In XZTT and Anti-Doping Rule Violation Panel AATA 728 (23 October 2012), the Administrative Appeals Tribunal of Australia was consideringa cyclist’s appeal against two decisions by ASADA’s Anti-Doping Rule Violation Panel (ADRVP) to make entries into the Register of Findings under the National Anti-Doping Scheme (the NAD Scheme).
In October 2010, the athlete (un-named) tested positive to benzoylecgonine (principal metabolite of cocaine) a race in China. Under the 2009 WADA Code, the use of cocaine is only prohibited in-competition, however the presence of the metabolite in a sample taken during a subsequent competition is an anti-doping violation. The amount detected in the sample was lower than the usual usual cut-off for a positive finding for cocaine. Article 7.2 of the 2009 WADA Code requires that an athlete be notified of the positive test result, and separately, given the right to have the B sample tested, “promptly “ (within 7 days). The athlete was not advised of the positive test for 4½ months. The race occurred on 23 October 2010, the UCI received the lab results on the A sample on 4 November 2010, but did not notify the athlete (who continued to compete). The athlete was first notified by the UCI, on 25 March 2011.
In the 25 March 2011 notice, the UCI:
- notified the athlete of an adverse analytical finding from the A sample;
- advised that he was provisionally suspended, “pending a hearing”;
- giving the athlete the option to have the B sample tested.
The B sample confirmed the presence of benzoylecgonine. Two weeks later the UCI wrote to XZTT to “confirm the presence of the Cocaine and to advise that the UCI would be writing to CA (Cycling Australia) to request CA to open disciplinary proceedings.” On 30 May 2011, the General Manager, Anti-Doping Programs and Legal Services ASADA, advised that the matter would be referred to the ADRVP for consideration. The athlete was invited to make submissions in response to the notice. The athlete denied using a prohibited substance, and, further, argued that the UCI had breached its own rules considerably. Two 2 months later, the ADRVP advised the athlete that the panel had made two adverse findings against him. The Cyclist appealed to the AAT.
The Tribunal concluded:
- The two decisions by the ADRVP to make an entry in the Register of Findings under the NAD Scheme were set aside.
- The ADRVP decisions to make an entry in the Register of Findings were based were findings of a “possible” violation. As a matter of law, such a finding was not open to the ADRVP. For an entry placed on the Register of Findings, the ADRVP must first make a ‘finding’ as defined under clause 1.05 of the NAD Scheme, ie “a finding …. that an athlete or support person has committed an anti-doping rule violation”.
- The matters were to be remitted to the ADRVP.
The Tribunal indicated, further , that in relation to the ADRVP re-consideration, certain mitigating factors might properly be taken into account by the ADRVP:
 Included in the factors the ADRVP may wish to take into account in mitigation are those that: (a) from 25 March 2011 until the date of the Tribunal’s decision XZTT remained subject to a provisional suspension that has prevented him from participating in all professional cycling events; (b) that despite the requirements of the WADC and the UCI Anti-Doping Rules, XZTT experienced gross breaches of his entitlement to have the allegations against him dealt with in a timely way; (c) that XZTT did not contribute to the delays in any way; (d) that XZTT entered into a commercially disadvantageous contract, which included a provision to the effect that if he were to be found to have breached anti-doping rules his contract would be terminated and which he would not have entered into but for the delay in the UCI in notifying him of his testing results; (e) that the finding of a violation on his part for ‘use’ In-Competition of cocaine has been set aside by the Tribunal; and (f) that the amount of metabolite of cocaine detected in XZTT’s samples was below the threshold normally accepted as establishing a positive finding for use of cocaine and could not have affected his performance.