CAS 2009_A_1918 Jakub Wawrzyniak vs Hellenic Football Federation

21 Jan 2010

CAS 2009/A/1918 Jakub Wawrzyniak v. Hellenic Football Federation (HFF)

Related cases:
CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
May 21, 2010
CAS 2009_A_1918 Jakub Wawrzyniak vs Helenic Football Federation - Operative Part
August 13, 2009

Football
Doping (Methylhexaneamine)
Principles of tempus regit actum and lex mitior in anti-doping rules violations
Substances similar to prohibited substances listed by the WADA administration
Meaning of no (significant) fault or negligence in the WADA Code and in the regulations of the Federations
Substances pharmacologically classified as stimulants and not identified under the monitoring programme
False information provided by the medical personnel and exemption from fault and negligence
Meaning of the balance of probability standard
CAS’ power of review and discretion of the disciplinary body of an association to set a sanction

1. In order to determine whether an act constitutes an anti-doping rule infringement, the Panel applies the principle tempus regit actum, i.e. the law in force at the time the act was committed. In other words, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future, unless there are grounds for the application of the lex mitior principle.

2. The classification of a substance as “similar” to one of the listed substances made by the WADA administration can be challenged. The determination of similarity to substances expressly listed on the list of prohibited substances requires in fact the similarity to one (or several) of the listed substances; moreover, the similarity of a substance to a prohibited substance must be accompanied by the fulfilment of any two of the three criteria: the potential performance enhancement, the potential health risk, and the violation of the spirit of sport. Two of these three criteria must be met for a substance to be treated as similar and, thus, prohibited.

3. According to the CAS case law, the expressions “No Fault or Negligence” or “No Significant Fault or Negligence” should be considered as having the same meaning in all regulations (HFF, FIFA and WADC).

4. The WADA Prohibited List is an “open list” and “all substances pharmacologically classified as a stimulant and not identified under the Monitoring Programme are by definition prohibited”. This means that, even if the WADA administration could only identify the substance at a given time, Methylhexaneamine was still a prohibited substance already before that time because it was a stimulant.

5. Even in cases where the doping offence has occurred following false information


In April 2009 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the Player Jakub Wawrzyniak after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

In June 2009 the Player filed an appeal with the HFF Appeal Committee after the Disciplinary Committee of the First Instance of the Super League in Greece sanctioned him on 4 June 2009 with a three month period of ineligibility. However the HFF Appeal Committee decided on 1 July 2009 to impose a 1 year period of ineligibiltiy which was upheld by the FIFA Disciplinary Committee on 27 July 2009 and the sanction was extended worldwide by FIFA.

In July 2009 the Player appealed the Decision of 1 July 2009 of the HFF Appeal Committee with the Court of Arbitration for Sport (CAS).

Considering the circumstances the CAS Panel is led to the conclusion that, on a “balance of probability”, Methylhexaneamine entered into the Player’s body through the ingestion of TightXtreme and that the Player has not used this substance in order to enhance his sporting performance. As a result, the Player “qualifies” for the application of the reduced sanction provided in specific circumstances by the pertinent rules when a “specified substance” is involved in the anti-doping rule infringement.

Therefore on 21 January 2010 the Court of Arbitration for Sport decides:

1.) The appeal filed by Mr Jakub Wawrzyniak against the decision issued on 1 July 2009 by the Appeals Committee of the Hellenic Football Federation is partially upheld.
2.) The decision adopted by the Appeals Disciplinary Committee of the Hellenic Football Federation on 1 July 2009 is amended as follows:
3.) The Player Jakub Wawrzyniak is declared ineligible for the period of three (3) months, starting on 5 April 2009.
4.) All other motions or prayers for relief are dismissed.
(…).

CAS 2009_A_1918 Jakub Wawrzyniak vs Helenic Football Federation - Operative Part

13 Aug 2009

CAS 2009/A/1918 Jakub Wawrzyniak v Hellenic Football Federation (HFF)

Related case:
CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
May 21, 2010
CAS 2009/A/1918 Jakub Wawrzyniak vs Hellenic Football Federation
January 21, 2010

Football
Provisional measures
Request for a stay of the decision


In April 2009 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the Player Jakub Wawrzyniak after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

In June 2009 the Player filed an appeal with the HFF Appeal Committee after the Disciplinary Committee of the First Instance of the Super League in Greece sanctioned him with a three month period of ineligibility. However the HFF Appeal Committee decided on 1 July 2009 to impose a 1 year period of ineligibiltiy which was upheld by the FIFA Disciplinary Committee on 27 July 2009 and the sanction was extended worldwide by FIFA.

In July 2009 the Player appealed the Decision of 1 July 2009 of the HFF Appeal Committee with the Court of Arbitration for Sport (CAS).

The Deputy President of the CAS Appeals Arbitration Division findsin this case that the Player has not demonstrated that the stay of the decision rendered by the HFF Appeal Committee would protect him against any irreparable harm.
Due to the Player having failed to meet the first test (existence of an irreparable harm resulting from the execution of the challenged decision), the Deputy President deems that there is no need to evaluate whether the other conditions are fulfilled and that the request for a stay of the challenged decision shall be dismissed.

Therefore on 13 August 2009 in view of Articles R37 and R52 of the Code of Sports-related Arbitration, the Deputy President of the CAS Appeals Arbitration Division decides:
1.) The request for a stay filed by Mr. Jakub Wawrzniak is dismissed.
(…).

CAS 2010_A_2229 WADA vs FIVB & Gregory Berrios

28 Apr 2011

CAS 2010/A/2229 WADA v. FIVB & Gregory Berrios

This summary is based on the allegations of the parties and the evidence adduced during this proceeding, which included elements of the record from the procedure leading up to the FIVB Decision that is being appealed, Regardless of whether they are expressly referred to herein, all the parties' allegations, evidence and arguments have been carefully considered by the Panel.
In May 2010, Berrios competed with the Puerto Rico national volleyball team on the 2010 V Men's Pan American Cup held in San Juan, Puerto Rico. On May 27, 2010, Berrios was subject to doping control. He signed the doping control form on which he declared that he was not taking any medication or other pharmaceutical substances at the time of the Control, Berrios's sample was forwarded to the WADA-accredited UCLA Olympic Analytical Laboratory in Los Angeles, 6. On June 18, 2010, the FIVB received a report of the laboratory that confirmed the presence of N,N-Didesmethylsibutramine, a metabolite of Sibutramine ('"Sibutramine"). a substance that is listed as a Specified Stimulant under the Prohibited List of the WADA Code, which forms an integral part of the FIVB Rules on the basis of Article 4.1 of these rules.
On the FDA website Sibutramine is qualified as "an appetite suppressant available by prescription only and a controlled substance." it the releases on its website, the FDA also wams that: "The health risk posed by these products can be very serious and include high blood pressure, seizures, tachycardia (rapid heartbeat), palpitations, heart attack, and stroke. Sibutramine, a controlled substance, was found in many of these products
[including in the product "Fatloss Slimming"] at levels much higher than the daily dosage Of Meridia, the only FDA-approved drug product containing Sibutramine. These higher leyels of Sibutramine can increase the incidence and severity of these health risks"
I. In a -written declaration made to FIVB on July 8, 2010, Berrios explained that prior to the start of the tournament, he had gained some weight as a result of a knee injury and he had decided to ingest a substance that would assist him with weight loss in order to reduce the pressure on his knee. At the hearing in this proceeding, he indicated in substance that the attempt to lose weight was also to help him perform better by getting closer to what he empirically deemed his ideal playing weight, but that to achieve that goal he had never intended to ingest any prohibited substance and thereby enhance his performance in a manner contrary to anti-doping regulations. Without consulting a physician or member of the team's medical staff, Berrios proceeded to buy a product named "Fat Loss Slimming Beauty" (the "Product") from an up-market local natural products store named "Freshmart".
At the hearing in this proceeding, Berrios declared that he believed in a healthy life style and for that reason had the custom of also sometimes going to Freshmart to eat in its cafeteria» accompanied by his girlfriend, Ms Yoliann Cabeza Rivera.
He said that given the type of up-market natural products store it was, he believed Freshmart would only sell natural products and that upon purchasing the Product he had questioned the employee about a suitable natural product helping with weight loss and had
been recommended "Fat Loss Slimming Beauty**.
The following is an extract from the website of Freshmart: "Founded in 1995, Freshmart is theflrst supermarket fuïly dedicated to natura! products. Puerto Rican company 100% committed to the pursuit of fresh, pure and clear through his careful selection. Product your health through food and products free of preservatives, dyes or artificial flavour additives [...] The customer can visit Freshmart andflnd a supernarket where you can enjoy breakfast, lunch andtake an afiernoon snack in the cafeteria, also can participate in our vegetarian cooking classes are free"
Berrios added that he had fully trusted the employee's recommendation and submits that neither the box nor the provided product information revealed that the Product contained a substance that could be compared with or identified as a prohibited substance.
Berrios also submits an Internet search of the ingredients listed on the package, which he performed before ingesting the Product and which did not suggest that it contained prohibited substances. He submits that his search did not lead him to the releases of the FDA.
After' having been informed of his positive analytic results, Berrios provided a sample of the Product to the FIVB hearing panel.
On his own initiative, Berrios commissioned NMS Labs in the United States to test the Product for the presence of controlled substances and pharmaceuticals.
By letter dated November 3j 2010, the laboratory confirmed the presence of Sibutramine in the Product.
Berrios also filed a Freedom of Information Act request with the FDA.

CAS A4_2007 ASADA vs Andrew Wyper

21 Aug 2008

CAS A4/2007 ASADA v/ Andrew Wyper

The events giving rise to the proceedings occurred on about 20 November 2005 when quantities of human growth hormone and (hGH) and Erythropoietin (EPO) which are banned substances under the Anti-Doping Policy, were seized in Sydney by the
Department of Customs on their arrival into Australia. Mr Wyper was subsequently charged with the criminal offence of importing prohibited imports (that is the hGH and the EPO) in contravention of s.233(1)(b) of the Customs Act 1901.
When the matter came before Magistrate Dillon on 21 November 2006, Mr Wyper entered a plea of guilty and was fined $2,000. His legal representative told the court that “there was nothing surreptitious at the way he did it. He used his mother’s credit card. He ordered it in his own name. It came to his own house. There was no concealing. There’s no commercial aspect to it. He was thinking of using it purely for the purpose of trying to enhance his abilities and trying to get” a professional cycling contract in the United States.
As the drugs had been seized in Sydney, the drugs were not in fact delivered to the delivery address which was his parents’ home at 50 Gordon Street, Inverell, a country town approximately 600 kilometres north west of Sydney. His subsequent appeal to the District Court against the severity of the sentence to the Sydney District was upheld on 2 January 2007.
Whilst Mr Wyper admitted to those facts which are necessary to support the ingredients of the criminal offence of importing prohibited imports, he disputed that the admitted matters
established the two violations alleged by ASADA which were (1) constructive possession of a prohibited substance, and (2) attempted use of a prohibited substance. In essence it
was submitted that the elements in the criminal offence of importing EPO and hGH differed from the elements of the two violations of the terms of the Anti-Doping Policy which were alleged by ASADA.

CAS 2008_A_1515 WADA vs Swiss Olympic & Simon Daubney

2 Oct 2008

CAS 2008/A/1515 WADA v/Swiss Olympic Association & Simon Daubney

The America's Cup is a silver cup trophy, which was won for the first time in 1851 by the yacht "America". It was then donated by the owner of the "America" to the New York Yacht Club by Deed of Gift dated 24 October 1887. Under the terms of this document the holder of the Cup becomes its sole trustee, to be succeeded only by a successful challenger in a race at sea.
In 2007, the America's Cup was in the hands of the SNG, which selected Team Alinghi to defend the trophy on its behalf, Mr Simon Daubney participated in the 32"** America's Cup sailing race (hereinafter also referred to as the "Event"), as one of the sail trimmers of Team Alinghi. This sporting event took place in Valencia, Spain and was a "first to five" (best-of-nine) series that opposed the defender to Team New Zealand, the winner of the Louis Vuitton Cup.
The Event started on 23 June and ended on 3 July 2007, when Team Alinghi successfully defended its second America's Cup title by winning the best of nine series, 5-2.
The Findings in anti-doping testing
On 23 June 2007, Mr Simon Daubney was subject to in-competition drug testing. The WADA-accredited "Laboratório de control del dopaje" in Madrid, Spain, was instructed to conduct the analysis of Mr Simon Daubney's urine sample. In its report dated 11 July 2007, it confirmed that it had identified in Mr Simon Daubney's A sample the presence of Ecgonina metil ester and Benzoilecgonina.
It is undisputed that Ecgonina metil ester and Benzoilecgonina are metabolites of cocaïne, which is a stimulant included in the list of prohibited substances under the World Anti-Doping Code (hereinafter referred to as the "WADAC").
On 14 July 2007, the positive results were communicated to Mr Simon Daubney.
At the hearing held in Lausanne on 1 September 2008 (see section III.4 below), the Appellant accepted the contention that Mr Simon Daubney volimtarily put on hold his caréer and has refrained from taking part in any official competitions since 14 July 2007.
On 8 August 2007 and at the request of Mr Simon Daubney, a confirmatory analysis was carried out on his B sample. it corroborated the results of the analyses conducted on the A sample.
At the hearing held in Lausanne on 1 September 2008 (see section in.4 below), Mr Simon Daubney declared that he was not challenging the laboratory results.
On 11 September 2007, Mr Bruce Burgess, a polygraph expert, administered a polygraph examination (so-called lie detector test) to Mr Simon Daubney. During the examination, Mr Daubney gave negative answers to the questions whether he had (i) ever used cocaine, (ii) used cocaine during the 32"** America's Cup, or (iii) used cocaine at all in 2007. On the basis of suoh polygraph examination. Mr Burgess attested in a letter to Mr Daubney that it was his firm opinion that Mr Daubney had been truthful in his answers to the aforementioned questions.

CAS 2010_A_2277 Roberto La Barbera vs IWAS

2 May 2011

CAS 2010/A/2277 Roberto La Barbera v. International Wheelchair & Amputee Sports Federation (IWAS)

Paralympic athletics
Doping (stanozolol)
Departure from the International Standard for Testing (no)
Balance of probability
Requirement of establishing how the Prohibited Substance entered the athlete’s system
Absence of fault or negligence (no)

1. The doping control form is intended to provide contemporaneous record of the doping control procedure. While an athlete’s signature does not amount to a waiver of the athlete’s right to later allege that the requirements of the International Standard for Testing (IST) have been breached, such signature is of potential evidential value in determining whether the procedures set out in the IST have been complied with. The athlete’s plain signature of the doping control records expresses his approval of the procedure and prevents him – short of compelling evidence of manipulation of the records or fraud or any similar facts – from raising any such issue at a later stage.

2. The balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.

3. The requirement of showing how the Prohibited Substance got into the athlete’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether the athlete has taken precautions in attempting to prevent such occurrence. Consequently, the “threshold” requirement of proof means not only that the athlete must show the route of administration but that he must be able to prove the factual circumstances in which administration occurred. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable. Mere speculation is not proof that it did actually occur.

4. Athletes are responsible for what they ingest. Taking into account the strict liability principle resulting therefrom, in order to establish No Fault or Negligence, the athlete must prove that he did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost care, that he had used or been administered with the prohibited substance.


Conclusion

The IWAS has established that Mr La Barbera had committed an anti-doping violation rule according to Art. 2.1 of the IWAS Code, since both A and B Samples have confirmed the presence of Stanozolol and 16β-hydroxystanozol, a metabolite of Stanozolol, a prohibited substance appearing on the WADA 2010 Prohibited List under category S1(1)(a), exogenous anabolic androgenic steroid (art. 2.1.2 of the IWAS Code).

Mr La Barbera has been unable to discharge his burden of proving under Art. 3.1 and 3.2.2 of the IWAS Code that, on a balance of probability, (i) there had been any departure from the IST in the way the doping control procedure was carried out and that (ii) such departure could reasonably have caused the adverse analytical finding.

Mr La Barbera has been unable to discharge his burden of proving under Art. 10.5 of the IWAS Code how, on a balance of probability (i) the Prohibited Substance had entered his system and that (ii) such ingestion had occurred without any (Significant) Fault or Negligence.

As a result, the appeal filed by Mr La Barbera has to be dismissed and, taking into account Art. 9, 10.1 and 10.2 of the IWAS Code (see paras 22-24), the decision issued by the IWAS Tribunal on 20 October 2010 is affirmed.

The Court of Arbitration for Sport decides on 2 May 2011:

1.) The appeal filed on 17 November 2010 by Mr Roberto La Barbera against the decision of the IWAS Anti-Doping Committee Hearing Panel dated 20 October 2010 is dismissed.
2.) The decision rendered on 20 October 2010 by the IWAS Anti-Doping Committee Hearing Panel is confirmed.
(…)
5.) All other motions or prayers for relief are dismissed.

CAS 2009_A_1879 Alejandro Valverde vs CONI, WADA & UCI

16 Mar 2010

CAS 2009/A/1879 Alejandro Valverde Belmonte v. Comitato Olimpico Nazionale Italiano
CAS 2009/A/1879 Alejandro Valverde vs CONI, WADA & UCI

Related cases:
CAS 2007/A/1396 WADA & UCI vs Alejandro Valverde & RFEC
May 31, 2010
CAS 2007/O/1381 RFEC & Alejandro Valverde vs UCI
September 26, 2007
Swiss Federal Court 4A_234_2010 Alejandro Valverde vs CONI, WADA & UCI
October 29, 2010
Swiss Federal Court 4A_386_2010 Alejandro Valverde vs WADA, UCI & RFEC
January 3, 2011
Swiss Federal Court 4A_420_2010 Alejandro Valverde vs WADA, UCI & RFEC
January 3, 2011
Swiss Federal Court 4A_644_2009 Alejandro Valverde vs CONI, WADA & UCI
April, 13, 2010

This case originated from the investigation known as “Operation Puerto”, which began in Spain in 2004 as part of a coordinated investigation involving the Juzgado de Instrucción no. 31 of Madrid (“Investigating magistrate no. 31”) and the Spanish Civil Guard. The objective of this criminal proceeding was the doping practices of physicians and other parties that could constitute “offences against public health” as defined in Article 361 of the Spanish Penal Code. As mentioned infra, doping by an athlete did not constitute an offence in Spain at the time of the incriminating facts.
The Civil Guard carried out telephone monitoring, as well as numerous warrants, pursuant to which several people were arrested. Among these people was Dr. Eufemiano Fuentes, the alleged mastermind of a clandestine international doping network.
At the time of his arrest on May 23, 2006, Dr. Fuentes was carrying a card from the Silken Hotel, on the back of which was written a list of pseudonyms and the name “Valverde”.
In the context of the investigation, the Civil Guard seized a large quantity of documents, equipment, doping products (hormones, steroids, etc.), as well as bags of blood and plasma. Most of the approximately 200 blood bags seized contained a code number permitting the identification of the athlete to whom the blood belonged. Dr. Fuentes confirmed this, admitting that the blood bags identified by means of codes were intended to be re-transfused into the athletes from whom they were taken.
On May 30, 2006, RFEC was made civil party to a court action in the context of the investigative proceedings conducted by Investigating magistrate no. 31. UCI and WADA were also made civil parties to the same proceedings.
The Civil Guard drafted a report (“Report no. 116”) dated June 27, 2006, describing the organization and operations of Dr. Fuentes’ doping network, in which, in the section describing the blood bags seized, reference was made to a bag of plasma with the reference “18 VALV. (PITI)” (“Bag no. 18”); see Documents no. 114 and 116, summarized in Report no. 116, page 3).
Report no. 116 also contained a list of athletes suspected of being involved in Operation Puerto. The Athlete’s name did not appear on this list.

CAS 2007_O_1381 RFEC & Alejandro Valverde vs UCI

26 Sep 2007

TAS 2007/O/1381 Real Federación Española de Ciclismo (RFEC) & Alejandro Valverde c. Union Cycliste Internationale (UCI)
CAS 2007/O/1381 RFEC & Alejandro Valverde vs UCI

Related cases:
CAS 2007/A/1396 WADA & UCI vs Alejandro Valverde & RFEC (id:138; 31-05-2010)
May 31, 2010
CAS 2007/O/1381 RFEC & Alejandro Valverde vs UCI (id:139; 26-09-2007)
September 26, 2007
Swiss Federal Court 4A_234_2010 Alejandro Valverde vs CONI, WADA & UCI)
October 29, 2010
Swiss Federal Court 4A_386_2010 Alejandro Valverde vs WADA, UCI & RFEC
January 3, 2011
Swiss Federal Court 4A_420_2010 Alejandro Valverde vs WADA, UCI & RFEC
January 3, 2011
Swiss Federal Court 4A_644_2009 Alejandro Valverde vs CONI, WADA & UCI
April 13, 2010

Operación Puerto is the code name of a Spanish Police operation against the doping network of Doctor Eufemiano Fuentes, started in May 2006, which showed the involvement of several cyclists.
In Fuentes' clinic in Madrid, documents and 186 blood bags were found belonging to professional athletes and marked with coded names, besides EPO, steroids, and growth hormone.
The Guardia Civil identified the identity of nearly 60 cyclists, however Valverde was not mentioned on the list of the Guaria Civil.
Media attention has focused on the small number of professional road cyclists named, however sportspeople from other disciplines including football and tennis have also been connected with the scandal. Fifteen had been acquitted by May 2007, while three had admitted doping or evidence of blood doping was found.

Based on the fact that Valverde’s name and involvement was mentionded in several documents in the dossier of Operación Puerto, the UCI ordered that Valverde could not participate in the championships in Stuttgart and requested the RFEC to initiate proceedings against Valverde.
After deliberations between UCI and RFEC about the decision to exclude Valverde to compete and the RFEC refusal to initiatie proceedings against Valverde, the RFEC decided to appeal the UCI decision with the Court of Arbitration for Sport (CAS).

The CAS Panel concludes on 26 september 2007 that the UCI decision for Valverde’s exclusion violated the rights of the Athlete. Therefore the UCI exclusion decision must be cancelled and Valverdes participation in the 2007 World Championships in Stuttgart allowed.

CAS 2007_A_1396 WADA & UCI vs Alejandro Valverde & RFEC

31 May 2010

CAS 2007/A/1396 & 1402 WADA and UCI v/Alejandro Valverde & RFEC
CAS 2007/A/1396 & 1402 World Anti-Doping Agency (WADA) and Union Cycliste Internationale (UCI) v. Alejandro Valverde & Real Federación Española de Ciclismo (RFEC), award of 31 May 2010

Related cases:
CAS 2007/O/1381 RFEC & Alejandro Valverde vs UCI. - September 26, 2007
CAS 2009/A/1879 Alejandro Valverde vs CONI, WADA & UCI . - March 16, 2010
Swiss Federal Court 4A_234_2010 Alejandro Valverde vs CONI, WADA & UCI. - October 29, 2010
Swiss Federal Court 4A_386_2010 Alejandro Valverde vs WADA, UCI & RFEC. - January 3, 2011
Swiss Federal Court 4A_420_2010 Alejandro Valverde vs WADA, UCI & RFEC. - January 3, 2011
Swiss Federal Court 4A_644_2009 Alejandro Valverde vs CONI, WADA & UCI. - April 13, 2010

Cycling
Blood Doping
No explicit prohibition in the CAS Code for the Appeal Brief to go beyond the Statement of appeal
Decision not to open disciplinary proceedings as an appealable decision before the CAS
De novo review and procedural defects occurred at the initial stage
Establishment of an anti-doping rule violation to the comfortable satisfaction of the Panel
Use of evidence illegitimately collected in case of an overriding public interest

1. There is no specific provision in the CAS Code that forbids an Appeal Brief to go beyond the Request for Relief as formulated in the Statement of Appeal. Article R56 clearly sees to the procedural phase after the Appeal Brief. Article R51, addressing the Appeal Briefs, does not specifically prohibit an amendment of the Statement of appeal.

2. According to Swiss legal scholars, an appealable decision of a sport association is normally a communication of the association directed to a party based on an “animus decidendi”, i.e. an intention to decide on a matter, even if this is only a decision on its competence (or non-competence). A decision not to open disciplinary proceedings against an athlete was clearly intended to affect the legal position of a number of addressees, including but not limited to the sports federations and the athlete.

3. Even if there was a procedural defect in the first instance, the CAS case law is quite clear that the de novo rule is intended to address and cure “any procedural defect” that occurs at the initial stage, after all relevant parties have been heard: this can also encompass the right to be heard. Thus, there is no reason not to accept this Panel’s authority for a full de novo hearing. The Panel can – and even should – take into account all the facts with which the athlete was charged in the first instance. CAS jurisprudence also shows that, in reviewing the case in full, a Panel cannot go beyond the scope of the previous litigation. It is limited to the issues arising from the challenged decision

4. As has been held in several CAS-cases, an anti-doping rule violation has to be established to the comfortable satisfaction of the Panel, bearing in mind the seriousness of the allegation which is made. It is common ground that this standard is greater than a mere balance of probability, but less than the criminal standard of proof


This case arises as a result of the Spanish criminal investigation commonly referred to "Operacion Puerto" which began in May of 2004.
The full facts and proceedings will not be reiterated in this award and the Panel would direct the readers to the various awards and orders that have been issued by this Panel prior to this award. Please refer to Orders dated 5 March 2008; 24 December 2008; 15 June 2009; and 22 December 2009. There is also a Preliminary Award dated 10 July 2008.

The Operacion Puerto proceedings focused on Dr. Eufemiano Fuentes, and on 23 May 2006, Dr. Fuentes and other individuals were arrested and charged with violating Spanish Public Health Legislation. This was the "final step" of the "Operacion Puerto" investigation and prosecution that had begun in May 2004 by the Spanish Guardia civil and the Juzgado de Instruccion no. SI de Madrid.

On 29 August 2007, the UCI by way of letter requested, inter dia, the RFEC to initiate disciplinary proceedings against Alejandro Valverde Belmonte (see below para. 6.3). This request was based on the UCI's review of the file and evidence gathered within the Operacion Puerto proceedings, including the blood bag labelled Blood Bag no. 18, the blood from which was portered to belong to Mr Valverde.

The Court of Arbitration for Sport decides on 31 May 2010:

1.) The appeals filed by the Union Cycliste Internationale and the World Anti-doping Agency are partially upheld.
2.) Alejandro Valverde is found guilty of an anti-doping rule violation under Article 15.2 of the UCI Anti-doping Rules (version 2004).
3.) Alejandro Valverde is suspended for a period of two years, starting on 1 January 2010.
4.) The requests of the UCI and WADA for disqualification of the competitive results obtained by Mr Valverde before 1 January 2010 are denied.
5.) All other motions or prayers for relief are dismissed.
(…).

CAS 2010_A_2070 Anti-Doping Schweiz vs Jan Ullrich

30 Nov 2011

CAS 2010/A/2070 Antidoping Schweiz v/ Jan Ullrich

Der Berufungsbeklagte, Jan Ullrich, ehemaliger deutscher Profi-Radrennfahrer, ist seit 2003 in der Schweiz wohnhaft. Zu seinen bedeutendsten Leistungen zählen sein Sieg als erster und bisher einziger Deutscher bei der Tour de France 1997 und der Gewinn einer Goldmedaille im olympischen Straßenrennen in Sydney im Jahr 2000. Bis 2006 war Jan Ullrich Mitglied des deutschen Profi-Radsportteams T-Mobile, des Schweizerischen Radfahrer-Bundes Swiss Cycling (nachfolgend „Swiss Cycling“) und Lizenzhalter der
Union Cycliste Internationale (nachfolgend „UCI“). Am 19. Oktober 2006 hat Jan Ullrich seine Mitgliedschaft in Swiss Cycling mit sofortiger Wirkung gekündigt.
Am 24. November 2005 unterzeichnete Jan Ullrich das Formular „Lizenzbegehren 2006 für Athleten“ für die Kategorie Elite International sowie das Formular „Meine Verpflichtung gegenüber dem Radsport“. Am 1. Dezember 2005 ist bei Swiss Cycling
der von Jan Ullrich unterzeichnete Lizenzantrag für das Jahr 2006 eingegangen und eine Lizenz für 2006 anschließend auch erteilt worden. Bestandteile des Lizenzbegehrens und der Verpflichtungserklärung sind die Anerkennung der Statuten und Reglementen der UCI, von Swiss Cycling und von Swiss Olympic, inklusive der Zustimmung, sich dem Antidoping-Reglement der UCI, des Welt-Antidoping-Kodex (nachfolgend „WADC“) der World Anti-Doping Agency (nachfolgend „WADA“) sowie den Antidoping-
Bestimmungen anderer zuständiger Stellen gemäß den Reglementen der UCI, Swiss Cycling, Swiss Olympic und des WADC, sofern sie mit dem WADC konform sind, zu unterwerfen und an diese gebunden zu sein, sowie die Zustimmung, sich jederzeit den
von den zuständigen Antidoping-Behörden durchgeführten Kontrollen zu unterziehen, und schließlich die Anerkennung der zuständigen Disziplinarbehörden bei der Beurteilung von Dopingvergehen.
Im Rahmen der von der spanischen Guardia Civil und dem Untersuchungsrichter Nr.31 von Madrid im Jahr 2004 eröffneten Ermittlungen unter dem Namen „Operación Puerto“
wurden am 23.Mai 2006 in den beiden Madrider Wohnungen des spanischen Arztes Dr. Eufemiano Fuentes Hausdurchsuchungen durchgeführt. Die Guardia Civil, die einen Bericht („Bericht Nr. 116“) am 27. Juni 2006 verfasste, der Bezug auf einige der
Dokumente nahm, die bei den Hausdurchsuchungen in den Madrider Wohnungen gefunden wurden, eröffnete offiziell ein Ermittlungsverfahren u.a. gegen Dr. Fuentes wegen Gefährdung der öffentlichen Gesundheit. Aufgrund der damals in den
Räumlichkeiten von Dr. Fuentes beschlagnahmten Dokumente ergaben sich Indizien, welche auf mögliche Dopingvergehen von mehreren international bekannten Athleten, darunter auch von Jan Ullrich, hinwiesen.
Die Ermittlungen der spanischen Behörden führten zu Ullrichs Ausschluss von der Tour de France und zur Kündigung durch T-Mobile am 21. Juli 2006.
Eine Kopie des Berichtes Nr. 116 der Guardia Civil wurde dem spanischen Sport-Dachverband Consejo Superior de Deportes übergeben, der sie an die Real Federación Española de Ciclismo, die UCI und die WADA weiterleitete.
Mit Schreiben vom 11. August 2006 an Swiss Cycling forderte die UCI – gestützt auf den erwähnten Bericht Nr. 116 – den schweizerischen Verband auf, gegen Jan Ullrich ein
Disziplinarverfahren vor der Disziplinarkammer für Dopingfälle von Swiss Olympic (nachfolgend „Disziplinarkammer“) gemäß den Artikeln 182 bis 185 und 224 ff. des UCI Antidoping Reglements einzuleiten.
Swiss Cycling leitete das Schreiben der UCI mit den erwähnten Unterlagen an die FDB weiter, das gemäß Doping-Statut von Swiss Olympic in der damals geltenden Fassung für die Organisation der nicht-staatlichen Dopingbekämpfung generell und für die
Antragstellung und Wahrnehmung der Parteistellung in Verfahren vor der Disziplinarkammer im Besonderen zuständige Organ von Swiss Olympic.1 Die FDB führte zunächst die Ermittlungen in dem Fall fort.
Am 19.Oktober 2006 beendete Jan Ullrich seine Mitgliedschaft bei Swiss Cycling. Die Beendigung der Mitgliedschaft wurde ohne Anerkennung des Vorliegens eines wichtigen Grundes bestätigt und die unverzügliche Rückgabe der Lizenz verlangt.
Am 26. Februar 2007 kündigte Jan Ullrich offiziell die Beendigung seiner aktiven Radsportkarriere an.

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