6 Feb 2012
CAS 2011/A/2384 Union Cycliste Internationale (UCI) v. Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) & CAS 2011/A/2386 World Anti-Doping Agency (WADA) v. Alberto Contador Velasco & RFEC
CAS 2012/A/3055 Riis Cycling vs Licence Commission of the UCI
October 11, 2013
Food supplement contamination
Admissibility of the testimony of a protected witness
Admissibility of the polygraph examination
Adverse analytical finding
Burden of proof (principle)
Balance of probability standard
Proof of negative fact
Starting point of the period of ineligibility
1. The admission of anonymous witnesses potentially infringes upon both the right to be heard and the right to a fair trial of a party guaranteed by the European Convention of Human Rights and the Swiss Constitution since personal data, record of a witness and the right to ask questions are important elements of information to have in hand when testing the witness’ credibility. However, with respect to anonymous witness statements the Swiss Federal Tribunal stressed that their admission does not necessarily violate the right to a fair trial. According to the Swiss Federal Tribunal, if the applicable procedural code provides for the possibility to prove facts by witness statements, it would infringe the principle of the court’s power to assess the witness statements if a party was prevented from the outset from relying on anonymous witness statements. According to the Swiss Federal Court the right of a party to use anonymous witness statements must be nevertheless subject to strict conditions namely the witness must be concretely facing a risk of retaliations by the party he is testifying against if his identity was known, the witness must be questioned by the court itself which must check his identity and the reliability of his statements; and the witness must be cross-examined through an “audiovisual protection system”.
2. Based on the Panel’s powers to administrate proof under Art. 184 PILA, given the Appellants acceptance that the polygraph examination is admissible as evidence per se and taking into consideration the entry into force of the WADC, the results of the polygraph examination undergone by the athlete are admissible in the particular case,
the credibility of which must nonetheless be verified in light of all the other elements of proof adduced.
3. Under Article R51 of the CAS Code, an expert testimony on a specific issue requested by the Appellant has to be mentioned in the expert opinion included in the Appellant’s written submissions. Addressing questions to an expert on a specific issue not included in the expert opinion at the stage of the hearing is not allowed in principle under Article R56 of the CAS Code.
4. Considering that clenbuterol is a non threshold prohibited substance, the fact that the concentration is extremely low does not have any effect on the result. It is therefore undisputed given the analytical reports made by the Laboratory and the confirmation of the adverse analytical finding by the B Sample that the athlete has committed an anti-doping rule violation and that the Appellants have met the standard of proof.
5. Pursuant to the UCI ADR and according to the established CAS jurisprudence, once an adverse analytical finding has been established the burden of proof shifts to the athlete who has to establish on the balance of probabilities in order to escape a sanction or to obtain a reduction of the sanction, how the prohibited substance entered his/her system and that he/she in an individual case bears no fault or negligence, or no significant fault or negligence.
6. For the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The athlete thus needs to show that one specific way of ingestion is marginally more likely than not to have occurred.
7. Under Art. 8 of the Swiss Civil Code (CC), unless the law provides otherwise, each party must prove the facts upon which it is relying to invoke a right, thereby implying that the case must be decided against the party that fails to adduce such evidence. A valid contestation of facts needs to be specific, i.e. it must be directed and attributable to an individual fact submitted by the party bearing the burden of proof. According to the doctrine, the threshold for meeting such an obligation to specify the contestation is – under normal circumstances – rather low, since it must be avoided that the prerequisites for contesting an allegation result in a reversal of the burden of proof. Nevertheless, there are exceptions to this low threshold. The exceptions concern cases in which a party is faced with a serious difficulty in discharging its burden of proof (“état de nécessité en matière de preuve”, “Beweisnotstand”. This is the case whenever a party needs to prove “negative facts”. In this respect, the Swiss Federal Tribunal makes it clear that difficulties in proving “negative facts” result in a duty of cooperation of the contesting party who must cooperate in the investigation and clarification of the facts of the case. However, the above difficulties do not lead to a re-allocation of the risk if a specific fact cannot be established. Instead, this risk will always remain with the party having the burden of proof.
8. The athlete can only succeed in discharging his burden of proof by proving that (1) in his particular case meat contamination was possible and that (2) other sources from which the Prohibited Substance may have entered his body either do not exist or are less likely. The latter involve a form of negative fact that is difficult to prove for the athlete and which requires the cooperation of the Appellants. Thus, it is only if the theory put forward by the Athlete is deemed the most likely to have occurred among several scenarios, or if it is the only possible scenario, that the Athlete shall be considered to have established on a balance of probability how the substance entered his system, since in such situations the scenario he is invoking will have met the necessary 51% chance of it having occurred. Unlike certain other countries, notably outside Europe, Spain is not known to have a contamination problem with clenbuterol in meat. Furthermore, no other cases of athletes having tested positive to clenbuterol allegedly in connection with the consumption of Spanish meat are known. As a result, no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities has been established.
9. Pursuant to the UCI ADR, the period of ineligibility shall be two years for a first anti-doping rule violation. If none of the conditions for eliminating or reducing the period of ineligibility are applicable – in particular because the exact contaminated supplement is unknown and the circumstances surrounding its ingestion are equally unknown – the period of ineligibility shall not be reduced. Moreover, the athlete is automatically disqualified from the competition in the course of which he was tested. In addition, the results obtained in all competitions the athlete participated as from the date when the ineligibility period is deemed to have begun are also disqualified.
10. According to the UCI ADR where there have been substantial delays in the hearing process or other aspects of Doping Control not attributable to the License-Holder, the Panel is entitled to fix the start of the period of ineligibility at an earlier date commencing as early as the sample collection. In addition the provisional suspension imposed and respected by the licence-holder must be deducted from the period of ineligibility.
In August 2010 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist Alberto Contador after his A and B samples tested positive for the prohibited substance Clenbuterol in a low concentration.
On 14 February 2011 the Royal Spanish Cycling Federation (RFEC) decided to acquit the Athlete based solely on the notification of the test results and the evidence filed by the Athlete. Here the UCI and the World Anti-Doping Agency (WADA) did not provide the documentary and scientific evidence to the examining judge.
Hereafter in March 2011 both UCI and WADA appealed the RFEC decision with the Court of Arbitration for Sport (CAS). The UCI and WADA requested the Panel to set aside the RFEC decision of 14 February 2011 and to impose a 2 year period of ineligibility on the Athlete.
In this case the Athlete objected to the admission of an anonymous witness statement filed by WADA while WADA objected to the admission of new evidence filed by the Athlete.
The UCI and WADA argued that the Athlete has the burden of proof to establish how the prohibited substance entered his system on a balance of probability.
The Panel notes that it is not in dispute that the UCI and WADA successfully established that the Athlete committed an anti-doping rule violation. Neither is it disputed that in order for the Athlete to escape a two-year sanction, he must establish, on a balance of probability:
- how the Prohibited Substance entered the Athlete’s system; and
- that he bears no fault or negligence, or no significant fault or negligence.
The Panel considered and weighted the evidence in this case and holds that the meat contamination scenario and blood transfusion theory are a possible explanation for the presence of clenbuterol in the Athlete’s Sample. However, in light of all the evidence adduced, the Panel finds it is very unlikely to have occurred. Further the Panel concludes that the Athlete’s positive test for clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat. This does not mean that the Panel is convinced beyond reasonable doubt that this scenario of ingestion of a contaminated food supplement actually happened.
Therefore the Court of Arbitration for Sport decides on 6 February 2012 that:
1.) The appeals filed by the Union Cycliste Internationale on 24 March 2011 and by the World Anti-Doping Agency on 29 March 2011 against Mr Contador and the Real Federación Española de Ciclismo concerning the decision of the Comité Nacional de Competicion y Disciplina Deportiva of the Real Federación Española de Ciclismo dated 14 February 2011 are partially upheld.
2.) The decision of the Comité Nacional de Competicion y Disciplina Deportiva of the Real Federación Española de Ciclismo dated 14 February 2011 is set aside.
3.) Mr Contador is sanctioned with a two-year period of ineligibility starting on 25 January 2011. The period of the provisional suspension will be credited.
4.) Mr Contador is disqualified from the Tour de France 2010 with all of the resulting consequences including forfeiture of any medals, points and prizes.
5.) Mr Contador is disqualified of the results of all the competitions he participated in after 25 January 2011 including forfeiture of any medals, points, and prizes.
7.) All other or further claims save for the fine issue pursuant to Article 326 of the UCI Anti-Doping Regulations which remains to be decided in a separate award, are dismissed.