CAS 2009_A_1802 WADA vs CONI & Perotto

28 Aug 2009

CAS 2009/A/1802 WADA v/ CONI & Perotto

On 11 October 2008, at the final of Gran Fondo d'Italia, a cycling race in Carpi under the authority of UDACE-CSAIN, Ms Perotto had to undergo a doping control which had been ordered by the Ministerial Commission according to the Italian act n° 376/2000. The analysis of the bodily sample of Ms Perotto showed the presence of 19-Norandrosterone and 19-Noretiocholanolone. Both substances are Endogenous Anabolic Androgenic Steroids that appear on the WADA 2008 (as well as 2009) List of Prohibited Substances under class SI, Anabolic Agents, and are forbidden in and out of
competition when administered exogenously. The exogenous use of 19- Norandrosterone' was establised by the Anti-Doping Laboratory in Rome having detected that the concentration of this substance in the bodily sample of Ms Perotto was greater than 2 ng/ml, There is no explicit reference in the laboratory report with regard to the exogenous use of 19-Noretiocholanolone.

CAS 2008_O_1643 Vladimir Gusev vs Olympus Sarl

15 Jun 2009

TAS 2008/O/1643 Vladimir Gusev c/ Olympus sarl
CAS 2008/O/1643 Vladimir Gusev vs Olympus Sarl

Related case:
Swiss Federal Court 4A_352/2009
October 13, 2009
Swiss Federal Court 4A_368/2009 Vladimir Gusev vs Olympus Sarl
October 13, 2009

The case involved a Russian racing cyclist, Vladimir Gusev and a Belgian Company Olympus Sarl. Olympus hired Gusev for two years on November 15, 2007 and the contract was governed by Swiss law. On 23 July 2008, Olympus Sarl terminated the contract, alleging that a medical report seriously suggested that the cyclist had taken exogenous EPO.

The Athlete Gusev started arbitration proceedings in front of the Court of Arbitration for Sport (CAS) and on 15 June 2009 the CAS Panel found for Gusev and ordered Olympus to pay damages.

Hereafter Olympus filed without succes an appeal and a revision with the Swiss Federal Court.

CAS 2008_A_1698 Riccardo Ricco vs CONI

17 Mar 2009

TAS 2008/A/1698 Riccardo Ricco c. CONI
CAS 2008/A/1698 Riccardo Ricco vs CONI

In July 2008 the Agence française de lutte contre le dopage (AFLD), the French Anti-Doping Agency, has reported an anti-doping rule violation against the Italian Athlete Riccardo Ricco after his A and B samples tested positive for the prohibited substance methoxy polyethylene glycol-epoetin beta (CERA).
Therefore the CONI Anti-Doping Prosecution Office (UPA) notified the Athlete and ordered a provisional suspension.

The Athlete admitted the violation and stated the substance was administered in Italy before his participation to the Tour de France. As substantial assistance the Athele testified about the doping involvement of dr. Santuccione and other Athletes.
On 2 October 2008 the Tribunale Nazionale Antidoping del CONI (TNA), the CONI National Anti-Doping Tribunal, decided to impose a 2 year period of ineligibility on the Athlete.

On 11 November 2008 the Athlete appealed the TNA decision of 2 October 2008 with the Court of Arbitration for Sport (CAS). The Athlete argued that there were grounds to reduce the imposed period of ineligibility.
The Sole CAS Arbitratior considered the Athlete’s violation and his substantial assistance and decides on 17 March 2009:
1.) The appeal filed by Riccardo Ricco against the CONI TNA decision of 2 October 2008 is partially accepted.
2.) The CONI TNA of 2 October 2008 is partially reformed.
3.) The Athlete Riccardo Ricco is suspended from all sports activity for a periode of 20 (Twenty) months. This period runs from 18 July 2008.
4.) Any other claim made by the parties shall be rejected.
5.) (…)

CAS 2008_A_1612 Michael Rasmussen vs FMC

22 Jan 2009

TAS 2008/A/1612 M, Rasmussen c/ FMC
CAS 2008/A/1612 Michael Rasmussen c/ FMC

Related cases:
CAS 2011_A_2671 UCI vs Alex Rasmussen & The National Olympic Committee and Sports Confederation of Denmark
July 4, 2012
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

Facts
Michael Rasmussen, the appellant, appeals against the of the Cycling Federation of Monaco (Fédération Monégasque de Cyclisme, FMC) dated June 30, 2008. In this decision he received a period of ineligibility of two years starting from July 26, 2007.

History
By letter of 22 December 2006 UCI Rasmussen was informed of his inclusion in the target group of riders out of competition subject to the UCI controls for 2007 pursuant to Article 74 of the UCI Anti-Doping Rules ("RAD"), herefore requiring him to provide location information within the meaning of Articles 78 to 81 RAD. Ie it does not dispute.

Rasmussen started July 7, Tour de France 2007 in London. At the end of stage 25 July 2007, he was suspended by the General Managing Director of the Rabobank in relation to localization issues discussed below and the resulting warnings.
July 26, 2007, he was dismissed with immediate effect by Rabobank.
He received 4 warnings instructions between May 8, 2007, and January 4, 2008.

Details:
- 1th warning set by the Anti-Doping Danmark (ADD) May 8, 2007 for a failed inspection by ADD home has Lazise (Italy) April 6, 2007 where he was to reside under the initial location information. He will explain some According to the ADD he left April 5, 2008 in Bilbao. Rasmussen failing to report the change of location to the UCI and has provided no explanation for this omission, he received the first warning.
- 2th warning set by the UCI June 29, 2007 for sending information later. The UCI has indeed received June 11, 2008 a letter from Mr. Rasmussen that he was in Mexico from June 4 to 12, 2008. On June 26, 2007, Mr. Rasmussen said he had the right to provide information on his movements by post, these explanations were rejected by the UCI, accordingly, notified him the 2nd warning.
- 3th warning set by the ADD July 10, 2007 for a missed test performed by the ADD in Lazise (Italy) June 21, 2007 where it should be according to the original location information required for the 2nd quarter of 2007. Rasmussen did not give any explanation within the time limit, he received the 3rd warning.
- 4th warning set by the UCI January 4, 2008 for false location information. Indeed, by fax allegedly sent from Lazise June 26, 2007 - but received by the UCI June 27, 2007, Mr. Rasmussen stated that he remained in Mexico until then and it would be in the French Pyrenees 27 and 28 June 2007; in fact, he had stayed in the French Alps June 21 to 24, 2007, and in the French Pyrenees from 25 to 29 June 2007.

The UCI has taken note of this fact after reading the report of the Committee on Vogelzang November 12, 2007 and the hearing of Rasmussen on 13 November 2007. She was then contacted for the rider's warning breach of its obligations location on November 30, 2007. December 17, 2007, Rasmussen admitted the validity of the warning; after which, the UCI sent him a warning set January 4, 2008.
By letter dated February 8, 2008, the Anti-Doping Commission of the UCI has asked the FMC ouverture disciplinary proceedings against Mr. Rasmussen for violation of Articles 15.3, 15.4 and 15.5 FDR.
On 28 May 2008, the case was heard by a hearing before the Board of CME ("Commission Hearing"). The sanction is mentioned above.

Objections Michael Rasmussen
The appellant questions the first three warnings from he ADD because of incompetence. Also he disagrees with the fact that the whereabouts can't be handled in writing.

Objection FMC
It was known that the leaders of his team (Rabobank) were aware of its places situation in spring 2007, which is also apparent from the verdict of the Court of Utrecht 2 July 2008 (employment tribunal case) in which Mr. Rasmussen succeeded on Rabobank on Rabobank conceming the unfair dismissal.

Considerations CAS
Is is proven that appellant had delivered false information which was fraudulent infomation that rendered any inoperative control.

Decision
1. The appeal is rejected.
2. The decision of the FMC is confirmed.

CAS 2008_A_1591 ASADA vs Mr Nathan O'Neill - Appeal

1 Jan 2009

CAS 2008/A/1591 Appeal by ASADA v Mr Nathan O'Neill
CAS 2008/A/1592 Appeal by WADA v Mr Nathan O'Neill & CA & ASADA
CAS 2008/A/1616 Appeal by UCI v Mr Nathan O'Neill

Mr Nathan O'Neill is an Australian professional cyclist who is affiliated with Cycling Australia (CA). Mr O'Neill was issued with an infraction notice on 31 March 2007 for a positive finding of a prohibited substance in-competition. The matter was referred to CAS on ASADA's application, on behalf of CA, on 14 April 2007.
The Hon Justice Jeffery Spender was appointed sole Arbitrator and an Order of Procedure was agreed between ASADA (on behalf of CA) and Mr O'Neill. A hearing took place on 11 June 2008. The athlete admitted to an anti-doping rule violation of CA. The Arbitrator rendered his award dated 13 June 2008. He issued the award in accordance with the antidoping policy of CA.
ASADA, UCI and WADA each challenged the award on the following grounds:
(a) Having found the athlete had committed an anti-doping rule violation under the CA anti-doping policy, the Arbitrator was in error in then finding that Mr O'Neill had established that there had been, in relation to his CA anti-doping rule violation "No Significant Fault or Negligence" on his part thereby reducing his ineligibility to compete from the general sanction of a two years period of ineligibility to a 15 month period of ineligibility.

CAS 2008_A_1587 Luca Ascani vs CONI & FCI

9 Feb 2009

TAS 2008/A/1587 Luca Ascani c. UPA-CONI & FCI
CAS 2008/A/1587 Luca Ascani vs CONI & FCI

Facts
Luca Ascani, the cyclist, appeals against the decision of the appeal committee of CONI, date May 9, 2008, in which the sanction was a period of ineligibility of two years, starting from June 12, 2008.

History
The cyclist was subject of a doping control on June 26, 2007, during a match. Analysis of his sample showed the presence of recombinant human erythropoietin (rhEPO). He immediately went into a voluntary suspension for 60 days. But he requested a B-sample analysis in the presence of an expert he mandated. The B-sample confirmed the result of the analysis of the A-sample. The hearing was held before the Italian National Olympic Committee (Comitato Olimpico Nazionale Italiano - CONI) and the sanction, dated December 3, 2007, was a period of ineligibility of two years. The cyclist appealed against this decision but the renewed decision, May 9, 2008, remained the same. The cyclist then brought this case before the Court of Arbitration for Sport (CAS).

The cyclist
In his argumentation the cyclist stresses that the time between the final decision and the decision in first instance had lasted 8 months, which can be seen as lapsed time limit. During the sample collection there where irregularities which he forgot to mention on the doping control form. The received second decision which originally was in color was received as an insufficient legible fax. Also he feels that he was not allowed to explain his appeal properly in the hearing. The results from the samples A and B are indifferent.

The Anti-Doping Comittee of CONI
The Anti-Doping Comittee of CONI disagrees with the lapse of the time limit because of the concern to ensure a full and fair procedure, also for the late receipt of certain documents. The mentioned irregularities should have been reported by him to the person in charge. The cyclist had the opportunity to be present at the B-sample analysis. The conclusions about both samples or in order. The appeal of the cyclist should be rejected.

CAS
Is was taken into consideration that the whole procedure had taken much time.

Decision
1. The appeal by Luca Ascani against the decision, dated May 9, 2008, by the appeal committee of the CONI is partially admitted.
2. The decision made May 9, 2008, by the appeal committee of CONI should be modified and the two-year suspension should start from August 4, 2007;
3. The results on June 26, 2007 by Luca Ascani during the race are cancelled ;
4. The cyclis has to pay the admission fees CHF 500.- to the CAS
5. All other or further conclusions are rejected.

CAS 2008_A_1555 UCI vs Andrey Kashechkin & KCF

6 Aug 2009

CAS 2008/A/1555 UCI vs Andrey Kashechkin & KCF
CAS 2009/A/1779 Andrey Kashechkin vs Kazakhstan Cycling Federation (KCF) & Union Cycliste Internationale (UCI)
-
TAS 2008/A/1555 UCI v/ A. Kashechkin & Kazakhstan Cycling Federation (CFRK)
TAS 2009/A/1779 Andrey Kashechkin c/Kazakhstan Cycling Federation (CFRK & Union Cycliste Internationale (UCI)

Facts
The UCI appeals against the decision, dated December 25, 2008, of the Kazakhstan Cycling Federation (KCF) in the case of Andrey Kashechkin, the cyclist, who was suspended for two years. The UCI wants additionally that the results of the cyclist from August 1, 2007, are cancelled and ordered to pay compensation costs. At the same time the cyclist appeals against the decision and want to be acquitted and recieve a new decision.

History
On the August 1, 2008, the cyclist was undergoing an out-of-competition doping control for which a blood-sample was taken. He had mentioned the use of medication on the doping control form. His sample showed the presence of a double red blood cell population indicating a homologous blood transfusion. The cyclist request a B-sample analysis but doesn't want to present at the analysis or use an expert fore his representation. The results of the B-analysis confirm the results of the A-sample and the cyclist accepts a provisional suspension.

The cyclist claims that there are possibilities which make two bloodtypes possible. However it is scientifically demonstrated that the rider was able to make a homologous transfusion before or during the 2007 Tour de France.

Decision
1. The CAS doesn't need to rule on the appeal of the UCI's against the decision of April 8, 2008 by the National Cycling Federation of Kazakhstan (CFRK).
2. The appeal filed January 29, 2009 by Andrey Kashechkin against the decision of December 25, 2008 of the Anti-Doping Commission of the National Federation of Kazakhstan cycling (CFRK) is rejected.
3. Holds that the decision of the Anti-Doping Commission of the National Federation of Kazakhstan cycling (CFRK) December 25, 2008, which suspends Andrey Kashechkin for the period from August 7, 2007 to August 6, 2009, is confirmed.
4. Condemns Andrey Kashechkin to pay the UCI CHF 1,000 for the immaterial costs by the Anti-Doping Commission of the UCI.
5. Condemns National Cycling Federation of Kazakhstan (CFRK) to reimburse UCI the sum of CHF 2,000 (two thousand Swiss francs) for costs, rights Grafting CHF 500 (five hundred Swiss francs) paid by Andrey Kashechkin and UCI to deposit their remaining acquired the CAS appeal.
6. Rejects all other and further submissions of the parties.

CAS 2008_A_1458 UCI vs Alexandere Vinokourov & KCF - Final Award

30 Aug 2010

CAS 2008/A/1458 UCI v. Vinokourov & KCF

Related case:
CAS 2008_A_1458 UCI vs Alexandere Vinokourov & KCF - Partial Award
July 23, 2009

In July 2007 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Kazakh cyclist Alexander Vinokourov after his A and B blood samples tested positive for blood doping.
On 5 December 2007 the Kazakh Cycling Federation (KCF) decided to impose a 1 year period of ineligibility on the Athlete.

Hereafter in December 2008 the UCI appealed the KCF decision of 5 December 2008 with the Court of Arbitration for Sport (CAS). Previously in January 2008 the UCI had suspended this appeal because the Athlete had declared to end his career. However in September 2008 the Athlete announced his return to competition and the UCI requested CAS to reactivate the proceedings.

The UCI requested the Panel to set aside the KCF decision of 5 December 2008 and to impose a 2 year period of ineligibility on the Athlete including payment for costs.

In his defence the Athlete admitted the anti-doping violation and accepted a 2 year period of ineligibility. He mainly challenged the extension of the sanction sought by UCI on the basis of Article 277 ADR. The Athlete rejected the payments requested by the UCI.

UCI and the Athlete were in a dispute about the validity and enforceability of the Athlete's commitment for contribution. Here the Athlete had to pay an amount equal to his annual salary from 2007 as contribution to the fight against doping. Whereas UCI chiefly is of the opinion that the commitment is legally valid and the infringement of the Athlete’s personality rights is justified by his free consent and overriding public interest. The Athlete challenged the validity of the commitment mainly because he was not free to sign or reject the commitment which was the precondition for his participation in the Tour de France 2007.

The Panel ruled that the dispute about the payment of the contribution as a matter independent of the dispute on the date of the Athlete’s reinstatement is not yet ready for a decision.
Hence, the Panel issues the decision as a Partial Award about the Athlete’s anti-doping rule violation.

The Panel concluded that the Athlete committed the anti-doping rule violation in the form of blood doping. As a result the Panel decided in its Partial Award on 23 July to set aside the decision of 5 December 2007 of the Anti-Doping Commission of the Kazakhstan Cycling Federation and to impose a 2 year period of ineligibility on the Athlete starting on 24 July 2007.

In the matter of the Athlete’s commitment the Panel concludes that the “Athlete´s commitment for a new cycling”, according to the true intent of the parties to the commitment and, in particular, of UCI which had conceived and introduced the commitment unilaterally, constitutes an action directed to the public, the media, sponsors and the Tour de France organizer in order to regain public credibility and esteem for the sport of cycling, in general, and the Tour de France 2007, in particular. Therefore, according to Article 18 CO, UCI and the Athlete did not agree on a valid and binding penalty clause under Swiss civil law.

The Panel comes to the final conclusion that there is no legal basis for UCI to claim the payment of a contribution under the Athlete's commitment. Accordingly, he is not obliged to make the payment requested by UCI. Against this background, further prayers for relief and further considerations of the parties are dismissed.

Therefor the Court of Arbitration for Sport decides on 30 August 2010:

1.) Paragraphs 1 to 3 of the Partial Award issued on 16 June/23 July 2009 in the present procedure are ratified.
2.) No payment is due by Mr. Vinokourov under the “Rider's commitment for a new cycling” signed on 29 June 2007; consequently, the relief requested by the UCI in its written statement dated 4 September 2009 is dismissed.
3.) The arbitration costs incurred in the proceedings after the issuance of the Partial Award, which shall be determined and separately communicated to the parties by the CAS Court Office, shall be entirely born by UCI.
4.) Each Party shall bear its own legal expenses incurred in the proceedings until the delivery of the Partial Award.
5.) UCI is ordered to pay to Mr. Vinokourov as contribution to his legal expenses incurred in the proceedings after the issuance of the Partial Award an amount of CHF 10'000.- (ten thousand Swiss francs).
6.) All other and further prayers for relief are dismissed.

CAS 2007_A_1444 UCI vs Iban Mayo Diez & RFEC

11 Aug 2008

TAS 2007/A/1444 UCI c/Iban Mayo & RFEC
TAS 2008/A/1465 UCI c/Iban Mayo & RFEC

TAS 2007/A/1444 & TAS 2008/A/1465 UCI c/Iban Mayo & RFEC

CAS 2007/A/1444 UCI vs Iban Mayo & RFEC
CAS 2007/A/1465 UCI vs Iban Mayo & RFEC


On 19 October 2007 and again on 27 December 2007 the Royal Spanish Cycling Federation (RFEC) decided to to cease the proceedings againt the cyclist Iban Mayo Diez and to acquit him because of the inconclusive test results regarding the presence of recombinant Erythropoietin (rhEPO) in his A and B samples.

Here the Paris Lab detected the presence of EPO in the Athlete’s A sample while during the analysis of the A sample the volume of urine was insufficient to establish the presence of EPO due to several abnormalities had been detected. In a second opinion the Lausanne Lab confirmed the presence of rhEPO in the Athlete’s A sample.

At the request of the Athlete his B1 sample was tested and the Ghent Lab reported - with the second opinion of the Sydney Lab - that the test results for rhEPO were inconclusive.
After deliberations between the Athlete and the UCI his B2 sample was tested in the Paris Lab and the presence of rhEPO was established and confirmed.

Hereafter in December 2007 and in January 2008 the UCI appealed the two RFEC decisions with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the RFEC decisions of 19 October and 27 December 2007 and to impose a 2 year period of ineligibility on the Athlete.

The Athelete requested the Panel to uphold the RFEC decisions and to set aside the test results as several departures of the ISL occurred. The Athlete argued that these departures leads to doubts about the integrity, validity and identity of the analysed samples. Further the Athlete asserted that the UCI violated his fundamental rights.

The Panel establish that the samples in question arrived sealed in the Paris Lab and the absence of the additional seal as precaution for the transport packing is no departure of the ISL. Also the chain of custody documentation and testimonies demonstrate that er was no doubt about the identity of the analysed samples.
The Panel establish that there was indeed a departure of the ISL when the Paris Lab switched to another method for establishing the presence of the prohibited substance instead of using a new aliguote from the A sample.

Considering the circumstances and arguments in this case the Panel accepts the test result of the Athlete’s B2 sample which confirmed the presence of rhEPO in his A sample. The Panel finds that the UCI establish the presence of rhEPO in the Athlete’s samples and as a result the two RFEC decisions in favour of the Athlete must be set aside.

Therefore the Court of Arbitration for Sport decides on 11 August 2008:

1.) The appeals of the UCI are admissible;
2.) The decisions rendered on 19 October 2007 and 27 December 2007 by the National Committee of the RFEC are set aside;
3.) The Athlete is sanctioned with a suspension of two years from July 31, 2007;
4.) The Athlete is disqualified from the "Tour de France 2007";
5.) The cyclist pays to the UCI, the amount of CHF 1,000 for costs;
6.) The UCI has to pay the admission costs, of CHF 500.- to CAS;
7.) Orders the RFEC to pay a contribution for legal fees of the UCI of CHF 2,000
8.) Each party has to bear its own lawyer costs;
9.) All other or further claims are dismissed.

CAS 2007_A_1362 CONI vs Alessandro Petacchi & FCI

5 May 2008

CAS 2007/A/1362 CONI v/ Petacchi & FCI
CAS 2007/A/1393 WADA v/ Petacchi & FCI

CAS 2007/A/1362 Comitato Olimpico Nazionale Italiano (CONI) v. Alessandro Petacchi & Federazione Ciclistica Italiana (FCI) & CAS 2007/A/1393 World Anti-Doping Agency (WADA) v. Alessandro Petacchi & FCI

Cycling
Doping (salbutamol)
Abbreviated Therapeutic Use Exemption
Shift of the burden of proof
No Significant Fault or Negligence
Reduction of the period of Ineligibility
Disqualification from a sport event

1. Salbutamol is a Prohibited Substance, both in and out of competition, under Class S3, Beta-2 Agonists. As an exception, when administered by inhalation, Salbutamol requires an abbreviated Therapeutic Use Exemption (ATUE).

2. In cases where an athlete is granted with an ATUE and the sample shows a higher concentration of the substance granted, the burden shifts to the athlete to demonstrate that such concentration was the consequence of the therapeutic use of the substance in question.

3. The fault or negligence is considered as non significant, when viewed in all the circumstances and taking into account the criteria for no fault or negligence, i.e. in cases where the overdose was taken with no aim of enhancing the athlete’s performance, like when taking the overdose after the conclusion of the particular sport event.

4. The no significant fault or negligence leads to a reduction of the period of ineligibility, which the athlete would otherwise have to suffer.

5. Following the existing CAS case law, in cases where there is no provisional suspension imposed or voluntarily accepted, a CAS panel may nevertheless take into account the pressure placed on the athlete from sports bodies and others, if the athlete was not able to participate in one or more events while the anti-doping proceedings were pending.

6. According to the applicable regulations, if the event is a stage race, an anti-doping violation committed in connection with any stage entails disqualification from the event except when 3 conditions are fulfilled, among which the athlete must establish that he bears no fault or negligence. The conditions for the exception are cumulative; if the athlete cannot establish that he bears no fault or negligence, he must be disqualified from the whole sporting event.


In June 2007 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Italian cyclist Alessandro Petacchi after his sample tested positive for the substance Salbutamol in a concentration above the WADA threshold (1352 ng/ml).

Here the Athlete had an Abbreviated Therapeutic Use Exemption (ATUE) that authorized him to use three doses of 200 mcg of Salbutamol by inhaltation per day, and three doses of 0.5 mcg Betamethasone by aerosol per day.

On 24 July 2007 the Disciplinary Commission of the Italian Cycling Federation (FCI) ruled that the Athlete didn’t commit an anti-doping rule violation. When appealed by the Ufficio Procura Antidoping of the Italian National Olympic Committee (UPA-CONI) the FCI Appeals Commission ruled that the appeal was inadmissible and that the Court of Arbitration for Sport (CAS) has jurisdiction.

Hereafter in August 2007 both UPA-CONI and the World Anti-Doping Agency (WADA) appealed the FCI decision of 24 July 2007 with CAS.

UPA-CONI and WADA argued that a concentration of 1352 ng/ml in the Athlete’s urine could not have been achieved if he had only used his Ventolin inhaler in accordance with the terms of his ATUE as to the dose, frequency and route of administration of Salbutamol. They relied on the expert opinions and the results of the enantiomer analysis done on the Athlete’s urine sample by the Barcelona Laboratory.

The Panel concludes that the Athlete has failed to show, on the balance of probabilities, that the Salbutamol concentration of 1352 ng/ml found in his sample was "the consequence of the therapeutic use of inhaled Salbutamol". The Panel is not satisfied, on the balance of probabilities, that the result was the consequence of him inhaling Salbutamol in accordance with his ATUE.

The Panel holds that the Athlete’s experts did not provide sufficient evidence for the Athlete to demonstrate, on the balance of probabilities, that there were any special factors (such as the Athlete accumulating the S enantiomers, using a sub-optimal inhalation technique, or having an impaired renal function) which caused the results in this case.

The Panel notes, however, that the Athlete is asthmatic. He was authorised to inhale a particular dose of Salbutamol per day. In circumstances where the heat and humidity of the day made it natural for him to feel the need to make greater use of his inhaler than under normal cycling conditions, the Panel is satisfied that the explanation for the concentration of Salbutamol found in his urine was that he took too many puffs of his Ventolin inhaler on that day, including some after the race.

The Panel is satisfied that the Athlete is not a cheat, and that the adverse analytical finding in this case is the result of the Athlete simply, and, possibly, accidentally, taking too much Salbutamol on the day of the test, but that the overdose was not taken with the intention of enhancing his performance. Indeed, it would be an unusual way of attempting to enhance performance to take the prohibited substance after the particular event had concluded.

ln the circumstances, the Panel is satisfied that the Athlete bears No Significant Fault or Negligence because his fault or negligence, when viewed in all the circumstances and taking into account the criteria for no fault or negligence, was not significant in relation to this anti-doping rnle violation. It follows, therefore, that the Panel can reduce the period of ineligibility which he would otherwise have to suffer.

Therefore the Court of Arbitration for Sport decides on 5 May 2008 that:

1.) The appeals by UPA-CONI and WADA against Decision no. 21 /2007 issued on 24 July 2007 by the Disciplinary Commission of the FCI are admissible.
2.) The appeals by UPA-CONI and WADA against Decision no. 21 /2007 issued on 24 July 2007 by the Disciplinary Commission of the FCI are allowed. That decision is set aside.
3.) Mr. Petacchi has breached Article 15.1 of the UCI Anti-Doping Rules.
4.) In accordance with Articles 261 and 265 of the UCI Anti-Doping Rules Mr. Petacchi is ineligible to compete for a total period of one year, with two months credited against such period in accordance with Articles 255 and 275 of the UCI Anti-Doping Rules. Therefore, the period of ineligibility will start on 1 November 2007 and will expire on 31 August 2008.
5.) All competitive results obtained by Mr. Petacchi during the 2007 Giro d'Italia shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.
6.) Mr. Petacchi can retain all competitive results between 23 May 2007 and 31 October 2007, but all competitive results obtained after 31 October 2007 and during the period of ineligibility will be disqualified.
7.) All other prayers for relief are dismissed.
8.) Each party shall bear its own costs, save for the CAS Court Office fee, which will be retained by the CAS.

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