Related cases:
- CAS 2005/A/936 UCI vs Erwin Bakker & KNWI
April 20, 2006 - CAS 2005/A/969 Erwin Bakker vs KNWU & UCI
Mai 5, 2006 - ECHR 7198/07 Erwin Bakker vs Switzerland
September 26, 2019
In April 2005 the Koninklijke Nederlandsche Wielren Unie (KNWU), the Royal Dutch Cycling Federation, has reported an anti-doping rule violation against the cyclist Erwin Bakker after his A and B samples – provided during the Mountain Bike Cycling Race Vuelta Internacional a Valladolid 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 issued a decision that acquitted 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 upheld the UCI appeal, annulled the decision issued by the KNWU, 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 and declared the Athlete ineligible for competition for two years commencing on 2 February 2006 (CAS 2005/A/936).
Already involved in the ADRV proceedings – reported in april 2005 – the Athlete participated in Canada in the Mount-Sainte-Anne contest in June 2005.
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).
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 ADRV committed in Canada.
The Athlete appealed the KNWU decision of 5 September 2005 with CAS in October 2005 (CAS 2005/A/969). At the same time the Athlete was already involved in the case CAS 2005/A/936 after the UCI had appealed the KNWU decision for acquittal of 1 July 2005.
Considering the previous CAS decision of 20 April 2006 (CAS 2005/A/936) as a first ADRV the CAS Panel decided on 5 May 2006 (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.
Hereafter in April 2010 the Athlete appealed the CAS decision of 5 May 2006 (CAS 2005/A/969) with the Swiss Federal Court.
The Athlete argued that in the case CAS 2005/A/936 upon receipt of the results of the A-sample analysis he demanded the analysis of a B-sample. Once the latter was done and assessed he would have received only the counter analysis of the B-sample two pages in length, yet not the laboratory’s report which contained more than 80 pages. Neither would he have been advised of the possibility to request the complete analysis report of the B-sample.
The Athlete further argued that his counsel did submit during the February 2006 hearing in front of the CAS that he should be allowed to review the full laboratory’s report; however neither the CAS nor the UCI responded to the request which “very likely was not even mentioned in the record”. Only through an e-mail of 29 January 2010 would he have received the full report concerning the B-sample. At that point in time he would have learned that the A and B analysis had been conducted at least in parts by the same lab technicians.
According to the applicable rules of the International Standard for Laboratories this is not allowed. Thus a breach of the rules took place, which according to the Athlete should have led to an acquittal. An acquittal in CAS 2005/A/936 would lead in turn “inevitably to a milder sanction in the CAS case 2005/A/969 to be reopened”, namely only to a two years ban and not to a ban for life.
Considering the Athlete’s arguments the Swiss Federal Court decides:
1.) The request for revision is rejected to the extent that the matter is capable of revision.
2.) The judicial costs set at CHF 2’000.- shall be paid by the Athlete.
3.) The Athlete shall pay to the Respondent CHF 2’500.- for the federal proceedings.
4.) This judgment shall be notified in writing to the parties and to the court of Arbitration for Sport (CAS).
