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.
