback is focused on performance based compensation, e.g. bonuses, and don't target salaries. This works well on Wall Street because the bonus is where the bulk of a trader or banker's compensation lies. So far, though, clawbacks on the Street are a rarity, but more cases are expected to float to the surface thanks to Dodd-Frank.
For example, JPMorgan Chase (JPM) is expected to claw back millions from employees who were responsible for the massive $6 billion (and counting) trading loss that occurred at its chief investment office in London earlier this year. The head of that department, Ina Drew, was given $14.6 million in stock based severance pay, along with $2.6 million in pension benefits and nearly $10 million in deferred compensation when she was forced out of her position. A lot of that cash could now come back to JPMorgan shareholders thanks to clawbacks that JP Morgan Chief Executive, Jamie Dimon, told Congress this summer were "likely," to be triggered in this case.
Much has been written about Lance Armstrong's loss of future earnings, but not much has been said about the potential loss of his past earnings -- those that he made while he was at his prime and allegedly doped up. Apparently, clawback provisions in sport contracts are extremely rare. Three "super" sports agency interviewed by Fortune on this topic, who wished not to be identified given the sensitive nature of this topic, say that they have never heard of a clawback provision ever being asked for or given in any kind of marketing or player contract. One of the agents went so far to say that if a marketer asked for such a provision, he would, "take his client and walk out of the room."
But sports contracts do have moral clauses which attempt to keep athletes in line while under contract. This gives the sports team or marketer the right to break a contract if an athlete acts up in some way, but most do not explicitly say they can take money back after the contract is up and paid. Armstrong will be a good test case here. In 2004, SCA Promotions sought to withhold paying a $5 million bonus to the cyclist after winning his sixth Tour following allegations of doping. Armstrong took SCA to court and won. But now that the US Anti-Doping Agency has stripped Armstrong of his titles, SCA is back and is looking to overturn the 2004 ruling and clawback that $5 million.
If SCA is successful in clawing back its cash, it could possibly deter other would-be dopers from thinking about cheating their way to glory. But an SCA win won't change anything in the long run unless it causes marketers and sports teams to come together and require that clawback provisions be standard in all future contracts with sports stars. Until that happens, the risk of getting caught doping won't out way the gains for an athlete, especially one near the end of his or her career. It is too early to know what if any impact that clawbacks have had on curbing risk taking on Wall Street, but if it proves successful, then companies and sport teams could help curb substance abuse and cheating by following its lead.
传奇自行车运动员兰斯•阿姆斯特朗被控使用兴奋剂这一丑闻给职业运动圈带来了又一次巨大冲击。阿姆斯特朗的几乎全部队友——其中很多人自己也用过兴奋剂——都在随时等待着宣誓作证,告诉全世界:他们的朋友确实作弊了,围绕阿姆斯特朗的那张网也终于收紧了。可是,以“顽强生活”(Live Strong)的口号著称的阿姆斯特朗先生并未在仲裁庭对抗指控,而是认为自己这边的筹码太少,难以赢得仲裁,于是选择退出他自己造就的这个耻辱领骑阵营。 兴奋剂是自行车运动界的传染病,在其他运动中也相当普遍,特别是棒球和田径领域。为什么不用?作弊的代价看起来很小嘛:使用兴奋剂的运动员们几乎总是在已经凭借他们的成功大赚特赚之后很多年才被查出问题。某种程度上,这种情形诡异地让人回想起金融危机爆发之前那几年华尔街极为盛行的“正面,我赢;反面,你输”心态。 或许体育界同样也需要自己的多德弗兰克法案,这是一部金融监管改革法案,部分目的在于扫除华尔街的舞弊现象。体育官员可以从该法案中学到的一个重要理念是:财务“追回”(claw back)。在体育世界,这意味着对运动员处以可强制执行、且相当沉重的罚款,而且不仅可适用于正在参与比赛的运动员,还可用于那些早已退役的老将。而且我们这里说的不仅是追回奖金或薪酬,而是一切收入,包括通过代言协议挣得的钱财,都应划入可被追回之列。 迫使被证实舞弊的运动员在交回靠非法手段赢得的奖牌的同时,也将相关的金钱收入交回,似乎是显而易见的合理做法,但事实上这种情况很少发生。大多数声名毁于一旦的运动员不仅可以保留他们在舞弊期间赢得的数百万美元奖金与薪酬,还可以留下通过代言协议挣得的收入,这些协议的收入往往非常可观。 有时候,运动员代言的产品与其从事的运动相关,阿姆斯特朗与自行车制造商崔克(Trek)和运动鞋厂商耐克(Nike)之间的合作关系就是典型。在这类情况下,代言广告促使人们相信,如果他们辛勤锻炼并购买与阿姆斯特朗相同的运动鞋或自行车,他们或许会比其他周末一起锻炼的人士领先一步。在其他情况下,运动员代言的产品与运动本身没有多少关系,或者根本全无关系,比如阿姆斯特朗及其车队与美国邮政服务(USPS)之间的合作。相比那些鼓吹成功的代言,这类协议的回报就算不是更丰厚,也应该不相上下。2001-2004年间,阿姆斯特朗及其同样被控使用兴奋剂的队友从美国邮政获得了3,190万美元的收入——主要是因为他们让美国邮政的标识大放异彩。 与华尔街一样,如果你在运动领域——哪怕是自行车这样的冷门运动——赢得成功,总会有企业愿意付钱给你。同样与华尔街一样,这类合同中的部分收入依托于运动员的表现。例如,根据与美国邮政的协议,阿姆斯特朗在2001年环法自行车赛中每赢得一段赛程,就可获得147万美元的奖金。这种情况下,赢得每段赛程的压力就不仅仅关乎自豪与未来代言协议了,而是与收入直接挂钩。因此,华尔街交易员们忙着用别人的钱来押下高风险方向性赌注,以期赢得高额奖金时,阿姆斯特朗及其队友也没闲着,他们正用自己的健康和声誉参与高风险赌局——同样是为了赢得巨额收入。 过去,华尔街追回交易员非法所得的现象极为罕见,就跟体育界的情况一样,但现在一切都在改变。多德弗兰克法案如今要求在某个交易所上市的金融公司设定某种形式的追回条款,否则可能被迫退市。摩根士丹利(Morgan Stanley)之类的公司已经制订了追回政策,而其他公司也在纷纷效仿。追回政策侧重于以业绩为基础的薪酬,也就是奖金,而不涉及工资。这种做法在华尔街运转良好,因为奖金是交易员或银行家的主要收入来源。迄今为止,华尔街追回非法收入的现象仍然很罕见,但归功于多德弗兰克法案,预计越来越多类似的案例将浮出水面。 例如,今年稍早些时候摩根大通(JPMorgan Chase)的伦敦首席投资办公室蒙受了60亿美元(该数字还在增加)的巨额交易损失,该行预计将追回需要对次负责的员工们先前所获的数以百万美元计的奖金。该部门的负责人艾娜•德鲁被迫离职之时,获得了1,460万美元的基于股权的离职金,以及260万美元养老金和近1,000万美元递延薪酬。但摩根大通首席执行官杰米•戴蒙今年夏天在国会作证时表示,追回政策在此种情形下“很可能”被启用,意味着上述收入中很大一部分可被追回,用来弥补摩根大通股东们的损失。 | The disgrace of legendary cyclist Lance Armstrong on allegations of doping puts yet another black eye on the world of professional sports. The jig was finally up as nearly all of Armstrong's former teammates, many of whom were also dopers, stood waiting in the wings to tell the world under oath how their friend had indeed cheated. But instead of fighting the allegations in arbitration, Mr. "Live Strong" Armstrong decided that the chips were invariably stacked against him and chose to veer out of the peloton of shame he had created. Doping in cycling is an epidemic, but it is also pervasive across sports, especially in baseball and track and field. And why not? There seems to be very little downside to cheating: dopers are almost always identified long after they have already cashed in on their success. In a way, the situation eerily reminiscent to the, "heads, I win; tails, you lose," mentality that was so pervasive on Wall Street in the years leading up to the financial crisis. It may be that the sports world is in need of its own version of Dodd-Frank, the financial regulatory reform bill, which aims, in part, to root out Wall Street cheats. One particular idea sports officials can learn from here is the financial claw back. In the sports world, this would translate into enforceable and damaging penalties levied on athletes, not only while competing, but also after they have walked away. And we are not just talking about going after the prize money or salaries. Everything, including money made through endorsement deals, should be up for grabs. It may seem like a no brainer forcing athletes caught cheating to give back the cash along with the medals they won while competing under the influence, but it's actually very rare. Not only do most disgraced athletes get to keep the multi-million dollar salaries and prizes they earned while essentially cheating, but they also keep the cash they picked up through endorsement deals, which are often incredibly lucrative. Sometimes the product the athlete is endorsing is related to their sport, as is the case with Armstrong and his relationship with bicycle maker, Trek, or shoemaker, Nike (NKE). In those cases, people are encouraged to believe that if they work hard and have the same shoe or bicycle as Lance, they might gain an edge over other weekend warriors. In other cases, the products they endorse have little or no relationship with the sport, like Armstrong and his team's partnership with the US Postal Service. These deals can be just as profitable, if not more, than those that promise success. From 2001 to 2004, Armstrong and his crew of alleged dopers reaped $31.9 million from the USPS, mostly for sporting the USPS logo. Like Wall Street, if you make it big in sports -- even in one such as cycling -- companies will want to pay you. Also like Wall Street, the deals are partially performance based. For example in the USPS deal, Armstrong would receive a bonus of $1.47 million for every stage he won in the 2001 Tour d'France. In that case, the pressure to win every stage became more than just about pride or the hope of future endorsement deals -- it became directly linked to getting paid. So at the same time traders on Wall Street were busy taking risky directional bets with other people's money to earn big bonuses, Armstrong and his team took risky bets with their health and reputation to do much the same. Clawbacks on Wall Street were once as rare as they were in sports but all of that is changing. Dodd-Frank now requires financial firms listed on an exchange to have some sort of clawback provision or risk being delisted. Firms like Morgan Stanley have already instituted a claw back policy while others are now falling in line. The clawback is focused on performance based compensation, e.g. bonuses, and don't target salaries. This works well on Wall Street because the bonus is where the bulk of a trader or banker's compensation lies. So far, though, clawbacks on the Street are a rarity, but more cases are expected to float to the surface thanks to Dodd-Frank. For example, JPMorgan Chase (JPM) is expected to claw back millions from employees who were responsible for the massive $6 billion (and counting) trading loss that occurred at its chief investment office in London earlier this year. The head of that department, Ina Drew, was given $14.6 million in stock based severance pay, along with $2.6 million in pension benefits and nearly $10 million in deferred compensation when she was forced out of her position. A lot of that cash could now come back to JPMorgan shareholders thanks to clawbacks that JP Morgan Chief Executive, Jamie Dimon, told Congress this summer were "likely," to be triggered in this case. |
很多人撰文指出兰斯•阿姆斯特朗损失的未来潜在收入,可是,很少有文章谈到他丧失过去所获收入的可能性——这些收入是他运动生涯的颠峰时期挣得的,据指控,当时他已经使用了兴奋剂。显然,体育合同中追回条款极为罕见。《财富》杂志(Fortune)就这一话题采访了三家“超级”体育经纪机构——由于话题敏感,他们不愿披露身份。采访发现,三家经纪机构都表示,从来没有听说过追回条款这回事,也从来没有有人问起这个话题,任何营销或运动员合同中也从来没有包含过这种条款。有一位经纪人甚至表示,如果有营销机构希望加入此种条款,那他会“拉起客户,扬长而去”。 不过,体育合同中确实包含道德条款,试图在合同有效期间约束运动员的行为。根据该条款,如果某个运动员做出了某种出格行为,运动队或营销机构有权撕毁合同,但并未明文规定,在合同已经执行完毕且相关款项已经付清的情况下还能追回钱财。阿姆斯特朗之事将成为很好的“判例式案件”。2004年,阿姆斯特朗第六次赢得环法冠军,但当时他已经遭遇使用兴奋剂的指控,保险公司SCA Promotions因此寻求暂且不向其支付500万美元的奖金。阿姆斯特朗向法院起诉该公司并胜诉。可是,如今美国反兴奋剂机构褫夺了阿姆斯特朗的头衔,SCA卷土重来,寻求推翻2004年的判决,追回这500万美元。 如果SCA能够成功追回这笔钱,其他潜在兴奋剂使用者或许会警醒,不再认为靠舞弊赢得胜利是个好主意。但从长期来看,SCA的胜利无法改变任何事情,除非它促使营销人员和运动队团结起来,要求追回条款成为体育明星们未来一切合同中的标准条款。除非这种情况发生,使用兴奋剂被抓的风险永远也抵不上运动员可以靠兴奋剂获得的利益,对那些职业生涯已近尾声的运动员来说尤其如此。追回条款对遏制华尔街人士过于热衷高风险操作的行为模式有没有影响?有什么影响?现在回答这个问题还为时过早。不过,如果这一措施成功,那赞助企业和运动队也可以借鉴,以此抑制体育界滥用兴奋剂或以其他形式的舞弊现象。 译者:小宇 | Much has been written about Lance Armstrong's loss of future earnings, but not much has been said about the potential loss of his past earnings -- those that he made while he was at his prime and allegedly doped up. Apparently, clawback provisions in sport contracts are extremely rare. Three "super" sports agency interviewed by Fortune on this topic, who wished not to be identified given the sensitive nature of this topic, say that they have never heard of a clawback provision ever being asked for or given in any kind of marketing or player contract. One of the agents went so far to say that if a marketer asked for such a provision, he would, "take his client and walk out of the room." But sports contracts do have moral clauses which attempt to keep athletes in line while under contract. This gives the sports team or marketer the right to break a contract if an athlete acts up in some way, but most do not explicitly say they can take money back after the contract is up and paid. Armstrong will be a good test case here. In 2004, SCA Promotions sought to withhold paying a $5 million bonus to the cyclist after winning his sixth Tour following allegations of doping. Armstrong took SCA to court and won. But now that the US Anti-Doping Agency has stripped Armstrong of his titles, SCA is back and is looking to overturn the 2004 ruling and clawback that $5 million. If SCA is successful in clawing back its cash, it could possibly deter other would-be dopers from thinking about cheating their way to glory. But an SCA win won't change anything in the long run unless it causes marketers and sports teams to come together and require that clawback provisions be standard in all future contracts with sports stars. Until that happens, the risk of getting caught doping won't out way the gains for an athlete, especially one near the end of his or her career. It is too early to know what if any impact that clawbacks have had on curbing risk taking on Wall Street, but if it proves successful, then companies and sport teams could help curb substance abuse and cheating by following its lead. |
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