CAS 2009/A/1831 Fédération Internationale de Natation (FINA) v. Czech Swimming Federation (CSF) & Zofie Kvackova

Aquatics (swimming)
Doping (failure to provide whereabouts information)
Admissibility of the appeal
Applicable law
Obligation to provide whereabouts information for an athlete included in the national registered testing pool
Notification of the filing failure as a precondition for conviction
Burden of proof

1. The principle of the prohibition against the retroactive application of law is subject to several exceptions, including an exception for law or rules which are of procedural nature. In the absence of an express provision to the contrary, laws and rules related to procedural matters apply immediately upon entering into force and regardless of when the facts to be judged occurred. Such is the case for the 2009 FINA Anti-Doping Rules, which provide for a direct appeal to the CAS. In any event, FINA’s entitlement to appeal a federation’s decision directly to CAS would also have been admissible on the basis of the 2008 FINA Doping Control Rules – the applicable substantive anti-doping rules – which provide that the decision may be appealed exclusively to CAS if an athlete is to be considered an international-level competitor.

2. As a matter of principle, the FINA Anti-Doping Control Rules are not directly applicable to doping violations on a national level and a member of FINA should therefore implement their own anti-doping rules and should, pursuant to the FINA Doping Control Rules, indicate that the FINA Anti-Doping Rules shall be deemed as incorporated and shall be directly applicable and shall be followed inter alia by the competitors. However, the national regulations for doping control and sanctions in sport also apply on athletes as clearly stated in the “Purpose and Scope” chapter of those rules. Therefore both anti-doping rules, those of FINA’s and the national regulations are mutually applicable. In this respect, it is the substantive anti-doping rules in effect at the time the alleged anti-doping rule violation occurred which apply unless the principle of “Lex mitior” applies under the circumstances of the case.

3. Once a swimmer is included in the National Registered Testing Pool list and in the absence of any official statement or notification that this swimmer is stroked out of the list, the swimmer remains on the list for the whole period of the validity of this list, regardless from the question whether or not s/he was a member of the national team. S/he is therefore under the obligation to comply with the whereabouts requirements.

4. The failure to provide whereabouts information, will be considered a violation under the applicable regulations only after the competent body had submitted a written warning to the swimmer. The written warning appears as a precondition to convict a swimmer for a failure to provide whereabouts information. Furthermore, it seems essential to establish the existence of duly notified warnings, as the aim of the warning is to bring athletes to the awareness that they should comply with the obligation to provide the whereabouts information.

5. FINA and its member federations shall have the burden of establishing that an anti-doping rule violation has occurred. In this respect, the occurrence of an anti-doping violation should be established to the comfortable satisfaction of the hearing body. By not being in a position to produce the evidence of the formal written warnings, the minimum requirements for sanctioning an athlete for a failure to provide whereabouts information are not met and the anti-doping violation is not established.

In September 2008 the Czech Anti-Doping Committee reported an anti-doping rule violation against the swimmer Zofie Kvackova for her failure to provide whereabouts information on 3 occasions after being notified. As a result the Czech Swimming Federation (CSF) Disciplinary Commission decided on 22 November 2008 to impose a conditional suspension of 3 months with a probation period of 6 months.

After deliberations between the Fédération Internationale De Natation (FINA) and the CSF about the rendered decision FINA filed its appeal in June 2009 with the Court of Arbitration for Sport (CAS).
FINA requested the Panel to set aside the CSF decision and to impose a sanction between 3 months and 2 years on the Athlete. Although duly invited by CAS neither the CSF nor the Athlete responded to submit the requested documents or to attend the hearing. The Panel decided to settled the case based on the filed submissions.

The Panel notes that there are the following main issues to be resolved in this case:
a.) Was the swimmer included in the Registered Testing Pool on the dates of the notifications and therefore liable to comply with whereabouts requirements?
b.) If so, did the swimmer commit a violation under the 2008 FINA Doping Control Rules?
c.) If so, which sanction is to be deemed appropriate in the case at stake?

The Panel finds that regardless of the fact that the swimmer was - or was not - selected in the Czech National Swimming Team at the time the alleged failures occurred, she was still part of the National Registered Testing Pool, since there is no evidence that she was off the list. In the Panel’s view, she was therefore still under the obligation to comply with the whereabouts requirements.

The Panel establish that in this case the only evidence provided to the Panel relies on the CSF’s statement that the swimmer received “two notices”, which are not produced and which are not even referred to as “formal written warnings”. It is therefore the opinion of the Panel that the receipt by the swimmer of a formal written warning was not proven.
Consequently the Panel holds that FINA has not succeeded in showing that formal written warnings have been sent to the swimmer after any one of her alleged failures to provide whereabouts information on April 17, July 22 and August 20, 2008. The only possible outcome in these circumstances is the rejection of FINA’s appeal.

In the case at stake, the Panel has decided to dismiss FINA’s appeal mainly because FINA could not provide evidence that formal written warnings had been received by the swimmer. The Panel is perfectly aware of the fact that FINA cannot prove these elements if the CSF, which is the body that should have sent and kept copies of the written warnings, does not cooperate. Nevertheless, the Panel considers that this is a matter to be dealt with between an international federation and its affiliated member and it cannot condemn, confirm or extend the sanction of an athlete on the sole basis of assumptions.

The Court of Arbitration for Sport decides on 21 January 2010:

1.) The appeal of the Fédération Internationale De Natation (FINA), against the decision issued on 24 November 2008 by the Disciplinary Committee of the Czech Swimming Federation (CSF) and notified on 25 March 2009 to the Appellant, is dismissed.
2.) (…).
3.) All other or further claims are dismissed.

Facts
The French Federation of Ball-Trap and Ball Shooting (Fédération Française de Ball-Trap et de Tir a Balle, FFBT) charges respondent M08 for a violation of the Anti-Doping Rules. During a contest on July 19, 2009, a sample was taken for doping test purposes. The sample showed the presence of metabolites of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list and is regarded as a specified substance.

History
The respondent admits in writing the use of the prohibited substance, but denies that there was intention to enhance athletic performance.

Decision
1. The sanction is a four monhts period of ineligibility in which respondent can't take part in competition or sport manifestations organized or authorized by the FFBT.
2. The decision will start on the date of notification.
3. The decision will be published and sent to the parties involved.

Facts
The French Rugby Federation (Fédération Française de Rugby, FFR) charges respondent M07 for a violation of the Anti-Doping Rules. During a math on May 29, 2009, a sample was taken for doping test purposes. The analysis of the sample showed the presence of salbutomol. Salbutomol is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list and is regarded as a specified substance.

History
The respondent uses a inhalator to treat asthma. The medication for this inhaler contains the prohibited substance. There was an application for a therapeutic use exemption (TUE) but the physician failed to enclose enough details. There was no intention to enhance sport performance.

Decision
1. The respondent is acquitted
2. The decision will start on the date of notification.
3. The decision will be published and sent to the parties involved.

Facts
The French Cycling Federation (Fédération Française de Cyclisme, FFC) charges respondent M06 for a violation of the Anti-Doping Rules. During a cycling event on May 17, 2009, a sample was taken for doping test purposes. The analysis of the sample showed the presence of prednisolone and prednisone which are regarded as prohibited substances according the World Anti-Doping Agency (WADA) prohibited list. These substances are regarded as a specified substances.

History
The cause of the positive test is medication the respondent uses to treat allergy. He has reports which show the results of allergy tests.

Decision
1. The decision, dated October 16, 2009, of the disciplinary committee of the FFC should be modified (a warning was given).
2. The sanction will be a period of ineligibility of one month.
3. The decision starts on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
The French Federation of Ball-Trap and Ball Shooting (Fédération Française de Ball-Trap et de Tir a Balle, FFBT) charges respondent M05 for a violation of the Anti-Doping Rules. During a contest on June 14, 2009, a sample was taken for doping test purposes. The sample showed the presence of metabolites of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list and is regarded as a specified substance.

History
The respondent used the prohibited substance two days before the doping control. There was no intention to enhance sport performance, the use was in a recreational setting.

Decision
1. The sanction is a four months period of ineligibility in which respondent can't take part in competition or sport manifestations organized or authorized by the FFBT.
2. The decision will start on the date of notification.
3. The decision will be published and sent to the parties involved.

CAS 2009/A/1918 Jakub Wawrzyniak v. Hellenic Football Federation (HFF)

Related cases:

• CAS 2009_A_1918 Jakub Wawrzyniak vs Helenic Football Federation - Partial Award
  August 13, 2009
• CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
  May 21, 2010
  
  

• Football
• Doping (Methylhexaneamine)
• Principles of tempus regit actum and lex mitior in anti-doping rules violations
• Substances similar to prohibited substances listed by the WADA administration
• Meaning of no (significant) fault or negligence in the WADA
• Code and in the regulations of the Federations
• Substances pharmacologically classified as stimulants and not identified under the monitoring programme
• False information provided by the medical personnel and exemption from fault and negligence
• Meaning of the balance of probability standard
• CAS’ power of review and discretion of the disciplinary body of an association to set a sanction

1. In order to determine whether an act constitutes an anti-doping rule infringement, the Panel applies the principle tempus regit actum, i.e. the law in force at the time the act was committed. In other words, new regulations do not apply retroactively to facts that occurred prior to their entry into force, but only for the future, unless there are grounds for the application of the lex mitior principle.

2. The classification of a substance as “similar” to one of the listed substances made by the WADA administration can be challenged. The determination of similarity to substances expressly listed on the list of prohibited substances requires in fact the similarity to one (or several) of the listed substances; moreover, the similarity of a substance to a prohibited substance must be accompanied by the fulfilment of any two of the three criteria: the potential performance enhancement, the potential health risk, and the violation of the spirit of sport. Two of these three criteria must be met for a substance to be treated as similar and, thus, prohibited.

3. According to the CAS case law, the expressions “No Fault or Negligence” or “No Significant Fault or Negligence” should be considered as having the same meaning in all regulations (HFF, FIFA and WADC).

4. The WADA Prohibited List is an “open list” and “all substances pharmacologically classified as a stimulant and not identified under the Monitoring Programme are by definition prohibited”. This means that, even if the WADA administration could only identify the substance at a given time, Methylhexaneamine was still a prohibited substance already before that time because it was a stimulant.

5. Even in cases where the doping offence has occurred following false information

In April 2009 the Hellenic National Council for Combating Doping (ESKAN) has reported an anti-doping rule violation against the football player Jakub Wawrzyniak after his A and B samples tested positive for the prohibited substance Methylhexaneamine (dimethylpentylamine).

In June 2009 the Athlete filed an appeal with the HFF Appeal Committee after the Disciplinary Committee of the First Instance of the Super League in Greece sanctioned him on 4 June 2009 with a three month period of ineligibility. However the HFF Appeal Committee decided on 1 July 2009 to impose a 1 year period of ineligibiltiy which was upheld by the FIFA Disciplinary Committee on 27 July 2009 and the sanction was extended worldwide by FIFA.

In July 2009 the Athlete appealed the Decision of 1 July 2009 of the HFF Appeal Committee with the Court of Arbitration for Sport (CAS).

Considering the circumstances the CAS Panel is led to the conclusion that, on a “balance of probability”, Methylhexaneamine entered into the Athlete’s body through the ingestion of TightXtreme and that he has not used this substance in order to enhance his sporting performance.

As a result, the Athlete's “qualifies” for the application of the reduced sanction provided in specific circumstances by the pertinent rules when a “specified substance” is involved in the anti-doping rule infringement.

Therefore on 21 January 2010 the Court of Arbitration for Sport decides:

1.) The appeal filed by Mr Jakub Wawrzyniak against the decision issued on 1 July 2009 by the Appeals Committee of the Hellenic Football Federation is partially upheld.

2.) The decision adopted by the Appeals Disciplinary Committee of the Hellenic Football Federation on 1 July 2009 is amended as follows:

3.) The Player Jakub Wawrzyniak is declared ineligible for the period of three (3) months, starting on 5 April 2009.

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

(…).

Glucocorticoids : A Doping Agent? / Martine Duclos. - (Endocrinology and Metabolism Clinics of North America 39 (2010) 1 (March); p. 107-126).

• PMID: 2012245
• DOI: 10.1016/j.ecl.2009.10.001- 3.

Abstract

Certain international sports federations are requesting that glucocorticoids (GCs) be removed from the World Antidoping Agency's list of banned products. Their arguments are based on the fact that GCs are in widespread use in sports medicine and have no demonstrated ergogenic activity. This article shows that there is scientific evidence that GCs mediate ergogenic effects in animals and humans. Moreover, the health risks of using GCs are well characterized. GCs are doping agents and should remain on the World Antidoping Agency's list of banned products.

LC-MS/MS Method for the Quantification of New Psychoactive Substances and Evaluation of Their Urinary Detection in Humans for Doping Control Analysis / Eulalia Olesti, Jose Antonio Pascual, Mireia Ventura, Esther Papaseit, Magí Farré, Rafael de la Torre, Óscar J. Pozo. - (Drug Testing and Analysis (2020) 16 January ; p. 1-28).
- PMID: 31950617.
- DOI: 10.1002/dta.2768

Abstract

The constant legal adaptation of new psychoactive substances (NPS), challenges their evaluation in different fields. In sports, NPS are prohibited in competition with a Reporting Limit (RL) of 50 ng/mL for the parent compound or a metabolite. However, there is a lack of comprehensive methodologies and excretion studies for the NPS monitorization. This work aims at developing an analytical methodology for the NPS quantification and to evaluate the suitability of monitoring the urinary parent stimulants after NPS misuse. A method for the quantification of 14 common NPS was developed and validated. The method was found to be linear in the range 1-1000 ng/mL, and showed to be accurate and precise. A lowest limit of quantification (LLOQ) of 1 ng/mL was established for all analytes except for benzylpiperazine (5 ng/mL). The method was able to confirm the identity of the analytes at the LLOQ for most NPS. The methodology was applied to the quantification of the parent compound in urine samples collected from an observational study where several healthy volunteers (n ≥ 6 per drug) ingested active doses of mephedrone (MEPH), methylone (MDMC), 2,5-dimetoxy-4-ethylphenetylamine (2C-E) or 6-(2-aminopropyl)benzofuran (6-APB). We observed that for MDMC and 6-APB, the quantification of the urinary parent drug at the current RL is a proper strategy for detecting their misuse. However, this strategy seems to be insufficient for evaluating MEPH and 2C-E misuse. Monitoring the most abundant metabolite of MEPH (4'-Carboxy-MEPH) and the reduction of the RL to 10 ng/mL for the 2C-E evaluation are proposed.

Stimulants and doping in sport / Mario Thevis, Gerd Sigmund, Hans Geyer, Wilhelm Schänzer. - (Endocrinology and Metabolism Clinics of North America 39 (2010) 1 (March); p. 89-105)

• PMID: 20122452
• DOI: 10.1016/j.ecl.2009.10.011

Abstract

Stimulants have been frequently detected in doping control samples and represent a structurally diverse class of compounds. Comprehensive sports drug-testing procedures have been developed using gas or liquid chromatography combined with mass spectrometric detection, and they have revealed various adverse analytical findings, as demonstrated with 2 examples, 4-methylhexan-2-amine and methoxyphenamine. Moreover, the necessity of controlling the use or misuse of stimulating agents is outlined by means of pseudoephedrine, a compound that was prohibited in sports until the end of 2003. Since the ban was lifted, monitoring programs proved a significant increase in pseudoephedrine applications as determined from urine samples collected in competition. As a consequence, a reimplementation of this drug in future doping controls was decided.

Ergogenic effects of inhaled beta2-agonists in non-asthmatic athletes / Bernd Wolfarth, Jan C. Wuestenfeld, Wilfried Kindermann. - (Endocrinology and Metabolism Clinics of North America 39 (2010) 1 (March); p. 75-87)

• PMID: 20122451
• DOI: 10.1016/j.ecl.2009.10.005

Abstract

The potential ergogenic effects of asthma medication in athletes have been controversially discussed for decades. The prevalence of asthma is higher in elite athletes than in the general population. The highest risk for developing asthmatic symptoms is found in endurance athletes and swimmers. In addition, asthma seems to be more common in winter-sport athletes. Asthmatic athletes commonly use inhaled beta2-agonists to prevent and treat asthmatic symptoms. However, beta2-agonists are prohibited according to the "Prohibited List of the World Anti-Doping Agency" (WADA). Until the end of 2009 an exception was only allowed for the substances formoterol, salbutamol, salmeterol, and terbutaline by inhalation, as long as a so-called therapeutic use exemption has been applied for and was granted by the relevant anti-doping authorities. From 2010 salbutamol and salmeterol are allowed by inhalation requiring a so called declaration of use.