CAS AWARD 2024/A/11046 ELETTRICO v. NADO ITALIA

The recent Award rendered by the Court of Arbitration for Sport (CAS) constitutes a significant ruling in the field of anti-doping sports justice.

The Award provides an in-depth analysis of the management of the whereabouts system, clarifying the circumstances under which conduct, that is formally compliant, may nonetheless amount to a substantive breach of whereabouts obligations and qualify as evasion under Article 2.3 of the Italian Anti-Doping Code (Codice Sportivo Antidoping – CSA).

The case is of particular relevance not only because of its sanctioning consequences, but, above all, due to the interpretative approach adopted by the CAS, which strengthens a substantive and functional reading aimed at safeguarding the effectiveness of anti-doping controls, fully consistent with the underlying rationale of the WADA (World Anti-Doping Agency) Code.

Tommaso Elettrico, a cyclist affiliated with a Sports Promotion Body and included in the NADO (National Anti-Doping Organisation) Italia Registered Testing Pool (RTP) since 2022, was subjected to disciplinary proceedings for alleged irregularities in the management of his whereabouts information.

Between 9 February and 3 March 2024, the cyclist made a series of repeated amendments within the ADAMS (Anti-Doping Administration & Management System) platform, relating both to his overnight accommodation and to his daily one-hour time slot for testing availability.

Although these amendments were formally submitted within the prescribed time limits and did not contain manifestly false information, they resulted in a situation of constant uncertainty regarding his actual location, with fragmented alternations between various locations in Italy and periods spent abroad.

According to the Italian National Anti-Doping Prosecutor’s Office, this pattern of conduct effectively prevented NADO from carrying out an out-of-competition test.

At first instance, the Italian National Anti-Doping Tribunal reclassified the conduct under Article 2.5 CSA, finding that it constituted tampering with the doping control process, and imposed a four-year period of ineligibility.

On appeal, however, the Italian National Anti-Doping Appeal Court (Corte Nazionale di Appello Antidoping – CNAA) brought the conduct back within the scope of the original charge under Article 2.3 CSA and fully upheld the sanction. The athlete subsequently lodged an appeal before the CAS.

One of the first issues addressed by the CAS Sole Arbitrator in the case concerned the jurisdiction of the CAS, which had been challenged by NADO Italia on the basis that the athlete was to be regarded as a national-level athlete. The CAS rejected this objection and affirmed its jurisdiction to hear the appeal.

The CAS ruling is grounded in a systematic interpretation of the WADA Code and the CSA, as well as in the express reference to CAS jurisdiction contained in the CNAA decision. The Sole Arbitrator emphasised that an excessively restrictive interpretation of access to CAS would risk undermining the right of defence and creating unjustified disparities of treatment between athletes subject to substantially identical anti-doping obligations.

Whilst not establishing an absolute principle, the CAS Award clarifies that inclusion in the RTP and the intensity of whereabouts obligations may justify access to the international arbitral tribunal even for athletes who are not formally classified as “international-level athletes”.

A central aspect of the Award concerns the correct legal characterisation of the contested conduct.

The CAS confirmed the approach adopted by the CNAA, drawing a clear distinction between Article 2.5 CSA, which presupposes an active and direct interference with the doping control process, and Article 2.3 CSA, which also encompasses conduct that is apparently lawful but nevertheless capable of evading the anti-doping control system.

According to the CAS Sole Arbitrator, tampering typically entails a fraudulent alteration of the control process, such as the provision of false information or physical interference with sample collection. Evasion, by contrast, may also occur through the formally correct use of the tools provided by the anti-doping regulatory framework, where such use is instrumental in rendering a doping control impracticable or excessively difficult.

This clarification is of particular importance, as it expressly establishes that a breach of anti-doping obligations cannot be excluded solely on the basis of the formal correctness of the information entered into ADAMS.

Furthermore, the CAS firmly reiterated that the whereabouts system is not designed to guarantee the athlete’s maximum organisational freedom, but rather to enable effective, unannounced and timely testing. From this perspective, the obligation to update whereabouts information does not amount to a mere bureaucratic formality, but rather constitutes a genuine duty of good-faith cooperation.

The Sole Arbitrator emphasised that, in the present case, the continuous amendments produced an overall effect of uncertainty and fragmentation that was incompatible with the purpose of the system. What is decisive is neither the precise number of amendments nor the formal compliance with updating deadlines, but rather the concrete impact of the conduct on the possibility of locating the athlete for out-of-competition testing.

A principle of considerable practical significance has thus been affirmed: formal correctness is not sufficient where the use of the system is distorted in relation to its intended function.

With regard to the subjective element, the CAS clarified that, in order to establish a violation of Article 2.3 CSA, it is not necessary to demonstrate that the athlete was aware of an imminent doping control. It is sufficient that the athlete engaged in conduct objectively capable of hindering the control, whilst accepting the risk that such conduct would produce that effect.

Finally, the CAS excluded the possibility of recognising the cyclist as a “recreational athlete”, noting that inclusion in the RTP already constitutes, in itself, a precluding factor. This conclusion is further supported by the cyclist’s competitive experience, the continuity of his sporting activity, and the existence of economic interests connected to cycling.

As regards the sanction, the CAS Sole Arbitrator found that the four-year period of ineligibility was correctly imposed, observing that the conditions required under the CSA for a reduction below the minimum sanction were not met. According to the CAS Sole Arbitrator, the principle of proportionality is already embedded in the normative structure of the WADA Code and cannot be invoked in a generic manner to obtain a mitigation of the sanction in the absence of specific qualifying circumstances.

We act in doping cases in Italy and further information is available from the Head of our Italian Law Practice, Avv. Sara Botti, by emailing her at botti@valloni.ch.