André Cardoso v. Union Cycliste Internationale (UCI)

I. THE PARTIES

1. André Cardoso (the “Appellant” or “Mr. Cardoso” or the “Rider”), was born on 3 September 1984 in Porto, Portugal. Since 2006, he has been a professional road racing cyclist and has participated to various major cycling events. In 2017, at the time of the doping control, he was riding for the UCI WorldTeam Trek-Segafredo l, and was affiliated to the Federaciò Andorrana de Ciclisme. The Appellant appeals the decision (the “Appealed Decision”) of the UCI Anti-Doping Tribunal in the case ADT 01.2018 dated 15 November 2018, according to which he was found guilty of having committed an anti-doping rule violation (“ADRV”) and sanctioned in the amount of EUR 56’000.

2. The Union Cycliste Internationale (the “Respondent” or “UCI”) is the international federation for cycling. The UCI is the world governing body for the sport of cycling recognized by the International Olympic Committee (the “IOC”). The UCI is headquartered in Aigle, Switzerland.

III. PROCEDURAL HISTORY — A. The Statement of Appeal

24. On 14 December 2018, the Appellant filed a statement of appeal (the “Statement of Appeal”) against the UCI’s Anti-Doping Tribunal’s decision rendered on 15 November 2018 and notified on 16 November 2018. In the same brief, the Appellant requested legal aid (the “Request for Legal Aid”), appointed Dr Sven Nagel as arbitrator pursuant to Article R48 of

the Code of Sports-related Arbitration (the “CAS Code”) and asked that the following documents be produced by the UCI:

“1. An overview of all urine and blood tests ever performed on the Appellant. 2. All the raw data for EPOETINS (i.e. the raw data like on page 29 LDP) of all the urine samples ever analysed of the Appellant, to learn whether atypical results were also observed in the past. 3. All testing results for ethylglucuronide of all the urine samples ever analysed of the Appellant. 4. All concentration results for endogenous steroids of all the urine samples every analysed of the Appellant. 5. All the information contained in the biological blood passport, to oversee the long term development of the blood values and comparing them with the present testing results. 6. Full information on the validation of the applied EPO testing procedure (validation package including proof of suitability of the method). 7. The original gel data of the analysis of the Appellant’s urine samples. 8. Scan of the important lanes (densitometric scans of the results, both urine samples and positive samples) of the Appellant’s urine samples. 9. The detailed results of all the blood analysis of the Appellant’s blood samples in the past”.

B. The Constitution of the Panel and the Challenge against Mr. Beloff

25. On 17 January 2019, the Respondent appointed the Hon. Michael J. Beloff QC as arbitrator in the present case.

26. By email dated 7 February 2019, the Appellant filed a petition for challenge against Mr. Beloff pursuant to Article R34 of the CAS Code on the basis that there had been inadequate disclosure of the collaboration between the UCI’s Counsel and Mr. Beloff’s Chambers in the Contador case which raised severe doubts as to Mr. Beloff’s independence and impartiality in the present case.

27. On 13 February 2019, the Respondent and Mr. Beloff submitted their comments regarding the Appellant’s challenge.

28. On 1 March 2019, the Challenge Commission of the Board of the International Council of Arbitration for Sport (“ICAS”) rejected the challenge against Mr. Beloff. The Appellant immediately objected to the decision of the Challenge Commission and asked which ICASmembers were involved in the decision making process.

29. On 4 March 2019, the CAS Court Office provided the Appellant with the names of the ICAS members who were part of the Challenge Commission.

30. On 12 March 2019, the President of the CAS Appeals Arbitration Division constituted the Panel deciding this case as follows: Ms. Carine Dupeyron (President); Dr. Sven Nagel (Arbitrator); and the Hon. Michael J. Beloff M.A. Q.C. (Arbitrator).

31. By email dated 25 March 2019, the Appellant communicated its intention to file an appeal against the Order on challenge issued by the Challenge Commission on the petition for challenge filed against Mr. Beloff. The same day, the CAS informed the Appellant of the

finality of the Challenge Commission’s decision and of the absence of any provision for appeal.

32. By email dated 3 April 2019, the Respondent objected to the Appellant’s allegations regarding Mr. Beloff.

C. The two Orders for Legal Aid, the request for its reconsideration and the Appellant’s

statement on the annulment of the arbitration clause

33. By letter dated 25 January 2019, the Court Office of the Court of Arbitration for Sport (the “CAS Court Office”) informed the Parties that an Order on Legal Aid had been notified to the Appellant. It also invited the Appellant to file his appeal brief within 30 days. The first Order of Legal Aid provided as follows:

– The Appellant was granted legal aid in the amount of CHF 1’500 for his and his counsel, witnesses, experts and interpreter’s travel and accommodation costs;

– The Appellant’s request for assistance for CAS arbitration costs was denied on the basis of the free nature of the disciplinary proceedings at CAS;

– The Appellant’s request for assistance for a pro bono counsel was also denied on the basis that the Rider was already represented by a counsel who was not on the CAS’ list of pro bono counsels; and

– The Appellant’s request for at least the same number of experts as the UCI was denied, on the grounds that Article 6 of the Guidelines on Legal Aid before the CAS does not include the payment of the fees of experts hired by the parties.

34. By email dated 3 February 2019, the Appellant asked for his Request for Legal Aid to be reconsidered. The Appellant further added that should the CAS refuse to reconsider his Request on Legal Aid, he would cancel the arbitral clause due to a fundamental error and his being deceived by the UCI about the fairness of the CAS proceedings and that he would turn to the state courts.

35. On 4 February 2019, the CAS Court Office acknowledged receipt of the Appellant’s request for reconsideration of his Request for Legal Aid and advised the Appellant that his request had been submitted to the ICAS President.

36. By email dated 5 February 2019, the Respondent requested to be provided with a copy of the ICAS Order on Legal Aid of 25 January 2019.

37. On 6 February 2019, the CAS Court Office acknowledged receipt of Respondent’s request for the ICAS Order, and advised the Respondent that legal aid procedures are confidential.

38. On 7 February 2019, the Appellant informed ICAS that “in the lack of any remuneration from the ICAS, Thomas Wehrli’s mandate is at the moment resting. However, he will immediately resume his work

as my lawyer once the ICAS has granted proper legal aid or once I have taken my decision to turn to state courts”.

39. On 18 February 2019, in an email addressed directly to the Respondent, the Appellant declared that he annulled the CAS arbitration clause for various reasons, including inter alia the inability to defend himself properly without sufficient legal aid and lack of consent to CAS arbitration.

40. On the same date, the Respondent forwarded the email to the CAS Court Office and requested that the latter asked the Appellant to confirm his withdrawal from the proceedings.

41. The Appellant then informed the CAS Court Office that he “upheld all [his] challenges” and explained that he would annul the arbitration clause if he were not granted legal aid. The CAS Court Office immediately acknowledged receipt of the Appellant’s correspondence and advised the Appellant that his request for reconsideration of the Order on Legal Aid was being reviewed by the ICAS Board. The CAS Court Office thus invited the Appellant to clarify his intention to “annul the arbitration clause(s) which foresee the CAS as dispute resolution mechanism” by 21 February 2019.

42. By email dated 21 February 2019, the Appellant informed the CAS Court Office that he was not withdrawing his appeal and suggested that the CAS was biased in favor of the UCI. On the same day, the CAS Court Office acknowledged receipt of the Appellant’s email and rejected the Appellant’s allegations of any potential bias on its part in favor of the UCI.

43. By email dated 25 February 2019, the Appellant indicated to the CAS Court Office that his request for reconsideration of Legal Aid had been denied and that, in the absence of any legal representation, he had no choice but to declare that his Statement of Appeal of 14 December 2018 be considered as his appeal brief. In this email, the Appellant further clarified that he was not withdrawing his appeal.

44. On 25 February 2019, the CAS Court Office acknowledged receipt of the Appellant’s email of the same day and duly noted that the Statement of Appeal was to be considered as the Appellant’s appeal brief. In the same letter, the CAS Court Office invited the Respondent, pursuant to Article R55 of the CAS Code, to submit its Answer within 20 days from receipt of the letter.

45. On 1 March 2019, the Respondent requested that its deadline to file its Answer be suspended until a decision from the CAS on the UCI’s request to be informed about all factual circumstances surrounding the Appellant’s jurisdictional challenge is decided. In this light, the Respondent requested the CAS to proceed with the appointment of the Panel without delay so that it could formally submit its document production requests and be provided with (i) a copy of the Appellant’s request(s) for legal aid; and (ii) the ICAS decision(s) in this respect.

46. On 4 March 2019, in a second Order on Legal Aid, the ICAS reconsidered the Appellant’s request and granted him the assistance of a pro bono counsel.

D. The appointment of a pro bono counsel, the request to submit a revised Appeal Brief,

the numerous delays and requests for extensions of the Parties

47. By email of 5 March 2019, the Respondent asked again for a suspension of the deadline to file its Answer.

48. On 6 March 2019, the CAS Court Office invited the Appellant to comment on the Respondent’s request for a suspension by 8 March 2019.

49. On 8 March 2019, the Appellant objected to the Respondent’s request for a suspension to file its Answer, and did so again on 19 March 2019.

50. The Respondent’s request was nonetheless granted by the Panel on 20 March 2019, until 26 March 2019. Thereafter, due to the Parties’ respective requests for production of documents and response thereto, this deadline was suspended and postponed several times, see §95 hereinafter, until 2 December 2019.

51. By email dated 10 April 2019, the Appellant informed the CAS Court Office that he had instructed Mr. Yasin Patel of Church Court Chambers as his pro bono counsel and requested the opportunity to submit a full appeal brief due to exceptional circumstances.

52. By email dated 16 April 2019, the Respondent objected to the Appellant’s request to submit a full appeal brief and requested the Panel to invite the Appellant to clarify his position on jurisdiction.

53. On 23 April 2019, the Panel granted the Appellant the opportunity to produce a full appeal brief by 8 May 2019 and requested him to clarify his position on jurisdiction within said brief.

54. On 24 April 2019, the Appellant requested an extension of the deadline to submit his appeal brief.

55. On 26 April 2019, the Respondent objected to the Appellant’s request for an extension of the deadline to file his appeal brief.

56. On 6 May 2019, the Panel inquired as to the Appellant missing the deadline for response to the Respondent’s document requests, and clarification of his representation in these proceedings, and requested answers on these matters by 9 May 2019.

57. On 7 May 2019, due to these pending questions and given the continuing issues over document production, the Panel suspended until further notice the Appellant’s deadline to file the appeal brief.

58. On 9 May 2019, the Appellant provided his answers to the Panel’s questions. By email dated 14 May 2019, the Panel (i) noted that the Appellant was represented by Mr. Yasin Patel appointed as pro bono counsel from the ICAS list, (ii) granted the Appellant (a) a new deadline to comment on the Respondent’s request for documents, within three days; and (b) a 10-day extension of the deadline to file his appeal brief.

59. On 17 May 2019, the Appellant requested a suspension of the deadline to file his appeal brief until the decision on his request for production of documents was made.

60. By email from his personal account dated 19 June 2019, the Appellant expressed his concerns about the case, criticized his pro bono counsel, Mr. Yasin Patel, and requested to be granted funds to re-hire his former counsel. On the same day, the CAS Court Office invited the Appellant to clarify whether he was still represented by Mr. Yasin Patel.

61. By email from his personal account dated 21 June 2019, the Appellant asked that its last email be only forwarded to the Panel and the ICAS and not to the UCI or Mr. Yasin Patel. He also confirmed that Mr. Yasin Patel was still acting as his counsel in these proceedings.

E. The Parties’ Document Production Requests

1. Procedural Chronology of the Appellant’s and the Respondent’s respective Document Production Requests

62. Following the document production request in the Statement of Appeal, by way of which the Appellant requested the Respondent to produce a number of documents, and after the constitution of the Panel, on 20 March 2019, the Respondent also submitted a request for document production directed to the Appellant. It requested the Appellant to disclose (i) any request for legal aid in relation with the present case; (ii) any supporting documentation for this request for legal aid; (iii) any further correspondence between the Appellant and the CAS or ICAS; and (iv) all ICAS orders on legal aid.

63. On 24 April 2019, the CAS Court Office noted that the Appellant did not provide its position on the Respondent’s request for document production within the due time limit.

64. By email dated 26 April 2019, the Appellant then requested an extension of his deadline to comment on the Respondent’s request for documents.

65. On 30 April 2019, the Respondent objected to the Appellant’s request for an extension of his deadline to comment on the Respondent’s request for documents.

66. On 6 May 2019, the Panel submitted 5 questions to the Appellant regarding his request for an extension of time limit, the missing of the deadline on the Respondent’s document requests, and his representation in these proceedings, and requested answers by 9 May 2019. This was answered by the Appellant on said deadline (see §58 supra). By letter of 14 May 2019, the Panel granted 3 days to the Appellant with respect to the Respondent’s request for the production of documents.

67. On 17 May 2019, the Appellant submitted such comments together with the following document production request: (i) all documents outlined and mentioned in the Appeal Statement and requested by him; (ii) all expert material in the UCI’s possession; (iii) all expert reports, testing results, briefs and instructions, summary reports, interim reports, samples, conclusions and any other such documentation that had either materialized from, been

produced by or used by any or all experts used by UCI; (iv) a list of all exhibits used by experts or produced by experts; and (v) all documents and information that undermined the UCI’s case and/or supported his own case.

68. On 20 May 2019, the CAS Court Office invited the Respondent to comment on the Appellant’s request for documentation and suspension of the deadline by 23 May 2019. The Respondent was also granted an extension of the time limit until 27 May 2019 to comment on the Appellant’s document production request.

69. On 27 May 2020, the Respondent submitted his response to the Appellant’s request for document production. In this response, the Respondent noted that the majority of the documents requested by the Appellant were already in his possession or had already been requested and dismissed in the results management process of the case and before the UCI ADT.

70. On the same day, the Parties were advised that the Respondent’s Document Production Request was partially granted by the Majority of the Panel in so far as it concerned the following documents:

i. The Order on Legal Aid dated 25 January 2019,

ii. The Order on Legal Aid dated 4 March 2019;

iii. The Appellant’s requests for reconsideration dated 3 February, 11 March, 2 May and 15 May 2019; and

iv. The ICAS letters of 28 March 2019 and 20 May 2019.

71. The requests relating to additional requests for legal aid and additional supporting documentation were deemed to be moot in the absence of such requests and supporting documentation other than what had been submitted with the Appellant’s Statement of Appeal, while the request regarding all correspondence with the ICAS was rejected but for the abovementioned documents.

72. In the same correspondence, the Parties were informed that the reasons for the Majority of the Panel’s decision would be included in the final award, and are set forth below in subsection II.E.2.

73. By email dated 31 May 2019, the Appellant submitted a request for an extension until 6 June 2019 of the deadline to transmit the requested documentation.

74. On 3 June 2019, the Respondent submitted his comments on the Appellant’s request for an extension of deadline. The Respondent raised doubts as to the purpose of the Appellant’s request. On the same day, the CAS Court Office invited the Appellant to clarify whether he requested an extension of the time limit to produce the documents or whether he only requested the opportunity to comment to Respondent’s letter of 27 May 2019.

75. On 6 June 2019, the Respondent was provided with the requested documents for disclosure. It became then known that, in light of the fact that the Appellant was no longer represented by his former legal counsel, on 4 March 2019, the ICAS granted the Appellant the assistance of a pro bono counsel, Mr. Yasin Patel.

76. By email dated 11 June 2019, the Appellant clarified that it requested an extension of the deadline to respond to the UCI’s comments on his request for document production.

77. On 13 June 2019, the Respondent commented on the Appellant’s request for an extension of the deadline. The Respondent noted that the Appellant requested a new deadline for a response that he had not been invited to submit and alleged that the Appellant’s requests were nothing but dilatory tactics.

78. The Panel authorized comments to be filed and on 16 June 2019, the Appellant submitted such comments on the Respondent’s comments on his request for document production.

79. On 9 August 2019, with respect to the Appellant’s requests for document production, the Panel granted the Appellant’s Requests no. 1 (vii), (viii) and (ix), and rejected the Appellant’s Request no. 1 (i), (ii), (iii), (iv), (v), (vi) and the Appellant’s requests no.2. Therefore, the Respondent was invited to produce:

i. The original gel data of the analysis;

ii. The scan of the important lanes of the Appellant’s urine samples at stake in these proceedings; and

iii. The detailed results of all the blood analysis of the Appellant’s blood samples at stake in these proceedings.

80. The reasons supporting the Panel’s decision were set forth in the same correspondence.

81. On 13 August 2019, the Respondent expressed its disagreement with respect to the Panel’s decision on the Appellant’s request for document production. Moreover, the Respondent invited the Panel to conclude that the Appellant was in fact, if not in form, advancing a challenge under Article 3.2.1 of the UCI ADR and requested the Panel inform the World Anti-Doping Agency (“WADA”) of the existence of such challenge. The Respondent nonetheless confirmed that it would abide by the Panel’s order and produce the requested documentation.

82. On 30 August 2019, the Respondent requested an extension of the time limit to produce the requested documentation.

83. On 9 September 2019, the Panel responded to the Respondent’s request to inform WADA of a challenge and informed the Parties that it considered that it had no reason to do so in the absence of any such challenge being expressly made by the Appellant.

84. On 9 September 2019, the Respondent produced the requested documents.

2. Reasons supporting the Majority of the Panel’s decision on the Respondent’s document production request

85. As recorded at §62 above, on 20 March 2019, the Respondent requested the production of the following documents:

- Any request for legal aid in relation to the present proceedings that has not already been provided to the UCI with Mr Cardoso’s Statement of Appeal;

- Any supporting documentation to Mr. Cardoso’s request(s) for Legal Aid that has not already been provided to the UCI with Mr. Cardoso’s Statement of Appeal;

- Any further correspondence between CAS and/or the ICAS and Mr. Cardoso in relation to his request(s) for legal aid and/or the ICAS Order(s) on Legal Aid that has not already been forwarded to the UCI; and

- All ICAS Orders on Legal Aid that have been notified to Mr. Cardoso in relation to these proceedings.

86. The Respondent based its requests on Article R44.3 of the CAS Code, which reads as follows: “A party may request the Panel to order the other party to produce documents in its custody or under its control. The party seeking such production shall demonstrate that such documents are likely to exist and to be relevant”.

87. The Respondent essentially argued that the requested documents were likely to exist, were in the custody or control of the Appellant and that they were clearly relevant as the Appellant’s challenge to the jurisdiction of the CAS was partly based on the absence or insufficiency of the legal aid granted by the ICAS and accordingly that it would not be in a position to defend itself without knowing what had been requested and what had been granted in that respect.

88. In anticipation of the Appellant’s defense, the Respondent underscored that Article 22 of the Legal Aid Guidelines only applied to the CAS Court Office and that, in any event, the Appellant had waived the confidentiality of these documents by submitting a request for legal aid and supporting documents with its Statement of Appeal.

89. On 20 May 2019, the Appellant stated its objections against the Respondent’s requests for the production of documents. The Appellant’s position could be summarized as follows:

i. the procedure for legal aid is confidential and the CAS shall not disclose information related to it to third parties, as per article 22 of the Legal Aid Guidelines; moreover, these documents were submitted by the Appellant under the assumption that the confidentiality clause would apply;

ii. the requested documents are not relevant to decide on the merits of this case, which is an alleged anti-doping violation;

iii. the requested documents are not necessary to respond to the Appellant’s submission on jurisdiction.

90. Having carefully considered the Parties’ respective submissions, the Majority of the Panel decided, based on the criteria set forth in Article 44.3 of the CAS Code, that:

i. the existence and possession by the Appellant of the requested documents is obvious and has not been challenged by the Appellant;

ii. the relevancy of some of the documents requested, in particular the submissions for legal aid to the ICAS in full, as opposed to the ICAS orders only, could be debated; however, the Majority of the Panel noted that Mr. Cardoso disclosed in his Statement of Appeal his full submission for legal aid to the CAS, including supporting documentation; the natural conclusion of this spontaneous submission is that the Appellant himself considered that this information, in that specific degree of detail, is relevant to the present case and the Majority of the Panel agreed with this view;

iii. as to confidentiality, the Majority of the Panel again considered the production made by the Appellant with his Statement of Appeal and concludes that the disclosure made by the Appellant is either an admission that these documents are not confidential or an unambiguous waiver of the confidentiality attached to them; stated it differently, the Majority of the Panel determined that the potential confidentiality of legal aid documents could not be used as a sword and a shield by the Appellant.

91. Accordingly, on 27 May 2019, the Parties were informed of the decision of the Majority of the Panel as follows (emphasis in original):

i. The Respondent’s request for production of “All ICAS Orders on Legal Aid that have been notified to Mr. Cardoso in relation to these proceedings” is granted.

ii. The Respondent’s request for production of “Any further correspondence between CAS and/or the ICAS and Mr. Cardoso in relation to his request(s) for legal aid and/or the ICAS Order(s) on Legal Aid that has not already been forwarded to the UCI” is partially granted. The Appellant’s requests for reconsideration of the Orders on Legal Aid together with the decisions issued by the ICAS on such requests for reconsideration shall be provided to the Respondent. The remaining correspondence between the Appellant and the CAS Court Office shall remain confidential.

iii. The Respondent is advised that the Appellant did not file any other request for legal aid than the initial request for legal aid which was included in the Statement of Appeal. Accordingly, the Respondent’s request for production of “Any request for legal aid in relation to the present proceedings that has not already been provided to the UCI with Mr Cardoso’s Statement of Appeal” is moot.

iv. The Respondent is advised that the Appellant did not file any other supporting documentation than the documents filed with the Statement of Appeal. Accordingly, the Respondent’s request for production of “Any supporting documentation to Mr. Cardoso’s request(s) for Legal Aid that has not already been provided to the UCI with Mr. Cardoso’s Statement of Appeal” is moot”.

F. The filing of the Appellant’s revised Appeal Brief and the Respondent’s Answer

92. On 23 September 2019, following numerous extensions of time which had been granted by the Panel to both Parties due to their respective requests for document production and/or for legal aid and for various other reasons, the Appellant filed his appeal brief (the “Appeal Brief”) and an addendum to the Appeal Brief together with its supporting exhibits.

93. By email dated 4 October 2019, the Respondent brought to the Panel’s attention that various exhibits were missing from the Appeal Brief, which were then submitted by the Appellant on 18 October 2019.

94. On 18 November 2019, the Respondent requested an extension of the time limit to file its Answer, to which the Appellant objected on 21 November 2019.

95. On 29 November 2019, the Panel granted the Respondent an extension of the deadline to file its Answer until 2 December 2019.

96. On 2 December 2019, the Respondent filed its answer to the Appeal Brief (the “Answer”) together with the supporting exhibits.

G. The Hearing and the decision to exclude expert’s notes submitted during the hearing

97. On 9 December 2019, the Appellant requested that a hearing be held.

98. On 20 December 2019, the CAS Court Office advised the Parties that the Panel was available for the hearing on 24 February 2019.

99. On 2 February 2020, the Panel granted the Appellant’s request for a public hearing.

100. The hearing took place on 24 February 2020 at the Court of Arbitration for Sport, Avenue de Beaumont 2, 1012 Lausanne, Switzerland. In addition to the Panel and Ms Delphine Deschenaux-Rochat, Counsel to the CAS, the following persons attended the hearing:

a) For the Appellant:

• Mr. André Cardoso (via videoconference);

• His counsel Mr. Yasin Patel;

• Dr. Eric Boye (via videoconference);

• Dr. de Boer.

b) For the Respondent:

• Its counsels Mr. Rigozzi and Ms. Quinn;

• Dr. Gunter Gmeiner;

• Dr. Hugues Henry;

• Dr. Martial Saugy;

- Dr. Tiia Kuuranne.

101. No objection was made to the composition of the Panel at the outset of the hearing and no criticisms as to its fairness at its conclusion.

102. During the hearing, Dr. Boye presented his oral expert testimony, during which he mentioned the possibility that the A-sample has become degraded since it was stored for about two days in an unknown temperature and asserted that this theory was supported by the fact that the scan he undertook showed a faded line higher up in the gel. Since no evidence to this effect had been previously produced, the Panel inquired as to whether Dr. Boye had undertaken his own digital scanning and Dr. Boye confirmed he had done so. The Respondent contended that this digital scan constituted new evidence. The Respondent further added that Dr. Boye had had ample to address the Respondent’s experts’ arguments and did not do so at the appropriate stage. Thus, the Respondent objected as to having this new evidence on the record as it was being submitted contrary to CAS rules and, as such, should be disregarded by the Panel.

103. After hearing the Appellant’s response to the Respondent’s objection, the Panel ruled that the oral evidence offered by Dr. Boye would be admitted but that no further fresh evidence would be accepted in the proceedings. Accordingly, the notes of Dr. Boye supporting his oral testimony sent to the Panel during the hearing, would be disregarded, as submitted too late according to the CAS Code and in disrespect of a principle of adversarial arbitration.

104. At the end of the hearing, the Panel invited the Appellant and the Respondent to submit in writing any comments in rebuttal to the other side’s closing statement. On 5 March 2020, the Parties filed their Rebuttal submissions.

H. Post-hearing events

105. On 18 May 2020, the Panel asked the Parties to address in written submissions the following questions:

“1. Could the Parties confirm that the WADC International Standard for Laboratories (WADC ISL) of June 2016 apply to this case, as opposed to the WADC ISL of November 2019?

2. Could the Parties address the content of Article 5.2.4.3.2.3 of the WADC ISL of 2016, which provides that “If the B-Sample confirmation proves negative the entire test shall be considered negative” and the consequences that could be drawn as to the A-Sample, with specific respect to any case law or commentary on how this standard has been interpreted? The same question applies with respect to Article 5.2.4.3.2.10, which states that “If the “B” Sample confirmation proves negative, the Sample shall be considered negative and the Testing Authority, WADA and the International Federation notified of the new analytical finding”.

3. Could the Parties specifically explain the relationship between these two WADC ISL provisions and Article 2.2 UCI ADR.

4. Could the Parties comment the other sources referred to by the Panel, namely the WADA Athlete Reference Guide and the two sources in German enclosed to the present letter?

5. Could the Parties provide the Panel with their views on the hierarchy of norms in case of any inconsistency between the WADC ISL and the UCI ADR (or the WADA Code)?

6. Could the Parties provide the Panel with their views as to what significance the B Sample has in the procedure of taking evidence where a sportsperson has been charged with an ADRV, and as to whether a charge under Article 2.2 can ever be made good in the absence of a valid B Sample?”

106. On 11 June 2020, the Parties filed their respective answers to the Panel’s questions.

107. On 18 June 2020, the President of the Panel made one additional disclosure, which was sent to the Parties on the same day. No challenge was filed within the 7-day period contemplated in the Rules.

V. JURISDICTION — A. Applicable Rules

229. According to Article R47 of the CAS Code:

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

230. Article 13.1 and 13.2 of the UCI ADR provide as follows:

“13.1 Decisions Subject to Appeal

Decisions made under the Code or rules adopted pursuant to the Code may be appealed as set forth below in Articles 13.2 through 13.4 or as otherwise provided in these Anti-Doping Rules. […]

13.2 Appeals from Decisions Regarding Anti-Doping Rule Violations, Consequences, Provisional Suspensions, Recognition of Decisions and Jurisdiction

• a decision that an anti-doping rule violation was committed,

• a decision imposing Consequences or not imposing Consequences for an anti-doping rule violation, […] may be appealed exclusively as provided in this Article 13.2.

13.2.1 Appeals Involving International-Level Riders or International Events In cases arising from participation in an International Event or in cases involving International-Level Riders, the decision may be appealed exclusively to CAS”.

231. Subject only to the Appellant’s objections, discussed below, these provisions on their clear language confer jurisdiction upon the Panel to determine this appeal

B. The Appellant’s objections to the proceedings

232. In his various correspondence, written submissions and at the hearing, the Appellant contended that he was denied legal aid in breach of the principle of equality of arms, which is a sub-component of Article 6 ECHR and resulted in the Appellant being deprived of his right to have a fair hearing. Moreover, the Appellant complained that the CAS system overall lacks of integrity and is dominated by ICAS, which is controlled by sport federations such as the

UCI and is subject to rules chosen by the sport federations, thereby being inherently biased against athletes.

233. The Respondent’s general position put forward in its written submission and at the hearing is that the Appellant’s so-called “jurisdictional” challenge was “both artificial and self-serving” and constructed in order to create a ground to appeal to the European Court of Human Rights if an appeal to the Swiss Federal Tribunal against any adverse order by this Panel did not succeed.

234. At the outset, this Panel cannot but notice that, technically, the Appellant’s main line of argument seemed to be directed to whether the proceedings before this Panel are “fair proceedings”, which is not itself an argument challenging the Panel’s jurisdiction. The sole exception was the argument based on the Appellant’s unilateral annulment of the arbitration clause for defect of consent, (“the annulment argument”) which was, it accepts, truly a jurisdictional argument. Curiously, it was not elaborated at the hearing but since it had previously been advanced in correspondence – the Panel will address it hereinafter at §254.

235. Indeed, the Panel, at the hearing, asked the Appellant to clarify the basis of his objection to jurisdiction and whether this was properly classified as a jurisdictional as opposed to a fair process issue. The Appellant in response simply restated his position that, by having had his requests for Legal Aid granted to a limited extent or denied (see Legal Aid Orders dated 25 January 2019 and 4 March 2019), the Appellant was not able to have the proper financial support needed for costs relating to CAS proceedings, in terms of having his representative of choice, specifically his counsel, Mr Thomas Wehrli and/or Dr. Thilo Pachmann, his preferred experts for the required scientific experiments, or the opportunity for the Appellant and for his expert witnesses to be physically present at the hearing before the UCI ADT, all of which violated his rights under Article 6 ECHR.

236. The Panel notes here that this objection from the Appellant appears to relate both to the proceedings below before the UCI ADT and to the current proceedings. The Panel need not consider whether the proceeding before the UCI ADT violated Article 6 ECHR if only because the proceedings before this Panel are de novo proceedings pursuant to Article R57 of the CAS Code.

237. With the reservation expressed at above as to the proper classification of the Appellant’s several objections, the Panel will nonetheless address those relating to the present proceedings, namely (i) the CAS appointment process both generally and in relation to Mr. Cardoso, (ii) the application of CAS rules, and (iii) the extent of Mr. Cardoso’s opportunities to defend himself.

238. First, the Panel will analyze whether the CAS appointment system of arbitrators can be regarded as independent and impartial and whether Mr. Cardoso brought sufficient evidence that the way in which arbitrators have been appointed could have an impact on the Panel’s independence and impartiality.

239. As a starting point, the Panel notes that in the ECHR 324 (2018) Mutu and Pechstein v. Switzerland case, the European Court of Human Rights held that, despite the fact that sports organizations may have a preponderant influence on the mechanism of appointing arbitrators to a closed list, such influence does not mean that the CAS system cannot be regarded as independent and impartial. It therefore would, in the Panel’s view, require compelling reasons not to apply this authoritative ruling.

240. At the hearing, the Panel asked the Appellant whether he could distinguish his argument from the argument rejected in the above-cited case. His response was that the link between the selections of the arbitrators from the ICAS closed list and the appointment by the sport federation of those arbitrators present on the list severely undermines the independence of the Panel and that, despite the Pechstein ruling, Mr. Cardoso lacked confidence in the independence of the proceedings and the Panel. In the Panel’s view, this response did not distinguish, but only evinced the Appellant’s dislike of the reasoning in ECHR 324 (2018) Mutu and Pechstein v. Switzerland case.

241. In this context, at the hearing, the Panel also asked whether a challenge against this Panel as a whole had been filed by the Appellant, pursuant to Article R34 of the CAS Code on the basis that there were legitimate doubts as to the independence or impartiality of its members. The Appellant conceded that he had not filed such a collective challenge but only against Mr. Beloff, which had been dismissed by the ICAS, as noted at III.B above.

242. For those reasons the Panel accordingly concludes that the Appellant has not made good any argument as to the lack of independence and impartiality of the Panel.

243. Second, with respect to the application of the CAS rules to the proceedings generally and the mandatory list in particular, the Appellant argued that this violated Article 6 ECHR as the laws of both Portugal and Switzerland should have been applied for the proceedings to be considered fair.

244. At the hearing, the Panel pointed out that in putting forward these complaints, the Appellant was essentially asking for a Panel to be constituted and the case to be conducted in a manner inconsistent with the CAS Code inasmuch as, within the CAS Code, it is not possible for a person not on the mandatory list of arbitrators to be appointed as an arbitrator in a CAS panel or for CAS rules not to apply. When asked about this point, the Appellant replied only that “the CAS Code is certainly not an immovable object” and that an alternative fairer to the athlete could have at least been considered.

245. The Panel must reject this revolutionary argument, which invites it to disregard the very Code under which it was appointed and within whose confines it must operate. Indeed, by agreeing to hold a UCI licence (subject only to the annulment argument to be dealt with later), the Appellant has himself consented to the jurisdiction of the CAS, which necessitates the application of the CAS rules in case of dispute.

246. Third, on the question of the absence of sufficient legal aid, the Panel asked the following pragmatic question at the hearing:

“At least for the legal aid or for the lack of sufficient funding to the Appellant defense, how would that be solved before another forum? Why is this forum particularly inappropriate? You are raising a jurisdictional defense therefore you are planning to go before another forum. How would this difficulty be solved somewhere else?”.

247. No satisfactory answer has been provided by the Appellant in this respect.

248. In this context, the Majority of the Panel also highlights that, until March 2019, the Appellant was represented by Mr Thomas Wehrli of Pachmann AG in Zurich, Switzerland, which prepared and filed the Statement of Appeal. The Appellant has then had the benefit of an experienced pro bono counsel since early March 2019, has had all of his experts testifying, whether in person or by video conference at the hearing and was himself present by video conference for its entire duration.

249. Moreover, the Panel reminds itself that the Appellant was repeatedly granted additional time for his submissions when, in March and April 2019, he raised difficulties in coordinating his efforts with those of his pro bono counsel and notes that the latter did not make any objection as the way the procedure was to be conducted in the accordance with the Procedural Order or to the conduct of the hearing itself.

250. For all those reasons, the Majority of the Panel concludes that the Appellant has failed to establish that the legal aid that was granted to him by the ICAS was insufficient to ensure that his claims were properly presented before this Panel or that any of the same difficulties would not have arisen in any other proceedings, before a different forum. In short, the principle audi alteram partem was fully respected in his case, he had a fair hearing and hence there was no violation of any Article 6 ECHR rights even assuming that Article 6 applies to domestic disciplinary proceedings of a sport’s governing body.

251. As to any jurisdictional objection at stake here, the Panel refers to Article 186(2) of the PILA: “A plea of lack of jurisdiction must be raised prior to any defense on the merits”.

252. Hence, the Panel needs to determine whether Mr. Cardoso’s objection to jurisdiction has been raised in limine litis.

253. The Panel, after review of the Statement of Appeal of 14 December 2019, i.e. the first formal step in Mr. Cardoso’s appeal, concludes that the Appellant did not raise in it any objection to jurisdiction, and hence that it is now too late for the Appellant to mount any challenge to the Panel’s jurisdiction.

254. The second and alternative “annulment” argument raised by the Appellant is his “cancellation” of the arbitration agreement by his letter of 18 February 2019, which he claims removes the basis for the Panel’s jurisdiction.

255. The Panel is of the view - not itself disputed by the Appellant - that Swiss law applies to the question of the consent to the arbitration agreement and that, under Swiss law, to annul an agreement:

– the ground would be a “vice du consentement”;

– the Appellant bears the burden of establishing the existence of such a defect.

256. To discharge that burden, the Appellant states that he was induced by UCI to believe that he would be granted adequate legal aid, and that the legal aid in fact granted was so inadequate as to amount to a fraud by the UCI in causing him to agreeing to submit the present dispute to CAS arbitration.

257. The provision of legal aid for CAS proceedings is set out in guidelines which are published. There is no evidence before the Panel that UCI misrepresented to the Appellant the circumstances in which he could obtain legal aid or the amount thereof, let alone evidence that would support a serious allegation of fraud. If the Appellant was in error about the legal aid he might receive for CAS proceedings, it was his own error. The Panel rejects the Appellant’s annulment argument on the basis that the “vice du consentement”, a necessary basis for annulment under the applicable Swiss law has not been established by him.

258. The Panel therefore rejects the Appellant’s argument regarding the overall fairness of the CAS proceeding and CAS rules and that it has jurisdiction over the appeal.

VI. ADMISSIBILITY

259. Pursuant to Article 13.2.5.1 of the UCI ADR: “Unless otherwise specified in these rules, appeals under Article 13.2.1 and 13.2.2 from decisions made by the UCI Anti-Doping Tribunal or UCI Disciplinary Commission shall be filed before the CAS within 1 (one) month from the day the appealing party receives notice of the decision appealed”.

260. The Appealed Decision was handed down on 16 November 2018. The Statement of Appeals as filed on 14 December 2018, i.e. within the one-month time limit cited above. It complies with all the other requirements set forth by Article R48 of the CAS Code. The Respondent did not contest the admissibility of the appeal.

261. The Panel therefore finds the appeal admissible.

VII. APPLICABLE LAW

262. Article R58 of the CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to 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 that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

263. This provision is in line with Article 187(1) of the PILA, which, in its English translation, states as follows: “The arbitral tribunal shall rule according to the rules of law chosen by the parties or, in the absence of such choice, according to the law with which the action is most closely connected”.

264. Based on the above and considering that the UCI ADT, i.e. the sports-related body which issued the Appealed Decision within the meaning of Article R58 of the CAS Code, has applied the UCI ADR in adjudicating the present case, the Panel will decide this dispute in accordance with the UCI ADR. To the extent necessary, the Panel will subsidiarily apply Swiss law, the law of the country in which the UCI is domiciled.

VIII. MERITS

265. The Panel will commence by stating the Relevant Articles of the UCI ADR at stake and the applicable standards (A.) and will subsequently convey its Analysis in the present case (B.).

A. Relevant Articles of the UCI ADR at stake and applicable standards

266. Article 3.1 of the UCI ADR expressly states that:

“The UCI shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the UCI has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt. Where these Anti-Doping Rules place the burden of proof upon the Rider or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability”.

267. Accordingly, the UCI bears the burden of proving the ADRV. In this respect, Articles 2.1 of the UCI ADR set out what is required in terms of proving an ADRV of “Presence”:

“2.1 Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample

2.1.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1.

2.1.2 Sufficient proof of an anti-doping rule violation under Article 2.1 is established by any of the following: presence of a Prohibited Substance or its Metabolites or Markers in the Athlete’s A Sample where the Athlete waives analysis of the B Sample and the B Sample is not analyzed; or, where the Athlete’s B Sample is analyzed and the analysis of the Athlete’s B Sample confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the Athlete’s A Sample; or, where the Athlete’s B Sample is split into two bottles and the analysis of the second bottle confirms the presence of the Prohibited Substance or its Metabolites or Markers found in the first bottle.

2.1.3 Excepting those substances for which a quantitative threshold is specifically identified in the prohibited List, the presence of any quantity of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample shall constitute an anti-doping rule violation.

2.1.4 As an exception to the general rule of Article 2.1, the Prohibited List or International Standards may establish special criteria for the evaluation of Prohibited Substances that can also be produced endogenously”

268. In this respect also Article 2.2 of UCI ADR sets out what is required in terms of proving an ADRV of “Use”:

“2.2.1 It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body and that no Prohibited Method is used. Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation for Use of a Prohibited Substance or a Prohibited Method.

2.2.2 The success or failure of the Use or Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be used for an anti-doping rule violation to be committed”.

269. The comment to Article 2.2 of UCI ADR expressly states that:

“It has always been the case that Use or Attempted Use of a Prohibited Substance or Prohibited Method may be established by any reliable means. As noted in the Comment to Article 3.2, unlike the proof required to establish an anti-doping rule violation under Article 2.1, Use or Attempted Use may also be established by other reliable means such as admissions by the Rider, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, including data collected as part of the Rider Biological Passport, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Article 2.1. For example, Use may be established based upon reliable analytical data from the analysis of an A Sample (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the Anti-Doping Organization provides a satisfactory explanation for the lack of confirmation in the other Sample” (emphasis added).

270. Article 3.2 provides that “Facts related to anti-doping rule violations may be established by any reliable means, including admissions”. The comments of this Article provide:

“[Comment to Article 3.2: For example, the UCI may establish an anti-doping rule violation under Article 2.2 based on the Rider’s admissions, the credible testimony of third Persons, reliable documentary evidence, reliable analytical data from either an A or B Sample as provided in the Comments to Article 2.2, or conclusions drawn from the profile of a series of the Rider’s blood or urine Samples, such as data from the Athlete Biological Passport]”.

271. The Appellant did not dispute that these articles were the articles applicable to his case, but rather, as appears below, their interpretation and whether pursuant to their correct interpretation, the UCI has established an ADRV to the comfortable satisfaction of the Panel, on the facts of the case.

B. Analysis of the Panel

272. The Panel must determine whether the UCI has established that the Appellant committed an ADRV within the meaning of Articles 2.1 or 2.2 of the UCI ADR. The Parties’ respective positions including in their post hearing briefs have been set out above in detail supra at §109- 160 and 161-228.

273. In short, the Appellant’s position is that an ADRV on the basis of the analysis of urine is exclusively governed by Article 2.1 of the UCI ADR, which concerns the presence of a Prohibited Substance in an athlete’s sample and that, on the facts of the case, the conditions set forth in Article.2.1 to conclude to an ADRV are not satisfied. The Appellant also denies that the requirements of Article 2.2 UCI ADR (even if applicable, quod non) are met.

274. The Respondent’s position is that the UCI ADR expressly provides for an ADRV for use, which is based solely on the analytical data of the analysis of the A-sample governed by Article 2.2 of the UCI ADR, and that, on the facts of the case, Article 2.2 is satisfied.

1. Shall the ADRV be analyzed under Article 2.1 or 2.2 of UCI ADR?

275. At the outset, the Panel notes that (i) the UCI ADR are derived from the WADC so that CAS jurisprudence on the WADC or other decisions also derived therefrom are relevant; (ii) both instruments differentiate, deliberately, between presence cases and use cases in their provisions (see CAS 2015/A/4059 §99-102) and (iii) while not infrequently responsible bodies may bring charges of an ADRV under both provisions, it does not follow that a charge cannot be made good under one, but not the other.

276. The Panel concludes, after review of the Respondent’s Answer that was confirmed at the hearing and in post hearing briefs, that UCI has unambiguously brought a case for Use but not a Presence case. It follows, in the Panel’s view, that the Appellant’s argument that “the analysis of urine samples is conclusively regulated at Article 2.1 of the UCI ADR” must be dismissed.

2. The Athlete’s ADRV under Article 2.2 UCI ADR

277. The Appellant’s threshold argument is that the absence of confirmation of the presence of a prohibited substance in the A-sample by analysis of the B-sample itself disqualifies reliance on the analysis of the A-sample alone. The argument is founded on what is asserted to be the mandatory provisions of the ISL, which, according to the Appellant, provide that the absence of confirmation of the A-sample by the B-sample invalidates the entire test of the Athlete’s samples, both A and B.

278. If that argument were correct, it would be dispositive in favour of the Appellant. The Majority of the Panel, however, rejects the Appellant’s argument for the reasons set out below.

279. The Majority of the Panel prefers to start its discussion by considering the provisions of the WADC, as transposed into the UCI ADR in strictly identical terms, before turning to the provisions of the ISL. For that purpose it makes the following points.

a) First, there is no indication in the language of Article 2.2 of the UCI ADR that confirmation of the presence of a prohibited substance in the A sample by analysis of the B-sample is essential in a charge of ‘Use’ rather than of ‘Presence’ where, the Panel recognizes, the express position in Article 2.1 of the UCI ADR is that such confirmation is required. The Appellant’s argument blurs the boundary between the two distinct means (“Presence” and “Use”) of establishing an ADRV. Proof of such confirmation would, of course, be sufficient proof of reliable means; non sequitur that it is necessary.

b) Second, in the Panel’s view, that confirmation of the presence of a prohibited substance in the A sample by analysis of the B sample is not required to sustain a charge of use is supported by the comment to Article 2.2, which, (i) indicates that such a charge may be established by ‘any reliable means’ and (ii) expressly states “Use may be established based upon the reliable analytical data from the analysis of an A Sample” (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the Anti-Doping Organization provides a satisfactory explanation for the lack of confirmation in the other Sample” (emphasis added).

c) Third, Article 24.2 provides that “The comments annotating various provisions of these Anti-Doping Rules shall be used to interpret these Anti-Doping Rules”; in CAS 2009/A/1912 & 1913 (§36), the Panel “observes that the official comments to the anti-doping rules are very valuable interpretative tools, in the sense that they put forward an authoritative explanation and an authentic construction of the commented rules, even if they are not rules per se”. The present Panel accepts that if there were any inconsistency between the text of the rules itself and the comment thereon, in principle primacy would be given to the text. However, no such inconsistency has been detected between the text and the comment in respect of Article 2.2.

d) Fourth, none of the case law cited by the Appellant is to contrary effect; three of the four cases cited concern an ADRV of “Presence”, and not “Use”. In the other CAS 2015/A/3977 case where an ADRV was discussed in very different factual circumstances under Article 2.2 of the UCI ADR the Panel observed that at §174, the decision noted that “While there may well be cases where analytical evidence which does not meet the criteria to support a Presence Violation case can be an important ingredient in establishing a Use Violation case, there must be additional supporting evidence rather than mere speculation”. This dictum, albeit obiter, supports the Majority of the Panel’s view that a valid B sample is not a sine qua non of a sustainable charge under Article 2.2.

e) Fifth, the Appellant’s submission that UCI cannot rely upon the parenthesis in the commentary to Article.2.2 i.e. (“without confirmation from an analysis of the B sample”) because that only applies if no B sample had been tested and not where, as is indisputably the case here, the Appellant’s B-sample had been tested. The flaw of the Appellant’s construction is that it requires reading in to the parenthesis words which are simply not there. The provision in which the parenthesis appears is clear both in its intent and in its effect. Where the analysis of the A sample provides reliable analytical data to establish the use, there is no need for confirmation by a B sample assuming that the lack of confirmation is sufficiently explained by the Anti Doping Organization.

280. The question then posed is whether, if the provisions of the ISL contradict the provisions of the WADC (an issue which the Panel will discuss later), which would take precedence. The Appellant argues that it must be the ISL. He points to Article 6.4 of the UCI ADR which provides, the “International Standard for Laboratories, and related Technical Documents, are integral part of these anti-doping rules” and the self-description of the ISL in its opening words as “a mandatory international standard”. The Majority of the Panel considers that the Appellant’s argument inverts the hierarchy of the two documents.

281. The Majority of the Panel accepts the following description of the hierarchy of norms in sports arbitration:

“In principle, sports federations can freely establish their own provisions (cf. ZEN-RUFFINEN, Droit du Sport, 2002, marg. no. 161). However, there are limits to this autonomy. In particular the relevant organs when creating new rules and regulations are bound by the limits imposed on them by higher ranking norms, in particular the association’s statutes. This follows from the principle of legality (“Le principe de la légalité implique l’exigence de la conformité aux statuts des textes réglementaires inférieurs et des décisions des organes sociaux”, cf. BADDELEY M., L’association sportive face au droit, Les limites de son autonomie, 1994, p. 208). According to this principle regulations of a lower level may complement and concretize higher ranking provision[s], but not amend nor contradict or change them. This principle is also well established in CAS jurisprudence (cf. CAS 2006/A/1181, no. 8.2.2; CAS 2006/A/1125, no. 6.18; 2004/A/794, no. 10.4.15)” (emphasis added).

282. The introduction to the WADC itself states, inter alia,

“The Code The code is the fundamental and universal document upon which the World Anti- Doping Program in sport is based.

The World Anti-Doping Program The World Anti-Doping Program encompasses all of the elements needed in order to ensure optimal harmonization and best practice in international and national anti-doping programs. The main elements are: Level 1: The Code Level 2: International Standards Level 3: Models of Best Practice and Guidelines” (emphasis in original).

283. The Majority of the Panel therefore concludes that the WADC is the primary, the ISL the secondary document, and that to allow any provision of the latter to trump a provision of the former would be impermissibly to allow the tail to wag the dog. Furthermore, if possible, the provisions of each should be read in harmony. While the UCI ADR did not restate this hierarchy, the Panel deems it sufficient that the UCI ADR refers in its “Introduction and Scope” to the WADC (Preface A) and to the World Anti-Doping Program (Section E entitled “Documents adopted by the UCI in connection with these anti-doping rules”) to consider that the above hierarchy of norms is incorporated and must be respected when interpreting the UCI ADR.

284. Finally, the Majority of the Panel sees force in UCI’s argument that the ISL is designed to regulate the relationship of WADA and its laboratories rather than of – in a cycling case – the UCI and its riders (see Part 1 Article 1.0 of the 2016 Edition so describing its “main purpose”), thereby reinforcing the need for complying with the intended prevalence of certain norms over others.

285. The Majority of the Panel accepts that the ISL, which the UCI has adopted (see Part 14 of the UCI Cycling Regulations), is not a model of clarity but, for reasons which it sets out below, cannot find that it assists the Appellant’s case.

286. Article 5.2.4.3.2.3 of the ISL on which the Appellant relies contains the sentence “If the B- Sample confirmation proves negative, the entire test shall be considered negative”. The Appellant submits, as noted above, that the reference to the “entire test” (hereinafter referred to as the “key phrase”) is a reference to the test of both samples. In the Panel’s view, to evaluate that submission, it is necessary to consider the terms and the context in which the key phrase occurs. It sets this out (so far as material) below.

“5.2.4.2 Urine Initial Testing Procedure

The Initial Testing Procedure(s) shall be documented, as part of the Sample (or Sample batch) record, each time it is conducted. […]

5.2.4.2.1 Unless otherwise approved by WADA after consultation with a Testing Authority, the Initial Testing Procedure(s) shall be capable of detecting the Prohibited Substance(s) or Metabolite(s) of Prohibited Substance(s), or Marker(s) of the Use of a Prohibited Substance or Prohibited Method for all substances covered by the Prohibited List for which there is a method that is Fit-for-purpose. […]

5.2.4.2.2 The Initial Testing Procedure shall be performed with a Fit-for-purpose method for the Prohibited Substance or Prohibited Method […]

5.2.4.2.5 Irregularities in the Initial Testing Procedure(s) shall not invalidate an Adverse Analytical Finding when the Confirmation Procedure adequately compensates for such irregularities. […]

5.2.4.3 Urine Confirmation Procedure

Confirmation Procedures shall be documented, as part of the Sample (or Sample batch) record. The objective of the Confirmation Procedure is to accumulate additional information to support the reporting of an Adverse Analytical Finding. The Confirmation Procedure shall have equal or greater selectivity than the Initial Testing Procedure.

5.2.4.3.1 “A” Sample Confirmation

5.2.4.3.1.1 A Presumptive Adverse Analytical Finding from an Initial Testing Procedure of a Prohibited Substance, Metabolite(s) of a Prohibited Substance, or Marker(s) of the Use of a Prohibited Substance or Prohibited Method shall be confirmed with an “A” Confirmation Procedure using an additional Aliquot(s) taken from the original “A” Sample. […]

5.2.4.3.1.4 The Laboratory shall have a policy to define those circumstances where the Confirmation Procedure for an “A” Sample may be repeated (e.g., batch quality control failure) and the first test result shall be nullified. Each repeat confirmation shall be documented and be performed on a new Aliquot of the “A” Sample and new quality control samples. […]

5.2.4.3.2 “B” Sample Confirmation

5.2.4.3.2.1 The “B” Sample analysis should occur as soon as possible and should take place no later than seven working days starting the first working day following notification of an “A” Sample Adverse Analytical Finding by the Laboratory, unless the Laboratory is informed that the Athlete has waived his/her right to the “B” confirmation analysis and therefore accepts the findings of the “A” confirmation analysis.

5.2.4.3.2.2 The “B” Sample confirmation shall be performed in the same Laboratory as the “A” Sample confirmation.

5.2.4.3.2.3 If the “B” Sample confirmation proves negative, the entire test shall be considered negative. […]

5.2.4.3.2.10 If the “B” Sample confirmation proves negative, the Sample shall be considered negative and the Testing Authority, WADA and the International Federation notified of the new analytical finding” (emphasis in original).

287. At the outset regarding the language of the relevant sections 5.2.4.3.2.3 and 5.2.4.3.2.10, the Majority of the Panel highlights that, as rightfully raised by the Respondent, the ISL requires the B sample test to be “negative”, whereas, in the present case, the analysis of the B sample resulted into an “atypical finding”.

288. This in itself could suffice to discard the application of the above cited provisions of the ISL in the present circumstances.

289. The Panel however also turns to the other explanations advanced by the Parties to interpret the consequence of a negative B sample confirmation.

290. UCI submits here that the confirmation procedure is only relevant to a “Presence” case and therefore that the “entire test” sentence has no application to a “Use” case. The suggestion takes some colour from Article 5.2.4.3.2.1 which does appear, in its reference to an athlete waiving his/her right to a B sample confirmation analysis, to focus on a “Presence” case rather than a “Use” case.

291. The Panel recognizes the force of the submission that the key phrase refers to the sample provided by the Appellant before its division into ‘A’ and ‘B’ samples (see Article 5.2.4.3 above which uses the word sample in that sense). However, according to the Majority of the Panel, another plausible reading is that the “key phrase” refers to the initial and confirmation test of the B sample alone. This reading takes colour from the following facts:

a) For urine samples, the test of each of the A sample and B sample appears to be composed of two stages: an “Initial Testing Procedure”, followed by a “Confirmation Procedure” (Article 5.2.4.3).

b) The A sample and B sample are thereafter separately dealt with.

c) The reference to the “entire test” (singular) in Article 5.2.4.3.2.3, is located under the rubric of the confirmation procedure for the B sample; accordingly, as a simple matter of language, the “entire test” sentence more naturally refers to the test (singular) of the B sample alone (which includes an initial testing and a confirmation testing) rather than to the tests (plural) of the A sample and the B sample taken together.

d) Article.5.2.4.3.2.3 does not expressly refer to the A sample at all.

e) A similar distinction is drawn in relation to the confirmation procedure for the A sample at 5.2.4.3.1.4, which clearly refers to the A sample only, and not to the B sample at all.

292. The Panel next turns to Article 5.2.4.3.2.10 of the ISL which provides “If the “B” Sample confirmation proves negative, the Sample shall be considered negative and the Testing Authority and the Testing Authority, WADA and the International Federation notified of the new analytical finding”. Again the Panel recognizes the force of the submission that the sample refers to the sample provided by the Appellant before its division into ‘A’ and ‘B’ samples. However again, according to the Majority of the Panel, there is a plausible reading that the “entire test” only concerns the B sample. The sample referred to in the substantive part of the Article, is presumptively the B sample referred to in the introductory provision and this refers to the second test performed on this sample.

293. While recognizing that there is – to put it at its lowest – a serious ambiguity in those two articles, the Panel accordingly determined to turn to others sources and considerations of harmony as well as of hierarchy of norms to ensure that the interpretation of these terms reconciles Article 2.2 of the WADC (read with its commentary) and Article 5.2.4.3.2.3 of the ISL, not least because the ISL itself provides “The following articles of the Code directly address the ISL” setting out, inter alia, Article 2.2 together with the comment thereon. Article 2.2 and the comment thereon are therefore expressly incorporated in the ISL. Such harmonizing construction is available, as explained above (see above at §283).

294. The Panel accepts that the WADA Athlete Reference Guide to the WADC 2015 in, Appendices, page 26, provides that “If the B-Sample does not confirm the analysis of the A-Sample, no further action will be taken and, of course, any Provisional Suspension will be lifted”.

295. As to this, the Panel makes four points:

a) The Guide itself states that “The World Anti-Doping Code sets out rules that you, as an athlete, must follow. The point of this guide is to help you understand the rules. This document is merely a guide. It is no substitute for the language of the Code. To emphasize: the language of the Code is always the primary source. This guide is thus provided purely for the purpose of understanding and is in no

way a binding legal document”; it thus has no legal standing as an interpretative instrument of the WADC;

b) The provision is (rightly or wrongly) as to what will happen, in the circumstances described, not what must happen;

c) The provision can sensibly be read as referring to a “Presence” case, and not to a “Use” case;

d) If, however, it is intended to interpret the Code and to apply to a “Use” case, distinct from a “Presence” case, it is, in the Panel’s respectful view, wrong.

296. The Panel accepts that several German authors appear to prefer the Appellant’s argument (ADOLPHSEN/NOLTE/LEHNER/GERLINGER, Sportrecht in der Praxis 2018 [Sports law in practice 2018], §1546, page 374, providing that “The result of the B-Sample displaces the result of the A-Sample. The opposite result of the A-Sample thus loses its relevance”; also RÖSSNER, Die Bedeutung der B-Probe für den Nachweis eines Dopingvergehens [The significance of the B sample for the proof of a doping rule violation], SpuRt 2/2009, S. 53, 55, stating that “A negative B-Sample eliminates the result of the A-Sample”). These authors consider that the B sample is the binding final evidence that can eliminate the suspicion and the conditional probative value of a positive A sample.

297. As to this, the Majority of the Panel recalls that (i) the views of commentators have of themselves no legal force, although their arguments always demand consideration and (ii) these commentators have adopted an approach based on a negative B sample, which is different from an inconclusive B sample, with which the present case is concerned.

298. The Panel has also borne in mind the contra proferentem rule which would resolve an ambiguity in the regulations i.e. the ISL to the benefit of the athlete against the UCI. If it had to construe Article 5.2.4.3.2.3 in isolation, the Panel could have accepted the Appellant’s interpretation, but this principle remains to be interpreted in light of the norms and their hierarchy between the WADC (UCI ADR) and ISL, as opposed to using for reading provisions in isolation.

299. The Panel appreciates the force of the contention that, to construe the analysis of the A sample as never giving rise to more than a suspicion, either to be upgraded to proof or eliminated depending on the result of the B sample, better respects the rights of the athlete. It accepts that the A sample is necessarily analysed without his or her oversight, whereas the athlete and/or his/her representative shall be authorized to attend the “B” confirmation (Article 5.2.4.3.2.6 of the ISL).

300. However, the choice made by the drafters of the WADC, transposed into the UCI ADR, was different. The language of Article 2.2 of the UCI ADR pulls in a different direction; which is that an ADRV is established as long as, in addition to the analysis of the A sample, there is sufficiently cogent evidence of whatever kind (for example, analytical data, or athlete admission) to support the ADRV. In the Majority of the Panel’s view, those who drafted the WADC made a policy choice by finding ADRV not only in “Presence” cases but also in “Use”

cases with a distinct standard of proof. The Panel itself must respect these choices, as it is an adjudicative, not a legislative body.

301. The Panel notes that where only a “Use” case can be advanced, the UCI has to prove both that: (a) the A sample positive result is reliable; and (b) there is a satisfactory explanation for the lack of confirmation in the B sample and (c) on both issues to the standard of “comfortable satisfaction”, as per Article 3.1 of the UCI ADR.

302. In the view of the Majority of the Panel, the need for the UCI to satisfy those tests adequately protects persons in the Appellant’s position, who will always have the opportunity of a hearing in which he can challenge the Respondent’s case. This is all the more true that the ISL norm itself will require a stricter threshold to discard the A sample that is that the B sample must be negative.

303. Finally, the Panel accepts that there have been cases, such as that of the middle distance runner Bernard Lagat against whom no action was taken where an adverse A sample was not confirmed by an adverse B sample. However, the Majority of the Panel notes that the B sample was actually negative, not atypical, as per the present case, and that it was the choice of a regulator not to bring charges in such circumstances so that this decision does not create any legal precedent.

304. The real question before the Panel on the present appeal is therefore whether the “Use” charge can be upheld “based upon reliable analytical finding data from the analysis of an A Sample (without confirmation from an analysis of a B sample)”.

305. As underscored by the Respondent at §80-83 of their answers to the Panel’s questions dated 11 June 2020, Marjolaine Viret put forward that a negative finding (or rather unconfirmed AAF) in an athlete’s B sample does not, in principle, prohibit an Anti-Doping Organisation from proceeding with an assertion of a Use ADRV:

“The idea of “confirmation” reflects the purpose of the B Sample analysis to show that the A Sample results were scientifically correct. It does not, however, explain exactly what it takes for a confirmation to be recognised as such.

[…]

A clear case of non-confirmation is given where the B Sample is reported negative, in the sense that no Prohibited Substance, and no indication of a Prohibited Method, is detected. The consequence is that no offence can be prosecuted under Art. 2.1. Proceedings might still be initiated under Art. 2.2 for Use of a Prohibited Substance or Method, though establishing an anti-doping rule violation despite a negative B Sample may prove a rather difficult enterprise”.

306. Thus, in the view of the Majority of the Panel, Ms. Viret’s analysis supports the possibility in law of using an A sample alone for the purposes of Article 2.2.

307. However, the Panel considers that this question is essentially a matter of expert evidence, which has been carefully assessed by the Panel below. Generally, the Majority of the Panel found the Respondent’s experts more persuasive than those of the Appellant, who appeared to be sceptical about the generally accepted methodology used to identify exogenous EPO which was a matter beyond the scope of the Panel’s deliberations.

i. Analysis of the A-sample

308. The analysis of the Appellant’s A sample showed the presence of the Prohibited Substance rhEPO (and this was confirmed in the First and Second Seibersdorf Opinions).

309. The Appellant has challenged the reliability of this analysis. Taking the Appellant’s explanations in the order in which they are set out above in the summary of his positions, the Panel finds that:

a) the chronic alcohol consumption scenario was unsupported by any convincing evidence that the Appellant, a professional cyclist, unlikely for that very reason to indulge in such excessive drinking, actually did so; the absence of any excessive consumption of alcohol was also clearly confirmed at the hearing by the Appellant himself, who unambiguously stated that: “About alcohol, it always depends from the culture of the person […] if you are American, if you are Portuguese […] for example in my case drinking wine during dinner is pretty normal […] my father and my grandfather have grapes and […] in September we collected the grape to make wine and I remember since I was a kid that for breakfast we ate meat and drank wine […] I was seven years old or eight or nine. This is about culture and I mean, alcohol is not an illegal substance […] but in 2017 I drank less than before much less, I mean, I still drink when I am at home I always drink wine”.

b) the alleged glycosylation disorder scenario lacked any factual basis, distinct from theoretical support, since there was no evidence in the record that the Appellant had any such disorder as might have led to endogenous production of the EPO;

c) the “accidental” swap scenario was speculative, and again unsupported by anything concrete to support a suspicion of manipulation during the doping control or thereafter by or in the Laboratory; moreover, the Panel recalls that the Respondent was entitled to rely on the presumption of Article 3.2.2 of the UCI ADR [i.e. that the Laboratory conducted sample analysis and custodial procedures in accordance with the International Standard for Laboratories], and notes that it was for the Appellant to rebut this presumption, which he has failed to do. Finally the Panel notes that there were means available to the Appellant, such as DNA analysis, to support its swapping theory but that the Appellant did not explore this option.

d) The lack of confirmation from the blood sample was convincingly discarded in particular, the Second Seibersdorf Opinion, stating that the negative analysis of the Appellant’s serum sample does not impact upon the reliability of the presence of rhEPO in his urine. The Second Seibersdorf Opinion explained that the reason why the athlete’s blood sample did not test positive for recombinant EPO can be traced in the fact that these substances leave

the blood stream earlier but stay detectable in urine: “Urine is considered a reservoir, where excreted substances are collected till urine delivery (micturition). Consequently substances which have left the blood stream via renal elimination are detectable in the urine sample, but might no longer be detectable in the corresponding blood/serum/plasma samples, even if these samples are taken at the same time. An indication of the low concentration of rec. EPO in urine is the low intensity of the rec. EPO band in comparison to the endogenous band. This does not unequivocally prove the final step of elimination, but is compatible with this assumption”.

310. Overall, the Panel was of the view that the Appellant’s experts did not seriously challenge the presence of rhEPO but rather attempted to provide explanations for the AAF, none of which convinced the Panel.

ii. Analysis of the B-sample

311. Regarding the B-sample of the Appellant, the Internal Assessment (as well as the First and Second Seibersdorf Opinions) explained the lack of confirmation of the AAF in the Rider’s B-sample.

312. According to the Internal Assessment, immunopurification and/or degradation of EPO are highly likely reasons for the inconsistence in the analytical result of the two samples:

“General Conclusion

Observed difference between the results obtained from confirmation procedure of the erythropoiesis stimulating agents (ESAs) in A- and B-sample 4121328 can be focused on the observed presence (A-sample) and absence (B-sample) of the characteristic smear, which is expected from rEPO. A single band is clearly visible with a migration slightly above the endogenous EPO band in A- and B-sample 4121328, but as the B-sample 4121328 is missing the characteristic smear expected from recombinant EPO, this evidence has been lost in this B analysis that can only be interpreted as doubtful but not conclusive.

[…] we can conclude that an appropriate and up-to-date SAR-PAGE method has been applied to the analysis of A- and B-sample 4121328. The laboratory staff involved in the analysis is competent, the described procedures have been followed, and correct samples have been analyzed. The overall acceptable performance is verified by the evaluation of the quality control samples (positive and negative) of each analytical batch, and there is no reason to assume that the difference between analysis results could result from technical mistakes, sample mismatch, or non-conformities in analytical process.

Regarding performance of the specific analytical batch, immunopurification was identified as the highest risk for the repeatability of the method. Incomplete yield could theoretically result into to the partial loss of EPOisoforms in the purification and consequently, to lower amount of EPO in the gel (i.e. decreased sensitivity of the method). Enzyme activity and/or physical properties (e.g. high salt content) of the sample were also targeted as potential factors which could result in the degradation of the EPO-isoforms, and lead to minor differences between samples. Taking into account the SG- and pH properties of the A- and B-sample 4121328, high SG value may refer to an excess of salts, and alkaline pH to potential microbial activity.

It is our current opinion that immunopurification and/or degradation of EPO are highly likely phenomena as a source of the inconsistence in analytical result between A- and B-sample 4121328”.

313. The First Seibersdorf Opinion observed that “For the confirmation of the B-sample, the same amount was used as for the A sample (15 mL) and also two negative controls were placed next to the athlete’s sample. While both negative controls were clearly negative and the positive control clearly positive, the smear above the athlete’s sample disappeared. It is clearly visible that the overall band intensity is drastically reduced compared to the A sample, despite an exposure time of 120 sec was used. Most likely, this decrease can be attributed to the relatively high pH of the sample and enzymatic activity, which promoted degradation of the EPO contained in the athlete’s sample including the smear above the band” (emphasis added).

314. The Second Seibersdorf Opinion confirmed the above findings and the Laboratory further explained that the lack of confirmation of the AAF in the Rider’s B-sample is due to degradation of the EPO in the B-sample:

“The most likely cause of the difference is a degradation of the EPO in the B-sample. This holds for the recombinant as well as the endogenous part of the EPO band. Due to the fact that in the A-sample the endogenous form appears to be much more abundant than the recombinant one, a degradation of the total EPO content will most likely lead to a disappearance of the recombinant part, while the endogenous part is still visible.

Two factors constitute evident indicators of a degradation of the EPO content in the B sample:

- The drastic decrease of the signal intensity of the EPO band in the B-sample gel image, although the exposure time of the B-sample gel image was increased from 40 sec to 120 sec compared to the A-sample gel image. Higher band intensity would have been expected by using a longer exposure time.

- The elevated pH, typically found e.g. by microbial activity. […], microbial activity typically causes degradation.

[….]

In the present case […], based on the documentation and evidence that we have reviewed, degradation constitutes a satisfactory explanation for the lack of confirmation in the B sample”.

315. The Panel also traversed the particular arguments raised by the Appellant regarding the Bsample. Specifically, the Panel notes that:

a) the “microbial activity scenario” was discussed by Dr Gmeiner in his oral testimony who said, and the Panel accepts, that “One of the most probable reasons for the difference between the two is the fact that the B sample has to be stored and frozen and that can caused a decrease on the concentration”, rather than that it was the product of exposure to heat; in any event, even if the alleged degradation of the B sample in some way resulted from delay in its analysis, the Panel is unable to see how UCI [was] to blame, considering that it had already proposed two alternative (earlier) dates than the later one chosen, albeit explicably, by the Appellant;

b) as to the “conflict of interest defence”: this grounds, if sustainable, would have to affect every report and opinion of the Laboratory staff relied upon by UCI and, according to the Appellant, all subsequent reports from other experts asked to confirm the Lausanne laboratory finding This would certainly affect the way all WADA accredited laboratories operate; that grave consideration apart, which is not sustained by any evidence from the Appellant applicable to his case but solely in relation to the unrelated premature destruction of Russian samples by the Laboratory, the Panel did not detect any evidence that the Laboratory distorted the results of the samples of an anonymous athlete or otherwise wished to act other than in a proper professional manner, which, the Panel repeats, the WADC and its derivatives assumes it will have done. Moreover, during the hearing, nothing prompted the Panel to suspect that the Laboratory staff would act or had acted in an unethical manner; to the contrary, the testimony of the director of the laboratory, Ms. Kuuranne, was found highly credible by the Panel; this final feature, together with the absence of any countervailing evidence, suffices for the Panel to exclude this “conflict of interest” argument.

316. For all the above reasons the Panel concludes that the Respondent has established the existence of an ADRV under Article 2.2 of the UCI ADR based on the reliable analytical data from the A sample of the Appellant and the UCI experts’ evidence to the comfortable satisfaction of the Panel.

317. In light of this conclusion, the Panel does not need to turn either, whether as a matter of jurisdiction or of the merits, to the question of the damages sought by the Appellant, which has become moot.

iii. Sanction

318. The Appellant has not established that the ADRV, as found by the Panel, was not intentional, therefore the presumptive sanction must be four years pursuant to Article 10.2.1.1 of the UCI ADR.

319. While the debates have heavily focused on the reliability of the A and B samples, the Panel notes that the Appellant has not established, or even sought to establish, the source of the prohibited substance, i.e. how the rhEPO substance has entered his body.

320. Accordingly, his sanction could not be reduced on the basis of “No Fault or Negligence” or “No Significant Fault or Negligence,” which was in any event not argued by him.

321. Regarding the financial consequences of the ADRV, Article 10.10.1.1 of the UCI ADR provides that the imposed fine could be reduced:

“Bearing in mind the seriousness of the offence, the quantum of the fine may be reduced where the circumstances so justify, including: 1. Nature of anti-doping rule violation and circumstances giving rise to it; 2. Timing of the commission of the anti-doping rule violation; 3. Rider or other Person’s financial situation;

4. Cost of living in the Rider or other Person’s place of residence; 5. Rider or other Person’s Cooperation during the proceedings and/or substantial assistance pas er article 10.6.1”.

322. In the present case, the Panel assesses that the fine ordered in the Appealed Decision failed to take into consideration the financial situation of the Appellant, resulting from his provisional suspension and accordingly reduces it by 50%.