(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

C. Merits
1. Applicable regulatory framework
According to Article 21 UCI ADR “The following
constitutes anti-doping rule violations:
1. The presence of a Prohibited Substance or its Metabolites
or Markers in a Rider’s bodily Specimen.
1.1 It is each Rider’s personal duty to ensure that no
Prohibited Substance enters his body. Riders are
responsible for any Prohibited Substance or its
Metabolites or Markers found to be present in their
bodily Specimens. Accordingly, it is not necessary
that intent, fault, negligence or knowing Use on the
Rider’s part be demonstrated in order to establish
an anti-doping violation under article 21.1.
Warning:
1) Riders must refrain from using any substance,
foodstuff, food supplement or drink of which
they do not know the composition. It must be
emphasized that the composition indicated on
a product is not always complete. The product
may contain Prohibited Substances not listed
in the composition.
2) Medical treatment is no excuse for using
Prohibited Substances or Prohibited Methods,
except where the rules governing Therapeutic
Use Exemptions are complied with.
1.2 Suffi cient proof of an anti-doping rule violation
under article 21.1 is established by either of the
following: presence of a Prohibited Substance or its
Metabolites or Markers in the Rider’s A Sample
where the Rider waives analysis of the B Sample
and the B Sample is not analyzed; or, where the
Rider’s B Sample is analyzed and the analysis of
the Rider’s B Sample confi rms the presence of the
Prohibited Substance or its Metabolites or Markers
found in the Rider’s A Sample.
1.3 Excepting those substances for which a quantitative
threshold is specifi cally identifi ed in the Prohibited
List, the presence of any quantity of a Prohibited
Substance or its Metabolites or Markers in a
Rider’s Sample shall constitute an anti-doping rule
violation.
1.4 As an exception to the general rule of article 21.1,
the Prohibited List or International Standards
may establish special criteria for the evaluation of
Prohibited Substances that can also be produced
endogenously.
1.5 The presence of a Prohibited Substance or its
Metabolites or Markers consistent with the
provisions of an applicable Therapeutic Use
Exemption issued in accordance with the present
Anti-Doping Rules shall not be considered an antidoping
rule violation.
2. (…)”
On 21 July 2010, at the occasion of the second rest
day of the 2010 Tour de France, following the 16 th
stage, Mr Contador was subjected to a doping test and
requested to fi le a urine sample. Both the A and B test
results were positive for clenbuterol. Clenbuterol is a
non-threshold prohibited substance that appears in
Article S1.2 (other Anabolic Agent) of the 2010 WADA
Prohibited List.
Article 22 UCI ADR provides the following regarding
the burden and standard of proof applicable to antidoping
organisations in order to establish an antidoping
rule violation:
“ The UCI and its National Federations shall have the burden
of establishing that an anti-doping rule violation has occurred.
The standard of proof shall be whether the UCI or its National
Federation has established an anti-doping rule violation to
the comfortable satisfacstion of the hearing panel bearing in
mind the seriousness of the allegation which is made. This
standard of proof in all cases is greater than a mere balance
of probability but less than proof beyond a reasonable doubt.
Where these Anti-Doping Rules place the burden of proof upon
the License-Holder alleged to have committed an anti-doping
rule violation to rebut a presumption or establish specifi ed facts
or circumstances, the standard of proof shall be by a balance of
probability, except as provided in articles 295 and 305 where
the License-Holder must satisfy a higher burden of proof ”.
The Panel notes that Articles 295 (concerning the
regime of elimination or reduction of the period of
ineligibility for specifi ed substances under specifi c
circumstances) and 305 (aggravating circumstances)
UCI ADR do not apply in the present matter.
In his answer, Mr Contador states that “ in circumstances
where the concentration of the Prohibited Substance is extremely
low, as in this case, and deliberate use is ruled out, the presence
of the Prohibited Substance alone is suffi cient to establish that
an anti-doping rule violation has occurred ”.
It is therefore undisputed that Mr Contador has
committed an anti-doping rule violation and that the
Appellants have met the standard of proof given the
analytical reports made by the Cologne Laboratory
and the confi rmation of the adverse analytical fi nding
by the B Sample.
Jurisprudence majeure / Leading cases
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