(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

According to Article 315 UCI ADR the Panel is
entitled to fi x the start of the period of ineligibility
at an earlier date commencing as early as the date of
Sample collection.
Taking into consideration all of the above elements,
the Panel deems it fair to order that the period of
ineligibility will commence and be counted as of the
date on which Mr Contador was proposed by the
CNCDD of the RFEC to be suspended for one year,
namely 25 January 2011.
According to Article 317 UCI ADR “if a Provisional
Suspension or a provisional measure pursuant to articles
235 to 245 is imposed and respected by the License-Holder,
then the License-Holder shall receive a credit for such period
of Provisional Suspension or provisional measure against any
period of Ineligibility which may ultimately be imposed”.
The Panel notes that Mr Contador was provisionally
suspended upon receiving UCI’s offi cial notifi cation
of the provisional suspension on 26 August 2010 and
not on 24 August 2010 as stipulated in Mr Contador’s
answer. The Athlete remained provisionally
suspended until he was acquitted by the CNCDD of
the RFEC on 14 February 2011. Thus, the Athlete’s
provisional suspension lasted 5 months and 19 days.
As argued by Mr Contador, Article 317 UCI ADR
is a mandatory requirement to which effect must
be given, meaning that the foregoing period of
provisional suspension must be deducted from the
period of ineligibility.
According to Article 288, “A violation of these Anti-
Doping Rules in connection with an In-Competition test
automatically leads to Disqualifi cation of the individual result
obtained in that Competition”.
Additionally, Article 289 UCI ADR provides the
following:
“Except as provided in articles 290 and 291, an anti-doping
rule violation occurring during or in connection with an Event
leads to Disqualifi cation of the Rider’s individual results
obtained in that Event according to the following rules:
[…]
1. If the violation involves
a) the presence, Use or Attempted Use of a Prohibited
Substance or a Prohibited Method (articles 21.1 and
21.2), other than a Specifi ed Substance;
[…]
all of the Rider’s results are disqualifi ed, except for the results
obtained (i) in Competitions prior to the Competition in
connection with which the violation occurred and for which
the Rider (or the other Rider in case of complicity) was tested
with a negative result, and (ii) in Competitions prior to the
Competition(s) under point i”.
Appendix 1 to the UCI ADR refers to Article
12.1.022 of the UCI Cycling Regulations to defi ne
“Disqualifi cation”. According to this Article the
meaning of Disqualifi cation includes, inter alia:
“ The disqualifi cation of a rider shall incur invalidation of
results and his being eliminated from all classifi cations and
losing all prizes, points and medals in the race in question.
[…]”
Article 313 UCI ADR provides that:
“ In addition to the automatic Disqualifi cation of the results
in the Competition pursuant to article 288 and except as
provided in articles 289 to 292, all other competitive results
obtained from the date a positive Sample was collected (whether
In-Competition or Out-of-Competition) or other anti-doping
rule violations occurred, through the commencement of any
Provisional Suspension or Ineligibility period, shall, unless
fairness requires otherwise, be Disqualifi ed.
Comment:
3. it may be considered as unfair to disqualify the results
which were not likely to have been affected by the Rider’s
anti-doping rule violation.
4. […]”.
In his answer, Mr Contador submits that it would
be unfair and disproportionate to disqualify any
results he has obtained following the decision of the
CNCDD to exonerate him given that:
a) it is common ground that the amount of
clenbuterol in the Athlete’s system on 21 July
2010 was too small to have had any effect
whatsoever. Any results subsequently obtained
by the Athlete cannot therefore have been
affected;
b) the Athlete was suspended for almost 5 months
but then exonerated and allowed to compete by
the CNCDD;
c) it would be absurd to expect an athlete not to
resume competing after having been cleared of
any wrong-doing by his/her national federation;
and
d) the Athlete has undergone approximately 20
tests since he has resumed competing, all of
which he has passed.
Jurisprudence majeure / Leading cases
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141