Abstract
The Athlete Biological Passport (or “ABP”) has been designed to serve multiple purposes in anti-doping. These include: research for setting future priorities in the fight against doping; a deterrence effect due to the higher likelihood of being “caught”; and gathering intelligence for target Testing. This Chap. 11 focuses on the Athlete Biological Passport’s most crucial function from the perspective of its evidentiary value in legal practice. It analyses how data derived from the ABP can be used directly to support anti-doping proceedings for Use of a Prohibited Substance or Prohibited Method under Article 2.2 of the WADC (referred to in this chapter as Athlete Biological Passport or ABP “cases”). Describing the main features of the ABP Program as conceived by WADA is a prerequisite for assessing the improvements that this new approach could bring with respect to traditional Doping Control (Sect. 11.1). As a new evidentiary approach inserted into a pre-existing regulatory framework, the ABP brings along its own challenges, both legal and practical (Sect. 11.2). The evaluation of the evidence and the task-sharing between scientific experts and legal hearing panels represent key factors in the use of the ABP Program (Sect. 11.3). Reliance on the ABP in the judicial process also raises a number of issues with respect to the traditional standardising mechanisms of the WADC when it comes to a finding of a violation, as well as to Strict Liability and presumed Fault (Sect. 11.4).
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Notes
- 1.
Sottas 2010, p. 114 (“the ABP is not a new drug test but a new paradigm in drug testing”); Sottas et al. 2008b, p. 166 (“a paradigm shift has taken place”).
- 2.
See Appendix 1 (Definitions) of the WADC, referring to Definition in the ISL, and the more precise definition in the WADA ABP Guidelines, section 5.3.
- 3.
“Definition” in the WADA ABP Guidelines, section 5.3.
- 4.
Vernec 2014, p. 2.
- 5.
See the description of the objectives in the WADA ABP Guidelines, section 1.1.
- 6.
Saugy et al. 2014, p. 2.
- 7.
Saugy et al. 2014, p. 2; Vernec 2014, p. 1.
- 8.
For a report on the impact of the introduction of the ABP on extreme blood values, see Zorzoli and Rossi, 2010, section “Results”; Vernec 2014, p. 2.
- 9.
Vernec 2014, p. 2; it became rapidly clear in the scientific anti-doping community that population-based cut-off levels in blood parameters were neither a very specific nor a very sensitive strategy, given the high inter-individual variability of these parameters, thus creating the risk both of false positives and of false negatives (see Saugy et al. 2014, p. 1).
- 10.
For a short historical overview, see Saugy et al. 2014, p. 1.
- 11.
Saugy et al. 2014, p. 1.
- 12.
Sottas et al. 2008a, p. 192 et seq.
- 13.
On the debate surrounding the question whether the ABP also represents a shift from direct to indirect detection of doping, and the need for relativising this distinction, see Sect. 10.3.1.2 above.
- 14.
Marker is defined in Appendix 1 (Definitions) of the WADC as “compound, group of compound or biological variable(s) that indicate the use of a Prohibited Substance or Prohibited Method”; Cooper 2012, p. 273: “Monitoring metabolism and physiology is at the heart of many new tests”.
- 15.
Sottas 2010, p. 114.
- 16.
The idea being that intra-individual variability for the parameters used is much lower than inter-individual variability, and thus offers a much reliable baseline, see Cooper 2012, p. 275; Saugy et al. 2014, p. 2, note that the steroid module takes an intermediate approach that “makes the best decision in function of the between-subject and within-subject variance components of the marker and actual individual test results”; idem, ibidem, p. 5.
- 17.
For a graphical representation of the Bayesian Network that forms the basis of the Adaptive Model, see Sottas 2010, p. 126; for more technical details, see Sottas et al. 2008a, p. 198; note that the ABP was not the first application for which a Bayesian approach was proposed in anti-doping, see e.g. already Sottas et al. 2007, p. 285 et seq.
- 18.
Saugy et al. 2014, p. 3.
- 19.
Vernec 2014, p. 1.
- 20.
Sottas et al. 2008a, p. 198; Saugy et al. 2014, p. 2, on the impact of the inclusion of greater intra-variability factors on the sensitivity of the ABP.
- 21.
In this Chapter, we use capitalised terms when referring specifically to the experts in their role within the ABP review process. The WADA ABP Guidelines use both expressions as defined terms, but in reality only Expert Panel is defined, as follows: “The Experts, with knowledge in the concerned field, chosen by the Anti-Doping Organization and/or Athlete Passport Management Unit, who are responsible for providing an evaluation of the Passport. For the Haematological Module, Experts should have knowledge in one or more of the fields of clinical haematology (diagnosis of blood pathological conditions), sports medicine or exercise physiology. For the Steroidal Module, the Experts should have knowledge in Laboratory analysis, steroid doping and/or endocrinology. [The Panel may include a pool of appointed Experts and any additional ad hoc Expert(s) who may be required upon request of any of the appointed Experts or by the Athlete Passport Management Unit of the Anti-Doping Organization]”.
- 22.
See Sect. 11.4.1 below.
- 23.
Berninger 2010, p. 229.
- 24.
Zorzoli et al. 2014, p. 862; for the role of the German NADA, one of the first NADOs to create an ABP, in 2007, Berninger 2010, p. 230/231.
- 25.
See Technical Document on Blood Sample Collection Requirements for the Athlete Biological Passport (TD2015BSCR).
- 26.
Saugy 2012, p. 651.
- 27.
Saugy et al. 2014, p. 5, highlight the fact that the “steroid profile” is intrinsically a set of “concentration levels of endogenous steroids in urine and their respective ratios”, routinely used for medical diagnosis, so that the term “longitudinal” is an important addendum to denote a follow-up of the profile over time; see also TD2014EAAS, Section 1.0: “an atypical “longitudinal steroid profile” (including values obtained from a series of “steroid profiles” collected over a period of time), may be a means to pursue an anti-doping rule violation (ADRV)”.
- 28.
Vernec 2014, p. 2, whereby the steroidal module allows for a more effective and efficient use of IRMS.
- 29.
Saugy 2012, p. 649.
- 30.
Vernec 2014, p. 2.
- 31.
Saugy et al. 2014, p. 6; Dr Alan Vernec presentation of updates, Minutes WADA ExCo Meeting 11 May 2013, p. 60.
- 32.
WADA ABP Guidelines, section 1.2.
- 33.
WADA ABP Guidelines, section 1.2.
- 34.
For a more complete procedure, see the ABP Administrative Sequence Graphic, WADA ABP Guidelines, section 4.3.
- 35.
WADA ABP Guidelines, section 4.4; Vernec 2014, p. 2.
- 36.
TD2015RMR, section 2; if the Atypical Passport Finding is for the steroidal module, the laboratory is required to proceed with a Confirmation Procedure including IRMS analysis, possibly generating an Adverse Analytical Finding, at which point the situation falls outside the scope of the ABP stricto sensu.
- 37.
TD2015RMR, section 3.
- 38.
TD2015RMR, section 4; note that the WADA ABP Guidelines & TD2015RMR contain inconsistent wording as to how high the probability must be for this the procedure to continue, see Sect. 11.3.2 below.
- 39.
TD2015RMR, section 4.
- 40.
TD2015RMR, section 5.
- 41.
TD2015RMR, section 5.
- 42.
TD2015RMR, section 6.
- 43.
TD2015RMR, section 7.
- 44.
Schumacher and d’Onofrio 2012, p. 979.
- 45.
See Sect. 11.4.2.1 below.
- 46.
See, in general, Sect. 5.1.2.4 above.
- 47.
See Sect. 5.2.2.4.3.2 above.
- 48.
See Sect. 5.1.4.2 above.
- 49.
See Sect. 5.2.2 above.
- 50.
Note that when the issue was whether the ADO was entitled to use the Sample for the sake of longitudinal profiling, CAS panels have affirmed this right, holding that “anti-doping purposes” to which the Athlete agrees includes all scientifically sound evidentiary methods: CAS 2009/A/1912&1913, Pechstein, DESG v ISU, para 108/109; CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.5.
- 51.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 81.
- 52.
David 2013, p. 172; CAS 2009/A/1912-13, Pechstein, DESG v ISU, para 110: “in the Panel’s view longitudinal profiling must be characterized as a mere evidentiary method which, on the basis of scientifically accepted evaluations, constitutes one of the available means for finding doping offences”; Lewis and Taylor 2014, C2.126, thus consider that the ABP as reliable evidence of Use “should now be straightforward, at least in principle, because several CAS Panels have now considered this question”; idem, ibidem, C2.130: “As a result of this clear and consistent CAS case law, it appears safe to say that the CAS has accepted the robustness and reliability of the Athlete Biological Passport programme as an indirect means of proving “use” of blood doping under Code Art. 2.2”.
- 53.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.8: “As for the probative value of the ABP, the Panel is of the view that it provides a satisfactory level of reliability”; CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 43 et seq.
- 54.
See Sect. 8.3.3.1.4 above.
- 55.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 85. Note that such expert evidence may come directly from the individuals who developed the ABP.
- 56.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, paras 51 and 81 regarding the usefulness of the blood Markers chosen for the Adaptive Model.
- 57.
Among the most famous detractors of the ABP, see Giuseppe Banfi (Limits and Pitfalls of the Athlete’s Biological Passport), cited in particular in Lundby et al. 2012, p. 1311.
- 58.
Saugy et al. 2014, p. 2.
- 59.
Lundby et al. 2012, p. 1311.
- 60.
See Sect. 4.3.2.1.1 above.
- 61.
Also acknowledged in UKAD Anti-Doping Panel, British Cycling v. Tiernan-Locke, 15 July 2014, para 11.
- 62.
Saugy et al. 2011, p. 2.
- 63.
Schumacher and d’Onofrio 2012, p. 981/982; Lundby et al. 2012, p. 1311.
- 64.
See Sect. 11.4 below.
- 65.
WADA ABP Guidelines, section 1.1; Berninger 2010, p. 229.
- 66.
See Sect. 2.3.3.2 above.
- 67.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 116: “the provisions are geared to the situation where the violation is an occurrence rather than a process, most obviously where the violation is the presence of a prohibited substance”.
- 68.
See Sect. 5.2.2.4.3.2 above.
- 69.
See Sect. 11.5 below.
- 70.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 116; see also Sect. 7.2.3 above.
- 71.
See Sect. 5.1.2.4 above.
- 72.
Vernec 2014, p. 3.
- 73.
See Appendix F of the WADA ABP Guidelines. If an Athlete is included in several Passport programs, the authority for results management is left to ADOs to settle among themselves through sharing agreements;
- 74.
See key features of the ABP, described in Sect. 11.1 above.
- 75.
Zorzoli and Rossi 2010.
- 76.
UKAD Anti-Doping Panel, British Cycling v. Tiernan-Locke, 15 July 2014, para 47, five Samples in total had been taken but the Sample that accounted for the abnormality was the first one. The Panel did not accept the Athlete’s objections, either to the fact that the abnormality was only related to an isolated Sample, or to the fact that the Sample was the first one collected as part of the Passport.
- 77.
Saugy et al. 2014, p. 4.
- 78.
On the measures taken within the WADA-accredited laboratory network to reduce the variability in the measurements, see Saugy et al. 2014, p. 4.
- 79.
TD2015RMR, section 7.
- 80.
McLaren 2012, p. 89.
- 81.
Saugy et al. 2014, p. 2, referring to a study by Ashenden et al. 2011, Current markers of the Athlete Blood Passport do not flag microdose rhEPO doping; for a short description of the study, see Lundby et al. 2012, p. 1311/1312.
- 82.
See Sect. 11.2.1 above.
- 83.
See e.g. CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.7.
- 84.
For examples correctly distinguishing “statistical data” and “probabilities for the particular matter” in evidence taking, Kaufmann 2009, p. 21, using the example of People v. Collins.
- 85.
CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 48; generally speaking, “statistical evidence” seems to be used to describe any form of evidence based on probabilities.
- 86.
Aitken and Taroni 2008, p. 6: “Statistics is an inductive process which argues from the particular to the general”.
- 87.
Sottas et al. 2008a, p. 100.
- 88.
Saugy et al. 2014, p. 2.
- 89.
See, imprecisely in our view, CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 14: “the statistical result for the athlete does not in itself justify a conclusion that an anti-doping rule violation has occurred”.
- 90.
Aitken and Taroni 2008, p. 6: “Probability is a deductive process which argues from the general to the particular”.
- 91.
Aitken and Taroni 2008, p. 183, whereby the probabilistic nature of any evidence is a fact in the judicial process, but that “there is still much confusion surrounding the interpretation of evidence to which a measure of uncertainty is attached in explicitly probabilistic terms”; see also, for more details, Sect. 10.3.2.3 above.
- 92.
For example in court practice Kaufmann 2009, p. 21/22.
- 93.
Berger-Steiner 2008, p. 165.
- 94.
Berninger 2010, p. 229, notes that the very broad character of Article 3.1 may have prevented ADOs from initiating proceedings on “Indizienprozess”, because of a lack of legal certainty and thus the risk of liability. But equally points at the uncertainty for Athletes with respect to the requirements for their defence.
- 95.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.7.
- 96.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.8; see also, Sect. 11.2.1 above.
- 97.
Schumacher and d’Onofrio 2012, p. 979.
- 98.
Schumacher and d’Onofrio 2012, p. 980, on the importance of specifying the direction of the evaluation.
- 99.
See Sect. 10.3.2.2 above.
- 100.
Sottas 2010, p. 116; Schumacher and d’Onofrio 2012, p. 981.
- 101.
Schumacher and d’Onofrio 2012, p. 981: “the profile is indicative of doping”; Sottas 2010, p. 116, points at the fact that this hypothesis in reality covers both “doping&healthy” and “doping&medical”.
- 102.
Schumacher and d’Onofrio 2012, p. 981: “the profile points to a potential pathology”.
- 103.
Schumacher and d’Onofrio 2012, p. 981: “the profile displays an extreme of normal variation”.
- 104.
For the procedure as described in the WADA documents, see Sect. 11.1.3 above.
- 105.
Saugy et al. 2014, p. 3; TD2015RMR, Section 2: “Outliers correspond to those values out of the 99 %-range (0.5–99.5 percentiles)”.
- 106.
Referred to as “population-based distributions stratified according to heterogeneous factors”.
- 107.
For a description, see Sottas 2010, p. 118; detection of abnormal sequences, as opposed to just abnormal values falling out of the reference range, allows for better sensitivity.
- 108.
Schumacher and d’Onofrio 2012, p. 981.
- 109.
Sottas 2010, p. 117. However, in terms of a Bayesian network, all three hypotheses have an equivalent place and function as a variable conditioning the values obtained in the profile.
- 110.
See Sect. 10.3.2.3.1 above.
- 111.
On possible explanations, see Sect. 11.4.2 below.
- 112.
See Sects. 2.2.1.2 and 7.3.3.2.2.2 above.
- 113.
On the importance of the precision with which the hypothesis of the ADO can be stated with respect to doping causes, see Sottas 2010, p. 119.
- 114.
See Sect. 11.3.2.2.1 above; McLaren 2012, p. 84; see, the inversion fallacy in this respect in the Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.4.
- 115.
Sottas et al. 2008a, p. 206: “From the perspective of Bayesian decision theory, we propose a model that directly estimates the probability of occurrence of a test result as a function of the information available to the decision maker”.
- 116.
Schumacher and d’Onofrio 2012, p. 979.
- 117.
Schumacher and d’Onofrio 2012, p. 981; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 86/87: “The abnormal values are for the purposes of the ABP a necessary but not a sufficient proof of a doping violation. The results called for explanation, which was unlike the calculations made qualitative and not merely quantitative in nature”; CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 49.
- 118.
Schumacher and d’Onofrio 2012, p. 979, do use the term “subjective evaluation of the results in view of possible causes”, but this terminology should in our view be avoided for the potential for confusion it brings in a legal perspective.
- 119.
Taroni and Biedermann 2010, p. 341.
- 120.
Sottas 2010, p. 120.
- 121.
The WADA ABP Guidelines explicitly refer to confounding factors as part of the ABP Documentation Package, see section 5.3 “Defined Terms” of these Guidelines.
- 122.
Swiss Anti-Doping Laboratory, http://www.doping.chuv.ch/en/lad_home/lad-prestations-laboratoire/lad-prestations-laboratoire-passeport.htm#abp-14 (accessed 17.05.15).
- 123.
For a review of the key factors that experts acting in ABP cases should include in their evaluation, see Schumacher and d’Onofrio 2012, p. 981/982.
- 124.
Schumacher and d’Onofrio 2012, p. 983.
- 125.
CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 105.
- 126.
See the positive effects described by Zorzoli and Rossi 2010 with respect to the experiences in cycling sports.
- 127.
See Sect. 11.2.1 above.
- 128.
See also Sect. 8.1.1.1 above.
- 129.
An open, albeit somewhat formalistic, question is whether an Atypical Passport Finding could still be issued by the APMU in this case. The definition of Atypical Passport Finding is currently circular in the WADC regime (i.e. each document refers to another document), but the manner in which it is described in the WADA ABP Guidelines and TD2015RMR would rather indicate that an Atypical Passport Finding always consists in a report of an abnormality by the Adaptive Model.
- 130.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 86, the CAS panel mentioned that the “abnormal values are (for the purposes of the ABP) a necessary but not a sufficient proof of a doping violation”, but with a view to confirming the importance of the qualitative expert assessment, and thus by no means with an intent to declare an Atypical Passport Finding a mandatory requirement for initiating proceedings.
- 131.
Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.4; appeal proceedings that were pending before the CAS were terminated “based on the availability of newly obtained information” (WADA Press Release of 5 June 2015), so that no determination will be obtained from a CAS panel in this case.
- 132.
For some recommendations by two scientists with experience in ABP cases, see Schumacher and d’Onofrio 2012, p. 980.
- 133.
Saugy et al. 2014, p. 2, characterize the APMU as “the central hub connecting laboratory-generated biological data with active test planning intelligence”.
- 134.
TD2015RMR, section 1: “on behalf of or within the ADO”; Saugy et al. 2014, p. 4, consider that the APMU “works on behalf of the ADO”.
- 135.
WADA ABP Guidelines, section 4.2; WADA has published a list of APMU associated with WADA-accredited laboratories, https://www.wada-ama.org/en/resources/athlete-biological-passport/list-of-athlete-passport-management-units-apmu#.VCuzQE1d4b5 (accessed 17.05.15).
- 136.
Thus, the APMU has the authority under WADA ABP Guidelines to make recommendations to the ADO about the need to conduct target Testing on specific profiles, but the laboratory to which the APMU is associated is paid as a service provider for each analysis performed.
- 137.
See, for a similar view, Saugy et al. 2014, p. 2.
- 138.
As the WADA ABP Guidelines allow for, section 4.2; see also TD2015RMR, section 1.
- 139.
Another issue regarding the experts’ independence raised in the media in 2012 was the question of the tolerable scope of confidentiality clauses in the experts’ contracts regarding their role within the ABP, see McLaren 2012, p. 89.
- 140.
Within the system of the UCI at the time, the exact reproach was that the three experts called to make the final recommendation to initiate anti-doping proceedings had also been part of the nine-expert panel who initially reported the case as abnormal; see CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 51 et seq.; CAS 2010/A/2178, Caucchioli c. CONI & UCI, para 45 et seq.
- 141.
Schumacher and d’Onofrio 2012, p. 979 et seq., in particular p. 984, insist on the duty of scientific experts to remain within their area of expertise when giving evidence in the judicial process. The definition in the WADA ABP Guidelines of Expert Panel recommends the following competences: “Haematological Module, Experts should have knowledge in one or more of the fields of clinical haematology (diagnosis of blood pathological conditions), sports medicine or exercise physiology. For the Steroidal Module, the Experts should have knowledge in Laboratory analysis, steroid doping and/or endocrinology”.
- 142.
Schumacher and d’Onofrio 2012, p. 981, recommending experts involved in the review of ABP cases to double-check the documentation, asking themselves: “Can the abnormal result of the profile be explained by the analytical procedure or from indirect clues derived from experience and knowledge of laboratory procedures and results”; see also the expert statements in CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou.
- 143.
Schumacher and d’Onofrio 2012, p. 980, seem to make the recommendations under the assumption that a laboratory expert should always be part of the Expert Panel, but no such qualifications are included in the definition of Expert Panel in the WADA ABP Guidelines. These only focus on the ability to look at the causes for the abnormality.
- 144.
CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 51 et seq.; CAS 2010/A/2178, Caucchioli c. CONI & UCI, para 45 et seq.
- 145.
See Figure in Sect. 11.3.2 above; in fact, TD2015RMR, section 4, explicitly mandates that the review “must follow the same logic”.
- 146.
TD2015RMR, section 2, requires that the experts reach a unanimous opinion for the process to move on to the next step.
- 147.
See the overview of the review and recommendations in Sect. 11.3.2 above.
- 148.
CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 105.
- 149.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 85.
- 150.
See Sect. 11.4.2 below.
- 151.
McLaren 2012, p. 93.
- 152.
UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, 15 July 2014, para 36.
- 153.
Schumacher and d’Onofrio 2012, p. 979: “the evaluation provides a scientific basis for the decision taken by a disciplinary panel”.
- 154.
- 155.
See Sect. 10.3.2.3.1 above.
- 156.
Champod and Vuille 2011, p. 235, whereby a forensic scientist who would agree to answer the question on the probability that a person is at the origin of a trace, would commit a “scientific heresy” (“hérésie scientifique”).
- 157.
Sottas 2010, p. 120/121.
- 158.
Sottas 2010, p. 121.
- 159.
Sottas 2010, p. 120/121.
- 160.
Sottas 2010, p. 119.
- 161.
Coquoz 2006, p. 251.
- 162.
Schumacher and d’Onofrio 2012, p. 979/980.
- 163.
Schumacher and d’Onofrio 2012, p. 980, consider that the standards for presenting scientific expertise in a forensic context are “already partly incorporated in the general Athlete Biological Passport procedures”.
- 164.
For the reasons explained in Sect. 10.3.2.3.1 above.
- 165.
To add to the confusion, the WADA ABP Guidelines, section 3.3.4, by contrast, provides that the task of the Expert Panel is “Reviewing any explanations given by the Athlete and providing an opinion on whether the Atypical Passport Finding (ATPF) was highly probable, given that a Prohibited Substance or Prohibited Method had been used”. Contrary to TD2015RMR, this statement would seem to aim for the likelihood ratio, but with respect only to the hypothesis of doping and without indications as to the likelihood of the ATPF given the other hypothesis(es) provided by the Athlete, which in theory could be equally high.
- 166.
See Sect. 11.4.2.2 below.
- 167.
Note that in CAS 2010/A/2174, De Bonis v. CONI & UCI, para 4.4.2, the UCI argued that if the values flagged by the profile are particularly clear (i.e. the values are not just at the limit of the 99 % range (or, in that case, 99.9 %), the hypothesis that the results could be explained by a clean & healthy condition can be excluded.
- 168.
Schumacher and d’Onofrio 2012, p. 981. Note that, even with these very experienced authors, the language used in the publication also seems to vacillate between the two causal directions that the experts’ assessment is to express, i.e. P(E/H) versus P(H/E).
- 169.
Schumacher and d’Onofrio 2012, p. 981.
- 170.
Schumacher and d’Onofrio 2012, p. 981.
- 171.
Schumacher and d’Onofrio 2012, p. 979.
- 172.
See the Figure in Sect. 11.3.2.2.2 above.
- 173.
Schumacher and d’Onofrio 2012, p. 983, themselves stress that “the main issue that needs attention is the legal handling of passport cases”, the main problem being that members of hearing panels were usually unfamiliar with the approach of indirect detection, and that the logic behind the Adaptive Model and the Bayesian approach of evaluating evidence was poorly understood.
- 174.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 24; CAS 2010/A/2174, De Bonis v. CONI & UCI, para 2.2; for a very close expression, see CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 24; CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 72.
- 175.
This is also difficult to reconcile with Bayesian reasoning, since in theory an expert can never express a probability with respect to an isolated hypothesis. Champod and Vuille 2011, p. 237/238: the relevance or probative value of a piece of evidence can only be defined with respect to its tendency to make one hypothesis more or less likely by comparison to another.
- 176.
See Sect. 11.5.1 below.
- 177.
Schumacher and d’Onofrio 2012, p. 983.
- 178.
In CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 27, the Expert Panels used the expression that after review of these explanations, there was “no known reasonable explanation for his blood profile other than the use of a prohibited substance of method”.
- 179.
CAS 2010/A/2174, De Bonis v. CONI & UCI, paras 2.2 and 9.9.
- 180.
See e.g. UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, para 16; CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.9.
- 181.
See e.g. the conclusion of the sole arbitrator in CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 81: “All three Experts concluded in their initial review that the Athlete had engaged in a Prohibited Method or used a Prohibited Substance, on at least two occasions”.
- 182.
Schumacher and d’Onofrio 2012, p. 983: “Evaluation of the probability of this hypothesis [blood doping] is usually central to the decision the jury has to make, on the basis of the information provided by the expert”.
- 183.
Schumacher and d’Onofrio 2012, p. 983.
- 184.
Schumacher and d’Onofrio 2012, p. 983; for the legal implications of the “doping scenario”, see Sect. 11.5.1.1 below.
- 185.
The ongoing Pechstein v. ISU saga is an indication, however, that Athletes may be ready to go to great lengths to have the initial “diagnosis” of doping reversed.
- 186.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79.
- 187.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.4: “This Panel is in a position to evaluate and assess the weight of a (party-appointed) expert opinion submitted to it. It does so by evaluating the facts, on which the expert opinion is based and by assessing the correctness and logic of the conclusions drawn by the experts. In fulfilling this task the Panel takes into account the statements and opinions of (all) the parties. It is on the basis of this evaluation and balancing of the various submissions that the Panel will form its own opinion on the facts and consequences that follow thereof. This opinion may be in line with the evidence provided by a party-appointed expert. However, the contrary may be equally true”.
- 188.
Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.4; UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, para 13/14.
- 189.
Schumacher and d’Onofrio 2012, p. 983.
- 190.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 79; CAS 2010/A/2174, De Bonis v. CONI & UCI, para 9.4.
- 191.
Schumacher and d’Onofrio 2012, p. 980.
- 192.
Schumacher and d’Onofrio 2012, p. 980, mention in this respect two principles: balance (i.e. all possible explanations for the evidence should be carefully evaluated), and logic (i.e. highlighting the causal direction of the assessment of evidence).
- 193.
Schumacher and d’Onofrio 2012, p. 980, for two other principles: robustness (i.e. the opinion should be based on scientific grounds and findings from peer-reviewed publications to withstand scrutiny by other experts or in cross-examination) and transparency (i.e. the ability of the experts to reproduce at any time how they came to their conclusions).
- 194.
E.g. when the expert appearing for the ADO was involved in the development of the ABP (see CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 105; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 85); in UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, para 36/37, stressing the superior experience in the field of anti-doping of the ADO experts (one a member of the UCI medical commission, the other again involved in the development of the ABP Program); CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 104 (greater experience and expertise, and weight of published literature which supported it).
- 195.
See Sect. 8.4.2 above.
- 196.
Cooper 2012, p. 277, emphasises the importance of transparency on the passport, “even at the risk of allowing the dopers to have a better idea of how to avoid suspicion”.
- 197.
See Sect. 11.3.2.2.1.
- 198.
In CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 81, refused to enter into an analysis for the justification of the Marker used. Para 85 in the same award clearly demonstrates that CAS panels are hardly in a position to make a real assessment of the reliability of the Adaptive Model.
- 199.
For a correct interpretation of the likelihood expressed by the Adaptive Model, see CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 48, footnote 2; see also the formulation used by the UCI before CAS in CAS 2010/A/2174, De Bonis v. CONI & UCI, para 4.4.2.
- 200.
McLaren 2012, p. 88.
- 201.
Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.4.
- 202.
In CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 88, this explanation was mentioned as an option under the denomination “pure chance”, but was immediately “discounted in the light of the particular circumstances”. The “particular circumstances” appear to be the fact that two (rather than only one) Samples had fallen outside the 99.9 % range and that in the ADO experts’ opinion the abnormalities were “at a high level”.
- 203.
McLaren 2012, p. 88.
- 204.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, paras 79–81.
- 205.
McLaren 2012, p. 88.
- 206.
For a similar reasoning in forensic sciences, showing that it could be safer for experts to provide directly the a posteriori odds, rather than a likelihood ratio that the judge or other fact-finder may not have the capacity to interpret, see Aitken and Taroni 2008, p. 201/202.
- 207.
So the legal hearing panel has no way of estimating how any new piece of evidence would have altered the expert’s belief.
- 208.
Warning about this fallacy, see Schumacher and d’Onofrio 2012, p. 981; Sottas 2010, p. 121.
- 209.
See Sect. 10.3.2.3 above.
- 210.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 24, for another example of ambiguous language: “it is the panel’s unanimous opinion, absent a satisfactory explanation from the rider, that based on the Haemoglobin (Hb) and OFF-hr Score data, it is highly likely that the rider has used a Prohibited Substance or Prohibited Method”.
- 211.
See Sect. 11.5.1 below.
- 212.
In CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 70 & 73, the CAS panels thus found for two abnormalities alleged by the UCI experts that the profile value, considering the Athlete’s explanations, “ne permet pas d’inférer une pratique de dopage selon le standard de preuve requis” [does not allow for inferring a doping practice to the required standard of proof, (author’s translation)], respectively “l’UCI n’est pas parvenue à prouver selon le standard de preuve requis que ces valeurs démontrent le recours à des pratiques de dopage” [the UCI did not succeed in establishing to the required standard of proof that these values show that doping practices were resorted to, (author’s translation)] .
- 213.
Schumacher and d’Onofrio 2012, p. 980, explain that “most scientific experts involved in biological passport cases had to develop in the field a de novo skill to approach the task of testifying”, and strongly recommend that training sessions should be organised or recommendations issued by the ADOs for new experts.
- 214.
See only the Figure Sect. 10.3.2.2.2 above.
- 215.
See Aitken and Taroni 2008, p. 202, recommend that in the event experts would find it more adequate to provide posterior odds, this should “be done on an explicitly conditional basis, to avoid any impression that the expert is attempting to usurp the role of the fact-finder in calculating prior odds for the other evidence in the case”, i.e. the expert should provide the elements of his or her calculation.
- 216.
In fact, it does not seem unreasonable to assume that the solution - in the WADA ABP Guidelines and TD2015RMR - to have experts provide directly the final probability is precisely rooted in the fear that the ordinary forensic approach might exceed the competences of these hearing panels.
- 217.
In CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 13.
- 218.
Decision of the Arbitration Committee of the Czech Olympic Committee, Kreuziger v. Czech Cycling Federation, 22 September 2014, para 6.3, who expressed its regrets in the decision that the tight UCI procedural timeframe did not allow for this possibility.
- 219.
On the limitations of such translation attempts in general, see Sect. 10.3.2.4 above.
- 220.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, paras 50 and 85; CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 48.
- 221.
See Sect. 11.3.2.2.1 above.
- 222.
As suggested in Sottas et al. 2008a, p. 207.
- 223.
See Figure Sect. 11.3.2.2.2 above.
- 224.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 2.2; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 24; CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 72.
- 225.
CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, paras 70–72.
- 226.
Expert Panel report, quoted in CAS 2010/A/2174, De Bonis v. CONI & UCI, para 2.2; for a very close expression, see CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 24; CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 72, whereby the sequence “provides clear evidence of the repeated use”, the use of ESAs being “almost certain”.
- 227.
CAS 2010/A/2174, De Bonis v. CONI & UCI, paras 4.42 and 9.9; CAS 2013/A/3080, Bekele v. Turkish Athletics Federation & IAAF, para 37: “they were 100 % sure the tests did not show a false positive”.
- 228.
CAS 2010/A/2174, De Bonis v. CONI & UCI, para 4.42.
- 229.
In CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 78, an expert is quoted as stating that “the profile is the result of a doping scheme”, without further qualification.
- 230.
- 231.
Unilateral scales like the Hummel scale are often regarded as inadequate in forensics, since they disregard the existence of the defence’s hypothesis, whereas the Evett et al. scale can reflect the other side of the coin when the evidence favours the defence’s hypothesis (Vuille 2011, p. 179).
- 232.
Sottas et al. 2008a, p. 207, Table 3 and p. 208.
- 233.
Thus, it was proposed that not much corroborative evidence would be needed for the prosecution (see Sottas et al. 2008a, p. 208).
- 234.
Sottas et al. 2008a, p. 208.
- 235.
McLaren 2012, p. 92.
- 236.
Sottas et al. 2008a, p. 208.
- 237.
For more details, see Sect. 11.5 below.
- 238.
Sottas et al. 2008a, p. 208.
- 239.
Sottas 2010, p. 123.
- 240.
Schumacher and d’Onofrio 2012, p. 983, explicitly acknowledge their view that it is part of the Expert Panel’s task to frame a doping scenario; McLaren 2012, p. 84, whereby: “the experts will also try to determine which doping scenario the athlete engaged in”; idem, ibidem: “for an athlete to be sanctioned an inference must be made that the cause of the observed abnormal marker values was blood doping”.
- 241.
See CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, paras 76 and 82; CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 81, where the term “doping regimen” appears & para 125, “yearly doping scheme”, para 127: “the result of a doping scheme”.
- 242.
- 243.
Sottas 2010, p. 121.
- 244.
Schumacher and d’Onofrio 2012, p. 983.
- 245.
See Sect. 10.3.2.2.3 above.
- 246.
Sottas 2010, p. 121.
- 247.
See Sect. 2.2.1 above.
- 248.
See the use of vocabulary in the WADA ABP Guidelines such as “standardized approach to determine steroid abuse” (WADA ABP Guidelines, section 1.0), “Markers of blood doping” (WADA ABP Guidelines, Section 2.0) or “Markers of steroid doping” (WADA ABP Guidelines, section 2.2); Berninger 2012, p. 180: “Bei dem Nachweis z.B. von Fremdblut im Körper eine Athleten ist jedoch davon auszugehen, dass er sich dieses wissentlich und willentlich zugeführt hat” [If, for example, the presence of foreign blood is shown in an Athlete’s body, it can be assumed that he administered such blood with knowledge and intent, (author’s translation)].
- 249.
CAS 2009/A/1912-13, Pechstein, DESG v ISU, para 119 et seq., in particular para 122: “the Panel rejects the Appellants’ contention that the ISU bears the burden to also prove the Athlete’s fault or intent to use blood doping”.
- 250.
WADA ABP Guidelines, Section 1.0, Introduction: “The ABP intends to establish that an Athlete is manipulating his/her physiological variables, without necessarily detecting a particular Substance or Method”.
- 251.
See Sect. 11.5.1.2 below on the correlate duty for the Athlete to present alternative scenarios; Schumacher and d’Onofrio 2012, p. 983 describe the doping scenario as “a clear explanation of what doping manipulation the athlete might have carried out to obtain the results seen in the evidence”.
- 252.
Sottas 2010, p. 984.
- 253.
Schumacher and d’Onofrio 2012, p. 983, stress that while it would be ideal and desirable to have a scenario that matches the evidence of the profile, “because of the complexity of doping and the ability of a sophisticated cheater to skew a profile, a full explanation of every aberration in a profile may not be possible nor necessary”.
- 254.
McLaren 2012, p. 84.
- 255.
Sottas 2010, p. 119.
- 256.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 102.
- 257.
UKAD Anti-Doping Panel, British Cycling v. Tiernan-Locke, 15 July 2014, para 34.
- 258.
Lewis and Taylor 2014, C2.126, whereby the ADO must establish, inter alia, that “blood doping is the only reasonable explanation for the athlete’s abnormal values. There is no other reasonable explanation, such as a pathological condition”.
- 259.
This is all the more important since the definition of Prohibited Methods related to blood doping on the Prohibited List is open for interpretation, and the Athlete may have used a method that would not be clearly prohibited.
- 260.
Rigozzi and Quinn 2012, p. 19/20.
- 261.
See Sect. 11.1.3 above.
- 262.
CAS 2010/A/2174, De Bonis v. CONI & UCI, paras 9.10 and 9.11; see also CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 107 et seq., where the experts themselves went about commenting on the absence of any mention of high altitude or use of hypoxic devices on the Doping Control forms.
- 263.
For similar reflections for the Doping Control form in general, see Sect. 8.2.1.2 above.
- 264.
In CAS 2010/A/2308 & 2011/A/2335, Pellizotti v. CONI & UCI, UCI v. Pellizotti, FCI, CONI, para 80, the CAS panel also mentioned as detrimental to the credibility of the Athlete’s explanations the fact that the dehydration had not been mentioned by the Athlete in his initial explanations to the UCI, since “il n’est pas vraisemblable qu’un athlète professionnel, assisté par plusieurs médecins, puisse oublier de mentionner cette circonstance dans un courriel adressant spécifiquement ce thème” [it is not plausible that a professional athlete, assisted by several doctors, could forget to mention this circumstance in an email addressing specifically this theme, (author’s translation)].
- 265.
See Sect. 7.3.3.1 above.
- 266.
Champod and Vuille 2011, p. 236/237, explains how the—undesirable—situations in which experts have to choose the alternatives “by default” on behalf of the defence (i.e. in the absence of an H2 proposed by the “accused”), is regularly the one that maximises the value of the evidence in favour of the prosecution.
- 267.
See Sect. 11.3.2.2.1 above.
- 268.
Note that, in this situation, if the review process by the Expert Panel is properly applied the case should never reach a hearing panel in the first place.
- 269.
See Figure Sect. 11.3.2.2.2 above.
- 270.
See Sect. 11.5.1.2 below.
- 271.
See e.g. UKAD Anti-Doping Panel, British Cycling v. Tiernan-Locke, 15 July 2014, para 47; CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 24.
- 272.
See, for the example of the Pechstein matter, Lewis and Taylor 2014, C2.127.
- 273.
On this proof, see Sect. 7.3.3.1.4 above; from this perspective, the Athlete must not be penalised for presenting several scenarios, especially if these scenarios are not mutually exclusive but could jointly have contributed to the abnormalities of the profile, unlike what the CAS panel in the Valjavec matter seemed to imply (see CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 90).
- 274.
Note that to be accurate, these two situations should be distinguished: the Athlete may not be able to show that a scenario occurred which, if established on the facts, could scientifically explain the abnormalities, or he or she may be able to establish that the scenario occurred, but not to show that this scenario could scientifically explain the abnormalities. In UKAD Anti-Doping Panel, British Cycling v. Tiernan-Locke, 15 July 2014, para 34, the panel seemed to consider that the factual premises put forward by the Athlete would only be dismissed if his evidence were “implausible” or “inconceivable”. Typically, hearing panels seem to focus on the second limb and work under the assumption that the factual premises for the scenario were true, but declare that these premises could in any event not be explanatory for the Passport values (see e.g. CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 91).
- 275.
UKAD Anti-Doping Panel, British Cycling v. Tiernan-Locke, 15 July 2014, para 14, explicitly: “The athlete does not have to prove that his explanation for the abnormalities disclosed in the sample is more likely to be the true explanation, for the burden of proof rests entirely on UKAD to disprove that explanation”.
- 276.
In practice, it would seem that the decision of the experts to issue recommendations for initiating proceedings strongly depends on whether they consider that the explanations given by the Athlete could account for the abnormalities.
- 277.
See e.g. CAS 2012/A/2773, IAAF v. SEGAS & Kokkinariou, para 101: “each member of the Expert Panel provided an analysis of the ABP, and each concluded that absent satisfactory explanation from Ms. Kokkinariou, the ABP was the result of the use of a prohibited substance or a prohibited method on multiple occasions”. Ultimately, the sole arbitrator considered, para 121: “The arguments of the Experts are thoughtfully constructed and well grounded, and no evidence has been presented to or found by the Sole Arbitrator that places the conclusions of any of the Experts in doubt. Accordingly, the Sole Arbitrator finds that the opinion of the Experts, taken together, indicate to his comfortable satisfaction that Ms. Kokkinariou used a Prohibited Substance or engaged in a Prohibited Method on more than one occasion”.
- 278.
CAS 2013/A/3080, Bekele v. TAF & IAAF, para 52, the Athlete declared that she abandoned her challenge against the finding of doping to focus on the length of the sanction for lack of finances to obtain counter expert evidence. In para 66, the panel declared itself comfortably satisfied based on the “unrebutted and strong evidence” of the ADO’s experts.
- 279.
See for an example of ambiguous language, UKAD Anti-Doping Panel Decision, British Cycling v. Tiernan-Locke, 15 July 2014, para 16, quoting the notification of the Experts’ opinion that “it was highly likely, absent an explanation, that he had had used a prohibited substance or method”.
- 280.
See Sect. 11.4.2.1.3 above.
- 281.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 119; CAS 2013/A/3080, Bekele v. TAF & IAAF, 14 March 2014, para 80; confirmed for use of recombinant human Growth Hormone in CAS 2014/A/3488, WADA v. Lalluka, para 130: “it is the circumstances of the offence, not the offence itself which may aggravate”.
- 282.
CAS 2013/A/3080, Bekele v. TAF & IAAF, para 83.
- 283.
Note that to be truly legalistic, one could argue that since the presumption of intentional doping only applies to Use of a Prohibited Method or Use of a non-Specified Substance, which are elements for the ADO to establish, and since in most cases ABP cases do not allow for any concrete findings as to which method or substance was actually used (see, explicitly, WADA ABP Guidelines, section 1.0), these cases should not benefit from the presumption of intentional doping.
- 284.
CAS 2010/A/2235, UCI v. Valjavec & OC Slovenia, para 118, where the CAS panel did not formally exclude the possibility of the Athlete seeking a reduced sanction, but emphasised that no mitigating circumstances had been adduced and “in view [of] the circumstances of the case, the requirements of those provisions are obviously not met”.
- 285.
CAS 2009/A/1912-13, Pechstein, DESG v ISU, para 120.
- 286.
See Viret M and Wisnosky E, Biological passports and the 2015 Code: Will four-year bans for blood doping become the new norm?, Anti-Doping Blog 3 February 2015, http://wadc-commentary.com/bekele/ (accessed 17.05.15).
- 287.
McLaren 2012, p. 95.
- 288.
CAS 2010/A/2384 & 2386, UCI & WADA v. Contador & RFEC, para 348 et seq.
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Viret, M. (2016). Athlete Biological Passport: A Paradigm Shift?. In: Evidence in Anti-Doping at the Intersection of Science & Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-084-8_11
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