A fast-looming Spanish court case verdict in 2021 over a former professional cyclist who challenged the use of the bio-passport could see the country’s participation in next summer’s Tokyo Olympics Games at risk.
Spain’s National Court, which has jurisdiction, among other areas, over medical fraud is set to rule in 2021 on a WADA appeal against a verdict issued in October by a regional court in Madrid. That verdict last October insisted that the biological passport lacked legal validity in Spain.
The Madrid court case was brought by former Basque pro Ibai Salas, who had been suspended for four years and fined €3,001, thanks to information provided by his bio-passport dating from 2017.
“If the [Madrid court] verdict had been confirmed because there had not been no appeal by WADA in the Nation Court, we’d be breaking the WADA code which obliges us to respect the passport. It’d be a key failing,” José Luis Terreros, director of Spain’s Agency For the Protection of Health In Sport, whose duties include overseeing anti-doping testing in Spain, told the state news agency EFE in an interview on Wednesday.
Failure to fulfill the WADA code, such as by not applying the biological passport, is punishable with suspension of sporting events, as well as possible non-participation in the Olympics. Spain already was suspended from the WADA code back in 2016 for a failure to adapt its anti-doping legislation, although that suspension was subsequently lifted.
The National Court’s verdict in 2021 will hopefully draw a definitive line under a seemingly interminable and complex series of contradictory sentences in Salas’ case, starting in 2018 when he appealed, successfully, in Spain’s Sporting Arbitration Tribunal (TAD) against the original sanction.
TAD argued at the time that the biological passport alone was not sufficient evidence to condemn a rider, and that more investigation was needed to confirm the passport’s evidence.
However, WADA counter-appealed both to the International Sporting Tribual (TAS) in Switzerland and to the Spanish regional court in Madrid, something that proved to be a double-edged legal sword.
While TAS came out in favour of WADA, the Spanish regional court in Madrid pronounced in favor of the rider last October - as well as ordering WADA to pay the full legal costs of the case, totalling €45,000.
The Madrid court ruling said, “the passport attacked the presumption of innocence,” and its use was not admissible according to the Spanish Constitution: hence WADA’s subsequent, final, appeal to the National Court in 2021.
As for why Salas, who retired at the end of 2018 after a career spent mainly with ProConti squad Burgos-BH, was given a four-year sanction in the first place, according to the TAS ruling Salas provided six samples of blood for the bio-passport between January and August 2017, which were tested by the WADA-accredited laboratory in Barcelona.
“We suspended Salas because of anomalies in his biological passport,” Terreros told EFE.
“They were rated with a probability of 99.9 per cent when paternity in Spain is recognised with a probability of 99.78 per cent.
“The [regional court] judge’s verdict has meant that our laws are no longer in line with the WADA Code. It means it’s not Salas bio-passport that is invalid, it’s the use of bio-passports in Spain.”
Without WADA’s upcoming appeal to the National Court, Terreros added, Spain would no longer be fulfilling the WADA code. The penalties for that range from a fine up to non-participation for a country in the upcoming Olympic Games.
Terreros also pointed out that after a pandemic-blighted year in which the number of anti-doping tests carried out by his agency had dropped by 40 per cent, from 5,000 in 2019 to 3,000 in 2020, both standard tests and for COVID-19 had now returned to their normal level of frequency. And they would be more than doubling in 2021, to around 7,000.
The Spanish government is currently trying to push through modifications to anti-doping legislation which, among other things, would mean that the Spanish Sports Tribunal (TAD), which set the legal ball rolling in the Salas case when it exonerated him from his sanction back in 2018, would no longer have the power to intervene in such cases.
However, plans to bring the revised legislation in by January 1, 2021 have been delayed by at least a few months, apparently as a result of the pandemic. And it’s unlikely from a legal point to have a retro-active effect on the Salas case.
