Anatomy of a corruption case in the doping world

The world increasingly disappoints the average citizen, that anonymous and insignificant one who cannot get off the global roller coaster. The “0” citizen attends daily the show of robbery, corruption scandals and fall of characters that were once icons in their fields of action; to be dragged today by a maelstrom of reprehensible business, political pacts and attitudes that were once inconceivable to the general public.

Tax evasion, concussion, bribery, wars made for the business of weapons, unscrupulous bankers who democratize losses and privatize profits, are our daily bread. Mobile devices and social networks make those gossips – that once formerly remained in an elite- known and public, so the global leaders are today´s one-day flower.

The “moral reserve” euphemism that Franco used to disguise the backwardness of Spain during most of the twentieth century; is applicable to sport in these nihilist times, where nothing remains standing. However, the storm began as a mild wind dressed of “sotto voce” comments, that later exploded in the corruption scandals within the FIFA; where what was a rather indiscreet case, finally sugjugated with all the pus it contained: contracts under the table, arrangement of games, bulk commissions for broadcast rights, tax evasion and an endless number of criminal facts that could be scrutinized before in the face of the “furbetto” Blatter. The continuous and ridiculous re-elections thanks to soccer powers like Haiti, Zimbawe or Antigua and Barbuda; finally passed the bill to the entire establishment of the federation that has more member countries than the United Nations.

Even the Germans have been sprinkled with the manure from that giant fan; Kaiser Beckenbauer has had to flourish his “libero” skills to stop the gale of accusations that have arisen from the 2006 World Cup. Elliot Ness style raids have occurred in New York and Switzerland, and justifications worthy of officials in banana republics, such as the aided “word” pacts for millions of Euros, make the end of this film even more pitiful.

However, the Olympic sport in general had been free from scandals associated with corruption and questionable actions; the problem of doping had always been a matter of the professional sport and positives in amateur tournaments were always far from any public questioning against the authorities.

When doping cases appeared in an important showcase –like the Olympic Games-, they were considered to be a guarantee of functioning in the so-called “play true” system. Personally, during the summer Olympics, I always expected to know how many would seek to disguise the consumption of doping substances; in the end, Armstrong and Pantani were the living example of the possibility of technologically masking the presence of anabolics and steroids that would provide an individual advantage over competitors.

Cracks in the wall

Anti-doping programs in the countries of the third world could bring a little development to local sport, since the practices and the use of technology used by the World Anti-Doping Agency (WADA) meant improvements in the various sport disciplines in these places.

However, the structure of the world anti-doping system began to show cracks some time ago, what were first only rumors –in FIFA’s best style-, began to materialize and finally led to the Russian scandal where the impregnable Berlinger bottles were violated and therefore manipulated to introduce altered urine samples. The discovery took place not from some kind of internal measure of the World Anti-Doping Agency –WADA-, but by the denunciation of a Russian athlete who had long reported the anomalies without having reached echo in this regard.

Professor McLaren has delivered his opinion on this case, which reveals the fragile structure of the World Anti-Doping Agency; we still do not know for how long the Berlinger flask system had been violated and whether it was done only by the Russians or there are more countries with federations that have enough technology to violate the anti-doping control. This is a question that will merit an extensive research to find it out and determine what will happen from now on.

For now, the WADA has taken a number of emerging measures to mitigate the tornado that triggered the scandal; both Professor Smirnov and Sir Craig Reedie have sought to rescue the sports institutions to limit the reputational damage for Russians and the WADA in general.

On November 20^th, I had the opportunity to attend the open press session of the “WADA Foundation Board Meeting” in Glasgow, where the issue that prevailed throughout the symposium was the Russian case, through the first McLaren report. Even to give freshness to the particularly diffilcult moment that WADA is facing at this time, Linda Helleland -the Norwegian Culture Minister- was elected as Vice President of the institution in order to bring a cheerful air to such a dense atmosphere.

The case that could give the shot of grace

About doping, I only knew that in Seoul ’88 Ben Johnson was what Rock Hudson to AIDS, that in the 1994 World Cup Maradona had relapsed into the customs learned in Naples, that the Russians were experts in violating controls, and that the Chinese weightlifters were full of steroids; I never imagined that I would deal with this issue and that at the same time it would be so complex.

Guatemala is one of the countries with the most worrying figures in social development in Latin America. In this Central American nation, one in two children suffer from malnutrition, has the highest infant mortality rate in the subcontinent and the lowest educational levels in the hemisphere.

An economic elite, of the most backward in the world, has allowed the Central American nation to descend to these levels. This perverse system led to the collapse of institutionality; the rampant corruption, drug trafficking and crime reached extremes of great concern to the international community.

Feeling unable to dismantle the entrenched structure, the government decided to ask the United Nations for help to fight against corruption. The “International Commission Against Impunity”, known by its acronym CICIG, is a force made up of professional investigators and prosecutors who support the local Prosecutor’s Office to solve acts related to illegal structures parallel to the State.

Untouchables that were previously barons of the real power thanks to the system, have been prosecuted and are facing proceedings for their conviction. The expression “Failed State” finally found its illustration in Guatemala where now the foreign cooperation through this multinational force –made up of about three hundred people- had to carry out the tasks that governments, both civil and military, simply did not perform.

In this context emerged the National Anti-Doping Agency, an organization that is part of the Guatemalan Olympic Committee, which has a budget greater than the total allocated to the national justice system and which has obtained as a meager result, a single Olympic medal in the discipline of march during the entire history of the country. The NADO-GUA is in charge of representing the World Anti-Doping Agency and supposedly carries out controls in all required jousting.

The problems here started when the local soccer championship was won by a provincial team whose players were subjected to the respective anti-doping controls after dramatically winning the final game. The anti-doping officials in charge of the tests were accused of having altered the samples by the indicated managers and players, to the point that there was a protest strike and now the national soccer federation had to be intervened due to the internal disputes –fruit of this case-; for that reason Guatemala has been suspended by the FIFA from all international competition.

Doping in golf? Of course!

The local anti-doping agency never misses the amateur golf tournaments in Guatemala, despite the fact that only two positive cases have been registered in the world throughout the history, which have occurred in the PGA circuit. The argument of the local authorities for doing so is that the golfer’s swing equates the batting of José Canseco or New York Yankees’ Alex Rodríguez.

Daniel Gurtner is an upper-middle-class Guatemalan boy who, thanks to his father’s effort began to play golf since he was seven; he won the national tournament at the age of sixteen, and since then he has remained as the best local player. Despite continuing as an amateur, for obtaining top rankings, Gurtner has been invited to tournaments where professionals participate. On November 28^th, 2015, Gurtner won his third national tournament in the amateur category.

After the victory, he was subjected to the accustomed anti-doping control –the third one during his short sports career-. That day the notification was made by the National Golf Association. Despite continuous procedures, Gurtner and his fellow golfers had barely received an hour and a half talk about doping in four years, which dealt with general issues related to doping substances.

On that occasion, something was not right from the beginning. Gurtner arrived at the control station accompanied by his father, who had always been with him in previous tests. Without both knowing it, Ulrich Gurtner –the golfer’s father- had served as the athlete’s representative in previous control procedures. They were unaware of that legal figure because they never heard about the regulations and the sportsmen’s rights stipulated in the world code. Without explanation, the father was evicted with threats by the anti-doping officials. Ulrich Gurtner left the premises and, by an instinctive question, he decided to take photos, something that would later be fundamental to the case.

The NADO-GUA officials provided beverages to the golfers. According to Misael Obdely González Muñoz –one of the supposed officials who carried out the controls-, the places to be tested were the first, second, third and fourth ones; however, the first, second, fifth and sixth places were actually examined. The above could not be explained by the local anti-doping agency and even less when the National Golf Association requested three samples and NADO-GUA strangely donated a fourth one.

Inexplicably, the officials lost Gurtner’s identification and made him wait for over an hour before he was put under control. All participants were asked to sign the form in English –without instructing them about their rights- and passed their respective controls. None of them had a representative –because they were simply unaware of the basic principles of the code-. Gurtner was last, they made him open the Berlinger bottles and sent him to deposit his sample. When he returned with the plastic cup, he deposited the urination in the A and B bottles and closed them.

On January 14^th 2016, Ulrich Gurtner -Daniel’s father- received notice from the National Anti-Doping Agency about an adverse analytical result. Although the golfer was already twenty years old, the director of the agency, Francisco Aguilar, decided to call the father. The golfer was representing Guatemala in an amateur tournament in the Dominican Republic. The substance detectedwas CHLORTESTOSTERONE METABOLITE or CLOSTEBOL, a synthetic anabolic used for the increase of muscular mass, generally used by weightlifters. The director of NADO-GUA had determined to wait three weeks to notify the athlete about the positive.

In view of this, the Gurtner family contacted their lawyer, who had to work in an exhausting way, instructing himself on the new world of the anti-doping laws. Accordingly, on January 20^th, the sportsman, through his legal counsel, decided to exercise the right to a preliminary hearing.

The NADO-GUA decided to ignore the golfer’s right and proceeded to suspend him. Gurtner never had access to that fundamental prerogative set out in the World Anti-Doping Code. In response, in mid-February Gurtner’s lawyer decided to file an appeal for that procedural error.

A designated court decided to lift the suspension to the golfer. The next step to follow was the “Fair Trial” hearing, the definitive instance to defend the case at local level, given that Gurtner emphatically always proclaimed his innocence and surprise about the positive result. However, NADO-GUA unilaterally decided to hold the preliminary hearing, even though it was legally out of the procedural time. For this, it resolved to notify the athlete about the adverse analytical result again, and on April 14^th set the date for the Preliminary Hearing for the 15^th of the same month –the following day-.

Despite the legal absurdity that this meant and the fact that the golfer’s lawyer requested an extension of few days for being out of the country, the agency arbitrarily held the “Preliminary Hearing” process without the lawyer, nor the athlete –Gurtner is studying at a university in the United States-.

With an incomplete Hearing Panel, the NADO-GUA sent by electronic mail the writing No. 23 dated April 15^th, 2016, notifying the certification of Act 24 of the hearing held on April 15^th, 2016, indicating that “…it had been resolved to SUSPEND HIM PROVISIONALLY from that date from all activities related to golf, summoning him again to hold the Preliminary Hearing on April 25^th, 2016, and warning him that if he did not appear, he would be sanctioned additionally”.

The International Sports Court, an expensive instance

The “Preliminary Hearing” finally took place, and as expected, Gurtner’s suspension was confirmed. The Latin American tour of PGA professionals was coming and Daniel had been invited as an amateur champion. It seemed that the imperative was to prevent at all costs the golfer’s participation in the same.

After months of waiting, the Fair Trial Hearing was scheduled for May 27^th. For this last local instance, Gurtner’s lawyer had to work together with other colleagues to prepare the defense based on the whole tangle of the anti-doping legislation.

Gurtner’s defense provided reliable evidence of the serious conduct that the National Anti-Doping Agency had shown from the beginning of the process so far; a more than questionable behavior with respect to the golfer, and as expected, the Fair Trial Panel –supposedly a group of impartial people without conflict of interest and appointed by the NADO-GUA to resolve this kind of cases- determined to punish Gurtner for two years.

With the above, the only way that Gurtner had, was to bring the case before the International Court of Sport based in Lausanne, Switzerland; for which he had to pay 1,000 Swiss Francs only for the admission of the case. For all this, the Gurtner family had to contract the services of a team of experts in the matter –since in Guatemala the World Anti-Doping Code, its changing rules and all proceedings before the TAS are areas unknown to local jurists.

After admitting the appeal statement, for the Gurtner family the news that they had to pay in advance 18,000 Francs as the appealing party, the local Golf Federation 9,000 Francs -the requester of the test- and the National Anti-Doping Agency other 9,000 Francs, fell like a bucket of cold water. To make things worse, if any of the respondents decided not to pay their respective cost, the amount had to be covered by the appellant, otherwise the proceeding would be annulled.

The National Golf Association refused to pay the advance, as well as the Guatemalan National Anti-Doping Agency -NADO-GUA-; so it was up to the athlete to pay 37,000 Swiss Francs to gain access to a court that would finally be impartial.

The Gurtner family decided to continue with the process, filed the formal appeal that was to be answered by the NADO-GUA. As an action “ad absurdum”, the lawyers who signed the response on behalf of the agency, were two of the three who integrated the “Fair Trial” panel that decided the suspension of two years for Gurtner –a clear conflict of interest against the athlete-.

Falsification of documents, serious deviations from the Code and lies

The TAS set October 17^th as the date to hold Gurtner’s hearing. It was the golfer’s last chance to claim his name, a 20-year-old boy submerged up to the marrow in international trials and frightened by what could be a big conspiracy against him.

The hearing before the Sports Arbitration Tribunal was held in the capital city of Mexico. The panel was integrated by the referees Ricardo de Buen Rodríguez (Mexico), José Juan Pinto Sala (Spain) and Margarita Echeverría Bermúdez (Costa Rica).

It was the NADO-GUA and the National Golf Association of Guatemala against Daniel Gurtner -whose lawyers had to fly from Panama and Qatar-.

During the hearing, Gurtner’s defense showed more than ten serious deviations from the World Anti-Doping Code, for example: the National Golf Association determined who would be the athletes to be examined, contrary as set forth in the World Code on the issue of conflicts of interest; likewise, that entity made the notification to the golfers -an exclusive function of the NADO-GUA-; the athletes were together at the control table -something inadmissible-, there was no waiting room, there were urine samples together and alcoholic beverages on the table, the place was open to the public, the DCO’s did not have accreditation, there was outside personnel in the area and the restrooms where the tests were conducted were open to the use of private individuals.

Anti doping control unit the day of Gurtner’s Collecting Samples Process

According to the Training Guide for Doping Control Officials belonging to the WADA, their training should include as a minimum: “Theoretical understanding and training in different types of tests and activities related to officials, verify that all activities comply with the international standard for tests and investigations”. On its part, the Spanish Agency for Health Protection determines that the official must: “have knowledge about the national and international sports community, knowledge of languages, and above all, the ability to meet the requirements of programming in the tasks required.”

The official in charge of Daniel Gurtner’s sample was Deyris Jesdany López Barrios.   During the “Fair Trial” hearing in Guatemala, the golfer’s lawyer, Wilve Salazar, requested his accreditation as such; for which the NADO-GUA handed over a copy of a diploma that credited him as an official, signed by the former director of the agency –Dr. Carlos Alfredo Hermes Beltranena-.

In an affidavit, Dr. Hermes stated that “…the described diploma was not signed by him… and that during the time he served as Director of the National Anti-Doping Agency of Guatemala he did not accredit the person identified as: “Jesdany López and/or Deyris Jesdany López Barrios””.

This fully evidenced the NADO-GUA of having falsified the key document that validated the accreditation of López as a DCO. The Gurtner family filed a criminal complaint against the NADO-GUA officials for the crime of falsifying documents.

Fake Diploma

When Daniel Gurtner was notified by the NADO-GUA about the provisional suspension, it was stated in the respective note that he had been sanctioned according to the Manual of Procedures. His lawyer requested a copy of the document containing those rules, and they never handed it over because it had not been in force for some time.

The “Custody Chain” form that guarantees the inalterability of the test, from the sample taking to its shipment by courier, is a fundamental factor as a right for an athlete. In the case that concerns us, the signature that appears on the form corresponds to Ana Patricia Espósito –Executive Director of the NADO-GUA and the only official with responsibility for this phase in the process.

Nevertheless, it was verified that Mrs. Espósito never received the urine samples and the supposed DCO’s were the ones who stored them. Mrs. Espósito traveled the following day to a training course in Lima, Peru; therefore, she had to recognize that she never performed the procedure. This revealed a clear lie, proven in the signature that appears on the form.

For ten days the samples remained without proper custody and were finally sent to the laboratory in Canada where the presence of the prohibited substance was discovered.

In the «Final Hearing» in Guatemala, Ana Patricia Espósito justified her absence by saying to the golfer’s lawyer: “excuse me, but I need my life, too. I had to arrange my children’s things, so I…, and I was taking the plane on the next day.”

Supraventricular Tachycardia, the missing detail

Daniel Gurtner had mild fainting at the beginning of 2015 when he was studying administration in Texas. After several examinations, he was diagnosed with supraventricular tachycardia, for which he must take a heart rate regulator every day for an indeterminate time. The same thing happens with the Juventus player Stephan Lichtsteiner. He was banned from taking stimulant drinks, even coffee, grapefruit and Red Bull, because they affect his heart directly.

Anabolics like CHLORTESTOSTERONE METABOLITE or CLOSTEBOL increase aggressiveness and heart rate because they are used for sports that demand great physical performance. Golf is a precision sport that has as premise concentration and calm, which is the polar opposite of emotional and physical aggression, to achieve better results. Gurtner has a double motivation to avoid such substances.

When I interviewed Sir Craig Reedie –President of the World Anti-Doping Agency- about the positive case of this golfer in Guatemala, with face of surprise and disbelief he answered me with another question: “A golfer??”

The conspiracy to eliminate a competitor through doping

 Someone said: “If it has four legs, whiskers and says meow, then it must be a cat”. After observing the repeated attempt to sanction Daniel Gurtner, it is impossible to avoid suspicion. Gurtner’s defense argued, and it was accepted by the supposed DCO’s that after providing him with the beverages, his identity document was misplaced by the false DCO for more than an hour, to then strangely appear in an area that had previously been reviewed.

The scientific opinion of the experts Giuseppe Pieraccini and Fabrizio Biagini states that after the ingestion of a drink contaminated with Clostebol, it takes a short period of time -30 to 40 minutes- so that the substance can result in the urine of the person -between 1 and 2 nanograms per milliliter-.

The defense argued that there were sufficient elements to determine that the testing personnel propitiated the contamination of the athlete’s beverage. Likewise, they imposed a reasonable amount of time so that once the contaminated drink was ingested, it would have an effect on the golfer’s body and be reflected in the collected urine sample. The substance lacks color and taste. In the same way, it can be added in free or esterified form.

According to the construction of events supported by the supposed DCO’s, they gave the drink to the athlete (not sealed), it was bottled in plastic and not in glass or tin as it should ideally be -to avoid that it could be contaminated with needles and syringes-. After ingesting the hydration provided, Gurtner was asked to leave the control station to look for his identification document. While the athlete was absent, his drink remained in that premise. Then, before depositing his sample, the athlete was asked to hold an interview with a person accompanied by a cameraman. None of the supposed DCO’s noted that the athlete had given such an interview, nor was he accompanied by a chaperone.

After Gurtner returned and was ready to undergo the test, the alleged DCO’s told him that they had “misplaced” his identification document, so they would collect Gurtner’s sample after collecting the corresponding to the rest of the competitors.

The fact that the supposed DCO’s delayed the process of Gurtner’s sampling after ingesting his drink –he started the hydration at 16:00 and passed the control only until 16:55 approximately- evidences that they sought to delay the taking of samples.

The sportsman’s defense thus explains why they evicted the father from the area where the anti-doping control was carried out.

After a month and seven days, the arbitration award of the International Sports Tribunal –TAS- finally arrived, which resolved to “fully accept the appeal filed by Daniel Gurtner against the decision of the National Anti-doping Agency of Guatemala”. This point is fundamental because it accepts the theory of contamination of the sample by the testing personnel, revokes the suspension of two years, orders to return the prizes obtained by the golfer and sentences the National Anti-doping Agency of Guatemala to pay all procedural costs.

In previous local tournaments, Gurtner had been questionably penalized with punishment blows by the president of the National Golf Association at that time, José Antonio Muñoz Molina, who simultaneously had the function of referee in major tournaments, something unusual in an Olympic federation.

Gurtner was even threatened with being excluded from international tournaments if he was not politically aligned with the National Golf Association in a dispute that existed with the Guatemalan Olympic Committee in the framework of the 2013 Bolivarian Games

In a letter that Gurtner writes to the president of Asogolf on January 4^th, 2014, he recriminates: “I do not want to forget the penalties that were applied to me in 2013 in perhaps the two most significant tournaments for me. These two unfair and dubious sanctions, which I leave to your discretion, precluded me from adding two more wins to my record of victories in my short career. Let me tell you that in my various international participations I have never been sanctioned by a rule referee, nor have I even received a warning for misbehavior or ignorance of rules, nor have I been rushed and pressed with clock in hand for slow play.”

In July 2015, Daniel Gurtner participated in the Panamerican Games of Toronto and appeared in the national ranking as the number 1 player; however, the following month he was excluded by the Asogolf without any explanation. He simply did not exist as a golfer. When the respective claim was made, the association explained that it would make an “amendment” to the regulations to carry out the ranking, without specifying what they were referring to.

The kit that the NADO-GUA generously gave to the National Golf Association has as a plausible explanation; the fact that a fourth examined golfer could substitute one of the athletes who could result doping positive in the list, since having passed the test is an indispensable requirement to access certain international tournaments.

Justice for whom? The deplorable role of the WADA

Daniel Gurtner’s parents had to pay about 90,000 Euros to finally have access to a fair legal process in the case of their son. It is clear that a sportsman with limited resources could never afford a process of such magnitude, and much less have the skills and contacts of professional law firms to defend a case that requires knowledge of a legislation that has already become another branch of law.

On September 1^st, 2013 the “Guidelines for Free Legal Aid” of the International Council of Arbitration for Sport -ICAS- came into force, but they are still very difficult to access, in addition to the requirement of languages –English and French- in order to make the first petition, and the short deadlines to evacuate the processes. Likewise, the number of “pro-bono” lawyers, who would be a kind of ex officio defenders in a legal court, is limited, and obviously they are not the best.

It could be inferred that the intention of the National Anti-Doping Agency of Guatemala and the National Golf Association in not paying the advanced costs of the process was to economically strangle the Gurtner family and make them desist from the process, since the golfer had to run with the expenses of the three parties, plus their own legal costs, travel expenses and per diem of the legal team. In this situation, I asked Sir Craig Reedie if it was not totally unfair the state of helplessness in which the athletes are in the system, to which he replied: “That’s an issue” without further comment.

The WADA president clearly stated that he was unaware of the case. In this sense, during the open session of the “WADA Foundation Board Meeting” in Glasgow, Sir Craig Reedie asked the WADA regional director in Latin America, María José Pesce, if there were any outstanding issues in her region. The official simply made a gesture of denial.

In three occasions on the day of the event, I asked her for an interview regarding the case of the soccer team and the golfer Gurtner. Pesce always told me that we would see it later and that she had to request authorization because she only saw regional things of the continent (?)….

Director of the Latin America Regional Office

Despite this background, the Regional Anti-doping Office –RADO-, in charge of the 39 countries that make up Latin America, took the document that finally excluded Guatemala from the list of nations that do not comply with the anti-doping rules. Pesce Cutri sought to cover at all costs the most questionable conduct of the National Anti-doping Agency of Guatemala.Gurtner’s defense had access to the electronic mails exchanged by the Director of the National Anti-doping Agency of Guatemala, Francisco Aguilar and María José Pesce Cutri –RADO Latin America-. In them, Pesce tells him to hurry the process, as the sportsman insistently requested the   “Fair Trial Hearing” and the NADO-GUA was delayed in providing it. However, the most questionable of this matter was that the official instructed to condemn him as soon as possible, assuming that the golfer was a priori guilty: “…This should be done by you as soon as possible, and pass “the ball” to their field. Once You make the hearing and the sanction, then it is no longer your responsibility…” The director of NADO-GUA, Francisco Aguilar, accepted the authenticity of the e-mails in the hearing.

The ruling of the TAS was released only two days after the event ended in Glasgow, perhaps with the delay of the final version of the McLaren report and all the earthquake it unleashed. To add a meridian case of corruption of a NADO in the third world –this time in Latin America- would have been too much for the WADA and probably the shot of grace for the whole system; after all, as Sir Reedie himself stated, “We are a very good customer of the TAS”.

It could be speculated that with the cases of corruption reported in Kenya by the journalist Seppelt, the violation of the Berlinger bottles in Russia and finally a corrupt behavior in Guatemala, the WADA desperately seeks to carry out damage control in the framework of the disastrous 2016. A series of corrective measures seek to implement own controls in the WADA, such as the “Whistleblower” program which is a kind of “Internal Affairs” office within the agency. Will this be enough? That is the question that everyone asks.Today, the Gurtners fear reprisals by a leadership apparatus that can use anti-doping controls to disqualify competitors and ruin lives; not in vain Guatemala is among of the most corrupt nations on the planet. To evidence it has cost lives in this small Central American nation.

The last pillar for the world citizen, which was the amateur sport, was finally torn down and is unlikely to stand up again.

DOCUMENTS

---

Conversación vía Mail entre María José Pesce y  Francisco Aguilar Chang

---

Carta de Daniel Gurtner al Presidente de ASOGOLF

---

Ranking de Golf

---

Laudo Arbitral

---