D E C I S I O N. of 23 April in the following case: Request for the withdrawal of the licence of the UCI World Team Astana ProTeam

Transcription

1 COMMISSION DES LICENCES LICENCE COMMISSION D E C I S I O N of 23 April 2015 in the following case: Request for the withdrawal of the licence of the UCI World Team Astana ProTeam the Licence Commission comprising Mr Pierre Zappelli, President, Mr André Hurter and Mr Paolo Franz, Members, In view of: - the UCI's request for the withdrawal of the licence awarded to the UCI World Team Astana ProTeam; - the response by the UCI World Team Astana ProTeam calling for the request to be rejected; - the hearings of 2 and 23 April 2015 to which the parties, as well as the Institute of Sports Science of the University of Lausanne (ISSUL), made contributions; Whereas: In fact: A. On 17 October 2014, the UCI informed the Licence Commission (hereinafter the Commission) of the occurrence of several cases of doping within the UCI World Team Astana ProTeam. The UCI requested the Commission to examine to what extent the team was respecting the ethics criterion and to take all appropriate measures in accordance with the circumstances. B. On 4 November 2014, the UCI declined to register the UCI World Team Astana ProTeam for 2015 and submitted the dossier to the Licence Commission for a ruling in accordance with the UCI Cycling Regulations.

2 C. As a result of the proceedings before the Commission in November 2014, it transpired that: - the UCI World Team Astana ProTeam (hereinafter the Team or Astana), which holds a UCI WorldTour licence that was granted by the Commission in 2013 for a period of three years until 31 December 2016, experienced two serious cases of doping (EPO) regarding the Team's riders Valentin Iglinski and Maxime Iglinski in September and October 2014; - Iliy Davidenok, a rider for the Astana Continental Team, employed as a stagiaire [trainee] by the Team, was also the subject of proceedings in August 2014 for the use of anabolic steroids; - two further riders from the continental team, Victor Okishev and Artur Fedosseyev, also tested positive for anabolic steroids in May and August 2014; - the Team's representatives accepted the facts as presented by the UCI but maintained that the cases of the riders Davidenok, Okishev and Fedosseyev should not be attributed to the Team as these occurred in the Astana Continental Team; - the Team pleaded in favour of the granting of registration and described preventative and repressive measures taken by the Team to fight against doping, namely participation in the biological passport programme, participation in the "Whereabouts" programme established by the UCI and WADA, as well as membership since 2012 of the Movement for Credible Cycling (MPCC) which lays down additional measures to those imposed by the UCI and WADA; - the Team said that it had adopted internal regulations to better prevent doping: a prohibition of working with doctors outside the Team; the introduction of a dopingfree culture within the Team; access by the Team doctor to a rider's biological passport values and all other relevant information before offering a rider a contract; access by the Team to riders' whereabouts information; reasonable racing schedules for all riders; a support system for riders with regards to information on whereabouts; the introduction of comprehensive medical support for riders, as well as regular medical checks, this in part resorting to the assistance of an external medical consultant. D. On the basis of the measures put in place and those announced by the Team, the UCI thus agreed to grant registration for the 2015 season but requested the Commission to submit this registration to the condition that an audit be ordered from the Institute of Sports Science of the University of Lausanne (ISSUL), and that for 2015, following the example of eight other teams that had made voluntary commitments, the Team should respect the operational requirements for teams scheduled for introduction in E. In its decision of 4 December 2014, the Commission granted registration subject to the condition that the Team would submit to an audit in accordance with the terms and conditions described by ISSUL, and to the operational requirements from 1 January F. In summary, the Commission considered that even if only the cases occurring within the UCI World Team Astana ProTeam were considered, it appeared clear that the organisation of the fight against doping and the management of riders practised by this team to date had been found wanting. It could on the other hand be observed that the Team seemed to have accepted this assessment and that the measures that it had already put in place or was ready to implement were in themselves capable of producing the desired effects. The Commission however considered that it was appropriate to verify 2

3 the actual application of these measures on the ground and to this end an audit would be conducted by ISSUL, an approach that has already been used for other UCI WorldTeams and which seemed to be most suitable for this task. G. The audit report delivered on 10 February 2015 was communicated to the parties on 11 February H. On 26 February 2015, the UCI submitted a request to the Commission seeking the withdrawal of the Team's UCI WorldTour licence. I. In its response of 20 March 2015, the Team called for this request to be rejected. J. The parties, who maintained their conclusions, as well as ISSUL representatives, were heard on 2 April K. On 7 April 2015, the Team requested various items of evidence to be considered. L. On 23 April 2015, the Commission again heard the parties, as well as ISSUL, with a view to determining the next step of the proceedings. Whereas: In law: 1. Under the terms of Articles and of the UCI Cycling Regulations (hereinafter UCIR), the Commission decides on the award of licences and the granting of registration to a UCI WorldTeam if this has been rejected by the UCI. 2. In order to be granted registration, UCI WorldTeams must satisfy all the relevant criteria, namely sporting value, respect of the ethical rules, financial stability and funding and a professional approach to administration (Arts and of UCIR). 3. The UCI considers that the ethical criterion has not been respected by Astana. It thus requests, on the basis of Article of UCIR, that the Team's licence should be withdrawn. Only paragraphs 1, 2, 4 and 6 of the terms of this provision have been invoked by the UCI: "The Licence Commission may withdraw the licence in the following cases: 1 if the information taken into account in granting the licence or the registration of the UCI WorldTeam was erroneous and the commission considers that the actual situation did not justify the grant of a licence or registration; 2 if the information taken into account in granting the licence or the registration of the UCI WorldTeam has changed such that the issue conditions are no longer fulfilled, or the commission considers that the new situation does not justify the issue of a licence or registration; 3. (...) 4. if a UCI WorldTeam, as a whole, does not meet or no longer meets all the conditions set out in the present chapter; 5. ( ) 6. in the event of acts committed by or imputable to the UCI WorldTeam or one or more of its members as a result of which the continuation of the licence would seriously harm the interests or reputation of the UCI WorldTour; 7. ( )". 3

4 4. Under the terms of Art c, lit. a) of UCIR, the ethical criterion takes into account respect by the team and/or its members of the UCI regulations, in particular as regards anti-doping, sporting conduct and the image of cycling, as well as the principles of transparency and good faith. 5. The UCIR do not describe the concrete measures that a team must implement to respect this criterion, although the Licence Commission, as well as CAS (see in particular the CAS 2012/A/3031 Katusha Management SA v. UCI, 99 ruling cited by the parties), emphasise that if a team cannot objectively be held responsible solely based on the incidence of doping cases, it is possible on the other hand to require the team to create a system of preventative and dissuasive measures able to contribute as effectively as possible to the fight against doping, that is to say to reducing the risk of doping practices. 6. A team may thus have its registration refused or its licence withdrawn by virtue of the UCIR and the applicable case law. The factors that can lead to the refusal of a registration or refusal of a licence are identical (Art and subsequent of UCIR). 7. The withdrawal of the licence is the most serious sanction that a UCI WorldTeam can face. Such a measure must thus be proportionate to the objective pursued. According to the fundamental principle of proportionality (Swiss Federal Constitution, Article 5, paragraph 2), applicable in respect of sporting jurisdiction (CAS 2013/A/ and the cited case law), such a sanction should only be imposed if other less restrictive measures cannot be envisaged. It is in application of this principle that Art of the UCIR states: "Before effectively withdrawing the licence the commission may, if it deems useful and appropriate, set an additional deadline to the UCI WorldTeam in order to sort out its situation." In this instance, the withdrawal of the licence, if ordered, would happen at a time when the racing season is already well under way. The consequences would include the very probable loss of employment for some members of the Team and the likelihood that a certain number of the riders would not be able to find other teams prepared to hire them. 8. The audit report presented by ISSUL on 6 February 2015 noted in its conclusions: - a discrepancy between the declared organisation and actual organisation; - details of the qualifications attested within the Team; - a globally inadequate organisation of the management; - a problem with the management culture. The report considered that this was a team at risk. To provide a basis for this last consideration, ISSUL in particular noted that the Team produced, both to the Commission and to the auditor, documents presenting its functioning that did not correspond to the reality of its organisation. This situation casts doubt on whether there is a genuine desire for improvement. Furthermore, the Team's organisation is defective in that it neglects the most vulnerable riders and does not offer them proper follow-up. Finally, some riders are very much left to their own devices, in particular when they spend time far away from the Team, without any serious checks on training, performance, fatigue, etc., a situation that entails increased risk regarding these riders. 9. The UCI's request for the withdrawal of the Team's licence is essentially based on these conclusions by ISSUL, in particular the latter. 4

5 10. ISSUL's report, meticulous and corroborated, highlighted the flaws of this team in It should consequently be noted that if these failings in its organisation had been known in autumn 2014, a refusal of registration, which would have entailed the withdrawal of the licence (Art UCIR), would have been probable. This would have been all the more justified given that initially Astana claimed that it was well organised and denied that its organisation was to blame for the cases of doping that had occurred a short time previously. 11. The disclosure of the Team's shortcomings in February thus offered grounds for the UCI's request for the withdrawal of the licence in February 2015, that is to say shortly after the presentation of the report. 12. The Commission s enquiry clearly showed the serious nature and quality of the analytical work carried out by ISSUL which has withstood all the main criticisms. It has also allowed more precise outlines of the deficiencies of Astana's organisation to be drawn up, as well as the development of the situation more recently. These deficiencies, revealed by ISSUL in early February 2015, could only be analysed in April 2015, without any delays attributable to the parties and the Commission. 13. It stems from the documents produced during the proceedings and hearings of the Commission, that, from November 2014, the organisation announced by Astana, which aims at improving matters, has partially been put in place. ISSUL has surely noted certain faults in this organisation. Thus it was highlighted that the team of coaches had insufficient resources, with a globally inadequate management organisation, that the race management was excessively pervasive with the consequence of an overly vague definition of the competences of various members of the staff, and furthermore that there were very ineffectual checks on riders who were far away, in particular the Russian-speaking ones. ISSUL did however emphasise positive points such as the professional qualities of the individuals, coaches and doctors in particular, who were responsible for the team's ongoing operations (Art UCIR). To these latter elements can be added the setting up of an IT platform by Astana, the operation of which was presented to the Commission during the hearing of 2 April ISSUL investigators were unaware of this platform, designed to improve the organisation of team staff, at the time of drawing up their report. ISSUL has however emphasised that for the platform to be effective, it must be genuinely used, monitored and observed. There was, in particular, cause to check that all members of the Team coaches, sport directors, doctors and managers, focused on their own roles without interfering in decisions taken by other members of the team within the framework of their own competences and prerogatives. 14. A point considered negative by ISSUL, emphasised in its report and one of the reasons given for the withdrawal request by the UCI, is the fact that, on the one hand, the organisation presented to the Commission by the Team did not correspond to that which the investigation revealed, and on the other hand that documents (training plans) had been produced expressly to satisfy ISSUL investigators. This engendered a suspicion of manipulation, or at best ineptitude, which partly justified the diagnosis of "a team at risk" expressed by ISSUL. However, it should be emphasised that the organisation that the Team described to the Commission in November 2014 was largely presented as a plan. This was adapted and modified in late 2014 and early 2015 and did not entirely reflect the actual organisation during

6 Furthermore, the suspicion of a desire to conceal something from the investigators was significantly reduced during discussions. The claims of wilful deceit in particular are unfounded. However, the Team can probably be charged with ineptitude, partly due to the pressure, which in principle cannot be criticised, exercised by the investigators. 15. At the conclusion of the proceedings before the Commission there were thus fewer negative elements in the prognosis for the future of the team, apart from a certain "oldfashioned culture" with over-influential leaders, an insufficient delimitation of competences and powers as well as a persisting lack of checks on certain riders. This "old-fashioned culture" is not, or is no longer, compatible with the management of a team of these sporting qualities and at this level, a team furthermore characterised by the significant linguistic and geographical diversity of its members. This point should be the subject of monitoring over the medium term. The other negative points raised by the ISSUL report which were discussed during the proceedings are amenable to rapid improvement. 16. In summary, the events of 2014, associated with an organisation that was partly failing and likely to provoke the incidents that this team experienced, could have led to the sanction of the refusal of registration and thus the withdrawal of the licence. Making reference to Art , paragraph 2, as mentioned above, which allows a licence to be withdrawn if the information taken into account for the registration has subsequently changed, it can be noted that what has changed since registration was granted in December 2014 is not so much the situation of the UCI WorldTeam but rather knowledge of its actual situation in During the discussions of 2 April 2015 and also partially in the documentation submitted, Astana stated that it was ready to strictly observe ISSUL instructions and the team operational requirements. These declarations at the hearing led the Commission to ask ISSUL whether a collaboration remained possible in the event that the licence was not withdrawn. The positive response in principle by ISSUL thus motivated the Commission to examine if alternative measures to the withdrawal of the licence could be envisaged and what precise conditions would likely be imposed. 18. These issues were the subject of the session of 23 April 2015 during which ISSUL was invited to specify the conditions that it would impose in order to continue collaboration with the Team. At the end of this session and after a detailed examination and in-depth discussion of the conditions drawn up by ISSUL in view of the session, Astana undertook to abide by all the conditions set out. The nature of these conditions would allow it to conduct an in-depth reform of the manner in which it reduces the risks of doping. 19. As a consequence, in view of the modifications already in place and announced, the commitment to conform with the conditions established by ISSUL, with the approval and under the monitoring of the Commission, and the absence of further incidents since autumn 2014, the sanction of withdrawal, mainly motivated by previous events, would not now be compatible with respect of the principle of proportionality. 20. It was agreed that a strict observation of the conditions accepted by Astana, formalised in an agreement signed by Astana and ISSUL on 4 May 2015, would be subject to the Commission s supervision. Specific dates were defined as miles stones to allow Astana's observance of the imposed conditions to be assessed. The Commission gave ISSUL responsibility for reporting on the respect of the said conditions directly to the Commission. 6

7 The Commission retains the option to reopen the procedure. The proceedings are therefore not archived, but suspended. For these reasons The Commission rules: 1. That it duly notes that the Team is committed to conforming to the measures recommended by the Institute of Sports Science of the University of Lausanne (ISSUL) and that this commitment has been formalised in a document signed by the UCI World Team Astana ProTeam, ISSUL and the Licence Commission. 2. That the respect of this commitment is subject to monitoring by ISSUL under the supervision of the Commission. 3. That the proceedings for the withdrawal of the licence from the UCI World Team Astana ProTeam are suspended. Consequently, the registration of the UCI World Team Astana ProTeam for 2015 remains in place. 4. In the event of a failure to respect the terms of the agreement, ISSUL shall inform the Commission which may at any time reopen the proceedings for the withdrawal of the licence. 5. The proceedings would also reopen if there are any new cases of doping or other serious infringements of the regulations. For the Licence Commission Pierre Zappelli President Lausanne, 23 April