(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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Arbitration CAS 2011/A/2384 Union Cycliste Internationale (UCI) v. Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) & Arbitration 2011/A/2386 World Anti-Doping Agency (WADA) v. Alberto Contador Velasco & RFEC 6 February 2012 Cycling; doping/Clenbuterol; food supplement contamination; admissibility of the testimony of a protected witness; admissibility of the polygraphe examination; new evidence; adverse analytical fi nding; burden of proof (principle); balance of probability standard; proof of negative fact; meat contamination; disciplinary sanction; starting point of the period of ineligibility Panel: Mr Efraim Barak (Israel), President Mr Quentin Byrne Sutton (Switzerland) Prof. Ulrich Haas (Germany) Relevant facts The Union Cycliste Internationale (UCI) is a nongovernmental association of national cycling federations recognized as the international federation governing the sport of cycling in all its forms, with its registered offi ce in Aigle, Switzerland. The World Anti-Doping Agency (WADA) is the independent international anti-doping agency, constituted as a private law foundation under Swiss Law with its seat in Lausanne, Switzerland, and having its headquarters in Montreal, Canada, which aim is to promote, coordinate and monitor, on an international level, the fi ght against doping in sports in all its forms. Mr Alberto Contador Velasco (“Mr Contador ” or the “Athlete ”) is a professional cyclist of the elite category and has the Spanish nationality. He is an Elite Pro license holder (n°2247396) and is currently a rider of the Saxo Bank Sungard ProTeam. The Real Federación Española de Ciclismo (RFEC) is the governing body of cycling in Spain with its headquarters in Madrid, Spain. The RFEC is a member of the UCI. Mr Contador, then a member of the ProTeam Astana, participated in the 2010 Tour de France, a stage race on the UCI’s international calendar that took place from 3 July to 25 July 2010. Mr Contador won the 2010 Tour de France. On 21 July 2010, a rest day following the 16 th stage of the 2010 Tour de France, the UCI submitted Mr Contador to a urine doping test pursuant to the UCI Anti-Doping Regulations (the “UCI ADR”) between 20:20 and 20:30 in the city of Pau, France. Mr Contador confi rmed on the doping control form that this sample (Sample number 2512045) (the “Sample”) had been collected in accordance with the regulations. The Athlete’s A Sample was analysed on 26 July 2010 at the WADA-accredited Laboratory for Doping Analysis - German Sports University Cologne in Cologne, Germany (the “Cologne Laboratory”). It resulted from the certifi cate of analysis of 19 August 2010 that Mr Contador’s A Sample (A-2512045) contained clenbuterol in a concentration of 50 pg/ mL. Clenbuterol is a Prohibited Substance classifi ed under Article S1.2 (other Anabolic Agents) of the 2010 WADA Prohibited Substances List. On 24 August 2010, UCI informed Mr Contador by telephone of the adverse analytical fi nding. Mr Contador was also informed that he was provisionally suspended from the date of receipt of the offi cial notifi cation in accordance with Article 235 UCI ADR. Furthermore, a meeting was arranged between UCI and Mr Contador on 26 August 2010. The meeting of 26 August 2010 was arranged in order to deliver Mr Contador the offi cial notifi cation of the adverse analytical fi nding, the full documentation package of the A Sample analysis (Documentation Package A-2512045), the notifi cation of the Jurisprudence majeure / Leading cases - 101
provisional suspension and also to explain the management process of the case. On this occasion, Mr Contador requested the opening and analysis of the B Sample (B-2512045) and acknowledged the decision that he was provisionally suspended. During this meeting, the Athlete explained that the origin of the Prohibited Substance must have been contaminated meat. On 8 September 2010, in the presence of Mr Contador’s representatives, Dr de Boer and Mr Ramos, the B Sample analysis took place. The result of the Analysis of the B Sample confi rmed the A Sample result. As a consequence of the low concentration of clenbuterol found in Mr Contador’s A and B Samples and the fact that the samples that had been collected prior to 21 July 2010 did not contain clenbuterol, the UCI, as well as WADA, decided to conduct a series of investigations in an attempt to understand the fi nding obtained and, in particular, whether the fi nding might indicate that other anti-doping violations could have been committed than just the presence of clenbuterol. Following the investigation conducted together with WADA (WADA issued a report on 5 November 2010), the UCI concluded that the fi le contained a suffi cient basis to proceed with the case as an apparent anti-doping rule violation. Therefore, by letter of 8 November 2010, and pursuant to Article 234 UCI ADR, the UCI asked the RFEC to initiate disciplinary proceedings against Mr Contador. A. Proceedings Before the CNCDD of the RFEC On 10 November 2010, the acceptance of the documentation submitted by UCI led to the fact that the Comité Nacional de Competición y Disciplina Deportiva (the “CNCDD”) of the RFEC, which sanctioning responsibilities for the processing of this case are delegated by said international organisation, agreed to the initiation of the Disciplinary Proceeding with number 17/2010 against Mr Contador, for the alleged breach pursuant to Article 21(1) and (2) UCI ADR. On 26 November 2010, Mr Contador was heard by the CNCDD of the RFEC. The silence of the UCI and WADA in relation to the request for documentary and scientifi c collaboration made by the CNCDD led the Examining Judge, and later on the CNCDD to conduct the preliminary investigation of the case and, respectively, to issue its decision solely on the notifi cation of the adverse results and the evidence presented by the Athlete. On 25 January 2011, the examining judge of the CNCDD made a proposition to Mr Contador aiming at imposing to him a one year licence suspension. On 7 February 2011, Mr Contador refused the proposal made by the examining judge of the CNCDD. On 14 February 2011, the CNCDD rendered a decision according to which Mr Contador was acquitted (the “Decision ”). B. Proceedings Before the Court of Arbitration for Sport On 24 March 2011, the UCI fi led an appeal at the Court of Arbitration for Sport (CAS) against Mr Contador and the RFEC with respect to the Decision pursuant to the Code of Sports-related Arbitration 2010 edition (the “Code ”). In its statement of appeal, the UCI nominated Dr Quentin Byrne-Sutton, attorney-at-law in Geneva, Switzerland, as arbitrator. On 29 March 2011, WADA fi led an appeal at the CAS against Mr Contador and the RFEC with respect to the Decision pursuant to the Code. In its statement of appeal, WADA nominated Dr Quentin Byrne- Sutton as arbitrator. On 31 March 2011, the CAS Court Offi ce suspended the time limit for the UCI to fi le its appeal brief pending an agreement of the parties or a decision from the President of the CAS Appeals Arbitration Division, or his Deputy, on the issues of the consolidation and of the procedural calendar. On 4 April 2011, following the parties’ agreement, the CAS Court Offi ce informed that both appeals shall be consolidated and be heard by the same Panel. Furthermore, the CAS Court Offi ce informed the parties that all their letters on the procedural calendar were forwarded to the President of the CAS Appeals Arbitration Division, or his Deputy, in order for a decision to be taken in this respect. On 5 April 2011, the CAS Court Offi ce informed the parties that the Deputy President of the CAS Appeals Arbitration Division had decided to fi x the deadline for the Appellants appeal briefs on 18 April 2011. Moreover, the Deputy President of the CAS Appeals Arbitration Division had decided that since the parties did not agree on a full procedural calendar, it will be for the Panel, once constituted, to decide Jurisprudence majeure / Leading cases - 102
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Bulletin TAS CAS Bulletin 1 / 2012
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Arbitration CAS 2011/O/2422 .......
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“ Sports law ”: implications fo
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and procedures of the CAS 10 . The
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2. Considering the plenary power of
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over the emerging game of indoor so
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appeals arbitration proceedings, ab
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troubling because . . . United Stat
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La médiation : processus et applic
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Ainsi, la solution au confl it éma
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voir sa demande profonde comprise :
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pour les parties elles-mêmes. Cell
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divergent sur l’exécution (mer/m
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Ces deux grands courants font l’o
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peine de retomber rapidement dans u
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mémoires déposés par les parties
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d’un règlement d’obtenir un av
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• une brève description des moye
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R64.2 (…) R65 Appels contre des d
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written comments and shall give bri
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his own discretion, the questions s
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strong links between the two 1 . In
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According to Article 17.4 “If any
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Finally, in the absence of other de
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epresentative (Respondent) argued t
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Figure 2: Orders on language in CAS
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précisions sur les offres que le Q
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estrictions, non, entre les comité
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En date du 3 février 2011, la Comm
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II 271; H.M. RIEMER, Berner Komment
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onne foi et de respect de la procé
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son exploitation mais, comme observ
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des droits de la personnalité. L
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ne peut que prendre note de remarqu
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En l’espèce, celui qui cherchait
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évidence le fait que leur “condu
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toute activité liée au football
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Extracts from the legal fi ndings A
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Arbitration CAS 2011/O/2574 Union o
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SFL Appeals Tribunal of 29 July 201
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its position on OLA’s request for
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- production par la fondation du co
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(iii) To confi rm that OLA is not e
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CCP. The substantive validity of th
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2.2 Article R46 (1) of the CAS Code
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constitutive of an abuse of a domin
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Claimant to indicate its prayers fo
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It results from the above that UEFA
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The UEL 2011/2012 is an internation
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The Panel considers that the sancti
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- discriminate OLA pursuant to Arti
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Appellant requested the matter be d
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The Panel is satisfi ed that the Bu
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E. Conclusion In summary, the Panel
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Appellant described as caffeine pil
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apply the various regulations of FI
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in doping matters is to be upheld w
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* * 4A_404/2010 Judgment of 19 Apri
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BGG; Jean-Maurice Frésard, in Comm
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Art. 2.1 of the Statutes of Respond
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validity, namely with regard to its
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that he is a Turkish citizen, who p
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in the provisions of any other serv
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Respondent had their domicile, seat
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evidential submission took place ti
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un contrôle antidopage ou à l’a
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essortissant à la conception suiss
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4A_428/2011 Arrêt du 13 février 2
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interdiction d’exécuter les sanc
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Il leur a cependant échappé que c
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éférence (arrêt 4A_246/2011 du 7
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l’AMA entendait tirer de la Conve
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4A_652/2011 Arrêt du 7 mars 2012 I
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