31 May 2010
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), award of 31 May 2010
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
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 full facts and proceedings will not be reiterated in this award and the Panel would direct the readers to the various awards and orders that have been issued by this Panel prior to this award. Please refer to Orders dated 5 March 2008; 24 December 2008; 15 June 2009; and 22 December 2009. There is also a Preliminary Award dated 10 July 2008.
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. SI de Madrid.
On 29 August 2007, the UCI by way of letter requested, inter dia, the RFEC to initiate disciplinary proceedings against Alejandro Valverde Belmonte (see below para. 6.3). This request was based on the UCI's review of the file and evidence gathered within the Operacion Puerto proceedings, including the blood bag labelled Blood Bag no. 18, the blood from which was portered to belong to Mr Valverde.
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.