CAS AD 16/11 International Olympic Committee v. Misha Aloian

Related case:
CAS 2017_A_4927 Misha Aloyan vs IOC
June 16, 2017

Mr. Misha Aloian is a Russian Athlete competing in the Men’s -52kg boxing event at the Rio 2016 Olympic Games.

On 7 September 2016 the IOC has reported an anti-doping rule violation against the Athlete after his sample tested positive for the prohibited substance tuaminoheptane. After notification the Athlete filed a statement in his defence and he was heard for the CAS Anti-Doping Division in November 2016.

The Athlete argued that he bears no fault or negligence and that the amount of substance found in his body did not have a performance enhancing effect. The Athlete asserted that he had used the medication Rhinofluimucil out-of-competition on the advice of his team doctor and that the was advised inaccurately by his doctor.

On the balance of probability the Sole Arbitrator accepts the Athlete’s explanation that he used for his chronic disease a medication containing a prohibited substance on the advice of his team doctor.
However the Sole Arbitrator rules that the Athlete failed in his personal duty to ensure that no prohibited substance enerters his body.

Therefore the CAS Anti-Doping Division Sole Arbitrator decides on 8 December 2016:

1.) The Athlete is found to have committed an anti-doping rule violation pursuant to Article 2.1 of the IOC ADR.
2.) The results obtained by the Athlete in the Men’s -52kg boxing event at the Olympic Games Rio 2016, in which he finished 2nd and for which he was awarded a Silver medal, are disqualified with all consequences, including forfeiture of the medal, Olympic diploma and medallist pin.
3.) The Athlete is ordered to return the medal, the diploma and the medallist pin.
4.) The International Boxing Association is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
5.) The Russian Olympic Committee is requested to ensure full implementation of this decision and secure the return to the IOC, as soon as possible, of the medal, the medallist pin and the diploma awarded in connection with the Men’s -52kg boxing event.

Striking the right balance : effectiveness of Anti-Doping Policies / Olivier de Hon. - Olivier de Hon; Anti-Doping Authority Netherlands; Utrecht University, 2016. - 347 p. ; fig., tab., lit.

• ISBN/EAN: 9789039366639
• Doctoral thesis for the Utrecht University, 18 November 2016.
• This thesis was made possible with financial support by the Dutch Ministry of Health, Welfare, and Sport (Ministerie VWS) and the Anti-Doping Authority Netherlands (Dopingautoriteit).
• With summary in Dutch: p. 15-22.

Zoeken naar het juiste evenwicht : effectiviteit van het anti-dopingbeleid / Olivier de Hon. - Olivier de Hon; Dopingautoriteit; Universiteit van Utrecht, 2016. - 347 p. ; fig., tab., lit.

• ISBN/EAN: 9789039366639.
• Proefschrift Universiteit van Utrecht ter verkrijging van de graad van doctor, 18 november 2016.
• Proefschrift mogelijk gemaakt met financiële steun van het ministerie VWS en de Dopingautoriteit.

Contents:

SUMMARY
NEDERLANDSTALIGE SAMENVATTING (SUMMARY IN DUTCH)
1. INTRODUCTION & METHODS
1.1 A short history of anti-doping
1.2 Research questions
1.3 The current anti-doping framework
1.4 Backgrounds of the current study
1.5 Epistemological position
1.6 Methodology
2. RESULTS & DISCUSSION
2.1 Conceptualising effectiveness
2.2 Effectiveness and anti-doping policy
2.3 The extent of doping use
Article II True dopers or negligent athletes - An analysis of Anti-Doping Rule Violations reported
to the World Anti-Doping Agency 2010-2012
2.4 The effectiveness of doping substances and methods
3. PROPOSED WAYS TO BRING THE DISCUSSION FORWARD
3.1 Factors of a successful anti-doping policy
3.2 Towards improving anti-doping policies
3.3 Measuring effectiveness of anti-doping policies
3.4 Revised instrumentalisation of the concept of doping
Article X The redundancy of the concept of ‘Spirit of Sport’ in discussions on the prohibited list of doping substances
4. OVERALL CONCLUSIONS
4.1 Effectiveness in anti-doping.
4.2 The intricacies of doping use
4.3 Building anti-doping regulations
4.4 Directions towards a more effective anti-doping policy
4.5 Concluding remarks
5. EPILOGUE
6. APPENDICES

CAS 2016/A/4643 Maria Sharapova v. International Tennis Federation (ITF)

Related case:
ITF 2016 ITF vs Maria Sharapova
June 6, 2016

Tennis
Doping (meldonium)
CAS jurisprudence as guidance to future panels in doping-related cases
No Significant Fault and deviation from the duty of exercising the “utmost caution”
Parties’ agreement to follow the approach that athletes are permitted to delegate elements of their anti-doping obligations
Athlete’s personal duty to ensure that no prohibited substance enters his/her body and delegation of activities ensuring regulatory compliance
Length of the sanction imposed based on the degree of fault

1. The issue whether an athlete’s fault or negligence is “significant” has been much discussed in the CAS jurisprudence, and chiefly so with respect to the various editions of the WADC. Even if all the CAS cases offer guidance to a panel, all those cases are very “fact specific” and no doctrine of binding precedent applies to the CAS jurisprudence. Indeed, the Tennis Anti-Doping Programme (TADP) itself, while defining the conditions for the finding of No Significant Fault (NSF), stresses the importance to establish it “in view of the totality of the circumstances”, and therefore paying crucial attention to their specificities.

2. A period of ineligibility can be reduced based on NSF only in cases where the circumstances justifying a deviation from the duty of exercising the “utmost caution” are truly exceptional, and not in the vast majority of cases. However, the “bar” should not be set too high for a finding of NSF. In other words, a claim of NSF is (by definition) consistent with the existence of some degree of fault and cannot be excluded simply because the athlete left some “stones unturned”. As a result, a deviation from the duty of exercising the “utmost caution” does not imply per se that the athlete’s negligence was “significant”; the requirements for the reduction of the sanction under Article 10.5.2 of the TADP can be met also in such circumstances.

3. The parties may agree to follow the approach that athletes are permitted to delegate elements of their anti-doping obligations. In this case, if an anti-doping rule violation occurs, the objective fact of the third party’s misdeed is imputed to the athlete, but the sanction remains commensurate with the athlete’s personal fault or negligence in his/her selection and oversight of such third party or, alternatively, for his/her own negligence in not having checked or controlled the ingestion of the prohibited substance. In other words, the fault to be assessed is not that which is made by the delegate, but the fault made by the athlete in his/her choice.

4. Even though, under the TADP, it is the athlete’s personal duty to ensure that no prohibited substance enters his/her body and it is the responsibility of each player to be familiar with the most current edition of the Prohibited List, nothing prevents a high-level athlete focused on demanding sporting activities all over the world, from delegating activities aimed at ensuring regulatory compliance and more specifically that no anti-doping rule violation is committed.

5. The measure of the sanction to be imposed depends on the degree of fault. Even if an athlete is found to be reasonable in selecting a company to assist him/her in meeting his/her anti-doping obligations, failure to monitor or supervise such company and failure to disclose the use of the prohibited substance on her anti-doping control forms exclude the minimum degree of fault falling within NSF.

On 6 June 2016 the ITF Independent Tribunal decided to impose a 2 year period of ineliglibility on the Athlete Maria Sharapova after she tested positive for the prohibited substance Meldonium due to her negligence with the prescribed medication she used without a TUE.

Hereafter in June 2016 the Athlete appealed the ITF decision with the Court of Arbitration for Sport (CAS). The Athlete requested that the Panel find that she bears no significant fault or negligence for the violation and, on such basis, that the period of ineligibility be reduced. The ITF requested the Panel to confirm the Decisionof of 6 June 2016 rendered by the ITF Tribunal.

Considering the circumstances the Panel concludes that the Athlete’s claim of no significant fault or negligence can be accepted and finds that a sanction of 15 months is appropriate given her degree of fault.

Therefore on 30 September 2016 the Court of Arbitration for Sport decides that:

1.) The appeal filed on 9 June 2016 by Ms Maria Sharapova against the decision rendered by the Independent Tribunal of the International Tennis Federation on 6 June 2016 is partially upheld.
2.) The decision rendered by the Independent Tribunal of the International Tennis Federation on 6 June 2016 is set aside.
3.) Ms. Maria Sharapova is suspended for a period of fifteen (15) months commencing 26 January 2016.
4.) Ms. Maria Sharapova’s individual results obtained at the Australian Open on 26 January 2016, including any WTA ranking points and prize money, are disqualified.
5.) The present arbitration procedure shall be free, except for the CAS Court Office fee of CHF 1,000 (one thousand Swiss francs), which has already been paid by Ms Maria Sharapova and is retained by the CAS.
6.) The parties shall bear their own expenses sustained in connection with these arbitration proceedings.
7.) All other motions or prayers for relief are dismissed.

World Anti-Doping Agency 2015 annual report / World Anti-Doping Agency (WADA). - Montreal : WADA, 2016

CONTENTS
02 MESSAGE FROM THE PRESIDENT
06 MESSAGE FROM THE DIRECTOR GENERAL
10 2015 WADA EXECUTIVE COMMITTEE
11 2015 WADA FOUNDATION BOARD
13 WADA MANAGEMENT
14 ORGANIZATIONAL OVERVIEW
15 UNESCO
17 ATHLETE COMMITTEE
20 THE CODE
25 ACTIVITIES & ACCOMPLISHMENTS
25 ANTI-DOPING COMMUNITY
28 COMMUNICATIONS
30 EDUCATION
32 INDEPENDENT OBSERVERS
33 INFORMATION & DATA MANAGEMENT (ADAMS)
35 INTELLIGENCE & INVESTIGATIONS
37 OUTREACH PROGRAM
38 SCIENCE & MEDICAL
42 TESTING
44 2015 FINANCE OVERVIEW
46 FINANCIAL STATEMENTS

the WADA Annual Report highlights:

- Introduction of the enhanced World Anti-Doping Code and International Standards – resulting in approximately 850 Anti-Doping Rule Violations and more than 30 athletes sanctioned through the Athlete Biological Passport (ABP)
- Creation of the internal Compliance Task Force and the external, independent, Compliance Review Committee
Establishment and conclusion of the USD 1.5 million Independent Commission into doping in international athletics
- Five new ratifications of the UNESCO International Convention against Doping in Sport
- Introduction of the Annual Anti-Doping Rule Violations Report as a complement to the Annual Testing Figures Report
- 28 Scientific Research Grant proposals selected totalling budget allocation of USD 3.5 million
- Three Social Science Research Grant proposals selected totalling budget allocation of USD 206,326
- Four Independent Observer missions at international events
- Four Athlete Outreach programs at multi-sport events

CAS OG 16/04 Yulia Efimova v. ROC, IOC & FINA

Related cases:
- CAS OG_2016_13 Anastasia Karabelshikova & Ivan Podshivalov vs FISA & IOC
August 4, 2016
- FINA 2014 FINA vs Yulia Efimova
May 12, 2014
- FINA 2014 FINA vs Yulia Efimova
November 3, 2014

On 12 May 2014 the FINA Doping Panel decided to impose a 16 month period of ineligibility on the Russian swimmer Yulia Efimova for committing an anti-doping rule violation.

On 18 July 2016, WADA's Independent Person, Mr. Richard McLaren, published on the WADA website its official independent report (the "McLaren Report") describing a fraudulent, government directed scheme to protect Russian athletes from ADRVs, including with respect to disqualification during the Sochi Winter Games.

On 24 July 2016, the IOC Executive Board issued a decision (the "IOC Decision") concerning the participation of Russian athletes in the Rio Games. According to this decision the following was stated:

"2. Entry will be accepted by the IOC only if an athlete is able to provide evidence to the full satisfaction of his or her International Federation (IF) in relation to the following criteria:
[. . .]
The IFs should carry out an individual analysis of each athlete's anti-doping record, taking into account only reliable adequate international tests, and the specificities of the athlete's sport and its rules, in order to ensure a level playing field.
[. . .]
3. The ROC is not allowed to enter any athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping, even if he or she has served the sanction".

As a consequence of the IOC Decision the FINA Bureau finds on 25 July 2016 that 7 Russian swimmer were not eligible to compete at the Rio 2016 Olympic Games.

On 30 July 2016 the Athlete appealed the decision of the IOC with the CAS Ad Hoc Division in Rio de Janeiro. The Athletes requested the CAS Ad hoc Division Panel to set aside the IOC decision of 24 July 2016 and the ROC’s decision to exclude her of the entire list and to allow the her to participate in the Russian national team for the Rio 2016 Olympic Games. IOC and FINA requested the Panel to reject the appeal.

The Panel has no doubts at all that the IOC acted in good faith and with the best of intentions when issuing such decision. The IOC confirmed that the aim of these criteria was to give an opportunity to those Russian athletes who were not implicated in the State-organised scheme to participate in the Rio Games.

The Panel notes that the IOC Executive Board made it clear that its decision should be understood to recognise that, where it applied collective responsibility and removed the presumption of innocence, an athlete was entitled to be accorded the rules of natural justice and individual justice. Further, it clearly stated that "each affected athlete must be given the opportunity to rebut the applicability of collective responsibility in his or her individual case".

The Panel finds that the IOC Executive Board exercised its autonomous right to accord these personal rights by reason of its decision. Thus, it bound itself in that way. Points 2 and 3 then represented the implementation of the decision. Contrary to its own decision to accord natural justice to an individual athlete, and in accordance with the Olympic Charter, point 3 constitutes a denial of that personality right.
Accordingly, the IOC Executive Board's decision which, on the one hand, seeks to implement the IOC decision to provide an opportunity to a Russian athlete to rebut the presumption of guilt of participation in the State-sponsored doping scheme but, on the other hand, by point 3 denies that opportunity, is
unenforceable.

The Panel concludes that the Athlete’s application should be partially upheld in that point 3 of the IOC Executive Board's decision dated 24 July 2016 is unenforceable. As was also stated in GAS OG 16/13, the Panel supports the approach taken by the IOC in point 2.

Therefore the ad hoe Division of the Court of Arbitration for Sport decides on 5 August 2016

1.) The application filed by Ms Yulia Efimova on 30 July 2016 is partially upheld.
2.) Point 3 of the IOC Executive Board's Decision dated 24 July 2016 is unenforceable.
3.) All other prayers for relief are rejected.

Doping, a state of affairs / O. de Hon, F. Stoel. – (Geneesmiddelenbulletin 50 (2016) 7 (Juli) : p. 75-83)

This article is an update of a 1996-article, intended for physicians and pharmacists. It discusses in detail the scientific proof of the performance enhancing capacities of prohibited substances, as well as their side effects.

Contents (in Dutch):

Doping, een stand van zaken / O. de Hon, F. Stoel. – (Geneesmiddelenbulletin 50 (2016) 7 (Juli) : p. 75-83)

In een jaar waarin de zomer wordt beheerst door sportevenementen, zoals de Tour de France en de Olympische Spelen, is de kans groot dat op de sportpagina’s van de diverse dagbladen ook veel aandacht zal worden besteed aan doping en dopinggevallen. Dit artikel geeft een overzicht van het actuele wetenschappelijke bewijs voor de werkzaamheid van doping.

Inhoud:

- Inleiding
- Definitie, dopinglijst en controle, epidemiologie van het gebruik en de rol van de zorgverlener
- Definitie
- Dopinglijst en controle
- Epidemiologie van het gebruik
- Rol van de zorgverlener
- De dopinglijst en haar achtergronden
- Algemeen
- Wetenschappelijk onderzoek
I. Verboden middelen en methoden
- Androgene anabole steroïden
o Beoogde werking
o Bijwerkingen
- Overige anabole middelen
- Erytropoëtische groeifactoren
o Beoogde werking
o Bijwerkingen
- Groeihormonen
o Beoogde werking
o Bijwerkingen
- Overige peptide hormonen en aanverwante middelen
- β₂-Sympathicomimetica
o Beoogde werking
o Bijwerkingen
- Hormoon- en metabole modulatoren
- Diuretica
o Beoogde werking
o Bijwerkingen
- Maskerende middelen
II. In wedstrijdverband verboden middelen
- Stimulantia
o Beoogde werking
o Bijwerkingen
- Opiöden
- Cannabinoïden
- Glucocorticosteroïden
III. Middelen die bij bepaalde sporten verboden zijn
- Alcohol
- β-Sympathicolytica
o Beoogde werking
o Bijwerkingen

THE 2015 MONITORING PROGRAM*

The following substances are placed on the 2015 Monitoring Program:

1. Stimulants:

In-Competition only: Bupropion, caffeine, nicotine, phenylephrine, phenylpropanolamine, pipradrol, pseudoephedrine (< 150 micrograms per milliliter), synephrine.

2. Narcotics: In-Competition only: Hydrocodone, mitragynine, morphine/codeine ratio; tapentadol; tramadol.

3. Glucocorticosteroids: In and Out-of-Competition only

* The World Anti-Doping Code (Article 4.5) states: “WADA, in consultation with Signatories and governments, shall establish a monitoring program regarding substances which are not on the Prohibited List, but which WADA wishes to monitor in order to detect patterns of misuse in sport.”

Results of the WADA monitoring program regarding substances which are not on the 2014 Prohibited List, but which WADA wishes to monitor in order to detect patterns of misuse in sport. These substances are:

In Competition Monitoring:
- Tapentadol,
- Mitragynine
- Tramadol,
- Hydrocodone
- Caffeine

In and Out of Competition Monitoring:
- Meldonium
- Telmisartan