CAS OG_AD_2018_03 IOC vs Aleksandr Krushelnitckii

22 Feb 2018

CAS ADD 18/03 International Olympic Committee v. Aleksandr Krushelnitckii Mr Aleksandr Krushelnitckii is a Russian Athlete competing in the Curling events at the 2018 PyeongChang Olympic Winter Games. On 18 February 2018 the International Olympic Committee (IOC) reported an anti-doping rule violation against the Athlete after his A and B samples - provided on 12 and 13 February 2018 - tested positive for the prohibited susbstance Meldonium. After notification the Athlete admitted the violation and requested to be heard for the CAS Anti-Doping Division Panel (CAS ADD). The World Curling Federation requested the Panel to order a provisional suspension beyond the period of the Games. On 22 February 2018 the Athlete re-confirmed his admission of the violation, accepted a provisional suspension beyond the period of the Games, and reserved all rights accordingly to seek the elimination or reduction of any period of ineligibility based on “No Fault or Negligence” following the conclusion of the Games. The CAS ADD accepted the parties' respective positions and cancelled the hearing. The Athlete expressly accepts the adverse analytical findings against him and therefore the Sole Arbitrator confirms the Athlete committed an anti-doping rule violation and that he is provisionally suspended until such time a final decision is rendered on his violations, or otherwise informed. Therefore the CAS ADD Panel decides on 22 February 2018 that: a.) The Athlete is found to have committed an anti-doping rule violation in accordance with Article 2.1 of the IOC ADR. b.) The individual results obtained by the Athlete in the Mixed Doubles Curling event at the Olympic Winter Games PyeongChang 2018 are disqualified with all resulting consequences including forfeiture of the medal, diploma, medallist pin, points and prizes. c.) The results obtained by the team of the Olympic Athletes from Russia in the Mixed Doubles Curling event at the Olympic Winter Games PyeongChang 2018 are disqualified with all resulting consequences including forfeiture of the medal, diploma, medallist pin, points and prizes. d.) The Athlete is excluded from the Olympic Winter Games PyeongChang 2018. e.) To the extent not yet done so, the Athlete shall leave the Village and return his accreditation (number 3043371-01) immediately.

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CAS OG_2018_05 | 7 Russian coaches and physicians vs IOC

9 Feb 2018

CAS OG 18/05 Pavel Abratkiewicz, Victor Sivkov, Anna Vychik, Evgeny Zykov, Anatoly Chelyshev, Danil Chaban, Konstantin Poltavets v. International Olympic Committee __________________________________________________ Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence. All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considererd in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme. The Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods. ________________________________________________ On 5 December 2017, based on the Schmid Commission’s recommendations, the IOC decided to suspend the Russian Olympic Committee (ROC) with immediate effect. An Invitation Review Panel (IRP) and the Russia Implementation Group (OAR IG) were established with the responsibility of developing a list, based on a set of guidelines and criteria, from which the IOC would ultimately issue inviations. The IOC Decision to suspend the ROC and its athletes, coaches and support staff was challenged by the 7 applicants before the CAS (CAS 2017/A/5492). These procedures were pending before the CAS in Lausanne. The ROC eventually provided a list of 169 athletes, coaches and support staff who were invited to compete as Olympic Athletes from Russia at the 2018 PyeongChang Olympic Games as approved by the IOC on 19 January 2018. The 7 Russian applicants were not invited to participate in the 2018 PyeongChang Olympic Winter Games on the fact that they are associated with athletes who have been sanctioned by the Oswald Commission. Hereafter on 7 February 2018 the 6 Russian applicants filed an application with the CAS Ad Hoc at PyeongChang against the IOC regarding their non-invitation. The CAS Ad Hoc Division holds that it has only jurisdiction if an application concerns disputes which arise during the Olympic Games or after 30 January 2018 which is 10 days before the Opening Ceremony of the Olympic Games. The CAS Panel finds that the date when the dispute arose was 19 January 2018 when the 7 applicants became aware of their non-selection. Because this was well before the 10 days before the Opening Ceremony the Panel has no jurisdiction de deal with the application. Therefore the CAS Ad Hoc Division concludes on 9 February 2018 it does not have jurisdiction the hear the Application of the 7 Russian applicants filed on 7 February 2018.

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CAS OG_2018_04 | 6 Russian athletes vs IOC

9 Feb 2018

CAS OG 18/04 Tatyana Borodulina, Pavel Kulizhnikov, Alexander Loginov, Irina Starykh, Dimitry Vassiliev, Denis Yuskov v. International Olympic Committee ________________________________________________ Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence. All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considererd in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme. The Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods. ________________________________________________ On 5 December 2017, based on the Schmid Commission’s recommendations, the IOC decided to suspend the Russian Olympic Committee (ROC) with immediate effect. An Invitation Review Panel (IRP) and the Russia Implementation Group (OAR IG) were established with the responsibility of developing a list, based on a set of guidelines and criteria, from which the IOC would ultimately issue inviations. The IOC Decision to suspend the ROC and its athletes was challenged by the 6 athletes before the CAS (CAS 2017/A/5487, CAS 2017/A/5488, CAS 2017/A/5484, CAS 2017/A/5485, CAS 2017/A/5486, CAS 2017/A/5490). These procedures were pending before the CAS in Lausanne. The ROC eventually provided a list of 169 athletes, coaches and support staff who were invited to compete as Olympic Athletes from Russia at the 2018 PyeongChang Olympic Games as approved by the IOC on 19 January 2018. The 6 Russian Athletes were not invited to participate in the 2018 PyeongChang Olympic Winter Games on the fact that previously they had served a period of ingeligibility for committing an anti-doping rule violation. Request for Provisional Measures were dismissed by the IOC. Hereafter on 7 February 2018 the 6 Russian athletes filed an application with the CAS Ad Hoc Division at PyeongChang against the IOC regarding their non-invitation. The CAS Ad Hoc Division holds that it has only jurisdiction if an application concerns disputes which arise during the Olympic Games or after 30 January 2018 which is 10 days before the Opening Ceremony of the Olympic Games. The CAS Panel finds that the date when the dispute arose was 19 January 2018 when the 6 athletes became aware of their non-selection. Because this was well before the 10 days before the Opening Ceremony the Panel has no jurisdiction to deal with the application of the 6 athletes. Therefore the CAS Ad Hoc Division concludes on 9 February 2018 it does not have jurisdiction the hear the Application of the 6 Russian athletes filed on 7 February 2018.

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CAS 2013_A_3435 Tomasz Stepien vs Polish Rugby Union

4 Jul 2014

CAS 2013/A/3435 Tomasz Stepien v. Polish Rugby Union Rugby Doping (methylhexaneamine) Procedural deficiencies occurred at the previous instance and de novo review by the CAS Specified substances under Article 10.4 WADC and intent to enhance performance Purpose and rationale of Article 10.4 WADC “Performance-enhancing” intent of doping- relevance Principle of “contra proferentem” and restrictive interpretation of Article 10.4 WADC Intent No distinction between direct and indirect intent in case of a restrictive interpretation of intent Risks linked to the use of nutritional supplements 1. The CAS provides an opportunity for a full new hearing with full power to review the facts and the law. According to consistent CAS jurisprudence, errors during the prior proceedings and the prior hearing can, if at all, only be the basis for a successful appeal when the errors in the process below somehow affect a party’s right to fully present a case before CAS. Therefore, any alleged inadequacies in the prior hearing could be cured by the right to a new hearing before CAS. In light of the given possibility of a full appeal to the CAS, “due process” arguments concerning the proceedings before the previous instance can be deemed as cured. 2. Regarding specified substances, Article 10.4 WADC is the most specific provision and takes precedence over others. Where an athlete or other person can establish how a specified substance entered his or her body or came into his or her possession and that such specified substance was not intended to enhance the athlete’s sport performance or mask the use of a performance-enhancing substance, the period of ineligibility found in Article 10.2 shall be replaced, for a first violation, with at a minimum, a reprimand and no period of ineligibility from future events, and at a maximum, two years of ineligibility. In order to satisfy the condition that the specified substance was not intended to enhance the athlete’s sport performance, the athlete must establish the absence of intent to enhance sport performance at the time of its ingestion. The key question is whether the intent to enhance sport performance relates to the use of the specified substance or to the product in which it was contained. 3. Whether or not to follow a broad or restrictive interpretation of Art. 10.4 WADC must be decided depending on the purpose of the rule. The underlying rationale of this provision is that there is a greater likelihood that specified substances, as opposed to other prohibited substances, could be susceptible to a credible non-doping explanation and that the latter warrants - in principle - a lesser sanction. What Art. 10.4 wants to account for is, in principle, that in relation to specified substances there is a certain general risk in day to day life that these substances are taken inadvertently by an athlete. The question is what happens if the risk at stake is not a “general” but a (very) specific one that the athlete has deliberately chosen to take. 4. The characteristic of “performance-enhancing” as such is neutral. An athlete is entitled to consume any substance that seems useful to enhance his sport performance as long as this substance is not listed on WADA’s Prohibited List, Therefore, the primary focus can obviously not be on the question whether or not the athlete intended to enhance his sport performance by a certain behaviour (i.e. consuming a certain product), but moreover if the intent of the athlete in this respect was of doping-relevance. In this respect, the WADC itself recognizes the difference between legitimate performance enhancement and the use of a prohibited substance. 5. In accordance with CAS jurisprudence, the principle of “contra proferentem” alone justifies a restrictive interpretation of the element of “intent to enhance sport performance” in Article 10.4 WADC. It is clear that the restrictive interpretation (i.e. intent must relate to the prohibited substance in question) favours the athletes. 6. Intent is established if an athlete knowingly ingests a prohibited substance. 7. Drawing a distinction between direct and indirect intent would lead to a broad interpretation of the term “intent” in Article 10.4 WADC, and thus to an interpretation to the detriment of athletes. This approach would contradict the applicable principle of “contra proferentem” and is, therefore, an approach that should not be taken. 8. The numerous warnings of the well-known risks linked to the use of nutritional supplements exist and are widely published for many years. WADA’s website contains inter alia the following warning: “Extreme caution is recommended regarding supplement use. The use of dietary supplements by athletes is a concern because in many countries the manufacturing and labelling of supplements may not follow strict rules, which may lead to a supplement containing an undeclared substance that is prohibited under anti-doping regulations. A significant number of positive tests have been attributed to the misuse of supplements and taking a poorly labelled dietary supplement is not an adequate defense in a doping hearing”. ________________________________________________ In October 2013 the Polish Rugby Union (PZR) has reported an anti-doping rule violation against the rugby player Tomasz Stepien after his sample tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine) related to his use of the supplement Jack3d. On 21 November 2013 the PZR Games and Disciplinary Commission decided to impose a 2 year period of ineligibility on the Athlete. Hereafter in December 2013 the Athlete appealed the PZR decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the PZR decision of 21 November 2013 and to impose a reduced sanction. The Athlete gave a prompt admission to the PZR and denied the intentional use of the prohibited substance. He explained that he had used the supplement Jack3d provided by a salesman who assured him that the this modified formula was free of prohibited substances (geranium). He stated that he checked the ingredients of the product - on the Polish label - before using. Further the Athlete asserted that procedural deficiencies occurred during the procceedings effecting his right to fully present his case before the PZR Games and Disciplinary Commission. The Panel holds that any alleged inadequacies in the prior proceedings before the Polish Rugby Union are cured in this new hearing before CAS. Considering the Athlete’s behaviour in this case the CAS Panel finds that the Athlete had no intention to enhance his sport performance through using the prohibited substance. However this does not automatically lead to the impunity of the Athlete’s wrongdoing. Based on the circumstances and relevant CAS case law the Panel concludes that the Athlete is to be sanctioned for 10 months. Therefore the Court of Arbitration for Sport decides on 4 July 2014: 1.) The Appeal filed by Mr. Tomasz Stepien against the decision of the Games and Disciplinary Commission of the Polish Rugby Union dated 21 November 2013 is partially upheld. 2.) The decision of the Games and Disciplinary Commission of the Polish Rugby Union dated 21 November 2013 is set aside and replaced with the following: 3.) Mr. Tomasz Stepien is sanctioned with a period of ineligibility of ten (10) months, commencing on 14 September 2013. 4.) (…). 5.) (…). 6.) All other or further claims are dismissed.

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CAS 2012_A_2797 Attila Ungvári vs International Judo Federation

18 Oct 2012

CAS 2012/A/2797 Attila Ungvári v. International Judo Federation (IJF) Judo Doping (stanozolol; furosemide; mesterolone) New evidence justifying revision of the challenged decision Admissibility of new evidence Assessment of evidence under No Fault or Negligence or No Significant Fault or Negligence 1. According to the Swiss Federal Tribunal, revision of a decision may be justified only as to facts or evidence which were not known to the petitioner at the time of the proceedings despite all due diligence. The new facts must be significant which means that they must be appropriate to change the factual basis of the award under review in such a way that their accurate legal assessment could lead to a different decision. 2. The only way of finding whether a witness statement may be true or not is to hear the witness testifying under the obligation to say the truth. Therefore, the statements or summary record of a witness who allegedly admitted sabotage but at no stage of the proceedings did appear before the international federation, or before the CAS are not admissible as means of evidence. However, a Police Investigations Department’ decision as an official document of a state authority establishing an act of sabotage by a sport fan to improve the athlete’s performance – which was not known to the athlete when the decision imposing a ban had been rendered by the IJF – should be considered as new evidence and admitted. 3. When the burden of proof is upon the athlete to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a “balance of probability”. In this regard, a decision of a national police investigations department and the respective investigations necessarily have to be done in the context of the applicable provision of the national Criminal Code. Therefore, the police cannot not focus on the establishment how the prohibited substances entered the athlete’s system and that he did not bear No Fault and No Negligence or at least No Significant Fault or Negligence. Therefore, such a document does not meet the requirements of articles 10.5.1 and 10.5.2 to establish whether there was No Fault or Negligence or No Significant Fault or Negligence on the side of the athlete. ________________________________________________ In March 2011 the International Judo Federation (IJF) has reported two anti-doping rule violation against the Hungarian judoka after his samples - provided in January 2011 in Azerbaijan and in February 2011 in Hungary - tested posisitive for the prohibited substances stanozolone, mestrolone and furosemide. The IJF treated these two violations as one case and decided on 14 May 2011 to impose a 2 year period of ineligibility on the Athlete. The Athlete introduced new evidence and requested the IJF to re-opend his case in April 2012. In a notary declaration a Hungarian sport fan had admitted to the Budapest Police that he had acquired the prohibited substances and injected into the Athlete’s drinking bottle. The IJF Executive Committee did not accept this evidence and decided on 19 April 2012 to dismiss the request of the Athlete and to uphold its previous decision of 14 May 2011. Hereafter in May 2012 the Athlete appealed the IJF decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the IJF decision of 19 April 2012. In his defence the Athlete filed several arguments, witness statements and evidence supporting he credibility. The CAS Panel finds that this appeal is about the IJF decision of 19 April dealing with re-opening the original case for alleged new evidence: the admission of the Hungarian sport fan in the police document that he injected the prohibited substances at two occasions. Considering the gaps in the police document the Panel finds that the information was not precise enough to allow the Panel to determine to the their comfortable satisfaction whether there was No Fault or Negligence or No Significant Fault or Negligence on the side of the Athlete. Therefore the Court of Arbitration for Sport decides on 18 October 2012: 1.) The appeal filed on 10 May 2012 by Mr Attila Ungvári against the decision of the Executive Committee of the International Judo Federation issued on 19 April 2012 is dismissed; 2.) The decision of the Executive Committee of the International Judo Federation of 19 April 2012 is confirmed; (…) 5.) All other motions or prayers for relief are dismissed.

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CAS 2012_A_2767 Nadir Bin Hendi vs UIM

23 Dec 2012

CAS 2012/A/2767 Nadir Bin Hendi v. Union Internationale Motonautique (UIM) Powerboat racing Doping (methylhexaneamine) CAS power of review Conditions for the elimination or reduction of the period of ineligibility for specified substances Evidential burden of proof 1. According to Article R57 of the Code the CAS panel has full power to review the facts and the law. This means that the CAS appellate arbitration procedure entails a de novo review of the merits of the case, which it is not confined to merely deciding whether the body that issued the appealed ruling was correct or not. Accordingly, it is the function of the CAS panel to make an independent determination as to whether the parties’ contentions are inherently correct rather than only to assess the correctness of the decision appealed against. 2. Rule 10.4 of the UIM Anti-Doping Rules contains three conditions which the athlete must satisfy to eliminate or reduce the prescribed period of ineligibility for specified substances for a first doping offence, i.e. 2 years. The first condition requires the athlete to establish how the specified substance entered his/her body. The second condition requires the athlete to establish that he did not take the specified substance to enhance performance. If, but only if, those two conditions are satisfied, the athlete can adduce evidence as to his/her degree of culpability with a view to eliminating or reducing his period of suspension. All three conditions have to be satisfied to achieve such result. 3. There are circumstances in which notwithstanding that the legal burden is placed upon a party, an evidential burden may be placed upon the other party. ________________________________________________ In November 2011 the International Union of Powerboating (UIM) has reported an anti-doping rule violation against the powerboat racer Nadir Bin Hendi after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine). On 23 March 2012 the UIM Tribunal decided to impose a 2 year period of ineligibility on the Athlete. Hereafter in May 2012 the Athlete appealed the UIM decision with the Court of Arbitration for Sport (CAS). The Athlete requested to set aside the UIM decision of 23 March 2012 on the basis of No Fault or Negligence. The Athlete asserted that he suffered from a nasal blockage and used as treatment a prescribed XC spray. The Athlete argued - supported by two expert witnesses - that this XC spray caused a false positive for the prohibited substance or metabolized in such a way as to cause a postitive test for this substance. The UIM contended that the Athlete failed to explain how the prohibited substance entered his system nor that he had no intention to enhance his performance. Also the Athlete’s XC spray did not contain the prohibited substance. Considering the evidence the Panel does not accept, on the balance of probabilities, that the XC spray used by the Athlete was responsible for the presence of the prohibited substance in his body. The Panel also concludes that the imposed 2 years sanction on the Athlete is proportional. Therefore the Court of Arbitration for Sport decides on 20 December 2012: 1.) The appeal filed by Nadir Bin Hendi on 11 April 2012 against the decision of the UIM Anti Doping Hearing Panel dated 23 March 2012 is dismissed. 2.) The decision of the UIM Anti Doping Hearing Panel is confirmed. 3.) (…). 4.) (…). 5.) All other or further claims are dismissed.

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CAS 2012_A_2762 Bayer 04 Leverkusen vs UEFA

15 Mar 2013

CAS 2012/A/2762 Bayer 04 Leverkusen v. Union of European Football Associations (UEFA) Football Doping (whereabouts information) Importance of an effective and credibly functioning anti-doping system Definition of “immediately” from a legal perspective Events not attributed to force majeure and responsibility of a club to report the change of the whereabouts of its players CAS power of review with regard to the measure of a sanction imposed by a disciplinary body at first instance 1. It is of paramount importance today that an effective and credibly functioning anti-doping system is in place in order to make sure that the sports community together with WADA and the national anti-doping agencies around the world may fight one of the greatest challenges to modern international sports, namely the use of illegal performance enhancing drugs. Such anti-doping regimes and control systems should, however, always be carried out with appropriate consideration for athletes’, and in this case the club’s, expectations that they will be treated fairly. 2. The definition of the term “immediately” means “without any delay or lapse of time; instantly, directly, straightway; at once” and “without intermediary, intervening agency, or medium”. While in legal usage (under English law) it does not mean instantaneous, it nevertheless connotes proximity in time and proximity in causation. In addition, a CAS panel is obliged to interpret the rules in question in keeping with the perceived intention of the rule maker and not in a way that frustrates it. Having regard not only to the aforementioned definitions, but in particular to the scope and purpose of the UEFA ADR, the term “immediately” from a legal perspective entails that the taking of action must be within a short time at some speed and without intervening time or space and without delay or intervention. 3. Events preventing a club from making the report of the changes of the whereabouts on time that cannot be attributed to Acts of God or force majeure but solely to administrative confusion, are insufficient to relieve such club from its responsibilities to report the change of the whereabouts of its players immediately as “at once” or “instantly”. 4. Even though a CAS panel has full power of review of the disputed facts and law in the exercise of its jurisdiction, the measure of the sanction imposed by a disciplinary body in the exercise of the discretion allowed by the relevant rule can be reviewed only when the sanction is evidently and grossly disproportionate to the offence. ________________________________________________ On 26 January 2012 the UEFA Control and Disciplinary Board decided to impose a €25,000 fine on the German football club Bayer 04 Leverkusen (the Club). This decision was upheld by the UEFA Appeals Body on 23 March 2012. The Club was fined for two instances of whereabouts filing failures in September 2011 and in December 2011 violating the UEFA Whereabouts Rules. The Club did not dispute its failure in December 2011 but dit dispute the whereabouts filing on 23 September 2011. The Club asserted that the absence of of a sick football player was reported by the team doctor minutes before the training in question in the situation that a NADA doping control and an UEFA doping control took place at the same time. The Club Offical’s sick report to UEFA was interupted by the unannounced NADA doping control and therefore more than 1 hour later reported when the UEFA doping controllers had already arrived at the training location. Hereafter in April 2012 the Club appealed the UEFA decision with the Court of Arbitraton for Sport (CAS). The Club requested the Panel to set aside or to reduce the imposed €25,000 fine on the basis that the Club did not commit the reported whereabouts filing failure on 23 September 2011. The UEFA contended that the club did not “immediately send updates of all information required on the [whereabouts] form so that it maintained accurate at all times” as required by Article 11 of the Whereabouts Rules. Therefore, the club was “non-compliant” for the purposes of the Whereabouts Rules, as Article 16 provides that “teams are considered to have committed a non-compliance, if they submit late, incomplete or inaccurate team whereabouts, or if one or more of the players are absent without advance notice from a doping control”. The UEFA refutes the Club’s argument that a visit of more than one doping control at the same time should constitute an exceptional circumstance that would exempt the club from its duty to immediately update its whereabouts information. The Panel finds that the Club has committed a non-compliance of the UEFA ADR, including Exhibit E, by failing to report the changes of the whereabouts of the football player before 12.59 p.m. on Friday 23 September 2011, more than one hour after the player reported that due to sickness he was unable to attend the training. The Panel does not regard a fine of €25,000 under these circumstances to be unreasonable or disproportionate given the negligence of the club, the amount which the club received for taking part in the UEFA Champions League season 2011/2012 and the fact that the club is a long-standing member of the German Bundesliga. Therefore the Court of Arbitration for Sport decides on 15 March 2013: 1.) The Appeal filed by Bayer 04 Leverkusen on 2 April 2012 is dismissed. 2.) (…). 3.) (…). 4.) Any other requests, motions or prayers for relief shall be dismissed.

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CAS 2012_A_2725 UCI vs Vladimir Koev & Bulgarian Cycling Union

23 Jul 2012

CAS 2012/A/2725 International Cycling Union (UCI) v. Vladimir Koev & Bulgarian Cycling Union (BCU) Cycling Doping (heptaminol) Duty to establish how the specified substance entered the athlete’s body Absence of intent to enhance sport performance Starting date of the ineligibility period 1. In the circumstances, where there is a known and admitted possible source of the substance and no alternative possible source has been suggested, the athlete has established to the comfortable satisfaction of the hearing panel how the specified substance entered his/her body. 2. A contemporaneous medical record is a factor which militates against a substance having been taken to enhance sport performance, but for a hearing panel to be comfortably satisfied that there was no intention to enhance sport performance, there would generally need to be a combination of objective circumstances. One such circumstance might be the open use or the disclosure of use of the substance. 3. Where there have been substantial delays in the hearing process or other aspects of doping control not attributable to the athlete, the hearing body may start the period of ineligibility at an earlier date commencing as early as the date of sample collection. If more than one year has elapsed between the analysis of the A samples and the notification of the adverse findings, but no explanation for this substantial delay has been proffered, it is appropriate to start the period of ineligibility at the date of the last sample collection. ________________________________________________ In September 2011 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Bulgarian cyclist Vladimir Koev after his A and B samples – provided on 3 occasions in June 2010 – tested positive for the prohibited substance Heptaminol. Previously in 2006 the Athlete was sanctioned for the use of the substance stanozolol. After notification the Athlete admitted the violation and explained with medical documents that he had used a prescribed product that contained the prohibited substance as treatment for his medical condition. The Committee of the Bulgarian Cycling Union (BCU) accepted the Athlete’s explanation and decided on 28 December 2011 not to sanction or to reprimand the Athlete. Hereafter in February 2012 the UCI appealed the BCU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to impose a 4 year period on the Athlete for his second anti-doping rule violation considering his degree of fault in this anti-doping rule violation. The Sole Arbitrator finds to his comfortable satisfaction that the Athlete used his medication without intention to enhance his sports performances. However the Athlete is guilty of considerable negligence due to his failure to check his medication before use. Also he deliberately did not mention his medication on the doping control form because he was embarrassed about his condition. The Sole Arbitrator considers that there were substantial delays in the proceedings not attributable to the Athlete and he rules about disqualification of his results and payment of fine, fees and costs. Therefore the Court of Arbitration for Sport decides on 23 July 2012 that: 1.) The appeal filed by the International Cycling Union on 13 February 2012 against the decision of the Committee of the Bulgarian Cycling Union of 28 December 2011 is admissible is upheld. 2.) The decision of the Committee of the Bulgarian Cycling Union of 28 December 2011 is set aside. 3.) Mr Vladimir Koev is declared ineligible for a period of eight (8) years commencing on 11 June 2010. 4.) Mr Valadimir Koev is disqualified from the Tour of Romania 2010. 5.) All competitive results obtained by Mr Vladimir Koev from 11 June 2011 until the commencement of the period of ineligibility are disqualified with all resulting consequences including the forfeiture of any medals, points and prizes. 6.) Mr Vladimir Koev shall pay to the International Cycling Union (a) a fine of EUR 1,162 (one thousand one hundred and sixty-two), (b) EUR 850 (eight hundred and fifty) being the cost of the B sample analysis, and (c) EUR 735 (seven hundred and thirty five) being the cost of the A sample laboratory documentation package, making together a total of EUR 2,747 (two thousand seven hundred and forty-seven). 7.) Mr Vladimir Koev shall pay to the International Cycling Union CHF 1,000 (one thousand) as the costs of the result management by the International Cycling Union. 8.) (…). 9.) (…). 10.) All other requests for relief are rejected.

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CAS OG_2018_03 | 15 Russian athletes and coaches vs IOC

9 Feb 2018

CAS OG 18/03 Alexander Legkov, Maxim Vylegzhanin, Evgeniy Belov, Alexander Bessmertnykh, Evgenia Shapovalova, Natalia Matveeva, Aleksandr Tretiakov, Elena Nikitina, Maria Orlova, Olga Fatkulina, Alexander Rumyantsev, Artem Kuznetcov, Tatyana Ivanova, Albert Demchenko, Sergei Chudinov v. International Olympic Committee ________________________________________________ Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence. All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis establish whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considererd in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme. The Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods. ________________________________________________ On 5 December 2017, based on the Schmid Commission’s recommendations, the IOC decided to suspend the Russian Olympic Committee (ROC) with immediate effect. An Invitation Review Panel (IRP) and the Russia Implementation Group (OAR IG) were established with the responsibility of developing a list, based on a set of guidelines and criteria, from which the IOC would ultimately issue inviations. The ROC eventually provided a list of 169 athletes, coaches and support staff who were invited to compete as Olympic Athletes from Russia at the 2018 PyeongChang Olympic Games as approved by the IOC on 19 January 2018. On 1 February 2018 two CAS Panels ruled in the matter of the Sochi appeals (CAS 2017/A/5379) that there was insufficient evident to conclude that the applicants, amongst others, had commited an anti-doping rule violation. Following this CAS decision the applicants as well as the ROC requested that the applicants be invited to the PyeongChang 2018 Olympic Winter Games. Another group of applicants had learned from the press or through their federations that they had not been included in the list of Russian athletes invited to the Olympic Winter Games. They also requested the IOC to be invited to the Olympic Games. On 4 and 5 February 2018 the IOC declined the requests of both group of applicants. On 6 and 7 February 2018 32 Russian athletes (CAS OG 18/02) and 15 Russian athletes and coaches (CAS OG 18/03) appealed the IOC decision not to invite them with the CAS Ad Hoc Division at PyeongChang. In this case CAS OG 18/03 the 15 athletes and coaches requested the Panel to order the IOC to invite each of them to participate in the 2018 PyeongChang Olympic Winter Games. They argue that the IOC’s refusal to invite the applicants has no basis in law and discriminatory. They contended that the IOC decision not to invite the athletes and coaches is an impermissible attempt to circumvent the CAS decisions of 1 February 2018. They contended that they were cleared having committed any any anti-doping rule violations and they underwent all of the pre-games testing requirements conducted by the IOC. They asserted that it is unclear which criteria were applied, how they were applied, which factors were taken into account and how they were weighed. The lack of transparency in the selection process makes it impossible to rebut the allegations against them. The IOC: a.) The IOC's argued that the decision to suspend the ROC and establish a process for allowing certain Russian athletes to compete at the 2018 Olymic Games is different from proceedings relating to anti-doping rule violations; b.) The invitation process established by the IOC, while discretionary, was justified and correctly and fairly implemented; c.) The process was not meant to discriminate against Russian athletes; rather, it offered the possibility of participation in the 2018 Olympic Games, which had been closed to a significant number of them following the suspension of the ROC. d.) The IOC requests the Panel to reject the Athletes' Applications. The CAS Panel observes that it is faced with evaluating an unprecedented response to an extraordinary situation, that is, a state-sponsored doping scheme. Considering the evidence in this case the Panel concludes that the athletes have not demonstrated that the process established by the IOC constituted a sanction, or that the manner in which the IRP or the OAR IG independently evaluated the athletes was carried out in a discriminatory, arbitrary or unfair manner. The Panel also concludes that there is no evidence the IRP or the OAR IG improperly exercised their discretion. Therefore the Ad Hoe Division of the Court of Arbitration for Sport decides on 9 February 2018: The Application filed by Alexander Legkov, Maxim Vylegzhanin, Evgeniy Belov, Alexander Bessmertnykh, Evgenia Shapovalova, Natalia Matveeva, Aleksandr Tretiakov, Elena Nikitina, Maria Orlova, Olga Fatkulina, Alexander Rumyantsev, Artem Kuznetcov, Tatyana Ivanova, Albert Demchenko, Sergei Chudinov on 7 February 2018 is dismissed.

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CAS OG_2018_02 | 32 Russian athletes vs IOC

9 Feb 2018

CAS OG 18/02 Victor Ahn, Vladimir Grigorev, Anton Shipulin, Evgeniy Garanichev, Ruslan Murashov, Ekaterina Shikhova, Sergei Ustyugov, Ksenia Stolbova, Ekaterina Urlova-Percht, Maksim Tcvetkov, Irina Uslugina, Yulia Shokshueva, Daria Virolainen, Dmitri Popov, Roman Koshelev, Mikhail Naumenkov, Alexei Bereglasov, Valeri Nichushkin, Anton Belov, Sergei Plotnikov, Evgeniya Zakharova, Ruslan Zakharov, Anna lurakova, Alexey Esin, Yulia Skokova, Elizaveta Kazelina, Sergey Gryaztsov, Ivan Bukin, Denis Arapetyan, Artem Kozlov, Gleb Retivikh, Alexey Volkov v. International Olympic Committee ________________________________________________ Two reports commissioned by WADA, published by Prof Richard McLaren as Independent Person (IP) on 18 July 2016 and 9 December 2016, showed detailed evidences of organised manipulation of some Russian samples collected during the Sochi 2014 Olympic Winter Games. The IP reports describe how urine bottles were opened and urine was switched with clean modified urine coming from a “biobank”, and how urine density had to be adjusted to match that recorded on the doping control form (if different at the time of collection) by adding salt to the sample. As a result of the McLaren Reports the IOC Oswald Commission started investigations in order to establish the possible liability of individual athletes and to issue any sanctions so that decisions could be taken as far in advance of the 2018 Winter Games as possible. At the same time the IOC Schmid Commission started their investigations to establish the facts on the basis of documented, independent and impartial evidence. All the samples of all Russian athletes who participated in Sochi were re-analysed. The re-analysis established whether there was doping or whether the samples themselves were manipulated. The findings in the IP Reports were considererd in detail and both Commissions conclude that samples or urine collected from Russian Athletes were tampered with in Sochi in a systematic manner and as part of an organized scheme. The Commissions further conclude that it was not possible that the athletes were not fully implicated. They were also the main beneficiaries of the scheme. The Commissions find that Prof. McLaren’s findings are not only based on the evidence provided by Dr Rodchenkov in his interviews, but on a wealth of other corroborating evidence, including other witnesses, the forensic examination of the sample bottles, the evidence showing abnormal salt results and the additional elements coming from DNA analysis. The corroborating evidence considered by Prof. McLaren included further objective elements, such as e-mails confirming that athletes were protected through different methods. ________________________________________________ On 5 December 2017, based on the Schmid Commission’s recommendations, the IOC decided to suspend the Russian Olympic Committee (ROC) with immediate effect. An Invitation Review Panel (IRP) and the Russia Implementation Group (OAR IG) were established with the responsibility of developing a list, based on a set of guidelines and criteria, from which the IOC would ultimately issue inviations. The ROC eventually provided a list of 169 athletes, coaches and support staff who were invited to compete as Olympic Athletes from Russia at the 2018 PyeongChang Olympic Games as approved by the IOC on 19 January 2018. On 1 February 2018 two CAS Panels ruled in the matter of the Sochi appeals (CAS 2017/A/5379) that there was insufficient evidence to conclude that the applicants, amongst others, had commited an anti-doping rule violation. Following this CAS decision the applicants as well as the ROC requested that the applicants be invited to the Pyeongchang 2018 Olympic Winter Games. Another group of applicants had learned from the press or through their federations that they had not been included in the list of Russian athletes invited to the Olympic Winter Games. They also requested the IOC to be invited to the 2018 Olympic Winter Games. On 4 and 5 February 2018 the IOC declined the requests of both group of applicants. On 6 and 7 February 2018 32 Russian athletes (CAS OG 18/02) and 15 Russian athletes and coaches (CAS OG 18/03) appealed the IOC decision not to invite them with the CAS Ad Hoc Division at PyeongChang. In this case CAS OG 18/02 the 32 athletes requested the Panel to order the IOC to invite each of the applicants to participate in the 2018 PyeongChang Olympic Winter Games. They argue that the IOC’s refusal to invite the applicants has no basis in law and is hightly discriminatory. They stated that they have never committed any anti-doping rule violations and they underwent all of the pre-games testing requirements conducted by the IOC. They asserted that it is unclear which criteria were applied, how they were applied, which factors were taken into account and how they were weighed. They argued that the lack of transparency in the selection process makes it impossible to rebut the allegations against them. The IOC: a.) The IOC's contended that the decision to suspend the ROC and establish a process for allowing certain Russian athletes to compete at the 2018 Olymic Games is different from proceedings relating to anti-doping rule violations; b.) The invitation process established by the IOC, while discretionary, was justified and correctly and fairly implemented; c.) The process was not meant to discriminate against Russian athletes; rather, it offered the possibility of participation in the 2018 Olympic Games, which had been closed to a significant number of them following the suspension of the ROC. d.) The IOC requests the Panel to reject the Athletes' Applications. The CAS Panel observes that it is faced with evaluating an unprecedented response to an extraordinary situation, that is, a state-sponsored doping scheme. Considering the evidence in this case the Panel concludes that the athletes have not demonstrated that the process established by the IOC constituted a sanction, or that the manner in which the IRP or the OAR IG independently evaluated the athletes was carried out in a discriminatory, arbitrary or unfair manner. The Panel also concludes that there is no evidence the IRP or the OAR IG improperly exercised their discretion. Therefore the Ad Hoe Division of the Court of Arbitration for Sport decides on 9 February 2018: The Application filed by Victor Ahn, Vladimir Grigorev, Anton Shipulin, Evgeniy Garanichev, Ruslan Murashov, Ekaterina Shikhova, Sergei Ustyugov, Ksenia Stolbova, Ekaterina Urlova-Percht, Maksim Tcvetkov, Irina Uslugina, Yulia Shokshueva, Daria Virolainen. Dmitri Popov, Roman Koshelev, Mikhail Naumenkov, Alexei Bereglasov, Valeri Nichushkin, Anton Belov, Sergei Plotnikov, Evgeniya Zakharova, Ruslan Zakharov, Anna lurakova, Alexey Esin, Yulia Skokova, Elizaveta Kazelina, Sergey Gryaztsov, Ivan Bukin, Denis Arapetyan, Artem Kozlov, Gleb Retivikh, Alexey Volkov on 6 February 2018 is dismissed.

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