Bruce Bird v. Union Cycliste Internationale (UCI)

I. ISSUE AND PARTIES

1. This is an appeal by Mr. Bruce Bird (“Mr. Bird’’ or the “Appellant”) against a decision dated 18 October 2018 rendered by the Sports Director of the Union Cycliste Internationale (“UCI’’ or the “Respondent”) disqualifying the Appellant’s results achieved in the UCI Gran Fondo World Championships from 29 August 2018 to 2 September 2018 (“the Event’’) and deciding that the prizes for this race be reallocated (“the Appealed Decision’’).

2. Mr. Bird, a Canadian citizen and resident of Toronto, is by profession a technology consultant to the Financial Services industry and − more materially to this appeal − an Elite cyclist licence holder with a record of conspicuous achievement in that sport.

3. The Respondent is the world governing body for the sport of cycling with its headquarters in Aigle, Switzerland.

V. JURISDICTION

32. Article R47 of the CAS Code provides:

“An appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body”.

33. Article 71 of the UCI Constitution provides for an appeal to the CAS. The Respondent does not dispute that CAS has jurisdiction to hear and determine the matter.

34. The Panel accordingly holds that it has jurisdiction over the appeal.

VI. ADMISSIBILITY

35. Article R49 of the CAS Code provides:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. After having consulted the parties, the Division President may refuse to entertain an appeal if it is manifestly late”.

36. The Appellant’s Statement of Appeal was filed within the relevant deadline. The Respondent does not dispute the admissibility of the appeal.

37. The Panel accordingly holds that the appeal is admissible.

VII. APPLICABLE LAW

38. Article R58 of the CAS Code provides:

“The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

39. In accordance with Article R58 of the CAS Code, the Panel must decide the dispute according to the UCI Regulations and associated regulations and, subsidiarily, Swiss Law. Both Parties were ad idem on this point.

VIII. MERITS

40. By way of preface, that Panel observes that its duty pursuant to Article R57 of the CAS Code to decide the case de novo means that any denial of due process at the lower-level proceedings (if any) is cured by the CAS proceedings. So much is well-established law (see CAS 98/208 at para. 71; CAS 2009/A/1880-1881 paras. 142-146).

41. In the Panel’s view, the starting point of its analysis must be UCI Regulation 15.5.001 itself, which provides:

“All license holders under articles 1.1.001 to 1.1.028 may participate in the UCI Gran Fondo World Championships, apart from:

a) Any rider who has during the current year been a member of a team registered with the UCI;

b) Any rider who has taken part in a World Championship, the Olympic Games, Commonwealth Games, regional games or a World Cup during the current year;

c) Any rider who scored UCI points in the year of the World Championships” (emphasis added).

42. Accordingly, to participate in the Event, a rider must be (i) a license holder; but, (ii) one who does not fall under subparagraphs (a) or (b) or – and material to the Appellant – (c) of the UCI Regulation 15.5.001.

43. It is not at issue that the Appellant satisfied the first of the two subparagraphs. What divided the Parties was whether the third subparagraph was also satisfied.

44. In the Panel’s view, the Appellant did not satisfy the third subparagraph. In its ordinary and natural meaning, and, in particular, in the context where UCI Regulation 15.5.001(c) is located, “UCI points” (the ‘key phrase’) meant any UCI points. There is no distinction drawn in the English or the French texts (“des points”) between the singular and plural. The disqualifying

criterion is a matter of general description, not of precise calculation. To the hypothetical question “Had Mr Bird scored UCI points during the prescribed period?” the answer would necessarily have been “Yes”. He scored a point in the Canadian Championship.

45. The key phrase is indeed a synonym for one or more points. To achieve the result contended for by the Appellant, it would have had to read (which it does not) “more than one point’’. There is no scope for application of the contra proferentem rule of construction since there is no ambiguity in the subparagraph (c) when reasonably read. Nor does the doctrine of comfortable satisfaction, to which the Appellant referred, have any reach; it is concerned with findings of fact (as to which in the present case there is no dispute in particular) since it is not suggested that the Appellant participated in the Event knowing that he was ineligible. The doctrine does not apply to holdings of law.

46. Subparagraphs (a), (b) and (c) had manifestly a common purpose in providing a threshold of cycling quality, which if it were passed, rendered the rider ineligible to compete in the Event. The Panel cannot conceive of why the Respondent should have chosen to bar from the Event a rider who scored two points but to permit a rider who had scored only one, especially since, as illustrated in UCI Regulation 2.10.008, many races only allocate one point to riders.

47. No significance could be attached to the 2019 adoption of the formula “UCI point or points” which confirmed, but did not change, the meaning of the relevant regulation.

48. In summary, the Appellant scored a UCI point in the Canadian Championship. That was fatal to his eligibility for the Event.

49. If, as the Panel concludes, the Appellant was ineligible to compete in the Event, his results should presumptively be annulled and consequent prizes should presumptively be removed. Otherwise no effect would be accorded to UCI Regulation 15.5.001. Any decision taken to that end would not be disciplinary but an inevitable consequence of application of that Regulation. If the Appellant had been barred from participation in the Event before it started because he was ineligible, his bar would not sensibly be described as a sanction or penalty. In the Panel’s view, its intrinsic character did not alter because his results were annulled after the race had concluded. Of course, disqualification can be a sanction or penalty in some circumstances for infringement of sports rules; but it is not always so.

50. This distinction between disciplinary and eligibility rules is well recognized. For example, in CAS 2011/O/2422, the panel stated:

“33. … CAS jurisprudence has indicated that qualifying or eligibility rules are those that serve to facilitate the organization of an event and to ensure that the athlete meets the performance ability requirement for the type of competition in question. A CAS Panel noted in CAS 2007/O/1381 RFEC & Alejandro Valverde v. UCI at paragraph 76 (the “Valverde case #1”), that a common point in qualifying (eligibility) rules is that they do not sanction undesirable behaviour by athletes. Qualifying rules define certain attributes required of athletes desiring to be eligible to compete and certain formalities that must be met in order to compete (see Valverde case #1 at paragraph 77). This same point is found in the IF Advisory Opinion.

34. In contrast to qualifying rules are the rules that bar an athlete from participating and taking part in a competition due to prior undesirable behaviour on the part of the athlete. Such a rule, whose objective is to sanction the athlete’s prior behaviour by barring participation in the event because of that behaviour, imposes a sanction. A ban on taking part in a competition can be one of the possible disciplinary measures sanctioning the breach of a rule of behaviour …”.

51. It follows from that premise that Part 12 of the UCI Regulations had nothing to do with the Appellant’s case. As UCI Regulation 12.0.000 notes, so far as material “this part governs infringements to the UCI Constitution and Regulations as well as disciplinary action and procedures relating thereto …” (emphasis added).

52. The Appellant was not guilty of any infringement of the UCI Regulations in the sense, analogous to a form of misconduct, used throughout Part 12 of the UCI Regulations, and was neither subject to the penalties nor entitled to the procedural protections contained in it. The cases he relied upon to exemplify the established principles nulla poena sine lege and nulla poena sine lege clara, e.g. CAS 94/129 and CAS 2003/A/442, were irrelevant where, in legal taxonomy, no penalty was being imposed, even if to the Appellant, a non-lawyer, it may have appeared otherwise.

53. The Appellant’s most powerful argument was that the disqualification was ultra vires since, first, it was imposed out of time, and, second, imposed by a person who lacked the authority to impose it.

54. As to the first aspect of that argument, Part I of the UCI Regulations presents the general provisions pertaining to the organisation and supervision of cycling races. Part I of the UCI Regulations defines the competence of the UCI Commissaires’ Panel (the “UCI Panel’’) as regards the procedure applicable to eligibility and the start of riders. The UCI Panel is responsible for assuring the sporting administration and supervision of an event (UCI Regulation 1.2.078) and, inter alia, shall verify the entry check of any event (UCI Regulation 1.2.089-1.2.093) and shall refuse the start of riders “who do not comply with the regulations or who are manifestly not in any condition to participate in the race” and so is competent to disqualify a rider should he be ineligible to compete (By instructive contrast, Part XII of the UCI Regulations establishes specific infringements to the Regulations resulting from inappropriate behaviour related to an event, as well as applicable disciplinary sanctions. The competent body to issue such sanctions is the UCI Disciplinary Commission, which itself shows that ineligibility issues are not of disciplinary nature and are only governed by Part I of the UCI Regulations).

55. As the Respondent argues, in the Panel’s view correctly, “Taking the above into consideration, there is a clear distinction to be made between observing a rider’s ineligibility, which is an objective assessment of facts of purely administrative nature, as opposed to a disciplinary sanction of a behaviour which may take into account subjective circumstances”. But the Respondent also is compelled to acknowledge “Notwithstanding the above, the jurisdiction of the UCI Commissaires’ Panel begins at the start of an event and terminates at the end of the said event”.

56. It is, however, in the Panel’s view, a non sequitur to argue, as did the Appellant, that because the UCI Panel is functus officio at the conclusion of the event, there could be no basis for a later

disqualification based on the rider’s ineligibility. The Appellant’s ineligibility is a constant before, during and after the Event. Even if there may be circumstances, over and above the mere passage of time, which would inhibit retrospective disqualification (e.g. actions irrevocably taken on the basis of the results as announced), none are prayed for in relief in the Appellant’s case and the Panel refrains from pronouncing on matters which are moot.

57. In CAS 2014/A/3832 & 3833, the appellant’s results in a competition preceding the Sochi Winter Olympics were disqualified by the Council of the Fédération Internationale de Ski (“FIS”) because of manipulation (to which she was neither party nor privy) by officials of its results designed to enable her to acquire the minimum qualification for entry to those Games. The panel stated as follows at paragraph 138:

“The Panel indeed holds that the competition was a whole, notwithstanding that the Appellant is not guilty of any manipulation, is to that extent corrupted and defective and that its results and qualification points gained therefrom shall not stand”.

58. That passage neatly exemplifies the propositions both that disqualification of a sportsperson’s results is not umbilically linked to his or her fault in the matter and that disqualification can occur after the relevant event has concluded.

59. As to the second aspect of the argument (i.e. that the Appealed Decision was imposed by a person who lacked the authority to impose it), the Respondent contends that “The UCI Administration is therefore the only competent body to observe ineligibilities prior to or following an event. This default competence is a matter of common sense and is consistent with the UCI’s constant practice”. The solitary precedent relied on (being the retrospective disqualification of Slovenian riders from the UCI Cycling World Tour Finals 2014 in Ljubjana by Mr. Jones’ predecessor) concerned riders without valid licences for which there is express provision for after-the-event-disqualification and to that extent is distinguishable; and common sense by itself provides a fragile foundation for conferment of an otherwise absent authority.

60. However, the Panel is ultimately persuaded that Mr. Jones, in his capacity of Sports Director, was competent to issue the Appealed Decision on behalf of the Respondent, as explained below.

61. The UCI Administration (of which Mr. Jones is a member) is provided for in the UCI Constitution at Article 68 as follows, so far as material:

“1. The administration of the UCI shall be placed under the direction of the President, assisted by a directorgeneral.

[…].

4. The administration shall assume the general secretarial services of the UCI. It shall also assume routine bookkeeping, receipt of payments, and making authorized payments.

5. The administration shall be situated in Switzerland at a place fixed by the Management Committee”.

62. Mr. Jones was not exercising a discretionary (still less a disciplinary) function of any kind; but rather an administrative function, i.e. one appropriate to the administrative arm of the UCI by communicating to the Appellant the ineluctable consequence of his own unauthorised participation in the Event. Were no one to have such function, the eligibility rules would be flouted and those which they were designed to protect, i.e. the Appellant’s competitors, would be left unprotected. The Panel accepts that there was no express reference in the UCI Constitution or UCI Regulations to the function performed by Mr. Jones, but considers that he had necessarily implied or incidental power arising out of those instruments to perform it.

63. Since UCI Regulation 15.1.0001 on its plain language left no scope for discretion, Mr. Jones’ hands were tied. As was stated in the UCI’s email of 25 October 218, the UCI had “no other choice”. The UCI Regulation had to be applied to the letter, not by reference to some amorphous “spirit”. It is true that the UCI Panel could − and maybe should − have disqualified the Appellant prior to the Event. Although the Panel was not provided with any evidence as to how precisely the system of checking operates, irrespective, on any view, the primary responsibility for checking on his eligibility lay with the Appellant himself. If he participated when ineligible and suffered the consequence of later disqualification and loss of prizes already awarded, he was the author of his own misfortune. He candidly and creditably admitted that he could have but did not appreciate the risk of acquiring disqualifying points in the Canadian Championship, or appreciate the consequence of having done so prior to his participation in the Event. He did not rely on the UCI Panel to validate his entry; he had, until his belated research, no apprehension that it might not be valid.

64. The Panel also has sympathy with the Appellant in that had he finished 16th rather than 14th in the Canadian Championship, he would not have acquired any UCI points and might have achieved and retained the same results as he did in the Event. Sport is, however, an activity in which small margins are characteristically significant. Moreover, it is the duty of all competitors to familiarise themselves with the sports rules; in this, as in other areas of human activity, ignorance of the law is no excuse.

65. With respect to the Appellant’s alternative request for relief (that “the Decision be reversed and that the Athlete along with the second place finishers in the individual events in issue be awarded a shared first place finish and that the remainder of the individual race results be adjusted accordingly, and that the team relay results be adjusted in a similar fashion”), the Panel notes that, attractive as such solution might superficially appear, it has no root in the regulations. In any event, either the Appellant was eligible to compete, or, as the Panel has found, he was not. If he was not eligible, then he was not entitled to any reward for finishing in first place; nor should his competitors, who were so eligible, but finished on that day as runners up in the two races, be deprived of the full fruits of their victory.

66. The Appellant expressed anxiety that, if his disqualification were upheld by the Panel, he might be seen by the public, and in particular the cycling world, as a having been found to have committed a doping offence. The Panel states with all the emphasis at its command that nothing in this Award can be taken to indicate that Mr. Bird is any kind of cheat at all, let alone a drug cheat. The Panel is pleased to note that the UCI made it clear at the outset of the hearing that the UCI made no such imputation against Mr. Bird and the Panel finds none to be in existence.

67. Nonetheless, for the foregoing reasons, the Appellant’s appeal must be dismissed. The UCI Regulations require as much and his competitors are entitled to no less.