CAS 2011/A/2671 Union Cycliste Internationale (UCI) v. Alex Rasmussen & National Olympic Committee and Sports Confederation of Denmark (DIF; Dansk Idraetsforbund),
- Cycling
- Doping (whereabouts failure)
- Whereabouts failure within a period of 18 months
- Departure from the rule providing for a notice within 14 days of the unsuccessful testing attempt
- Determination of the applicable sanction
1. Under Article 2.4 Danish National Anti-Doping Rules (NADR) (as well as under the corresponding provision – Article 21.4 – of the UCI ADR), any combination of three missed tests and/or filing failures within eighteen months constitutes an anti-doping rule violation. Such provision matches the obligation of the athletes, included in a Registered Testing Pool of athletes (RTP), to provide, and keep updated, his/her whereabouts information, in order to be located for out-of-competition testing. Out-of-competition testing is at the heart of any effective anti-doping programme.
2. There is no basis in the wording of art. 11.6.3 of the International Standard for Testing (IST) for finding that a deviation from the rule providing for a notice within 14 days of the unsuccessful testing attempt affects the possibility that a missed test be recorded as such. The basis of the anti-doping rule violation contemplated by Article 2.4 NADR is -in addition to the first two failures- the fact that the rider was not met by the competent anti-doping officer for out-of-competition testing at the time and place he had indicated in compliance with his obligation to provide accurate whereabouts information. Such factual basis is obviously not affected by events pertaining to the subsequent administration process regarding it. In other words, the fact that an unsuccessful testing attempt was notified within, or past, fourteen days thereof does change the fact that a test was missed by the rider. As a result, a departure from Article 11.6.3(b) IST cannot be invoked to invalidate the missed test. Furthermore, the recording of the missed after the 14 day s notice is not inconsistent with the respect of the athlete’s rights and does not run against the purposes of the rule intended to protect them.
3. The period of ineligibility which can be imposed on a rider for the anti-doping rule violation contemplated by Article 2.4 NADR ranges from one to two years depending on the assessment of the athlete’s degree of fault. The fact that the behaviour of the rider shows a patent disregard of his whereabouts obligations, commands a sanction much higher than the minimum stipulated.
In September 2011 Anti-Doping Denmark (ADD) has reported an anti-doping rule violation against the cyclist Alex Rasmussen for his 3 whereabouts filing failures and missed tests withing an 18 month period.
However on 17 November 2011 the DIF Anti-Doping Board decided to acquitt the Athlete on the bases that the UCI had failed to notify the Athlete about his 3rd Missed Test within the set deadline of 14 days. In fact the Athlete was notified by the UCI 10 weeks later in July 2011 following the 3rd Missed Test in April 2011.
Hereafter in December 2011 the UCI appealed the DIF decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Decision and to sanction the Athlete for 2 years.
The parties disagree as whether the Athlete had committed a third whereabouts failure. The Athlete defended the Decision that held that such missed test could not be recorded as a whereabouts failure. The UCI contended that the Appealed Decision is wrong, and that in April 2011 within an eighteen month period a third whereabouts failure was committed by the Athlete.
The Panel finds that, even conceding that Article 11.6.3(b) IST had to be applied, the failure by UCI to send a notice to the Athlete within 14 days of the unsuccessful attempt in April 2011 did not prevent UCI from recording it as a missed test.
The Panel deems that a whereabouts failure was committed by the Athlete in April 2011. Such failure was the third in an 18 month period, and the filing failure for the fourth quarter of 2011. Consequently the Panel holds that the Athlete committed the anti-doping rule violation contemplated by Article 2.4 NADR. Consequently the Panel finds that a period of ineligibility of 18 months is the appropriate sanction and proportional to his degree of fault.
Therefore the Court of Arbitration for Sport decides on 4 July 2012:
1.) The appeal filed by the Union Cycliste Internationale (UCI) on 22 December 2011 against the decision taken by the Anti-Doping Board (Dopingnaevn) of the National Olympic Committee and Sports Confederation of Denmark (Dansk Idraetsforbund) on 17 November 2011 is partially granted.
2.) The decision taken by the Anti-Doping Board (Dopingnaevn) of the National Olympic Committee and Sports Confederation of Denmark (Dansk Idraetsforbund) on 17 November 2011 is set aside.
3.) A suspension of 18 (eighteen) months is imposed on Mr Alex Rasmussen commencing on 1 October 2011, with credit given for the period of provisional suspension at that time already served.
4.) The results achieved by Mr Alex Rasmussen in the period from 28 April 2011 to the date of his provisional suspension shall not be disqualified.
(…)
7.) All other motions or prayers for relief are dismissed.
