9 Feb 2012
CAS 2010/A/2083 UCI v/ Jan Ullrich & Swiss Olympic
CAS 2010/A/2083 Union Cycliste Internationale (UCI) v. Jan Ullrich & Swiss Olympic
- CAS 2010_A_2070 Anti-Doping Schweiz vs Jan Ullrich
November 30, 2011
- CAS 2010_A_2083 UCI vs Jan Ullrich & Swiss Olympic - Partial Award
March 2, 2011
- Blood doping
- Disciplinary proceedings against a rider and Article 75 Swiss Civil Code
- Initiation of disciplinary proceedings against a rider who is no longer a UCI licence-holder
- Probative value of the evidence leading to the conclusion that the rider engaged in blood doping
- Determination of the first or the second infraction according to the 2009 WADC
- First or second violation for the calculation of the period of ineligibility
- Commencement of the Period of Ineligibility according to the UCI Rules
1. A case of disciplinary proceedings against a rider is not – strictly speaking – one that is situated within the scope of applicability of Article 75 of the Swiss Civil Code, since it is not a member of an association that lodges the appeal against a decision/resolution of an association, but a non-member (that is, however, equally affected by it). Such recourse in favour of a third party is covered by the parties’ autonomy and is not restricted or prevented by Article 75 of the Swiss Code. The parties, therefore, are free to rule and determine who are the proper respondents in a case in which an appeal is lodged by a non-member. The fact that according to Article 282 of the UCI Rules the appeal must be lodged also against the “license-holder” is not arbitrary. If the position under Article 75 of the Swiss Civil Code were otherwise, sporting rules like the UCI Rules and the WADC would not be capable of enforcement under domestic Swiss law, because the athlete could never be a proper defendant. Furthermore, only by being made a party to the proceedings will the athlete’s basic rights be guaranteed.
2. Upon the rider’s resignation, the question arises whether or not such rider can still be considered a “license-holder” within the meaning of the UCI Rules Article 282 of the UCI Rules. According to a judgment of the Supreme Court there is no impediment against actions against former members of an association when there is an interest in doing so. License holders remain subject to the jurisdiction of the relevant disciplinary bodies for acts committed while applying for or while holding a license, even if proceedings are started or continue after they cease to hold a license.
3. The 2009 version of the WADC gives certain guidance as to how certain pre-2009 WADC violations are to be treated when determining a sanction under the 2009 WADC. In principle, pre-2009 violations of antidoping rules may be treated as prior violations for the purposes of determining a period of ineligibility under the 2009 WADC. Under the CAS case law, the purpose of the sporting regulations under which the athlete had been sanctioned in 2003 and the applicable WADC were the same, i.e. the fight against doping in sports. Such objective would be entirely thwarted if one were to ignore the existence of a first offence under the pre-WADC rules in setting the sanction for a second offence under the current rules. Moreover, the fact that the athlete’s first violation may have taken place almost six years subsequent to the second offence has no relevance for the qualification of the latter as a second offense. It is clear from the 2009 WADC and from prior decisions of the CAS that in principle, decisions issued prior to the creation of the WADC can be treated as first violations when assessing the period of ineligibility following an antidoping violation sanctioned under the current WADC or its equivalents.
4. A case where the first violation occurred for ingesting a substance out of competition, which under the current prohibited list are prohibited only in-competition, has not yet been considered by other CAS Panels: Should a previous infraction, which has been finally determined by a sports arbitration tribunal, be treated as a first violation where the same conduct would not constitute a violation under existing antidoping rules? In legal terms, periods of ineligibility involve the application of the substantive law, and the principle of lex mitior requires that the athlete benefit from the least lenient penalty applicable, even if enacted after the commission of the original offence.
5. According to the UCI Rules, where there has been no acceptance or acknowledgement of an athlete’s culpability, periods of ineligibility are set to run from the date of a hearing in an antidoping case. The first instance hearing has to be the one who entered into the merits of the case and not the one that might have dismissed the case for lack of competence. This Panel, however, is of the view that – in principle – the period of ineligibility should only start to run from such hearing date on which a first instance panel looked into the substance of the alleged doping offence.
Jan Ullrich, is a German former professional road cyclist resident in Switzerland. Among other achievements, Ullrich was the winner of the 1997 Tour de France and the gold medalist in the men’s individual road race at the Sydney 2000 Summer Olympic Games. Prior to the events in question in 2006, Ullrich was a member of the T-Mobile professional cycling team, a member of Swiss Cycling, and a UCI license-holder.
In 2004, the Spanish Guardia Civil and the Investigating magistrate no. 31 of Madrid opened an investigation that has come to be known as “Operation Puerto.” Pursuant to this investigation, on May 23, 2006 searches were carried out on two Madrid apartments belonging to a Spanish physician, Dr. Eufemiano Fuentes. Documents and other materials were seized from the apartments, including evidence of possible doping offences by athletes.
The Guardia Civil drafted a report (Report no 116) dated June 27, 2006, which made reference to certain of the materials seized from the apartments and showed that the Athlete had contact with Dr Fuentes. As a consequence of Report no 116 the International Cycling Union (UCI) requested Swiss Cycling to open disciplinary proceedings against the Athlete. In October 2006 the Athlete resigned his membership from Swiss Cycling and announced his retirement from professional cycling.
However on 30 January 2010 the Disciplinary Chamber of Swiss Olympic decided to close the case and the investigations against the Athlete because Ullrich was no longer member of the Swiss Cycling and they had no jurisdiction after he retired.
Hereafter in March 2010 the UCI appealed the decision of Swiss Olympic with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to annul and reform the decision of 30 January 2010 and to impose a lifetime ineligibility on the Athlete.
Supported with evidence from the Operation Puerto investigation, the UCI alleges that the Athlete violated the UCI Rules in the matter of the “use or attempted use of a prohibited substance or a prohibited method.” In particular, the UCI alleges that the Athlete engaged in blood doping (a prohibited method) and used several prohibited substances, including growth hormones, IGF-1, testosterone patches (PCH), EPO and a masking substance referred to as “magic power” that is said to destroy EPO in urine samples.
The UCI also alleges that through the same actions, he violated the UCI Rules regarding “Tampering, or Attempted to tamper, with any part of Doping Control.” The documentary evidence presented by the UCI shows that:
(1) Dr. Fuentes was engaged in the provision of doping services to athletes;
(2) Ullrich travelled in the vicinity of Dr. Fuentes' operations on multiple occasions, and evidence in Dr. Fuentes’ possession suggested that Ullrich was in personal contact with him on certain of those occasions;
(3) Ullrich paid Dr. Fuentes very substantial sums of money for services that have not been particularized; and
(4) a DNA analysis has confirmed that Ullrich’s genetic profile matches blood bags that appear to have been for doping purposes found in the possession of Dr. Fuentes.
The evidence has been obtained from multiple sources and is internally consistent despite differences in its provenance. The evidence is probative and directly related to the question of whether an antidoping violation has occurred.
Given the volume, consistency and probative value of the evidence presented by the UCI, and the failure of Ullrich to raise any doubt about the veracity or reliability of such evidence, this Panel is satisfied beyond its comfortable satisfaction that Ullrich engaged at least in blood doping in violation of Article 15.2 of the UCI Rules.
Therefore the Court of Arbitration for Sport decides on 9 February 2012 that:
1.) The appeal filed on 22 March 2010 by the International Cycling Union is partially upheld.
2.) The decision of the Disciplinary Chamber of Swiss Olympic dated January 30, 2010 is annulled.
3.) All cycling results achieved by Mr. Jan Ullrich on or after May 1, 2005 until his retirement are disqualified.
4.) Mr. Jan Ullrich shall be declared ineligible for a period of two (2) years to participate in any Event, as more particularly described in Article 320 of Part 14 (Anti-Doping) of the International Cycling Union’s Cycling Regulations, starting from August 22, 2011.
5.) This award is rendered with no other costs, except for the Court Office fee of CHF 500, which has already been paid by the International Cycling Union and which is to be retained by the Court of Arbitration for Sport.
6.) Mr. Jan Ullrich is ordered to pay a contribution to the legal costs of the International Cycling Union in the sum of CHF 10,000 (ten thousand Swiss francs).
7.) All other motions or prayers for relief are dismissed.