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.) (…)
