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
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.