In December 2015 World Rugby has reported anti-doping rule violations against the Botswanan rugby players Lesedi Chery and Emmanuel Ntshiwa after their samples tested positive for the prohibited substance Oxilofrine (methylsynephrine).

After notification a provisional suspension was ordered. The Athletes filed a statementen in theire defence and were heard for the World Rugby Judicial Committee.

Both Athlete’s admitted the violation, denied the intentional use of the substance and stated that they had used supplements during their training in South Africa. These supplements were purchased by their coach and provided by a local retailer of supplements. According to the retailer the purchased supplement Berserker was ‘athlete friendly’ and ‘legal’.

The Athlete’s coach acknowledged his failure and stated that he had researched the product Berserker on the internet and conducted a superficial check on the Prohibited List for the substance Methylsynepphrine and not for Oxilofrine, assuming hereafter that the product was safe.

Considering the statements World Rugby and the Judicial Committee accepts that the Athletes not intentionally ingested the prohibited substance and that the supplement Berserker was the source of the oxilofrine. The Committee concludes that both Athletes failed to demonstrate that they acted with no significant fault or negligence.

Therefore the World Rugby Judicial Committee decides on 22 April 2016 to impose a 2 year period of ineligibility on the Athletes Lesedi Chery and Emmanuel Ntshiwa, starting on the date of the provisional suspension, i.e. on 11 December 2015.

In a postcript the World Rugby Judicial Committee notes that the Botswana Rugby Union clearly failed in implementing anti-doping education programmes for rugby. It recommends that the Union implement such an anti-doping education programme and report to World Rugby about the details and progress of this implemented programme.

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.

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.

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.

In November 2015 the Japan Anti-Doping Agency (JADA) has reported an anti-doping rule violation against the Athlete J-4079 (the Athlete) after his sample tested positive for the prohibited substance oxilofrine. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Japan Anti-Doping Disciplinary Panel.

The Athlete denied the intentional use of doping and stated that he had purchased on the internet the supplement SP250. He had researched the ingredients of the product before using and he mentioned the use of the supplement on the Doping Control Form. The Athlete assumed that the supplement was safe because the sales and import agency of the supplement manufacturer was an official sponsor of the Japan Bodybuilding & Fitness Federation (JBBF) and one of the directors of the agency was connected to the JBBF and the Japan Olympic Committee (JOC).

The Panel finds that such supplements have a warning label and the Athlete was already informed by his Sports Federation about the risks with supplements purchased on the internet. Also the information on the internet about the supplement - provided by the sales and import agency as connected to the JBBF and JOC - is not a guarantee that these supplements don’t contain a prohibited substance.
The Athlete argued that these warning labels were not applied on the supplements he used in the past.

Considering the circumstances the Japan Anti-Doping Disciplinary Panel decides on 16 March 2016 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension i.e. on 5 November 2015.

In November 2015 the Japan Anti-Doping Agency (JADA) has reported an anti-doping rule violation against the Athlete J-4077 (the Athlete) after his sample tested positive for the prohibited substance oxilofrine. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Japan Anti-Doping Disciplinary Panel.

The Athlete denied the intentional use of doping and stated that he had purchased on the internet a supplement SP250 and researched the ingredients of the product before using. The Athlete asserted that the supplement manufacturer was formally accredited by the Japan Bodybuilding & Fintness Federation.
The Panel finds that such supplements clearly have a warning label and the Athlete was already informed by his Sports Federation about the risks with supplements purchased on the internet.

Considering the circumstances the Japan Anti-Doping Disciplinary Panel decides on 8 December 2015 to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension i.e. on 2 November 2015.

In July 2015 the Japan Anti-Doping Agency (JADA) has reported an anti-doping rule violation against the American softball Athlete J-4072 (the Athlete) after her A and B samples tested positive for the prohibited substances oxilofrine (methylsynephrine) and phenethylamine. After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and was heard for the Japan Anti-Doping Disciplinary Panel.

The Athlete stated that she had used a contaminated supplement Dexaprine XR and that she had researched the ingredients of the product before using. Without intention to enhance her performance the Athlete requested for a reduced sanction.

The Panel finds it sufficiently possible that an “official” website of the manufacturer of these supplements is not a reliable source to obtain confirmation about the safety of supplements. Therefore the Athlete should have confirmed saftety with careful consideration of such risks as well. The Panel considers that the American Athlete received in Japan relevant anti-doping information about the contamination risks in supplements only in the Japanese language although previously in the US softball team she had received this information in the English language.

With No Significant Fault or Negligence the Japan Anti-Doping Disciplinary Panel accepts that the Athlete’s violation was non intentional and decides on 8 December 2015 to impose a 8 month period of ineligibility starting on the date of the provisional suspension, i.e. on 7 July 2015.

Facts
The Royal Netherlands Power Sport and Fitness Federation (Koninklijke Nederlandse Krachtsport en Fitnessfederatie, KNKF) had reported an anti doping rule violation against the athlete, respondent 2015018. During a power lifting event a sample was taken for a in-competition doping test. Analysis of the sample showed the presence of oxilofrine which is a prohibited substance according the World Anti-Doping Agency (WADA) 2015 prohibited list.

History
The athlete waived his right for a hearing.
In his written submissions he has no explanation for the positive test. A possible explanation is a spiked sport drink offered by a fellow athlete who acted suspicious. This athlete also underwent a doping test but was unable to urinate for an hour in which he drank two liters of water. This amount of water could have prevented a positive test.
However no athlete that day had tested positive, an expert explained it is unlikely that drinking two liters of water would cause a negative result for the prohibited substance oxilofrine.

Decision
- The ISR-KNKF Disciplinary Committee imposed a 4 year period on the athlete.
- The athlete has to bear the legal fee for the administrative costs.