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

16 Jan 2019

CAS 2008/A/1591 Australian Sports Anti-Doping Authority (ASADA) v. Nathan O’Neill

CAS 2008/A/1592 World Anti-Doping Agency (WADA) v. Nathan O’Neill, Cycling Australia (CA) & ASADA

CAS 2008/A/1616 Union Cycliste Internationale (UCI) v. Nathan O’Neill, award of 16 January 2009


  • Cycling
  • Doping (phentermine)
  • Applicable law on a subsidiary basis
  • Clearance time, detection time and standard of care expected from an elite athlete
  • Out-of-competition ingestion of a prohibited substance and no significant fault or negligence

1. So long as the sample testing of the athlete was conducted in an international event and, as the national federation is a member of the international federation (IF), the national federation is bound by the provisions of the IF’s anti-doping regulations, stating that in-competition, international events shall be governed by its anti-doping regulations “exclusively”. In such cases, the law of the country in which the body which has issued the challenged decision has its seat may be applied on a subsidiary basis, and Swiss law may also be additionally applied, particularly in reference to the interpretation and application of the rules of the IF, so long as the IF has its seat in Switzerland.

2. Even in a circumstance where the clearance time of a prohibited substance is longer than the detection time, it remains the responsibility of the athlete, at the time of competition, to ensure the prohibited substance has cleared from his/her body. When an athlete takes a substance which is prohibited in-competition, s/he has a responsibility to ensure, under the standard of care expected from an elite athlete, that at the time of competition, the substance has cleared from his/her system.

3. An athlete that deliberately ingested a prohibited substance has taken a very high risk and the fact that the athlete used this substance out-of-competition cannot constitute the “exceptional” circumstances which could justify a “no significant fault or negligence” finding and thereby give the athlete the benefit of a reduced sanction. Athletes who have used a prohibited substance out-of-competition have a personal duty to ensure a substance prohibited for in-competition is not found in his/her system on the occasion of an in-competition sample collection testing.


The Court of Arbitration for Sport decides on 16 January 2019:

1.) In matter No. CAS 2008/A/1591 & 1592 & 1616, the appeals are upheld.
2.) The decision of the CAS at first instance dated 13 June 2008 is set aside.
3.) The period of ineligibility of Nathan O’Neill shall be two years from 13 June 2008.
(…).

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)
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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.

CAS 2006_A_1120 UCI vs Aitor Gonzalez Jiménez & RFEC

20 Dec 2006

TAS 2006/A/1120 UCI c/ Aitor Gonzalez Jiménez & RFEC
CAS 2006/A/1120 UCI vs Aitor Gonzalez Jiménez & RFEC

In September 2005 the International Cycling Union (UCI) has reported 2 anti-doping rule violations against the Spanish cyclist Aitor Gonzalez Jiménez after his A and B samples - provided on two occasions in August and in September 2005 - tested positive for the prohibited substance 17α-methyl-5β-androstane-3α,17β-diol Methandriol Methyltestosterone.

On 12 May 2006 El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) on behalf of the Royal Spanish Cycling Federation (RFEC) decided on the basis of the assumption of innocence to acquit the Athlete and to impose only a fine on him for his failure to mention his supplement on the Doping Control Form. Here the CNCDD accepted that the positive test results were caused through his use of the supplement Animal Pak.

Hereafter in June 2006 the UCI appealed the Spanish decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the CNCDD decision of 12 May 2006 and to impose a 2 year period of ineligibility on the Athlete.

The Panel considered the Athlete’s conduct and his degree of fault in this case and finds that the Athlete established how the prohibited substance entered his system. He also failed in his duty to check the products before using it and the Panel holds that the Athlete failed to demonstrate that he bears No Significant Fault or Negligence in this case. The Panel accepts that the two reported anti-doping rule violations are to be considered as one single first anti-doping rule violation.

Therefore the Court of Arbitration for Sport decides on 20 December 2006:

1.) CAS is competent to hear the appeal filed by the UCI.
2.) The decision of the Royal Spanish Cycling Federation (RFEC) is reformed
3.) To impose on Mr Aitor Gonzalez Jiménez is a 2 year period of ineligibility starting on 28 September 2005.
4.) (…)

CAS 2006_A_1119 UCI vs Iñigo Landaluce Intxaurraga & RFEC

19 Dec 2006

TAS 2006/A/1119 Union Cycliste Internationale (UCI) c. L. & Real Federación Española de Ciclismo (RFEC)
CAS 2006/A/1119 UCI vs Iñigo Landaluce Intxaurraga & RFEC

In July 2005 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist Iñigo Landaluce Intxaurraga after his A and B samples tested positive for the prohibited substance Testosterone with a T/E ratio above the WADA threshold.

However on 5 May 2006 El Comite Nacional de Competicion y Disciplina Deportive (CNCDD) on behalf of the Royal Spanish Cycling Federation (RFEC) ruled that during the analysis of the samples there was the existence of an incomplete process which wasn’t in accordance with all requirements under the Rules and thus can not fully guarantee the test results. The CNCDD concluded that "the legal maxim" in dubio pro reo was fully applicable to this case. The case against the Athlete was closed and he was acquitted.

Hereafter in July 20016 the UCI appealed the CNCDD decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the CNCDD decision and to impose a 2 year period of ineligibility on the Athlete.
The Athlete, supported by an expert witness, argued that several departures occurred of the ISL leading to invalid test results.

Considering the evidence in this case the Panel concludes that the Athlete established that a departure occurred of the ISL during the anlysis procedures of his samples. The UCI failed to establish that this departure of the ISL didn’t cause the test result.

The Panel holds that the Athlete is put in the right as a result of the information provided by the laboratory and that this Award does not constitute a decalaration of the Athlete’s innocence under the Rules.

Therefore the Court of Arbitration for Sport decides on 19 December 2006 :

1.) CAS is competent to hear the appeal filed by the UCI.
2.) The appeal filed by the UCI on 26 June 2006 against the CNCDD decision of 5 May 2006 is rejected.
3.) (…)
4.) (…)

CAS 2006_A_1057 UCI vs Barry Forde & Barbados Cycling Union

11 Sep 2006

CAS 2006/A/1057 UCI v/Barry Forde & Barbados Cycling Union

Cycling
Doping (testosterone)
Independence of the CAS panel
CAS power of review in connection with the translation of documents
Burden and standard of proof in case of an exogenous source of a prohibited substance
Determination of the applicable sanction for a second anti-doping violation

1. Considering that the CAS list of arbitrators is in line with the constitutional demands of independence and impartiality applicable to arbitral tribunals and that the arbitrators selected on said list are experts familiar with both legal and sports-related issues, a party’s complaint concerning the unlawful composition of the arbitral tribunal is unfounded.

2. Pursuant to the Code of Sport-related Arbitration, it is up to the arbitration panel to decide what documents need to be translated or not. A panel can choose not to order any further translation than that which is provided by an appellant, especially if the respondents never requested the translation of the disputed documentation before the filing of the answer, never referred to any stipulation which obliges the federation or the accredited laboratory to spontaneously translate the relevant documents and if the panel knows from other CAS procedures that the respondent’s counsel is also comfortable with the language of the documents and the largest part of the documentation consists of scientific statistics.

3. According to the applicable anti-doping rules, a federation shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the federation has established an anti-doping rule violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation which is made. Furthermore, WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for Laboratory analysis. Therefore, the test results conducted by an accredited laboratory indicating an exogenous source of testosterone, shift the burden of adducing exculpatory circumstances to the athlete. When the contentions made by the athlete are not substantiated by anything concrete, his allegations are not established and do not suffice to put into question the quality of the test itself or to reverse the presumption implemented by the anti-doping rules. The result is that at any concentration, an athlete’s sample shall be deemed to contain a prohibited substance and no further investigation is necessary.

4. It is well established that a two-year suspension for a first time doping offence is legally acceptable. The fact that, according to the applicable anti-doping rules, the period of ineligibility imposed for a second anti-doping violation shall be a minimum of two years and a maximum of three years does therefore not appear as disproportionate in the absence of any established exceptional attenuating circumstances. Where an athlete is unable to establish how the prohibited substance entered his system, no elimination of the period of ineligibility or reduction of the period of ineligibility can be applied and a minimum sanction of 2 years (for a first violation) must be imposed according to the rules in force (UCI and WADA). Nevertheless, the circumstances in which the first doping offence occurred i.e. use of ephedrine, its mild sanction, the years which went by and the athlete’s presence and testimonies at the hearing are element which should be taken into account to assess the applicable sanction for a second violation.


In November 2005 the International Cycling Union (UCI) reported an anti-doping rule violation against the Barbados cyclist Barry Forde after his A and B samples tested positive for the prohibited substance Testosterone. However the Barbados Cycling Union (BCU) decided on 23 February 2006 to cease the disciplinary proceedings against the Athlete. Here the BCU accepted the medical evidence that the Athlete underwent treatment for his condition and it explained his elevated testosterone/epitestosterone levels in that period.

Hereafter in March 2006 the UCI appealed the BCU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the BCU decision of 23 February 2006 and to sanction the Athlete for committing an anti-doping rule violation.

The UCI argued that the presence was established of Testosterone in the Athlete’s sample from exogenous origin and that his medical condition could not explain these test results. The Athlete had no TUE for the use of Testosterone and this is his second anti-doping rule violation.

The Athlete denied the intentional use of the substance and requested the Panel to uphold the BCU decision. The Athlete and BCU argued that departures occurred regarding the right to fair evidence proceedings and regarding the test results.

The Panel rejected the arguments that the documentation provided by the French LNDD Lab had not been translated into English. Also the Athlete and the BCU failed to provide any argument that the right to fair evidence proceedings had been breached. The complaints regarding the B-sample analysis procedure were unfounded.

The Panel finds that the Athlete and the BCU failed to demonstrate that the LNDD Lab had not conducted the samples analysis in accordance with the international standards. Considering the test results the Panel finds as beyond doubt that the source of the Testosterone was exogenous and that the presence of a prohibited substance in the Athlete’s samples can’t be explained by a physiological or pathological condition.

Therefore the Court of Arbitration for Sport decides on 11 September 2006:

1.) The appeal filed by the Union Cycliste Internationale on 23 March 2006 is upheld.
2.) The appealed decision issued on 23 February 2006 by the Barbados Cycling Union is set aside.
3.) Mr Barry Forde shall be declared ineligible for two years and two months from 31 December 2005.
4.) Mr Barry Forde’s results, points and prizes obtained during the "6 jours de Grenoble" which took place from 27 October to 2 November 2005 as well as during all subsequent races are forfeited.
5.) (…)

CAS 2005_A_964 WADA vs Gabriel Sorin Pop

27 Feb 2006

TAS 2005/A/964 Agence mondiale antidopage c. Gabriel Sorin Pop
CAS 2005/A/964 WADA vs Gabriel Sorin Pop

Facts
The World Anti-Doping appeals against the decision, dated July 25, 2005, of the Romanian federation of cycling and triathlon (Fédération roumaine de cyclisme et de triathlon, FRCT) in the case of Gabriel Sorin Pop, the cylist, the sanction was a warning.
The cyclist participated on April 2005 in the cycling Tour of Greece. April 22, 2005, he was selected to undergo a doping control, as reserve rider in accordance with Article 122 of the anti-doping rules of the International Cycling Union (hereinafter, respectively AER and UCI).
At the expiration of the time allowed for the rider to undergo a doping control, his absence of presentation thereof, the controller has established a record of deficiency against Mr. Gabriel Sorin Pop, this report was sent to the UCI.

History
The cyclist had explained that his team captain and the rest of the team didn't understand the English language they missed the announcement on the radio and they didn't received a written notification. Also there was a problem because of a detour to the hotel and the location of the doping control post. However one cyclist of the team was tested and the results where negative.

Decision
1.) The appeal is sustained.
2.) The decision of the FRCT is cancelled.
3.) The sanction is a period of ineligibility of two years for the whole competition valid from the date of notification.
4.) All the results of the cyclist after 22 of April are cancelled, medals points and prized are withdrawn.
5.) An administration fee of CHF 500,-. has to be paid by the appellant.
6. Each party bears his own costs.

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