(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

ingested by him was contaminated with clenbuterol,
it fi nds that, in light of all the evidence on record, 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. This is not
required by the UCI ADR or by the WADC, which
refer the Panel only to the balance of probabilities
as the applicable standard of the burden of proof. In
weighing the evidence on the balance of probabilities
and coming to a decision on such basis, the Panel
has to take into consideration and weigh all of the
evidence admitted on re cord, irrespective of which
party advanced which scenario(s) and what party
adduced which parts of the evidence.
That said, the Panel fi nds it important to clarify that,
by considering and weighing the evidence in the
foregoing manner and deciding on such basis, the
Panel in no manner shifted the burden of proof away
from the Athlete as explained above. The burden of
proof only allocates the risk if a fact or a scenario
cannot be established on a balance of probabilities.
However, this is not the case here.
Consequently, the Athlete is found to have committed
an anti-doping violation as defi ned by Article 21
UCI ADR, and it remains to be examined what the
applicable sanction is.
D. The Sanctions
It is undisputed that it is the fi rst time the Athlete is
found guilty of an anti-doping rule violation.
As already mentioned, Article 293 UCI ADR reads
as follows:
“ The period of Ineligibility imposed for a fi rst anti-doping
rule violation under article 21.1 (Presence of a Prohibited
Substance or its Metabolites or Markers), article 21.2
(Use or Attempted Use of a Prohibited Substance or
Prohibited Method) or article 21.6 (Possession of a
Prohibited Substance or Prohibited Method) shall be
2 (two) years’ Ineligibility
unless the conditions for eliminating or reducing the period of
Ineligibility as provided in articles 295 to 304 or the conditions
for increasing the period of Ineligibility as provided in article
305 are met ”.
Pursuant to this provision, the period of ineligibility
shall be two years. Accordingly, there is no discretion
for the hearing body to reduce the period of
ineligibility due to reasons of proportionality.
As none of the conditions for eliminating or reducing
the period of ineligibility as provided in Articles 295
to 304 UCI ADR 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 be
two years.
E. The Starting date of the Period of
Ineligibility
Article 314 UCI ADR determines that “Except as
provided under articles 315 to 319, the period of Ineligibility
shall start on the date of the hearing decision providing for
Ineligibility or, if the hearing is waived, on the date Ineligibility
is accepted or otherwise imposed”.
Furthermore, Article 315 UCI ADR determines that
“Where there have been substantial delays in the hearing
process or other aspects of Doping Control not attributable to
the License-Holder, the hearing body imposing the sanction may
start the period of Ineligibility at an earlier date commencing
as early as the date of Sample collection or the date on which
another anti-doping rule violation occurred”.
The Panel is of the opinion that such provision is
applicable in the present matter.
In that relation, the Panel notes that the Appellants
did not respond to the request of the CNCDD of
the RFEC to fi le an additional submission in order
to rebut the reports presented by the Athlete in the
fi rst instance. Because the Appellants refrained from
explaining their positions in more detail despite such
request, the CNCDD of the RFEC was unable to
make a decision with the benefi t of the entire picture
of the Appellants’ allegations and evidence that was
subsequently presented to this Panel; whereas it is
possible that with a fuller picture the CNCDD of
the RFEC might have decided the case more rapidly
and differently, which in turn might have affected the
occurrence of an appeal to the CAS.
Furthermore, the proceedings before CAS lasted for
over nine months and the hearing was postponed
twice, while delays cannot be specifi cally attributed
to the Athlete or to CAS and the Panel agrees
with the Athlete’s submission that his requests for
extension during the present proceeding were a
direct consequence of having to address and answer
the Appellants’ complex submissions on the blood
transfusion theory as to the source of the prohibited
substance which was not developed in front of the
fi rst instance.
Jurisprudence majeure / Leading cases
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