TAS 2011/A/2616 Union Cycliste Internationale (UCI) c. Oscar Sevilla Rivera & Real Federación Española de Ciclismo (RFEC)
CAS 2011/A/2616 UCI vs Oscar Sevilla Rivera & RFEC
Cycling
Doping (Hydroxyethyl starch - HES)
Additional instructional measures
Burden of proof
Elimination or reduction of suspension period
Degree of evidence
Possibility for an accused to change his defence
Elimination or reduction of the period of suspension under special circumstances
Degree of fault under Article 295 ADR
Examination of fault or negligence
Objective liability
1. Under application of the Articles R44.2 and R44.3 of the Code, the arbitral panel may proceed in establishing the identity and the professional profile of a witness who has not been able to testify by videoconference for lack of technical means.
2. Article 8 of the Swiss Civil Code decrees the burden of proof and determines on this basis who must assume the consequences of the evidence failure. When a party intends to allege a fact or dispute evidence provided by the other party, it can not confine itself to vague research and merely invite the arbitral panel itself to conduct investigative measures in order to fill the gaps in the evidence which it had to provide in support of its appeal.
3. The UCI Anti-Doping Rules (ADR) offers the Athlete the possibility to obtain an elimination or reduction of the period of ineligibility, provided that he proves how the specified substance entered his system, that the specified substance was not intended to improve sports performance or to mask the use of a performance enhancing substance and / or that he has not committed any significant fault or negligence. According to the Swiss Federal Court, there is nothing unbearable to impose on the cyclist who wants to obtain an cancellation or reduction of the disciplinary penalty the obligation to demonstrate how the prohibited substance entered his system. If it were sufficient for the person concerned to plead his ignorance in this matter in order to succeed that result, the fight against the doping plague would be singularly complicated.
4. With regard to the question of how the prohibited substance entered his system, the balance of probabilities is the degree of proof to be provided by the athlete. It is up to the latter to convince the arbitral panel that it is more likely that the alleged facts occurred as he claimed and not otherwise. With regard to the question for which purpose the prohibited substance was used, it is the responsibility of the athlete to establish that the substance was not intended to improve his sports performance or to mask the use of a performance enhancing substance to the satisfaction of the judging body, who will estimate the gravity of the accusations. It follows that the degree of evidence is more important than the standard of merely preponderance of probabilities, but less important than the standard of proof beyond a reasonable doubt. Corroborating evidence must also be produced in support of the athlete's assertions.
5. It can not be criticized ab initio for an accused to introduce all the for him available means of defence, if necessary by changing their content, without prejudice to the right of defence.
6. In order to benefit from the elimination or reduction of the suspension period in the matter of a specified substance, it is not necessary that the circumstances are exceptional. The Article 295 of the ADR provides only for special circumstances.
7. Under Article 295 of the ADR, in the matter of a specified substance, the degree of fault of the member is the criterion taken into account in assessing any reduction of the suspension period. There is accordingly no need to determine whether the athlete's fault or negligence is "significant", as provided for in Article 297 of the ADR.
8. The examination of fault or negligence must be made on the basis of the particular circumstances of each particular case. Necessarily the purpose must be taken into account - both repressive and educational - sought by the applicable disciplinary rules. It would be particularly unfair to sanction the same way, on the one hand, those who refuse to admit that they intentionally have taken doping products and contest the clear analysis results and, on the other hand, an athlete who has demonstrated satisfactorily how the specified substance has entered his system and that the substance was not intended to improve his sports performance or to mask the use of a substance to improves his performance.
9. An athlete has an absolute obligation to ensure that no prohibited substance enters his or her system. A medical treatment is not an excuse for the use of prohibited substances or prohibited methods, except in the case in accordance with the Therapeutic Use Exemption Rules. Athletes should be dissuaded, in particular when they are experienced, to follow blindly on the care or advice of doctors, especially when they are not specialized in sports medicine. The adopted attitude of "say nothing, see nothing, hear nothing” and not taking any precaution is incompatible with the role that athletes are expected to play in a sports world that is far too tainted by the doping plague.
In September 2010 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist Oscar Sevilla Rivera after his A and B samples tested positive for the prohibited substance Hydroxyethyl starch (HES).
The Athlete produced during the proceedings two different lines of defence. At first he contested the test results for the substance HES. After the CNCDD had recommended a 2 year sanction in July 2011 the Athlete changed his defence and explained with additional medical evidence how the substance came into his system and for what purpose it was used. Considering the circumstances the CNCDD decided on 16 September 2011 to impose on the Athlete a 6 month period of ineligibility including costs and a CHF 1.500,- fine.
Hereafter UCI appealed the CNCDD decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to annul the CNCDD decision of 16 September 2011 and to impose a 4 year period of ineligibility on the Athlete including a fine and payment for costs.
Considering the evidence and statements the Panel concludes that the Athlete demonstrated more than probable that the alleged facts occurred as he claimed and not otherwise. Therefore he met the burden of proof in showing how the specified substance entered his system. The Panel also finds in view of the particular circumstances in this case that the Athlete’s degree of fault or negligence is high.
Therefore the Court of Arbitration for Sport decides on 15 May 2012 to impose on the Athlete a fine, the payment for costs and a 12 month period of ineligibility including the time already served.
