The case involves Erwin Bakker, a professional cyclist licensed by the Dutch national cycling federation (KNWU), who was found guilty of a second anti-doping violation by the Court of Arbitration for Sport (CAS). Bakker had previously been sanctioned in 2005 for a testosterone-related violation, resulting in a two-year suspension. Shortly after this, he participated in a competition and received an injection from his doctor, described as a "risky product," without inquiring about its contents. This led to a positive test for r-EPO isoforms during an out-of-competition control in Canada. The CAS panel, comprising Mr. Ercus Stewart, Mr. Olivier Carrard, and Mr. Hendrik Kesler, ruled that Bakker acted with gross negligence, emphasizing that an athlete of his level must refuse or thoroughly investigate any substance administered, especially after a prior offense. The panel rejected the notion of "No Significant Fault or Negligence," as Bakker's actions contradicted the UCI Anti-Doping Rules. Under Article 269 of these rules, a second violation after notice of the first warrants stricter sanctions, leading to a lifetime ineligibility sanction.
The case also addressed procedural matters, confirming CAS's jurisdiction under the UCI Anti-Doping Rules and Swiss law. The appeal was deemed admissible as it was filed within the stipulated timeframe, and the panel had full authority to review the case de novo, including imposing a harsher penalty than the KNWU's initial two-year suspension. The UCI sought a lifetime ban, which the panel upheld, stressing that Bakker's actions violated fundamental principles of sportsmanship and fair play. The decision underscores the strict liability principle in anti-doping regulations and the severe consequences of repeated violations.
The core issue revolved around the presence of a prohibited substance (EPO) in Bakker’s sample, which constitutes a violation under UCI rules unless rebutted. The UCI bore the burden of proof, requiring them to establish the violation to the "comfortable satisfaction" of the hearing body. The laboratory that conducted the analysis, IRNS Laboratory in Quebec, was WADA-accredited, meaning its procedures were presumed compliant with international standards unless proven otherwise. Bakker challenged this presumption on several grounds, including the laboratory's failure to follow updated WADA guidelines requiring a second opinion for EPO tests, the lack of necessary ISO certifications, and the validity of the antibody used in testing. However, the Panel ruled that these arguments were insufficient to rebut the legal presumption of guilt, upholding the original decision.
The document also discusses a dispute regarding the validity of the EPO test, with Bakker arguing that the antibody used could produce false positives due to exercise-induced proteinuria. Dr. Bart Landuyt supported this claim, citing experiments showing cross-reactivity with urinary proteins, but these were not published in scientific literature. Experts like Dr. Olivier Rabin and Dr. Christine Ayotte countered these claims, asserting the specificity of the IEF method used in anti-doping laboratories. The Panel ultimately rejected Bakker's arguments, emphasizing the robustness of the testing protocol and the lack of credible evidence supporting alleged cross-reactivity risks.
The Panel concluded that Bakker had been grossly negligent, as he admitted to receiving an injection without inquiring about its contents, despite being aware of the risks and his prior involvement in a doping case. The ruling underscores the strict enforcement of anti-doping regulations and the severe penalties for intentional violations. The CAS upheld the decision to impose a lifetime ban on Bakker, annulling the earlier decision by the KNWU Anti-Doping Commission. The case highlights the stringent standards applied in anti-doping cases and the importance of personal responsibility for athletes regarding prohibited substances.