21 Apr 2011
CAS 2010/A/2235 UCI v/ Tadej Valjavec & Olympic Committee of Slovenia
CAS 2010/A/2235 Union Cycliste Internationale (UCI) v. T. & Olympic Committee of Slovenia (OCS)
- Cycling
- Doping (Athlete’s Biological Passport)
- Burden and Standard of Proof
- Evaluation of the Experts’ Panel report by the CAS Panel
- Application of the rules related to the ABP by CAS Panels
- Violation of EU competition law
- Disqualification in case of a violation found by reference to the ABP
- Blood manipulation as aggravating factor for the determination of the ineligibility period
- Determination of the amount of the fine according to the UCI ADR
1. The burden of proof of establishing an anti-doping violation ex concessis is imposed on UCI. The applicable standard of proof (“comfortable satisfaction”) is a lower standard than the criminal standard (beyond reasonable doubt) but a higher standard than the civil standard (balance of probabilities). Application of the standard to any particular set of facts may produce different results depending on those facts. But the standard itself is uniform, irrespective of the facts. It demands an exercise of judgment.
2. Any Tribunal faced with a conflict of expert evidence must approach the evidence with care and self-awareness of its own lack of expertise in the area under examination. Nonetheless, notwithstanding these caveats, it cannot abdicate its adjudicative role. A CAS panel shall apply the standard of proof as an appellate body to determine whether the expert panel’s evaluation is soundly based in primary facts, and whether the expert panel’s consequent appreciation of the conclusion be derived from those facts is equally sound. It will necessarily take into account, inter alia, the impression made on it by the expert witnesses in terms of their standing, experience, and cogency of their evidence together with that evidence’ s consistency with any published research.
3. A CAS panel is not called to adjudicate on whether some other or better system of longitudinal profiling could be created. WADA has approved the use of ABP and this has been codified in the current UCI rules. A CAS panel must respect and apply the rules as they are and not as they might have been or might become.
4. According to the jurisprudence of the European Court of Justice, anti-doping rules and sanctions “are justified by a legitimate objective” and any related limitation to the athletes’ economic freedom “is inherent in the organisation and proper conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes”. While it is true that restrictions imposed by anti-doping rules and sanctions “must be limited to what is necessary to ensure the proper conduct of competitive sport” and, thus, must be proportionate, the Athlete has to adduce evidence to establish that the anti-doping rules and sanctions at issue are disproportionate and, as a consequence, to establish a violation of Article 101 of the Treaty on the Functioning of the European Union.
5. Although the provisions as to disqualification are expressly made applicable to violations consisting of use of a prohibited method, they are not easy to apply where the proof of such violation is to be found by reference to the ABP. The provisions are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance. Article 289 of the UCI ADR provides in its title for disqualification of results in events during which an anti-doping violation occurs. Even though the text enlarges the title to embrace violations occurring ‘‘in connection with an event’’ it is not easy in ABP cases to identify in connection with which events the Athlete’s doping violation occurred. Therefore, as Article 313 of the UCI ADR provides in its title for disqualification of results in competitions subsequent to anti-doping rule violation but is applicable only when article 289 of the UCI ADR is not, this article more easily fits ABP cases.
6. A submission that blood manipulation constitutes an aggravating factor and that a minimum three-year ban should be imposed upon the Athlete has no foundation in the UCI ADR which does not differentiate between various forms of first offence or suggest that blood manipulation attracts ratione materiae a higher sanction than the presence of a prohibited substance.
7. Article 326 of the UCI ADR provides a formula for computation of the fine with a proviso allowing for a reduction of up to a half for the financial situation of the licence holder concerned. Reduction from the figure so calculated is available under the same article where the Athlete’s financial situation justifies it. It requires a CAS panel to consider the particular facts before it.
In May 2010 the UCI reported an anti-doping rule violation against the Slovene cyclist Tadej Valjavec after an UCI Expert Panel concluded unanimously, in December 2009 in their Expert Opinion, that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping.
This conclusion of the UCI Expert Panel is based on assessment of blood samples, collected in the period from 21 March 2008 until 29 August 2009 reported in the Athlete’s Biological Passport (ABP).
Previously the Athlete submitted his explanations for the abnormal findings in his ABP to the UCI which were rejected by the Expert Panel in their second Experts Opinion Report submitted in April 2010.
However on 28 July 2010 the Senate of the National Anti-Doping Commission of the Olympic Committe of Slovenia (OCS) decided that the Athlete had not committed an anti-doping rule violation nor to impose a sanction on the Athlete.
Hereafter in September 2010 the UCI appealed the Slovenian Decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose a fine and a sanction of minimum 3 years on the Athlete.
The UCI contended having established that the Athlete had committed an ADRV based on the abnormalities detected in the Athlete’s haematological profile resulting from his ABP.
The Athlete disputed the reliability of the ABP. He asserted, supported by expert witnesses that no ADRV has taken place and no sanction is to be imposed on him
Following assessment of the submissions, arguments and evidence the Panel determines:
- (i) there were no defects in the process of analysis or breaches in the chain of custody such as would make the results of the critical tests unreliable;
- (ii) those tests on 19 April and 29 August 2009 revealed abnormalities in the context of the Athlete’s ABP such as to excite the need for explanation;
- (iii) the explanations given were as scrutinized by the UCI’s experts whose testimony, where their evidence conflicted with the evidence of the Athlete’s experts, the CAS Panel preferred both because of their (for the most part) greater experience and expertise, and because of the weight of published literature which supported it;
- (iv) in any event the factual premise for the Athlete’s explanations depended in substantial measure on his say- so uncorroborated by independent testimony, and the CAS Panel was disinclined to accept it where it was manifestly improbable, e.g. the failure to report alarming black stools in April 2009;
- (v) the pattern of values under scrutiny was entirely consistent with blood manipulation, not least, but not only, because of the degree of abnormality;
- (vi) the coincidence of the blood manipulation asserted by UCI with the Athlete’s racing calendar was striking;
- (vii) no discrimination against him nor violation of EU competition law was proven by the Athlete.
Therefore the Court of Arbitration for Sport decides on 21 April 2011:
1.) The appeal filed by UCI against the decision issued on 28 July 2010 by the Senate of the National Anti-Doping Commission of the OCS is upheld.
2.) The decision issued on 28 July 2010 by the Senate of the National Anti-Doping Commission of the OCS is annulled in its entirety.
3.) Tadej Valjavec is found guilty of an anti-doping rule violation and is declared ineligible for a period of two years running from 20 January 2011.
4.) Tadej Valjavec’s results obtained during the period from 19 April 2009 to end of September 2009 and from 20 January 2011 until the date of notification of this award, including his event medals, his points and prizes are forfeited.
5.) Tadej Valjavec shall pay to UCI a fine of EUR 52,500, in accordance with article 326 1.a) of the UCI ADR.
6.) (…).
7.) (…).
8.) All other motions or prayers for relief are dismissed.
