WHEREABOUTS RULE IN DOPING LATEST CAS AWARD

One of the measures towards achieving clean sport is the so-called ‘whereabouts rule’, which was introduced by WADA (World Anti-Doping Agency) on 1 January 2009, and which continues to prove controversial amongst sportspersons.

The latest CAS (Court of Arbitration for Sport) Appeal case (CAS 2024/A/10679), which was decided on 13 March 2025, illustrates the need for sportspersons to take this rule very seriously indeed, or suffer the sporting consequences, however much many of them find it intrusive and not always convenient in their daily lives.

This case involved Vlad Dascalu, a Romanian professional cross-country mountain bike rider, a competitor at the 2020 Tokyo Olympic Games and European champion in 2023.

He appealed to CAS against a decision, issued on 21 May 2024, by the International Cycling Union (UCI) Anti-Doping Tribunal, which found that he had committed an anti-doping rule violation (ADVR) under Article 2.4 of the UCI Anti-Doping Rules for three whereabouts failures within a 12-month period and imposed a period of ineligibility of 17 months from the date of this decision.

Under the Rules, he is required to make quarterly whereabouts filings by the 15th day of the month preceding the quarter; and must also provide for a 60-minute period each day between 5am and 11pm when he will be available and accessible for testing at a specified location.

The case concerned three alleged whereabouts failures as follows:

–  A missed test on 28 April 2022.

–  A failure to submit whereabouts information by the deadline set for the fourth quarter of 2022.

–  A missed test on 17 March 2023.

As regards the first test, he was not at the notified location and had failed to update his whereabouts information. Also, he was asked on three occasions to provide an explanation but failed to do so.

As regards the second failure, despite several reminders, he failed to provide the required information and was warned of the consequences and eventually explained that he was not aware that making late whereabouts filings would constitute a whereabouts failure and blamed his medical condition on not submitting the required information in a timely way.

As regards the third missed test, he stated that he was at home and did not have any missed calls and that he had slept a bit longer that day after a hard day on the bike the day before. He subsequently provided information about his family situation and a health issue; explained that his parents, with whom he lived, had left earlier for work during the morning of the third missed test; and that he sleeps with earplugs as he lives in a busy area, which was why he did not hear the ring at the door.

These explanations were not accepted by UCI, and he asked for his case regarding the third missed test, having accepted the other two, to be referred to the UCI Anti-Doping Tribunal.

On 29 April 2024, a hearing took place before the Single Judge, at which the Parties appeared and were represented by their legal counsels.

By her judgment, dated 21 May 2024, the Single Judge decided as follows:

• He had committed an ADRV in violation of Article 2.4 of the UCI ADR.
• He was suspended for a period of ineligibility of 17 months commencing on the day of her judgment.
• He was ordered to pay an amount of costs to the UCI in respect of the results management.

 On 20 June 2024, he appealed to CAS and the parties agreed to have the matter determined based on their written submissions without an oral hearing.

Taking all the evidence submitted by the parties into account, the CAS held that UCI had demonstrated, to the comfortable satisfaction standard required in doping cases, that everything that was necessary was done to try to locate the Rider and, therefore, the third missed test should be considered as a missed test, with the consequence that, with the first and second whereabouts failures, he had committed a violation of the UCI Anti-Doping Rules.

The only other matter for CAS to decide was the sanction to be imposed on Vlad Dascalu, based on his degree of fault in this case.

Having regard to the various submissions and evidence on file, CAS observed as follows:

“(a) the obligation is on the Rider to be present and available. The Rider himself chose the timing of the 60-minute time slot and elected to specify a time early in the morning;

(b) considering the Rider was part of the UCI RTP [Registered Testing Pool] for over two years, he was reasonably experienced and cognizant of the stringent requirements to be met by an athlete of his level;

(c) the Rider’s own evidence that he slept with earplugs and an eye mask demonstrates a lack of care on his part;

(d) the Rider did not take any steps to ensure that he would hear the DCO [Doping Control Officer] (particularly in light of the fact that his parents, who could wake him, were not at home), such as setting an alarm at the start of the 60-minute time slot or asking his parents to wake him before they left; and finally;

(e) given that he already had committed two whereabouts failure and was aware that a third could result in an ADRV, the Rider should have been on high alert and taken appropriate steps to avoid a missed test (CAS 2020/A/7528; at para. 184; CAS 2022/A/9033, at para. 149).”

Furthermore, the CAS Panel noted as follows:

“Pursuant to Articles 21.1.1 and 21.1.2 of the UCI ADR, the Rider is deemed to be aware of and to comply with the UCI ADR, the UCI TIR [Regulations for Testing and Investigations], and UCI RMR [Regulations for Results Management], as well as to be available for sample collection at all times. In any event, the fact that the Rider’s parents were not at home does not absolve him of liability, as the responsibility is always on the Rider (CAS 2022/A/9033, at para. 148; CAS 2015/A/4210, at para. 5.8).

In order to evaluate how much weight should be accorded to the Rider’s degree of fault in terms of sanctions, the Panel recalls the guidelines set in CAS 2020/A/7528 – which were also applied in CAS 2021/A/8529 and SR/092/2020 – which considered how the levels of fault and appropriate periods of ineligibility should be adapted to cases involved in ADRVs based on whereabouts failures. The levels of fault were categorized as follows: (a) “high” (20-24 months, with a midpoint of 22 months); (b) “medium” (16-20 months, with a midpoint of 18 months); and (c) “low” (12-16 months, with a midpoint of 14 months.

In this regard, the Panel notes that the Single Judge took the view that the level of fault for the First Whereabouts Failure was “high” (given that the Rider forgot to update his ADAMS [Anti-Doping Administration Management System]) and “relatively high” for the Second Whereabouts Failure (considering that the Rider had been provided with several reminders). In contrast, the level of fault for the Third Whereabouts Failure was assessed as “low” (given that the Rider was in the specified location but simply did not hear the DCO at his door). Accordingly, the Single Judge saw fit to conclude that the Rider bears a level of fault across the First, Second and Third Whereabouts Failures that may be characterised as “medium” which, bearing in mind the scale described in CAS 2020/A/7528, generated a range of between 16 and 20 months with a mid-point of 18 months.”

Accordingly, the CAS confirmed that the imposition of a 17-month period of ineligibility was a sensible and fair calibration of the degree of fault on the part of Vlad Dascalu in this case, having regard to all the facts and circumstances.

We advise and represent sportspersons in whereabouts anti-doping cases, which, as demonstrated in the Vlad Dascalu case, especially on the sanctions to be imposed, can be quite complex and controversial, and further information is available from either Noemi Delli Colli or Lucien Valloni by emailing them at ‘dellicolli@valloni.ch’ or ‘valloni@valloni.ch’  respectively.