Legal issues related to the application of the ABP programme D E S P I N A M A V R O M A T I P H . D . , L L . M C O U R T O F A R B I T R A T I O N F O R S P O R T
Legal Basis: Art. 2.2 WADA Code (WADC) « Use or Attempted Use of a Prohibited Method » Anti-doping rule May be established by violation “any reliable means” « Any reliable means » conclusions other admissions witness documentary drawn from analytical by the Athlete statements evidence longitudinal information profiling
Athlete’s Biological Passport (ABP) Indirect doping detection method Individual electronic record for professional athletes “ Longitudinal profiling ” of biological markers Presence of any prohibited substance! Blood matrix Abnormalities Panel of experts All possible factors are taken into consideration
Abnormal outcome of the ABP Not automatically doping Not a true probability of doping “ How the profile differs from what is expected in clean athletes ”. Doping not the only possible reason in case of abnormal values First: exclude the existence of a pathological condition Review by a panel of experts (possible causes) Experts’ Panel: Specialists (haematologists, endocrinologists Aim: protect the athlete’s right to a qualified review /take all factors into account
Reliability of the ABP and WADA Code CAS 2010/A/2178 : the CAS 2010/A/2235 : ABP method of detection of approved by WADC and IF blood doping is a new transposed it to the IF rules scientific method and CAS Panels respect & can be used even if the apply the rules as they are rules of the WADC do and not as they might have not expressively been or might become. mention it CAS is not called to adjudicate on whether some other or better system of longitudinal profiling could be created
Interpretation of results CAS 2010/A/2174 CAS Panels can evaluate & assess the weight of a (party-appointed) expert opinion submitted to it. Evaluation of the facts Assessment of the correctness and logic of the experts’ conclusions Not a pure referral to the Experts’ opinion CAS 2010/A/2235 “ iudex peritus peritorum ” – “ the judge is the expert on the experts
ABP: Particularities compared to other detection methods ABP: indirect detection method ( ≠ direct methods) No need to establish the presence of a prohibited substance (2.1) ABP: No presumption applies (CAS 2009/A/1912) ABP: IF has to establish the prohibited method and the non-violation of standards & rules BUT: ABP: No obligation of the IF to comply with the ISL!
Particularities related to the longitudinal profiling: Starting point of the time limit to lodge a claim Reason Starting point 1912 • Series of • Upon CAS 2009/A/ • 30-day time tests / determinatio period starts evaluation of n that the on the date the results by ABP of “learning ADO’s constitutes about the Experts sufficient alleged proof of the offence” (rea use of a sonable prohibited suspicion of method the alleged offense)
Athletes’ rights and limitations in the use of the ABP: CAS 2010/A/2174 • Athletes have no right to establish their own ABP and having this analysed by private labs Athletes’ • Athletes cannot be the “controlled” and the obligations “controllers” at the same time. • Athletes could request and check the testing procedure IFs’ obligations • Procedure should follow the required standards • Doping controls should be carried out Doping exclusively by ADOs controls
Right of the athlete to have his B’ sample examined Only in “traditional” anti-doping rule violations in the form of “presence of a prohibited substance” : Analysis of B’ sample is a basic right of the athlete (otherwise the entire procedure is invalidated) Not in cases related to the ABP No need to have A and B sample in order to establish the validity of the procedure
Consent of an athlete to use his sample for different purposes CAS: 2010/A/2174 Use of sample for the ABP and for the detection of EPO CERA Art. 120 UCI ADR, samples are collected and analyzed 1) to detect the presence /use of a p. substance /method, • 2)for profiling parameters in urine/ blood /other matrix, incl DNA (‘athlete passport’) • 3) to detect substances pursuant to the WADA Monitoring Program • 4) for screening purposes No use for another purpose without the Rider’s written consent No need to obtain separate consent for multiple actions
ABP and reason for blood manipulation? Not necessary for UCI (under the UCI ADR) to establish a reason for blood manipulation But (CAS 2010/A/2235): CAS Panels do note possible coincidence of the levels with the Athlete’s racing programme E.g. When abnormal values occur immediately before major events etc.
Independence of experts in cases related to the ABP TAS 2010/A/2178 / TAS 2010/A/2308 “ Experts are not independent since they are paid by UCI. ” CAS Panel: the fact that experts are engaged by UCI is not sufficient to question their independence: Experts only do a prima facie estimate they are engaged anonymously only recommend the actions to be undertaken. CAS 2010/A/2235: “ UCI has nothing to gain from exaggerating the extent to which its sport is troubled by the scourge of doping .”
Alleged irregularities and reliability of results TAS 2010/A/2178 - TAS Art. 3.2.2 WADC: 2010/A/2308 If the Athlete rebuts the presumption by showing that a departure from the Rider contested the ISL occurred which could reliability of the reasonably have caused results - due to a the AAF, then the ADO number of shall have the burden to establish that such irregularities departure did not cause occurred prior and the AAF ” (Art. 3.2.1 of the during the analysis WADC) of samples
Burden of proof in DIRECT Methods (2.1) • Establishment of the ADR violation (prohibited substance (Standard: comfortable satisfaction) ADO • ADO presumed to have respected the procedures • Reverse the presumption – must show that • irregularity in the procedure likely to cause AAF Athlete (Standard: balance of probabilities) • Establish that such irregularity did not cause the AAF (Standard: comfortable satisfaction) ADO
Burden of proof in INDIRECT Methods (2.2) • Establish the ADR violation through the ABP (Standard: comfortable satisfaction) ADO • No presumption that ADO respected the procedures! • Show that there was an irregularity in the procedure likely to cause the violation Athlete • (Standard: balance of probabilities) • Establish that such irregularity did not cause the AAF (Standard: comfortable satisfaction) ADO
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