13th May 2021

The André Cardoso case: the athlete is always guilty

This week, the Court of Arbitration for Sport (CAS) upheld a four year sanction imposed by the international cycling union (UCI) on André Cardoso, resulting from a positive test for erythropoietin (EPO) back in 2017. The Portuguese cyclist has spent four years and a great deal of money attempting to explain his positive test. 

Only he knows whether he intentionally doped or not. As is usual in anti-doping jurisprudence, the UCI was not required to prove intent. An athlete is assumed guilty of doping unless they can prove their innocence. Cardoso couldn’t prove his innocence, but maintains that he never took EPO.

The UCI sanctioned Cardoso without holding a hearing, but indicated to Cardoso that it may be possible for the CAS to provide legal aid for an appeal. The International Council of Arbitration for Sport (ICAS) refused his request for legal aid and upheld the UCI’s four year ban despite:

• The results from analysis of his B sample not matching the results from his A sample;
• his blood sample – taken at the same time – testing negative for EPO; and
• questions about storage of his samples during transportation.

His case is an example of how the anti-doping jurisprudential system can be used to railroad an athlete on limited financial means into an anti-doping rule violation (ADRV). It also perhaps provides an insight into why the anti-doping system fails to sanction many big names. Successful athletes that compete in profitable sports can afford to defend themselves.

Fairness vs. presumed guilt

The story behind WADA’s logo…

The World Anti-Doping Agency’s (WADA) logo hasn’t changed since its formation in 1999. WADA explains how the green ‘equals’ sign that features on its logo symbolises equity and fairness, and is ‘depicted with a human touch to reflect the individuality of every athlete’. However as previously explained, anti-doping represents one of the only areas of jurisprudence where usual legal principles are reversed. An athlete charged with an anti-doping rule violation (ADRV) is presumed guilty unless they can prove that they are innocent.

Whether you think that this is right or wrong depends on your point of view. Hardliners will argue that if athletes cannot explain how a substance ended up in their system, it is likely that they are doping and they should be sanctioned accordingly. Liberals will argue that the non-exhaustive nature of the Prohibited List, which includes ‘other substances with a similar chemical structure or similar biological effect(s)’ means that athletes cannot check anything that they are taking against the List, and cannot always explain a positive test. 

What both sides cannot deny is that an appeal costs a great deal of money. Most athletes simply don’t have the financial resources that an international federation can commit towards a case. 

There are many cases1 where athletes have exhausted their financial means unsuccessfully defending themselves against a doping charge. This, of course, doesn’t mean that they are innocent. But it also doesn’t mean that they are guilty.

When signing up to participate in elite sport, athletes usually sign some sort of participation agreement with a national or international federation. By agreeing to hold a UCI Licence, for example, an athlete consents to arbitrate all disputes at the CAS rather than through courts of law.

The CAS is governed through the International Council of Arbitration for Sport (ICAS), which consists of 20 members appointed by sport. The 275 CAS Arbitrators (2007 figures) are appointed by ICAS for four years, but are ‘appointed at the proposal of the IOC, the IFs and the NOCs’, according to a history of the body. 

ICAS also ‘receives and manages the funds allocated to its operations’. The International Olympic Committee’s (IOC) Annual Report reveals (p142) that in 2016, it contributed US$7.6 million to the funding of the ICAS. Further information on how ICAS is funded is scarce. It is understood to be funded by Olympic organisations (IOC, ASOIF, AWOIF, NOCs) and by private parties, based on usage. 

The CAS doesn’t publish all its Decisions. Key cases are often removed from its internet site for unexplained reasons and others are published in image format only, rendering a text search difficult. Resources for athletes who wish to defend themselves are scarce (with the notable exception of Doping.nl, which strives to publish all Decisions in a searchable format). 

In summary, an athlete accused of an ADRV is assumed guilty; must pay to appeal to an arbitration body in Switzerland staffed with sports law experts appointed by sport; and may not have access to all previous jurisprudence that could be used against them. Does this system represent the equity and fairness symbolised by the WADA logo?

EPO and r-EPO

Erythropoietin (EPO) is a naturally occurring hormone. Recombinant EPO (r-EPO) is a man made version of EPO that stimulates red blood cell production, which is especially useful in endurance sport as red blood cells carry oxygen to the muscles and tissues. On 18 June 2017 in Gondomar, Portugal, Cardoso provided urine, blood, and Athlete Biological Passport (ABP) samples in an out of competition test.

On 27 June, the Lausanne Laboratory reported that Cardoso’s A sample had returned an AAF for r-EPO. Cardoso requested that his B sample be analysed, and was told by the UCI that his blood sample hadn’t been analysed. The UCI Anti-Doping Tribunal (ADT) Decision (PDF below) reveals that it was later analysed and found to be negative for r-EPO.

Explanation as to why Cardoso’s blood sample was negative…

Dr. Günter Gmeiner and Dr. Christian Reichel of the WADA accredited Austrian Laboratory explained that if EPO had left the bloodstream, it could still be detected in the ‘reservoir’ of urine until excreted. This Opinion was filed by the UCI on 8 September 2017 and in its 15 November 2018 Decision, the UCI’s ADT found that it met the threshold of ‘comfortable satisfaction’ required to accept it (see right).

On 8 August, the Lausanne Laboratory informed the UCI that analysis of Cardoso’s B sample ‘is doubtful but inconclusive regarding the presence of recombinant EPO’. Cardoso was informed by the UCI that his B sample was flagged as an Atypical Finding (ATF) a day later. 

An ATF isn’t an AAF, but allows a Laboratory to indicate that there may be some suspicion about the results and further investigation should be conducted (click here to download WADA’s full definition). An internal assessment report performed by the Laboratory concluded that ‘immunopurification and/or degradation of EPO are highly likely phenomena as a source of inconsistent in analytical result between A and B sample’. 

At the CAS hearing Dr. Erik Boye, a Professor in Cell Biology at Oslo University Hospital, presented expert evidence suggesting that the A sample may have degraded due to being stored for two days at an unknown temperature. The eagle eyed will have noticed that Cardoso’s samples were taken in Portugal and analysed in Switzerland. Google Maps puts the road distance between Gondomar and Lausanne at 1,733 kilometres. 

The ISTI requires a sample’s temperature to be continually recorded…

The UCI ADT heard that the samples were in the possession of the Doping Control Officer for 19 hours during ‘extremely hot’ weather, and were in the possession of the commercial courier for 38 hours. In addition, neither the UCI nor CAS questioned Cardoso’s contention that ‘there is no evidence whatsoever in which temperature the samples were transported’. This is specifically required by WADA’s International Standard for Testing and Investigations (ISTI – see right).

The data supplied by the Lausanne Laboratory was not complete…

At the UCI ADT, Dr. Boye argued that the data supplied by the Lausanne Laboratory was not complete (see right). The UCI supplied this data to Cardoso’s legal team after being instructed to do so, but informed WADA as it saw such a request as a challenge to the scientific validity of testing methods (see left).

The UCI informed WADA, as it saw a challenge to the validity of its scientific methods…

The Laboratory detection method for r-EPO is complicated, and involves immunoblotting. In very basic terms, this involves reading smears on an immunoassay which indicate both the presence of EPO and r-EPO. It is understood that smears can appear and disappear during analysis due to adjustments to the exposure, much like when developing a pre-digital camera film.

Evidence supplied by Dr. Boye…

This is significant because it is theoretically possible that readings for EPO can migrate into the r-EPO smear, especially if the exposure of the gel is set high. Dr. Boye performed his own digital scan on Cardoso’s A sample, which showed a faded line higher up in the gel. The UCI objected to this as new evidence and while the CAS accepted Dr. Boye’s oral testimony, it ruled out the scientific evidence used to back his claim (see right). 

It appears that the UCI ADT and the CAS didn’t examine whether the chain of custody from Portugal to Switzerland was fully documented, including the temperature of the samples during transit. However, as they also accepted that a Report from the Austrian Laboratory ruled out that microbial activity could have caused an r-EPO finding, this is perhaps a moot point. Both the UCI ADT and the CAS also rejected Cardoso’s argument that his r-EPO AAF could have been caused by a glycosylation (CDG) disorder.

Samples don’t match? A four year ban is still possible…

Analysis was performed in Switzerland on Cardoso’s urine and blood taken in Portugal on 18 June 2017. During an anti-doping test, a urine sample is always split into an A and a B sample. Only the A sample tested positive for r-EPO and not the B sample, despite this involving exactly the same urine. The blood test, as previously explained, was negative.

The UCI’s own evidence suggested that sample degradation was possible in the B sample, but evidence wasn’t accepted that suggested such degradation was also possible with the A sample…

Again, the eagle eyed may have spotted an anomaly. Evidence from Cardoso’s experts that the A sample may have degraded wasn’t accepted for procedural reasons. Yet the difference between the A and B sample was explained via degradation of the B sample. 

The CAS didn’t hold the UCI or the Lausanne Laboratory responsible for the apparent degradation of the B sample, despite its own expert evidence suggesting that storage and freezing may have been at fault. In such circumstances, can one be certain that one sample has degraded and not the other?

There are logical reasons for splitting a urine sample. The B sample can be used to confirm a positive test; it gives both parties something to fall back on in case of disputes; and it allows long term retention of urine should new analytical methods emerge.

WADA puts forward the idea that an athlete accused of an ADRV can request the opening of the B sample and if they don’t match, the case against them is closed. Cardoso’s case underlines that this isn’t always the case.

Article 2.1 of the WADC…

Even when the A and B samples don’t match, an athlete can still be charged with an ADRV. They cannot be charged with ‘presence of a Prohibited Substance or its Metabolites or Markers’ under Article 2.1 of the World Anti-Doping Code, which requires any analysis of the B sample to confirm the result from the A sample analysis (see right). 

Article 2.2 of the WADC…

However, an athlete can be charged with ‘use or attempted use’ of a prohibited substance or method under Article 2.2 of the Code, even when the samples don’t match. This is spelled out in a comment to Article 2.2 of the Code (see left). As Cardoso’s B sample was flagged as a ATF, this allowed the UCI to charge him with ‘use or attempted use’, as it could claim to have met the requirement for a ‘satisfactory explanation for the lack of confirmation’ in the B sample.

WADA’s Athlete Reference Guide…

In the CAS ruling, Cardoso’s team pointed out that Appendix 2 of the Athlete Reference Guide to the 2015 World Anti-Doping Code, which was in force at the time, outlines: ‘If the B sample confirms the analysis of the A sample, the Anti-Doping Organization will proceed with the results management process, including your right to a fair hearing. 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.’

The UCI countered that WADA’s Athlete Reference Guide makes it clear on page 3 that it is only a Guide and is no substitute for the language of the Code. The CAS agreed that this is correct and any other interpretation would ‘allow the tail to wag the dog’. However, this interpretation underlines that athletes cannot rely on advice published for them by WADA about the World Anti-Doping Code.

The right to a fair hearing is spelled out in the WADC…

Interestingly, the Athlete Guide also outlines an athlete’s right to a fair hearing, as guaranteed by Article 8.1 of the Code (see right). The UCI didn’t grant Cardoso a hearing.

Cardoso argued that this violated his rights under Article 6 of the European Convention on Human Rights (ECHR). The UCI argued that Article 6 of the ECHR isn’t applicable to the Decisions of internal tribunals such as the UCI ADT. This appears to contradict Article 8.1 of the Code (above right), which outlines that ‘each Anti-Doping Organisation with responsibility for results management shall provide, at a minimum, a fair hearing…’. 

The CAS found that it didn’t have to consider this question ‘because the proceedings before this Panel are de novo proceedings pursuant to Article R57 of the CAS Code’. The CAS’s argument appears to be that because Cardoso was allowed to defend himself at a CAS hearing, it didn’t have to consider the question of whether the UCI had violated his human rights and potentially breached the Code by initially denying him the right to a fair hearing. 

Taking this line of argument to its logical conclusion, it appears a little perverse. It suggests that if Cardoso hadn’t appealed to CAS about the violation of his human rights, he may have a case that the UCI had denied his right to a fair hearing. But by appealing to CAS, his right to a fair hearing had been granted. 

Novices vs. experts

Because of the jurisprudential system it has created, WADA and international federations have become legal and scientific experts in anti-doping. In the CAS, they have an arbitration body that is specifically set up to convict athletes for doping. This is in their financial interest as well – the loser of a doping case often has to cover costs.

Athletes are experts in their particular sport. Unless they are accused of an ADRV, in which case they must quickly become legal and scientific experts in anti-doping. There is no equality of arms. Unless, of course, the athlete can afford expert legal and scientific representation for an appeal, and afford to fly them to Switzerland. 

As mentioned at the start of this article, only Cardoso knows if he intentionally doped. Reputation is important, but so is money. The CAS hearing didn’t take place until 24 February last year, and its ruling wasn’t issued until 10 February this year. Cardoso’s ban is due to expire on 28 June. 

Cardoso has spent a large amount of money and a huge amount of time disputing a sanction that is due to expire at the end of next month. It is legitimate to question whether an intentional doper would bother.

Unless – of course – they have the financial resources both to do so and to motivate them to continue. After his request for legal aid was denied by ICAS, Cardoso appointed a pro bono Counsel. In other words, a volunteer lawyer working free of charge. 

Cardoso expressed frustration that he was unable to appoint his choice of lawyer, again arguing that this infringed is human rights. It is not hard to see why. An expert lawyer who knows they can invoice a financially flush athlete would be rubbing their hands in glee at getting stuck into some of the issues outlined above.

Of course, it is essential that doping tests are able to detect even minuscule residual amounts of prohibited substances, so that anti-doping organisations can catch anybody coming to the end of a doping cycle. But given the apparent holes in this case outlined above, can anti-doping be 100% confident that it has caught a doping cheat? For Cardoso, the ‘equity and fairness’ promised to athletes through the WADA logo is likely to leave a sour taste in the mouth.

Footnotes

1. See the Gordon Gilbert/Demarte Pena cases; the Sonny Webster case; and the Mark Dry case, to pick three examples at random.

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