TAS 2010/A/2101 Union Cycliste Internationale (UCI) c. A. & Fédération Française de Cyclisme (FFC)
CAS 2010/A/2101 UCI vs A. & FFC
Cycling
Doping (Norfenfluramine)
Applicable law
Counterclaim
Relationship between two contradictory procedural arbitration rules
Admissibility of new facts before CAS
Duty of vigilance
Fine
Member protection law: proportionality and equal treatment
1.) According to Articles 372 and 374 of the UCI Anti-Doping Rules (ADR) (version 2009), the 2009 ADR came into force when the rider tested positive. Regarding the rider’s ability to take note of the 2009 ADR, it is not decisive that it has not been published on the FFC website, as far as (1) The ADR rules apply to all licentiates; (2) the ADR is applicable to all cycling competitions and the participation to a cycling competition, for any reason whatsoever, constitutes acceptance of all the provisions of the applicable regulations; (3) The rider’s licence must contain certain information and obligations which the rider has to comply with under the UCI Rules and declares that he has read or has had the opportunity to become acquainted with these statutes and regulations.
2.) A counterclaim is a claim for the purpose other than an appeal and not simple a response to the appeal. In this context, the rider's claim to annul the 2 year suspension and the disqualification decided in the first instance, must be qualified as a real counterclaim and not simple response considering the sole purpose of the UCI appeal is the claim for the sanction in the form of fine and reimbursement of the costs incurred by the UCI for the anti-doping control.
3.) The problem of the relationship between two contradictory procedural arbitration rules adopted by the parties must be settled case by case, according to the facts in this case, since it is a matter of determining which of the two procedural rules required by the parties and freely adopted must prevail.
In this regard, it is significant that at the time of adopting Article 335 of the ADR, which clearly implies the possibility for the respondent to file a counterclaim, the UCI was not willing to depart from the provisions of the CAS Code, but rather to harmonize its procedural rules relating to an appeal to CAS with those of CAS, since at that time Article R55 of the Code permitted counterclaims.
Moreover, CAS has a legitimate interest in considering its imperative procedural rules in the field of an appeal, Since Article R65 of the Code provides that the appeal procedure is in principle free of charge in international disciplinary disputes. Finally, for the reasons of equality between different sports disciplines, it would be unjust not to apply Article R55 of the Code in its revised version to all appeals filed since it came into effect (January 2010). For these reasons, only the present effective Article R55 of the Code is applicable and a counterclaim is in principle inadmissible.
4.) Exceptionally, new facts may be taken into consideration when the invoking party can prove that these facts are potentially decisive for the outcome of the dispute which already existed at the time of his claim or his appeal but which he could not have known, even when exercising the utmost diligence.
In the light of the general principles of procedure applicable to the invocation of new facts, of the practice of the Federal Tribunal, and taking into account the principle of immutability of the dispute and the principle of the double degree of jurisdiction according to which the dispute submitted to the appellate judge according to which the dispute before the appellate judge must normally be identical to the case before the court of first instance, the possibility of admitting new facts on appeal with CAS must be rigorously assessed.
5.) Given the multiple obligations of riders according to the anti-doping fight, and the great caution required of them with food, drinks, medical treatments and use of dietary supplements, a rider must exercise his caution related to his entourage (coaches, friends, family, acquaintances) without this being regarded as mistrust. In this regard, athletes are also responsible for the actions of their loved ones, since they may very well put them unintentionally in a risky situation.
6.) The 2009 ADR version, including Article 326, is applicable, the principle of the fine is therefore indisputable. The introduction of fines in the regulations finds its reason in the fight against doping, the financial penalties may have an additional deterrent effect in this respect.
7.) In Swiss law, an association enjoys an important freedom considering its organisation and in the regulation of its activities. This autonomy of associations nevertheless has certain limitations.
Thus, under Swiss law in accordance with "rights of protection", the legitimate interest of the members is protected in ensuring that the association complies with the law, on the one hand, by the right of association and, on the other hand, by various general principles and fundamental values of the Swiss legal system. The rights of protection are applicable to disciplinary sanctions imposed by a sports association including, among other things, the principles of proportionality and equal treatment. In accordance with the principle of proportionality, the financial situation of the rider may justify the reduction of the fine to half of the net income used as a basis for calculation.
In October 2009 the International Cycling Union (UCI) has reported an anti-doping rule violation against the French elite level cyclist A. after his A and B samples tested positive for the prohibited substance norfenfluramine.
On 2 February 2010 the National Disciplinary Commission of the French Cycling Federation (FFC) decided to impose a 2 year period of ineligibility on the Athlete without a fine or fees.
Hereafter in April 2010 the UCI appealed the FFC decision of 2 February 2010 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to uphold the imposed 2 year period of ineligibility and in addition under UCI Rules to order the payment of a fine including fees and cost for the anti-doping control.
The Athlete A. requested the Panel to annul the imposed sanction as countrerclaim. He rejected the claim for imposing a fine and asserted that he acted without fault or negiligence due to the violation was the result of the unintentional use of medication prescribed for his mother. Also he disputed the validity of the UCI Anti-Doping Rules.
The Panel concludes that the Athlete failed to show new evidence in his counterclaim. Also the Panel considers that the counterclaim is dismissed due to it is inadmissible under the current applicable CAS Code. The Panel finds that under UCI Rules the Athlete has to pay to UCI fees and costs for the anti-doping control and a proportional calculated fine.
Therefore the Court of Arbitration for Sport decides on 18 February 2011:
1.) The appeal of the International Cycling Union is partially accepted.
2.) The decision No 38/09 of 2 February 2010 of the FCC National Disciplinary Commission is partially reformed.
3.) A. is ordered to pay the UCI an amount of EUR 10,500, as fine.
4.) A. is ordered to pay the UCI an amount of CHF 1,000, as cost and fees for the anti-doping control.
5.) A. is ordered to pay the UCI an amount of EUR 400, as cost for the analysis of the B sample.
6.) A counterclaim is inadmissible.
7. (...).
