CAS 2008/A/1458 UCI v. Vinokourov & KCF

Related case:

CAS 2008_A_1458 UCI vs Alexandere Vinokourov & KCF - Partial Award
July 23, 2009

• Cycling
• Doping (use of a prohibited method)
• Interpretation of the wording of a Commitment signed by the rider
• Payment of a contribution as a condition for the Rider’s reinstatement

1. An athlete who used a prohibited method in the form of an homologous blood transfusion has committed an anti-doping violation (blood doping).

2. The “Rider’s commitment”, signed by the athlete, does not establish the payment of a contribution as a condition for the athlete’s reinstatement. The payment of the contribution is “in addition” to the sanction and, hence, separate and independent of the regular sanction. Furthermore, the Commitment aims at the payment of a “contribution to the fight against doping” which is supposed to be payable to the Council for the Fight Against Doping. This wording differs considerably from terms such as “fine”, as used in the later UCI Anti Doping Rules which would have clearly indicated the meaning of a sanction or even a contractual penalty.

3. In the absence of a contractual condition for a Rider’s reinstatement, an extension of the sanction making the reinstatement dependant on the prior payment of a fine could be based exclusively on the set of rules which specifically govern anti-doping rule violations and their consequences. As long as the applicable regulations do not mention a payment whatsoever as a sanction or a precondition for the reinstatement of an athlete who had served a period of ineligibility, such extension of the sanction is not applicable.

In July 2007 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Kazakh cyclist Alexander Vinokourov after his A and B blood samples tested positive for blood doping. On 5 December 2007 the Kazakh Cycling Federation (KCF) decided to impose a 1 year period of ineligibility on the Athlete.

Hereafter in December 2008 the UCI appealed the KCF 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 including payment for costs.

Previously in January 2008 the UCI had suspended this appeal because the Athlete had declared to end his career. However in September 2008 the Athlete announced his return to competition and thereupon UCI requested CAS to reactivate the proceedings against the Athlete.

In its Partial Award the Panel on 23 July 2009 concluded that the Athlete had committed the anti-doping rule violation of blood doping. The Panel decided to set aside the Appealed Decision of 5 December 2007 and to impose a 2 year period of ineligibility on the Athlete, starting on 24 July 2007.

Although the Athlete already had admitted and accepted a 2 year period of ineligibility the UCI and the Athlete remained in a dispute about the validity and enforceability of the Athlete's commitment for contribution. In this matter the Athlete had to pay an amount equal to his annual salary from 2007 as contribution to the fight against doping.

The UCI contended that this commitment is legally valid and that the infringement of the Athlete’s personality rights is justified by his free consent and overriding public interest.

By contrast the Athlete challenged the validity of this commitment mainly because he was not free to sign or reject this commitment which was the precondition for his participation in the Tour de France 2007.

Following assessment the Panel concludes that there is no legal basis for UCI to claim the payment of a contribution under the Athlete's commitment. Accordingly, he is not obliged to make the payment requested by UCI. Against this background, further prayers for relief and further considerations of the parties are dismissed.

Therefor the Court of Arbitration for Sport decides on 30 August 2010:

1.) Paragraphs 1 to 3 of the Partial Award issued on 16 June / 23 July 2009 in the present procedure are ratified.

2.) No payment is due by Mr. Vinokourov under the “Rider's commitment for a new cycling” signed on 29 June 2007; consequently, the relief requested by the UCI in its written statement dated 4 September 2009 is dismissed.

3.) The arbitration costs incurred in the proceedings after the issuance of the Partial Award, which shall be determined and separately communicated to the parties by the CAS Court Office, shall be entirely born by UCI.

4.) Each Party shall bear its own legal expenses incurred in the proceedings until the delivery of the Partial Award.

5.) UCI is ordered to pay to Mr. Vinokourov as contribution to his legal expenses incurred in the proceedings after the issuance of the Partial Award an amount of CHF 10'000.- (ten thousand Swiss francs).

6.) All other and further prayers for relief are dismissed.

TAS 2007/A/1444 UCI c/Iban Mayo & RFEC
TAS 2008/A/1465 UCI c/Iban Mayo & RFEC

TAS 2007/A/1444 & TAS 2008/A/1465 UCI c/Iban Mayo & RFEC

CAS 2007/A/1444 UCI vs Iban Mayo & RFEC
CAS 2007/A/1465 UCI vs Iban Mayo & RFEC

On 19 October 2007 and again on 27 December 2007 the Royal Spanish Cycling Federation (RFEC) decided to cease the proceedings againt the cyclist Iban Mayo Diez and to acquit him because of the inconclusive test results regarding the presence of recombinant Erythropoietin (rhEPO) in his A and B samples.

Here the Paris Lab detected the presence of EPO in the Athlete’s A sample while during the analysis of the A sample the volume of urine was insufficient to establish the presence of EPO due to several abnormalities had been detected. In a second opinion the Lausanne Lab confirmed the presence of rhEPO in the Athlete’s A sample.

At the request of the Athlete his B1 sample was tested and the Ghent Lab reported - with the second opinion of the Sydney Lab - that the test results for rhEPO were inconclusive.
After deliberations between the Athlete and the UCI his B2 sample was tested in the Paris Lab and this time the presence of rhEPO was established and confirmed.

Hereafter in December 2007 and in January 2008 the UCI appealed the two RFEC decisions with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the two Appealed RFEC Decisions and to impose a 2 year period of ineligibility on the Athlete.

The Athelete requested the Panel to uphold the RFEC decisions and to set aside the test results. He alleged that departures of the ISL had constituted doubts about the integrity, validity and identity of the analysed samples. The UCI had also violated his fundamental rights in this case.

The Panel establishes that the samples in question arrived sealed in the Paris Lab and the absence of the additional seal as precaution for the transport packing is no departure of the ISL. In view of the chain of custody documentation and testimonies the Panel has no doubt about the identity of the analysed samples.

The Panel determines that there was indeed a departure of the ISL when the Paris Lab switched to another method for establishing the presence of the prohibited substance instead of using a new aliguote from the A sample.

Considering the circumstances and arguments in this case the Panel accepts the test result of the Athlete’s B2 sample which confirmed the presence of rhEPO in his A sample. The Panel deems that the UCI had established the presence of rhEPO in the Athlete’s samples. Consequently the two appealed RFEC decisions in favour of the Athlete must be set aside.

Therefore the Court of Arbitration for Sport decides on 11 August 2008:

1.) The appeals of the UCI are admissible;

2.) The decisions rendered on 19 October 2007 and 27 December 2007 by the National Committee of the RFEC are set aside;

3.) The Athlete is sanctioned with a suspension of two years from July 31, 2007;

4.) The Athlete is disqualified from the "Tour de France 2007";

5.) The cyclist pays to the UCI, the amount of CHF 1,000 for costs;

6.) The UCI has to pay the admission costs, of CHF 500 to CAS;

7.) Orders the RFEC to pay a contribution for legal fees of the UCI of CHF 2,000;

8.) Each party has to bear its own lawyer costs;

9.) All other or further claims are dismissed.

CAS 2007/A/1362 CONI v/ Petacchi & FCI
CAS 2007/A/1393 WADA v/ Petacchi & FCI

CAS 2007/A/1362 Comitato Olimpico Nazionale Italiano (CONI) v. Alessandro Petacchi & Federazione Ciclistica Italiana (FCI) & CAS 2007/A/1393 World Anti-Doping Agency (WADA) v. Alessandro Petacchi & FCI

• Cycling
• Doping (salbutamol)
• Abbreviated Therapeutic Use Exemption
• Shift of the burden of proof
• No Significant Fault or Negligence
• Reduction of the period of Ineligibility
• Disqualification from a sport event

1. Salbutamol is a Prohibited Substance, both in and out of competition, under Class S3, Beta-2 Agonists. As an exception, when administered by inhalation, Salbutamol requires an abbreviated Therapeutic Use Exemption (ATUE).

2. In cases where an athlete is granted with an ATUE and the sample shows a higher concentration of the substance granted, the burden shifts to the athlete to demonstrate that such concentration was the consequence of the therapeutic use of the substance in question.

3. The fault or negligence is considered as non significant, when viewed in all the circumstances and taking into account the criteria for no fault or negligence, i.e. in cases where the overdose was taken with no aim of enhancing the athlete’s performance, like when taking the overdose after the conclusion of the particular sport event.

4. The no significant fault or negligence leads to a reduction of the period of ineligibility, which the athlete would otherwise have to suffer.

5. Following the existing CAS case law, in cases where there is no provisional suspension imposed or voluntarily accepted, a CAS panel may nevertheless take into account the pressure placed on the athlete from sports bodies and others, if the athlete was not able to participate in one or more events while the anti-doping proceedings were pending.

6. According to the applicable regulations, if the event is a stage race, an anti-doping violation committed in connection with any stage entails disqualification from the event except when 3 conditions are fulfilled, among which the athlete must establish that he bears no fault or negligence. The conditions for the exception are cumulative; if the athlete cannot establish that he bears no fault or negligence, he must be disqualified from the whole sporting event.

In June 2007 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Italian cyclist Alessandro Petacchi after his sample tested positive for the substance Salbutamol in a concentration above the WADA threshold (1352 ng/ml).

In this case the Athlete had an Abbreviated Therapeutic Use Exemption (ATUE) that authorized him to use three doses of 200 mcg of Salbutamol by inhaltation per day, and three doses of 0.5 mcg Betamethasone by aerosol per day.

On 24 July 2007 the Disciplinary Commission of the Italian Cycling Federation (FCI) decided that the Athlete had not committed an anti-doping rule violation. Following the appeal by the Ufficio Procura Antidoping of the Italian National Olympic Committee (UPA-CONI) the FCI Appeals Commission decided that the appeal was inadmissible and that the Court of Arbitration for Sport (CAS) has jurisdiction.

Hereafter in August 2007 both UPA-CONI and the World Anti-Doping Agency (WADA) appealed the FCI decision of 24 July 2007 with CAS.

UPA-CONI and WADA argued that a concentration of 1352 ng/ml in the Athlete’s urine could not have been achieved if he had only used his Ventolin inhaler in accordance with the terms of his ATUE as to the dose, frequency and route of administration of Salbutamol. They relied on the expert opinions and the results of the enantiomer analysis done on the Athlete’s urine sample by the Barcelona Laboratory.

The Panel concludes that the Athlete has failed to show, on the balance of probabilities, that the Salbutamol concentration of 1352 ng/ml found in his sample was "the consequence of the therapeutic use of inhaled Salbutamol". The Panel is not satisfied, on the balance of probabilities, that the result was the consequence of him inhaling Salbutamol in accordance with his ATUE.

The Panel holds that the Athlete and his expert witnesses failed to provide sufficient evidence to demonstrate that there were any special factors had caused the test results in this case. The Panel accepts that the Athlete is asthmatic and that he took too many puffs of his Ventolin inhaler on that day, including some after the race.

The Panel is satisfied that the Athlete is not a cheat, and that the adverse analytical finding in this case is the result of the Athlete simply, and, possibly, accidentally, taking too much Salbutamol on the day of the test, but that the overdose was not taken with the intention of enhancing his performance. Indeed, it would be an unusual way of attempting to enhance performance to take the prohibited substance after the particular event had concluded.

ln the circumstances, the Panel is satisfied that the Athlete bears No Significant Fault or Negligence because his fault or negligence, when viewed in all the circumstances and taking into account the criteria for no fault or negligence, was not significant in relation to this anti-doping rnle violation. It follows, therefore, that the Panel can reduce the period of ineligibility which he would otherwise have to suffer.

Therefore the Court of Arbitration for Sport decides on 5 May 2008 that:

1.) The appeals by UPA-CONI and WADA against Decision no. 21 /2007 issued on 24 July 2007 by the Disciplinary Commission of the FCI are admissible.

2.) The appeals by UPA-CONI and WADA against Decision no. 21 /2007 issued on 24 July 2007 by the Disciplinary Commission of the FCI are allowed. That decision is set aside.

3.) Mr. Petacchi has breached Article 15.1 of the UCI Anti-Doping Rules.

4.) In accordance with Articles 261 and 265 of the UCI Anti-Doping Rules Mr. Petacchi is ineligible to compete for a total period of one year, with two months credited against such period in accordance with Articles 255 and 275 of the UCI Anti-Doping Rules. Therefore, the period of ineligibility will start on 1 November 2007 and will expire on 31 August 2008.

5.) All competitive results obtained by Mr. Petacchi during the 2007 Giro d'Italia shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.

6.) Mr. Petacchi can retain all competitive results between 23 May 2007 and 31 October 2007, but all competitive results obtained after 31 October 2007 and during the period of ineligibility will be disqualified.

7.) All other prayers for relief are dismissed.

8.) Each party shall bear its own costs, save for the CAS Court Office fee, which will be retained by the CAS.

TAS 2006/A/1120 UCI c/ Aitor Gonzalez Jiménez & RFEC

CAS 2006/A/1120 UCI vs Aitor Gonzalez Jiménez & RFEC

In September 2005 the International Cycling Union (UCI) has reported 2 anti-doping rule violations against the Spanish cyclist Aitor Gonzalez Jiménez after his A and B samples - provided in August and in September 2005 - tested positive for the prohibited substances 17α-methyl-5β-androstane-3α,17β-diol, Methandriol and Methyltestosterone.

On 12 May 2006 El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) on behalf of the Royal Spanish Cycling Federation (RFEC) decided on the basis of the assumption of innocence to acquit the Athlete.

The CNCDD imposed only a fine on him for his failure to mention his supplement on the Doping Control Form. It accepted that the positive test results were caused following his use of the supplement Animal Pak.

Hereafter in June 2006 the UCI appealed the Spanish decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the CNCDD decision and to impose a 2 year period of ineligibility on the Athlete.

The Panel considered the Athlete’s conduct and his degree of fault in this case and finds that the Athlete established how the prohibited substance entered his system. He also failed in his duty to check the products before using. Further the Panel deems that the Athlete failed to demonstrate that he bears No Significant Fault or Negligence in this case.

The Panel accepts that the two reported anti-doping rule violations are to be considered as one single first anti-doping rule violation.

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

1.) CAS is competent to hear the appeal filed by the UCI.

2.) The decision of the Royal Spanish Cycling Federation (RFEC) is reformed.

3.) To impose on Mr Aitor Gonzalez Jiménez is a 2 year period of ineligibility starting on 28 September 2005.

4.) (…)

TAS 2006/A/1119 Union Cycliste Internationale (UCI) c. L. & Real Federación Española de Ciclismo (RFEC)

CAS 2006/A/1119 UCI vs Iñigo Landaluce Intxaurraga & RFEC

In July 2005 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist Iñigo Landaluce Intxaurraga after his A and B samples tested positive for the prohibited substance Testosterone with a T/E ratio above the WADA threshold.

However on 5 May 2006 El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) on behalf of the Royal Spanish Cycling Federation (RFEC) ruled that during the analysis of the samples there was the existence of an incomplete process which wasn’t in accordance with all requirements under the Rules and thus can not fully guarantee the test results.

The CNCDD concluded that "the legal maxim" in dubio pro reo was fully applicable to this case. The case against the Athlete was closed and he was acquitted.

Hereafter in July 20016 the UCI appealed the CNCDD decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the CNCDD decision and to impose a 2 year period of ineligibility on the Athlete.

The Athlete, supported by an expert witness, argued that several departures occurred of the ISL leading to invalid test results.

Considering the evidence in this case the Panel concludes that the Athlete established that indeed a departure occurred of the ISL during the anlysis procedures of his samples. The UCI failed to demonstrat that this departure of the ISL didn’t cause the test result.

The Panel holds that the Athlete is put in the right as a result of the information provided by the laboratory and that this Award does not constitute a decalaration of the Athlete’s innocence under the Rules.

Therefore the Court of Arbitration for Sport decides on 19 December 2006 :

1.) CAS is competent to hear the appeal filed by the UCI.

2.) The appeal filed by the UCI on 26 June 2006 against the CNCDD decision of 5 May 2006 is rejected.

3.) (…)

4.) (…)

CAS 2006/A/1057 UCI v/Barry Forde & Barbados Cycling Union

• Cycling
• Doping (testosterone)
• Independence of the CAS panel
• CAS power of review in connection with the translation of documents
• Burden and standard of proof in case of an exogenous source of a prohibited substance
• Determination of the applicable sanction for a second anti-doping violation

1. Considering that the CAS list of arbitrators is in line with the constitutional demands of independence and impartiality applicable to arbitral tribunals and that the arbitrators selected on said list are experts familiar with both legal and sports-related issues, a party’s complaint concerning the unlawful composition of the arbitral tribunal is unfounded.

2. Pursuant to the Code of Sport-related Arbitration, it is up to the arbitration panel to decide what documents need to be translated or not. A panel can choose not to order any further translation than that which is provided by an appellant, especially if the respondents never requested the translation of the disputed documentation before the filing of the answer, never referred to any stipulation which obliges the federation or the accredited laboratory to spontaneously translate the relevant documents and if the panel knows from other CAS procedures that the respondent’s counsel is also comfortable with the language of the documents and the largest part of the documentation consists of scientific statistics.

3. According to the applicable anti-doping rules, a federation shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the federation has established an anti-doping rule violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation which is made. Furthermore, WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for Laboratory analysis. Therefore, the test results conducted by an accredited laboratory indicating an exogenous source of testosterone, shift the burden of adducing exculpatory circumstances to the athlete. When the contentions made by the athlete are not substantiated by anything concrete, his allegations are not established and do not suffice to put into question the quality of the test itself or to reverse the presumption implemented by the anti-doping rules. The result is that at any concentration, an athlete’s sample shall be deemed to contain a prohibited substance and no further investigation is necessary.

4. It is well established that a two-year suspension for a first time doping offence is legally acceptable. The fact that, according to the applicable anti-doping rules, the period of ineligibility imposed for a second anti-doping violation shall be a minimum of two years and a maximum of three years does therefore not appear as disproportionate in the absence of any established exceptional attenuating circumstances. Where an athlete is unable to establish how the prohibited substance entered his system, no elimination of the period of ineligibility or reduction of the period of ineligibility can be applied and a minimum sanction of 2 years (for a first violation) must be imposed according to the rules in force (UCI and WADA). Nevertheless, the circumstances in which the first doping offence occurred i.e. use of ephedrine, its mild sanction, the years which went by and the athlete’s presence and testimonies at the hearing are element which should be taken into account to assess the applicable sanction for a second violation.

In November 2005 the International Cycling Union (UCI) reported an anti-doping rule violation against the Barbados cyclist Barry Forde after his A and B samples tested positive for the prohibited substance Testosterone.

However the Barbados Cycling Union (BCU) decided on 23 February 2006 to cease the disciplinary proceedings against the Athlete. Here the BCU accepted the medical evidence that the Athlete underwent treatment for his condition and it explained his elevated testosterone/epitestosterone levels in that period.

Hereafter in March 2006 the UCI appealed the BCU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the BCU decision of 23 February 2006 and to sanction the Athlete for committing an anti-doping rule violation.

The UCI argued that the presence had been established of exogenous Testosterone in the Athlete’s sampleand that his medical condition could not explain these test results. The Athlete had no TUE for the use of Testosterone whereas this is his second anti-doping rule violation.

The Athlete denied the intentional use of the substance and requested the Panel to uphold the BCU decision. The Athlete and BCU argued that there had been departures regarding the right to fair evidence proceedings and regarding the test results.

The Panel rejected the arguments that the documentation provided by the French LNDD Lab had not been translated into English. Also the Athlete and the BCU failed to demonstrate that the right to fair evidence proceedings had been volated. Their complaints regarding the B-sample analysis procedure were unfounded.

The Panel finds that the Athlete and the BCU failed to demonstrate that the LNDD Lab had not tested the samples in accordance with the international standards. Considering the test results the Panel finds as beyond doubt that the source of the Testosterone was exogenous and that the presence of a prohibited substance in the Athlete’s samples can’t be explained by a physiological or pathological condition.

Therefore the Court of Arbitration for Sport decides on 11 September 2006:

1.) The appeal filed by the Union Cycliste Internationale on 23 March 2006 is upheld.

2.) The appealed decision issued on 23 February 2006 by the Barbados Cycling Union is set aside.

3.) Mr Barry Forde shall be declared ineligible for two years and two months from 31 December 2005.

4.) Mr Barry Forde’s results, points and prizes obtained during the "6 jours de Grenoble" which took place from 27 October to 2 November 2005 as well as during all subsequent races are forfeited.

5.) (…)

TAS 2005/A/964 Agence mondiale antidopage c. Gabriel Sorin Pop

CAS 2005/A/964 WADA vs Gabriel Sorin Pop

In May 2005 the International Cycling Union (UCI) reported an anti-doping rule violation against the Romanian cyclist Gabriel Sorin Pop for his failure to submit to sample collection following a competition in Greece in April 2005.

Thereupon on 13 July 2005 the Romanian Cycling and Triathlon Federation (FRCT) decided to impose a warning on the Athlete and to suspend for 1 year the head of the Romanian national cycling team.

Hereafter in September 2005 the World Anti-Doping Agency (WADA) appealed the FRCT decision with the Court of Arbitration for Sport (CAS). WADA requested to set aside the Appealed Decision and to impose a sanction in accordance with the applicable Rules.

The Athlete explained that his team captain and the rest of the team didn't understand the English language; they missed the announcement on the radio; and they didn't received a written notification. Also there was a problem because of a detour to the hotel and the location of the doping control station. Yet, one cyclist of the team was tested without issues.

The Panel assessed the circumstances on how the cyclist and his team failed to appear at the Doping Control Station in April 2005. In view of the Athlete's conduct the Panel deems that he could not demonstrate that he had a compelling justification for his failure to submit to sample collection.

Therefore the Court of Arbitration for Sport decides on 27 February 2006:

1.) The appeal filed by WADA is admissible.

2.) The decision of the FRCT is annuled.

3.) A 2 year period of ineligiblity is imposed on the Athlete starting on the date of the Decision.

4.) All the Athlete's results obtained since 22 April 2005 are disqualified.

5.) (...)

6.) (...)

CAS 2005/A/884 Tyler Hamilton v. United States Anti-Doping Agency (USADA) & Union Cycliste Internationale (UCI)

Related cases:

• AAA No. 30 190 00130 05 USADA vs Tyler Hamilton - Awards & Dissenting Opinion
  April 18, 2005
• Affidavit Tyler Hamilton [USADA vs Lance Armstrong October 10, 2012]
  September 22, 2011
• CAS 2004_A_748 ROC & Viatcheslav Ekimov vs IOC, USOC & Tyler Hamilton
  June 27, 2006
• IOC 2012 IOC vs Tyler Hamilton
  August 10, 2012

• Cycling
• Doping (homologous blood transfusion, HBT)
• Proof by “any reliable means”
• Shifting of the burden of proof when a laboratory is not accredited for a particular test
• Reliability of the HBT test
• Starting date of the sanction

1. The proof of an anti-doping violation “by any reliable means” gives great leeway to anti-doping agencies to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. As a consequence, WADA need not designate a specific test to prove that a doping violation has occurred. Rather, WADA and its accredited laboratories are free to develop tests based on appropriate scientific principles to demonstrate the existence of a prohibited substance or the use of a prohibited method. This flexibility necessarily provides WADA and other anti-doping organizations with the means to combat new forms of doping.

2. Anti-doping organisations are generally aided by the presumption that WADA-accredited laboratories are presumed to conduct sample analysis in accordance with international laboratory standards. However, when WADA has not specifically accredited the laboratory for a particular test, the burden shifts to the anti-doping organisation to prove that the test has been conducted in accordance with the scientific community’s practice and procedures and that the laboratory satisfied itself as the validity of the method before using it. If the particular test is valid, then the presumption returns and the athlete must then prove by a preponderance of the evidence that the testing was not conducted in accordance with international standards.

3. As the HBT test has been used for many years for important medical purposes and has been scientifically reliable, the methodology to be applied for testing of athletes has been published in peer reviewed articles which were deemed to provide “proof of principle”, and the test methodology has been validated and considered as fit for purpose according to ISO 17025 and WADA ISL, the HBT test must be considered as a valid and reliable test for determining the usage of the prohibited method of blood doping through homologous blood transfusion.

4. Delays in the completion of the proceeding constitute a reason of fairness to start the period of ineligibility at an earlier date than the date of the hearing decision, for example at the date of the voluntary acceptance by the athlete of his suspension from his team.

On 18 April 2005 the American Arbitration Association (AAA) Panel decided to impose a 2 year period of ineligibility on the cyclist Tyler Hamilton for the presence of transfused blood in his A and B blood samples which he provided in September 2004 in the Vuelta de España.

Hereafter in May 2005 the Athlete appealed the AAA decision with the Court of Arbitration for Sport (CAS).

The Athlete asserted that regarding the used test the validation studies of this brand new test were limited, incomplete and unsatisfactory. He also contested the reliability of the alleged positive findings in connection with the Vuelta sample.

The Panel considered the evidence and arguments in this case and finds:

• that the HBT test as applied to the Athlete’s Vuelta sample was reliable;
• that on 11 September 2004, his blood did contain two different red blood cell populations; and
• that such presence was caused by blood doping by homologous blood transfusion, a Prohibited Method under the UCI Rules.

In these circumstances the Panel finds that it is not necessary to consider USADA’s and UCI’s alternative submission based on the results of the other testing of the Athlete which was said to corroborate the accuracy of the Vuelta analysis.

The Panel also has given serious consideration to the history of the requests and production of documents both before the current appeal Panel and before the original AAA hearing and whilst there may be some concerns about the way in which documents have been produced the Panel finds that there was no concealment such as would cast doubt on the validity of the test.

the Panel concludes that the presence of a mixed blood population in the Athlete’s Vuelta sample as detected by the HBT test proves that the Athlete was engaged in blood doping, a Prohibited Method, that violated the UCI Anti-Doping Rules; Chapter II, article 15.2 and Chapter III, article 21.

Therefore the Court of Arbitration for Sport decides on 10 February 2006:

1.) The appeal filed by Mr Tyler Hamilton against the award dated 18 April 2005 rendered by the AAA Panel is dismissed.
2.) Mr Tyler Hamilton is ineligible to compete in cycling races for two years from 23 September 2004 until 22 September 2006.
3.) All questions of costs are reserved for consideration and will be the subject of a separate award.

CAS 2004/A/726 Maria Luisa Calle Williams v. International Olympic Committee (IOC)

CAS 2005/A/726 Maria Luisa Calle Williams v/IOC

• Track cycling
• Doping (Isometheptene)
• CAS jurisdiction
• Substance with “a similar chemical structure or similar pharmacological effects” to the substances listed as prohibited
• Criteria to be considered when deciding to treat a substance as similar to a listed substance

1. In contrast to a decision to include a particular substance on the Prohibited List, a WADA determination to treat a substance as “similar” to a listed substance can be challenged by athletes.

2. The classification of a substance as having “a similar chemical structure or similar pharmacological effect(s)” requires a similarity to one or several of the particular substances on the list. It is not sufficient for WADA or the IOC, or any other anti-doping agency, simply to assert that a substance, such as Isometheptene, is “a stimulant” and thus a prohibited substance (when that assertion is disputed by an athlete) without specifying the particular substance on the List with which similarity is supposed to exist.

3. Before treating a substance as similar, the three criteria mentioned in 4.3 of the WADA Code (potential performance enhancement, health risk, violation of the spirit of sport) must be considered. Only if two of these three are met can a substance be treated as similar and thus prohibited.

Ms Maria Luisa Calle Williams is a Colombian Athlete competing in the Women’s point race for track cycling at the 2004 Athens Olympic Games.

On 29 August 2004 the International Olympic Committee (IOC) decided to disqualify the Athlete after her A and B samples tested positive for the prohibited substance Heptaminol.
Here the Athlete stated that she had used the prescribed medication Neo-Saldina containing Isometheptene as treatment for a migraine headache.

Hereafter in October 2004 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).

In this case during the proceedings with CAS the parties accepted the findings en conclusion of an expert report:

• that both Heptaminol and Isometheptene, even though not expressly listed in WADA’s Prohibited List, have a “similar chemical structure or similar pharmacological effect(s)” as those substances expressly named as “S.1-stimulants” in the WADA Prohibited List; and
• that both Heptaminol and Isometheptene are prohibited substances pursuant to the IOC Rules; and
• that Heptaminol is a marker for Isometheptene, i.e. “a compound, group of compounds or biological parameters that indicates the use of a prohibited substance or prohibited method”.

Subsequent UCI and the Lausanne Lab also concluded that the substance Isometheptene has not a similar chemical structure or pharmacological effect as the stimulants listed on the WADA 2004 list and can thus not be considered to be prohibited under IOC Rules.

The parties in this case, including WADA, agreed that the presence of Heptaminol in the Athlete’s sample was not due to she ingested that substance but the result of metabolizing Isometheptene into Desmethyl-Isometheptene which transformed in Heptaminol during laboratory analysis.

Initially, the IOC Decision argued that as a result of the strict liability principle the mere finding of Heptaminol - which the IOC claims was a prohibited substance at the relevant point in time - in the Athlete’s sample must lead to her disqualification.

However, during the proceedings before the Panel the IOC agreed that contrary to its original submissions the substance for which the Athlete tested positive was Isometheptene not Heptaminol. This was the result of the her’s admission to having taken Neo-Saldina and the biological and chemical process. Therefore, the Panel does not have to determine whether Heptaminol is in fact a prohibited substance.

The Panel is unanimously of the view that the classification of a substance as having “a similar chemical structure or similar pharmacological effect(s)” requires a similarity to one or several of the particular substances on the list.

It is not sufficient for WADA or the IOC, or any other anti-doping agency, simply to assert that a substance, such as Isometheptene, is “a stimulant” and thus a prohibited substance (when that assertion is disputed by an athlete) without specifying the particular substance on the List with which similarity is supposed to exist.

In summary, the Panel is unanimous in finding:

• that a decision by WADA to treat a substance as “similar” is subject to challenge;
• that the S1-Stimulants category of the 2004 Prohibited List is not an “open list” and that similarity must exist with a particular substance before a non-listed substance can be treated as similar; and
• that before treating a substance as similar the three criteria mentioned in 4.3 of the WADA Code must be considered.

Further, the majority of the Panel finds that the IOC failed to discharge the burden of proving that Isometheptene is a prohibited substance under the applicable rules.

Therefore the Court of Arbitration for Sport decides on 19 October 2015:

1.) The decision of the IOC of 29 August 2004 is set aside.

2.) The award to Maria Luisa Calle Williams of the bronze medal for the women’s Point race at the 2004 Olympic Games is confirmed.

(…)

CAS 2004/A/777 ARcycling AG v/UCI

CAS 2004/A/777 ARcycling AG v. Union Cycliste Internationale (UCI)

• Cycling
• UCI Pro Tour
• Violations of procedural rights with a critical bearing on the outcome of the case
• Annulment of the decision issued by the UCI Licence
• Commission
• Denial of UCI Pro Tour licence unjustified

1. The fact not to respect one party’s rights to be heard and to obtain a fair proceeding before the adoption of the negative Preliminary Opinion constitutes a breach of the fundamental due process rights. However, according to the constant jurisprudence of the CAS, a procedural violation is not enough in and by itself to set aside an appealed decision; it must be ascertained that the procedural violation had a bearing on the outcome of the case. Whenever a procedural defect or unfairness in the internal procedure of a sporting body can be cured through the due process accorded by the CAS, and the appealed decision’s ruling on the merits is the correct one, CAS panels has no hesitation in confirming the appealed decision.

2. The procedural defects of the licensing procedure have however a critical bearing on the outcome of the same procedure if the involved party could for example have proven that it had organised its team in such a way as to combat doping effectively, thus avoiding the negative judgment on this issue before the Preliminary Opinion. The violations of one party’s fundamental procedural rights yield a ruling that is materially ungrounded and evidently unjustified.

3. The granting of a UCI ProTour Licence for a limited period of two years is proportionate taking into account the measures taken by the involved party to combat doping which will give the opportunity this party to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

ARcycling AG (the Appellant) is a Swiss limited company, having its seat in Hombrechtikon, Switzerland, the purpose of which is to operate professional cycling teams. The Appellant’s cycling team is sponsored by and named after the company Phonak Hearing Systems (the Phonak team).

In 2004 blood tests riders of the Phonak team showed average higher blood values for haematocrit and reticulicytes. The rider Oscar Camenzind tested positive for EPO and the rider Santiago Perez tested positive for blood transfusions. The rider Tyler Hamilton tested positive for blood transfusions and also his samples collected at the 2004 Olympic Games tested positive. Consequently ARcycling terminated the contracts with the riders Tyler Hamilton and Santiago Perez.

As a result of these doping cases in the Phonak team, the UCI Licence Commission in its final decision dated 22 November 2004 rejected the ARcycling's application for a UCI ProTour Licence. Hereafter in December 2004 ARcycling's appealed the UCI rejection with the Court of Arbitration for Sport (CAS).

After hearing the positions of the parties, the CAS Panel deems that the granting of a UCI ProTour Licence for a period of two years is proportionate. Such measure will give the opportunity to ARcycling to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

In any event, the Regulations allows the Licence Commission to withdraw the ProTour licence at any moment should the team no longer comply with the conditions set out by art. 2.15.040.114.

For those reasons, the Panel accepts the ARcycling’s application and, considering in particular some events of the year 2004 in light of the criterion no. 8 of art. 2.15.011 of the Regulations, holds that the granting of a UCI ProTour licence for two years is appropriate.

Therefore the Court of Arbitration for Sport decides on 31 January 2005 that:

1.) The appeal filed by ARcycling AG on 15 December 2004 is upheld.

2.) The appealed decision issued on 22 November 2004 by the Licence Commission of the Union Cycliste Internationale is set aside.

3.) The application of ARcycling AG for the obtainment of a UCI ProTour Licence for the Phonak Hearing System team is accepted, and a UCI ProTour Licence is granted to it for a period of two years, namely for the cycling seasons 2005 and 2006.

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

5.) (…)