Legal issues related to the application of the ABP programme D E S - - PowerPoint PPT Presentation

D E S P I N A M A V R O M A T I P H . D . , L L . M

C O U R T O F A R B I T R A T I O N F O R S P O R T

Legal issues related to the application

• f the ABP programme

Legal Basis: Art. 2.2 WADA Code (WADC)

« Any reliable means »

admissions by the Athlete witness statements

• ther

analytical information documentary evidence conclusions drawn from longitudinal profiling

« Use or Attempted Use of a Prohibited Method »

Anti-doping rule violation May be established by “any reliable means”

Athlete’s Biological Passport (ABP)

 Indirect doping detection method  Individual electronic record for professional athletes  “Longitudinal profiling” of biological markers 

Presence of any prohibited substance!

 Blood matrix Abnormalities  Panel of experts  All possible factors are taken into consideration

Abnormal outcome of the ABP

 Not automatically doping  Not a true probability of doping  “How the profile differs from what is expected in

clean athletes”.

 Doping not the only possible reason in case of

abnormal values

 First: exclude the existence of a pathological condition  Review by a panel of experts (possible causes)  Experts’ Panel: Specialists (haematologists, endocrinologists  Aim: protect the athlete’s right to a qualified review /take all

factors into account

Reliability of the ABP and WADA Code

 CAS 2010/A/2178: the

method of detection of blood doping is a new scientific method and can be used even if the rules of the WADC do not expressively mention it

 CAS 2010/A/2235: ABP

approved by WADC and IF transposed it to the IF rules  CAS Panels respect & apply the rules as they are and not as they might have been or might become.  CAS is not called to adjudicate on whether some other or better system of longitudinal profiling could be created

Interpretation of results

 CAS 2010/A/2174  CAS Panels can evaluate & assess the weight of a

(party-appointed) expert opinion submitted to it.

 Evaluation of the facts  Assessment of the correctness and logic of the

experts’ conclusions

 Not a pure referral to the Experts’ opinion  CAS 2010/A/2235  “iudex peritus peritorum” – “the judge is the

expert on the experts

ABP: Particularities compared to other detection methods

ABP: indirect detection method (≠ direct methods)

No need to establish the presence of a prohibited substance (2.1)

ABP: No presumption applies (CAS 2009/A/1912)

ABP: IF has to establish the prohibited method and the non-violation of standards & rules

BUT: ABP: No obligation of the IF to comply with the ISL!

Particularities related to the longitudinal profiling: Starting point of the time limit to lodge a claim

Reason

• Series of

tests / evaluation of the results by ADO’s Experts

Starting point

• Upon

determinatio n that the ABP constitutes sufficient proof of the use of a prohibited method

CAS 2009/A/ 1912

• 30-day time

period starts

• n the date
• f “learning

about the alleged

• ffence” (rea

sonable suspicion of the alleged

• ffense)

Athletes’ rights and limitations in the use of the ABP: CAS 2010/A/2174

• Doping controls should be carried out

exclusively by ADOs

Athletes’

• bligations
• Athletes could request and check the

testing procedure

• Procedure should follow the required

standards

IFs’

• bligations
• Athletes have no right to establish their own

ABP and having this analysed by private labs

• Athletes cannot be the “controlled” and the

“controllers” at the same time.

Doping controls

Right of the athlete to have his B’ sample examined

 Only in “traditional” anti-doping rule violations in

the form of “presence of a prohibited substance” :

 Analysis of B’ sample is a basic right of the

athlete (otherwise the entire procedure is invalidated)

 Not in cases related to the ABP  No need to have A and B sample in order to establish

the validity of the procedure

Consent of an athlete to use his sample for different purposes CAS: 2010/A/2174

Use of sample for the ABP and for the detection of EPO CERA

• Art. 120 UCI ADR, samples are collected and analyzed

1) to detect the presence /use of a p. substance /method,

• 2)for profiling parameters in urine/ blood /other

matrix, incl DNA (‘athlete passport’)

• 3) to detect substances pursuant to the WADA

Monitoring Program

• 4) for screening purposes

No use for another purpose without the Rider’s written consent  No need to obtain separate consent for multiple actions

ABP and reason for blood manipulation?

 Not necessary for UCI (under the UCI ADR) to

establish a reason for blood manipulation

 But (CAS 2010/A/2235):  CAS Panels do note possible coincidence of the levels

with the Athlete’s racing programme

 E.g. When abnormal values occur immediately

before major events etc.

Independence of experts in cases related to the ABP

 TAS 2010/A/2178 / TAS 2010/A/2308

“Experts are not independent since they are paid by UCI.”

 CAS Panel: the fact that experts are engaged by UCI is

not sufficient to question their independence: Experts

 only do a prima facie estimate  they are engaged anonymously  only recommend the actions to be undertaken.

 CAS 2010/A/2235: “UCI has nothing to gain from

exaggerating the extent to which its sport is troubled by the scourge of doping.”

Alleged irregularities and reliability of results

 TAS 2010/A/2178 - TAS

2010/A/2308

 Rider contested the

reliability of the results - due to a number of irregularities

• ccurred prior and

during the analysis

• f samples
• Art. 3.2.2 WADC:

 If the Athlete rebuts the

presumption by showing that a departure from the ISL occurred which could reasonably have caused the AAF, then the ADO shall have the burden to establish that such departure did not cause the AAF” (Art. 3.2.1 of the WADC)

Burden of proof in DIRECT Methods (2.1)

ADO

• Establishment of the ADR violation (prohibited

substance (Standard: comfortable satisfaction)

• ADO presumed to have respected the procedures

Athlete

• Reverse the presumption – must show that
• irregularity in the procedure likely to cause AAF

(Standard: balance of probabilities)

ADO

• Establish that such irregularity did not cause the

AAF (Standard: comfortable satisfaction)

Burden of proof in INDIRECT Methods (2.2)

ADO

• Establish the ADR violation through the ABP

(Standard: comfortable satisfaction)

• No presumption that ADO respected the procedures!

Athlete

• Show that there was an irregularity in the procedure

likely to cause the violation

• (Standard: balance of probabilities)

ADO

• Establish that such irregularity did not cause the

AAF (Standard: comfortable satisfaction)