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.
