CAS 2009_A_1983 Mariana Ohata vs International Triathlon Union

CAS 2009/A/1983 Mariana Ohata v. International Triathlon Union (ITU)

Doping (furosemide)
Legal effect of a decision that was not signed and sent by e-mail
Difference between impartiality and independence of the Hearing Panel
Breach of the ISL
Multiple infraction and period of ineligibility

1. Whether or not a decision has to be signed by the members of a panel is a question as to the form of said decision. There is no provision in the ITU Anti-Doping Rules according to which the decision of the Doping Hearing Panel must bear the signatures of the panel members in order for the decision to enter into force or existence. The only form requirement to be found in the rules and regulations of the ITU is that the decision must be in writing and contain reasons. There are no recognised international law principles as to the form requirements relating to disciplinary decisions of international sports organisations.

2. The ITU Anti-Doping Rules do not define the terms “impartial” or “independent”. It is, therefore, not easy to distinguish clearly between both prerequisites. In principle, “independence” in Article 8.1.1 of the ITU Anti-Doping Rules concerns an objective situation prohibiting certain relationships, particularly of a financial nature, between a panel member and the ITU. “Impartiality” on the contrary is a more subjective notion referring to the absence of bias in the person acting as a member of the panel resulting from a “privileged” relationship with the matter to be decided.

3. According to the 2009 International Standards for Laboratories, the requirement that a different analyst perform the A and B analytical procedures does no longer exist.

4. According to the ITU Anti-Doping Rules, anti-doping rule violations committed prior to the entry into force of today’s ITU Anti-Doping Rules may be taken into account in cases involving multiple infraction as long as the second violation has taken place within the deadline established in the ITU Anti-Doping Rules.

In July 2009 the International Triathlon Union (ITU) has reported an anti-doping rule violation against the Brazilian triathlon Athlete Mariana Ohata after her A and B samples tested positive for the prohibited substance Furesemide. Previously in 2002 the Athlete served a 60 day period of ineligibility for an anti-doping rule violation. As a result on 5 October 2009 the ITU Anti-Doping Panel decided to impose a 6 year period of ineligibility on the Athlete for her second anti-doping rule violation.

Hereafter in October 2009 the Athlete appealed the ITU decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to annul the ITU decision of 5 October 2009 and to impose a reduced sanction. The Athlete denied the intentional use of the substance, argued that there were procedural errors in the case against her and that there are grounds for No Fault or Negligence.
The ITU requested the Panel to uphold the sanction and to dismiss the Athlete’s appeal.

The Panel notes that in this case there are the following legal issues:

a) Has the Decision any legal effect even though it has not been signed by the members of the ITU Doping Hearing Panel?
b) Was the composition of the ITU Doping Hearing Panel in accordance with the ITU Anti-Doping Rules?
c) Did the laboratory breach mandatory safeguards for the Athlete in the ISL?
d) Has the Respondent established that the Athlete committed an anti-doping rule violation according to the ITU Anti-Doping Rules?
e) In case an anti-doping rule violation is established, what period of ineligibility applies to the case at hand?

Considering the evidence the Panel holds that Athlete’s argument that de Decision is inexistent and void of any effects has to be rejected. The Panel finds that the Athlete failed to provide any facts that show (or might show) a bias of the persons acting as members of the ITU Doping Hearing Panel. Also the CAS Panel can reconsider the case de novo and, thus, cure any possible (procedural) defect in the composition of the origiginal ITU Doping Hearing Panel.

The Panel considers that contrary to the Athlete’s allegation the evidence does not give rise to any suspicion that the laboratory lost control over de integrity or the identity of the samples. As the Athlete failed to demonstrate a departure from the ISL by the laboratory consequently the Panel is comfortably satisfied that the Athlete has committed a violation of the ITU Anti-Doping Rules.

The Panel concludes that since the Athlete’s the first anti-doping rule violation qualifies as a No Significant Fault-case and the second anti-rule violation as a Significant Fault-case the applicable range for the period of ineligibility is 6 to 8 years ineligibility. Here the Athlete has not claimed nor submitted any evidence that would entitle her to a reduction or suspension of her sanction, the Panel is bound by the range for the period of ineligibility set out in in the ITU Anti-Doping Rules. According to this range the period of ineligibility cannot be below six years.

Therefore the Court of Arbitration for Sport decides on 21 July 2010:

1.) The appeal filed by Mrs Mariana Ohata on 23 October 2009 is dismissed.
2.) The decision rendered by the ITU Doping Hearing Panel on 5 October 2009 in the matter of the International Triathlon Union vs. Mrs Mariana Ohata is confirmed.
3.) (…).
4.) (…).
5.) All other motions or prayers for relief are dismissed.

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CAS Appeal Awards
21 July 2010
Barbey, Carole
Haas, Ulrich
Schmidhauser, Corinne
Tribunal Arbitral du Sport (TAS) - Court of Arbitration for Sport (CAS)
Adverse Analytical Finding / presence
Legal Terms
Digital evidence
International Standard for Laboratories (ISL)
Period of ineligibility
Procedural error
Rules & regulations International Sports Federations
Second violation
Triathlon (ITU) - International Triathlon Union
Los Angeles, USA: UCLA Olympic Analytical Laboratory
Analytical aspects
B sample analysis
Doping classes
S5. Diuretics and Other Masking Agents
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