Facts
The French Ice Hockey Federation (Fédération Française de Hockey sur Glace, FFHG) charges respondent M40 for a violation of the Anti-Doping Rules. During a training on November 19, 2007, respondent didn't attend a doping test.

History
The respondent didn't attend the doping test because of his disappointment for not being selected to get a certificate as physical trainer and he was afraid of a positive test because he had used creatine to create more muscle mass.

Decision
1. The sanction is a period of ineligibility of twenty months in which the respondent can't take place in competition or manifestations organized or authorized by the FFHG.
2. The period of ineligibility will be reduced by the period already served in voluntary suspension.
3. The decision starts on the date of notification.
4. The decision will be published and sent to the parties involved.

CAS 2008/A/1490 World Anti-Doping Agency (WADA) v. United States Anti-Doping Agency (USADA) & Eric Thompson

• Athletics (high jump)
• Doping (cocaine)
• Reduction of the period of ineligibility
• Factors to consider when reducing the sanction
  
  

1. In determining whether a period of ineligibility may be reduced pursuant to Rule 40.3 of the IAAF Rules, the adjudicating body must determine whether exceptional circumstances exist which, when viewed in the totality of the circumstances of the specific case, demonstrate that the athlete’s fault or negligence is not significant. When the athlete has established how the prohibited substance entered his system, the threshold for consideration of a reduction of the period of suspension pursuant to IAAF Rule 40.3 is met.

2. It is a series of factors all of which taken together in the factual context which gives rise to the exceptional nature of a case and justifies the reduction of the athlete’s period of ineligibility. Among those factors are the athlete’s complete lack of experience in doping matters and as a national or international athlete the lack of guidance and support from his coaches or others; the lack of intention to influence or enhance his/her performance at the relevant time; and his/her relatively young age.

Mr. Eric Thompson is a track and field Athlete and at the time student at the University of Arkansas.

USADA has reported an anti doping rule violation against Respondent after his samples tested positive for the prohibited substance cocaine. After notification the Athlete accepted a provisional suspension and he was heard for the North American Court of Arbitration for Sport (NACAS).

The Athlete acknowledged he had used a small amount of cocaine at a school party two days before the competition and he had no intention to enhance sports performance. The result of the doping test confirmed the Athlete’s statement.
Considering the circumstances in this case the North American Court of Arbitration for Sport Panel decides on 31 January 2008 to impose a 1 year period of ineligibility on the Athlete.

Hereafter in February 2008 the World Anti-Doping Agency (WADA) appealed the NACAS decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the NACAS decision and to sanction the Athlete with a 2 year period of ineligibility.

The CAS Panel concludes that exceptional circumstances permit a reduction of the otherwise applicable period of ineligibility of two years. However the CAS Panel arrive at the same conclusion for somewhat different and more comprehensive reasons that those of the NACAS Arbitrator.

Therefore the Court of Arbitration for Sport decides on 25 June 2008:

1.) The appeal filed by WADA on 20 February 2008 is dismissed.

2.) This Award is pronounced without costs, except for the Court Office fee of CHF 500 paid by WADA, which is to be retained by the CAS.

3.) Each party shall bear its own costs.

CAS 2007/A/1413 World Anti-Doping Agency (WADA) v. Fédération Internationale de Gymnastique (FIG) & Nadzeya Vysotskaya

• Gymnastics
• Doping (furosemide)
• Time limit to appeal a decision according to the WADA Rules
• Doping offense and intended purpose for using the prohibited substance
• Minor athletes and elimination or reduction of the fault or negligence

1. Provisions set out in the rules governing sports associations may derogate to Article 75 of the Swiss Civil Code. In particular, they may provide for a different statute of limitations or they may provide that the time limit starts to run when the decision has been formally notified to the appellant. In this respect, the mere fact that a press release was posted on the FIG’s website is in itself not sufficient to impose a good faith obligation on WADA to enquire about a decision issued by such federation.

2. In accordance with Article 2.1.1 of the FIG Antidoping Rules, the presence of a prohibited substance, such as furosemide, in the bodily specimens of a gymnast is sufficient in itself to constitute a doping offence. In this respect, the intended purpose for using the substance is irrelevant.

3. The fact that a gymnast was a minor at the time s/he was tested does not constitute either a circumstance eliminating or reducing his/her fault or negligence. The FIG Antidoping Rules do not anticipate a different regime for minors. There is no automatic exception based on age. Such an exception is not spelled out in the Rules and would not only potentially cause unequal treatment of gymnasts, but could also put in peril the whole framework and logic of anti-doping rules, not least in the light of the fact that in gymnastics (like in other sport) it is not uncommon to have minors compete at the highest level.

In September 2006 the International Gymnastics Federation (FIG) has reported an anti-doping rule violation against the minor Belarussian gymnast after her sample tested positive for the prohibited substance Furosemide.

Consequently the FIG Disciplinary Commission decided on 12 November 2006 to impose a period of ineligibility on the Athlete, from 13 May 2006 unit 31 December 2006.

Hereafter in September 2007 the World Anti-Doping Agency (WADA) appealed the FIG Decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the Appealed Decision and to impose a 2 year period of ineligibility on the Athlete.

Preliminary the Panel concludes that WADA's appeal is admissible due to FIG had not timely notified its decisions to WADA. As a result it had received the Appealed Decision in September 2007, almost one year after it had been rendered.

The Panel holds that it is undisputed that the presence of a prohibited substance has been established in the Athlete's sample and accordingly that she committed an anti-doping rule violation.

In view of the evidence the Panel deems that the mere statement by the Athlete is far from sufficient to establish how Furosemide had entered her body since in essence her defense is limited to a speculative suggestion that her drink could have been spiked, without any evidence of any such action.

Although the Athlete was a minor at the time she was tested the Panel regards that under the Rules there are no grounds for elimination or reduction of the period of ineligibility.

Therefore the Court of Arbitration for Sport decides on 20 June 2008:

1.) The decision of the FIG Disciplinaiy Commission of 12 November 2006 is set aside.

2.) Ms Nadzeya Vysotskaya is sanctioned with a two-year period of ineligibility, starting on 12 September 2006 and ending on 12 September 2008.

3.) All results achieved during the foregoing period of ineligibility are disqualified and any medals, points and prizes obtained are forfeited.

4.) The costs of the arbitration, to be determined and served on the parties by the CAS Court Office, shall be borne jointly by the FIG and Ms Nadzeya Vysotskaya.

5.) The FIG and Ms Nadzeya Vysotskaya shall pay jointly to WADA an amount of CHF 5,000 (five thousand Swiss Francs) as compensation for expenses incurred in connection with this arbitration.

6.) All other prayers for relief are dismissed.

Rechtbank Utrecht
Sector handels- en familierecht
June 18, 2008
248313 / KG ZA 08-450

ECLI:NL:RBUTR:2008:BD4381

Related cases:
- KNVB 2007 KNVB Decision Disciplinary Committee 2007082 T
August 15, 2007
- KNVB 2007 KNVB Decision Appeal Committee 2007082 B
November 14, 2007

In May 2007 the Royal Dutch Football Association (Koninklijke Nederlandse Voetbalbond, KNVB) has reported an anti-doping rule violation against the athlete after his A and B samples tested positive for the prohibited subsatance amphetamine. In his defence the athlete wanted to file the results of a hair test as evidence.
The hairtest wasn't performed in an accredited laboratorium and under the WADA Rules such a test is not approved as evidence.

- On 15 August 2007 the KNVB decided to impose a 2 year period of ineligibility on the Athlete.
- On 14 November 2007 the KNVB Appeal Committee dismissed the Athlete's appeal against the decision of 15 August 2007.

Hereafter the Athlete opened proceedings with the Dutch Civil Court in Utrecht against the KNVB decision of 15 August 2007.
He requested the Court to allow the results of his hair test as evidence to prove he didn't use doping and to annul the imposed sanction.

Submissions Athlete:
- the KNVB disciplinary committee was not impartial;
- the expert is prejudiced in his comments and not independent, and the ame is true for as the disciplinary committee who based her decision on the expert;
- the process was sloppy regarding the paperwork;
- there were procedural errors in handling the sample;
- the imposed sanction could be reduced referring to jurisprudence about another player.

Submissions KNVB:
- the disciplinary committee is impartial;
- both samples A and B are sufficient prove of an anti-doping rule violation;
- Under the Rules the results of the urine test is valid evidence, a hair test is invalid;
- As member of the KNVB he accepted the rules and regulations;
- a hair test is inadequate to proof the presence of amphetamine;
- the expert had never given comments about the hair test;
- although parts of the paperwork were inadequate it doesn't change the result of the KNVB decision;
- The other cases mentioned as jurisprudence had different circumstances.

The judge ruled to dismiss this case.

Decision
- The Athlete's proceedings are rejected.
- The athlete shall bear the costs for the legal representation of the KNVB.

RECENT CAS DECISIONS OF INTEREST
Since the beginning of 2008 there have been a number of interesting decisions from the Court of Arbitration for Sport on anti-doping matters. Several deal with the weak response of national federations to adverse analytical findings.

CAS A3/2007 ASADA v/ Belinda Van Tienen

In October 2005 four Australian weightlifters tested positive for the prohibited substance Benzylpiperazine due to they had used the supplement Fortius Synephrine containing this banned substance.

Thereupon an investigation conducted by the Australian Sports Anti-Doping Authority (ASADA) established that the weightlifter Belinda Van Tienen was involved in the sale of this product. Furthermore reanalysis in the UCLA Laboratory of her test results revealed the presence of Benzylpiperazine.

Accordingly ASADA in November 2007 reported an anti-doping rule violation against the Athlete. Following notification the Athlete accepted a provisional suspension whereas the case was referred to the Oceania Registry Court of Arbitration for Sport (CAS).

The Athlete accepted the test results and denied the intentional use of the substance. She acknowledged that she had used and sold supplements and that she was not aware that any batches of Synephrine contained Benzylpiperazine contaminations.

Following assessment of the evidence the Sole Arbitrator determines that:

• The computer data produced by the analysis of the Athlete's A sample in June 2005 is evidence of substantial weight and probative value.
• ASADA has established that the Athlete had committed an anti-doping rule violation.
• The Athlete had used Synephrine from the same batch the other athletes had used.

Therefore the Court of Arbitration for Sport decides on 16 June 2008 that:

1.) Belinda Van Tienen has breached Article 5 of the Anti-Doping Policy of the Australian Weightlifting Federation and has thereby committed an Anti-Doping Rule Viotation.

2.) Belinda Van Tienen's individual results obtained in the Mermet Cup competition or event held in the USA in June 2005 are disqualified; accordingly Belinda Van Tienen forfeits all
placings, medals, points and prizes obtained in that competition or event.

3.) Belinda Van Tienen is ineliglble to compete during the period commencing on 27 November 2006 and expiring at midnight on 26 November 2008.

4.) Save for the Court fees whlch have been paid by the Applicant each party shall contribute equally to the Court's costs. The final assessment of the arbitration costs will be served by the CAS Court Office after the communication of the present award.

5.) The Award be made public.

CAS A1/2008 Australian Sports Anti-Doping Authority vs Nathan O'Neill

In March 2008 the Australian Sports Anti-Doping Authority (ASADA) has reported an anti-doping rule violation against the cyclist Nathan O’Neill after his A and B samples – collected in the United States in August 2007 – tested positive for the prohibited substance Phentermine. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and he was heard for the Court of Arbitration for Sport (CAS) Oceania Registry.

The Athlete admitted the use of the substance, accepted the test results and argued that there were grounds for No Significant Fault or Negligence. He stated that he knew that the substance was prohibited in competition and he understood that 5 days would be more than enough time to clear this substance from his system.
Because of the positive test he was surprised that the substance could remain in his system for some 7 days.
Through research the Athlete demonstrated, sustained with evidence, that his use of phosphate tablets and bicarbonate capsules while using Phentermine effected the clearance time and consequently the Phentermine could be detected within a period of 10 days producing a positive test.

The Panel accepted the Athlete’s explanation and evidence and concludes that he established No Significant Fault or Negligence in this case for a reduced sanction.

Therefore the Court of Arbitration for Sport decides on 13 June 2018 that:

1.) Nathan O'Neill has breached Article 5.1 of the Anti-Doping Policy of Cycling Australia and has thereby committed an Anti-Doping Rule Violation.
2.) Pursuant to Article 13.1 of the Anti-Doping Policy of Cycllng Australia, Nathan O’Neill is disqualified from his individual results obtained in the Tour of Elk Grove Event on 11 and 12 August 2007 with all consequences, incluqing forfeiture of all medals, points and prizes.
3.) Nathan O'Neill has established that he bears No Significant Fault or Negligence, within the meaning of Article 13.6.2 of the Anti-Doping Policy of Cycling Australla, in respect of the Violation referred to in 1 above.
4.) The period of ineligibility in respect of that Violation is reduced to a period of 15 months, commencing on 12 August 2007 and expiring at midnight on 11 November 2008.
5.) Pursuant to Article 11.10 of1he Anti-Doping Policy of Cycling Australla and clause 16 of the signed Order of Procedure herein, there be no order as to costs.

• CAS 2008/A/1461 Gatlin v/ USADA
• CAS 2008/A/1462 lAAF v/ USATF & Gatlin
• CAS 2008/A/1461 Justin Gatlin v. United States Anti-Doping Agency (USADA)
• CAS 2008/A/1462 IAAF v. USA Track & Field (USATF) & Justin Gatlin
  
  

Related cases:

• AAA 2001 No. 30 190 00546 01 USADA vs Justin Gatlin
  May 1, 2002
• AAA 2007 No. 30 190 00170 07 USADA vs Justin Gatlin
  December 31, 2007
• AAA 2007 No. 30 190 00170 07 USADA vs Justin Gatlin - Dissenting Opinion
  December 31, 2007

• Athletics
• Doping (amphetamines)
• Application of the World Antidoping Code
• Fault of the athlete
• Reduction of the sanction based on exceptional circumstances

1. The WADA Code does not apply as between a signatory organization and its members, unless the signatory organization has expressly incorporated the WADA Code into its own relevant rules. If only some provisions of the WADA Code have been incorporated into the own rules of the signatory organization, the WADA Code is not directly applicable to the case at stake.

2. If, under the IAAF Rules, a doping offense is a strict liability offense, fault is not a part of determining whether or not an offense was committed.

3. If the sanction to be imposed is based on the existence of two antidoping violations, the circumstances surrounding both violations must be taken into account when determining whether there are exceptional circumstances for the purposes of determining the period of ineligibility.

In May 2002 a sanction of 2 years was imposed on the Athlete Justin Gatlin related to the prescribed medication he used as treatment for his Attention Deficit Disorder.

On 3 July 2002 the lAAF Council granted the request for early reinstatement on the basis that it believed that Mr. Gatlin had a genuine medical explanation for his positive result. The effect of this reinstatement was that the Athlete served a provisional suspension of almost one year.

In May 2006 the United States Anti-Doping Agency (USADA) reported a second anti-doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance Testosterone.

Consequently on 31 December 2007 the North American Court of Arbitration for Sport Panel (AAA) decided to impose a 4 year period of ineligibility on the Athlete. Hereafter in both the Athlete and the IAAF appealed the AAA Panel decision with the Court of Aribitration for Sport (CAS).

Undisputed in this appeal is that Mr. Gatlin’s positive test in 2006 constitutes an anti-doping rule violation. The main issue before this Panel is what ought to be the sanction for the 2006 Violation. The other important issue is what ought to be the start date for the sanction.

Following assessment the Panel concludes that the 2006 Violation was the Athlete's second anti-doping rule violation. Futhermore the invoked Americans with Disabilities Act does not prevent this Panel from imposing a sanction on the Athlete.

The CAS Panel finds that the totality of the circumstances surrounding the Athlete's 2001 case are such that they constitute exceptional circumstances for the purposes of determining the period of ineligibility. The Panel therefore decides that Mr. Gatlin’s period of ineligibility is to be four years.

Therefore the Court of Arbitration for Sport decides on 6 June 2008:

1.) The appeal filed by Mr Justin Gatlin on 21 January 2008 is rejected.

2.) The appeal filed by the IAAF on 23 January 2008 is upheld in part.

3.) The decision of the American Arbitration Association dated 31 December 2007 is amended by altering the commencement date of the period of ineligibility from 26 May 2006 to 25 July 2006 when Mr Justin Gatlin voluntarily accepted a provisional suspension.

4.) The decision of the AAA Panel is further amended by cancelling all of Mr. Gatlin’s competition results from the date of the sample collection on 22 April 2006 until the commencement of the period of ineligibility set out in paragraph 3 above.

5.) The balance of the decision of the AAA Panel will remain unaltered and the period of ineligibility of four years is confirmed.

(…)

Facts
The French Federation of Bullfighting (Federation Française de course camarguaise, FFCC) charges respondent M39 for a violation of the Anti-Doping Rules. During an event on July 15, 2007, a sample was taken for doping test purposes. The analysis of the sample showed the presence of metabolites of cannabis and of cocaine. These substances are prohibited according the World Anti-Doping Agency (WADA) prohibited list. Cannabis is regarded as a specified substance.

History
The respondent blames the samplers for negligence, they were handling eight athletes that needed to be tested. He even wants a DNA test to prove that the taken samples came out of his body. He even contacts the samplers to make them admit the circumstances where in poor conditions.
However there was no proof of any errors during the sample collecting procedure.

Decision
1. The sanction is a period of ineligibility of two years in which respondent can't take part in competition or manifestations organized by the FFCC, as pronounced in the decision of September 24, 2007, by the disciplinary committee of the FFCC.
2. The period of ineligibility should be reduced with the time already served by the decision of September 24, 2007, by the disciplinary committee of the FFCC.
3. The decision start on the date of notification.
4. The decision will be published and sent to the parties involved.

Facts
The French Federation of Bullfighting (Federation Française de course camarguaise, FFCC) charges respondent M28 for a violation of the Anti-Doping Rules. During an event on October 7, 2007, the respondent didn't attend the doping control.

History
The respondent claims that he wasn't informed to be tested. He left the event without seeing the sampler. But later he admits that he was afraid being tested positive for the use of cannabis.
Respondent had made an appeal against the decision of the disciplinary committee.

Decision
1. The sanction is a period of ineligibility of two years in which respondent can't take part in competition or manifestations organized by the FFCC.
2. The decision (period of ineligibility of one year, six months conditional) made by the disciplinary committee of the FFCC, dated November 15, 2007, should be modified.
3. The period of ineligibility should reduced with the time already served by the decision of November 15, 2007.
4. The present decision will start on the date of notification.
5. The decision will be published and sent to the parties involved.