CAS 2021/A/7628 Fabián Hernando Puerta v. Union Ciclista Internacional (UCI)
UCI-ADT 2020 UCI vs Fabian Hernando Puerta Zapata
December 16, 2020
On 16 December 2020 the UCI Anti-Doping Tribunal decided to impose a 4 year period of ineligibility on the Colombian Rider Fabian Hernando Puerta Zapata after his A and B samples tested positive for the prohibited substance Boldenone.
In First Instance the Athlete denied the intentional use of the substance and argued with expert opinions that his positive tests were the result of his consumption of Boldenone contaminated meat on the evening before the doping control. He asserted with evidence that Boldenone is widely used in farming of beef cattle in Columbia.
After consultation with external scientific experts the UCI rejected the Athlete's explanation because the concentration Boldenone found in his samples was not consistent with the alleged consumption of contaminated meat. Moreover the found concentration was consistent with the intentional injection of Boldenone 1-2 days before the test.
Herafter in January 2021 the Athlete appealed the UCI-ADT Decision with the Court of Arbitration for Sport (CAS).
The Athlete argued that the anti-doping rule violation for which he was sanctioned was not committed intentionally and, therefore, the Panel must set aside the Appealed Decision, reduce his sanction to a two-year period of ineligibility under Article 10.2 of the UCI ADR, and eliminate the mandatory costs imposed on him under Article 10.10.2 of the same.
Further the Athlete complained that the delays in the UCI investigation and proceeding were unacceptable and unfair. The UCI, on the other hand, sought to have the Appealed Decision upheld. The UCI contended that the Athlete has failed to prove on a balance of probability that the violation committed was not intentional.
Regarding the Athlete's procedural complaints the Panel finds that there is no indication that the UCI or the UCI Tribunal purposely delayed the investigation of final decision. Also no procedural violation occurred regarding UCI's consultation with WADA and the Panel observes that the UCI Single Judge considered and addressed explicitly or implicity in no little detail all of the Athlete's evidence and arguments.
In view of the evidence in this case the Panel finds that the presence of the prohibited substance Boldenone has been established in the Athlete's samples and accordingly that he committed an anti-doping rule violation.
The Panel holds that the Athlete only established that he ate meat on the night before the positive doping test and that there is a possibility that the AAF resulted from meat contamination. However, the Panel concludes that he has failed to:
- (i) sufficiently trace the origin of the meat;
- (ii) prove there is a systematic and significant Boldenone meat contamination problem in Antioquia or Colombia;
- (iii) prove that there is a probability that the AAF resulted from meat contamination; and
- (iv) rule out other routes of ingestion (in particular, the intentional oral intake of Boldenone, which in reality appears to the Panel to be the most probable scenario).
Under such circumstances and even considering the Athlete's clean history, the Panel finds that the he failed to establish on a balance of probability that the ADRV was not intentional for the purposes of 10.2 of the UCI ADR.
Therefore the Court of Arbitration for Sport decides on 10 November 2021:
- The appeal filed by Fabian Hernando Puerta against the decision of the UCI AntiDoping Tribunal rendered on 16 December 2020 is dismissed.
- The decision of the UCI Anti-Doping Tribunal rendered on 16 December 2020 is confirmed.
- The award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by Fabian Hernando Puerta, which is retained by the CAS.
- Each Party shall bear its own legal fees and other expenses incurred in connection with this arbitration.
- All other or further requests or motions submitted by the Parties are dismissed.