Related case:
KNKV 2011 KNKV Decision Appeal Committee 2011001 B
May 30, 2011

The Royal Dutch Korfball Association (Koninklijk Nederlands Korfbalverbond, KNKV) has reported an anti doping rule violation against the Person after he refused to cooperate to doping control in January 2011.

The Person was tested in the period prior to 1 January 2001, during in and out-of-competition, at different times and locations.
The Person’s situation changed after 1 January 2011 when he became part op the Registered Testing Pool with the obligation to report his whereabouts and one-hour-timeslot.

Person stated that it was difficult to find relevant information, while the information he received from the KNKV, the Anti-Doping Authority, the DCO and the IKF was insufficient and confusing. As a result the Person assumed that his cooperation was only necessary within the one-hour-timeslot.

The Committee deems that the insufficient information was highly responsible for the Person’s confusion as to his obligations.
The Committee rejects the Person’s assertions regarding his cooperation to anti-doping control and the violation of the privacy legislation.

Because of the exceptional circumstances in this case the KNKV Disciplinary Committee decides on 10 May 2011 to impose a 1 year period of ineligibility on the Person.

Fees and expenses for this committee shall be borne by the Person’s korfball club.

Annual Report 2010 / Slovak Anti-Doping Agency (SADA). - Bratislava : Antidopingová Agentúra Slovenskej Republiky (ADA SR), 2011

Recommendation on the use of the Model Guidelines for Core Information/Education Programmes to prevent Doping in Sport / Monitoring Group of the Anti-Doping Convention. - Strasbourg : Council of Europe (CoE), 2011

• Council of Europe Recommendation (2011) 1
• Recommendation & Revised Model Guidelines adopted by the Monitoring Group of the Anti-Doping Convention at its 33rd meeting, Strasbourg, 9 May 2011
• Incorporated in the document:
  • Recommendation on the use of the Model Guidelines for Core Information/Education Programmes to prevent Doping in Sport
  • Revised Model Guidelines for core information/education programs to prevent doping in sport

Related case:
CAS 2011/A/2499 Albert Subirats vs FINA
August 24, 2011

The Féderation Internationale de Natation (FINA) has reported an anti-doping rule violation against Albert Subirats (the Swimmer) for three whereabouts filing failures within an eighteen-month period.

After notification by FINA the Swimmer filed a statement in his defence and was heard for the FINA Doping Panel.
The Swimmer stated he always sent in time the relevant whereabouts information to his Federation. He showed copies of emails to the Venezuelan Swimming Federation (VSF) as a prove he indeed has sent information with the intention to send whereabouts information through the VSF to FINA. The Swimmer argued he has never been aware of the two filing failures in the past, due to the FINA letters were addressed to the VSF and never forwarded them to him.
Considering the Swimmer had no intention to escape from doping control the FINA Doping Panel decided to impose a 1 year period of ineligibility starting on 7 May 2011.

Hereafter the Swimmer appealed the FINA Decision to the CAS Panel (CAS 2011/A/2499 Albert Subirats vs FINA) in July 2011.
The CAS Panel concludes that FINA never notified a filing failure communication to the Swimmer. In particular, FINA did not send the letters concerning the filing failures directly to the Swimmer, but only to the VSF, and he did not receive any such communications from the VSF before his third failure. As a consequence, the Swimmer was unaware of all filing failures until the third filing failure occurred and was not in a position to repair on that.

Thus, since it is undisputed that the Swimmer did not receive any failure notice before the third whereabouts filing failure, the existence of a second and a third violation cannot be reproached to the him. For these reasons, no anti-doping rule violation (Whereabouts Filing Failures and/or Missed Tests) exists and, as a consequence, the Swimmer’s Appeal is upheld, the FINA Decision overturned, the second and third filing failure for the fourth quarter of 2010 and the first quarter of 2011 are cancelled and the Swimmer's results reinstated.

The Court of Arbitration for Sport Panel rules:
1.) The Appeal filed by Mr. Albert Subirats is upheld.
2.) The decision rendered on 21 June 2011 by the FINA Doping Panel is overturned.
3.) The second and the third filing failure for the fourth quarter of 2010 and the first quarter of 2011 are cancelled.
4.) Mr. Albert Subirats' results are fully reinstated.

Facts
The International Equestrian Federation (FEI) alleges Darryl Billing (the Athlete) for a violation of the Anti-Doping Rules for Human Athletes (ADRHA). The Athlete participated at the Bromont International CAI - A, CAN, from 24 to 27 June 2010. On 26 June 2010, the Athlete was selected for in-competition testing.
The analysis revealed the presence of Hydrochlorothiazide which is a Prohibited Substances. Hydrochlorothiazide are "Specified Substances" and are prohibited in- and out-of-competition.

History
On 13 September 2010, the Athlete submitted a formal Standard Therapeutic Use Exemption (TUE) Application form to the FEI, for the daily oral use of Hydrochlorothiazide, Acupril and Quinapril. Together with his TUE application, the Athlete submitted various medical documents and explained that the substances are taken because of high blood pressure. The Athlete further requested that a retroactive TUE be granted to him for the use of Hydrochlorothiazide. The TUE Committee granted the use of the substances as requested by the Athlete, for a period of two (2) years, starting on 15 September 2010.

Considerations panel
It has been established how the specified substance has entered the body of the athlete.
The panel agrees that there was no intention to enhance performances, and a retrospective TUE was granted. But it is regarded as negligence not knowing to have asked for a TUE.

Decision
1. The Athlete shall be formally reprimanded.
2. The Athlete is fined CHF 1500,00.-.
3. As a result of the foregoing/ the Tribunal has decided to disqualify the Athlete from the Event and all medals, points and prize money won at the Event must be forfeited, in accordance with FEI ADRHA Article 9.

Costs
The Athlete shall contribute CHF 1000,00.- towards the legal costs of the legal procedure.

Federação Portuguesa de Basquetebol (FPB), the Portuguese Basketball Federation, has reported an anti-doping rule violation against the Player Francisco José Coragem Jordão.
Therefore on 4 May 2011 the FPB decides to impose a 2 year period of ineligibility on the Player, i.e. from 14 February 2011 to 13 February 2013. Hereafter the FIBA adopts the FPB decision.

Fight against doping in sport : statistical data 2010 / Anti-Doping Authority Portugal. - Lisbon : Autoridade Antidopagem de Portugal (ADoP), 2011

In April 2011 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Adrian Marian Bratiloveanu after his sample tested positive for the prohibited substance metandienone.
After notification the Athlete did not attend the hearing of the ANAD Hearing Commission, nor did he file a statement in his defence.
Therefore the ANAD Hearing Commission decides to impose a 2 year period of ineligibility on the Athlete, starting on the date of the decision.

CAS A2/2011 Kurt Foggo v. National Rugby League (NRL)

• Rugby
• Doping (1,3-dimethylpentylamine)
• Lex mitior
• Interpretation of “intent to enhance sport performance”
• Corroborating evidence
• Standard of proof
• Duty of utmost caution of the athlete

1. The doctrine of lex mitior permits a disciplinary tribunal to apply current sanctions to the case before it if those sanctions are less severe than those which existed at the time of the offence.

2. Having regard to the context of the rules as a whole, the natural and ordinary meaning of the words in Rule 154 (WADC 10.4): “that such specified substance was not intended to enhance the Athlete’s sport performance” is to require the athlete to show that the ingestion of the product which contained the specified substance was not intended to enhance his sport performance. The time at which the absence of intent is to be shown is the time of ingestion of the substance. The athlete must negate an intention at that time to enhance his or her performance in the relevant sport by the taking of the substance. The rule focuses on the nexus or link between the taking of the substance and the performance as a player of the sport. Whether or not the link will be established will depend on the particular circumstances of the case. Rule 154 (WADC 10.4) would not be satisfied if an athlete believes that the ingestion of the substance will enhance his or her sport performance although the athlete does not know that the substance contains a banned ingredient. The athlete must demonstrate that the substance “was not intended to enhance” the athlete’s performance. The mere fact that the athlete did not know that the substance contained a prohibited ingredient does not establish absence of intent.

3. Rule 154 (WADC 10.4) also requires the production of corroboration evidence in addition to the athlete’s word which establish “…the absence of an intent to enhance sport performance”. Accordingly, the corroborating evidence must be sufficient to demonstrate the absence of intent, e.g. conduct inconsistent with intent at the relevant time. This is to be determined by the hearing panel undertaking an objective evaluation of the evidence as to the facts and circumstances relevant to the issue of intention.

4. Where the Policy or the WADC places the burden of proof upon the athlete to rebut a presumption or to establish specified facts or circumstances, the standard of proof borne by the athlete is a balance of probability. But the athlete must satisfy “a higher burden of proof” when the athlete seeks an elimination or reduction in the period of ineligibility under Rule 154 or WADC 10.4.

5. It cannot be too strongly emphasised that the athlete is under a continuing personal duty to ensure that ingestion of a product will not be in violation of the Code. Ignorance is no excuse. To guard against unwitting or unintended consumption of a prohibited or specified substance, it would always be prudent for the athlete to make reasonable inquiries on an ongoing basis while ever the athlete uses the product.

In October 2010 the National Rugby Leage (NRL) reported an anti-doping rule violaton against the rugby player Kurt Foggo after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

Becaus of his use of the supplement Jack-3d the NRL Tribunal decided on 15 November 2010 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in February 2011 the Athlete appealed the NRL decision with the Oceania Registry Court of Arbitration for Sport (CAS). The Athlete requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

The Athlete accepted the test results and denied the intentional use of the substance. Undisputed is that the supplement Jack-3d he had used was the source of the prohibited substance.

The Athlete asserted that on the ASADA website 1,3-dimethylamylamine, also known as Methylhexaneamine, could not be identified as constituent ingredient in Jack-3D. The NRI contended that the Athlete failed, deliberately or otherwise, to make enquiries as to the content of the supplement and so claiming ignorance of the violation.

The Sole Arbitrator assessed and addressed the following issues:

• The Athlete's intention to enhance sports performance;
• The existence of corroborating evidence;
• The Relevant Tests under Rules 154 and 156 of the Policy/Article 10.4 and Article 10.5.2 of the World Anti-Doping Code

The Arbitrator determines that:

• The presence of a prohibited substance has been established in the Athlete's samples and accordingly he committed an anti-doping rule violation.
• The doctrine of lex mitior is applicable in this case.
• The prohibited substance was an ingredient of the supplement Jack-3d.
• The Athlete's use of the supplement Jack-3d was not intentional.
• Although it was not on the ASADA website, when the Athlete had conducted more exhaustive inquiries he may have been able to locate information about the product which could have alerted him to the risk of violation if he used it.

Therefore the Court of Arbitration for Sport decides on 3 May 2015:

1.) The appeal filed on 15 February 2011 by Kurt Foggo against the decision of the National Rugby League (NRL) Tribunal of 15 November 2010 is declared admissible and is partially upheld.

2.) The decision of the NRL Tribunal is amended as follows: The period of ineligibility of Kurt Foggo shall be 6 months from 11 October 2010.

(…)

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

CAS 2010/A/2277 Roberto La Barbera v. International Wheelchair & Amputee Sports Federation (IWAS)

• Paralympic athletics
• Doping (stanozolol)
• Departure from the International Standard for Testing (no)
• Balance of probability
• Requirement of establishing how the Prohibited Substance entered the athlete’s system
• Absence of fault or negligence (no)
  
  

1. The doping control form is intended to provide contemporaneous record of the doping control procedure. While an athlete’s signature does not amount to a waiver of the athlete’s right to later allege that the requirements of the International Standard for Testing (IST) have been breached, such signature is of potential evidential value in determining whether the procedures set out in the IST have been complied with. The athlete’s plain signature of the doping control records expresses his approval of the procedure and prevents him – short of compelling evidence of manipulation of the records or fraud or any similar facts – from raising any such issue at a later stage.

2. The balance of probability standard means that the indicted athlete bears the burden of persuading the judging body that the occurrence of the circumstances on which he relies is more probable than their non-occurrence or more probable than other possible explanations of the doping offence.

3. The requirement of showing how the Prohibited Substance got into the athlete’s system must be enforced quite strictly since, if the manner in which a substance entered an athlete’s system is unknown or unclear, it is logically difficult to determine whether the athlete has taken precautions in attempting to prevent such occurrence. Consequently, the “threshold” requirement of proof means not only that the athlete must show the route of administration but that he must be able to prove the factual circumstances in which administration occurred. One hypothetical source of a positive test does not prove to the level of satisfaction required that such explanations are factually or scientifically probable. Mere speculation is not proof that it did actually occur.

4. Athletes are responsible for what they ingest. Taking into account the strict liability principle resulting therefrom, in order to establish No Fault or Negligence, the athlete must prove that he did not know or suspect, and could not reasonably have known or suspected, even with the exercise of utmost care, that he had used or been administered with the prohibited substance.

In July 2010 the  International Wheelchair & Amputee Sports Federation (IWAS) reported an anti-doping rule violation against the Italian Parathlete Roberto La Barbera after his A and B samples tested positive for the prohibited substance Stanozolol.

Consequently the IWAS Anti-Doping Comittee Hearing Panel decided on 20 October 2010 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in November 2010 the Parathlete appealed the IWAS Decision with the Court of Arbitration for Sport (CAS). The Panel assessed and addressed the following issues raised by the Athlete:

• A.) Has there been a valid adverse analytical finding with respect to Mr La Barbera’s urine sample?
• B.) If a doping offence has been committed, can Mr La Barbera prove, considering the required standard of evidence, how the prohibited substance entered his system?
• C.) If Mr La Barbera can meet the relevant requirements of evidence of the prior question, was he acting with no fault or negligence or with no significant fault or negligence?

The Panel concludes:

• The IWAS has established that Mr La Barbera had committed an anti-doping violation rule according to Art. 2.1 of the IWAS Code, since both A and B Samples have confirmed the presence of Stanozolol and 16β-hydroxystanozol, a metabolite of Stanozolol, a prohibited substance appearing on the WADA 2010 Prohibited List under category S1(1)(a), exogenous anabolic androgenic steroid (art. 2.1.2 of the IWAS Code).
• Mr La Barbera has been unable to discharge his burden of proving under Art. 3.1 and 3.2.2 of the IWAS Code that, on a balance of probability, (i) there had been any departure from the IST in the way the doping control procedure was carried out and that (ii) such departure could reasonably have caused the adverse analytical finding.
• Mr La Barbera has been unable to discharge his burden of proving under Art. 10.5 of the IWAS Code how, on a balance of probability (i) the Prohibited Substance had entered his system and that (ii) such ingestion had occurred without any (Significant) Fault or Negligence.
• As a result, the appeal filed by Mr La Barbera has to be dismissed and, taking into account Art. 9, 10.1 and 10.2 of the IWAS Code (see paras 22-24), the decision issued by the IWAS Tribunal on 20 October 2010 is affirmed.

Therefore the Court of Arbitration for Sport decides on 2 May 2011:

1.) The appeal filed on 17 November 2010 by Mr Roberto La Barbera against the decision of the IWAS Anti-Doping Committee Hearing Panel dated 20 October 2010 is dismissed.

2.) The decision rendered on 20 October 2010 by the IWAS Anti-Doping Committee Hearing Panel is confirmed.

(…)

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