“We Don't Want to Know.” - Third Installment of It’s not about the Blood!

I feel like Charles Dickens releasing a chapter by weekly installments!

“We Don't Want to Know.”

The Spanish judicial process, like any other judicial process, has not been a linear affair - with interlocutory steps and appeals by various parties including the UCI and WADA all having their effect on the course of the proceedings; such that in 2007 the Investigating Judge Serrano shelved the inquiry (Juzgado de Instruccion 2007). His finding was that he did not have enough evidence to obtain a prosecution against anyone involved as doping was not then a crime in Spain. As well as that, in the Investigating Judge's view, the facts as presented did not fit within the concept of a charge of endangering public health. At that point it seemed that for all intents and purposes in Spain Operacion Puerto was over. Nevertheless, the damage rolled on as riders implicated, some of whom who had been ‘cleared’ by their national cycling federations or national anti-doping agencies, found it difficult to obtain a ride in a top tier team. Some were sanctioned, with Basso being the highest profile rider involved. Others ended up either retiring, racing in lower level teams or racing as refugees in places such as Portugal and the United States until things blew over.

In the end the sanction imposed on most of them has not been that meted out by the courts, nor their federations. It has, however, been dealt to them by the management and sponsors of the Pro Tour teams and the race organisers. This is evidenced by Mancebo’s case referred to above and as many of the other cases show retribution for involvement in Puerto is not legal in the way we used to think about such things. Whatever the legal outcome might be retribution manifests itself in one form as an inability to obtain a contract with a decent team. Both the Australian Sports Anti-Doping Agency (ASADA) and the Royal Spanish Cycling Federation (RFEC) respectively, found that those involved had no case to answer. The comparison between Spain and Australia is telling, as all the rhetoric one is painted as being out of step and the home of the old ways of cycling, whilst the other in step and a home of the new ways of cycling, but both decisions were made on identical grounds.

The issue is complex and defies the simple explanations bandied about concerning the old and new cycling worlds. On one hand there is the position that Judge Serrano had refused to formally release evidence to the relevant sporting bodies until the criminal process against Fuentes and his collaborators had been completed. This order of the Court has itself been highlighted in the media wars as further evidence of Spain not being in step with the new cycling culture. However there is no great conspiracy here, simply the application of ordinary principles of justice in which disciplinary proceedings are suspended pending the outcome of criminal hearings. This approach was confirmed by the Provincial Court of Madrid in December 2009 (Audienca Provincial de Madrid 2009b) and is consistent with fundamental principles of law and natural justice and to not be bound by them would place the integrity of the criminal trial at stake. There is ample judicial authority, not only in Spain but also in Australia, to support such a conclusion (High Court 1982).

On the other hand the fact is that the UCI did receive a bundle of 56 files encompassing the bulk of the then Operacion Puerto documents of the Guardia Civil. The UCI retained a consultant to deal with the Puerto files and in early 2006 subsequently passed these on to the respective national cycling federations. It was on this basis that for example CONI disciplined Ivan Basso. In the Australian case, of the 56 bundles of documents sent to the federations, it appears that only one page actually made it to the independent anti-doping body ASADA. Without more than this one page consisting of a calendar accompanied by some handwritten and coded annotations, it is of no surprise ASADA found that there was no case to answer. The question that must be asked is where the chain of custody for these documents broke down. How did Cycling Australia, if that is where the chain broke, never manage to pass on all of the relevant documents? Nevertheless the UCI continue to hold out Australia as one of the representatives of the new cycling culture who have dealt with the Puerto problem is a comprehensive way, whilst Spain is characterised as an example of the old ways.

In February 2008 the Provincial Court of Madrid reopened the case for the first time (Audienca Provincial de Madrid 2008). The three Magistrates of the Court found on appeal that there was sufficient evidence for the endangering public health charge to be pursued and they directed Judge Serrano to reopen his investigation into that charge. However, it may be that an equally important finding of the Provincial Court was that the cyclists had never engaged in fraud in respect of their employers or sponsors. This decision is important for the not only the riders in so far as they continue to suffer at the hands of administrators and sponsors who fear the sullying of their good names, but also the continuing schizophrenic and paranoid manner in which Puerto and, more broadly, doping policy is dealt with in cycling. The Provincial Court finding suggests in fact that these very same sponsors and administrators have been all too well aware of the practices within their respective teams for too long – and thus are not in a position to have either their name sullied or to be defrauded.

The 2008 Provincial Court decision rejected the argument of fraud as being openly artificial and stated that it was not realistic to try and fit acts such as those in question in Puerto within the Spanish law of fraud. Fraud in Spain, as with most jurisdictions, requires that either those contracting the cyclists (the teams) or those running publicity campaigns in concert with the cyclists (the sponsors), to be deceived, and to be deceived seriously, hence the concept and the offence of “serious fraud”. The court stated that:
when it is notorious that for many years there has been talk of irregular practices, when there have been cyclists who have died from the consumption of drugs, frequent disqualifications and sanctions, when cycling is the mirror into which other sports look with fear, when it is known that the caravans and logistic premises of cycling teams have been searched for stimulants, when random controls are necessary after each race or stage, and the cycling teams have their own specialist doctors, to affirm that the cyclists have defrauded those who have contracted them is to close one's eyes to reality. ... there is at least an “I don’t want to know” attitude, and that is incompatible with the idea of serious fraud.

The implication of this finding is clearly that the Provincial Court felt that the sponsors, and the sport's administrators, had knowledge of the fact that there had been a number of doping cases in cycling in recent years and that doping existed within cycling. The further and more important implication is that both groups had been happy to turn a blind eye whilst it was in their interests. This finding undermines somewhat the simplistic rhetoric of cheating and fair play, often repeated by members of both these groups, that pervades the discussion around doping in cycling in contemporary times and the arguable hypocritical situation whereby it is only the cyclists who are taking the blame for the problem. For all the talk of cultural change in cycling, there is still little acknowledgment from the various levels of the sport's administration and sponsors that whilst many of them whom continue to build their own careers, they too were a part of cycling's old ways.

The Puerto files refers to various media reports, that of Roux, Manzano, Heras, Hamilton and Perez in particular. All of this suggests that the widespread use of performance enhancing substances in cycling was common knowledge. Drugs in cycling have a long history. As we know, it was Simpson's death (Fotheringham 2003) that brought the health and safety of the cyclists into focus as anti-doping controls developed during the 1960s (Houlihan 1999). It was also with Simpson's death – the Englishman who helped start the process of globalising the Tours; that doping first becomes a political matter but it still it remained an internal issue, something for the sport to deal with. The late 1990’s mark the point at which it becomes a matter for the state and it was with the 'Festina Tour', with borders being crossed that we see doping first becoming criminalised. Even at the time of the Festina affair the ethos behind anti doping measures was health and safety. Only recently as the pressures of a global market demanded has that focus shifted to the risk management backed by the rhetoric of fair play and cheating to be monitored by a bio-political passport regime.

Puerto also reveals a new post-Festina 'post-modern' approach to the organisation of doping. Festina became criminalised because of the seizure of various illegal substances in poor old Willy Voet's team car (Voet 2001). The riders, including Australian Neil Stephens, were held in police detention for days, with the almost blind Swiss rider, Alex Zuelle even being deprived of his glasses. The Festina affair exposed the old team based practices of preparation, where team doctors themselves were responsible for the team's doping program. In the aftermath of Festina that system began to break down and it seems that it was replaced by a more networked and outsourced preparation system. Operacion Puerto exposes the outsourced network model that came into existence in cycling in great detail. It also suggest that Liberty returned to a more team based approach as Saiz was aware of the dangers to his rider's health, not to say the team's reputation, if they were left alone and allowed to do their own thing. Journalist and ex-professional Paul Kimmage has recently argued that rather than dealing with its history and the problem of doping, in a post-Festina world these practices only became further perfected (Velocity Nation 2009b).