Decision Robert Vrecer
Post on 02-Apr-2016
Ljubljana, 14 April 2014 Document no. : RV 01/14 DECISION The Disciplinary Board of SLOADO, represented by a panel consisting of Andreja Simsi, Chair, and Mitja Lainak and Martina Pohar, members, in the case brought by Union Cycliste Internationale (hereinafter: the UCI) and the Slovenian anti-doping organization (hereinafter: SLOADO), represented by Janko Dvorak against Robert Vreer (hereinafter: the Athlete), for an anti-doping rule violation under Articles 21.1 and 21.2 of the UCI Anti-doping rules, after the hearing held on 8 April 2014, adopted on 14 April 2014 the following DECISION: I. The athlete Robert Vreer shall be illegible for a period of twenty (20) months starting on 30 July 2013 for an anti-doping rule violation under Articles 21.1 and 21.2 of the UCI Anti-doping rules. II. All athletic results of the Athlete achieved between 30 July 2013 and the expiry of the twenty (20)-month period shall be disqualified. III. No fine shall be imposed on the Athlete. IV. The Athlete shall pay the amount of CHF 2,500 to the UCI. V. The Athlete shall pay the amount of EUR 1,000 to SLOADO. GROUNDS: Jurisdiction and procedural course 1. Union Cycliste Internationale (hereinafter: the UCI) informed the Slovenian Cycling Federation on 18 March 2014 of the violation by the Athlete pursuant to Articles 21.1 and 21.2 of the UCI Anti- Celovka 25, 1000 LJUBLJANA, SLOVENIA Tel. +386 1 230 60 10 Fax: +386 1 230 60 11 http://www.sloado.si email@example.com doping rules and passed the case over to SLOADO for further disciplinary process, in accordance with provision 5.a (2) Transfer of Powers of the SLOADO Anti-doping rules. Provision 5.a/2 (of the SLOADO Anti-doping rules) specifies that in the event that the regulations of the international federation require the national athletic federation to take action against a participant for an alleged anti-doping rule violation, such action shall be taken by SLOADO pursuant to the national rules and the rules of the international federation. 2. SLOADO appointed a panel of the Disciplinary Board of SLOADO, in accordance with Article 31.2 of the SLOADO Anti-doping rules laying down that the Chair of the Disciplinary Board of SLOADO shall appoint from Disciplinary Board members a three-member panel to hear and decide on individual cases. Statement of facts A/ Claims, statements and evidence submitted by the UCI 3. The UCI submitted to Robert Vreer (hereinafter: the Athlete) on 9 December 2013 a notice on an alleged anti-doping rule violation under Articles 21.1 and 21.2 of the UCI Anti-doping rules. The UCI notice stated the following: A sample was taken from the Athlete at the Tour de Pologne on 30 July 2013, no. 2661801; The sample contained the prohibited substance: Clomiphene The sample was analysed by an accredited laboratory in Warsaw, Poland. An adverse analytical finding (positive result) confirmed: that the sample contained the prohibited substance Clomiphene; that the Athlete may request an analysis of the B sample; and that the analysis of the B sample will be performed if the Athlete makes such a request within 7 days following the receipt of the notice. The UCI has further invited the Athlete to check the ingredients of all the products he had consumed in order to facilitate the identification of the prohibited substance Clomiphene found in the Athletes sample. On 18 December 2013, the UCI informed the Athlete by e-mail that an analysis of the B sample would be performed on 19 December 2013 by applying the standard procedure, of which the Athlete had been notified (a certificate signed by the Athlete on 17 December 2013 that he had been informed of the analysis of the B sample). On 27 December 2013, the UCI informed the Athlete of the results of the B sample analysis confirming the presence of Clomiphene in the A sample, no. 2661801. The Athlete was explained the contents of Article 295 of the UCI Anti-doping rules by the same notice. The proposal was to make the Athlete ineligible for two years, disqualify all the results achieved by the Athlete after 30 July 2013 and impose a fine of EUR 42,000 corresponding to 70% of EUR 60,000 (in accordance with Article 326.1 of the UCI Anti-doping rules), considering that the Athlete had a contract for EUR 60,000 with UCI Proteam Euskatel Euskadi. The UCI further demanded the reimbursement of costs in the amount of CHF 2,500, in accordance with Article 275 of the UCI Anti-doping rules. B/ Claims, statements and evidence submitted by the Athlete 4. In his written statement to the UCI dated 15 December 2013, the Athlete said that he had not request the performance of the B sample analysis 2661801 by the accredited laboratory in Warsaw, Poland. The main reason given for not requesting the test was that he did not believe that the laboratory operated in a professional manner, and also because he was unable to afford the cost of the analysis. He stated that he had never heard of Clomiphene. He declared that he had not consumed the substance to improve his results. He checked the ingredients of all the products he had consumed and did not find the substance. He proposed imposing a less severe sanction and stated the following circumstances: Clomiphene was not a factor improving the result achieved at the Tour de Pologne; He would like to compete in cycling for at least another five years; He had no other source of income and he had never earned much from cycling; He was unable to bear the cost of a high fine and the cost of proceedings. He further stated that he would accept a period of ineligibility or a sanction with a period of ineligibility if such a decision was made; however, he applied for a lower fine. The Athlete said that he was prepared to co-operate with the UCI in its continuous fight against doping and enclosed with the UCI letter dated 15 December 2013 a form proving he had not requested the B sample analysis. His letter dated 30 December 2013 stated that he had been informed by the UCI of the positive test results of B 2661801 for the substance Clomiphene on 27 December 2013. 5. The Athlete further noted: that he had never previously heard of Clomiphene and that he heard about the substance for the first time on 9 December 2013 when he was informed of the positive test results A 2661801; that he had not determined to date how he had consumed the substance; that he only consumed products made in Slovenia DTHENUTRITION, which he listed individually: Amino Whey, Whey Isolate, Casein, Glutamine, The BCAA, Isodrink, Vitamin Strong, Vitamin-B Complex and Vitamin C; that during the race the Euskatel Euskadi team required its athletes not to use their own athletic products but only those provided by the team physician where the riders received each day a plastic box featuring pills for the entire day, as presented in the enclosed photos. They received proteins and other substances for regeneration after the race. Before the season started, all riders agreed to the 100% Against Doping Rider Consent and he therefore trusted the team management. 6. On 31 December 2013, the Athlete explained that he was unable to present a complete list of products given to him by his team as no such list was at his disposal. He was told in reply to his request for the product list that they had been receiving products branded Boren, Infisport and Novadiet. Moreover, he explained that the team had provided them with medicinal products from a pharmacy and told them that they were vitamins, minerals, amino acids and proteins. He trusted the team management. 7. In his letter dated 6 February 2014, the Athlete stated that he did not accept the sanction put forward by the UCI. He noted the following: The UCI had not considered his previous statements; He was tested on the fifth day of the Tour de Pologne; He had never intentionally taken Clomiphene; The Euskatel Euskadi team had prohibited the use of the athletic products which the Athlete had been generally using, and required athletic products to be taken that were provided by the team physicians; The Euskatel Euskadi team physicians gave miscellaneous medicinal products to riders during the race; Some of them could be illegal; The team physician could make a mistake and administer to the Athlete an illegal substance, or the team physician or some other member of the team could intentionally administer the prohibited substance to the Athlete; It was very difficult if not impossible to find the source of Clomiphene consumed by the Athlete because the Euskatel Euskadi team refused to co-operate and assist in locating the source of the substance; The UCI had waited for nearly four months before informing the Athlete on the positive test results, which had made it much less likely that the source of the prohibited substance Clomiphene would be found; A fine was unfounded as the Athlete had not intentionally used Clomiphene; The Athlete acknowledged his responsibility for having Clomiphene present in his body but not for consuming it in the first place because he had not taken it intentionally and would never do so. 8. In the letter by the UCI to the Athlete dated 19 February 2014, the UCI still insisted upon a two-year period of ineligibility; however, considering the Athletes reasoning, they were willing to halve the fine to EUR 21,000. The Athlete informed the UCI on 3 March 2014 that he refused to accept the sanction with a reduced fine offered. He noted that he was unemployed because he had to terminate the contract made with a new team for the 2014 season, that the Euskatel Euskadi team still owed him pay for December 2013, that his reputation was destroyed, and that he had psychiatric and other problems and an uncertain future; the Athlete stated that he believed a two-year period of ineligibility would be sufficient punishment, considering those consequences. He said that he had been informed in mid-2013 about the financial difficulties faced by the Euskatel Euskadi team and that he had had 15 negative doping test results until the Tour de Pologne and had been subjected to none after the positive test. It was therefore obvious that he had already been made ineligible. The UCI did not comply with Article 206 of the UCI Anti-doping rules laying down that the UCI shall promptly notify the Rider of the results. In the Athletes case, however, the UCI had waited for 105 days before sending a notice on the violation. The UCI had therefore prevented the Athlete from presenting a proper defence by finding the source of the Clomiphene because the Euskatel Euskadi team refused to assist and did not even give the Athlete an opportunity to find the source of the Clomiphene. The team later disbanded. As regards the consequences and the disqualification at the Tour de Pologne 2013, he explained that he had not finished the race due to digestive problems. The UCI have not explained to date why they waited for 105 days before notifying the Athlete of the positive test results. It was possible that the UCI had waited to impose a fine on the Athlete based on his entire income. Evidence taking process 9. The panel of the Disciplinary Board (hereinafter: the Panel) has examined all the documents in the case file in the evidence taking process. The Athlete was examined during evidence taking. The Panel has examined all the evidence put forward, including that presented by the Athlete within three days after the hearing related to the statements of his annual income and a printout from the ADAMS evidence related to testing. 10. The Panel reached a decision after considering all the evidence and examining the Athlete in person. The Panel found that the Athlete had violated anti-doping rules. Legal grounds 11. The UCI Anti-doping rules shall apply to anti-doping rule violations in this case. The UCI alleged that the Athlete had violated Article 21 of the UCI Anti-doping rules laying down that an anti-doping rule violation constitutes the use or attempted use of a prohibited substance or a prohibited method. in accordance with Article 21.2.1 thereof, it is not necessary that intent, fault, negligence or knowing use on the Riders part be demonstrated in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method. Pursuant to Article 22 of the UCI Anti-doping rules, the burden of proof of doping is on the UCI and the Slovenian Cycling Federation (hereinafter: the KZS), which have the burden of proving that the Athlete had violated anti-doping rules. The standard of proof shall be the comfortable satisfaction of the Panel. If the Athlete challenges an allegation or proves a fact or circumstance, the burden of proof shall be a balance of probability. 12. Clomiphene is a specific substance that is prohibited and classified under S.4.3. (hormone and metabolic modulators) for 2013 and 2014 in the Prohibited List of the World Antidoping Agency (WADA). The presence of Clomiphene was established by analysing A and B samples 2661808 taken from the Athlete on 30 July 2013 on the Tour de Pologne, which was a violation under Article 21.1 of the Anti-doping rules. 13. Article 293 of the UCI Anti-doping rules specifies for a first violation of Article 21.1 of the Anti-doping rules a sanction of ineligibility for a minimum of two years with the possibility of reducing the period of ineligibility considering the level of guilt. The standard sanction of a minimum period of ineligibility of two years based on Article 293 of the UCI Anti-doping rules may be reduced in accordance with Article 295 thereof; however, the rider must: 1. establish to a significant degree of probability how the specified substance entered his body; or 2. provide suitable evidence that such specified substance was not intended to enhance the Riders sport performance or mask the use of a performance-enhancing substance. 14. For cases of no significant fault or negligence, Article 297 thereof specifies that the period of ineligibility may be reduced, but the reduced period of ineligibility may not be less than one-half of the period of ineligibility otherwise applicable. The same Article thereof further specifies that, when a prohibited substance or process is detected in a riders sample as referred to in article 21.1, the rider must also establish how the prohibited substance entered his system in order to have the period of ineligibility reduced. 15. According to the UCI, the Athlete had violated anti-doping rules by using the prohibited substance of Clomiphene. In the opinion of the Panel, the UCI has managed to prove (comfortable satisfaction) that the Athlete had used Clomiphene. The analyses of A and B samples performed by a laboratory in Poland registered with WADA showed that Clomiphene was found in A and B samples taken from the Athlete on 30 July 2013 on the Tour de Pologne. The substance is included in the prohibited list. The Panel found that the Athlete had made no substantiated objection to the samples and the existence of Clomiphene in the samples. His statement that he did not trust the certified laboratory was not backed up with concrete evidence or more specific statements, which would be considered less general in the opinion of the Panel. The Athlete agreed later in the proceedings that the prohibited substance had indeed been found in the sample taken from him. The Panel has found the same to be the case because this had been established beyond doubt from the letters sent between the Athlete and the UCI and from the certificates of the two analyses of A and B samples (test A and test B 2661801). It was the first such violation on the part of the Athlete. During the period between 6 June 2013 and 30 July 2013, as evident from a printout from the ADAMS records, the Athlete had no positive test result in the 14 tests (5 urine tests and 10 under biological passport) before the violation, whereas the blood test on 3 August 2013 was positive. 16. The level of guilt of the Athlete is the criterion applied to a reduction of sanction under paragraph 3 of Article 295 of the UCI Anti-doping rules and Articles 297 in conjunction with Article 22 thereof. After examining the Athlete before the Panel, and considering that no representative of the UCI attended the hearing (the UCI was duly invited to the hearing), the Panel decided that the third paragraph of Article 295 of the UCI Anti-doping rules on the reduction of the period of ineligibility applied in this case. The Panel considered the substantiated claims of the Athlete that he had been prevented from establishing how the substance had entered his body. It is logical and realistic to conclude that it was virtually impossible to attempt to establish and perhaps even establish which products or medicinal products were consumed by the Athlete at the Tour de Pologne at the end of July and on 30 July 2013 after more than four months had elapsed between the sample taking on 30 July 2013 and the notice to the Athlete on the results of the A test on 9 December 2013. The Athlete convincingly repeated at the hearing that he continued to refer to all statements made in the enclosed documents, including his previous use of DTHENUTRION products made in Slovenia and the obligatory taking of products and medicinal products prescribed by team managers, physicians and other staff at the Tour de Pologne. After receiving the notice from the UCI on the violation he requested that the Euskatel Euskadi team (which was dissolved at the end of 2013) submit the list of products used by the team at the race. The team replied solely by listing products branded Boren, Infisport and Novadiet. The Panel sees no grounds not to believe the Athlete in these claims because it is realistic and logical that the instructions of managers are followed (and must be followed by contract with any contract breach possibly having serious adverse effects for the Athlete). The Panel further concluded that, owing to the time that had elapsed before the Athlete was informed of the violation and the, unsubstantiated and as yet unexplained by the UCI, period between the test results obtained on 27 August 2013 and 9 December 2013 (when the Athlete was notified of the A test results), the contribution of the UCI to the prevention of proper defence of the Athlete was such that it should be deemed that the Athlete has managed to prove on the balance of probability that the prohibited substance had entered his body through products or medicinal products administered by the team and its physicians. The conduct of the UCI can be deemed a violation of Article 206 of the UCI Anti-doping rules laying down that the UCI shall promptly notify the rider of a violation, which was not the case, as stated above. 17. The Panel heeded the convincing statements and testimony of the Athlete that he had not taken the prohibited substance intentionally or to enhance his performance (the reasoning is identical as under Items 15 and 16) and therefore the proposed sanction of a period of ineligibility of twenty (20) months is appropriate (Item I of the operative part hereof). Disqualification of results 18. In accordance with Articles 288 and 289 of the UCI Anti-doping rules, the results achieved at the Tour de Pologne in 2013 shall be disqualified and, in accordance with Article 313 thereof, all results achieved thereafter, i.e. after the date of the taken positive sample, shall be disqualified too. The Panel has therefore decided to disqualify all athletic results of the Athlete achieved between 30 July 2013 and the expiry of the twenty (20)-month period (Item II of the operative part hereof). On the fine 19. As regards the fine based on Article 326.1 in conjunction with Article 326.3 of the UCI Anti-doping rules, a fine shall be obligatory for any professional athlete who is a UCI licence holder when the sanction of a period of ineligibility of two or more years is imposed. Article 326.3 of the UCI Anti-doping rules lay down that in other cases than those under paragraphs 1 and 2 thereunder the imposition of a fine is optional. The Panel finds that in this case a fine is optional as the period of ineligibility imposed is less than two (2) years. The panel imposed no fine as it was found that there were circumstances justifying such a decision: the Athlete is unemployed because he had to terminate the contract made with a new team for the 2014 season, the Euskatel Euskadi team still owes him pay for December 2013, his reputation was damaged in the athletic world as a result of the violation, and he has psychiatric and other problems and an uncertain career future. The UCI made no objection to these statements of the Athlete. The Athlete is foremost aware of this mistake resulting from at least wilful negligence when he should or could have been aware of the consequences an unchecked entry of unknown products and medicinal products in the body can bring. The Panel believes that a period of ineligibility of twenty (20) months with no fine imposed is a suitable sanction for the Athlete and will achieve its goal. The sanction will also achieve the aim of general prevention, i.e. that no breaking of UCI rules will be tolerated and violators consistently punished. Costs 20. The decision on costs is based on Articles 274 and 275 of the UCI Anti-doping rules. Item 2 of Article 275 thereof specifies that a license holder found guilty of an anti-doping rule violation shall bear the cost of the test result management by the UCI in the amount of CHF 2,500. The UCI has claimed the cost in this amount and the Panel ordered the Athlete to pay. 21. The Athlete shall bear his own expenses. 22. The Athlete shall settle the cost of SLOADO of EUR 1,000 as claimed by SLOADO in the enclosed cost sheet. INSTRUCTION ON LEGAL REMEDIES: An appeal against this Decision may be submitted within one (1) month. The Court of Arbitration for Sport (CAS) shall decide on any appeal. SLOADO Disciplinary Board Ljubljana, 14 April 2014 Chair of the Panel Andreja Simsi
View more >
Improving Students' Decision Making Skills - ENMHP ? Improving Students' Decision Making Skills Robin S. Gregory and Robert T. Clemen Decision Research, Eugene, Oregon Everyone knows what decision-making is ...