CAS rules on UCI appeal, suspends Ullrich for two years
The International Court of Arbitration for Sport has ruled largely in favor of a UCI appeal, finding former Tour de France winner Jan Ullrich guilty of doping offenses related to the 2006 Operación Puerto investigation and annulling all of his results back to May of 2005.
The three-member CAS panel issued a two-year suspension of the now-retired rider, banning him from the sport until August 22, 2013. The decision represents a minor victory for Ullrich in that the panel rejected a UCI request that the 38-year-old rider be banned from the sport for life.
The panel found, however, that there was sufficient evidence that Ullrich had enlisted the medical services of Dr. Eufemiano Fuentes, the Madrid-area gynecologist whose offices were raided as part of the Puerto investigation in May of 2006. It was in those raids that investigators from the Spanish Guardia Civil seized performance-enhancing drugs and more than 100 blood bags, many of which were subsequently linked to high profile riders.
Ullrich was among several riders named in the investigation and was suspended, along with teammate Óscar Sevilla, by the T-Mobile team on the eve of the 2006 Tour de France. Ivan Basso (CSC), Francisco Mancebo (AG2R) and five members of the Astana-Würth (formerly Liberty Seguros-Würth) team, including Alberto Contador, were also excluded from that year’s Tour. Contador was among several riders subsequently cleared of charges in the case, Basso later served a suspension and returned to the sport, but Ullrich’s career was effectively derailed by the allegations.
Jurisdictional and procedural questions
Based on a report from the Guardia Civil, the UCI had requested that the Swiss Cycling Federation initiate disciplinary action against Ullrich in 2006. It wasn’t until 2009 that the Swiss Olympic Committee ruled that Antidoping Schweiz lacked authority to discipline the German rider, whose Swiss license had expired in October of 2006.
That triggered a 2010 appeal from the UCI, which sought to annul all of Ullrich’s results back to 2002 and to impose a life-time ban. Ullrich’s legal team challenged the UCI’s authority to discipline the rider since he had already retired and was no longer subject to the Swiss governing body’s authority.
Furthermore, Ullrich claimed that he couldn’t be subject to the actions of the disciplinary panel since Antidoping Schweiz wasn’t even in existence when his license lapsed, meaning that he had never formally agreed to be subject to its jurisdiction.
Ullrich’s attorneys raised a number of other procedural claims in the rider’s defense, but also argued that if those were rejected that any disciplinary actions be referred back to the Swiss federation, rather than being imposed by CAS.
The CAS panel rejected the bulk of Ullrich’s arguments, noted that the UCI retained authority over Ullrich and concluded that any resulting sanction could be imposed by the appeals panel itself.
Probative value of evidence and no factual defense
The panel then found that DNA evidence showed that Fuentes was in possession of Ullrich’s blood and that there was no medical justification for the storage of the rider’s blood other than for purposes of performance-enhancement.
“The report, prepared by Dr. Dirk Porstendörfer, concluded that the samples provided by Ullrich matched the genetic materials provided by the Spanish Civil Guard with an extremely high degree of probability (one in six billion),” the panel noted.
The panel noted that Ullrich’s own financial records showed that Ullrich had paid Fuentes in excess of 80,000 euros for medical services.
“Ullrich’s bank statements … show a payment to Dr. Fuentes in 2004 in the amount of €25,003.20,” the panel reported, “and a second payment in 2006 to a numbered Swiss HSBC bank account in the amount of €55,000 which HSBC has confirmed was also associated with Dr. Fuentes during that time period.”
Spanish investigators had also provided the UCI with evidence that Ullrich had made frequent trips to Fuentes’ offices in the years before the 2006 Puerto raids.
“The UCI has offered into evidence documents obtained from the Spanish Civil Guard, which the Spanish Civil Guard seized or otherwise obtained as part of its Operation Puerto investigation or from other sources,” the CAS panel wrote. “These documents include: (1) Documents evidencing travel by Ullrich to Madrid for reasons that are not known to be related to cycling events. (2) Calendars seized from Dr. Fuentes that use a code to record the withdrawal of blood from athletes on specified dates, and inventories of fridges and freezers containing blood bearing the date of extraction – since the blood samples can be associated to particular individuals, read together the inventory and the calendar are a guide to the dates when Ullrich is alleged to have provided blood to Dr. Fuentes for storage.”
In concluding its evidentiary analysis, the CAS panel expressed “surprise” that Ullrich’s entire legal strategy was based on procedural and jurisdictional challenges and included no direct challenge of any the evidence presented.
“Ullrich’s silence in this respect is both notable and surprising, given the vigour with which he has otherwise contested the UCI’s allegations,” the decision noted. “Despite the Panel’s surprise in this respect, it is of no consequence to its ultimate decision; the UCI rules do not contain a provision that would permit a negative inference to be drawn from efforts to avoid addressing the substance of an allegation of an antidoping rule violation.”
While no negative inference could be directly drawn by the absence of a defense on Ullrich’s part, the panel did note that there was compelling evidence to conclude that there was a doping violation and nothing had been presented to impeach that evidence.
“Given the volume, consistency and probative value of the evidence presented by the UCI, and the failure of Jan Ullrich to raise any doubt about the veracity or reliability of such evidence, this Panel came to the conclusion that Jan Ullrich engaged at least in blood doping in violation of Article 15.2 of the UCI Anti-doping Rules.”
No life-time ban
The CAS panel, however, rejected a UCI call to impose a life-time ban and to annul Ullrich’s results all the way back to 2002. The UCI based its request on the fact that the Puerto case constituted Ullrich’s second doping violation and that UCI and WADA rules called for the imposition of a life-time suspension. Ullrich was found to have used amphetamines (reportedly the drug ecstasy) while partying with friends in 2002.
The CAS panel noted that amphetamines had since been reclassified as being banned only if found in an in-competition test.
The panel concluded that the 2002 violation would no longer qualify has a doping offense and, therefore, did not warrant the imposition of a life-time ban.
“In short, were Ullrich to be found to have ingested amphetamines out of competition today,” the panel reasoned, “he would not have committed an anti-doping violation.”
Ullrich’s suspension expires in 2013, when the man who became Germany’s first-ever Tour de France winner in 1997 will be 40 years old. It’s doubtful that Ullrich ever had plans to return to competition, since he formally announced his retirement in February of 2007. A suspension, however, also includes a ban on his participation in the sport in any other capacity, including coach, manager or sponsor.
Wednesday’s ruling also strips Ullrich of results dating back to May of 2005 after the panel concluded that the evidence presented “established that Jan Ullrich was fully engaged with Dr. Fuentes’ doping programe at least from that date.” Most significantly, that would negate Ullrich’s third-place finish in the 2005 Tour de France and his overall win at the 2006 Tour de Suisse.
The court also ordered Ullrich to pay 10,000 Swiss francs (8300 euros) to defray a portion of the legal costs of the case.