• CAS 2008/A/1718 IAAF v. All Russia Athletic Federation & Olga Yegorova
• CAS 2008/A/1719 IAAF v. All Russia Athletic Federation & Svetlana Cherkasova
• CAS 2008/A/1720 IAAF v. All Russia Athletic Federation & Yuliya Fomenko
• CAS 2008/A/1721 IAAF v. All Russia Athletic Federation & Gulfiya Khanafeyeva
• CAS 2008/A/1722 IAAF v. All Russia Athletic Federation & Tatyana Tomashova
• CAS 2008/A/1723 IAAF v. All Russia Athletic Federation & Yelena Soboleva
• CAS 2008/A/1724 IAAF v. All Russia Athletic Federation & Daiya Pishchalnikova

CAS 2008/A/1718-1724 International Association of Athletics Federation (IAAF) v. All Russia Athletics Federation (ARAF) & Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva & Darya Pishchalnikova

• Athletics
• Doping (manipulation of samples)
• Applicable law
• CAS power of review
• Proof of tampering with the doping control process according to the applicable standard
• Establishment of an unbroken chain of custody
• Validity and reliability of the testing procedure conducted by a laboratory non-accredited by WADA
• Athlete’s right to be given a reasonable opportunity to observe the opening and testing of a B sample
• Determination of the applicable sanction

1. It follows from the clear wording of the World Anti-Doping Code (WADC) and from constant CAS jurisprudence that the WADC is not directly applicable to athletes. Furthermore, it follows that the associations have autonomy to regulate their athletes – subject to mandatory provisions of law – at their discretion. By issuing its anti-doping rules, the IAAF has exercised this discretion exhaustively and exclusively without any possibility that other regulations could apply unless there was a specific reference in the IAAF Rules.

2. Based on the clear wording of the IAAF Rules as well as on Art. R57 of the CAS Code, not only can a CAS panel review the facts and the law contained in the challenged decisions but it can as well replace those decisions if the panel finds that the facts were not correctly assessed or the law was not properly applied leading to an “erroneous” decision. The procedure before CAS is indeed a de novo appeal procedure, which means that if the appeal is admissible, the whole case is transferred to CAS for a complete rehearing with full devolution of power in favor of CAS. CAS is thus only limited by the requests of the parties (the so called “petita”).

3. Under IAAF Rules, the use or attempted use of a prohibited substance or prohibited method and tampering or attempting to tamper, with any part of the doping control process or its related procedures have to be established by the IAAF to the comfortable satisfaction of the panel, bearing in mind the seriousness of the allegation. In this respect, DNA analysis is a reliable evidentiary means. Circumstantial evidence of significant probative value can also support the inference of tampering which can be drawn from the DNA results. Motive is one of the items of circumstantial evidence which is often admitted to establish guilt. In this regard, the findings that several athletes had blood profiles indicative of the long term use of rh-EPO or other forms of blood doping does provide a motive for tampering with the out of competition samples, namely a need to disguise the use of prohibited substances. The lack of any remark by the DCOs clearly cannot be considered as proof that no tampering took place at the moment of the sample collection. In the context, the natural, if not irresistible inference, is that the athletes have somehow arranged to have the urine of third persons used in their out of competition testing.

4. An unbroken chain of custody can be established to the comfortable satisfaction of the panel bearing in mind the seriousness of the allegation by the sampling and transportation evidence, namely the documentation provided by the IAAF, the evidence, both written and oral of the DCOs and the members of IDTM in charge of the transportation of the samples, as well as the evidence of the competent laboratories.

5. A WADA-accredited laboratory benefits from the presumption of compliance with applicable procedure. On the contrary a non WADA-accredited cannot benefit from the presumption of proper application of the custodial procedures. However, the fact that a laboratory in charge of DNA testing procedures acts in criminal cases for the Swiss Confederation, that it is ISO 7025 accredited, and that the officers within the said laboratory know very well the measures to be taken in order to avoid any DNA contamination eliminate any doubts about the reliability of DNA testing procedures.

6. The athlete’s right to be given a reasonable opportunity to observe the opening and testing of a B sample is of sufficient importance that it needs to be enforced, even in situations where all of the other evidence available indicates that an athlete committed an anti-doping violation. However, a distinction must be made between the results management process applicable to the case of an anti-doping rule violation detected through an adverse analytical finding and one where there is no such finding. Where there is no adverse analytical finding the applicable results management process does not provide for the athlete’s right to request the analysis of the B sample.

7. The length of the sanction depends on the particular facts of the case. Based on the structure of the IAAF rules as they stood at the relevant time and the CAS jurisprudence, the trend for a first offense with tampering seems to be a two years period of ineligibility. Depending on the attitude of the athlete and the nature and complexity of the scheme set in place, a tribunal obviously may increase the sanction. The circumstances that justify an increase must be serious. In addition, there is an upper limit for an increase of the sanction. Contrary to what the wording of the provision might suggest, the upper limit for the length of a sanction for a “standard infraction” must not exceed the lower limit of those anti-doping violations the IAAF rules consider to be particularly serious, ie 4 years of ineligibility. This follows from the overall context of the IAAF provisions on ineligibility.

In March 2007, the IAAF started to investigate the possible manipulation of samples collected under its out of competition testing program in Russia. In particular, the IAAF decided to compare the DNA profiles of out of competition urine samples that had been collected from selected Russian athletes with the DNA profiles of “in competition” urine samples collected from the same athletes in conditions that could guarantee the origin of the samples.

As a result of these DNA analyses the IAAF reported in June 2008 anti-doping rule violations against the seven Russian Athletes for tampering with any part of the doping control process.

Consequently the Council of the All Russia Athletic Federation (ARAF) decided on 20 October 2008 to impose a 2 year period of ineligibility on these Athletes, staring on the date of the sample collection, i.e. between 7 April 2007 and 23 May 2007)

Hereafter in November 2008 the IAAF appealed the ARAF Decision of 20 October 2008 with the Court of Arbitration for Sport (CAS). The IAAF requested the Panel to annul the Appealed Decisions and to impose a more severe sanction.

The Athletes claimed that the ARAF did not produce sufficient evidence of anti-doping rule violations. They blamed ARAF for having relied exclusively on the allegations of the IAAF without conducting its own investigation in order to determine what really had happened with the samples and to determine whether the athletes were guilty of an anti-doping rule violation. They argued that no evidence existed as to any tampering attempt from the Athletes.

In this case the Panel assessed and addressed the evidence and the submissions of the parties regarding:

• Analystical results;
• Reliability of the DNA analysis;
• Supporting circumstantial evidence;
• Chain of custody of the samples;
• Validity and reliability of the testeing procedures; and
• Testing of B samples

The Tribunal deems that the anti-doping violations alleged against each of the Athletes have been established to its comfortable satisfaction, bearing in mind the seriousness of the allegation.

Therefore the Court of Arbitration for Sport decides on 18 November 2009:

1.) The appeals filed by The International Association of Athletics Federation are partially upheld.

2.) The Decisions of the ARAF Council dated 20 October 2008 regarding the Athletes Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova, are set aside.

3.) The Athletes Olga Yegorova, Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova are sanctioned with a suspension of two years and nine months.

• a.) For Svetlana Cherkasova, Yuliya Fomenko, Gulfiya Khanafeyeva, Tatyana Tomashova, Yelena Soboleva and Darya Pishchalnikova the period of ineligibility shall start on 3 September 2008. However, credit is given for the period of ineligibility already served because of the provisional suspension dated 31 July 2008. The period of ineligibility, therefore, expires on 30 April 2011.
• b.) For Olga Yegorova the period of ineligibility shall start on 20 October 2008. However, credit is given for the period of ineligibility already served because of the provisional suspension dated 31 July 2008. The period of ineligibility, therefore, expires on 30 April 2011.

4.) All competitive results achieved by the Athletes since the out of competition testing are annulled, namely:

• a.) All competitive results achieved by Olga Yegorova since 7 April 2007
• b.) All competitive results achieved by Svetlana Cherkasova since 26 April 2007
• c.) All competitive results achieved by Yuliya Fomenko since 27 April 2007
• d.) All competitive results achieved by Gulfiya Khanafeyeva since 9 May 2007
• e.) All competitive results achieved by Tatyana Tomashova since 23 May 2007
• f.) All competitive results achieved by Yelena Soboleva since 26 April 2007
• g.) All competitive results achieved by Darya Pishchalnikova since 10 April 2007

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

(…).

In January 2009 the International Olympic Committee (IOC) decided to perform further testing on the Athlete’s samples collected during the Beijing 2008 Olympic Games, due to a fully validated test to detect CERA became available.

In April 2009 The IOC reported an anti-doping rule violation against the Athlete after his 2008 A and B samples tested positive for the prohibited substance CERA. After notification by the IOC the Athlete filed a statement in his defence and was heard for the IOC Disciplinary Commission.
The Athlete stated he had not taken any prohibited substances and alleged in his defence that the burden of proof has not been met. After considering the Athlete’s arguments the IOC Disciplinary Commission finds that no departure from the ISL occurred in this case and concludes that the Athlete has committed an anti-doping rule violation.

On 17 November 2009 the IOC Executive Board, as recommended by the IOC Disciplinary Commission, decides that the Athlete:
1.) be disqualified from the Athletics Men’s 1500m of the Beijing 2008 Olympic Games, where he had placed 1st.
2.) shall have his medal and diploma in the above-mentioned event withdrawn.
3.) The IAAF is requested to modify the results of the above-mentioned event accordingly and to consider any further action within its own competence.
4.) The National Olympic Committee (NOC) of Bahrain is ordered to return to the IOC, as soon as possible, the medal and diploma awarded to the Athlete in relation to the abovementioned event.
5.) The NOC of Bahrain shall ensure full implementation of this decision.
6.) This decision shall enter into force immediately.

Related case:

CAS 2009_A_2018 Davide Rebellin vs IOC
June 30, 2010

In January 2009 the International Olympic Committee (IOC) decided to perform further testing on the Athlete’s samples collected during the Beijing 2008 Olympic Games, due to a fully validated test to detect CERA became available.

In April 2009 The IOC reported an anti-doping rule violation against the Athlete after his 2008 A and B samples tested positive for the prohibited substance CERA.

After notification by the IOC in April 2009 the Athlete file a statement in his defence and was heard for the IOC Disciplinary Commission.

The Cyclist stated he had used medication, supplements and vitamins prior to the Olympic Games and alleged in his defence that the burden of proof has not been met.

The IOC Disciplinary Commission finds that no departure from the ISL occurred in this case and concludes that the Athlete has committed an anti-doping rule violation.
On 17 November 2009 the IOC Executive Board, recommended by the IOC Disciplinary Commission, decides that:

1.) the Athlete be disqualified from the Men’s Cycling Road event of the Beijing 2008 Olympic Games, where he had placed 2nd.;

2.) shall have his medal and diploma in the above-mentioned event withdrawn.

3.) The Union Cycliste International (UCI) is requested to modify the results of the abovementioned event accordingly and to consider any further action within its own competence.

4.) The National Olympic Committee of Italy (CONI) is ordered to return to the IOC, as soon as possible, the medal and diploma awarded to the Athlete in relation to the abovementioned event.

5.) The NOC of Italy shall ensure full implementation of this decision.

6.) This decision shall enter into force immediately.

Facts
The International Boxing Association (AIBA) appeals against the decision of the Anti-Doping Panel of the Amateur Boxing Association of England (ABAE) in the case of Jade Mellor (respondent). Respondent was imposed with a period of ineligibility of 6 months for the use of the specified substance bumetanide. The appellant considers that a 2 year ban is more appropriate.

History
The respondent had used the specified substance bumetanide, known as water pills, to reduce her weight. She didn't declare the substance on the filling form of the doping test.

Considerations tribunal
The Appeal Tribunal determined that by ingesting the specified substance she intended to enhance her sport performance, in the sense that she intended to ensure she was able to perform. The Appeal Tribunal concluded that the decision at first instance in that case - that for the purposes of Article 10.4.1 of the UKAD Rules the meaning of "sport performance" was restricted to the action or process of performing in the relevant athletic pursuit itself - was wrong, and that the words "to enhance the Athlete's sport performance" have a wider meaning, including the ability to perform at all.

Considerations respondent
The respondent claims to have used water pills in order to reduce the effects of her menstrual cycles and not for enhancing her sport performance.

Decision
The tribunal agrees with the Appellant’s appeal by substituting the period of Ineligibility of six (6) months to a period of Ineligibility of two (2) years commencing on 26 June 2009 and to end on 25 June 2011 (inclusive).

CAS 2008/A/1668 World Anti-Doping Agency (WADA) v. National Olympic Committee & Sports Confederation of Denmark & Dansk Boldspil-Union (DBU) & Jesper Münsberg

• Football
• Doping (salbutamol)
• Presumption of an Adverse Analytical Finding
• Athlete’s standard of proof
• Definition of “therapeutic use”
• Absence of proof of “therapeutic use”
• Conditions of reduction of a sanction
• Determination of the athlete’s degree of fault

1. Although with slightly different wording, the definitions of class S3 Prohibited Substances in the successive versions of the WADA Prohibited List all institute a presumption that the presence of salbutamol in urine in excess of 1000 ng/mL is not the result of a therapeutic use of inhaled salbutamol and will be deemed an Adverse Analytical Finding unless the athlete manages to prove the contrary.

2. Under the applicable FIFA Anti-Doping Regulations (DCR), the standard of proof for an athlete to rebut a presumption that an anti-doping violation has occurred is a balance of probability.

3. Only intake of salbutamol by inhalation, as opposed to for example the use of tablets (systemic intake), may qualify as therapeutic under an Abbreviated Therapeutic Use Exemption (ATUE) and the class S3 Rules. With respect to what represents a therapeutic use/dose of inhaled salbutamol, the rationale of the Class S3 Rules and of the procedure for granting an ATUE imply that it is the therapeutic use as defined in the text of the ATUE itself – together with the corresponding use then defined in the athlete’s medical prescriptions – that must be deemed the starting point and yardstick for the definition of a given athlete’s therapeutic use of inhaled salbutamol.

4. When it is more likely than not that a player inhaled the total dose of salbutamol in excess of 1000 ng/mL, not because taking such dose was “necessary” for therapeutic reasons to respond to an asthma attack or as a reasonable precaution before exercising, but rather because he was very anxious to be able to play a game, the concentration of salbutamol cannot be deemed as resulting from the use of a therapeutic dose of inhaled salbutamol. Thus the concentration of salbutamol in excess of 1000 ng/mL found in the player’s sample must be deemed an adverse analytical finding that constitutes an anti-doping violation under the applicable FIFA DCR.

5. To benefit from the elimination or reduction of the standard sanction, a player must fulfil two cumulative conditions, i.e. establish how the specified substance entered his body on a balance of probabilities and establish the absence of intent to enhance his sporting performance to the comfortable satisfaction of the hearing panel. In this respect, the sincerity of a player, the absence of obvious inconsistencies between his statements, the fact that he is not a professional, the relative lack of incentive he has to dope himself given his age/competition level and the uncertainties which remain regarding the degree of effect of certain factors (his condition of health, the adverse weather conditions, his apparently unusual resistance to the side effects of large doses of inhaled salbutamol, etc.) on the test results, are factors to be taken into consideration.

6. In determining a player’s degree of fault in inhaling an exaggerated dose of Ventolin the day of an in-competition test, one shall examines both the factors that tend to demonstrate negligence and those that alleviate the player’s fault. While a player has demonstrated a serious lack of diligence (negligence) by not fulfilling his duty to inform himself regarding anti-doping regulations, duty which weighs on an athlete even if the latter benefits from an ATUE, the lack of precision of the words “as needed” in a player’s ATUE and in particular the corresponding lack of precision of the words “as required” in his doctor’s prescription is a mitigating factor, especially if the doctor does not appear to have been much clearer in his explanations to the player.

In February 2008 Anti Doping Denmark has reported an anti-doping rule violation against the Player Jesper Münsberg after his A and B samples tested positive for the prohibited substances Salbutamol and Salmeterol in a concentration above the WADA threshold.

The Danish football player suffered from asthma since his childhood and stated that he developed a cold during the days before the football match and therefore used the Ventolin inhaler more often than usual due to feeling unwell. The Player argued, supported by his team doctor including scientific articles, that the concentration of salbutamol found in his sample could vary significantly.
The Doping Commission of the Danish NOC accepted the Player's explanation and decided on 16 May 2008 to give him the benefit of the doubt and not pursue the case before the Danish Doping Tribunal.

After deliberations with the Danish NOC WADA filled an appeal with the Court of Arbitration for Sport (CAS) against the decision of the Danish NOC of 18 September 2008 not to take any further action in this case.
WADA requested the Panel to annul the decision of the Danish NOC of 18 September 2008 and to impose a 2 year period of ineligibility on the Player.

The Panel finds it is more likely than not that the Player inhaled the total dose of salbutamol leading to a concentration of 2400 ng/mL in his urine sample (whether it be as a result of 12 puffs or more), not because taking such dose was "necessary" for therapeutic reasons to respond to an asthma attack or as a reasonable precaution before exercising, but rather because he was very anxious to be able to play the game in question and got carried away with the use of his Ventolin inhaler and perhaps even lost track of (or subsequently forgot) how many puffs he had taken.

The Panel holds that on a balance of probability the concentration of salbutamol in the Player's in-competition urine sample did not result from the use of a therapeutic dose of inhaled salbutamol, he has not managed to rebut the presumption set out in the class S3 definition of the 2008 WADA Prohibited List. Therefore the high concentration of salbutamol found in his in-competition urine sample must be deemed an Adverse Analytical Finding that constitutes an anti-doping violation under the FIFA Rules.

Given the importance of informing an athlete in an unambiguous manner regarding any maximum tolerated dose and given the ambiguity of wording such as "as needed" or "as required" that has led WADA to a change of regulation for 2010 - and hearing in mind that an athlete will naturally tend to pay more attention to his/her ATUE and to corresponding medical prescriptions than to generic use instructions supplied with Ventolin - the Panel finds that the Player's negligence was real but that mitigating circumstances exist

The Panel considers it fair to apply a sanction that is more than a reprimand but less than a one-year penalty; and has decided therefore to apply a six (6) month period of ineligibility that shall begin to run on 16 November 2009.

Therefore on 16 November 2009 the Court of Arbitration for Sport decides:

1.) The appealed decision of 16 September 2008 of the National Olympic Committee & Sports Confederation of Denmark Is set aside.
2.) Mr Jens Münsberg is declared Ineligible for competition for 6 months commencing on 16 November 2009.
3. Declares that the award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) already paid by the Appellant and to be retained by the CAS.
4.) Orders the Respondents to pay WADA an amount of CHF 2000 (two thousand Swiss Francs) as a contribution toward its costs.
5.) Dismiss all other and contrary prayers for relief

CAS 2008/A/1572 Gusmao v. FINA
CAS 2008/A/1632 Gusmao v. FINA
CAS 2008/A/1659 Gusmao v. FINA

CAS 2008/A/1572, 1632 & 1659 Rebecca Gusmao v. Fédération Internationale de Natation (FINA)

Related case:

FINA 2008 FINA vs Rebecca Gusmao
September 3, 2008

• Aquatics (swimming)
• Doping (testosterone)
• Bacterial degradation of the sample and method of detection
• Tampering with any part of doping control and proof by any reliable means
• Effect of the relocation of a laboratory on its accreditation
• Production of new evidence
• Notice of the first anti-doping rule violation
• Lex mitior in disciplinary sanctions related to doping violations
• Seriousness of the offence of tampering with a doping control

1. Based on scientific evidence generally available and on established case law of CAS, IRMS analysis is the established and reliable method of distinguishing the exogenous origin of testosterone. IMRS allows the direct detection of the exogenous origin of testosterone and is not affected by dilution, bacterial degradation or a pathological state such as POS. In this respect, dilution and bacterial degradation do not exclude the application of the IRMS analysis.

2. Tampering with doping control can be proven by any reliable means; the term “any reliable means” includes any way to establish a proof as in any other area of law. In a situation where the analysis designed to detect prohibited substances which was conducted in a WADA accredited laboratory, based on the steroid profiles and other parameters, reveals that the samples collected from the same athlete on different occasions actually do not stem from the same person, anti-doping rules do not exclude that further investigations concerning the non-identity of the donors can be made by a non-WADA-accredited laboratory.

3. The relocation of an accredited laboratory to a new building does not affect the existing accreditation which refers to the whole of the analysis devices and methods rather than to the physical building. A new accreditation is necessary for temporary “satellite facilities” of laboratories established for the purpose of major events but not for the permanent relocation of a laboratory.

4. Under “exceptional circumstances” Article R56 of the CAS Code allows the president of the panel to authorize the parties “to supplement their arguments … or to specify further evidence … after the submission of the grounds for the appeal and of the answer”. The unambiguous wording of that clause, supported by its systematic position before Article R57 of the CAS Code which deals with the hearing, clarifies that Article R57 of the CAS Code does not cover the production of new evidence after the closure of the hearing.

5. In the normal course of the handling of an alleged anti-doping rule violation, the notification in the results management process is a sufficient condition for a second violation. This is more than the knowledge of the mere laboratory report of an adverse analytical finding. The notification is issued only if the initial review conducted by the responsible anti-doping organization leads to the result that no therapeutic use exemption has been granted and no apparent procedural departure undermines the validity of the analytical finding. At that stage in the normal course of a doping case it is likely that an anti-doping rule violation was actually committed and, generally, the athlete is provisionally suspended. All further steps which are available to the athletes – request for the analysis of the B sample, request for a hearing, appeal of decisions etc. – are legal remedies which, as such, do not affect the validity of the suspension or other decisions. For the purpose of imposing sanctions for multiple violations, an anti-doping rule violation does not only exist when the last decision is taken which is final and binding. An interpretation to the contrary would open a period of time where, after the notification, an athlete could commit further doping offences without the risk of lifetime ineligibility for a second violation.

6. Even in cases where neither party makes submissions related to the lex mitior principle a CAS panel has to apply the applicable rules which include the transitory provisions. Therefore the panel has to consider whether the substantive rules of FINA’s Doping Control Rules (2009) constitute a lex mitior. The rules governing the length of a doping sanction are substantive anti-doping rules. This determination has to be made under the circumstances of the particular case.

7. Tampering is a particularly serious offence because tampering reveals that the athlete knew about the presence of the prohibited substance which she tried to hide by the manipulation. It is not only the intake of the prohibited substance but also the additional effort to manipulate the doping control either individually or in collaboration with a doctor.

Ms. Rebeca Braga Gusmao filed three appeals against the decisions of the Doping Panel of the Fédération Internationale de Natation (FINA) dated 12 May 2008, 17 July 2008, and 3 September 2008 respectively, which stated various anti-doping rule violations allegedly committed by her and, in the most recent of which, Ms. Gusmao was declared ineligible to compete for life. The appeals have been consolidated and are heard by this Panel.

The Athlete, was born in 1984 and is of Brazilian nationality. She is an international level athlete included in FINA´s Testing Pool who competed in national and international swimming competitions since 1998. She is affiliated to the Confederacao Brasiliera de Desportivos Aquaticos (CBDA).

The Athlete appealed three decisions of the FINA Doping Panel (DP) which each determined a single anti-doping rule violation. Two of them refer to the presence of a prohibited substance found in the samples collected from the Athlete in doping tests conducted on 25 and 26 May 2006 (CAS/A/1632) and on 13 July 2007 (CAS/A/1572), respectively.

The third alleged anti-doping rule violation concerns tampering with the doping control conducted on 12 July 2007 and a control conducted on 18 July 2007 (CAS/A/1659). All three appeals, albeit consolidated, are independent in their substance and the anti-doping rule violations must be determined each for itself. They are, however, interrelated with regard to the possible sanction the Panel has to determine.

Following assessment of the case the Panel determines:

• Ms. Gusmao committed three anti-doping rule violations, two of them, committed on 25 and 26 May 2006 and on 13 July 2007, respectively, in the form of the presence of the prohibited substance Testosterone, according to FINA´s Doping Control Rules (DC) DC 2.1, and one, committed on 12 July 2007 in the form of tampering with a doping control, according to DC 2.5.
• As Ms. Gusmao had received notice of the anti-doping rule violation based on the samples collected on 25 and 26 May 2006 on 11 May 2007, at the latest, the doping offences occurred on 12 July 2007 and 13 July 2007 both constitute a second anti-doping rule violation, according to DC 10.6.
• Therefore, Ms. Gusmao is to be declared ineligible to compete for lifetime, according to DC 10.2 in conjunction with DC 10.4.1, as from the date of this award, i.e. 13 November 2009.
• The results Ms. Gusmao obtained during the Brazilian Swimming Championship in May 2006 are automatically disqualified with all consequences. Ms. Gusmao has to return any medals, diploma, rewards, prize money, according to DC 9. All results Ms. Gusmao obtained as of 12 July 2007 are disqualified with all consequences, by this award. Ms. Gusmao has to return any medals, diploma, rewards, and prize money obtained since that date.

Therefore the Court of Arbitration for Sport decides on 13 November 2009 that:

1.) The appeals filed by Ms. Gusmao on 12 May 2008, 17 July 2008 and 3 September 2008 are dismissed.

2.) The decisions adopted by the Doping Panel of FINA dated 12 May 2008, 17 July 2003, and 3 September 2008 are upheld as far as they do not contradict this Award.

3.) Ms. Gusmao is declared ineligible to compete for life as from 13 November 2009.

4.) All results obtained by Ms. Gusmao during the Brazilian Swimming Championship in May 2006 and all results obtained as from 12 July 2007 are disqualified. Ms. Gusmao is ordered to return all medals, diploma, rewards and prize money, accordingly.

5.) This award is pronounced without costs, except for the Court Office fee of CHF 500, which is retained by the CAS. Each party will bear its own legal costs and other expenses, except for a contribution of CHF 3000 to the legal costs of the Respondent which Appellant shall pay.

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

Preliminary Award Regarding Provisional Suspension

This matter came before the North American Panel of Arbitration for Sport Panel as a consequence of the United States Anti-Doping Agency's ("USADA") determination that a provisional suspension should be imposed upon Val Barnwell ("Athlete").

The United Medix Laboratories (Helsinki, Finland) reported an Adverse Analytical Finding on Athlete's A Sample collected in competition on August 3, 2009 for a Prohibited Substance. USADA is required in such circumstances to Impose a provisional suspension promptly after review as to whether an applicable therapeutic use exemption has been granted or there is any apparent departure from the standards applied to laboratories.

USADA notified Athlete by letter dated October 29, 2009, which was received on November 3, 2009, that he had until November 5, 2009, to accept a provisional suspension. Since Athlete did not accept the provisional suspension
proposed by USADA by November 5, 2009, USADA requested that the Panel Schedule a Provisional Hearing and render its determination on or before December 11, 2009.

The sole issue for the Panel to determine is whether USADA's decision that a provisional suspension should be imposed shall be upheld, based on whether probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Athlete. To establish probable cause it is not necessary for any B Sample analysis to have been completed.

The North American Court of Arbitration for Sport Panel, being duly advised, hereby finds:

- USADA complied with the review and notification requirements of the Code and by supplying Athlete prior to the Provisional Hearing, on December 10, 2009 with any and all laboratory documentation in the possession of USADA for the sample.
- USADA has met its burden of showing that probable cause exists for USADA to proceed with a charge of an anti-doping rule violation against Athlete. The Panel therefore upholds USADA's decision to impose a provisional suspension against Athlete (the "Provisional Suspension").
- The Provisional Suspension shall make Athlete ineligible to participate in any "Competition or Event", as such are defined in the Code, or from membership or inclusion upon any team organized or nominated by the United States Olympic
Committee or any National Governing Body.
- The Provisional Suspension shall be in effect until the final hearing has been held and an award issued by the Panel or until the earlier of one of the following events: USADA and Athlete agree to a sanction, USADA withdraws its case against Athlete, or Athlete withdraws his request for arbitration or fails to prosecute his case resulting In imposition of a sanction.
- If within three (3) business days, Athlete submits to AAA any evidence in opposition to USADA's application for a provisional suspension, the Panel shall make a determination as to whether or not to reopen the Provisional Suspension hearing, failing which the Provisional Suspension shall be effective December 11, 2009.
- Athlete shall be entitled to have his case heard pursuant to the Expedited Track set forth In Section 13 of the Protocol, if he submits to the Panel a written request for such expedited treatment within three (3) business days from December 11, 2009.
- The parties shall bear their own costs and attorney's fees.

• CAS 2009/A/1931 E. & A. v. International Biathlon Union (IBU)
• CAS 2009/A/1931 Ekaterina Iourieva & Albina Akhatova vs IBU
• CAS 2009/A/1931 Ekaterina Iourieva & Albina Akhatova v. International Biathlon
  Union
  
  

Related cases:

• IBU 2009 IBU vs Albina Akhatova
  August 11, 2009
• IBU 2009 IBU vs Ekaterina Iourieva
  August 11, 2009
• IBU 2013 IBU vs Ekaterina Iourieva
  July 14, 2014
• IBU 2014 IBU vs Ekaterina Iourieva
  June 30, 2015
• Swiss Federal Court 4A_620_2009 Ekaterina Iourieva & Albina Akhatova vs IBU
  May 7, 2010

• Biathlon
• Doping (recombinant EPO)
• Definition of the International Standards for Laboratories (ISL)
• Use of the most recent state of the art technology and knowledge
• Duty of the accredited laboratories in applying the standards
• No more requirement that a different analyst perform the analytical procedures
• Principle of lex mitior

1. The ISL is a mandatory level 2 International Standard developed as part of the World Anti-Doping Code (WADAC). The ISL includes requirements for WADA accreditation of doping laboratories, operating standards for laboratory performance and description of the accreditation process. Its main purpose is to ensure laboratory production of valid test results and evidentiary data. It is also intended to ensure that the accredited laboratories achieve uniform and harmonized results and reporting thereon. The ISL, including all Annexes and Technical Documents, is mandatory for all Signatories to the WADAC. The ISL is therefore not directly applicable to athletes but rather to the signatories to the WADAC.

2. The laboratories must always use the most recent state of the art technology and knowledge to identify prohibited substances and methods. The ISL is intended also to ensure that the accredited laboratories achieve uniform and harmonized results and reporting thereon. Therefore, the ISL ought to indicate that the use of the most recent state of the art technology and knowledge will be used in testing, particularly in a transitional period between use of an existing and effective TD and a replacing one.

3. It is the duty of the accredited WADA laboratories to be strict in meeting the requirements of the ISL and applying the standards.

4. The 2009 ISL removed the requirement that a different analyst perform the analytical procedures. The only requirement of article 5.2.4.3.2.2 in the 2009 ISL is that the “B” sample confirmation shall be performed in the same laboratory as the “A” sample confirmation.

5. The principle of lex mitior is generally understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. Therefore, the principle of lex mitior relates more specifically to the applicable sanction and is not applicable to the technical rules underlying the scientific basis of the evidence.

In December 2008 the International Biathlon Union (IBU) reported an anti-doping rule violation against the two Russian Athletes Ekaterina Iourieva and Albina Akhatova after their A and B samples tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).

After notifitcation a provisional suspension was ordered and the Athletes were heard for the IBU Doping Hearing Panel. On 11 August 2009 the ISU Doping Hearing Panel decided to impose a 2 year period of ineligibility on the Athletes Ekaterina Iourieva and Albina Akhatova, starting on the date of the sample collection.

Hereafter in August 2009 the Athletes appealed the IBU decision of 11 August 2009 with the Court of Arbitration for Sport (CAS). The Athletes requested the Panel to set aside the Appealed Decision and to impose a reduced sanction.

They argued that the laboratory failed to analyse the samples and to report the test results in conformity with the 2008 ISL and related Technical Documents (TD).

Following assessment of the evidence the Panel establishes  no departures from the applicable ISL and its accompanying technical documents. Without diminishing the importance of improvement in the future the aspect of meeting the “Documentation and Reporting” aspects of the ISL and the description of the analytical finding, the Adverse Analytical Finding (AAF) of the Lab in this case can be fully relied upon by the sanctioning and reviewing bodies.

Therefore the Court of Arbitration for Sport decides on 12 November 2009 that:

1.) The Appeal of Ms Ekaterina Iourieva and Ms Albina Akatova is dismissed.

2.) The award is pronounced without costs, except for the Court Office fee of CHF 500 (five hundred Swiss Francs) paid by the Appellants, which is retained by the CAS.

3.) Ms Ekaterina Iourieva and Ms Albina Akatova shall each pay the IBU a contribution towards the legal fees of the IBU in the amount of CHF 2,500 (two thousand five hundred Swiss Francs), within 30 (thirty) days of notification of this award.

Qu'est-ce que l'AMA?

The World Anti-Doping Agency's (WADA) mission is to lead a collaborative worldwide campaign for doping-free sport.

WADA was established in 1999 as an international independent agency composed and funded equally by the sport movement and governments of the world. Its key activities include scientific research, education, development of anti-doping capacities, and monitoring of the World Anti Doping Code (Code) – the document harmonizing anti-doping policies in all sports and all countries. WADA is a Swiss private law Foundation. Its seat is in Lausanne, Switzerland, and its headquarters are in Montreal, Canada.

WADA works towards a vision of a world where all athletes compete in a doping-free sporting environment.

Agencia Mundial Antidopaje - Nivelando el Campo de Juego

In this video from WADA the principle of level the playing field is explained.

The World Anti-Doping Agency's (WADA) mission is to lead a collaborative worldwide campaign for doping-free sport.

WADA was established in 1999 as an international independent agency composed and funded equally by the sport movement and governments of the world. Its key activities include scientific research, education, development of anti-doping capacities, and monitoring of the World Anti Doping Code (Code) – the document harmonizing anti-doping policies in all sports and all countries. WADA is a Swiss private law Foundation. Its seat is in Lausanne, Switzerland, and its headquarters are in Montreal, Canada.

WADA works towards a vision of a world where all athletes compete in a doping-free sporting environment.