TAS 2000/A/270 David Meca-Medina & Igor Majcen v/FINA

Related cases:

• CAS 1999/A/234 David Meca-Medina vs FINA
• TAS 99/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 99/A/235 Igor Majcen vs FINA

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David Meca-Medina (hereafter Appellant 1) is affiliated with the Spanish Swimming Federation, member of FINA, the International Federation governing swimming which is domiciled in Switzerland. Igor Majcen (hereafter Appellant 2) is affiliated with the Slovenian Swimming Federation, also a member of FINA.

The Appellants were each suspended for four years ("the decision") by the FINA doping panel on 8th August 1999, because they had tested positive for metabolites of Nandrolone, specifically norandrosterone ("NA"), as a result of doping control in a competition test conducted on January 31, 1999, after both Appellants took part in a long distance World Cup race in Salvador di Bahia in Brazil finishing first and second respectively.

On August 8, 1999, the FINA Doping Panel issued two separate decisions (“the decisions”) concerning Appellant 1, on the one hand and Appellant 2, on the other hand. In both cases, the Appellants were sentenced to a four-year ban.
By determinations [TAS 99/A/234 & TAS 99/A/235] dated 29 February 2000, the Court of Arbitration for Sport rejected the original appeal by both Appellants against the decisions (“the original award”).

In this Appeal the Court of Arbitration for Sport decides on 1 May 2001:

1.) The appeal of each Appellant is allowed to the extent of substituting a sentence of two years suspension for one of four years (such period to take account of any period already served, but to ignore the period from 20 April 2000 to date in which the Appellant's, pursuant to the arbitration agreement, have been free to compete).

2.) The present award is rendered without costs.

3.) Each party shall bear its own costs

• CAS 1999/A/234 David Meca-Medina vs FINA
• CAS 1999/A/235 Igor Majcen vs FINA
• TAS 1999/A/234 David Meca-Medina v/ FINA
• TAS 1990/A/235 Igor Majcen v/ FINA

Related case:
CAS 2000/A/270 David Meca-Medina & Igor Majcen vs FINA
May 1, 2001

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On 8 August 1999 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Spanish swimmer David Meca-Medina and the Slovenian swimmer Igor Majcen after their A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Hereafter in August 1999 both Athletes appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athletes argued that there were departures of the standards for testing and laboratories; the substance in question was not prohibited; the positive tests were caused by the ingestion of pork offal; and the imposed sanction was too severe.

The Panel rejects the arguments that it was not their urine which was analysed and finds that the duration of the transport to the laborary had no effect on the validity of the test. The Panel holds that the chain of custody including the documentation was complete and satisfactory.

Further the Panel finds that the Athletes failed to establish that any alleged departure from the procedure could lead to genuine doubt on the reliability of any finding. They also failed to demonstrate that the positive tests was the result of the ingestion of meat injected with Nandrolone.

The Panel establishes that the substances in question were prohibited as part of the “related substances” before they were expressly included in the newer lists of anabolic androgenic steroids.

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The Court of Arbitration for Sport decides on 29 February 2000 with respect to David Meca-Medina:

1.) The appeal is rejected as far as it is filed on behalf of David Meca-Medina.
2.) The suspension of David Meca-Medina is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) David Meca-Medina is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

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The Court of Arbitration for Sport decides on 29 February 2000 with respect to Igor Majcen:

1.) The appeal is rejected as far as it is filed on behalf of Igor Majcen.
2.) The suspension of Igor Majcen is confirmed for a duration of 4 years from August 20, 1999 under deduction of 77 days of provisional suspension (May 14, 1999 to July 30, 1999).
3.) All results achieved by David Meca-Medina between January 31, 1999 and August 19, 1999 shall be cancelled.
4.) The award is pronounced without costs, except for the Court Office fee of CHF 500,- which shall be kept by the CAS (art. R65.2 of the Code)
5.) Igor Majcen is ordered to pay an amount of CHF 4’000,- (together with interest at 5% from the date of the decision) to Respondent FINA as a contribution towards its legal fees and expenses (art. R65.3 of the Code).

CAS 2003/A/484 Kicker Vencill vs USADA - Interim award

The Court of Arbitration decides on 18 November 2002:

1. The Jurisdiction oif CAS is affirmed;

2. Ibe appeal filed by mr. Vencill on 14 July 2003 is dismissed;

CAS 2003/A/484 Kicker Vencill vs USADA

Related documents:

• AAA No. 30 190 00291 03 USADA vs Kicker Vencill
  July 24, 2003
• CAS 2003_A_484 Kicker Vencill vs USADA - Interim award
  November 18, 2003
• USADA - Supplement 411 - Kicker Vencill, Introduction Video
  May 24, 2012

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On 23 June 2003 the North American Court of Arbitration (NACAS) decided to impose a 4 year period of ineligibility on the American swimmer Kicker Vencill after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

Hereafter in July 2003 the Athlete appealed the NACAS decision with the Court of Arbitration for Sport (CAS). The Athlete requested for a reduced sanction on the basis of No Significant Fault or Negligence.

The Athlete argued a number of issues in support of his appeal, ranging from:

• questions concerning the chain of custody of his sample;
• alleged violations of his right to be present for the testing of his B sample;
• supposed inaccuracies in the results reported by the UCLA Lab; and
• allegations to the effect that the low concentration of 19-norandrosterone found in the athlete's sample is consistent with endogenous production as opposed to exogenoμs administration or ingestion of a prohibited substance.

The Panel finds that there is no question that the Athlete is guilty of committing an anti-doping rule violation and he failed to establish that the chain of custody of his sample was anything other than intact. Further the Panel concludes that the laboratory analysis was correctly conducted, the Athlete’s samples had not deteriorated or been contaminated and the proper laboratory procedures had been followed.

The Panel accepts that the violation was not intentional and that laboratory analysis revealed that the supplement in question was contaminated. However the Athlete showed also a total disregard of his positive duty to ensure that no prohibited substance enters his body.

As a result the Panel holds that the Athlete’s Fault or Negligence in the circumstances is exceptionally significant in relation to the doping violation.

Therefore the of Court of Arbitration for Sport decides on 11 March 2004 that:

1.) The jurisriction of the CAS is affirmed;

2.) The appeal filed by Mr. Vencill on 14 July 2003 is dismissed;

3.) Save for the applicable period of ineligibility as specified in paragraph 4 below, the decision in this matter issued by the North American Court of Arbitration for Sport Panel dated 23 June 2003 is upheld;

4.) Kicker Vencill shall be declared ineligible for competition for two years commencing as of 22 May 2003:

5.) The Court Office fee of CHF 500 already paid by Mr. Vencill shall be retained by the CAS;

6.) Each party shall bear its own costs.

CAS 2006/A/1162 Fernando Iglesias v/ FILA

On 4 September 2006 the International Wrestling Federation (FILA) decided to impose a 2 year period of ineligibility on the legal minor Argentine wrestler Fernando Iglesias (19) after his sample tested positive for the prohibited substances Hydrochlorothiazide and Methyltestosterone.

Hereafter in September 2006 the Athlete appealed the FILA decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete denied the intentional use of the substances and asserted that there had been departures of the International Standard for Testing (IST) that would invalidade the test result.

He argued that he was denied the opportunity to be represented at the sample collection session, a procedural error has been committed which renders the entire sample collection session and the two-year ineligibility sanction null and void.

FILA asserted that the doping test was conducted in compliance with the WADA standards and that the Athlete’s sample was collected in compliance with the WADA procedures. With signing the Doping Control Form the Athlete agreed on the method and the controlling procedure applied on him. Further FILA argued that it is the duty of the Athlete to check his supplements before using.

The Panel finds that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that he committted an anti-doping rule violation.

The Panel tends to agree with the Athlete that a “departure” from the standards set down in the IST has occurred. Having established the fact of this violation, it remains to be determined whether, as a consequence, the adverse analytical finding of the Cologne Laboratory is thus nullified together with any subsequent sanction.

However the Panel concludes that the failure of the Representative to sign the Form did not “cause” the Adverse Analytical Finding of the Cologne Laboratory. The Panel deems that FILA, who bears the burden of evidence, has established the absence of any causality between the missing signature and the fact of the adverse analytical finding.

Furthermore the Panel finds that the Athlete’s entries on the Doping Control Form didn’t contain the slightest indication that the Athlete objected to the absence of his Representative during the Sample Collection Session. The failure of the Athlete’s Representative to sign or later ratify the declarations made by his son on the Form cannot result in a nullification or invalidation of the Adverse Analytical Finding.

Therefore the Court of Arbitration for Sport decides on 19 February 2007 that:

1.) The appeal filed by Fernando Iglesias on 29 September 2006 is dismissed.

2.) The award is pronounced without costs, except for the Court Office fee of CHF 500 already paid by Fernando Iglesias and which is retained by the CAS.

3.) Each party shall bear its own legal costs and other expenses incurred in connection to the present arbitration.

CAS 2010/A/2083 UCI v/ Jan Ullrich & Swiss Olympic

CAS 2010/A/2083 Union Cycliste Internationale (UCI) v. Jan Ullrich & Swiss Olympic

Related cases:

• 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
  
  

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• Cycling
• 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

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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.

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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.

• CAS 2011/A/2384 Union Cycliste Internationale (UCI) v. Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) &
• CAS 2011/A/2386 World Anti-Doping Agency (WADA) v. Alberto Contador Velasco & RFEC
  
  

Related case:

CAS 2012/A/3055 Riis Cycling vs Licence Commission of the UCI
October 11, 2013

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• Cycling
• Doping (Clenbuterol)
• Food supplement contamination
• Admissibility of the testimony of a protected witness
• Admissibility of the polygraph examination
• New evidence
• Adverse analytical finding
• Burden of proof (principle)
• Balance of probability standard
• Proof of negative fact
• Meat contamination
• Disciplinary sanction
• Starting point of the period of ineligibility
  
  

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1. The admission of anonymous witnesses potentially infringes upon both the right to be heard and the right to a fair trial of a party guaranteed by the European Convention of Human Rights and the Swiss Constitution since personal data, record of a witness and the right to ask questions are important elements of information to have in hand when testing the witness’ credibility. However, with respect to anonymous witness statements the Swiss Federal Tribunal stressed that their admission does not necessarily violate the right to a fair trial. According to the Swiss Federal Tribunal, if the applicable procedural code provides for the possibility to prove facts by witness statements, it would infringe the principle of the court’s power to assess the witness statements if a party was prevented from the outset from relying on anonymous witness statements. According to the Swiss Federal Court the right of a party to use anonymous witness statements must be nevertheless subject to strict conditions namely the witness must be concretely facing a risk of retaliations by the party he is testifying against if his identity was known, the witness must be questioned by the court itself which must check his identity and the reliability of his statements; and the witness must be cross-examined through an “audiovisual protection system”.

2. Based on the Panel’s powers to administrate proof under Art. 184 PILA, given the Appellants acceptance that the polygraph examination is admissible as evidence per se and taking into consideration the entry into force of the WADC, the results of the polygraph examination undergone by the athlete are admissible in the particular case,
the credibility of which must nonetheless be verified in light of all the other elements of proof adduced.

3. Under Article R51 of the CAS Code, an expert testimony on a specific issue requested by the Appellant has to be mentioned in the expert opinion included in the Appellant’s written submissions. Addressing questions to an expert on a specific issue not included in the expert opinion at the stage of the hearing is not allowed in principle under Article R56 of the CAS Code.

4. Considering that clenbuterol is a non threshold prohibited substance, the fact that the concentration is extremely low does not have any effect on the result. It is therefore undisputed given the analytical reports made by the Laboratory and the confirmation of the adverse analytical finding by the B Sample that the athlete has committed an anti-doping rule violation and that the Appellants have met the standard of proof.

5. Pursuant to the UCI ADR and according to the established CAS jurisprudence, once an adverse analytical finding has been established the burden of proof shifts to the athlete who has to establish on the balance of probabilities in order to escape a sanction or to obtain a reduction of the sanction, how the prohibited substance entered his/her system and that he/she in an individual case bears no fault or negligence, or no significant fault or negligence.

6. For the Panel to be satisfied that a means of ingestion is demonstrated on a balance of probability simply means, in percentage terms, that it is satisfied that there is a 51% chance of it having occurred. The athlete thus needs to show that one specific way of ingestion is marginally more likely than not to have occurred.

7. Under Art. 8 of the Swiss Civil Code (CC), unless the law provides otherwise, each party must prove the facts upon which it is relying to invoke a right, thereby implying that the case must be decided against the party that fails to adduce such evidence. A valid contestation of facts needs to be specific, i.e. it must be directed and attributable to an individual fact submitted by the party bearing the burden of proof. According to the doctrine, the threshold for meeting such an obligation to specify the contestation is – under normal circumstances – rather low, since it must be avoided that the prerequisites for contesting an allegation result in a reversal of the burden of proof. Nevertheless, there are exceptions to this low threshold. The exceptions concern cases in which a party is faced with a serious difficulty in discharging its burden of proof (“état de nécessité en matière de preuve”, “Beweisnotstand”. This is the case whenever a party needs to prove “negative facts”. In this respect, the Swiss Federal Tribunal makes it clear that difficulties in proving “negative facts” result in a duty of cooperation of the contesting party who must cooperate in the investigation and clarification of the facts of the case. However, the above difficulties do not lead to a re-allocation of the risk if a specific fact cannot be established. Instead, this risk will always remain with the party having the burden of proof.

8. The athlete can only succeed in discharging his burden of proof by proving that (1) in his particular case meat contamination was possible and that (2) other sources from which the Prohibited Substance may have entered his body either do not exist or are less likely. The latter involve a form of negative fact that is difficult to prove for the athlete and which requires the cooperation of the Appellants. Thus, it is only if the theory put forward by the Athlete is deemed the most likely to have occurred among several scenarios, or if it is the only possible scenario, that the Athlete shall be considered to have established on a balance of probability how the substance entered his system, since in such situations the scenario he is invoking will have met the necessary 51% chance of it having occurred. Unlike certain other countries, notably outside Europe, Spain is not known to have a contamination problem with clenbuterol in meat. Furthermore, no other cases of athletes having tested positive to clenbuterol allegedly in connection with the consumption of Spanish meat are known. As a result, no established facts that would elevate the possibility of meat contamination to an event that could have occurred on a balance of probabilities has been established.

9. Pursuant to the UCI ADR, the period of ineligibility shall be two years for a first anti-doping rule violation. If none of the conditions for eliminating or reducing the period of ineligibility are applicable – in particular because the exact contaminated supplement is unknown and the circumstances surrounding its ingestion are equally unknown – the period of ineligibility shall not be reduced. Moreover, the athlete is automatically disqualified from the competition in the course of which he was tested. In addition, the results obtained in all competitions the athlete participated as from the date when the ineligibility period is deemed to have begun are also disqualified.

10. According to the UCI ADR where there have been substantial delays in the hearing process or other aspects of Doping Control not attributable to the License-Holder, the Panel is entitled to fix the start of the period of ineligibility at an earlier date commencing as early as the sample collection. In addition the provisional suspension imposed and respected by the licence-holder must be deducted from the period of ineligibility.

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In August 2010 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Spanish cyclist Alberto Contador after his A and B samples tested positive for the prohibited substance Clenbuterol in a low concentration.

On 14 February 2011 the Royal Spanish Cycling Federation (RFEC) decided to acquit the Athlete based solely on the notification of the test results and the evidence filed by the Athlete. In this matter the UCI and the World Anti-Doping Agency (WADA) did not provide the documentary and scientific evidence to the examining judge.

Hereafter in March 2011 both UCI and WADA appealed the RFEC decision with the Court of Arbitration for Sport (CAS). The UCI and WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Athlete objected to the admission of an anonymous witness statement filed by WADA whereas WADA objected to the admission of new evidence filed by the Athlete.

The UCI and WADA contended that the Athlete has the burden of proof to establish how the prohibited substance entered his system on a balance of probability.

The Panel determines that it is not in dispute that the UCI and WADA successfully have established that the Athlete committed an anti-doping rule violation. Neither is it disputed that in order for the Athlete to escape a two-year sanction, he must demonstrate, on a balance of probability:

• how the Prohibited Substance entered the his system; and
• that he bears no fault or negligence, or no significant fault or negligence.

The Panel assessed and addressed the evidence in this case and deems that the meat contamination scenario and blood transfusion theory are a possible explanation for the presence of Clenbuterol in the Athlete’s Sample. However, in light of all the evidence adduced, the Panel finds it is very unlikely to have occurred.

Further the Panel concludes that the Athlete’s positive test for Clenbuterol is more likely to have been caused by the ingestion of a contaminated food supplement than by a blood transfusion or the ingestion of contaminated meat. This does not mean that the Panel is convinced beyond reasonable doubt that this scenario of ingestion of a contaminated food supplement actually happened.

Therefore the Court of Arbitration for Sport decides on 6 February 2012 that:

1.) The appeals filed by the Union Cycliste Internationale on 24 March 2011 and by the World Anti-Doping Agency on 29 March 2011 against Mr Contador and the Real Federación Española de Ciclismo concerning the decision of the Comité Nacional de Competicion y Disciplina Deportiva of the Real Federación Española de Ciclismo dated 14 February 2011 are partially upheld.

2.) The decision of the Comité Nacional de Competicion y Disciplina Deportiva of the Real Federación Española de Ciclismo dated 14 February 2011 is set aside.

3.) Mr Contador is sanctioned with a two-year period of ineligibility starting on 25 January 2011. The period of the provisional suspension will be credited.

4.) Mr Contador is disqualified from the Tour de France 2010 with all of the resulting consequences including forfeiture of any medals, points and prizes.

5.) Mr Contador is disqualified of the results of all the competitions he participated in after 25 January 2011 including forfeiture of any medals, points, and prizes.

6.) (…).

7.) All other or further claims save for the fine issue pursuant to Article 326 of the UCI Anti-Doping Regulations which remains to be decided in a separate award, are dismissed.

CAS 2003/A/447 Anna Stylianou v/ FINA

On 29 August 2002 the Cyprus Amateur Swimming Association decided to impose a 1 year period of ineligibility on the minor Cypriot swimmer Anna Stylianou (16) after her sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

After deliberations the case was referered to the International Swimming Federation (FINA) and 19 February 2003 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete.

Hereafter the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athlete admitted the violation, denied the intentional use of the prohibited substance and requested for a reduced sanction. She argued that the Appealed Decision is based on a misinterpretation of the FINA Doping Rules. Also the Athlete asserted that the FINA decision is neither substantiated nor clear.

The Athlete explained that she had purchased and used three supplements recommended by her coach. She and her doctor had checked the labels of these products before using.

Analysis of two supplements revealed no prohibited substance. Analyisis of the third supplement Inosine was not possible due she had used all capsules. Also the supplement was not available anymore in Cyprus and withdrawn from the market. She asserted that these capsules in question were the source of the positive test.

FINA contended that the had acted with negligence and failed to establish that the supplement Inosine was the source of the positive test. In accordance with the new FINA Doping Control Rules FINA accepted to apply in favor of the Athlete and to reduce the sanction from 4 years to a 2 year period of ineligibility.

The Panel deems that Athlete accepted the test results and that a 2 year period of ineligibility is the appropriate sanction in this case. The Panel finds that FINA failed to show cause as to why the Athlete bears No Significant Fault or Negligence.

The Panel concludes that there are no exceptional circumstances in this case because she acted negligently with her supplements, nor established how the substance had entered her system. The Panel considers that the reduction of the sanction by 2 years is a de jure consequence of the adoption of the Amended WADA Code by FINA. Accordingly the Athlete did not receive the reduction as requested.

Therefore the Court of Arbitration for Sport decides on 30 January 2004 that:

1.) The appeal filed by the Athlete on March 17, 2003 is partially upheld.

2.) The decision of FINA dated February 19, 2003 is hereby amended:

- a) A term of ineligibility of two years is imposed on the Athlete, commencing as of June 16, 2002.
- b) All results achieved by the Athlete during the period from June 16, 2002 until July 2, 2002 shall be deemed cancelled.

3.) This award is rendered without costs, except for the Court Office fee of CHF 500.00 (Five Hundred Swiss Francs) already paid by the Appellant, which shall be retained by the CAS.

4.) Each party shall bear its own respective costs.