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

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

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

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

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

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

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

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

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

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

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

Related case:
CAS 2016_A_4697 Elena Dorofeyeva vs ITF
February 3, 2017

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

Hereafter in July 2015 the ITF reported an anti-doping rule violation against the Ukrainian Dr. Elena Dorofeyeva for the administration of prohibited substances to the Athlete Kateryna Kozlova.
After several attempts by the ITF to notify Dr Dorofeyeva of the violation she filed a statement in her defence in November 2015 and she did not attend the hearing of the ITF Independent Anti-Doping Tribunal.

Dr. Dorofeyeva submitted a number of arguments and motions in this case. She denied the violation, asserted that she had not prescribed or advised the use of Red Rum to anyone as she did not know the product.

Considering the evidence and statements in this case the Tribunal Sole Arbitrator rules:

- not to accept Dr Dorofeyeva’s denial for the prescription by her, and the provision by her, to Ms Kozlova of Red Rum in November 2014;
- not to accept her denial that the ‘Elena’ on the pharmacy receipt referred to her;
- that Dr Dorofeyeva is subject to the jurisdiction of the Tribunal and therefore her jurisdiction motion is rejected;
- not to accept the claim that she suffered due to the period of avoidable delay and therefore her deadline lapse motion is rejected;
- that her right to a fair trial is not violated and therefore her summary judgment motion is rejected;
- that Dr Dorofeyeva has committed an anti-doping rule violation for the administration of a prohibited substance to Ms Kozlova.

On 9 June 2016 the Sole Arbitrator of the Independent Anti-Doping Tribunal decides to impose a 4 year period of ineligibility on Dr. Dorofeyeva starting on 1 May 2016.

Related case:
ISR 2016 NBF Decision Disciplinary Committee 2016007 T
October 3, 2016

On 3 October 2016 the ISR-Disciplinary Committee of the Dutch Bowling Federation (NBF) decided to impose a 2 year period of ineligibility on the Person after his sample tested positive for the prohibited substance Methylenedioxymethamphetamine (MDMA).

The Person denied the intentional use of the prohibited substance and assumed that someone put the substance in his drink at the party on the evening before the competition. The ISR-NBF Disciplinary Committee ruled that the Person didn’t producte evidence for his assumption and he failed to explain how the prohibited substance came into his body.

Hereafter in October 2016 the Person appealed the decision of 3 October 2016 of the ISR-NBF Disciplinary Committee with the ISR-NBF Appeal Committee. The Appeal Committee upholds the conclusion of the Disciplinary Committee that the evidence showed that the Athlete committed an anti-doping rule violation after testing positive for the prohibited substance.

The Appeal Committee considers in this appeal whether there are grounds to reduce the imposed sanction and whether the violation was without intention to enhance his sport performance.
The Appeal Committee accepts the conclusion that the violation wasn’t intentional and establish that the Person failed to produce any evidence for his assumption about how the prohibited substance came into his body.

Without grounds to reduce the sanction the ISR-NBF Appeal Committee decides on 12 December 2016 to confirm the imposed 2 year period of ineligibility on the Person.

Fees and expenses for this committee shall be borne by the Person.

Ms Antonina Krivoshapka is a Russian Athlete competing in the Women’s 400m athletics event at the 2012 London Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.

In July 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2012 A and B samples tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).

After notification the Athlete submitted that she did not accept the test results, she filed a statement in her defence and was heard for the IOC Disciplinary Commission.

The Athlete disputed the filing of the McLaren Report, Part 2; she challenged the validity of the testing method; she contended that the presence of a Prohibited Substance in her bodily sample may be a result of a contaminated product unintentionally ingested; and she requested the appointment of independent expert.

The Disciplinary Commission finds that the content of the McLaren Report has been publicly issued and is available to anybody. It is therefore part of common knowledge and its acceptance or exclusion from the file could not change that. The report was indeed not related to the Athlete and, as such, could not permit to draw a conclusion in her respect.

Regarding the validity of the testing method the Disciplinary Commission observes that the Athlete filed the opinion of an expert witness Dr Kopylov which was also filed and heard in 3 other cases.
The Commission notes that according to the McLaren Report, Part 2, turinabol appears to have been widely used in Russia in this period can only bring additional comfort in holding that the analysis through the challenged method did effectively properly identified this substance.
The Commission concludes that the arguments put forward by Dr Kopylov are meritless. The scientific validity of the analytical method used by the Laboratory is beyond question and the application to appoint an independent expert is rejected.

The Disciplinary Commission notes that athletes have long been warned against the use of supplements. As such, the fact that turinabol may have been ingested as part of a supplement is not likely to constitute an element exonerating the Athlete from having been at fault for using a Prohibited Substance. In this respect, the Disciplinary Commission observes that supplements do not, as a rule, contain turinabol and that accidental contamination of a legitimate supplement by this substance appears to be very unlikely.

With the positive test results the Commission concludes that the Athlete has committed an anti-doping rule violation consistent with the intentional use of a prohibited substances specifically ingested to deliberately improve performance. The fact that the metabolites of a doping substance, which is a traditional doping substance, was found, supports this consideration.

The Disciplinary Commission, which has now handled multiple cases arising out of the reanalysis of samples from the 2008 and 2012 Olympic Games, observes that the presence of metabolites of this particular substance has been established in a remarkably high number of cases, which resulted from the re-analysis of the samples collected in Beijing 2008 and London 2012. This constitutes an indication that said substance has been in widespread use by athletes, who were doping at that time.

Therefore the IOC Disciplinary Commission decides on 27 January 2017 that the Athlete, Antonina Krivoshapka:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXX Olympiad in London in 2012 (presence and/or use, of a Prohibited Substance or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the events in which she participated upon the occasion of the Olympic Games London 2012, namely, the Women’s 400m event and the Women’s 4x400m relay event, and
3.) has the silver medal, the medallist pin and the diplomas obtained in the Women’s 400m event and in the Women’s 4x400m relay event withdrawn and is ordered to return same.
4.) The Russian Federation Team is disqualified from the Women’s 4x400m relay event. The corresponding medals, medallist pins and diplomas are withdrawn and shall be returned.
5.) The IAAF is requested to modify the results of the above-mentioned events accordingly and to consider any further action within its own competence.
6.) The Russian Olympic Committee shall ensure full implementation of this decision.
7.) The Russian Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the diploma awarded to the Athlete in connection with the Women’s 400m event and the silver medals, medallist pins and diplomas awarded to the members of the Russian Federation Team who participated in the Women’s 4x400m relay event.
8.) This decision enters into force immediately.

Mr Adem Kılıçcı is a Turkish Athlete competing in the Men’s 69-75 kg boxing event at the 2012 London Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after his 2012 A and B samples tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).

After notification the Athlete filed a statement in his defence and he was heard for the IOC Disciplinary Commission.

The Athlete denied the use of prohibited substances, he never tested positive in his career and contended that the presence of a Prohibited Substance in his bodily sample may be a result of a contaminated product unintentionally ingested.

The Disciplinary Commission notes that athletes have long been warned against the use of supplements. As such, the fact that turinabol may have been ingested as part of a supplement is not likely to constitute an element exonerating the Athlete from having been at fault for using a Prohibited Substance.
In this respect, the Disciplinary Commission observes that supplements do not, as a rule, contain turinabol and that accidental contamination of a legitimate supplement by this substance appears to be very unlikely.

With the positive test results the Commission concludes that the Athlete has committed an anti-doping rule violation consistent with the intentional use of prohibited substances specifically ingested to deliberately improve performance. The fact that the metabolites of a doping substance, which is a “classical” doping substance, was found, supports this consideration.

The Disciplinary Commission, which has now handled multiple cases arising out of the reanalysis of samples from the 2008 and 2012 Olympic Games, observes that the presence of metabolites of this particular substance has been established in a remarkably high number of cases, which resulted from the re-analysis of the samples collected in Beijing 2008 and London 2012. This constitutes an indication that said substance has been in widespread use by athletes, who were doping at that time.

Therefore the IOC Disciplinary Commission decides on 27 January 2017 that the Athlete, Adem Kılıçcı:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXX Olympiad in London in 2012 (presence, and/or use, of Prohibited Substances or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the event in which he participated upon the occasion of the Olympic Games London 2012, namely the Men’s 69-75 kg boxing event, in which he ranked 5th and for which he was awarded a diploma.
3.) has the diploma obtained in the Men’s 69-75 kg boxing event withdrawn and is ordered to return the same.
4.) The AIBA is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Turkish Olympic Committee shall ensure full implementation of this decision.
6.) The Turkish Olympic Committee shall notably secure the return to the IOC, as soon as possible, of the diploma awarded in connection with the Men’s 69-75 kg boxing event to the Athlete.
7.) This decision enters into force immediately.

Related cases:

• CAS 2018_O_5704 IAAF vs RusAF & Vera Ganeeva
  January 31, 2019
• World Athletics 2022 WA vs Vera Ganeyeva (Karmishina)
  May 25, 2023

Ms Vera Ganeeva is a Russian Athlete competing in the Women’s discus throw athletics event at the 2012 London Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2012 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2012.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2012 sample tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).

After notification the Athlete filed a statement in her defence and she was heard for the IOC Disciplinary Commission.

The Athlete denied having used performance enhancing substances. As an explanation for the presence of the Prohibited Substance, she raises the hypothesis that the substances may have been contained in medication or food supplements bought in Ukraine by her coach/husband at that time. She also suspects that somebody would have contaminated her food during her preparation for the 2012 Olympic Games.

The Disciplinary Commission notes that the Athlete does not bring forth any concrete evidence to support her submissions. Furthermore, the fact that the substance in question may have been contained in food supplements would not exonerate the Athlete from having used it.

With the positive test results the Commission concludes that the Athlete has committed an anti-doping rule violation consistent with the intentional use of a prohibited substance specifically ingested to deliberately improve performance. The fact that the metabolites of a doping substance, which is a “classical” doping substance, was found, supports this consideration.

The Disciplinary Commission further observes that the substance found in the Athlete’s sample is the same as the one detected in the overwhelming majority of cases of anti-doping violations, which were established in the course of the re-analysis process. The fact that turinabol has been effectively and widely used as a doping substance, notably in Russia, is further corroborated by the McLaren Report, Part 2, which expressly mentions turinabol as the doping substance of choice in the period up to the 2012 Olympic Games.

Therefore the IOC Disciplinary Commission decides on 27 January 2017 that the Athlete, Vera Ganeeva:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXX Olympiad in London in 2012 (presence, and/or use, of Prohibited Substances or its Metabolites or Markers in an athlete’s bodily specimen),
2.) is disqualified from the event in which she participated upon the occasion of the Olympic Games London 2012, namely the Women’s discus throw event.
3.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
4.) The Russian Olympic Committee shall ensure full implementation of this decision.
5.) This decision enters into force immediately.

iNADO Quarterly Report 4/2016 / Institute of National Anti-Doping Organisations (iNADO). - Bonn : iNADO, 2017

(See attached pdf-file for more information)

This communication goes to iNADO’s 62 Members.
iNADO is happy to answer any questions on your Institute’s activities.

Please send your questions to info@inado.org

Contents:

- New members
- New iNADO Partnerships
- iNADO Attendance at Anti-Doping Conferences/Meetings
- NADOs visited
- iNADO Webinars
- iNADO Board Meetings
- iNADO Public Statements
- iNADO Finances
- iNADO Updates
- iNADO Member Communications
- Added Documents on iNADO Website
- Other iNADO Projects and Activities

iNADO Quarterly Report 3/2016 / Institute of National Anti-Doping Organisations (iNADO). - Bonn : iNADO, 2016

(See attached pdf-file for more information)

This communication goes to iNADO’s 59 Members. This quarterly
corporate report shares information on iNADO’s activities during the period July - Sept. 2016. iNADO is happy to answer any questions on your Institute’s activities.

Please send your questions to info@inado.org

Contents:

- New iNADO Partnerships
- iNADO Attendance at Anti-Doping Conferences/Meetings
- NADOs visited
- iNADO Webinars
- iNADO Board Meetings
- iNADO Finances
- iNADO Public Statements
- iNADO Updates
- iNADO Member Communications
- Added Documents on iNADO Website
- Other iNADO Projects and Activities

Additional Protocol to the Anti-Doping Convention / Council of Europe (CoE). - Strasbourg : CoE, 2002

• European Treaty Series; ETS No. 188

Warsaw, 12/09/2002 - Treaty open for signature by the member States of the Council of Europe and the other States signatories or Parties to the Convention

The aim of the Protocol is to ensure the mutual recognition of doping controls and to reinforce the application of the Convention (ETS No. 135).

To this end, the Protocol ensures the recognition by States Parties to the Convention of doping controls carried out on sportsmen and women coming from the other States Parties to the Convention. This will obviate the need for the conclusion of multiple bilateral agreements and will increase the effectiveness of anti-doping controls. In the same spirit, the Protocol is the first instrument of international public law, which recognises the competence of the World Anti-Doping Agency to conduct out of competition controls.

With regard to the reinforcement of the application of the Convention, the Protocol sets up a binding monitoring mechanism. This monitoring will be carried out by an evaluation team, which will make a visit to the State concerned, followed by an evaluation report.

Anti-Doping Convention / Council of Europe (CoE). - Strasbourg : CoE, 1989

• European Treaty Series; ETS No. 135
  
  

The Convention was open for signature on 16th November 1989 and entered into force on 1 March 1990. To this day it has been ratified by 52 states and is open to non-Member States of the Council of Europe. It has been adopted by Australia, Belarus, Canada, and Tunisia. The Convention does not claim to create a uniform model of anti-doping, but sets a certain number of common standards and regulations requiring Parties to adopt legislative, financial, technical, educational and other measures.

The main objective of the Convention is to promote the national and international harmonisation of the measures to be taken against doping. In their constitutional provisions, each contracting party undertakes to:
- create a national co-coordinating body;
- reduce the trafficking of doping substances and the use of banned doping agents;
- reinforce doping controls and improve detection techniques;
- support education and awareness-raising programmes;
- guarantee the efficiency of sanctions taken against offenders;
- collaborate with sports organisations at all levels, including at international level; and
- to use accredited anti-doping laboratories

Furthermore the Convention describes the mission of the Monitoring Group set up in order to monitor its implementation and periodically re-examine the List of prohibited substances and methods which can be found in annex to the main text.

An Additional Protocol to the Convention entered into force on 1st April 2004 with the aim of ensuring the mutual recognition of anti-doping controls and of reinforcing the implementation of the Convention using a binding control system.