AAA 2006 No. 30 190 00405 06 USADA vs James Mortenso

25 Sep 2006

Respondent subject to out-of-competition ("OOC") testing in 2004. As a result of several events, a Missed Test-Unavailable was declared. Because of a missed test in an eighteen month period Claimant charges Respondent with an anti-doping rule violation. Respondent failed his tests because had largely given up trying to race competitively.

Discussion and findings: Therefore, this panel imposes a two-year period of ineligibility commencing on the day of the hearing, August 22, 2006. WADA Code, Art. 10.8. This panel also disqualifies any and all of Mr. Mortenson's competitive results achieved on and subsequent to October 22, 2005, the day of his last violation. WADA Code, Art. 10.7.

The administrative fees and expenses of the American Arbitration Association and the compensation and expenses of the arbitrators shall by borne entirely by USOC.

WADA Prohibited List 2007

16 Sep 2006

The 2007 Prohibited List International Standard : The World Anti-Doping Code / World Anti-Doping Agency (WADA). - Montreal : WADA, 2006.

- The official text of the Prohibited List shall be maintained by WADA and shall be published in English and French. In the event of any conflict between the English and French versions, the English version shall prevail.
- This List shall come into effect on 1 January 2007

CPLD 2006 FFVB vs Respondent M57

14 Sep 2006

Facts
The French Federation of Volley-ball (Fédération Française de Volley-ball, FFVB) charges respondent M57 for a violation of the Anti-Doping Rules. During a Volleyball match on December 10, 2005, a sample was taken for doping test purposes. The sample showed the presence of a metabolite of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent had received a warning by the disciplinary committee of the FFVB. Considering that respondent does not dispute the results of the analyses he appeared before the disciplinary body federal, he was surprised by the results of the analyses, claiming never to have smoked cannabis; he explains the presence of this substance in urine from passive smoking during a party at the eve before the doping control.

Decision
1. The sanction is a period of ineligibility of three months, from which two conditionally, in which the respondent can't take part in competition or manifestations organized or authorized by the FFVB.
2. The decision starts on the date of the notification.
3. The decision will be published and sent to the parties involved.

CPLD 2006 FFRS vs Respondent M59

14 Sep 2006

Facts
The French Roller Skating Federation (Fédération Française de Roller Skating, FFRS) charges respondent M59 for a violation of the Anti-Doping Rules. During a contest on January 7, 2006, a sample was taken for doping test purposes. The analysis of the sample showed the presence of a metabolite of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent didn't object against the findings, also he didn't sent written statements and didn't attend the hearing.

Decision
1. The sanction is a period of ineligibility of three months, from which one month conditionally, in which respondent can't take part in competition or manifestations organized by the FFRS.
2. The present decision will start on the day of notification.
3. The decision will be published and sent to the parties involved.

CPLD 2006 FFL vs Respondent M58

14 Sep 2006

Facts
The French Wrestling Federation (Fédération Française de Lutte, FFL) charges respondent M58 for a violation of the Anti-Doping Rules. After a match on November 19, 2005, respondent failed to attend the requested doping control.

History
Respondent had a knee injury during the match and went to the hospital without attending the doping control. At the hearing he explained that he was not able to master his deception after his injury, for which he couldn't combat for several weeks.

Decision
1. The sanction is a period of ineligibility lasting eighteen months, with nine months conditionally, in which respondent can't take part in competition or manifestations organized or authorize by the FFL.
2. The decision starts on the date of notification.
3. The decision will be published and sent to the parties involved.

CPLD 2006 FFVB vs Respondent M57

14 Sep 2006

Facts
The French Federation of Volley-ball (Fédération Française de Volley-ball, FFVB) charges respondent M57 for a violation of the Anti-Doping Rules. During a Volleyball match on December 10, 2005, a sample was taken for doping test purposes. The sample showed the presence of a metabolite of cannabis. Cannabis is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent had received a warning by the disciplinary committee of the FFVB. Considering that respondent does not dispute the results of the analyses he appeared before the disciplinary body federal, he was surprised by the results of the analyses, claiming never to have smoked cannabis; he explains the presence of this substance in urine from passive smoking during a party at the eve before the doping control.

Decision
1. The sanction is a period of ineligibility of three months, from which two conditionally, in which the respondent can't take part in competition or manifestations organized or authorized by the FFVB.
2. The decision starts on the date of the notification.
3. The decision will be published and sent to the parties involved.

CPLD 2006 FFHMFAC vs Respondent M56

14 Sep 2006

Facts
The French Federation of Weightlifting, Fitness, Powerlifting and Bodybuilding (Fédération Française d'Halterophilie, Musculation, Force Athlétique et Culturisme, FFHMFAC) charges respondent M56 for a violation of the Anti-Doping Rules. During a contest on December 17, 2005, respondent didn't supply a sample for doping control.

History
The respondent did attend the doping control but was summoned to go to his job and didn't undergo his doping control. To prove his good faith he used a private laboratory and this analysis showed the presence of testosterone, cortisol, caffeine and ephedrine.

Decision
1. The sanction is a period of ineligibility of two years, during this period respondent can't take part in competition or manifestations organized by the FFHMFAC.
2. The decision start on the date of notification.
3. The decision will be published and sent to the parties involved.

CPLD 2006 FFSG vs Respondent M55

14 Sep 2006

Facts
The French Federation of Ice Sports (Fédération Française de Sports de Glace, FFSG) charges respondent M55 for a violation of the Anti-Doping Rules. During a match on October 29, 2005, a sample was taken for doping test purposes. The analysis of the sample showed the presence of metabolites of metandienone. Metandienone is a prohibited substance according the World Anti-Doping Agency (WADA) prohibited list.

History
The respondent didn't provide any information about how the prohibited substances had entered his body.

Decision
1. The sanction is a period of ineligibility of two years in which respondent can't take part in competition or manifestations organized or authorized by the French Ice Hockey Federation (FFHG).
2. The decision will start on the date of notification.
3. The decision will be published and sent to the parties involved.

Cologne District Court 28 O (Kart) 38_05 Bernhard Lagat vs WADA & IAAF

13 Sep 2006

Landgericht Köln, 28. Zivilkammer - 28 O (Kart) 38/05

On 10 August 2003 the Kenyan-American Athlete Bernard Lagat provided a sample in Germany during an out-of-competition doping test which was analysed at the German WADA-accredited laboratory in Cologne.

The Kenyan Athletics Federation (KAF) reported an anti-doping rule violation against the Athlete after his A-sample tested positive for the prohibited substance recombinant human erythropoietin (rhEPO). KAF notified the Athlete on 4 September 2003 of the positive test result and ordered a provisional suspension.

The Athlete requested the B-sample to be tested and hereafter on 29 September 2003 the result of the B-sample did not confirm the test result of the A-sample. This false positive test result of the A-sample was caused by an ineffective rhEPO test.
On 1 October 2003 the IAAF published the news on its webpage that result of the B-test did not confirm the result of the A-Test which is why the Athlete was eligible to run.

In October 2005 the Athlete filed a claim with the Cologne District Court in Germany against the World Anti-Doping Agency (WADA) and the International Association of Athletics Federation (IAAF).

The Athlete claimed compensation of € 155.000 because of loss of income in the second half of 2003, and further loss of income of € 200.000. In this legal dispute the Athlete appealed exclusively to German legal provisions and claimed that German law was applicable.

The Athlete argued that he had lost profit due to the false positive result of the A-sample and the provisional suspension. Also he claimed compensation because he was badly branded in the news due to the announcement and worldwide publication of the positive test result of his A-sample.

The Court concludes that the Athlete failed to show that any of his sponsors or potential sponsors abandoned him due to the news about his positive test result and his provisional suspension. Also after the provisional ban was lifted the Athlete could participate in the years from 2004 in sporting events in Germany without any further restrictions or losses of income.

The Court notes that the Athlete assumed that WADA, IAAF, or the KAF made the announcement of the Athlete’s positive test result. In fact it was a trainer of the Kenyan athletics team who mentioned the positive test result in an interview with a Kenyan newspaper. Also the Athlete failed to adequately illustrate his loss in profit for the sporting events in which he could not participate during the period he was provisionally suspended.

On 13 September 2006 the Cologne District Court in Germany rules that it has no international jurisdiction for the compensation claims of the Athlete. The Court decides that the Athlete’s claim is partially not permissible and otherwise without ground.

CAS 2006_A_1057 UCI vs Barry Forde & Barbados Cycling Union

11 Sep 2006

CAS 2006/A/1057 UCI v/Barry Forde & Barbados Cycling Union

  • Cycling
  • Doping (testosterone)
  • Independence of the CAS panel
  • CAS power of review in connection with the translation of documents
  • Burden and standard of proof in case of an exogenous source of a prohibited substance
  • Determination of the applicable sanction for a second anti-doping violation

1. Considering that the CAS list of arbitrators is in line with the constitutional demands of independence and impartiality applicable to arbitral tribunals and that the arbitrators selected on said list are experts familiar with both legal and sports-related issues, a party’s complaint concerning the unlawful composition of the arbitral tribunal is unfounded.

2. Pursuant to the Code of Sport-related Arbitration, it is up to the arbitration panel to decide what documents need to be translated or not. A panel can choose not to order any further translation than that which is provided by an appellant, especially if the respondents never requested the translation of the disputed documentation before the filing of the answer, never referred to any stipulation which obliges the federation or the accredited laboratory to spontaneously translate the relevant documents and if the panel knows from other CAS procedures that the respondent’s counsel is also comfortable with the language of the documents and the largest part of the documentation consists of scientific statistics.

3. According to the applicable anti-doping rules, a federation shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether the federation has established an anti-doping rule violation to the comfortable satisfaction of the hearing body bearing in mind the seriousness of the allegation which is made. Furthermore, WADA-accredited laboratories are presumed to have conducted sample analysis and custodial procedures in accordance with the International Standard for Laboratory analysis. Therefore, the test results conducted by an accredited laboratory indicating an exogenous source of testosterone, shift the burden of adducing exculpatory circumstances to the athlete. When the contentions made by the athlete are not substantiated by anything concrete, his allegations are not established and do not suffice to put into question the quality of the test itself or to reverse the presumption implemented by the anti-doping rules. The result is that at any concentration, an athlete’s sample shall be deemed to contain a prohibited substance and no further investigation is necessary.

4. It is well established that a two-year suspension for a first time doping offence is legally acceptable. The fact that, according to the applicable anti-doping rules, the period of ineligibility imposed for a second anti-doping violation shall be a minimum of two years and a maximum of three years does therefore not appear as disproportionate in the absence of any established exceptional attenuating circumstances. Where an athlete is unable to establish how the prohibited substance entered his system, no elimination of the period of ineligibility or reduction of the period of ineligibility can be applied and a minimum sanction of 2 years (for a first violation) must be imposed according to the rules in force (UCI and WADA). Nevertheless, the circumstances in which the first doping offence occurred i.e. use of ephedrine, its mild sanction, the years which went by and the athlete’s presence and testimonies at the hearing are element which should be taken into account to assess the applicable sanction for a second violation.



In November 2005 the International Cycling Union (UCI) reported an anti-doping rule violation against the Barbados cyclist Barry Forde after his A and B samples tested positive for the prohibited substance Testosterone.

However the Barbados Cycling Union (BCU) decided on 23 February 2006 to cease the disciplinary proceedings against the Athlete. Here the BCU accepted the medical evidence that the Athlete underwent treatment for his condition and it explained his elevated testosterone/epitestosterone levels in that period.

Hereafter in March 2006 the UCI appealed the BCU decision with the Court of Arbitration for Sport (CAS). The UCI requested the Panel to set aside the BCU decision of 23 February 2006 and to sanction the Athlete for committing an anti-doping rule violation.

The UCI argued that the presence had been established of exogenous Testosterone in the Athlete’s sampleand that his medical condition could not explain these test results. The Athlete had no TUE for the use of Testosterone whereas this is his second anti-doping rule violation.

The Athlete denied the intentional use of the substance and requested the Panel to uphold the BCU decision. The Athlete and BCU argued that there had been departures regarding the right to fair evidence proceedings and regarding the test results.

The Panel rejected the arguments that the documentation provided by the French LNDD Lab had not been translated into English. Also the Athlete and the BCU failed to demonstrate that the right to fair evidence proceedings had been volated. Their complaints regarding the B-sample analysis procedure were unfounded.

The Panel finds that the Athlete and the BCU failed to demonstrate that the LNDD Lab had not tested the samples in accordance with the international standards. Considering the test results the Panel finds as beyond doubt that the source of the Testosterone was exogenous and that the presence of a prohibited substance in the Athlete’s samples can’t be explained by a physiological or pathological condition.

Therefore the Court of Arbitration for Sport decides on 11 September 2006:

1.) The appeal filed by the Union Cycliste Internationale on 23 March 2006 is upheld.

2.) The appealed decision issued on 23 February 2006 by the Barbados Cycling Union is set aside.

3.) Mr Barry Forde shall be declared ineligible for two years and two months from 31 December 2005.

4.) Mr Barry Forde’s results, points and prizes obtained during the "6 jours de Grenoble" which took place from 27 October to 2 November 2005 as well as during all subsequent races are forfeited.

5.) (…)

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