CAS 2012/A/2760 International Cycling Federation (UCI) v. Jana Horakova & Czech Cycling Federation (CCF)
Cycling
Doping (clenbuterol)
Enhancement of the performance with regards to non-specified substances
Duty of cooperation of the contesting party and burden of proof
Threshold requirement of showing how a prohibited substance entered the body
Utmost caution
1. Clenbuterol is an anabolic agent. Since anabolic agents are not considered as specified substances, the issue to know whether the ingestion of the prohibited substance was aimed at enhancing the performance or not is irrelevant.
2. The duty of cooperation of the contesting party (the antidoping organisation or the international federation), in cases in which a party (the rider and/or the national federation) is faced with a difficulty in discharging its burden of proof, is fulfilled when it submits and substantiates two alternative routes as to how the prohibited substance could have entered the rider’s system. However the contesting party does not have the burden of establishing that other alternative scenarios caused the adverse analytical finding, as the risk that the scenario of the party having the burden of proof cannot be ascertained remains with this party.
3. The requirement of showing how a prohibited substance got into one’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether precautions have been taken in attempting to prevent such occurrence. The “threshold” requirement is to enable the tribunal to determine the issue of fault on the basis of fact and not mere speculation, in other words, not only the route of administration must be shown but the factual circumstances in which administration occurred must be proven. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable.
4. The “utmost care” criterion has to be appraised based upon the diligence exercised when consuming nutritional supplements. The athlete does not demonstrate utmost care if he/she is unable to provide any documented evidence that he/she has requested specific information over the years – and not only a general statement after having been tested – from the companies that the nutritional supplements they are producing are free from any prohibited substance.
In October 2011 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Athlete Jana Horakova after her A and B samples tested positive for the prohibited substance clenbuterol.
The Athlete was already tested six days before and had proved negative. Also the Athlete’s hair analyse carried out in January 2012 by the accredited laboratory in Dresden proved negative.
De Disciplinary Board of the Czech Cycling Federation (CFF) accepted the results of the hair analyse and considered that a negligible low concentration of the prohibited substance found in her samples and the result of possible contamination in the available food.
Therefore on 20 January 2012 the CFF Disciplinary Board decided to acquit the Athlete, to lift the provisional suspension with disqualification of her results obtained in the competition where she was tested.
Hereafter in April 2012 the UCI appealed the decision of the CCF with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the CCF decision of 20 January 2012 and to impose a 2 year period of ineligibility on the Athlete. The UCI argued that the Athlete committed an anti-doping violation under the Rules, that she failed to explain how the substance entered her body and that she bore no fault or negligence.
The Panel agrees that the UCI has established that the Athlete had committed an anti-doping violation rule according to the Rules, since both A and B Samples have confirmed the presence of clenbuterol, a prohibited substance. The Panel finds that the Athlete has been unable to discharge her burden of proving under the Rules, on a balance of probability, how the Prohibited Substance had entered her system and that such ingestion had occurred without any (Significant) Fault or Negligence.
Therefore the Court of Arbitration for Sports decides on 2 November 2012:
1.) The appeal filed by the Union Cycliste Internationale on 5 April 2012 against the decision of the Disciplinary Board of the Czech Cycling Federation issued on 20 January 2012 is upheld.
2.) The decision dated 20 January 2012 rendered by the Disciplinary Board of the Czech Cycling Federation is set aside.
3.) Ms Jana Horakova is sanctioned with a period of two (2) years of ineligibility starting on the day of this Award. The period of provisional suspension from 27 October 2011 until 20 January 2012, i.e. 2 months and 25 days, shall be credited against the total period of two years.
4.) Ms Jana Horakova is disqualified from the 2011 UCI Mountain Bike and Trials World Championships.
5.) Ms Jana Horakova shall pay to the Union Cycliste Internationale (i) a fine of CHF 1,500 (one thousand five hundred Swiss Francs), (ii) an amount of CHF 2,500 (two thousand five hundred Swiss Francs) for the costs of the results management incurred by the Union Cycliste Internationale, (iii) an amount of CHF 480 (four hundred eighty Swiss Francs) for the costs of the B-sample analysis and (iv) an amount of CHF 400 (four hundred Swiss Francs) for the costs of the A-sample laboratory documentation package.
(…)
8.) All other or further claims are dismissed.
