CAS 2018_A_5990 WADA vs SAIDS & Ruann Visser

CAS 2018/A/5990 World Anti-Doping Agency (WADA) v. South African Institute for Drug-Free Sport (SAIDS) & Ruann Visser

Related case:

  • SAIDS 2018_02 SAIDS vs Ruann Visser
    October 5, 2018
  • Swiss Federal Court 4A_146-2019 Ruann Visser vs WADA & SAIDS
    June 6, 2019

  • Boxing
  • Doping (stanozolol)
  • Qualification of a communication as decision
  • Standing to be sued of SAIDS
  • Admissibility of amendments of prayers for relief
  • Breach of the applicable international standards and invalidation of the analytical results
  • Use of Berlinger kits
  • Storage and transportation of samples
  • Discrepancy in urine volumes and establishment of swapping or manipulation
  • Disparity in concentrations between the A and B samples
  • Duty to establish the route of ingestion to discharge the burden of establishing lack of intent
  • Disqualification of results unless fairness requires otherwise


1. The term “decision” must be interpreted in a broad manner so as not to restrain the relief available to the persons affected. Even letters addressed from a federation to an athlete may qualify as appealable decisions if they affect the legal situation of the addressee. A communication qualifies as a decision if it contains a ruling intending to affect the legal state of the addressee. Even a decision of a judicial body of a federation not to open a disciplinary procedure against a third party and a negative decision not to entertain a case constitute appealable decisions.

2. A decision rendered by the Independent Doping Hearing Panel (IDHP) of SAIDS in a case for which SAIDS has the result management responsibility under Article 7.1 of the SAIDS Anti-Doping Rules (ADR) can be considered a ruling for which SAIDS has the responsibility. Consequently, SAIDS has standing to be sued in the arbitration.

3. A party’s abusive procedural conduct causing CAS proceedings to last significantly longer than what could have been reasonably expected may constitute exceptional circumstances justifying to authorise the other party to amend its prayers for relief with a view to prevent the first party to take undue advantage of its abusive conduct.

4. In principle, a breach of the applicable international standards does not automatically invalidate the analytical results. Only if the athlete establishes a specific departure or departures and a causality between such departure(s) and the adverse analytical finding can the analytical results be invalidated. However, certain international testing standards and anti-doping rules are considered so fundamental and central in ensuring integrity in the administration of sample collection that certain departures therefrom can result in the automatic invalidation of the test results. An athlete’s right to attend the opening and analysis of his/her B sample is fundamental and, if not respected, the B sample results must be disregarded. The other benchmark question is whether a breach or breaches, together or alone, reach(es) a level which may call into question the entire doping control process, after which it is impossible for a reviewing body to be comfortably satisfied that a doping violation has occurred.

5. It has been established in other contexts that Berlinger kits can be opened and closed after the initial sealing without leaving marks visible to the naked eye. However, the opening and resealing of the Berlinger bottles requires specific skill and tools, and such manoeuvring will leave marks that can be detected with a microscope. Therefore, the mere use of such Berlinger kits does not constitute a departure from the applicable anti-doping rules, let alone a departure that would automatically invalidate the sample.

6. The WADA International Standard for Testing and Investigations (ISTI) does not impose an absolute deadline within which a sample must be delivered to the laboratory. Instead, the ISTI sets out an obligation to transport samples to the laboratories “as soon as practicable”, which undoubtedly implies that transportation should be made at the first reasonable opportunity. In addition, the rules take into account the possibility of the transportation of a sample to the laboratory being delayed. Furthermore, it is a standard practice that Doping Control Officers (DCO) take samples to their homes in case they are not able to immediately take or send them to an anti-doping organisation or a laboratory. Considering that the samples are in sealed bottles, which cannot be opened and resealed without exceptional skill and particular tools, the samples are not jeopardised even if they are occasionally kept at DCOs’ homes.

7. Disparity in the urine volumes may be an indication that two samples have been mixed – accidentally or intentionally – or that the sample has been manipulated. As such, nothing prevents an adjudicatory body from giving evidentiary weight to a discrepancy between the reported urine volumes. However, there is no rule stipulating that the urine volume measurement recorded on the doping control form must not be under or exceed the volume measured by the laboratory by more than a certain percentage. The purpose of the urine volume information is not to secure the identity of a particular sample. It is also common knowledge that the sample collection does not always take place in optimal conditions enabling precise urine volume estimation. Therefore, the evidentiary value of volumes with regard to the identity of a sample is secondary in relation to, for instance, the sample code, whose particular purpose is to confirm the identity of a sample. Therefore, discrepancy between the reported urine volumes is not alone sufficient to establish by a balance of probability that an athlete’s sample has been swapped or manipulated, especially when more relevant facts support a finding that no switching or tampering has occurred.

8. A difference in stanozolol concentrations of 23 ng/mL between the A and B samples cannot be considered sufficient proof or even an indication that either sample has been manipulated. First, it is undisputed that the method to detect stanozolol is not quantitative but qualitative. Thus, the estimates given by the laboratory need not be and are not exact, which in and of itself frustrates any detailed conclusions based on the concentrations. Second, according to the WADA Technical Document TD2017MRPL on the minimum required performance levels (MRPL) for detection and identification of non-threshold substances, the MRPL for stanozolol is 2 ng/mL and the limit of detection is even lower than that.

9. An athlete must establish how the prohibited substance has entered his/her system in order to discharge the burden of establishing the lack of intention. To establish the origin of the prohibited substance, it is not sufficient for an athlete to merely protest his/her innocence. The standard of proof is the balance of probabilities, i.e. an athlete has to show that the occurrence of the circumstances on which s/he rely is more probable than their non-occurrence. An ADRV may be deemed unintentional even if an athlete has failed to prove the source of a prohibited substance. However, such a finding is only possible in extremely rare cases. In such a case, the athlete should establish a lack of intention with other robust evidence, such as the possibility that the prohibited substance came from a specific product, a credible testimony, or the implausibility of the scenario that the athlete had intentionally used prohibited substances.

10. In general, equivalents to Article 10.8 of the SAIDS ADR allow the disqualification of results from the period between the expiry of the ineligibility period and the imposition of an additional ban. Results may remain valid if fairness so requires in the circumstances of each case. The factors to be assessed in the fairness test include, but are not restricted to, the athlete’s intent and degree of fault, as well as the length of the disqualification period.



In April 2018 the South African Institute for Drug-Free Sport (SAIDS) reported an anti-doping rule violation against the boxer Ruann Visser after his A and B samples, collected in February 2018, tested positive for the prohibited substance Stanozolol.

Howevere in September 2018 SAIDS informed the Athlete that it withdrew the charges against the Athlete. Accordingly the Independent Doping Hearing Panel (IDHP) of SAIDS decided on 5 October 2018 to acquit the Athlete. 

In December 2018 the Lausanne Lab reported, after a DNA cross-check analysis, that the sample in question provided in February 2018 and the Athlete's sample provided in November 2018 came from the same male individual.

Hereafter in November 2018 the World Anti-Doping Agency appealed the IDHP Decision of 5 October 2018 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the IDHP Decision of 5 October 2018 and to impose a 4 year periode of ineligibility on the Athlete. 

In this case there were delays in the CAS proceeding attributed to the Athlete due the number of extensions he requested. Further he filed an exceptionally large number of letters with CAS, presented a number of procedural requests and arguments and appointed various witnesses and experts. 

The Sole Arbitrator dealed with some issues of preliminary nature and ruled that SAIDS was properly named as a Respondent in this arbitration by WADA and therefore cannot be removed from the proceedings. Under the Rules WADA was allowed sample collection for purposed of DNA profiling as evidence in this case. Also due to the Athlete’s exceptional procedural conduct WADA was granted to amend its requested prayers for relief. 

WADA contended that the presence of a prohibited substance had been established in the Athlete’s samples and accordingly that he committed an anti-doping rule violation. The test results were valid and WADA rejected the Athlete’s allegations that there had been several departures of the ISTI. Also the conducted DNA analysis was valid and it confirmed that the samples collected in February 2018 originated from the Athlete. 

The Athlete asserted that more than 30 alleged departures occurred with respect to the different aspects of the doping control procedure:

  • The Doping Control Station was not secure and doping control items were left unattended;
  • The used Berlinger kits in question can be opened and re-closed;
  • The Athlete’s signatures on the Doping Control Form are forged;
  • The samples were not delivered immediately to SAIDS after the sample collection;
  • Dispartity in the urine volumes;
  • Disparity in the Stanozolol Concentrations;
  • The DNA Cross-check Analysis.

After addressing the raised issues and evaluating the evidence in this case the Sole Arbitrator is comfortably satisfied that the Athlete has committed an anti-doping rule violation and failed to establish, on a balance of probabilities, that the departures from the applicable rules had occurred. Neither was there a departure that caused a fundamental breach invalidating the entire sample or that it could have reasonably caused a positive test. 

The Sole Arbitrator concludes that the Athlete has not met his burden of proof in establishing that the violation was not intentional. Finally the Arbitrator considers that no reason for fairness is engaged and that the Athlete had contributed to the delays of the CAS Proceedings. 

Therefore the Court of Arbitration for Sport decides on 19 February 2020 that: 

1.) The appeal filed on 6 November 2018 by the World Anti-Doping Agency against the South African Institute for Drug-Free Sport and Mr Ruann Visser is upheld.

2.) The decision rendered on 5 October 2018 by the Independent Doping Hearing Panel established under Article 8 of the SAIDS ADR is set aside.

3.) Mr Ruann Visser is found to have committed an anti-doping rule violation and sanctioned with a four-year ( 4) period of ineligibility, starting from the date of this Award, with credit given for the provisional suspension already served by the Athlete (i.e. from 16 April 2018 to 27 September 2018).

4.) All competitive results of Mr Ruann Visser between 23 February 2018 and 16 April 2018 and from 10 April 2019 until the entry into force of this Award (inclusive of the dates specified) are disqualified, with all resulting consequences (including forfeiture of medals, points, and prizes).

5.) The costs of the arbitration to be determined and served to the Parties by the CAS Court Office shall be borne by SAIDS and Mr Ruann Visser in equal shares.

6.) SAIDS and Mr Ruann Visser are ordered to pay CHF 5,000.00 (five thousand Swiss Francs) each to the World Anti-Doping Agency as a contribution towards its legal fees and expenses. SAIDS and Mr Ruann Visser shall bear their own legal fees and expenses.

7.) All other motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
19 February 2020
Arbitrator
Manninen, Markus
Original Source
Court of Arbitration for Sport (CAS)
Country
South Africa
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
Burdens and standards of proof
Case law / jurisprudence
Circumstantial evidence
Commencement of ineligibility period
Competence / Jurisdiction
International Standard for Laboratories (ISL)
International Standard for Testing and Investigations (ISTI)
Principle of fairness
Rules & regulations National Sports Organisations & National Anti-Doping Organisations
Sole Arbitrator
Substantial delay / lapsed time limit
Sport/IFs
Boxing (IBA) - International Boxing Association
Other organisations
South African Institute for Drugfree Sport (SAIDS)
World Anti-Doping Agency (WADA)
Laboratories
Ghent, Belgium: DoCoLab Universiteit Gent-UGent
Lausanne, Switzerland: Laboratoire Suisse d’Analyse du Dopage
Analytical aspects
B sample analysis
DNA analysis
Reliability of the testing method / testing result
Doping classes
S1. Anabolic Agents
Substances
Stanozolol
Various
Disqualified competition results
Doping control
Lack of cooperation / obstruction
Sample collection procedure
Sample seal
Document type
Pdf file
Date generated
11 January 2021
Date of last modification
21 March 2022
Category
  • Legal Source
  • Education
  • Science
  • Statistics
  • History
Country & language
  • Country
  • Language
Other filters
  • ADRV
  • Legal Terms
  • Sport/IFs
  • Other organisations
  • Laboratories
  • Analytical aspects
  • Doping classes
  • Substances
  • Medical terms
  • Various
  • Version
  • Document category
  • Document type
Publication period
Origin