CAS 2013/A/3370 Union Cycliste Internationale (UCI) v. Jack Burke & Canadian Cycling Association (CCA)
Related case:
SDRCC 2013 CCES vs Jack Burke
October 2, 2013
Cycling
Doping (hydrochlorothiazide)
Time limit for filing an appeal
Balance of probabilities standard as to the source of the prohibited substance
Sanction regime in case of no fault
Disqualification of results
1. It is a fundamental principle of Swiss law that time limits to appeal start running only upon proper notification of the reasons for the decision under appeal. The very rationale for basing the time limit for filing an appeal upon the receipt of a “full decision” is to enable the parties with an appeal right to assess the reasoning of a decision rendered by the first instance hearing panel. The necessity for a party to know the grounds for imposing a sanction in order to duly exert its right to contest such decision before CAS, should be a generally accepted principle.
2. An athlete must establish on a balance of probabilities how the specified substance entered his system. Previous CAS panels have held that to meet this threshold the athlete bears the burden of persuading the tribunal that the occurrence of the circumstances on which he relies is more probable than other possible explanations of the doping offence. An athlete may meet his burden by either direct or indirect evidence. However, mere speculation as to the source of the prohibited substance is insufficient.
3. If the athlete submitted evidence establishing on a balance of probabilities that the prohibited substance found in his/her system resulted from the ingestion of contaminated water and established that he did not know or suspect, and could not have known or suspected even with the utmost caution, that the water was contaminated with the prohibited substance, he/she, therefore, bears No Fault or Negligence, and it is appropriate that no sanction be imposed pursuant to Article 296 of the UCI Anti-Doping Rules (ADR), not even a reprimand under Article 295 of the UCI ADR. Since the athlete bears no fault or negligence, the anti-doping rule violation shall not be considered as a violation for the purpose of determining the period of ineligibility in case of a future violation.
4. Notwithstanding the application of Article 296 of the UCI ADR, if an athlete has competed in an event with a prohibited substance in his/her bodily system, an anti-doping rule violation has in any case been committed. In accordance with Article 288 of the UCI ADR, a technical violation of the UCI ADR in connection with an in-competition test automatically leads to the disqualification of the individual results obtained during such competition. Accordingly, all results achieved by the athlete in the competition shall be disqualified.
In August the International Cycling Union (UCI) has reported an anti-doping rule violation against the Canadian cyclist Jack Burke after his A and B samples tested positive for the prohibited substance hydrochlorothiazide (HCTZ) in a very low concentration.
On 2 October 2013 the Sports Dispute Resolution Centre of Canada (SDRCC) decided to impose only a reprimand on the Athlete considering that the violation was not intentional and it was more likely that contaminated drinking water was the source of the prohibited substance and not any a supplement.
Hereafter in October 2013 the UCI appealed the SDRCC decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the SDRCC decision of 2 October 2013 and to impose a 2 year period of ineligibility on the Athlete. The UCI argued that given that there is no direct evidence of any of the Athlete’s assertions, it cannot accept that the level of any possible contamination in the relevant water source was sufficient to cause the Athlete’s adverse analytical finding for HCTZ.
The Athlete accepted the presence of HCTZ found in his urine sample and didn’t contest the Laboratory’s analysis or its results. The Athlete disputed the two-year sanction sought by the UCI and asserted that it should be eliminated or, alternatively, substantially reduced in light of the particular circumstances of his case.
The Sole Arbitrator finds that it is undisputed that the UCI met its burden and standard of proof that an anti-doping rule violation has been established in accordance with the UCI ADR. Therefore, the principal issue to be determined is what sanctions and consequences should flow from this anti-doping rule violation. In this regard, the burden of proof shifts to the Athlete to establish that Articles 295 and 296 of the UCI ADR apply to reduce or eliminate the two-year default period of ineligibility which is otherwise applicable.
The Sole Arbitrator find that the evidence submitted in this matter establish on a balance of probabilities that the HCTZ found in the Athlete’s system resulted from the ingestion of contaminated water from Malartic. The Athlete established that he did not know or suspect, and could not have known or suspected even with the utmost caution, that the Malartic water was contaminated with HCTZ and therefore, the Athlete bears No Fault or Negligence. Since these very unique circumstances have resulted in a finding of no fault on the part of the Athlete, it is appropriate that no sanction be imposed pursuant to Article 296 of the UCI ADR.
Therefore the Court of Arbitration for Sport decides on 17 July 2014 that:
1.) The appeal filed by the Union Cycliste Internationale on October 30, 2013 is partially upheld.
2.) The underlying decision issued by the Sports Dispute Resolution Centre of Canada (SDRCC) on October 2, 2013 is amended as follows:
The results obtained by Mr. Jack Burke during the 2013 UCI Tour de l’Abitibi shall be disqualified.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.
