CAS 98/211 B. / Fédération Internationale de Natation (FINA)

Related case:

FINA 1998 FINA vs Michelle Smith de Bruin
August 6, 1998

• Swimming
• Doping (testosterone)
• Hearing de novo
• Compliance with the testing procedure
• Burden of proof

1. The virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance fade to the periphery. The CAS appeals procedure allows any defects in the hearing before the first instance tribunal to be cured by the hearing before CAS.

2. The standard of proof required of the federation is high: less than the criminal standard, but more than the ordinary civil standard. To adopt a criminal standard (at any rate, where the disciplinary charge is not a criminal offence) is to confuse the public law of the state with the private law of an association.

In April 1998 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Irish swimmer Michelle Smith de Bruin.

The Athlete's sample was taken for a out-of-competition doping test at the her home in January 1998 and analysis of the urine samples showed the presence of alcohol. The concentration of alcohol (whiskey odor) was too high to be produced naturally and indicated physical manipulation. As a result the FINA Doping Panel decided on 6 August 1998 to impose 4 year period of ineligibility on the Athlete.

Hereafter in September 1998 the Athlete appealed the FINA decision with the Court of Arbitration for Sport (CAS).

The Athlete disputed the validity of the chain of custody of her sample and asserted that the sample tested at the Barcelona Lab was in fact not her sample.Further the Athlete claimed that, if the sample tested was her sample, it had been manipulated by a person other than the Athlete herself.

Following assessment of the evidence regarding the process of collecting, transporting and testing of the Athlete’s samples the Panel establishes that there was no breach in the chain of custody. Accordingly the Panel concludes that in fact it was the Athlete’s sample that had been tested.

The Panel concludes that the Athlete had the opportunity to manipulate her sample and had the motive to do so if she was in fact engaged in the use of illicit substances. In this matter the Panel’s addressed the conclusion of the Barcelona Lab about the analysis of the Athlete’s A and B samples:

“Additional laboratory results obtained with the sample (especially, steroid profile and isotope ratio mass spectrometry measurements) suggest the administration of some metabolic precursor of testosterone. Longitudinal follow up is recommended.”

The Panel holds that there is unchallenged evidence that what was, even at the date of the testing, a banned substance (because it fell within the general category of substances related to those specifically listed) was found in the Athlete's urine; there is, therefore, actual evidence before the Panel that there was something to conceal. Not only was the manipulation not wholly successful, but there was an obvious motive for it.

Therefore the Court of Arbitration for Sport hereby decides on 7 June 1999:

1.) The Appeal filed by Michelle Smith de Bruin on 2 September 1998 is dismissed.

2.) The decision issued by the FINA Doping Panel on 6 August 1998 is confirmed.

(...)

Compulsive weight lifting and anabolic drug abuse among women rape victims / A.J. Gruber, H.G. Pope Jr

• Comprehensive Psychiatry 40 (1999) 4 (July/August); p. 273-277
• PMID: 10428186
• DOI: 10.1016/s0010-440x(99)90127-x

Abstract

In the course of a study of 75 female weight lifters, we encountered 10 (13%) who reported that they were raped as teenagers or adults. Nine of these women began or greatly increased their weight lifting activities after the assault to be better able to defend themselves against men. Seven began abusing anabolic steroids and/or clenbuterol to gain muscle mass. Compulsive weight lifting and anabolic substance abuse may represent another form of response to the trauma of sexual assault.

The doping cases and the need for the International Court of Arbitration for Sport (CAS) / Tricia Kavanagh
In: UNSW Law Journal, no. 3 (Vol. 22) p. 721-745

There is a long recorded history of the use by athletes of substances for performance enhancement. The use of substances in the form of drugs was officially recognised after the 1928 Winter Olympics when the International Federation of Sports Mediation (FIMS) was established as a forum to discuss doping in sport. Slowly an awareness grew in the international community that athletes were competing assisted by drugs to enhance performance. This awareness became sharper after the Second World War when amateur sporting events became much more competitive. France enacted anti-doping legislation in 1963, Belgium in 1965. Other countries followed suit. There were attempts to detect drug use at the 1964 Tokyo Olympics but such attempts were not successful. When prominent athlete Tommy Simpson died in the Tour de France and his death was exposed as drug induced, it led to the International Olympic Committee (IOC) establishing a Medical Commission (the IOCMC). Historically this became one of the most significant developments, as through the Medical Commission was published the International Charter Against Doping in Sport (now known as the IOC Medical Code) was published. The Charter included a ‘list’ of banned substances, which was used as the foundation for all drug testing programs in sport around the world. It is now annually reviewed by the IOCMC. Its contents are often challenged. The Charter provides:

• guidelines as to functions and penalties;
• a model national anti-doping program;
• the list of doping classes and methods of doping; the requirements for accreditation of laboratories and laboratory practice; the standard operating procedures for doping control; the rights, responsibilities and status of athletes and their entourages;
• and, principles and guidelines for in and out of competition testing.

Up until the International Charter Against Doping in Sport, anti-doping efforts had been somewhat ad hoc. However, when the preeminent sports organisation, the IOC, set a standard and imposed it upon its sporting federations an imprimatur was given to policies committed to drug free sport. Over the last ten years, international co-operation and initiatives improved as drug testing programs were put in place by National Olympic Committees (NOCs) (for example the Australian Olympic Committee (AOC)), international and national federations (ISFs and NSOs) through their rules and by-laws, and by governments through legislative reform or administrative process (for example the Australian Sports Drug Agency (ASDA)).
However, three impediments to successful anti-doping programs were quickly exposed. There was a lack of harmonisation and consistency of procedures and accountability for the integrity of the urine testing. Secondly, there was a lack of agreement between sports federations internally between national and international organisations and externally between the various sports as to the appropriate sanctions for breaches. Thirdly, when doping disputes went to the sporting tribunals and from the tribunals to domestic courts on appeal, there developed an awareness and appreciation of the need for sound jurisprudential and equitable principles in the hearing of doping disputes. In response to these impediments, the sports organisations have attempted to harmonize sanctions and testing procedures. However, the sports tribunals have met some difficulties as they have traveled through the legal labyrinth revealed by sports appeals, particularly appeals from positive findings of drug use.

In examining the legal complexities and legal principles revealed in the doping cases, this paper traces the steps taken by parties involved in sports law to bring consistency and integrity to international sports law through the establishment by revised rules and procedures of an International Court of Arbitration for Sport (CAS). The role of the CAS was praised by Ms Watt’s Counsel, David Grace QC, as a “terrific way” of settling disputes. He stated: This is a perfect system for settling these disputes in an atmosphere that's much more relaxed, where the procedures are easy to comply with and the dispute can be heardquickly, efficiently and inexpensively.
The Court is an independent forum which allows each side to put its case anyway it likes. The procedures are often moulded to suit the subject matter of the hearing and the ordinary rules of evidence don not necessarily apply.
The fundamental question now is the extent to which national courts will follow the Swiss lead in recognizing and enforcing CAS awards in the face of due process or public order claims. The result will be what Nafziger calls “a blending of national and international institutions into a single process of justice that avoids judicial complexity”. This is the voice of the hopeful, who have been perplexed by the anomalies that have developed in the jurisprudential principles so far enunciated in doping disputes.

Normative trends confirm the growing commitment of national legal systems to the process of international sports law. Adjudication is a last resort. If there should be adjudication it is hoped the CAS provides the final orders.
Nevertheless, as jurisprudential principles flow from the CAS, effective monitoring must be built into the process to protect the interests of all parties. It is imperative that the court promptly publish reasons for any decisions it makes. Gradually through arbitrary decisions a distinctive lex specialis should emerge.
The motivation behind the establishment and recognition of the CAS has been to protect the interests of international sporting competition while giving due recognition to the legal rights of the athletes. The process of refining its procedural rules must be a continuous one. There is no room for complacency.

CAS A3/1999 & CAS A4/1999 Australian Olympic Committee & Australian Handball Federation vs A.

CAS (Oceania registry) A3, A4 / 99; Australian Olympic Committee (AOC) and Australian Handball Federation (AHF)/ A.,

Handball
Doping (salbutamol)
Extenuating circumstances

1. Any form of medication should be first considered and authorised by a medical practitioner who is familiar with the anti-doping regulations of both the AOC and the particular sport. An elite athlete should be aware of possible risks and must normally bear some responsibility for such an enquiry.

2. In the present case, given the age of the athlete, his history of medical need for a medication containing salbutamol, his prior written advice that he was taking this medication to the State Body of the AHF and the fact that responsible officials within the AHF had assisted him with this medication in the past, the athlete has committed a technical breach of the anti-doping policies but bears no moral responsibility for the breaches and that he was not in any way culpably involved in the breaches.

In October 1998 the Australian Athlete tested positive for the prohibited substance salbutamol which he used as prescribed medication Ventolin for his asthma.

The alleged breach of the Australian Handball Federation (AHF) anti-doping policy occurred on the day following the adoption by the AHF of its anti-doping policy. On Sunday 11 October 1998 The Athlete A. was participating in an event in Victoria. Even though it was the day after the AHF had adopted its anti-doping policy and the anti-doping control officer was present, neither the officer nor any other team official told the Athlete A. or any other member of the team or participant that the AHF had adopted an anti-doping policy.

Considering the circumstances the sole arbitrator is satisfied that extenuating circumstances do exist within the meaning of both anti-doping policies and that no sanction should be imposed on the Athlete A. The evidence establish that A. did not know or suspect that the relevant substance was prohibited and had no reasonable grounds to know or suspect that the substance was prohibited.

The Court of Arbitration for Sport decides on 2 August 1999 that:

1.) On 11 October 1998, the Respondent A. committed a breach of the AOC Anti-Doping Policy and the AHF Anti-Doping Policy in that there was present in his body tissues or fluids substances belonging to classes of pharmacological agents which were prohibited, namely the substance Salbutamol which was present as a result of his inhalation of an anti-asthmatic medication Ventolin.
2.) On the balance of probabilities extenuating circumstances do exist and that as a result of those extenuating circumstances there should be no sanction imposed on A.

CAS 98/222 B. / International Triathlon Union (ITU)

• Triathlon
• Doping (nandrolone)
• Threshold for endogenous substances
• Strict liability
• In dubio pro reo

1. Low concentrations of nandrolone metabolites no longer permit a reliable conclusion as to the ingestion of nandrolone. In other words, it appears to be beyond scientific doubt that such low concentrations falling within what is often referred to as the “grey zone” (i.e., concentrations between 2,0 and 5,0 ng/ml), can as well be the result of endogenous production of the human body. When the concentration of nandrolone falls within the “grey zone”, the likelihood that nandrolone is produced endogenously, is decreasing exponentially within the limits of the “grey zone”.

2. The rule on strict liability is essential and indispensable for an efficient fight against doping in sport and for the protection of fairness towards all competitors and of their health and well-being. The principle of strict liability rule does not exempt the sports federations to prove the existence of a doping offence. The effect of any rule of law imposing strict liability is merely to render obsolete the proof of guilt on the part of the person subjected to the regime of strict liability, while on the other hand such rule does not eliminate the need to establish the wrongful act itself and the causal link between the wrongful act and its consequences.

3. The legal impact of a “grey zone” should be reflected in a rule that, in such cases, the sanctioning body can no longer rely on legal presumption that the presence of a prohibited substance is a consequence of external application, but should provide additional evidence supporting this presumption, or, at least, excluding all other causes.

In June 1998 the Swiss Triathlon Federation (STF) has reported an anti-doping rule violation against the Athlete B. after his A and B samples tested positive for the prohibited substance 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

Consequently on 10 December 1998 the STF Doping Commission decided to impose a 1 year period of ineligibility on the Athlete.

Hereafter in December 1998 the Athlete appealed the STF Decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel te set aside the Appealed Decision and to annul the imposed sanction.

In this case the Panel determines that this is a typical example of multiple and possibly parallel causes leading to the presence of the forbidden substance. The Panel considers that it would be unrealistic to require from the Athlete to establish that the presence of metabolites was not and could not have been the external application of Nandrolone: even if alleged by the athlete, it could hardly be supported by convincing evidence.

The Panel concludes that the Athlete has established at least a probability that the concentrations of Nandrolone metabolites found in his urine were a result of endogenous production of his body. Although it is clear that the Athlete was unable to prove with certainty such endogenous production, the evidence provided can be deemed sufficient to create reasonable doubt concerning external application.

Therefore the Court of Arbitration for Sport decides on 9 August 1999:

1.) The appeal lodged by B. is upheld.

2.) The decision of the ITU Hearings and Appeals Board of 10 December 1998 is hereby cancelled.

3.) The suspension of the Appellant for a one-year period (from 1 September 1998 until 31 August 1999), pronounced by the Swiss Triathlon Federation on 29 August 1998 is lifted.

4.) The disqualification of the Appellant from all competitions between 7 June 1998 and 31 August 1998, pronounced by the Swiss Triathlon Federation on 29 August 1998 is cancelled; the results and titles achieved by the Appellant during this period are confirmed.

5.) The award is pronounced without costs, except for the Court Office fee of CHF 500.-- paid by the Appellant and which is kept by the CAS.

6.) The Respondent shall reimburse to the Appellant the half of the Court Office fee in the amount of CHF 250.--; moreover, each party shall bear its own costs.

CAS 99/A/223 International Tennis Federation (ITF) / K.

• Tennis
• Doping (nandrolone)
• Collection procedure
• Exceptional circumstances

1. Pursuant to the ITF Anti-doping Programme, any deviation or deviations from the anti-doping control procedures, including, but not limited to, sample collection, chain-of-custody or laboratory analysis, do not invalidate any finding, procedure or positive test result, unless that deviation or deviations raises a material doubt as to the reliability of the finding, procedure, decision or positive test result.

2. It is for the ITF to establish with appropriately convincing evidence the existence of a doping offence, including compliance with anti-doping control procedures. A player who seeks to rely upon 'Exceptional Circumstances' to mitigate penalty must do so on the balance of probabilities. Exceptional circumstances are defined to mean that circumstances occurred in which the player had no knowledge that he had taken or been administered the prohibited substance found in his body.

In March 1999 the ITF filed an Appeal with the Court of Arbitration for Sport (CAS) against the light sanction imposed on K. after his A and B samples tested positive for 19-norandrosterone and 19-noretiocholanolone (Nandrolone).

The Court of Arbitration for Sport decides on 21 August 1999:

1.) The appeal by the ITF is upheld.
2.) The decision of the Appeals Committee of the ITF of 22 December 1998 shall be modified as follows:
K. is suspended for a period of 12 months from 1 September 1999 to 31 August 2000.
(...)

CAS (Oceania registry) A 2/99 Australian Olympic Committee (AOC) and Amateur Boxing Union of Australia Inc (ABUA) / E.

Boxing
Doping (terbutaline)
Obligation to declare the use of such substance
Good faith of the athlete

1. Terbutaline is a bronchodilator and, according to the IOC list of prohibited substances, is permitted by inhaler only when its use is previously certified in writing by a respiratory or team physician to the relevant medical authority. It is clear that there cannot be more than one relevant medical authority. Further, the athlete must know, or be able readily to ascertain, to whom the giving of such certification will operate so as to take Terbutaline off the prohibited substance list. It cannot be left to the AOC in an action against an athlete and, a fortiori, after the event, to say who it might in its discretion have treated as satisfying the description.

2. If one requires of athletes that they maintain enquiries, it is surely the correlative duty of all those sporting bodies involved in the important fight against drugs in sport to likewise keep up to date and to ensure the steady dissemination to athletes and their coaches - not just of information - but of information which is unambiguously correct. There is a common cause against drugs in sport and actions directed towards that end are necessarily well intentioned. However, little can be achieved in a fog of uncertainty. If sporting bodies do not provide the right information, then it is quite unfair that athletes alone should bear the significant consequences.

In November 1998 the Australian Athlete E. tested positive for the prohibited substance terbutaline which he used as prescribed medication Bricanyl for his asthma.

The Athlete believed that notification on the drug testing form of asthma medication being taken would suffice. This view was consistent with the view of the ABUA communicated in October 1998 to its State Officials. It was not disputed that the Athlete did not know that Terbutaline was a prohibited substance. The sole question for the CAS Panel is whether the Athlete has established, on the balance of probabilities, that not only did he not suspect that it was a prohibited substance, but that he had, as on 1 November 1998, no reasonable grounds to know or suspect that Terbutaline was a prohibited substance.

The Sole Arbitrator finds that the Athlete has established on the balance of probabilities that “extenuating circumstances” as defined exist. In particular the evidence did not establish that, prior to November 1998, Terbutaline was listed as a component of Bricanyl either on the packaging or in an accompanying leaflet.
If sporting bodies do not provide the right information, then it seems to the arbitrator to be quite unfair that Athletes alone should bear the significant consequences.

Therefore the Court of Arbitration for Sport decides on 2 September 1999 that:

1.) A warning is imposed on the Respondent E.
2.) The Award should be made public.

AUSTRALIAN SPORTS DRUG AGENCY 1998-1999 ANNUAL REPORT
© Commonwealth of Australia
ISSN 1037-378

Abbreviations 6
1. EXECUTIVE SUMMARY 7
Chairperson's summary , 9
Board of directors 13
2. ORGANISATIONAL OVERVIEW 15
ASDA at a glance , 17
Establishment 17
Role 17
Clients 17
Services 17
Goals 18
Vision _ 18
Mission IS
Core values 18
People 18
Financial and staffing outcomes for 1998-99 19
3. PERFORMANCE REPORT 21
Planning and performance management framework 23
Critical success factors 25
Quality of products and services 27
Communication 33
Client focus 39
Strategic alliances 43
Accountability 47
Staff partnerships 49
Strategic breakthrough issues 53
Enhance the credibility and affordability of our drug testing service 55
Grow the business 59
Invest in our people 61
Play a leading role in the development of drugs-in-sport policy in Australia 65
4. OTHER CORPORATE MATTERS 69
Miscellaneous statutory issues 71
Client service charter 71
Internal and external scrutiny 71
Equal employment opportunity 71
Workplace diversity 71
Occupational health and safety 71
Discretionary grants 72
Freedom of information 72
Staffing overview 72
Compliance index 74
5. APPENDICES 77
Appendix A: The objects, functions and powers of the agency
are specified in the ASDA Act 79-80
Appendix B: Powers of the Minister under ASDA Act 81
Appendix C: Financial Statements 83-101
Appendix D: International list of incidences 103
Appendix E: ASDA's drug testing for 1998-99 105-110
Appendix F: Register of notifiable events 111-114
Appendix G: Accredited laboratories 115-121
Index 123
Figures
Figure 1 ASDA's organisational structure 19
Figure 2 Tests conducted vs tests planned per bimonthly plan 29
Figure 3 Drugs in Sport Handbook, Hotline and Wallet Card statistics for 1997-98 and 1998-99 35
Figure 4 External client satisfaction 40
Figure 5 Staffing numbers, classifications and genders 73
Figure 6 Staffing employment breakdown 74

Tables
Table 1: Expenditure and staffing 19
Table 2: Quality of products and services performance indicators 27
Table 3: Communication performance indicators 34
Table 4: Client focus performance indicators 39
Table 5: Strategic alliance performance indicators 44
Table 6: Accountability performance measures 47
Table 7: Staff partnership performance indicators 50
Table 8: Enhance the credibility and affordability of our drug testing service milestones 56
Table 9: Grow the business milestones 59
Table 10: Invest in our people to build a dynamic, innovative and client focused organisation milestones 61
Table 11: Training implemented for competency development 62
Table 12: Play a leading role in the development of drugs-in-sport policy in Australia 65
Table 13: Compliance index 75

Detection of anabolic residues in misplaced implantation sites in cattle / Andreas Daxenberger, Iris G. Lange, Karsten Meyer, Heinrich H.D. Meyer. - (Journal of AOAC International 83 (2000) 4 (July-August); p. 809-819). - PMID: 10995107

Abstract

Eight weeks before slaughter, 26 heifers, 2 calves, and 1 steer were implanted with licensed anabolic preparations at off-label injection sites. After slaughter, 24 of 31 implantation sites (77%) were detected. Residual pellets of Revalor H contained a mean of 42.9 mg trenbolone acetate (range 19.8-57.7 mg) and 4.6 mg (1.96-6.45 mg) estradiol, corresponding to 30% (19.8-57.7%) and 32.7% (14.0-46.6%) of the originally applied dose, respectively. In the tissue areas containing residual Revalor H pellets, total residues ranged from 14.8 microg to 12.6 mg trenbolone acetate, 41.7 microg to 1.45 mg trenbolone, and 11.1 microg to 3.39 mg estradiol. The outer tissue areas of the injection sites contained <2 microg hormones. The preparations Synovex H, Finaplix H, Implus S, and Component EC behaved similarly to Revalor H. Residues of Synovex Plus were low, whereas the Compudose silicone rubber contained 58.8% of the implanted dose, but left no significant tissue residues. If implantation sites are processed in meat manufacturing, international threshold levels of the respective substances will be exceeded in tons of meat products.

Gas chromatographic-tandem mass spectrometric determination of anabolic steroids and their esters in hair. Application in doping control and meat quality control / Y. Gaillard, F. Vayssette, A. Balland, G. Pépin

• Journal of Chromatography B: Biomedical Sciences and Applications 735 (1999) 2 (10 December), p. 189-205
• PMID: 10670734
• DOI: 10.1016/s0378-4347(99)00416-8

Abstract

We have developed a powerful and simple sensitive method for testing hair for anabolic steroids and their esters. A 100-mg amount of powdered hair was treated with methanol in an ultrasonic bath for extraction of esters, then alkaline digested with 1 M NaOH for an optimum recovery of other drugs. The two liquid preparations were subsequently extracted with ethyl acetate, pooled, then finally highly purified using a twin solid-phase extraction on amino and silica cartridges. The residue was derivatized with N-methyl-N(trimethylsilyl)-trifluoracetamide (MSTFA) prior to injection. Analysis was conducted by gas chromatography coupled to a triple quadrupole mass spectrometer. The generally chosen parent ion was the molecular ion while two daughter ions were selected for each compound with collision energies ranging from -16 to -21 eV. Internal standards were nandrolone d3 for non-esterified drugs and testosterone phenyl propionate for esters. The limits of detection calculated from an analysis of the blanks (n=30) were 0.08 pg/mg for nandrolone, 6.20 pg/mg for boldenone, 0.07 pg/mg for methyl testosterone, 0.15 pg/mg for ethinyl estradiol, 2.10 pg/mg for metandienone, 0.86 pg/mg for testosterone propionate, 0.95 pg/mg for testosterone cypionate, 1.90 pg/mg for nandrolone decanoate, 3.10 pg/mg for testosterone decanoate and 4.80 pg/mg for testosterone undecanoate. Application to doping control has been demonstrated. In a series of 18 sportsmen, two tested positive for anabolic steroids in hair whereas urinalysis was negative for both of them. The first positive case was nandrolone and the second case concerned the identification of testosterone undecanoate. Measured in 10 white males aged between 22 and 31 years, the testosterone concentration was in the range 1.7-9.2 pg/mg (mean=5.0 pg/mg). The method was also applied in meat quality control. Of the 187 analyses realized based upon hair and urine sampling in slaughter houses, 23 were positive for anabolic steroids in hair: one case for boldenone, one case for metandienone, two cases for testosterone propionate, three cases for nandrolone, five cases for testosterone decanoate and 11 cases for methyl testosterone. In the meantime, urinalysis was always negative for these drugs or their metabolites.