CAS 2008/A/1744 Union Cycliste Internationale (UCI) v. Monika Schachl & Österreichischer Radsport Verband (ÖRV)
- Cycling
- Doping (failing to submit to sample collection)
- Interpretation of the anti-doping rules of an international federation
- Burden of proof of the athlete’s failure to submit to a sample collection
- Duty of reserve athletes to check in for sample collection
- Possibility to raise alternative defences (exceptional circumstances and compelling justification)
- Duty of an athlete to choose his coach with significant care
- No significant fault or negligence
- Disqualification of results
- Detachment of disqualification from ineligibility
1. Where ambiguity or lacunae exist in the applicable anti-doping rules, or when interpreting those rules, it is open to consider the persuasive value of other sports laws and jurisprudence decided under other sports laws. Indeed, the broad implementation of the WADA Code by sports organizations around the world has given rise to a rich lex sportiva of statutes and jurisprudence that is frequently cited by sports arbitration panels.
2. The international federation (IF) bears the burden of proving that the athlete has failed to submit to an anti-doping sample collection. Unlike cases involving positive analytical tests, there is no provision in the anti-doping rules that explicitly shifts the burden of proof to the athlete after the showing of a basic set of minimum facts. The burden upon the IF encompasses more than just the showing of the fact of the missed test. The IF is also obligated to demonstrate that the doping control testing was conducted in a manner consistent with the requirements in the anti-doping rules of the IF. However, the IF’s burden does not include the obligation to prove that there was no compelling justification for failing to submit to the anti-doping test. A “compelling justification” is a defence that is for athletes to raise and substantiate if and after the IF has successfully discharged its burden of proof under its rules.
3. According to the UCI Rules “reserve Riders must check in for Sample collection within the prescribed time limit, even if they would not be required to submit to Sample collection”; in this respect, the UCI anti-doping rules are applicable to reserve riders exactly as for those who are eventually selected for testing.
4. The compelling justification defence is a complete defence. By contrast, the “No Significant Fault or Negligence” defence, permits only a reduction of a sanction for an anti-doping violation; it is not a complete defence. There is a clear and understandable hierarchy between the sanctions under the “compelling justification” defence and the “No Significant Fault or Negligence”. According to the CAS case law, there is no difficulty or objection to assessing the athlete’s defences with an appreciation for the hierarchy that exists between these two defences, despite the defences’ semantic similarities.
5. It is commonplace that ignorance on the part of an athlete’s coach of the proper law of his discipline is not a defence. Moreover, athletes cannot escape culpability for anti-doping rule violations by delegating all of their responsibilities to their coaches and their support personnel; such a result would eviscerate the fight against doping in sports. Athletes must therefore select their coaches or doctors with significant care, provide them with the necessary information, and supervise them to a certain extent, because errors by support personnel will be attributable to them in all but the most exceptional circumstances.
6. There is no significant fault or negligence if, by comparison to exceptional circumstances, the athlete’s fault or negligence that contributed to the anti-doping rule violation was not significant. Exceptional circumstances comprise rules regarding the post-competition testing which are difficult to read, confusing, and contain contradictions.
7. A rule providing that in a failure to submit a sample collection, in case the athlete establishes that he/she bears No Significant Fault or Negligence, the athlete’s results obtained in other competitions shall not be disqualified, applies in the context of an event encompassing several competitions. Its rationale is that results in other competitions within one and the same event are presumed not to have been affected by a failure to submit to sample collection with no significant fault or negligence in a competition within that event. This rationale would seem to apply a fortiori to competitions that have taken place outside the scope of an event in which an athlete has failed to submit to sample collection with no significant fault or negligence.
8. Ineligibility cannot be severed from disqualification in the absence of a clear provision in the applicable rules supporting such severance, for example, in cases in which the period of ineligibility begins before the date of the award and where the nature of the violation of the applicable rules is such that it can be presumed that the violation has not affected the results in other competitions in which the athlete has participated during the period of ineligibility prior to the award.
In August 2008 the International Cycling Union (UCI) reported an anti-doping rule violation against the Austrian professional cyclist Monika Schachl for her failure to submit to sample collection.
The Anti-Doping Inspector and the chaperone reported in August 2008 that at the race in question they were unable to find the selected Athlete following her arrival in a very large group crossing the finish line. Thereupon at the material time the Athlete nor the team manager could be found because the team had already left the venue.
After the race the Athlete was contacted by telephone about the missed anti-doping control test. She immediately returned and arrived at the site 3 hours after the race.
However at the Doping Control Center the Athlete was too late to provide a sample. The female doctor had already left and the Doping Control Station had run out of kits for sample collection.
Considering the circumstances in this case the Legal Commission of the Austrian NADO, on behalf of the ÖRV, concluded on 18 September 2008 that the Athlete had not committed an anti-doping rule violation.
Hereafter in December 2008 the UCI appealed the ÖRV decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose an appropriate sanction on the Athlete.
The Athlete asserted that she had a compelling justification for failing to submit to doping control on a timely basis and requested for a reduced sanction. Alternatively she asserted that she failed to submit to doping control on a timely basis in spite of the fact that her fault or negligence was not significant.
The Panel considers that there are a number of exceptional circumstances in this case that contributed significantly to the occurrence of Schachl’s anti-doping rule violation. Following assessment to these exceptional circumstances, the Panel deems that Schachl’s fault or negligence that contributed to the anti-doping rule violation was not significant.
Therefore the Court of Arbitration for Sport decides on 27 July 2009:
1.) The award of the Rechtskommission of the Nationale Anti-Doping Agentur Austria GmbH of September 18, 2008, case number 2/2008 in the case of Ms. Monika Schachl, is set aside.
2.) Ms. Monika Schachl is declared ineligible for a period of one year, commencing on August 27, 2008, and concluding on August 26, 2009.
3.) Ms. Monika Schachl’s results from after August 27, 2008, until the date of this Order are disqualified. Ms. Schachl’s results from the second stage of the Sparkassen Giro on August 3, 2008, are also disqualified.
4.) (…).
5.) (…).
6.) To the extent specified in paragraphs 2, 3 and 4 of this Order, the appeal filed by the Union Cycliste Internationale on December 19, 2008, is upheld.
7.) All other requests for relief are rejected.
