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New tendencies within doping regulation UCI vs. Alex Rasmussen and DIF

New tendencies within doping regulation UCI vs. Alex Rasmussen and DIF

The 4th of July 2012 the Danish athlete (professional cyclist) Alex Rasmussen – despite being acquitted by DIF (the Sports Confederation of Denmark) – was given an 18-months suspension from all professional cycling competition by CAS (Court of Arbitration for Sport), as a result of his third violation of UCI and WADA’s whereabouts rules.

According to both UCI (Union Cycliste Internationale) and WADA (World Anti-Doping Agency)’s whereabouts rules an athlete is obligated to inform the anti-doping authorities of his/her whereabouts for certain period of time, in order for the authorities to locate and test the athlete for the use of illegal substances (doping). If the athlete is not where he has informed the doping authorities he would be, he is in violation of the whereabouts rules and therefore receives a warning.

If an athlete receives his third warning, the athlete – according to both WADA and UCI’s anti-doping regulation – shall be suspended from participating in all professional cycling competition.

Alex Rasmussen received two warnings in 2010 and when it in April 2011 once again was not possible to locate him at the informed location, UCI in August 2011 gave him his third warning.

Despite the fact that Alex Rasmussen had received three warnings, DIF in November 2011 decided not to suspend Alex Rasmussen. DIF argued that the third warning could not constitute a suspension or disqualification, due to the fact that Alex Rasmussen was not informed of the third warning within 14 days from the date of the unsuccessful attempt to locate and test him, as required in WADA’s international Standard for Testing clause 11.6.3.b.

UCIs parallel anti-doping regulation art. 115 did however not contain a rule similar to WADA’s clause 11.6.3 according to which the athlete has to be informed of the warning within a certain amount of time from attempt to test the athlete. UCI was therefore of the opinion, that the late information of Alex Rasmussen should not be decisive of whether or not Alex Rasmussen should be suspended.

UCI therefore requested CAS to overrule the DIF-ruling, and CAS did – as initially mentioned – suspend Alex Rasmussen for 18 months.

The fact that CAS chose to suspend Alex Rasmussen – despite the late information of Alex Rasmussen – has been interpreted as if CAS hereby made it clear, that the UCI-regulation outweighs the WADA-regulation.

That was however not the case.

CAS made it clear that the ruling was based on interpretation of the relevant regulation (including Standard for Testing clause 11.6.3.b) and that CAS – in order to make the ruling – did not have to make a decision on the classification of the WADA and CAS’ anti-doping regulation.

CAS argued that the late information of Alex Rasmussen – due to the fact that the late information did not worsen Alex Rasmussen’s legal position – should not rule out the suspension of the athlete.

One of the consequences of the above-mentioned CAS ruling is that an athlete – if he has not been informed of that he has been given a warning due to a violation of the whereabouts regulations – is immune to further whereabouts violations until he is informed of the warning.  The late information does however not have the consequences that a third warning cannot lead to suspension.

Lasse Juul Jacobsen

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