- CAS 2007/A/1286 Johannes Eder vs International Olympic Committee
- CAS 2007/A/1288 Martin Tauber vs International Olympic Committee
- CAS 2007/A/1289 Jürgen Pinter vs International Olympic Committee
CAS 2007/A/1286 Johannes Eder v. International Olympic Committee (IOC) & CAS 2007/A/1288 Martin Tauber v. International Olympic Committee (IOC) & CAS 2007/A/1289 Jürgen Pinter v. International Olympic Committee (IOC)
- Cross-country skiing
- Doping (intravenous infusion)
- Use and possession of a Prohibited Method
- Due process
- Prohibition of a second trial
- Standard of proof
- Legitimate acute medical treatment
- Concept of “possession”
- Concept of “acceptable justification”
- Complicity
1. Article R57 of the CAS Code gives a Panel full power to review the facts and the law of the case. As a result, the Panel hears the case de novo, without being limited by the submissions and evidence that was available to the previous instance. Accordingly, even if there had been a lack of due process in the proceedings before the previous instance, any such deficiencies are cured by the CAS in its hearing of the full appeal.
2. Article 4 of Protocol 7 of the ECHR is restricted in its application to criminal proceedings brought by the same State. Accordingly, it is inapplicable to arbitration proceedings.
3. There is very little practical difference between the “balance of probability” and “beyond a reasonable doubt” standards of proof, particularly when read with the phrase “bearing in mind the seriousness of the allegation which is made”. Pursuant to this interpretation and the preceding CAS jurisprudence, the Respondent is required to prove its allegations with evidence that is sufficient to comfortably satisfy the Panel in light of the seriousness and consequences of the allegations made against the Appellant.
4. The administration of saline infusions in order to ensure that haemoglobin levels are within the range provided by the applicable regulations is not “legitimate acute medical treatment”.
5. The concept of “possession” within the meaning of Article 2.6.1 of the IOC Anti-Doping Regulations must be considered in light of surrounding circumstances. Possession of a Prohibited Method is proved where it can be shown to the comfortable satisfaction of the Panel that, in all the circumstances, an athlete was in possession, either physical or constructive, of items which would enable that athlete to engage in a Prohibited Method. It is not necessary to establish the intent to use the Prohibited Method in addition to establishing actual or constructive possession.
6. “Other acceptable justification” is intended to cover situations in which emergency medical treatment is required, so that there is no opportunity to apply for a TUE. In the absence of a physical examination by a medical practitioner, the self-treatment of diarrhoea is not an “acceptable justification”. Likewise, in the absence of a FIS dispensation and if no protective ban has previously been issued, naturally high haemoglobin levels do not constitute an “acceptable justification”.
7. According to Swiss law, there are two types of conduct that may amount to “joint causation” or being an “accessory” to a tortious act: (1) active, physical assistance, or (2) psychological assistance. Such conduct is the first element of joint causation of damage. The second element under the Swiss Code requires that the assistance rendered by the accessory contributes to the damage caused.
8. In light of the plain language of the second part of Article 2.8 of the IOC Anti-Doping Regulations, an athlete will not only violate Article 2.8 if he or she is found to have assisted, encouraged, aided, abetted, covered up or engaged in “any other type of complicity” specifically in relation to the ADR violation(s) of another athlete (“horizontal complicity”); he or she will also violate Article 2.8 through “vertical complicity”, by which an athlete engages in an ADR violation that is facilitated by a coach or support staff, in circumstances where that coach or support staff also similarly facilitated the ADR violations of other athletes.
On 26 February 2002, shortly after the Salt Lake 2002 Olympic Winter Games, various items were found by a cleaner in a chalet in Midway, Utah, which was occupied by the Austrian cross-country and biathlon coach Walter Mayer along with his wife. It was subsequently determined that the chalet had been frequently visited by members of the Austrian cross-country and biathlon teams.
In light of the discovery of various items of equipment in Mayer’s chalet in Salt Lake City following the 2002 Salt Lake City Olympic Games the IOC Board sanctioned on 26 May 2002 the Austrian team coach, the team chiropractor, and two Austrian athletes.
4 years later during the Torino 2006 Olympic Winter Games, the Italian police discovered numerous materials in the accommodation of several Austrian athletes and support staff which evidenced the possession of prohibited methods and substances.
Pursuant to the recommendations made by the IOC Disciplinary Commission, the IOC Executive Board on 25 April 2007 disqualified and declared ineligible for all future Olympic Games the following athletes:
- Roland Diethart (cross-country);
- Johannes Eder (cross-country);
- Jürgen Pinter (cross-country);
- Martin Tauber (cross-country);
- Wolfgang Perner (biathlon); and
- Wolfgang Rottmann (biathlon).
Hereafter the Austrian athletes Eder, Tauber and Pinter appealed the IOC decision with the Court of Arbitration for Sport (CAS). They requested the Panel to set aside the Appealed IOC Decision.
The athletes each challenged the respective decision of the IOC Board on the basis that there was a lack of due process:
- the Board failed to give grounds for its decision;
- it did not provide the athletes with a right of audience;
- it delegated its hearing function to the IOC Disciplinary Commission (in violation of the ECHR); and
- its decision was based on insufficient evidence.
The Panel considers whether or not each of the athletes assisted, encouraged, aided, abetted or covered up the possession violations of his fellow Appellants in such a way as to contribute to causing his fellow athletes’ possession violations.
The IOC has proven to the Panel’s comfortable satisfaction that each athletes met these standards. The evidence demonstrate a broad pattern of cooperation and common activity, with the other athletes and with the coaches, in the possession of the Prohibited Method of blood doping.
The Panel holds that the anti-doping rule violations committed by the athletes in this case are extremely serious. The fact that the athletes engaged in these offences after the Salt Lake City affair exacerbates the seriousness of their anti-doping rule violations and illustrates that the athletes have failed to learn from the mistakes of members of the former Austrian cross-country ski team.
The Panel deems that in these circumstances, the athletes have shown a complete disregard for the principles of the Olympic Games and for the IOC ADR that protects the interests of all athletes at the Olympic Games.
Therefore the Court of Arbitration for Sport decides on 4 January 2008 that:
1.) The appeals filed by Johannes Eder, Martin Tauber and Jürgen Pinter against the decisions rendered on 25 April 2007 by the IOC Executive Board are dismissed.
2.) The decisions of the IOC Executive Board of 25 April 2007 declaring each of the Appellants to be ineligible permanently for all future Olympic Games in any capacity are affirmed.
3.) The counterclaim filed by Jürgen Pinter is denied.
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