CAS 2014/A/3561 IAAF vs RFEA & Marta Dominguez Azpeleta

CAS 2014/A/3614 WADA vs Marta Dominguez Azpeleta & RFEA

CAS 2014/A/3561 & 3614 International Association of Athletics Federation (IAAF) & World Anti-Doping Agency (WADA) v. Marta Domínguez Azpeleta & Real Federación Española de Atletismo (RFEA)

• Athletics (middle-distance)
• Doping (rEPO; synthetic oxygen carriers; blood transfusion)
• Effects of a State court order on the admissibility of evidence by the CAS
• Compliance of CAS arbitration with Article 6 ECHR
• Compliance of CAS arbitration with EU competition rules
• Burden and standard of proof in anti-doping proceedings concerning allegations of blood manipulation
• Validity of the Athlete Biological Passport
• Assessment of non-pathological factors presented as explanations of atypical results
• Assessment of alleged flaws in the sample procedures
• Aggravating circumstances in the assessment of the sanction

1. As an independent forum the CAS is not bound by the decisions of another jurisdictional body. With regard to its full power to review the facts and the law, a CAS panel is not bound by decisions taken by any other jurisdictional body. Further, as regards specifically the admissibility of evidence, a CAS panel is not bound by the rules of evidence and may inform itself in such a manner as the arbitrators think fit.

2. Article 6 para. 1 of the European Convention of Human Rights (ECHR) does not preclude the setting up of arbitration tribunals in order to settle disputes and does not prevent a party to consent to arbitration if this consent is given freely, is licit and unequivocal. The European Court of Human Rights (ECtHR) therefore clearly distinguishes between forced arbitration, imposed by law, and freely consented arbitration foreseen for by agreement between parties. Only in the former case all guaranties of article 6 para. 1 ECHR have to be respected. First, an arbitration procedure in a doping case cannot be considered as imposed by law. Second, by signing – on multiple occasions –Doping Control Forms, especially if some explicitly confer competence to the CAS for resolving definitively any dispute, controversy or claim arising thereof, an athlete gives his/her explicit consent to arbitration before the CAS.

3. The European Commission adopts a 4-step methodology when assessing the legality of rules adopted by sport organizations: (i) is the sports association that adopted the rule to be considered an “undertaking” or an “association of undertakings”?; (ii) does the rule in question constitute an abuse of a dominant position under Article 102 TFEU?; (iii) is trade between Member States affected?; and (iv) is the rule objectively justified? When determining a dispute resolution forum, with a view to facilitating the independent, impartial, specialized, and expeditious resolution of sports disputes, especially in connection with the global fight against doping in sport, sports federations do not engage in an economic activity, and thus do not constitute undertakings for the purposes of EU competition law. Therefore, the first step of the methodology is already not fulfilled.

4. In matters concerning blood manipulation, there is no ‘factual presumption’ that the blood screening tests produced correct result, because, in anti-doping proceedings other than those deriving from positive testing, no presumption applies. Accordingly, the anti-doping organisation bears the full burden to present reasonably reliable evidence to persuade the adjudicating body, by the applicable standard of proof, that the athlete committed a doping offence in violation. Anti-doping proceedings are private law and not criminal matters and the duty of proof and assessment of evidence are problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law. Thus, the standard of proof is not “beyond all reasonable doubt” but “comfortable satisfaction” as provided the applicable rules of the international federation and consistently applied in many cases concerning allegations of blood manipulation or other serious form of doping.

5. CAS jurisprudence and numerous peer-reviewed applications have confirmed that the Athlete Biological Passport (ABP) is a reliable and valid mean of establishing an anti-doping rule violation (ADRV).

6. Scientific evidence confirms that changes induced by (extended) air travel do not significantly alter the blood variables of the ABP. Similarly, there is no scientific evidence showing measurable changes in the haematological variables used for the ABP by the use of artificial hypoxic devices such as a hypoxic tent. Also, the ABP is designed exactly to capture an athlete during his/her normal activities and consequently normal daily activity has no impact on the ABP variables.

7. Alleged flaws in the sample procedures must be examined under a two-prong test. First, whether there was a departure from the applicable anti-doping regulations (or Blood Testing Protocol) and applicable International Standards. Second, whether any identified departure could reasonably have caused the ADRV. In this regard, although the sample collection procedure commonly includes a rest period in a normal seated position with feet on the floor for at least 10 minutes prior to providing a sample, only a posture change such as lying down can change the plasma volume which in turn can lead to an increased haemoglobin (HGB). In any event, any possible change in the HGB cannot have an impact on an abnormal reticulocytes pattern which is not a concentration-based measure and cannot therefore reasonably have caused the ADRV. Similarly, although repetitive unsuccessful venepuncture attempts can have a marginal impact on HGB levels in certain circumstances, such a marginal impact on HGB can in any event not explain the abnormalities in the reticulocytes patterns and cannot therefore reasonably have caused the ADRV. Also, the HGB concentration and RET% – two primary ABP markers – are stable at room temperature for up to 72 hours, and even longer if kept between 4°C and 6°C. Accordingly, if the athlete’s samples were brought under refrigerated, cool, or room temperature conditions, while the time between a sample collection and a sample analysis was in all 20 samples well below 72 hours, there was no departure from the applicable rules and standards.

8. Use of prohibited substances and/or prohibited methods on multiple occasions, participation in a doping plan/scheme, refusal to admit the ADRV, categorisation as high-profile athlete and high-profile position as board member of a national federation are all aggravating circumstances when assessing the measure of the sanction to be imposed on an athlete for an ADRV.

In July 2013 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Athlete Marta Domínguez Azpeleta on the irregularities in her ABP.

However on 19 March 2014 the Tribunal of the Royal Spanish Athletics Federation (RFEA) decided for the acquittal of the Athlete due to sufficient doubts about the ABP evidence provided by the IAAF.

Hereafter both the IAAF and the World Anti-Doping Agency (WADA) appealed the decision of the RFEA with the Court of Arbitration for Sport (CAS). The Appellants requested the Panel to set aside the RFEA decision of 19 march 2014 and to impose a 4 year period of ineligibililty on the Athlete due to aggravating circumstances.

The Athlete denied the anti-doping violation and argued that her consent to arbitration is void. She contested the CAS jurisdiction, the competence to judge the case and the independence of the CAS arbitrators.

Supported by experts witnesses the Athlete asserted that her ABP was not atypical but the result of a combination of factors including physiological and pathological conditions, viral infectons, other medical conditions and non-pathological factors. Also she argued that departures occurred from the rules and standards regarding the Chain of Custody, the sample collection and the sample analysis.

The Panel is comfortably satisfied that there is sufficient evidence showing that Ms. Dominguez Azpeleta planned her doping activities in order to improve her performance at high-level athletics events. The Panel observes that the Athlete did not admit the ADRV. Instead, she took every opportunity to challenge it, often with arguments that lacked support or even directly contradicted the factual record.

In addition, the Panel notes that Ms. Dominguez Azpeleta was a high-profile athlete, with over 20 years of competing experience, and acted as a Vice-President of the RFEA. Accordingly, the Panel wishes to emphasise that Ms. Dominguez Azpeleta' s positions obliged her to act with the utmost respect for rules and regulations and aspire to be a role model for other athletes.

Therefore the Court of Arbitration for Sport decides on 19 November 2015 that:

1.) The CAS has jurisdiction to decide on the subject matter of this appeal.

2.) The appeals filed by IAAF and WADA are admissible and partially upheld.

3.) The decision of the RFEA Sports Disciplinary Committee of March 19, 2014 is set aside.

4.) Ms. Dominguez Azpeleta is guilty of an anti-doping rule violation.

5.) Ms. Dominguez Azpeleta is sanctioned with a three-year period of ineligibility starting on June 24, 2015. The period of provisional suspension imposed on Ms. Dominguez Azpeleta from July 8, 2013 through March 19, 2014, shall be credited against the 3-year period of ineligibility to be served.

6.) All competitive results obtained by Ms. Dominguez Azpeleta from the date Sample 1 was collected (August 5, 2009) through to the commencement of her provisional suspension (July 8, 2013) shall be disqualified, with all of the resulting consequences, including the forfeiture of any titles, awards, medals, points, prizes, and appearance money.

CAS 2014/A/3469 IAAF v. SAAF & Hussian Alhamdah

On 21 November 2013 the Saudi Arabian Anti-Doping Disciplinary Committee decided to impose a 2 year and 6 month period of ineligibility on the Athlete Hussain Alhamdah on the irregularities in his ABP. Hereafter the International Association of Athletics Federations (IAAF) appealed the Saudi decision with the Court of Arbitration for Sport (CAS).

The IAAF requested the Panel to impose a 4 year period of ineligibility due to aggravating circumstances for intentionally committing the anti-doping rule violations on multiple occasions over a number of years. Also the IAAF asserted that the Athlete deliberately mislead the IAAF and the Saudi Arabian Athletics Federation (SAAF) and had repeatedly lied befor he finally admitted the violation.

In view of all of the circumstances of the case, the Sole Arbitrator concludes that the sanction imposed by the Saudi Anti-Doping Disciplinary Committee is proportionate and in line with recent relevant jurisprudence with comparable facts.

Therefore the Court of Arbitration for Sport decides on 12 January 2015 that:

1.) The appeal filed by the International Association of Athletics Federations against the decision issued by the Saudi Anti-Doping Disciplinary Committee and notified on 25 November 2013 is dismissed.

2.) The decision issued by the Saudi Anti-Doping Disciplinary Committee and notified on 25 November 2013 is confirmed.

3.) The costs of the arbitration, to be determined by the CAS Court Office, shall be borne by the International Association of Athletics Federations.

4.) Each party shall bear its own costs.

5. All other motions or prayers for relief are dismissed.

CAS 2013/A/3418 LRBA vs IAAF

CAS 2013/A/3418 Ligue royale belge d'athlétisme c. l'Association Internationale des Fédérations d' Athlétisme

TAS 2013/A/3418 Ligue royale belge d'athlétisme c. l'Association Internationale des Fédérations d' Athlétisme

In March 2013 the International Association of Athletics Federations (IAAF) informed the Royal Belgian Athletics League (LRBA) that the world record of the minor Athlete Nafissatou Thiam could not be validated due to the Athlete’s doping test was not according to the Rule 260.6 of the IAAF Anti-Doping Rules. On 14 November 2013 the IAAF Council decided to uphold the previous IAAF decision of 2 March 2013

Hereafter in December 2013 the LRBA appealed the IAAF decision with the Court of Arbitration for Sport (CAS).
The LRBA argued that under the IAAF Rules CAS has jurisdiction in this case and requested that the world record is recognized by the IAAF Council.

The IAAF contended that under the IAAF Rules there are no provisions for LRBA to appeal with CAS.

In this case the Panel establishes that the Athlete is not an international level athlete and there is no indication that the Athlete is part of the group subject to out-of-competition testing by the IAAF under the IAAF Rules. Also the IAAF decision is not a sanction imposed after a violation of the anti-doping rules but an non-homologation of a world record by the IAAF Council.

Therefore the Court of Arbitration for Sport decides on 24 May 2014 that it has no jurisdiction for the LRBA appeal against the decision of the IAAF Council of 14 November 2013.

CAS 2013/A/3373 International Association of Athletics Federations (IAAF) v. Turkish Athletics Federation (TAF) and Nevin Yanit & Order on request for interpretation

In March 2013 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Turkish Athlete Nevin Yanit after her A and B samples, collected on 3 occasions in February 2013, tested positive for the prohibited substances stanozolol and testosterone with a T/E ratio above the WADA threshold.

The Athlete was already monitored more closely by the IAAF since September 2010 and targeted for testing since June 2012 as part of the ABP programme.
On 10 September 2014 the Disciplinary Board of the Turkish Athletics Federation (TAF) decided to impose a 2 year period of ineligibility on the Athlete.

Hereafter in September 2014 the IAAF appealed the TAF decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete due to aggravating circumstances and based on the irregularities in her ABP in the period between 2011 and 2013.

The IAAF argued that the Athlete used multiple Prohibited Substances not only in February 2013 but on multiple other occasions. In addition the Athlete also committed the anti-doping rule violation for blood doping in the period starting before June 2012 through February 2013.

Also the Athlete was organizing her blood doping and her use of anabolic steroids in a repetitive and sophisticated manner designed to boost her performance in key competitions while avoiding detection by in-competition testing. The IAAF contended that the Athlete’s doping was part of a common enterprise to dope elite Turkish athletes in an attempt to maximize the country’s chances of success in international competitions on the world stage.

Finally the IAAF asserted that the Athlete on two occasions was engaged in deceptive or obstructive conduct to avoid the detection of the violation of an anti-doping rule in June 2012 and in February 2013.

In this case the Panel has found the following constituted aggravating circumstances:

• The Athlete used two Prohibited Substances, namely testosterone and stanozolol.
• The Athlete used those Prohibited Substances on multiple occasions between August 2012 and February 2013, i.e. for a period of approximately 6 months.
• The Athlete committed a distinct anti-doping rule violation, namely blood doping, between June 2012 and February 2013, i.e. for a period of approximately 7 months.
• The Athlete committed the violations as part of a doping scheme.

Accordingly, having regard to the circumstances of this case, the Panel is of the view that a just and proportionate sanction would be a period of ineligibility of 3 years, being one year more than the penalty imposed by the TAF.

Therefore the Court of Arbitration for Sport decides on 6 March 2015 (and reconfirms on 29 May 2015) that:

1.) The appeal of the International Association of Athletics Federations is partially upheld.

2.) The decision of the Turkish Athletics Federation dated 10 September 2014 is modified to the extent that Ms. Yanit's period of ineligibility shall be for a period of three years commencing on the date of this award but giving credit for the period of ineligibility already served from 6 March 2013.

3.) Each party shall pay one third of the costs of the arbitration, such costs to be determined by the CAS Court Office and noticed to the parties under separate correspondence.

4.) Each of the parties shall bear their own legal costs and other expenses incurred in connection with this arbitration.

5.) All other claims are dismissed.

CAS 2013/A/3111 Mariem Alaoui Selsouli vs FRMA & IAAF
TAS 2013/A/3111 Mariem Alaoui Selsouli c/ Fédération Royal Marocaine d'Athlétisme (FRMA) & Association Internationale des Fédérations d'Athlétisme (IAAF)

The Moroccan Athlete tested positive for Erythropoietin (EPO) in August 2009 and was sanctioned with a 2 year period of inelgiblility until 22 August 2011.

In July 2012 the Royal Moroccan Athletics Federation (FRMA) reported an anti-doping rule violation against the Athlete after her sample tested positive for the prohibited substance Furosemide.
On 9 January 2013 the FRMA Disciplinary Commission decided to impose a 8 year period of inelgiblility on the Athlete for her second anti-doping rule violation.

Hereafter in February 2012 the Athlete appealed the FRMA decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel for a reduced sanction on the basis of No Fault or Negligence.

The Athlete explained, sustained by evidence, that she bears no fault or negligence due to the substance Lasix was administered to her by her family physician when she was unconscious and in a situation of extreme urgency. She did not mention the injection of this product on the Doping control because her doctor stated that the substance he had used had no doping related risk.

The Sole Arbitrator finds that the Athlete and her physician did not produce sufficient evidence in support of her explanation and the physician’s explanation about the use of Lasix in the situation of an emergency is unconvincing.

In conclusion the Sole Arbitrator considers that it is more likely that this product has not been injected under the explained circumstances as medical treatment and that it is more likely that the Athlete used the Furosemide to mask the use of another banned substance such as EPO.

Therefore the Court of Arbitration for Sport decides on 14 April 2014 to dismiss the Athletes appeal and to uphold the decision of 9 January 2013 of the FRMA Disciplinary Commission.

CAS 2012/A/3046 Amine Laalou vs FRMA & IAAF

TAS 2012/A/3046 Monsieur Amin Laalou c/ Fédération Royal Marocaine d' Athlétisme (FRMA) & Association Internationale des Fédérations d 'Athlétisme (IAAF)

In August 2012 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Moroccan Athlete Amine Laalou after his sample tested positive for the prohibited substance furosemide.
Requested by the IAAF the Laboratory also tested the Athlete’s sample for recombinant human erythropoietin (rhEPO) but the analysis did not show the presence of this substance.

On 23 October 2012 the Disciplinary Commission of the Royal Moroccan Athletics Federation (FRMA) decided to impose a 2 year period of ineligibility on the Athlete.
Hereafter in December 2012 the Athlete appealed the FRMA decision with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel to set aside the FRMA decision of 23 October 2012 and to impose a reduced sanction. He explained that the prescribed medication Lasilix was administered by his doctor as treatment for a leg swelling he suffered in July 2012.

He asserted that his doctor had reassured him that this medication not contained a prohibited substance. Also, he argued that there is no evidence that the substance was used to mask the presence of a substance as rhEPO because the Laboratory had reported that the probable presence of rhEPO was not demonstrated in his sample.

The IAAF contended that the Athlete gave different explanations about the medication and argued that the use of Lasilix is inadequate as treatment for the Athlete’s injury and more likely used for masking the presence of substances as rhEPO. Also as an experienced Athlete he failed to research the ingredients of the medication before it was use.

The Sole Arbitrator finds that the Athlete gave contradictory explanations and the medical explanations of the doctor for prescribing Lasilix as treatment are not consistent with those of the heard experts. The Sole Arbitrator concludes the Athlete acted negligence with the medication and there is a clear suspicion of EPO based on the Athlete’s test results.

Therefore the Court of Arbitration for Sport decides on 15 November 2013 to dismiss the Athlete’s appeal and to uphold the FRMA decision of 23 October 2012 for imposing a 2 year period of ineligibility on the Athlete.

CAS 2012/A/2732 International Association of Athletics Federations (IAAF) v. Athletics Federation of lndia (AFI) & Mandeep Kaur & Jauna Murmu

• Athletics
• Doping (metandienone; stanozolol)
• CAS scope of review
• Standard of proof of establishing how the prohibited substance entered the athletes’ system
• Reduction of sanction based on no significant fault or negligence
• Personal responsibility of the athlete
• Duty of care to establish no significant fault or negligence

1. According to Article R57 of the CAS Code, the CAS has full power to review the facts and law of the case. However, prayers for relief challenging an appealed decision must be part of an appeal against that decision, not a part of the response to an appellant’s appeal, as they are otherwise beyond the scope of review of the CAS.

2. The standard of proof of establishing how the prohibited substance(s) entered the athletes’ systems, in accordance with Rule 33.2 of the IAAF Rules, is a balance of probability, a standard that has been held to mean that an athlete alleged to have committed a doping violation bears the burden of persuading the judging body that the occurrence of a specified substance is more probable than its none occurrence; alternatively that the innocent explanation provided is more likely than not the correct explanation.

3. A reduction of sanction based on no significant fault or negligence may be appropriate in cases where the athlete clearly establish that the cause of the positive test was the contamination in a common multiple vitamin purchased from a source with no connection to prohibited substances, but only where the athlete otherwise exercised due care in not taking other nutritional supplements.

4. CAS jurisprudence is clear that athletes cannot shift their responsibility on to third parties simply by claiming that they were acting under instruction or that they were doing what they were told. That would be all too simple and would completely frustrate all the efforts being made in the fight against doping.

5. Even in the case where athletes may not be deemed informed athletes due to a lack of anti-doping education, they must be aware of the basic risks of contamination of nutritional supplements. If athletes have been taking a cocktail of supplements despite the numerous warnings in place about taking supplements, have failed to contact the manufacturers directly or arrange for the supplements to be tested before using them, did not seek advice from a qualified doctor or nutritionist, have failed to conduct a basic review of the packaging of the supplements and any basic Internet research about the supplements, they cannot be deemed to have taken any of the reasonable steps expected of them and cannot establish on the facts that they bear no significant fault or negligence.

In June 2011 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against 2 Indian athletes after their A and B samples tested positive for the prohibited substances metandienone and stanozolol (Mandeep Kaur) and for metandienone (Jauna Murmu).

The cases of the Athletes were heard together with the cases of four of their teammates in a consolidated procedure before the Indian Anti-Doping Disciplinary Panel (ADDP). On 23 December 2011 the ADDP decided to impose a reduced sanction of 1 year period of ineligibility in each case on the athletes due to they has established "no significant fault or negligence".

The ADDP Panel considered in its decision that the supplements were provided to the Athlete’s by their entrusted coach and he was selected and appointed by the Athletics Federation of Indian (AFI). As the AFI used to provide the supplements to the athletes they could not be expected to verify their supplements provide to them by the authority responsible for sports in the country.

Hereafter in February 2012 the IAAF appealed the ADDP decision with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the ADDP decision and to impose on the athletes a more severe sanction under the IAAF Rules.

By way of context, the IAAF asserted that there was a serious doping problem in India. When the Athletes tested positive for steroids, they blamed the Coach, the NIS and the National Federation for running out of nutritional supplements. The Athletes blamed everyone except themselves, yet bear the responsibility for anti-doping offences.

The IAAF argued that the Athletes completely failed in their duty to ensure that no prohibited substance entered their system. They took none of the precautions that were expected of them as athletes competing on the international stage and they were negligent in the extreme. Also the Athletes had not established how the prohibited substance(s) entered their systems to the requisite standard of proof.

The IAAF contended that the Coach had devised a separate sophisticated doping regimen for his athletes, including administering the type of steroids for which the Athletes tested positive. That doping regimen was put before the CAS.

The Sole Arbitrator notes that there is no evidence on the file that the Athletes deliberately ingested steroids. Further, the Sole Arbitrator also notes that the Athletes were in fact taking a number of supplements purchased from outside of the training centre which were not from official sources.

Considering the evidence the Sole Arbitrator finds that, on the balance of probabilities, the Kianpi Pills were the source of the Athletes' adverse analytical findings. The Sole Arbitrator rules that the Athletes were in fact guilty in a number of respects of serious fault or negligence in their conduct and that they must now serve the full 2 year period of suspension.

However, the Sole Arbitrator emphasize that the IAAF and the AFI need to take further positive action to educate
athletes directly in relation to the risks of taking supplements in India.

Therefore the Court of Arbitration for Sport decides on 30 November 2012:

1.) The appeal filed on 20 February 2012 by the International Association of Athletics Federations (IAAF) against the decision issued on 23 December 2011 by the Indian Anti-Doping Disciplinary Panel is admissible and upheld;

2.) The decision of the Indian Anti-Doping Disciplinary Panel of 23 December 2011 is set aside;

3.) Ms. Mandeep Kaur and Ms. Jauna Murmu shall both be declared ineligible for a period of two (2) years starting from the date of the present award, given credit of the period of their previous period of ineligibility and subsequent provisional suspension already served;

4.) All competitive results obtained by Ms. Mandeep Kaur from 25 May 2011 and by Jauna Murmu from 26 June 2011 until the commencement of their previous period of ineligibility shall be disqualified, with all resulting consequences, in accordance with IAAF Rule 40.8;

5.) The costs of the present procedure, to be determined and served separately by CAS to the parties, shall be borne by half (1/2) by the AFI and by one quarter( 1/4) by each Athlete;

6.) Each party shall bear its own legal costs;

7.) All other motions or prayers for relief are dismissed.

CAS 2011/A/2340 IAAF vs FFA & Fadil Bellaabouss

TAS 2011/A/2340 JAAF c/ FFA & Fadil Bellaabouss

On 2 December 2010 the Disciplinary Body of the French Athletics Federation (FFA) decided to impose a 6 month period of ineligibility on the Athlete Fadil Bellaabouss for a missed test and 3 whereabouts filing failures within 18 months.

Hereafter in January 2011 the International Association of Athletics Federations (IAAF) appealed the FFA decision with the Court of Arbitation for Sport (CAS). The IAAF requested the Panel to annul the FFA decision of 2 December 2010 and to impose a more severe sanction on the Athlete considering the Athlete’s fault.

In spite of the Athlete’s objection the Panel finds that CAS has jurisdiction to hear this case and rules that the IAAF appeal is admissible. Considering the Athlete’s fault and negligence the Panel concludes that the imposition of more severe sanction is proportionate.

Therefore the Court of Arbitration for Sport decides on 10 November to set aside the FFA decision of 2 December 2010 and to impose a 1 year period of inelgiblility on the Athlete.

CAS 2010/A/2110 International Association of Athletics Federation (IAAF) v. Colombian Athletics Federation (CAF) & Johanna Trivino-Urrutia

• Athletics
• Doping (stanozolol)
• Obligation of IAAF Members to abide by the IAAF Rules and Regulations
• Election of the governing law by tacit agreement
• No participation of the respondent in doping proceedings and procedural fairness
• Obligation of a doping control officer to deliver the samples to the laboratory “as soon as practically possible”
• Departure from the ISL and cause of the adverse analytical finding

1. According to the IAAF Constitution, the IAAF members agree to abide by the IAAF Constitution and by its Rules and Regulations. Furthermore, the IAAF members have the obligations to comply with all applicable IAAF Rules and Regulations. In this regard, the application for membership to the IAAF by a national governing body for athletics must include a formal undertaking to observe and abide by the IAAF Constitution, Rules and Regulations.

2. The election of governing law by tacit agreement is possible. For instance, by their behaviour, the parties could have clearly given their assent to the application of a specific law. Nevertheless, to admit this, it must undoubtedly emerge through the parties’ conclusive acts, that they agreed on the applicable law when they entered into the disputed contractual relationship.

3. The participation of the respondent is mandatory in an appeal, otherwise the appeal would be inadmissible due to the absence of a valid legal procedural relationship between the parties to the proceedings. Especially in doping proceedings concerning the magnification of the sanction imposed on the athlete, it would be procedurally unacceptable to make a decision on the merits if the athlete concerned has not been properly included in the proceedings or, at least, received knowledge of the proceedings in such a way that enables the person to legally defend himself. If the respondent was aware of the proceedings and had the opportunity to present his case, the legal relationship can be adequately established between the parties and the non-participation of the respondent should not put into question the validity of the proceedings in respect of procedural fairness.

4. The International Standards for Laboratories (ISL) do not prescribe a more specific period of time from the samples collection to their delivery to the laboratory but only stipulate that this should be done “as soon as practicably possible”. The phrase undoubtedly implies that transportation should be made at the first reasonable opportunity. A delay of ten days from the date of collection to the date of delivery should be justifiable only in exceptional circumstances, whereas an excuse in relation to other professional commitments is untenable. When a person accepts to assume the responsibility of a doping control officer, he must dedicate himself to comply and fulfil all the required duties expected of him and constantly be aware of the seriousness of his mission as well as the severe consequences that his actions may have upon the career of an athlete. Once a sample is collected, the requirement of “as soon as practicably possible” receives priority over other work commitments. Therefore, a ten-day delay is totally unacceptable and constitutes a departure from the ISL.

5. A delay in the transportation of the samples to the laboratory and/or their storage conditions cannot reasonably cause the materialization of an exogenous steroid where it was not otherwise present.

In June 2009 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the Colombian Athlete Johana Triviño-Urrutia after her sample tested positive for the prohibited substance stanozolol.

On 20 August 2009 the Disciplinary Commission of the Colombian Athletics Federation (FECODATLE) decided to impose a 2 year period of ineligibility on the Athlete. The Athlete appealed the decision and the General Disciplinary Commission (GDC) of the Colombian Olympic Committee decided on 12 February 2010 to set aside the test results and the sanction imposed on the Athlete due to several departures had occurred from the WADA ISL standard.

Hereafter in April 2010 the IAAF appealed the GDC decision of 12 February 2010 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the GDC decision and to impose a 2 year period of ineligiblilty on the Athlete for committing an anti-doping rule violation.

The IAAF contended that the Chain of Custody was well documented and the samples were intact and in a suitable condition delivered in spite of a delay of 10 days between the sample collection and the delivery to the Laboratory in Bogota.

The Panel holds as unacceptable the fact that 10 days have elapsed between the date of the samples collection and the date of their delivery to the Laboratory in Bogota. This delay is totally unacceptable and constitutes a departure from the International Standards for Laboratories.

However, considering the evidence the Panel is convinced that a breach in the chain of custody did not occur and that a departure from the International Standards for Laboratories caused due to the delay in the delivery of the samples, did not cause the adverse analytical finding.
In addition, the Respondents failed to produce any evidence whatsoever that would indicate manipulation of the sample by an ill-disposed person.

On these findings of the evidence, it has been proven by the IAAF as well as by the circumstances that the Athlete committed a doping offence prohibited by the applicable Anti-Doping Regulations.

Therefore the Court of Arbitration for Sport decides on 31 January 2011 that:

1.) The appeal filed by the International Association of Athletics Federations against the decision issued by the General Disciplinary Commission of the Colombian Athletics Federation on 12 February 2010 is upheld.

2.) The decision issued by the General Disciplinary Commission on 12 February 2010 is set aside.

3.) Ms Johanna Trivino-Urrutia is guilty of an Anti-Doping Rule violation committed during the 54th Colombian Senior Championship which took place in Bogota, Colombia between 23 and 24 May 2009.

4.) Ms Johanna Trivino-Urrutia shall be declared ineligible for two years. The period of ineligibility to be imposed upon her shall commence on the date of the notification of this award to Ms Trivino-Unuita. The periods of Provisional Suspension shall be credited against the total period of ineligibility be served.

5.) Ms Johanna Trivino-Urrutia's results, her eventual medals, points and prizes obtained during the 54th Colombian Senior Championship, since 23 May 2009 and/or during the above-mentioned period of ineligibility, are forfeited.

6.) This award is pronounced without cost, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid and to be retained by the CAS.

7.) Each party shall bear its own costs.

8.) All other motions or prayers for relief are dismissed.

CAS 2009/A/1766 Liliana Popescu c/ RANAD
CAS 2009/A/1766 Liliana Popescu vs ANAD

Related case:
ANAD Comisia de Apel 2008_07 Liliana Popescu vs ANAD
December 8, 2008

On 30 September 2008 the Hearing Commission of the National Anti-Doping Agency of Romania (ANAD) decided to impose a 2 year period of ineligibility on the Athlete after her A and B samples tested positive for Darbepoetin (dEPO). On 8 December 2008 the ANAD Appeal Commission dismissed the Athlete’s appeal and decided to uphold the decision of the ANAD Hearing Commission.

Hereafter in January 2009 the Athlete appealed the decision of the ANAD Appeal Commission with the Court of Arbitration for Sport (CAS).
The Athlete argued that the anti-doping violation was not intentional because to she had an accident in May and when unconscious in the hospital medication was administered without her knowledge including dEPO causing the positive test results.

The Panel finds that the Athlete explanation about the circumstances has several contradictions and rules that there are no grounds to justify exceptional circumstances in this case for a reduced sanction.

Therefore the Court of Arbitarton for Sport decides on 9 October 2009 to dismiss the Athlete’s appeal and to uphold the decision of the ANAD Appeal Commission of 8 December 2008.