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.

WADA statement on clenbuterol / World Anti-Doping Agency (WADA). - Montreal : WADA, 2011

WADA statement on clenbuterol

Following current media interest in relation to clenbuterol, WADA wishes to clarify the following:

1.) Clenbuterol is a prohibited substance and there is no threshold under which this substance is not prohibited.
2.) At present there is no plan to introduce a threshold level for clenbuterol.
3.) It is possible that under certain circumstances the presence of a low level of clenbuterol in an athlete sample can be the result of food contamination. However, each case is different and all elements need to be taken into account.
4.) Under the World Anti-Doping Code, result management of cases foresees the opportunity for an athlete to explain how a prohibited substance entered his/her body.
5.) Next week, WADA laboratory experts will meet, as they do regularly, and amongst other issues will discuss the situation with regards to clenbuterol. No decision will be taken at this meeting and any recommendation will then be reviewed and discussed at the WADA Health, Medical and Research Committee in view of the preparation of the 2012 List.
6.) The power to take a decision and to adopt the 2012 List is vested to the WADA Executive Committee, composed equally of the Sport Movement and Governments, that will meet in September.

WADA will refrain from making any further comment regarding clenbuterol until the review process has been completed.

CAS 2010/A/2162 Doping Control Centre, Universiti Sains Malaysia v. World Anti-Doping Agency (WADA)

• Doping
• Revocation of a laboratory’s accreditation
• CAS power of review
• Duty of a first instance body to act fairly
• Standard of proof
• Duty of a laboratory to be aware of and implement all WADA technical documents
• Absence of harm
• Duty of a laboratory to operate and be seen to operate according to implemented standards

1. The reference in art. R57 of the Code to the power to review the facts and law does not refer to the facts and law that were before the body producing the original decision. The facts and law referred to are rather those which bear on the issues in the appeal: CAS is restricted only by the subjective and objective limits of the case remitted to it. Any more limited interpretation would have the potential to create unfairness for both parties, by disabling an appellant as well as a respondent from adducing fresh relevant material before CAS. It would also place an obstacle in the path of sensible and speedy resolution of a dispute which is particularly desirable in the world of sport.

2. The fact that a first instance body’s decision may be cured by the appeal to CAS does not have as its corollary an absence of requirement for such first instance body to act fairly. It is obliged to obey the two basic rules of natural justice audi alteram partem and nemo judex in causa sua i.e. to let the party to know the case against it and to give it an opportunity to respond; and to have the issue determined by a body that both is and is seen to be impartial and independent. Failure to comply with these fundamental principles may incite the recipient of an adverse decision to appeal when it might not otherwise have done so. It also deprives the decision (and its reasoning) of such utility it might otherwise have by way of guidance for the CAS Panel in its appellate capacity. Moreover, it risks undermining the stature of the first instance body itself.

3. In a novel situation which does not concern a usual disciplinary case of a doping offence engaging the established test of “comfortable satisfaction”, it must be determined precisely what standard of proof should apply. It is not appropriate to assess whether a laboratory deserves revocation of accreditation in purely quantitative terms. The assessment must also be a qualitative one. Therefore, it is for a panel to decide on the balance of probabilities that the decision to revoke was wrong: WADA’s judgment must itself be accorded due deference, but the panel must nonetheless be persuaded that in all the circumstances, revocation is necessary to ensure the full reliability and accuracy of testing and the reporting of the same.

4. It is indisputable that a laboratory has an obligation to be aware of and implement all WADA technical documents. The plea of ignorance of the existence of key documentation because of technical or administrative problems faced by the laboratory aggravates rather than mitigates the offence.

5. The causation of loss by inappropriate actions is relevant to civil claims for compensation but not to disciplinary (or criminal) charges where it is the degree of fault and not its consequences which is relevant. Therefore, a plea that no harm was done by the errors is without weight.

6. The entire anti-doping system presupposes that, and can only work if, WADA-accredited laboratories actually operate in accordance with the International Standard for Laboratories and in accordance with their own Standard Operating Procedures. The credibility of the system also requires that laboratories be seen to operate in accordance with these standards: any doubts about one laboratory could very quickly jeopardise the entire system.

On 25 May 2010 the World Anti-Doping Agency (WADA) suspended the accreditation of the Malasian Doping Control Center in Penang with immediate effect. WADA deemed that the Center seriously and repeatedly had violated the ISL and relevant technical documents.

Hereafter in July 2010 the Centre appealed the WADA Decision with the Court of Arbitration for Sport (CAS). The Centre requested the Panel to declare illegal and unenforceable the imposed revokation of its accreditation.

WADA contended that the Centre is guilty of not solitary, but serial errors by way of imperfect sample analysis in breach both of the ISL and of its own Standard Operating Procedures (SOP). Also WADA asserted that these errors continued after a period of suspension in 2009.

The Panel assessed and addressed the existence and gravity of the analytical errors made by the Centre and established that the Centre had reported Adverse Analytical Findings (AAFs) for six athletes who did not dope. The Panel holds that the types of failures which led to these AAFs, and the Centre's attempt at explanation, raise serious questions about the Centre's managment.

The Panel concludes that the problems are growing, uncorrected at bench level and above and endemic. Without reform, of which there are no real signs, the reliability of the Centre’s work is suspect. The Panel therefore confirms WADA's revocation of the Centre's accreditation.

The Court of Arbitration for Sport decides on 15 June 2011:

1.) The appeal filed by Doping Control Centre, Universiti Sains Malaysia on 8 July 2010 is dismissed.

(…)

4.) All other and further prayers for relief are dismissed.

Respondent is a professional basketballer based in the USA. He had not secured a contract for any team in the 2010/2011 season and had not expected he would be able to do so. His agent then secured him a contract with the Nelson Giants in New Zealand which Respondent accepted. Respondent played his first game on April 16 2011 and was drug tested after it.
Drug Free Sport New Zealand (DFSNZ) has reported an anti-doping rule violation against the Respondent after his sample tested positive for the prohibited substance Cannabis. After notification a provisional suspension was ordered and Respondent was heard for the Tribunal.

Respondent admitted the violation. He gave evidence that he used cannabis with friends at the end of March when he thought there was no prospect of him competing. After the test he immediately told his coach there was a possibility he would fail the test because of his prior cannabis use in the USA. As a result of this voluntary statement, the Nelson Giants terminated his contract and he returned to the USA. The Tribunal noted that if he had not have made this voluntary statement it was likely he would have played several more games, and earned income, before the positive test result was known.
The Tribunal considered the aggravating and mitigating factors in this case. An aggravating factor was that he took a risk in playing when he knew there could be problems due to his cannabis use a few weeks earlier. Mitigating factors included:
1.) That his cannabis use in March 2011 was not in breach of the WADA Code or the Sports Anti-Doping Rules as he was not contracted at that time (although he was in breach later when testing positive in competition).
2.) His honesty in voluntarily disclosing to the Nelson Giants’ coach that he might fail the drug test and his explanation of the reason why, and his subsequent openness and co-operation with Drug Free Sport New Zealand.
3.) The significant adverse impact on him of his voluntary disclosure which led to the immediate termination of his contract with the Nelson Giants.

Therefore the Sports Tribunal of New Zealand decides to impose a 12 week period of ineligibility on the Respondent starting on the date of the provisional suspension, i.e. on 16 April 2011 until 11 July 2011.

• CAS 2010/A/2308 Franco Pellizotti vs CONI & UCI
• CAS 2011/A/2335 UCI vs Franco Pellizotti, FCI & CONI
• TAS 2010/A/2308 Franco Pellizotti c. CONI & UCI
• TAS 2011/A/2335 UCI c. Franco Pellizotti, FCI, CONI

Related case:

Swiss Federal Court 4A_488_2011 Pellizotti vs UCI, CONI & FCI
June 18, 2012

In March 2010, a panel of experts concluded that the Athlete’s Biological Passport (ABP) of the Italian cyclist Franco Pellizotti showed the use of a prohibited substance of method without adequate explanation from the Athlete for these anomalies in his ABP.

Thereupon in May 2010 the International Cycling Federation (UCI) and the CONI Anti-Doping Prosecution Office (UPA) reported an anti-doping rule violation against the Athlete.
However on 31 October 2010 the Tribunale Nazionale Antidoping del CONI (TNA), the CONI National Anti-Doping Tribunal, ruled that an anti-doping rule violation has not been established due to insufficient evidence.

Hereafter both the UCI and the Athlete appealed the CONI TNA decision with the Court of Arbitration for Sport (CAS).
Based on the evidence in the Athlete’s Biological Passport and in view of the testimonies of experts, the Panel concludes that the Athlete has committed an anti-doping rule violation.

Therefore the Court of Arbitration for Sport Panel decided:

1.) To dismiss the Athlete’s appeal;

2.) to set aside the decision of Tribunale Nazionale Antidoping del CONI of 21 October 2010;

3.) to impose a 2 year period of ineligibility on the Athlete Franco Pellizotti;

4.) disqualification of all results obtained by the Athlete from 7 May 2009;

5.) to order the Athlete to pay 115,000 euro to the UCI as financial sanction;

6.) to pay fees CHF 2,500 to the UCI for the doping test audit;

7.) to pay CHF 7,500 to the UCI as contribution to the costs in this trial.

TAS 2009/A/1995 Yanina Wickmayer c. Vlaams Doping Tribunaal (VDT) & TAS 2009/A/2021 Agence Mondiale Antidopage (AMA) c. VDT, Fédération flamande de tennis (VTV) et Yanina Wickmayer, sentence partielle du 10 juin 2011

Related cases:
CAS 2009_A_1995 Yanina Wickmayer vs Vlaams Doping Tribunal (VDT) | WADA vs VDT, Fédération flamande de tennis (VTV) & Yanina Wickmayer
December 3, 2012
Swiss Federal Court 4A_428_2011 Xavier Malisse & Yanina Wickmayer vs WADA & Vlaamse Tennisvereniging
February 13, 2012

Tennis
Doping (failure to provide whereabouts / missed test)
Suspension of the arbitration proceedings
Respect for the procedural guarantees in accordance with Article 6 ECHR
Preponderant interest in the resolution of disputes between athletes and sports institutions before CAS
Respect of the national sovereignty and primacy of the decision of an international authority

On 5 November 2009 the Flemish Doping Tribunal (VDT) decided to impose a 1 year period of ineligibility on the two Belgian tennis players Yanina Wickmayer and Xavier Malisse for their 3 whereabouts filing failures.

Hereafter in November 2009 both Athletes appealed the VDT decision with the Court of Arbitration for Sport (CAS). In December 2009 the World Anti-Doping Agency (WADA) filed its appeal against the VDT decision with CAS.

In this partial award the CAS Panel considers the issues raised by the parties regarding the suspension of the pending cases, the consolidation of the appeals and the jurisdiction of CAS.

The Court of Arbitration for Sport decides on 10 June 2011:

1.) The Panel has jurisdiction to hear the proceedings TAS 2009/A/1995 and TAS 2009/A/2021;
2.) The request filed by Yanina Wickmayer regarding suspension of proceeding TAS 2009/A/2021 is dismissed;
3.) The procedures TAS 2009/A/1995 and TAS 2009/A/2021 shall be consolidated and settled by one Panel;
4.) The Panel orders the resumption of the procedure TAS 2009/A/1995;
5.) The CAS Court Office will set deadlines for the filing of the parties submissions;
6.) This partial award is rendered without costs, as the matter of costs shall be settled in the final award.

TAS 2009/A/1994 Xavier Malisse c. Vlaams Doping Tribunaal (VDT) & TAS 2009/A/2020 Agence Mondiale Antidopage (AMA) c. VDT, Fédération flamande de tennis (VTV) et Xavier Malisse, sentence partielle du 10 juin 2011

Related cases:
- CAS 2009_A_1994 Xavier Malisse vs Vlaams Doping Tribunal (VDT) | WADA vs VDT, Fédération flamande de tennis (VTV) & Xavier Malisse
December 3, 2012
- Swiss Federal Court 4A_428_2011 Xavier Malisse & Yanina Wickmayer vs WADA & Vlaamse Tennisvereniging
February 13, 2012

Tennis
Doping (failure to provide information on whereabouts / missed test)
Suspension of the arbitration proceedings
Respect for the procedural guarantees in accordance with Article 6 ECHR
Preponderant interest in the resolution of disputes between athletes and sports institutions before CAS
Respect of the national sovereignty and primacy of the decision of an international authority

On 5 November 2009 the Flemish Doping Tribunal (VDT) decided to impose a 1 year period of ineligibility on the two Belgian tennis players Xavier Malisse and Yanina Wickmayer for their 3 whereabouts filing failures.

Hereafter in November 2009 both Athletes appealed the VDT decision with the Court of Arbitration for Sport (CAS). In December 2009 the World Anti-Doping Agency (WADA) filed its appeal against the VDT decision with CAS.

In this partial award the CAS Panel considers the issues raised by the parties regarding the suspension of the pending cases, the consolidation of the appeals and the jurisdiction of CAS.

The Court of Arbitration for Sport decides on 10 June 2011:

1.) The Panel has jurisdiction to hear the proceedings TAS 2009/A/1994 and TAS 2009/A/2020;
2.) The request filed by Xavier Malisse regarding suspension of proceeding TAS 2009/A/2020 is dismissed;
3.) The procedures TAS 2009/A/1994 and TAS 2009/A/2020 shall be consolidated and settled by one Panel;
4.) The Panel orders the resumption of the procedure TAS 2009/A/1994;
5.) The CAS Court Office will set deadlines for the filing of the parties submissions;
6.) This partial award is rendered without costs, as the matter of costs shall be settled in the final award.

In May 2011 the Japan Anti-Doping Agency (JADA) has reported an anti-doping rule violation against the Athlete J-4126 (the Athlete) after his A and B samples tested positive for the prohibited substance drostanolone. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Japan Anti-Doping Disciplinary Panel.

Considering the evidence and statements the Panel finds that the Athlete acted with negligence because he used non intentionally a large numbers of unprescribed supplements purchased overseas on the internet.

Without grounds for reduction under the Rules the Japan Anti-Doping Disciplinary Panel decides on 10 June 2011 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension i.e. on 17 May 2011.

• Arbitrage TAS 2010/A/2141 M. c. Fédération Royale Espagnole de Cyclisme (RFEC) & Arbitrage TAS 2010/A/2142 Union Cycliste Internationale (UCI) c. M. & Fédération Royale Espagnole de Cyclisme (RFEC), sentence partielle du 8 juin 2011
  
  
• CAS 2010/A/2141 M. vs RFEC
• CAS 2010/A/2142 UCI vs M. & RFEC

Related cases:

• CAS 2010_A_2141 M. vs RFEC | UCI vs M. & RFEC - Final Award
  March 29, 2012
• CAS 2010_A_2141 M. vs RFEC | UCI vs M. & RFEC - Partial Award 1
  September 14, 2010
  
  

• Cycling
• Doping (recombinant EPO)
• Lis pendens
• Serious grounds for suspension of the CAS proceedings
• Integration of the Rules of the national federation in accordance with the UCI Rules
• Competence of CAS
• Right of intervention by the UCI

In July 2009 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist M. after his A and B samples tested positive for the prohibited substance Erythropoietin (EPO). On 30 April 2010 the RFEC decided to impose a 2 year period of ineligibility on the Athlete including a fine.

Hereafter in June 2010 both the Athlete and the UCI appealed the RFEC decision with the Court of Arbitration for Sport (CAS).
In this partial award the CAS Panel considers different issues raised by the parties.

The Court of Arbitration for Sport decides on 8 June 2011:

1.) Deems it has jurisdiction to settle the dispute between the parties in the proceedings TAS 2010/A/2141 M. c. RFEC and TAS 2010/A/2142 UCI c. Mr & RFEC.

2.) The UCI request for intervention in the procedure TAS 2010/A/2141 M. c. RFEC is admissible and in this matter the order rendered by the President of the Appeals Arbitration Division on 14 September 2010 is confirmed.

3.) Orders the consolidation of the proceedings TAS 2010/A/2141 M. c. RFEC and TAS 2010/A/2142 UCI c. Mr & RFEC and in this matter the order rendered by the President of the Appeals Arbitration Division of 14 September 2010 is confirmed.

4.) Denies the motion for suspension and the exception of lis pendens as requested by the Athlete.

5.) Deems that the Panel will separately settle the particular procedural conditions as a result of the previous decisions in accordance with the CAS Code.

6.) In rendering this partial award without costs, the issue of costs will be settled within the CAS final award.

Analysis of 19-nortestosterone residue in animal tissues by ion-trap gas chromatography-tandem mass spectrometry / Jin-qing Jiang, Lei Zhang, Guang-ling Li, Hai-tang Zhang, Xue-feng Yang, Jun-wei Liu, Ren-feng Li, Zi-liang Wang, Jian-hua Wang. - (Journal of Zhejiang University Science B (Biomed & Biotechnol) 12 (2011) 6; p. 460-467)

• PMID: 21634039
• PMCID: PMC3109148
• DOI: 10.1631/jzus.B1000301

Abstract

A rapid sample treatment procedure for the gas chromatography-tandem mass spectrometry (GC-MS) determination of 19-nortestosterone (19-NT) in animal tissues has been developed. In our optimized procedures, enzymatic hydrolysis with β-glucuronidase from Escherichia coli was performed in an acetate buffer (pH 5.2, 0.2 mol/L). Next, the homogenate was mixed with methanol and heated at 60 °C for 15 min, then placed in an ice-bath at -18 °C for 2 h. After liquid-liquid extraction with n-hexane, the analytes were subjected to a normal-phase solid phase extraction (SPE) C₁₈ cartridge for clean-up. The dried organic extracts were derivatized with heptafluorobutyric anhydride (HFBA), and then the products were injected into GC-MS. Using electron impact mass spectrometry (EI-MS) with positive chemical ionization (PCI), four diagnostic ions (m/z 666, 453, 318, and 306) were determined. A standard calibration curve over the concentration range of 1-20 ng/g was reached, with Y=467084X-68354 (R²=0.9997) for 19-NT, and the detection limit was 0.3 ng. When applied to spiked samples collected from bovine and ovine, the recoveries ranged from 63% to 101% with relative standard deviation (RSD) between 2.7% and 8.9%. The procedure is a highly efficient, sensitive, and more economical method which offers considerable potential to resolve cases of suspected nandrolone doping in husbandry animals.