CAS 2011/A/2479 Patrik Sinkewitz v. Union Cycliste Internationale (UCI), award of 13 September 2011 (operative part issued on 24 August 2011)
Related cases:
DIS 2011 NADA vs Patrick Sinkewitz
June 19, 2012
CAS 2011_A_2479 Patrik Sinkewitz vs UCI (2011-07-08)
July 8, 2011
CAS 2012_A_2857 NADA vs Patrik Sinkewitz
February 21, 2014
Swiss Federal Court 4A_178_2014 Patrik Sinkewitz vs NADA
June 11, 2014
Cycling
Doping (recombinant human growth hormone – rhGH)
Provisional suspension of a rider
De novo hearing before a CAS panel
Interpretation of Article 239 of the UCI Anti-doping rules
1. Under Articles 239 and 240 of the UCI Anti-doping rules, a provisional suspension based on an adverse analytical finding in respect of an A Sample shall be lifted if:
(i) the rider establish that the apparent anti-doping rule violation has no reasonable prospect of being upheld, or
(ii) the rider establish that he has a strong arguable case that he bears No Fault or Negligence for such violation, or
(iii) any conclusive analysis of the B sample does not confirm the A sample analysis.
2. Consistently with a longstanding CAS jurisprudence, the hearing before a CAS panel constitutes a hearing de novo, i.e. a rehearing of the case heard by the body whose decision is challenged. As a result, this implies that, even if a violation of the principle of due process (including for “lack of reasons” in the challenged decision), occurred in prior proceedings, it may be cured, at least to the extent such violation did not finally impair the appellant’s rights, by a full appeal to the CAS. In fact, the virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance “fade to the periphery”.
3. Both a literal and a systematic construction of Article 239 of the UCI Anti-doping rules show that this rule is to be narrowly interpreted. First, Article 239 clearly indicates that the lifting of the provisional suspension is an exception to its ordinary application; second, the UCI Anti-doping rules (Article 235) provide for the automatic imposition of a provisional suspension following an adverse analytical finding, which should therefore be maintained unless there is a clear indication that such finding does not stand reasonable chances to be confirmed. As a result, the simple casting of doubts as to the possibility that the anti-doping rule violation be confirmed is not sufficient to have the provisional suspension lifted.
In June 2007 the Bund Deutscher Radfahrer (BDR), the German Cycling Federation, has reported an anti-doping rule violation against the Athlete Patrik Sinkewitz after his sample tested positive for the prohibited substance testosterone. The Athlete admitted the use of testosterone, erythropoietin (EPO) and blood transfusions. Due to the Athlete’s substantial assistance the BDR Sports Court decided to impose a 1 year period of ineligibility on the Athlete.
In March 2011 the International Cycling Union (UCI) has reported to BDR a new anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance human growth hormone (hGH).
After notification the UCI ordered a provisional suspension in March 2011 and on 3 June 2011 the UCI Anti-Doping Panel dismissed the Athlete’s request to lift the UCI provisional suspension which was confirmed by the CAS Appeals Arbitration Division on 8 July 2011 ).
Hereafter the Athlete filed a new appeal against this decision of 8 July 2011 with the Court of Arbitration for Sport (CAS).
In his appeal Sinkewitz requests this Panel to lift the Provisional Suspension, imposed on him pursuant to Article 235 of the UCI ADR on the basis of the Adverse Analytical Finding reported following the A sample analysis. In support of his petition, the Appellant invokes several reasons, relating to the analyses performed on the samples he provided and the procedure which followed the reporting of the Adverse Analytical Finding. On the other hand, the UCI denies that the conditions of the lifting of the Provisional Suspension are met.
The Panel finds that the Athlete’s submissions do not show that the apparent anti-doping rule violation has no reasonable prospect of being upheld. In fact, the UCI’s case is supported by expert opinions, which contradict the expert reports filed by the Athlete, and support the UCI’s position that the hGH detection method endorsed by WADA and applied by the Laboratory is reliable and sufficiently validated, that it (and its application by the Laboratory) does not need to be determined as “fit-for-purpose” or require an extension of the scope of the Laboratory’s accreditation; that the different values detected in the A and in the B sample analysis are not significant and do not impact on the Adverse Analytical Finding; and that the second opinion issued by Prof. Cowan confirmed such Adverse Analytical Finding. This does not mean, the Panel underlines, that the Athlete’s contentions in the merits (challenging the Adverse Analytical Finding) are bound to fail and that UCI shall prevail. This point is for the competent disciplinary or arbitration body to decide. The Panel only notes that the UCI’s position, based on the analyses reports and the various expert opinions, is not unreasonable. Also the condition set by Article 239 of the UCI ADR for the lifting of the Provisional Suspension is consequently not satisfied.
Therefore the Court of Arbitration decides on 13 September 2011:
1.) The appeal filed by Mr Patrik Sinkewitz against the provisional suspension imposed on him by the Union Cycliste Internationale (UCI) on 18 March 2011, as confirmed by the decision issued on 3 June 2011 by the UCI Anti-Doping Commission, is dismissed.
(…)
4.) All other prayers for relief are dismissed.
