"I sometimes used to sit on my bike, weeping with the pain." - Eddy Merckx, former Belgian professional cyclist.
Introduction
On February 6, 2012 the Court of Arbitration for Sport (‘CAS’) delivered its award in the arbitration between Union Cycliste Internationale (‘UCI’), World Anti-Doping Agency (‘WADA’) on the one side and Alberto Contador and Real Federacion Espanola de Ciclismo (‘RFEC’). The CAS partially upheld the appeal filed by the UCI and WADA, finding Contador guilty of a doping offence. As a consequence, Contador was stripped of his win at the 2010 Tour de France and all cycling results achieved by him from 25 January, 2011 were declared void. Further, the CAS also held Contador ineligible from participating in professional cycling events for a period of two (2) years, beginning 25 January, 2011. However, in view of the provisional suspension of five (5) months that Contador previously served, he will be permitted to return to professional cycling from 5 August, 2012.
Background
Alberto Contador Velasco is a Spanish professional road bicycle racer, an exceptional climbing specialist and stage racer worldwide. He is the fifth racer in history, and the first Spaniard, to win all three Grand Tours of road cycling. The UCI is an international sporting federation and the world governing body for cycling. The UCI oversees competitive cycling events internationally and maintains a calendar of races in which its license-holders compete.
Professional cycling has been rife with doping cases and recurring accusations of doping. The presumed first death due to doping during a professional cycling competition occurred in 1896 when an English cyclist, Arthur Linton, died during the Bordeaux – Paris race. Over the years, many instances of systematised doping such as the Festina Affair in 1998 where just before the kick-off of the Tour de France a huge stock of doping products was discovered in a car of the Festina cycling team; star cyclists such as Floyd Landis and Tyler Hamilton testing positive for doping offences, and last, but not the least, the death of Marco Pantani in 2004, have cast a shadow over the sport.
The Olympic Movement Anti-Doping Court of 1999 expounded that doping can be classified under either of the following categories:
- The use of an expedient (substance or method) which is potentially harmful to an athlete’s health and/or capable of enhancing their performance, or
- The presence in the athlete’s body of a prohibited substance or evidence of the use thereof or evidence of the use of a prohibited method.
According to the definition adopted by the International Olympic Committee (IOC) and subsequently incorporated into the World Anti-Doping Code (WADC), doping is a ‘strict liability offence’. This means that an athlete is culpable of doping if he/ she uses such prohibited drugs or is found to have such substances in his/her system. Article 2.1.1 of the WADC which deals with the principle of strict liability states that,
“it is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes are responsible for any prohibited substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the athlete’s part to be demonstrated in order to establish an anti-doping violation under Article 2.1.”
Article 10 along with Article 10.2 covers sanctions against individuals which specifically deal with the bans and period of ineligibility for athletes in case of positive drug test. In several instances and cases of offences relating to doping, a two year period of ban is imposed on the athlete for the first offence, which may be converted to a lifelong ban in the event of a second offence. However in Article 10.5 WADA provides for exceptional circumstances under which the period of ineligibility can be reduced i.e. either when the athlete has no fault or negligence (ineligibility period is eliminated) or has no significant fault or negligence (ineligibility period is reduced).
Facts
Contador underwent a doping test on 21 July, 2010, the day after the 16th stage of the 2010 Tour de France. An analysis of his urine samples showed the presence of ‘clenbuterol’, a prohibited substance classified as an anabolic agent on the 2010 WADA list of prohibited substances. The low concentration of clenbuterol found in the urine samples and the fact that the samples collected prior to 21 July, 2010 did not contain clenbuterol, prompted the UCI and WADA to conduct a series of investigations in an attempt to understand the initial finding and, in particular, whether other anti-doping violations could have been committed. Clenbuterol was found to be present not only in the urine samples but also in the blood samples. Based on this apparent violation of the WADC, both WADA and UCI contended that they had sufficient grounds to proceed and the Real Federación Española de Ciclism (RFEC) was asked to initiate the disciplinary proceeding against Contador.
On November 10, 2010 the document submitted by the UCI was accepted by the Comit`e National de Competici`on y Disciplina Deportiva (CNCDD) of the RFEC which initiated disciplinary proceedings against Mr. Contador. The RFEC on January 25, 2011 proposed a suspension for a period of one year. Later, on February 12, 2011 Contador was exonerated of any sanction by the RFEC. The CNCDD decided that it was highly probable that the clenbuterol entered Contador’s body through food contamination and that Contador could not be held liable for negligent behaviour.
WADA and UCI both filed an appeal to CAS against the decision of RFEC. Both the entities requested CAS to annul the decision given by the RFEC and to impose ineligibility for a period of two years from the date of the CAS award. Later, UCI also requested CAS to impose a fine on the accused athlete.
Award
Both sides produced considerable amount of evidence in support of their claims. In addition, both sides also put forward their theories on the presence of clenbuterol in the samples. In essence, CAS was required to establish which of the theories was most plausible given the unique facts and circumstances of the case, and best explained the presence of clenbuterol in Contador’s samples.
Contador argued that the clenbuterol found in his urine samples originated from contaminated meat that he consumed a day in advance of the tests, during the Tour de France. Incidentally, clenbuterol is a known contaminant that is extensively used in the farming industry. However, based on certain details provided by Contador, WADA and UCI traced the origin of the ‘contaminated’ meat to its source. This tracking of the origin of the meat was provided to CAS by WADA and UCI through a report that contained exhaustive substantiation to help CAS in concluding that the meat was not contaminated with clenbuterol. The likelihood of contamination from meat was further laid to rest as the EU had implemented regulations that prohibit the use of substances, including clenbuterol, in the farming industry. In addition, Spanish law made such use a criminal offence punishable with imprisonment, disqualification from engaging in trade and the closure of premises. Therefore, the CAS held that while the likelihood of Contador having consumed meat contaminated with clenbuterol in Europe was very low, it could not be ruled out.
On the other hand, WADA and the UCI rejected Contador’s defense relying upon the ingestion of the so called contaminated meat. WADA and the UCI argued that it was more likely that the positive test was a result of systematic doping undertaken by Contador. They alleged that after undergoing ‘blood doping’, Contador underwent a plasma transfusion that could have introduced the clenbuterol into his body.
In support of their claim, WADA and UCI took into account certain other factors that they believed had a significant bearing. The first was the extremely subjective and circumstantial conjecture that Contador conducted his profession in the midst of a ‘tainted environment’. Contador's career had been marked by occasional doping allegations, the foremost of which, led his Astana-Würth team to withdraw from the 2006 Tour de France. Also, Contador’s former manager Manuel Saiz Balbas was the manager of the ONCE-Deutsche Bank team that suddenly withdrew from the Tour de France in 1999 in the aftermath of the Festina Affair. He was also arrested in connection with the ‘Operación Puerto’ scandal and his company Active Bay was stripped of its ProTour license. Therefore, WADA and the UCI argued, that Contador’s professional environment magnified the possibility of him having indulged in voluntary doping. Second, an analysis of Contador’s blood showed variations, including plasma levels that were not usually found, but nonetheless indicated that he had indulged in blood doping. Contador relied on the results of polygraph examinations and expert opinions to contend the assertions made by WADA and the UCI. The CAS held that while blood transfusion did not seem impossible, it was unlikely nonetheless as the Contador’s blood analysis did not concretely establish that a blood transfusion had occurred.
WADA contended that the presence of clenbuterol could also be traced to consumption of contaminated food supplements. However Contador, in his witness statement, declared that he had not consumed any supplements between the anti-doping tests and went on to list all supplements made available to his team during the 2010 season and the 2010 Tour De France. Since Contador was the only Team Astana cyclist to test positive for clenbuterol during the 2010 Tour de France, the likelihood of clenbuterol entering his system through contaminated food supplements was highly questionable.
However, the CAS did not altogether rule out the possibility of a food supplement being contaminated with clenbuterol. Accordingly, the CAS concluded that the contaminated meat theory and blood transfusion theory were both equally unlikely and that the clenbuterol was more likely to have entered Contador’s system through ingestion of a contaminated food supplement. Further, the CAS held Contador was guilty of an anti- doping rule violation only as he had tested positive for clenbuterol. The CAS did not attribute the presence of clenbuterol to any intentional and deliberate doping on the part of Contador or his team.
To avoid sanction, Contador had to establish how the prohibited substance entered his body and that he committed no fault or negligence, or no significant fault or negligence. As he failed to satisfy these conditions, the CAS had no hesitation in holding Contador guilty of a doping offence. As no conditions regarding eliminating or reducing the period of eligibility were met as per UCI Anti-Doping Regulations, the CAS sanctioned a two year ineligibility period on Contador beginning 25 January, 2011, the date on which the RFEC initially proposed to suspend Contador for a period of one year. Contador was also disqualified from the 2010 Tour de France and all other events in which he participated after this date.
Conclusion
While the award has split the cycling world right down the middle, it is viewed as vital in the fight against doping in sports. In brief, the award reiterates the fundamental principle of strict liability in doping where in an athlete shall be responsible for a banned substance that is found in the athlete’s body notwithstanding whether he intended to commit such an act or not. Further, the absence of proof that the banned substance has been ingested deliberately is not in itself proof of innocence of the athlete. The only factors that could mitigate the repercussions of such liability are the absence of fault or negligence on the part of the athlete. Though the CAS judgment may have dampened Alberto Contador’s spirits, he still has the option of appealing the ruling in the Swiss federal court.
Introduction
On 9 February, 2012, Court of Arbitration for Sport (“CAS”) delivered its award in the arbitration between the Union Cycliste Internationale (“UCI”) and retired German cyclist Jan Ullrich and Swiss Olympic. The CAS partially upheld the appeal filed by the UCI and held Jan Ullrich guilty of a doping offence. As a consequence, all cycling results achieved by Ullrich from 1 May, 2005 until his retirement were annulled. Further, the CAS also held Ullrich ineligible from participating in professional cycling events for a period of two (2) years, beginning 22 August, 2011.
Background
Jan Ullrich is a former German professional road bicycle racer, considered by many as one of the best time-trialists in the history of professional cycling. In 1997, he became the first German to win the Tour de France, the best known and most prestigious of professional cycling's "Grand Tours" along with the Giro d'Italia and Vuelta a España. Ullrich won gold and silver at the 2000 Summer Olympics in Sydney. In June 2002, Ullrich tested positive for amphetamines in an out of competition test. He was suspended for six (6) months, the minimum period of suspension, after disciplinary hearings by the German Cycling Federation’s disciplinary committee. The committee took into account the fact that Ullrich was, then, hospitalised, suffering from depression and not attempting to use the drug for performance enhancement. Ullrich cited his failure to defeat Armstrong at the Tour de France as the reason he fell into depression. The decision was not appealed and in 2003 Ullrich relocated to Switzerland.
In March 2004, in an interview with the Spanish newspaper Diario AS, former Spanish professional road racing cyclist Jesús Manzano exposed systematic doping in his former cycling team, Kelme, having been let go by the team in September 2003. He detailed blood doping i.e., the practice of boosting the number of red blood cells in the bloodstream to enhance performance, as well as the use of performance-enhancing drugs. The kingpin of these practices was Dr. Eufemiano Fuentes, the Kelme team doctor. In 2006, the anti- drug trafficking arm of the Spanish Guardia Civil executed ‘Operation Puerto’, which, based on the suspicion of a doping racket, investigated Dr. Fuentes. The raid on Dr. Fuentes’ apartment led to the seizure of documents, blood bags, transfusion equipment, list of cyclists and other evidence inferring the involvement of many prominent athletes in ‘blood doping’. In a laboratory owned by Fuentes, the police found a large quantity of stored blood that appeared to belong to the teams. To avoid increasingly sophisticated drug tests in the 2000s, riders intending to cheat often resorted to freezing their blood in the off-season, then putting it back into their bodies before or during races to increase their oxygen- carrying red blood cell count, a costly and complex process. The Guardia Civil filed Report No. 116 which referred to certain materials seized during Operation Puerto. A copy of Report No. 116 was provided to the UCI and the World Anti-Doping Agency (“WADA”).
Media reports at the time connected Ullrich to Operation Puerto as some of the blood bags were identified as Jan, Number 1, or Hijo Rudicio (Rudy’s Son), alluding to Ullrich’s close professional relationship with Rudy Pevenage, the team director at the T-Mobile professional cycling team he was part of. Thereafter, Ullrich was suspended by T-Mobile and withdrawn from the Tour de France 2006, one day prior to the start of the event. Ullrich retired from professional cycling in 2007.
Facts
The UCI, relying upon Report No. 116, asked Swiss Cycling to initiate disciplinary proceedings against Ullrich. The Swiss Olympic Federation, that operates Swiss Cycling, decided that its statutes, in place in 2006, did not allow the initiation of proceedings against an athlete who previously terminated his or her membership. Thus, Ullrich was not subjected to any disciplinary action. The adoption of new regulations by Swiss Olympic meant that the Disciplinary Chamber of Swiss Olympic could not rule on this matter. In March 2010, the UCI filed an appeal with CAS requesting annulment of the decision of the Disciplinary Chamber of Swiss Olympic, seeking a lifetime ban for Ullrich and retroactive disqualification of all results achieved by Ullrich from 29 May 2002 onwards.
In the meantime, Swiss Anti-Doping filed a separate appeal which was rejected by the CAS citing lack of jurisdiction. Ullrich raised an objection with respect to CAS jurisdiction, which was dismissed by CAS Panel. Ullrich also raised several objections relating to the procedure and to the applicable law. The CAS Panel dismissed all of them and determined that the UCI Rules were applicable to this case.
Award
Many procedural issues remained unresolved until the final award, among them the applicability of the law, ascertaining the proper parties, Ullrich’s resignation, scope for appeal and time frame of appeal were the most prominent ones. Primarily, CAS dismissed Ullrich’s objections and held that even a non-license holder could be tried in such a proceeding. The CAS further refused to refer the matter back to Swiss Cycling for a decision, should the right to appeal be upheld.
The basic contention of the UCI was that Ullrich had violated Rule 15.2 of the new Anti- Doping Cycling Rules of the UCI (“UCI Rules”) which entailed the “use or attempted use of a prohibited substance or a prohibited method.” Further, the UCI also alleged that Ullrich violated Rule 15.5 that involved “Tampering, or Attempted to tamper, with any part of Doping Control.”
Furthermore, the CAS Panel ruled that it was possible, under the UCI Rules, to initiate disciplinary proceedings against Ullrich even though he was no longer a UCI licence-holder. In determining this, the CAS panel decided that sporting rules like the UCI Rules and the World Anti-Doping Code would otherwise not be capable of enforcement, because the athlete could never be a proper defendant and could circumvent the process by retiring from the sport. The UCI placed reliance on Article 1.1.004 §3 of the UCI Rules, which provided that UCI license holders remained subject to the jurisdiction of the relevant disciplinary bodies for acts committed while holding a license, even if proceedings are started or continue after the license holder ceases to hold a license.
With respect to the merits of the appeal, the CAS Panel, relying on the award made by CAS in Valverde v. WADA, UCI and RFEC[Case 4A_386/2010] was of the opinion that, as a policy matter, the decision by a panel to assess the merits, even if not considered at first instance, “is apt to facilitate quick disposition of disputes.”. Further, the panel noted that the evidence adduced by the UCI clearly showed that Dr Fuentes was engaged in providing of doping services to athletes. Further, Ullrich’s travels often took him in the vicinity of Dr Fuentes’ known operations on multiple occasions during Ullrich’s career, and evidence recovered suggested that Ullrich was in personal contact with Dr Fuentes. In addition, Ullrich had paid Dr Fuentes over € 80,000. Last, DNA analysis confirmed that Ullrich’s genetic profile matched the blood in the blood bags found in the possession of Dr Fuentes.
Ullrich's counsel based their defense on procedural matters and on two main arguments in particular. First, they contended that the UCI Anti-Doping Commission did not make a clear, unambiguous assertion in its letter to the Swiss Cycling Federation that Jan Ullrich had in fact committed the offence of doping. Second, subsequent UCI procedures were not followed properly. Therefore, any grounds for disciplinary hearings were invalidated.
The strategy adopted by Ullrich in not questioning the veracity of the evidence or any other substantive aspects of this case, limiting the defence to procedural issues., evoked surprise from the CAS. This approach coupled with the evidence presented by the UCI, and Ullrich’s failure to contest the evidence prompted the CAS to conclude that Ullrich had, at least, engaged in blood doping, in violation of Article 15.2 of the UCI Rules. However, the CAS Panel rejected the UCI’s plea for a lifetime ban on Ullrich, considering that the first doping offence committed in 2002 was the out-of-competition ingestion of amphetamines.
In determining the appropriate sanction, Ullrich sought the non-consideration of prior convictions for doping. Here, it is pertinent to note that the UCI Rules came into force January 1, 2009. The UCI Rules do not apply retrospectively, subject to the principle of lex mitior. In brief, the legal principle of lex mitior means that if there are several changes in the law after a certain offence, then the most favourable, not the latest law, must be applied, i.e., if the law is relaxed and then tightened again before the judgment, the most lenient law during the period between offence and decision must be applied. In this context, in the case of Ullrich, since 2002, amphetamines had been reclassified by the UCI and their presence in an athlete constituted an anti-doping violation only if found in-competition.
The UCI Rules would therefore be applicable to the offence should it be more favourable to the offender; else the rules applicable at the time of the activity were to apply. As per the newer rules, an athlete’s previous anti-doping record was to be taken into consideration while deciding his or her eligibility following an anti-doping rule violation, and finding of drugs in an athlete in an out of competition scenario would not be an offence. This information gains importance in light of Ullrich’s 2002 conviction. The panel concluded that the 2009 rules were more or less clear that such conduct should constitute a prior offence. Previously decided cases of the tribunal (Puerta v. International Tennis Federation, CAS 2006/A/1025 and USADA v. Reed, CAS 2008/A/1577) both of which stated that the purpose of deterrence of doping and the spirit of the rules would be undermined should past offences not be considered and athletes given a clean chit.
Yet, the CAS panel considered it critical in this situation to distinguish those two cases from this one in so much as the first act would not have amounted to an offence under the new rules by virtue of ingestion being out of competition. Hence, the question before the court was whether a previous infraction, which had been finally determined before a legitimate forum, could be looked at as a first violation, if such conduct would not amount to a violation under the new rules? The panel ruled to the effect that maintaining the same as a violation would be against the scientific considerations that left that activity out of the prohibited activities under the second set of Rules and would hence not serve the ends of justice, read along with the fact that the most lenient rule was to be applied to the offender. Additionally, transposing the lower authority’s decision as relevant under the 2009 rules would make it necessary for the CAS panel to go into the substance of that decision, for which evidence and so forth had not been examined by the panel.
Finally, keeping in mind the above considerations, the court held that the said violation was Ullrich’s first and pronounced a two year period of ineligibility in participation, to be effective from August 2011, the time of commencement of proceedings before the court (and not the time of the first violation as the court in that instance had not considered the merits of the case but simply dismissed the case on jurisdictional grounds). The panel, additionally, under Article 313 of the UCI Rules was also mandated to disqualify “all other competitive results obtained from the date a positive Sample was collected… or other anti- doping rule violation had occurred.” Hence since Ullrich’s involvement based on evidence could be conclusively proven only post 2005, the records thereafter were ordered to be erased.
Conclusion
The arbitral award delivered by CAS still begs two questions. First, the UCI has not sufficiently established its reasons for proceeding against a retired professional road cyclist who ceased to hold a UCI licence. Second, there seems no plausible explanation for the curious defence strategy adopted by Ullrich. Finally, this arbitral award did not garner much attention, being delivered just three days after the CAS delivered its award on the Alberto Contador matter.
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