CAS 2007_A_1396 WADA & UCI vs Alejandro Valverde & RFEC

CAS 2007/A/1396 & 1402 WADA and UCI v/Alejandro Valverde & RFEC

CAS 2007/A/1396 & 1402 World Anti-Doping Agency (WADA) and Union Cycliste Internationale (UCI) v. Alejandro Valverde & Real Federación Española de Ciclismo (RFEC)

Related cases:

  • CAS 2007/O/1381 RFEC & Alejandro Valverde vs UCI September 26, 2007
  • CAS 2009/A/1879 Alejandro Valverde vs CONI, WADA & UCI March 16, 2010
  • Swiss Federal Court 4A_234_2010 Alejandro Valverde vs CONI, WADA & UCI
    October 29, 2010
  • Swiss Federal Court 4A_386_2010 Alejandro Valverde vs WADA, UCI & RFEC
    January 3, 2011
  • Swiss Federal Court 4A_420_2010 Alejandro Valverde vs WADA, UCI & RFEC
    January 3, 2011
  • Swiss Federal Court 4A_644_2009 Alejandro Valverde vs CONI, WADA & UCI
    April 13, 2010


  • Cycling
  • Blood Doping
  • No explicit prohibition in the CAS Code for the Appeal Brief to go beyond the Statement of appeal
  • Decision not to open disciplinary proceedings as an appealable decision before the CAS
  • De novo review and procedural defects occurred at the initial stage
  • Establishment of an anti-doping rule violation to the comfortable satisfaction of the Panel
  • Use of evidence illegitimately collected in case of an overriding public interest

1. There is no specific provision in the CAS Code that forbids an Appeal Brief to go beyond the Request for Relief as formulated in the Statement of Appeal. Article R56 clearly sees to the procedural phase after the Appeal Brief. Article R51, addressing the Appeal Briefs, does not specifically prohibit an amendment of the Statement of appeal.

2. According to Swiss legal scholars, an appealable decision of a sport association is normally a communication of the association directed to a party based on an “animus decidendi”, i.e. an intention to decide on a matter, even if this is only a decision on its competence (or non-competence). A decision not to open disciplinary proceedings against an athlete was clearly intended to affect the legal position of a number of addressees, including but not limited to the sports federations and the athlete.

3. Even if there was a procedural defect in the first instance, the CAS case law is quite clear that the de novo rule is intended to address and cure “any procedural defect” that occurs at the initial stage, after all relevant parties have been heard: this can also encompass the right to be heard. Thus, there is no reason not to accept this Panel’s authority for a full de novo hearing. The Panel can – and even should – take into account all the facts with which the athlete was charged in the first instance. CAS jurisprudence also shows that, in reviewing the case in full, a Panel cannot go beyond the scope of the previous litigation. It is limited to the issues arising from the challenged decision

4. As has been held in several CAS-cases, an anti-doping rule violation has to be established to the comfortable satisfaction of the Panel, bearing in mind the seriousness of the allegation which is made. It is common ground that this standard is greater than a mere balance of probability, but less than the criminal standard of proof



This case arises as a result of the Spanish criminal investigation commonly referred to "Operacion Puerto" which began in May of 2004.

The Operacion Puerto proceedings focused on Dr. Eufemiano Fuentes, and on 23 May 2006, Dr. Fuentes and other individuals were arrested and charged with violating Spanish Public Health Legislation. This was the "final step" of the "Operacion Puerto" investigation and prosecution that had begun in May 2004 by the Spanish Guardia civil and the Juzgado de Instruccion no. 31 de Madrid.

As a result in 2009 the Italian Olympic Committee's prosecuting officer (CONI-UPA) succeeded in obtaining evidence gathered within the Operacion Puerto related to Italy and to open proceedings against Mr Valverde.

Ultimately the Italian Tribunal Nazionale Antidoping (TNA) decided 11 May 2009 to ban Mr Valverde for two-years from participating in or attending athletic events organized under the auspices of CONI or related national sport organizations in Italy. Thereupon on 16 March 2010 the Court of Arbitration for Sport (CAS 2009/A/1879) confirmed this sanction.

By contrast in Spain the UCI was in 2007 unsuccesful in opening persecution against Mr Valverde for his involvement in Operation Puerto. Although requested by the UCI the Royal Spanish Cycling Federation (RFEC) refused on 7 September 2007 to open disciplinary proceedings against Mr. Valverde.

Hereafter in October 2007 both WADA and the UCI appealed the RFEC decisions of 7 September 2007 with CAS (CAS 2007/A/1396 & 1402). WADA and UCI requested the Panel to set aside the appealed RFEC decisions of 7 September 2007 and to impose a 2 year period of ineligibility on Mr Valverde including disqualification of his results.

First of all the Panel established that the two RFEC decisions of 7 September 2007 are appealable decisions. The Panel has also full power to review the facts and the law and has full power to address the Appellants' Requests for Relief.

Following assessment of the scientific evidence on record, the Panel is satisfied that the result of both the tests carried out at the Barcelona-laboratory and those carried out in Rome meet the required standard of proof.

The Panel finds that there is no convincing evidence merely speculative arguments that there was anything wrong with the samples that were tested, with the taking of the blood for those samples, with the transport of those samples to the said laboratories and/or the storage and handling of those samples there and/or with the analyses for EPO and or DNA respectively.

The Panel deems that there is sufficient evidence that an anti-doping violation was committed by Mr Valverde in 2006, more precisely on 6 May 2006 when Mr Valverde’s blood was discovered by the Guardia Civil and, as was established later, this blood contained the prohibited substance EPO.

Therefore the Court of Arbitration for Sport decides on 31 May 2010:

1.) The appeals filed by the Union Cycliste Internationale and the World Anti-doping Agency are partially upheld.

2.) Alejandro Valverde is found guilty of an anti-doping rule violation under Article 15.2 of the UCI Anti-doping Rules (version 2004).

3.) Alejandro Valverde is suspended for a period of two years, starting on 1 January 2010.

4.) The requests of the UCI and WADA for disqualification of the competitive results obtained by Mr Valverde before 1 January 2010 are denied.

5.) All other motions or prayers for relief are dismissed.

(…).

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
31 May 2010
Arbitrator
Fernandez Ballesteros, Miguel Angel
McLaren, Richard H.
Witt Wijnen, Otto de
Original Source
Court of Arbitration for Sport (CAS)
Country
Spain
Language
English
ADRV
Use / attempted use
Legal Terms
Burdens and standards of proof
Case law / jurisprudence
Circumstantial evidence
Competence / Jurisdiction
Criminal case / judicial inquiry
De novo hearing
Ne bis in idem
Principle of fairness
Substantial delay / lapsed time limit
Sport/IFs
Cycling (UCI) - International Cycling Union
Other organisations
Real Federación Española de Ciclismo (RFEC) - Royal Spanish Cycling Federation
World Anti-Doping Agency (WADA)
Laboratories
Barcelona, Spain: Antidoping Laboratory Fundació Institut Mar D'Investigacions Mèdiques (IMIM)
Roma, Italia: Laboratorio Antidoping FMSI
Analytical aspects
DNA analysis
Reliability of the testing method / testing result
Doping classes
M1. Manipulation Of Blood And Blood Components
M2. Chemical And Physical Manipulation
Substances
Erythropoietin (EPO)
Medical terms
Blood doping
Intravenous infusions
Various
Athlete support personnel
Chain of custody
Disqualified competition results
Lack of cooperation / obstruction
Operacion Puerto
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Pdf file
Date generated
14 March 2012
Date of last modification
19 June 2023
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  • ADRV
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  • Laboratories
  • Analytical aspects
  • Doping classes
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