CAS 2016/A/4648 Blaža Klemenčič v. Union Cycliste Internationale (UCI)
Related case:
UCI-ADT 2016 UCI vs Blaža Klemenčič
May 20, 2016
Cycling (Mountain bike)
Doping (EPO)
Ne bis in idem principle and standing to appeal
Substantive law and procedural law in the meaning of Article 25.2 UCI ADR
Retesting of samples in case of insufficient remaining A sample
Article 2.1.2 of the UCI ADR 2015 as evidentiary rule
Determination of “substantive anti-doping rule” in the meaning of Article 25.2 UCI ADR 2015
“Any reliable means” in the meaning of Article 3.2 WADC
Commencement of period of ineligibility in case of retesting of samples
1. It is a fundamental principle that an athlete who tests positive for a Prohibited Substance can never be subject to “a double punishment”, i.e. be sanctioned two times for having committed two different anti-doping rule violations both for “Presence” and for “Use”. Furthermore an appeal against a decision finding an athlete guilty of an anti-doping rule violation for either “Presence” or “Use” by which it is claimed that the judgment was based on the “wrong” provision (i.e. for example “Presence” rather than “Use”), would have to be dismissed due to lack of standing to appeal in case the athlete was nevertheless found guilty of an anti-doping rule violation based on an identical offence (i.e. “Use”) and with an identical sanction period. However, a request that the CAS panel confirms the appealed decision (as here for “Use”), but also holds that the athlete committed an anti-doping rule violation for “Presence” is admissible, as it falls under the CAS Panel’s general scope of legal review pursuant to Article R57 of the CAS Code.
2. In the absence of an exact definition in the World Anti-Doping Code (WADC), the UCI Anti-Doping Regulations (ADR), or in any relevant CAS jurisprudence, of the distinction between “substantive law and procedural law” in the meaning of Article 25.2 WADC (and Article 25.2 UCI ADR), the distinction between substantive and procedural law may only be found through the application of normal interpretation rules and principles, in particular the overall purpose of the rule prohibiting sanctions to be applied retroactively for violations which occurred prior to the effective date of a new version of rules.
3. Despite the fact that the rule of the UCI ADR 2012 which addresses the establishment of an anti-doping rule violation for the Presence of a Prohibited Substance did not foresee that in case insufficient urine remained in the A sample for the purposes of retesting the sample, the B sample would be split and a confirmation procedure would be carried out with the two B sample bottles, the said procedure could already be applied under the UCI ADR 2012 insofar as it was specifically foreseen in the 2012 International Standards for Laboratories (ISL), and the UCI ADR 2012 have to be read in conjunction with this ISL. Therefore, in case an A sample collected in 2012 is retested in 2015 by splitting the B sample, in legal terms this cannot be regarded as application of a rule introduced in 2015 that was not already available in 2012.
4. The last paragraph of Article 2.1.2 of the UCI ADR 2015, which foresees that in case insufficient urine remained in the A sample for the purposes of retesting the sample, sufficient proof of an anti-doping rule violation under Article 2.1 is also established in cases where the Rider’s B sample is split into two bottles, is an evidentiary rule which merely confirms how sufficient proof of an anti-doping rule violation may be established. It does not constitute a “substantive rule” in the meaning of Article 25.2 of the UCI ADR 2015 which means that the prohibition on retroactivity generally foreseen by Article 25.2 of the UCI ADR 2015 is inapplicable.
5. When analysing whether a certain anti-doping rule (here Article 21.1 UCI ADR 2012) qualifies as “substantive anti-doping rule” in the meaning of Article 25.2 of the UCI ADR 2015, not only the rule under examination, but also e.g. the applicable ISL have to be taken into account. This follows from the Introduction, Scope, and References Section of the ISL which stipulates that the WADC – and therefore also the UCI ADR – cannot be considered in isolation. That rather, in order to ensure optimal harmonisation and best practice in international and national anti-doping programmes, the World Anti-Doping Programme encompasses various elements, with the WADC (level 1), International Standards (level 2), and Models of Best Practice (level 3) being the main elements, which all have to be read in conjunction with each other.
6. The term “any reliable means” within the meaning of Article 3.2 WADC (as well as Article 23 of the UCI ADR 2012) is not supposed to be limited in any way through the examples contained in the Comments, and there is no indication whatsoever that these “means” should exclude analytical data.
7. It follows from the original intent behind the provision regarding delays not attributable to an athlete and possible credit for a served provisional suspension (Article 315 of the UCI ADR 2012) that it wasn’t intended to be applied in cases of retesting of samples, where the period between sample collection and establishment of the adverse analytical finding is usually long. Put differently, to fix the commencement of the period of ineligibility in retesting cases to the date of the collection of the sample (here in 2012) would usually contravene the possibility of retesting of an athlete’s sample, e.g. as here under an improved testing regime for the detection of EPO.
In 2015 the International Cycling Union (UCI) decided to retest the samples of the Slovenian cyclist Blaža Klemenčič. The Athlete’s samples were collected in March 2012 and the retesting was conducted in accordance with the new WADA Technical Document TD 2014EPO in order to reflect recent scientific developments in the detection of erythropoietin (EPO).
In September 2015 the UCI has reported an anti-doping rule violation against the Athlete after her 2012 A and B samples tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).
On 20 May 2016 the UCI Anti-Doping Tribunal decided to impose a 2 year period of ineligibility on the Athlete including a fine and disqualification of her results between 27 March 2012 and 31 December 2012.
Hereafter in June 2015 the Athlete appealed the decision of the UCI-ADT with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel to annul the UCI-ADT decision of 20 May 2016 and argued that the re-analysis of her samples was invalid under the UCI ADR 2012 to form the basis of an anti-doping rule violation. Also the Athlete asserted that departures occurred from the Rules, International Standards and Technical Documents.
The Panel finds that the UCI has had the right to start proceedings against the Athlete and the UCI has established to the comfortable satisfaction of the Panel that the Athlete has committed and anti-doping rule violation under the UCI ADR 2012. Also the Panel dismissed the Athlete’s claims for alleged departures from the applicable Rules, International Standards, or Technical Documents.
Considering the Athlete’s annual income from 2012 to 2016 the Panel holds that the imposed fine should reflect the Athlete's reasonable financial capacity today and thus it reduces the fine to 50 per cent of the annual gross income of the Athlete in 2016.
Therefore the Court of Arbitration for Sport decides on 3 March 2017 that:
1.) The appeal filed on 9 June 2016 by Blaža Klemenčič against the decision issued on 20 May 2016 by the UCI Anti-Doping Tribunal is partially upheld.
2.) The decision issued on 20 May 2016 by the UCI Anti-Doping Tribunal is confirmed and upheld, except that the reference to Article 21.2 of the UCI ADRin Section 1 of the decision is deleted and the monetary fine in Section 4 of the decision is reduced.
3.) The costs of the arbitration shall be free and the fee and costs of the Arbitrators shall be borne by CAS.
4.) Ms. Blaža Klemenčič shall pay CHF 1,000 (one thousand Swiss francs) in contribution to UCI's costs in connection with the present arbitration.
5.) All other prayers and motions for relief are dismissed.
