CAS (Oceania Registry) A2/2015 Australian Sports Anti-Doping Authority (ASADA), on behalf of Cycling Australia v. Jeone Park

Cycling
Doping (prohibited method: intravenous infusion of grape syrup and vitamins)
Establishment of an anti-doping rule violation and shifting of the onus to the athlete to mitigate the sanction
Athlete’s youth and ignorance that an intravenous injection constituted a breach of the WADA Code
Athlete’s personal duty to ensure that no prohibited method is used according to the WADA Code

1. Once the anti-doping rule violation is established, the athlete must be suspended for two years, unless the conditions for eliminating or reducing the period of ineligibility are met. The onus then shifts to the athlete to mitigate the sanction and, in that regard, to satisfy the CAS of any specified facts or circumstances on the balance of probabilities.

2. Ignorance that an intravenous injection constituted a breach of the WADA Code (prohibited method) is no excuse. An athlete’s youth and his propensity to accept direction from his family members are also not excuses. They are relied upon to alleviate the consequences for the purposes of assessing culpability. That lack of knowledge is not an exculpatory or mitigating factor.

3. Article 2.2 of the WADA Code provides that it is each athlete’s personal duty to ensure that no prohibited method is used and that it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated. Further, the success or failure of the attempted use is not material.

In January 2015 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete for the attempted use of a Prohibited Method: the intravenous infusion of grape syrup and vitamins.
After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Oceania Registry Ordinary Division of the Court of Arbitration for Sport (CAS).

The violation occurred previously in August 2014 in Korea when the Athlete’s cousing, a fully trained nurse, administerd this intravenous infusion to assist the Athlete recovery after he felt unwell.

ASADA requested the Panel to impose a 2 year period of ineligibility on the Athlete for committing the anti-doping rule violation of Attempted Use of a Prohibited Method with the IV infusion in August 2014. ASADA argued that the Athlete was not inexperienced and he failed to establish that he bears no significant fault or negligence.

The Athlete accepted that he committed the anti-doping rule violation in August 2014 and contended that the violation was principally the result of the actions conducted by the adults around him. The Athlete argued that he gave a prompt admission; there is no allegation of use of a prohibited substance; he gained no benefit from the attempted use; he was a minor at the time and in his situation unaware that he was committing an anti-doping rule violation.

The Sole Arbitrator finds that the Athlete’s arguments are insufficient for establishing that he bears no significant fault or negligence and concludes that the Athlete has committed a violation of the CA Anti-Doping Policy.

Therefore the Court of Arbitration for Sport decides on 17 March 2016:

1.) Jeone Park committed an anti-doping rule violation of Attempted Use of a Prohibited Method, namely an intravenous infusion, in breach of Art. 7 of the Cycling Australia Anti-Doping Policy 2010, which incorporates by reference Art. 2.2 of the 2009 World Anti-Doping Code.
2.) In accordance with Art. 17 of the Cycling Australia Anti-Doping Policy 2010 (which incorporates by reference Art. 10 of the 2009 World Anti-Doping Code), a period of ineligibility be imposed upon Jeone Park for a period of two (2) years, backdated to commence on 11 June 2015.
3.) All competitive results obtained by Jeone Park from 11 June 2015 shall be invalidated with all resulting consequences, including forfeiture of any medals, points or prizes.
4.) (…)
5.) All other motions or prayers for relief are dismissed.

CAS (Oceania Registry) A4/2014 Australian Sports Anti-Doping Authority (ASADA) (on behalf of Athletics Australia) v. Kim Mottrom

Doping (dextran / S5 - Diuretics and other Masking Agents)
Burden and standard of proof
Dextran as a blood (plasma) expander and effect of dextran as masking agent for steroids
Presence of dextran in the athlete’s urine and intravenous administration

1. The burden of proving (presence and use) of a prohibited substance by an athlete lies upon the anti-doping organisation. The standard of proof is comfortable satisfaction, a term of art, in so far as deployed in sports law derived from a decision of a CAS ad hoc panel at the Atlanta Games in 1996 and regularly applied by CAS panels since then.

2. To consider the effect of dextran in a urine sample it is necessary to understand the chemistry of sugar and also the digestion of carbohydrates in the human digestive tract. Dextran is a blood (plasma) expander. When in the blood it draws in fluid which increases the fluidity of the blood. The blood volume is expanded. The blood has the ability to transport oxygen around the system releasing energy and thereby assisting acrobat performance. Dextran can also act as a masking agent for steroids.

3. If the overwhelming scientific evidence establish the presence of dextran in the athlete’s urine and oral ingestion cannot explain the concentration detected, then the panel is comfortably satisfied that the substance detected in the athlete’s sample was by intravenous administration.

In March 2014 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the Athlete Kim Mottrom after his A and B samples tested positive for the prohibited substance dextran.
After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Oceania Registry Ordinary Division of the Court of Arbitration for Sport (CAS) with the right of appeal.

ASADA argued that the presence of high concentration dextran was established in the Athlete’s samples as result of intravenous administration.
The Athlete rejected ASADA’s evidence and contended that ASADA’s “intravenous injection” case rests on an unstable foundation of unqualified and inappropriately retained expert witnesses, contaminated urine samples, unexplained and less than thorough scientific analysis by the Laboratory and sloppy speculation.

The Sole Arbitrator accepts that the scientific evidence satisfies as to the presence of dextran and this was not challenged. The challenge was how the dextran entered the Athlete’s blood stream.

The Sole Arbitrator notes that both the Athlete’s A and B samples revealed the analytical finding was of high concentration of high molecule weight dextran. It was, even at the lowest reported range, a concentration far in excess of the allowable level. While there may have been a contaminated ceramic dish used that affected the A sample with bacteria that does not negate that the detection of dextran and the calculations of its concentration were done by the laboratory in accordance with accredited techniques.

The Sole Arbitrator rejects the proposition of the Athlete’s expert witness that the dextran was added to or made by the bacterial activity in the sample. The bacterial activity asserted could not have made the type of dextran detected. From the evidence, the Sole Arbitrator accepts the bacteria which was recognised by the laboratory in no way discredited the adverse analytical finding of the presence of dextran.

The overwhelming scientific evidence established the presence of dextran in the Athlete’s urine. Oral ingestion cannot explain the concentration detected. The Sole Arbitrator is comfortably satisfied on the evidence the dextran detected in the Athlete’s sample was by intravenous administration.

Therefore the Court of Arbitration for Sport decides on 21 March 2016:

1.) Kim Mottrom has committed two anti-doping rule violations under the Athletes Australia Anti-Doping Policy that of:
a) The Presence of a Prohibited Substance; and
b) The Use of a Prohibited Substance.
2.) Mr Mottrom is suspended from competition for two years from 21 March 2014 with credit for the period of provisional voluntary suspension served by Mr Mottrom.
(…).

CAS 2016/A/4416 Fédération Internationale de Football Association (FIFA) v. Confederación Sudamericana de Fútbol & Brian Fernández

Football
Doping (cocaine)
Determination of the standard period of ineligibility for a non-intentional ADRV
Impossibility to eliminate the period of ineligibility based on No Fault or Negligence
Reduction of the standard sanction based on Non-Significant Fault
Assessment of the appropriate period of ineligibility

1. Art. 19 (1) of the FIFA Anti-Doping Regulations (ADR), which provides for a period of ineligibility of four years, is not applicable where the offence is not intentional. According to the rule, anti-doping rule violation resulting from an Adverse Analytical Finding for a substance which is only prohibited in-competition shall not be considered intentional if the substance is not a specified substance and the player can establish that the prohibited substance was used out-of-competition in a context unrelated to sport performance. Art. 19 (2) ADR (Art. 10 (2) (2) WADC) provides for a (standard) period of ineligibility of two years in case an athlete has acted negligently.

2. Where a player admitted having taken a substance which is not a specified substance and which is only prohibited In-Competition voluntarily, the otherwise applicable period of ineligibility of two years cannot be eliminated on the ground that the player bore No Fault or Negligence.

3. In order to establish whether or not an athlete acted with Non-Significant Fault (NSF), the athlete’s behaviour must be compared to the standard of care that can be expected from a “reasonable person” in the athlete’s situation. CAS jurisprudence has found that the threshold of NSF is met if the athlete observes the clear and obvious precautions which any human being would take in the specific set of circumstances. Obviously, a reasonable person would never have consumed drugs to begin with, in particular drugs like cocaine the addictive character of which is well known. However, when assessing whether or not an athlete acted with NSF, the athlete’s level of fault must be assessed in relationship to the anti-doping rule violation. In light of the WADC on the basis of which the ADR have been modelled, it can be considered in cases where an athlete establish that he consumed cocaine in a recreational / social context unrelated to sport performance that the athlete qualifies for NSF.

4. In light of CAS jurisprudence distinguishing between different categories of negligence, i.e. light, normal and significant negligence, only the first two categories allow for a reduction of the otherwise applicable period of ineligibility according to Art. 22 (2) ADR. In case of NSF, the applicable sanction can be reduced down to one half of the otherwise applicable sanction i.e. from 12 – 24 months. In order to determine which category of negligence is applicable in a particular case, it is helpful to consider both the objective and the subjective levels of fault. While the objective element describes what standard of care could have been expected from a reasonable person in the player’s situation, the subjective element describes what could have been expected from that particular player, with regard to his personal capacities.

On 10 May 2015 the Argentinian football player Brian Leonel Fernández tested positive for the prohibited substance cocaine and a provisional suspension was ordered on 5 June 2015 by the Argentine Football Association (ASA).
On 17 June 2015 the Athlete’s A and B samples, provided on 28 May 2015 tested again positive for cocaine and the Disciplinary Unit of the South American Football Confederation (CONMEBOL) issued a provisional suspension on 9 July 2015.
On 21 October 2015 the CONMEBOL Disciplinary Unit decided to impose a 2 year period of ineligibility on the Athlete with 1 year as suspended sanction as confirmed by the CONMEBOL Appeal Chamber on 14 December 2015.

Hereafter in January 2016 the International Football Federation (FIFA) appealed the CONMEBOL decision of 14 December 2015 with the Court of Arbitration for Sport (CAS).
FIFA requested the Panel to set aside the CONMEBOL decision and to impose a 2 year period of ineligibility on the Athlete. Since the Athlete’s first sample on 10 May 2015 was analysed by a laboratory not accredited by WADA, the anti-doping violation committed on 28 May 2015 cannot be qualified as a second violation.

CONMEBOL contended that the Athlete had admitted the use of cocaine, the violation was unrelated to sport and the Athlete had a problematic background resulting in an addiction. The Athlete underwent therapy for his addiction and the circumstances were ground for imposing a reduced sanction.

Even thought the Parties agree that the Athlete’s use of cocaine was not intentional and unrelated to sport performance, the Parties are in dispute whether or not further reductions apply tot the period of ineligibility under the Rules.

In this case the Panel finds that the objective level of negligence is not negligible, since the prohibited substance has been ingested rather close to the sporting event. The Athlete, thus, did not take any particular precautions with respect to observing a “cooling-off” period. Considering the Athlete’s reduced ability to exert control over and steer his private life, the Panel finds that the Athlete’s subjective level of negligence is lower. Balancing both aspects the Panel finds that this is a case on the borderline between normal and light degree of negligence and, thus, deems a period of ineligibility amounting to 18 months to be appropriate.

Therefore the Court of Arbitration for Sport decides on 7 November 2016 that:

1.) The Appeal filed by the Fédération Internationale de Football Association on 25 January 2016 against the decision issued by the Appeal Chamber of CONMEBOL’s Disciplinary Unit (CDU) dated 14 December 2015 is partially upheld.
2.) The decision issued by the Appeal Chamber of CONMEBOL’s Disciplinary Unit (CDU) dated 14 December 2015 is set aside.
3.) Mr Brian Fernández is sanctioned with a period of ineligibility of 18 months, starting from the date of the present award, with credit given for any period of ineligibility already served.
4.) (…).
5.) (…).
6.) All other or further claims are dismissed.

CAS 2016/A/4615 Asli Çakir Alptekin v. World Anti-Doping Agency (WADA)

Related case:

CAS 2014_A_3498 IAAF vs TAF & Asli Çakir-Alptekin - Settlement
August 17, 2015

• Athletics (middle distance)
• Further suspension of period of ineligibility based on
• Substantial Assistance Agreement with WADA
• Scope of CAS review of WADA refusal to further suspend the period of ineligibility of an athlete
• Grounds for WADA denial of further suspension of period of ineligibility

1. If a Substantial Assistance Agreement concluded between an athlete and WADA foresees that WADA – having suspended part of the athlete’s period of ineligibility at an earlier point in time – has the power to suspend more of the athlete’s period of ineligibility “if it considers, in its entire discretion”, that the extent and/or quality of the Substantial Assistance provided by the athlete proves more valuable than currently anticipated and if according to the Substantial Assistance Agreement WADA is further obligated to “act reasonably and in good faith”, a CAS Panel requested to review WADA’s refusal to suspend further parts of the athlete’s period of ineligibility may only annul WADA’s decision if the athlete in question proves that WADA, in taking its decision, acted unreasonably or in bad faith.

2. The decision by WADA not to grant a further suspension of the period of ineligibility based on the consideration that the athlete had two prior anti-doping violations (both of which were serious (steroids and blood doping)) and that the granting of the further suspension requested would potentially enable the athlete to compete at the upcoming Olympic Games is not unreasonable or taken in bad faith.

The Turkish Athlete Asli Çakir Alptekin was sanctioned in August 2015 for her second anti-doping rule violation. As a whistle blower the Athlete provided substantial assistance to the International Association of Athletics Federations (IAAF) and to the World Anti-Doping Agency (WADA).

In November 2015, further to a Substantial Assistance Agreement, the Athlete revealed unprecedented levels of corruption within the IAAF, including attempts to subvert the anti-doping regime. Her Substantial Assistance included evidence of an alleged scheme by Papa Massata Diack (PMD) and Khalil Diack – both sons of former IAAF President Lamine Diack – and others to extort money from athletes charged with anti-doping violations.

Her evidence was given to WADA and the IAAF Ethics Board, as well as to the French financial crimes prosecutor, which has launched a criminal investigation into the scheme. Due to the Substantial Assistance Agreement WADA suspended in November 2015 4 years of the 8 years of the Athlete’s period of ineligibility which started on 10 January 2013 and ended on 10 January 2017.

Following the appeal of PMD, the IAAF Ethics Board and the French financial crimes prosecutor asked the Athlete to procure further evidence from additional witnesses to bolster the case against PMD. In response, in April 2016, the Athlete procured Additional Witness Statements that provide direct evidence of PMD’s attempt to extort money from her after she was charged with the anti-doping violation that ultimately led to the Consent Award.

Because of the provided information and her cooperation the Athlete requested WADA in April 2016 for a further suspension of her period of ineligibility by 6 months and 10 days such that she would be eligible to return to competition in July 2016 and potentially would allowed her to qualify for the Rio 2016 Olympic Games.

On 25 April 2016 WADA responded that it was not willing to agree to suspend a further portion of the Athlete’s ineligibility period. Hereafter in May 2016 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).

The Athlete asserted that WADA has refused to suspend any further portion of the Athlete’s period of ineligibility for no legitimate reason. The WADA decision of 25 April 2016 appears to be motivated by political and/or reputational concerns linked to criticism WADA anticipates it might receive if it were to allow the Athlete the opportunity to compete in the Olympics. The Athlete argued that in denying her any additional suspension for the Additional Witness Statements WADA did not act reasonably and in good faith as required under Clause 5 of the Substantial Assistance Agreement.

WADA contended that the four-year suspension WADA has already granted the Athlete under the Substantial Assistance Agreement is substantial and generous and, perhaps, unprecedented. In providing the Additional Witness Statements, the Athlete simply complied with her duties under the Substantial Assistance Agreement and she cannot be rewarded twice for the same commitment.

The Athlete asked WADA to assess – within a very short time period – the value of the Additional Witness Statements within the context of appeal proceedings to which WADA was not a party. Taking into account the limited information it had, WADA decided to exercise its discretion not to grant any further suspension. The Athlete’s assistance has not proved more valuable than anticipated by WADA and WADA acted reasonably when taking its Decision.

The Panel does not consider that it arose from bad faith, but rather from WADA’s discomfort in having to decide upon a further suspension on short notice and limited information. Despite the time constraints and limited information, WADA did manage to consider the Athlete’s Application and decided that the value of the Additional Witness Statements did not justify granting the Athlete any further suspension of her period of ineligibility.

In review of the Athlete’s arguments the Panel concludes that WADA didn’t act unreasonably or in bad faith under Clause 5 of the Substanctial Assistance Agreement in denying the Athlete the further suspension she requested.

Therefore the Court of Arbitration for Sport decides on 4 November 2016 that:

1.) The appeal filed by Ms Asli Çakir Alptekin on 17 May 2016 in the case CAS 2016/A/4615 Asli Çakir Alptekin v. WADA concerning the decision rendered by the World Anti-Doping Agency on 25 April 2016 is dismissed.

(…)

4.) All further claims are dismissed.

CAS 2015/A/4272 World Anti-Doping Agency (WADA) v. Sri Lanka Anti-Doping Agency (SLADA) & Rishan Pieris

Rugby
Doping (metandienone)
Intent to take the prohibited substance
Duty to inquire as to whether a product contains a prohibited substance

1. An athlete who ingested tablets in order to increase his body weight causing likely the positive analytical test, cannot be considered that he had no intent to take the prohibited substance solely on his stated ignorance as to the contents of the tablets.

2. The ability for an athlete to reduce a standard applicable period of ineligibility on the basis of an anti-doping rule violation on a “no fault or negligence” or “no significant fault or negligence” rationale is reserved for specific circumstances. Abundant CAS case law underscores the athlete’s responsibility with respect to whatever he or she ingests or otherwise administers to his or her body. Indeed, such case law is replete with language to the effect that an athlete has “a duty of utmost caution to avoid that a prohibited substance enters his or her body”. Failing to inquire as to whether a product contains a prohibited substance constitutes significant fault in and of itself, according to CAS precedent.

On 3 November 2014 the Sri Lanka Anti-Doping Agency (SLADA) decided to impose a 1 year period of ineligibility on the Athlete Rishan Pieris after his sample tested positive for the prohibited substance metandienone.

Hereafter in October 2015 the World Anti-Doping Agency (WADA) appealed the SLADA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the SLADA decision of 3 November 2014 and to impose a 2 year period of ineligibility due to the Athlete’s degree of fault is conversely very significant.
SLADA and the Athlete did not file written submissions.

The Sole Arbitrator finds that is uncontested that the Athlete ingested the “Anabole” tablets, did so with the stated intent to increase his body weight, and that this act likely caused the positive analytical test. The Appealed Decision, however, finds that he had no intent to take this prohibited substance. This finding appears to be based solely on the Athlete’s stated ignorance as to the contents of the tablets. If another basis exists, it does not appear in the Appealed Decision.

In the present case, neither SLADA or the Athlete have attempted to meet its burden of proof with respect to establishing “no fault or negligence” or “no significant fault or negligence”. Moreover, even if deduced in the light most favourable to the Athlete, the facts arising from the Appealed Decision do not even allow for a prima facie possibility of reduced fault.

Since the SLADA ADR imposes a two-year period of ineligibility absent conditions that would meet the requirements of Articles 10.5.1 or 10.5.2, and these conditions are not met, the Appealed Decision cannot be deemed compliant with the applicable rules, and an additional period of ineligibility must be imposed in order to bring the sanction in line with the rules.

Therefore the Court of Arbitration for Sport decides on 31 March 2016:

1.) The appeal filed by the World Anti-Doping Agency on 30 October 2015 against the Sri Lanka Anti-Doping Agency and Mr. Rishan Pieris with respect to the decision rendered by the Sri Lanka Anti-Doping Agency Disciplinary Committee on 3 November 2014 is upheld.
2.) The decision rendered by the SLADA Disciplinary Committee on 3 November 2014 is set aside.
3.) Mr. Rishan Pieris is sanctioned with a two-year period of ineligibility commencing on the date of this award with credit given for any period of ineligibility already served by Mr Rishan Pieris between 8 July 2014 and 7 July 2015.
4.) (…).
5.) (…).
6.) All other motions or prayers for relief are dismissed.

CAS 2015/A/3881 Fatma Omar v. International Paralympic Committee (IPC)

Paralympic powerlifting
Doping (clomiphene)
Duty of the CAS Panel to verify the bona fide nature of a settlement agreement embodied in an arbitral award

Any settlement agreement may be embodied in an arbitral award rendered by consent of the parties. It is the task of the CAS panel to verify the bona fide nature of a settlement agreement to ensure that the will of the parties has not been manipulated by them to commit fraud and to confirm that the terms of the settlement agreement are not contrary to public policy principles or mandatory rules of the law applicable to the dispute.

In May 2014 the International Paralympic Committee (IPC) has reported an anti-doping rule violation against the Egyptian Paralympic Athlete Fatma Omar after her A and B samples tested positive for the prohibited substance clomiphene.
On 30 November 2014 the IPC Governing Board rendered the decision to impose € 1,500 fine and a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension.

Hereafter in December 2014 the Egyptian Paralympic Committee and the Athlete appealed the IPC decision with the Court of Arbitration for Sport (CAS).
After deliberations between the Parties a settlement was reached and the Parties signed copies of the settlement agreement. The Parties submitted signed copies to CAS and requested the Panel to ratify the Settlement Agreement into a Consent Award.

The Parties agree on the following on 30 April 2015:

1.) In application of article 10.4 of the IPC Anti-Doping Code, the suspension imposed to Ms Fatma Omar by the International Paralympic Committee Governing Board on 30 November 2014 shall be reduced to one (1) year and shall therefore end on 15 May 2015.
2.) In all other respects, the decision of the IPC Governing Board of 30 November 2014 shall be confirmed.
3.) The Parties agree to keep the present Settlement Agreement confidential until the issuance of the final Consent Award by CAS.
4.) Each party will bear its own legal costs.
5.) All other motions and prayers for relief shall be rejected.
6.) The Parties request the Panel to issue a Consent Award confirming the present Settlement Agreement.

After having discussed with the Parties the terms of the Settlement Agreement at the Hearing and after reviewing such terms, the Panel finds no grounds to object or to disapprove of the terms of the Settlement Agreement and is satisfied that the Settlement Agreement constitutes a bona fide settlement of the dispute brought to its attention.

Therefore the Court of Arbitration for Sport on 13 May 2015 renders the following Consent Award:

1.) The Panel, with the consent of Fatma Omar and the International Paralympic Committee, hereby ratifies the Settlement Agreement signed by the parties on 30 April 2015 and incorporates its terms into this Consent Award.
2.) The arbitral procedure CAS 2015/A/3881 Fatma Omar v. International Paralympic Committee is terminated and deleted from the CAS roll.
3.) Each party is hereby ordered to perform the obligations and duties as per the Settlement Agreement referred to above.
4.) (…).
5.) (…).
6.) All other motions and prayers for relief are rejected.

CAS 2013/A/3262 Joel Melchor Sánchez Alegría v. Fédération Internationale de Football Association (FIFA)

Football
Doping (methylhexameanine)
Admissibility of the appeal
De novo hearing
Lack of intent to enhance sport performance
Degree of fault or negligence
Personal duty of the athlete to ensure that no prohibited substance enters his body

1. If particular items are missing in a Statement of Appeal, it can be reasonable for the CAS and in accordance with article R48 of the CAS Code, to accept the Statement of Appeal as filed and grant a short deadline of 5 days to supplement the initial submission and not deprive the appellant of its right to appeal based solely on the straightforward application of a procedural rule.

2. Pursuant to article R57 CAS Code, a CAS panel has full power to review the facts and the law de novo on an appeal, which may include, in certain circumstances, that potential violations of the principle of due process or of the right to be heard in prior instances, may be cured in the appeal before the CAS.

3. In order to satisfy lack of intent to enhance sport performance, the athlete shall demonstrate to the adjudicating body’s comfortable satisfaction that the prohibited substance was not intended to enhance his sport performance, and produce corroborating evidence in addition to his own statement that establish a lack of intent to the comfortable satisfaction of the adjudicating body. In particular, the athlete needs to prove that the ingestion of the specified substance, rather than the product itself, was not intended to enhance his sport performance. In any case, the mere fact that the athlete allegedly did not know that the product contained the specified substance does not establish an absence of intent. An athlete may only argue an absence of intent to enhance performance when his behaviour was not reckless, but only oblivious.

4. There are several factors to determine the athlete’s degree of fault and eventually reduce the period of ineligibility, including
(i) the fact that before taking the product for the first time the athlete consulted with personal trainers,
(ii) read the product label,
(iii) conducted internet research,
(iv) consulted with the team’s physician about all the nutritional supplements and products he was taking.
In this respect, the fact that the label of the product contains a warning in English which was allegedly not understood by the athlete is no excuse. The facts that no internet research was made, that no team doctor was consulted but only a nutritionist who does not work in the world of football, and that the athlete did not disclose the product in his doping control form, shall be considered not only as a clear lack of the minimum diligence, but also as a sign that the athlete was trying to conceal that he was taking the product. Therefore, the athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation to the anti-doping rule violation and the sanction cannot be eliminated or reduced.

5. The FIFA Anti-Doping Regulations impose a personal duty upon each football player to ensure that no prohibited substance enters the football player’s body, which necessarily means that the player must have taken all available precautions to avoid any anti-doping rule violations. Accordingly, the fact that this is a personal duty, means the player cannot avoid liability by simply arguing that another person was negligent.

In December 2012 the International Football Federation (FIFA) has reported an Anti-Doping Rule violation against the Peruvian football player Joel Melchor Sanchez Alegria after his A and B samples tested positive for the prohibited substance methylhexaneamine (dimethylpentylamine).

On 1 March 2013 the FIFA Disciplinary Committee decided to impose a 2 year period of ineligibility on the Athlete. On 6 May 2013 the FIFA Appeal Committee rejected the Athlete’s appeal and confirmed the FIFA decision of 1 March 2013.
Hereafter in June 2013 the Athlete appealed the FIFA Appeal Committee decision with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to set aside the FIFA decision of 6 May 2013 and to impose a reduced sanction or only a reprimand. The Athlete argued that a violation occurred of the principle of due process and the right to be heard and the Athlete’s statement was misinterpreted.

After having examined the file, the Panel considers that the Athlete has not substantiated the allegations. The Athlete simply states that there has been apparent infringement of these rights, but he does not contribute any convincing evidence in this respect, which leads the Panel to conclude that any of the aforementioned rights was actually infringed.

The Panel finds that the presence of the substance methylhexaneamine in the Athlete’s samples is proven and objectively constitutes an anti-doping rule violation. The Panel and the parties agree that the source of the Athlete’s violation was the ingestion of Hermo Rage Black, which contained the specific substance methylhexaneamine. Accordingly, the Panel hold that the Athlete successfully established how the substance entered his system. However the Panel finds that the Athlete has not demonstrated an absence of intent to enhance his sport performance to its comfortable satisfaction. The Panel rules that the Athlete’s degree of fault or negligence, viewed in the totality of the circumstances, is clearly significant in relation to the anti-doping rule violation and the Athlete’s sanction cannot be reduced.

Therefore the Court of Arbitration for Sport decides on 30 September 2014 that:

1.) The appeal filed on 20 June 2013 by Mr. Joel Melchor Sánchez Alegría against the decision adopted by the FIFA Appeal Committee on 6 May 2013 is dismissed.
2.) The decision adopted by the FIFA Appeal Committee on 6 May 2013 is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.

CAS 2013/A/3071 Ana Beatriz di Rienzo Bulcão v. Fédération Internationale d’Escrime (FIE)

Fencing
Doping (boldenone; androstatrienedione)
Burden of the athlete to establish a departure from the IST by a balance of probability
Signature of the doping control form without making any comment about the sample collection process
Delay of more than 30 days between the date of the urine sample collection and the date the samples arrived at the laboratory
Starting date of the period of ineligibility in case of substantial delay not attributable to the athlete

1. According to the FIE anti-doping rules, the burden is on the fencer to establish, by a balance of probability, a departure from the International Standards for Testing (IST) that could reasonably have caused the Adverse Analytical Finding (AAF). If the fencer does so, the burden shifts to the FIE to prove to the comfortable satisfaction of the Tribunal (or the CAS panel) that the departure did not cause the AAF.

2. The fact that, first, the athlete could not choose the kit and the collection vessel and, second, it was the DCO and not she who closed the bottles and manipulated the seals system cannot establish validly a departure from the IST if the athlete signed the doping control form and certified that the entire process has been performed according to the rules, without making any comment.

3. A delay of more than 30 days between the date of the urine sample collection and the date the samples arrived at the laboratory does not respect the 14 days time limit provided for in the FIE Rules. However, such a departure from the FIE Rules does not lead to the nullity of the result of the analysis performed. That would only be the case, should the athlete reasonably demonstrate that such delay has been the origin of the AAF.

4. The period of ineligibility starts on the date of the hearing decision providing for ineligibility or may start at an earlier date commencing as early as the date of the sample collection in case there has been substantial delay in some aspects of the doping control not attributable to the athlete.

In May 2012 the International Fencing Federation (FEI) has reported an anti-doping rule violation against the Brazilian fencer Ana Beatriz di Rienzo Bulcão after her A and B samples tested positive for the prohibited substance androsta-1,4,6-triene-3,17-dione (androstatrienedione) and boldenone.
On 7 January 2013 the FEI Anti-Doping Disciplinary Tribunal decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in January 2013 the Athlete appealed the FEI decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the FEI decision of 7 January 2013 and to impose a reduced sanction. The Athlete argued that several departures occurred from the IST during the sample collection and alleged that her sample vessel could have been manipulated.

Considering the evidence in this case the Panel finds it impossible that the Athlete’s urine sample could have been mixed, tampered with or contaminated; furthermore, the Athlete does not give any reason why she would have been victim of a conspiracy.
The Panel rules that the Athlete failed to establish that, if occurred, a departure of the IST could have caused the AAF; thus, the sample collection process was duly conducted according to the IST and the FIE Rules.
The Panel concludes that the presence of the prohibited substances boldenone and ATD of exogenous origin in the Athlete’s sample is established and it is undisputable that the Athlete committed an anti-doping rule violation without grounds for a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 12 August 2013 that:

1.) The appeal filed by Ms Ana Beatriz Di Rienzo Bulcão on January 23, 2013 is partially upheld.
2.) Ch. 2 Part 2 of the Decision of the FIE Doping Disciplinary Tribunal dated January 7, 2013 is modified as follows:

Ms Ana Beatrziz Di Rienzo Bulcao is automatically disqualified of her results in the Pan-American Fencing Championships of March 2012 and is ineligible to compete for a period of two years starting from May 6 2012.

3.) (…).
4.) (…).
5.) All other and further claims or prayers for relief are dismissed.

CAS 2012/A/2972 Matti Helminen v. Royale Ligue Vélocipédique Belge (RLVB)

Cycling
Doping (Probenecid)
Delays in the result management
CAS jurisprudence’s precedential value
Irregularities in the transportation documentation and ambiguity in some official documents
Contention that a prohibited substance does not have a performance enhancing effect and strict liability
Meaning of the “balance of probabilities” standard
Evidences of the source of a specified substance in the athlete’s sample
Calculation of the athlete’s fine on the basis of a full year’s net income

1. Even if the report on the A-sample from the laboratory takes more than 30 working days, although it may be ideal to have the results reported within that timeframe, it is not always possible or even advisable. Furthermore, the deadline for the reporting of the A sample analysis’ results is not strictly compulsory and can be extended by an agreement between the laboratory responsible for the analysis and the organization responsible for the sample testing and the management of the test results. Such delay may further be due to a surcharge of the laboratories, the complexity of the analysis during the holiday period or other reasons. In all cases, the athlete should prove that the delay could have affected the AAF.

2. Even though CAS jurisprudence is not subject to the principle of binding precedent, and a CAS Panel in principle might end up deciding differently from a previous panel, it must accord to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.

3. An athlete cannot validly claim irregularities in the transportation documentation and ambiguity in some official documents, if such athlete and his representative have attended the opening of the B-sample without making any reservations as to the identity or sealing of the sample.

4. The contention that a prohibited substance did not have a performance enhancing effect on the athlete and that he/she must have ingested the substance inadvertently does not preclude the strict liability principle of Article 21.1.1 of the UCI Anti-Doping Rules (ADR). Consequently, pursuant to Articles 22, 296 and 297 ADR and according to settled CAS jurisprudence, in order for the athlete to escape a sanction, the burden of proof shifts to the athlete who has to establish how the prohibited substances entered his/her system; and that he/she in an individual case bears no fault or negligence, or no significant fault or negligence.

5. Providing evidence on a “balance of probabilities” has been interpreted in previous CAS cases as evidencing that an alternative explanation is more likely to have occurred than not to have occurred.

6. The concentration of the prohibited substance is irrelevant, and the facts that the prohibited substance is difficult to find on the regular market, that it might be used in meat production in a country, and that the prohibited substance has only a limited share in the total amount of positive doping controls do not evidence the source of the prohibited substance found in the athlete’s urine sample by a balance of probabilities.

7. It is settled CAS jurisprudence that the fine should be calculated on the basis of a full year’s net income. Hence, there is no room to lower the fine on the basis of the fact that the athlete could not compete, and thus had no income from cycling, after his suspension.

In July 2013 the International Cycling Union (UCI) reported an anti-doping rule violation against the Finnish cyclist Matti Helminen after his A and B samples tested positive for the prohibited substance probenecid.
On 4 October 2012 the Disciplinary Committee on Doping of Royale Ligue Vélocipédique Belge (RLVB) - Belgian Cycling - decided to impose a 2 year period of ineligibility and a €19,250 fine on the Athlete.

Hereafter in November 2012 the Athlete appealed the decision of the RLVB with the Court of Arbitration for Sport.

The Athlete alleged that the RLVB did not respect the time limits and requirements for result management, thereby hindering the Athlete to trace the origin of the prohibited substance found and impeding his possibilities to defend himself. The Athlete also submits that the irregularities in the chain of custody of his sample render the results of the analyses unreliable. Finally the Athlete argued that there are alternative explanations for the origin of Probenecid found in his urine.

The Panel fails to see how the time span between the Tour and the notification of the results of the testing of the A-sample has significantly limited the Athlete’s ability to reconstruct his alimentation during the Tour. It therefore concludes that there is no breach of Article 206 ADR, nor of Article 5.2.6.5 ISL.
The Panel considers that the appropriate legal framework requires the Athlete to establish that the departure from any International Standard can reasonably have caused the AAF. The Athlete did not establish any such circumstances and the Panel therefore dismiss the argument of the Athlete.
Also the Panel finds that the Athlete failed to establish, on a balance of probabilities, how the prohibited substance entered his system.
The Panel concludes that there is no room for deviating from the sanction as imposed by the RLVB and there is no room to lower the fine on the basis of the fact that the Athlete could not compete, and thus had no income from cycling, after his suspension.

Therefore the Court of Arbitration for Sport decides on 23 July 2013 that:

1.) The appeal filed by Matti Helminen on 8 November 2012 is dismissed.
2.) The decision issued on 18 October 2012 by the Disciplinary Committee on Doping of the Royale Ligue Vélocipédique Belge (RLVB) is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.

CAS 2012/A/2924 Union Cycliste Internationale (UCI) v. Monica Bascio & United States Anti-Doping Agency (USADA)

Cycling
Doping (tuaminoheptane)
Conditions of reduction of the standard period of ineligibility for specified substances
Absence of intent to enhance sport performance
Assessment of the degree of fault
Fine

1. According to the UCI Anti-Doping Regulations (ADR), two conditions must be satisfied to allow for a reduction of the period of ineligibility for specified substances. The first condition is whether the athlete can establish how the specified substance entered his/her body. The second condition is whether s/he can establish in the circumstances of his/her case and by producing corroborating evidence in addition to his/her word that such specified substance was not intended to enhance his/her sport performance. Those conditions must be established to the comfortable satisfaction of the hearing panel.

2. The mere fact that an athlete did not know a product taken to treat a condition contained a specified substance does not itself establish the relevant absence of intent. However, the facts that an athlete’s bona fide statements were never challenged by the other parties and that an athlete declared the name of the product used on his/her doping control form are factors speaking in favour of an absence of intent to enhance sport performance.

3. According to the UCI ADR the athlete’s degree of fault shall be the criterion considered in assessing any reduction of the period of ineligibility. The negligence of an athlete on the one hand and the circumstances speaking for a short period of ineligibility on another hand shall be considered together. Those elements seen as a whole may speak in favour of a minor anti-doping rule violation justifying a reduced sanction.

4. It would be inappropriate to impose a financial penalty on an athlete where it was not demonstrated that the latter received a salary or any financial rewards in consideration for his/her sports activities. Furthermore, a fine is not justified in a case in which there was no intent to gain any unfair advantage over other competitors or to interfere with fair competition, and where there was no demonstration that an athlete otherwise met the requirements of the very specific mandatory UCI ADR provision on fines.

On 14 August 2012 the Paracyclist Monica Bascio accepted from the United States Anti-Doping Agency (USADA) a retroactive 3 month period of ineligibility after her sample tested positive for the prohibited substance tuaminoheptane.

Hereafter in September 2012 the International Cycling Union (UCI) appealed the USADA decision with the Court of Arbitration for Sport (CAS).
The UCI requested the Panel to set aside the USADA decision and to impose a 2 year period of ineligibility on the Athlete including a fine and payment for costs. The UCI asserted that the Athlete committed the anti-doping rule violation for the use of a prohibited substance without an approved TUE and due to negligence with her medication.

The Athlete requested the Panel to uphold the imposed sanction and submitted that she gave a prompt admission and established the origin of the prohibited substance. She asserted that the violation was non intentional and she researched the ingredients of her medication before using.
USADA argued that the Athlete clearly established the source of the prohibited substance in her system and that the violation was non intentional as ground for imposing a reduced appropriate and justified sanction.

The Panel concludes that the Athlete has committed a minor anti-doping rule violation which justifies a reduced sanction. A period of ineligibility of 3 months is therefore appropriate in the circumstances. In coming to this result, the Panel has had regard to USADA’s cogently reasoned decision. The Panel also bore in mind the delay in notification of the positive test and the delay in giving notice of intention to appeal against the decision of USADA until the last possible moment shortly after the Athlete had competed in the Paralympic Games and after the Athlete had served the period of ineligibility imposed upon her by the Decision of USADA. The UCI’s request to impose a fine on the Athlete finds the Panel inappropriate in this case and is rejected.

Therefore the Court of Arbitration for Sport decides on 14 June 2013 that:

1.) The appeal filed by UCI on 14 September 2012 against the decision of USADA of 14 August 2012 is dismissed.
2.) The decision of 14 August 2012 of USADA is confirmed.
3.) (…).
4.) (…).
5.) All other requests for relief are rejected.