Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. 

Background

The saga can be traced back to the interview by the Spanish sports newspaper AS with the cyclist Jesus Manzano in 2004. During the interview, Manzano admitted that he, as well as other members of his team (Kelme), were involved in blood doping practices, and denounced his team doctor Eufemiano Fuentes as the mastermind behind the operations.[1] As a result of his declarations, Manzano became the victim of regular abuse by the “professional cycling world” and even received death threats. Manzano reported the death threats to the Guardia Civil (a Spanish law enforcement agency), who saw itself obliged to investigate the matter. The results of the Guardia Civil’s investigation proved that the information provided by Manzano regarding names, locations and practices were correct. However, the scope of the Guardia Civil’s investigations was limited due to the fact that, according to Spanish law in force at the time, doping was not considered a criminal offence.

On 23 May 2006, several people were arrested, including doctor Fuentes, who was accused of committing a “crime against public health” enshrined in Article 361 of the Spanish Criminal Code.[2] After his arrest, the Guardia Civil conducted domiciliary visits in the various domiciles owned by Fuentes, in which it found over 200 blood and plasma samples. The blood and plasma bags were labelled with coded names, in order not to reveal the true identity of Fuentes’ clients. Nonetheless, it was clear that Fuentes’ network was much more extensive than previously anticipated and that he had hundreds of clients, from a variety of sports and nationalities.

The relevant SGBs, such as WADA, petitioned for the blood samples to be analysed and all the identities revealed, with the aim of sanctioning the athletes involved. The Spanish public authorities, however, denied the SGBs requests[3], claiming that handing over the blood samples would breach the athletes’ right to privacy and reiterating that athletes involved in doping practices were not (at the time) committing any criminal offence according to Spanish law.

A long-awaited judgment was finally delivered[4] by the Madrid criminal court on 29 April 2013, a judgment which raised many eyebrows worldwide (see for example this critical analysis by the French newspaper Le Monde). Fuentes received a one-year prison sentence for committing a crime against public health and was suspended for four years from practicing sport medicine. More importantly, the court ordered the destruction of the blood samples, as well as other pieces of evidence, such as documents and recorded telephone conversations once the decision becomes final.[5] Given that the case was not about a doping offense but about a crime against public health, the court argued, the investigation of the blood samples would be in breach of the privacy rights of the athletes.

The judgment was appealed by several parties, including Fuentes and the SGBs (AEPSAD, WADA, UCI and CONI). Fuentes demanded to be acquitted, whereas the SGBs appealed the order to have the blood samples destroyed.  

Sentencia Nº 302/2016 of 14 June 2016

The Audiencia Provincial made its judgment public on 14 June 2016. The judgment consists of 23 different appeals by different parties. This case note, however, will only analyze section 18 (on the question whether blood is considered a medicine) and section 21 (regarding the blood and plasma samples). 

Section 18 – Is blood a medicine?

The answer to this question was highly relevant for Fuentes’ appeal against the prison sentence. Article 361 of the Spanish Criminal Code provides inter alia that a person who offers medicine in unauthorized locations[6] or does not fulfill the relevant hygiene criteria, shall be punished with an imprisonment from six months to three years.[7] Fuentes argued that blood extracted from an athlete, which is later injected back into the athlete, was legally not considered a medicine in 2006.

The court firstly established that the Criminal Code does not legally define “medicine”, meaning that the definition needed to be found in administrative laws,[8] such as the Medicine Law[9]. This law stipulates that blood derivatives could be considered medicine, but blood as a whole cannot.[10] The court also looked for a definition in EU law, more specifically EU Council Directive 98/381/CEE laying down special provisions for medicinal products derived from human blood or human plasma. Article 1, point 2, holds that whole blood, plasma or blood cells of human origin are outside the scope of the Directive. Having established that the blood and plasma samples found in Fuentes’ domiciles cannot be considered medicine, the court concluded that the doctor could subsequently not be punished for committing a crime against public health as stipulated in Article 361 of the Criminal Code. A punishment of any kind would be contrary to the “principle of legality”.[11] 

Section 21 – blood and plasma samples

The RFEC, WADA, UCI and CONI wanted to see the destruction order of the blood and plasma samples overturned and, instead, the samples delivered to them.[12]  Importantly, both the criminal court in first instance and the Audiencia Provincial recognized that a possible doping investigation by the SGBs after a handover of the blood samples would be an administrative procedure, rather than a criminal procedure such as in the case at hand.[13]

However, the first instance court had also indicated that the SGBs could not use the blood samples, because administrative sanctioning procedures do not allow this type of evidence to be used. To reach this conclusion, the court in first instance referred to an administrative law case involving disciplinary proceedings against a magistrate. In that case, recorded phone conversations were not deemed receivable evidence because of a breach of privacy, which would infringe Article 8 of the ECHR. The court transposed this reasoning to Operación Puerto and held that using the blood samples for an administrative proceeding was inadmissible.

The Audiencia Provincial did not follow this reasoning. Instead it referred to criminal case law, which established a difference between the recording of phone conversations on the one hand and domiciliary visits on the other. So-called “casual findings” during domiciliary visits of evidence for crimes that were not the ones the visits were authorized for, can still be used as evidence. In fact, the blood and plasma bags cannot be considered “casual findings”, since the public authorities were authorized to undertake the domiciliary visits to find evidence for an alleged crime against public health. Moreover, contrary to the recording of phone conversations which is only authorized in case of a penal procedure, domiciliary visits are measures that could also be authorized in administrative procedures.[14]  In other words, this type of evidence obtained in the framework of a criminal procedure can also be used in an administrative disciplinary procedure, such as doping cases.

As regards the transfer of the blood and plasma samples to an SGB, the court stated the following: In accordance with the provisions of the 2013 anti-doping laws, the samples can be handed over to the Spanish Anti-Doping Agency. The Agency would need to submit a formal request to a court, and the court would consider the request taking into account the principle of proportionality.[15]  The Audiencia Provincial considers that a transfer of the blood samples could be proportionate since it pursues the objective of fighting against doping. This is so because: doping use is contrary to the ethical values of sport, which are fair play and competition. Not allowing the transfer of the blood and plasma samples would give the impression that doping is not really a problem and might indicate that in sports the end justify the means.[16]  

Conclusion

On the day the judgment was released, AEPSAD expressed its satisfaction with the Audiencia Provincial’s decision and stated that it is studying the possible measures it can now take, either by itself or together with the other SGBs referred to in the judgment. WADA too acknowledged the court “for having reached the decision to provide anti-doping authorities with this crucial evidence”, but also stated that it is “dismayed that it took so long to receive the decision”. Finally, UCI regrets it had to wait this long for the decision, but will now partner with WADA, the RFEC, AEPSAD and CONI, to determine the legal options available with regards to analyzing the blood and plasma bags; and, where applicable, pursuing anti-doping rule violations.

In its press release, UCI points to the crucial question that will need an (un)satisfying answer: Can the SGBs still pursue anti-doping violations, or is too late? Article 17 of the 2015 WADA Code enshrines that the statute of limitations is 10 years. Coincidentally, it has been 10 years and two months since the arrests of Fuentes was made and Operación Puerto started taking shape. It is therefore unlikely that doping sanctions will be handed out on the basis of blood samples collected during the period 2002-2006. But simply discovering the identity of the doped athletes could have far-reaching consequences on its own. For example, when Bjarne Riis admitted in 2007 that he used EPO during his victorious 1996 Tour de France, the UCI was not able to sanction him anymore. However, the Tour de France organizing organization (ASO) has removed him as a past winner. Similar consequences are thinkable with the discoveries of the identities in the Operación Puerto case. Furthermore, Operación Puerto, widely recognized as the darkest chapter in the history of Spanish professional sport, can only truly be closed when the identities of the athletes are revealed. Publicly naming and shaming the athletes is an important mean to create a fairer competition and to prevent other athletes from doping themselves.  

[1] The actual interview with AS is not available anymore. A summary of the interview can be read at http://velonews.competitor.com/2004/03/news/more-from-manzano-its-like-an-open-bar_5763.

[2] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 7. A few months later, in 2006, Article 361bis was added to the Spanish Penal Code, a provision that made doping a criminal offense.

[3] Cyclists, such as Jan Ullrich, Ivan Basso, Michele Scarponi and Óscar Sevilla were known to be among Fuentes’ clients, for the most part thanks to journalist investigations. The German cyclist Jörg Jaksche admitted voluntarily, and Spanish cyclist Alejandro Valverde received a suspension by the Italian Olympic Committee CONI in 2010.

[4] As can be seen from the 176-page judgment, the names of the suspects have been changed. For example, primary suspect Eufemanio Fuentes is called “Juan Máximo”.

[5] Sentencia del Juzgado Penal de Madrid Nº 144/203 de 29 de abril 2013, pages 175-176.

[6] A hospital, for example, would be considered an authorized location. A cycling team bus, or a hotel room, could be considered unauthorized locations for the offering of certain types of medicine.

[7] Artículo 361 Código Penal: “El que fabrique, importe, exporte, suministre, intermedie, comercialice, ofrezca o ponga en el mercado, o almacene con estas finalidades, medicamentos, incluidos los de uso humano y veterinario, así como los medicamentos en investigación, que carezcan de la necesaria autorización exigida por la ley, o productos sanitarios que no dispongan de los documentos de conformidad exigidos por las disposiciones de carácter general, o que estuvieran deteriorados, caducados o incumplieran las exigencias técnicas relativas a su composición, estabilidad y eficacia, y con ello se genere un riesgo para la vida o la salud de las personas, será castigado con una pena de prisión de seis meses a tres años, multa de seis a doce meses e inhabilitación especial para profesión u oficio de seis meses a tres años”.

[8] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 61.

[9] Ley 25/1990, de 20 de diciembre, del Medicamento.

[10] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, pages 59-61.

[11] Ibid., pages 69-73.

[12] Ibid., pages 76-77.

[13] Ibid., pages 78-79.

[14] Ibid., pages 80-81.

[15] Artículo 33(5) de la Ley Orgánica 3/2013, de 20 de junio, de protección de la salud del deportista y lucha contra el dopaje en la actividad deportiva: “La Agencia Española de Protección de la Salud en el Deporte podrá solicitar que le sean remitidas aquellas diligencias de instrucción practicadas que sean necesarias para la continuación de los procedimientos sancionadores. Dicha petición será resuelta por el Juez de instrucción, previa audiencia de los interesados, en el plazo de 20 días. En dicha audiencia los interesados podrán solicitar que sean también remitidos los documentos que les puedan beneficiar. La resolución del Juez será plenamente respetuosa con el principio de proporcionalidad, entregando a la Administración, mediante resolución motivada, únicamente las diligencias que la aplicación de tal principio autorice”.

[16] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 83.

Yesterday, UEFA published the very much-expected settlements implementing its Financial Fair Play (FFP) regulations. Today, we address tomorrow’s challenges for FFP, we offer five, more or less realistic, scenarios sketching the (legal) future of the FFP regulations.

Scenario 1 : Happily ever after

We enter the brave new world of FFP. The settlements are not contested and Dupont’s EU law crusade sinks into oblivion. Meanwhile, the Qatari owners of PSG come up with a new marketing concept, the club recruits four locally trained players and wins the Champions league fielding the same starting team 14 times.[1] Thanks to FFP, in 2015, nobody is losing money anymore[2], Cristiano Ronaldo’s transfer to PSG for EUR 30 Mio. is by far the most expensive one and Arsenal’s coach Wenger feels rich for the first time in his career. No new FFP violation is registered, except for Shakhtar Donetsk, which messed up its financial accounts due to the move back to the rubble.

Scenario 2: Here we go again

FFP ends here for 2014, but history repeats itself in 2015. Clubs are still losing money and appear to fail to comply with the agreed settlements.[3] However, Manchester City and PSG have recourse to new innovative marketing contracts to turn their losses into profits.[4] To this end, the PSG squad members are named official ambassadors of the State of Qatar and their wages are covered by the Qatari state. The nightmare continues for Platini, who is stuck between a rock and a hard place. On one side he counts on Qatar’s vote and influence to win the FIFA presidency in June 2015, on the other he needs to defend his credibility in the eye of the German austerity hawks. The procedure is delayed until July, at which point the cases are referred to the adjudicatory chamber.[5] Both clubs are found in breach again, the chamber imposes a EUR 100 Mio. fine and Champions League squads are reduced to 18 players.[6]

Scenario 3: Settlements are not enough

Wenger is outraged! Fining PSG and Manchester City is a bit like fining a central bank: they’ll just print more money. 2014 was supposed to be the year his side would eventually get to play the Champions League without having to go through the preliminary rounds. Thus, Arsenal, backed by Everton, decides, on the 25 May 2014, to contest the settlements in front of the Adjudicatory Chamber.[7] Olympique de Marseille, always keen on fighting PSG on any turf, also appeals the settlement. However, in a final decision, the Adjudicatory Chamber dismisses the complaints. Far from abandoning their quest for justice, the clubs decide to refer the decision to CAS[8], where Everton, Arsenal and Marseille obtain a re-devaluation of the controversial sponsoring agreements. CAS hands out a two-year ban on transfers for both clubs, but comes short of kicking them out of the Champions League.[9] As usual, the final appeal to the Swiss Federal Tribunals is a waste of time: Arsenal will have to go through the preliminary round...again.

Scenario 4: My name is Dupont, Jean-Louis Dupont

All the parties agree with the settlements proposed, FFP seems to be heading for a smooth run. All, but one. Belgian lawyer Jean-Louis Dupont, secretly backed by wealthy clubs, challenged FFP in front of the Belgian Courts and the European Commission. He claims, loud and clear, that FFP is a restriction of EU Free Movement and Competition Law. In 2018, after 4 years of protracted litigation, the Court of appeal of Bruxelles finally decides to refer the matter to the Court of Justice of the EU in Luxembourg.[10] Meanwhile, the European Commission has also been enquiring on a putative infringement of EU competition law, but the new Commissioner for Competition Law, former French minister Pierre Moscovici, freezes the final decision after a phone call with Platini. On the 15 December 2020, the Court, in its instantly famous Striani judgement[11], considers FFP a clear restriction on EU free movement and competition law. In spite of the specificity of sport, its proportionality cannot be warranted. However, the judgement has no retroactive effect and both the Court and Advocate General considered that a better system could have been worked out. As soon as the ruling is known, UEFA enters in résistance: Platini calls up Sarkozy (by then old-new President of France), who, in a moment of rage, decides to leave the EU.

Scenario 5: The Reality Check

The FFP settlements will stand as they are; it is rather unlikely, though possible, that any affected party will raise an objection against them. PSG and Manchester City will not recruit any big players unless they sell big, but will most likely focus on getting decent locally-trained players on-board for the Champions League bench. The 2015 FFP edition will probably feature a replay of the current edition. We do not see, at least for PSG, any chance that it could accrue its revenues (except very creatively), in order to meet the target of a maximum EUR 30 Mio deficit. The main conundrum for the 2015 FFP process will be to design credible sanctions for a recidivist. On the EU law front, the process will take a lot of time. Regarding the Belgium Courts, any first instance decision will be appealed all the way to the highest Court and will undoubtedly end up in a very time-consuming procedural ping-pong with the Court of Justice of the EU (earliest final decision not before 2019-2020). The EU competition law complaint launched with the European Commission might be quicker to unfold, but will most likely be a forum for re-negotiating the FFP rules rather than to abolish them altogether (the transfer system overhaul at the turn of the century could serve as a model). On a final note, Wenger is surely disappointed by the apparent leniency of the sanctions, but for once he might be able to throw a bit of his weight around on the transfer market.

[1] The settlement for PSG and Manchester City include specific restrictions of the squads size for the Champions League: “[the club] accepts that for the duration of the settlement it will be subject to a limitation on the number of players that it may include on the “A” list for the purposes of participation in UEFA competitions. Specifically, for season 2014/15 PSG may only register a potential maximum of 21 players on the “A” list, instead of the potential maximum of 25 as foreseen in the relevant competition regulations.” Furthermore, pursuant to Article 18.08 of the Regulations of the UEFA Champions League: “As a minimum, eight places are reserved exclusively for “locally trained players” and no club may have more than four “association-trained players” listed on these eight places on List A.”

[2] The goals of the UEFA Club Licensing and FFP Regulations are stated at article 2.2. They affirm that FFP aims “to introduce more discipline and rationality in club football finances” and “to encourage clubs to operate on the basis of their own revenues”.

[3] The settlements read as follows: “In case [the Club] fails to comply with any of the terms of this Agreement, the  UEFA CFCB Chief Investigator shall refer the case to the Adjudicatory Chamber, as  foreseen in Art. 15 (4) of the Procedural Rules.”

[4] The reason why both clubs failed to adhere to the FFP rules is that their sponsorship contracts with related parties were deemed overvalued and therefore adjusted as required by Article 58.4 of the UEFA FFP Regulations.

[5]Article 15.4 of the Procedural rules governing the UEFA Club Financial Control Body, edition 2014, states that: “If a defendant fails to comply with the terms of a settlement agreement, the CFCB chief investigator shall refer the case to the adjudicatory chamber.”

[6] Article 29 of the Procedural rules governing the UEFA Club Financial Control Body, edition 2014 foresees that:

The following disciplinary measures may be imposed against any defendant other than an individual:

a) warning,

b) reprimand,

c) fine,

d) deduction of points,

e) withholding of revenues from a UEFA competition,

f) prohibition on registering new players in UEFA competitions,

g) restriction on the number of players that a club may register for participation in UEFA competitions, including a financial limit on the overall aggregate cost of the employee benefits expenses of players registered on the A-list for the purposes of UEFA club competitions,

h) disqualification from competitions in progress and/or exclusion from future competitions,

i) withdrawal of a title or award.

[7] Indeed, directly affected party (as Everton, Arsenal and Marseille in those case) can ask the adjudicatory chamber to review the settlements. Article 16.2. of the Procedural rules governing the UEFA Club Financial Control Body, edition 2014 foresees that: “Any decision of the CFCB chief investigator to conclude a settlement agreement or to apply disciplinary measures within the meaning of Article 14(1)(c) may be reviewed by the adjudicatory chamber at the request of a directly affected party within ten days from the date of publication of the decision.”

[8] Article 34 of the Procedural rules governing the UEFA Club Financial Control Body, edition 2014 confers to directly affected party a right to appeal final decisions to CAS.

[9] Supra, No 6

[10] Article 267 of the Treaty on the Functioning of the EU gives to national courts the possibility to refer a question concerning the interpretation of EU law to the Court of Justice of the EU.

[11] Daniel Striani is a player agent on who’s behalf the complaints by Dupont against FFP were launched.