CAS 2016_A_4697 Elena Dorofeyeva vs ITF

CAS 2016/A/4697 Elena Dorofeyeva v. International Tennis Federation (ITF)

Related case:
ITF 2015 ITF vs Elena Dorofeyeva
June 9, 2016

Tennis
Doping
Required agreement of the parties regarding the applicable regulations
Nullity of the appealed decision due to the lack of jurisdiction of the federation upon someone outside its sphere of control

1. Article R58 of the CAS Code refers first and foremost to the “applicable regulations”. These are, in principle, in a doping-related case, the federation’s anti-doping regulations. However, in order for these regulations to be qualified as the “applicable regulations”, they must have been agreed by the parties, i.e. the appellant must have submitted to these rules either explicitly or implicitly.

2. The execution of a contract requires two concurrent declarations of intent, i.e. an offer by one party and an acceptance by the other party. Absent any specific provision to the contrary, the declaration of intent may either be expressly or tacitly. A conduct from which one might typically infer that someone agrees to be bound to a federation’s rules is if the person participates in the sport. The term “participation in sport” refers to entering into the “sphere of control” of the sports organisation. Such construction is also in line with the World Anti-Doping Code (WADC). Thus, in case an athlete participates in a competition organised by a federation s/he agrees to be bound by the applicable rules in said competition in turn for being admitted to the federation’s sphere of control. However, it cannot implicitly be inferred that a sports medicine specialist by participating in the disciplinary proceedings before the federation accepted to be bound by the respective provisions especially where s/he unequivocally contested the federation’s jurisdiction once s/he entered the federation’s sphere of control. According to WADC, assisting an athlete as such is not considered “participation in sport” and thereby agreeing to the anti-doping rules. Moreover, the contractual relationship between an athlete and a specialist does by no way mean that the latter also automatically entered into a concurrent legal relationship with a third party (the federation), thereby conferring disciplinary powers to the federation. This would only be true if – very exceptionally – the contract between the athlete and the specialist had to be qualified as a contract for the benefit of a third party. Therefore, if the sports medicine specialist never agreed to submit to the federation’s anti-doping regulations, s/he cannot be bound by them.


On 27 May 2015 the Independent Anti-Doping Tribunal of the International Tennis Federation (ITF) decided to impose a 6 month period of ineligibility on the Ukrainian Player Kateryna Kozlova after her sample tested positive for the prohibited substance 1,3-dimethylbutylamin (DMBA).
The Athlete admitted the violation and testified that the prohibited substance was an ingredient of the product Red Rum recommended, bought and suplied by Dr Elena Dorofeyeva and used before the matches in Turkey (in December 2014) and Australia (in January 2015).

As a consequence the Independent Anti-Doping Tribunal decided on 9 June 2016 to impose a 4 year period of ineligibility on Dr Dorofeyeva for the administration of the prohibited substance to Ms Kozlova.
Hereafter in June 2016 Dr Dorofeyeva appealed the ITF decision of 9 June 2016 with the Court of Arbitration for Sport (CAS).

The Appellant asserted that the accusations and charges have been created on fabricated documents with simultaneous hiding of key evidences. The Appellant filed several requests in her defence:
- the request to declare the appealed decision null and void;
- the request for damages;
- the declaratory Relief in respect to Articles 6, 8 ECHR;
- the request for permanent injunction.

The Sole Arbitrator finds that the ITF Independent Anti-Doping Tribunal unjustly assumed jurisdiction over the Appellant and, therefore, the Appealed decision must be declared null and void.
The Sole Arbitrator dismiss the Appellant’s damage claim, the claim for declaratory Relief and the claim for permanent injunction due to the Sole Arbitrator is convinced that it was Dr Dorofeyeva that provided the Athlete with the product Red Rum which caused the ADRV of the Athlete.

Therefore the Court of Arbitration for Sport decides on 3 February 2017 that:

1.) The Appeal filed on 30 June 2016 by Dr Elena Dorofeyeva against the decision rendered by the Independent Tribunal of the International Tennis Federation on 9 June 2016 is partially upheld.
2.) The decision rendered by the Independent Tribunal of the International Tennis Federation on 9 June 2016 is declared null and void.
3.) The request for payment of damages filed by Dr Elena Dorofeyeva against the International Tennis Federation is dismissed.
4.) The Award is pronounced without costs, except for the CAS Court Office fee of CHF 1 '000 (one thousand Swiss Francs) paid by Dr Elena Dorofeyeva, which is retained by the CAS.
5.) The Parties shall bear their own legal fees and expenses incurred in connection with these arbitration proceedings.
6.) All other or further claims are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
3 March 2017
Arbitrator
Haas, Ulrich
Original Source
Court of Arbitration for Sport (CAS)
Country
Ukraine
Language
English
ADRV
Administration / attempted administration
Legal Terms
Challenging a sole arbitrator
Competence / Jurisdiction
European Convention on Human Rights (ECHR)
Human rights
Nemo iudex in causa sua
Rules & regulations International Sports Federations
Sole Arbitrator
Sport/IFs
Tennis (ITF) - International Tennis Federation
Doping classes
S6. Stimulants
Substances
4-Methylpentan-2-amine (1,3-dimethylbutylamine)
Medical terms
Treatment / self-medication
Various
Athlete support personnel
Supplements
Document type
Pdf file
Date generated
20 March 2017
Date of last modification
29 May 2019
Category
  • Legal Source
  • Education
  • Science
  • Statistics
  • History
Country & language
  • Country
  • Language
Other filters
  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
  • Version
  • Document category
  • Document type
Publication period
Origin