CAS 2011/A/2678 International Association of Athletics Federations (IAAF) v. Real Federación Española de Atletismo (RFEA) & Francisco Fernández Peláez

• Athletics (race walking)
• Doping (substantial assistance)
• Admissibility of the appeal (validity of the extensions of the deadline to appeal)
• Power of review of an IF regarding decisions taken at national level in doping cases
• Condition to benefit from a reduction of the sanction based on Substantial Assistance
• Scope of the factors considered in assessing Substantial Assistance
• Starting date of the sanction

1. According to Article 42.13 of the IAAF Rules, an appellant shall have forty-five (45) days in which to file his statement of appeal with CAS starting from the date of communication of the written reasons of the decision to be appealed. The IAAF Rules do not require a particular justification for extending the deadline to file an appeal. However, it cannot be contested that administrative efficiency, and in particular the desirability for any International Federation (IF), to have all the elements in its possession in order to take a reasoned decision on whether to appeal, are sufficient grounds to warrant a postponement of the deadlines to appeal a decision rendered by a national federation until such time as the IF has been sufficiently informed on the meaning, nature, and scope of the national federation’s decision.

2. It is fundamental that decisions taken at a national level in doping cases, particularly regarding the imposition of sanctions, be subject to the review of the relevant international sporting federation. The power conferred to the international federation aims, inter alia, at maintaining the integrity of international competitions by preventing national federations from not imposing any sanction at all on an athlete or imposing a less severe sanction than justified merely in order to allow the athlete to compete at international level. In this respect, a decision regarding an exception for Substantial Assistance must, in the last instance, remain under the control of the entity charged with enforcing the corresponding anti-doping rules, or to a body appointed by that entity. Criminal law provisions concerning confidentiality cannot justify non-compliance with the relevant IF provisions in order to obtain a reduction in the ineligibility period pursuant to the IF provisions.

3. In order to benefit from a reduction of the period of ineligibility under Article 40.5(c) of the IAAF Rules, it must be established that an athlete has provided Substantial Assistance to the IAAF, his/her National Federation, an Anti-Doping Organization, criminal authority or professional disciplinary body, resulting in the discovery or establishment of an anti-doping rule violation by a third party, or in the discovery or establishment of a criminal offence or of a breach of professional rules by a third party. A simple indication of cooperation, which could hypothetically result in the discovery of a criminal offense, is not sufficient for the Assistance to be Substantial.

4. A commentary of a legal provision cannot replace the substance of the provision itself. In this respect, considering that the sine qua non condition that the assistance result in discovering or establishing doping or criminal offenses or a violation of professional rules by third parties must first be satisfied, the factors set forth in the commentary of the WADA Code can only be taken into account in assessing the importance of the Substantial Assistance in order to determine the extent of the reduction of the ineligibility period in each particular case.

5. The provisions regarding substantial delays do not provide an automatic right to start the period of Ineligibility at an earlier date that stated, but a discretionary power to appreciate whether, taking into consideration the circumstances of the case, the ineligibility period should start earlier.

In November 2009, the Spanish Guardia Civil carried out a number of police raids in locations across Spain that targeted an alleged doping ring involving doctors, pharmacists and athletes. This police operation, called Operación Grial, led to the arrest of 11 individuals, including 3 cyclists. The activities of the alleged doping ring included the distribution of EPO, growth hormones and masking agents.

The home of the Athlete Francisco Fernández was one of the locations raided by the Civil Guard, where EPO and other performance-enhancing drugs were reportedly found. The Athlete admitted possession of prohibited substances, testified about his involvement in this doping network and cooperated with the Spanish judicial authorities and the police.

Initially on 24 February 2010 the Committee on Sports Discipline of the Royal Spanish Athletics Federation (RFEA) decided to impose a sanction of 2 years on the Athlete. However following a number of proceedings and appeals at national level the RFEA Committee on Sports Discipline decided on 17 May 2011 to impose a reduced 1 year period of ineligibility on the Athlete.

Between April 2010 and December 2011 the International Association of Athletics Federations (IAAF) was impeded in its attempts to obtain relevant information from the RFEA. It repeatedly received no answers from the RFEA or received information very late. As a result the IAAF had to extend the deadline to file an appeal, in order for its rights of appeal to remain unaffected.

Ultimately in December 2011 the IAAF appealed the RFEA Decision of 17 May 2011 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

The Sole arbitrator assessed and addressed the following issues raised by the parties:

• Applicability of Spanish Law within the RFEA Decision
• Violation of the Agreement by the RFEA
• Clash between Disciplinary Proceedings and Criminal Proceedings
• Existence of the Anti-Doping Rule Violation
• Fulfilment of the Conditions to Benefit from a Reduction of the Sanction under IAAF Rules
• Start of the Ineligibility Period

Accordingly the Sole Arbitrator determines that:

• The RFEA disregarded the IAAF Rules and violated its obligations as a member of the IAAF.
• The RFEA deliberately violated the terms of the Parties signed Agreement.
• The decision regarding the exception for Substantial Assistance must, in the last instance, remain under the control of the entity charged with enforcing the corresponding anti-doping rules, or to a body appointed by that entity.
• It is undisputed, and admitted, that the Athlete committed an anti-doping rule violation under the IAAF rules.
• Although the Athlete provided at least some assistance to the authorities, this cannot qualify as Substantial within the meaning of Article 40.5(c) of the IAAF Rules.
• It was disproportionate to reduce the period of ineligibility in this case by one half of the usually applicable sanction of 2 years.
• The period of ineligibility starts on the date of this award, lees the period of provisional suspension and/or ineligibility that the Athlete has already served.

Therefore the Court of Arbitration for Sport decides on 17 April 2011:

1.) The appeal filed by the International Association of Athletics Federations on 20 December 2011 against the decision of the Real Federación Española de Atletismo Committee on Sports Discipline of May 17, 2011 is admissible.

2.) The appeal filed by the International Association of Athletics Federations is upheld.

3.) The decision of the Real Federación Española de Atletismo Committee on Sports Discipline of May 17, 2011 is set aside.

4.) Mr. Francisco Fernández Peláez is declared ineligible for a period of two years, commencing on March 14, 2012, less the period of provisional suspension and/or ineligibility that he has already served namely one year, three months and four days.

(…)

7.) All other requests for relief are rejected.

Facts
The French Football Federation (Fédération Française de Football, FFF) charges respondent M38 for a violation of the Anti-Doping Rules. After a match on August 19, 2010, respondent didn't attend a doping control.

History
The respondent stated that was unable to attend for the doping test, because he had to get up early next morning for a professional reason.

Decision
1. The earlier decision (six months period of ineligibility) dated November 24, 2010, of the disciplinary committee of the FFF will not be modified.
2. The decision will be published and sent to the parties involved.

Facts
The French Federation for Contact Sport and Associated Disciplines (Fédération Française de Sports de Contact et Disciplines Associées, FFSCDA) charges respondent M37 for a violation of the Anti-Doping Rules. During a K1 event on May 8, 2010, a sample was taken for doping test purposes. The analysis showed the presence of testosterone. The ratio of testosterone on epitestosterone was 4.7. A spectrometric analysis on isotopes didn't reveal an exogenous origin of testosterone. Testosterone of exogenous origin is a prohibited substance according the World Anti Doping Agency (WADA) prohibited list.

History
Respondent denied the use of testosterone and declared that it must derive from a natural production of the substance in his body.

Decision
1. The respondent is acquitted.
2. The decision of September 7, 2010, of the disciplinary committee of the FFSCDA is cancelled.
3. The decision starts on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
French Federation for Public Physical Education (Union Française des Oeuvres Laïques d'Éducation Physique, UFOLEP) charges respondent M36 for a violation of the Anti-Doping Rules. During a cycling event on September 5, 2010, a sample was taken for doping test purposes. His sample tested positive on betamethasone, (metabolites of) fenetylline, parahydroxyamphetamine, D-Ampethamine, L-amphetamine, and a metabolite of nandrolone. These substances are prohibited according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent acknowledged the use of these substances which he used to treat an injured leg.

Decision
1. The sanction is a period of ineligibility of four years in which the respondent can't take part in competition or manifestation organized or authorized by the French sport federations.
2. All results obtained at the cycling event on September 5, 2010, will be cancelled. Medals, points and prizes are withdrawn.
3. The decision starts on the date of notification.
4. The decision will be published and sent to the parties involved.

Anti-Doping Rules of the Russian Federation / Ministry of Sport, Tourism and Youth Policy of the Russian Federation. - (Adopted by Order No. 307 of the Ministry of Sport, Tourism and Youth Policy of the Russian Federation dated April 13 , 2011)

The Anti-Doping Rules of the Russian Federation (hereinafter referred to as “the Rules”) were developed in accordance with the Federal Law No. 329-FZ dated December 4, 2007 “On Physical Culture and Sport in the Russian Federation” (Collection of the legislation of the Russian Federation, 2007, No. 50, paragraph 6242; 2008, No. 30, paragraph 3616, No. 52, paragraph 6236; 2009, No. 19, paragraph 2272, No. 29, paragraph 3612, No. 48, paragraph 5726, No. 51, paragraph 6150; 2010, No. 19, paragraph 2290, No. 31, paragraph 4165, No. 49, paragraph 6417, No. 51, paragraph 6810; 2011, No. 9, paragraph 1207) (hereinafter referred to as “the Federal Law”).
Responsibility for development of the Rules and their implementation lays with the Anti-Doping Organization of the Russian Federation – Non-Profit Partnership Russian Anti-Doping Agency “RUSADA” (hereinafter referred to as “RUSADA”).

Årsrapport 2010 Stiftelsen Antidoping Norge / Antidoping Norge (ADNO). - Oslo : ADNO, 2011

INNHOLD

Årsberetning og økonomisk beretning fra styret for 2010 4
Regnskap med revisjonsrapport 7
Virksomhetsberetning 15
1 Stab 15
1.1 Personell stab 15
1.2 Kvalitetssystem og kvalitetsledelse 15
1.3 Nettverk for antidopingarbeid 16
1.4 Ekstern kommunikasjon 16
1.5 Innspill til idrettens verdigrunnlag 17
1.6 Utvikling 17
1.7 Vurdering 18
2 Avdeling for støttefunksjoner 19
2.1 Styret 19
2.2 Personell støttefunksjon 20
2.3 Drift 20
2.4 Regionskoordinatorer 20
2.5 Medisinsk fagkomité 21
2.6 Seminar for ansatt personell 21
2.7 Helse, miljø og sikkerhet 22
2.8 Utviklingstiltak 22
2.9 Vurdering 23
3 Påtalenemnd og meldepliktsråd 24
3.1 Drift av påtalenemnd 24
Dopingsaker 25
3.2 Meldepliktsråd 26
3.3 Vurdering 27
4 Dopingkontroll innenfor organisert idrett 28
4.1 Innledning 28
4.2-4.4 Prøvetaking 28
Fordeling av prøver på idretter 29
4.5 Analyser 31
4.6 Kontrollutstyr og transport av prøver 33
4.7 Medisinske fritak 33
4.8 Utøverinformasjon 33
4.9 Utvikling 34
4.10 Vurdering 35
5 Informasjon og forebygging 36
Foredrag og deltakere på foredrag 37
5.1 Personell 38
5.2-5.4 Idretter 38
5.5 Støtteapparat 40
5.6 Nettside 41
5.7 Materiell og artikler 42
5.8 Fagmøter og seminarer 43
5.9 Utvikling 44
5.10 Vurdering 44
6 Internasjonalt arbeid 45
6.1 Internasjonale konvensjoner og avtaler 45
6.2 ANADO 46
6.3 Andre internasjonale prosjekter 47
6.4 Internasjonale seminarer 49
6.5 Vurdering 49
7 Forskning 50
7.1 Forskningskomité 50
7.2 Idrettskultur og samfunn 50
7.3 Idrettsfysiologi 50
7.4 Idrettsrelatert juss 51
7.5 Idretts– og samfunnsmedisin 51
7.6 Egne utredninger 51
7.7 Utviklingstiltak 52
7.8 Vurdering 53
8 Selvfinansierende samarbeidsprosjekter 54
8.0 Administrasjon av oppdrag 54
8.1 Oppdrag for internasjonal org. Idrett 54
8.2 Treningssenterbransjen 54
8.3 Norske organisasjoner og institusjoner 55
8.4 Kurs og konferanser 55
8.5 Markedssamarbeid 55
8.6 Vurdering 57
9 Forebyggende arbeid i samarbeid med off. 58
9.0 H-dir-midler 58
9.1 Fylkeskommunale samarbeidsprosjekter 59
9.2 Samarbeid med Utenriksdepartementet 59
9.3 Vurdering 59

In October 2010 the Brazilian Cycling Confederation (CBC) has reported an anti-doping rule violation against the cyclists Lucas Onesco Neto and Jair Fernando dos Santos after their samples tested positive for the prohibited susbstance Stanozolol. After notification a provisional suspension was ordered.

Only the Athlete Lucas Onesco Neto filed a statement in his defence and he was heard for the CBC Anti-Doping Commission (CAD-CBC). The Athlete asserted that there was a divergence of dates noted during the sample collection.

The CBC Anti-Doping Commission (CAD-CBC) finds that the test result of the Athlete’s sample established the presence of a prohibited substance and accordingly that he committed an anti-doping rule violation. The CAD-CBC concludes that no departures occurred during the notification, the sample collection, the chain of custody or the analysis in the Laboratory. Also the CAD-CBC deems that the alleged divergence of dates regarding the sample collection did not invalidate the test results.

Therefore the CAD-CBC decides on 12 April 2011 to impose a 2 year period of ineligibility on the Athletes Lucas Onesco Neto and Jair Fernando dos Santos starting on the date of the notification, i.e. on 1 October 2010.

CAS 2010/A/2236 Diego Roque Navarro v/ ADoP

On 3 March 2010 the Disciplinary Committee of the Portuguese Football Federation (FPF) decided to impose a 1 year period of ineligibility on the football player Diego Roque Navarro after his A and B samples tested positive for the prohibited substance Human Chorionic Gonadotropin (HCG).

On 16 June 2010 the Athlete’s appeal was dismissed by the FPF Council of Justice and the previous FPF decision confirmed. On 30 August 2010 the Anti-doping Authority Portugal (ADoP) rendered a new decision and imposed a 2 year period of ineligibility on the Athlete for his anti-doping rule violation.

Hereafter in September 2010 the Athlete appealed the ADoP decision with the Court of Arbitration for Sport (CAS). The Athlete requested the Panel to impose the proportional sanction of a 1 year period of ineligibility and asserted that the procedural rights were violated: the right to be heard, the prohibition of reformation in pejus and the principle of res judicata.
The Athlete argued that the new Portuguese Law, or at least its regime of sanctions, could not apply to his case, on the basis of articles 62, 74 and 76 of this same new Law. Only the regime of sanctions of article 10 of the Anti-Doping Regulations of the FPF which were in force when the facts took place, namely on August 21, 2009, should apply, according to the Athlete.

The Panel reviewed carefully the system put in place by the new Portugues Law and implemented at the federation level. It was surprised that after two levels of internal jurisdiction where an athlete is part to the procedure whereas ADoP is not, ADoP can simply assess the decision taken by the competent body of the relevant federation and then replace it on the simple basis of article 18 par. 1 lit. N and article 57 par. 4 of the new Law, together with article 47 par, 3 of the new anti-doping regulations of the FPF, without the athlete being materially part to the procedure before ADoP.

The Panel finds first that the regime put in place by the new Law and the new regulations of the FPF does not provide ADoP with a right to appeal but with the right to check and amend decisions taken by jurisdictional bodies of sport federations. The Athlete is therefore wrong when he claims that ADoP cannot issue a new decision when it did not appeal against the previous ones. Secondly, the Panel holds that the purpose of ADoP's right to amend decisions is obviously to make sure that the principles of the new Law and the sanctions provided by the corresponding regulations were properly applied in all aspects and not only for the benefit of the athletes.

Eventually, and in response to the Athlete's general remark on the admissibility of ADoP’s prerogatives in any State of Law, the Panel stresses that such prerogatives are based on Portuguese State Law. In the absence of a decision of a Portuguese constitutional court, invalidating the new Law and the corresponding federation regulations, the Panel has not sufficient grounds not to recognize ADoP's prerogatives.
Based on all these considerations, the Panel finds that the Athlete's submissions with respect to these matters must be rejected and that the Athlete committed an anti-doping rule violation which constitutes a disciplinary offence, as provided under article 54 of the new Law.

Reviewing the present case de novo in application of article R57 of the Code, the Panel considers that in view of the absence of any mitigating or aggravating circumstances, of the lack of any elements that would plead in favor of negligence, and not of intent, on the Athlete's side, and in view of the substance at stake, neither the sanction imposed by ADoP nor the sanction imposed by the Disciplinary Committee should be confirmed. Taking into account the circumstances of the present case and having considered the Parties' submissions and requests for relief, the Panel indeed decides to sanction the Athele with a 18 month period of ineligibility.

Therefore the Court of Arbitration for Sport decides:

1.) The appeal of the Player, Diego Roque Navarro, is partially upheld.
2.) The decision issued by the Autoridade Antidopagem de Portugal (ADoP) on August 30, 2011 is set aside and replace by the present award.
3.) The Player, Diego Roque Navarro is sanctioned with a period of ineligibility of 18 months starting on 25 September 2009.
4.) The costs of the arbitration to be determined and served on the Parties by the CAS Court Office shall be borne for 2/3 by the Autoridade Antidopagem de Portugal (ADoP).
5.) Each party shall bear its own costs.
6.) All other motions or prayers for relief are dismissed.

Annual Report 2010 / Anti-Doping Switzerland. - Bern : Antidoping Schweiz, 2011

CAS 2010/A/2245 Andrey Plotniy v. International Tennis Federation (ITF)

Related case:

ITF 2010 ITF vs Andrei Plotniy
September 20, 2010

• Tennis
• Doping (carphedon)
• Applicable standard in respect of the definition of “No Significant Fault or Negligence”
• Additional sanction

1. Only where the departure of the athlete from the required conduct under the duty of utmost care was not significant, the sanctioning body may apply “No Significant Fault or Negligence” and depart from the standard sanction.

2. The Tennis Anti-Doping Programme envisages that any reduced sanction would run concurrently with the original sanction imposed, as any other interpretation of the rules could result in players having a lengthy sentence in effect reduced through breaching the sanction of ineligibility, in circumstances where they breached their sanction early in their period of ineligibility with No Significant Fault or Negligence, and therefore restarted a period of ineligibility now reduced by up to half.

On 9 March 2010 the Russian tennis player Andrey Plotniy admitted he had committed an anti-doping rule violation after his sample tested positive for the prohibited substance Fonturacetam (Carphedon). He signed an Acceptance of Sanction and a 15 month period of ineligibility was imposed, starting on 1 November 2009.

Hereafter in August 2010 the German Tennis Federation reported that the Athlete had participated in 5 tennis competitions in Germany. The Athlete acknowledged his participation in these 5 competitions and asserted that he was unaware he was ineligibile to participated in tennis competitions at a national level not hosted by the ITF or the WTA.

The ITF concluded that the Athlete failed to establish No Significant Fault of Negligence for breaching ineligibilty. Consequently the ITF decided on 20 September 2010 that the original 15 month period of ineligibility shall start again from the date of his last participation, i.e. 22 August 2010.

Hereafter the Athlete appealed the ITF Decision with the Court of Arbitration for Sport (CAS).

The Panel considered the particular circumstances of this case and establishes that the Athlete made, on his own admission, no enquiry into the nature and extent of his sanction other than asking his own representative. At the time he made that enquiry, he knew himself to be ineligible to play in international tournaments, and in the national Russian Championship.

The Panel accordingly upholds the ITF’s decision dated 20 September 2010 and dismisses the Appeal of the Athlete in its entirety. The present award is rendered by majority, pursuant to Article R59 of the Code.

Therefore the Court of Arbitration for Sport decides on 11 April 2011:

1.) The appeal filed on 7 October 2010 by Mr Andrey Plotniy is dismissed.

2.) The decision rendered by the ITF Anti-Doping Manager on 20 September 2010 is confirmed.

(…)

5.) All other prayers for relief are rejected.