CAS 2008/A/1458 Union Cycliste Internationale (UCI) v. Alexander Vinokourov & Kazakhstan Cycling Federation (KCF), partial award of 23 July 2009

Related case:

CAS 2008_A_1458 UCI vs Alexandere Vinokourov & KCF
August 30, 2010

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• Cycling
• Doping (use of a prohibited method)
• Interpretation of the wording of a Commitment signed by the rider
• Payment of a contribution as a condition for the Rider’s reinstatement

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1. An athlete who used a prohibited method in the form of an homologous blood transfusion has committed an anti-doping violation (blood doping).

2. The “Rider’s commitment”, signed by the athlete, does not establish the payment of a contribution as a condition for the athlete’s reinstatement. The payment of the contribution is “in addition” to the sanction and, hence, separate and independent of the regular sanction. Furthermore, the Commitment aims at the payment of a “contribution to the fight against doping” which is supposed to be payable to the Council for the Fight Against Doping. This wording differs considerably from terms such as “fine”, as used in the later UCI Anti Doping Rules which would have clearly indicated the meaning of a sanction or even a contractual penalty.

3. In the absence of a contractual condition for a Rider’s reinstatement, an extension of the sanction making the reinstatement dependant on the prior payment of a fine could be based exclusively on the set of rules which specifically govern anti-doping rule violations and their consequences. As long as the applicable regulations do not mention a payment whatsoever as a sanction or a precondition for the reinstatement of an athlete who had served a period of ineligibility, such extension of the sanction is not applicable.

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In July 2007 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Kazakh cyclist Alexander Vinokourov after his A and B blood samples tested positive for blood doping. On 5 December 2007 the Kazakh Cycling Federation (KCF) decided to impose a 1 year period of ineligibility on the Athlete.

Hereafter in December 2008 the UCI appealed the KCF decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete including payment for costs.

Previously in January 2008 the UCI had suspended this appeal because the Athlete had declared to end his career. However in September 2008 the Athlete announced his return to competition and thereupon UCI requested CAS to reactivate the proceedings against the Athlete.

In this Partial Award the Panel on 23 July 2009 concludes that the Athlete had committed the anti-doping rule violation of blood doping whereas the Athlete had admitted the violation and accepted the sanction.

The Panel deems that the dispute between the Parties about the payment of the contribution as a matter independent of the dispute on the date of the Athlete’s reinstatement is not yet ready for a decision. Hence, the Panel issues the decision as a Partial Award, according to Art. 188 Swiss Statute on Private International Law.

Therefore the Court of Arbitration for Sport decides on 23 July in this Partial Award:

1.) The decision adopted on 5 December 2007 by the Anti-Doping Commission of the Kazakhstan Cycling Federation is set aside.

2.) Mr. Vinokourov committed an anti-doping rule violation under Article 15.2 of the Anti-Doping Regulations of the Union Cycliste Internationale and, according to Articles 261, 268, and 275 Anti-Doping Regulations, is declared ineligible for a period of two years commencing on 24 July 2007.

3.) Mr. Vinokourov will be eligible to compete in international competitions as of 24 July 2009.

4.) The decision on all other prayers for relief including on costs is reserved to a Final Award.

Drug Free Sport New Zealand (DFSNZ) has reported an anti-doping rule violation against the Respondent after his A and B sample tested positive for the prohibited substance Cannabis.

After notification Respondent filed a statement in his defence and he was heard for the Tribunal. Respondent admitted the violation. The Tribunal accepted evidence he took cannabis in a social setting at a birthday party and that the cannabis was not used for sports performance enhancing purposes.

The Tribunal consideres that, unlike some recent cases, there were some mitigating factors. Therefore he Sports Tribunal of New Zealand decides to impose a 6 week period of ineligibility on the Respondent, starting on the date of the decision.

Facts
The International Baseball Federation (IBAF) Anti-Doping Tribunal convened to hear and determine the disciplinar proceedings brought by the International Baseball Federation (the 'IBAF') against
Agustin Murilo (Player) for violation of the IBAF Anti-Doping Rules (ADR). In his sample collected from him on 12 March 2009 the presence of Clenbuterol was detected, also the requested B-sample analysis tested positive on Clenbuterol. The charged is handled without a hearing.

History
The player thinks some supplements he uses were contaminated or his medication for flu was contaminated.

Considerations of the panel
The player was unable to give any proof about how the prohibited substance had entered his body.

Decision
The Tribunal rules as follows:
1.1 The Player has committed an anti-doping rule violation under Article 2.1 of the IBAF ADR in that Clenbuterol, a Prohibited Substance, was present in the sample collected from him after the 2009 World Baseball Classic match between Mexico and Cuba on 12 March 2009.
1.2 As a consequence:
a. The Player's individual results from the 2009 World Baseball Classic matches in which he played are Disqualified in
accordance with Aricles 9.1 and 10.1 of the IBAF ADR, with any medals, points and prizes that he eared from his participation in those matches to be forfeited.
b. In accordance with Article 10.2 of the IBAF ADR, the Player is ruled Ineligible for a period of two years. Further to article 10.10 of the IBAF ADR, during that period of Ineligibility the Player may not 'participate in any capacity in any Event or activity (other than authorized anti-doping education or rehabilitation programs) authorized or organized by IBAF or any National Federation or a club or other member organization of IBAF or any National Federation, or in Competitions authorized or organized by any professional league or any international or national level Event organization. ' This includes Major and Minor League Baseball. If the Player does continue to paricipate in Major or Minor League Baseball, then Aricle 10.10.2 of the IBAP ADR will apply to push back the commencement date of the period of Ineligibility imposed in this Award to the date of his last MLB or MiLB match.
c. In accordance with Aricle 10.9 ofthe IBAF ADR, the two-year period of Ineligibility shall commence as of the date of this Final Award and shall therefore end at midnght on 25 July 2011.

Related case:

CAS 2009_A_1926 ITF vs Richard Gasquet
December 17, 2009

In April 2009 the International Tennis Federation (ITF) has reported an anti-doping rule violation against the Athlete Richard Gasquet after his A and B samples tested positive for the prohibited substance Cocaine in a low concentration.

After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the ITF Independent Anti-Doping Tribunal.

The Athlete denied the intentional use of the substance and requested for a reduced sanction. He asserted that he had kissed a woman in a club who had ingested Cocaine prior to their rendezvous.

the Athlete argued that if there was a doping offence, the Athlete could establish “No Fault or Negligence” or alternatively “No Significant Fault or Negligence”. Further, he argued that there should be no period of ineligibility.

He argued that because of  the circumstances of the offence – accidental contamination in a social setting after the player had decided to withdraw from the competition through injury - were such that any ban would be grossly disproportionate to the offence and therefore unlawful.

Also in June 2009 the Athlete filed a complaint with the French prosecuting authority, alleging against the woman that a harmful substance had been administered to him, contrary to the French penal code. A criminal complaint was, at some point in time, also filed by the woman against the athlete for defamation.

The French newspaper, Aujourd’hui, published an interview with the woman that reportedly took place the afternoon before, and in which she denied having either taken or been offered any cocaine during the evening of the rendezvous. However, she admitted having taken cocaine on previous occasions in her life.

Furthermore, she asserted that she had kissed the Athlete only briefly and not mouth to mouth, and that she was willing to give evidence and undergo a hair test herself.

On September 2009, the public prosecutor’s department of Paris issued a communiqué stating that the proceedings initiated by the Athlete on 4 June 2009 against the woman for administration of a harmful substance to him had been closed, as no criminal offence had been revealed.

The communiqué furthermore noted that the toxicological examination carried out on “a young lady heard during this procedure” revealed that she regularly consumed cocaine, and that she would be subject to a therapeutic order from the public prosecutor’s department.

The ITF Tribunal Panel accepts that the player has discharged the onus on him of establishing, on the balance of probability, how cocaine entered his system. The Panel notes that the most likely explanation is that advanced by the player, namely that cocaine was transferred to the player from mouth to mouth kissing with the woman.

The Panel rules that this explanation is more likely than not to be the correct one. The Panel holds that in this case, the Athlete’s inadvertent ingestion of cocaine occurred in circumstances in which the degree of his fault was very small, as small as the miniscule quantity consumed.

On 15 July 2009 the ITF Tribunal decides to impose a 2 months and 15 days period of ineligibility on the Athlete for the time already served, starting on the date of the provisional suspension until the date of the decision.

Also Athlete’s results obtained in competitions in Barcelona and Rome during April 2009, shall remain undisturbed and the prize money and ranking points obtained by the player in those competitions shall not be forfeited.

In May 2009 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Eugen Antonio Velcescu after his sample tested positive for the prohibited substance metandienone.

After notification the Athlete filed a statement in his defence and did not request the B sample analysis.

The ANAD Hearing Commission decides on 14 July 2009 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the decision.

In May 2009 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Octavian Daniel Popa after his sample tested positive for the prohibited substance cannabis.

After notification the Athlete filed a statement in his defence and did not request the B sample analysis.

The ANAD Hearing Commission decides on 14 July 2009 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the decision.

In May 2009 the Agenţia Naţională Anti-Doping (ANAD), the National Anti-Doping Agency of Romania, has reported an anti-doping rule violation against the Athlete Sorin Dumitru Olari after his sample tested positive for the prohibited substance cannabis.

After notification the Athlete filed a statement in his defence and did not request the B sample analysis.

The ANAD Hearing Commission decides on 14 July 2009 to impose a 3 month period of ineligibility on the Athlete, starting on the date of the decision.

In January 2009 the Turkish Basketball Federation (TBF) has reported an anti-doping rule violation against the Player after his sample tested positive for the prohibited substance metenolone. In April 2009 TBF Disciplinary Board decided a 8 month period of ineligibility.

In July 2009 the Player exercised his right to be heard for the FIBA Disciplinary Panel.
The Player stated he had purchased “over the counter” medication; was not aware that the medication may contain prohibited substances; argued that he suffers from a chronic medical condition in his knees; and that he had received treatment at a medical clinic.
The Panel has serious doubts about Player’s statement and he failed to provide any scientific evidence in support of his argument.
The Panel finds the Player acted negligently without ensuring that the medication does not contain a prohibited substance. The Panel is unable to find a connection between the Player’s knee injury and the anti-doping rule violation.
Therefore the FIBA Disciplinary Panel decides a 2 year period of ineligibility.

Facts
The Fédération International de Gymnastique ("FIG") charged Chiu Shih-Hui (the "player"). On November 3, 2008, the player underwent an anti-doping test. His sample showed a positive result to hydrochlorothiazide which is a diuretic included in the list of prohibited substances.

History
The athlete used a medicine against a cold and also medication to cure an injured foot. Due to language problems the athlete reacted late in the communication process.

Decision
1. To suspend the player for a 24 month period starting from the date of the doping test, i.e. November 3, 2008 to November 2, 2010;
2. To disqualify the player and to cancel any and all results he might have achieved since November 3, 2008 with all the resulting consequences including forfeiture of all medals, points and prizes;

Costs
The Presidential Commission hereby decides that the costs of proceedings shall be borne by the Chinese Taipei Gymnastic Association (TPE-NF). Each Party shall bear its own fees and expenses.

Appeal
If the player wants to appeal he has to pay CHF 5.000.- in advance to the FIG. The appeal has to be made within 21 days.

CAS 2009/A/1759 FINA v. Max Jaben & ISA

CAS 2009/A/1778 WADA v. Max Jaben & ISA

CAS 2009/A/1759 FINA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1778 WADA vs Max Jaben & Israel Swimming Association

CAS 2009/A/1759 & 1778 Fédération Internationale de Natation (FINA) & World Anti-Doping Agency (WADA) v. Max Jaben & Israel Swimming Association (ISA)

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• Aquatics (swimming)
• Doping (boldenone and boldenone metabolites)
• Imperative character of the rules establishing deadlines to file an appeal
• Notification of disciplinary decisions to WADA and WADA’s right to appeal
• Presence of a prohibited substance in both samples
• Chain of custody and adverse analytical finding
• Beginning of the suspension period

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1.) It would violate fundamental principles of fairness if procedural deadlines such as the filing deadline in the anti-doping rules of an international federation were to stand at the free disposition of the prosecuting parties especially if the accused athlete remained uninformed of such communications which ultimately affect his procedural rights. Possible erroneous assumptions on jurisdiction cannot be placed at the burden of the athlete and thus an appeal filed beyond the 21-days limit has to be declared inadmissible.

2.) WADA is not obliged to actively and unilaterally enquire about a decision to be issued by a federation in order to preserve its own right to appeal, since this would place an undue burden upon the WADA and possibly hinder the fight against doping. It would require that WADA actively monitor each and every of the hundreds of 1st instance disciplinary decisions on the national level.

3.) So long as a prohibited substance was found to be present in both the A and B sample analyses and was also found to be of exogenous origin, the fact that a second prohibited substance was not present in the B sample does not invalidate the finding of an anti-doping violation on the grounds of the rule “If the sample “B” proves negative, the entire test shall be considered negative and the Competitor, his Member Federation, and FINA shall be so informed”.

4.) Claims of departures from the International Standard for Laboratories and the International Standard for Testing, such as breach of the “chain of custody” in the handling of the samples, remain unsubstantiated if it cannot be established that these alleged violations of the International Standards have caused the adverse analytical finding.

5.) The sanctioned athlete has a right to an expeditious hearing and timely completion of the adjudicative process. So long as the sanctioned athlete has no control over procedural delays and bears no responsibility for them, it is fair and appropriate to deduce the period of delay from the overall period of his provisional suspension.

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In June 2008 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Israeli swimmer Max Jaben after his A and B samples tested positive for the prohibited substance Boldenone.

On 19 November 2008 the Israel Swimming Association (ISA) decided to impose a 1 year period of ineligibility on the Athlete. This decision was appealed with the ISA High Court of Arbitration. However the High Court dismissed this appeal on 15 December 2008 due to lack of jurisdiction because it involved an international-level athlete.

Hereafter in January 2009 both FINA and WADA appealed both Israeli decisions of 19 November 2008 and 15 December 2008 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Israeli decisions and to impose a 2 year period of ineligibility on the Athlete. FINA's appeal was rejected because it was not filed within the set time limit of 21 days. 

The Athlete denied the intentional use of the substance and argued that the test results of the Athens and Cologne Laboratories were contradictory. He asserted that he should be acquitted because of errors and delays in the laboratory procedures, the unsafe chain of custody and the discrepancies in the laboratory findings.

WADA contended that the Athlete had failed to demonstrate how the prohibited substance had entered his system. Also his allegations about the many inconsistencies are without merit.

WADA holds that both the Athens and Cologne Laboratories were WADA-accredited; the Athlete failed to establish any departure from the International Standard for Testing; and his allegations regarding the validity of the IRMS analyses were erroneous.

The Panel finds that the presence of the prohibited substance has been established by the Athens and Cologne Laboratories on the basis of their respective analyses whereas the task of the IRMS analysis was to prove the exogenous origin of the Boldenone metabolite. In the view of the Panel, the Cologne Laboratory confirmed such exogenous origin.

The Panel holds that, apart from the delayed processing of the samples by the Athens and the Cologne Laboratories, the Athlete’s claims of other departures from the International Standard for Laboratories and the International Standard for Testing remain unsubstantiated.

This is particularly the case with regard to his accusation that the chain of custody in the handling of the samples has been breached. The Athlete does not claim that these alleged violations of the International Standards have caused the adverse analytical finding.

As a result the Panel determines that the presence of Boldenone metabolite in both specimens, which was proved in IRMS testing to be of exogenous origin, is sufficient to support the doping violation.

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

1.) The appeal of the World Anti-Doping Agency against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared admissible and is partially upheld.

2.) The appeal of the Federation Internationale de Natation against the decisions of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 and of the High Court of the Israel Swimming Association dated 15 December 2008 is declared inadmissible.

3.) The decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 is modified; Mr Jaben is declared ineligible for a period of two (2) years, commencing as of 30 April 2008 without any interruption.

4.) All competitive results achieved by Mr Jaben from 30 April 2008 through 5 June 2008, the date of his provisional suspension, and between the date he resumed competition pursuant to the decision of the Disciplinary Committee of the Israel Swimming Association dated 19 November 2008 until the date of this award shall be invalidated with the consequence that all medals, points and prizes shall be forfeited.

5.) This award is pronounced without costs, except for the non-reimbursable Court Office fee of CHF 500 (five hundred Swis Francs) already paid by each of the Appellants and to be retained by the CAS.

6.) Mr Jaben is ordered to pay to the World Anti-Doping Agency an amount of CHF 1,000 (one thousand Swiss Francs) as a contribution towards the latter’s legal and other costs incurred in connection with the present arbitration.

7.) The Israel Swimming Association is ordered to pay to the World Anti-Doping Agency an amount of CHF 2,000 (two thousand Swiss Francs) all a contribution towatds the latter's legal and other costs incurred in connection with the present arbitration.

8.) Mr Jaben, the Israel Swimming Association and the Federation Internationale de Natation shall bear their own legal and other costs.

9.) All other motions or petitions for relief are dismissed.