Award and Decision of the Arbitrators & Dissenting Opinion
Christopher L. Campbell, concurring in part and dissenting in part
October 16, 2003
The Respondent, Amber Neben, is a 28 old professional cyclist and a member of the T-Mobile Women’s Cycling Team, a trade team owned by USA Cycling and sanctioned by the international federation for the sport of cycling, Union Cycliste International (UCI).
The Respondent is subject to testing by USADA and UCI.
Respondent has been tested a number of times and all results have been negative. She tested negative in a test nine days before her positive test and had two negative tests three and four days after her positive test.
On May 31, 2003, during the Coupe du Monde Montreal, Respondent provided a urine sample at the request of UCI. On June 4, 2003, the laboratory screening test performed from the A sample indicated the presence of an anabolic steroid. The A confirmation test was performed on June 30, 2003, and it revealed the presence of 19-norandrosterone. On July 14, 2003, the laboratory tested the B sample positive for 19-norandrosterone.
Respondent accepted a provisional suspension commencing on July 13.2003. The evidentiary hearing took place on October 1 and 2, 2003, in Denver, Colorado. An expedited preliminary decision was requested. The Interim Award and Decision was issued October 6, 2003.
The Respondent presented a impressive list of witnesses. The Panel is satisfied that the Respondent has an outstanding reputation in the cycling community and is respected by both team members and officials of USA Cycling.
The Panel is, however, disturbed by the testimony from the USA Cycling witnesses and officials. It is obvious that the organization has acted in complete disregard of its athletes, in particular, those below the elite level. There appears to be little to no attempt at communicating the dangers of contaminated supplements to the thousands of USA Cycling athletes. In fact, the testimony indicated that many officials believe that the use of supplements is “necessary” in order to succeed at the elite level. The fact that USA Cycling encouraged the use of supplements, including Hammer Nutrition products, underscored the tot disregard for the warnings USADA and IOC have issued for years. To the Panel, it is inconceivable that such a highly regarded organization could disregard its obligation to its athletes.
Regardless of the inaction or neglect of the cycling community, the athlete must make the final determination as to his/her intake. If these athletes read any of their USADA materials and Respondent apparently did not read it carefully, the message is quite clear that there are numerous risks associated with ingesting these supplements, including the extreme danger to the athlete’s health. While Respondent seemed to acknowledge these risks, her desire to compete apparently overroad those concerns.
The Panel also determines that UCI bears some responsibility in this case. Rather than undertake a thorough investigation of the issues involved in the case, UCI issued its opinions and recommendations. It appears that no effort was made to undertake an examination of USA Cycling’s role in this situation.
The North American Court of Arbitration for Sport Panel decides as follows:
- A doping violation occurred on the part of Respondent. The Panel finds that this was not an intentional doping violation.
- The minimum suspension from all competition for a first offender of two (2) years to take place effective from July 13, 2003 is imposed on Respondent pursuant to UCI Regulations.
- Respondent is prohibited from participating in any capacity whatsoever in any events sponsored by UCI, USOC, or USA Cycling during the 6-mondth period of time from July 13, 2003.
- Prior to the end of the 6-month period, Respondent will meet with her fellow T-Mobile team members and the athletic staff of USA Cycling and discuss with them the USADA and IOC warning on the possible contamination of dietary supplements, including vitamins and minerals. In addition, Respondent will meet at least once with the other licensed elite cyclists of USA Cycling, along with the athletic staff of USA Cycling, to also discuss with them the above USADA and IOC information. She will confirm in writing to USADA that she has completed these conditions of her probation.
- During the term of her full probation, Respondent will submit to urine drug testing at her expense on a monthly basis by an IOC accredited laboratory. If Respondent tests positive during any of this time, her probation will be revoked, any and all competition results will be cancelled in compliance with UCI Regulations, and she will serve the remainder of the two-year suspension, commencing from the time of another positive test result.
- A fine of CFH 700 is assessed against Respondent.
- All competitive results which occurred on or after May 31, 2003, are cancelled.
Christipher L. Campbell, concurring in part and dissenting in part:
Research proved that 18% of vitamin supplements contain substances, not listed on their labels, which are prohibited by the Olympic Movement Anti-Doping Code.
This Panel is now being asked to severely penalize Ms. Neben, who is the likely victim of a contaminated supplement, under a theory of preserving a level playing field for athletes. As arbitrators, it is not our place to debate the rationality of such a rule. However, it is our duty to apply the law to the facts of Ms. Neben's case:
- Limits of the Strict Liability Rule
- Ms. Neben did not inted to place a prohibited substance in het body
- Strict Liability Rule does not apply to sanctions regarding future competitions
- Ms. Neben was not negligent in taking vitamin supplements for her sport of road racing
- Negligence test
