Related case:

CAS 2010_A_2107 Flavia Oliveira vs USAD
December 6, 2010

In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

The Athlete admitted the violation and denied the intentional use of the substance. She argued that she was unaware that the supplement Hyperdrive 3.0+ contained a prohibited substance. Because she acted with a low degree of fault she requested for a reduced sanction.

The Sole Arbitrator accepts that the anti-doping rule violation was not intentional and rules that there were insufficient grounds for a reduced sanction.

Therefore the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete, staring on the date of the sample collection, i.e. on 19 June 2009.

On 12 June 2015 the French Federation of Weightlifting, Fitness, Powerlifting and Bodybuilding (FFHMFAC) decided to impose a 4 month period of ineligibility on the Athlete after he tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

Hereafter the case against the Athlete was reopened by the AFLD. Following notification the Athlete filed a statement in his defence.

The Athlete admitted the violation, denied the intentional use of the substance and explained that the source was a supplement he had used. He acknowledged that he acted negligently as he had not checked this supplement before using.

The AFLD determines that:

• The Athlete had committed an anti-doping rule violation;
• He failed to check the ingredients on the label of this supplement;
• He did not mention the supplement on the Doping Control Form;
• He established how the substance had entered his system;
• He acted with siginificant fault or negligece.

Therefore the AFLD decides on 21 January 2016 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 12 June 2015.

On 26 June 2015 the French Federation for Kick Boxing, Muay Thai and Associated Disciplines (FFKMDA) decided to impose a 1 year period of ineligibility on the Athlete after he tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

Hereafter the case against the Athlete was reopened by the AFLD. Following notification the Athlete filed a statement in his defence and he was heard.

The Athlete admitted the violation and denied the intentional use of the substance. He explained that he had used a supplement Lipo-6 Black, recommended by a person he knew, in order to to lose weight.

The AFLD determines that:

• The Athlete had committed an anti-doping rule violation;
• He had used the prohibited substance without a medical justification;
• He failed to check the ingredients on the label of this supplement;
• He did not mention the supplement on the Doping Control Form;
• He established how the substance had entered his system;
• He acted negligently and failed to demonstrate that the violation was not intentional.

Therefore the AFLD decides on 21 January 2016 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the provisional suspension, i.e. on 11 June 2015.

CAS 2010/A/2107 Flavia Oliveira v. United States Anti-Doping Agency (USADA)

Related case:

AAA 2009 No. 77 190 00429 09 USADA vs Flavia Oliveira
April 6, 2010

• Cycling
• Doping (oxilofrine)
• Specified substance
• CAS power of review
• Requirement to prove no intent to enhance sport performance
• Degree of fault of the athlete
• Duty of care of the athletes
• Proportionality of the sanction
• Requirements for obtaining a reduced period of ineligibility
• Relevant factors to be considered in reducing the period of ineligibility

1. Pursuant to Article R57 of the Code, which provides the panel with full power to review the facts and law and authorizes it to issue a new decision which replaces the decision challenged, a panel must make its independent determination of whether the appellant’s contentions are correct, not limit itself to assessing the correctness of the appealed decision or award.

2. Clause two of Article 10.4 of the WADA Code does not require the athlete to prove that he/she did not take a product (for example a nutritional supplement) with the intent to enhance sport performance. If such construction was adopted, an athlete’s usage of nutritional supplements, which are generally taken for performance-enhancing purposes, but which is not per se prohibited by the WADA Code, would render Article 10.4 inapplicable even if the particular supplement that is the source of a positive test result contained only a specified substance. Therefore Article 10.4 of the WADA Code requires the athlete only to prove his/her ingestion of the specified substance was not intended to enhance his/her sport performance. This construction of Article 10.4 harmonises the clear language in clause one with the differing and ambiguous language of clause two, and is consistent with its explanatory Comment.

3. The athlete’s “degree of fault” is only relevant in determining whether his/her period of ineligibility should be reduced. It is not to be considered in determining whether he/she can prove his/her lack of intent to enhance sport performance.

4. Because the risks of mislabelling and/or contamination now are generally known or at least foreseeable, all athletes must exercise reasonable care to ensure a nutrition supplement does not contain a banned substance whether the WADA Code classifies it as a prohibited or specified substance.

5. In determining the athlete’s period of ineligibility, the panel must impose an appropriate sanction that furthers the WADA Code’s objective of proportionate and consistent sanctions for doping offences based on an athlete’s level of fault under the totality of circumstances.

6. Unlike Article 10.5 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations), Article 10.4 of the WADA Code (and its implementation in the UCI Anti-Doping Regulations) does not require the athlete to prove “no significant fault or negligence” to obtain a reduced period of ineligibility for testing positive for a specified substance. The appropriate inquiry is the athlete’s “degree of fault” under the circumstances. To resolve this issue, the panel must determine whether the nature and degree of his/her unreasonable conduct under the circumstances was so high that a two-year period of ineligibility is proportionate and consistent with other similar cases.

7. The fact that an athlete would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the athlete only has a short time left in his or her career or the timing of the sporting calendar are not relevant factors to be considered in reducing the period of ineligibility under Article 10.4 of the WADA Code.

In September 2009 the United States Anti-Doping Agency (USADA) reported an anti-doping rule violation against the cyclist Flavia Oliveira after her sample tested positive for the prohibited substance Oxilofrine (Methylsynephrine).

Consequently the American Arbitration Association (AAA) decided on 6 April 2010 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in April 2010 the Athlete appealed the AAA Decision with the Court of Arbitration for Sport (CAS). The Panel was asked to determine the appropriate length of the Athlete’s period of ineligibility and the date on which the period of ineligibility should take effect.

The Athlete hoped to demonstrate to the Panel that her lack of intent to use a prohibited substance, her reasonable explanation as to how the prohibited substance entered her body, and her efforts to ensure that the Hyperdrive product that she ingested did not contain any prohibited substances, should support a reduction from the presumptive two-year period of ineligibility.

USADA contended that the Athlete should receive a 2 year period of ineligibility that should begin on the date that she accepted a provisional suspension.

The Panel finds that the Athlete has satisfied her burden of establishing that Oxilofrine entered her system as a result of her consumption of the supplement Hyperdrive 3.0+. Further the Panel concludes that the Athlete's testimony and other corroborating evidence establishes to its comfortable satisfaction that she did not intend to enhance her sport performance.

In view of the Athlete's conduct the Panel deems that she acted with a lowere degree of fault. Further the Panel considers that she gave a timely admission following the notification.

Therefore the Court of Arbitration for Sport decides on 6 December 2010:

1.) The appeal filed by Flavia Oliveira on April 27, 2010 against the decision of the American Arbitration Association dated April 6, 2010 is upheld.

2.) The decision of the American Arbitration Association dated April 6, 2010 imposing a period of ineligibility of two years is set aside and a period of ineligibility of eighteen (18) months commencing on August 30, 2009 is substituted therefor.

3.) This award is pronounced without costs, except for the Court Office fee of CHF 500 paid by Flavia Oliveira which shall be retained by the CAS.

(…)

5.) All other or further claims are dismissed.

CAS 2014/A/3571 Asafa Powell v. Jamaica Anti-Doping Commission (JADCO)

Related case:
JADCO 2014 JADCO vs Asafa Powell
May 1, 2014,
April 10, 2014 (oral decision)

Athletics (sprint)
Doping (oxilofrine)
Distinction between answer and (cross) appeal (ultra petita)
Requirements for the application of a reduced period of ineligibility for the use of a Specified Substance
Source of the Prohibited Substance in the Athlete’s body
No intent to enhance sport performance
Assessment of the degree of fault

1. CAS rules provide strict time limits and formalities with regards to appeals with a perceptible and proper purpose of ensuring that the parties know at the earliest opportunity what issues can be raised before a CAS panel. It results from a party’s omission to file its own appeal that it cannot seek an increased sanction over and above that ordered by the first instance body having rendered the challenged decision, as an answer to an appeal is not in substance or in form the same as a (cross) appeal. A party cannot take advantage of its own procedural omission albeit unintentional, as doing so would unfairly countenance consideration of a penalty that is the product of procedural unclean hands. That would be ultra petita.

2. In order to prove his entitlement to any reduced period of ineligibility under article 10.4 of the JADCO Anti-Doping Rules which incorporates the WADA Code, an athlete must establish: 1) how the specified substance entered his body on a balance of probability; and 2) that the specified substance was not intended to enhance his sport performance. He must also produce corroborating evidence in addition to his word which establish to the comfortable satisfaction of the adjudicating panel the absence of an intent to enhance sport performance. If these requirements are satisfied, the athlete’s “degree of fault” will be considered to determine whether the presumptive two-year period of ineligibility should be reduced, and if so, by what period of time.

3. The evidence of test results establishing that a supplement contained a prohibited substance is sufficient to establish that the supplement purchased for the athlete was the source of the prohibited substance which was found in his urine sample.

4. The fact that the specified substance is a low grade, mild stimulant with little if any performance-enhancing benefit, that it is very easy to detect, the open disclosure by the athlete of his/her use of the specified substance and the fact that he/she gave credible evidence that he/she used the product containing the specified substance as a nutritional supplement are objective circumstances which in combination might lead a hearing panel to be comfortably satisfied that the athlete did not intend to enhance his/her sport performance by unknowingly ingesting the specified substance (or indeed by knowingly ingesting the nutritional supplement).

5. It is incumbent upon any international level competitor to at the very least be aware of the risk of supplement use. While it would be unreasonable to expect an athlete to go to the lengths of having each batch of a supplement tested before use, there are other less onerous steps that could be taken, such as making a direct inquiry to the manufacturer and seeking the advice of professionally qualified doctors. The fact to research the ingredients of the specified substance on the internet and to compare each ingredient searched with the WADA Prohibited List constitute some significant steps to minimize any risk associated with the taking of the specified substance. The fact that there is no way short of a laboratory test in which the substance could have been identified as one of the ingredient of the supplement is also to be taken into account to assess the athlete’s degree of fault.

On 1 May 2014 (with the oral decision on 10 April 2014) the Jamaica Anti-Doping Disciplinary Panel decided to impose a 18 month period of ineligibility on the Athlete Asafa Powell after his A and B samples tested positive for the prohibited substance oxilofrine (methylsynephrine).

Hereafter in April 2014 the Athlete appealed the decision of 10 april 2014 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel for a reduced sanction and argued that he had no intention to enhance his performance. He explained how the substance came into his body and his efforts that the supplements he used did not contain any prohibited substances.

The Panel finds that Powell’s testimony along with the other corroborating evidence establish to its comfortable satisfaction that he did not intend to enhance his sport performance by unknowingly ingesting Oxilofrine (or indeed by knowingly ingesting Epiphany D1).
The Panel finds that in all the circumstances, factually and legally, the eighteen-month period of ineligibility imposed by the Jamaica Anti-Doping Disciplinary Panel was excessive; and, with all the reservations it has already articulated about comparable cases, so far outside the broad run of cases as to excite a sense that an injustice has been done.

Therefore the Court of Arbitration for Sport decides on 7 July 2015:

1.) The Appeal filed by Mr Asafa Powell against the decision of the Jamaica Anti-Doping Disciplinary Panel dated 10 April 2014 is partially upheld.
2.) The decision of the Jamaica Anti-Doping Disciplinary Panel dated 10 April 2014 is set aside and replaced with the following: Mr Asafa Powell is sanctioned with a period of ineligibility of six (6) months, commencing on 21 June 2013.
3.) All sporting results obtained by Mr Asafa Powell from 21 June 2013 up to the date of the expiring of the period of ineligibilty shall be invalidated.
4.) (…).
5.) (…).
6.) All other or further requests or motions for relief are dismissed.

CAS 2014/A/3572 Sherone Simpson v. Jamaica Anti-Doping Commission (JADCO)

Athletics (sprint)
Doping (oxilofrine)
Distinction between answer and (cross) appeal (ultra petita)
Requirements related to the application of a reduced period of ineligibility for the use of a Specified Substance
Source of the Prohibited Substance in the Athlete’s body
No intent to enhance sport performance
Assessment of the degree of fault

1. CAS rules provide strict time limits and formalities with regards to appeals with a perceptible and proper purpose of ensuring that the parties know at the earliest opportunity what issues can be raised before a CAS panel. It results from the party’s omission to file its own appeal that it cannot seek an increased sanction over and above that ordered by the first instance body having rendered the challenged decision, as an answer to an appeal is not in substance or in form the same as a (cross) appeal. A party cannot take advantage of its own procedural omission albeit unintentional, as doing so would unfairly countenance consideration of a penalty that is the product of procedural unclean hands. That would be ultra petita.

2. In order to prove his/her entitlement to any reduced period of ineligibility under 10.4 of the JADCO Anti-Doping Rules which incorporates the WADA Code, an athlete must establish: 1) how the specified substance entered his/her body on a balance of probability; and 2) that the specified substance was not intended to enhance his/her sport performance. The athlete must also produce corroborating evidence in addition to his/her word which establish to the comfortable satisfaction of the adjudicating panel the absence of an intent to enhance sport performance. If these requirements are satisfied, the athlete’s “degree of fault” will be considered to determine whether the presumptive two-year period of ineligibility should be reduced, and if so, by what period of time.

3. The evidence of the test results establishing that a supplement contained the specified substance is sufficient to establish that the supplement purchased for the athlete was the source of the specified substance found in the athlete’s urine sample.

4. The fact that the specified substance is a low grade, mild stimulant with little if any performance-enhancing benefit, that it is very easy to detect, the open disclosure by the athlete of his/her use of the specified substance and the fact that he/she gave credible evidence that he/she used the product containing the specified substance as a nutritional supplement are objective circumstances which in combination might lead a hearing panel to be comfortably satisfied that the athlete did not intend to enhance his/her sport performance by unknowingly ingesting the specified substance (or indeed by knowingly ingesting the nutritional supplement).

5. It is incumbent upon any international level competitor to at the very least be aware of the risk of supplement use. While it would be unreasonable to expect an athlete to go to the lengths of having each batch of a supplement tested before use, there are other less onerous steps that could be taken, such as making a direct inquiry to the manufacturer and seeking the advice of professionally qualified doctors. The research of the ingredients of the supplement, the check of the supplement’s website and the Google search engine constitute some significant steps to minimize any risk associated with the taking of the specified substance. The fact that there is no way short of a laboratory test in which the substance could have been identified as one of the ingredient of the supplement is also to be taken into account to assess the athlete’s degree of fault.

On 1 May 2014 (with the oral decision on 8 April 2014) the Jamaica Anti-Doping Disciplinary Panel decided to impose a 18 month period of ineligibility on the Athlete Sherone Simpson after her A and B samples tested positive for the prohibited substance oxilofrine (methylsynephrine).

Hereafter in April 2014 the Athlete appealed the decision of 8 april 2014 with the Court of Arbitration for Sport (CAS).
The Athlete requested the Panel for a reduced sanction and argued that she had no intention to enhance her performance. She explained how the substance came into her body and her efforts that the supplements she used did not contain any prohibited substances.

The Panel finds that Simpson’s testimony along with the other corroborating evidence establish to its comfortable satisfaction that she did not intend to enhance her sport performance by unknowingly ingesting Oxilofrine (or indeed by knowingly ingesting Epiphany D1).
The Panel finds that in all the circumstances, factually and legally, the eighteen-month period of ineligibility imposed by the Jamaica Anti-Doping Disciplinary Panel was excessive; and, with all the reservations it has already articulated about comparable cases, so far outside the broad run of cases as to excite a sense that an injustice has been done.

Therefore the Court of Arbitration for Sport decides on 7 July 2015:

1.) The Appeal filed by Ms Sherone Simpson against the decision of the Jamaica Anti-Doping Disciplinary Panel dated 8 April 2014 is partially upheld.
2.) The decision of the Jamaica Anti-Doping Disciplinary Panel dated 8 April 2014 is set aside and replaced with the following:
Ms Sherone Simpson is sanctioned with a period of ineligibility of six (6) months, commencing on 21 June 2013.
3.) All sporting results obtained by Ms Sherone Simpson from 21 June 2013 up to the date of the expiring of the period of ineligibilty shall be invalidated.
4.) (…).
5.) (…).
6.) All other or further requests or motions for relief are dismissed.

In August 2017 the Canadian Centre for Ethics in Sport (CCES) has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substances 1,3-Dimethylbutylamine (1,3-DMBA) and Oxilofrine (methylsynephrine).

After notification the Athlete gave a prompt admission, waived his right to be heard, accepted a provisional suspension and the sanction proposed by the CCES.

Therefore the CCES decides on 30 October 2017 to impose a 2 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. 9 july 2017.

In January 2016 the International Volleyball Federation (FIVB) has reported an anti-doping rule violation against the Mexican Athlete after her sample tested positive for the prohibited substances Oxilofrine (methylsynephrine) and Phenethylamine. After notification the Athlete filed a statement in her defence and she was heard for the FIVB Disciplinary Panel.

The Athlete expressed her apologises for the non intentional violation and asserted that it was caused by the supplements she used to lose weight. The Athlete admitted that she completely relied on the recommendations of her nutritionist and before using she did not research the ingredients of the supplements nor did she conduct any research for the product on the internet.

The Panel accepts that the violation was not intentional and concludes that the Athlete was significantly negligent. Therefore the FIVB Disciplinary decides on 23 February 2016 to impose a 2 year period of ineligibility on the Athlete, starting on the date of her last competition.