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 indeed a departure occurred of the ISL during the anlysis procedures of his samples. The UCI failed to demonstrat 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 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 had been established of exogenous Testosterone in the Athlete’s sampleand that his medical condition could not explain these test results. The Athlete had no TUE for the use of Testosterone whereas 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 there had been departures 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 demonstrate that the right to fair evidence proceedings had been volated. Their 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 tested the samples 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.) (…)

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

CAS 2005/A/964 WADA vs Gabriel Sorin Pop

In May 2005 the International Cycling Union (UCI) reported an anti-doping rule violation against the Romanian cyclist Gabriel Sorin Pop for his failure to submit to sample collection following a competition in Greece in April 2005.

Thereupon on 13 July 2005 the Romanian Cycling and Triathlon Federation (FRCT) decided to impose a warning on the Athlete and to suspend for 1 year the head of the Romanian national cycling team.

Hereafter in September 2005 the World Anti-Doping Agency (WADA) appealed the FRCT decision with the Court of Arbitration for Sport (CAS). WADA requested to set aside the Appealed Decision and to impose a sanction in accordance with the applicable Rules.

The Athlete 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 station. Yet, one cyclist of the team was tested without issues.

The Panel assessed the circumstances on how the cyclist and his team failed to appear at the Doping Control Station in April 2005. In view of the Athlete's conduct the Panel deems that he could not demonstrate that he had a compelling justification for his failure to submit to sample collection.

Therefore the Court of Arbitration for Sport decides on 27 February 2006:

1.) The appeal filed by WADA is admissible.

2.) The decision of the FRCT is annuled.

3.) A 2 year period of ineligiblity is imposed on the Athlete starting on the date of the Decision.

4.) All the Athlete's results obtained since 22 April 2005 are disqualified.

5.) (...)

6.) (...)

CAS 2005/A/884 Tyler Hamilton v. United States Anti-Doping Agency (USADA) & Union Cycliste Internationale (UCI)

Related cases:

• AAA No. 30 190 00130 05 USADA vs Tyler Hamilton - Awards & Dissenting Opinion
  April 18, 2005
• Affidavit Tyler Hamilton [USADA vs Lance Armstrong October 10, 2012]
  September 22, 2011
• CAS 2004_A_748 ROC & Viatcheslav Ekimov vs IOC, USOC & Tyler Hamilton
  June 27, 2006
• IOC 2012 IOC vs Tyler Hamilton
  August 10, 2012

• Cycling
• Doping (homologous blood transfusion, HBT)
• Proof by “any reliable means”
• Shifting of the burden of proof when a laboratory is not accredited for a particular test
• Reliability of the HBT test
• Starting date of the sanction

1. The proof of an anti-doping violation “by any reliable means” gives great leeway to anti-doping agencies to prove violations, so long as they can comfortably satisfy a tribunal that the means of proof is reliable. As a result, it is not even necessary that a violation be proven by a scientific test itself. Instead, a violation may be proved through admissions, testimony of witnesses, or other documentation evidencing a violation. As a consequence, WADA need not designate a specific test to prove that a doping violation has occurred. Rather, WADA and its accredited laboratories are free to develop tests based on appropriate scientific principles to demonstrate the existence of a prohibited substance or the use of a prohibited method. This flexibility necessarily provides WADA and other anti-doping organizations with the means to combat new forms of doping.

2. Anti-doping organisations are generally aided by the presumption that WADA-accredited laboratories are presumed to conduct sample analysis in accordance with international laboratory standards. However, when WADA has not specifically accredited the laboratory for a particular test, the burden shifts to the anti-doping organisation to prove that the test has been conducted in accordance with the scientific community’s practice and procedures and that the laboratory satisfied itself as the validity of the method before using it. If the particular test is valid, then the presumption returns and the athlete must then prove by a preponderance of the evidence that the testing was not conducted in accordance with international standards.

3. As the HBT test has been used for many years for important medical purposes and has been scientifically reliable, the methodology to be applied for testing of athletes has been published in peer reviewed articles which were deemed to provide “proof of principle”, and the test methodology has been validated and considered as fit for purpose according to ISO 17025 and WADA ISL, the HBT test must be considered as a valid and reliable test for determining the usage of the prohibited method of blood doping through homologous blood transfusion.

4. Delays in the completion of the proceeding constitute a reason of fairness to start the period of ineligibility at an earlier date than the date of the hearing decision, for example at the date of the voluntary acceptance by the athlete of his suspension from his team.

On 18 April 2005 the American Arbitration Association (AAA) Panel decided to impose a 2 year period of ineligibility on the cyclist Tyler Hamilton for the presence of transfused blood in his A and B blood samples which he provided in September 2004 in the Vuelta de España.

Hereafter in May 2005 the Athlete appealed the AAA decision with the Court of Arbitration for Sport (CAS).

The Athlete asserted that regarding the used test the validation studies of this brand new test were limited, incomplete and unsatisfactory. He also contested the reliability of the alleged positive findings in connection with the Vuelta sample.

The Panel considered the evidence and arguments in this case and finds:

• that the HBT test as applied to the Athlete’s Vuelta sample was reliable;
• that on 11 September 2004, his blood did contain two different red blood cell populations; and
• that such presence was caused by blood doping by homologous blood transfusion, a Prohibited Method under the UCI Rules.

In these circumstances the Panel finds that it is not necessary to consider USADA’s and UCI’s alternative submission based on the results of the other testing of the Athlete which was said to corroborate the accuracy of the Vuelta analysis.

The Panel also has given serious consideration to the history of the requests and production of documents both before the current appeal Panel and before the original AAA hearing and whilst there may be some concerns about the way in which documents have been produced the Panel finds that there was no concealment such as would cast doubt on the validity of the test.

the Panel concludes that the presence of a mixed blood population in the Athlete’s Vuelta sample as detected by the HBT test proves that the Athlete was engaged in blood doping, a Prohibited Method, that violated the UCI Anti-Doping Rules; Chapter II, article 15.2 and Chapter III, article 21.

Therefore the Court of Arbitration for Sport decides on 10 February 2006:

1.) The appeal filed by Mr Tyler Hamilton against the award dated 18 April 2005 rendered by the AAA Panel is dismissed.
2.) Mr Tyler Hamilton is ineligible to compete in cycling races for two years from 23 September 2004 until 22 September 2006.
3.) All questions of costs are reserved for consideration and will be the subject of a separate award.

CAS 2004/A/726 Maria Luisa Calle Williams v. International Olympic Committee (IOC)

CAS 2005/A/726 Maria Luisa Calle Williams v/IOC

• Track cycling
• Doping (Isometheptene)
• CAS jurisdiction
• Substance with “a similar chemical structure or similar pharmacological effects” to the substances listed as prohibited
• Criteria to be considered when deciding to treat a substance as similar to a listed substance

1. In contrast to a decision to include a particular substance on the Prohibited List, a WADA determination to treat a substance as “similar” to a listed substance can be challenged by athletes.

2. The classification of a substance as having “a similar chemical structure or similar pharmacological effect(s)” requires a similarity to one or several of the particular substances on the list. It is not sufficient for WADA or the IOC, or any other anti-doping agency, simply to assert that a substance, such as Isometheptene, is “a stimulant” and thus a prohibited substance (when that assertion is disputed by an athlete) without specifying the particular substance on the List with which similarity is supposed to exist.

3. Before treating a substance as similar, the three criteria mentioned in 4.3 of the WADA Code (potential performance enhancement, health risk, violation of the spirit of sport) must be considered. Only if two of these three are met can a substance be treated as similar and thus prohibited.

Ms Maria Luisa Calle Williams is a Colombian Athlete competing in the Women’s point race for track cycling at the 2004 Athens Olympic Games.

On 29 August 2004 the International Olympic Committee (IOC) decided to disqualify the Athlete after her A and B samples tested positive for the prohibited substance Heptaminol.
Here the Athlete stated that she had used the prescribed medication Neo-Saldina containing Isometheptene as treatment for a migraine headache.

Hereafter in October 2004 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).

In this case during the proceedings with CAS the parties accepted the findings en conclusion of an expert report:

• that both Heptaminol and Isometheptene, even though not expressly listed in WADA’s Prohibited List, have a “similar chemical structure or similar pharmacological effect(s)” as those substances expressly named as “S.1-stimulants” in the WADA Prohibited List; and
• that both Heptaminol and Isometheptene are prohibited substances pursuant to the IOC Rules; and
• that Heptaminol is a marker for Isometheptene, i.e. “a compound, group of compounds or biological parameters that indicates the use of a prohibited substance or prohibited method”.

Subsequent UCI and the Lausanne Lab also concluded that the substance Isometheptene has not a similar chemical structure or pharmacological effect as the stimulants listed on the WADA 2004 list and can thus not be considered to be prohibited under IOC Rules.

The parties in this case, including WADA, agreed that the presence of Heptaminol in the Athlete’s sample was not due to she ingested that substance but the result of metabolizing Isometheptene into Desmethyl-Isometheptene which transformed in Heptaminol during laboratory analysis.

Initially, the IOC Decision argued that as a result of the strict liability principle the mere finding of Heptaminol - which the IOC claims was a prohibited substance at the relevant point in time - in the Athlete’s sample must lead to her disqualification.

However, during the proceedings before the Panel the IOC agreed that contrary to its original submissions the substance for which the Athlete tested positive was Isometheptene not Heptaminol. This was the result of the her’s admission to having taken Neo-Saldina and the biological and chemical process. Therefore, the Panel does not have to determine whether Heptaminol is in fact a prohibited substance.

The Panel is unanimously of the view that the classification of a substance as having “a similar chemical structure or similar pharmacological effect(s)” requires a similarity to one or several of the particular substances on the list.

It is not sufficient for WADA or the IOC, or any other anti-doping agency, simply to assert that a substance, such as Isometheptene, is “a stimulant” and thus a prohibited substance (when that assertion is disputed by an athlete) without specifying the particular substance on the List with which similarity is supposed to exist.

In summary, the Panel is unanimous in finding:

• that a decision by WADA to treat a substance as “similar” is subject to challenge;
• that the S1-Stimulants category of the 2004 Prohibited List is not an “open list” and that similarity must exist with a particular substance before a non-listed substance can be treated as similar; and
• that before treating a substance as similar the three criteria mentioned in 4.3 of the WADA Code must be considered.

Further, the majority of the Panel finds that the IOC failed to discharge the burden of proving that Isometheptene is a prohibited substance under the applicable rules.

Therefore the Court of Arbitration for Sport decides on 19 October 2015:

1.) The decision of the IOC of 29 August 2004 is set aside.

2.) The award to Maria Luisa Calle Williams of the bronze medal for the women’s Point race at the 2004 Olympic Games is confirmed.

(…)

CAS 2004/A/777 ARcycling AG v/UCI

CAS 2004/A/777 ARcycling AG v. Union Cycliste Internationale (UCI)

• Cycling
• UCI Pro Tour
• Violations of procedural rights with a critical bearing on the outcome of the case
• Annulment of the decision issued by the UCI Licence
• Commission
• Denial of UCI Pro Tour licence unjustified

1. The fact not to respect one party’s rights to be heard and to obtain a fair proceeding before the adoption of the negative Preliminary Opinion constitutes a breach of the fundamental due process rights. However, according to the constant jurisprudence of the CAS, a procedural violation is not enough in and by itself to set aside an appealed decision; it must be ascertained that the procedural violation had a bearing on the outcome of the case. Whenever a procedural defect or unfairness in the internal procedure of a sporting body can be cured through the due process accorded by the CAS, and the appealed decision’s ruling on the merits is the correct one, CAS panels has no hesitation in confirming the appealed decision.

2. The procedural defects of the licensing procedure have however a critical bearing on the outcome of the same procedure if the involved party could for example have proven that it had organised its team in such a way as to combat doping effectively, thus avoiding the negative judgment on this issue before the Preliminary Opinion. The violations of one party’s fundamental procedural rights yield a ruling that is materially ungrounded and evidently unjustified.

3. The granting of a UCI ProTour Licence for a limited period of two years is proportionate taking into account the measures taken by the involved party to combat doping which will give the opportunity this party to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

ARcycling AG (the Appellant) is a Swiss limited company, having its seat in Hombrechtikon, Switzerland, the purpose of which is to operate professional cycling teams. The Appellant’s cycling team is sponsored by and named after the company Phonak Hearing Systems (the Phonak team).

In 2004 blood tests riders of the Phonak team showed average higher blood values for haematocrit and reticulicytes. The rider Oscar Camenzind tested positive for EPO and the rider Santiago Perez tested positive for blood transfusions. The rider Tyler Hamilton tested positive for blood transfusions and also his samples collected at the 2004 Olympic Games tested positive. Consequently ARcycling terminated the contracts with the riders Tyler Hamilton and Santiago Perez.

As a result of these doping cases in the Phonak team, the UCI Licence Commission in its final decision dated 22 November 2004 rejected the ARcycling's application for a UCI ProTour Licence. Hereafter in December 2004 ARcycling's appealed the UCI rejection with the Court of Arbitration for Sport (CAS).

After hearing the positions of the parties, the CAS Panel deems that the granting of a UCI ProTour Licence for a period of two years is proportionate. Such measure will give the opportunity to ARcycling to demonstrate, as far as required, that there was in fact no connection between its riders’ high blood values and adverse analytical findings and its internal organisation, and to confirm that the team can reach the level of excellence necessary for the UCI ProTour.

In any event, the Regulations allows the Licence Commission to withdraw the ProTour licence at any moment should the team no longer comply with the conditions set out by art. 2.15.040.114.

For those reasons, the Panel accepts the ARcycling’s application and, considering in particular some events of the year 2004 in light of the criterion no. 8 of art. 2.15.011 of the Regulations, holds that the granting of a UCI ProTour licence for two years is appropriate.

Therefore the Court of Arbitration for Sport decides on 31 January 2005 that:

1.) The appeal filed by ARcycling AG on 15 December 2004 is upheld.

2.) The appealed decision issued on 22 November 2004 by the Licence Commission of the Union Cycliste Internationale is set aside.

3.) The application of ARcycling AG for the obtainment of a UCI ProTour Licence for the Phonak Hearing System team is accepted, and a UCI ProTour Licence is granted to it for a period of two years, namely for the cycling seasons 2005 and 2006.

4.) All other motions or prayers for relief are dismissed.

5.) (…)

TAS 2004/A/769 Franck Bouyer c/UCI & AMA

CAS 2004/A/769 Franck Bouyer vs WADA & UCI

Related case:

CAS 2005_A_965 UCI vs WADA & Franck Bouyer
March 13, 2006

On 8 September 2004 the TUE Committee of the  International Cycling Union (UCI) did grant the application of the French cyclist Franck Bouyer for the use of the prescribed medication Modafinil as treatment for his diagnosed Narcolepsy. Thereupon the WADA TUE confirmed this decision on 26 October 2004.

Hereafter in November 2004 the Athlete appealed the UCI Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to grant his TUE Application for the use of the prescribed medication Modafinil as treatment for his condition.

Following assessment of the evidence and the Parties' arguments the Panel establishes that there were no grounds to grant the Athlete's TUE application. The Panel holds that the UCI and WADA TUE Committees decisions to reject his TUE application were valid.

The Panel finds that the Athlete had the burden to demonstrate that he was entitled to receive a TUE. Yet the Panel deems that the Athlete failed to establish that his medication does not improve sport performance.

Therefore on 8 September 2004 the Court of Arbitration for Sport decides that:

1.) The appeal of the athlete was rejected.

2.) The decision of the UCI of September 8, 2004, is upheld.

3.) The athlete has to pay the administration fee of CHF 500,-. to the CAS.

4.) Each party bears its own cost.

5.) Any other or further parts of the conclucions of the parties are rejected.

CAS 2004/A/748 Russian Olympic Committee (ROC) & Viatcheslav Ekimov v. International Olympic Committee (IOC), United States Olympic Committee (USOC) & Tyler Hamilton

• Cycling
• Characteristics features of a „decision‟
• No anti-doping rule violation
• Jurisdiction of the CAS
• Standing to appeal

1. When a letter contains a clear statement of the resolution of the disciplinary procedure and when that statement has the additional effect of resolving the matter in respect of all interested parties it can be considered as a decision. It seems also evident from the text of the letter that its author intended such communication to be a decision issued on behalf of the IOC. The letter is therefore a true “decision” which can be appealed under Art. R47 of the Code.

2. The decision taken by the IOC whereby it is stated that a rider had not committed an anti-doping rule violation because the B sample did not confirm the A sample is tantamount to stating that the IOC determined that no anti-doping rule violation had been committed. Therefore, the said decision falls under Art. 12.2 of the IOC Anti-Doping Rules which allows the CAS to rule on appeals against a „decision that no anti-doping rule violation was committed‟ and the CAS has jurisdiction to review it.

3. Art. 12.2.2 of the IOC Anti-Doping Rules, corresponding to Art. 13.2.3 of the WADA Code, provides that only the following parties have the right to appeal to the CAS: “(a) the Athlete or other Person who is the subject of the decision being appealed; (b) the IOC; (c) the relevant International Federation and any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (d) WADA”. Neither a competitor (of the athlete subject to an anti-doping decision) nor his National Olympic Committee are among the individuals or organisations listed therein. This interpretation is confirmed by the Comment on the WADA Code – particularly relevant in light of Art. 16.5 of the IOC Anti-Doping Rules – which unambiguously states that such list of persons or organizations having standing to appeal “does not include Athletes, or their federations, who might benefit from having another competitor disqualified”. An application submitted to the CAS by a party having standing to appeal long after the time limit for the appeal had expired cannot be considered.

Mr. Tyler Hamilton is an American professional Athlete competing in the cycling Men's Individual Time Trial event and the Men's Road Race at the Athens 2004 Olympic Games.

Mr Viatcheslav Ekimov is a Russian professional Athlete competing at the Athens 2004 Olympic Games.

In August 2004 the International Olympic Committee (IOC) has reported an anti-doping rule violation against the Athlete after his sample tested positive for blood doping. However the IOC Disciplinary Commission concluded on 23 September 2004 that no anti-doping rule violation was committed because the Athlete's B sample did not confirm the A sample.

Hereafter in October 2004 the Russian Olympic Committee (ROC) and the Athlete Viatcheslav Ekimov appealed the IOC Decision of 23 September 20014 with the Court of Arbitration for Sport (CAS).

The ROC and the Athlete requested the Panel to set aside the IOC decision and for the disqualification of the Athlete, including forfeiture of any medals, points and prizes won.
The Appellants contended that the new adverse analytical finding in respect of Mr Hamilton and the outcome of the related case would be relevant for the present procedure.

The Panel holds that the IOC Decision of 23 September 2004 falls under Art. 12.2 of the IOC Anti-Doping Rules and, thus, the CAS has jurisdiction to review it. However, a tribunal may have jurisdiction to decide a dispute, but it can only exercise that jurisdiction if the parties in front of it have standing to ask it to make the decision. Accordingly, the Panel must decide whether the Appellants are properly before it, i.e. whether they have locus standi to put the matter before the CAS under the IOC Anti-Doping Rules.

The Panel finds that both Appellants lack standing to appeal under Art. 12.2.2 of the IOC Anti-Doping Rules. As a result, the Panel may not entertain this appeal and must decline to adjudicate the case upon its merits.

On 27 June 2006 the Court of Arbitration for Sport decides:

1.) Mr Viatcheslav Ekimov and the Russian Olympic Committee have no standing to appeal against the decision issued on 23 September 2004 by the International Olympic Committee.

2.) The appeal filed by Mr Viatcheslav Ekimov and the Russian Olympic Committee on 14 October 2004 against the decision issued on 23 September 2004 by the International Olympic Committee is dismissed.

(…)

CAS 2004/A/707 Mr. David Millar v The British Cycling Federation

As a result of an investigation in 2004 against certain members of the COFIDIS cycling team for possible doping offences, the residence of the British cyclist David Millar in Biarritz was searched and two used syringes found there. In consequence on 22 June 2004, he was arrested and held in custody by the French police. While in custody he admitted to doping offences.

On 1 July 2004 the Athlete was charged with possessing and using toxic substances. During his hearing by the Examining Magistrate, the Athlete explained he had taken Testosterone patches on one occasion and EPO on three occasions.

The Athlete explained the pressure placed upon him by his position as team leader, the need he faced to "produce results", and at the same time the personal isolation in which he found himself, all of which exacerbated his psychological vulnerability. Those factors in combination with a heavy race programme, various injuries, disappointing results in certain important races and consequential financial pressures made him succumb to the temptation to use prohibited substances.

On 6 August 2004 in the decision issued by the British Cycling Federation (BCF) a 2 year period of ineligibility and a minimum fine was imposed on the Athlete.

In this case the BCF considered:

• the Athlete gave a frank admission both to the French authorities and the BCF;
• the fact that he voluntarily stopped using banned substance prior to any investigation;
• the genuine contribution shown;
• his willingness to assist young riders to help them avoid falling into the trap of taking banned substances;
• the gravity of the consequences of the penaly for his sporting and economic position and the risk to his professional career.

Hereafter in August 2004 the Athlete appealed the BCF decision with the Court of Arbitration for Sport (CAS).

The Athlete accepted the fine and disqualification penalties and requested the Panel for a reduced sanction. The BCF argued that the imposed sanction was proportional and lenient while he deliberately had used doping and only admitted the offences after he was caught.

In view of the circumstances and the lenght of the sancion the Panel considers that it is necessary to have regard to the indisputable fact that notwithstanding the Athlete’s sincere change of heart in autumn 2003, his doping offence was a very serious one.

Given the particular circumstances of this case - in which the Athlete was arrested by the French police and admitted, before his discharge from custody, to being guilty of doping, thereby de facto excluding himself from the Tour de France and any other forthcoming competitions, while at the same time promptly announcing he was withdrawing from the British Olympic team for Athens - the Panel considers the 2 year suspension should in fairness take effect from the date of his arrest.

Therefore the Court of Arbitration for Sport decides on 17 February 2005:

1.) The appeal filed by David Millar on 23 August 2004 is partially upheld.

2. The decision of 6 August 2004 issued by BCF is modified in accordance with paragraph 3.

3.) Millar’s two-year suspension from all forms of cycling competition is maintained, except that the said suspension takes effect on 24 June 2004 and ends on 23 June 2006.

4.) This award is rendered without costs, except for the Court Office fee of CHF 500.-- (five hundred Swiss Francs) already paid by the Appellant, which shall be retained by the CAS.

5.) Each party shall bear its own costs.

CAS 2004/A/651 Mark French vs Australian Sports Commission & Cycling Australia

• Appeal Partial Award
  July 11, 2005
• Interlocutory Award
  January 31, 2005
• Interlocutory Award
  March 30, 2005

In December 2003 cleaners found in the guesthouse room previously occupied by the Australian cyclist Mark French a plastic bag of used syringes and needles in the cupboard and a bucket of the sort which normally contained protein powder, also containing used syringes and needles. This discovery was followed by an investigation conducted by the Australian Sports Commission (ASC) and Cycling Australia (CA).

Consequently in February 2004 the ASC and the CA reported anti-doping rule violations against the Athlete for:

(1) Trafficking in a prohibited substance, namely Glucocorticosteroid;

(2) Trafficking in a prohibited substance, namely equine growth hormone (eGH);

(3) Knowingly assisting a doping offence, namely assisting in trafficking glucocorticosteroid by others; and,

(4) Knowingly assisting a doping offence, namely assisting in trafficking equine growth hormone by others.

In the matter of trafficking the substance Glucocorticosteroid and equine Growth Hormone (eGH) the Court of Arbitration for Sport (CAS) Oceania Registry decided on 8 June 2004 to impose a 2 year period of ineligibility on the Athlete and a A$ 1,000 fine.

In the Final Arbitration Award the Athlete was further ordered to:

(1) return to the ASC a trek road bike;
(2) pay the ASC the sum of A$12,031.37 for the financial assistance they provided to the Athlete; and
(3) pay the sum of A$20,000 to the ASC towards the costs of their proceedings.

Hereafter in June 2004 the Athlete appealed the first instance decision of with CAS.

In this case the scope of the appeal became controversial between the parties. The Panel was unable to deal with that controversy until it was reconstituted in late January of 2005. The Panel issued two interlocutory rulings dated 31 January 2005 and 30 March 2005 in which the Panel interpreted the CAS Code and prescribed the scope of this appeal.

By the interlocutory rulings the ASC and CA were permitted to file a cross-appeal against the finding of the Arbitrator at first instance that the Athlete did not breach CA Anti-Doping Policy by committing a Doping offence by using eGH. The finding was that the particular was not proven or accepted. The cross-appeal of the ASC and CA relates to this single particular.

Through the interlocutory rulings, all parties were able to file new evidence before the Panel in the rehearing and cross-appeal that had not been called at the first instance. The Athlete and the ASC and CA both filed extensive new evidence before the Panel.

The Athlete admitted to injecting himself with vitamins, supplements and the product Testicomp but denied injecting eGH. He admitted to injecting these substances in the company of other athletes but testified and stated that he was unaware of any athlete, who was present with him injecting eGH.

The Panel finds that this Athlete’s admission of Testicomp does not amount to an admission that there has been use of a prohibitied substance due to the product Testicomp was tested negative for the presence of a prohibited substance. As a result the Panel can’t find that a breach of the CA Anti-Doping Policy has occurred and that all allegations in the matter of Testicomp are dismissed as not established.

The Panel concludes that the scientific evidence does not demonstrate to the necessary degree of satisfaction the Athlete’s use of eGH and thereby breached the CA Anti-Doping Policy.

In the matter of trafficking eGH the Panel holds that the evidence in this case establish, unlike to the substance Testicomp, that there is evidence that the phials found in the bucket contained a prohibited substance, i.e. eGH, and it is being undisputed that the substance is a prohibited substance under the CA and UCI Anti-Doping Rules.

Further the Panel finds that not has been established that the requisite significant degree of satisfaction of proof that the Athlete knew he was in possession of eGH. In the absence of that knowledge the allegation of trafficking in eGH cannot be upheld nor the allegations for aiding & abetting. Finally the Panel is unable to uphold the conclusions of the Arbitrator in first instance.

Therefore the Court of Arbitration for Sport decides on 11 July 2005 that:

1.) The decision of Arbitrator Holmes QC at first instance be set aside and replaced with this decision of the Appeal Panel. As a consequence the two year period of ineligibility imposed as a sanction is terminated immediately. As a further consequence the fine of A$1,000 Australian dollars ordered to be paid at first instance is to be returned to French within one week of the date herein.

2.) The first instance order to return the trek bike and A$12,031.37 by way of an athlete scholarship are to be included in the written submission referred to in order number four below.

3.) This being an appeal procedure this award is public under CAS Rule 59 unless the parties agree otherwise; and

4.) Costs associated with the first instance decision; the interlocutory proceedings; and this appeal by rehearing and cross-appeal will be considered but on the principles of CAS international and the CAS Rule 65. Counsel are directed to make a written submission not exceeding 10 pages double spaced as to their costs and the matters referred to in order number two above within 15 days of this award.

5.) The Court office filing fees paid by the ASC and by CA at first instance and the filing fee paid by the Appellant French each in the amount of A$500 are retained by CAS.