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

Related cases:

• CAS 2009/A/1918 Jakub Wawrzyniak vs Hellenic Football Federation - Final Award
  January 21, 2010
• CAS 2009/A/2019 Jakub Wawrzyniak vs Hellenic Football Federation
  May 21, 2010
  
  

• Football
• Provisional measures
• Request for a stay of the decision

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 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).

The Deputy President of the CAS Appeals Arbitration Division finds in this case that the Athlete has not demonstrated that the stay of the decision rendered by the HFF Appeal Committee would protect him against any irreparable harm.

Due to the Athlete having failed to meet the first test (existence of an irreparable harm resulting from the execution of the challenged decision), the Deputy President deems that there is no need to evaluate whether the other conditions are fulfilled and that the request for a stay of the challenged decision shall be dismissed.

Therefore on 13 August 2009 in view of Articles R37 and R52 of the Code of Sports-related Arbitration, the Deputy President of the CAS Appeals Arbitration Division decides:

1.) The request for a stay filed by Mr. Jakub Wawrzniak is dismissed.
(…).

In January 2009 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Russian Athlete after her A and B samples tested positive for the prohibited substance recombinant human erythropoietin (rhEPO). After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete accepted the test results and denied the intentional use of the prohibited substance. She stated that previously her team physician had administered her a prescribed product 10 days before the sample collection and contended that this product may have contained prohibited substances. Further she argued that irregularities occurred as departures of the ISL due to delays in the process of analyzing the samples and the time of the sample collection. Also she indicated that he wanted to provide substantial assistance about possible anti-doping violations committed by athletes and support personnel.

The ADHP notes that the Athlete failed to provide substantial assistance and neither did she demonstrate how the prohibited substance entered her system. The Laboratory reported that errors were corrected later without effecting the test results and the ADHP finds that these errors didn’t cause the adverse analytical finding as departure of the ISL.

The ADHP observes that the Athlete’s written explanations are identical to those of two other athletes in parallel anti-doping proceedings and finds it hard to escape the conclusion that systematic and deliberate anti-doping rule violations and attempts to evade the consequences of those violations took place.

The Panel rules that the Athlete’s samples establish the presence of a prohibited substance and that she committed an anti-doping rule violation without grounds for a reduced sanction.
Therefore the ADHP decides on 11 August 2009 to impose a 2 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. 5 December 2008.

In January 2009 the International Biathlon Union (IBU) has reported anti-doping rule violation against the Russian Athlete after his samples - provided in December 2008 and in January 2009 on 3 occasions in Sweden and Germany - tested positive for the prohibited substance recombinant human erythropoietin (rhEPO). After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete accepted the test results and denied the intentional use of the prohibited substance. He stated that previously his team physician had administered him a prescribed product 3 days before the sample collection and contended that this product may have contained prohibited substances. Further he argued that irregularities occurred as departures of the ISL due to delays in the process of analyzing the samples and the time of the sample collection. Also he indicated that he wanted to provide substantial assistance about possible anti-doping violations committed by athletes and support personnel.

The ADHP notes that the Athlete failed to provide substantial assistance and neither did he demonstrate how the prohibited substance entered his system. The Laboratory reported that errors were corrected later without effecting the test results and the ADHP finds that these errors didn’t cause the adverse analytical finding as departure of the ISL.

The ADHP observes that the Athlete’s written explanations are identical to those of two other athletes in parallel anti-doping proceedings and finds it hard to escape the conclusion that systematic and deliberate anti-doping rule violations and attempts to evade the consequences of those violations took place.

The Panel rules that the Athlete’s samples establish the presence of a prohibited substance and that he committed a single anti-doping rule violation without grounds for a reduced sanction.
Therefore the ADHP decides on 11 August 2009 to impose a 2 year period of ineligibility on the Athlete starting on the date of the first sample collection, i.e. 3 December 2008.

Related cases:

• CAS 2009_A_1931 Ekaterina Iourieva & Albina Akhatova vs IBU
  November 12, 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
  
  

In January 2009 the International Biathlon Union (IBU) reported an anti-doping rule violation against the Russian Athlete after her A and B samples - provided on 4 and 5 December 2008 - tested positive for the prohibited substance recombinant human erythropoietin (rhEPO).

After notification a provisional suspension was ordered. The Athlete filed a statement in her defence and she was heard for the IBU Anti-Doping Hearing Panel (ADHP).

The Athlete accepted the test results and denied the intentional use of the prohibited substance. She stated that previously her team physician had administered her a prescribed product 4 days before the sample collection and contended that this product may have contained prohibited substances.

Further she argued that there had been irregularities as departures of the ISL due to delays in the process of analyzing the samples and the time of the sample collection. Also she indicated that she wanted to provide substantial assistance about possible anti-doping violations committed by athletes and support personnel.

The ADHP notes that the Athlete failed to provide substantial assistance, nor did she demonstrate how the prohibited substance entered her system. The Laboratory reported that errors were corrected later without effecting the test results and the ADHP determines that these errors didn’t cause the adverse analytical finding as departure of the ISL.

The ADHP observes that the Athlete’s written explanations are identical to those of two other athletes in parallel anti-doping proceedings and finds it hard to escape the conclusion that systematic and deliberate anti-doping rule violations and attempts to evade the consequences of those violations took place.

The Panel rules that the Athlete’s samples establish the presence of a prohibited substance and that she committed a single anti-doping rule violation without grounds for a reduced sanction.

Therefore the ADHP decides on 11 August 2009 to impose a 2 year period of ineligibility on the Athlete starting on the date of sample collection, i.e. 4 December 2008.

Facts
Cecil Russell has applied for reinstatement of his eligibility to participate in organised sport.

History
Cecil Russell a successful swimmer in the past was in various ways a swimming coach, because of possession and trafficking anabolic steroids he was sanctioned for period of ineligibility for life. The sanction was lifted, but imposed again because of violation of the ban.

The criteria for category II reinstatement are:
A. Exceptional circumstances:
a) Age
b) Remorse
c) Circumstances surrounding the infraction, including any factors that may have caused or contributed to the Applicant’s diminished capacity.
d) The Applicant’s experience in sport.
e) The Applicant’s favourable prospects for rehabilitation.
f) The Applicant’s prior, and post-infraction, conduct.
g) The Applicant’s contribution to (the) sport.
h) The Applicant’s cooperation with investigating bodies.
i) The length of suspension served by the Applicant at the time of hearing.
j) Additional factors advanced by or on behalf of the Applicant and determined by the adjudicator to be relevant.
B. The adjudicator may give such weight as he/she decides appropriate.

Decision
When all of the criteria are considered and the evidence is weighed, the arbitrator has to come to a different conclusion than the arbitrator did in 2005. In addition to the evidence that was already before the arbitrator about the convictions that led to to the imposition of Mr. Russell’s lifetime ban and his subsequent brushes with the law, there is now evidence that Mr. Russell has been criminally convicted in the United States for conspiracy to possess with intent to distribute ecstasy; there is evidence that he was involved in a murder and helped to dispose of a body; there is evidence that he asked someone to commit perjury to help him escape conviction; and there is a finding by a judge of the Superior Court that his failure to disclose the Arizona conviction at the 2005 hearing was calculated to deceive.
1. In the circumstances, the arbitrator is not now prepared to reinstate Mr. Russell.
2. As a practical matter, the arbitrator suspect that Mr. Russell will have difficulty persuading any adjudicator that he should be reinstated so long as he continues to skirt around the edges of his ban in the manner described in this decision. Even if he cannot be prevented from continuing with the pattern of coaching-like activities in which he has engaged to date (in respect of which the arbitrator makes no finding) he would be well advised to refrain from such activities because, in my view, they have had, and will continue to have, a significant impact on the overall presentation of his circumstances in a way which has a very negative impact on his objective of being reinstated.
3. This is not a decision about whether or not Mr. Russell is a good coach. Rather, the arbitrator has to decide whether there are “exceptional circumstances” which warrant his reinstatement. In my opinion, the sands having shifted since more evidence has emerged, Mr. Russell has failed, on a balance of probabilities, to discharge his onus of establishing that the conditions for reinstatement are met at this time.
4. While the arbitrator realizes that there will be many parents and athletes who are disappointed with this decision, they will hopefully appreciate that anti-doping rules exist to protect athletes and maintain integrity and fairness in sport. Until Mr. Russell can bring himself more squarely within the criteria which would support his claim for reinstatement, he must continue to be ineligible.

Costs
126. Section 11.2.4 (iv) of the SOP expressly provides that an adjudicator on a Category II reinstatement application does not have the authority to determine or make recommendations for the payment in part or all of the applicant’s legal and other costs incurred for a review. If any party is of the view that the arbitrator has authority to award costs to a party other than the applicant, and the amount of such costs, to whom and/or by whom they should be paid cannot be agreed, the arbitrator will entertain written submissions on (a) the basis for asserting that the arbitrary seeking costs should deliver submissions by 5:00 p.m. EDT on 17 August 2009. Any party against whom costs are sought will until 5:00 p.m. EDT on 24 August 2009 to deliver responding submissions.

JADCO 2009 JADCO vs Yohan Blake, Marvin Anderson, Allodin Fothergill & Lansford Spence - Appeal
September 14, 2009

Related case:

JADCO 2009 JADCO vs Yohan Blake, Marvin Anderson, Allodin Fothergill & Lansford Spence - Appeal
September 14, 2009

In July 2009 the Jamaica Anti-Doping Commission (JADCO) has reported an anti-doping rule violation against the Athletes Yohan Blake, Marvin Anderson, Allodin Fothergill and Lansford Spence after their samples tested positive for the prohibited substance 4-Methyl-2-hexanamine. After notification the Athletes were heard before the JADCO Disciplinary Panel.

The case initiated by JADCO was based on a WADA consideration from 2009 about the substance Methylhexaneamine and the conclusion of the WADA Prohibited List Committee in 2009 that Methylhexanemanine is a stimulant that has a chemical structurure similar to the prohibited substance Tuaminopheptane which is included on the WADA Prohibited List since 2007. Hereafter the substance 4-Methyl-2-hexanamine was included on the 2010 WADA Prohibited List as Methylhexaneamine (dimethylpentylamine).

After evidence of two experts the Panel finds that the substance 4-Methyl-2-hexanamine was not biologically similar to the prohibited substance Tuaminoheptane and that there was no evidence that 4-Methyl-2-hexanamine was mentioned on the current WADA 2009 Prohibited List.

Therefore the JADCO Disciplinary Panel decides on 9 August 2009 to dismiss the charges and not to impose any period of ineligibility on the athletes.

Related cases:

• CAS 2008_A_1652 WADA & IRB vs Luke Troy & ARU - Preliminary Award
  March 18, 2009
• CAS 2008_A_1664 IRB vs Luke Troy & ARU - Final Award
  August 6, 2009

The dispute between the parties arises out of two seizures by the Australian Customs Service in February 2006 and in August 2006 respectively of packages which were sent by post addressed to the Athlete from the United Kingdom and the
United States respectively. Each package was sent by post to the Athlete as a result of orders he placed for certain products from an international website, bodybuilding.com.

Consequently in November 2008 ASADA reported an anti-doping rule violation against the Athlete for Possession and attempted use of the prohibited substances Testosterone in February 2006 and DHEA in August 2006.

However on 12 March 2008 the judicial committee of the Australian Rugby Union (ARU) dismissed the charges against the Athlete. Hereafter in March 2008 the International Rugby Union (IRU) appealed the ARU decision with the Court of Arbitration for Sport (CAS).

The Panel establishes that the Athlete knowingly had ordered products which he believed contained Testosterone and DHEA, paying for those products, and arranging, or assisting the arrangement of, their importation into Australia and delivery to him.

Given the Panel's finding that the Athlete believed the products he ordered contained testosterone and DHEA and the Athlete's own evidence that he intended to use those products personally, the Panel is also satisfied that the course of conduct was “planned to culminate in the commission of an ADRV.”

By lts Award the Panel ruled that Mr Troy had committed an anti-doping rule violation pursuant to By-Law 5.2.2 of the ARU Anti-Doping By-Laws by engaging in conduct pursuant to which he sought to acquire "Prohibited Substances" over the internet.

Ultimately in its Final Award the Cour of Arbitration for Sport decides on 6 August 2009 that:

1.) The period of ineligibility of Mr Luke Troy will be two years from 2 June 2009.

2.) The period of ineligibility of Mr Luke Troy will be reduced by a period of 28 days and will terminate on 5 May 2011.

3.) As agreed between the parties, each party will pay its / his own costs of the appeal.

The International Basketball Federation (FIBA) has reported an anti-doping rule violation against the Player after his sample tested positive for the prohibited substance cannabis.
After an in-competition doping test on 1 June 2009 the Player provided a letter to the National Anti-Doping Organisation of Cyprus admitting that he had smoked cannabis three days before the doping control. The FIBA notified the Player and ordered a provisional suspension.
The Player stated he had smoked cannabis at a party, had no intention to enhance his performance and regrets the use of cannabis.
The FIBA Disciplinary Panel decides a 3 month period of ineligibility starting from the day after the last official game in which the Player participated.

CAS 2008/A/1664 International Rugby Board (IRB) v. Luke Troy & Australian Rugby Union (ARU)

Related cases:

• CAS 2008_A_1652 WADA vs Luke Troy & ARU - Preliminary Award
  March 18, 2009
• CAS 2008_A_1664 IRB vs Luke Troy & ARU - Partial Award
  August 6, 2009
  
  

• Rugby
• Doping (attempt use of prohibited substance)
• Determination of the applicable sanction

An athlete having committed an anti-doping rule violation by engaging in conduct pursuant to which he sought to acquire “Prohibited Substances” over the internet, should be sanctioned with a two years suspension. The period during which time the athlete was provisionally suspended shall be deducted from the end date of the sanction imposed.

By a Partial Arbitral Award delivered by the Panel on 2 June 2009 the appeal of the International Rugby Board (IRB) against the decision of the ARU judicial committee of 12 March 2008 was in part allowed and the decision of the ARU judicial committee was set aside.

By lts Award the Panel ruled that Mr Troy had committed an anti-doping rule violation pursuant to By-Law 5.2.2 of the ARU Anti-Doping By-Laws by engaging in conduct pursuant to which he sought to acquire "Prohibited Substances" over the internet.

It was further ruled by that Award that the question of sanction be reserved and directions were given as to the filing in the CAS Oceania Registry of written submissions by the parties as to sanction.

Therefore the Court of Arbitration for Sport decides on 6 August 2009 that:

1.) The period of ineligibility of Mr Luke Troy will be two years from 2 June 2009.

2.) The period of ineligibility of Mr Luke Troy referred to in order 1 above will be reduced by a period of 28 days and will terminate on 5 May 2011.

3.) (…).

CAS 2008/A/1555 UCI vs Andrey Kashechkin & KCF
CAS 2009/A/1779 Andrey Kashechkin vs Kazakhstan Cycling Federation (KCF) & Union Cycliste Internationale (UCI)

TAS 2008/A/1555 UCI v/ A. Kashechkin & Kazakhstan Cycling Federation (CFRK)
TAS 2009/A/1779 Andrey Kashechkin c/Kazakhstan Cycling Federation (CFRK & Union Cycliste Internationale (UCI)

In August 2007 the International Cycling Union (UCI) reported an anti-doping rule violation against the Kazakh cyclist Andrey Kashechkin after his A and B samples showed that he had used the prohibited method of blood doping.

Following deliberations with the UCI the Disciplinary Commission of the Kazakhstan Cycling Federation (KCF) consequently decided on 25 December 2008 to impose a 2 year period of ineligibility on the Athlete.

Hereafter in January 2009 the Athlete appealed the KCF decision with the Court of Arbitration for Sport (CAS). Previously in May 2008 the UCI had filed an appeal with CAS in order to ensure that the KCF would open disciplinary proceedings against the Athlete.

The UCI requested the Panel to dismiss the Athlete's appeal and to confirm the Appealed Decision. By contrast the Athlete requested to set aside the Appealed Decision, to impose no sanction and to approve his participation in any cycling competition.

The Athlete alleged that in first instance his right to be heard was violated nor was he allowed to file a statement in his defence. Further he disputed the validity of the test results due to there had been several departures of the Rules during the blood sample collection and the transport to the Lausanne Laboratory.

Preliminary the Panel determined that both appeals filed by the UCI and the Athlete have been ordered to be consolidated in one procedure. The UCI appeal is admissible and CAS has jurisdiction to review the Athlete's case.

Moreover the Panel deems that the previous KCF decision in question of 8 April 2008 had been superseded by the Appealed Decision of 25 December 2008 based on new facts after the KCF had received the Athlete's file.

Following assessment of the Athlete's arguments the Panel determines:

• His argument about the lack of proper notification of the Appealed Decision is dismissed.
• Dismissed is the argument that his right to be heard was violated.
• The argument about the alleged conspiracy during to blood sample collection was withdrawn by the Athlete.
• During the blood sample collection the Athlete raised no objections nor did he demonstrate with any evidence the alleged inconsistencies that had been occurred.
• There is no evidence that the blood samples were effected during transport to the Lausanne Laboratory.
• There is no evidence that the testing method and testing results were invalid.

As a result the Panel concludes that the Lausanne lab has established that the Athlete had used the prohibited method of blood doping and accordingly that he had committed an anti-doping rule violation.

Therefore the Court of Arbitration for sport decides on 6 August 2009:

1) CAS doesn't need to rule on the appeal of the UCI's against the decision of April 8, 2008 by Kazakhstan Cycling Federation (KCF).

2.) The appeal filed January 29, 2009 by Andrey Kashechkin against the decision of 25 December 2008 of the Anti-Doping Commission of the Kazakhstan Cycling Federation (KCF) is dismissed.

3.) The Appealed Decision of 25 December 2008 of the Anti-Doping Commission of the Kazakhstan Cycling Federation (KCF) is confirmed.

4.) Andrey Kashechkin is ordered to pay the UCI CHF 1,000 for the immaterial costs by the Anti-Doping Commission of the UCI.

5.) The Kazakhstan Cycling Federation (KCF) is ordered to reimburse UCI the sum of CHF 2,000 (two thousand Swiss francs) in respect of costs, the registry fees of CHF 500 (five hundred Swiss francs) paid by Andrey Kashechkin and by the UCI on the filing of their appeal, which remains with CAS.

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