1 May 2013

Blood bags in doping scandal could be destroyed

“Is that the smell of blood bags burning?” japed one of my more loquacious colleagues outside a Madrid court yesterday afternoon. “Whitewash!” Said some. “Scandal!” Muttered others.

The biggest doping ring in the history of sport has produced evidence – plenty of it too, in the form of blood bags and doctor / patient notes.

But every last drop of ‘sangre’, every treatment schedule, every medical file is – in theory – now to be destroyed. Unless, that is, the Spanish anti doping agency can persuade the most senior judges in the land – possibly ending up in Europe – that the blood bags must be preserved. So the answers they could provide might one day be revealed.

Because we still do not know who else (other than already disgraced cyclists) were doped up to their eyeballs by a certain Dr Eufemiano Fuentes.

Now it’s not going to be easy. But bear with me. Cos this is how it’s going to pan out over the next year – maybe longer. For that is how long it will take for Spain’s legal system to determine the fate of the Fuentes evidence – currently under a lock and key in a vault somewhere near Barcelona.

Judge Santa Maria made it very clear in sentencing Dr Fuentes that what he did was not medicine. Extracting and then replacing the blood of elite athletes from the worlds of cycling, track and field, boxing, tennis, and football was not about improving the patient’s health.

Remember the Hippocratic oath – do no harm. Yet this blood was often mixed with banned and dangerous performance enhancing drugs. Several of Dr Fuentes’ patients fell ill from his treatments. For this Fuentes was handed a jail term of a year (albeit suspended) and struck off the sports medicine list for four.

The procedures the court went through in painstaking detail were purely and expressly designed to try – through any means necessary, to improve athletic performance. In many cases these procedures did the opposite. In no way could what Dr Fuentes did be construed to have been medically necessary. So far so good. That much was laid down by the court.

What Ana Munoz, the multilingual, debonair and fiercely clever lawyer who heads Spain’s anti doping agency will argue though, goes much further. Her appeal to a senior court will state that what Dr Fuentes did fundamentally changed the nature of what should be a sacred relationship. That of doctor and patient.

Fuentes, and the athletes he worked with, were in fact customers, queuing up – in fact in many cases coerced by their teams, particularly in cycling – to receive controversial, unethical, potentially dangerous and in any case entirely voluntary services that have no place in sport.

And this is the nub of their imminent legal challenge. Expect it any day now – it has to be tabled within 10 working days of yesterdays verdict. As it stands the blood bags in question are in effect private medical records protected by Spain’s constitution. Their owners – the athletes who doped with the help of Dr Fuentes – are guaranteed a right to privacy.

What the athletes did may have been ethically wrong, indeed against the rules of sports – but it wasn’t illegal. Thus the court ordered the blood and all their personal files must be destroyed.

So that does for the unnamed athletes. but what about the doctor? Munoz will argue the bags hold vital clues that Dr Fuentes committed further crimes. The same offences he’s just been convicted of, almost certainly, but with currently anonymous people. Fuentes endangered their health too – because what he practised was not medicine. And the blood bags are not protected medical records but evidence. Ergo for justice to have the slightest chance of one day being done, they must be preserved.

Now there is more to it. Much much more.

Current laws dictate that evidence seized in criminal proceedings can’t be rehashed or recycling for administrative fishing trips. So Munoz’s hands are tied to a degree.

But there will be other developments. When the investigation into Dr Fuentes – Operacion Puerto – raided his offices in 2006, cycling’s governing body suspended a number of its own cases against suspected dopers. 50 of them or thereabouts. Now that Fuentes Has been convicted, the UCI can reopen these dormant probes.

Though how much more there is for cycling to purge post Fuentes and Lance Armstrong isn’t clear. Nor is it that particularly sexy. The big prize is still the blood bags.

The labyrinthine route to which must be plotted through the competing interests of sports ethics, criminal law, health, and the right to privacy. All in the hope that one day the truth will out.

To recap: the whistleblower whose claims kicked this whole episode off in the first place has still not has his evidence properly tested – by which I mean in a lab, not a court of law. Until the blood bags are profiled for their DNA – we will probably never know from whom they came.

So in the meantime we are left with claim and counter claim. For both the key witnesses have provided, over the years, conflicting accounts.

Jesus Manzano, former professional cyclist and doper turned whistleblower told Channel 4 News he saw three world famous footballers attending Dr Fuentes clinic. A clinic where he was once a patient – or should one now say customer.

These three footballers – allegedly all played for major Spanish club teams, and represented their countries at national level. They are genuine superstars. If it is proven they were dope cheats it would send shock waves through the world of sport.

Manzano also said he gave these names to Spanish investigators when Operacion Puerto first began.

Yet what has become of his claims? for Ana Munoz says when push came to shove – when they met earlier this year to discuss what he says he saw – he retracted the lot. That he no longer stood by any of the names he once gave Channel 4 news.

And then there’s Dr Fuentes himself. According to Munoz, he has twice offered to tell Spanish police everything he knows, along with hints that if he does so there would be massive implications for Spain’s sporting success stories of the past decade. But only to then change his mind – twice telling investigators that the full details would only emerge later in a book.

Like she did with Manzano, Munoz met with Fuentes face to face, just this last month in fact. And what did he tell her? That he’d not worked with either of Spain’s top league sides. that the footballers he treated weren’t top drawer. That they weren’t the global superstars he and others had hinted at before.

Now recall that Fuentes offered to reveal to the court at the beginning of his trial his client list. Its not clear if he was being genuine or if he knew what the outcome would be. Because of course the judge said no. Naming those names would – surprise, surprise – breach their rights to privacy.

But there is a school of thought that this entire process has been constructed to give the appearance of a serious search for the truth. When in fact Dr Fuentes was always going to be the fall guy. A clever and intuitive fall guy who has played his cards carefully, making offers he has never had any intention of delivering on. Knowing that because he is a doctor he’d never be forced to spill the beans.

Which takes us back to the noises off outside court, as a huddle of media struggled to make sense of the 384 page dense legal argument the judge had just handed down.

Scandal? Whitewash? Or just the slow and grinding search for the truth.

The blood bags. We need them. And we need to know who they lead to.