TAS 2013/A/3320 Union Cycliste Internationale (UCI) c. Sylvain Georges & Fédération Française de Cyclisme (FFC)
CAS 2013/A/3320 UCI vs Sylvain Georges & FFC
Cycling
Doping (heptaminol)
Devolving effect of the appeal
Duty of care of the athlete resulting from his strict liability
Conditions for the elimination or reduction of a suspension period for a specified substance
Significant negligence
Determination of sanction
Starting point of the period of ineligiblility
1. In view of the devolving effect of the appeal with CAS, it is not necessary to refer the case back to the respondent authority for a new decision as the CAS Award will replace the contested decision. The CAS arbitral panel is therefore not bound by the facts or evidence considered by the respondent authority. It is free to reconsider and, if necessary, to judge new legal grounds.
2. The athlete is responsible for the presence of doping substance in his system. When the presence of a prohibited substance has been established, his intention to dope and his guilt are presumed. The athlete benefits from the presumption of innocence as long as the presence of a prohibited substance in his body has not been established. The athlete is therefore subjected to a system of strict liability, a system that is required when sport equity is at stake. With this responsibility, it is primarily the athlete’s duty of care to check the contents of the medicines he ingests, even if these medications are prescribed by a doctor and the doctor knows that the Athlete is likely to be subject to doping control.
3. In order to benefit from the elimination or reduction of the suspension period for specified substances, an athlete must establish:
(a) how the specified substance entered or came into his system; and
(b) that the specified substance was not intended to enhance his sport performance or to mask the use of a performance enhancing substance.
Regarding the first condition, an athlete can establish how the specified substance was found in his system on the balance of probabilities. Accordingly, the hearing panel must simply consider whether the athlete's explanation about the presence of the specified substance is more likely or not. Regarding the second condition, the hearing panel must be fully satisfied by the objective circumstances in the case that the athlete, in using or possessing a specified substance, had no intention to enhance his sport performance.
4. An athlete who failed to reseach the exact content of a dietary supplement must renounce the consumption of it, or as a consequence, he will have to answer for a violation of the applicable anti-doping regulations. An experienced and international athlete cannot ignore the risks of contamination throught a dietary supplement; he has not demonstrated any degree of prudence and precaution; and he is significantly negligent when he failed to conducted any research on the product he used.
As he alleges that he didn’t know the medication, he also didn’t consider it necessary to inform his doctor about this product. Further he has not established that he made at least a step - not even the most rudimentary - to verify that there were no prohibited substances in the product.
5. According to Art. 295 ARD, the athlete’s degree of fault is as criterion taken into account for considering grounds for a reduction of the period of ineligibility. Therefore a decision can not, without ignoring the aforementioned provision, introduce factors other than the degree of fault in the determination of the sanction, for example the nature of the substance found in the body of the athlete.
6. In accordance with Art. 316 ADR, the suspension must start from the date of the sample collection when the athelete has admitted had used a prohibited substance in violation of the anti-doping rules.
On 24 July 2013 the National Disciplinary Commission of the French Cycling Federation (FFC) decided to impose a 6 month period of ineligibility - including a fine and payment for costs for the UCI - on the cyclist Sylvain George after his A and B samples tested positive for the prohibited substance Heptaminol. Here the Disciplinary Commission accepted that the violation was not intentional, that the product Ginko Fort was the source of the positive test and considering the Athlete’s negligence.
Hereafter the International Cycling Union (UCI) appealed the French decision of 24 July 2013 with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the FFC decision on the matter of the sanction and to impose a 18 month period of ineligibility on the Athlete.
The Athlete denied that the violation was intentional, he acknowledged his negligence and argued that the imposed sanction was justified.
The Panel holds that the anti-doping rule violation has been established, that the violation and his negligence was admitted by the Athlete and that the violation was not intentional. Considering the Athlete’s degree of fault the Panel finds that he was utmost negligent due to he failed to conduct any research befor using the product nor did he consult his doctor about it.
Therefore the Court of Arbitration for Sport decides on 13 March 2014 to partially set aside the FCC decision of 24 July 2013 and to impose a 18 month period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 10 May 2013.
