CAS 2013/A/3077 WADA vs Ivan Mauricio Casas Buitrago & GCD
CAS 2013/A/3077 World Anti-Doping-Agency (WADA) v. Ivan Mauricio Casas Buitrago & Colombian Olympic Committee (COC),
Cycling
Refusal to submit to doping control
Restrictive interpretation of compelling justification
Measure of the sanction
1. As determined in the case law of CAS, the defence of a compelling justification is to be interpreted restrictively to the effect that, whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete. Refusal of the athlete to submit to sample collection because he already has urinated, despite the request of the doping control officer to hydrate and wait for another urination, is not compelling justification.
2. For an anti-doping rule violation committed in the form of refusing to submit to sample collection, Article 10.3.1 of the WADA Code provides for a fixed sanction of two years of ineligibility with the only exception of mitigating or aggravating circumstances according to Articles 10.5 and 10.6 of the WADA Code. Refusal of the athlete to submit to sample collection, although selected for doping control, and, against the advice of the DCO to wait for another urination, is made intentionally and in the awareness of the circumstances, which excludes the application of mitigating circumstances.
The Athlete Ivan Mauricio Casas Buitrago already committed an anti-doping rule violation in August 2008 after his sample tested positive for the prohibited substance 19-norandrosterone.
The Disciplinary Committee of the Federación Colombiana de Ciclismo (FCC), the Colombian Cycling Confederation, decided to impose a 2 year period of ineligibility on the Athlete. However on 14 March 2009 the same FCC Disciplinary Committee annulled this decision.
In May 2012 the Colombian Administrative Department of Sports (COLDEPORTES) has reported an anti-doping rule violation against the Athlete after he refused to provide a sample for drug testing.
On 29 May 2012 the Athlete was selected to provide a sample but he was already in his hotel. After notification in the hotel the Athlete told the chaperone that he already had taken a shower and urinated.
At the Doping Control Station (DCS) the Athlete stated, according to him, the notification did not meet the standards of the WADA Code and the UCI. He further stated that he had urinated already. After a request to hydrate and to wait until he was able to urinate again, the Athlete had a phone conservation with his medical doctor and refused to submit a sample. He signed the Doping Control Form and left the DCS.
On 27 September 2012 the Disciplinary Commission of the Colombian Cycling Confederation, Federación Colombiana de Ciclismo (FCC) acquitted the Athlete of all allegations. COLDEPORTES appealed the FCC decision with the General Disciplinary Commission (GDC) of the Colombian Olympic Committee (COL).
On 18 December the General Disciplinary Commission concluded that the Athlete has committed an anti-doping rule violation by refusing to submit to the doping control without justification. Therefore the Commission imposed a 11 month period of ineligibility on the Athlete.
In February 2013 WADA appealed the decision of the Colombian Olympic Committee General Disciplinary Commission with the Court of Arbitration for Sport (CAS). Without a hearing the CAS Sole Arbitrator rules on the basis of the parties written submissions.
WADA requested CAS to impose a 2 year period of ineligibility on the Athlete because of Athlete’s intentional behaviour due to the express refusal to provide a sample. Also WADA made a second appeal with CAS against the FCC decision, dated 14 March 2009, to annul the FCC decision to impose a 2 year period of ineligibility on the Athlete. WADA withdraw this second appeal in August 2013, due to the rules in force in 2008, WADA had no right of Appeal.
The CAS Panel Sole Arbitrator concludes that the Athlete committed an anti-doping rule violation by refusing or to submit to sample collection after notification and without mitigating circumstances.
Due to the fact that no provisional suspension was ordered or accepted the sanction imposed on the Athlete will start on the date of the CAS Award.
The Court of Arbitration for Sport decides on 4 December 2013 that:
1.) The decision rendered by the General Disciplinary Commission on 18 December 2012 is set aside as far as the determination of the sanction imposed on the Athlete is concerned.
2.) The Athlete is declared ineligible to compete for a period of two years which shall commence on the day of the issuance of the present Award.
3.) All competitive results, medals, points, and prizes obtained by the Athlete from 29 May 2012 to the issuance of the present Award are disqualified.
4.) The costs of arbitration, to be calculated by the CAS Court Office and communicated separately to the parties, shall be borne entirely by the Athlete and the General Disciplinary Commission, who are ordered to pay each 50% of such costs.
5.) They shall each pay CHF 1,500 to WADA as contribution towards its legal costs.
6.) All other or further claims are dismissed.
