CAS 2007/A/1290 Roland Diethart v. International Olympic Committee (IOC)
Related case:
IOC 2007 IOC vs Roland Diethart
April 25, 2007
- Cross-country skiing
- Doping (monitoring and/or reduction of haemoglobin values)
- CAS Jurisdiction
- Definition of blood doping
- Concept of “possession”
- Acceptable justification
- Sanction
- Principle of proportionality
1. Rule 9 of the Entry Form Eligibility Conditions states that a National Olympic Committee can be authorised by the National Sports Federation concerned to sign the entry form on behalf of the athletes. In such a case, the IOC Anti-Doping Regulations and the Olympic Charter are applicable to the athlete on behalf of which the Entry Form was signed (art. 2 of the Entry Form), even if the athlete has not signed it personally. The jurisdiction of CAS derives from Article R47 of the Code of Sports-related Arbitration, Article 12 of the IOC ADR and Article 59 of the Olympic Charter.
2. The definition of blood doping is non-exhaustive and is defined as “including” transfusions. Modern doping practices dictate that the concept of blood doping encompasses not only blood transfusions, but also the steps taken after a blood transfusion, including the subsequent monitoring and/or reduction of haemoglobin values in order to avoid a “protective ban”.
3. The concept of possession under the IOC ADR comprises more than just actual physical possession and includes “constructive possession”. Thus, a person will be found to be in possession of a Prohibited Substance or Method if he or she (a) had it in his or her physical possession; or (b) had constructive possession over it, which means that he or she either (i) had exclusive control over the Prohibited Substance or Method or over the premises in which it was found, or (ii) knew about the presence of the Prohibited Substance or Method and intended to exercise control over it.
4. Unless an athlete establish that the possession is pursuant to a TUE granted or “other acceptable justification”, the possession of these items, i.e. materials which can be used to monitor and artificially reduce haemoglobin values, constitutes in itself an anti-doping rules violation since these devices can be used for blood doping.
5. Article 10.5 of the WADA Code regarding the elimination or reduction of period of ineligibility based on exceptional circumstances is not applicable to Article 2.6.1 IOC ADR violations as “fault or negligence” is already required to establish such anti-doping rule.
6. The WADA Code (and by extension the IOC ADR) has been drafted to reflect the principle of proportionality, thereby relieving the need for an appellate body to apply this principle. In other words, the principle of proportionality is “built into” the WADA Code and the IOC ADR.
In February 2006 the Athlete competed in the Austrian Men’s Men’s 4x10 km Relay during the Torino 2006 Olympic Winter Games.
On 18 February 2006 the Italian police searched the premises in which the Athlete resided of pursuant to a search and confiscation warrant. The Italian police found a number of items within the accommodation of the Austrian cross-country and biathlon teams, and their coaches and trainers, including numerous syringes (some used), blood bags (some used), butterfly valves for intravenous infusion, injection needles, bottles of saline and a device for measuring a person’s haemoglobin levels as well as a device for determining the blood group of a blood sample.
Specifically, in relation to the Athlete, the Italian police found, among other things, the following materials in a beauty case contained in his travel bag:
- Saline solution;
- 4 jars with 50 devices for haemoglobin testing;
- 13 unopened packs of syringes,
- 5 unopened infusion device packs;
- 1 pack of epicranial needles;
- 1 sterile-packed microperfuser; and
- 1 unopened single-use needle pack.
The police also reported having found one box labelled Anabol Loges, containing approximately 15 black pills.
The Austrian Olympic Committee (AOC) subsequently established an Inquiry Commission to investigate the conduct of the Austrian cross-country and biathlon teams at the Torino 2006 Olympic Winter Games. In addition the Austrian Ski Federation (ASF) Disciplinary Board also conducted a general investigation into the conduct of the teams.
Consequently the IOC Disciplinary Commission found that it is apparent that the Athlete possessed materials for the carrying out of blood transfusions and the artificial manipulation of blood haemoglobin levels. The Disciplinary Commission concluded that the Athlete has violated the IOC Anti-Doping Rules in that he used, possessed, and aided and abetted other athletes to use or possess, prohibited substances and methods.
Therefore on 24 April 2007 the IOC Disciplinary Commission recommended to the IOC Executive Board that the Athlete:
1.) be disqualified from the Men’s 4x10 km Relay;
2.) be permanently ineligible for all future Olympic Games in any capacity.
3.) The Austrian Men’s 4x10 km Relay team be disqualified.
4.) The Fédération Internationale de Ski be requested to modify the results of the above-mentioned event accordingly.
5.) The file be referred to the Fédération Internationale de Ski (FIS) to consider any further action within its own competence.
On 25 April 2007 the IOC Executive Board decided unanimously, as recommended by the IOC Disciplinary Board, to declare permanent ineligible the Athlete and to exclude him from taking part in any future Olympic Games in any accredited capacity.
Hereafter the Athlete appealed the IOC decision with the Court of Arbitration for Sport (CAS).
Considering the evidence and the statements, the CAS Panel finds that the 2006 Italian Police Report is accurate and the Panel does not accept the Athlete’s explanation about the items identified in the Police Report.
The Panel concludes that the Athlete was in breach of the IOC ADR, due to possession of the items found in his room and due to administration or attempted administration of prohibited methods.
The Panel is of the opinion that the Athlete clearly possessed Prohibited Methods without proper justification and clearly tried to cover up other athlete’s behaviour. The endemic culture in the Austrian cross-country ski team appears to have been one in which such conduct was encouraged.
Indeed, it may well be that the “entry fee” payable by an athlete wishing to be selected in that team was a willingness to participate and assist in such behaviour. The Panel also takes into account that the Athlete was a late replacement in the team, had never trained with the Austrian Relay Team and was clearly pressured by higher “means”. The Panel concludes that he knew what he was doing, but that he was an assister and not a prime mover.
Therefore the Court of Arbitration for Sport Panel decides on 25 April 2007:
1.) The appeal filed by the Athlete Roland Diethart against the decision rendered on 25 April 2007 by the Executive Board of the IOC is partially upheld.
2.) The decision rendered on 25 April 2007 by the Executive Board of the IOC is set aside as far as the period of ineligibility is concerned.
3.) The Athlete shall be ineligible to participate in any capacity in all Olympic Games up to and including the 2010 Olympic Games.
4.) […]
