CAS 2019_A_6210 & 6277 Yang Gao vs OCA

CAS 2019/A/6210 & 6277 Yang Gao v. Olympic Council of Asia (OCA)

  • Athletics (shot put)
  • Doping (betamethasone)
  • Procedural flaws warranting annulation of the challenged decision (de novo hearing)
  • ADRV based on the presence of a prohibited substance in-competition
  • Interpretation of the Prohibited List
  • Entitlement of the athlete to a retroactive TUE

1. From a Swiss perspective, there is no uniform standard of independence with respect to adjudicatory bodies of associations. In particular, the majority of legal literature applies a lesser standard with regard to independence for association tribunals compared to state courts or arbitral tribunals. Furthermore, even if the members of an association tribunal were not sufficiently independent, such a procedural flaw may be healed in a proceeding before the CAS. According to Article R57 para. 1 of the CAS Code, the Panel has the full power to review the facts and the law. In principle, the de novo proceeding before the CAS cures any purported (procedural) violations that occurred in prior proceedings. There may be exceptions to this rule in case of exceptional circumstances. However, in any case, i.e. even if 2 members of the association’s disciplinary body were not sufficiently independent, such violation cannot be qualified as an irreparable breach of the applicable procedural standards. If the appellant has the opportunity to extensively present his/her case before the CAS, where all of his/her fundamental procedural rights are fully respected, any procedural flaw before the association’s disciplinary body fades to the periphery and is herewith cured.

2. It clearly follows from the applicable anti-doping regulations (ADR) that for an anti-doping rule violations (ADRV) based on presence of a Prohibited Substance it is irrelevant when the substance was administered. Instead, it suffices that the Prohibited Substance is still present in the athlete’s system in-competition.

3. Under Section S9 of the Prohibited List all glucocorticoids are prohibited when administered by intramuscular routes. The term “intramuscular” might appear clear and unambiguous at the outset i.e. injections of glucocorticoids into the muscle. Yet, to decide an important question related to the interpretation of the Prohibited List solely based on evidence submitted by one of the parties to the proceedings is not easy. Indeed, there could be a serious issue with regard to the principle of legal certainty in relation to Section S9 of the Prohibited List, should the term “intramuscular” injection be interpreted contrary to the ordinary meaning attached to such technical term by the relevant professional community. The question should be left open if – provided the route of administration was prohibited – the athlete was entitled to a Therapeutic Use Exemption (TUE).

4. The presence of a Prohibited Substance shall not be considered an ADRV if it is consistent with the provisions of a TUE granted in accordance with the International Standard for Therapeutic Use Exemptions (ISTUE). Under Article 4.1 ISTUE, 4 conditions are to be met for granting a retroactive TUE, namely (a) the Prohibited Substance is needed to treat an acute or chronic medical condition, (b) the therapeutic Use of the Prohibited Substance is highly unlikely to produce any enhancement of performance, (c) there is no reasonable therapeutic alternative, (d) the necessity for the use of the Prohibited Substance is not a consequence of the prior use of a prohibited substance or method. The administration of Glucocorticoids, a non-threshold substance is not prohibited out-of-competition. Thus, an athlete is permitted to treat an acute medical condition with Glucocorticoids out-of-competition. In addition, retroactive TUEs want to ensure that there is immediate treatment available to an athlete in situations where a prospective TUE cannot be granted in due time and there is a danger that a medical condition turns chronic further damaging the athlete’s health. The purpose of retroactive TUEs is to reasonably balance between the protection of the athlete’s health and the athlete’s responsibilities under the anti-doping program.



On 2 March 2019 the Disciplinary Commission of the Olympic Council of Asia (OCA DC) decided to disqualify the Athlete's results after she tested positive for the prohibited substance Betamethasone. Thereupon on 1 May 2019 the OCA decided  to dismiss the Athlete's application for a retroactive TUE.

Hereafter in March 2019 and in May 2019 the Athlete appealed both OCA decisions with the Court of Arbitration for Sport (CAS). The Parties agreed to consolidate both appeals and procedures.

The Athlete requested the Panel to set aside the Appealed Decisions of 2 March 2019 and 5 June 2019 and to deem that she had not committed an anti-doping rule violation. She denied the intentional use of the substance and accepted the test results.

She explained that the substance was used as prescribed medication as valid treatment for her acute medical condition and administered by her doctor out-of-competition. The medication was mentioned on the Doping Control Form and reported by her doctor to the OCA Medical Committee.

Further the Athlete alleged that procedural flaws occurred in the proceeding before the OCA DC due to two members of the Panel were not impartial and independent.

The OCA requested the Panel to dismiss the Athlete's appeal and denied that any procedural flaws had occurred in the proceedings before the OCA DC. The OCA contended that the Athlete used the Betamethasone in-competition and the injection was a prohibited route of administration.

Further the OCA contended that the found concentration in the Athlete's samples is of no relevance. Moreover in accordance with the Rules there are no grounds to grant a retroactive TUE.

The Panel assessed and addressed the following issues:

  • 1.) Should the Decision be annulled for procedural flaws?
  • 2.) Did the Athlete commit an ADRV?
  • 3.) In case the aforementioned question (2) is answered positively, are the criteria for granting a retroactive TUE fulfilled?

The Panel determined that the members of the OCA DC were sufficiently independent whereas any procedural flaw may be healed in a proceedings before the CAS. The Panel finds that the substance was present in the Athlete's system in-competition while it is irrelevant when the substance was administered.

The Panel has serous doubts whether the term intramuscular in Section S9 of the Prohibited List covers the route of administration in question here. In view of the evidence the Panel concludes there was no reasonable therapeutic alternative for the administration of Betamethasone by the Athlete's doctor.

Consequently the Panel deems that the Athlete had not committed an anti-doping rule violation and the Athlete's appeals against both OCA Decisions must be upheld.

Therefore the Court of Arbitration for Sport decides on 20 February 2020 that:

1.) The appeals filed by Ms Yang Gao on 25 March 2019 and 13 May 2019 are upheld.

2.) The decision of the TUE Sub-Commission of the Olympic Council of Asia dated 1 May 2019 is set aside. Ms Yang Gao is granted a retroactive Therapeutic Use Exemption for the local injection of glucocorticoids administered to her on 24 August 2018. Consequently, the decision of the Disciplinary Committee of the Olympic Council of Asia dated 2 March 2019 is set aside.

3.) (…).

4.) (…).

5.) (…).

6.) All other and further motions or prayers for relief are dismissed.

Original document

Parameters

Legal Source
CAS Appeal Awards
Date
20 February 2020
People
Carrard, Olivier
Haas, Ulrich
Vittoz, Boris
Original Source
Court of Arbitration for Sport (CAS)
Country
China
Language
English
ADRV
Adverse Analytical Finding / presence
Legal Terms
De novo hearing
Fair trial / procedural fairness
Impartiality / independence of the arbitrator
International Standard for Therapeutic Use Exemptions (ISTUE)
No intention to enhance performance
Nulla poena sine culpa
Procedural error
WADA Prohibited List International Standard
Sport/IFs
Athletics (WA) - World Athletics
Other organisations
Olympic Council of Asia (OCA)
Laboratories
Doha, Qatar: Antidoping Lab Qatar, Doping Analysis Lab
Analytical aspects
B sample analysis
Doping classes
S9. Glucocorticosteroids
Substances
Betamethasone
Medical terms
Legitimate Medical Treatment
Physical injury
Therapeutic Use Exemption (TUE)
Document type
Pdf file
Date generated
16 February 2023
Date of last modification
20 March 2023
Category
  • Legal Source
  • Education
  • Science
  • Statistics
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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
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Origin