CAS 2005/A/969 Erwin Bakker v. Koninklijke Nederlandsche Wielren Unie (KNWU) & Union Cycliste Internationale (UCI)
Related cases:
- CAS 2005/A/936 UCI vs Erwin Bakker & KNWU
April 20, 2006 - Swiss Federal Court 4A_237_2010 Erwin Bakker vs UCI
October 6, 2010 - ECHR 7198/07 Erwin Bakker vs Switzerland
September 26, 2019
- Cycling
- Doping (r-EPO)
- Gross negligence
- Second doping violation
- Determination of the applicable sanction
1. An athlete of international level is grossly negligent if he doesn’t pay the utmost attention to any substance entering his body especially to a substance reported by his doctor to be a “risky product”. In such a case, he must either refuse it or ask what product it is and what it contains, especially if he was already involved in a previous positive case. The athlete who does not react to his doctor’s prescription and simply accepts an injection has a behaviour contradictory to all warnings contained in the UCI Anti-Doping Rules. Therefore, the No Significant fault or No Significant Negligence notion cannot be applicable.
2. Pursuant to art. 269 of the UCI Anti-Doping Rules, a second anti-doping rule violation may be considered for purposes of imposing sanctions only if it is established that the athlete committed the second anti-doping rule violation after he received notice of the first one. Notice to an athlete may be accomplished by delivery of the notice to his National Federation or as provided by the applicable Anti-Doping Rules. The National Federation shall be responsible for making immediate contact with the athlete. In that case, the two anti-doping rule violations are two separate offences.
3. Under the applicable regulations, the sanction that is applicable for a second violation is a lifetime ineligibility. No possibility of reduction is conceivable where the athlete was significantly negligent and infringed basic principles of sport such as sportsmanship and fair play and in particular the UCI Rules governing him and his sport.
In April 2005 the Royal Dutch Cycling Federation (KNWU) has reported an anti-doping rule violation against the cyclist Erwin Bakken after his A and B samples - provided in Spain in March 2005 - tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.
On 1 July 2005, the KNWU Anti-Doping Committee decided to acquit the Athlete from any charges related to a doping offence. Hereafter in August 2005 the UCI appealed the KNWU decision of 1 July 2005 with the Court of Arbitration for Sport (CAS).
On 20 April 2006 the CAS Panel decided to uphold the UCI appeal and to annul the decision issued by the KNWU (CAS 2005/A/936). Accordingly the Panel decided to impose a 2 year period of ineligibility on the Athlete, starting on 2 February 2006. Furthermore the Panel disqualified the Athlete from the Vuelta Internacional a Valladolid 2005 and any other race in which he competed between 26 March 2005 and 2 February 2006
While already involved in the anti-doping rule violation proceedings – reported in April 2005 – the Athlete participated in Canada in a competition in June 2005. Thereupon in July 2005 the KNWU reported a second anti-doping violation against the Athlete after his sample – provided in Canada in June 2005 – tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).
Consequently on 5 September 2005 the KNWU Anti-Doping Committee decided to impose a 2 year period of ineligibility on the Athlete and a CHF 2000 fine for the anti-doping rule violation committed in Canada.
Hereafter in October 2005 the Athlete appealed the KNWU decision of 5 September 2005 with CAS (CAS 2005/A/969). At the same time the Athlete was already involved in the first CAS proceeding (CAS 2005/A/936) after the UCI had appealed the KNWU acquittal decision of 1 July 2005.
Considering the previous CAS decision of 20 April 2006 (CAS 2005/A/936) as a first anti-doping rule violation the CAS Panel decides on 5 May 2006 this Award (CAS 2005/A/969):
1.) The appeal filed by the Athlete Mr Erwin Bakker is rejected.
2.) The decision of the Koninklijke Nederlandsche Wielren Unie’s Anti-Doping Commission dated 5 September 2005 is annulled.
3.) Mr Erwin Bakker shall be declared ineligible for competition for lifetime.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500 already paid by Mr Bakker, which is retained by the CAS.
5.) Each party shall bear its own costs.
