(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

The Decision seems to be based on the erroneous
assumption that the UCI and WADA are required
to eliminate the theoretical possibility of a case of
clenbuterol-contamination meat in Europe, Spain
or the Basque Country, whereas in reality it is the
Athlete who has the burden of proving that it is more
likely than not that the meat he ate was contaminated
with clenbuterol.
In his closing submissions, WADA’s Counsel alleged
that the fact that WADA is the Appellant and it put
forward and tried to establish alternative theories and
possibilities to the theory of the Respondent, does
not, in any way, effect the principle of who bears the
burden of proof in this case. The question remains if
the burden of proof was met by the Athlete.
According to WADA an adequate subscription of the
balance of probability is given in CAS 2008/A/1515 p
23. n°116, according to which “ the balance of probability
standard entails that the athlete has the burden of persuading
the Panel that the occurrence of the circumstances on which the
athlete relies is more probable than their non-occurrence or
more probable than other possible explanations of the positive
testing (see e.g. CAS 2006/A/1067, para. 6.8; CAS
2007/A/1370 & 1376, para. 127)”. The Athlete’s
theory must be established taking into account other
alleged possibilities, but the Panel must be careful not
to shift the burden to the Appellants.
The Athlete must prove more than only a mere
possibility of the occurrence of his theory; he has
to prove how the prohibited substance entered his
system. The Athlete has to establish facts that could
convince the Panel, on a balance of probabilities,
that indeed, in this case: (a) he ate contaminated
meat; and (b) the contaminated meat was indeed
the source of the prohibited substance found in his
body. Here, the missing link in the Athlete’s theory,
according to WADA, is proof that the meat he ate
was contaminated.
3.3. Mr Contador
In his answer of 8 July 2011, Mr Contador’s primary
submission is that he has shown enough evidence that
it was more likely than not that clenbuterol originated
from contaminated meat that he ate. Rather than
conceding the likelihood that contaminated meat
was the cause of his positive test, the Appellants have
proposed various alternatives during various stages of
the proceedings against him, no matter how unlikely
those alternatives may have been. The Appellants
focus their appeal predominantly on their blood
transfusion theory, while their supplements theory is
merely a fall-back position. This approach appears to
be aimed at countering the Athlete’s contention that
clenbuterol came from contaminated meat.
It is notable that the Appellants have not actually
ruled out contaminated meat as a possibility (because
they cannot do so) but that they have merely asserted
that the blood transfusion theory and the supplement
theory are more likely to have been the source of the
prohibited substance. This leaves the Panel faced
with a choice of three possibilities as to how the
clenbuterol entered the Athlete’s system.
The Athlete alleges that even though Swiss law
governs this arbitration, the “ balance of probability ”
standard applicable to this dispute is a common law
concept. Under Swiss law, the standard of proof is
governed by the rules of law applicable to the merits
of the dispute, here Swiss law and the UCI ADR.
Under Swiss substantive law, the standard of proof
is either the default standard generally referred to
as the “judge’s persuasion” (“conviction du juge”) or any
lower standard of proof if so provided for by the
relevant substantive rule itself or by the courts. In any
event, the actual standard of proof to be applied to a
specifi c fact must be determined taking into account
the meaning and the spirit of the law. In particular,
a reduced standard of proof must apply when
procedural fairness (prozessuale Billigkeit) so requires,
for example because the relevant facts are particularly
diffi cult to establish.
The following reduced standards of proof (preuve
facilitée) are generally applied under Swiss law:
a) high likelihood/plausibility (haute vraisemblance;
hohe Wahrscheinlichkeit), which “is fulfi
lled when according to the judge’s assessment there is no
serious room left for any version of facts diverging from the
alleged version”.
b) Simple likelihood/plausibility (vraisemblance; einfache
Wahrscheinlichkeit, Glaubhaftmachung), which
is satisfi ed when the existence of a fact is supported
by important/signifi cant elements, even
if the judge cannot rule out that – based on less
important/signifi cant elements – the alleged fact
did actually not occur.
Several provisions of Swiss substantive law explicitly
call for the application of such a reduced standard of
proof. In the present case, the relevant substantive
provision is Article 22 UCI ADR, which sets
forth a reduced standard of proof of “ balance of
probability ”. This reduced standard of proof is based
on the WADC and is deliberately different from that
generally used under Swiss law. Indeed, the original
French translation of the WADC refers neither to
“vraisemblance” nor to “haute vraisemblance” and rather
Jurisprudence majeure / Leading cases
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