The continuation of this post is the text of the CAS decision on Landaluce, extracted from the PDF, and then machine translated into English.
It's very rough, but should identify key issues for those who can fight their way through.
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 2
1. The International Union Cyclist (the UCI) is the association of the national federations of cycling. The purpose of it is the direction, the development, the regulation, control and the discipline of cycling. The system of control antidopage set up by the UCI includes/understands in particular the Payment of Control Antidopage (the RCAD), the list of classes of doping substances and the methods of doping, the list of the tests international to control as well as the list of the accredited laboratories.
2. Real Federación Española de Ciclismo (the RFEC), Spanish national federation responsible for cycling and equipped with a disciplinary payment at the national level, is member of the UCI.
3. Mr Iñigo Landaluce Intxaurraga (Mr Landaluce) is a cyclist racing Spanish of the elite category, holder of a licence delivered by the RFEC. Member with the time of the facts of the team Euskaltel cyclist, it took part in the cycle race international on road Critérium of Dauphiné Libéré which was held of the 5 to the 12 June 2005.
4. With the exit of the stage of June 11, 2005, Mr Landaluce was checked antidopage. During the sampling, Mr Landaluce indicated to have taken triamcinolone in infiltration on March 21, 2005.
5. Sample A taken on Mr Landaluce was analyzed by the French laboratory of tracking of the doping of Châtenay-Malabry (the LNDD), laboratory accredited by the World Agency Antidopage (the AMA). His report/ratio of analysis of July 17, 2005 has revealed that the analysis by mass spectrometry of isotopic reports/ratios indicates one catch of Testosterone or the one of its precursors¡. On July 28, 2005, the report/ratio of analysis relating to sample A was transmitted to the RFEC, so that is implemented a disciplinary proceedings, in accordance with article 187 of the RCAD.
6. On August 11, 2005, Mr Landaluce has, via the RFEC, requested one check analysis. He then asked that the check analysis which was initially envisaged the 14 and September 21, 2005, are deferred to October 19, 2005. On October 21, 2005, check analysis confirmed the presence of exogenic testosterone of nature in the sample B.
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 3
7. By telefax of October 27, 2005, the UCI transmitted the results of analysis of
the sample B with the RFEC and required of him to continue the disciplinary proceedings.
8. On May 5, 2006, the RFEC, via the Committee Nacional de Competición y Deportiva disciplined (national Committee of competition and sporting discipline/CNCDD), judged that the conditions under which the analysis had been carried out revealed the existence of an incomplete process not to be in conformity with all the requirements legal applicable and, thus, not being able to guarantee the result completely¡. CNCDD consequently estimated that ´the legal maxim ´in dubio pro reo¡ [was] fully applicable to the case present¡, the business classified and discharged Mister Landaluce.
9. Mr Landaluce took part in no cycle race between on July 24, 2005 and it May 15, 2006.
II. PROCEDURE IN FRONT OF THE ARBITRATION COURT OF THE SPORT
A. REQUESTS AND ANSWERS OF the PARTS
10. By declaration of June 26, 2006, the UCI seized the Arbitration court of the Sport (the HEAP). On July 17, 2006, the UCI deposited its report of call requiring of the HEAP:
´1) to reform the decision of the national Committee of competition and discipline sporting of the RFEC;
2) to condemn Mr. Landaluce Intxaurraga to a 2 year old suspension, in accordance with the RAD;
3) to pronounce the disqualification of Mr. Landaluce Intxaurraga of the races cyclists in which it took part from June 11, 2005 and in particular of cycle race of the ´Critérium of Dauphiné Released 2005, until July 29 at least 2005;
4) to condemn Mr. Landaluce Intxaurraga and Real Federacion Española of Ciclismo to pay with the UCI an amount of CHF 1 ' 000. - as overheads results (art 245.2 RAD);
5) to condemn Mr. Landaluce Intxaurraga and Real Federacion Española of Ciclismo, jointly to refund with the UCI the emolument of CHF 500. - and with all other expenses, including a contribution to the expenses of the UCI.
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 4
11. Mr Landaluce deposited his answer on September 8, 2006, under the terms of which he asks the HEAP:
· to declare itself inefficient;
· to condemn the UCI to the payment of the expenses generated by the procedure.
On a purely subsidiary basis, Mr Landaluce requests HEAP that it:
· rejects the call interjeté by the UCI;
· does not impose any sanction in its opposition;
· condemns the UCI to the payment of the expenses.
On a purely basis even subsidiary, Mr Landaluce makes the point that any sanction pronounced in its opposition will have to be reduced of 9 months and half, period during which he abstained from running.
12. The RFEC deposited its answer on September 14, 2006, putting forward in substance that:
· the decision of the CNCDD must be confirmed;
· the UCI must be déboutée of its call;
· the UCI must be condemned at the expense, pursuant to article 282 of RCAD.
B. the AUDIENCE
13. The audience took place on October 11, 2006, with the seat of the HEAP in Lausanne (the Audience), in presence of the three members of the Arbitration court (Formation) and of lawyers of parts.
14. The Formation heard the witnesses and expert following:
· For the UCI:
- Doctor Martial Saugy, director of the Swiss laboratory of analysis of doping, (Dr. Saugy);
- Professor Jacques de Ceaurriz, director of the LNDD (Prof de Ceaurriz).
· For Mr Landaluce:
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 5
- Doctor Douwe de Boer, researcher at the clinical Chemistry laboratory with the Teaching hospital of directing Maastricht and old of the Department doping of and the doping Analysis laboratory of Lisbon (Dr. de Boer);
- Doctor Detlef Thieme, specialist in medico-legal toxicology within department of medico-legal toxicology of the Institute of forensic medicine of Munich (Dr. Thieme);
- Mr Igniacio Colomer Hernández, Professor of right to the University Carlos III of Madrid (Prof Colomer), heard by videoconference.
C. BEING the PRODUCTION OF PARTS 43 AND 43 (A) PER MR LANDALUCE AND OF THE HEARING OF MR MIGUEL MADARIAGA
15. On September 22, 2006, is 14 days after having deposited its answer, Mr Landaluce deposited the complementary parts 43 and 43 (a).
16. The UCI being opposed to the production of the aforesaid parts on September 25, 2006, Mister Landaluce indicated, by telefax of October 2, 2006, which it wished to make hear like witness Mr Miguel Madariaga (Mr Madariaga).
17. By telefax of October 4, 2006, the UCI was opposed to the hearing of Mister Madariaga, the answer of Mr Landaluce not mentioning at all the hearing of this witness.
18. Under R56 article of the Code of the arbitration as regards sport: Except contrary agreement of the parts or contrary decision of the President of the formation ordered by exceptional circumstances, the parts are not allowed with to supplement their argumentation, neither to produce new parts, nor to formulate new offers of evidence after the tender of the motivation of call and of answer¡.
19. At the time of the Audience, the UCI indicated that it would not give its agreement to the hearing of Mr Madariaga that if it could pour with the debates a new received part take care. The President of the Formation asked that the part be transmitted to the RFEC and with Mr Landaluce so that those take note of it. Within sight of the part, Mr Landaluce gave up making hear Mr Madariaga.
20. In the absence of ´exceptional circumstances¡ within the meaning of the R56 article of the Code of the arbitration as regards sport, the President of the Formation decided not to admit HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 6 new parts and not to carry out the hearing of the witness.
III. BEING the COMPETENCE OF the HEAP
21. The organization of international professional competitions supposes a distribution clear of competences between the national and international authorities, on the one hand, enters the public sector and the private sector, in addition.
22. It comes within provinces, such as the traffic of narcotics, for which each State requires, with name of national sovereignty, to control itself any behavior reprehensible on its territory, and refuses to leave with private associations the care of to take care some, this by the means of a delegation of public utility was.
23. On the other hand, the sporting matter discipline, which results in the disqualification of the athlete or by the prohibition which is made to him take part in future competitions, answers the will primarily to eliminate any unfair competition. It is why it is legitimately entrusted to sporting authorities.
24. That is all the more true being the exercise of a sport at the international level, which could not obey a multiplicity of potentially contradictory national rules.
25. To entrust to the only national laws the responsibility to govern the conditions under which must to be held the international competitions would lead to an incoherent system and uneven, with in addition the risk which the national authorities devote early or late to a race with the least repressive legislation.
26. To mitigate such disadvantages it is enough to make sure that the same sporting discipline, when it is held within an international framework, is subject to the same rules for all competitors.
27. However, Mr Landaluce tries to make accroire that the legal situation in Spain would dictate a different solution. It puts forward indeed that the HEAP would not be qualified to know call of the UCI against a decision of the CNCDD and indicates that it Spanish committee of Sporting Discipline of the Higher Council of the Spanish Sports (it CEDS) would be only qualified.
28. With the support of his claim, Mr Landaluce calls upon a certain number of texts who are taken again hereafter:
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 7
· Article 6 of the Statutes of the UCI:
1. The federations begin, because of their affiliation, to conform to statutes and payments of the UCI like to any decision taken in accordance with those. In the same way, they are committed making respect the statutes, payments and decisions of the UCI by any person concerned.
2. The payments of the UCI must be included in the payments
correspondents of the federations.
3. The statutes and payments of the federations cannot go against those of the UCI. In the event of divergence, only statutes and payments of the UCI will be applied. The statutes and the payments of the federations must to contain the clause express that in the event of conflict with the statutes or payments UCI, only the latter will be applied.
4. The subparagraphs above are applied in the respect of the provisions of right requirement in force in the country of the federation concerned¡. · Article 35 of the Royal Decree 1835/1991 of December 20, 1991 relative to Spanish sporting federations:
The following questions could not be the subject of a conciliation or of an arbitration: […]
b) Those which will be in relation to the control of the substances and the methods prohibited in the sport and the safety of the sporting practice […] ¡. · Article 90.2 of the Statutes of the RFEC in its drafting resulting from the decision from October 11, 2004:
The following questions could not be the subject of a conciliation: […]
b) Those which will be in relation to the control of the substances and the methods prohibited in the sport and the safety of the sporting practice […] ¡.
· Article 24 of the Spanish Constitution of December 28, 1978:
1. Any person has the right to obtain the effective protection of the judges and of courts to exert its legitimate rights and its interests without, that in any case, this protection can be refused to him.
2. In the same way, any person has the right to go in front of the ordinary judge determined beforehand by the law, to defend themselves and to be made assist by one lawyer, to be informed of the charge carried against it, to have a lawsuit public without delay undue and with all the guarantees, to use the evidence necessary to its defense, not to make a statement against itself, of not to acknowledge itself guilty and to be supposed innocent¡.
· Article 91.1 of the Statutes of the RFEC in its drafting resulting from the decision from October 11, 2004:
The irrefutable declaration of will of the parts to the litigation to subject itself to the conciliation procedure will be required. For that, a convention HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 8 of arbitration will be subscribed in writing and will have to express the renunciation of the way legal, obligation to subject itself to the decision of one or several referees and with the rules of procedure¡.
· Article 84.1 of Law 10/1990 of October 15, 1990 relating to the Sport: The Spanish Committee of Sporting Discipline is the affected national body organically with the Higher Council of the Sports which, acting independently of this one, section as a last resort, by administrative way, the litigations relating to the sporting disciplinary questions which concern its spring¡.
· Article 10 of the Statutes of the RFEC:
1. Under the coordination and the supervision of the Higher Council of the Sports, RFEC will exert the public office of administrative nature following: […]
F) To exert the sporting disciplinary authority, according to terms' establish by the Law on the Sport, its particular provisions of development and its statutes and payments¡.
· Article 59 of the Royal Decree 1591/1992 of December 23, 1993:
Competences of the Spanish Committee of Sporting Discipline extend:
a. With knowledge and decision, by ground for appeal, of the formulated claims with regard to the acts of the titular sporting bodies of the authority disciplinary which exhausts the sporting way, according to the distribution of competences established by the Law on the Sport and this royal decree¡.
29. Mr Landaluce claims in substance:
· that the recourse to the arbitration would be interdict as regards doping in Spain;
· that the Spanish Constitution would set up an inalienable right of access to justice and with the courts. Mr Landaluce indicates that private being of it it would not know constitutional law of access to justice while being authorized to carry its call that in front of the HEAP;
· never not to have expressed its will to subject itself to the arbitration of the HEAP and not to have signed any convention of arbitration. Mr Landaluce estimates that it simple fact of having a licence of the RFEC could not be worth acceptance competence of the HEAP;
· that the RFEC would be a public authority exerting of the public office disciplinary under the supervision of a Spanish public organization. Mister Landaluce estimates, consequently, that the decisions of the RFEC would have
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 9
to be the subject of an administrative recourse in front of the CEDS then, if necessary, in front of the Spanish administrative judge;
· that under the terms of article 6 subparagraph 4 of the Statutes of the UCI, the RFEC must respect the Spanish legislation when it applies the standards of the UCI;
· that articles 242 and 280 to 285 of the RCAD, which establishes competence exclusive of the HEAP to know call directed against the decisions of national federations would be inapplicable in accordance with article 6.4 of Statutes of the UCI, since this exclusive competence would violate the right Spanish;
· that the stop of the central Court of administrative dispute n° 7 of Madrid of June 8, 2006 returned in a business Santiago Perez Fernandez recognizes possibility of forming a disciplinary complaint counters the decisions of the CNCDD in front of the CEDS then, if necessary, in front of the Spanish administrative judge. 30. The UCI estimates, for its part, that the HEAP is qualified and that the RCAD is applicable, in being based on the following texts:
· Article 1.1.001 of the Payment of the sport cyclist of the UCI:
The licence is an identity paper which confirms the engagement of its holder to respect the statutes and payments and which authorizes it to take part in events cyclists¡.
· Article 1.1.004 of the Payment of the sport cyclist of the UCI:
Any person asking for a licence engages of this fact to respect them statutes and payments of the UCI, the continental confederations of the UCI and members federations of the UCI and to take part in the demonstrations cyclists in a sporting and honest way. It is in particular committed respecting them obligations aimed to article 1.1.023.
As of the request for licence and in so far as the licence is delivered, it applicant is responsible for the infringements to the payments which it makes and subjected to the jurisdiction of the disciplinary authorities. Very laid off remains subjected to the jurisdiction of the disciplinary authorities qualified for the made facts whereas it was petitioning or titular of a licence, even if the procedure is initiated or continues after moment when the interested party does not have any more a licence¡.
· Article 1.1.023 of the Payment of the sport cyclist of the UCI:
[…] 2. I commit myself respecting the statutes and payments of the Union Cyclist International, of its continental confederations and its federations main roads.
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 10
I state to have read or to have had the possibility of taking note of these statutes and payments. I will take part in the competitions or demonstrations cyclists in a manner sporting and honest. I will subject myself to the sanctions imposed in my connection and will carry the calls and litigations in front of the authorities envisaged with the payments. I accept the Court Arbitration of the Sport (HEAP) like only qualified authority of call in the cases and according to the methods provided for by the regulations. I accept that the HEAP decides in last authority and that its decisions will be final and without call. Under these reserves, I will subject any litigation possible with the UCI exclusively with the courts of the head office of the UCI.
3. I accept to subject to me to and to be bound by the payment antidopage the UCI, clauses of the World Code Antidopage and its Standards international to which the payment antidopage of the UCI refers thus that the payments antidopage of the other competent authorities according to payments of the UCI and the World Code Antidopage, in so far as they are in conformity with this Code. […] ¡.
· Article 5 of the preliminary provisions of the Payment of the sport cyclist of
The participation in a test cyclist, with some title that it is, is worth acceptance of all the provisions which find application there¡.
31. The UCI indicates, in substance, that it arises from the combined reading of the above mentioned articles
· the bachelors of the members federations of the UCI are subjected to the RCAD;
· any person who asks for a licence engages to respect the RCAD and in particular commit yourself subjecting itself to controls antidopage and to competence of the HEAP in last spring.
32. To the support of its claim, the UCI recalls that the decision of the CNCDD of May 5, 2006 it is appealed was returned pursuant to the RCAD.
33. Moreover, at the time of the Audience, the UCI made the point that:
· the HEAP should appreciate the competence and the arbitrability of the litigations according to the law federal Switzerland on the private international law (LDIP) under the terms of which (I) doping is submissible to arbitration, and (II) the clauses of arbitration per reference are valid (article 178 of the LDIP);
· according to the jurisprudence of the HEAP, the existence of a national law would not prevent not the application of the regulation of the international federation (HEAP 2005/A/872, sentence of January 30, 2006, UCI/Federico Muñoz Fernandez and Federación Colombiana De Ciclismo);
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 11
· the Spanish legislation called upon by Mr Landaluce would not have vocation with to apply that in Spain, as révèleraient it:
(I) the article 1.3° of the Royal Decree 1835/1991 of December 20, 1991 on Spanish sporting federations, under the terms of which the field of competence of the Spanish sporting federations would be limited to own territory;
(II) the preamble to Law 10/1990 of October 15, 1990 on the sport, according to which the objective of the law would be to define the legal framework applicable to the sporting practice within the Spanish territory.
· article 7 of the Royal Decree 255/1996 of February 16, 1996, under the terms of which sanctions imposed pursuant to the rules antidopage of any federation, whether this one is national, international or autonomous, produce their effects on the unit of the Spanish territory, necessarily révèlerait that sanctions can be imposed by other federations that the RFEC and to take effect in Spain;
· not to admit like only ground for appeal against the decisions of the CNCDD the call in front of the CESD would be equivalent depriving the UCI of straight of glance on decisions emanating of the national federation, insofar as the UCI would not be entitled to form call in front of the Spanish jurisdiction.
34. In its writings and at the time of the Audience, the RFEC indicated to adopt interpretation made by the UCI, being the competence of the HEAP. The RFEC in addition indicated that it was a deprived establishment with two caps¡ exerting, according to cases', of missions of law and order or a private nature. The RFEC specified that, within the framework of international competitions, as with the particular case, it exerted a mission of order deprived.
35. At the time of the Audience, Prof Colomer made the following observations:
· the grant of a licence by the RFEC would be constitutive of an administrative act;
· the capacity of sanction of the RFEC would intervene within the framework of the exercise of a public office;
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 12
· the HEAP would not be qualified because the sanction imposed by the CNCDD would be an administrative act;
· the prohibition of the recourse to the arbitration as regards doping would be imperative for the parts, which could not derogate from it;
· the Spanish Constitution would prevail on very treated international;
· any decree contrary with the Spanish Constitution would be anticonstitutional;
· article 7 of the Royal Decree 255/1996 of February 16, 1996 would be anticonstitutional.
36. Conscious owing to the fact that this litigation illustrates the tension which can exist between the law main road of an athlete and the payment of the international federation to which this one is subjected, the Formation recalls that the UCI is the association of the national federations of cycling the purpose of which is the direction, the development, the regulation, control and the discipline of international cycling, in particular as regards doping. Mister Landaluce is, as for him, a professional cyclist of the elite category, holder of one licence under the terms of which it agreed to be subjected to the rules of the UCI.
37. Admittedly, the request for licence of Mr Landaluce reveals that the model of request of licence used by the RFEC is not in conformity with the payment of the UCI. However, articles 2 and 3 of the request for licence signed by Mr Landaluce that its holder commits himself respecting the Spanish legislation into force, they indicate Statutes of the UCI as well as its confederations, and which it agrees to subject to controls antidopage under the conditions envisaged in article 1.1.023 of the Payment of sport cyclist of the UCI as to the competence of the HEAP which is explicitly envisaged there. The RFEC did not fail besides to indicate, at the time of the Audience, that the fact of him to require a licence was worth acceptance of the competence of the HEAP, even in the absence of a clause express to this end. The Formation considers that by requiring its licence of the RFEC, Mr Landaluce was subjected to the competence of the HEAP, like with payments of the UCI.
38. Of aucuns could think that it would have been preferable that the request for licence expressly mention the tender of the parts to the arbitration of the HEAP. In this respect, Formation stresses that the runners of elite are not laymen, contrary to consumers, but of the informed sportsmen who have without the slightest doubt knowledge of
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 13
the existence of the HEAP and its competence to know businesses of doping. Consequently, the competence of the HEAP as envisaged in article 1.1.023 of the Payment of the sport cyclist could not in no case to constitute a surprise for the person who Formula One ask licence. To require that in addition to elements listed in paragraph 37 above, the request for licence mentions the competence of the HEAP expressly so that this one that is to say qualified, would be an excess of formalism and a nonnecessary requirement by jurisprudence of the Swiss federal Court.
39. Argumentation of Mr Landaluce tending to make the point that article 6 subparagraph 4 statutes of the UCI enjoindrait with the RFEC to apply the Spanish law and to prohibit it resort to the arbitration of the HEAP hardly carries the conviction of the Formation. Indeed, article 6 of the Statutes of the UCI is addressed to the only national federations. Three first subparagraphs of this article put at the load these federations an obligation to harmonize their rules by taking again the payments of the UCI. The fourth subparagraph of article 6 of the Statutes of the UCI, states simply that this harmonization must hold count possible applicable imperative provisions in the country of the federation concerned. Consequently, article 6 subparagraph 4 of the Statutes of the UCI returns expressly in the three paragraphs which precede it and could not be detached from sound context. Article 6 of the Statutes of the UCI is thus addressed only to the federations main roads, in order to indicate the step to them to be
followed in order to harmonize their right, and could by no means be called upon by a cyclist in order to withdraw itself from the application of payments of the UCI and, by doing this, with the competence of the HEAP.
40. Moreover, no provision of the Spanish law excludes the recourse to the arbitration. It is certainly not the case of article 24 of the Spanish Constitution. It is enough to be convinced some to compare the range of this text with that of article 6 subparagraph 1 of European convention of the human rights (the CEDH) which provides that all nobody is entitled so that its cause is heard […] by an independent court and impartial, established by the law¡. However, the European Commission of the human rights has judged in a business X./FRG of March 5, 1962, that the insertion of a clause arbitration in a contract renunciation for the benefit of the CEDH was worth and that no stipulation of the CEDH prohibited such a renunciation. Except proof of opposite, article 24 of the Spanish Constitution, just like article 6 subparagraph 1 of CEDH, prohibits the recourse to the arbitration by no means. Indeed, the competence of the HEAP
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 14
do not deprive Mr Landaluce of his right of access to justice as envisaged by Spanish constitution, since out of international matter, the recourse to the arbitration is a method of exercise of this right.
41. The Formation considers ultimately, that the Spanish provisions called upon by Mr Landaluce do not have vocation to apply that within the framework of competitions cyclists main roads, and could not make obstacle nor with the application of the payments of the UCI, nor with the competence of the HEAP. In judging differently would lead to a true race with the national legislation most lenient.
42. It is indeed imperative that international sporting federations, such as the UCI, have a right of glance on the decisions of the national federations as regards doping. This right of glance of the UCI, which materializes by the possibility of forming one call to the opposition to the decisions of the national federations in front of the HEAP, has as an aim to mitigate the risk which the international competition is not distorted by a federation main road which would take care not to sanction its members.
43. Consequently, the argument of Mr Landaluce tending to make the point that only ground for appeal against the decisions of the CNCDD would be a call in front of the CESD could carry the adhesion of the Formation.
44. In the same way, the dispute by Mr Landaluce of the competence of the HEAP to the reason that the regulation antidopage would be entrusted to a public authority carries to forgery. It indeed arises from the jurisprudence of the HEAP that the capacity of the federations international, such as the UCI, is exerted when well even the control and the sanction of doping would be entrusted, as with the particular case, with a public authority. 45. The capacity of the international federations has the aim of eliminating any competition unfair and any race with the most lenient legislation. It tends to subject all them athletes with a levelling treatment, by taking care that certain national federations do not show passivity vis-a-vis the failures made by their sportsmen nationals. Thus in a business of doping of swimmers in 1997, the HEAP has recognized as required pressing that the international federations have possibility of re-examining the decisions of the national federations in the cases of doping. It
acts to prevent the risk which the international competitions are not distorted, in reason of the too lenient sanctions which could be tempted to pronounce a federation main road (HEAP 96/156, sentence of October 10, 1997, F./FINA).
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 15
46. Thereafter, another formation of the HEAP had the occasion to extend this jurisprudence with the sanctions imposed by the national public authorities, in a sentence B./International Federation of the Judo of March 17, 1999 (HEAP 98/214, sentence of the 17 March 1999, B./International Federation of Judo). It acted, in the species, of one control positive doping sanctioned by a suspension pronounced by a decree of Minister for the French Sports. Indeed, a French law of 1989 gave to the Minister it to be able to substitute its decision for any measurement of prohibition taken by federations sporting main roads. With the particular case, the French Federation had pronounced one sanction of two year of suspension, of which one with deferment, to which the ministerial decree ministériel simple a one year old had substituted suspension. However, this last sanction was not conform to the payments of the International Federation of Judo (FIJ) which thus carried the business in front of the HEAP. This last
pronounced a 15 month old suspension.
47. At the time of this sentence, the referees had mentioned the problem which is in the middle this litigation:
The formation thinks that the latitude granted by this jurisprudence to international federations must be extended to the cases where check procedure and sanction of doping are not diligentées by a national federation, in accordance with a sporting regulation, but by a public authority, in application of a national law, as in the species, or, if necessary, on the basis of a International Convention. Capacity of extension at the international level of the national decisions relative to doping, whatever the authority which pronounces them, is justified not only by concern of preventing the risk to see certain federations or of the organizations governmental to devote itself to an unfair competition unhealthier, in omitting to sanction their sportsmen in a as rigorous and severe way as other federations and/or that their international federation, but also by the objective which each international federation must seek to reach, namely to make to respect a treatment equal and coherent with all the practise of the
48. Consequently, the provisions of the Spanish right to which it is refers do not allow to show the incompetence from the HEAP. It is what the HEAP noted with various recoveries, in particular in the field of cycling in the business Muñoz (HEAP 2005/A/872, sentence of January 30, 2006, UCI/Federico Muñoz Fernandez and Federación Colombiana De Ciclismo), at the time of which the following conclusion has summer formulated:
The panel is prepared to accept that have has matter of possible Colombian Law it was for Mr. Muñoz to appeal to the General Disciplinary Committee of the Colombian National Olympic Committee. However, to C so has breach of his contract with the
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 16
UCI. At best, the decision of the General Disciplinary Committee could only cuts year effect within Colombia. It would not entitle Mr. Muñoz to participate in cycle races organized under the auspices of the UCI, gold to avoid the UCI' S disciplinary code.
49. The authority of the States and the international sporting authority are not in competition; with opposite, their roles are complementary. The official authority is restricted to control led its justiciable ones, while the international federation manages the competitions who belong to his spring. The same behavior can be sanctioned penally in a given place, without to involve a sanction of the cyclist on the level international. In the same way, a behavior can not be penally sanctioned all while being nevertheless likely to generate an exclusion of the sporting contests because it undermine the honesty of the competition.
50. This complementarity between official and international sporting authority can cover one particular form when a public authority replaces the national federation to decide sanctions - as it was the case in the business of the above mentioned FIJ, or as with the case present. National sovereignty, such as it is expressed on the occasion of a sporting disciplinary measurement returned by a national authority, does not have, in theory, vocation to be applied that to the only own territory. The national decision can however to be replaced by a decision of the international authority - the HEAP - for that the necessary uniformity the right is assured. Admittedly, it is theoretically conceivable that the State imposes its national decisions until in the competitions international being held on its territory with the contempt of the international authority. One such behavior would go however against all the efforts tending to fight against doping at the international level, and could lead other than the State
concerned of the organization of the international competitions. It would be surprising that a State wishes to place itself in such a situation, and nothing in the texts called upon in the present business do not leave think that such would be the position adopted by Spain. Quite to the contrary, it preamble to the Royal Decree 255/1996 of February 16, 1996 reflects clearly that Spain worries about the conformity of its standards with the international standards:
´Pursuant to the article 76.1.d) of the Law on the Sport and in agreement with criteria posed by the international sporting standards, this Royal Decree identify the behaviors constitutive of infringements to the rules of doping and establishes the relating to it sanctions […] ¡.
51. Far from coming to the support from the claim from Mr Landaluce, the Royal Decree 255/1996 of February 16, 1996 that he calls upon, does nothing but confirm the reasoning which has summer developed herebefore. Indeed, article 7 of this Decree recognizes explicitly that them
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sanctions imposed by an international federation take effect on the whole of the Spanish territory. The opposite would have been at the very least surprising.
52. The sights of what precedes, the Formation shows that it is qualified to know this litigation, in accordance with articles 280 to 291 of the RCAD.
53. That is not disputed besides by the RFEC which has, throughout the procedure, recognized the competence of the HEAP and the applicability of the RCAD, to which it was expressly makes reference in the decision of the CNCDD of May 5, 2006, object of this recourse.
IV. BEING the ADMISSIBILITY OF the CALL
54. Article 285 of the RCAD lays out that the declaration of call of the UCI must be subjected to HEAP within one month as from the reception of the complete file of the authority of hearing of the national federation. However, when the UCI did not require the file in the 15 days following the reception of the decision, as article 247 lays down it of RCAD, the time of call are one month as from the reception of the complete decision.
55. With the particular case, the UCI received the decision of the CNCDD on May 9, 2006 and required it complete file on May 11, 2006. The complete file was received by the UCI on May 26, 2006. The declaration of call having been sent on June 26, 2006, the call was formed in times.
V. BEING FUND
A. GENERAL PRINCIPLES
56. Under article 16 of the RCAD:
´The burden of proof will fall on the UCI and its national federations which will have to establish the existence of the violation of a rule antidopage. The degree of proof will establish if the UCI or its national federations satisfied the burden of proof with the satisfaction of the authority of hearing which will appreciate serious allegation. degree of proof, in all the cases, will have to be more important than a right balance of probabilities, but less than one proof beyond of a reasonable doubt. When it present payment antidopage entrusts to the runner, or another supposed person to have made a violation of the rules antidopage, the responsibility of reverse one presumption or to establish specific circumstances or facts, the degree of proof will have to be founded on a right balance of probabilities¡.
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57. Being the mode of establishment of the facts and presumptions, article 18 of the RCAD expects that:
´Laboratories accredited by the AMA or approvals in another manner by the AMA are supposed to have carried out the analysis of the samples and to have observed the procedures of the security chain in accordance with the international standards for laboratories. The runner can reverse this presumption by showing that a variation occurred compared to the international standards. If the runner manages to reverse the presumption by showing that a variation is occurred compared to the international standards for the laboratories, it will fall then with the UCI or the national federation to show that this variation could not be with the origin of the abnormal result of analysis¡.
In other words, there is a presumption réfragable according to which laboratories accredited by the AMA the analyses in the code of practice carried out, in accordance with international standard applicable to laboratories (the SIL). On the assumption that it runner would show the existence of a variation compared to the SIL, it would fall then on the UCI to show that this variation is not at the origin of the abnormal result of analysis. It is advisable thus to observe these rules in order to determine if Mr Landaluce establishes supervening of variations and in the affirmative, if the UCI is able to show that the called upon variation is not likely to have given place to the abnormal result.
58. Under article 15.1 of the RCAD:
Are regarded as violations of the rules antidopage:
1. The presence of a prohibited substance, its metabolites or markers in one body taking away of a runner.
1.1. It personally falls on each runner to make sure that no substance prohibited does not penetrate in its organization. The runners are responsible for all prohibited substance, of its metabolites or markers whose presence is detected in their body taking away. Consequently, it is not necessary to make proof of the intention, the fault, the negligence or the use conscious of the share runner to establish a violation of the rules antidopage under the terms of the article 15.1 ».
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59. The substance testosterone is a steroid endogenous anabolic androgen, substance prohibited which is reproduced on the list of prohibitions 2005 pennies the S1.1.b class. The list of prohibitions provides that:
Within the framework of a prohibited substance (according to the list above) which can be produced naturally by the body, a sample will be regarded as container this prohibited substance if concentration of the prohibited substance or of its metabolites or of its markers and/or any other relevant report/ratio in the sample from the sportsman deviates sufficient the normal values found at the man for that a normal endogenous production is improbable. A sample will not be regarded as container a prohibited substance if the sportsman proves that concentration of prohibited substance or its metabolites or its markers and/or any other relevant report/ratio in the sample of the sportsman is ascribable in a state physiological or pathological. In all the cases, and whatever the concentration, the laboratory will make a result of analysis abnormal if, while being based on a method of reliable analysis, it can show that the prohibited substance is of exogenic origin. If the laboratory result is not conclusive and
that no concentration described with paragraph above is not measured, the responsible organization antidopage will carry out a thorough investigation if there are serious indications, such as comparison with profiles stéroïdiens of reference, a possible use of one prohibited substance.
If the laboratory made a report/ratio T/E higher than four (4) for one (1) in the urine, a complementary investigation is obligatory in order to determine if it report/ratio is due in a physiological or pathological state, except if the laboratory pays an abnormal result of analysis based on a method of analysis reliable, showing that the prohibited substance is of exogenic origin.
B. APPLICATION OF THE GENERAL PRINCIPLES TO THE PARTICULAR CASE
60. With the particular case, the LNDD used the method of analysis GC/C/IRMS, analyzes by mass spectrometry of the isotopic report/ratio. The report/ratio of analysis of the LNDD revealed presence of exogenic testosterone of nature. Sample A presents a ratio T/E of 9,2, higher than the limit of 4 established by the AMA. The report/ratio of analysis of the LNDD relative to the sample B confirms the result of the analysis of sample A.
61. The LNDD having carried out analyses whose result is positive, it belongs to Mister Landaluce to show that a variation occurred compared to the SIL to reverse presumption according to which these analyses were carried out in the code of practice. Like recalled rightly the UCI during the Audience, Mr Landaluce could not to satisfy to indicate that ´something could potentially Be wrong¡, but must well to bring back the proof of a violation of the SIL.
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62. With this intention, Mr Landaluce challenges the validity of the analyses practised by LNDD, calling upon failures and irregularities made during the process of analysis. It makes the point that these irregularities made ´invalid¡ the results of the analysis carried out and indicated that ´these results will never be regarded as proof of the commission of a fault being able to be sanctioned¡.
63. For this purpose, Mr Landaluce stresses that it endorses the observations of Dr. of Boer and Mrs Luisa Lurueña Sánchez, pharmacist and specialist in analysis and control drugs and drugs.
64. Mrs Luisa Lurueña Sánchez observes that:
With given documentation we can say that this one is insufficient for to show the testosterone abuse or one of its precursors. Being given bad the, weak one and soft analytical documentation carried out brought to show the testosterone abuse or analogues in this sample, one consider that the innocence of the sportsman can be defended¡.
65. With the support of his claim, Mr Landaluce also poured with the debates of many reports/ratios worked out by Dr. de Boer who estimates that several irregularities would have been made by the LNDD and stresses that the SIL would not have been respected. In his report/ratio of March 12, 2006, Dr. de Boer observes in particular that:
´Laboratory AMA of Châtenay-Malabry did not make an error concerning chemical analysis, but it did not respect, under various aspects, the standards international for the analysis laboratories (ISL, International Standard for Laboratories) of the AMA. Thus, several nonconformities occurred, which, inter alia, led to the fact that the analysis of samples A¡ and ´B¡ was far to be complete¡.
66. Mr Landaluce calls upon six variations which would have been made by the laboratory by report/ratio to the standards of the SIL. Four of the pled failures milked with the appreciation scientist who was made by the laboratory, while the two others relate to procedure implemented by him. The Formation must examine the alleged ones irregularities called upon by Mr Landaluce in order to determine if the LNDD is conformed to the SIL.
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1. Being the failures pled having milked with the scientific appreciation by LNDD has) The argument according to which the file would not allow another analyst to evaluate the analyses carried out and to interpret of them the data (not 220.127.116.11 of SIL)
67. Under the 18.104.22.168 point of the SIL:
´The Laboratory must have documented procedures ensuring the behaviour co-ordinate of a file relating to each analyzed Sample. In the case of one Abnormal result of analysis, this file must include/understand the data justifying them conclusions presented (see Technical Document ´Documentation of the Laboratory¡). In general, the file must be held so that, in the absence of the analyst, another analyst qualified can evaluate the analyses carried out and in to interpret the data¡.
68. Dr. de Boer declared that it had not been able to evaluate various aspects of the analyses in reason of a lack of information and indicated that the reports/ratios relating to the samples With and B did not contain information making it possible to identify the steroids implied.
69. Dr. Saugy, for its part, indicated that information made it possible to identify them implied steroids. Indeed, in his declaration of July 14, 2006, Dr. Saugy has indicated that ´after attentive and reasonable reading of the packages of documentation, I estimate that all the aspects allowing to make an evaluation of the file are present in this one¡.
70. The Formation notes the existence of a dissension between the experts. While it Dr. Saugy estimates that the file made it possible to identify the implied steroids, Dr. of Boer considers as for him that the elements of which it laid out were insufficient. referees consider that the testimony of Dr. Saugy is plausible and that the demonstration made by Dr. de Boer does not arrive by invalidating its analysis.
71. Consequently, the Formation estimates that Mr Landaluce did not show the existence of a violation of the 22.214.171.124 point of the SIL and which it thus did not arrive to to reverse the presumption according to which the analysis of the LNDD had been carried out in code of practice, such that they result from the 126.96.36.199 point of the SIL.
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b) The argument according to which the analyzed substance would be a substance with threshold and that the uncertainty of 0,8 adopted by the LNDD would be insufficient (not 188.8.131.52 .3 SIL)
72. Under the point 184.108.40.206 .3 of the SIL:
´The Laboratory will be held to reach, both for the Substances without threshold substances with threshold, Minimal Limit of definite Performance Necessary for detection and identification of the substance or for the demonstration of its presence beyond the tolerated threshold (if necessary)¡.
73. Dr. de Boer estimates that the value of the uncertainty of 0,8 presented by the LNDD would be insufficient and should be 1,35. It states in addition that the fact that an index of uncertainty was given would show that the LNDD would have considered to be in presence of a substance with threshold insofar as uncertainty would be taken into account only for the substances with threshold. Dr. de Boer shows the existence from a variation compared to not 220.127.116.11 .3 of the SIL.
74. Prof de Ceaurriz and Dr. Saugy estimate as for them that this value, used by many laboratories, would be in conformity with the point 18.104.22.168 .3 of the SIL. In its declaration of July 14, 2006, Dr. Saugy considers that it is not a question of a measurement of a substance with threshold but of a method of confirmation based to quantitative measures, of which it goal is to show the qualitative origin of the introduced product.
75. The UCI makes the point that it is not a question of a substance with threshold insofar as the simple one exogenic presence of testosterone is enough. The isotopic analysis would aim only to to show the exogenic nature of the product, without being concerned with its quantity.
76. To the support of its allegation, the UCI refers at the 22.214.171.124 point of the SIL which indicates that:
´In the majority of the cases, the identification of a prohibited substance or metabolite (S) or marker (S) associated is enough so that a result is declared of analysis abnormal. Concept of quantitative uncertainty defined in the ISA/CEI 17025 is thus not applicable here. […]
In the case of the substances with threshold, it is necessary to consider at the same time uncertainty on identification and uncertainty on the demonstration of the presence of the substance with concentration higher than the threshold¡.
77. In his declaration of July 14, 2006, Dr. Saugy observes that moreover, it technical document TD2004 EAAS of the AMA would indicate that the result shows administration of an exogenic steroid when the value of the metabolite differs significantly of 3 ‰ or more endogenous value of reference used.
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Dr. Saugy declares that with the particular case, the analysis would have revealed, so much for the sample With that for the sample B, a difference significantly higher than 3 ‰, namely 4,85 ‰ for sample A and 4,76 ‰ for the sample B, between the endogenous reference and the metabolite found in testosterone.
78. The Formation notes that there is not on the matter any precise method and that them experts present at the time of the Audience did not agree on a value of uncertainty with to take into account for the isotopic analysis.
79. The Formation estimates that Mr Landaluce did not reverse the presumption according to which the LNDD conformed to the code of practice. Indeed, experts quoted by Mr Landaluce, if they showed their dissension with the method of calculation adopted by the LNDD, therefore did not reverse the presumption according to which analyses conformed to the point 126.96.36.199 .3 of the SIL. The Formation thus estimates that Mr Landaluce did not report the proof of a variation compared to the point 188.8.131.52 .3 SIL.
c) the argument according to which requested information would not have been given with the cyclist nor with his expert (not 184.108.40.206 of the SIL and technical documents TD2004EAAS and TD2003IDCR)
80. Mr Landaluce makes the point that it would not have received the information requested with several recoveries, so much by him than by Dr. de Boer, which would have made it possible to proceed to the evaluation of the analysis carried out by the LNDD.
81. The UCI indicated that a mail of the RFEC of November 22, 2005 would show that Mr Landaluce received the entirety of the documents relating to the analysis of samples A and B. the UCI also made the point that a mail would have been sent directly by the LNDD with the RFEC containing necessary information. This mail would have been received by the RFEC which would have plugged this correspondence, although decision of the CNCDD indicates that no response of the LNDD would have been received.
82. In addition, Dr. de Boer indicates to have received on August 29, 2006 a document containing the evaluation of times of retention concerning the identification of the implied steroids in the analysis of the sample B. It observes however that no information him would have been transmitted being the data of spectral mass and identification of steroids implied in the analysis of sample A. Dr. de Boer estimates in
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consequence which there would be a variation compared to the 220.127.116.11 point of the SIL and with technical documents TD2004EAAS and TD2003IDCR.
83. The Formation notes once again the existence of a divergence of opinion between experts present at the time of the Audience. Dr. Saugy states indeed that information necessary to the identification of these products would have been provided by the LNDD. This analyze which emanates from an expert enjoying a considerable experiment in it field is completely plausible. Consequently, the Formation considers that Mister Landaluce did not reverse the presumption according to which the LNDD would have conformed at the 18.104.22.168 point of the SIL and the document techniques TD2004EAAS and TD2003IDCR.
D) The arguments according to which the values do not diffèreraient in manner significant of three units delta or more and which would have had to be analyzed three aliquot (technical document TD2004EAAS)
84. Under technical document TD2004EAAS:
The results will be reported as being coherent with the administration of one steroid, when the value 13C/12C measured for (S) the metabolite (S) differs from significant manner, namely of at least 3 units delta, the steroid of reference urinary selected. In certain Samples, the measurement of the value 13C/12C du/des steroid (S) of reference selected (S) can not be possible because of concentration (S) low (S). The results of such analyses will be reported like ´nonconclusive¡, except if the measured report/ratio of (of) the metabolite (S) is lower than - 28 ‰ on the basis of nonderived steroid¡.
85. According to Dr. de Boer, this technical document would impose that the values differ from significant manner of three units delta or more. In addition, being a value threshold, the SIL would impose the analysis of three aliquot or, on the assumption that, as with particular, only one case aliquot would be available, triple analyzes this one.
86. Prof de Ceaurriz and Dr. Saugy estimate for their part that a measurement in triplicat of the sample is not necessary and only one such requirement, which would not exist with remaining, would be on the contrary problematic insofar as the volume of urine necessary would not be available. They indicate in addition, that it would not be about one measure with threshold requiring the analysis of several samples.
87. The Formation notes, here also, the existence of a divergence of appreciation between experts and considers that Mr Landaluce did not reverse the presumption according to which the LNDD conformed to technical document TD2004EAAS.
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2. Being the failures pled having milked with the procedure followed by the LNDD has) The argument according to which the deadlines would not have been respected (points 22.214.171.124 .2.1 and 126.96.36.199 of the SIL)
88. Dr. de Boer makes the point that the LNDD would not have respected the times envisaged by points 188.8.131.52 .2.1 and 184.108.40.206 of the SIL.
89. Under the point 220.127.116.11 .2.1 of the SIL:
´Whenever is asked for an analysis of confirmation on the Sample ´B¡ of the presence of a prohibited Substance, Metabolite (S) associated (S) or of Marker (S) indicating the Use of a prohibited Substance or a prohibited Method, the analysis of the Sample ´B¡ must intervene as soon as possible and be concluded in the thirty (30) days following the notification of the abnormal Result of analysis for Sample ´A¡¡.
90. The 18.104.22.168 point of the SIL requires that:
´The results concerning Sample ´A¡ will have to be returned in the ten (10) working days as from the reception of the Sample. […] The time could be modified by mutual agreement between the Laboratory and the Controlling authority¡.
91. Dr. de Boer stresses that the results of sample A, which should have been returned in the 10 working days from June 14, 2005, date of the reception of the aforesaid sample by the LNDD, would not have been it which 23 days later, that is to say on July 17, 2005. Dr. de Boer also states that the analysis of the sample B would not have been realized within thirty day assigned following the notification of the result of analysis abnormal of sample A. Indeed, the notification of the result of analysis A took place it July 28, 2005. The LNDD proposed the dated September 11, 2005 one for the opening of the sample B, date which, at the request of Mr Landaluce, was deferred to September 21, 2005, then at October 19, 2005.
92. The UCI recognized that the deadlines had not been respected, calling upon ´the overload of laboratories, the complexity of the analysis and the period of the holidays¡.
93. During the Audience, the whole of the experts present declared that the deadlines had not had any effect on the results of the analyses.
94. Pursuant to the rules relating to the modes of establishment of the facts and presumptions, the Formation notes that Mr Landaluce managed to reverse the presumption according to which the LNDD would have conformed to the points 22.214.171.124 .2.1 and 126.96.36.199 of the SIL in showing the existence of a variation. Such a demonstration has however only one effect
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purely theoretical, the whole of the experts present at the Audience having observed that the noted variation could not be at the origin of the positive result of the analysis of the samples With and B. the Formation consequently concludes that the abnormal result from Mister Landaluce does not result from the variation compared to the points 188.8.131.52 .2.1 and 184.108.40.206 of the SIL.
b) The argument according to which the analyst who carried out the analysis of the sample B was also implied in the analysis of sample A (not 220.127.116.11 .2.2 of SIL)
95. Under the point 18.104.22.168 .2.2 of the SIL:
´The confirmation on the Sample ´B¡ must be carried out in the same Laboratory that that carried out on Sample ´A¡, by a different analyst. (Them) operators who carried out analysis ´A¡ can however carry out the instrumental adjustments, with controls of conformity and the checking of the results¡.
96. Mr Landaluce bases himself on the report/ratio of Dr. de Boer to make the point that the analyst who carried out the analysis of the sample B was also implied in analysis of sample A, in violation of the point 22.214.171.124 .2.2 of the SIL.
97. Dr. de Boer indicated that this standard prohibited that the same analyst touches/handles at the same time the sample A and the sample B (´touching the sample must Be separate¡).
98. With the particular case, the report/ratio of June 11, 2005 reveals that the analyst who proceeded to the analysis of the sample B has, within the framework of analysis A, carried out the following tasks:
package with 4°C, taken again by acétonitrile and put in vial, evaporation, taken again by hexane and injection CG/MS.
99. The President of the Formation asked Dr. Saugy if the point 126.96.36.199 .2.2 of the SIL prohibited that the same analyst touches/handles at the same time the samples A and B. Dr. Saugy agreed in the following terms: I agree that that excludes all handling of the sample¡.
100. The President of the Formation then questioned Prof de Ceaurriz in order to know if it even analyst had touched/handled samples A and B. Prof de Ceaurriz has answered:
´Yes. It is clearly indicated. If you want it is indicated in our chain of [safety]. There is no ambiguity on top. [The analyst] touched the samples in A and the totality of the samples in B. There touched is no ambiguity làdessus ».
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101. The President of the Formation then asked whether that were constitutive of a variation by report/ratio with the SIL, it what Prof de Ceaurriz answered:
Completely. It is even openly in the documents of the laboratory. […] by report/ratio to the standard, indeed, it had a contact with the sample¡.
102. Prof de Ceaurriz indicated that there had been 10% of ´overlapping for reasons of workload between two people¡.
103. The whole of the experts present at the Audience thus recognized that the analyst who is intervened within the framework of the two analyses had not restricted itself ´to proceed to instrumental adjustments, with controls of conformity and the checking of the results¡ and that a variation was noted compared to the point 188.8.131.52 .2.2 of the SIL.
104. Pursuant to the rules relating to the modes of establishment of the facts and presumptions, the Formation notes that Mr Landaluce manages once again to reverse presumption according to which the LNDD would have conformed to the point 184.108.40.206 .2.2 of the SIL, in showing the existence of this variation. The consequences are this decisive time.
105. It was not shown that that was not at the origin of the abnormal result, nor moreover that that was it. It fell however on the UCI, under article 18 of the RCAD, of to show that the variation compared to the SIL was not at the origin of the abnormal analysis, it who was not done. The UCI was satisfied to indicate in its report of call that:
´And even if variation there would have been - quod not - this one could not lead to the result of analysis abnormal, except if it is established that [the analyst] had made an error having caused the abnormal result of analysis, quod not¡.
106. In the same way at the time of the Audience, the UCI simply observed:
´As for the variations with the standard which were announced, I believe capacity to conclude that if there were of it, they are not significant and are certainly not at the origin of result¡.
107. However, it rested well with the UCI to show that the non-observance of the point 220.127.116.11 .2.2 of SIL was not at the origin of the abnormal result. Insofar as the UCI is not arrived to this making, the Formation cannot that to show the setting out of cause of Mr Landaluce.
108. It is true that a sentence having had to come to a conclusion about this question of the double intervention of the same analyst in the framework of the examination of samples A and B, in the business Wang Lu Na and others against FINA (HEAP 98/208, sentence of December 22 1998, Wang Lu Na and others/FINA), the suspension of four swimmers confirmed.
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The contribution of this sentence is however very marginal for the needs for present business, and this for three reasons. Firstly, the applicable regulation is different. Then, the sentence indicates expressly (paragraph 5.22) that the played part by the analysts concerned was not clearly established: the referees declared that they were ´unpersuaded¡ by the argument according to which analysts ´were involved in anything other then the tests of the controls¡ in opposition to ´A samples themselves¡. However, with the particular case, like that was shown previously, there is identity of the analysts having handled the samples A and B. Lastly, the representatives of swimmers, by their signatures, had recognized that the procedure provided for by the regulation FINA had been respected by the laboratory. In the species, the UCI did not stick to bring back the proof of what Mr Landaluce had approved the followed procedure.
109. Although conscious of the requirements of costs and organization with which they are confronted laboratories, the Formation must take care of the compliance with fundamental rules, counts held of the implications that its decision could have on the reputation, and therefore, career of the athlete, if a disciplinary action were marked in its opposition.
110. The Formation is not without knowing only the standard which imposes that a different analyst carry out the analysis of the sample B was discussed sharp between the AMA and persons in charge for laboratories. The latter make the point that this rule complicates unreasonably the operation of the laboratories, without in so far as it is shown that it provides an additional protection of the controlled athletes. It would be undoubtedly unrealistic to require that the same analyst carry out the integrality of an analysis beginning with the end. Indeed, the analyses can, when they relate to some substances, to last several days during which processes are automatically implemented. The analysts carry out many tasks, passing from the one with the other, so that several analyses can be carried out simultaneously. If it is possible to cash require of a large laboratory a manpower from 50 to 100 people, that it work is organized there in order to exclude from the analysis of the sample B the analyst who the
analysis of sample A would have carried out - although that constitutes a factor of considerable complication whose laboratories would wish to be exempted - such requirement would constitute a major factor of complication for a laboratory of less cut.
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111. It is almost impossible to prove a negative fact, that is to say in fact that the intervention of the same analyst within the framework of the two analyses could not affect it result. Certain persons in charge for laboratory estimate consequently that this rule would be too rigid; actually, a sufficient protection of the athletes is already ensured in measurement where the system of identification of the samples by codes makes it possible to be ensured the EC what them identity is not known analysts.
112. This reasoning, although rational and plausible, fails in front of the HEAP for a reason very simple: the referees do not create the rules, they apply them. That is all the more truth which the authors of the payment antidopage preserved the rule which imposes that one another analyst is in charge of the analysis of the sample B, while at the same time they had heard the observations of the persons in charge for laboratories. The rules can certainly be modified or refined, but such is not the role of the HEAP.
113. The applicable rule clear and is deprived of any flexibility. The referees of the HEAP do not have not for mission of modifying the rules nor vocation to adapt a capacity discrétionnaire when no text authorizes them to do it.
114. One will note while passing whom if cases where the HEAP shows the setting out of cause of one athlete on the assumption that a laboratory would not have respected the protocols are little frequent, that is explained by the fact why the disciplinary authorities know severity of the referees in this respect and give up continuing the athletes - even in presence of very suspect cases - when the analyses were not carried out in the respect code of practice.
115. The Formation makes a point of underlining the good faith of the personnel of the LNDD which is not in cause. The referees do not have any reason to doubt the explanation provided by Prof Of Ceaurriz according to which overlapping¡ of the operations carried out by the analysts was due to an extra work within the LNDD. It in addition pointed out that malevolent and accessory people would have covered their intrigues while writing reports/ratios relating to the analyses so that no possible failure can their reproached being. With the case present, it is all the opposite; the athlete obtains profit of cause on the basis of information the laboratory had and who were honestly communicated.
116. It is still advisable to specify that paragraphs 95 to 115 of this decision were adoptees in the majority of the arbitration Formation, according to the R59 article of the Code, and that
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the minority opinion of the dissenting referee was duly considered and discussed at the time of deliberations.
117. In any event, the present sentence does not constitute a declaration of innocence of Mr Landaluce taking into consideration rule antidopage. Mr Landaluce profits simply of a rule formal and yet fundamental, tending to guarantee the rights people subjected to controls antidopage.
VI. BEING the EXPENSES
118. With regard to the disciplinary litigations in international matter judged in call, such that that which occupies us, the R65 article of the Code envisages what follows:
´Subject to the articles R65.2 and R65.4, the procedure is free. Expenses and fees of the referees, calculated according to the scale of the HEAP, as well as expenses of the HEAP are with the load of the HEAP. At the time of the deposit of the declaration of call, calling it pours a right of Clerc's Office minimum of CHF 500. -, or else the HEAP does not proceed and the call is famous withdrawn. This emolument remains sure with the HEAP.
The expenses of the parts, witnesses, experts and interpreters are advanced by the parts. Formation allots the load in the sentence of it by taking account of the result of procedure, of the behavior and the financial resources of the parts. If the whole of the circumstances justifies it, the President of the arbitration Room of call can, of office or on request of the President of the Formation, to apply them articles R64.4 and R64.5, 1st sentence, with an arbitration procedure of appeal¡. 119. The R64.4 articles and R64.5 of the Code lay down what follows:
´At the end of the procedure, the Clerk's office stops the final amount of the expenses of the arbitration which includes/understands the right of Clerk's office of the HEAP, administrative expenses of HEAPS calculated according to the scale of the HEAP, the expenses and fees of the calculated referees according to the scale of the HEAP, a participation in the outlays of the HEAP and expenses of witnesses, experts and interpreters. The final calculation of the expenses of the arbitration can is to appear in the sentence, is to be communicated to the parts separately¡. ´The award determines which part supports the expenses of the arbitration or in which proportion the parts share the load of it. The sentence condemns in principle the part which succumbs to a contribution at the expenses of lawyer of the other part, like with the expenses incurred by the latter for the needs for procedure, in particular expenses of witnesses and interpreter. At the time of the judgment at the expenses of arbitration and
lawyer, the Formation takes account of the result of procedure, as well as behavior and resources of the parts¡.
120. In the species, the call of the UCI is rejected and the decision whose call must be confirmed. This arbitration being free for the parts, since it relates to a litigation of nature
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 31
disciplinary in international matter, it is a question of determining if and up to what point Mr Landaluce and the RFEC is entitled to the granting of an allowance for their expenses of lawyer and for the other expenses relating to the present arbitration. After having duly considered the whole of the circumstances of the business, in particular the great number futile arguments called upon by the defendants, the Formation considers that it is equitable to leave with the load of each part the expenses incurred within the framework of this procedure.
VII. BEING the CONFIDENTIALITY
121. Under article R59 subparagraph 6 of the Code of the arbitration as regards sport:
´The sentence, a summary and/or a press release giving a report on the exit of procedure is published by the HEAP, except if the parts are appropriate that the arbitration must remain confidential¡.
122. Mr Landaluce indicated that it wished that the procedure remain confidential and that no press release giving a report on the procedure is published by HEAP.
123. The UCI indicated that the procedure initiated against Mr Landaluce was of now and already known of the public, this one having been the subject of a press release by HEAP.
124. At the time of the Audience, the UCI, Mr Landaluce and the RFEC did not arrive to one agreement concerning the confidential character or not of this procedure. In these circumstances, the HEAP will be able, if it considers it convenient, to publish a summary and/or one press release making state of the exit of this procedure.
* * * * * * * * * *
HEAP 2006/A/1119 UCI C. Landaluce & RFEC - page 32
BY THESE REASONS
The Arbitration court of the Sport pronounces:
1. The Arbitration court of the Sport is qualified to know call interjeté by the International Union Cyclist.
2. The call formed on June 26, 2006 by the International Union Cyclist against the decision returned on May 5, 2006 by the Committee Nacional de Competición Disciplined Deportiva there of Real Federación Española de Ciclismo is rejected.
3. The sentence is delivered without expenses, except for the emolument of Clerc's Office of CHF 500 poured at the beginning of procedure by the International Union Cyclist, which remains sure with HEAP.
4. Each part keeps its lawyer expenses and other expenses rising from this arbitration.
Lausanne, on December 19, 2006
The ARBITRATION COURT OF the SPORT
The President of the Formation
Jose Juan Pintó
September 07: Hearing Award
October 07: Hue's Hearing Appraisal
November 07: Major document Release
January 08: Larry's Curb Your Anticipation
Wednesday, December 20, 2006
The continuation of this post is the text of the CAS decision on Landaluce, extracted from the PDF, and then machine translated into English.