CAS 2012/A/2972 Matti Helminen v. Royale Ligue Vélocipédique Belge (RLVB)
Cycling
Doping (Probenecid)
Delays in the result management
CAS jurisprudence’s precedential value
Irregularities in the transportation documentation and ambiguity in some official documents
Contention that a prohibited substance does not have a performance enhancing effect and strict liability
Meaning of the “balance of probabilities” standard
Evidences of the source of a specified substance in the athlete’s sample
Calculation of the athlete’s fine on the basis of a full year’s net income
1. Even if the report on the A-sample from the laboratory takes more than 30 working days, although it may be ideal to have the results reported within that timeframe, it is not always possible or even advisable. Furthermore, the deadline for the reporting of the A sample analysis’ results is not strictly compulsory and can be extended by an agreement between the laboratory responsible for the analysis and the organization responsible for the sample testing and the management of the test results. Such delay may further be due to a surcharge of the laboratories, the complexity of the analysis during the holiday period or other reasons. In all cases, the athlete should prove that the delay could have affected the AAF.
2. Even though CAS jurisprudence is not subject to the principle of binding precedent, and a CAS Panel in principle might end up deciding differently from a previous panel, it must accord to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.
3. An athlete cannot validly claim irregularities in the transportation documentation and ambiguity in some official documents, if such athlete and his representative have attended the opening of the B-sample without making any reservations as to the identity or sealing of the sample.
4. The contention that a prohibited substance did not have a performance enhancing effect on the athlete and that he/she must have ingested the substance inadvertently does not preclude the strict liability principle of Article 21.1.1 of the UCI Anti-Doping Rules (ADR). Consequently, pursuant to Articles 22, 296 and 297 ADR and according to settled CAS jurisprudence, in order for the athlete to escape a sanction, the burden of proof shifts to the athlete who has to establish how the prohibited substances entered his/her system; and that he/she in an individual case bears no fault or negligence, or no significant fault or negligence.
5. Providing evidence on a “balance of probabilities” has been interpreted in previous CAS cases as evidencing that an alternative explanation is more likely to have occurred than not to have occurred.
6. The concentration of the prohibited substance is irrelevant, and the facts that the prohibited substance is difficult to find on the regular market, that it might be used in meat production in a country, and that the prohibited substance has only a limited share in the total amount of positive doping controls do not evidence the source of the prohibited substance found in the athlete’s urine sample by a balance of probabilities.
7. It is settled CAS jurisprudence that the fine should be calculated on the basis of a full year’s net income. Hence, there is no room to lower the fine on the basis of the fact that the athlete could not compete, and thus had no income from cycling, after his suspension.
In July 2013 the International Cycling Union (UCI) reported an anti-doping rule violation against the Finnish cyclist Matti Helminen after his A and B samples tested positive for the prohibited substance probenecid.
On 4 October 2012 the Disciplinary Committee on Doping of Royale Ligue Vélocipédique Belge (RLVB) - Belgian Cycling - decided to impose a 2 year period of ineligibility and a €19,250 fine on the Athlete.
Hereafter in November 2012 the Athlete appealed the decision of the RLVB with the Court of Arbitration for Sport.
The Athlete alleged that the RLVB did not respect the time limits and requirements for result management, thereby hindering the Athlete to trace the origin of the prohibited substance found and impeding his possibilities to defend himself. The Athlete also submits that the irregularities in the chain of custody of his sample render the results of the analyses unreliable. Finally the Athlete argued that there are alternative explanations for the origin of Probenecid found in his urine.
The Panel fails to see how the time span between the Tour and the notification of the results of the testing of the A-sample has significantly limited the Athlete’s ability to reconstruct his alimentation during the Tour. It therefore concludes that there is no breach of Article 206 ADR, nor of Article 5.2.6.5 ISL.
The Panel considers that the appropriate legal framework requires the Athlete to establish that the departure from any International Standard can reasonably have caused the AAF. The Athlete did not establish any such circumstances and the Panel therefore dismiss the argument of the Athlete.
Also the Panel finds that the Athlete failed to establish, on a balance of probabilities, how the prohibited substance entered his system.
The Panel concludes that there is no room for deviating from the sanction as imposed by the RLVB and there is no room to lower the fine on the basis of the fact that the Athlete could not compete, and thus had no income from cycling, after his suspension.
Therefore the Court of Arbitration for Sport decides on 23 July 2013 that:
1.) The appeal filed by Matti Helminen on 8 November 2012 is dismissed.
2.) The decision issued on 18 October 2012 by the Disciplinary Committee on Doping of the Royale Ligue Vélocipédique Belge (RLVB) is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
