Mayo's CAS decision, Machine translated
Text extracted from the French, and sent through google and pasted back together. 1. Facts and procedure 1. The Union Cycliste Internationale (hereinafter: UCI) is the association of federations National cycling. It has as its goal the management, development, regulation, control and discipline of cycling in all its forms at the international level (art. 2, let. UCI has Statutes). 2. Iban Mayo Diez, born on August 19, 1977, is a rider of the elite category holds a licence issued by the Royal Spanish Federation of Ciclismo. 3. The Real Spanish Federation of Ciclismo (hereinafter: RFEC) is the national federation of Spanish cycling, a member of the UCI. 4. Iban Mayo Diez participated in the cycling road "Tour de France" which was place from July 7 to July 29, 2007 in France, as a member of the team Saunier Duval - Prodir. This race was scheduled UCI international. 5. On 24 July 2007, Iban Mayo Diez was subjected to a doping control in competition. The form of control indicates that it has not made an observation about the procedure of sampling. In addition, under the heading "drugs" no mention was recorded. 6. On 26 July 2007, the anti-doping laboratory of Châtenay-Malabry (hereinafter: LNDD) which is accredited by the World Anti-Doping Agency (hereinafter: WADA), received urine samples that were to be analyzed. The report analyzing the sample A, indicated that the shipping container containing the samples were not sealed his arrival at the laboratory. 7. On 28 July 2007, the LNDD has informed the UCI that for the conformation analysis of the sample A, which had revealed the presence of EPO, the volume of urine was "Insufficient to confirm EPO, which could create" uncertainty on the identification of the sample. " 8. This lack of urine came from the fact that several anomalies had been detected during analysis of the sample A and that the various investigations relating thereto - having finally reversed these abnormalities - had necessitated the use of a large part of this sample. 9. The LNDD no longer able to proceed so as usual the confirmation process of "screening", using the remainder of the sample A, is a second aliquot of the sample. 10 On 29 July 2007, the UCI asked to make the confirmation of the sample A authorizing the LNDD to use the rétentat of "screening", is the same aliquot of the sample than that used for screening ". 11. It follows the final analysis report, prepared July 30, 2007 by the LNDD (hereinafter: A analysis) that the A sample contained recombinant EPO, a substance included in the 2007 Prohibited List of the World Anti-Doping Code (hereinafter: CMA). 12. According to the dossier provided by the laboratory, they used a method of analysis to demonstrate directly that the substance is of exogenous origin, namely method called "Focus Isoelectric and double immunoblotting (IEF and double blotting). 13. A second opinion issued by the Lausanne laboratory on the results of analysis of the sample stated that the analytical documentation highlighted "clearly, both in the screening that in the confirmation, the presence of recombinant EPO." The Lausanne laboratory indicated that the quality of performance was excellent and that they therefore showed "clearly and without ambiguity that urine A 2257932 contains recombinant EPO." 14. On 30 July 2007, the UCI has forwarded the file to the LNDD RFEC and informed of the positive outcome, with a copy to WADA, the National Anti-Doping Committee and the team Saunier Duval - Prodir. 15. Iban Mayo Diez was immediately suspended by his team, under Regulation of ethics adopted by it, and deprived of his salary. In addition, the guarantee account was recorded in anticipation of this award. 16. On August 1, 2007, Iban Mayo Diez has sought an against-analysis of the sample B. 17. On 2 August 2007, he sought sending the dossier analysis of the sample A son home and asked, because of the annual closure of one of Châtenay-Malabry that the analysis of the B sample is carried out at the laboratory of Ghent (Belgium). 18. The same day, the UCI informed the RFEC that the laboratory of Ghent, also accredited by WADA was willing to analyze the sample B. 19. On 7 August 2007, the laboratory of Ghent has set the period during which would analysis, from 20 to 22 August 2007. This information was transmitted to Iban Mayo Diez, it has given its consent. 20. During the cons-analysis, the person was represented by its expert, Mr. Douwe de Boer. 21. On 23 August 2007, the laboratory of Ghent issued a certificate of analysis of sample B (hereinafter: analysis B1), in which reference was made to the opinion of a second laboratory: "The opinion of the second laboratory for the evaluation of the results indicates that the results of the analysis for the rhEPO are inconclusive. " This is a second laboratory namely the 'Australian Sports Drug Testing Laboratory in Sydney. 22. The report issued by the laboratory, whose findings are included in the certificate analysis issued by the laboratory of Ghent, was essentially that the analytical results B1 was not conclusive, especially because the stability of the sample had not been established. The laboratory in Sydney recommended to repeat the analysis of sample B, if it still contains enough urine for a further analysis: " 1. The B sample analysis fails acceptance criteria for rhEPO as set down in the WADA Technical Document TD2007EPO. The stability of the sample is not established. 2. The distribution of EPO isoforms in the B sample analysis does not follow a distribution consistent with endogenous EPO, on face value. 3. For these reasons, we suggest that the B sample analysis be repeated, if sufficient sample remains. 4. As it is suggested in accompanying documentation that the B sample may be exhausted, we suggest that adverse findings are not made on any sample unless it is clear that sufficient urine exists in the B to support repeat sample analysis, where necessary ". 23. On 14 September 2007, the UCI has informed the RFEC and told him that the pursuit the analysis of the B sample would be the LNDD. The UCI has also informed qu'Iban Mayo Diez could be present or represented during the analysis. 24. On 18 September 2007 Iban Mayo Diez said the RFEC its opposition to the further analysis to the LNDD, whereas that of the B sample laboratory Ghent was final and had not confirmed the result of the analysis of the sample A. In Consequently, control as a whole, should be regarded as negative. 25. He also requested documentation for the analysis of the B sample carried out in the laboratory of Ghent, and any documentation from any other laboratory with concluded the result "inconclusive" of the analysis carried out in Ghent. Citing the rules of International Standard for Laboratories issued by WADA and specifying the conditions in which laboratories can be accredited and the conditions under which must place the analysis of samples taken (hereinafter: SIL), he argued that cellesci had not been properly applied. 26. On 21 September 2007, the RFEC has informed the UCI that the rider refuses the continuation the analysis of the B sample until he received the complete documentation of the analysis laboratory at Ghent and explanations requested in its letter of 18 September 2007. 27. On October 5, 2007, the Secretary General of the RFEC has forwarded the case to Committee National competition and sport of the RFEC (hereinafter: the National Committee the RFEC). 28. By decision of 19 October 2007, the National Committee of the RFEC has considered the negative result of the analysis of the sample taken 2257932-A July 24, 2007 on Iban Mayo Diez and decided to terminate the proceedings and to file the disciplinary record of this rider. The decision mentioned one month to file an appeal to the TAS. 29. On 26 October 2007, the UCI has requested the complete dossier and the RFEC, the same day, LNDD has proposed several dates for carrying out further analysis of sample B. 30. The same day, the UCI has sent the RFEC these proposed dates for its sends Iban Mayo Diez. 31. On 30 October 2007, UCI received a fax of Iban Mayo Diez expressing his refusal the categorical further analysis of the B sample the LNDD and threatening to file a complaint before the competent courts against the UCI whether it was carrying LNDD without his consent. 32. On 12 November 2007, the UCI has sent a new Iban Mayo Diez proposals dates for the further analysis LNDD so that they may attend or be be represented. The UCI said in his letter that failure to reply no later than 16 November 2007, it would be carried out an analysis of the sample in his absence. 33. On 13 November 2007, the UCI has again received a fax of the rider, whereby the latter firmly opposed to the continued analysis LNDD, whereas analysis the B sample was over and that she had been registered as such in the report analysis issued by the laboratory of Ghent and verified by the laboratory in Sydney. 34. On 16 November 2007, the UCI informed him the choice of 21 to 23 November 2007 to carry out further analysis and informed the LNDD a member of laboratory personnel in Ghent will be present during the analysis. 35. On 20 November 2007, Iban Mayo Diez said he never received the dates analysis and the LNDD has again objected to the realization of this analysis, while laying a number of questions to the UCI. 36. On 22 November 2007, the UCI has planned another date for further analysis the B sample it has notified all parties concerned. 37. On 23 November 2007, the UCI responded to questions raised by the rider's letter dated 20 November 2007. 38. The November 26 and December 3, 2007, he again expressed its opposition and Among requested that any sample belonging to him to be returned without delay, coupled his request threats of lawsuits against UCI. 39. From 4 to 6 December 2007, the LNDD has carried out an analysis of the sample B of Iban Mayo Diez (hereinafter: analysis B2) in the presence of Dr. Van Thuyne, laboratory of Ghent. 40. On December 6, 2007, the result of this analysis noted the presence of EPO recombinant in the urine sample of Iban Mayo Diez. Indeed, according to the report of LNDD, the result of analysis of sample B 2257932, by the method " Focus Isoelectric and double immunoblotting, "confirmed the result of abnormal analysis of the sample A 2257932. 41. A second opinion issued by the Lausanne laboratory indicated that the analytical documentation showed "clearly the presence of recombinant EPO," and that results showed "clearly and without ambiguity that urine contains B 2257932 recombinant EPO. " 42. On 10 December 2007, Iban Mayo Diez objected that the UCI uses its data personal relationship with the removal of his urine samples during the Tour de France 2007. 43. On 17 December 2007, the UCI has asked the RFEC to reconsider its decision of 19 October 2007, in which it had closed the case before the B analysis has been completed. The UCI also requested the RFEC to take into account the outcome of the analysis finalization of the B sample obtained by the LNDD. She requested and to implement the disciplinary proceedings under Article 224 of the Rules of the UCI antidoping (hereinafter: RAD) against Iban Mayo Diez. A copy of the letter from the UCI was addressed to that last. 44. On 20 December 2007, Iban Mayo Diez demanded by the UCI that stick to the decision made on October 19, 2007 by the RFEC, considering that the second analysis of sample B was not provided by the regulation and it had not authorized. It threatened further file a complaint against members of the Disciplinary Committee of the RFEC if it changed its position. 45. On 27 December 2007, the National Committee of the RFEC issued a new decision that the cons-analysis conducted in Ghent did not confirm the analysis of the sample A made the LNDD and that, therefore, Iban Mayo Diez, should be acquitted. This decision mentioned the possibility of the challenge before the CAS. 46. The RFEC has conveyed this decision the following day at UCI. 1.2. The proceedings before the CAS 47. On 19 December 2007, the UCI has filed a preliminary statement of appeal "as conservatoire to the CAS against the decision on October 19, 2007 by the National Committee the RFEC (TAS 2007/A/1444). 48. On 18 January 2008, the CAS, following the written objections of Iban Mayo and Diez of the RFEC concerning the delay in their view, this appeal on December 19, 2007 by UCI has informed the parties that the Deputy Chairman of the Chamber of Arbitration Appeal CAS had ruled that the appeal was not clear late, the meaning of Article R49, Code of Arbitration for Sport (CAS Code). 49. On 28 January 2008, the UCI has filed a second statement of appeal to the CAS against the ruling on December 27, 2007 by the National Committee of the RFEC (TAS 2008/A/1465). 50. On February 4, 2008, the appellant filed a single appeal brief to the CAS on 2007/A/1444 and procedures TAS TAS 2008/A/1465 on Iban Mayo Diez. 51. On 18 April 2008, the CAS, following a complaint filed on February 7, 2008 by Iban Mayo Diez, ordered the junction of procedures and TAS TAS 2007/A/1444 and 2008/A/1465 set a deadline to May 9, 2008 to the respondent to file his brief response. 52. On 6 May 2008, the RFEC has filed a brief response. 53. On May 9, 2008, Iban Mayo Diez has in turn filed a brief response. 54. The parties have signed, through their counsel, the procedural order issued by the CAS on May 19, 2008. 55. A hearing was held at the CAS in Lausanne on May 21, 2008. The UCI there was represented by Philippe Verbiest and Mrs. Amina Clerc, Iban Mayo Diez by José Rodríguez García and the RFEC by Jose Antonio del Valle Herán. 56. The training has served in the composition indicated above and the parties have made no comment on the composition or the conduct of the hearing. 57. During the discussions, Training proceeded to hearing the parties and, as expert, Dr. Jacques de Ceaurriz, director of anti-doping laboratory of Paris, and Mr. Douwe de Boer, representative of Iban Mayo Diez B1 during the analysis by the laboratory Ghent. 2. Arguments of the parties 2.1 Arguments and conclusions of the UCI 58. Turning first to the admissibility of his / her call / s, the UCI argued that its Statements of Appeal on 19 December 2007 and January 28, 2008 would have been made in time useful. The same filing its appeal brief, 4 February 2008. 59. The appellant then recalls that the presence of a prohibited substance, its metabolites or markers in a levy body of a rider is a violation doping within the meaning of Article 15.1 RAD, on the one hand, and that the substance EPO " is a prohibited substance on the prohibited list in the class "S2.1" Hormones and related substances - Erythropoietin, on the other. It also that the two tests carried out by the LNDD on sample A 2257932 and the sample B 2257932 taken from Iban Mayo Diez, revealed the presence of recombinant EPO and these two results were confirmed by a second opinion issued by the laboratory Lausanne. The appellant therefore considers qu'Iban Mayo Diez has committed an offence anti-doping rules of the RAD. 60. The UCI invokes Article 204 RAD, that control as a whole will considered negative if the analysis of the B sample is negative, and concludes that this rule does not apply if the initial analysis of the B sample proved inconclusive. She argued that as the result of analysis B1 clearly shows the presence of EPO recombinant but there are however some uncertainty about the stability of the sample. Thus, according to the appellant, "the analysis revealed B1 does not, therefore, the absence of EPO recombinant, but his presence but with a lack of certainty. It was necessary therefore audited by the analysis of another aliquot, as recommended by the laboratory in Sydney. ". The UCI therefore supports the analysis that B1 was not completed and that and was to continue with an analysis B2 to have a successful outcome for the analysis of sample B. 61. The appellant also based his argument on Articles 204 RAD, and 5.2.4.3.2.3 and 5.2.4.3.2.7 SIL. She contends that "it would be inconsistent with the mission combat doping will not use another aliquot allowing, where appropriate, when an audit conclusive analysis of a first aliquot was not conclusively. ". In this context, the appellant adds that section 5.2.4.3.2.6 combined with the SIL LNDD document entitled "Management of opinions against" allowed to repeat the analysis confirmation and proceed to the analysis B2. 62. The UCI also contends that the samples taken under RAD become its property during the sampling, it has the right to carry out the analysis B, even if the rider renounces that the latter's agreement is not required for use of the sample for testing of substances or prohibited methods and, finally, that there is no limit on the number of doping tests could be carried out on a sample, but his exhaustion and the limitation period. 63. The appellant removes the risk of uncertainty about the identification of the sample in this meaning that the analysis B2, performed so contradictory (the rider has been invited to several occasions to attend), confirmed the analysis of the sample A. As for the analysis B1, any uncertainty would have been waived by the analysis B2. 64. As an alternative, "and if the CAS came to believe that analyses A, B-1 and B-2 does not constitute proof of the regular presence of recombinant EPO in the sample charged with Mr. Iban Mayo Diez July 24, 2007, "the UCI relies on the use or attempted use of a prohibited substance or method, the meaning of Article 15.2 RAD. She About this refers to the Commentary on Article 2.2 of the revised version (in November 2007) CMA: "For example, use may be based on reliable analytical data from analysis of a sample A (without the analysis of the B sample confirms) or analysis of a sample B only when the anti-doping organization provides an explanation satisfactory to the absence of confirmation by another sample. " 65. The appellant contends the reform decisions of the National Committee of the RFEC dated 19 October and 27 December 2007, the conviction of Iban Mayo Diez to a suspension 2 years, the pronunciation of his disqualification of the cycling race Tour de France 2007, its condemnation payment to the UCI in the amount of CHF 1,000 .- as management fees results, and the conviction of Iban Mayo Diez and severally to the RFEC reimbursement to the UCI fee of CHF 500 .- and all other expenses, including a contribution to its costs. 2.2 Arguments and conclusions of Iban Mayo Diez 66. Iban Mayo Diez contests before the admissibility of the appeal claiming that the UCI had the whole issue since October 23, 2007. The statement of appeal filed December 19, 2007 does not, therefore, the one-month deadline laid down in Article 285 RAD. 67. It also support the decision of the RFEC of 27 December 2007 would not be a Decision of the National Federation adopted pursuant to section 224 RAD, as it does a result of a "management process results," within the meaning of this provision. The only decision in this matter by the RFEC is one of 19 October 2007. The second decision date would be and a reconsideration of the first, which would give therefore the possibility to file a second appeal to CAS. The only decision adopted by the RFEC accordance with Article 224 RAD would be that of 19 October 2007. 68. The respondent then invokes the International Standards control (hereinafter SIC) defined by WADA and complementary to the SIL, according to which samples during a doping control must be sealed and transported performed safely. He said samples taken on July 24, 2007 were unsealed upon their arrival in LNDD. There would therefore have doubts about the integrity, validity and the identity of samples analysed, which would be sufficient cause to cancel the analysis procedure. In Furthermore, the fact that the LNDD had not informed the UCI that irregularity would violate the Standard International Laboratories (hereinafter: SIL), which would also be a cause Cancellation. 69. The analysis of sample A was also flawed by the use for the conformation analysis, rétentat of "screening" instead of using a second aliquot of this sample, in accordance with Article 5.2.4.3.1.1 SIL. 70. According Iban Mayo Diez, the result of the analysis of the B sample must be considered as negative in accordance with the provisions of SIL. He recalled that an analysis doping control ends with the preparation and shipment by the laboratory, a certificate or analysis report. However, the report of laboratory confirmed Ghent, as regards evaluating the results of the analysis B1, that it was inconclusive. Therefore, invoking the Articles 204 RAD, 5.2.4.3.2.3 and 5.2.4.3.2.7 SIL, the Respondent contends that the analysis result B1 laboratory Ghent does not confirm that the analysis of the sample A and that it must therefore be considered as a whole as negative. 71. The repetition of the analysis of the B sample to the laboratory of Châtenay-Malabry not is not included in the anti-doping rule and should be considered void because it constitutes a violation of the principle of legality. 72. According to the respondent, it would not produce any technical problem, within the meaning of Article 5.2.4.3.2.6 SIL, for carrying out the analysis B1 by the laboratory of Ghent. Of Moreover, there is no evidence that the policy of the latter would conduct a second analysis of the sample B. 73. The opinion issued by the laboratory in Sydney is merely a suggestion and not an opinion or interpretation of data obtained by the laboratory of Ghent, within the meaning of Article 5.2.6.9 SIL. 74. The laboratory of Ghent had issued its report on August 23, 2007 and the UCI have requested analysis B2 October 26, 2007, that request was submitted after the deadline of five days under Article 194 RAD. 75. Citing the award in the case CAS 2001/A/343 (UCI v. H.), Iban Mayo Diez believes that if "Training considers that regulations and Standards international laboratories have been met and that the repetition of the analysis the B sample is valid, the UCI and the RFEC can not take into account the outcome more favourable for the cyclist. ". 76. The respondent is opposed to the retroactive application of the new CMA in its version revised in November 2007. 77. Finally, it accuses the UCI to have violated several of his fundamental rights, anticipated particularly in the jurisprudence of the European Court of Human Rights or Convention of the Council of Europe on Human Rights and Biomedicine, with its samples corporal despite its willingness to recover them. 78. Iban Mayo Diez dismissed calls from the UCI and the confirmation of decisions National Council of the RFEC. 2.3 Arguments and conclusions of the RFEC 79. The argument of the RFEC is, broadly speaking, that of Iban Mayo Diez and focused to demonstrate the merits of two decisions taken by his National Committee. 80. It also concludes the rejection of calls for the UCI and the confirmation of decisions above, and the condemnation of the UCI at the expense of the procedure. 3. Law 3.1 Jurisdiction of TAS 81. The jurisdiction of the CAS in this arbitration result of articles 280 et seq RAD, particularly sections 280 and 281 RAD. It has also been confirmed by the parties who signed the procedural order dated 19 May 2008. 3.2 Admissibility of the appeal 82. Under Article R49 Code TAS, the appeal period is twenty-one days from receipt of the decision challenged, in the absence of a deadline set by the statutes and regulations the federation, association or body concerned sportsman or by agreement Particular previously concluded. 83. In this case, the appeal period is governed by Article 285 RAD providing a timeout call one month upon receipt of the complete dossier of the hearing body of the federation National. Failing to have requested the complete file within 15 days of receipt of the decision, the appellant has one month from receipt of the decision complete. 84. It is clear from the documents on file that the UCI has received the first contested decision (made on October 19 2007) by fax dated October 23, 2007. She then asked the RFEC to send the complete dossier by e-mail dated October 26, 2007, either in the within 15 days provided by Article 285 RAD. Having received nothing, she sent a new e-mail, November 6, 2007, the RFEC. The latter responded the same day that it had sent "any documentation that is sent in any other case" [ndr. : free translation from Spanish]. The next day, the UCI then recalled the content of the RFEC Article 233 RAD and requested once again sending the full dossier. By letter dated 16 November 2007, the RFEC then sent a batch of several dozen pieces to the UCI, which has received on 19 November. 85. In assessing whether to appeal the decision by the national federation, UCI must have a complete dossier, in order to have a hands all the elements which could accommodate the federation to reach its decision. It must also be able to adequate time for a thorough examination of these elements. It is therefore little that the UCI has already received a large part of the record of the case or that the documents received subsequently did little or no new elements. Sending a complete dossier shall be construed strictly speaking particularly to respect the equality of parties in the adversarial proceedings. 85. In assessing whether to appeal the decision by the national federation, UCI must have a complete dossier, in order to have a hands all the elements which could accommodate the federation to reach its decision. It must also be able to adequate time for a thorough examination of these elements. It is therefore little that the UCI has already received a large part of the record of the case or that the documents received subsequently did little or no new elements. Sending a complete dossier shall be construed strictly speaking particularly to respect the equality of parties in the adversarial proceedings. 86. In this case, it belongs to the RFEC to prove the facts that it intends to rely, namely, in its view that the UCI had the entire file from October 23. However, Formation notes that several pieces (in particular correspondence between Iban Mayo Diez and RFEC) have been delivered to the UCI until the dispatch of 16 November 2007. The appellant therefore did not have a complete dossier within the meaning of section 233 RAD before receipt of the shipment. Furthermore, in its letter attached to this shipment, the RFEC specified in UCI that it sent "the attached file 26/07 corresponding to Mr. Iban Mayo Diez." This clearly shows that the admission of the RFEC, the case "complete" has been sent at that date. 87. The dispatch of November 16, 2007 was received by the UCI on November 19 following. Her declaration of appeal was sent on December 19, 2007, it complies with the deadline regulatory than a month. 88. The same is true of the second statement of appeal by the UCI, dated 28 January 2008 and directed against the decision of 27 December 2007, which was received by the appellant 28 December 2007. 89. However Iban Mayo Diez believes that this second statement of appeal would inadmissible for another reason: according to him, the only decision in this case by the RFEC is one of 19 October 2007. The decision of 27 December 2007 would be a "Reconsideration" of the October 19, 2007, which does not give including the possibility of file a second appeal to CAS. 90. But this argument must be rejected. Indeed, it does not take into account the fact that the Committee National had the RFEC in its second decision of 27 December 2007, to take considered an important new fact, he was unaware when he took decision of 19 October Previous: December 6, 2007, the final outcome of the analysis B sample of Iban Mayo Diez (analysis B2) was transmitted by the LNDD and confirmed the presence of recombinant EPO found in the sample A. The state of affairs which has founded the National Committee has thus evolved from a decision to another. Thus, the second does not just a confirmation of the first, but a decision, based on a new state of affairs. This fact once again linked by elsewhere, and contrary to what that supports the respondent, a result management process. This is further confirmed by the explicit mention of the National Committee, at the foot of his sentence in December 2007, according to that the UCI "may refer the matter to CAS so that the latter, as supervisor of this Committee in this field, could revoke, if necessary, decision of this disciplinary body. " 91. The decision on December 27, 2007 by the National Committee of the RFEC is therefore at a decision by a national federation, not a single character confirmatory, but a binding and subject to appeal to CAS. 92. The only appeal brief filed by the UCI on February 4, 2008, has also been filed time. Indeed, the President of the Appeals Chamber of the CAS had decided to extend until 4 February 2008 the deadline for filing the memory on the first decision challenged (issued on October 19 2007), on the one hand, and the deadline to file the brief on The second decision was to expire on February 7, 2008, pursuant to Article R51 Code TAS, on the other. 93. In view of the foregoing, the appeals on 19 December 2007 and January 28, 2008 by the UCI and the appeal brief filed on February 4, 2008 by the latter are admissible. 3.3 Law 94. The CAS has its headquarters in Lausanne and the respondents are domiciled outside of Switzerland, this arbitration is governed by Chapter 12 of the Federal Law on the Right Private International (LDIP). 95. In addition, arbitration sport is governed by the Code of Arbitration for Sport (the Code TAS), and more specifically by its articles R27 to R37 and R47 et seq. 96. According to Article 187 paragraph 1 LDIP, an arbitral tribunal shall act in accordance with the rules of law chosen by the parties or, failing that choice, according to the laws with which the cause presents the closest links. 97. According to Article R58 Code TAS, a statue training according to regulations and in accordance with the applicable rules of law chosen by the parties, or lack of choice, according to the law of the country where the federation, association or other body who made the sport decision is domiciled or under the laws which considers Training the appropriate application. In the latter case, the decision of Training must be substantiated. 98. In this case, the UCI has adopted an anti-doping rule, RAD, which entered into force on 13 August 2004. All athletes dismissed within the member federations of the UCI are subject to this regulation. In other words, anyone taking such a licence is committed to this fact participate in cycling events respecting the regulations of the UCI. A licensee particularly undertakes to submit to doping controls and agrees on doping, the jurisdiction of the CAS as a last resort, in accordance with the articles 1.1.001, 1.1.004 and 1.1.023 of the Rules of the sport cyclist of the UCI. Similarly, Article 5 of preliminary provisions of this regulation stipulates that participation in a test cycling, in what capacity whatsoever, implies acceptance of all regulations that find application. Having been implemented under the authority of the UCI during a competition International doping control at issue here is governed by the RAD (Articles 2 and 3 RAD), which is not disputed by the parties. In addition, the two rulings by the National Committee of the RFEC were made under the RAD and refers to it specifically. 99. It is therefore necessary to implement the RAD to this arbitration. 3.4 Power Review 100. The power of review of Training in this arbitration procedure of appeal is governed by the provisions of Articles R47 et seq of the Code of CAS. In particular, Article R57 grants TAS a complete discretion in fact and law in investigating the cause. 101. The admission of a power of review that is not limited is also supported by the measures of inquiry extensive that training is authorized to order under Article R44.3 paragraph 2 of the Code of TAS: "The training may at any time, if it deems useful to complement the presentations of the parties, require production of documents Further, order the hearing of witnesses, commit and hear experts or carry out any other act of instruction (...) This large capacity instruction shows the existence of full power of review of the case, including with regard to the facts. 3.5 Consideration of legal means 102. The review focuses on issues concerning the regularity of analyses Sample A and Sample B, Mr. Iban Mayo Diez felt that such analyses have not been carried out in accordance with the applicable rules. The answer to these questions will to determine whether Mr. Iban Mayo Diez or not it is liable to a penalty, and assuming a positive response, to determine the quantum of punishment and its implementing rules. 103. It is, however, provided prior to verify the regularity in this case, analysis A sample, then that of the B sample, to recall the general principles about the burden of proof in doping and about the scope of irregularities possibly observed on the occasion of the analyses. 3.5.1 General Principles 104. Under Article 16 RAD, "the burden of proof to the UCI and its national federations who will establish the existence of a breach of doping. The degree of proof will establish if the UCI or its national federations have satisfied the burden of proof to the satisfaction of the hearing body which will assess the seriousness of the allegation. The standard of proof in all cases, will be more important that a balance of probabilities, but less than proof beyond a reasonable doubt. When this Anti-doping Regulation gives the rider, or another person suspected of having committed a doping violation, the burden of reversing a presumption or establish circumstances or specific events, the degree of proof must be based on a fair balance of probabilities ". 105. Regarding the method of determining the facts, Article 179 RAD requires respect for the SIL by the laboratories: "The laboratories will carry out analysis of samples taken during doping controls and will report the results in accordance with the standards international laboratories WADA. " Similarly, Article 18 provides that RAD " WADA-accredited laboratories or approved in another way by WADA are allegedly carried out the analysis of samples and observed the procedures of the chain Security in accordance with international standards for laboratories. The rider can rebut that presumption by demonstrating that a gap is occurring in relation to standards international ". 106. This pattern repeats that used by WADA which Article 3.2.1. Code provides: " WADA-accredited laboratories are presumed to have carried out the analysis of samples and complied with the procedures of the security chain in accordance with International Standards for laboratories. The athlete may rebut this presumption by showing that deviation from the International Standard for Laboratories occurred. If the athlete manages to reverse the presumption by showing that a departure from the Standards international laboratories was reached, it will then be in the organization Anti demonstrate that this gap has been the source of analysis result abnormal. " 107. In other words, there is a rebuttable presumption that the laboratories accredited by WADA conducted the tests in rules, in accordance with the SIL. In the event that the rider would demonstrate the existence of a deviation from the SIL, then fall to the UCI to show that this gap is not the cause of result analysis abnormal. Any deviation from the SIL saurant does indeed have consequences that the systematic doping control is automatically flawed and that the reality of Doping can be established ". 108. Furthermore, it should be noted that each provision of the SIL must be assessed as in its scope. While most appear to have a regulatory and imperative, some are only indicative range and does not constitute mere recommendations. 109. The non-compliance with the SIL - or more precisely the existence of a deviation from the SIL -- would not only be able to accept the existence of doping, then charge for Doping Organization to establish that this difference did not cause the result of analysis abnormal, which, according to the terms and definitions of SIL (section 3.1.) and the definitions of RAD is the "report of a laboratory or another body empowered to make analyses revealed the presence in a sample, a prohibited substance or its metabolites or markers (including high amounts of endogenous substances) or the use of a prohibited method ". 3.5.2 Consideration of the regularity of the analysis of sample A 110. In the particular case, the LNDD used the method of "Focus Isoelectric and double immunoblotting (IEF and double blotting) for the analysis of sample A. It is come to the conclusion that it contained recombinant EPO. A second option issued by the Lausanne laboratory confirmed this conclusion. 111. Mr. Iban Mayo Diez relies on two grievances against the regularity of the analysis A sample: on the one hand, there was a violation of the obligation to seal the packaging transport of samples, on the other hand, the confirmation of the analysis of sample A would not have been made on an aliquot of the sample. It is then show that a gap is occurring in relation to the SIL to reverse the presumption which these analyses were conducted in the rules of art. As the CAS jurisprudence, the athlete can not be content to invoke the existence of an error potential in the analytical procedure, but should instead report evidence of violation of the SIL (cf. no. 2006/A/1119 TAS, UCI v. L. & RFEC in hand. ch. 61, p.19). 3.5.2.1. Violation of the obligation to seal the shipping of samples 112. The respondent recalls that, according to the SIC, the samples taken during a check doping must be sealed and transported performed safely. As in illustrated by the report of analysis of the sample A, the shipping container containing the samples were not sealed upon his arrival at LNDD. There would therefore have doubts about integrity, validity and the identity of samples analyzed. 113. In accordance with the general principles outlined above, it is necessary to consider any First, if an athlete proves the existence of a deviation from the SIL. 114. The introductory part of the SIL stipulates that "the main purpose of Standards international monitoring is to plan effective checks and preserve the integrity and the identity of samples from the notification sportsman until transport of samples the laboratory. " In addition, one of the priority objectives of the SIL and CIS is to ensure best possible security for the transport of samples and their documentation. 115. However, the provisions of Articles 9.2 and 9.3 CIS invoked by the respondent, and according to where: "The transport begins as samples and sealed their documentation leave the doping control and ends with the confirmation that the samples and their documentation arrived at their destination. The main activities are to organize safe transport of samples and documentation… The organization Anti authorize a transportation system that will ensure the integrity and validity identity samples and documentation… The sealed samples are transported to a accredited laboratory or otherwise approved by WADA… "do not so imperative that the packaging used for transporting samples and documentation are themselves sealed. Only those samples should be. The respondent has not cited elsewhere no regulation - and Recommendation 98 / 1 of the Council of Europe that invokes can not be one - which would impose a mandatory taking of such a precaution for packaging. Of course, any measure to increase security transport, as the seal of the shipping container itself may be encouraged. However, the absence of such a seal is not further provided a violation SIL, or SIC. Mr. Jacques de Ceaurizz heard during the discussions, has clearly explained that if the presence of seals on the samples was a mandatory rule, that of sealed at the shipping remained an exceptional practice (about 10% of cases only). Mr. Ceaurriz has also confirmed that in this case, the samples themselves, were well received sealed the LNDD, - in what the respondents do not - fault Otherwise a "gap" would have inevitably been issued. 116. In the absence of irregularity on this point, the LNDD did not have to inform the UCI the meaning of Article 5.2.2.4 SIL, contrary to what the respondent who did not this point there is a deviation from the SIL or the SIC. 3.5.2.2 Violation of the obligation to confirm the analysis on a second aliquot A sample of the original? 117. On 28 July 2007, the LNDD has informed the UCI that the volume of urine at his disposal was "insufficient to confirm EPO, which could create" uncertainty identification of the sample and have an influence on the outcome of the analysis. On authorization by the UCI, the LNDD then proceeded to the confirmation of the sample analysis A rétentat using the "screening" and not a second aliquot of sample original. 118. It is necessary to examine whether the athlete here proves the existence of a deviation from the SIL. 119. Section 5.2.4.3.1.1 SIL provides as follows: "presumptive identification, a screening procedure, a prohibited substance, metabolite (s) partner (s) or marker (s) indicating the use of a prohibited substance or a prohibited method must be confirmed on a second aliquot taken from the sample "A" original ". 120. The SIL therefore an obligation for laboratories to confirm the identification Presumptive on a second aliquot. As evidenced by the documentation provided by the UCI, supported by the explanations of Mr. de Ceaurriz, the identification of the sample A has, in this case, not been confirmed on a second aliquot, but on the rétentat "Screening", either through the same aliquot of the sample than that used for "screening". Even if this process was authorized by the UCI, rightly challenged by the LNDD, it is nonetheless a departure from the SIL, the meaning of Article 18 RAD. 121. It is important then to assess whether this difference is the source of adverse analytical finding, namely the presence of recombinant EPO. The burden of proof lies with the UCI. 122. It is clear from the documents produced by the UCI, in particular the "File No analytical 155/07-EPO-1 "prepared by the LNDD, that the process of screening carried out when analyzing A had highlighted the presence of recombinant EPO. In its technical description of the results of analyses A, B1 and B2, a Mr. de Ceaurriz even described as "grotesque" the presence of the prohibited substance, stating that the latter amount corresponds to the EPO "pure" (that is marketed and from a syringe), which distinguishes itself very clearly a natural endogenous EPO. For its part, Lausanne laboratory revealed that the analytical documentation showed the LNDD "Clearly, both in the screening that in the confirmation, the presence of EPO recombinant "and indicated that the quality of performance was excellent and that they therefore showed "clearly and without ambiguity that urine contains A 2257932 EPO recombinant. " 123. It is therefore clear that the presence of this substance did not already more doubt after the process of "screening". Therefore, the use of a second party aliquot was only a step to verify this result and not an unambiguous step search for a prohibited substance in the sample A. This puts very significantly the scope of the gap which relies Iban Mayo Diez. 124. In addition, as explained by the experts, the risk that gave rise variation would focused not on the presence or absence of recombinant EPO, but only on the identification of the sample analysed and its attribution to the athlete concerned. But the debate experts heard in open court has always focused on the single issue of the scientific validity of B1 and analysis of the need for analysis B2, but never on a problem of identification samples analyzed. Iban Mayo Diez did not invoked in its pleadings the possibility of confusion between several samples. In court, Mr. de Ceaurriz had explained that the LNDD had taken into account the risk of identification when he highlighted the existence of a deviation from the SIL, but he had felt that this risk was low and could easily be rejected by analysing sample B. In addition, the UCI has produced in this connection, a report prepared by Dr. Christian Reichel, director of research within the Austrian Research Centers, that "the chain of custody was followed by both laboratories. [NDR. : And the LNDD lab Ghent] Consequently, there are no indications that the A - and the B - sample are not identical. ". (We have accepted that this piece is part of the procedure? I have a doubt? 125. Training notes, on the one hand, that the documents and testimony produced by the UCI can rule out the hypothesis of a confusion between samples of tangible Iban Mayo Diez and those of another rider. On the other hand, the respondent does any evidence evidence that could corroborate such a hypothesis. 126. In these circumstances, we do not consider that the use by the LNDD rétentat of "screening", instead of a second aliquot of sample A, is the origin of the adverse analytical finding clearly established through analysis of the sample. 3.5.3 Consideration of the regularity of the analysis of sample B 127. Mr. Iban Mayo Diez here raises several objections: the result of analysis, called "on finding "by the laboratory of Ghent, would mean that control, as a whole, declared negative, and this result could be supplemented by a new analysis that was produced by the LNDD, the time to practice this new analysis was expired, in any hypothesis, it should retain the most favourable to the athlete and finally, this new analysis would undermine the fundamental rights of the athlete who retains ownership samples. 3.5.3.1. Scope of the result of the analysis B1 described as "inconclusive" 128. Citing sections 204 RAD, 5.2.4.3.2.3 and 5.2.4.3.2.7 SIL, the Respondent contends that the result of the analysis B1 laboratory Ghent does not confirm that the analysis of A sample and that control must therefore as a whole, be regarded as negative. 129. It is therefore necessary to determine whether, on this point Iban Mayo Diez establishes or not occurrence of a deviation from the SIL? 130. In this case, the result provided further analysis B1 is qualified by the laboratory Ghent "inconclusive". This term may be translated into french "inconclusive" or "We can not draw any conclusion". But in his introduction, explains that his SIL main objective is "to ensure the production laboratories analytical results and valid data as evidence (…) ". In particular analysis the B sample, and it is for laboratories to provide confirmation or denial scientifically rigorous analytical result of the sample A. Therefore, securing a laboratory of a result "inconclusive" should be regarded as a deviation from the SIL. 131. It remains then to consider whether the UCI is able to demonstrate that this gap is not may have given rise to abnormal. 132. Under section 204 RAD, "if the analysis of the B sample is negative, control as a whole will be considered negative and the rider, his national federation, National anti-doping and WADA will be informed. " 133. Section 5.2.4.3.2.3 SIL provides as follows: "For the adverse analytical finding is valid, the result for the sample "B" must confirm the identification made on the sample "A" (…) ". As for article 5.2.4.3.2.7 SIL: "If the analysis confirmation the sample "B" does not confirm the results for the Sample 'A', Sample will be regarded as negative and the new analysis result will be notified to the Authority control ". 134. It is primarily that the system established by Article 204 RAD goes beyond the one introduced by sections 5.2.4.3.2.3 and 5.2.4.3.2.7 SIL. Indeed, the SIL merely because that the result of analysis of the B sample does not confirm the result for A sample to consider it as negative, while RAD requires a result negative analysis of sample B ( "If the analysis of the B sample is negative, control as a whole will be considered negative ... ". In other words, the SIL itself a non-confirmation of the A sample by sample B where RAD requires the B sample is clearly negative. This difference in approach can be explained by the fact The laboratories and disciplinary bodies have not quite the same design their respective goals. The former have a legitimate concern and scientific rigor seeking permanent solutions techniques enabling them to deliver results as accurate as possible, adopting guidelines - especially the SIL - which recommend the analytical methods offering the best guarantee of accuracy and safety results. In this context, it is natural that laboratories trying to get a result from analysis B confirming that the analysis A. The anti-doping regulations, they are designed essential to establish the legal framework as specific as possible whose purpose is to determine the disciplinary consequences arising from the results provided by the above laboratories. The requirement of a negative response to this logic. 135. In this case, the result of the analysis B1 is described as "inconclusive". Such qualification can certainly do not consider that the result of analysis of sample B confirms the result of the sample A, in accordance with the provisions of the SIL. However, it does can not, consider the result of the analysis of the B sample as negative, the meaning of the RAD. Therefore, this situation is neither a sufficient scientific point of view, nor acceptable from a legal point of view. It prohibits the transposition, by an authority Disciplinary, a result of the analysis applicable regulations, and particularly Article 204 RAD, which clearly requires the existence of a negative result for invalidation of the result of analysis of the sample A. 136. Such a situation therefore requires the implementation of complementary approaches. It is precisely expressed the opinion that the laboratory of Ghent in his "certificate of analysis" August 23, 2007 in endorsing the conclusion of the Australian Sports Drug Testing Laboratory Sydney (ASDTL), which very clearly recommended to repeat the analysis B1. In this, analysis certificate issued by the laboratory of Ghent is a perfect correlation with the notation contained in his interpretation of results ( "Interpretatie van de resultaten "):" Second interpretation is requested from ASDTL on August 22nd via email. " As rightly pointed Iban Mayo Diez, an analysis of doping control ends by drafting and dispatch by the laboratory, a certificate or analysis report. Strength east to note that here, the laboratory of Ghent was inscribed upon the outcome of the analysis B1, in a confirmation process necessary to its analysis. He then joined unreservedly with the opinion of ASDTL, which found that the analysis result was neither positive nor negative and called Logically, the repetition of the analysis of sample B. This position, matches the sake of scientific rigor described above, was formalised in the certificate of analysis dated 23 August 2007, which is truly an integral part of the opinion the ASDTL. 137. The need to conduct further analysis led to carrying out the analysis B2 the LNDD. The respondent has therefore benefited from the fact that the analysis took B2 place in the same laboratory that had been the analysis of the sample A. The analysis B2 has also helped raise once again the presence of recombinant EPO in Sample body Iban Mayo and Diez, that confirm the analysis of the sample A. This positive result has been validated by both the second opinion issued on December 6, 2007 by the Lausanne laboratory by Mr. de Ceaurriz during the hearing. Finally, it also helped avert the risk that might exist about the identification of samples stage of the confirmation of the result of analysis of the sample A. Furthermore, Experts noted that the de Boer and Ceaurriz never questioned the presence recombinant EPO in the sample A, confirming this point on the results of the LNDD and Laboratory Ghent and hence the data validation by the laboratory in Lausanne. The Training holds in particular the testimony of Mr. de Boer during the hearing that he had expected that the output B1 confirmât the presence of this substance and he had been surprised by its outcome was described as "inconclusive". 138. In these circumstances, the gap cited by Iban Mayo Diez, is the result of the analysis B1, described as "inconclusive", is unlikely to have resulted in abnormal obtained during the analysis and B2 already highlighted in the analysis of the sample A. 3.5.3.2. Ability to conduct a new analysis of the B sample? 139. According Iban Mayo Diez, the repetition of the analysis of the B sample is not the LNDD Planned in the RAD, it must be considered void. 140. According to Article 5.2.4.3.2.6 SIL, "the laboratory must have a policy defining the circumstances in which it is allowed to repeat the analysis confirmation of a Sample "B". Each new analysis of confirmation must be done on a new aliquot of sample "B". "This clearly opens the door to repetition of an analysis of the B sample, or even multiple repetitions ( "each new analysis "), while still a residual urine sufficient to charge a party aliquot. Its purpose is essentially éviterdes situations where problems techniques, which would occur during an analysis, would prevent the completion or good realization thereof. 141. Furthermore, Article 196 RAD, which refers to Article 177 RAD, authorises the execution of two separate analyses of the sample B, by two different laboratories, where conditions warrant. The purpose of these provisions is particular to overcome the fact that all laboratories do not have the technology required for certain types of analyses complex and ensure that an analysis could still be completed in respect of an adversarial process. 142. This approach, advocated by both the RAD by the SIL, is perfectly compatible with the general principles of the fight against doping and the protection of athletes -- Here competitors of the athlete in question - which require utmost to discover, as far as possible, the truth and, therefore, to determine if presence or absence of a prohibited substance in the samples body of the athlete. 143. In this case, we have seen, the laboratory of Ghent felt it was necessary to proceed a second analysis of the B sample, which was consistent with the letter and spirit of RAD and SIL. He informed the UCI, which gave him its backing and has duly informed all parties concerned, especially the rider in question. A technical issue, however, forced the laboratory of Ghent to delegate the execution of the LNDD B2 analysis: the investigation carried out during the debates has demonstrated that it was indeed able to make this analysis despite the low residual urine (approx. 9 ml), whereas it was not possible to Ghent, in this case. This delegation and carrying out the analysis B2 not the LNDD posed no problem, insofar as this laboratory has a policy defining the circumstances in which it is allowed to proceed with the repetition of such an analysis, pursuant to Rule 5.2.4.3.2.6 SIL. Indeed, its "procedure on the management against opinions ", March 26, 2007, stipulates that" in case of technical problems (apparatus, references, etc.…) manifested during or after the analysis, it is can repeat the analysis of B from the remainder (…) "(art. 8-5). 144. Training is therefore that, contrary to the opinion of Iban Mayo Diez, there is a valid legal basis which allowed the laboratory of Ghent to demand a repetition of analysis B1 and the LNDD to proceed. 145. Training notes that the exact causes for which the stability of the sample B could not be guaranteed during the analysis B1 result of difficult technical considerations power to apprehend an uninitiated. However, explanations of scientific experts Boer and Ceaurriz converge, in essence, to retain the occurrence of a problem that can be qualified in technical analysis B1. This would have resulted in a "background noise" which would have been unable to obtain confirmation of the biological integrity of the sample and necessary stability to the interpretation of analytical result. In such analyses, reference substances, which are compared substances found in the sample of the athlete, are pure products and independent of the sample taken from the athlete. They should therefore be perfectly legible, precisely in order to provide values reference. But this has not been the case in regard to the analysis B1. The result of this analysis, including depicted in Figure 12b of the case record (Exhibit 14, p. 17/163), This indeed inconsistencies in reference substances, which could cause be insufficient quality. 146. Thus, the inconclusive nature of the analysis comes B1 indeed a problem the method of analysis and / or its execution, not the content of the sample luiTAS Similarly, which is independent of reference materials. In other words, if still indeed some doubt after the execution of the analysis B1, it did in any case the presence of recombinant EPO in the urine of Iban Mayo Diez, presence "caricature" according to the expert. This probably did in reality than on questions of stability and integrity biological, inherent technical problems. It is here that the "Procedure on the management of opinions against "the laboratory of Ghent (art. 8-5) mentions Specifically substances such as references to technical problems may lead to a repetition of an analysis of the sample B. 3.5.3.3 Non-compliance deadlines for requesting the definitive analysis of the B sample? 147. The laboratory of Ghent that issued the result of analysis B1 August 23, 2007 and the UCI who requested the analysis B2 October 26, 2007, Iban Mayo Diez considers that this request was submitted after the deadline of five days under Article 194 RAD. 148. Under Article 194 RAD, "the request analysis of sample B of the National Federation must be sent to the laboratory at least 5 (five) days after receipt of the letter to the federation's national runner bearing communication of adverse analytical finding of the A sample. " 149. The principle behind this provision is the speed of proceedings Disciplinary: it is important for all parties involved in a doping case, especially for the athlete tested, know quickly if the result of analysis A sample is accepted or if it is contrary to the need for a contreanalyse on the B sample This decision determines to effect any further proceedings: the national federation should it or not open a disciplinary case for this athlete? In However, it is different when such a case has already been opened, after receipt the positive outcome of the analysis of the A sample and the analysis of sample B. In such a case, there is no need to apply the time - very short - under Article 194 RAD. This provision is therefore applies only at the stage of analyzing the sample A and not to that of a possible repetition of the analysis of sample B. As such, Article 203 RAD, which authorizes the UCI to require the analysis of sample B even if the rider is waived, not provides no time limit for filing such a complaint. 150. The argument of the respondent related to the lateness of the request for analysis must be B2 rejected. 3.5.3.4 The need to retain the analysis result most favourable to the rider? 151. Citing the award in the case CAS 2001/A/343 (UCI v. H.), Iban Mayo Diez contends that the UCI and the RFEC could not take into account the outcome more favourable for him. 152. The Court invoked here is not enough similarity with the case of the respondent so that he can draw valid argument. Indeed, in the case of H., the B sample was immediately divided into two aliquots by the laboratory, which had achieved different test for both parties, but both positive to the substance EPO. It was therefore not a case of repetition of an analysis which the result was inconclusive. In addition, the substantive arguments of the rider H. wearing mainly on the fact that a minimum concentration of the substance was necessary to describe the result positive, which is not the case here. By glut, Training séant stated, in the case H., that taking into account the the lowest concentration when there are two different results had nothing to do with principle "in dubio pro reo", but only with the duty of the federation to prove presence of the prohibited substance. What the UCI has done a satisfaction in the case of Iban Mayo Diez. 3.5.3.5 Existence of a breach of fundamental rights of the athlete? 153. The respondent has repeatedly expressed its willingness to prohibit the UCI to make analysis B2, citing respect for the fundamental rights of the athlete and more particularly the fact that the B sample belonged to him and should be returned. 154. This reasoning may be followed: In accordance with Article 167 RAD, samples collected under RAD become the property of the UCI during the sampling. As a result, UCI is entitled to proceed to the analysis of sample B, even if the rider y waives, which is confirmed by Article 203 RAD. This decision may be taken without ask his opinion rider since Article 180 provides for RAD, conversely, that the agreement of rider is not required for use of a sample for screening substances or prohibited methods. The UCI has duly informed the respondent during the procedure, by letter dated 12 November 2007. 155. The UCI did not therefore guilty of a violation of fundamental rights Iban Mayo Diez of acting as it has done in this case. 156. Taking into account all the circumstances described above, the training considers it must be taken into account the analysis result B2, which confirms the result of analysis A sample for the presence of recombinant EPO in urine collected from Iban Mayo Diez July 24, 2007. Therefore, the result of doping control conducted on this rider must be regarded as positive, under sections 204 and 205 RAD. 157. Hence, the decisions taken on 19 October and 27 December 2007 by the Committee the National RFEC must be cancelled insofar as they release the rider of the grievance doping. 158. In addition, the UCI has established "the presence of a prohibited substance or its metabolites markers in body fluids of the respondent, "the meaning of Article 15.1 RAD and this presence constitutes a doping violation. 159. There is therefore no need to consider the argument of the UCI relating to the use or attempted use of a prohibited substance or method, the meaning of Article 15.2 of the RAD or revised version of the CMA. 3.5.4. Penalty applicable 160. The penalty for such a doping violation is determined by Article 261 RAD, which provides for a suspension of two years. Iban Mayo Diez must therefore be suspended for such a duration. 161. It must also be disqualified from the cycling Tour de France 2007 and sentenced the payment in the hands of the UCI, amounting to CHF 1,000 .- as management fees results in accordance with Article 245 paragraph 1 number 2 RAD. 162. Under Article 275 RAD, which is similar to Article 10.8 CMA which it was based, "The suspension period will begin on the date of the decision of the hearing body or, in case waiving the hearing, the date when the suspension was imposed or accepted. Any period of provisional suspension (imposed or voluntarily accepted) will be deducted from the total period of suspension to endure. For the sake of fairness, in case of delays in the proceedings hearing or other aspects of doping control not attributable to the athlete, the body imposing the sanction will be able to start the period of suspension at an earlier date can go back to the date of collection of the sample. ". 163. The rule is that the beginning of the suspension period corresponds to the day decision of the hearing body, or in case of waiver of hearing, the date when the suspension was imposed or accepted. The solution to start the period suspension at an earlier date is therefore an exception, subject to the provided that the decision to sanction has been delayed by elements not attributable to sportsmanship. 164. In this case, by letter dated July 30, 2007, the UCI has provided information on the positive result of the A sample the RFEC, with a copy to WADA, the National Committee doping and the team Iban Mayo Diez. This had the consequences immediate suspension within his team, deprivation of his salary and recording her account as collateral. These consequences can be considered, in this case and given the circumstances, as similar to a suspension imposed. Training recalls that the question of whether a single organization recognized doping -- and not his team - can validly impose a suspension to the athlete, the meaning of Article RAD 275, is irrelevant from the moment the concrete result of measures taken against the athlete is identical for it to a suspension imposed (see TAS 2007/A/1368, UCI c / S. & FCI). 165. Furthermore, the regulations applicable to the issues of suspension, in particular RAD and the CMA, their comments and give everyone a certain importance to the concept equity, including avoiding penalize the athlete for items that are not accountable. But it would be contrary to the principle of fairness to bear the Iban Mayo Diez duration of the proceedings which led, a year after the alleged incidents, this award. In effect, this would in fact deprive the rider of its activity professional for three years, namely a year of proceedings in which added two years of suspension. But these are the two successive decisions of the National Committee of the RFEC - to be cancelled - who are behind the call of the UCI and, hence, the duration those proceedings. In view of these decisions, the appeal consecutive UCI and the seriousness of the sanction that the respondent incur, it had no other choice but to defend its interests before the CAS. 166. In these circumstances, Training, which has the power to make retroactive to the start the suspension until the date of collection of the sample (RAD section 275 in fine), decides in fairness, that the period of two years' suspension imposed on Iban Mayo Diez begin at From the day of his suspension effective within his team. It appears the state of affairs that suspension was taken after sending his letter informative by the UCI, the July 31, 2007. 167. Iban Mayo Diez must therefore be condemned to a suspension of two years with effect from July 31, 2007. 4. Costs 168. In accordance with Articles R64.4 and R64.5, the costs of arbitration are arrested and included in the award, which also determines which party supports or what proportion of the parties to share the burden. 169. The sentence condemns in principle the unsuccessful party to a contribution to costs attorneys for the other party as well as costs incurred by the latter for the urposes of procedure. Upon conviction the costs of arbitration and lawyers, Training wishes on the outcome of the proceedings, and the behaviour and resources of the parties. 170. In this case, the UCI wins the case on all its conclusions. Iban Mayo Diez and the RFEC succumb to revenge on all of them. 171. The National Committee of the RFEC is behind the call of the UCI, and therefore this arbitration. In particular, Training notes that the authority has made its decision December 27, 2007 and classified dossier Iban Mayo Diez even though the result of B2 analysis was already known and confirmed the presence of recombinant EPO discovery in the sample A. However, by letter dated December 17, 2007, the UCI had taken care to inform the RFEC, urging it to reconsider its decision of 19 October 2007, which had been taken "before the B analysis is completely finished." 172. In these circumstances, it would be unfair to condemn the Iban Mayo Diez payment of a contribution at the expense of the UCI. As mentioned above, the attitude of the National Committee of the RFEC has forced the rider to incur costs of defence and procedure even though it was already deprived of income. 173. In these circumstances, Training decides, in fairness, that bear its RFEC single charge contribution to the costs of the UCI, which will be decided in the mount of CHF 2 000.00 (this sum actually seems more logical if you agree?). For the Moreover, the parties will take their own legal fees for their dependents. 174. The amount of CHF 500 .- paid by the appellant to the Registry of CAS remains ommitted to this , in accordance with Article R65.2 Code CAS. * * * BY THESE REASONS THE COURT OF ARBITRATION FOR SPORT, I. Accepts calls from the Union Cycliste Internationale insofar as they are admissible; II. Cancels decisions taken on 19 October 2007 and December 27, 2007 by the Committee National Real Spanish Federation of Ciclismo; III. Condemns Iban Mayo Diez to a suspension of two years from July 31, 2007; IV. Disqualified Iban Mayo Diez of the cycling Tour de France 2007 "; V. Condemns Iban Mayo Diez payment in the hands of the UCI, amounting to CHF 1'000 .- as a management fee of results; VI. Stated that the award is made without charge, except from court fees by CHF 500 .- paid by the Union Cycliste Internationale, which shall be forfeited to the CAS; VII. Condemns the Real Spanish Federation of Ciclismo to pay a contribution the legal fees of the Union Cycliste Internationale by CHF 2,000 .- (two miles Swiss francs); VIII. Finds that, for the rest, each party takes its own legal fees in his office; IX. Stated that all others or more claims are rejected. Lausanne, August 11, 2008 Bernard Foucher President Olivier Carrard José Manuel Otero Lastres Referee Referee Nicolas Chervet Registrar
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Union Cycliste Internationale c / Iban Mayo & Real Spanish Federation of Ciclismo
ARBITRATION AWARD
made by the
COURT OF ARBITRATION FOR SPORT
serving in the following composition:
Chairman: Mr. Bernard Foucher, President of the Tribunal Administratif, Paris, France
Referees: Me Olivier Carrard, a lawyer, Geneva, Switzerland
José Manuel Otero Lastres, lawyer, Madrid
Registrar: Me Nicolas Chervet, a lawyer, Lausanne, Switzerland
in the arbitration proceedings Appeals
between
Union Cycliste Internationale, Aigle, Switzerland,
represented by Philippe Verbiest, a lawyer, Leuven, Belgium,
against
Iban Mayo Diez, Igorre, Spain,
represented by José Rodríguez García, a lawyer, Madrid, Spain,
and
Real Spanish Federation of Ciclismo, Madrid, Spain,
represented by Jose Antonio del Valle Herán, Madrid, Spain.
1.1 Facts
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