Following police investigations started in March 2009 anti-doping rule violations were reported against the Italian cyclist Gianni Da Ros for the use, possession, trafficking and administration of prohibited substances including complicity. Thereupon the National Anti-Doping Tribunal of the Italian National Olympic Committee (CONI) decided on 23 November 2009 to impose a sanction of 20 years on the Athlete.

Hereafter in December 2009 the Athlete appealed the TNA Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a proportional sanction.

The Panel assessed and addressed the evidence in this case and the issues raised by the parties and determines that:

• The Athlete was involved in trafficking and attempted use of prohibited substances.
• Because of the seriousness of the violations a more severe sanction is justified and proportional.
• In accordance with the WADA Code there are no grounds for the imposition of a sanction of 20 years.

Therefore the Court of Arbitration for Sport decides on 17 August 2010:

1.) The Athlete's appeal against the TNA Decision of 23 November 2009 is partially accepted.

2.) The sanction of 4 years is imposed on the Athlete, starting on the date of the provisional suspension, i.e. on 12 March 2008.

3.) (...)

4.) (...)

5.) (...)

CAS 2010/A/2235 UCI v/ Tadej Valjavec & Olympic Committee of Slovenia

CAS 2010/A/2235 Union Cycliste Internationale (UCI) v. T. & Olympic Committee of Slovenia (OCS)

• Cycling
• Doping (Athlete’s Biological Passport)
• Burden and Standard of Proof
• Evaluation of the Experts’ Panel report by the CAS Panel
• Application of the rules related to the ABP by CAS Panels
• Violation of EU competition law
• Disqualification in case of a violation found by reference to the ABP
• Blood manipulation as aggravating factor for the determination of the ineligibility period
• Determination of the amount of the fine according to the UCI ADR

1. The burden of proof of establishing an anti-doping violation ex concessis is imposed on UCI. The applicable standard of proof (“comfortable satisfaction”) is a lower standard than the criminal standard (beyond reasonable doubt) but a higher standard than the civil standard (balance of probabilities). Application of the standard to any particular set of facts may produce different results depending on those facts. But the standard itself is uniform, irrespective of the facts. It demands an exercise of judgment.

2. Any Tribunal faced with a conflict of expert evidence must approach the evidence with care and self-awareness of its own lack of expertise in the area under examination. Nonetheless, notwithstanding these caveats, it cannot abdicate its adjudicative role. A CAS panel shall apply the standard of proof as an appellate body to determine whether the expert panel’s evaluation is soundly based in primary facts, and whether the expert panel’s consequent appreciation of the conclusion be derived from those facts is equally sound. It will necessarily take into account, inter alia, the impression made on it by the expert witnesses in terms of their standing, experience, and cogency of their evidence together with that evidence’ s consistency with any published research.

3. A CAS panel is not called to adjudicate on whether some other or better system of longitudinal profiling could be created. WADA has approved the use of ABP and this has been codified in the current UCI rules. A CAS panel must respect and apply the rules as they are and not as they might have been or might become.

4. According to the jurisprudence of the European Court of Justice, anti-doping rules and sanctions “are justified by a legitimate objective” and any related limitation to the athletes’ economic freedom “is inherent in the organisation and proper conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes”. While it is true that restrictions imposed by anti-doping rules and sanctions “must be limited to what is necessary to ensure the proper conduct of competitive sport” and, thus, must be proportionate, the Athlete has to adduce evidence to establish that the anti-doping rules and sanctions at issue are disproportionate and, as a consequence, to establish a violation of Article 101 of the Treaty on the Functioning of the European Union.

5. Although the provisions as to disqualification are expressly made applicable to violations consisting of use of a prohibited method, they are not easy to apply where the proof of such violation is to be found by reference to the ABP. The provisions are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance. Article 289 of the UCI ADR provides in its title for disqualification of results in events during which an anti-doping violation occurs. Even though the text enlarges the title to embrace violations occurring ‘‘in connection with an event’’ it is not easy in ABP cases to identify in connection with which events the Athlete’s doping violation occurred. Therefore, as Article 313 of the UCI ADR provides in its title for disqualification of results in competitions subsequent to anti-doping rule violation but is applicable only when article 289 of the UCI ADR is not, this article more easily fits ABP cases.

6. A submission that blood manipulation constitutes an aggravating factor and that a minimum three-year ban should be imposed upon the Athlete has no foundation in the UCI ADR which does not differentiate between various forms of first offence or suggest that blood manipulation attracts ratione materiae a higher sanction than the presence of a prohibited substance.

7. Article 326 of the UCI ADR provides a formula for computation of the fine with a proviso allowing for a reduction of up to a half for the financial situation of the licence holder concerned. Reduction from the figure so calculated is available under the same article where the Athlete’s financial situation justifies it. It requires a CAS panel to consider the particular facts before it.

In May 2010 the UCI reported an anti-doping rule violation against the Slovene cyclist Tadej Valjavec after an UCI Expert Panel concluded unanimously, in December 2009 in their Expert Opinion, that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping.

This conclusion of the UCI Expert Panel is based on assessment of blood samples, collected in the period from 21 March 2008 until 29 August 2009 reported in the Athlete’s Biological Passport (ABP).

Previously the Athlete submitted his explanations for the abnormal findings in his ABP to the UCI which were rejected by the Expert Panel in their second Experts Opinion Report submitted in April 2010.

However on 28 July 2010 the Senate of the National Anti-Doping Commission of the Olympic Committe of Slovenia (OCS) decided that the Athlete had not committed an anti-doping rule violation nor to impose a sanction on the Athlete.

Hereafter in September 2010 the UCI appealed the Slovenian Decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose a fine and a sanction of minimum 3 years on the Athlete.

The UCI contended having established that the Athlete had committed an ADRV based on the abnormalities detected in the Athlete’s haematological profile resulting from his ABP.

The Athlete disputed the reliability of the ABP. He asserted, supported by expert witnesses that no ADRV has taken place and no sanction is to be imposed on him

Following assessment of the submissions, arguments and evidence the Panel determines:

• (i) there were no defects in the process of analysis or breaches in the chain of custody such as would make the results of the critical tests unreliable;
• (ii) those tests on 19 April and 29 August 2009 revealed abnormalities in the context of the Athlete’s ABP such as to excite the need for explanation;
• (iii) the explanations given were as scrutinized by the UCI’s experts whose testimony, where their evidence conflicted with the evidence of the Athlete’s experts, the CAS Panel preferred both because of their (for the most part) greater experience and expertise, and because of the weight of published literature which supported it;
• (iv) in any event the factual premise for the Athlete’s explanations depended in substantial measure on his say- so uncorroborated by independent testimony, and the CAS Panel was disinclined to accept it where it was manifestly improbable, e.g. the failure to report alarming black stools in April 2009;
• (v) the pattern of values under scrutiny was entirely consistent with blood manipulation, not least, but not only, because of the degree of abnormality;
• (vi) the coincidence of the blood manipulation asserted by UCI with the Athlete’s racing calendar was striking;
• (vii) no discrimination against him nor violation of EU competition law was proven by the Athlete.

Therefore the Court of Arbitration for Sport decides on 21 April 2011:

1.) The appeal filed by UCI against the decision issued on 28 July 2010 by the Senate of the National Anti-Doping Commission of the OCS is upheld.

2.) The decision issued on 28 July 2010 by the Senate of the National Anti-Doping Commission of the OCS is annulled in its entirety.

3.) Tadej Valjavec is found guilty of an anti-doping rule violation and is declared ineligible for a period of two years running from 20 January 2011.

4.) Tadej Valjavec’s results obtained during the period from 19 April 2009 to end of September 2009 and from 20 January 2011 until the date of notification of this award, including his event medals, his points and prizes are forfeited.

5.) Tadej Valjavec shall pay to UCI a fine of EUR 52,500, in accordance with article 326 1.a) of the UCI ADR.

6.) (…).

7.) (…).

8.) All other motions or prayers for relief are dismissed.

• CAS 2010/A/2308 Franco Pellizotti vs CONI & UCI
• CAS 2011/A/2335 UCI vs Franco Pellizotti, FCI & CONI
• TAS 2010/A/2308 Franco Pellizotti c. CONI & UCI
• TAS 2011/A/2335 UCI c. Franco Pellizotti, FCI, CONI

Related case:

Swiss Federal Court 4A_488_2011 Pellizotti vs UCI, CONI & FCI
June 18, 2012

In March 2010, a panel of experts concluded that the Athlete’s Biological Passport (ABP) of the Italian cyclist Franco Pellizotti showed the use of a prohibited substance of method without adequate explanation from the Athlete for these anomalies in his ABP.

Thereupon in May 2010 the International Cycling Federation (UCI) and the CONI Anti-Doping Prosecution Office (UPA) reported an anti-doping rule violation against the Athlete.
However on 31 October 2010 the Tribunale Nazionale Antidoping del CONI (TNA), the CONI National Anti-Doping Tribunal, ruled that an anti-doping rule violation has not been established due to insufficient evidence.

Hereafter both the UCI and the Athlete appealed the CONI TNA decision with the Court of Arbitration for Sport (CAS).
Based on the evidence in the Athlete’s Biological Passport and in view of the testimonies of experts, the Panel concludes that the Athlete has committed an anti-doping rule violation.

Therefore the Court of Arbitration for Sport Panel decided:

1.) To dismiss the Athlete’s appeal;

2.) to set aside the decision of Tribunale Nazionale Antidoping del CONI of 21 October 2010;

3.) to impose a 2 year period of ineligibility on the Athlete Franco Pellizotti;

4.) disqualification of all results obtained by the Athlete from 7 May 2009;

5.) to order the Athlete to pay 115,000 euro to the UCI as financial sanction;

6.) to pay fees CHF 2,500 to the UCI for the doping test audit;

7.) to pay CHF 7,500 to the UCI as contribution to the costs in this trial.

TAS 2010/A/2178 Pietro Caucchioli c. CONI & UCI

CAS 2010/A/2178 Pietro Caucchioli vs CONI & UCI

In June 2009 the UCI experts committee reviewed the data in the Athlete Biological Passport (ABP) of the Italian Athlete Pietro Caucchioli, based on the 13 blood samples collected between April 2008 and May 2009. The experts noted the Athlete’s hematological profile could only be explained by the use of a prohibited method.

As a result the UCI reported an anti-doping rule violation against the Athlete for the use of a prohibited method. Consequently on 3 June 2010 the Italian National Anti-Doping Tribunal (TNA) decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in July 2010 the Athlete appealed the TNA decision of 3 June 2010 with the Court of Arbitration for Sport (CAS). The Athlete disputed the ABP method, the independence of the experts committee and the reliability of the collected blood samples.

Follwing assessment the Panel determines that the ABP evidence is allowed and a reliable method for indirect detection of doping violations. The expert work independent for UCI and evaluate anonymized ABP samples.

The Panel deems that the Athlete failed to establish that there had been irregularities in the ABP method and concludes that he had committed an anti-doping rule violation through the use of a prohibited method (enhancement of oxygen transport).

Therefore the Court of Arbitration for Sport Panel decides on 8 March 2011 to uphold the TNA decision of 3 June 2010 and to impose a 2 year period of ineligibility on the Athlete, starting on 18 June 2009.

CAS 2005/A/969 Erwin Bakker v. Koninklijke Nederlandsche Wielren Unie (KNWU) & Union Cycliste Internationale (UCI)

Related cases:

• CAS 2005/A/936 UCI vs Erwin Bakker & KNWU
  April 20, 2006
• Swiss Federal Court 4A_237_2010 Erwin Bakker vs UCI
  October 6, 2010
• ECHR 7198/07 Erwin Bakker vs Switzerland
  September 26, 2019

• Cycling
• Doping (r-EPO)
• Gross negligence
• Second doping violation
• Determination of the applicable sanction

1. An athlete of international level is grossly negligent if he doesn’t pay the utmost attention to any substance entering his body especially to a substance reported by his doctor to be a “risky product”. In such a case, he must either refuse it or ask what product it is and what it contains, especially if he was already involved in a previous positive case. The athlete who does not react to his doctor’s prescription and simply accepts an injection has a behaviour contradictory to all warnings contained in the UCI Anti-Doping Rules. Therefore, the No Significant fault or No Significant Negligence notion cannot be applicable.

2. Pursuant to art. 269 of the UCI Anti-Doping Rules, a second anti-doping rule violation may be considered for purposes of imposing sanctions only if it is established that the athlete committed the second anti-doping rule violation after he received notice of the first one. Notice to an athlete may be accomplished by delivery of the notice to his National Federation or as provided by the applicable Anti-Doping Rules. The National Federation shall be responsible for making immediate contact with the athlete. In that case, the two anti-doping rule violations are two separate offences.

3. Under the applicable regulations, the sanction that is applicable for a second violation is a lifetime ineligibility. No possibility of reduction is conceivable where the athlete was significantly negligent and infringed basic principles of sport such as sportsmanship and fair play and in particular the UCI Rules governing him and his sport.

In April 2005 the Royal Dutch Cycling Federation (KNWU) has reported an anti-doping rule violation against the cyclist Erwin Bakken after his A and B samples - provided in Spain in March 2005 - tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.

On 1 July 2005, the KNWU Anti-Doping Committee decided to acquit the Athlete from any charges related to a doping offence. Hereafter in August 2005 the UCI appealed the KNWU decision of 1 July 2005 with the Court of Arbitration for Sport (CAS).

On 20 April 2006 the CAS Panel decided to uphold the UCI appeal and to annul the decision issued by the KNWU (CAS 2005/A/936). Accordingly the Panel decided to impose a 2 year period of ineligibility on the Athlete, starting on 2 February 2006. Furthermore the Panel disqualified the Athlete from the Vuelta Internacional a Valladolid 2005 and any other race in which he competed between 26 March 2005 and 2 February 2006

While already involved in the anti-doping rule violation proceedings – reported in April 2005 – the Athlete participated in Canada in a competition in June 2005. Thereupon in July 2005 the KNWU reported a second anti-doping violation against the Athlete after his sample – provided in Canada in June 2005 – tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).

Consequently on 5 September 2005 the KNWU Anti-Doping Committee decided to impose a 2 year period of ineligibility on the Athlete and a CHF 2000 fine for the anti-doping rule violation committed in Canada.

Hereafter in October 2005 the Athlete appealed the KNWU decision of 5 September 2005 with CAS (CAS 2005/A/969). At the same time the Athlete was already involved in the first CAS proceeding (CAS 2005/A/936) after the UCI had appealed the KNWU acquittal decision of 1 July 2005.

Considering the previous CAS decision of 20 April 2006 (CAS 2005/A/936) as a first anti-doping rule violation the CAS Panel decides on 5 May 2006 this Award (CAS 2005/A/969):

1.) The appeal filed by the Athlete Mr Erwin Bakker is rejected.

2.) The decision of the Koninklijke Nederlandsche Wielren Unie’s Anti-Doping Commission dated 5 September 2005 is annulled.

3.) Mr Erwin Bakker shall be declared ineligible for competition for lifetime.

4.) The award is pronounced without costs, except for the Court Office fee of CHF 500 already paid by Mr Bakker, which is retained by the CAS.

5.) Each party shall bear its own costs.

CAS 2005/A/936 UCI v/ Bakker & KNWU

Related cases:

• CAS 2005/A/969 Erwin Bakker vs KNWU & UCI
  Mai 5, 2006
• Swiss Federal Court 4A_237_2010 Erwin Bakker vs UCI
  October 6, 2010
• ECHR 7198/07 Erwin Bakker vs Switzerland
  September 26, 2019

In April 2005 the Royal Dutch Cycling Federation (KNWU) has reported an anti-doping rule violation against the cyclist Erwin Bakken after his A and B samples - provided in Spain in March 2005 - tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.

However on 1 July 2005, the KNWU Anti-Doping Committee decided to acquit the Athlete from any charges related to an anti-doping rule violation.

Hereafter in August 2005 the UCI appealed the KNWU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

In view of the evidence the Panel is of the opinion that the Laboratory complied with the procedures set by the UCI Anti-Doping Rules and provided two results that showed that a prohibited substance was found in the Athlete’s urine and such substance was of exogenous origin.

The Panel rejected the Athlete's argument concerning the lack of complementary research. The Laboratory conducted the GC/C/IRMS analysis and that shall be considered as the complementary research.

Further the Panel rejected the Athlete's contention that intense exercise can cause an important variation of the level of endogenous testosterone. In this matter the Panel relies on the GC/C/IRMS analysis that established that the testosterone found in the Athlete’s urine was of exogenous origin.

Therefore the Court of Arbitration for Sport decides on 20 april 2006:

1.) The appeal filed by Union Cycliste Internationale is upheld.

2.) The decision of the Koninklijke Nederlandsche Wielren Unie’s Anti-Doping Commission dated 1 July 2005 is annulled.

3.) Mr Erwin Bakker is disqualified from the “Vuelta Internacional a Valladolid 2005” and any other race in which he competed between 26 March 2005 and 2 February 2006.

4.) Mr Erwin Bakker shall be declared ineligible for competition for two years, commencing on 2 February 2006.

5.) The award is rendered without costs, except for the Court Office fee of CHF 500 which is retained by the CAS.

6.) Koninklijke Nederlandsche Wielren Unie shall contribute the amount of CHF 2000 to the legal fees and other expenses incurred by Union Cycliste Internationale in connection with the proceedings.

CAS 2011/A/2645 Union Cycliste Internationale (UCI) v. Alexander Kolobnev & Russian Cycling Federation

• Cycling
• Doping (hydrochlorothiazide)
• Principle tempus regit actum
• Standard of proof with regard to specified substances
• Requirement to prove the absence of intent to enhance sport performance
• CAS power of review

1. In order to determine whether an act constitutes an anti-doping rule infringement, a panel applies the law in force at the time the act was committed. New regulations, unless they are more favourable for the athlete (lex mitior principle), do not apply retroactively to facts that occurred prior to their entry into force, but only for the future.

2. With regard to the evidentiary standard applicable to a Specified Substance, an athlete may establish how the Specified Substance entered his/her body by a balance of probability. In other words, a panel should simply find the explanation of an athlete about the presence of a Specified Substance more probable than not. In addition, a panel must be comfortably satisfied by the objective circumstances of the case that the athlete in taking or possessing a Prohibited Substance did not intend to enhance his or her sport performance. This condition is met when an athlete can produce corroborating evidence, in addition to his or her word, which establish to the comfortable satisfaction of a panel that he or she ingested a specified substance without the intent to enhance his or her sport performance.

3. The express language of the second paragraph of Article 295 ADR is ambiguous and susceptible to more than one interpretation. However, only a construction of this paragraph as having the same meaning of the (much clearer) first paragraph harmonizes the provision and appears to be consistent with the very concept of “Specified Substances”. As a result, an athlete only needs to prove that he/she did not take the specified substance with an intent to enhance sport performance. The athlete does not need to prove that he/she did not take the product (e.g., a food supplement) with the intent to enhance sport performance.

4. Even though a CAS panel has full power of review of the disputed facts and law in the exercise of its jurisdiction, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rules can be reviewed only when the sanction is evidently and grossly disproportionate to the offence. Far from excluding, or limiting, the power of a CAS panel to review the facts and the law involved in the dispute heard (pursuant to Article R57 of the Code), such indication only means that a CAS panel shall not consider warranted, nor proper, to interfere with a fully reasoned and well-evidenced decision, only to slightly adjust it.

In July 2011 the International Cycling Union (UCI) reported an anti-doping rule violation against the Russian cyclist Alexander Kolobnev after his A and B samples tested positive for the prohibited substance Hydrochlorothiazide. On 25 October 2011 the Anti-Doping Commission of the Russian Cycling Federation decided to impose a fine and a reprimand on the Athlete.

Hereafter in November 2011 the International Cycling Union (UCI) appealed the Russian decision with the Court of Arbitration for Sport (CAS).

The Panel assessed and addressed the following issues raised by the parties:

•  the first concerns the satisfaction of the conditions for the application of a reduced sanction pursuant to Article 295 ADR. More specifically, it consists in the assessment of whether the Decision was correct in holding that such conditions are met; and
• the second concerns the identification of the consequences, under the rules found to be applicable, to be imposed on the Athlete for his anti-doping rule violation. More specifically, it consists in the assessment of whether the Decision was correct in imposing on the Athlete only a reprimand, with no period of ineligibility, and the other consequences it applied.

The Panel concludes that the appeal brought by UCI against the Decision is to be granted only to a very limited extent, i.e. only with respect to the costs claimed by UCI under Article 275 ADR. The relief requested by the UCI on all other respects, including ineligibility, disqualification and the financial sanction, is, on the other hand, to be denied.

Therefore the Court of Arbitration for Sport decides on 29 February 2012:

1.) The appeal filed by the Union Cycliste Internationale (UCI) on 30 November 2011 against the decision taken by the Anti-Doping Commission of the Russian Cycling Federation on 25 October 2011 is partially granted.

2.) Kolobnev is ordered to pay the Union Cycliste Internationale (UCI):

• an amount of CHF 2,500.00 (two thousand five hundred Swiss Francs) for the costs of the results management sustained by the Union Cycliste Internationale (UCI); and
• an amount of EUR 690.00 (six hundred ninety Euros) for the cost of the B-sample analysis as well as the cost of the A-sample documentation package.

3.) The decision taken by the Anti-Doping Commission of the Russian Cycling Federation on 25 October 2011 is confirmed for all the remaining portions. The appeal filed by the Union Cycliste Internationale (UCI) on 30 November 2011 against the decision taken by the Anti-Doping Commission of the Russian Cycling Federation on 25 October 2011 is dismissed in all respects not specifically granted herein.

(…)

6.) All other prayers for relief are dismissed.

CAS 2010/A/2185 Alberto Blanco v. United States Anti-Doping Agency (USADA)

CAS 2010/A/2229 World Anti-Doping Agency (WADA) v. Fédération Internationale de Volleyball (FIVB) & Gregory Berrios

In January 2009 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the cyclist Alberto Blanco after his A and B samples tested positive for the prohibited substance Prasterone (DHEA).

Consequently on 14 July 2010 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 2 year period of ineligibility on the Athlete, starting on 15 December 2008.

In first instance the AAA Panel deemed that the Beijing Laboratory had provided sufficient information to permit interpretation of the results for the A and B Samples. There was no violation of the ISL.

Hereafter in July 2010 the Athlete appealed the AAA Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to annul the imposed sanction.

The Athlete argued that the test results showing the presence of a prohibited exogenous substance in his urine Samples are unreliable. This unreliability arises from the fact that no negative controls were run by the laboratory during the analyses of his A and B Samples, and the alleged lack of robustness and reproducibility with regard to the test results.

The Panel assessed and addressed the issued raised by the Athlete and determines:

• There has been no violation of the ISL with regard to the Beijing Laboratory's failure to run negative controls during the analysis of the Athlete's samples.
• The Beijing Laboratory has not deviated from the ISL on robustness or reproducibility grounds.
• WADA is invited to amed the ISL and to formulate the range of of uncertainty for the measurement during the IRMS process.
• WADA is also invited to formulate requirements for negative controls for IRMS analyses.

Therefore the Court of Arbitraton for Sport decides on 1 April 2011:

1.) The appeal filed by Mr. Alberto Blanco against the Award dated 14 July 2010 rendered by the AAA Panel is dismissed.

2.) Each party bears its own costs.

3.)The present award is rendered without costs, with the exception of the Court office fee of CHF 500, paid by the Appellant and to be retained by the CAS.

4.) Any further claim is dismissed.

CAS 2010/A/2107 Flavia Oliveira v. United States Anti-Doping Agency (USADA)

Related case:

AAA 2009 No. 77 190 00429 09 USADA vs Flavia Oliveira
April 6, 2010

• Cycling
• Doping (oxilofrine)
• Specified substance
• CAS power of review
• Requirement to prove no intent to enhance sport performance
• Degree of fault of the athlete
• Duty of care of the athletes
• Proportionality of the sanction
• Requirements for obtaining a reduced period of ineligibility
• Relevant factors to be considered in reducing the period of ineligibility

1. Pursuant to Article R57 of the Code, which provides the panel with full power to review the facts and law and authorizes it to issue a new decision which replaces the decision challenged, a panel must make its independent determination of whether the appellant’s contentions are correct, not limit itself to assessing the correctness of the appealed decision or award.

2. Clause two of Article 10.4 of the WADA Code does not require the athlete to prove that he/she did not take a product (for example a nutritional supplement) with the intent to enhance sport performance. If such construction was adopted, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADA Code, would render Article 10.4 inapplicable even if the particular supplement that is the source of a positive test result contained only a specified substance. Therefore Article 10.4 of the WADA Code requires the athlete only to prove his/her ingestion of the specified substance was not intended to enhance his/her sport performance. This construction of Article 10.4 harmonises the clear language in clause one with the differing and ambiguous language of clause two, and is consistent with its explanatory Comment.

3. The athlete’s “degree of fault” is only relevant in determining whether his/her period of ineligibility should be reduced. It is not to be considered in determining whether he/she can prove his/her lack of intent to enhance sport performance.

4. Because the risks of mislabelling and/or contamination now are generally known or at least foreseeable, all athletes must exercise reasonable care to ensure a nutrition supplement does not contain a banned substance whether the WADA Code classifies it as a prohibited or specified substance.

5. In determining the athlete’s period of ineligibility, the panel must impose an appropriate sanction that furthers the WADA Code’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.

6. Unlike Article 10.5 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations), Article 10.4 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations) does not require the athlete to prove “no significant fault or negligence” to obtain a reduced period of ineligibility for testing positive for a specified substance. The appropriate inquiry is the athlete’s “degree of fault” under the circumstances. To resolve this issue, the panel must determine whether the nature and degree of his/her unreasonable conduct under the circumstances was so high that a two-year period of ineligibility is proportionate and consistent with other similar cases.

7. The fact that an athlete would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the athlete only has a short time left in his or her career or the timing of the sporting calendar are not relevant factors to be considered in reducing the period of ineligibility under Article 10.4 of the WADA Code.

In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

Consequently the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in April 2010 the Athlete appealed the AAA Decision with the Court of Arbitration for Sport (CAS). The Panel was asked to determine the appropriate length of the Athlete’s period of ineligibility and the date on which the period of ineligibility should take effect.

The Athlete hoped to demonstrate to the Panel that her lack of intent to use a prohibited substance, her reasonable explanation as to how the prohibited substance entered her body, and her efforts to ensure that the Hyperdrive product that she ingested did not contain any prohibited substances, should support a reduction from the presumptive two-year period of ineligibility.

USADA contended that the Athlete should receive a 2 year period of ineligibility that should begin on the date that she accepted a provisional suspension.

The Panel finds that the Athlete has satisfied her burden of establishing that Oxilofrine entered her system as a result of her consumption of the supplement Hyperdrive 3.0+. Further the Panel concludes that the Athlete's testimony and other corroborating evidence establishes to its comfortable satisfaction that she did not intend to enhance her sport performance.

In view of the Athlete's conduct the Panel deems that she acted with a lowere degree of fault. Further the Panel considers that she gave a timely admission following the notification.

Therefore the Court of Arbitration for Sport decides on 6 December 2010:

1.) The appeal filed by Flavia Oliveira on April 27, 2010 against the decision of the American Arbitration Association dated April 6, 2010 is upheld.

2.) The decision of the American Arbitration Association dated April 6, 2010 imposing a period of ineligibility of two years is set aside and a period of ineligibility of eighteen (18) months commencing on August 30, 2009 is substituted therefor.

3.) This award is pronounced without costs, except for the Court Office fee of CHF 500 paid by Flavia Oliveira which shall be retained by the CAS.

(…)

5.) All other or further claims are dismissed.

CAS 2004/O/679 USADA v/Bergman

In July 2004 the United States Anti-Doping Agency (USADA) has reported an anti-doping rule violation against the cyclist Adam Bergman after his A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

After notification a provisional suspension was ordered. USADA deemed that Athlete had committed an anti-doping rule violation. Thereupon the Athlete did not accept the proposed fine and the sanction of a 2 year period of ineligibility.

Hereafter in August 2004 the Parties requested for arbitration with the Court of Arbitration for Sport (CAS).

Undisputed between the Parties is that rhEPO is a prohibited substance. However the only contested issue is what are the acceptable criteria for calling a sample positive for rhEPO.

The Athlete denied that he had committed an anti-doping rule violation because USADA had ignored the fact that he has not been tested positive according to the universally recognized BAP standard of 80%. He asserted that USADA was improperly relying on other criteria to establish a positive test.

After examining and considering all the evidence, the Panel is comfortably satisfied that the Athlete's sample contalned the prohibited substance rhEPO. Accordingly the Panel finds that the Athlete is guilty of a doping vlolation under the UCI Antidoping Regulations.

Further the Panel considers that the Athlete failed to explain how the prohibited substance had entered his system and thereupon tested positive for rhEPO. The Panel can only conclude that the Athlete intentionally had used rhEPO.

Therefore the Court of Arbitration for Sport decides on 13 April 2005 that:

1.) The Respondent Adam Bergman is guilty of a doping offence under the UCI Antidoping Regulations applicable in April 2004.

2.) The Respondent is declared ineligible for a period of two years under article 261 of the new 2004 UCI Antidoping Regulations. The period of ineligibilty commenced 23 July
2004 and ends on 22 July 2006, having taken account of the provisional suspension already being served by the Respondent.

3.) The costs of the present arbitration, to be determined and notifled to the parties by the Secretary General of CAS, shall be borne by USADA.

4.) Each party shall bear its own costs.