TAS xxx - Tribunal Arbitral du Sport / TAS

CAS 2004/A/777ARcycling AG v. UCI,award of 31 January 20051657. In the Panel’s view, the above analysis on the merits of the Appealed Decision has shown thatthe procedural defects of the licensing procedure had a critical bearing on the outcome of thesame procedure. As a consequence, the Panel holds that the violations of the Appellant’sfundamental procedural rights, in addition to the other questionable aspects of the AppealedDecision, have yielded a ruling that, as a whole, is materially ungrounded and evidentlyunjustified.58. For all the above reasons, the Panel finds, and so holds, that the Appellant’s appeal must beallowed and the Appealed Decision must be set aside.Other grounds of appeal59. The Appellant submitted other grounds of appeal – concerning, in particular, the right ofpersonality, competition law, and the principle of proportionality – which, in its opinion,would also render the Appealed Decision unlawful. Since the Panel has already held that theAppealed Decision is to be set aside, it is not necessary to rule on the other grounds of appeal.New decision on the Appellant’s application issued by the CAS60. According to art. 2.15.241 of the Regulations, the Panel “will deliver a new decision replacing thechallenged decision. This decision will definitively decide the dispute”. Therefore, the Panel must issue adecision ab novo with regard to the Appellant’s application.61. For the reasons already expounded, the Panel considers that the Appellant did not have anunethical behaviour and that its application met all the required conditions to obtain a licence.However, it is undisputable that, for the Phonak team, the year 2004 was marked by bloodtests with average high values, a confirmed doping case and two cases of adverse analyticalfindings. This sequence of events, undoubtedly, is a circumstance which might havecontributed to bringing the sport of cycling into disrepute.62. Nevertheless, the high average blood values were observed in April 2004 and did not preventthe issuance of the Provisional Licence a couple of months later. After Dr Zorzoli’spresentation in June 2004, the Phonak team’s average blood values were in line with theaverage blood values of the other teams (with the obvious exception of the two riders withadverse analytical findings). In any event, according to Dr Zorzoli’s testimony, during theseason no rider from the Phonak team had to be stopped because of blood values above thethresholds set by the Regulations.63. As far as the riders Camenzind, Hamilton and Perez are concerned, the Appellant tookimmediately the correct measures. According to Dr Zorzoli’s testimony, the Appellantestablished an acceptable Medical Concept, comparable to that of other teams.