CAS 2005/A/831 International Association of Athletics Federation (IAAF) v. Eddy Hellebuyck

Related cases:

• AAA No. 30 190 00686 04 USADA vs Eddy Hellebuyck
  December 9, 2004
• AAA No. 77 190 168 JENF USADA vs Eddy Hellebuyck
  January 30, 2012
  
  

• Athletics
• Doping (recombinant EPO)
• Reliability of the testing procedure used for detecting rhEPO
• Beginning of the period of ineligibility

1. A mere hypothetical possibility of false positives, i.e. pure speculation about the unreliability of the testing procedure, is, on its own, not sufficient for calling into question the reliability of the testing procedure. Rather evidence must be shown that the test procedure results are unreliable and that false positives occur. The threshold for this is high; for it must be taken into account that 1) the various WADA accredited laboratories already have extensive experience with the testing procedure; 2) there is a long jurisprudential basis for the acceptance of the testing procedure within the CAS and other dispute resolution Institutions in sport; 3) the validity of the testing procedure has been the subject of a number of studies that have been published in peer-reviewed journals and was also the subject of scrutiny at various scientific meetings.

2. If the athlete was able to continue to participate in competitions in the period between the taking of the sample and the hearing of his/her case, if it was within the athlete’s control to determine the commencement of the two-year suspension by accepting a “provisional suspension”, and if the athlete himself/herself contributed very significantly to the delay in the proceedings, then it cannot be said that he/she has suffered any legal disadvantages through the excessively long duration of the proceedings. Therefore, there are no compelling reasons of fairness which would justify an (unwritten) exception stating that the two-year sanction shall begin to run on the day on which the sample was taken, contrary to the clear and unambiguous wording of the applicable rule according to which the suspension shall start from the date of the hearing at which it is decided that the Doping Offence has been committed.

Mr Eddy Hellebuyck is an elite-level distance runner in the sport of track and field. He was born on 22 January 1961. He is a member of USA Track and Field (USATF) the national governing body of the sport of athletics in the United States of America.

USADA has reported an anti doping rule violation against the Athlete after his A and B samples tested positive for the prohibited substance recombinant human erythropoetin (rhEPO). After notification a provisional suspension was ordered.

The Athlete did not accept the provisional suspension and he participated in competitions during the entire period between the sample collection and the day he was heard for the North American Court of Arbitration for Sport (NACAS) on 30 November 2004.

On 9 December 2004 NACAS concluded that the Athlete violated the anti-doping rules and decided to impose 2 year period of ineligibility on the Athlete starting on 31 January 2004.

Hereafter in February 2005 te IAAF filed an appeal against NACAS’s decision with CAS. On 21 February 2005 the Athlete filed a motion to dismiss the IAAF appeal.
In its preliminary decision dated 4 July 2005 the CAS Panel rejected the Athlete’s motion to dismiss the IAAF appeal and ordered the Athlete to file his statements and objection’s.

The Athlete argued that the method adopted by the Laboratory to detect rhEPO has not been scientifically validated and the Athlete’s samples and the control samples were poorly stored.
The Athlete's questioned the commencement of the period of ineligibility.

Further he invoked the principle of lex mitior, in order to justify a commencement of the two-year sanction in derogation for Rule 60 (2)(a) of the former IAAF Rules.
Finally, the he is also invoked Art. 10.8 WADA in order to justify a different commencement date of the period of ineligibility from that required by Rule 60 (2)(a) of the former IAAF Rules.

The CAS Panel concludes that the Athlete has not established doubt about the reliability of the testing procedure. There is no evidence to establish that a false positive occurred. The Panel is satisfied beyond a reasonable doubt that the Athlete’s sample contained rhEPO.

Therefore the Athlete’s counter appeal is dismissed. The Panel deems that there is no legal basis for a point in time other than 30 November 2004 as a commencement date for the two-year sanction.

The NACAS’s decision must therefore be set aside and the IAAF appeal is admissible. The two-year period of ineligibility begins on the date of the hearing before NACAS on 30 November 2004 and ends on 29 November 2006. Furthermore the Athlete’s competition results achieved from the date on which the sample was provided, until the date of the hearing, shall be annulled.

Therefore the Court of Arbitration for Sport Panel decides on 5 May 2006:

1.) Upon appeal by the IAAF, the decision of the NACAS dated 9 December 2004 is set aside.

2.) The Respondent, Eddy Hellebuyck, has committed an anti-doping rule violation under Rule 60 (2)(a) of the IAAF Rules 2002-2003.

3.) The Respondent is declared ineligible for a period of two years. The period of ineligibility commences on 30 November 2004 and ends upon expiry of 29 November 2006.

4.) Any competition results between the 31 January 2004 and the date of the hearing on 30 November 2004 are annulled under Rule 59 (4) of the IAAF Rules 2002-2003.

5.) The counter appeal by the Respondent is dismissed.

6.) The Award is rendered without costs except for the CAS Court Office fee of CHF 500, which is retained by the CAS.

7.) Each party shall bear its own costs.

CAS 2005/A/969 Erwin Bakker v. Koninklijke Nederlandsche Wielren Unie (KNWU) & Union Cycliste Internationale (UCI)

Related cases:

• CAS 2005/A/936 UCI vs Erwin Bakker & KNWU
  April 20, 2006
• Swiss Federal Court 4A_237_2010 Erwin Bakker vs UCI
  October 6, 2010
• ECHR 7198/07 Erwin Bakker vs Switzerland
  September 26, 2019

• Cycling
• Doping (r-EPO)
• Gross negligence
• Second doping violation
• Determination of the applicable sanction

1. An athlete of international level is grossly negligent if he doesn’t pay the utmost attention to any substance entering his body especially to a substance reported by his doctor to be a “risky product”. In such a case, he must either refuse it or ask what product it is and what it contains, especially if he was already involved in a previous positive case. The athlete who does not react to his doctor’s prescription and simply accepts an injection has a behaviour contradictory to all warnings contained in the UCI Anti-Doping Rules. Therefore, the No Significant fault or No Significant Negligence notion cannot be applicable.

2. Pursuant to art. 269 of the UCI Anti-Doping Rules, a second anti-doping rule violation may be considered for purposes of imposing sanctions only if it is established that the athlete committed the second anti-doping rule violation after he received notice of the first one. Notice to an athlete may be accomplished by delivery of the notice to his National Federation or as provided by the applicable Anti-Doping Rules. The National Federation shall be responsible for making immediate contact with the athlete. In that case, the two anti-doping rule violations are two separate offences.

3. Under the applicable regulations, the sanction that is applicable for a second violation is a lifetime ineligibility. No possibility of reduction is conceivable where the athlete was significantly negligent and infringed basic principles of sport such as sportsmanship and fair play and in particular the UCI Rules governing him and his sport.

In April 2005 the Royal Dutch Cycling Federation (KNWU) has reported an anti-doping rule violation against the cyclist Erwin Bakken after his A and B samples - provided in Spain in March 2005 - tested positive for the prohibited substance testosterone with a T/E ratio above the WADA threshold.

On 1 July 2005, the KNWU Anti-Doping Committee decided to acquit the Athlete from any charges related to a doping offence. Hereafter in August 2005 the UCI appealed the KNWU decision of 1 July 2005 with the Court of Arbitration for Sport (CAS).

On 20 April 2006 the CAS Panel decided to uphold the UCI appeal and to annul the decision issued by the KNWU (CAS 2005/A/936). Accordingly the Panel decided to impose a 2 year period of ineligibility on the Athlete, starting on 2 February 2006. Furthermore the Panel disqualified the Athlete from the Vuelta Internacional a Valladolid 2005 and any other race in which he competed between 26 March 2005 and 2 February 2006

While already involved in the anti-doping rule violation proceedings – reported in April 2005 – the Athlete participated in Canada in a competition in June 2005. Thereupon in July 2005 the KNWU reported a second anti-doping violation against the Athlete after his sample – provided in Canada in June 2005 – tested positive for the prohibited substance recombinant human erythropoetin (rhEPO).

Consequently on 5 September 2005 the KNWU Anti-Doping Committee decided to impose a 2 year period of ineligibility on the Athlete and a CHF 2000 fine for the anti-doping rule violation committed in Canada.

Hereafter in October 2005 the Athlete appealed the KNWU decision of 5 September 2005 with CAS (CAS 2005/A/969). At the same time the Athlete was already involved in the first CAS proceeding (CAS 2005/A/936) after the UCI had appealed the KNWU acquittal decision of 1 July 2005.

Considering the previous CAS decision of 20 April 2006 (CAS 2005/A/936) as a first anti-doping rule violation the CAS Panel decides on 5 May 2006 this Award (CAS 2005/A/969):

1.) The appeal filed by the Athlete Mr Erwin Bakker is rejected.

2.) The decision of the Koninklijke Nederlandsche Wielren Unie’s Anti-Doping Commission dated 5 September 2005 is annulled.

3.) Mr Erwin Bakker shall be declared ineligible for competition for lifetime.

4.) The award is pronounced without costs, except for the Court Office fee of CHF 500 already paid by Mr Bakker, which is retained by the CAS.

5.) Each party shall bear its own costs.

Softball New Zealand (SNZ) has reported an anti-doping rule violation against the Respondent after he tested positive for the prohibited substance Cannabis.
After notification by SNZ the Respondent filed a statement in his defence and was heard for the Tribunal.
Respondent admitted the violation and stated he had smoked Cannabis prior the tournament. The Respondent had no intention to enhance performance and he apologized for committing the violation.

The Tribunal concludes that Respondent did not smoke Cannabis for performance-enhancing purposes and the use of cannabis was unrelated to the sport. Therefore the Sports Disputes Tribunal of New Zealand decides to impose a reprimand and a warning on the Respondent.

Annual Report 2005 / Anti-Doping Switzerland. - Bern : Dopingbekämpfung Schweiz, 2006

Independent Investigation Analysis Samples from the 1999 Tour de France / E.N. Vrijman, Adriaan van der Veen, J.P.R. Scholten. – The Hague : Scholten c.s. Advocaten, 2006-05-01.- 370 p., fig., lit. – Report of the team of the independent investigator

Content:

1.) Executive Summary
2.) General Introduction
3.) The start of the investigation
4.) Addressing the issues concerned
4a.) Findings
4b.) Discussion of Findings
5.) Unanswered Questions, Conclusions and Recommendation

The independent investigation of all facts and circumstances regarding the analyses of the urine samples of the 1998 and 1999 Tours de France conducted by the French WADA-accredited Laboratory, the laboratoire Nationate De Depistage Du Dopage' ('LNDD') in Chatenay-Malabry, France, was the result of allegations made in the newspaper article 'Armstrong's lie', published in the French newspaper L'Equipe on August 23, 2005, that the American cyclist and seven-time winner of the Tour de France, Lance Armstrong, had used the prohibited substance 'recombinant EPO' (hereinafter: 'r-EPO') during the 1999 Tour de France.

According to the article, six urine samples of Armstrong from the 1999 Tour de France allegedly tested positive for r-EPO when analysed by the LNDD as part of ongoing research to further improve the existing detection method for r-EPO. In addition, it was alleged that six other urine samples, from six other riders, had also tested positive for r-EPO.

Conclusions:

Although no documentation has been made available, it is the opinion of the independent investigator that it may be accepted that the samples from the 1998 and 1999 Tours de France have been analysed by the LNDD for research purposes. WADA however, while claiming initially that the samples had been analysed for research purposes only, asked the LNDD to provide additional information, in particular the original codes of the samples that were analysed.

It is the conclusion of the investigator that WADA had also the intention that the research results, in combination with the additional information requested by WADA, be used for disciplinary purposes against individual athletes, directly contrary to its representation that the results would not be used "for any sanction purpose". In this sense one can speak of targeting by WADA of the participants of the 1998 and 1999 Tours de France.

The conclusion of the investigator is that the results reported by the LNDD in its research reports on the 1998 and 1999 Tours de France cannot be qualified as constituting Presumptive Analytical Findings, much less Adverse Analytical Findings and consequently do not provide proof of an Anti-Doping Rule Violation. The investigator has had no indication whether the "appropriate exchange of correspondence" or oral contacts between WADA and LNDD might have led to preventing that proper information on the "accelerated measurement procedure" and its limitations was inserted in the reports.

In addition the investigator concludes:
The LNDD violated applicable rules on athlete confidentiality by accepting to provide additional information, in particular the sample codes, to WADA. This applies notwithstanding the condition of strict confidentiality stipulated by the LNDD.
The LNDD violated applicable rules on athlete confidentiality by commenting publicly on the alleged positive findings, especially in relation with a particular rider, Lance Armstrong.
WADA violated applicable rules on athlete confidentiality by commenting publicly on the alleged positive findings, especially in relation with a particular rider, Lance Armstrong.
There is no factual basis to find that there has been an Adverse Analytical Finding, let alone that an Anti-Doping Rule Violation could be asserted. There is no way to conduct valid additional analysis of any remaining urine. Consequently, there is no basis for disciplinary action against any rider.

Recommendation:
Taking into account the conclusions drawn in this report as at this stage of the investigation, the UCI is recommended to refrain from initiating any disciplinary action whatsoever regarding those riders alleged to have been responsible for causing one or more alleged "Adverse Analytical Findings", on the basis of the confidential reports of the LNDD "Recherche EPO Tour de France 1998" and "Recherche EPO Tour de France 1999", and should inform allot the riders involved that no action will be taken based on the research testing by the LNDD.

Independent Observers (IO) Report XVIII Commonwealth Games Melbourne, Australia 15-25 March 2006 / Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2006

Independent Observer (IO) Report : IX Paralympic Winter Games, Turin, Italy, 2006 / Pirjo Krouvila. - Independent Observer Team. - Montreal : World Anti-Doping Agency (WADA), 2006

USADA 2005 Annual Report / United States Anti-Doping Agency (USADA). - Colorado Springs : USADA, 2006

World Anti-Doping Agency 2005 annual report / World Anti-Doping Agency (WADA). - Montreal : WADA, 2006

Contents
WADA’s Mission, Vision & Priorities 3
WADA Executive Committee & Foundation Board 5
Chairman’s Letter to Stakeholders 9
Director General’s Letter to Stakeholders 11
Code Acceptance, Implementation & Compliance 13
Science & Medicine 14
Anti-Doping Coordination 15
Anti-Doping Development 17
Education 18
Communications 19
Out-of-Competition Testing 20
Management Report 22
Financial Statements 24
WADA Offices Worldwide 40

Agence Française de Lutte contre le Dopage (AFLD): 2005 Rapport d’activité

SOMMAIRE
AVANT-PROPOS 5
SYNTHESE 7

I. LES ACTEURS ET LES RÈGLES EN 2005 11
A. LES ACTEURS ET LES MOYENS DE LA PRÉVENTION ET DE LA LUTTE CONTRE LE DOPAGE 13
1. Des acteurs multiples 13
2. Les moyens budgétaires de la lutte contre le dopage 15
B. L’ACTIVITE RÉGLEMENTAIRE DU CONSEIL 18
1. Les recommandations et propositions de mesures tendant à prévenir ou à combattre le dopage 18
2. Les avis sur les projets de textes législatifs et réglementaires 19

II. EN 2006, DE NOUVELLES REGLES DU JEU POUR LA LUTTE CONTRE LE
DOPAGE 21
A. UNE CONVENTION INTERNATIONALE 23
1. Pourquoi une convention internationale ? 23
2. Les principales dispositions de la convention 24
3. Les étapes préalables à l’entrée en vigueur de la convention 25
B. UN NOUVEAU CADRE LEGISLATIF 26
1. Le CPLD devient l’AFLD 26
2. Des compétences élargies 28
3. Les partenaires de l’AFLD 32

III. LA DETECTION DU DOPAGE 35
A. LES PRODUITS ET PROCÉDÉS DOPANTS 37
1. Les critères du dopage 37
2. Rappel des produits et procédés interdits 37
3. Les modifications apportées aux listes 2005 et 2006 39
4. Des critiques qui persistent… 39
B. LES OPÉRATIONS DE CONTRÔLE ET D’ANALYSE 42
1. Quel est le déroulement d’un contrôle antidopage ? 42
2. Les différents types de prélèvements et d’analyses 43
C. LES RÉSULTATS DES CONTRÔLES RÉALISÉS EN2005 44
1. L’évolution globale du nombre de contrôles : un niveau qui reste élevé, malgré
une légère diminution 44
2. La poursuite de la baisse du taux de contrôles positifs 44

III. L’ACTIVITE DISCIPLINAIRE 49
A. LA RÉPARTITION DE L’ACTIVITÉ DISCIPLINAIRE ENTRE LES FÉDÉRATIONS SPORTIVES ET LE CPLD 51
B. LES SANCTIONS PRONONCÉES PAR LE CPLD 54
1. Analyse des décisions prises par le CPLD en 2005 54
2. Présentation de la jurisprudence du Conseil d’Etat relative aux décisions du CPLD depuis sa création 68

IV. LA PRÉVENTION ET LA RECHERCHE 81
A. LA PRÉVENTION 83
1. Les travaux des commissions 83
2. Les projets soutenus ou mis en oeuvre par le CPLD 84
B. LA RECHERCHE EN MATIÈRE DE LUTTE CONTRE LE DOPAGE 89
1. L’activité scientifique du CPLD 89
2. L’enregistrement des dossiers de justificatifs médicaux 98
ANNEXES 101