CAS 2011/A/2469 World Anti-Doping Agency (WADA) v. Doping Board of the Danish Sport Confederation & Philipp Nielsen, partial award of 4 October 2011
Cycling
Doping (clenbuterol)
Meaning of the “case file” of the hearing body of the National Federation
Transmission of the case file by third parties and time limit to file an appeal to the CAS
1. According to Article 334 of the UCI Anti-Doping Rules (UCI-ADR), as long as WADA timely requests the case file, the time limit to file the statement of appeal to the CAS begins upon WADA’s “receipt of the full case file from the hearing body of the National Federation”. The full “case file” within the meaning of the aforementioned provision is a file provided upon request by WADA by the hearing body of the national federation after the decision by the national hearing body has been notified to WADA. In fact, a transmission of documents to WADA in the course of the national proceedings is not even provided for in the UCI-ADR, with the exception of the request for disciplinary proceedings. If the national hearing body provides WADA with any other documents before a decision is taken, this transmission is outside the scope of the UCI-ADR. Such documents can therefore not be regarded as a “case file” within the meaning of Article 334 UCI-ADR.
2. Even if a transmission of the case file by third parties (i.e. by UCI, not the national hearing body) is regarded as sufficient, the time limit of Article 334 UCI-ADR can only be triggered once the competent body declares, at least implicitly, that the documents provided to the requesting body indeed constitute the complete case file. This interpretation is necessary to protect the appellant’s right to take an informed decision about whether to file an appeal or not.
On 21 March 2001 the Danish Doping Board decided not to sanction the cyclist Philipp Niesen and to lift the provisional suspension after his A and B samples tested positive for the prohibited substance Clenbuterol. Here the Danisch Doping Board established that the Athlete successfully showed that he bore No Fault or Negligence.
The World Anti-Doping Agency (WADA) received the complete case file in June 2011 and hereafter it appealed the Danish decision with the Court of Arbitration for Sport (CAS). However the Danish Doping Board and the Athlete contended that the appeal is inadmissible because it was not filed within the time limit. They argued that WADA already had received all relevant documents in February 2011.
The Panel deems that the WADA Appeal is admissible, in particular, it was timely filed. Based on the submissions between the parties about the transmission of the case file the Panel establish that the time limit to file an appeal with CAS begun to run on 18 May 2011.
Therefore the Court of Arbitration for Sport decides on 4 October 2011:
1.) The appeal filed on 8 June 2011 by the World Anti-Doping Agency is admissible.
2.) The decision on all other prayers for relief including costs connected with the present partial award shall be reserved to the final award.
