CAS 2021_ADD_42 IWF vs Nicu Vlad

CAS 2021/ADD/42 International Weightlifting Federation (IWF) v. Nicu Vlad

• Weightlifting
• Doping (assistance with an anti-doping rule violation)
• CAS ADD jurisdiction
• Admissibility of the request for arbitration
• Interpretation of the scope of the IWF ADR
• Statute of limitation
• Means of proof regarding the ADR
• Offence of assisting an anti-doping violation
• Sanction

1. According to Article 8.1.1 of the 2021 IWF Anti-Doping Rules (ADR), the IWF has delegated its responsibility to act as first instance to the CAS ADD. Furthermore, Article A2 of the CAS ADD Rules provides that the CAS ADD has jurisdiction to rule as a first-instance authority on behalf of any sports entity which has formally delegated its powers to the ADD to conduct anti-doping proceedings and impose applicable sanctions.

2. Pursuant to Article A13 of the CAS ADD Rules, a Request for Arbitration must contain “the name and full address of the Respondent(s)”. Yet, the addresses communicated after the filing of the Request for Arbitration by the claimant may be considered valid where there is no contrary indication by the respondent. To decide otherwise would give a disproportionate importance to the formal conditions of the Request for Arbitration, as soon as the respondent was successfully notified by email and, thereafter, by courier via his counsel and in light of the minimal impact for the respondent to have his case heard on the merits rather than to have it disposed of on a technicality.

3. According to Swiss law, statutes and regulations of associations have to be construed and interpreted in the same way as public laws. Accordingly, the interpretation of the statutes and rules of sport associations must be objective and always start with the wording of the rule. The intentions (objectively construed) of the association including any relevant historical background may be taken into consideration. In any event, anti-doping rules shall be construed in a manner which will “discern the intention of the rule maker” rather than frustrate it. Recourse may be had to supplementary means of interpretation to determine the meaning when the interpretation “leads to a result which is manifestly absurd or unreasonable”. In this respect, the scope of the 2009 IWF ADR, worded “shall apply to the IWF, each National Federation of the IWF, and each Participant in the activities of the IWF”, is broad. An interpretation according to which natural persons holding high offices of the IWF or of other IFs or NFs do not fall under the categories “IWF” and “National Federations” of the scope of the 2009 IWF ADR would de facto grant immunity for anti-doping rule violations (ADRVs) committed by those persons although, in accordance with Article 3.4.2 of the IWF Constitution and Article 14.1 of the 2009 IWF ADR), said persons in their capacity as board members etc., are responsible to fully comply with the World Anti-Doping Code (WADC) and to implement effective mechanisms to combat any doping by its members. Such interpretation leads to a result that is both “manifestly absurd” and “unreasonable”, and which the draftsmen of the 2009 IWF ADR (and the 2009 WADC) could surely not have intended.

4. Article 49 (1) and (4) (“Prescription”) of the Final Chapter of the Swiss Civil Code provides that “Where the new laws specifies a longer period than the previous law, the new applies, provided prescription has not yet taken effect under the previous law”. Therefore, any retroactive extension of the limitation period provided by the IWF ADR 2015 from 8 to 10 years does not violate Swiss law. Moreover, the difficulty related to gathering evidence is inherent to long statute of limitation periods, which do not in and of themselves violate the respondent’s rights.

5. Pursuant to Article 3.2 of the 2009, 2012 and 2015 IWF ADR, an ADRV can be established by any reliable means including the content of an authentic and contemporaneous correspondence.

6. Article 2.8 of the 2009 IWF ADR covers numerous acts, which are intended to assist another or a third party’s ADRV. The assistance can constitute assistance provided in the preliminary stages before an ADRV is committed. It also covers acts, which are supposed to prevent an ADRV from being discovered after it has been committed. The rule does not stipulate how substantial the assistance has to be in order to fulfil the elements of the Article 2.8 IWF ADR, however, the standard is probably low because according to the wording of the provision, even just “any type of complicity” is sufficient. An act of assistance for the purposes of Article 2.8 also requires that the person concerned is aware of the anti-doping rule violation committed by another party, otherwise there is no intent to assist a third-part in the first place.

7. Pursuant to Article 10.3.2 of the 2009 IWF ADR, the period of ineligibility imposed for the violation of Article 2.8 shall be a minimum of four years up to a lifetime unless the conditions for exceptional circumstances pursuant Article 10.5 of the 2012 IWF ADR are met. The fact that (i) an ADRV is committed by a person holding high offices, (ii) the ADRVs are serious and (iii) the official’s conduct is both deceptive and obstructing, are all elements allowing to consider a lifetime period of ineligibility.

Mr Nicu Vlad is the former President (1997-2021) and former Head-Coach (1998-2010) of the Romanian Weightlifting Federation (FRH), Vice-President of the International Weightlifting Federation (IWF) Anti-Doping Commission (2010-2013) and Chairman of the IWF Technical Committee (2017-2021).

In his capacities as Chairman of the IWF’s Anti-Doping Commission and Vice-President of the Romanian Olympic Committee Mr Vlad was also involved and supervised the FRH and IWF anti-doping activities. In particular the administration of Adverse Analytical Finding (AAFs) and anti-doping rule violations committed by FRH athletes.

In June 2021 the ITA, on behalf of the IWF, reported anti-doping rule violations against the Romanian weightlifter Roxana Cocos for the presence of a Prohibited Substance in her 13 April 2012 Sample and for resorting to sample substitution on 27 June 2012. Consequently on 26 November 2021, the ITA issued a decision imposing a lifetime eligibility on the Athlete for her multiple anti-doping rule violations.

ITA conducted an anti-doping investigation and thereupon reported anti-doping rule violations agains Mr Vlad for Tampering with the Doping Control process and for his complicity in covering the anti-doping rule violations committed by the Athlete Roxana Cocos.

After notification the IWF filed a request for Arbitration with the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) as first-instance authority. The Sole Arbitrator settled the case based on the Parties' written submissions.

The IWF contended that Mr Vlad knowingly did not enforce Ms Cocos’ Provisional Suspensions. The content of the emails of 20 and 24 July 2012 are abundantly clear: the Athlete was to be removed from the 2012 London Olympic Games and the fear of having her test positive (and not being able to conceal it) were expressly mentioned by the Mr Vlad. The fact that the email audit trail stops after 24 July 2012 is not only expected, but further corroborates the evidence of the ADRV.

Mr Vlad asserted that he is not subject to the IWF ADR; the 10-year statitute of limitation is not applicable in this case; and he denied that he had tampered the doping control process.

Following assessment of the Parties' written submissions and annexes the Sole Arbitrator concludes:

• Mr Vlad is bound by subsequent versions of the 2009 IWF ADR including the 2021 IWF ADR.
• The present case in not time-barred regarding the statutes of limitations.
• With knowledge and intent Mr Vlad acted complict in the anti-doping rules committed by the Athlete Cocos in 2012.
• A lifetime period of ineligibility is appropriate to the severity and Mr Vlad’s misbehaviour.

Therefore the Court of Arbitration for Sport decides on 16 June 2022 that:

1. The request for arbitration filed by the International Testing Agency on 22 December 2021, acting on delegation from the International Weightlifting Federation, against Mr. Nicu Vlad is upheld.
2. Mr Nicu Vlad is found to have committed violations of Article 2.8 of the 2009 International Weightlifting Anti-Doping Rules.
3. A lifetime Ineligibility is imposed on Mr Nicu Vlad starting on the date of this Award.
4. (…).
5. (…).
6. All other motions or prayers for relief are dismissed.