CAS 2002/A/374 M. / International Olympic Committee (IOC)
Related cases:
- CAS 2002_A_400 Johann Muehlegg vs FIS
January 24, 2003 - IOC 2002 IOC vs Johann Muehlegg
February 24, 2002
- Cross Country Skiing
- Doping
- Accreditation of the laboratory to conduct EPO testing
- Nature of Aranesp
- Validity of the testing procedure to detect Aranesp Sanction in case of out-of-competition doping control
1. The fact that an accreditation for the isoelectric focusing test was not granted to the laboratory at the time when the samples were tested does not mean that this laboratory was not capable of conducting the r-EPO test. The Olympic Movement Antidoping Code (OMAC) specifically provides for the evolution of scientific knowledge and testing procedures. What must be established to the comfortable satisfaction of the tribunal is that the testing procedure as carried out was in accordance with the prevailing standards and practices of the scientific community.
2. Aranesp is a substance, which has the effect of artificially boosting the oxygen in the blood by the introduction of a greater number of red blood cells, and for an elite performance athlete these additional red blood cells translate into enhanced stamina. The natural hormone EPO and r-EPO have precisely the same physiological effects. Aranesp is an analogue and mimetic of the Prohibited Substance r-EPO.
3. Aranesp is a Prohibited Substance and can not be produced naturally unlike r-EPO that has an overlapping fingerprint with EPO and can cause doubts as to whether the isoform is natural or artificial in nature. Therefore, it does not matter that there may be overlap with the natural bands of EPO as there can be no doubt that there was use of Aranesp and its source can not possibly be that of the human body. Therefore, the direct urine test employed to detect r-EPO can also be applied to detect Aranesp. The notable difference between the two applications is that Aranesp does not require a threshold safety margin to protect against false positives because of overlap, as does r-EPO.
4. The closing words of Article 3.5 OMAC indicate that where an athlete commits an out-of-competition doping offence, at least all the results obtained after the date the sample was taken shall be invalidated. The proper interpretation of this Article could be construed as limiting the invalidation of results to those results that were achieved after the later of the date the positive result was recorded or the date final judgment on the issue is rendered. This interpretation would result in the absurdity that an athlete could compete up until the final adjudication of a doping infraction and not have any results obtained in the interim period invalidated. This is contrary to the purpose of the OMAC and such an interpretation cannot be accepted. This article operates not to determine what results will be invalidated, but the date on which the invalidation of results is effectively imposed.
The Spanish Athlete Johann Muehlegg competed in the Men's 30 km Free Mass Start (February 9, 2002), the Men's 10 km Free Pursuit (February 14, 2002) and the Men's 50 km Classical (February 23, 2002). Muehlegg placed first in all three events acquiring Spain's only medals of the Games.
In February 2002 the International Olympic Committee (IOC) reported an anti-doping rule violation againt the Athlete after his A and B samples tested positive for the prohibited substance Darbepoetin (dEPO).
Consequently on 24 February 2002 the IOC decided that the Athlete was disqualified and excluded from the 2002 Salt Lake City Olympic Winter Games.
Hereafter in March 2002 the Athlete appealed the IOC Decision with the Court of Arbitration for Sport (CAS 2002/A/374). Also in June 2002 the Athlete appealed with CAS the decision of the International Ski Federation (FIS) to sanction the Athlete for 2 years after he tested positive for dEPO) (CAS 2002/A/400).
The Athlete requested the Panel to set aside the IOC decision and he disputed the reliability of the testing method and the testing result.
Following assessment of the case the Panel concludes that the IOC Executive Board properly found Muehlegg to have committed a doping infraction and hereby upholds that decision. Also the Panel finds that the IOC Executive Board properly exercised its authority under the Olympic Charter and the OMAC to invalidate Muehlegg’s results in the 50km classical cross-country event, withdraw the gold medal obtained, and exclude him from the Games.
Therefore on 24 January 2003 the Court of Arbitration for Sport decides:
1.) The appeal filed by Johann Muehlegg on 16 March 2002 is dismissed.
2.) The decision of the Executive Board of the International Olympic Committee of 24 February 2002 is upheld.
3.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Johann Muehlegg which is kept by the CAS.
4.) Johann Muehlegg is ordered to pay the sum of CHF 12’000.- (Twelve thousand Swiss Francs), to the IOC in contribution towards its legal costs.
