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.) (…)
