CAS 2010/A/2174 Francesco De Bonis v. Comitato Olimpico Nazionale Italiano (CONI) & Union Cycliste Internationale (UCI)
Cycling
Doping (Athlete’s Biological Passport, ABP)
Arbitrability of a dispute according to Swiss law
Article R56 of the CAS Code and production of new documents
Admissibility of the ABP as evidence –Panel’s appreciation of the Experts’ opinion
ABP as a scientific method for the detection or ascertainment of an anti-doping rule violation
Right of an athlete to collect his own samples or to have them collected by a third person
1. The proceedings before CAS are governed by Swiss law and, in particular, by the Swiss Federal Act on Private International Law (PILA): in this respect, a dispute is arbitrable independently of any classification by the Italian law of the appealable decision as an act of administrative law.
2. Article R56 of the CAS Code does not exclude the submission of documents in CAS proceedings that were not produced in the previous instance. Instead the provision refers to the production of documents after the closing of submissions in proceedings before the CAS. Furthermore, the power to admit evidence not produced in the previous instance(s) has been expressly affirmed by CAS.
3. A CAS Panel is in a position to evaluate and assess the weight of a (party-appointed) expert opinion submitted to it. It does so by evaluating the facts, on which the expert opinion is based and by assessing the correctness and logic of the conclusions drawn by the experts. In fulfilling this task the Panel takes into account the statements and opinions of (all) the parties. It is on the basis of this evaluation and balancing of the various submissions that the Panel will form its own opinion on the facts and consequences that follow thereof. This opinion may be in line with the evidence provided by a party-appointed expert. However, the contrary may be equally true. The Panel’s activity is, thus, not a “pure referral” to some other’s opinion.
4. The ABP does not establish new anti-doping rule. Instead, the ABP is – in essence – a method to detect an anti-doping rule violation. As long as the “enhancement of oxygen transport” already constituted an anti-doping rule violation at the time of the first sample taking, there is no issue of a retrospective application of an anti-doping provision. It is the application of a certain scientific method in order to detect or ascertain an anti-doping rule violation. As such, the use of the newest and most advanced scientific methods in order to uncover anti-doping rule violations is perfectly legitimate, provided that these techniques do not violate fundamental human rights and that they can be considered as a “reliable means” by virtue of Article 3.2 of the WADA Code.
5. For the good functioning of the fight against doping, a system in which the doping controls are carried out exclusively by anti-doping organizations is essential. The doping controls cannot depend on the athletes’ will to be “controlled” and that, obviously, the athletes cannot be the “controller” and the “controlled” at the same time. The latter would, however, be the case if the athlete would be allowed to collect his own samples, or to have them collected by a third person (even an analyst) at the time he wishes or deems appropriate.
In June 2009 the UCI reported an anti-doping rule violation against the Italian cyclist Francesco De Bonis after an UCI Expert Panel concluded unanimously in June 2019 that the Athlete’s hematological profile showed that he used a prohibited method. The Expert Panel had considered and exluded any other explanation, physiological or pathological.
This conclusion of the UCI Expert Panel is based on assessment of blood samples, collected in the period from 27 November 2007 until 18 May 2009 reported in the Athlete’s Biological Passport (ABP).
In addition the Paris Lab reported in July 2009 that the Athlete’s blood sample, collected on 7 May 2009, tested positive for the prohibited substance Methoxy polyethylene glycol-epoetin beta (CERA).
Consequently on 27 May 2010 the Italian Tribunale Nazionale Antidoping (TNA) decided to impose a fine and a 2 year period of ineligibility on the Athlete.
Hereafter in July 2010 the Athlete appealed the First Instance Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the TNA Decision of 27 May 2010 or to impose a reduced sanction. Both CONI and UCI requested the Panel to dismiss the Athlete’s appeal and to uphold the TNA Decision.
The Athlete argued that alleged irregularities occurred in the chain of custody and in the proceeding before TNA. He disputed the admissibility and reliability of the ABP and the validity of the test for CERA.
The Panel finds that any possible irregularity that occurred in the proceedings before the TNA must be considered cured and there are no reasons for not admitting the production of the documentation at issue.
The Panel holds that the ABP can be evaluated and assessed and is not excluded from the evidence. The Panel deems that the evidence show that the whole ABP procedure followed the requested WADA and UCI standards and it provides a satisfactory level of reliability. The Panel upholds the conclusion of the UCI Expert Panel that the Athlete’s hematological profile showed that he used a prohibited method.
The Panel dismissed the Athlete’s request for a new ABP established on the basis of blood values that were taken on his initiative and analysed by private laboratories. Also the Panel does not accept the Athlete’s argument that in the chain of custody a mixing up of samples could have occurred. Finally the Panel considers that the analysis conducted on the Athlete’s sample of 7 May 2009 for CERA was legitimate and that the results obtained thereof constitutes further evidence in the case at hand that the Athlete breached the applicable anti-doping rules.
Therefore the Court of Arbitration for Sport decides on 15 June 2011:
1.) The appeal of Mr. Francesco De Bonis against the decision No. 15/2010 of the Tribunale Nazionale Antidoping, dated 27 May 2010, is dismissed.
2.) The decision No. 15/2010 rendered on 27 May 2010 of the Tribunale Nazionale Antidoping is confirmed, including the ban and financial sanctions.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.
