World Anti-Doping Agency (WADA) v. Autoridade Antidopagem de Portugal (ADoP), Daniel Eduardo Moreira Silva

At a glance

Parties

World Anti-Doping Agency (WADA) v. Portuguese Anti-Doping Authority (ADoP) and Daniel Eduardo Moreira Silva

Case no.

CAS 2022/A/8886

Forum and rules

Court of Arbitration for Sport, appeal procedure under the CAS Code

Treaty

None. Appeal under Article 76(4) of the 2021 ADoP ADR and Articles 13.1.3 and 13.2.3 of the 2021 World Anti-Doping Code

Tribunal

Romano Subiotto KC (Sole Arbitrator)

Sector

Cycling (anti-doping)

Outcome

Appeal upheld (5 July 2023). The acquittal was set aside and the cyclist received an eight-year period of ineligibility for a second anti-doping rule violation.

Amount

No monetary award stated. The cost rulings are redacted in the published award.

The dispute

Daniel Eduardo Moreira Silva is a Portuguese national-level cyclist. In 2016 he was sanctioned with two years of ineligibility for oxandrolone. An expert panel then found his Athlete Biological Passport (ABP) blood profile abnormal at >99.9% and "highly likely the result of blood doping", and ADoP charged him on 29 March 2021. On 10 January 2022 ADoP's Anti-Doping Disciplinary College (ADDC) declared the charge null and void and acquitted him. Relying on Portuguese criminal and administrative-offence procedure, it held that the charge did not say whether the violation was intentional or negligent and did not identify the unlawful acts precisely. WADA appealed to CAS, arguing that criminal procedure does not apply to anti-doping proceedings, that intent is irrelevant to establishing a Use violation, and that the violation was presumed intentional; it sought an eight-year ban. ADoP agreed that the athlete should be sanctioned but argued that it should not be a respondent, because the independent ADDC had taken the decision. The athlete did not take part.

Key holdings

1. CAS has jurisdiction, and WADA's appeal is admissible. WADA may appeal directly to CAS where no other party has appealed within ADoP's process. It received elements of the case file on 23 April 2022 and filed its Statement of Appeal on 13 May 2022. ¶¶ 38, 41–44
2. ADoP has standing to be sued. It has results-management responsibility in Portugal, it prosecuted the case before the ADDC and its request for relief there was not granted. It does not matter that it agrees with WADA on the merits. ¶¶ 52–53
3. The 2015 ADoP ADR governs the substance, because the ABP abnormalities date from when it was in force. The 2021 ADoP ADR and the 2021 WADC govern procedure. ¶ 49
4. An intentional Use violation under Article 3(2)(c) of the 2015 ADoP ADR is established on the ABP evidence. An ABP case cannot require the exact time, place and context of doping to be stated. Blood doping cannot occur through negligence, and under Article 61(2) the athlete bore the burden of disproving intent, which he did not do. ¶¶ 57–60
5. This is a second violation within the meaning of Article 65 of the 2015 ADoP ADR. Treated as a first violation it would carry four years, so the sanction is eight years (twice four). The ban starts on the date of the award, in line with Article 10.11 of the 2015 WADC, and any ineligibility already served is credited. ¶¶ 62–67, 73
6. All results from and including 28 May 2018 are disqualified, and the fairness exception does not apply. Earlier results had already been disqualified or fell within the period of his first ban. ¶¶ 70–73; operative part ¶ 4

Procedural history

1. May 2016First violation: positive test for oxandrolone. The athlete received a two-year ban starting on 28 May 2016.
2. 26 May 2020The Expert Panel finds the athlete's ABP abnormal at >99.9%. It confirms this view on 10 March 2021.
3. 29 March 2021ADoP charges the athlete.
4. 10 January 2022The ADDC declares the charge null and void and acquits the athlete.
5. 13 May 2022WADA files its Statement of Appeal with CAS.
6. 8 August 2022Sole Arbitrator appointed.
7. 13 September 2022The Sole Arbitrator decides to rule on the written submissions, without a hearing.
8. 5 July 2023Award: appeal upheld; eight-year ban imposed.

Tribunal, counsel and experts

Decided by

• Romano F. Subiotto Sole arbitrator, Court of Arbitration for Sport

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Keywords

• Athlete Biological Passport
• ABP
• blood doping
• cycling
• second violation
• eight-year ineligibility
• standing to be sued
• legitimation passive
• WADA appeal
• Portuguese Anti-Doping Law
• ADoP ADR
• presumption of intent
• oxandrolone
• disqualification of results
• World Anti-Doping Code
• criminal procedure inapplicable

Summary generated with AI from the published documents — refer to the award for the authoritative text.