The Court of Arbitration has released full details of their decision on Andrea Iannone as Iker Lecuona is ruled out of Valencia MotoGP weekend.
CAS has released full details of their decision on Iannone, who now has a four-year ban from racing activities, whether in MotoGP and or other championships. The report showcased whatever the Italian had submitted in his defence.
Together with it, the rebuttal from the FIM and WADA was also detailed, which made things clear as to why the ban on Iannone was extended. It centered around the Italian unable to provide details on the said contaminated meat he ate in Malaysia.
Both FIM and WADA concluded that the defence from Iannone wasn’t upto the mark, which CAS agreed. They eventually found that the earlier decision was not enough to penalise him. Interestingly, he is visiting the Aprilia garage this weekend at Valencia.
Here’s what Iannone submitted in his defence:
- Mr. Iannone concurs with CDI’s findings as to the fact that the ADRV was not intentional as it resulted from the consumption by Mr. Iannone of contaminated meat. Consequently, the Appealed Decision is not challenged on this point.
- Mr. Iannone primarily requests that the Appealed Decision be set aside and that, as per Article 10.4 ADC, the applicable ineligibility period be eliminated as he bears “No Fault or Negligence”. Alternatively, Mr. Iannone argues that, as per Article 10.5.1.2 ADC, the applicable period of ineligibility shall be reduced to the minimum under this Article, i.e. a reprimand, as he bears “No Significant Fault or Negligence” and Drostanolone “came from a Contaminated Product.” As a further alternative, Mr. Iannone submits that, as per Article 10.5.2 ADC, the applicable period of ineligibility shall be reduced to one year as he bears “No Significant Fault or Negligence.”
- Mr. Iannone submits that the CDI failed to apply Article 10.4 ADC, which should have resulted in the elimination of the applicable period of ineligibility.
- Mr. Iannone argues that the CDI wrongly considered that he failed to exercise due care to “ensure that no prohibited substance entered his body”. He claims to have carried out “all the best sensible, logical, imaginable efforts required” by “attending upscale restaurants that, according to normal due diligence, are supposed to offer top-quality food.”
- Mr. Iannone’s also submits that his professional career should be taken into account by the Panel as he “was always found to be negative.”
- Mr. Iannone also requests the Panel to take into consideration that he “made any possible and reasonable efforts […] to prove that he ate contaminated meat and that he was acted without any Fault or Negligence” as he voluntarily underwent a hair test after having been notified of the AAF.
- Mr. Iannone further submits, as an alternative basis, that the CDI failed to properly apply Article 10.5.1.2 ADC, which should have resulted in a reprimand as sanction in lieu of a period of ineligibility or, alternatively, in “the most lenient sanction this Panel will deem appropriate.”
- Mr. Iannone argues that CDI erred in finding that he. Iannone could have obtained information on the risk of meat contamination through a “reasonable internet research”. The internet research included in Prof. Salomone’s expert opinion, submitted with Mr. Iannone’s Statement of Defence, was conducted by an expert and not by Mr. Iannone himself. As a further alternative, Mr. Iannone argues that the CDI failed to properly apply Article 10.5.2 ADC, which should have resulted in a reduction of the sanction to one year instead of eighteen months for the same reasons set out above.
- In its Answer to WADA’s Appeal Brief of 7 August 2020, Mr. Iannone added, in response to FIM’s submissions, that FIM’s suggestion that Mr. Iannone could have obtained information on the risk of meat contamination by contacting Malaysian local government is not “credible”. He contends that an ordinary individual such as Mr. Iannone himself would not have been able to obtain any information from the Malaysian government as to its commercial imports and the origin of the meat eaten in the country. Mr. Iannone further asserts that he “diligently did everything he could do” by contacting the hotel and restaurant at which he ate during his stay in Malaysia. On the contrary, according Mr. Iannone, it was FIM’s responsibility to contact the Malaysian Government, as a “more authoritative and accredited interlocutor”, to obtain information and accordingly provide the athletes with guidelines to follow.
- Mr. Iannone rejects WADA’s assertion that the ADRV was intentional. He argues that the ADRV was not intentional as it resulted from eating contaminated meat during his stay in Asia, particularly in Singapore and in Malaysia before and during the competition. In this regard, Mr. Iannone submitted, before the CDI, witness statements from Mr. Stefano Marcaurelio, Ms. Monica Gasser and Mr. Marco Agostini. All testified that Mr. Iannone was a habitual (“strong”) consumer of meat.
- Mr. Iannone asserts that he ate meat on several occurrences during his stay in Singapore and Malaysia. To support this allegation, Mr. Iannone provided the Panel with several food and beverage receipts from the Sama Sama hotel in Malaysia as well as an email addressed to the hotel dated 27 July 2020 in which he wrote that that he had “eaten in your restaurants on the nights of 30th and 31st of October 2019 and of the 2nd and 3rd of November 2019 and I have consumed some meat. Therefore I need to know the origin of the meat that I have eaten.” Mr. Iannone did not specify before the Hearing what he had precisely eaten at Sama Sama Hotel and did so only at the Hearing, when solicited by the President of the Panel, by claiming to have eaten “meat” and more particularly “beef” and suggesting that the entry on Sama Sama Hotel receipt dated 2 November 2019, with the description “GP BF Dinner” must have been referring to it.
- Mr. Iannone further contends that he had dinner on 1 November 2019 at the Marini’s on 57 Restaurant, in Malaysia, where he also ate meat. Mr. Iannone adduced a bank statement in support of this allegation showing an entry debit for 1 November 2019 in the amount of EUR 561.07 to the credit of the said restaurant. He provided an affidavit from Mr. Paolo Campinoti, a family friend, in which the latter claimed to have called the owner of the restaurant to inquire about the origin of the meat and that said owner refused to assist as he did not want to “jeopardize the reputation of the restaurant […] despite the fact that Andrea Iannone had eaten at that place before the race”. It is, at this juncture and only when questioned by the President of the Panel at the Hearing as to his precise food consumption at said restaurant that Mr. Iannone proffered particulars, claiming that he ate a “large steak”. However, his expert, Prof. Salomone, relied in his report dated 26 February 2020 on the Beef Wagyu Ribeye and Wagyu Tenderloin as the possible source of the contamination suggesting that this was actually consumed by or claimed to have been consumed by Mr. Iannone but rather on the basis that these dishes were available on the menu of Marini’s on 57. At the Hearing, Mr. Iannone contended for the first time that he also ate meat, a “ragout” with beef, the day of the race, namely 3 November 2020, provided by a caterer present at the competition again when requested by the Panel to provide particulars as to what he actually consumed at the material time. Moreover, Mr. Iannone did so after his expert, Prof. Salomone, also claimed, in his presence, earlier during the Hearing, similarly for the first time and only when pressed by the Panel to give particulars, that Mr. Iannone had represented to him that he (Mr. Iannone) had eaten some “ragout.”
- Mr. Iannone’s experts contend that Drostanolone is used as a growth promoting agent despite of its prohibition in Malaysia, being easily accessible on the market, particularly on internet or on the black market, at affordable prices. Mr. Iannone’s experts submitted publications supporting the possibility of Drostanolone being used for such purpose. Mr. Iannone’s experts further asserted that the tests performed on meat in Asia, particularly in Malaysia, are ineffective and therefore incapable of detecting the presence of Drostanolone.
- Mr. Iannone’s experts also highlighted that Malaysia imported meat from numerous countries including, and in particular, from China which is known to have meat contamination issues. In light of the foregoing, Prof. Salomone concluded in his report dated 31 January 2020 that the meat contamination scenario was “very likely”. Prof. Salomone confirmed in a subsequent report dated 30 July 2020 that there was a “reasonable probability” that Drostanolone is illicitly used as a growth promoting agent and therefore that it is “very likely that Mr. Iannone was accidentally exposed to meat contaminated with drostanolone”. In a joint-statement dated 15 May 2020, Prof. Salomone and Prof. Kintz concluded more circumspectly that such scenario was “possible”.
- Mr. Iannone’s experts also referred to the hair test underwent by Mr. Iannone on 9 January 2020 which was negative, i.e. no Drostanolone was detected in the two segments of hair tested. The test was performed on two two-centimetre segments of hair covering 0 to 2 cm from the scalp, i.e. corresponding to the period from November 2019 to January 2020, and 2 cm to 4 cm from the scalp, i.e. corresponding to the period from September 2019 to November 2019. The hair test is, according to Mr. Iannone’s experts, to be considered as a complement to the urine test as it demonstrates that he was not exposed to the substance on a regular basis. Those experts contended that since Drostanolone is only effective if taken on weeks-long cycle, the hair test result demonstrates that the ADRV could not be intentional. To further underscore the relevance of the hair test, Mr. Iannone refers to a public statement made by Sir Craig Reedie, former President of WADA, according to which the hair test “will create tremendous opportunities for advances in anti-doping and allow our scientist to explore alternative approaches to testing samples for prohibited substances.” Therefore Mr. Iannone argues that to determine whether the ADRV was intentional, the Panel should take into account the hair test result. He relies particularly on Jarrion Lawson v. IAAF (CAS 2019/A/6313) (“Lawson”) and indicates that in that case the panel there took into account Mr. Lawson’s hair test result when assessing his intent or lack thereof.
- Mr. Iannone asserts that in addition to the hair test, the Panel should take into consideration his good faith as evidenced by, inter alia, the voluntarily performance of a hair test, his participation to the “athlete biological passport” program, and his clean track record. In this context, he refers to the Dominika Jamnicky v. CCES award (CAS 2019/A/6443 and CAS 2019/A/6593) (“Jamnicky”) and argues that the panel there included the “personality and credibility of the athlete” in its assessment of the intent. At the hearing, Mr. Iannone also argued that the panels in Lawson and Jamnicky recognized that, in certain circumstances, it is simply impossible for the athlete to establish the origin of the substance since the specific piece of meat consumed by him or her cannot be retrieved and therefore cannot be tested. Mr. Iannone drew a parallel between these two cases and the present one as it is, according to Mr. Iannone, also impossible for him to identify the origin of the substance as the specific piece of meat consumed by him equally cannot be retrieved.
- Mr. Iannone further submits that WADA’s experts have a close relationship with WADA accredited laboratories whereas Mr. Iannone’s experts are “internationally known and of the high value” and individuals with whom he had no previous relationship. In addition, Mr. Iannone asserts that WADA’s experts only presented “counterargument based on simple statements without proven support” and failed to provide “adequate scientific arguments.”
- Mr. Iannone argues that WADA’s statement that “[i]f a claim of contaminated meat where accepted (in the absence of any specific evidence) […], it would logically follow that any athletes found positive for low levels of steroid would have to be acquitted on an unsubstantiated claim of meat contamination” is “totally unacceptable”. According to Mr. Iannone, this statement shows that WADA considers this case as “a matter of policy and principle” and rejects the meat contamination scenario on the sole basis that it would entail a review of “all the parameters of doping controls”. On the contrary, Mr. Iannone asserts that this case should be seen as an opportunity to “identify new illegal tools used in animal doping, which can be extremely harmful to athletes.” Finally, with regard to WADA’s argument in relation to “No Fault or Negligence”, Mr. Iannone submits that, as in Lawson, the Panel should find that he bears “No Fault or Negligence”. Mr. Iannone invites the Panel to follow the reasoning of the panel in Lawson, and therefore to take into account that (i) the ADRV resulted from meat contamination, (ii) he always tested negative during his professional career, (iii) he voluntarily underwent a hair test, and (iv) he “made any possible and reasonable efforts […] to prevent the contested anti doping violation.” Mr. Iannone further criticizes WADA’s position in relation to Lawson even if a CAS decision can be subject to criticisms, it cannot be “attacked” as WADA has done with a view to its disapplication in a later case.
- Mr. Iannone submits, based on the foregoing, that WADA’s appeal should be dismissed.
Here’s what FIM submitted:
- FIM argues that the presence of Drostanolone was revealed by the test of Mr. Iannone’s A sample and confirmed by the test of the B sample, which have been accepted by Mr. Iannone himself. FIM claims that the hair test underwent by Mr. Iannone is irrelevant as hair test is “not suitable for general routine control” and is “considered solely as complement and not an alternative to the standard investigations.”
- FIM further asserts that, as stated in the Appealed Decision, as per Articles 10.2.1 and 10.2.1.1 ADC, if the violation is not intentional the applicable period of ineligibility shall be of maximum of two years. FIM considered that, although Mr. Iannone “could have been more active or investigative” by contacting the Malaysian competent authorities to obtain information on the risk of meat contamination, Mr. Iannone had demonstrated on a balance of probability that the presence of Drostanolone resulted from consumption of contaminated meat.
- FIM also submits that Mr. Iannone cannot rely on Article 10.4 ADC to justify the elimination of the period of ineligibility. Article 10.4 ADC only applies in “exceptional circumstances” in which the athlete exercised the “utmost caution in avoiding doping.” According to FIM, Mr. Iannone failed to exercise the utmost caution as he should have known that there was a risk of meat contamination.
- FIM concurs with the Appealed Decision and submits that as per Article 10.5.2 ADC, the period of ineligibility should be reduced by six months “due to the fact that [Mr. Iannone] bears No Significant Fault or Negligence.”
- FIM agrees with WADA that to Mr. Iannone had failed to provide any concrete evidence supporting the “food contamination scenario.” In addition, FIM asserts that Mr. Iannone “could have been more active and investigative” in his efforts to identify the source of the prohibited substance. However, in spite of this failure, FIM claims that the violation should still be considered as not intentional as it is probable that such scenario is correct. Consequently, the default period of ineligibility should be of two years.
- FIM contends in its Answer of 24 June 2020 that the circumstances justify that, as per Article 10.5 ADC, the period of ineligibility be reduced by six months.
Here’s what WADA submitted:
- WADA argues that Mr. Iannone committed an ADRV as proved by the in-competition doping control he underwent on 3 November 2019. Such violation is not challenged by Mr. Iannone.
- WADA contends that, as per Article 10.2.1.1 ADC, the period of ineligibility shall be of four years unless it is established that the ADRV was not intentional. WADA submits on the basis of several consistent CAS decisions, prior to Lawson and Jamnicky, that to demonstrate that the violation was not intentional, an athlete is generally required to establish the origin of the prohibited substance and that it is only in “extremely rare” cases with “exceptional circumstances” that an athlete might demonstrate that the violation was not intentional even if the origin of the prohibited substance cannot be established.
- WADA asserts that Mr. Iannone’s case does not present “exceptional circumstances,” consequently he is required to demonstrate the origin of the prohibited substance. WADA contends that, contrary to Mr. Iannone’s allegations, Lawson should not be followed as the panel “misapplied (or ignored) express provisions in the World AntiDoping Code […] and departed from a consistent and long line of cases.” WADA draws attention to the panel’s decision to place significant reliance on the athlete’s denials, polygraph results and clean track record in circumstances where previous CAS panels have consistently held that such elements are insufficient to establish to the required standard the lack of intent.
- WADA also criticizes the panel’s decision in Lawson to allow the athlete to benefit from a plea of “No Fault or Negligence” without establishing the origin of the substance given that the Article 10.4 ADC definition of “No Fault or Negligence” expressly requires its establishment. WADA further notes that Lawson has been subject to criticism from such experts in anti-doping law as Mr. Jonathan Taylor QC and Prof. Ulrich Haas.
- WADA adds that Lawson presents several material and factual differences to the present case which justify its non-application. In any event WADA refers to the fact that Mr. Lawson was able to identified what type of meat he ate, i.e. beef whence it was sourced by the restaurant where he ate it and Lawson concerned trenbolone which is a steroid permitted to be used in livestock farming in the United States, as well as other countries from which meat is there imported.
- WADA argues that Jamnicky (in which two of the three panel members had also determined Lawson), should equally not be followed by the Panel as it again took into account factors such as the athlete’s credibility which had been consistently discounted as not material by previous CAS panels. WADA further argues that, in any event, Jamnicky is distinguishable from the present case as there, but not here, the parties had agreed that the ADRV was not intentional.
- WADA also submits that the burden of proof as to the origin of the prohibited substance is the “balance of probability.” Mr. Iannone failed to provide any “concrete and contemporaneous evidence supporting the […] food contamination scenario.” In this regard, WADA refers to Mr. Iannone’s failure to identify precisely what type of meat he ate during his stay in Singapore and Malaysia. It argues that while Mr. Iannone referred to meals taken at the Sama Sama Hotel and at the Marini’s on 57 Restaurant none of the evidence produced by him whether hair test results, receipts, credit card statement, airplane ticket or other, themselves establish what he actually ate. WADA further points out that it was only, for the first time at the Hearing, that Mr. Iannone claimed that he ate “ragout” on the day of the competition but again without providing any particulars, information or witness testimony to corroborate this assertion.
- WADA further submits that, in addition to being unable to identify with sufficient specificity the type of food he ate, Mr. Iannone failed to take reasonable and diligent steps to obtain information as to the origin of the meat he claimed to have eaten. With regard to the Sama Sama Hotel, WADA notes that it was only on 27 July 2020, i.e. after the submission of WADA’s Joint Appeal Brief and Answer, that Mr. Iannone sent an email to the hotel to inquire about the origin of the meat. Despite the lack of answer from the hotel, Mr. Iannone failed to pursue his inquiries. With regard to the Marini’s on 57 Restaurant, WADA draws the same conclusion, namely that Mr. Iannone provided scant evidence and failed to demonstrate that he contacted the restaurant to obtain information on the origin of the meat. WADA considers that the only evidence adduced by Mr. Iannone, i.e. Mr. Campinoti’s affidavit, has very little probative value given that the latter was not made available for cross-examination at the Hearing.
- WADA submits that in light of the lack of evidence as to the use of Drostanolone in livestock, the probability of meat contamination with Drostanolone in Malaysia is “vanishingly thin, if not to say zero.” One WADA’s expert, Prof. Le Bizec concluded in his report dated 7 July 2020 that the probability of the contaminated meat scenario was “infinitesimal.” Furthermore, another WADA’s expert, Dr. Rabin, in its statement dated 12 February 2020 and at the Hearing, indicated that AAF with Drostanolone were “fairly frequent” with a slight increase in the recent years, which makes Drostanolone the third most reported anabolic steroid for doping in sport. In his second statement dated 6 July 2020, Dr. Rabin made particular reference to the fact that several AAF for Drostanolone were related to cases of bodybuilding. Dr. Rabin confirmed in his first statement, i.e. 12 February 2020, and at the Hearing that WADA has never encountered nor is aware of any case of meat contaminated with Drostanolone.
- WADA rejects Mr. Iannone’s allegation that hair test results should be taken into account by the Panel. WADA contends that negative hair test results do not exclude an intentional single administration of Drostanolone or even administration of repeated doses of Drostanolone. Further, according to WADA, a low dose of Drostanolone in the urine sample, even after an intentional use, is compatible with negative hair test results. Finally, WADA asserts that, in any event, hair test results are irrelevant as they cannot establish the origin of the substance.
- WADA concludes that Mr. Iannone failed to establish to the requisite standard, that the origin of Drostanolone in his urine resulted from meat contamination. Consequently, WADA submits that Mr. Iannone’s ADRV must be considered intentional. WADA added at the Hearing that, although it is not for WADA to put forward an alternative scenario explaining the ADRV, the presence of Drostanolone, which can be used for muscle recovery purposes, could be linked to an injury suffered by Mr. Iannone in September 2019 during the San Marino Grand Prix. WADA contended that the injury caused Mr. Iannone to be withdrawn from the San Marino Grand Prix and referred to a statement of Mr. Iannone as to the need to recover from this injury as quickly as possible. WADA alternatively argues that even if the Panel was to consider that lack of intent can exceptionally be demonstrated without establishing the origin of the substance, Mr. Iannone failed to establish that the case at hand presents exceptional circumstances permitting a finding that the violation was not intentional. Mr. Iannone’s reference to such matters as his clean track record, his lack of incentive to dope, the absence of any physical transformation in the period preceding the test the lack of potential effect of Drostanolone in the quantity found in is urine on his sports performance, are of insufficient materiality or weight to advance his case beyond his mere denial of its intentional ingestion.
- In the further alternative, WADA asserts that Mr. Iannone cannot, in any event, benefit from an elimination or reduction of the applicable period of ineligibility on the basis of Article 10.4 and 10.5 ADC, namely “No Fault or Negligence” and “No Significant Fault or Negligence”, as such finding always requires the athlete to establish how the substance entered his system. In this regard, WADA contends that the panel in Lawson erred by accepting the possibility that the athlete could benefit from No Fault or Negligence without establishing the origin of the substance. WADA argues that such finding is “expressly contradicted by the definition of No Fault or Negligence” (Article 10.4 ADC) as well as “the definition of No Significant Fault or Negligence” (Article 10.5 ADC).
- Consequently, WADA submits that Mr. Iannone should be sanctioned with a four-year period of ineligibility, and that the results obtained during the 2019 FIM World Championship MotoGP as well as any results obtained since the date of the sample collection should be annulled.
Here’s the 33-page decision in full: https://www.tas-cas.org/fileadmin/user_upload/Final_Award_CAS_6978-7068.pdf
Aside Iannone news, Tech 3 KTM confirmed that Lecuona will not be part of the Valencia MotoGP weekend after testing COVID-19 positive upon arrival at the circuit after his quarantine. He was in close contact of his brother and assistance, who were positive.
Lecuona tested negative last week but was forced into a quarantine and subsequently missed the European MotoGP. He was scheduled to return from FP3 onward this weekend after getting approval from the Andorran municipality to travel.
The positive result has forced him to miss this weekend’s grand prix but fortunately he hasn’t shown any symptoms. He will now undergo another test to try and return for the 2020 MotoGP finale in Portugal but should he not, Mika Kallio may fly in to replace him.
“We have sad news,” said Herve Pronchral. “Although Iker has been tested negative three times, the last test he took this morning at the entrance of the circuit showed positive. Therefore, he won’t be able to enter the circuit and participate at the Gran Premio de la Comunitat Valenciana. He will be tested furthermore in order to understand if ever he can fly to Portugal to participate at the last Grand Prix of the season in Portimao.”
Here’s what Andrea Iannone said about the ban