CAS 2004/A/651 Mark French vs Australian Sports Commission & Cycling Australia
- Appeal Partial Award
July 11, 2005 - Interlocutory Award
January 31, 2005 - Interlocutory Award
March 30, 2005
In December 2003 cleaners found in the guesthouse room previously occupied by the Australian cyclist Mark French a plastic bag of used syringes and needles in the cupboard and a bucket of the sort which normally contained protein powder, also containing used syringes and needles. This discovery was followed by an investigation conducted by the Australian Sports Commission (ASC) and Cycling Australia (CA).
Consequently in February 2004 the ASC and the CA reported anti-doping rule violations against the Athlete for:
(1) Trafficking in a prohibited substance, namely Glucocorticosteroid;
(2) Trafficking in a prohibited substance, namely equine growth hormone (eGH);
(3) Knowingly assisting a doping offence, namely assisting in trafficking glucocorticosteroid by others; and,
(4) Knowingly assisting a doping offence, namely assisting in trafficking equine growth hormone by others.
In the matter of trafficking the substance Glucocorticosteroid and equine Growth Hormone (eGH) the Court of Arbitration for Sport (CAS) Oceania Registry decided on 8 June 2004 to impose a 2 year period of ineligibility on the Athlete and a A$ 1,000 fine.
In the Final Arbitration Award the Athlete was further ordered to:
(1) return to the ASC a trek road bike;
(2) pay the ASC the sum of A$12,031.37 for the financial assistance they provided to the Athlete; and
(3) pay the sum of A$20,000 to the ASC towards the costs of their proceedings.
Hereafter in June 2004 the Athlete appealed the first instance decision of with CAS.
In this case the scope of the appeal became controversial between the parties. The Panel was unable to deal with that controversy until it was reconstituted in late January of 2005. The Panel issued two interlocutory rulings dated 31 January 2005 and 30 March 2005 in which the Panel interpreted the CAS Code and prescribed the scope of this appeal.
By the interlocutory rulings the ASC and CA were permitted to file a cross-appeal against the finding of the Arbitrator at first instance that the Athlete did not breach CA Anti-Doping Policy by committing a Doping offence by using eGH. The finding was that the particular was not proven or accepted. The cross-appeal of the ASC and CA relates to this single particular.
Through the interlocutory rulings, all parties were able to file new evidence before the Panel in the rehearing and cross-appeal that had not been called at the first instance. The Athlete and the ASC and CA both filed extensive new evidence before the Panel.
The Athlete admitted to injecting himself with vitamins, supplements and the product Testicomp but denied injecting eGH. He admitted to injecting these substances in the company of other athletes but testified and stated that he was unaware of any athlete, who was present with him injecting eGH.
The Panel finds that this Athlete’s admission of Testicomp does not amount to an admission that there has been use of a prohibitied substance due to the product Testicomp was tested negative for the presence of a prohibited substance. As a result the Panel can’t find that a breach of the CA Anti-Doping Policy has occurred and that all allegations in the matter of Testicomp are dismissed as not established.
The Panel concludes that the scientific evidence does not demonstrate to the necessary degree of satisfaction the Athlete’s use of eGH and thereby breached the CA Anti-Doping Policy.
In the matter of trafficking eGH the Panel holds that the evidence in this case establish, unlike to the substance Testicomp, that there is evidence that the phials found in the bucket contained a prohibited substance, i.e. eGH, and it is being undisputed that the substance is a prohibited substance under the CA and UCI Anti-Doping Rules.
Further the Panel finds that not has been established that the requisite significant degree of satisfaction of proof that the Athlete knew he was in possession of eGH. In the absence of that knowledge the allegation of trafficking in eGH cannot be upheld nor the allegations for aiding & abetting. Finally the Panel is unable to uphold the conclusions of the Arbitrator in first instance.
Therefore the Court of Arbitration for Sport decides on 11 July 2005 that:
1.) The decision of Arbitrator Holmes QC at first instance be set aside and replaced with this decision of the Appeal Panel. As a consequence the two year period of ineligibility imposed as a sanction is terminated immediately. As a further consequence the fine of A$1,000 Australian dollars ordered to be paid at first instance is to be returned to French within one week of the date herein.
2.) The first instance order to return the trek bike and A$12,031.37 by way of an athlete scholarship are to be included in the written submission referred to in order number four below.
3.) This being an appeal procedure this award is public under CAS Rule 59 unless the parties agree otherwise; and
4.) Costs associated with the first instance decision; the interlocutory proceedings; and this appeal by rehearing and cross-appeal will be considered but on the principles of CAS international and the CAS Rule 65. Counsel are directed to make a written submission not exceeding 10 pages double spaced as to their costs and the matters referred to in order number two above within 15 days of this award.
5.) The Court office filing fees paid by the ASC and by CA at first instance and the filing fee paid by the Appellant French each in the amount of A$500 are retained by CAS.
