CAS 2018/A/6069 André Cardoso v. Union Cycliste Internationale (UCI)
Related case:
UCI-ADT 2018 UCI vs André Cardoso
November 15, 2018
- Cycling
- Doping (recombinant EPO)
- Application of the CAS rules in case of a dispute before the CAS
- Dinstinct means of establishing an ADRV
- Confirmation by a B sample in “use” cases
- Hierarchy of norms
- Burden and standard of proof in “use” cases
1. By agreeing to hold a UCI licence, a rider consents to the jurisdiction of the CAS, which necessitates the application of the CAS rules in case of dispute. Within the CAS Code, it is not possible for a person not on the mandatory list of arbitrators to be appointed as an arbitrator in a CAS panel or for CAS rules not to apply.
2. Both the World Anti-Doping Code (WADC) and the UCI Anti-Doping Rules (ADR) differentiate, deliberately, between “presence” cases and “use” cases in their provisions. While not infrequently responsible bodies may bring charges of an anti-doping rule violation (ADRV) under both provisions, it does not follow that a charge cannot be made good under one, but not the other.
3. There is no indication in the language of Article 2.2 of the UCI ADR that confirmation of the presence of a prohibited substance in the A sample by analysis of the B sample is essential in a charge of “use”. In addition, the comment to Article 2.2 (i) indicates that such a charge may be established by ‘any reliable means’ and (ii) expressly states that “Use may be established based upon the reliable analytical data from the analysis of an A Sample” (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the Anti-Doping Organization provides a satisfactory explanation for the lack of confirmation in the other Sample”. The provision in which the parenthesis appears is clear both in its intent and in its effect. Where the analysis of the A sample provides reliable analytical data to establish the use, there is no need for confirmation by a B sample assuming that the lack of confirmation is sufficiently explained by the Anti Doping Organization.
4. When creating new rules and regulations, the relevant organs are bound by the limits imposed on them by higher ranking norms, in particular the association’s statutes. This follows from the principle of legality. According to this principle, regulations of a lower level may complement and concretize higher ranking provisions, but not amend nor contradict or change them. The WADC is a regulation of a higher ranking than the International Standard for Laboratories; accordingly it is not possible to allow any provision of the latter to trump a provision of the former.
5. Where only a “use” case can be advanced, the anti-doping authority has to prove both that: (a) the A sample positive result is reliable; and (b) there is a satisfactory explanation for the lack of confirmation in the B sample and (c) on both issues to the standard of “comfortable satisfaction”.
In June 2017 the International Cycling Union (UCI) reported an anti-doping rule violation against the Portuguese Rider André Cardoso after his A-sample tested positive for the prohibited substance rhEPO. However the Rider’s B-sample did not confirm the test result of the A-sample, nor the analysis of his blood sample provided on the same day as the urine sample on 18 June 2017.
Nevertheless in first instance the Sole Arbitrator was comfortably satisfied by the assessment of the evidence at hand that the conditions established by Article 2.2 of the UCI ADR (and the comment thereto) which allow a Use Anti-Doping Rule Violation (ADRV) to be established based upon (a) reliable analytical data from the analysis of an A-sample alone (without confirmation from an analysis of a B-sample) and (b) where the prosecuting authority provides a satisfactory explanation for the lack of onfirmation in the other sample, are satisfied in this matter.
Moreover, the Sole Arbitrator in first instance deemed that the Rider failed to substantiate that the presence of rhEPO in his A-sample resulted from an accidental swap of samples or a congenital / ethanol-induced disorder or a microbial activity. Therefore, the Single Judge concluded that the Rider had committed an ADRV under Article 2.2 of the UCI ADR. Consequently the UCI Anti-Doping Tribunal decided on 15 november 2018 to impose a 4 year period of ineligibility on the Athlete, including disqualification of his results, a fine and payment of costs.
Hereafter in December 2018 the Athlete appealed the UCI decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to acquit him of any anti-doping rule violation.
Further the Athlete raised procedural claims regarding the CAS legal aid system and process. He claimed damages and raised also substantive claims regarding the Appealed Decision.
The Athlete’s position was that an ADRV on the basis of the analysis of urine is exclusively governed by Article 2.1 of the UCI ADR, which concerns the presence of a Prohibited Substance in an athlete's sample and that, on the facts of the case, the conditions set forth in Article.2.1 to conclude to an ADRV are not satisfied. The Athlete also denied that the requirements of Article 2.2 UCI ADR (even if applicable, quod non) are met.
The UCI's contended that the UCI ADR expressly provides for an ADRV for use, which is based solely on the analytical data of the analysis of the A-sample governed by Article 2.2 of the UCI ADR, and that, on the facts of the case, Article 2.2 is satisfied.
Following assessment the Panel rejects the Athlete's argument regarding the overall fairness of the CAS proceeding and CAS rules. The Panel finds that it has jurisdiction and that the appeal is admissible.
Considering the expert evidence in this case generally the Majority of the Panel finds the UCI's experts more persuasive than those of the Athlete, who appeared to be sceptical about the generally accepted methodology used to identify exogenous EPO which is a matter beyond the scope of the Panel's deliberations.
Overall, the Panel deems that the Athlete's experts did not seriously challenge the presence of rhEPO but rather attempted to provide explanations for the Adverse Analytical Finding, none of which convinced the Panel.
The Panel concludes that the UCI has established the existence of an ADRV under Article 2.2 of the UCI ADR based on the reliable analytical data from the A sample of the Athlete and the UCI experts' evidence to the comfortable satisfaction of the Panel.
In light of this conclusion, the Panel does not need to turn either, whether as a matter of jurisdiction or of the merits, to the question of the damages sought by the Athlete, which has become moot.
The Panel finds that the Athlete’s sanction could not be reduced on the basis of "No Fault or Negligence" or "No Significant Fault or Negligence," which was in any event not argued by him.
Finally the Panel holds that the fine ordered in the Appealed Decision failed to take into consideration the financial situation of the Athlete, resulting from his provisional suspension and accordingly reduces it by 50%.
Therefore the Court of Arbitration for Sports decides on 10 February 2021 that:
1.) The Panel has jurisdiction to hear the appeal filed by Mr. André Cardoso on 14 December 2019.
2.) The appeal filed by Mr. André Cardoso against the decision rendered by the UCI AntiDoping Tribunal on 15 November 2018 is partially granted.
3.) The fine imposed on Mr. André Cardoso in the decision rendered by the UCI AntiDoping Tribunal on 15 November 2018 is reduced to EUR 26,000; the decision rendered by the UCI Anti-Doping Tribunal on 15 November 2018 is confirmed in all other respects.
4.) The award is pronounced without costs, except for the Comi Office fee of CHF 1000 (one thousand Swiss Francs) paid by Mr. André Cardoso, which is retained by the CAS.
5.) Each Party will bear their own costs incurred in connection with these arbitration proceedings.
6.) All other motions or prayers for relief are dismissed.
