CAS 2010/A/2311

CAS 2010/A/2312

CAS 2010/A/2311 & 2312 Stichting Anti-Doping Autoriteit Nederland (NADO) & the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) v. W.

Related cases:

• Dutch District Court 2009 Athlete 2009005 vs KNSB and Dopingautoriteit
  June 9, 2009
• KNSB 2009 KNSB Preliminary Decision Disciplinary Committee 2009005 TU1
  September 8, 2009
• Dutch District Court 2010 Athlete 2009005 vs KNSB
  September 30, 2009
• KNSB 2009 KNSB Preliminary Decision Disciplinary Committee 2009005 TU2
  October 15, 2009
• KNSB 2009 KNSB Preliminary Decision Disciplinary Committee 2009005 TU3
  December 2, 2009
• KNSB 2010 KNSB Decision Disciplinary Committee 2009005 T
  March 12, 2010
• KNSB 2010 KNSB Preliminary Decision Appeal Committee 2009005 TU4
  July 6, 2010
• KNSB 2010 KNSB Decision Appeal Committee 2009005 B
  November 26, 2010
  
  

• Skating
• Doping (norandrosterone)
• Arbitration agreement and waiver of access to public courts
• Unequal bargaining power and renouncement of the right of access to public court
• Specific advantages of arbitration in the field of sports
• Arbitration under Dutch Law
• Non-applicability of Art. 6.3 ECHR to sport-related disciplinary proceedings
• No need for explanation for the analysis of the B sample
• Application of doping rules to minors

1. Switzerland is a contracting party to the European Convention on Human Rights (ECHR), but whether or not the ECHR is applicable to arbitration in general or to arbitration agreements specifically, is open to questions. The case law of the Swiss Federal Tribunal insofar lacks a clear line. The jurisprudence of the European Court of Human Rights (ECtHR) as to articles 6.1 and 7 ECHR holds that by concluding an arbitration agreement the parties validly renounce their right of access to public courts in the sense of article 6.1 ECHR.

2. The fact that one party may have more bargaining power than the other does not invalidate the fact that by concluding an arbitration agreement, the parties renounce their right of access to public court. If – according to the jurisprudence of the ECtHR – the right of access to the courts enshrined in Art. 6.1 ECHR can be subject to a weighing up in the event that arbitral jurisdiction is prescribed by statute, then the same must apply also in a case of unequal bargaining power. Therefore, only if there were no reasons in terms of “good administration of justice” in favour of arbitration a violation of article 6.1 ECHR could be acknowledged.

3. In addition to the general advantages which arbitration is said to have, there are specific advantages of arbitration in the field of sports. The principle of uniformity in sport is a defining characteristic of organised sport – particularly at an international level. For, in order to be able to compare sports performance internationally, competitive sport must be performed in accordance with the same and uniform rules. The consistency of rules and decisions is therefore an essential feature of international sport. However, the risk to consistency increases with the number of fora before state courts and – as a consequence thereof – of national legal standards that apply. This is not only contrary to the interests of sports organisations, but also to the interests of an individual athlete. For, the latter has only submitted to a sports federation's sovereignty because he believed his competitors to be bound in the same way. If therefore sport wishes to preserve its global character and the principle of uniformity this is only possible by concentrating jurisdiction at a single forum in the form of arbitration.

4. With regard to arbitration, Dutch law follows general European legal standards. The relevant provisions of the Dutch Code of Civil Procedure do neither restrict the parties’ autonomy to submit a dispute to arbitration in the case of a child or minor, in case of a Dutch or other European citizen, nor do they limit arbitration to the obligatory use of the Dutch language by the arbitration bodies.

5. Art. 6.3 ECHR applies to criminal proceedings only. According to Swiss Law, sport-related disciplinary proceedings conducted by a sport federation against an athlete are qualified as civil law disputes and not as criminal law proceedings. This finding is also in line with constant CAS jurisprudence.

6. According to the World Anti-Doping Code (WADC), the Anti-Doping Organization has the discretion to have the B sample analysed even if the athlete does not request its analysis. No explanation is needed and no violation of the WADC takes place.

7. There is no special anti-doping regime for minors. However, the young age of an athlete can be taken into account inasmuch as it has an impact on the athlete’s fault.

In February 2009 the Royal Netherlands Skating Association (KNSB) reported an anti-doping rule violation against the minor Athlete after his A and B samples tested positive for the prohibited substance Norandrosterone (Nandrolone). After notification a provisional suspension was ordered by the KNSB.

The Athlete seeked annulment of the disciplinary proceedings and sanctions. As a result between 2009 and 2011 a number of proceedings and appeals followed in the dispute between the Athlete, the KNSB and the Dopingautoriteit.

• On 9 June 2009 the Dutch District Court dismissed the Athlete’s objections about the validity of the sample collection and violation of his rights.
• On 8 September 2009 the KNSB ruled in the 1# Preliminary Decision about the validity of the sample collection and the validity of the test results for which a independent expert is appointed and the Dopingautoreit is ordered to provide additional information about the laboratory procedures and protocols.
• On 30 September 2009 the Dutch District Court dismissed the Athlete’s request to lift the provisional suspension.
• On 15 October 2010 the KNSB Disciplinary Committee ruled in the 2# Preliminary Decision about the possibility for lifting the provisional suspension for which a new hearing is ordered.
• On 2 December 2009 the KNSB Disciplinary Committee ruled in the 3# Preliminary Decision that the imposed provisional suspension will expire in February 2010 when the KNSB has not rendered a final decision against the Athlete.
• On 12 March 2010 the KNSB Disciplinary Committee dismissed the Athlete’s arguments about the validity of the test results and decided to impose a 1 year period of ineligibility on the Athlete and 1 year probationary period until November 2011.
• On 6 July 2010 the KNSB Appeal Committee ruled in the 4# Preliminary Decision that under the Rules the costs for an expert investigation shall be borne by the KNSB.
• On 26 November 2010 the KNSB Appeal Committee decided to annul the KNSB Disciplinary Committee decision of 12 March 2010 because of the KNSB’s refusal to provide additional documentation to verify the validity of the laboratory testing method as violation of the Athlete’s right of defence.

Hereafter in December 2010 the Dopingautoriteit and the KNSB appealed the KNSB Appeal Committee Decision of 26 November 2010 with the Court of Arbitration for Sport (CAS). The Dopingautoriteit and the KNSB requested the Panel to set aside the decision of the KNSB Appeal Committee and to impose a 2 year period of ineligibility on the Athlete.

They argued that the Athlete’s samples tested positive for the prohibited substance; that no departure occurred of the ISL in the accredited laboratory; and that the Athlete’s right of defence was not violated.

The Panel determines that the Athlete was non-cooperative during the proceedings before the CAS. Instead he submitted numerous letters in Dutch or English language, which did not relate to the facts of the case.

Furher the Panel assessed the facts of the case at hand not only on the submissions of the Dopingautoriteit and KNSB as well as in the decisions rendered by the KNSB Disciplinary Committee, the KNSB Appeal Committee and the two Dutch District Courts.

Considering the evidence in this case the Panel concludes that the Athlete’s samples tested positive for the prohibited substance Norandrosterone (Nandrolone) and that no departure from the ISL occurred in this case.

Therefore the Court of Arbitration for Sport decides on 22 August 2011:

1.) The appeals filed by the Stichting Anti-Doping Autoriteit Nederland (NADO) on 15 December 2010 and by the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) on 16 December 2010 against the decision of the KNSB’s Appeals Committee dated 26 November 2010 are upheld.

2.) The decision of the KNSB’s Appeals Committee of 26 November 2010 is set aside.

3.) W. is guilty of an anti-doping rule violation committed on 31 January 2009.

4.) The decision of the KNSB Disciplinary Committee of 12 March 2010 is reinstated.

5.) (...)

Related cases:

• CAS 2011_A_2566 Andrus Veerpalu vs International Ski Federation
  March 25, 2013
• CAS 2020_ADD_7 ISF vs Andrus Veerpalu
  March 17, 2021
• CAS 2020_A_6781 Andrus Veerpalu vs FIS
  July 21, 2020

In February 2011 the International Ski Federation (FIS) has reported an anti-doping rule violation against the Estonian skier Andrus Veerpalu after his A and B samples tested positive for the prohibited substance recombinant Human Growth Hormone (hGH) at the same time that the Athlete announced his retirement from professional cross-country skiing.

After notification the Athlete filed a statement with evidence in his defence and he was heard for the FIS Doping Panel.
Supported by an expert witness the Athlete disputed the circumstances of collecting and handling of the samples and the reliability and suitability of the method used to verify the existence of recombinant hGH.

The FIS Doping Panel went on to reject the Athlete’s argument that the delay between the analyses of the A- and B-samples affected the accuracy of the Test. The Doping Panel instead accepted the submissions of WADA that any effects from the delay would have led to a false negative result, rather than a false positive. In relation to the collection and handling of the samples, the FIS Doping Panel found that the crucial question was whether the Laboratory found any irregularities in the samples that prevented it from carrying out the Test. As no such irregularities were noted, the Doping Panel rejected the Athlete’s argument that the samples were no longer fit for testing at the time they had arrived at the Laboratory.

The Athlete submitted that “long and hard training” prior to the collection of the samples could affect the results. However, the Doping Panel noted that the Athlete’s experts did not contest that hGH levels would return to normal within two hours of exercise. As there were two hours and ten minutes between the training and blood sample collections, the Doping Panel held that the training could not have affected the results either.

The Doping Panel questioned whether the samples were actually collected under hypobaric conditions, as argued by the Athlete. The Athlete had alleged that the samples were collected in such high altitude conditions and that this had the potential to affect the results of an hGH test. The FIS Doping Panel ultimately left this issue open, but nevertheless stated that it was not convinced that such conditions would have had a decisive impact on the Test results.

The FIS Doping Panel was satisfied that the Laboratory was WADA-accredited and that the LDOC contained all data required by WADA to constitute sufficient evidence for establishing an AAF. As to the possibility of the Athlete’s genetic profile to affect the outcome of the analysis, the Doping Panel found that such an argument was unsubstantiated and was not supported by specific evidence. With regard to the labeling of the Test kits as “for scientific use only”, the Doping Panel held, first, that Dr. Laasik had signed the witness protocol at the opening of the B sample without any reservations; and second, that the Athlete’s experts had not explained how the labeling of the Test kit could have affected the Test results.

The Panel concludes that the Adverse Analytical Finding of hGH in the Athlete’s blood had been proven in violation of the FIS ADR. Therefore on 21 August 2011 the FIS Doping Panel decides to impose a 3 year period of ineligibility on the Athlete starting on the date of his retirement, i.e. 23 February 2011.

CAS 2011/A/2398 World Anti-Doping Agency (WADA) v. World Triathlon Corporation (WTC) & Timothy Marr, partial award of 19 August 2011

Related case:

CAS 2011_A_2398 WADA vs WTC & Timothy Marr - Final Award
February 20, 2012

• Triathlon
• Doping (amphetamine)
• Characterization of Adderall

The component ingredients of Adderall include amphetamine, which is specifically included on the Non-Specified Stimulants list. Therefore, Adderall is a Non-Specified Stimulant.

On 22 February 2011 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 6 month period of ineligibility on the Athlete Timothy Marr after his A and B samples tested positive for the prohibited substance Amphetamine.

Hereafter in April 2011 the World Anti-Doping Agency (WADA) appealed the AAA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the AAA decision of 22 February 2011 and to impose a 2 year period of ineligibility on the Athlete.

In this Partial Award the Panel determines as a preliminary issue whether the used product Adderall should be considered a Specified Substance. Following the parties’ submissions on this issue the Panel finds that the Athlete’s samples contained Amphetamine and deems the component ingredients of Adderall include Amphetamine, which is specifically included on the Non-Specified Stimulants list.

Therefore the Court of Arbitration for Sport decides on 19 August 2011:

1.) Adderall is a Non-Specified Stimulant as listed in the WADA Prohibited List.

2.) The matter shall proceed, with the Panel to conduct a hearing to determine Marr’s period of ineligibility.

The Dutch Archery Association (Nederlandse Handboog Bond, NHB) has reported an anti doping rule violation against this person after he tested positive for the prohibited substance propranolol. The Person was selected by the anti-doping authorities to provide a urine sample at a competition in Belgium. Person stated to the DCO he had used paroxetine, propranolol and maxalt. Person filed a statement in his defence and was heard for the Committee.
Person stated that propranolol was prescribed and used for medical purposes. Person didn’t know the substance was prohibited and had no intention to enhance performances for competition. After tested positive person requested twice without success for dispensation, then decided to switch to another non prohibited drug for medical purposes.
The Disciplinary Committee concludes that person violated the anti-doping rules and, considering exceptional circumstances, decides to reprimand the person.
Fees and expenses for this committee shall be borne by person and NHB.

In August 2011 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Petru Vasile Vişovan after his sample tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.
After notification the Athlete filed a statement in his defence and did not attend the hearing of the ANAD Hearing Commission.
The Athlete admitted the use of the prohibited substance and did not request the B sample analysis.
Therefore the ANAD Hearing Commission decides to impose a 2 year period of ineligibility on the Athlete, starting on the date of the sample collection.

Facts
The Canadian Centre for Ethics in Sports charges Caroline Pyzik (the athlete) for a violation of the Anti-Doping Rules. On January 30, 2011, Caroline Pyzik was subject to an anti‐doping control as part of the Canadian Taekwondo Championships. Analysis of the collected sample revealed the presence of prohibited diuretics (triamterene and hydrochlorothiazide) under the World Anti‐Doping Code.

History
The athlete, a taekwondo athlete aged 16 at the time, met with Gariépy, in his role as trainer, from September 2010 to prepare for the Canadian Championships to be held in January 2011. Pyzik and Gariépy established a relationship of trust. Championships, Pyzik enquired with Gariépy about over the counter products that could help her safely manage her weight within her target category, while specifying she did not want a doping product. Gariépy was an athlete support personnel and had, as a trainer, the benefit of additional credibility with the athlete. Gariépy demonstrated strong disregard in caring for the 16-year old athlete. He suggested a product that contained the prohibited substances.

Decision
1. The Tribunal does not consider that circumstances justify the application of Rules 7.44 and 7.45.
2. Regarding Rule 7.60, the Tribunal considers it does not have sufficient jurisdiction to intervene in the relationship between the CCES and Taekwondo Canada in this arbitration procedure.
3. Considering the documentary evidence and testimony, I conclude that Caroline Pyzik has committed an anti‐doping rule violation under Rule 7.23 of the Canadian Doping Program (CADP). Because this is a first violation, the period of ineligibility is of two (2) years.
4. Considering that Caroline Pyzik complied with a provisional suspension from her sport effective March 30, 2011, in compliance with Rule 7.15, her period of ineligibility will end on March 30, 2013.
I retain jurisdiction with respect to any issue which may arise concerning the interpretation or implementation of this decision.

Costs
The whole without costs.

In April 2011 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Ukrainian Athlete after her A and B samples tested positive for the prohibited substance ephedrine. After notification the Athlete filed a statement in her defence and she was heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete gave a prompt admission, denied the intentional use and explained that previously she had used the syrup “Broncholytin” prescribed by her team physician as treatment for her flu. She stated that on the day of the competition in question she felt ill again and she used a dose of this syrup. She was not aware that this medication could be taken in training only and the team physician did not know that the medication was taken bij the Athlete in competition. She acknowledged that she didn’t read the label of the syrup before using and didn’t mention this medication on the Doping Control Form.

The ADHP accepted the Athletes explanation and that she demonstrated how the substance came into her system. The ADHP finds that the concentration of the substance found in the Athlete sample was consistent with the dose of syrup she used for a therapeutic effect and not to enhance her sports performance.

The ADHP considers the circumstances and the Athlete’s degree of negligence in this case and decides on 11 August 2011 to impose a 1 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 13 March 2011.

In March 2011 the International Biathlon Union (IBU) has reported an anti-doping rule violation against the Athlete Oksana Kvostenko after her A and B samples tested positive for the prohibited substance ephedrine.
The IBU notified the Athlete and the Biathlon Federation of Ukraine of the violation, but no provisional suspension was ordered by the Biathlon Federation of Ukraine. The Athlete filed a statement in her defence and she was heard for the Doping Hearing Panel of the IBU.

The Athlete stated she fell ill with the flu in March 2011 while her breathing problems became serious and coughing deteriorated. The team doctor ordered her to take Broncholytin syrup as medication. The Athlete was not aware that this medication could only be used during training and had no intention to enhance her performance. The team doctor did not know that the medication was used during competition.

Considering the circumstance the Panel concludes that the Athlete had no intention to enhance sport performance but she also acted negligently due to she failed to research the ingredients before using the medication.
Therefore the Doping Hearing Panel decides to impose 1 year period of ineligibility on the Athlete, starting on the date of the sample collection, i.e. on 13 March 2011.

The Hellenic Basketball Federation has reported an anti-doping rule violation against the Player after his sample tested positive for the prohibited substance methylhexaneamine (dimethylpentylamine).
On 17 February 2011 the Judicial Panel of the Hellenic Basketball Federation decided a 1 year period of suspension, hereafter confirmed by the Greek Supreme Council for the Resolution of Sports Disputes (ASEAD), starting from 17 December 2010. Additionally the Player lost his contract with the Greece basketball club because of his suspension.

Because of Player’s wish to play for a German basketball club the Player requested FIBA in June 2011 to intervene and to impose a shorter sanction period. The Player filed a statement in his defence and was heard for the FIBA Disciplinary Panel.
Player stated he had used the supplement oxyelite prior to the doping test. He did not know the supplement contained a prohibited substance and he had no intention to enhance his performance. The Player admitted he did not research the label of the supplement.

The Panel finds the Player acted negligently without ensuring that this supplement does not contain a prohibited substance. The Panel considers Player’s statement and the substance methylhexaneamine (dimethylpentylamine) which became a specified substance in the new 2011 WADA prohibited list. Therefore the FIBA Disciplinary Panel decides - lex mitior - to impose a 6 month period of ineligibility on the Player starting on the date of Player’s official game, i.e. on 19 April 2011.

Use of forensic investigations in anti-doping / Nicolas Jan, François Marclay, Natalie Schmutz, Matt Smith, Alain Lacoste, Vincent Castella, Patrice Mangin. – (Forensic science international (2011) 213 (10 August) : p. 109-113)
doi: 10.1016/j.forsciint.2011.07.037. Epub 2011 Aug 10.

The fight against doping is mainly focused on direct detection, using analytical methods for the detection of doping agents in biological samples. However, the World Anti-Doping Code also defines doping as possession, administration or attempted administration of prohibited substances or methods, trafficking or attempted trafficking in any prohibited substance or methods. As these issues correspond to criminal investigation, a forensic approach can help assessing potential violation of these rules. In the context of a rowing competition, genetic analyses were conducted on biological samples collected in infusion apparatus, bags and tubing in order to obtain DNA profiles. As no database of athletes' DNA profiles was available, the use of information from the location detection as well as contextual information were key to determine a population of suspected athletes and to obtain reference DNA profiles for comparison. Analysis of samples from infusion systems provided 8 different DNA profiles. The comparison between these profiles and 8 reference profiles from suspected athletes could not be distinguished. This case-study is one of the first where a forensic approach was applied for anti-doping purposes. Based on this investigation, the International Rowing Federation authorities decided to ban not only the incriminated athletes, but also the coaches and officials for 2 years.