4 Jul 2012
CAS 2011/A/2671 Union Cycliste Internationale (UCI) v. Alex Rasmussen & The National Olympic Committee and Sports Confederation of Denmark (Dansk Idraetsforbund)
- CAS 2008_A_1612 Michael Rasmussen vs UCI & FMC
January 22, 2009
- Dutch District Court 2008 Michael Rasmussen vs RABO Wielerploegen
July 2, 2008
- Dutch Court of Appeal 2012 Michael Rasmussen vs RABO Wielerploegen
June 19, 2012
- Dutch Court of Appeal 2013 Michael Rasmussen vs RABO Wielerploegen
June 25, 2013
5. The circumstances stated below are a summary of the main relevant facts, as submitted by the parties in their written pleadings or in the evidence offered in the course of the
proceedings. Additional facts may be set out, where relevant, in connection with the legal discussion which follows.
6. According to the rules governing the doping control program of UCI (the UCI Anti- Doping Rules: hereinafter referred to as the "UCI ADR") and of DIF (the Danish National Anti-Doping Rules: hereinafter referred to as the "NADR"), Rasmussen has
been included since 2009 in the Registered Testing Pool of athletes (hereinafter referred to as the "RTP") both of DIF (hereinafter referred to as the "DIF RTP") and UCI (hereinafter referred to as the "UCI RTP").
7. The World Anti-Doping Code (hereinafter referred to as the "WADC") of the World Anti-Doping Agency (hereinafter also referred to as the "WADA"), in fact, requires the signatories, which include UCI and DIF, to define a group of athletes as their RTP.
Each athlete included in the RTP has the obligation to provide regular and updated whereabouts information, i.e. a three month schedule containing information, before the commencement of each quarterly period, about where he or she can be met for unannounced out-of-competition testing. In order to avoid unnecessary burden on athletes obliged to provide such information both to their National Anti-Doping Organisations and to the International Federation they belong to, WADA has developed
a web-based application, called ADAMS – Anti-Doping Administration and Management System (hereinafter referred to as "ADAMS") to enable athletes to enter their whereabouts into a single system. International Federations are then provided
access by the relevant National Anti-Doping Organisation to the information entered into ADAMS by each athlete.
8. As a result of the above, Rasmussen had the obligation to enter, and keep updated, his CAS 2011/A/2671 UCI v. Rasmussen & DIF - page 3 whereabouts into ADAMS. UCI was allowed to access such information.
9. On 1 February 2010, officers of the Danish National Anti-Doping Organisation (Anti-Doping Denmark, hereinafter referred to as "ADD") unsuccessfully tried to locate Rasmussen for an out-of-competition doping control at the place he had indicated on
ADAMS for that day: instead of being in Denmark, he was in Germany competing in the Berlin Six Days (from 28 January to 2 February 2011). A whereabouts failure was therefore recorded pursuant to Article 5.4.5 NADR and notified to Rasmussen on 16
February 2010, as the explanations he had provided were considered to be insufficient by ADD.
10. On 4 October 2010, ADD notified Rasmussen of a potential failure to file his whereabouts information for the fourth quarter of 2011 by the deadline of 30 September 2010: at the same time, ADD indicated to Rasmussen that it had remarked "that you did
not state your participation in the World Championships in Australia that has just taken place". Following said notification, Rasmussen filed the missing information on 5 October 2010, without providing any explanations. Therefore, on 26 October 2010, ADD recorded and notified to Rasmussen a filing failure for the purposes of Article
11. On 28 April 2011, officers of the UCI unsuccessfully tried to locate Rasmussen for an out-of-competition doping control at the place in Spain he had indicated in ADAMS for that day: the UCI officers could only get in touch with Rasmussen on the phone, to
discover that he was in Denmark, for his sister's confirmation. On 14 July 2011, UCI
notified Rasmussen of such potential missed test, which was recorded on 18 August 2011.
12. On 13 September 2011, UCI informed ADD of the recording of the missed test of 28 April 2011, being "the 3rd whereabouts failure of … Rasmussen", to indicate that according to Article 110 of the UCI ADR, ADD was "responsible to bring proceedings against Rasmussen under art. 21.4 [UCI] ADR as his previous whereabouts failures were recorded by your organization". On the same day, ADD referred the case to the Anti-Doping Committee (Dopingudvalg) of DIF for further proceedings.
13. On 14 September 2011, the Anti-Doping Committee of DIF imposed on Rasmussen a provisional suspension pursuant to Article 7.6.2 NADR.
14. On 12 October 2011, the Anti-Doping Committee sent to WADA an email as follows: "… the Doping Commission of the NOC and Sports Confederation of Denmark urgently needs WADA's advice in an unusual case we are currently reviewing. Your last response was most helpful, so we kindly ask for your help once again.
This is the first case in Denmark about an infringement of the whereabouts rules (3 infringements in an 18 months' period). In the current case, two infringements were recorded by the NADO (ADD) and one by the IF and thus the case will be heard before the NOC's Doping Tribunal.
While reviewing the case, we have noticed a slight, but probably important difference between the whereabouts regulations of WADA's International Standard for Testing and the whereabouts regulations of the IF. A difference in the procedural rules that is to the CAS 2011/A/2671 UCI v. Rasmussen & DIF - page 4
disadvantage of the athlete. Although it is not mentioned in the World Anti Doping Code article 23.2 as an area that
must be implemented by Signatories without substantial change, it is stated in art. 5.2 that Anti-Doping Organizations with testing jurisdiction shall conduct such testing in conformity with the International Standard for Testing. The Preamble to the International Standard for Testing states that International
Standard for Testing is a mandatory International Standard (Level 2) developed as part of the World Anti-Doping Program. In addition, it is stated in art. 10 that Section 11.0 of the International Standard for Testing sets out mandatory standards to be implemented by IFs and NADOs (as well as recognized and applied by other Anti-Doping Organizations) as the whereabouts requirements applicable to Athletes in their respective Registered Testing Pools.
Our question is therefore if WADA can confirm that the International Standard for Testing is indeed considered mandatory for IFs and NADOs and, consequently, that no changes from the Standard should be made when drafting the principles and procedural guidelines in the regulations of the IFs and the NADOs ?".