CAS Ad hoc Division (Commonwealth Games in Manchester), CG 02/001 G. / Commonwealth Games Canada (CGC) & Triathlon Canada (TC)

Triathlon
Eligibility of an athlete suspended provisionally
CAS jurisdiction
Right to a hearing before an interim suspension
Validity of the athlete removal from the team

1. The Applicant’s Entry Form contains a provision dealing with the resolution of disputes which provides for CAS jurisdiction. The Applicant is bound by this provision as well as CGC as a Commonwealth Games Association ("CGA"), that has sole authority to submit a competitor's entry (Games Management Protocol 2.1.1). It does so on behalf of TC as a representative governing body for triathlon. CGC has itself implicitly agreed to be bound by the same terms and conditions on the Entry Form as the Applicant and in particular, to the dispute resolution mechanism set out therein. The Panel concludes that CGC is for this purpose acting not only on its behalf, but on behalf of TC as a constituent member. Since the Panel has identified a dispute covered by the arbitration dispute resolution clause inserted in the Entry Form, the CAS Panel finds itself properly seized.

2. There is no provision in the ITU rules which requires that there be some form of hearing before an interim suspension. In this context it is important to bear in mind that under English law which is particularly relevant (the Entry Form specifies English law as its governing law) or indeed under general principles of law, a hearing before an interim suspension is not normally required by principles of fairness; moreover an interim or provisional suspension without a hearing is common in the rules of other governing bodies concerned with the problem of doping in sport. Such suspension, decided on an urgent basis, does not deprive the Applicant of a proper hearing at a later stage with the potential for an appropriate remedy.

In July 2002 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Athlete G. after his A and B samples tested positive for the prohibited substance nandrolone.
After notification a provisional suspension was ordered and Commonwealth Games Canada (CGC) decided to exclude the Athlete from the Manchester 2002 Commonwealth Games.

Hereafter on 31 July 2002 the Athlete appealed the decision to suspend him with the CAS Ad hoc Division at the Manchester Commonwealth Games.
The Athlete requested to be reinstated and argued that he was suspended without having had a fair hearing.

The Panel finds that a hearing before an interim suspension is not normally required by principles of fairness; moreover an interim or provisional suspension without a hearing is common in the rules of other governing bodies concerned with the problem of doping in sport. The rationale for summary reaction to a positive test is obvious: the public interest of the sport trumps the private interests of the athlete. It should be emphasised that such suspension, decided on an urgent basis, does not deprive the Applicant of a proper hearing at a later stage with the potential for an appropriate remedy.

Therefore the Ad hoc Division of the Court of Arbitration for Sport decides on 2 August 202:

The application filed by G. on 31 July 2002 for an order directing Commonwealth Games Canada and Triathlon Canada to reinstate him to Team Canada 2002, to return him immediately at their expense to Manchester, and to allow him to compete in the men's triathlon competition on Sunday 4 August 2002 is dismissed.

CAS ad hoc Division (O.G. Sydney) 00/010 Alan Tsagaev / International Weightlifting Federation (IWF)

Weightlifting
Exclusion of a National Weightlifting Federation due to three positive doping cases
Lack of legal basis for such sanction

Although an international federation may have certain general discretionary powers to govern its sport even in the absence of specific provisions in the statutes or regulations, a suspension of an entire federation from participation in the Olympic Games, including innocent athletes who have not committed a doping offence or any other violation of the applicable rules, at least requires an explicit, and unambiguous legal basis.

Mr. Alan Tzagaev is a Bulgarian Athlete selected to compete in the weightlifiting events at the Sydney 2000 Olympic Games.

On 22 September 2000 the Executiver Board of the International Weightlifting Federation (IWF) rendered the following decision against the Bulgarian Weightlifting Federation after 3 Bulgarian weightlifters tested positive at the Sydney Olympic Games:

1.) The Bulgarian Weightlifting Federation is suspended forthwith for a period of not less than 12 months, pending further investigation.
2.) The Bulgarian Weightlifting Federation must present a detailed project – supported by their National Olympic Committee and National Sports Authorities – ensuring the elimination of the use of doping among their athletes.
3.) All remaining lifters as well as officials from Bulgaria will not be allowed to take part in the Olympic Games.

Hereafter on 22 september 2000 the Bulgarian Athlete Alan Tsagaev appealed this IWF decision of 22 September 2000 with the CAS ad hoc Division at the Sydney Olympic Games and requested the Panel to set aside his exclusion to compete at the Olympic Games.

The Athlete argued that under the IWF Rules after three positive doping tests within one year, the IWF must impose a $ 50.000 fine on the respective member federation. A suspension may be imposed only in the event of non payment of that fine and the IWF made no request for payment of a fine to the Bulgarian sports organisations.

The Panel rules that the IWF decision of 22 September 2000 lacked a sufficient legal foundation and must therefore be annulled in its relevant portions as far as the Athlete is affected, i.e. by reference to items 1 and 3 thereof.

Therefore the CAS ad hoc Division decides on 25 September 2000:

The application is granted insofar as points 1 and 3 of the decision made by the International Weightlifting Federation Executive Board on 22 September 2000 are annulled for lack of legal basis, with the consequence that the Applicant is allowed to participate in these Olympic Games.

CAS 2016/A/4746 Sibel Özkan Konak v. International Olympic Committee (IOC)

Related case:

IOC 2016 IOC vs Sibel Özkan
July 21, 2016

• Weightlifting
• Doping (stanozolol)
• Automatic consequences of anti-doping rule violation

Article 2.1 of the Rules applicable to the Games of the XXIX Olympiad, Beijing 2008 (the Rules) foresees that the presence of a prohibited substance (or its metabolite) in an athlete’s system constitutes an Anti-Doping Rule Violation (ADRV). Furthermore, Article 8 of the Rules makes disqualification and forfeiture of medals, points and prizes an automatic sanction for such an ADRV. Therefore issues of how and why a prohibited substance was present in an athlete’s system or the existence or degree of fault, if any, on the part of the athlete for its presence, are irrelevant to the outcome of an appeal by which the athlete is seeking annulation of a first instance decision under which all his medals, results etc. won had been disqualified.

Ms. Sibel Özkan is a Turkish Athlete competing the 48kg Weightlifting event at the Beijing 2008 Olympic Games.
In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substance stanozolol.
The IOC Disciplinary Commission finds that the Athlete has committed an anti-doping rule violation with the intentional use of a prohibited substance and decided on 21 July 2016 to disqualify the Athlete's results obtained to the Beijing 2008 Olympic Games and ordered her to return her silver medal, pins and diploma obtained thereat.

Hereafter in August 2016 the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).
The Athlete requested the Sole Arbitrator Panel to set aside the IOC decision and argued that the violation was unintentional and the result of contaminations in the supplements she took. Also the Athlete offered substantial assistance to the IOC by disclosure of sensitive information about the Turkish Weightlifting Federation.

The IOC requested the Panel to dismiss the Athlete’s appeal and argued that Athlete failed to provide any evidence of the contamination by stanozolol of the supplement said to be taken by her during the Beijing 2008 Olympic Games. The Athlete’s offer of substantial assistance is considered not a matter for the IOC.

The Sole Arbitrator deems that the Athlete committed an anti-doping rule violation under the Rules because of the presence of a metabolite of a prohibited substance stanozolol in the Athlete’s system with disqualification and forfeiture of medals, points and prizes. The appeal must therefore be dismissed.

The Sole Arbitrator finds that issues of how and why the Stanozolol was in the Athlete’s system or the existence or degree of fault, if any, on the part of the Athlete for its presence, are therefore irrelevant to the outcome of the appeal. The Sole Arbitrator sees no need to address them or to resolve the competing arguments of the parties on such issues nor, in his view, would any useful purpose be served by his so doing.

The Sole Arbitrator notes that the ability to reanalyse samples with the benefit of advanced techniques, reflected in this case, is a valuable weapon in the battle against doping in sport and should further deter athletes from deliberate cheating and further encourage them to take care not inadvertently to ingest prohibited substances.

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

1.) The appeal filed by Ms Sibel Özkan Konak on 11 August 2016 against the decision rendered on 21 July 2016 the IOC Disciplinary Commission is dismissed.
2.) The award is pronounced without costs, except for the Court Office fee of CHF 1’000 (one thousand Swiss Francs) paid by Ms Sibel Özkan Konak, which is retained by the CAS.
3.) Each party shall bear her/its own costs and other expenses incurred in connection with this arbitration.
4.) All other motions or prayers for relief are dismissed.

Ms. Nastassia Mironchyk-Ivanova is a Belarussian Athlete competing in the Women’s long jump athletics event at the London 2012 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 A and B samples tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).

After notification the Athlete submitted that she did not challenge the test results and she waived her right to be heard for the IOC Disciplinary Commission.

The Commission finds that the Athlete did not challenge the test results and 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 metabolite of a doping substance, which is a “classical” doping substance, was found, supports this consideration.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Nastassia Mironchyk-Ivanova:

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 2012,
2.) is disqualified from the Women’s long jump event in which she participated upon the occasion of the Olympic Games London 2012,
3.) has the diploma obtained in the Women’s long jump event withdrawn and is ordered to return the same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of the Republic of Belarus shall ensure full implementation of this decision.
6.) The National Olympic Committee of the Republic of Belarus shall notably secure the return to the IOC, as soon as possible, of the diploma awarded in connection with the Women’s long jump event to the Athlete.
7.) This decision enters into force immediately.

Ms. Boyanka Kostova is an Azerbaijani Athlete competing in the Women’s 58 kg weightlifting event at the London 2012 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 A and B samples tested positive for the prohibited substances dehydrochlormethyltestosterone (turinabol) and stanozolol.

After notification the Athlete submitted that she did not challenge the test results and she waived his right to be heard for the IOC Disciplinary Commission.

The Commission finds that the Athlete did not challenge the test results and 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 two doping substances, which are “classical” doping substances, were found, supports this consideration.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Boyanka Kostova:

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,
2.) is disqualified from the Women’s 58 kg weightlifting event in which she participated upon the occasion of the Olympic Games London 2012,
3.) has the diploma obtained in the Women’s 58 kg weightlifting event withdrawn and is ordered to return the same.
4.) The IWF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of the Azerbaijani Republic shall ensure full implementation of this decision.
6.) The National Olympic Committee of the Azerbaijani Republic shall notably secure the return to the IOC, as soon as possible, of the diploma awarded in connection with the Women’s 58 kg weightlifting event to the Athlete.
7.) This decision enters into force immediately.

Related case:
IOC 2016 IOC vs IOC 2016 IOC vs Aksana Miankova (Beijing Olympics)
November 22, 2016

Ms. Aksana Miankova is a Belarussian Athlete competing in the Women’s hammer throw event at the London 2012 Olympic Games. Previously the Athlete also competed at the Beijing 2008 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 June 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 substances dehydrochlormethyltestosterone (turinabol) and stanozolol.

After notification the Athlete submitted that she did not challenge the test results and she waived her right to be heard for the IOC Disciplinary Commission.

The IOC was also informed that reanalysis of the Athlete’s samples provided at the Beijng 2008 Olympic Games tested positive for the prohibited substances dehydrochlormethyltestosterone (turinabol) and oxandrolone.

The Commission finds that the Athlete did not challenge the test results and 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 two doping substances, which are “classical” doping substances, were found, supports this consideration.

The Commission notes that the samples collected on the occasion of the Beijing 2008 Olympic Games were also found to contain two Prohibited Substances, dehydrochlormethyltestosterone (turinabol) and oxandrolone, more than suggests that the Athlete has been using doping on a regular basis throughout her career. She could evade detection until the new methods based on long-term metabolites finally exposed her.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Aksana Miankova:

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,
2.) is disqualified from the Women’s hammer throw event in which she participated upon the occasion of the Olympic Games London 2012,
3.) has the diploma obtained in the Women’s hammer throw event withdrawn and is ordered to return the same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of the Republic of Belarus shall ensure full implementation of this decision.
6.) The National Olympic Committee of the Republic of Belarus shall notably secure the return to the IOC, as soon as possible, of the diploma awarded in connection with the Women’s hammer throw event to the Athlete.
7.) This decision enters into force immediately.

Related case:
IOC 2016 IOC vs Ilya Ilin (Beijng Olympiad)
November 22, 2016

Mr. Ilya Ilin is a Kazakh Athlete competing in the Men’s 94 kg weightlifting event at the London 2012 Olympic Games. Previously the Athlete also competed at the Beijing 2008 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 June 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 substances dehydrochlormethyltestosterone (turinabol) and stanozolol.

After notification the IWF ordered a provisional suspension and the Athlete was excluded for the Rio 2016 Olympic Games.
The Athlete submitted that he did not challenge the test results and he waived his right to be heard for the IOC Disciplinary Commission.

The IOC was also informed that reanalysis of the Athlete’s samples provided at the Beijng 2008 Olympic Games tested positive for the prohibited substance stanozolol.

The Commission finds that the Athlete did not challenge the test results and 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 metabolite of two doping substances, which are “classical” doping substances, were found, supports this consideration.

The Commission notes that the samples collected on the occasion of the Beijing 2008 Olympic Games were also found to contain a Prohibited Substance, stanozolol, which was also detected in the samples collected in 2012, more than suggests that the Athlete has been using doping on a regular basis throughout his career. He could evade detection until the new methods based on long-term metabolites finally exposed him.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Ilya Ilin:

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,
2.) is disqualified from the Men’s 94 kg weightlifting event in which he participated upon the occasion of the Olympic Games London 2012,
3.) has the medal, the medallist pin and the diploma obtained in the Men’s 94 kg weightlifting event withdrawn and is ordered to return the same.
4.) The IWF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of the Republic of Kazakhstan shall ensure full implementation of this decision.
6.) The National Olympic Committee of the Republic of Kazakhstan shall notably secure the return to the IOC, as soon as possible, of the medal, medallist pin and diploma awarded in connection with the Men’s 94 kg weightlifting event to the Athlete.
7.) This decision enters into force immediately.

Ms. Sviatlana Usovich is a Belarussian Athlete competing in the Women’s 800m athletics event at the Beijing 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substance dehydrochlormethyltestosterone (turinabol).

After notification the Athlete submitted that she did not challenge the test results and she waived her right to be heard for the IOC Disciplinary Commission.

The Commission finds that the Athlete did not challenge the test results and 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.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Sviatlana Usovich:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008,
2.) is disqualified from all the events in which she participated upon the occasion of the Olympic Games Beijing 2008, namely, the Women’s 800m event and the Women’s 4x400m relay event, and
3.) has diploma obtained in the Women’s 4x400m relay event withdrawn and is ordered to return the same.
4.) The Belarus Team is disqualified from the Women’s 4x400m relay. The corresponding 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 National Olympic Committee of the Republic of Belarus shall ensure full implementation of this decision.
7.) The National Olympic Committee of the Republic of Belarus shall notably secure the return to the IOC, as soon as possible, of the diplomas awarded in connection with the Women’s 4x400m relay event to the Athlete and to the other team members of the Women’s 4x400m Belarus team.
8.) This decision enters into force immediately.

Ms. Natallia Mikhnevich is a Belarussian Athlete competing in the Women’s shot put athletics event at the Beijing 2008 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A sample tested positive for the prohibited substances dehydrochlormethyltestosterone (turinabol), oxandrolone, metandienone and stanozolol.
Analysis of the Athlete’s B sample tested positive for the two prohibited substances metandienone and stanozolol.

After notification the Athlete submitted that she did not challenge the test results and she waived his right to be heard for the IOC Disciplinary Commission.

The Commission finds that the Athlete did not challenge the test results and 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 two doping substances, which are “classical” doping substances, were found, supports this consideration.

The Commission notes that in April 2013 the IAAF already had imposed a 2 year period of ineligibility on the Athlete after her sample tested positive for the prohibited subsance stanozolol, which in addition is one of the substances found in this case. This fact more than suggests that the Athlete has been using doping on a regular basis throughout her career. She could evade detection until the new methods based on long-term metabolites finally exposed her.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Natallia Mikhnevich:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008,
2.) is disqualified from the Women’s shot put event in which she participated upon the occasion of the Olympic Games Beijing 2008, and
3.) has the medal, the medallist pin and the diploma obtained in the Women’s shot put event withdrawn and is ordered to return the same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of the Republic of Belarus shall ensure full implementation of this decision.
6.) The National Olympic Committee of the Republic of Belarus shall notably secure the return to the IOC, as soon as possible, of the medal, medallist pin and diploma awarded in connection with the Women’s shot put event to the Athlete.
7.) This decision enters into force immediately.

Related case:
IOC 2016 IOC vs Aksana Miankova (London Olympics)
November 22, 2016

Ms. Aksana Miankova is a Belarussian Athlete competing in the Women’s hammer throw event at the Beijing 2008 Olympic Games. She also competed at the London 2012 Olympic Games.

In 2016, the IOC decided to perform further analyses on certain samples collected during the 2008 Olympic Games. These additional analyses were performed with analytical methods which were not available in 2008.

In May 2016 the International Olympic Committee reported an anti-doping rule violation against the Athlete after her 2008 A and B samples tested positive for the prohibited substances
dehydrochlormthyltestosterone (turinabol) and oxandrolone.

After notification the Athlete submitted that she did not challenge the test results and she waived her right to be heard for the IOC Disciplinary Commission.

The IOC was also informed that reanalysis of the Athlete’s samples provided at the London 2012 Olympic Games tested positive for the prohibited substances dehydrochlormethyltestosterone (turinabol) and stanozolol.

The Commission finds that the Athlete did not challenge the test results and concludes that the Athlete has committed an anti-doping rule violation consistent with intentional use of prohibited substances specifically ingested to deliberately improve performance. The fact that the metabolite of two doping substances, which are “classical” doping substances, were found, supports this consideration.

The Commission notes that the samples of the same Athlete collected on the occasion of the 2012 Olympic Games were also found to contain Prohibited Substances, dehydrochlormethyltestosterone (turinabol) and stanozolol. This fact more than suggests that the Athlete has been repeatedly using Prohibited Substances throughout her career. She could evade detection until the new methods based on long-term metabolites finally exposed her.

Therefore the IOC Disciplinary Commission decides on 22 November 2016 that the Athlete, Aksana Miankova:

1.) is found to have committed an anti-doping rule violation pursuant to the IOC Anti-Doping Rules applicable to the Games of the XXIX Olympiad in Beijing in 2008,
2.) is disqualified from the Women’s hammer throw event in which she participated upon the occasion of the Olympic Games Beijing 2008,
3.) has the medal, the medallist pin and the diploma obtained in the Women’s hammer throw event withdrawn and is ordered to return the same.
4.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The National Olympic Committee of the Republic of Belarus shall ensure full implementation of this decision.
6.) The National Olympic Committee of the Republic of Belarus shall notably secure the return to the IOC, as soon as possible, of the medal, medallist pin and diploma awarded in connection with the Women’s hammer throw event to the Athlete.
7.) This decision enters into force immediately.