In March 2008 the International Rugby Board (IRB) has reported an anti-doping rule violation against the Venezuelan rugby player Angel Gonzalez after his sample tested positive for the prohibited substance Nandrolone. After notification a provisional suspension was ordered and he was heard for the IRB Judicial Committee.

The Athlete accepted the test result and stated that the violation was not intentional and caused by the supplements he had used. After notification of the test result the Athlete has learned that it is not uncommon that ‘natural’ supplements contain prohibited substances and that he can’t rely solely on the label information of these supplements.

While the Athlete made reference to the lack of anti-doping education, he acknowledged that he uses the internet but had not read any of the information on the IRB website or elsewhere which describes the various anti-doping rules and programmes in Spanish.

The Judicial Committee notes, with great concern, that once again, we find ourselves dealing with an international level player who has received little, if any, anti-doping education. Although appropriate information and material is disseminated by the Board to every union, for one reason or another it seems that such information is often not disseminated onwards to players, coaches, medical advisers and others involved in the Game.

Without grounds for a reduced sanction the IRB Judicial Committee decides on 28 June 2008 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 17 March 2008.

In March 2008 the International Rugby Board (IRB) has reported an anti-doping rule violation against the Venezuelan rugby player Angel Gonzalez after his sample tested positive for the prohibited substance Nandrolone. After notification a provisional suspension was ordered and he was heard for the IRB Judicial Committee.

The Athlete accepted the test result and stated that the violation was not intentional and caused by the supplements he had used. After notification of the test result the Athlete has learned that it is not uncommon that ‘natural’ supplements contain prohibited substances and that he can’t rely solely on the label information of these supplements.

While the Athlete made reference to the lack of anti-doping education, he acknowledged that he uses the internet but had not read any of the information on the IRB website or elsewhere which describes the various anti-doping rules and programmes in Spanish.

The Judicial Committee notes, with great concern, that once again, we find ourselves dealing with an international level player who has received little, if any, anti-doping education. Although appropriate information and material is disseminated by the Board to every union, for one reason or another it seems that such information is often not disseminated onwards to players, coaches, medical advisers and others involved in the Game.

Without grounds for a reduced sanction the IRB Judicial Committee decides on 28 June 2008 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 17 March 2008.

In April 2008 the International Rugby Board (IRB) has reported an anti-doping rule violation against the Georgian junior rugby player Ladiko Chochishvili after his sample tested positive for the prohibited substance 19-norandrosterone (Nandrolone). After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the IRB Judicial Committee.

The Athlete admitted the violation and denied the intentional use of a prohibited substance. He stated that previously he had consulted his doctor in Georgia because of food poisoning symptoms and he had received several injections and taken pills without knowledge that a banned substance was administered. The Athlete didn’t know what his doctor had prescribed and attempts hereafter to contact the doctor were unsuccessful.

The Committee did not accept the Athlete’s statement and finds that he failed to produce relevant evidence about the prescribed medication and his effort to contact the doctor in an unnamed village in Georgia in his attempt to establish exceptional circumstances.

Without grounds for a reduced sanction the IRB Judicial Committee decides on 4 July 2008 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 25 April 2008.

In April 2008 the International Rugby Board (IRB) has reported an anti-doping rule violation against the Chilean junior rugby player Francisco Metuaze after his sample tested positive for the prohibited substance clenbuterol. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the IRB Judicial Committee.

The Athlete did not challenge the test result, admitted the violation and denied the intentional use of the prohibited substance.
He stated that he had used a product marked “clenbuterol” provided by a friend to reduce the percentage of fat in his body without realizing that clenbuterol was a prohibited substance.
At the previous Doping Control the Athlete mentioned the clenbuterol on the Doping Control Form but he didn’t test positive. He forgot to mention the clenbuterol on the Doping Control Form when he provided the samples which tested positive.

The Committee concludes that Athlete committed the anti-doping violation and finds that he seems to accept his responsibilities and that he also clearly ignored the anti-doping education he had received.

Without grounds for a reduced sanction the IRB Judicial Committee decides on 4 August 2008 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 25 April 2008.

In April 2008 the International Rugby Board (IRB) has reported an anti-doping rule violation against the Chilean junior rugby player Francisco Metuaze after his sample tested positive for the prohibited substance clenbuterol. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the IRB Judicial Committee.

The Athlete did not challenge the test result, admitted the violation and denied the intentional use of the prohibited substance. He stated that he had used a product marked “clenbuterol” provided by a friend to reduce the percentage of fat in his body without realizing that clenbuterol was a prohibited substance.
At the previous Doping Control the Athlete mentioned the clenbuterol on the Doping Control Form but he didn’t test positive. He forgot to mention the clenbuterol on the Doping Control Form when he provided the samples which tested positive.

The Committee concludes that Athlete committed the anti-doping violation and finds that the he seems to accept his responsibilities and that he also clearly ignored the anti-doping education he had received.

Without grounds for a reduced sanction the IRB Judicial Committee decides on 4 August 2008 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 25 April 2008.

CAS 2014/A/3772 Salmon Rutgert Van Huyssteen v. International Rugby Board

In September 2013 the South African Institute for Drugfree Sport (SAIDS) has reported an anti-doping rule violation against the minor Athlete Salmon Rutgert Van Huysssteen after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

The Athlete and his parents admitted the violation and stated that the Athlete was injected in September 2012 a medication Deca 300 which was provided by a cousin, a bodybuilder, who had assured that the product was “safe”.

On 14 March 2014 the SAIDS Anti-Doping Disciplinary Panel decided to impose a 12 month period of ineligibility on the Athlete. The International Rugby Board (IRB) appealed this decision and on 8 September 2014 the Anti-Doping Appeal Tribunal of South Africa decided to set aside the decision of 14 March 2014 and to impose a 24 month period of ineligibility on the Athlete.

Hereafter in October 2014 the Athlete appealed the decision of the Anti-Doping Appeal Tribunal with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel for a reduced sanction because he did not act with any Significant Fault or Negligence. The Athlete argued that he was not a professional athlete when the violation was committed and he had never received any anti-doping education whatsoever. He contended he was administered the injections by his mother and that for a sixteen-year old boy it is both normal and reasonable to rely on the advice of his parents and not to cast any doubt on the trust he should have in the care he receives from them. The Athlete had admitted the violations, had been cooperative throughout the proceedings and had explained how the prohibited substance entered his system.

The Panel finds the IRB did not produce any evidence whatsoever to contradict the Athlete’s testimony (or his mother’s testimony for that matter) and the Panel does not question the Athlete’s explanation as to the source of the Prohibited Substance.

The Panel concludes that by completely ignoring all of the clear risks related to the use of a product about whose content and source he could not be and was not sure and by failing to carry out even the most basic search to verify whether the product contained a Prohibited Substance, the Athlete acted in a manner that deviates significantly from the standard of behavior expected of an athlete in his specific circumstances. This departure is all the more significant, considering that, as indicated, the Athlete knowingly and willfully accepted the “risk” of participating in sports competitions with a prohibited substance in his system.

Having considered the Parties’ submissions and the evidence provided by them, the Panel finds that the Athlete committed an ADRV pursuant the IRB Rules and that the conduct held by the Athlete does not permit a reduction of the sanction on the basis of Article 21.22.5 of the IRB Regulations (No Significant Fault or Negligence).

Therefor the Court of Arbitration for Sport decides on 19 June 2015 that:

1.) The appeal filed by Mr Salmon Rutgert Van Huyssteen on 29 September 2014 against the decision issued by the Anti-Doping Appeal Tribunal of South Africa on 8 September is dismissed.
2.) The decision issued by the Anti-Doping Appeal Tribunal of South Africa on 8 September 2014 is confirmed.
3.) The costs of the proceedings, to be separately determined and communicated by the CAS Court Office, shall be borne by Mr Salmon Rutgert Van Huyssteen.
4.) Mr Salmon Rutgert Van Huyssteen shall contribute CHF 1,000 to the legal and other costs incurred by the International Rugby Board in these arbitral proceedings.
5.) All further prayers for relief are hereby dismissed.

CAS 2017/O/5039 International Association of Athletics Federation (IAAF) v. Russian Athletic Federation (RUSAF) & Anna Pyatykh

• Athletics (triple jump)
• Doping in a re-testing context (oxandrolone, methenolone, mesterolone, dehydrochlormethyltestosterone (DHCMT))
• Applicable law
• Statute of limitation
• Proof of presence of a prohibited substance
• Proof of use of a prohibited substance
• Disqualification of results according to fairness principle

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1. Pursuant to the legal principle of tempus regit actum, procedural matters of a case are governed by the regulations in force at the time of the procedural act in question. The substantive aspects of an alleged anti-doping rule violation shall be governed by the version of the applicable rules in force at the time of the alleged violation unless the rules applicable at that time contain a lex mitior rule and the application of this leads to the applicability of another version of the respective rules in the specific case.

2. According to Rule 49.1 of the 2016-2017 IAAF Rules, the statute of limitations contained in Rule 47 of the 2015 WADA Code is a procedural rule. Rule 49 explicitly regulates the intertemporal scope of application of the 10-year limitation period contained in the 2015 WADA Code. Accordingly, the statute of limitation of 10 year contained in Rule 47 shall only be applied to violations that have occurred prior to the entering into force of the 2015 WADA Code, i.e. 1 January 2015, provided the previously applicable statute of limitation of 8 years has not already expired on 1 January 2015.

3. Where a prohibited substance has been found in the context of retesting of an athlete’s A-sample and where it is undisputed and uncontested that the athlete consumed a non-specified substance prohibited in- and out-of-competition under section S1.1.a, known to be sport performance enhancing, a violation of Rule 32.2 (a) of the 2007 IAAF Rules for presence of a prohibited substance is established.

4. Facts related to an anti-doping rule violation (ADRV) may be established by any reliable means pursuant to Rule 33.3 of the 2013 IAAF Rules. As relevant to the expert investigation, reliable means include contextual evidence, Initial Testing Procedure (“ITP”) screen of the national laboratory indicating possible prohibited substances, forensic evidence related to sample tampering or substitution, witness evidence linking a particular athlete to doping. The combination of different types of facts provided by the expert report with respect to any individual athlete are circumstantial evidence that can be used to establish an ADRV pursuant to Rule 33.3 of the 2013 IAAF Rules. In principle, whether there is sufficient evidence to demonstrate an ADRV or not must be considered on a case-by-case basis. It follows that facts related to an ADRV need not to comply with the Standard for Testing & Investigation (ISTI), the International Standard for Laboratory (ISL) or other laboratory requirements.

5. The general principle of fairness must prevail in order to avoid disproportional sanction. The application of fairness is not only in accordance with the general principle of law, but also with the “fairness exception” mentioned in Rule 39.4 of the 2007 IAAF Rules. The principle of proportionality requires to assess whether a sanction is appropriate to the violation. Excessive sanctions are prohibited. It is not appropriate to maintain results on the basis of fairness where the doping is severe, repeated and sophisticated. Not to disqualify results that have been achieved by using a Prohibited Substance cannot be considered as fair with regard to other athletes that competed against the athlete during this period. However, it is not fair to disqualify any results of the athlete during a period where there is no evidence that the athlete used doping substances or methods.

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In this case two distinct sets of facts amount to separate anti-doping rule violations against the Russian Athlete Anna Pyatykh:

• (A) a retesting of a sample collected in 2007 (the Retesting Allegation); and
• (B) the Moscow washout testing as described in the Richard H. McLaren, Independent Person reports of 16 July 2016 (the First IP Report) and of 9 December 2016 (the Second IP Report) and the underlying evidence (the Washout Allegation).

To avoid detection at the 2013 IAAF World Championships, the Moscow Laboratory conducted “under the table testing" (pretesting) on the samples provided by the Athlete. All the results of the unofficial testing were reported on the Washout Schedule. The Washout Schedule indicated that the Athlete was tested three times in July 2013 before the 2013 IAAF World Championship.

When the Athlete’s third sample of 25 July 2013 showed normal levels the Washout Schedule indicated that the Athlete was “like clean”. As a result the Athlete was allowed to compete at the 2013 IAAF World Championship, as the Russian knew that she would not test positive.

In December 2016 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Athlete after reanalysis of her sample, provided in 2007, tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).

In February 2017, after publication of the Second IP Report and the underlying evidence, the IAAF reported a second anti-doping rule violation against the Athlete for the use or attempted use of multiple prohibited substances in 2013: Oxandrolone, Methenolone, Mesterolone and Turinabol including a T/E ration above the WADA threshold.

After notification a provisional suspension was ordered. Because the Russian Athletics Federation (RusAF) was suspended by the IAAF the case was referred in March 2017 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel. The Athlete filed a statement in her defence and she was heard for the CAS Panel.

 The IAAF argued that the Athlete committed this anti-doping rule violation as part of a doping plan or scheme and used multiple prohibited substances or used prohibited substances on multiple occasions. Also the first reported anti-doping rule violation following the retesting of the Athlete’s sample must be taken into account when assessing the Athlete’s sanction.

The Athlete stated as to the Retesting Allegations that contaminated supplements she used in 2007 could apparently have caused the positive test result. As to the Washout Allegations, the Athlete asserted that she has always been tested officially, strictly in accordance with the WADA Code and the IAAF Rules and she has never provided the unofficial urine samples.

The main issues to be resolved by the CAS Sole Arbitrator are:

• Did the Athlete violate Rule 32.2(a) of the 2007 IAAF Rules?
• Did the Athlete violate Rule 32.2(b) of the 2013 IAAF Rules?

The Sole Arbitrator determines that the prohibited substance Turinabol has been found in the Athlete’s 2007 sample and finds that she committed an anti-doping rule violation under the 2007 IAAF Rules. The statute of limitation has not expired and the IAAF was entitled to initiate proceedings against the Athlete.

The Sole Arbitrator observes that the Athlete offered no explanation neither in her written submissions nor at the hearing why her name ended up in the Washout Schedule nor did she challenge the credibility of the Second IP Report. It follows that, the Sole Arbitrator finds the Athlete’s denial to be unsubstantiated and not credible.

The Sole Arbitrator finds it to be convincingly established by the IAAF that it is in fact the Athlete’s name in the Washout Schedule. The Sole Arbitrator holds that the Washout Schedule is a strong indication that the Athlete used the prohibited substances oxandrolone, metenolone mesterolone and turinabol.

The Sole Arbitrator agrees with the IAAF’s reading that the declining T/E ratio level supports the assertion the Athlete used the Prohibited Substances to prepare for the 2013 IAAF World Championships in Moscow. The latter is furthermore supported by the proximity between the dates mentioned in the Washout Schedule and the Athlete’s participation in the 2013 IAAF World Championships in Moscow.

Based on these findings, the Sole Arbitrator concludes that the Athlete committed an anti-doping rule violation under the 2013 IAAF Rules. Furthermore the Sole Arbitrator considers the seriousness of the Athlete’s ARDV and the fact that almost all of the aggravating factors under the 2013 IAAF Rules are relevant in the present case.

Therefore the Court of Arbitration for Sport decides on 18 August 2017 that:

1.) The request for arbitration filed by the International Association of Athletics Federations (IAAF) on 22 March 2017 against the Russian Athletics Federation and Ms Anna Pyatykh is partially upheld.

2.) Ms Anna Pyatykh has violated Rule 32.2(a) of the 2007 IAAF Rules and Rule 32.2(b) of the 2013 IAAF Rules.

3.) A period of ineligibility of four (4) years is imposed on Ms Anna Pyatykh starting on 15 December 2016.

4.) All results achieved by Ms Anna Pyatykh on 31 August 2007 and from 6 July 2013 to 15 December 2016 are disqualified, including forfeiture of any titles, awards, medals, points and prize and appearance money obtained during this period.

5.) (…).

6.) (…).

7.) (…).

8.) All other and further prayers or request for relief are dismissed.

iNADO Quarterly Report 2/2017 / Institute of National Anti-Doping Organisations (iNADO). - Bonn : iNADO, 2017

(See attached pdf-file for more information)

This communication goes to iNADO’s 68 Members.
iNADO is happy to answer any questions on your Institute’s activities.

Please send your questions to info@inado.org

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Contents:

- Update on iNADO CEO Recruitment (by Doug MacQuarrie, Chair iNADO)
- New Members
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Related cases:

• UKAD 2019 UKAD vs Mark Dry - Appeal
  February 25, 2020
• UKAD 2020 UKAD vs Mark Dry - Revision
  May 7, 2021
• UKAD 2021 Mark Dry vs UKAD - Appeal
  August 2, 2021
  
  

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In May 2019 the United Kingdom Anti-Doping (UKAD) has reported an anti-doping rule violation against the Athlete Mark Dry for tampering through providing a false account to UKAD as to why he was not at the address at the time after a missed test in October 2018.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the National Anti-Doping Panel.

The Athlete admitted he initially gave a false statement but asserted that the lie had no effect on the operation of the Rules since he was in the Domestic Testing Pool and not in the Registered Testing Pool. The Domestic Testing Pool operated separately, and outside the IAAF Doping Control Arrangements.

The National Anti-Doping Panel (NADP) accepts the Athlete’s assertion that a filing failure under the Domestic Testing Pool involved no sanction and that there was no Anti-Doping Rule violation.

Therefore on 8 October 2019 the National Anti-Doping Panel decided to dismiss the charge against the Athlete.

The International Automobile Federation (FIA) has reported an anti-doping rule violation against the Athlete Liam Talbot for conducting Intravenous infusions and/or injections in July 2015.
After notification the Athlete was heard for the Anti-Doping Committee – FIA Medical Commission (ACMC).

The ACMC concludes that an anti-doping rule violation was established and decides on 14 November 2016 to impose 1 year period of ineligibility on the Athlete starting on 25 July 2015.
Considering the circumstances the results obtained by the Athlete's team were not disqualified.