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The Valverde Decision

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D_mediumToday comes the news that Valverde’s Caisse d’Epargne team has decided to keep him out of upcoming races until the uncertainty over his status is resolved. What? Now you decide to withdraw him from races? Also, this uncertainty word you use. I got 50 pages of French legalese that says that the undertainty is so, so over. Over like white polyester leisure suit over. Sure the UCI hasn’t made it all official, maybe that’s because they’re too busy asking the sports arbitration court to consider the Ullrich case. Ullrich? Are you kidding me?

No, it seems they are not kidding us. Today the UCI filed an appeal contesting the closure of the case against Ullrich by the Swiss Cycling Federation. The case involved Ullrich’s involvement in Puerto and the Swiss decided last February (Ullrich carried a Swiss license) not to pursue the investigation. Archivio for Ullrich. But Puerto continues to Zombie about among us, and emboldened by the recent decision against Valverde, the UCI wants to use the Valverde decision to force a re-opening of the case against Ullrich.

Ah, yes, the Valverde decision, you’ll be wondering about that, I suppose. I actually read that thing. It was long. And in French. And I nearly fell asleep several times. But I persevered. Which is a good thing, because those arbiters, they got a little crazy and buried in all the boring bits, which were legion, there were some much less boring bits. Let’s take a tour, shall we? We’ll skip the boring bits, and watch the arbiters go all crazy.

(A small warning: This post is long. Really, too long for an internet post. It should be two. Or three. Or maybe none at all. But I’m putting it up all at once anyway. You can divide it into parts. You’re smart people. )

The report starts out with a lovely timeline of the original Puerto investigation. Then, it follows with an equally lovely timeline of the Italian investigation against Valverde. For the most part, the Spanish side of the Puerto summary is familiar ground. It’s worth remembering that the original case could only investigate crimes against public health on the part of the doctors, it could not prosecute athletes for doping. No law against doping existed at that point in Spain. When the Guardia Civile arrested Dr. Fuentes, he had a card in his wallet with Valverde’s name on it. Also, the authorities seized somewhere in the neighborhood of 200 blood bags. I had forgotten just how many blood bags there were. Anywho, in August 2006, the Judge ordered 99 of the blood bags sent to a Lab in Barcelona for storage and analysis. The lab found EPO in 9 bags, including no. 18, linked to Valverde. There, the blood bags remained.

In October, the Judge ruled that the Puerto evidence could not be used for "procedures administratives." This decision got a lot attention at the time, and provided the key basis for the Valverde appeal. Why was it important? Because the decision appeared to rule out the possibility of the cycling federations using the evidence from Puerto to throw down doping sanctions.

At the same time, the Judge did not close the door on requests from criminal authorities for access to the evidence. In October 2006, the Italian authorities requested information pertaining to Ivan Basso, and received access to blood bag no. 2. A DNA comparison matched Basso to the blood bag, despite his efforts to disown his faithful dog Birillo. The Italians followed up with a similar case against Michele Scarponi. At the time, Capodacqua at Sportpro.it tried to explain to us the relationship between the Italian criminal authorites and CONI in these cases. But he proved one of the few to understand its significance. The existence of a criminal law prohibiting doping in Italy and the evidence-sharing laws between the legal authorities and the sporting authorities made it possible for the Italians to pursue the cases first against Basso and Scarponi and later against Valverde. Criminal authorities and Puerto evidence: On this relationship, the entire case turns.

The German legal authorities also requested and received access to the Puerto evidence, including the bloodbag marked Jan no. 1. The German authorities even matched the DNA of Jan Ullrich with the blood bag. But then, the German case stopped dead in its tracks. Why? Because the Germans did not have a law against doping at the time. This may have been why portions of the evidence leaked out to people like Werner Franke and the journalists at the Frankfurter Zeitung, who ran a series of articles based upon their access to the documents. Among their revelations, the alleged meet-up between Dr. Fuentes and Bjarne Riis, Fränk Schleck and Ivan Basso. Anyway, no anti-doping law, no case. At least, for the time being.

In the case of Valverde, the Spanish Federation did not entirely lie down. The RFEC intervened in the case twice. First in February 2008, the Spanish Federation joined an appeal with the UCI and WADA against the decision of the Judge to close the Puerto investigation. The Madrid Court of Appeals rejected the appeal. The Spanish Federation also made a request to the Judge for access to the evidence in 2009 in light of the Italian investigation of Valverde. The Judge rejected this request in April 2009. No Puerto for you.

On to the Italian case against Valverde. Let’s start with the blood sample-DNA matching bit, shall we? After all, no story is complete without a vampire or two. On 21 July 2008, CONI carried out anti-doping controls on several riders as the Tour de France briefly dipped into Italy. In his appeal, Valverde challenged the legitimacy of the test, and argued that the sample could not be used for a case not related to the 2008 Tour. Bzzzt! Wrong again, Señor. At the time of the test, Valverde signed a waiver, which granted CONI the right to use the sample "without limits" in conformence with the anti-doping rules. The form also warned Valverde that he could be sanctioned for "any violation of the charter of the organization," in this case CONI. Valverde signed the wee slip of paper, and voilà, gave up his right to challenge CONI’s use of the sample in doping procedures against him. Beware of men bearing forms. The chain of custody paperwork, meanwhile, showed that the sample travelled same day by courier to the anti-doping lab in Rome.

In November 2008, CONI sent a letter to the Judge demanding evidence in relation to Valverde, on the basis of the "commission rogatoire," er fancy legal permission slip, created in the Basso case. The Procura in Roma

Not so fast, Signor Procura guy. On 27 November, a Spanish diplomatic official, the legal liason, informed CONI and the Procura that the Spanish Judge had received their letter and had decided that the case required a new "commission rogatoire." The Judge sent the Italian request on to the Spanish Public Minister for advice. Unlike the cases of Basso and Scarponi, the Italians now intended to investigate a Spanish citizen. This prompted the Judge’s request for advice. Meanwhile, in Italy, the Procura directed the Italian police to take the samples from the 2008 Tour into custody (they stayed in the Rome lab, but they now came under police authority.)

In January came word from the legal liason that the Spanish Judge had granted the necessary permission for the Italian criminal authorities to examine blood bag no. 18. A team of Italian police officers (special judiciary police, not dudes off the street) departed for Barcelona to take samples from the blood bags held in Spanish custody. (According to other reports, the Italians have samples from more than just blood bag no. 18. No doubt a story for another day) Back in Rome, the forensics people conducted the DNA test between the evidence brought back from Barcelona and the Tour de France samples, still held in police custody.

The investigators positively identified blood bag no. 18 as matching the blood sample whose numbers corresponded to Valverde (CONI provided the necessary paperwork to match the coded sample with Valverde’s name). The analysis showed a match of 16 genetic markers, which is considered above the levels necessary for identification in criminal procedure. Though Valverde argued in his appeal that the DNA test had violated his right to privacy, Italian law does not require permission to conduct a DNA test in the course of a criminal investigation. After receiving confirmation from the police investigators of the match between the samples, CONI opened an anti-doping case against Valverde in February 2009. The criminal authorites (NAS) also notified Valverde (informazione di garanzia) that he was subject to a criminal investigation opened by the Procura in Roma.

The DNA match provided the strongest evidence in the anti-doping case brought against Valverde by CONI. The Italian anti-doping authorities had forensic proof in the form of a DNA match that the blood bag, which contained EPO, belonged to Valverde. The storing of the blood bag (transfusion is a banned method) and the presence of EPO (a banned substance) violated Italian anti-doping rules and the WADA code. CONI also received testimony from Jesús Manzano, a former Kelme team-mate, who testified that contrary to his denials, Valverde had known and worked with Dr. Fuentes. Manzano also described the doping procedures at Kelme. Shorter: Everyone doped on the team.

Because Valverde had competed in races in Italy, the Italian authorities asserted that they could ban him from racing in Italy, where doping is prohibited under both criminal law and sporting rules, despite his Spanish license. Italian anti-doping rules adopted in 2005 and 2006 asserted its authority over athletes "non affiliés," or athletes who are not licensed in Italy. In a 2008 case, TAS upheld the right of CONI to sanction "non affiliés," but limited that authority to within Italian borders. CONI could only ban Valverde from racing in Italy; it could not ban him from racing internationally. In its decision on the Valverde case, the arbitration court quickly dispensed with Valverde’s challenge to CONI’s authority. Within Italian borders, CONI could sanction foreign athletes and prevent them from competing in Italy.

But what about the UCI? The UCI and WADA both joined the fun by filing briefs in support of CONI in the current case. The UCI woke up and went all hard core: The UCI called upon the arbitrators to reject Valverde’s appeal, extend his sanction worldwide, and disqualify all his results since May 2004. My head spins at the thought of revising results for all races where Valverde received a result since 2004. Spins, I tell ya. The court decided this demand was far too much to consider and dismissed the UCI. TAS to UCI: Prosecute your own case, then we’ll talk to you. Now, go sit in the corner.

Still there? Right, we’re nearly done. In February 2009, the Valverde case took a strange turn. A Madrid magistrate issued a ruling prohibiting the use of the Puerto evidence in further investigations. On the face of it, this ruling appeared to prevent both CONI and the Procura in Rome from pursuing their case against Valverde. The Spanish decision also asserted that CONI did not have standing to use the evidence, because the organization was not part of the Italian legal system. (See this post and comments, for more on the 2009 Spanish ruling.) Valverde’s legal team so loved this decision, and indeed, it proved central to Valverde’s challenge to the Italian sanction.

Again, the arbiters dismissed Valverde’s objections. First, they dismissed the Ordinance of Revocation on the basis of territoriality, a fundamental principle of international law. Briefly, this principal means that the Italian government is not bound by the actions of the Spanish judiciary. By February 2009, the Italian criminal justice system already had the evidence relevant to the case in their possession. Consequently, the Spanish judge could no longer control the evidence or force the Italians to discard it, because he did not have authority over the Italian governement or its agents. In short, the Ordinance of Revocation came too late in the game to influence the case. The horse had bolted; too late to close the barn door.

Second, even if the Spanish Ordinance had proven valid in relation to the Italian case against Valverde, the Arbitration Court is not bound by "decisions taken by any other jurisdictional body." The rules of admissable evidence are extraordinarily loose at TAS, and the panel of arbiters "is not bound by rules of evidence and may inform itself in such a manner as the arbiters think fit." The Arbitration Court set the precedent for using the Puerto evidence to inform their decisions in 2006. Since the Spanish Judge has no authority over the arbirtration court, he could not block it from considering the evidence presented from the investigation. See the connection to the UCI appeal on Ullrich now? Because the arbitration court is not bound by the rulings of the Spanish judiciary, the UCI is asking the court to use the evidence to force the Swiss federation to sanction Ullrich. The UCI has a similar case pending against the Spanish federation in regards to Valverde. We’ll see what the arbiters have to say to all that.

But back to this Ordinance of Revocation. There was a big problem with the Ordinance, which we here at the Cafe proved quick to spot. It addressed CONI, not the Italian criminal authorities. In a nice bit of understatement, the arbitration court noted: "The Ordinance of Revocation is based on interpretations of facts and law that are incorrect," writes the Court. The failure to account for the involvement the Italian criminal justice system rendered the Spanish decision invalid, the arbiters assert. From the start, the involvement of the Italian criminal authorities was crucial to the case against Valverde. The transfer of the evidence followed international law, and left little in the way of openings for Valverde’s lawyers, who I almost - not quite, but almost - felt sorry for by the time finished reading the decision.

Of course, Valverde can still appeal the arbitration decision in Swiss courts, if he wants. However, the arbiters also noted that Swiss law does not automatically disqualify evidence acquired through illicit means. Also, the Swiss court is no more ruled by the Spanish judiciary than the Italians are. Territoriality, baby. So an appeal resting on the Ordinance of Revocation will probably only cost Valverde a lot of money. It probably won’t overturn the previous decisions in the case.

Okay. My work is done here. If you have questions about any specific aspects of the case - or you want to know what something in the decision means - ask it up in the comments. After all, I got 50 pages of French legalese here...

Story by Jen See. All rights reserved.