Rechtbank Haarlem
Sector civiel recht
July 24, 2009
159578 / KG ZA 09-404
ECLI:NL:RBHAA:2009:BJ3767

Related cases:
- ISR 2009 NWWB Decision Disciplinary Committee 2009064 T
June 29, 2009
- ISR 2009 NWWB Decision Appeal Committee 2009064 B
January 29, 2010

Facts
Athlete X filed for a preliminary relief proceeding with the Dutch Civil Court in Haarlem. He wants the sanction for a doping violation, a two year period of ineligibility, based on the decision of the Disciplinary Committee of the Netherlands Water Ski and Wakeboard Federation (Nederlandse Waterski en Wakeboard Bond, NWWB), to be annuled based on violation of his right of privacy.

History
The athlete had been selected for an out-of-competition doping test. Analysis of the A and B samples showed the prohibited substance nandrolone. The athlete used several prescribed medication as treatment for a serious condition he suffered. One medication was prescribed nandrolone, the other medication will not be mentioned because of privacy reasons. The medication nandrolone is the source of the positive test.

The NWWB doubts that the court has jurisdiction in this case, but the judge contradicts this. There is an urgent need for the athlete for a quick decision because he wants to take part in the national championship. There is no guaranty that the NWWB Appeal Committee or the Netherlands Institute for Sport Adjudication (Instituut voor Sportrechtspraak, ISR) can or will deliver a decision in time. The judge rules it has jurisdiction in this case.

The athlete has a disability but this disability has no consequences for the rules regarding the doping control. The judge notices that the athlete did not made any objection during the doping control how his personal data was handled. In the NWWB decision of 29 June 2009 the athlet's medical condition nor the other medication was mentioned. The judge finds that mentioning the name of the prohibited substance nandrolone as medicine in the NWWB decision does not violate the athlete's privacy. The assumption that the information mentioned in this case could be an indication for some medical specialists about the athlete's medical condition does not alter this.

Decision op 24 June 2009:
- The athlete's request is denied.
- The athlete has to bear the legal costs of the NWWB.

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 Vasile Floring Price Grafel after his sample tested positive for the prohibited substance stanozolol.

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

The ANAD Hearing Commission decides on 24 July 2009 to impose a 2 year period of ineligibility on the Athlete, starting on the date of the decision.

Related cases:

• CAS 2009/A/1767 Gert Thys vs Athletics South Africa
  July 24, 2009
• CAS 2011/A/2435 WADA vs Gert Thys, Athletics South Africa & SAIDS
  November 30, 2011
  
  

In March 2006 the IAAF has reported an anti-doping rule violation against the South-African Athlete Gert Thys after his A and B samples tested positive for the prohibited substance 19-norandrosterone.

After notification by Athletics South Africa (ASA) a provisional suspension was ordered and after several adjourments the ASA Tribunal decided to impose a period of ineligibility of 2 years and 7½ months on the Athlete, starting on 25 april 2006 (date of the provisional suspension) until 11 December 2008 (date of the Tribunal decision).

The Athlete appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport (CAS).

On 24 July 2009 the CAS Panel ruled (CAS 2009/A/1767):

1.) It has jurisdiction to hear the appeal filed by Gert Thys on 7 January 2009.

2.) The appeal of Gert Thys is upheld.

3.) The decision of Athletics South Africa of 11 December 2008 is set aside.

4.) Gert Thys is exonerated of any doping infraction and is eligible to compete without any prior reinstatement testing.

5.) The prize money, income and benefits derived from the participation of Gert Thys in the Seoul Marathon in March 2006 shall not be forfeited.

6.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Gert Thys, which is retained by the CAS.

7.) Athletics South Africa shall pay Gert Thys a contribution towards his legal fees in the amount of CHF13,000 (thirteen thousand Swiss Francs), within 30 (thirty) days of notification of this award”.

Thereupond the ASA appealed the CAS decision of 24 July 2009 with the Swiss Federal Court. The opinion of the Court ruled in this case:

1.) The Court held that a National Federation has a legally protected interest to appeal to the Federal Tribunal when the CAS revokes a sanction previously ordered.

2.) The CAS had essentially found that when the National Federation made reference to appeal proceedings before the CAS, that was an admission by the Federation that it would submit to the jurisdiction of the CAS. The Court restated that arbitration clauses are to be interpreted as any contractual clause and that the so called Vertrauensprinzip applies in this respect. Translated loosely as the “principle of trust,” the concept means that the receiving party is entitled to interpret the other party’s statements in accordance with the meaning such a statement could be given in good faith under normal circumstances. The Court found that this did not apply in this case as the letter on which the CAS had relied could not be given that interpretation.

3.) The Athlete made an attempt to requalify as an international level athlete, which may have justified CAS jurisdiction, but the Court rejected that argument as well.

Therefore, the Federal Swiss Court decides on 3 May 2009:

1.) The ASA appeal is admitted and the CAS award of 24 July 24 2009 is annulled.

2.) The CAS shall have no jurisdiction to decide the Athlete’s appeal.

3.) The court costs set at CHF 5’000.- shall be paid by the Athlete.

4.) The Athlete shall pay to the ASA an amount of CHF 6’000.- for the federal judicial proceedings.

5.) This judgment shall be notified in writing to the parties and to the Court of Arbitration for Sport (CAS).

As a result of the judgment of the Swiss Federal Court, holding in substance that an appeal against the ASA Decision had to be directed to SAIDS, and not to CAS, Mr Thys filed with SAIDS, on 4 June 2010, an appeal against the ASA Decision.

After numerous requests made by the Athlete, SAIDS failed to convene a hearing panel. Therefore in May 2011, WADA appealed the ASA decision of 11 December 2008 with the Court of Arbitration for Sport. (CAS 2011/A/2435)

CAS 2009/A/1767 Thys v. Athletics South Africa

Related cases:

• Swiss Federal Court 4A_456/2009 Athletics South Africa vs Gert Thys
  July 24, 2009
• CAS 2011_A_2435 WADA vs Gert Thys & Athletics South Africa & SAIDS
  November 30, 2011
  
  

In March 2006 the IAAF has reported an anti-doping rule violation against the South-African Athlete Gert Thys after his A and B samples tested positive for the prohibited substance 19-norandrosterone.

After notification a provisional suspension was ordered and after several adjourments the Tribunal of the Athletics South Africa (ASA) decided to impose a period of ineligibility on the Athlete from 25 april 2006 (date of the provisional suspension) until 11 December 2008 (date of the Tribunal decision).

Hereafter in January 2009 the Athlete appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport (CAS).

The Athlete asserted that an departure of the ISL had occurred in the Seoul Laboratory. He claimed that the same analyst had tested both A and B samples and that this departure of the ISL would invalidate the test results.

Following assessment of the facts of this case the Panel concludes that:

• a.) The ASA has established an adverse analytical finding of 19-norandrosterone in the urine provided by Mr.Thys on 12 March 2006;
• b.) Mr. Thys has successfülly demonstrated the departure from ISL 5.2.4.3.2.2; and
• c.) The ASA has failed to prove to the Panel's comfortable satisfaction that the departure from 5.2.4.3.2.2 did not undermine the validity of the adverse analytical finding.

Therefore on 24 July 2009 the CAS Panel decides that:

1.) It has jurisdiction to hear the appeal filed by Gert Thys on 7 January 2009.

2.) The appeal of Gert Thys is upheld.

3.) The decision of Athletics South Africa of 11 December 2008 is set aside.

4.) Gert Thys is exonerated of any doping infraction and is eligible to compete without any prior reinstatement testing.

5.) The prize money, income and benefits derived from the participation of Gert Thys in the Seoul Marathon in March 2006 shall not be forfeited.

6.) The award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by Gert Thys, which is retained by the CAS.

7.) Athletics South Africa shall pay Gert Thys a contribution towards his legal fees in the amount of CHF13,000 (thirteen thousand Swiss Francs), within 30 (thirty) days of notification of this award”.

Hereafter ASA appealed the CAS decision of 24 July 2009 with the Swiss Federal Court (case 4A_456/2009).

Thereupon in in May 2011 WADA appealed the ASA Tribunal decision of 11 December 2008 with the Court of Arbitration for Sport. (case CAS 2011/A/2435).

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

• 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

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.

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.