CAS 2016/A/4828 Carlos Iván Oyarzun Guiñez v. Union Cycliste Internationale (UCI) & UCI Anti-Doping Tribunal (UCI-ADT) & Pan American Sports Organization (PASO) & Chilean National Olympic Committee (CNOC)
Related case:
UCI-ADT 2016 UCI vs Carlos Oyarzun
September 16, 2016
Cycling
Doping (molecule FG-4592)
Standing to be sued
Inadmissibility of evidence regarding “presence” of a prohibited substance affected by improper B sample notification
Admissibility of evidence regarding the establishment of “use” of a prohibited substance
Conditions to benefit from a reduced sanction
1. The question of standing to be sued is a matter related to the merits. An organ of a federation such as the UCI-ADT does not, as such, have a legal personality and therefore has no standing to be sued. Likewise, entities which were not parties in the procedure in front of the first instance body have no standing to be sued and the appeal must be dismissed in so far as they are concerned.
2. The athlete’s right to attend the opening and analysis of the B Sample is of fundamental importance and if not respected, the B Sample results may be disregarded. The failure to properly notify the athlete with sufficient, reasonable reaction time to secure his/her attendance affects the admissibility of the analytical results of both samples for establishing an anti-doping rule violation (ADRV) for “Presence” of the prohibited substance. Yet, the fact that the analytical results of a B Sample cannot be used to establish an ADRV for “Presence” because it was obtained in breach of the athlete’s fundamental right to attend the opening and analysis of said sample does not preclude the competent authorities to take this sample into account for a “Use” violation. In such a situation, the sample in question must be regarded with particular care and cannot by itself be sufficient to establish a “Use” violation.
3. According to the comment to Article 2.2 of the UCI Anti-Doping Rules (UCI-ADR), Use or Attempted Use may be established by other reliable means which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1. In this respect, valid existing urine samples, blood samples as well as an athlete’s blood profile and the conclusions drawn from the correlating expert reports are admissible for establishing an ADRV under Article 2.2 as they constitute corroborating evidence.
4. To benefit from a reduced sanction, the athlete bears the burden of establishing that the ADRV was not intentional within the meaning of Article 10.2.3 of the UCI-ADR. The standard of proof imposed on the athlete is a “balance of probability”, as provided by Article 3.1 of the UCI-ADR. There could be cases, although extremely rare ones, in which a panel may be willing to accept that an ADRV was not intentional although the source of the substance had not been established. But, as a general matter, proof of source must be considered an important and even critical first step in any exculpation of intent. In this respect, the fact that the substance used at the time of the ADRV was still in clinical trial and, thus, not available on the market, precludes the athlete to demonstrate that the prohibited substance could have unintentionally entered his/her body. Consequently, no reduction of the period of ineligibility can be justified by an established lack of intent. For the same reasons, no reduction of the sanction based on No Fault or Negligence or on “exceptional circumstances” can be granted.
In July 2015 the Pan American Sports Organisation (PASO) has reported an anti-doping rule violation against the Chilean cyclist Carlos Iván Oyarzun Guiñez after his A and B samples tested positive for the prohibited substance FG-4592. As a consequence on 26 August 2016 the Anti-Doping Tribunal of the International Cycling Union (UCI-ADT) decided to impose a 4 year period of ineligibility on the Athlete including a payment of a fine and costs.
Hereafter in October 2016 the Athlete appealed the decision of the UCI-ADT with the Court of Arbitration for Sport (CAS).
The Athlete denied the intentional use of the substance and requested the Panel to set aside the UCI-ADT decision of 16 September 2016 and to reinstate him to sports participation.
The Athlete disputed the validity, admissibility and reliability of the evidence and claimed that departures occurred of the applicable Rules and Standards.
The Panel finds that the UCI-ADT, PASO and CNOC have no standing to be sued in this case and that the Appeal must be dismissed in so far as they are concerned.
The Panel concludes that the Athlete has not been able to rebut the presumption, as he did not establish that the alleged departures, if any, could have caused the positive analytical findings. In view of the fact that it is not contested that the urine A and B Samples contained FG-4592 and of the circumstance that there is reliable evidence that the variations in the blood profile of the Athlete are fully consistent, on temporal, physiological and scientific bases, with the use of FG-4592, the Panel is comfortably satisfied that the Athlete used FG-4592 and, thus, breached Article 2.2 of the UCI-ADR. In the opinion of the Panel, the Athlete also clearly failed to rebut the legal presumption of having committed the ADRV intentionally.
Therefore the Court of Arbitration for Sport decides on 31 May 2017 that:
1.) The appeal filed by Mr Carlos Ivan Oyarzun Guifiez on 16 October 2016 is dismissed.
2.) The decision rendered by the UCI Anti-Doping Tribunal on 26 August 2016 is confirmed.
3.) The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Mr Carlos Ivan Oyarzun Guifiez, which is retained by the CAS.
4.) Mr Carlos Ivan Oyarzun Guifiez is ordered to pay to the UCI a total amount of CHF 3,500 (three thousand five hundred Swiss Francs) as contribution towards the expenses incuned in connection with these arbitration proceedings.
5.) All other motions or prayers for relief are dismissed.
