4 Aug 2020
CAS 2019/A/6226 World Anti-Doping Agency (WADA) v. Spanish Anti-Doping Agency (Spanish Agency for Health Protection in Sport) & Ibai Salas Zorrozua
- Cycling
- Doping (Athlete’s Biological Passport (ABP))
- CAS Jurisdiction
- Denial of an evidentiary request for failure to satisfy the relevancy requirement
- Standing to be sued
- Lis pendens
- Athlete Biological Passport as a reliable and accepted means of evidence in establishing an ADRV
- Legality and predictability of the sanction
1. Article R47 of the CAS Code explicitly provides that, in the context of sport, consent to arbitrate can be based on an arbitration clause contained in the applicable regulations. An arbitration clause may be incorporated and accepted by reference; it does not have to be fully incorporated in the applicable rules or regulations. The applicable rules or regulations – here the Organic Law of Spain No. 3/2013 of 20 June “On the protection of the health of sportspeople and the fight against doping in sport activities” as modified by the Royal Decree-Law 3/2017 of 17 February “to adapt to the changes introduced in the 2015 WADC” (the Spanish ADA) – do contain a CAS arbitration clause which incorporates by reference the arbitration clause contained in the World Anti-Doping Code (WADC). In this respect, Article 40.6 of the Spanish ADA grants WADA the right to appeal “Tribunal Administrativo del Deporte” (TAD) decisions to the CAS and Article 13.2.3 WADC clearly states that in cases where a decision is taken by a national-level appeal body (such as the TAD), WADA has the right to appeal to the CAS. The athlete consented to Article 40.6 of the Spanish ADA and the incorporated Article 13.2.3 WADC when he applied for and obtained a license to compete at national level. The asymmetric nature of Article 40.6 of the Spanish ADA does not invalidate the arbitration clause or preclude WADA from bringing an appeal to the CAS as it has a right to do so under that provision and the incorporated Article 13.2.3 WADC, to which the athlete has consented. Moreover, there is a clear justification for granting WADA a right to appeal decisions of a national-level appeal body i.e. to give WADA the avenue to ensure that WADC signatories are properly and uniformly enforcing the WADC. The CAS does also have jurisdiction rationae personae over the national anti-doping organization (NADO) which did not issue the appealed decision but did issue a decision imposing sanctions on the athlete for committing an anti-doping rule violation (ADRV) and subsequently participated as a party in the national appeal proceeding before the TAD. Furthermore, the NADO, as a signatory to the WADC, is bound by the arbitration clause contained in Article 13.2.3 WADC, which was incorporated to the Spanish ADA by reference through its Article 40.6 and clearly grants to WADA the right to appeal to the CAS against a decision of the TAD stemming from an underlying NADO decision. Finally, the CAS’ jurisdiction is unaffected by the parties’ position on the merits.
2. Pursuant to Article R44.3 of the CAS Code, a party requesting the production of documents must show that said documents are (i) likely to exist and to be relevant; and (ii) in the custody of the other party. An Adaptive Model (and its underlying software) is only a statistical model which triggers alerts identifying abnormal profiles that warrant further attention and review; it does not in itself constitute evidence of doping. Therefore, the relevancy requirement of Article R44.3 of the CAS Code is not satisfied.
3. A party has standing to be sued (“légitimation passive”) only if it has some stake in the dispute because something is sought against it. A NADO has standing to be sued if it was affected by the appealed decision, in that the appealed decision overturned its own findings that the athlete had committed an ADRV, and the appeal involves an essential interest of the NADO (in particular, its disciplinary powers) and its resulting award will be enforceable and have a binding effect towards both respondents. The fact that the Spanish NADO does not dispute WADA’s position on the merits, or cannot respond for the TAD nor assume the appealed decision as its own is irrelevant to the issue of whether or not it is affected by the appeal.
4. According to Article 186.1bis of the Swiss Federal Act on Private International Law (PILA), there is lis pendens if three cumulative conditions are met: (i) a proceeding at a State court or another arbitral tribunal and the CAS arbitration are between the same parties and concern the same matter; (ii) said other proceeding is “already pending” before the CAS arbitration started; and (iii) the party claiming lis pendens proves the existence of “serious reasons” requiring the stay of the CAS proceedings. Absent the “already pending” requirement, there is no lis pendens within the meaning of Article 186.1bis PILA.
5. According to Article 3.2 WADC, an ADRV can be proved by any “reliable means”, including by the use of an ABP. It is undisputed that the ABP profile is a method of proving blood doping and not an ADRV in and of itself under the WADC. However, an ABP profile is a reliable and accepted means of evidence in establishing an ADRV. As such, if, in interpreting abnormal values in an ABP and any other evidence from a quantitative and qualitative standpoint, a panel is convinced that the abnormal values were caused by a “doping scenario”, an ADRV can thereby be properly established, even without establishing a specific reason for the blood manipulation. The inference drawn from abnormal blood values is enhanced where the ascertainment of such values occurred at a time when the athlete could benefit from blood doping (i.e., if the levels coincide with the athlete’s racing schedule). A request for an athlete to provide an alternative explanation to the abnormal values in his or her ABP does not create a presumption of guilt nor a shift in the burden of proof; the burden continually remains on the anti-doping agency pursuant to Article 3.1 WADC to prove that the abnormal values in the ABP were caused by a “doping scenario” as opposed to any of the hypothesis put forward by the athlete. This is in full keeping with the legal principle of the presumption of innocence. Indeed, if an athlete submits explanations for abnormal results, it is the anti-doping agency’s burden to establish that those explanations do not rebut the high likelihood of an ADRV established through the assessment of the ABP.
6. For a sanction to be imposed, a sports regulation must prescribe the misconduct with which the subject is charged, i.e., nulla poena sine lege (principle of legality), and the rule must be clear and precise, i.e., nulla poena sine lege clara (principle of predictability). Under the applicable regulations, the utilization, use or consumption of prohibited substances and methods including blood doping is a serious offense sanctionable with a period of ineligibility. This is a sufficiently clear, precise and unambiguous rule that provides a sufficient legal basis to find an ADRV and sanction the athlete. It is unnecessary to establish the exact type of blood doping to find an ADRV and sanction an athlete. The fact that the ABP can only show that there has been blood manipulation but not the exact type of blood doping practice does not violate the principle of legality or any other fundamental principle.
The Spanish Agency for the Protection of Health in Sport (AEPSAD) reported an anti-doping rule violation against the cyclist Ibai Salas Zorrozua after an Expert Panel concluded unanimously in February 2018 in their Joint Expert Report that the Athlete’s hematological profile “highly likely” showed that he used a prohibited substance or a prohibited method: the use of EPO or Blood doping.
This conclusion of the Expert Panel was based on assessment of blood samples, collected in the period from 25 January 2017 until 3 August 2017 reported in the Athlete’s Biological Passport (ABP).
In July 2018 the Expert Panel confirmed their conclusion in a second Joint Expert Report and on 3 October 2018 AEPSAD decided to impose a fine and a 4 year period of ineligibility on the Athlete.
However on 8 February 2019 the Administrative Court of Sport in Spain (TAD) decided to set aside the AEPSAD Decision and to annul the imposed sanction on the Athlete. Hereafter the World Anti-Doping Agency (WADA) had issues with AEPSAD and TAD about the release of the Athlete’s case file and finally appealed in March 2019 the TAD Decision with the Court of Arbitration for Sport (CAS). The CAS Panel rendered a decision based on the written submissions of the parties.
WADA requested the Panel to set aside the TAD Decision of 8 February 2019 and to impose a 4 year period of ineligibility on the Athlete. It contended that the Athlete’s ABP profile clearly showed multiple abnormalities as evidence that he committed an anti-doping rule violation.
WADA asserted that TAD erred in annulling the sanction on the ground that the ABP was not a reliable means of establishing an anti-doping rule violation. Whereas CAS jurisprudence already has accepted the validity of ABP as a reliable means of detecting blood doping.
AEPSAD denied that it has standing to be sued and that it had to be addressed against TAD as body that issued the Appealed Decision.
Based on CAS jurisprudence the Panel finds that AEPSAD does have standing to be sued and it is convinced that the ABP model is a reliable and valid means of establishing an anti-doping rule violation. The Athlete failed to demonstrate that there are serious reasons, invoking the principle of lis pendens in seeking to preclude the CAS Panel from proceedings with the present arbitration because WADA and the Athlete had filed appeals before the Spanish courts.
Considering the evidence regarding the Athlete’s ABP the Panel deems that an anti-doping rule violation can be found on the basis of an analysis of Samples 1 to 6 only, and that no taking into account Samples 7 to 10 is neither arbitrary nor in violation of article 9.3 of the Spanish Consititution.
In conclusion, the Panel taking following into account that:
- the values detected in the Athlete’s ABP were highly abnormal and indicated a high probability of doping;
- no contradictory evidence exists (i.e., that the Athlete has not provided any credible, physiological or pathological reason or condition to explain the abnormality in the ABP values); and
- the timing of the detection relative to his competitions
The Panel is comfortably satisfied that the abnormal values were caused by a blood doping scenario. As a result, the Panel holds that the Athlete violated Article 22.1(b) of the Spanish ADA.
Therefore the Court of Arbitration for Sport decides on 4 August 2020 that:
1.) The CAS has jurisdiction and the Appeal filed on 27 March 2020 by WADA against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is admissible.
2.) The appeal filed by WADA on 27 March 2019 against the Spanish Agency for Health Protection in Sport and Mr Ibai Salas Zorrozua is upheld.
3.) Mr Ibai Salas Zorrozua is guilty of an anti-doping rule violation.
4.) Mr Ibai Salas Zorrozua is sanctioned with a four-year (4) period of ineligibility starting on the date of this Award.
5.) All competitive results obtained by Mr Ibai Salas Zorrozua from the date of 25 January 2017 through to the commencement of his period of ineligibility shall be disqualified, with all of the resulting consequences, including the forfeiture of any medals, points, and prizes.
6.) (…).
7.) (…).
8.) All further or different motions or prayers for relief are dismissed.
