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Ljubljana, 1.10.2012

Document no.: 315- 7- 80/ 12

Subject no.: BB-01-2012

D E C I S I O N

The panel of the Disciplinary Commission of the National Anti-doping Commission (NAC),

consisting of Irena Ilešič Čujovič as chair of panel and Brane Mežnar and Dušan Verbič as

members of panel has, in the matter of Anti-doping Department with the Olympic Committee

of Slovenia (OPBD), represented by Jani Dvoršak, versus athlete Boštjan Buč, represented by

attorney Maja Šerc from Velenje, for the anti-doping rules violation pursuant to Article 8.4 of

the NAC Anti-doping Rules, following its court hearing of 11 September 2012,

decided as follows:

1. Athlete Bošjan Buč has violated anti-doping rules pursuant to Article 8.4 of the

NAC Anti-doping Rules.

2. Pursuant to Article 37.1.3 of the NAC Anti-doping Rules, the athlete is imposed

the sanction of exclusion for a period of 1 (one) year, starting on the date of issue

hereof.

3. The athlete shall repay the procedural costs incurred by OBPD in the amount of

1,487.62 Euros.

SUBSTANTIATION:

The Anti-doping Department of the Olympic Committee of Slovenia (hereinafter: OBPD) has

on 24 August 2012 notified the Disciplinary Commission of NAC (hereinafter: DC) of the

fact that athlete Boštjan Buč (hereinafter: athlete) has allegedly violated anti-doping rules.

In its notification, OBPD stated as follows:

OLYMPIC COMMITTEE OF

SLOVENIA ASSOCIATION OF SPORTS

FEDERATIONS Anti-doping Department

Disciplinary Committee of the National Anti-doping Commission

Celovška 25, 1000 LJUBLJANA

SLOVENIA Tel..: +386 1 230 60 10 Fax.: +386 1 230 60 11 http://www.olympic.si

antidoping@olympic.si

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- that athletes included in the National Registered Testing Pool (NTRP) are pursuant to

Article 11.3. of International Standards for Testing (IST) obliged to participate in the

whereabouts program;

- that a three-member commission of OBPD recorded and registered three violations

with athlete Boštjan Buč in the past 18 months, namely missed test on 28 January

2012, filing failure on 30 May 2012 and missed test on 20 June 2012.

OBPD has supplemented the notification with documentation pertaining to the

aforementioned violations.

On the basis of the notification the DC decided to institute disciplinary proceedings and

invited the athlete for a hearing in relation to the alleged anti-doping rules violation and called

the athlete to prior to the hearing submit to the DC any additional information relevant to the

matter to be presented at the hearing, including a list of witnesses the athlete wishes to call to

the hearing.

In his written response to the violations, the athlete stated:

o with regard to the alleged 1st violation (missed test on 28 January 2012):

- that on 28 January 2012, there was no person present at the address of 114 Gozdarska

Ulica, Mislinja, that would identify as a doping control officer;

- that he traveled to Kenya on 3 January 2012, where he intended to stay until 20

January 2012, but was subsequently forced to extend his stay and was unable to

update the data in the ADAMS system or communicate with third parties due to non-

functioning of internet and telephone lines;

o with regard to the alleged 2nd violation (filing failure on 30 May 2012):

- that the notification of 30 May 2012 does not show when he is said to have violated

Article 15.10 of the NAC Anti-doping Rules (filing failure); the notification only lists

the date of 6 May 2012, so it should be stated that that was the date when OBPD was

notified of the alleged violation of rules by the athlete and that date is after the expiry

of absolute 14-day deadline set out by ITS;

- that the athlete was not notified of the date of violation by the notification of 30 May

2012 and was not given the opportunity to defend himself;

- secondly, that in his response to the notification the athlete stated that he has

performed all entries according to rules if the system allowed it and that he has often

experienced difficulties using the system; data can often not be deleted, entered or

altered data cannot be confirmed; the entire system often freezes or shuts down

completely;

- that the general statement of OBPD regarding the operation of ADAMS system and its

use of 35,000 athletes, “all of which are able to regularly and correctly fulfill their

obligations, so the issue is not with the ADAMS system” is false as athletes from

numerous countries have had difficulties using the ADAMS system, also, the head of

OBPD has in his interview for Dnevnik newspaper stated that “at the moment we have

a number of athletes that are causing difficulties”, meaning that the statement

regarding 35,000 athletes regularly and correctly fulfilling their obligations was false;

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o with regard to the alleged 3rd violation (missed test on 20 June 2012):

- that on the above date the athlete was present on the submitted location between the

hours of 6:00 and 7:00 (Sloboda bb, 31315 Zlatibor, Serbia);

- that he does not agree with the assessment that in this case due effort was put into

finding and testing the athlete;

- that he had stated all the available data regarding his whereabouts;

- that answering the telephone is not his duty, therefore the reproach is unsubstantiated;

- that he disclaims all the statements alluding to the fact that he was not at the submitted

location (incomplete invoice, time interval of driving distance between Zlatibor and

Velenje, inconsistencies in the statements of the athlete and attending physician

regarding the course of examinations);

- that the DCO did not search the address with due effort, if he had attempted to search

the smaller alleys beside the two main ones, he would have needed to turn of the main

street into a side alley and then into the alley leading up to the facility, then behind the

facility onto the car park, where the athlete’s vehicle was parked;

- that statements of the DCO regarding his interviewing of several local inhabitants

cannot be verified;

- that it is not true that Vodice have no running paths, on the contrary, there are some of

the most beautiful and best running courses shown to the athlete by his Serbian

friends.

In due proceedings the DC Panel has reviewed all the documents on file and questioned the

athlete. Other proposed evidence was rejected as unnecessary as their admission would in no

way aid the establishment of the actual state of affairs for reasons that are to be clarified in the

following text.

The DC Panel adopted its decision after reviewing all the evidence and after having examined

the additional statements made by the athlete and the OBDP on 17 September 2012.

The DC Panel has established that the athlete has violated anti-doping rules.

The legal basis for establishment anti-doping rules violation in this case is the provision of

Article 8.4 of the NAC Anti-doping Rules which states that “a violation of anti-doping rules

is a violation of applicable provisions regarding the availability of an athlete for out of

competition testing, as defined by the International Standard for Testing, including failure to

submit an accurate address of whereabouts pursuant to Article 11.3 of the International

Standard for Testing (“filing failure”) and non-availability for testing at the submitted address

pursuant to Article 11.4 of the International Standards for Testing (“missed test”). The

combination of three missed tests and/or filing failures over a period of 18 months, as

established by NAC, constitutes an anti-doping rules violation.”

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Provisions of Article 11.3 of IST regarding the reporting of whereabouts are very accurate and

state that athletes are obliged to do the following prior to the first day of each quarter of a

calendar year:

- report their whereabouts, including full mailing address for receiving post;

- report the address of their place of residence for each day;

- report the name and address of their place of training, work or performance of any

other regular activity for each day;

- publish their schedule of competitions for the coming quarter, including the name and

address of their place of training.

Submission of whereabouts must also include a 60-minutes time slot between 6:00 and 23:00

hours for each day of the following quarter, when the athlete is available for testing at a

designated location.

Pursuant to Article 11.4 of IST, an athlete who is part of the NRTP must be present and

available for testing on any day in a specified quarter during a 60-minutes time slot , as set out

precisely for each day in the submission of whereabouts at a place designated by the athlete.

It has been established irrefutably that the athlete was a part of the National Registered

Testing Pool (NRTP) and that he signed a statement of membership of NRTP on 15

December 2011, thereby obliging to fulfill his obligations regarding submission of

whereabouts information for the duration of his membership in NRTP.

The athlete received a password and directions for access to the ADAMS system from OBDP

on 11 October 2011 (by e-mail from the address adams@olympic.si) for the purpose of

entering whereabouts information pursuant to Article 11.3 of IST. He was also notified of the

fact that in case of trouble he was to use said e-mail address or mobile telephone number.

During the first quarter of 2012 the athlete received a number of electronic messages from

OBPD, notifying him of shortcomings in his entries in ADAMS and repeated the relevant

directions for use regarding system entries.

With regard to the 1st violation (missed test on 28 June 2012)

It is indisputable that on 28 January 2012, between 6:00 and 7:00 hours, when doping control

officers (DCO) visited the athlete, (this 60-minutes time slot, specified by the athlete in the

ADAMS system) the athlete was not present at the address Gozdarska c. 114, Mislinja.

As the main reason for his absence or lack of adjustment of data in ADAMS, the athlete listed

his lack of access to internet and telephone lines, disabling him from reporting changes to the

system in a timely manner. In his response to the violation of 6 September 2012, the athlete

explicitly stated that his lack of access to internet and telephone lines disabled him from

communicating with third parties, so he was unable to report the change of his whereabouts in

the sense of Article 11.3 of IST in due time.

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The relevant report of DCO of 28 January 2012, for which the DC Panel has no reason to

deem untrustworthy, states that the athlete’s father told the DCO that his son called him on 26

January (or two days earlier) and told him of his issues with internet connection in Kenya,

disabling him from suitably correcting information. At that date at the latest (26 January), the

athlete could correct information regarding his whereabouts as he could report the change to

OBPD via his father. The DC Panel is convinced that the athlete actually communicated with

his father via telephone and therefore could report changes in his whereabouts information to

OBPD either himself or via his father. As it is the opinion of the DC Panel that he failed to do

so without justified reasons, the testing is deemed unsuccessful due to the fact that the athlete

was not present at the given address during the given 60-minutes time slot.

The DC Panel wishes to add that the objection of the athlete in his response to the violation of

6 September 2012, with regards to the fact that the DCO did not identify himself, is not

relevant in this case. In accordance to Article 5.4.2. of IST, the DCO is obliged to identify

himself only to the athlete and only in case when testing can be carried out, i.e. the athlete is

available for testing. In the case in question the athlete was not present at the given place and

time, a fact (indirectly) admitted even by the athlete himself. Proposals of evidence for the

hearing of witness Drago Buč, father of the athlete, and inquiry with the Slovenj Gradec

police station are deemed irrelevant in view of the above fact as they were proposed for the

evidencing of facts that are not relevant.

With regard to the alleged 2nd violation (filing failure, notification of 30 May 2012)

Statements of the athlete that violations with regard to filing failure, described in notification

of 30 May 2012, were not dated are correct, however, the senate of DC believes that

violations were nevertheless identifiable for a person using ADAMS, although they were not

explicitly dated. The notification of 30 May 2012 lists the following errors in the submitting

of whereabouts information:

- failure to list overnight accomodation;

- unavailability for testing under the travel category despite the fact that travel was only

conducted in the afternoon;

- failure to submit the changes is calendar - the last submission was carried out on 6

May 2012 despite automatically generated warnings of the ADAMS application;

- two different locations for 60-minutes time slot in one day;

- subsequent deletion of notations of the 60-minutes time slot in the current day.

At first glance, a person reading such a notification may not understand in full the type of

violations made. However, in the course of establishment of filing failure pursuant to Article

11.3 of IST it should be considered that the athlete had access to ADAMS at all times and was

absolutely clear about the subject of such warnings upon receiving them. This is evidenced

also by his immediate response to the notification, made on the same day (30 May 2012), in

which he states that all his entries were made in accordance with the rules if they were

allowed by the system, but that he concludes that the issue may be due to technical difficulties

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in the system. He does not, however, list the type of violations in question. His first

statements to that effect were made in the disciplinary proceedings in his response of 6

September 2012.

The alleged violations were multiple and diverse - as stated in the notification. Since a single

wrongful entry (or lack thereof) into ADAMS constitutes a violation, it is the opinion of DC

that the athlete should be relieved of liability for all the violations in the last two weeks prior

to the issue of notification. These are the following, as shown in the document “Explanation

of filing failure of 30 May 2012”, as submitted by OBPD at the hearing of 11 September

2012:

- failure to submit overnight accomodation; 21 May and 23 to 26 May 2012;

- unavailability for testing under the travel category despite the fact that travel was only

conducted in the afternoon, i.e. travel did not occupy the entire period of time from

6:00 to 23:00 hours. 19 May (from 20:00 to 20 May at 19:00), 20 May (from 9:00 to

19:00), 22 May 2012 (from 12:00 to 22:00);

- failure to resubmit amendments to the calendar - the last submission was carried out

on 6 May 2012 despite automatically generated warnings of the ADAMS application

(athlete altered the calendar but failed to resubmit changes on 18, 20, 21, 24, 26 and

28 May 2012);

- whereabouts information for the 60-minutes time slot lists two different locations for

one day (27, 29 and 30 May 2012 at the addresses Gozdarska cesta 114, Mislinja and

Julianalan, Br. Gieten, the Netherlands);

- subsequent deletion of notations of the 60-minutes time slot in the current day (28

May 2012).

In relation to the above violations, the athlete stated only general claims of the system being

inoperable and provided his opinion of what can be understood from his entries. Statements of

the athlete and admitted evidence do not constitute sufficient basis for the DC Panel to decide

in favor of the athlete. It is the opinion of the DC Panel that OBPD has proven that errors

were made by the athlete, who in turn did not deny them but rather blamed them on the

system. In its submission of 17 September 2012, OBPD provided evidence of other athletes

uninterruptedly fulfilling their obligations in ADAMS (record, appended to the response of 17

September 2012 which shows, that a number of athletes submited their entries into ADAMS)

meaning that the athlete could reasonably to the same as he did not, as stated before, claim

any special circumstances that would disable him personally from using the online

application. In this part the DC Panel also responds to the remark of the athlete, that the

statement of OBPD regarding all athletes being able to regularly and correctly fulfill their

obligations in the ADAMS system is in contradiction with the statement made by Mr.

Dvoršak in his interview for the Dnevnik newspaper, in which he states that there are several

athletes making problems. The DC Panel believes that there is no contradiction in the above

statements as the first refers to the operation of the ADAMS system, while the second refers

to athletes and their lack of understanding of their obligations in relation to entries in the

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ADAMS system. It is clear that some athletes make mistakes, but such mistakes cannot be

attributed to the operation of the ADAMS system, but rather to the athletes themselves.

Due to the fact that violations were not defined by date in the notification, but were dated by

OBPD only at the hearing of 11 September 2012, the athlete was given additional time to

respond to the dated statements of OBPD. Despite the opportunity for a response to

violations, the athlete even in his response of 17 September 2012 failed to list actual

circumstances that could cause his conduct in relation to submission of whereabouts

information. The athlete on the one hand stated that he “was not able to delete the title of the

60-minutes time slot for the date in question” and that led him to “add a new title (current) for

the aforementioned dates” and stated that his whereabouts were clear in accordance to the

latest data. On the other hand, in relation to violations regarding subsequent deletion of

notations of the 60-minutes time slot in the current day, the athlete stated that “the Code and

MS do not state that past 60-minutes time slots for the current day should not be deleted”. In

this case he was apparently able to delete information while in the first case he could not erase

information (of the same type).

In his response the athlete mentions the fact that the date of 6 May 2012 is the only date

listed, but he fails to consider that this is the date of the last entry or submission of changes

and not the date of the violation. The athlete’s statement, that the last submisson of data was

not on 6 May 2012, but that he had submited data on 28 May 2012, fails to differ between

entry of data and entry of amendment or change of data. Reproach in the notification in this

part relates to the lack of entry of amendments (the last was entered on 6 May 2012). On 28

May 2012 the athlete entered new information (60-minutes time slot) and not an amendment

of existing data.

In relation to statements of the athlete in his response of 17 September 2012, that conduct of

OBPD is unfair also in light of provisions of Article 11.2.3.5 c) of IST, the DC Panel

established that the provisions in question do not relate to violations as defined in the

notification of 30 May 2012. The provisions of Article 11.3.5 c) of IST the athlete refers to,

pertains to cases in which an athlete performs multiple violations over a short period of time

(a quarter), whereby he only receives notification of the latest violation and is given a certain

period of time to remedy the error (enter/correct whereabouts information). If errors are not

corrected in the given period of time, the athlete may receive a second violation, etc. It is

therefore the opinion of the DC Panel that the conduct of OBPD, which did not record every

single violation of the procedure of submitting whereabouts information, cannot be deemed

“arbitrary and one-sided conduct to the damage of the athlete” but quite the opposite - conduct

allowing the athlete a second chance. If the OBPD were very strict in upholding the above

Article 11.3.5 c) of IST, the athlete would have recorded three violations of submission of

whereabouts only for his actions in May 2012, as they are available to the DC Panel, which

would lead to proceedings for establishment an anti-doping rules violation in the sense of

Article 8.4 of NAC Anti-doping Rules.

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With regard to the alleged 3rd violation (missed test on 20 June 2012)

It is a key rule that athletes must report a location where they can be reached. Commentary to

Article 11.2.3 of IST shows that “athletes must provide sufficient information to enable DCOs

to find a location, gain access to said location and find the athlete”. If the establishment of the

location of an athlete requires e.g. a phone call, the purpose of unannounced testing is

defeated by being announced. The athlete is certainly aware of that fact or should be aware of

it, at least upon his arrival at Zlatibor and finding out that he could not have found his

apartment without being taken there by his host at the tourist agency, as the athlete stated

himself at the hearing on 11 September 2012.

It is the opinion of the DC Panel that the athlete did not completely fulfill the requirement for

reporting his whereabouts. The least the athlete could have done is to report either

geographical coordinates of his location, available using common devices, or describe the

route from the main street to the apartment, as he did in his response of 17 September 2012,

where he stated that “the controller did not search the address with due effort, if he had

attempted to search the smaller alleys beside the two main ones, he would have needed to turn

of the main street into a side alley and then into the alley leading up to the facility, then

behind the facility onto the car park, where the athlete’s vehicle was parked”. This manner (or

perhaps more accurately - turn left/right, which street, after how many meters...) of location

description would doubtlessly fulfill the criteria set for whereabouts information, but the

athlete did not report it as such. The DC Panel did not admit other statements and evidence

proposed in relation to this violation (hearing of witnesses Danijela Stedžič, Olivera Jevtić,

calling of a road traffic expert witness), as the athlete wished to use them to evidence facts

that would have no bearing on the decision of the senate of DC.

Sanction

Pursuant to Article 37.1.3. of the NAC Anti-doping Rules, sanctions for the anti-doping rules

violation according to Article 8.4 of the Rules is suspension for a minimum of one (1) year

and a maximum of two (2) years with regard to the degree of guilt of the athlete.

The DC Panel decided for the most lenient sanction predominantly for the fact that, regardless

of the athlete being experienced and having been a member of the registered testing pool at an

international level (IAAF RTP), the NRTP system is relatively new in Slovenia (introduced at

the end of 2011). In view of this, the DC Panel believes that the conduct of the athlete does

not have the maximum component of guild and should therefore be penalized with a more

lenient sanction.

Costs

In accordance with Article 33.6 of the NAC Anti-doping Rules, the DC Panel has decided on

the costs of proceedings. As the DC Panel has found that the athlete has violated anti-doping

regulations, he shall be charged with payment of the costs of procedure. OBPD reported the

following costs in the procedure: presence of DCO in Mislinja (award 206 €, travel expenses

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66.60 €), invoice of the Anti-Doping Agency of Serbia (300 €), DC Panel costs (award 774 €,

travel expenses 91.02 €) and lease of hall (50 €), total of 1,487.62 €. The DC Panel has

established that all of the reported costs represent costs incurred in the procedure or due to the

procedure.

Legal caution: This decision is subject to appeal within 14 (fourteen) days of receipt hereof.

Appeals shall be subject to the arbitration of NAC.

Ljubljana, 1 October 2012

Disciplinary commission of the National Anti-doping Commission

Chair of Panel: Irena Ilešič Čujovič